2023-19433. Proposed Consent Decree, Clean Water Act Claim

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of proposed consent decree; request for public comment.

SUMMARY:

In accordance with the Environmental Protection Agency (EPA) Administrator's March 18, 2022, memorandum regarding “Consent Decrees and Settlement Agreements to resolve Environmental Claims Against the Agency,” notice is hereby given of a proposed consent decree in Center for Biological Diversity, et al., v. Regan, et al., No. 3:23–cv–535 (N.D. Cal. 2023). On February 6, 2023, the Center for Biological Diversity, the Friends of the Earth, and Marcelin Keever (collectively, “Plaintiffs”) filed a complaint in the United States District Court for the Northern District of California against the EPA alleging that the Agency had failed to perform its non-discretionary duty to promulgate national standards of performance for discharges incidental to the normal operation of large commercial vessels (and ballast water from certain other types of vessels) pursuant to the Clean Water Act (CWA) as amended by the Vessel Incidental Discharge Act of 2018 (VIDA). EPA seeks public input on a proposed consent decree setting a date for final action on the national standards of performance prior to its final decision-making regarding potential settlement of the litigation.

DATES:

Written comments on the proposed consent decree must be received by October 10, 2023.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA–HQ–OGC–2023–0453 online at https://www.regulations.gov (EPA's preferred method). Follow the online instructions for submitting comments.

Instructions: All submissions received must include the Docket ID number for this action. Comments received may be posted without change to https://www.regulations.gov, including any personal information provided. For detailed instructions on sending comments, see the “Additional Information About Commenting on the Proposed Consent Decree” heading under the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Thomas Glazer, Water Law Office, Office of General Counsel, U.S. Environmental Protection Agency; telephone: [phone]; email address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Additional Information About the Proposed Consent Decree

The president signed VIDA into law on December 4, 2018. Among other things, VIDA directed EPA to “promulgate Federal standards of performance for marine pollution control devices for each type of discharge incidental to the normal operation of a vessel” by December 4, 2020. 33 U.S.C. 1322(p)(4)(A)(i). EPA published a proposed rulemaking on October 26, 2020, 85 FR. 67818, but did not take final action in time to meet the statutory deadline.

On September 13, 2022, Plaintiffs sent EPA a notice of intent (NOI) to sue alleging that EPA had failed to satisfy its mandatory duty under VIDA to promulgate Federal standards of performance. The Plaintiffs filed a complaint on February 6, 2023, seeking a declaratory judgment that EPA violated the statutory deadline and ordering the Agency to promulgate expeditiously.

The parties initiated settlement discussions, which produced the proposed consent decree. Under the consent decree, EPA would be obligated to sign a decision taking final action by September 23, 2024. The consent decree's schedule is based on EPA's projected timeline for completing the rulemaking. This deadline may be extended by written agreement of the parties or by the court pursuant to Federal Rule 60(b).

For a period of thirty (30) days following the date of publication of this notice, EPA will accept written comments relating to the proposed consent decree from persons who are not parties to the litigation. EPA or the Department of Justice may withdraw or withhold consent to the proposed consent decree if the comments received disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the CWA.

II. Additional Information About Commenting on the Proposed Consent Decree

A. How can I get a copy of the proposed consent decree?

The official public docket for this action (identified by Docket ID No. EPA–HQ–OGC–2023–0453) contains a copy of the proposed consent decree. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744, and the telephone number for the OEI Docket is (202) 566–1752.

The electronic version of the public docket for this action contains a copy of the proposed consent decree and is available through https://www.regulations.gov. You may use https://www.regulations.gov to submit or view public comments, access the index listing of the contents of the official public docket, and access those documents in the public docket that are available electronically. Once in the system, key in the appropriate docket identification number then select “search.”

B. How and to whom do I submit comments?

Submit your comments, identified by Docket ID No. EPA–HQ–OGC–2023–0453 via https://www.regulations.gov. Once submitted, comments cannot be edited or removed from this docket. EPA may publish any comment received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/​dockets/​commenting-epa-dockets. For additional information about submitting information identified as CBI, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section of this document.

If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Use of the https://www.regulations.gov website to submit comments to EPA electronically is EPA's preferred method for receiving comments. The electronic public docket system is an “anonymous access” system, which means EPA will not know your identity, email address, or other contact information unless you provide it in the body of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA does not plan to consider these late comments.

Steven M. Neugeboren,

Associate General Counsel.