Proposed Settlement Agreements, Clean Water Act Claims

 
CONTENT
Federal Register, Volume 84 Issue 248 (Friday, December 27, 2019)
[Federal Register Volume 84, Number 248 (Friday, December 27, 2019)]
[Notices]
[Pages 71407-71409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28014]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OGC-2019-0685; FRL-10003-78-OGC]
Proposed Settlement Agreements, Clean Water Act Claims
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice; request for public comment.
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SUMMARY: In accordance with the Environmental Protection Agency (EPA)
Administrator's October 16, 2017 Directive Promoting Transparency and
Public Participation in Consent Decrees and Settlement Agreements,
notice is hereby given of three proposed settlement agreements to
address petitions for review of EPA's final National Pollutant
Discharge Elimination System (NPDES) general permits for discharges of
stormwater from Small Municipal Separate Storm Sewer System (MS4) in
Massachusetts and New Hampshire under Clean Water Act (CWA). The
proposed settlements represent the results of mediation supervised by
the U.S. Court of Appeals for the District of Columbia Circuit
Mediation Program between EPA and petitioners the National Association
of Homebuilders (NAHB), the Home Builders and Remodelers Association of
Massachusetts, Inc. (HBRAMA), the New Hampshire Home Builders
Association (NHHBA), the Center for Regulatory Reasonableness (CRR),
the Massachusetts Coalition for Water Resources Stewardship (MCWRS),
the Town of Franklin, Massachusetts, (Franklin), the City of Lowell,
Massachusetts (Lowell), the Conservation Law Foundation (CLF), and the
Charles River Watershed
[[Page 71408]]
Association (CRWA). Two of the proposed settlement agreements include
commitments for EPA to propose certain modifications to the 2016
Massachusetts Small MS4 General Permit and the 2017 New Hampshire Small
MS4 General Permit, and then to take final action on each proposal. The
third settlement agreement commits EPA to process an individual small
MS4 permit application from the City of Lowell, Massachusetts.
DATES: Written comments on the proposed settlement agreements must be
received by January 27, 2020.
ADDRESSES: Submit your comments, identified by Docket ID number EPA-HQ-
OGC-2019-0685, online at www.regulations.gov (EPA's preferred method).
For comments submitted at www.regulations.gov, follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from www.regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically 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. The EPA
generally will 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, please contact
the persons identified in the FOR FURTHER INFORMATION CONTACT section.
For the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Peter Z. Ford, Water Law Office,
Office of General Counsel, (2355A), Environmental Protection Agency,
1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone: (202) 564-
5593; email address: [email protected]; or Erin Flannery-Keith, Office
of Regional Counsel, Region 1, Environmental Protection Agency, 5 Post
Office Square, Boston, MA 02109; telephone: (617) 918-1096; email
address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Additional Information About the Proposed Settlement Agreements
    On April 4, 2016, EPA issued a final NPDES general permit for
discharges of stormwater from small MS4s in Massachusetts (the MA MS4
Permit) under Clean Water Act (CWA) section 402(p). 33 U.S.C. 1342(p).
On July 18, 2016, the Center for Regulatory Reasonableness (CRR) filed
a petition for review of the permit in the U.S. Court of Appeals for
the D.C. Circuit. CLF, CRWA, MCWRS, Franklin, NAHB, HBRAMA, and the
City of Lowell also filed petitions for review of the permit, all of
which were consolidated with CRR's petition in the D.C. Circuit. Center
for Regulatory Reasonableness, et al. v. EPA, No. 16-1246 (D.C. Cir.)
(2016 Massachusetts Small MS4 General Permit consolidated cases). On
January 18, 2017, EPA issued a final NPDES general permit for
discharges of stormwater from small MS4s in New Hampshire (the NH MS4
Permit). On February 1, 2017, CLF filed a petition for review of the
permit in the U.S. Court of Appeals for the First Circuit. CRR, NAHB,
and NHHBA later filed petitions for review in the D.C. Circuit. The
First Circuit then transferred the CLF petition to the D.C. Circuit,
where the D.C. Circuit consolidated it with the CRR, NAHB, and NHHBA
petitions. Center for Regulatory Reasonableness et. al v. EPA,
Conservation Law Foundation, Intervenor No. 17-1060 (D.C. Cir.) (2017
New Hampshire Small MS4 General Permit consolidated cases). The parties
to both cases entered into mediation in 2017, and the D.C. Circuit has
held the cases in abeyance during that time. The first two proposed
settlement agreements describe the modifications that EPA would propose
to the MA MS4 Permit and NH MS4 Permit. The proposed permit
modifications would reflect the substantive agreements that parties
reached during mediation. The agreements also specify that EPA would
take final action on each proposed modification within nine months of
the Agency's posting of the notice of availability (NOA) of the Draft
Permit Modifications on its website and in the Federal Register; that
petitioners would then dismiss their current petitions for review with
prejudice; and that petitioners would agree not to challenge EPA's
respective final actions if they modify the permits in a manner
substantially similar to the proposed modifications (with one
exception, discussed in the New Hampshire settlement agreement). The
third settlement agreement commits Lowell, Massachusetts to voluntarily
dismiss its petition without prejudice and commits EPA to process
Lowell's individual permit application and then to take final action on
Lowell's individual permit application, taking into consideration
Lowell's application materials, public comments, and any additional
information obtained in the course of the permit proceeding, in
accordance with 40 CFR part 124.
    For a period of thirty (30) days following the date of publication
of this action, the Agency will accept written comments on the proposed
settlement agreements from persons who are not named as parties or
intervenors to the litigation in question. If so requested, EPA will
also consider holding a public hearing on whether to enter into the
proposed settlement agreements. EPA or the Department of Justice may
withdraw or withhold consent to the proposed settlement agreements if
the comments disclose facts or considerations that indicate that such
consent is inappropriate, improper, inadequate, or inconsistent with
the requirements of the Act. Unless EPA or the Department of Justice
determines that consent to these proposed settlement agreements should
be withdrawn, EPA will agree to the terms of the proposed settlement
agreements and so inform the Court.
    In this action, EPA is soliciting comment only as to whether to
enter the settlement agreements. EPA's planned proposed permit
modifications to the Massachusetts and New Hampshire permits and
statements of basis describing those proposed modifications are
attached as Exhibits A and B to the Massachusetts and New Hampshire
settlement agreements. EPA will subsequently offer the public the
opportunity to comment on those proposed permit modifications pursuant
to the regular permitting process as specified in 40 CFR part 124. The
parties may execute the settlement agreements after this 30-day public
notice period concludes. Following any Office of Management and Budget
(OMB) review of the proposed Massachusetts and New Hampshire permit
modifications, EPA will promptly transmit for publication in the
Federal Register notices of availability (NOAs) of the proposed
modifications to the two permits that are the same as the documents
marked Exhibit A to both the Massachusetts and New Hampshire proposed
settlement agreements, excepting non-substantive or typographical
corrections. EPA will post the Draft Permit Modifications and
accompanying fact sheets, see 40 CFR 124.8, that include the language
attached as Exhibit B to both the Massachusetts and New Hampshire
[[Page 71409]]
proposed settlement agreements, on EPA Region 1's website. The NOAs
will explain that EPA is reopening and reexamining specific parts of
the permits. EPA will email notifications of the Draft Permit
Modifications to regulated parties, the parties to this mediation, and
the other interested parties on EPA Region 1's NPDES permit mailing
list. The NOAs will provide for at least a 30-day public comment period
that may, in EPA's discretion, be extended. Pursuant to 40 CFR
124.12(a), if EPA determines that there is a significant degree of
public interest in the Draft Permit Modifications, EPA may schedule a
public hearing and publish a notice of hearing on the same web page as
the NOAs. In addition, at the time EPA submits the NOAs for
publication, EPA will ask Massachusetts and New Hampshire to provide a
water quality certification pursuant to Section 401 of the Clean Water
Act, 33 U.S.C. 1341. After considering any public comments, EPA will
take final action on the Draft Permit Modifications (``Final Agency
Action'') within nine months of the Agency's posting of the NOAs of the
Draft Permit Modifications on its website.
    Regarding the proposed settlement agreement between EPA and the
City of Lowell, Massachusetts, EPA similarly requests only comments on
the settlement agreement. The proposed settlement agreement would
commit EPA to take final action on Lowell's individual permit
application in accordance with 40 CFR part 124, including providing
public notice of any draft permit and offering opportunities for public
comments and, if requested, public hearings on the permit's substantive
requirements.
II. Additional Information About Commenting on the Proposed Settlement
Agreements
A. How can I get a copy of the proposed settlement agreements?
    The official public docket for this action (identified by EPA-HQ-
OGC-2019-0685) contains copies of the proposed settlement agreements.
The official public docket is available for public viewing at 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 Docket Center is (202) 566-
1752.
    An electronic version of the public docket is available through
www.regulations.gov. You may use 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.'' It is
important to note that EPA's policy is that public comments, whether
submitted electronically or in paper, will be made available for public
viewing online at www.regulations.gov without change, unless the
comment contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. Information claimed as CBI and
other information whose disclosure is restricted by statute is not
included in the official public docket or in the electronic public
docket.
    EPA's policy is that copyrighted material, including copyrighted
material contained in a public comment, will not be placed in EPA's
electronic public docket but will be available only in printed, paper
form in the official public docket. Although not all docket materials
may be available electronically, you may still access any of the
publicly available docket materials through the EPA Docket Center.
B. How and to whom do I submit comments?
    You may submit comments as provided in the ADDRESSES section.
Please ensure that your comments are submitted within the specified
comment period.
    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 and with any disk or CD
ROM you submit. 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 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.
In contrast to EPA's electronic public docket, EPA's electronic mail
(email) system is not an ``anonymous access'' system. If you send an
email comment directly to the Docket without going through
www.regulations.gov, your email address is automatically captured and
included as part of the comment that is placed in the official public
docket, and made available in EPA's electronic public docket.
    Dated: December 18, 2019.
Steven M. Neugeboren,
Associate General Counsel.
[FR Doc. 2019-28014 Filed 12-26-19; 8:45 am]
 BILLING CODE 6560-50-P