Notice2021-22582
Proposed Stipulated Partial Settlement Agreement, Endangered Species Act Claims
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 18, 2021
Issuing agencies
Environmental Protection Agency
Abstract
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 a proposed stipulated partial settlement agreement that resolves part of the Center for Environmental Health, et al., v. Wheeler, et al., case in the United States District Court for the Northern District of California (4:18-cv-03197) that alleges that EPA and the United States Fish and Wildlife (FWS) failed to comply with certain procedural and substantive duties under the Endangered Species Act (ESA). Defendant-Intervenor joins this stipulated partial settlement agreement.
Full Text
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<title>Federal Register, Volume 86 Issue 198 (Monday, October 18, 2021)</title>
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[Federal Register Volume 86, Number 198 (Monday, October 18, 2021)]
[Notices]
[Pages 57665-57667]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-22582]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OGC-2021-0674; FRL-9130-01-OGC]
Proposed Stipulated Partial Settlement Agreement, Endangered
Species Act Claims
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed stipulated partial settlement agreement;
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 a proposed stipulated partial settlement
agreement that resolves part of the Center for Environmental Health, et
al., v. Wheeler, et al., case in the United States District Court for
the Northern District of California (4:18-cv-03197) that alleges that
EPA and the United States Fish and Wildlife (FWS) failed to comply with
certain procedural and substantive duties under the Endangered Species
Act (ESA). Defendant-Intervenor joins this stipulated partial
settlement agreement.
DATES: Written comments on the proposed stipulated partial settlement
agreement must be received by November 17, 2021.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OGC-2021-0674, online at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (EPA's preferred
method). Follow the online instructions for submitting comments.
[[Page 57666]]
Instructions: All submissions received must include the Docket ID
number for this action. Comments received may be posted without change
to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Additional Information
about Commenting on the Proposed Settlement Agreement'' heading under
the SUPPLEMENTARY INFORMATION section of this document. Out of an
abundance of caution for members of the public and our staff, the EPA
Docket Center and Reading Room are closed to the public, with limited
exceptions, to reduce the risk of transmitting COVID-19. Our Docket
Center staff will continue to provide remote customer service via
email, phone, and webform. We encourage the public to submit comments
via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, as there may be a delay in processing
mail and faxes. Hand-deliveries and couriers may be received by
scheduled appointment only. For further information on EPA Docket
Center services and the current status, please visit us online at
<a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
EPA continues to carefully and continuously monitor information
from the CDC, local area health departments, and our federal partners
so that we can respond rapidly as conditions change regarding COVID-19.
FOR FURTHER INFORMATION CONTACT: Michele Knorr, Pesticides and Toxic
Substances Law Office MC-2333A, Office of General Counsel, U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington,
DC 20460; telephone (202) 564-5631; email address
<a href="/cdn-cgi/l/email-protection#eb8085849999c5868288838e878eab8e9b8ac58c849d"><span class="__cf_email__" data-cfemail="caa1a4a5b8b8e4a7a3a9a2afa6af8aafbaabe4ada5bc">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Obtaining a Copy of the Proposed Settlement Agreement
The official public docket for this action (identified by Docket ID
No. EPA-HQ-OGC-2021-0674) contains a copy of the proposed settlement
agreement.
The electronic version of the public docket for this action
contains a copy of the proposed settlement agreement and is available
through <a href="https://www.regulations.gov">https://www.regulations.gov</a>. You may use <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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.''
II. Additional Information About the Proposed Settlement Agreement
Prior to this lawsuit being filed, on January 18, 2017, EPA
submitted to FWS a nationwide biological evaluation regarding the
effects of malathion and two other active ingredients on species listed
as threatened or endangered under the ESA, 16 U.S.C. 1531 et seq., and
their designated critical habitats and requested initiation of
consultation pursuant to ESA section 7(a)(2), 16 U.S.C. 1536(a)(2) (the
Malathion Consultation). The Malathion Consultation has been ongoing
since that date.
Plaintiffs filed their original case in May 2018. The Plaintiffs
amended the complaint on July 25, 2018, and on November 27, 2018
alleging that: (1) EPA violated its procedural duty under ESA section
7(a)(2) to complete consultation and its substantive duty under ESA
section 7(a)(2) to avoid jeopardy with respect to 21 malathion-
containing pesticide product registrations under the Federal
Insecticide Fungicide, and Rodenticide Act (FIFRA), and the FWS
violated its procedural duty to complete consultation under ESA section
7(a)(2); (2) these failures constitute unlawfully withheld or
unreasonably delayed agency action in violation of Section 706(1) of
the Administrative Procedure Act, 5 U.S.C. 706(1); and (3) EPA failed
to comply with ESA section 7(d) when it ``maintained the registrations
of these same pesticide products and continued to reregister and
register pesticide products containing malathion.''
Unless one of the contingencies set forth in the proposed
stipulated partial settlement agreement occurs (which may result in an
extension of time), FWS will issue its Final Biological Opinion and
conclude the Malathion Consultation no later than February 28, 2022.
Court approval of this stipulated partial settlement agreement would
result in the dismissal with prejudice of portions of the claims in
Count 1 and Count 2 against Federal Defendants for violation of their
ESA section 7(a)(2) procedural duties to complete the Final Biological
Opinion. This agreement only resolves EPA's procedural duties under the
ESA section 7(a)(2); claims related to EPA's substantive ESA section
7(a)(2) duties are not covered. Additionally, claims against EPA for
its alleged failure to comply with the ESA section 7(d) requirements
are not covered by this agreement. Defendant-Intervenor joins this
stipulated partial settlement agreement.
For a period of thirty (30) days following the date of publication
of this notice, the Agency will accept written comments relating to the
proposed stipulated partial settlement agreement from persons who are
not named as parties to the litigation in question. EPA or the
Department of Justice may withdraw or withhold consent to the proposed
stipulated partial settlement agreement if the comments disclose facts
or considerations that indicate that such consent is inappropriate,
improper, inadequate, or inconsistent with the requirements of the ESA
or FIFRA. Unless EPA or the Department of Justice determines that
consent should be withdrawn, the terms of the proposed stipulation and
stipulated notice of dismissal will be affirmed.
III. Additional Information About Commenting on the Proposed Settlement
Agreement
Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2021-
0674, via <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>. For additional information about submitting information
identified as CBI, please contact the person listed in the FOR FURTHER
INFORMATION CONTACT section of this document. Note that written
comments containing CBI and submitted by mail may be delayed and
deliveries or couriers will be received by scheduled appointment only.
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
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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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 is not required to consider these late
comments.
Christopher E. Kaczmarek,
Acting Associate General Counsel.
[FR Doc. 2021-22582 Filed 10-15-21; 8:45 am]
BILLING CODE 6560-50-P
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