Notice2022-03927
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
February 24, 2022
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 second proposed stipulated partial settlement agreement that resolves 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 proposed stipulated partial settlement agreement.
Full Text
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<title>Federal Register, Volume 87 Issue 37 (Thursday, February 24, 2022)</title>
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[Federal Register Volume 87, Number 37 (Thursday, February 24, 2022)]
[Notices]
[Pages 10363-10364]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-03927]
[[Page 10363]]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OGC-2021-0674; FRL-9566-01-OGC]
Proposed Stipulated Partial Settlement Agreement, Endangered
Species Act Claims
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed stipulated 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 second proposed stipulated partial
settlement agreement that resolves 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 proposed stipulated
partial settlement agreement.
DATES: Written comments on the proposed stipulated partial settlement
agreement must be received by March 28, 2022.
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.
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#284346475a5a0645414b404d444d684d5849064f475e"><span class="__cf_email__" data-cfemail="9ff4f1f0ededb1f2f6fcf7faf3fadffaeffeb1f8f0e9">[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 pesticide active ingredients on
species listed as threatened or endangered under the ESA, 16 U.S.C.
Section 1531 et seq., and their designated critical habitats and
requested initiation of consultation pursuant to ESA Section 7(a)(2),
16 U.S.C. Section 1536(a)(2) (the Malathion Consultation). The
Malathion Consultation has been ongoing since that date.
Plaintiffs filed their original case in May 2018, and 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. Section 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.''
On January 4, 2022, the court entered the first stipulated partial
settlement agreement that resolved part of this case. Specifically,
unless one of the contingencies set forth in 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.
The remaining part of this case involves the substantive claims
under ESA section 7(a)(2) against EPA. This second proposed partial
settlement agreement states that, unless one of the contingencies set
forth in settlement agreement occurs (which may result in an extension
of time), EPA will implement specific portions of the Final Biological
Opinion no later than 18 months from the date that FWS issues the Final
Biological Opinion. Implementation will include, but is not limited to,
providing to all registrants of products containing malathion written
notice of the issuance of the Final Biological Opinion no later than 60
calendar days from its issuance, as well as notice of any actions the
malathion registrants must take (including to require submission of
requests to amend labeling or terms and conditions of registration).
Court approval of this proposed stipulated partial settlement
agreement would result in the dismissal with prejudice of the remaining
claims. Defendant-Intervenor joins this proposed 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
[[Page 10364]]
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 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. 2022-03927 Filed 2-23-22; 8:45 am]
BILLING CODE 6560-50-P
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