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Programs and Projects of the Office of General Counsel (OGC)

Proposed Consent Decrees and Draft Settlement Agreements

Under the Administrator’s Transparency and Public Participation in Litigation Directive (October 16, 2017), EPA is committed to promote transparency and public participation in the settlement process involving lawsuits against EPA. As a part of that commitment, the Agency is providing information regarding the public review and comment period for all draft settlement agreements and proposed consent decrees that resolve claims against EPA.

On this page:

Our Children’s Earth Foundation v. Wheeler

EPA is taking comment on a proposed consent decree in a lawsuit filed by Our Children’s Earth Foundation (OCE) in the United States District Court for the Northern District of California. On August 7, 2018, Plaintiff filed a complaint alleging that the EPA failed to perform non-discretionary duties to review and if appropriate revise two new source performance standards (NSPS) under Clean Air Act section 111(b)(1)(B) and four national emission standards for hazardous air pollutants (NESHAP) under Clean Air Act section 112(d)(6). The standards OCE identified are:

  • Electric Arc Furnaces and Argon-Oxygen Decarburization Vessels in Steel Plants, 40 CFR 60, Subparts AA & AAa (NSPS)
  • Bulk Gasoline Terminals, 40 CFR 60, Subpart XX (NSPS)
  • Gasoline Distribution Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations), 40 CFR 63, Subpart R (NESHAP)
  • Gasoline Distribution Bulk Terminals, Bulk Plants, and Pipeline Facilities, 40 CFR 63, Subpart BBBBBB (NESHAP)
  • Iron and Steel Foundries Area Sources, 40 CFR 63, Subpart ZZZZZ (NESHAP)
  • Wood Preserving Area Sources, 40 CFR 63, Subpart QQQQQQ (NESHAP)

The proposed consent decree would settle these claims and establish deadlines for EPA to undertake reviews for these six standards. A copy of the proposed partial consent decree and the Federal Register notice with further details can be found under Docket No. EPA-HQ-OGC-2018-0848. Public comment on the proposed partial consent decree may be submitted to that online docket until April 4, 2019.

Sierra Club v. EPA

EPA is taking comment on a proposed partial Consent Decree in a lawsuit filed by Sierra Club in the United States District Court for the District of Columbia. On October 19, 2017, Plaintiff filed a complaint alleging that the EPA failed to perform a non-discretionary duty to assess and report to Congress on the environmental and resource conservation impacts of the Energy Independence and Security Act’s Renewable Fuel Standard (RFS) program, failed to complete the required anti-backsliding study to determine whether the vehicle and engine air pollutant emissions changes resulting from the RFS program’s renewable fuel volumes adversely impact air quality, and failed to promulgate fuel regulations to implement appropriate measures to mitigate any such adverse impacts or make a determination that such regulations were unnecessary.  The proposed partial consent decree would establish a deadline for EPA to take action on the anti-backsliding study.

A copy of the proposed partial consent decree and the Federal Register notice with further details can be found under Docket No. EPA-HQ-OGC-2018-0818. Public comment on the proposed partial consent decree may be submitted to that online docket until March 25, 2019.

Ellis, et al. v. Keigwin, et al. - Comment period closed 1/11/19

On May 8, 2017, the U.S. District Court for the Northern District of California found that EPA had failed to comply with the consultation requirements of section 7(a)(2) of the Endangered Species Act (ESA) with respect to 59 products containing the insecticide active ingredients clothianidin and thiamethoxam. The proposed stipulation and stipulated notice of dismissal would settle the remedy proceeding in that matter. The proposed stipulation provides, among other things, that EPA would agree to complete ESA effects determinations by June 30, 2022, for its FIFRA registration reviews of clothianidin and thiamethoxam and, as appropriate, request initiation of ESA consultation with the U.S. Fish and Wildlife Service and National Marine Fisheries Service.

A copy of the proposed stipulation and proposed stipulated notice of dismissal and the Federal Register notice with further details can be found under Docket No. EPA-HQ-OGC-2018-0745. Public comment on the proposed order may be submitted on that online docket until January 11.

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West Goshen Sewer Authority v. EPA, et al. - Comment period closed 9/20/18

EPA is taking comment on a proposed Second Interim Settlement Agreement in a lawsuit filed by the West Goshen Sewer Authority (WGSA) in the United States District Court for the Eastern District of Pennsylvania: West Goshen Sewer Authority v. EPA, et al.  On September 19, 2012, Plaintiff filed a complaint alleging that the EPA exceeded its statutory authority under the Clean Water Act and acted arbitrarily and capriciously when it established a “total maximum daily load” for Goose Creek in southeastern Pennsylvania. The proposed Second Interim Settlement Agreement would memorialize commitments by WGSA, among other things, to install a “CoMag” ballasted flocculation system at its wastewater treatment plant and achieve certain specified discharge limits for phosphorus. After a period of time, EPA would reassess the water quality of Goose Creek and decide whether to withdraw, revise or retain the Goose Creek TMDL.

A copy of the proposed settlement agreement and the Federal Register notice with further details can be found under Docket No. EPA-HQ-OGC-2018-0591.Public comment on the proposed order may be submitted on that online docket until September 20.

Northwest Environmental Advocates v. EPA - Comment period closed 7/23/18

EPA is taking comment on a proposed stipulated order of partial dismissal (proposed order) to resolve several claims in Northwest Environmental Advocates v. United States Environmental Protection Agency before the United States District Court for the Western District of Washington, under section 7 of the Endangered Species Act (ESA) . Within three years of the entry of the proposed order, EPA will complete an ESA effects determination for its February 11, 2008 approval of Washington’s revisions to the State’s ammonia criteria and, as appropriate, request initiation of any necessary ESA consultation with the Fish & Wildlife Service and the National Marine Fisheries Service (the Services). If during that time, Washington submits revisions to the ammonia criteria and EPA intends to approve, EPA will complete an effects determination and, if appropriate, request initiation of any necessary ESA consultation with the Services within one year of submission or three years of the Court’s approval of the proposed order, whichever is later. The proposed order also includes commitments by the State of Washington to resolve claims under the Clean Water Act and the Administrative Procedure Act; however, EPA is not taking comment on those aspects of the proposed order.

A copy of the proposed order and the Federal Register notice with further details can be found under Docket No. EPA-HQ-OGC-2018-0378. Public comment on the proposed order may be submitted on that online docket until July 23.

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