Request for Public Comment on Proposed Settlement Agreement Involving Pesticides and the Endangered Species Act

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of availability; request for public comments

SUMMARY:

EPA is making available for comment a proposed Settlement Agreement that would establish a series of deadlines for the Agency to make “effects determinations” on pesticides containing any of six active ingredients to determine their potential effects on the Barton Springs Salamander, Eurycea sosorum, or its designated critical habitat. If the Agency determines a pesticide “may affect and is likely to adversely affect” the listed species, the Agency will initiate formal consultation with the U.S. Fish and Wildlife Service (FWS). EPA will evaluate all comments received during the public comment period to determine whether all or part of the proposed Settlement Agreement warrants reconsideration. This proposed Settlement Agreement, if entered by the Court, would resolve a lawsuit brought against EPA by the Center for Biological Diversity and the Save Our Springs Alliance (jointly, plaintiffs).

DATES:

Comments must be received on or before July 27, 2005.

ADDRESSES:

Submit your comments, identified by docket identification (ID) number OPP-2005-0191, by one of the following methods:

• Agency Website: http://www.epa.gov/edocket/ . EDOCKET, EPA's electronic public docket and comment system, is EPA's preferred method for receiving comments. Follow the on-line instructions for submitting comments.
• E-mail: Comments may be sent by e-mail to opp-docket@epa.gov, Attention: Docket ID Number OPP-2005-0191.
• Mail: Public Information and Records Integrity Branch (PIRIB) (7502C), Office of Pesticide Programs (OPP), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001, Attention: Docket ID Number OPP-2005-0191.
• Hand Delivery: Public Information and Records Integrity Branch (PIRIB), Office of Pesticide Programs (OPP), Environmental Protection Agency, Rm. 119, Crystal Mall #2, 1801 S. Bell St., Arlington, VA, Attention: Docket ID Number OPP-2005-0191. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to docket ID number OPP-2005-0191. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.epa.gov/edocket/ , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through EDOCKET or e-mail. EDOCKET is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through EDOCKET, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD ROM you submit. 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. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit EDOCKET on-line.

Docket: All documents in the docket are listed in the EDOCKET index at http://www.epa.gov/edocket/ . Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in EDOCKET or in hard copy at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1801 S. Bell St., Arlington, VA. This Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is (703) 305-5805.

FOR FURTHER INFORMATION CONTACT:

Arty Williams, Field and External Affairs Division (7506C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-5239; fax number: (703) 308-3259; e-mail address: williams.arty@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

This action is directed to the public in general, and may be of particular interest to the Center for Biological Diversity, Save Our Springs Alliance, other environmental or public interest groups, Texas state regulatory partners, other interested Federal agencies, pesticide registrants, and pesticide users. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

B. How Can I Get Copies of this Document and Other Related Information?

Electronic access. In addition to using EDOCKET( http://www.epa.gov/edocket/ ) you may access this Federal Register document electronically through the EPA Internet under the “Federal Register” listings at http://www.epa.gov/fedrgstr/ .

The proposed Settlement Agreement and other relevant documents are available electronically through EPA's electronic public docket and comment system, EDOCKET. Go to http://www.epa.gov/edocket/ to submit or view public comments, to access the index listing of the contents of the docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the docket ID number OPP-2005-0191. The proposed Settlement Agreement and other relevant documents may also be accessed on EPA's website, www.epa.gov/pesticides , both under the heading “What's New?” and “Open Comment Periods.”

C. What Should I Consider as I Prepare My Comments for EPA?

1. Submitting CBI. Do not submit CBI information to EPA. Should EPA determine as a result of any comments received during the 15-day public comment period that all or part of the proposed Settlement Agreement merits reconsideration, EPA will provide the plaintiffs with a written request for further negotiations and a copy of all comments related to EPA's basis for such negotiations. Therefore, EPA will construe the submission of a comment as a waiver of any confidential business claim as to that comment.

2. Tips for preparing your comments. When submitting comments, remember to:

i. Identify the docket ID number and other identifying information (subject heading, Federal Register date, and page number).

ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing section numbers.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns, and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

II. Background

On January 26, 2004, plaintiffs filed a lawsuit in federal district court for the District of Columbia alleging that EPA failed to comply with sections 7(a)(1) and 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. 1536(a)(1)-(2). CBD v. EPA, Case No. 1:04-cv-00126-CKK (District Court for the District of Columbia).

EPA has reached an agreement with the plaintiffs. The agreement is embodied in a proposed Settlement Agreement. The proposed Settlement Agreement sets a series of deadlines for the Agency to make “effects determinations” on the potential for pesticides containing any of six active ingredients--atrazine, diazinon, carbaryl, prometon, metolachlor, and simazine--to affect the Barton Springs Salamander, Eurycea sosorum, or its designated critical habitat. An “effects determination” considers whether use of a pesticide: (1) Has no effect on a listed species; (2) may affect but is not likely to adversely affect a listed species; or (3) may affect and is likely to adversely affect a listed species. If the Agency determines a pesticide “may affect and is likely to adversely affect” the Barton Springs Salamander or designated critical habitat, EPA will initiate formal consultation with the U.S. Fish and Wildlife Service (FWS) as described in the Settlement Agreement.

In addition, during the pendency of the schedule for effects determinations outlined in the Settlement Agreement, the plaintiffs agree not to seek any injunction or other use restriction for any of the pesticides subject to the Settlement Agreement. Pursuant to the Settlement Agreement, in the event EPA makes a “may affect and is likely to adversely affect” determination for any of the pesticides, the plaintiffs reserve the right to seek use restrictions for that pesticide by filing a new complaint with the Court.

Beginning today, EPA is opening a 15-day comment period on the proposed Settlement Agreement. EPA will use the comments to determine whether all or part of the proposed Settlement Agreement warrants reconsideration.

If EPA determines that any part of the proposed Settlement Agreement merits reconsideration, EPA will provide the plaintiffs with a written request for further negotiations and the proposed Settlement Agreement shall not be entered with the Court unless the parties can reach agreement on needed changes.

If EPA determines that the proposed Settlement Agreement does not need to be reconsidered, the terms of the proposed Settlement Agreement shall become effective upon entry by the U.S. District Court for the District of Columbia. Once the Settlement Agreement is entered by the U.S. District Court for the District of Columbia, EPA will post on its web site at www.epa.gov/pesticides a notice indicating the Settlement Agreement has been so entered.

List of Subjects

• Environmental protection
• Endangered species