[Federal Register Volume 78, Number 18 (Monday, January 28, 2013)]
[Notices]
[Pages 5800-5801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01708]
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ENVIRONMENTAL PROTECTION AGENCY
[Docket ID Number EPA-HQ-OECA-2013-0042; FRL-9774-2]
Clean Water Act Class II: Proposed Administrative Settlement,
Penalty Assessment and Opportunity To Comment Regarding AboveNet
Communications, Inc.
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: EPA has entered into a Consent Agreement with AboveNet
Communications, Inc. to resolve violations of the Clean Water Act (CWA)
and the Emergency Planning and Community Right-to-Know Act (EPCRA), and
their implementing regulations.
The Administrator is hereby providing public notice of this Consent
Agreement and proposed Final Order (CAFO), and providing an opportunity
for interested persons to comment on the CWA and EPCRA portions of this
Consent Agreement, as required by CWA Section 311(b)(6)(C).
DATES: Comments are due on or before February 27, 2013.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OECA-2013-0042, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
Email: [email protected], Attention Docket ID No. EPA-
HQ-OECA-2013-0042.
Fax: (202) 566-9744, Attention Docket ID No. EPA-HQ-OECA-
2013-0042.
Mail: Enforcement and Compliance Docket Information
Center, Environmental Protection Agency, Mailcode: 2822T, 1200
Pennsylvania Ave. NW., Washington, DC 20460, Attention Docket ID No.
EPA-HQ-OECA-2013-0042.
Hand Delivery: Enforcement and Compliance Docket
Information Center in the EPA Docket Center (EPA/DC), EPA West, Room B
3334, 1301 Constitution Avenue 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
Reading Room is (202) 566-1744, and the telephone number for the
Enforcement and Compliance Docket is (202) 566-1927. 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 No. EPA-HQ-OECA-
2013-0042. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, 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 www.regulations.gov. The
www.regulations.gov Web site 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 email comment
directly to EPA without going through www.regulations.gov, your email
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 the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
at www.regulations.gov or in hard copy at the Enforcement and
Compliance Docket Information Center in the EPA Docket Center (EPA/DC),
EPA West, Room B 3334, 1301 Constitution Avenue 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 Reading Room is (202) 566-1744, and the
telephone number for the
[[Page 5801]]
Enforcement and Compliance Docket is (202) 566-1927.
FOR FURTHER INFORMATION CONTACT: Sanda Howland, Special Litigation and
Projects Division (2248-A), U.S. Environmental Protection Agency, 1200
Pennsylvania Avenue NW., Washington, DC 20460; telephone: (202) 564-
5022; fax: (202) 564-9001; email: [email protected].
I. Background
This settlement agreement is the result of voluntary disclosures by
AboveNet Communications, Inc., (AboveNet) to the Special Litigation and
Projects Division (SLPD) in the Office of Civil Enforcement of
potential EPCRA Sections 311 and 312 reporting violations and CWA
violations related to Spill Prevention, Control, and Countermeasure
(SPCC) Plan requirements. AboveNet, a telecommunications company
organized under the laws of the state of Delaware and located at 360
Hamilton Avenue, White Plains, NY 10601, disclosed these potential
violations pursuant to EPA's Incentives for Self-Policing: Discovery,
Disclosure, Correction and Prevention of Violations (Audit Policy), 65
FR 19,618 (April 11, 2000).
EPA determined that AboveNet's disclosures satisfied all the
conditions set forth in the Audit Policy, and therefore qualify for a
100% reduction of the civil penalty's gravity component. Pursuant to
the settlement agreement, EPA proposes to waive the gravity based
penalty. AboveNet will pay a civil penalty in the amount of $19,024.00,
which is the amount of the economic benefit gained by AboveNet
attributable to its delayed compliance with the CWA and EPCRA. EPA and
AboveNet negotiated an administrative Consent Agreement in accordance
with EPA's Consolidated Rules of Practice, 40 CFR part 22, specifically
40 CFR 22.13(b) and 22.18(b) (In the Matter of AboveNet Communications,
Inc., Docket Nos. CWA-HQ-2012-8000, EPCRA-HQ-2012-8000). This Consent
Agreement is subject to public notice and comment under CWA Section
311(b)(6)(C), 33 U.S.C. 1321(b)(6)(C).
AboveNet violated CWA Section 311(j), 33 U.S.C. 1321(j), and the
regulations found at 40 CFR part 112, because it failed to prepare and
implement SPCC plans for the 4 facilities listed below. As authorized
by CWA Section 311(b)(6), 33 U.S.C. 1321(b)(6), EPA has assessed a
civil penalty for these violations.
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Site/building code Address City State
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1.................. DC-21M................ 2100 M Street NW., Washington............ DC.
Suite P110.
2.................. IL-52R................ 5201 Rose Street...... Chicago............... IL.
3.................. MA-SUM................ 1 Summer Street....... Boston................ MA.
4.................. PA-401................ 401 N. Broad Street, Philadelphia.......... PA.
Suites 240 & 323.
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Under CWA Section 311(b)(6)(A), 33 U.S.C. 1321(b)(6)(A), any owner,
operator, or person in charge of a vessel, onshore facility, or
offshore facility from which oil is discharged in violation of CWA
Section 311(b)(3), 33 U.S.C. 1321(b)(3), or who fails or refuses to
comply with any regulations that have been issued under CWA Section
311(j), 33 U.S.C. 1321(j), may be assessed an administrative civil
penalty of up to $177,500 by EPA. Class II proceedings under CWA
Section 311(b)(6) are conducted in accordance with 40 CFR part 22.
AboveNet also violated EPCRA Section 311, 42 U.S.C. 11021, and the
regulations found at 40 CFR part 370, when it failed to submit a
Material Safety Data Sheet (MSDS) for a hazardous chemical(s) or, in
the alternative, a list of such chemicals, at 48 facilities for varying
lengths of time between 2007 and 2011. EPA, as authorized by EPCRA
Section 325, 42 U.S.C. 11045, has assessed a civil penalty for these
violations.
AboveNet also violated EPCRA Section 312, 42 U.S.C. 11022, and the
regulations found at 40 CFR part 370, when it failed to prepare and
submit emergency and chemical inventory forms to the Local Emergency
Planning Commission (LEPC), the State Emergency Response Commission
(SERC), and/or the fire department with jurisdiction over 48 facilities
listed in Attachment A for varying lengths of time between 2007 and
2011. EPA, as authorized by EPCRA Section 325, 42 U.S.C. 11045, has
assessed a civil penalty for these violations. Attachment A to the
proposed CAFO lists the 48 telecommunications facilities in violation
of EPCRA Sections 311 and 312.
Under EPCRA Section 325, 42 U.S.C. 11045, the Administrator may
issue an administrative order assessing a civil penalty against any
person who has violated applicable emergency planning or right-to-know
requirements, or any other requirement of EPCRA. Proceedings under
EPCRA Section 325 are conducted in accordance with 40 CFR part 22.
The procedures by which the public may comment on a proposed Class
II penalty order, or participate in a CWA Class II penalty proceeding,
are set forth in 40 CFR 22.45. The deadline for submitting public
comment on this proposed final order is February 27, 2013. All comments
will be transferred to the Environmental Appeals Board (EAB) of EPA for
consideration. The powers and duties of the EAB are outlined in 40 CFR
22.4(a).
Pursuant to CWA Section 311(b)(6)(C), 33 U.S.C. 1321(b)(6)(C), EPA
will not issue an order in this proceeding prior to the close of the
public comment period.
List of Subjects
Environmental protection.
Dated: December 14, 2012.
Andrew Stewart,
Acting Division Director, Special Litigation and Projects Division,
Office of Enforcement and Compliance Assurance.
[FR Doc. 2013-01708 Filed 1-25-13; 8:45 am]
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