02-31468. Clean Water Act Class II: Proposed Administrative Settlement, Penalty Assessment and Opportunity To Comment Regarding ADT Security Services, Inc.

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

EPA has entered into a consent agreement with ADT Security Services, Inc. (“ADT”) to resolve violations of the Clean Water Act (”CWA”), the Clean Air Act (“CAA”), 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 final order and providing an opportunity for interested persons to comment on the CWA portions, as required by CWA section 311(b)(6)(C), 33 U.S.C. 1321(b)(6)(C).

ADT failed to prepare Spill Prevention Control and Countermeasure (“SPCC”) plans for eight facilities where they stored diesel oil in above ground tanks. EPA, as authorized by CWA section 311(b)(6), 33 U.S.C. 1321(b)(6), has assessed a civil penalty for these violations. ADT failed to obtain the appropriate operating permits or exemptions at seven facilities in violation of CAA section 110, 42 U.S.C. 7410, and various state implementation plan (“SIP”) requirements for emergency generators. EPA, as authorized by CAA section 113(d)(1), 42 U.S.C. 7413(d)(1), has assessed a civil penalty for these violations. ADT failed to file an emergency planning notification with the State Emergency Response Commission (“SERC”) and to provide the name of an emergency contact to the Local Emergency Planning Committee (“LEPC”). ADT failed to submit Material Safety Data Sheets (“MSDS”) or a list of chemicals to the LEPC, the SERC, and the fire department with jurisdiction over each facility for ninety-two facilities in violation of EPCRA section 311, 42 U.S.C. 11021. At ninety-two facilities, ADT failed to submit an Emergency and Hazardous Chemical Inventory form to the LEPC, the SERC, and the fire department with jurisdiction over each facility in violation of EPCRA section 312, 42 U.S.C. 11022. EPA, as authorized by EPCRA section 325, 42 U.S.C. 11045, has assessed a civil penalty for these violations.

DATES:

Comments are due on or before January 13, 2003.

ADDRESSES:

Send written comments to the Docket Office, Enforcement and Compliance Docket and Information Center (2201T), Docket Number EC-2002-020, U.S. Environmental Protection Agency, EPA West, 1200 Pennsylvania Avenue NW., Room B133, Washington, DC 20460 (in triplicate if possible.)

Please use a font size no smaller than 12. Comments may also be sent electronically to [e-mail] or faxed to [phone]. Attach electronic comments as a text file and try to avoid the use of special characters and any forms of encryption. Please be sure to include the Docket Number EC-2002-020 on your document.

In person, deliver comments to U.S. Environmental Protection Agency, EPA West, 1301 Constitution Avenue, NW., Room B133, Washington, DC 20460. Parties interested in reviewing docket information may do so by calling [phone] or [phone]. A reasonable fee may be charged by EPA for copying docket materials.

FOR FURTHER INFORMATION CONTACT:

Beth Cavalier, Multimedia Enforcement Division (2248-A), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone [phone]; fax: [phone]; e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Electronic Copies: Electronic copies of this document are available from the EPA Home Page under the link “Laws and Regulations” at the Federal Register—Environmental Documents entry (http://www.epa.gov/​fedrgstr).

I. Background

ADT Security Services, Inc. a security services company incorporated in the State of Delaware and located at One Town Center Road, Boca Raton, Florida 33064, disclosed, pursuant to the EPA “Incentives for Self-Policing: Discovery, Disclosures, Correction and Prevention of Violations” (“Audit Policy”), 65 FR 19618 (April 11, 2000), that they failed to prepare SPCC plans for eight facilities where they stored diesel oil in above ground storage tanks, in violation of the CWA section 311(b)(3) and 40 CFR part 112. ADT disclosed that for seven facilities they had failed to obtain operating permits or exemptions in violation of CAA section 110, 42 U.S.C. 7410, and various SIP requirements for emergency generators. ADT disclosed that at sixty-eight facilities they had failed to file emergency planning notifications with the SERC and failed to provide the name of an emergency contact to the LEPC, in violation of EPCRA section 302, 42 U.S.C. 11002. ADT further disclosed that at ninety-two facilities they had failed to submit MSDS' or a list of chemicals to the LEPC, SERC, and the fire departments with jurisdiction over the facilities, in violation of EPCRA section 311, 42 U.S.C. 11021; and that at ninety-two facilities had failed to submit an Emergency and Hazardous Chemical Inventory to the LEPC, SERC, and fire departments with jurisdiction over the facilities, in violation of EPCRA section 312, 42 U.S.C. 11022.

Pursuant to 40 CFR 22.45(b)(2)(iii), the following is a list of facilities at which ADT self-disclosed violations of CWA section 311(b)(3): 5400 West Rosecrans Avenue, Hawthorne, California; 14200 Exposition Avenue, Aurora, Colorado; 9000 Town Center Parkway, Bradenton, Florida; 1052 South Powerline Road, Deerfield, Florida; 9512 Sunbeam Center Drive, Jacksonville, Florida; 7805 NW 97th Terrace, Kansas City, Missouri; 502 Fortune Drive, Papillion, Nebraska; and 285 Thruway Park Drive, West Henrietta, New York. These facilities are not required to obtain water permits for the requirements relating to the SPCC violations disclosed.

In addition, ADT self-disclosed violations of EPCRA sections 302 and/or sections 311 and 312 at facilities located in the following states: Alabama, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, Louisiana, Massachusetts, Maryland, Michigan, Minnesota, Missouri, North Carolina, Nebraska, New Hampshire, New Jersey, New York, Nevada, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Virginia, Washington, and the District of Columbia. ADT self-disclosed violations of CAA section 110 at facilities located in California.

EPA determined that ADT met the criteria set out in the Audit Policy for a 100% waiver of the gravity component of the penalty. As a result, EPA proposes to waive the gravity based penalty ($1,914,965) and proposes a settlement penalty amount of thirty-one thousand, seven hundred and forty-one dollars ($31,741). This is the amount of the economic benefit gained by ADT, attributable to their delayed compliance with the SPCC, CAA and EPCRA regulations. ADT Security Services, Inc. has agreed to pay this amount. EPA and ADT negotiated and signed an administrative consent agreement, following the Consolidated Rules of Practice, 40 CFR 22.13(b), on October 18, 2002 (In Re: ADT Security Services, Inc., Docket Nos. CWA-HQ-2002-6000, EPCRA-HQ-2002-6000, CAA-HQ-2002-6000). This consent agreement is subject to public notice and comment under CWA section 311(b)(6), 33 U.S.C. 1321(b)(6).

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 the 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 $137,500 by EPA. Class II proceedings under CWA section 311(b)(6) are conducted in accordance with 40 CFR part 22.

Under CAA section 113(d), the Administrator may issue an administrative order assessing a civil penalty against any person who has violated an applicable implementation plan or any other requirement of the Act, including any rule, order, waiver, permit or plan. Proceedings under CAA section 113(d) are conducted in accordance with 40 CFR part 22.

Under EPCRA section 325, 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 the Act. 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 Clean Water Act Class II penalty proceeding, are set forth in 40 CFR 22.45. The deadline for submitting public comment on this proposed final order is January 13, 2003. 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), EPA will not issue an order in this proceeding prior to the close of the public comment period.

Dated: December 4, 2002.

Rosemarie A. Kelley,

Acting Director, Multimedia Enforcement Division, Office of Enforcement and Compliance Assurance.