04-9561. Clean Water Act Class II: Proposed Administrative Settlement, Penalty Assessment and Opportunity To Comment Regarding Advance Auto Parts, Inc.

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

EPA has entered into a consent agreement with Advance Auto Parts, Inc. (“Advance”) to resolve violations of the Clean Water Act (“CWA”), the Emergency Planning and Community Right-to-Know Act (“EPCRA”), and the Resource Conservation and Recovery Act (“RCRA”) 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).

Advance failed to prepare Spill Prevention Control and Countermeasure (“SPCC”) plans for four 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. Advance failed to comply with various hazardous waste management, universal waste management, and underground storage tank requirements at eight facilities, as further described below. EPA, as authorized by RCRA section 3008, 42 U.S.C. 6928, has assessed a civil penalty for these violations. Advance 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”). At seven facilities, Advance 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 May 27, 2004.

ADDRESSES:

Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in section 1.B of the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT:

Beth Cavalier, Special Litigation and Projects 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:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

1. Docket. EPA has established an official public docket for this action under Docket ID No. OECA-2004-0025. The official public docket consists of the Consent Agreement, proposed Final Order, and any public comments received. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Enforcement and Compliance Docket Information Center (ECDIC) in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., 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 Public Reading Room is [phone], and the telephone number for the ECDIC is [phone]. A reasonable fee may be charged by EPA for copying docket materials.

2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the “Federal Register” listings at http://www.epa.gov/​fedrgstr/​.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/​edocket/​ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket identification number.

Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in section I.A.1.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

B. How and To Whom Do I Submit Comments?

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page 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.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. 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. EPA's policy is that EPA will not edit your comment, and 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.

i. EPA Dockets. Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/​edocket, and follow the online instructions for submitting comments. Once in the system, select “search,” and then key in Docket ID No. OECA-2004-0025. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

ii. E-mail. Comments may be sent by electronic mail (e-mail) to [e-mail], Attention Docket ID No. OECA-2004-0025. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the Docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in section I.A.1. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: Enforcement and Compliance Docket Information Center, Environmental Protection Agency, Mailcode: 2201T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. OECA-2004-0025.

3. By Hand Delivery or Courier. Deliver your comments to the address provided in section I.A.1., Attention Docket ID No. OECA-2004-0025. Such deliveries are only accepted during the Docket's normal hours of operation as identified in section I.A.1.

C. How Should I Submit CBI to the Agency?

Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

I. Background

Advance Auto Parts, Inc. operates a distribution business whereby auto parts are purchased, stored, distributed, and sold through approximately 2400 retail stores. Advance, incorporated in the State of Delaware and located at 5673 Airport Road, Roanoke, Virginia 24012, 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 four 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. Advance disclosed that at seven 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. Advance disclosed that at seven facilities they had failed to submit an Emergency and Hazardous Chemical Inventory for 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 part 22.45(b)(2)(iii), the following is a list of facilities at which Advance self-disclosed violations of CWA section 311(b)(3): Thomson Distribution Center, 1520 I-20 Industrial Park Drive, Thomson, Georgia 30824; Lakeland Distribution Center, 4900 South Frontage Road, Lakeland, Florida 33815; Gadsden Distribution Center, 4330 Brooke Avenue, Gadsden, Alabama 35904; Hazelhurst Distribution Center, 19001 Highway 51, Hazelhurst, Mississippi 39083.

Advance self-disclosed violations of EPCRA sections 302 and/or sections 312 at the following facilities: Salinas Distribution Center, 3633 9th Street, Salina, Kansas 67401; Thomson Distribution Center, 1520 I-20 Industrial Park Drive, Thomson, Georgia 30824; Gadsden Distribution Center, 4330 Brooke Avenue, Gadsden, Alabama 35904; Roanoke Distribution Center, 1835 Blue Hills Drive, Roanoke, Virginia 24038; Lakeland Distribution Center, 4900 South Frontage Road, Lakeland, Florida 33815; Gastonia Distribution Center, 1900 Jenkins Dairy Road, Gastonia, North Carolina 28052; Hazelhurst Distribution Center, 19001 Highway 51, Hazelhurst, Mississippi 39083.

In addition, Advance disclosed violations of RCRA and related State regulations related to the management of hazardous waste, universal waste, and underground storage tanks at the following eight facilities: Delaware Distribution Center, 1675 U.S. 42 South, Delaware, Ohio 53015; Gadsden Distribution Center, 4330 Brooke Avenue, Gadsden, Alabama 35904; Gastonia Distribution Center, 1900 Jenkins Dairy Road, Gastonia, North Carolina 28052; Hazelhurst Distribution Center, 19001 Highway 51, Hazelhurst, Mississippi 39083; Lakeland Distribution Center, 4900 South Frontage Road, Lakeland, Florida 33815; Roanoke Distribution Center, 1835 Blue Hills Drive, Roanoke, Virginia 24038; Salina Distribution Center, 3633 9th Street, Salina, Kansas 67401; and Thomson Distribution Center, 1520 I-20 Industrial Park Drive, Thomson, Georgia 30824.

Advance reported failure to properly train employees who handle universal waste at the Hazelhurst, Gastonia, Roanoke, Lakeland, Salina, Gadsden, and Delaware Distribution Centers as required by 40 CFR 273.16 and related State regulations as follows: MS Reg HW-1-273, 15A NAC 13A. 0119(b), 9VAC20-60-273, FAC 62-730.185, K.A.R. 28-31-15, AL Reg 335-14-11-0.02(7), and OAC rule 3724-52-34(D)(5)(c). Advance disclosed failure to properly label universal waste containers at the Roanoke, Gadsden, Gastonia, Delaware, Hazelhurst, and Lakeland Distribution Centers in violation of 40 CFR 273.14 and 40 CFR 273.15 and related State regulations as follows: OAC Rule 3745-273.14(E) and OAC Rule 3745-273.15, MS Reg HW-1-273, FAC 62-730.185 and FAC 62-730.185, 9VAC-20-60-273, AL Reg 335-14-11-0.02(6)(c) and AL Reg 335-14-11-0.02(5)(e), and 15A NAC 13A. 0119. Advance reported the accumulation of universal waste for a period longer than one year at the Lakeland Distribution Center in violation of 40 CFR 273.15 and related State regulation FAC 62-730.185. Advance reported the improper disposal of universal wastes at the Gadsden, Delaware, Roanoke, Gastonia, Salina, and Hazelhurst Distribution Centers as required by 40 CFR 273.11(a) and related State regulations as follows: AL Reg 335-14-11-0.02(2), OAC Rule 3745-273.11(A), 9VAC20-60-273, 15A NAC 13A. 0119(b), K.A.R. 28-31-15, and MS Reg HW-1-273.

Advance disclosed the failure to properly label hazardous waste containers at the Gadsden, Delaware, Gastonia, and Roanoke Distribution Centers as required by 40 CFR 262.34(a)(2) and 40 CFR 262.34(a)(3) and related State regulations AL Reg 335-14-3-0.03(a)(3), OAC Rule 3745-52-44, 15A NAC 13A.0107(c), and 9VAC20-60-262. Advance disclosed failure to provide training to employees handling hazardous wastes at the Gastonia, Hazelhurst, Roanoke, and Delaware Distribution Centers as required by 40 CFR 262.34(d)(5)(iii) and related State regulations 15A NAC 13A.0107(c), 9VAC20-60-262, MS Reg HW-1-262, OAC Rule 3745-65-16, AL Reg 335-14-3-.03(5)(d)(5)(iii).

Advance disclosed that they had failed to implement emergency preparedness and prevention measures at the Delaware and Roanoke Distribution facilities, as required by 40 CFR 262.34(d)(4), 40 CFR 265.30-265.35, and 40 CFR 265.37 and related state regulations OAC Rule 3745-66-71 and 9VAC20-60-262 and 9VAC20-60-265.

Advance disclosed the failure to keep manifests for three years in violation of 40 CFR 262.40(a) and related State regulations MS REG HW-1-262, AL Reg 335-14-3-0.04(1)(a), and FAC 62-730.160 at the Hazelhurst, Gadsden, and Lakeland Distribution Centers. Advance reported a failure to use manifests for hazardous wastes and failure to keep records of hazardous waste activity at the Roanoke Distribution Center, in violation of 40 CFR 262.20 and 262.42(b) and related State regulation 9VAC20-60-262. Advance disclosed a failure to post emergency information next to the phone at the Delaware, Gastonia, Hazelhurst, Roanoke, and Gadsden Distribution Centers as required by 40 CFR 262.34(d)(5)(ii) and related State regulations OAC Rule 3745-65-56, 15A NAC 13A.0107(c), MS Reg HW-1-262, 9VAC20-60-262, and AL Reg 335-14-3-0.03(5)(d)(5)(ii).

Advance disclosed failure to conduct weekly inspections of hazardous waste storage areas at the Hazelhurst, Gastonia, and Roanoke Distribution Centers, in violation of 40 CFR 22.34(d)(2) and 40 CFR 265.174 and related State regulations MS Reg HW-1-262, 15A NAC 13A.0107(c) and (j), and 9VAC20-60-265. Advance reported the failure to properly store hazardous wastes at the Roanoke Distribution Center as required by 40 CFR 262.34(d)(2) and 40 CFR 265.177, 40 CFR 265.174, 40 CFR 265.173, 40 CFR 265.171, and related State requirement 9VAC20-60-265.

Advance reported the failure to obtain an EPA identification number for the Gadsden, Delaware, Roanoke, and Gastonia Distribution Centers, in violation of 40 CFR 262.12(a) and (b) and 40 CFR 265.11 and related State regulations AL Reg335-14-3-0.01(3)(a), OAC Rule 3745-52-12, 9VAC20-60-328, and 15A NAC 13A.0107(a).

Advance reported the failure to make a hazardous waste determination at the Delaware, Roanoke, Thomson, and Salina Distribution Centers, in violation of 40 CFR 262.11, 40 CFR 261.3, 40 CFR 261.4(b), and 40 CFR 261.21-261.24, and related State regulations OAC Rule 3645-52-11, 9VAC20-60-261 and 262, GA DEP Rule 391-3-11-.07, and K.A.R. 28-31-4(b).

Finally, Advance reported that at the Gastonia Distribution Center they had failed to meet underground storage tank standards and be upgraded or closed by December 22, 1998, as required by 40 CFR 280.10(c) and 40 CFR 280.21(a) through 40 CFR 280.21(d) and 15A NAC 2N.0303.

EPA determined that Advance 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 ($893,858) and proposes a settlement penalty amount of twenty thousand, six hundred and nineteen dollars ($20,619). This is the amount of the economic benefit gained by Advance, attributable to their delayed compliance with the SPCC, RCRA and EPCRA regulations. Advance Auto Parts, Inc. has agreed to pay this amount. EPA and Advance negotiated and signed an administrative consent agreement, following the Consolidated Rules of Practice, 40 CFR 22.13(b), on March 31, 2004 (In Re: Advance Auto Parts, Inc., Docket No. HQ-2004-6001). 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 RCRA section 3008a, 42 U.S.C. 6928, the Administrator may issue an administrative order assessing a civil penalty against any person who has violated or is in violation of any requirement of the Act. Proceedings under RCRA section 3008a 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 May 27, 2004. 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: April 14, 2004.

Robert A. Kaplan,

Director, Special Litigation and Projects Division, Office of Enforcement and Compliance Assurance.