E9-14599. Clean Water Act Class II: Proposed Administrative Settlement, Penalty Assessment and Opportunity To Comment Regarding Cellco Partnership Doing Business as Verizon Wireless

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

EPA has entered into a consent agreement with Cellco Partnership doing business as Verizon Wireless (Verizon or Respondent) to resolve violations of the Clean Water Act (CWA), the Emergency Planning and Community Right-to-Know Act (EPCRA), and the Clean Air Act (CAA) and their implementing regulations.

The Administrator is hereby providing public notice of this Consent Agreement and proposed Final Order, and providing an opportunity for interested persons to comment on the CWA portions of this Consent Agreement, in accordance with CWA Section 311(b)(6)(C). Additionally, notice is being provided on the EPCRA and CAA portions of this Consent Agreement.

DATES:

Comments are due on or before July 22, 2009.

ADDRESSES:

Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Section I.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. EPA-HQ-OECA-2008-0804.

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.regulations.gov/​ 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 Docket ID No. EPA-HQ-OECA-2008-0804.

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.regulations.gov,, and follow the online instructions for submitting comments. Once in the system, select “search,” and then key in Docket ID No. EPA-HQ-OECA-2008-0804. 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. EPA-HQ-OECA-2008-0804. 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. EPA-HQ-OECA-2008-0804.

3. By Hand Delivery or Courier. Deliver your comments to the address provided in Section I.A.1., Attention Docket ID No. EPA-HQ-OECA-2008-0804. 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.

II. Background

Respondent is a telecommunications company located at One Verizon Way, Basking Ridge, New Jersey 07920, and Respondent is a partnership organized under the laws of the State of Delaware.

On November 3, 2006, Respondent entered into a Compliance Audit Agreement with EPA, in which Respondent agreed to conduct a systematic, documented, periodic, and objective review of its compliance with applicable provisions of the CAA, EPCRA, and CWA. Respondent further agreed to submit bi-annual progress reports detailing the status of the compliance audit, specific facilities reviewed, and detailed information setting forth violations discovered and corrective actions taken. Further, Respondent agreed, in entering into the Compliance Audit Agreement, to specific civil penalties for certain violations of the CWA, EPCRA, and the CAA. As agreed upon with EPA, Respondent submitted periodic progress reports and submitted a final audit report to EPA on April 18, 2008.

Specifically, Respondent disclosed that it failed to prepare and implement a Spill Prevention, Control, and Countermeasure (SPCC) plan and/or failed to have adequate secondary containment in violation of CWA Section 311(j), 33 U.S.C.1321(j), and 40 CFR part 112 for sixteen facilities located in the following States: Alabama, California, Colorado, Idaho, Louisiana, Maryland, Montana, North Carolina, Ohio, Texas, and Utah.

EPA, as authorized by CWA Section 311(b)(6), 33 U.S.C. 1321(b)(6), has assessed a civil penalty for these violations.

Respondent disclosed that it had failed to comply with EPCRA Section 302, 42 U.S.C. 11002, and the regulations found at 40 CFR 355.30, when it failed to notify the State Emergency Response Committee (SERC) for thirteen facilities located in the following States: California, Georgia, Illinois, Indiana, Massachusetts, Maryland, Michigan, New York, and Texas. EPA, as authorized by EPCRA Section 325, 42 U.S.C. 11045, has assessed a civil penalty for these violations.

In addition, Respondent disclosed that it had failed to comply with EPCRA Section 311, 42 U.S.C. 11021, and the regulations found at 40 CFR 370.21, 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 three hundred thirty-one facilities located in the following States: Arizona, California, Colorado, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, and Wyoming.

Respondent disclosed that it had failed to comply with EPCRA Section 312, 42 U.S.C. 11022, and the regulations found at 40 CFR 370.25, when it failed to prepare and submit emergency and chemical inventory forms to the Local Emergency Planning Committee (LEPC), the SERC and the fire department with jurisdiction over each facility, at three hundred and thirty-two facilities located in the following States: Arizona, California, Colorado, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, and Wyoming. EPA, as authorized by EPCRA Section 325, 42 U.S.C. 11045, has assessed a civil penalty for these violations.

Respondent further disclosed that it had failed to comply with EPCRA Section 312, 42 U.S.C. 11022, and the regulations found at 40 CFR 370.25, when it failed to prepare and submit emergency and chemical inventory forms to the LEPC, the SERC and the fire department with jurisdiction over each facility, at two hundred and forty-eight facilities located in the following States: Arizona, California, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New York, North Dakota, Ohio, Rhode Island, South Dakota, Tennessee, Virginia, Washington, and Wisconsin. However, as Respondent made a good faith effort to comply and relied on information from the manufacturer as to the amount of sulfuric acid present in the batteries to make its reporting determination, that information was later found to be inaccurate by Respondent, and Respondent notified EPA of the potential violations, EPA is not proposing to assess a penalty for these violations.

Respondent disclosed that it had failed to comply with CAA Section 110, 42 U.S.C. 7410, and requirements adopted as part of State Implementation Plans (SIPs) for sixty-one facilities located in the following States: California, District of Columbia, Georgia, Maryland, and New Mexico.

EPA, as authorized by CAA Section 113, 42 U.S.C. 7413, has assessed a civil penalty for these violations.

EPA determined that Respondent satisfactorily completed its audit and has met all conditions of the Compliance Audit Agreement. EPA proposed a settlement penalty amount of four hundred sixty-eight thousand and six hundred dollars ($468,600). This amount is based on the penalty amounts agreed upon in the Compliance Audit Agreement for certain violations and reflects consideration of potential economic benefit gained by Respondent, attributable to its delayed compliance with the CWA, EPCRA, and CAA regulations, and the potential for harm that could have resulted from the violations.

The total civil penalty assessed for settlement purposes is four hundred sixty-eight thousand and six hundred dollars ($468,600). Respondent has agreed to pay this amount. EPA and Respondent negotiated and signed an administrative consent agreement, following the Consolidated Rules of Practice, 40 CFR 22.13(b), on May 14, 2009 (In Re: Cellco Partnership doing business as Verizon Wireless. Docket Nos. CWA-HQ-2008-8002, EPCRA-HQ-2008-8002, CAA-HQ-2008-8002). This consent agreement is subject to public notice and comment under CWA Section 311(b)(6), 33 U.S.C. 1321(b)(6). The full consent agreement is available for public review and comment at http://www.regulations.gov, Docket ID No. EPA-HQ-OECA-2008-0804.

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), 33 U.S.C. 1321(b)(6), are conducted in accordance with 40 CFR Part 22.

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, 42 U.S.C. 11045, are conducted in accordance with 40 CFR part 22.

Under CAA Section 113, 42 U.S.C. 7413, the Administrator may issue an administrative penalty order to any person who has violated or is in violation of any requirement or prohibition of an applicable implementation plan or permit. Proceedings under CAA Section 113, 42 U.S.C. 7413, 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 July 22, 2009. 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), EPA will not issue an order in this proceeding prior to the close of the public comment period.

Dated: June 10, 2009.

Bernadette Rappold,

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