02-17310. Clean Water Act Class II: Proposed Administrative Settlement, Penalty Assessment and Opportunity To Comment Regarding Dobson Cellular Systems, Inc. and American Cellular Corporation

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

EPA has entered into a consent agreement with Dobson Cellular Systems, Inc. and American Cellular Corporation (“Respondents”) to resolve violations of the Clean Water Act (“CWA”), Emergency Planning and Community Right-to-Know Act (“EPCRA”), Resource Conservation and Recovery Act (“RCRA”), and 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), 33 U.S.C. 1321(b)(6)(C).

Respondents 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.

Respondents 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”) for eleven facilities. Respondents 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 twenty-three facilities in violation of EPCRA section 311, 42 U.S.C. 11021. For twenty-three facilities, Respondents 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.

Respondents failed to notify the implementing agency of the existence of an Underground Storage Tank (“UST”) at four facilities in violation of RCRA section 9002(a)(1), 42 U.S.C. 6991a(a)(1). At four facilities, Respondents failed to comply with UST system upgrade requirements in violation of RCRA section 9003, 42 U.S.C. 6991b. Respondents failed to notify the implementing agency of closure at one facility in violation of RCRA section 9003, 42 U.S.C. 6991b. EPA, as authorized by RCRA section 9006, 42 U.S.C. 6991e, has assessed a civil penalty for these violations.

Respondents failed to obtain the appropriate operating permits or exemptions at three 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.

DATES:

Comments are due on or before August 9, 2002.

ADDRESSES:

Mail written comments to the Enforcement & Compliance Docket and Information Center (2201A), Docket Number EC-2002-019, Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Mail Code 2201A, Washington, DC 20460. (Comments may be submitted on disk in WordPerfect 9.0 or earlier versions.) Written comments may be delivered in person to: Enforcement and Compliance Docket Information Center, U.S. Environmental Protection Agency, Rm. 4033, Ariel Rios Bldg., 1200 Pennsylvania Avenue, NW., Washington, DC. Submit comments electronically to [e-mail]. Electronic comments may be filed online at many Federal Depository Libraries.

The consent agreement, the proposed final order, and public comments, if any, may be reviewed at the Enforcement and Compliance Docket Information Center, U.S. Environmental Protection Agency, Rm. 4033, Ariel Rios Bldg., 1200 Pennsylvania Avenue, NW., Washington, DC. Persons interested in reviewing these materials must make arrangements in advance by calling the docket clerk at 202-564-2444. A reasonable fee may be charged by EPA for copying docket materials.

FOR FURTHER INFORMATION CONTACT:

Philip Milton, 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

Dobson Cellular Systems, Inc., a telecommunications company incorporated in the State of Oklahoma and American Cellular Corporation, a telecommunications company incorporated in the State of Delaware, 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. Respondents disclosed that for eleven 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 sections 302-303, 42 U.S.C. 11002-11003. Respondents further disclosed that for twenty-three facilities they had failed to submit MSDSs 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 for twenty-three 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. Respondents disclosed that for four facilities they had failed to notify the implementing agency of the existence of UST systems, in violations of RCRA section 9002, 42 U.S.C. 6991a Respondents disclosed that for four facilities they had failed to notify the implementing agency of the existence of an UST in violation of RCRA section 9002(a)(1), 42 U.S.C. 6991a(a)(1). Respondents disclosed that at four facilities they had failed to comply with UST system upgrade requirements in violation of RCRA section 9003, 42 U.S.C. 6991b. Respondents disclosed that for one facility they had failed to notify the implementing agency of closure in violation of RCRA section 9003, 42 U.S.C. 6991b. Respondents disclosed that for three 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.

EPA determined that Respondents met the criteria set out in the Audit Policy for a 100% waiver of the gravity component of the penalty. As a result, EPA waived the gravity based penalty ($677,735) and proposed a settlement penalty amount of nine thousand, eight hundred and forty-three dollars ($9,843). Of this amount, $7,319 is attributable to the EPCRA violations; $1,309 is attributable to the RCRA violations; $1,062 is attributable to the CWA violations; and $153 is attributable to CAA violations. This is the amount of the economic benefit gained by Respondents, attributable to their delayed compliance with the CWA, EPCRA, RCRA, and CAA regulations. Respondents have agreed to pay this amount. EPA and Respondents negotiated and reached an administrative consent agreement, following the Consolidated Rules of Practice, 40 CFR 22.13(b), on July 2, 2002 (In Re: Dobson Cellular Systems, Inc. and American Cellular Corporation Docket Nos. CWA—HQ-2002-6002, EPCRA-HQ-2002-6002, RCRA-HQ-2002-6002, CAA-HQ-2002-6002). 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 a Class II 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.

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 August 9, 2002. 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: July 3, 2002.

Rosemarie A. Kelley,

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