Clean Water Act Class II: Proposed Administrative Settlement, Penalty Assessment and Opportunity To Comment Regarding AboveNet Communications, Inc., 5800-5801 [2013-01708]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 78, Number 18 (Monday, January 28, 2013)]
[Notices]
[Pages 5800-5801]
From the Federal Register Online via the Government Printing 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: docket.oeca@epa.gov, 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 https://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: howland.sanda@epa.gov.

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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