[Federal Register Volume 67, Number 240 (Friday, December 13, 2002)]
[Notices]
[Pages 76742-76744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31467]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7421-7; CWA-HQ-2002-6001; EPCRA-HQ-2002-6001; CAA-HQ-2002-6001; 
RCRA-HQ-2002-6001]


Clean Water Act Class II: Proposed Administrative Settlement, 
Penalty Assessment and Opportunity To Comment Regarding NEXTEL 
Communications, Inc., et al. and NII Holdings, Inc.

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: On October 30, 2002, EPA published in the Federal Register 
information concerning a proposed settlement with NEXTEL Communications 
Inc., et al. and NII Holdings, Inc. The purpose of this correction is 
to provide additional information about this settlement. EPA has 
entered into a consent agreement with NEXTEL Communications, Inc., and 
its subsidiaries, and NII Holdings, Inc., collectively referred to as 
``NEXTEL'', to resolve violations of the Clean Water Act (``CWA''), the 
Clean Air Act (``CAA''), the Resource Conservation and Recovery Act 
(``RCRA''), 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 
parties to comment on the CWA portions, as required by CWA section 
311(b)(6)(C), 33 U.S.C. 1321(b)(6)(C).
    NEXTEL failed to prepare Spill Prevention Control and 
Countermeasure (''SPCC'') plans for forty-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. NEXTEL failed to obtain the appropriate operating 
permits or exemptions at eight 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. NEXTEL 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''). NEXTEL 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 
seventy-five facilities in violation of EPCRA section 311, 42 U.S.C. 
11021. At sixty-six facilities, NEXTEL 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. NEXTEL failed to make a hazardous waste determination and 
improperly disposed of hazardous waste at one facility in violation of 
9 VAC 20-60-261(A), (40 CFR 261.5(g)(1) and (g)(3)). NEXTEL violated 
RCRA section 9003(d), 42 U.S.C. 6991b(d) and 30 TAC sections 334 and 
37.801, when the insurance policy for underground storage tanks failed 
to use the terms ``corrective action'' or ``sudden, non-sudden or 
accidental release'' to describe coverage for four facilities. At one 
facility NEXTEL failed to notify the State or local agency or 
department of the existence of an underground storage tank in violation 
of RCRA section 9002(a), 42 U.S.C. 6991(a)(1). NEXTEL failed to follow 
all of the relevant underground storage tank regulations in violation 
of RCRA section 9003, 42. U.S.C. 6991b at one facility.

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-
2002-021, 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 [email protected] or faxed to (202) 566-1511. 
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-2002-021 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 (202) 566-1512 or (202) 566-1513. 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

[[Page 76743]]

Avenue, NW., Washington, DC 20460; telephone (202) 564-3271; fax: (202) 
564-9001; e-mail: [email protected].

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

    NEXTEL Communications, Inc., its subsidiaries, and NII Holdings, 
Inc., collectively referred to as ``NEXTEL'', are telecommunications 
companies incorporated in the States of Delaware, Georgia, and Texas. 
NEXTEL is located at 2001 Edmond Halley Drive, Reston, Virginia, 20191 
and NII Holdings, Inc. is located at 10700 Parkridge Boulevard, Suite 
600, Reston, Virginia, 20191. NEXTEL 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 forty-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. NEXTEL 
disclosed that for eight 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. NEXTEL disclosed 
that at seventy-two 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 
and 303, 42 U.S.C. 11002 and 11003. NEXTEL further disclosed that at 
seventy-five 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 sixty-six 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. At four facilities NEXTEL failed to 
ensure that the language in their financial assurance insurance 
policies for underground storage tanks was exactly as required by 
regulation, in violation of 30 TAC sections 334 and 37.801 and RCRA 
section 9003(d), 42 U.S.C. 6991b(d). NEXTEL violated RCRA section 
9002(a)(1), 42 U.S.C. 6991(a)(1) when it failed to notify the state of 
the existence of an underground storage tank at one facility; and 
NEXTEL violated RCRA section 9003, 42 U.S.C. section 6991b and all of 
the relevant underground storage tank regulations at one facility. 
NEXTEL failed to make a hazardous waste determination and improperly 
disposed of hazardous waste at one facility in violation of 9-VAC 20-
60-261(A).
    Pursuant to 40 CFR 22.45(b)(2)(iii), the following is a list of 
facilities at which NEXTEL self-disclosed violations of CWA section 
311(b)(3): 3719 East LaSalle St., Phoenix, AZ; 984 Walsh Ave., Santa 
Clara, CA; 475 14th Street, Oakland, CA; 11423 Sunrise Gold Circle, 
Rancho Cordova, CA; 17275 Derian Ave., Irvine, CA; 5996 Gleason Drive, 
Dublin, CA; 11175 Inland Ave., Mira Loma, CA; 9800 East Easter Ave., 
Englewood, CO; 10002 Park Meadows Drive, Lone Tree, CO; 4643 South 
Ulster Street, Denver, CO; 333 Inverness Drive South, Englewood, CO; 
1370 Park Central Blvd., Pompano Beach, FL; 200 Avenue B, NW., Winter 
Haven, FL; 1101 N. Keller Road, Orlando, FL; 1150 Emma Oaks Trail, Lake 
Mary, FL; 400 Embassy Row, Atlanta, GA; 5952 Peachtree Industrial 
Blvd., Norcross, GA; 5295 Brookhollow Parkway, Norcross, GA; 2975 
Breakinridge Blvd., Duluth, GA; 4150 Shackleford Rd., Norcross, GA; 880 
Ashbury Drive, Buffalo Grove, IL; 40 Hartwell Ave., Lexington, MA; 135 
Forbes Blvd., Mansfield MA; 11900 Bournefield Way, Silver Spring, MD; 
7249 National Drive, Hanover, MD; 39200 Schoolcraft Rd., Livonia, MI; 
6435 Hix Road, Westland, MI; 11322 Lackland Road, St. Louis, MO; 610 
Industrial Ave., Greensboro, NC; 2 Industrial Road, Fairfield, NJ; One 
South Street, Garden City, NY; 175 Clearbrook Road, Elmsford, NY; 400 
Bursca Drive, Building 400, Bridgeville, PA; 401 North Broad Street, 
Philadelphia, PA; 901 Jefferson Blvd., Norristown, PA; 4740 Perrin 
Creek, San Antonio, TX; 4407 Alpha Road, Farmers Branch, TX; 1600 
Eberhardt Road, Temple, TX; 1412 East North Belt, Houston, TX; 1766 Old 
Meadow Road, McLean, VA; 421 Butler Farm Road, Hampton, VA; 400 Butler 
Farm Road, Hampton, VA; 593 Herndon Parkway, Herndon, VA; 2001-2003 
Edmund Halley Drive, Reston, VA; 1505 Farm Credit Drive, McLean, VA; 
11710 118th Avenue, NE., Kirkland, WA; 1400 NE McWilliams Road, 
Bremerton, WA. These facilities are not required to obtain water 
permits for these requirements.
    In addition, violations of EPCRA sections 302, 303, 311 and/or 312 
were reported at facilities in the following states: Arizona, 
California, Colorado, Florida, Georgia, Illinois, Kansas, 
Massachusetts, Maryland, Michigan, Minnesota, Missouri, North Carolina, 
New Jersey, New York, Ohio, Pennsylvania, Tennessee, Texas, Utah, 
Virginia and Washington. Violations of CAA section 110 were reported at 
facilities in Arizona, California, Kansas, New Jersey and Pennsylvania. 
Violations of RCRA section 9003(d) were reported in California and 
Illinois, and violations of RCRA section 9003(d) and 30 TAC sections 
334 and 37.801 were reported in Texas. A violation of RCRA section 
9002(a)(1) was reported in Pennsylvania. In Virginia, NEXTEL reported a 
violation of 9 VAC 20-6--261(A).
    EPA determined that NEXTEL 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 ($1,994,810) 
and proposes a settlement penalty amount of thirty-five thousand and 
four dollars ($35,004). This is the amount of the economic benefit 
gained by NEXTEL, attributable to their delayed compliance with the 
CWA, CAA, RCRA, and EPCRA regulations. NEXTEL Communications, Inc. has 
agreed to pay this amount. EPA and NEXTEL negotiated and signed an 
administrative consent agreement, following the Consolidated Rules of 
Practice, 40 CFR 22.13(b), on October 18, 2002 (In Re: NEXTEL 
Communications, Inc. et. al. and NII Holdings, Inc., Docket Nos. CWA-
HQ-2002-6001, EPCRA-HQ-2002-6001, CAA-HQ-2002-6001, and RCRA-HQ-2002-
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 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

[[Page 76744]]

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.
    Under RCRA section 3008, the Administrator may issue an 
administrative order assessing a civil penalty against any person who 
has violated applicable hazardous waste requirements, or any other 
requirement of the Act. Proceedings under RCRA section 3008 are 
conducted in accordance with 40 CFR part 22.
    Under RCRA section 9006, the Administrator may issue an 
administrative order assessing a civil penalty against any person who 
has violated applicable underground storage tank requirements, or any 
other requirement of the Act. Proceedings under RCRA section 9006 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 2, 2002.
Rosemarie A. Kelley,
Acting Director, Multimedia Enforcement Division, Office of Enforcement 
and Compliance Assurance.
[FR Doc. 02-31467 Filed 12-12-02; 8:45 am]
BILLING CODE 6560-50-P