[Federal Register Volume 69, Number 81 (Tuesday, April 27, 2004)]
[Notices]
[Pages 22797-22800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9561]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7654-1; HQ-2004-6001]


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.

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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

[[Page 22798]]

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 (202) 564-
3271; fax: (202) 564-9001; e-mail: [email protected].

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 (202) 566-1744, and the telephone number for the ECDIC 
is (202) 566-1752. 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

[[Page 22799]]

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 
[email protected], 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

[[Page 22800]]

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.
[FR Doc. 04-9561 Filed 4-26-04; 8:45 am]
BILLING CODE 6560-50-P