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Clean Water Act Class II: Proposed Administrative Settlement, Penalty Assessment and Opportunity To Comment Regarding Windstream Corporation

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

PDF Version (3 pp, 84K, About PDF)

[Federal Register: August 1, 2008 (Volume 73, Number 149)]
[Notices]
[Page 44988-44990]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01au08-60]

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ENVIRONMENTAL PROTECTION AGENCY
[Docket ID Number EPA-HQ-OECA-2008-0230; FRL-8699-6]

Clean Water Act Class II: Proposed Administrative Settlement, Penalty
Assessment and Opportunity To Comment Regarding Windstream Corporation

AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.

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SUMMARY: EPA has entered into a Consent Agreement with Windstream
Corporation (Windstream) 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, and providing an opportunity for
interested persons to comment on this Consent Agreement, in accordance
with CWA Section 311(b)(6)(C), 33 U.S.C. 1321(b)(6)(c).

DATES: Comments are due on or before September 2, 2008.

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 (202) 564-
3271; fax: (202) 564-0010; e-mail: cavalier.beth@epa.gov.

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-2008-0230.
    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 www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents

[[Page 44989]]

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 commentors, 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 www.epa.gov/edocket
and follow the online instructions for submitting comments.
Once in the system, select ``search,'' and then key in Docket ID No.
EPA-HQ-OECA-2008-0230. 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
docket.oeca@epa.gov, Attention Docket ID No. EPA-HQ-OECA-2008-0230. 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-2008-0230.
    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-2008-0230. 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

    Windstream Corporation is a telecommunications company providing
voice, broadband, and entertainment services to customers in sixteen
(16) states, and is incorporated in the State of Delaware. Windstream
disclosed,

[[Page 44990]]

pursuant to EPA's policy entitled ``Incentives for Self-Policing:
Discovery, Disclosure, Correction and Prevention of Violations'' (Audit
Policy), 65 FR 19618 (April 11, 2000), violations of the CWA and EPCRA,
and their implementing regulations.
    Specifically, Windstream disclosed that it failed to prepare and
implement a Spill Prevention, Control, and Countermeasure (SPCC) Plan
for its Concord, NC facility in violation of CWA Section 311(j), 33
U.S.C. 1321(j), and 40 CFR part 112. EPA, as authorized by CWA Section
311(b)(6), 33 U.S.C. 1321(b)(6), has assessed a civil penalty for this
violation.
    In addition, 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 Commission (LEPC), the
State Emergency Response Committee (SERC), and the fire department with
jurisdiction over each facility, at the following facilities:
Brownfield, TX; Dalhart, TX; Dimmitt, TX; Dumas, TX; Hubbard, TX;
Levelland, TX; Glen Rose, TX; Littlefield, TX; Crockett, TX; DeKalb,
TX; Spearman, TX; Seymour, TX; Pecos, TX; Newton, TX; Lubbock, TX;
Trinity, TX; Texarkana, TX; New Boston, TX; Memphis, TX; Fairfield, TX;
Crosbyton, TX; Higgins, TX; Follett, TX; Darrouzett, TX; Panhandle, TX;
Lamesa, TX; Claude, TX; MoBeetie, TX; Burkeville, TX; Baird, TX; Hart,
TX; Orla, TX; Perryton, TX; Cuba, NM; Ruidoso, NM; White City, NM;
Hobbs, NM; Espanola, NM; Checotah, OK; Wagoner, OK; Barnsdall, OK;
Lindsay, OK; Albemarle, NC; Charlotte, NC; Concord, NC; and Harrisburg,
NC. EPA, as authorized by EPCRA Section 325, 42 U.S.C. 11045, has
assessed a civil penalty for these violations.
    EPA determined that Respondent met the criteria set out in the
Audit Policy for a 100% waiver of the gravity component of the penalty
for the CWA and EPCRA violations. Therefore, EPA proposes to waive the
gravity-based penalty of $414,290 and proposes a settlement penalty
amount of $11,333. This is the amount of the economic benefit gained by
Respondent, attributable to its delayed compliance with the CWA and
EPCRA regulations. Of this amount, $861 is attributable to the CWA-SPCC
violation, and $10,472 is attributable to the EPCRA violations.
    The total civil penalty assessed for settlement purposes is eleven
thousand three hundred and thirty-three dollars ($11,333). 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 June 27, 2008 (In Re: Windstream
Corporation, Docket Nos. CWA-HQ-2008-8001, EPCRA-HQ-2008-8001). 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 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 $157,500 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.
    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 Consent Agreement is September 2, 2008. 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.

    Dated: July 17, 2008.
Bernadette Rappold,
Director, Special Litigation and Projects Division, Office of
Enforcement and Compliance Assurance.
[FR Doc. E8-17724 Filed 7-31-08; 8:45 am]
BILLING CODE 6560-50-P

 
 

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