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

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

 
[Federal Register: October 3, 2006 (Volume 71, Number 191)]
[Notices]
[Page 58390-58393]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03oc06-67]

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ENVIRONMENTAL PROTECTION AGENCY
[Docket ID Number EPA-HQ-OECA-2006-0753; FRL-8226-4]

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

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

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SUMMARY: EPA has entered into a consent agreement with Kmart Holding 
Corporation (``Kmart'' or ``Respondent'') 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 proposed final order, and providing an opportunity for 
interested persons to comment on the CWA, EPCRA, and RCRA portions of 
this consent agreement, in accordance with CWA section 311(b)(6)(C).

DATES: Comments are due on or before November 2, 2006.

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-2006-0753.
    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 commentors, it is important to note that EPA's policy is 
that public comments, whether

[[Page 58391]]

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 system, select ``search,'' and then key in Docket ID No. 
EPA-HQ-OECA-2006-0753. 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-2006-0753. 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-2006-0753.
    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-2006-0753. 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 CONTACTsection.

II. Background

    Kmart Holding Corporation, doing business as Kmart Corporation, 
(``Respondent'') is owned by Sears Holding Corporation, a retail 
company located at 3333 Beverly Road, Hoffman Estates, Illinois 60179, 
and is incorporated in the state of Delaware. Kmart disclosed, pursuant 
to the EPA ``Incentives for Self-Policing: Discovery, Disclosures, 
Correction and Prevention of Violations'' (``Audit Policy''), 65 FR 
19618 (April 11, 2000), 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.
    Specifically, Kmart (``Respondent'') disclosed that it failed to 
prepare and implement an SPCC plan for the following facilities: 
Canton, MI, Chambersburg, PA, Denver/Brighton, CO, Greensboro, NC, 
Lawrence, KS, Manteno, IL, Morrisville/Fairless Hills, PA, Newnan, GA, 
Ocala, FL, Ontario, CA, Shakopee, MN, Sparks, NV, and Warren, OH, and, 
in addition, failed to install adequate secondary containment at its 
Denver/Brighton, CO and Morrisville/Fairless, PA facilities in 
violation of the CWA section 311(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 these violations.
    Respondent further disclosed that it had failed to comply with:(1) 
CWA section 402(p), 33 U.S.C. 1342(p), and the regulations found at 40 
CFR 122.26 when it failed to obtain a stormwater

[[Page 58392]]

permit and/or prepare a stormwater pollution prevention plan at the 
Billerica, MA, Canton, MI, Chambersburg, PA, Denver/Brighton, CO, 
Groveport, CA, Greensboro, NC, Manteno, IL, Newnan, GA, Ontario, CA, 
Shakopee, MN, Sparks, NV, Warren, OH, and Forest Park, GA facilities;
    (2) CWA section 402(a), 33 U.S.C. 1342(a) and the implementing 
regulations found at 40 CFR 122.26 when it failed to obtain an NPDES 
permit at its Denver/Brighton, CO and Lawrence, KS facilities;
    (3) CWA section 402(a), 33 U.S.C. 1342(a) and the implementing 
regulations found at 40 CFR 122.41 and 122.48 when it failed to comply 
with monitoring requirements and exceeded its permit limits at its 
Warren, OH facility;
    (4) CWA section 402(a), 33 U.S.C. 1342(a) and the implementing 
regulations found at 40 CFR 403.5 and 403.12 when it failed to analyze 
effluent discharge and failed to obtain or renew its discharge permit 
at its Manteno, IL facility; and
    (5) CWA section 402(p), 33 U.S.C. 1342(p) and the regulations found 
at 40 CFR 122.26 and 122.28 when it failed to conduct stormwater 
monitoring and failed to file a Discharge Monitoring Report at its 
Greensboro, NC facility. EPA, as authorized by CWA section 309(b), 33 
U.S.C. 1319, has assessed a civil penalty for these violations.
    Respondent disclosed that it had failed to comply with EPCRA 
section 302, 42 U.S.C. 11002, and the regulations found at 40 CFR 
355.30, when it failed to notify the State Emergency Response Committee 
(``SERC''), and EPCRA section 303, 42 U.S.C. 11003, and the regulations 
found at 40 CFR 355.30, when it failed to notify the Local Emergency 
Planning Committee (``LEPC'') of the identity of the emergency 
coordinator who would participate in the emergency planning process at 
the following facilities: Billerica, MA, Canton, MI, Chambersburg, PA, 
Denver/Brighton, CO, Forest Park, GA, Greensboro, NC, Groveport, CA, 
Lawrence, KS, Manteno, IL, Mira Loma, CA, Morrisville/Fairless Hills, 
PA, Newnan, GA, Ocala, FL, Ontario, CA, Shakopee, MN, Sparks, NV, and 
Warren, OH. EPA, as authorized by EPCRA section 325, has assessed a 
civil penalty for these violations.
    In addition, Respondent disclosed that it had failed to comply with 
EPCRA section 311, 42 U.S.C. 11021 and the regulations found at 40 CFR 
370.21, 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 the following facilities: Billerica, MA, Canton, 
MI, Chambersburg, PA, Denver/Brighton, CA, Forest Park, GA, Greensboro, 
NC, Groveport, CA, Lawrence, KS, Manteno, IL, Mira Loma, CA, 
Morrisville/Fairless Hills, PA, Newnan, GA, Ocala, FL, Ontario, CA, 
Shakopee, MN, Sparks, NW and Warren, OH. 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 LEPC, the SERC and 
the fire department with jurisdiction over each facility, at the 
Ontario, CA facility. EPA, as authorized by EPCRA section 325, has 
assessed a civil penalty for these violations.
    Respondent disclosed that it had failed to comply with RCRA section 
3001(d), 42 U.S.C. 6921(d) and the implementing regulations found at 40 
CFR 261.5 when it failed to comply with requirements for Conditionally 
Exempt Small Quantity Generators at its Denver/Brighton, CO facility.
    Respondent disclosed that it had failed to comply with RCRA section 
3002(a), 42 U.S.C. 6922(a), and the implementing regulations listed 
below relating to large quantity hazardous waste generators, at the 
Billerica, MA facility:
    (1) 40 CFR Part 262 for failure to make hazardous waste identification;
    (2) 40 CFR 262.12, for failure to obtain an EPA ID number;
    (3) 40 CFR 262.34, for exceeding hazardous waste accumulation times;
    (4) 40 CFR 262.30-262.33, for failure to properly package and label 
wastes;
    (5) 40 CFR 262.40, for failure to maintain proper records;
    (6) 40 CFR Part 265, Subpart C, for failure to meet preparedness 
and prevention standards;
    (7) 40 CFR 262.34(d) and 265.16 for failure to provide employee 
training regarding hazardous handling and management practices;
    (8) 40 CFR 273.2 and 273.5; for failure to properly manage and 
dispose of universal wastes;
    (9) 40 CFR Part 265, Subpart D, for failure to follow emergency 
response procedures; Additionally, Respondent disclosed that it had 
failed to comply with RCRA section 3004(d), 42 U.S.C. 6924(d) and 
implementing regulations found at 40 CFR 268.1 and 40 CFR 268.7 when it 
failed to meet land disposal requirements at its Billerica, MA facility.
    Respondent disclosed that it had failed to comply with RCRA section 
3014(a), 42 U.S.C. 6935(a) and the implementing regulations found at 40 
CFR 279.22 when it failed to properly label used oil storage drums at 
its Canton, MI facility.
    Respondent disclosed that it had failed to comply with RCRA section 
3002(a), 42 U.S.C. 6922(a) and the implementing regulations listed 
below at its Greensboro, NC facility:
    (1) 40 CFR 265.15, 40 CFR 265.174 and 40 CFR 265.195, for failure 
to conduct weekly inspections of hazardous waste storage containers:
    (2) 40 CFR 262.34(d), for failure to designate an emergency 
coordinator and failure to post information relating to the emergency 
coordinator by the phone; and
    (3) 40 CFR 262.34(d) and 40 CFR 265.16, for failure to provide 
hazardous waste handling and management training to employees.
    Respondent disclosed that it had failed to comply with RCRA section 
3002(a), 42 U.S.C. 6922(a) and the implementing regulations listed 
below at its Lawrence, KS facility:
    (1) 40 CFR 262.34(a) and (c), when it failed to properly label 
hazardous waste containers and place accumulation start date on the label;
    (2) 40 CFR 265.174; 40 CFR 265.15; and 40 CFR 265.195, when it 
failed to conduct weekly inspections of hazardous waste storage areas 
and containers; and
    (3) 40 CFR 262.34(d), for failure to designate an emergency 
coordinator and failure to post information relating to the emergency 
coordinator by the phone.
    Respondent disclosed that at its Morrisville/Fairless Hills, PA 
facility it had failed to comply with:
    (1) RCRA section 3014(a), 42 U.S.C. 6935(a) and the implementing 
regulations found at 40 CFR 279.22, when it failed to properly label 
oil storage drums;
    (2) RCRA section 3002(a), 42 U.S.C. 6922(a) and the implementing 
regulations found at 40 CFR Part 262, when it failed to comply with all 
hazardous waste storage and disposal requirements for large quantity 
generators of hazardous waste;
    (3) RCRA section 9003, 42 U.S.C. 6991b and the implementing 
regulations found at 40 CFR 280.20; 280.34; and 280.40-41, when it 
failed to maintain information concerning construction, leak detection, 
or periodic monitoring for emergency generator tank 002A; and
    (4) RCRA section 9002, 42 U.S.C. 6991a and the implementing 
regulations found at 40 CFR 280.22, when it failed to maintain a 
current underground storage tank (UST) registration certificate.

[[Page 58393]]

    Respondent disclosed that it had failed to comply with RCRA section 
3002(a), 42 U.S.C. 6922(a) and the implementing regulations listed 
below at its Newnan, GA facility:
    (1) 40 CFR 265.15, 40 CFR 265.174 and 40 CFR 265.195 when it failed 
to conduct weekly inspections of hazardous waste storage areas and 
containers; and
    (2) 40 CFR 262.34(d) for failure to designate an emergency 
coordinator and failure to post information relating to the emergency 
coordinator by the phone; and
    (3) 40 CFR 262.34(d) and 40 CFR 265.16, for failure to provide 
hazardous waste handling and management training to employees.
    Respondent disclosed that it had failed to comply with RCRA section 
3002(a), 42 U.S.C. 6922(a) and the implementing regulations listed 
below at its Ocala, FL facility:
    (1) 40 CFR 265.15, 40 CFR 265.174 and 40 CFR 265.195, when it 
failed to conduct weekly inspections of hazardous waste storage areas 
and containers; and
    (2) 40 CFR 262.34(d), for failure to designate an emergency 
coordinator and failure to post information relating to the emergency 
coordinator by the phone; and
    (3) 40 CFR 262.34(d) and 40 CFR 265.16, for failure to provide 
hazardous waste handling and management training to employees.
    Respondent disclosed that it had failed to comply with RCRA section 
3014(a), 42 U.S.C. 6935(a) and the implementing regulations found at 40 
CFR 279.22, when it failed to properly label oil storage drums at its 
Warren, OH facility.
    Respondent disclosed that it had failed to comply with RCRA section 
3014(a), 42 U.S.C. 6935(a) and the implementing regulations found at 40 
CFR 279.22, when it failed to properly label used oil containers at its 
Sparks, NV facility.
    EPA, as authorized by RCRA section 3008(g), 42 U.S.C. 6928(g), 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 EPCRA violations, and for certain CWA and RCRA violations. For 
those violations meeting the audit policy, EPA waived the gravity based 
penalty of $1,608,382 and proposed a settlement penalty amount of 
$21,967. This is the amount of the economic benefit gained by 
Respondent, attributable to its delayed compliance with the CWA, RCRA, 
and EPCRA regulations. Of this amount, $8,260 is attributable to the 
CWA-SPCC violations; $7,117 is attributable to the CWA violations; 
$6,400 is attributable to the RCRA violations; and $190 is attributable 
to the EPCRA violations.
    However, Respondent failed to satisfy some of the conditions set 
forth in the Audit Policy for certain CWA and RCRA violations and was 
assessed an appropriate and fair civil penalty of $80,455 ($78,625 in 
gravity-based penalties and $1,830 in economic benefit) to settle those 
violations.
    The total civil penalty assessed for settlement purposes is one 
hundred and two thousand four hundred and twenty-two dollars 
($102,422). Respondent has agreed to pay this amount. EPA and 
Respondent negotiated and reached an administrative consent agreement, 
following the Consolidated Rules of Practice, 40 CFR 22.13(b), on 
August 18, 2006 (In Re: Kmart Holding Corp. Docket Nos. CWA-HQ-2006-
6001, RCRA-HQ-2006-6001, EPCRA-HQ-2006-6001). 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 $157,500 by EPA. Class II proceedings under CWA 
section 311(b)(6) 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 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 II penalty proceeding, are 
set forth in 40 CFR 22.45. The deadline for submitting public comment 
on this proposed final order is November 2, 2006. 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: September 19, 2006.
Robert A. Kaplan,
Director, Special Litigation and Projects Division, Office of 
Enforcement and Compliance Assurance.
[FR Doc. E6-16293 Filed 10-2-06; 8:45 am]
BILLING CODE 6560-50-P

 
 

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