[Federal Register Volume 69, Number 23 (Wednesday, February 4, 2004)]
[Notices]
[Pages 5346-5349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2269]
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ENVIRONMENTAL PROTECTION AGENCY
[Docket ID Number OECA-2004-0002; FRL-; CWA-HQ-2003-6000; CAA-HQ-2003-
6000; EPCRA-HQ-2003-6000; FRL-7618-4]
Clean Water Act Class II: Proposed Administrative Settlement,
Penalty Assessment and Opportunity To Comment Regarding Nash Finch
Company
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: EPA has entered into a consent agreement with Nash Finch
Company (``Nash Finch'' or ``Respondent'') to resolve violations of the
Clean Water Act (``CWA''), the Clean Air Act (``CAA''), 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 the CWA portions of this consent
agreement, in accordance with CWA section 311(b)(6)(C), 33 U.S.C.
1321(b)(6)(C).
[[Page 5347]]
Respondent did not have an Spill Prevention Control and
Countermeasure (``SPCC'') plan or proper controls in accordance with 40
CFR part 112 at the following facilities: Omaha, NE; Statesboro, GA;
Bluefield, VA; Cincinnati, OH; Bridgeport, MI; Fargo, ND; Norfolk, VA;
and Baltimore, MD. 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 failed to comply with CAA section 112(r), 42 U.S.C.
7412(r), and 40 CFR 68.10 and 68.150 because Respondent has stored an
aggregate quantity of more than 10,000 pounds of ammonia (anhydrous) in
its refrigeration systems, without having submitted a Risk Management
Plan, for Respondent's Lumberton, NC, Cincinnati, OH and Bridgeport, MI
facilities. EPA, as authorized by CAA section 113(d)(1), 42 U.S.C.
7413(d)(1), has assessed a civil penalty for these violations.
Respondent failed to comply with EPCRA section 302(c), 42 U.S.C.
11002(c), and the regulations found at 40 CFR Part 355, when they
failed to notify the State Emergency Response Committee (``SERC''), and
EPCRA section 303(d), 42 U.S.C. 11003(d), and the regulations found at
40 CFR Part 355, 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 sixteen (16)
facilities, specifically located in Cedar Rapids, IA; St. Cloud, MN;
Minot, ND; Fargo, ND; Omaha, NE; Rapid City, SD; Sioux Falls, SD (2
facilities); Bellefontaine, OH; Bridgeport, MI ; Cincinnati, OH;
Statesboro, GA; Lumberton, NC; Bluefield, VA; Baltimore, MD; and
Norfolk, VA.
In addition, Respondent failed to comply with EPCRA section 311(a),
42 U.S.C. 11021(a) and the regulations found at 40 CFR Part 370, when
they failed to submit a Material Safety Data Sheet (``MSDS'') for a
hazardous chemical(s) or, in the alternative, a list of such chemicals,
and EPCRA section 312(a), 42 U.S.C. 11022(a) and the regulations found
at 40 CFR Part 370, by failing to prepare and submit emergency and
chemical inventory forms to the LEPC, the SERC and the fire department
with jurisdiction over each facility, for the following seventeen (17)
facilities: Cedar Rapids, IA; St. Cloud, MN; Minot, ND; Fargo, ND;
Omaha, NE; Rapid City, SD (2 facilities); Sioux Falls, SD (2
facilities); Bellefontaine, OH; Bridgeport, MI; Cincinnati, OH;
Statesboro, GA; Lumberton, NC; Bluefield, VA; Baltimore, MD; and
Norfolk, VA. The Agency has assessed a civil penalty under EPCRA
section 325 for the violations of EPCRA section 311(a), 42 U.S.C.
11021(a) and EPCRA section 312(a), 42 U.S.C. 11022(a).
DATES: Comments are due on or before March 5, 2004.
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: Philip L. Milton, Special Litigation
and Projects Division (2248-A), U.S. Environmental Protection Agency,
1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone (202)
564-5029; fax: (202) 564-0010; 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-2004-0002. 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
[[Page 5348]]
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.
OECA-2004-0002. 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-2004-0002. 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-2004-0002.
3. By Hand Delivery or Courier. Deliver your comments to the
address provided in Section I.A.1., Attention Docket ID No. OECA-2004-
0002. 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
Nash Finch is a food retail and distribution company, incorporated
in the State of Delaware, with its headquarters office located at 7600
France Avenue South, Minneapolis, MN. Nash Finch 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 it failed to have an SPCC plan for its
facilities located in Omaha, NE; Statesboro, GA; Bluefield, VA;
Cincinnati, OH; Bridgeport, MI; Fargo, ND; Norfolk, VA; and Baltimore,
MD; in violation of the CWA section 311(b)(3) and 40 CFR part 112. Nash
Finch disclosed that it failed to comply with CAA section 112(r), 42
U.S.C. 7412(r), and 40 CFR 68.10 and 68.150 because it had stored an
aggregate quantity of more than 10,000 pounds of ammonia (anhydrous) in
its refrigeration systems, without having submitted a Risk Management
Plan, for its Lumberton, NC, Cincinnati, OH and Bridgeport, MI
facilities.
In addition, Nash Finch disclosed that it had failed to comply with
EPCRA section 302(c), 42 U.S.C. 11002(c), and the regulations found at
40 CFR part 355, when they failed to notify the SERC, and EPCRA section
303(d), 42 U.S.C. 11003(d), and the regulations found at 40 CFR part
355, when they failed to notify the LEPC of the identity of the
emergency coordinator who would participate in the emergency planning
process at sixteen (16) facilities, specifically located in Cedar
Rapids, IA; St. Cloud, MN; Minot, ND; Fargo, ND; Omaha, NE; Rapid City,
SD; Sioux Falls, SD (2 facilities); Bellefontaine, OH; Bridgeport, MI;
Cincinnati, OH; Statesboro, GA; Lumberton, NC; Bluefield, VA;
Baltimore, MD and Norfolk, VA.
Also, Respondent disclosed that it had failed to comply with EPCRA
section 311(a), 42 U.S.C. 11021(a) and the regulations found at 40 CFR
part 370, when they failed to submit an MSDS for a hazardous
chemical(s) or, in the alternative, a list of such chemicals, and EPCRA
section 312(a), 42 U.S.C. 11022(a) and the regulations found at 40 CFR
part 370, by failing to prepare and submit emergency and chemical
inventory forms to the LEPC, the SERC and the fire department. Also,
Respondent disclosed that it failed to comply with EPCRA section
312(a), 42 U.S.C. 11022(a) and the regulations found at 40 CFR part
370, by failing to prepare and submit emergency and chemical inventory
forms for the following chemicals: sulfuric acid, diesel fuel, propane,
ammonia, and carbon dioxide, to the LEPC, the SERC and the fire
department with jurisdiction over each facility, for the following
seventeen (17) facilities: Cedar Rapids, IA; St. Cloud, MN; Minot, ND;
Fargo, ND; Omaha, NE; Rapid City, SD (2 facilities); Sioux Falls, SD (2
facilities); Bellefontaine, OH;
[[Page 5349]]
Bridgeport, MI; Cincinnati, OH; Statesboro, GA; Lumberton, NC;
Bluefield, VA; Baltimore, MD; and Norfolk, VA.
Pursuant to 40 CFR 22.45(b)(2)(iii), the following is a list of
facilities at which Nash Finch self-disclosed violations of CWA section
311: Omaha, NE; Statesboro, GA; Bluefield, VA; Cincinnati, OH;
Bridgeport, MI; Fargo, ND; Norfolk, VA, and Baltimore, MD.
EPA determined that Nash Finch 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 ($864,409)
and proposes a settlement penalty amount of seventy-one thousand, one
hundred and twenty-seven dollars ($71,127). This is the amount of the
economic benefit gained by Nash Finch, attributable to their delayed
compliance with the CWA, CAA, and EPCRA regulations. Nash Finch has
agreed to pay this amount. EPA and Nash Finch negotiated and signed an
administrative consent agreement, following the Consolidated Rules of
Practice, 40 CFR 22.13(b), on January 20, 2004 (In Re: Nash Finch
Company, Docket Nos. CWA-HQ-2003-6000, CAA-HQ-2003-6000, EPCRA-HQ-2003-
6000). 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 requirement of the CAA, including any rule,
order, waiver, permit or plan. Proceedings under CAA 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 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 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 March 5, 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.
List of Subjects
Environmental protection.
Dated: January 29, 2004.
Robert A. Kaplan,
Director, Special Litigation and Projects Division, Office of
Enforcement and Compliance Assurance.
[FR Doc. 04-2269 Filed 2-3-04; 8:45 am]
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