[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: <a href="/cdn-cgi/l/email-protection#bbd6d2d7cfd4d595cbd3d2d7d2cbfbdecbda95dcd4cd"><span class="__cf_email__" data-cfemail="375a5e5b43585919475f5e5b5e477752475619505841">[email protected]</span></a>.

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 
<a href="/cdn-cgi/l/email-protection#80e4efe3ebe5f4aeefe5e3e1c0e5f0e1aee7eff6"><span class="__cf_email__" data-cfemail="04606b676f61702a6b616765446174652a636b72">[email protected]</span></a>, 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]
BILLING CODE 6560-50-P


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