Proposed Administrative Settlement, Penalty Assessment, Comments Regarding XO Communications

April 9, 2001

EPA has entered into a consent agreement with XO Communications, Inc. to resolve violations of the Clean Water Act and its implementing regulations. XO failed to prepare Spill Prevention Control and Countermeasure plans for three facilities where 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.

The Administrator, as required by CWA section 311(b)(6)(C), 33 U.S.C. 1321(b)(6)(C), is hereby providing public notice of, and an opportunity for interested persons to comment on, this consent agreement and proposed final order.

Comments are due on or before May 7, 2001.

I. Background

XO Communications, Inc., a telecommunications company incorporated in the State of Delaware and located at 11111 Sunset Hills Road, Reston, Virginia 20190, failed to prepare SPCC plans for three facilities. XO Communications, Inc. disclosed, pursuant to the EPA ``Incentives for Self-Policing: Discovery, Disclosures, Correction and Prevention of Violations'' (``Audit Policy''), 60 FR 66706 (December 22, 1995), that they failed to prepare SPCC plans for three 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. EPA determined that XO met the criteria set out in the Audit Policy for a 100 percent waiver of the gravity component of the penalty.

As a result, EPA waived the gravity based penalty ($12,000) and proposed a settlement penalty amount of two hundred and twenty-two ($222). This is the amount of the economic benefit gained by XO, attributable to their delayed compliance with the SPCC regulations. XO Communications, Inc. has agreed to pay this amount in civil penalties. EPA and XO negotiated and signed an administrative consent agreement, following the Consolidated Rules of Procedure, 40 CFR 22.13, on March 19, 2001 (In Re: XO Communications, Inc., Docket No. MM-HQ-2001-0017). 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.

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 7, 2001. 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 22.04(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.

Source: EPA

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