­­
e
UNITED
STATES
ENVIRONMENTAL
PROTECTION
AGENCY
 

BEFORE
THE
ENVIRONMENTAL
APPEALS
BOARD
IN
THE
MATTER
OF:

NEXTEL
Communications,
Inc.,
et.
al.
200
1
Edmond
Halley
Dr.
Reston,
Virginia
20191
NII
Holdings,
Inc
10700
Parkridge
Blvd.
Suite
600
Reston,
Virginia
20191
Respondents
1
1
1
)
)
)
1
)
Docket
No.
EPCRA­
HQ­
2002­
6001
Docket
No.
CWA­
HQ­
2002­
6001
Docket
No.
CAA­
HQ­
2002­
600
1
Docket
No.
RCRA­
HQ­
2002­
600
1
CONSENT
AGREEMENT
I.
Preliminary
Statement
A.
Complainant,
the
United
States
Environmental
Protection
Agency
(
EPA),
and
Nextel
Communications,
Inc.,
its
subsidiaries
listed
in
Attachment
A,
(
collectively
 
Nextel)
and
NII
Holdings,
Inc.,
collectively
referred
to
as
 
Respondents ,
having
consented
to
the
terms
of
this
Consent
Agreement
(
Agreement),
and
before
the
taking
of
any
testimony
and
without
the
adjudicationof
issues
of
law
or
fact
herein,
agree
to
comply
with
the
terns
of
this
Agreement
and
attached
proposed
Final
Order
hereby
incorporatedby
reference.

B.
On
August
10,2001,
pursuant
to
EPA s
Policy
on
Incentives
for
Self­
Policing(
Audit
Policy),
65
Fed.
Reg.
19,618
(
April
11,2000),
Respondents
submitted
an
initial
voluntary
disclosure
to
EPA
regarding
potential
violations
of:

1.
Emergency
Planning
and
Community
Right­
to­
Know
Act
(
EPCRA)
$$
302­
303,
­­>
42
U.
S.
C.
$
9
11002­
11003;

2
EPCRA
0
311,42U.
S.
C.
6
11021;

3.
EPCRA
0
312,42
U.
S.
C.
$
11022;

4.
Clean
Water
Act
(
CWA)
$
311(
j)(
l)(
C);
33
U.
S.
C.
0
1321U)(
l)(
C);

=
AL.­.­­=­
A.
v
 ,
uL­ 
s­
sT=­...
.

5.
Clean
Air
Act
(
CAA),
0
110,42
U.
S.
C.
6
7410,
and
the
requiremmts
adptFjkasi,
gyt
­
7
..
%.

aof
State
Implementation
Plans
(
SIPS);
I
i
j
 
DEc
13
2002
6.
Resource
Conservation
and
Recovery
Act
(
RCRA)
$
9
9002­
900313
!
1
42
U.
S.
C.
§
$
6991a­
6991b;
and
4
7.
RCRA
3002,42
U.
S.
C.
6922.

C.
Respondents
continued
to
submit
additional
and
periodic
disclosures
for
the
above
statutes.
Such
disclosures
have
resulted
in
a
final
list
of
disclosed
violations
found
in
Attachment
B,
hereby
incorporated
by
reference,
which
are
the
subject
of
this
Agreement.

11.
Jurisdiction
A.
The
parties
agree
to
the
commencement
and
conclusion
of
this
cause
of
action
by
issuance
of
this
Agreement,
as
prescribed
by
EPA s
Consolidated
Rules
of
Practice
Governing
the
Administrative
Assessment
of
Civil
Penalties,
40
C.
F.
R.
Part
22.

B.
Respondents
agree
that
Complainant
has
the
jurisdiction
to
bring
an
administrative
action,
based
upon
the
facts
which
Respondents
disclosed,
for
these
violations
and
for
the
assessment
of
civil
penalties
pursuant
to
EPCRA
6
325,42
U.
S.
C.
$
11045;
CWA
311,
33
U.
S.
C.
$
1321;
CAA
113,42
U.
S.
C.
7413;
RCRA
0
3008,42
U.
S.
C.
$
6928;
and
RCRA
9
9006,42
U.
S.
C.
$
6991e.

C.
Respondents
hereby
waive
their
right
to
request
a
judicial
or
administrative
hearing
on
any
issue
of
law
or
fact
set
forth
in
the
Agreement
and
their
right
to
appeal
the
proposed
Final
Order
accompanying
this
Agreement.

D.
For
purposes
of
this
proceeding,
Respondents
admit
that
EPA
has
jurisdiction
over
the
subject
matter
which
is
the
basis
of
this
Agreement.

E.
Respondents
neither
admit
nor
deny
the
statements
of
fact
or
conclusions
of
law
as
set
forth
in
this
Agreement.

F.
This
Agreement
serves
as
the
Notice
of
Violation
required
by
§
113(
a)(
l)
of
the
CAA,
42
U.
S.
C.
7413(
a)(
l).
Complainant
will
also
notify
the
appropriate
States
by
providing
a
copy
of
this
Agreement,
in
accordance
with
CAA
113(
a)(
l).

G.
Respondents
have
been
afforded
the
opportunity
to
confer
with
EPA
asprovided
for
by
CAA
§
113(
a)(
4),
42
U.
S.
C.
§
7413(
a)(
4).
I­

H.
Complainant
has
provided
notice
of
this
action
and
a
copy
of
this
Agreement
to
the
affected
States,
in
accordance
with
CWA
309,33
U.
S.
C.
1319,
and
RCRA
3008(
a)(
2),
42
U.
S.
C.
6928(
a)(
2).

111.
Statements
of
Fact
A.
Respondents,
Nextel
Communications,
Inc.,
its
subsidiaries,
and
NII
Holdings,
Inc.,
are
telecommunications
companies
incorporated
in
the
States
noted
on
Attachment
A.

2
B.
Pursuant
to
the
EPA s
Audit
Policy,
Respondents
hereby
certify
and
warrant
as
true
the
facts
referenced
in
this
Section,
and
EPA
accepts
Respondents 
certification.
In
addition,
with
respect
to
CAA
tj
110,42,
U.
S.
C.
4
7410,
and
the
requirements
adopted
as
part
of
the
SIPs
for
the
various
States,
Air
Districts
or
Counties
with
jurisdiction
over
the
violations
found
in
Attachment
B,
Respondents
have
certified
that
they
have
applied
for
permits,
andor
taken
all
actions
needed
to
comply
with
such
requirements,
but
for
some
facilities
are
awaiting
final
determination
on
such
actions
by
each
respective
State,
Air
District
or
County.
EPA
believes
that,
for
the
purposes
of
this
Agreement,
Respondents
have
taken
all
necessary
steps
to
obtain
such
permits
and/
or
actions
required,
and
upon
approval
by
each
State,
Air
District
or
County
will
be
in
compliance
with
the
CAA
requirements,
as
more
fully
described
in
Attachment
B.
As
such,
Respondents
specifically
certify
to
the
following
facts
upon
which
this
Agreement
is
based:

.1.
the
violations
were
discovered
through
an
audit
or
through
a
compliance
management
system
reflecting
due
diligence
in
preventing,
detecting
and
correcting
violations;

2.
the
violations
were
discovered
voluntarily;

3.
the
initial
violations
were
disclosed
to
EPA
within
2
1
days
of
discovery,
and
in
writing;
subsequent
disclosures
were
dso
prompt
and
in
writing;

4.
the
violations
were
disclosed
prior
to
commencement
of
an
agency
inspection
or
investigation,
notice
of
a
citizen
suit,
filing
of
a
complaint
by
a
third
party,
reporting
of
the
violations
by
a
 
whistle
blower 
employee,
or
imminent
discovery
by
a
regulatory
agency;

5.
the
violations
have
been
corrected
and
the
Respondents
are,
to
the
best
of
their
knowledge
and
belief,
in
full
compliance
with
EPCRA
§
$
302­
303,
$
9
3
11­
312,
42
U.
S.
C.
$
5
11002­
1
1003,
$
0
11021­
11022;
CWA
$
31I(
i)(
l)(
C),
33
U.
S.
C.
0
13210)(
1)(
C);
CAA
9
110,42
U.
S.
C.
9
7410
and
the
requirementsadopted
as
part
of
the
SIPS;
RCRA
3
3002,42
U.
S.
C:
9
6922;
and
RCRA
$
9
9002­
9003,42
U.
S.
C.
$
9
699
1a­
6991b,
and
the
implementing
regulations
with
respect
to
the
violations
set
forth
in
this
Agreement;

­._
p
6.
appropriate
steps
have
been
taken
to
prevent
a
recurrence
of
the
violations;

7.
Respondents
have
no
knowledge
that
violations
other
than
those
covered
in
this
Agreement
(
or
closely
related
violations),
have
occurred
within
the
past
three
years
at
the
same
facilities;
nor
are
the
specific
violations
that
are
the
subject
of
this
Agreement
part
of
a
pattern
of
violations
by
Respondents
which
have
occurred
over
the
past
five
years;

8.
the
violations
have
not
resulted
in
serious
actual
harm
nor
presented
an
imminent
and
substantial
endangerment
to
human
health
or
the
environment
and
they
did
not
3
violate
the
specific
terms
of
any
judicial
or
administrative
Final
Order
or
Agreement;
and
9.
Respondents
have
cooperated
as
requested
by
the
EPA.

IV.
Conclusionsof
Law
EPCRA
A.
For
purposes
of
this
Agreement,
Respondentsare
 
persons 
as
defined
in
EPCRA
tj
329(
7),
42
U.
S.
C.
tj
11049(
7),
and
are
the
owner
or
operator
of
 
facilities 
asdefined
in
EPCRA
tj
329(
4),
42
U.
S.
C.
6
11049(
4).

B.
Section
302(
c)
of
EPCRA,
42
U.
S.
C.
0
11002(
c),
and
the
regulations
found
at
40
C.
F.
R.
Part
355,
require
owners
and
operators
of
facilities
at
which
an
extremely
hazardous
substance
is
present,
at
or
above
stated
designated
threshold
planning
quantities
(
TPQs),
as
defined
in
40
C.
F.
R.
Part
355,
to
notify
the
State
Emergency
Response
Commission(
SERC)
that
such
facility
is
subject
to
the
requirements
of
$
302(
c).

C.
Section
303(
d)
of
EPCRA,
42
U.
S.
C.
5
11003(
d),
and
the
regulations
found
at
40
C.
F.
R.
Part
355,
require
owners
and
operators
of
facilities
at
which
an
extremely
hazardous
substance
is
present,
at
or
above
stated
designatedTPQs,
to
notify
the
Local
Emergency
Planning
Committee
(
LEPC)
of
the
facility
representative
who
will
participate
in
the
emergency
planning
process
as
a
facility
emergency
coordinator.

D.
Section
31l(
a)
of
EPCRA,
42
U.
S.
C.
5
11021(
a),
and
the
regulations
found
at
40
C.
F.
R.
Part
370,
require
the
owner
or
operator
of
a
facility,
which
is
required
to
prepare
or
have
available
a
material
safety
data
sheet
(
MSDS)
for
a
hazardous
chemical
under
the
Occupational
Safety
and
Health
Act
of
1979,29
U.
S.
C.
A.
6
651
et.
seq.,
(
OSH
Act)
and
regulations
promulgated
under
the
Act,
and
has
substancespresent
in
excess
of
certain
stated
designated
threshold
quantities,
as
defined
in
Section
G
below,
to
submit
the
MSDS,
or
in
the
alternative,
a
list
of
chemicals
to
the
LEPC,
the
SERC,
and
to
the
fire
departmentwith
jurisdiction
over
the
facility
by
October
17,
1987,
or
within
three
months
of
first
becoming
subject
to
the
6
311
requirements.

Ef
Section
312(
a)
of
EPCRA,
42
U.
S.
C.
tj
11022(
a),
adthe
regulations
found
at
40
C.
F.
R.
Part
370,
require
the
owner
or
operator
of
a
facility
which
is
required
to
have
an
MSDS
for
a
hazardous
chemical
under
the
OSH
Act
of
1979,29
U.
S.
C.
A.
6
65
1
et.
seq.,
and
regulations
promulgated
under
the
OSH
Act,
and
has
substancespresent
in
excess
of
certain
stated
designated
threshold
quantities,
as
defined
in
Section
G
below,
to
prepare
and
submit
an
emergency
and
hazardous
chemical
inventory
form
(
Tier
I
or
Tier
I1
as
described
in
40
C.
F.
R.
Part
370)
containing
the
informationrequired
by
those
sections
to
the
LEPC,
SERC,
and
to
the
fire
department
with
jurisdiction
over
the
facility
by
March
1,
1988,
(
or
March
1
of
the
first
year
after
the
facility
first
becomes
subject
to
the
tj
312
requirements),
and
annually
thereafter.

4
F.
Diesel
fuel,
heptaflouropropane
and
ethylene
glycol
are
 
hazardous
chemicals ,
and
sulfuric
acid
is
an
 
extremely
hazardous 
substance,
as
defined
under
9
312
of
EPCRA
and
40
C.
F.
R.
9
370.2.

G.
As
set
forth
in
40
C.
F.
R.
9
370.20,
the
threshold
amount
for
reporting
pursuant
to
Sections
31l(
a)
and
3
12(
a)
of
EPCRA
for
 
hazardous
chemicals 
present
at
a
facility
at
any
one
time
during
the
preceding
calendar
year
is
ten
thousand
(
10,000)
pounds.
The
reporting
threshold
under
Sections
31l(
a)
and
312(
a)
of
EPCRA,
therefore,
for
diesel
fuel,
heptaflouropropane
and
ethylene
glycol,
is
ten
thousand
(
10,000)
pounds.
For
 
extremely
hazardous 
substances
present
at
the
facility,
the
threshold
amount
for
reporting
pursuant
to
Sections
3
1l(
a)
and
312(
a)
of
EPCRA
is
five
hundred
(
500)
pounds
or
the
TPQ,
whichever
is
lower.
The
TPQ
for
sulfuric
acid
is
one
thousand
(
1,000)
pounds.
The
reporting
threshold
for
sulfuric
acid,
therefore,
is
five
hundred
(
500)
pounds.

H.
The
information
supplied
by
the
Respondents
in
their
self­
disclosure
indicated
that
for
varying
lengths
of
time
during
calendar
years
1997­
2002,
Respondents
had
the
hazardous
chemicals,
diesel
fuel,
heptaflouropropane
and
ethylene
glycol,
and/
or
an
extremely
hazardous
substance,
sulfuric
acid,
in
excess
of
the
threshold
amounts,
present
at
its
facilities
listed
in
Attachment
B.

I.
For
purposes
of
this
Agreement,
Complainant
hereby
states
and
alleges
that,
based
on
the
information
supplied
by
Respondents
to
EPA,
Respondents
have
violated
the
following
requirements
:

1.
EPCRA
9
302(
c),
42
U.
S.
C.
9
11002(
c),
and
the
regulations
found
at
40
C.
F.
R.
Part
355
when
they
failed
to
notify
the
SERC
at
seventy­
two
(
72)
facilities,
identified
in
Attachment
B;

2.
EPCRA
6
303(
d),
42
U.
S.
C.
9
11003(
d),
and
the
regulations
found
at
40
C.
F.
R.
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
seventy­
two
(
72)
facilities,
identified
in
Attachment
B;

­.>­
3.
EPCRA
9
31l(
a),
42
U.
S.
C.
0
11021(
a)
and
the
regulations
found
at
40
C.
F.
R.
Part
370,
when
they
failed
to
submit
an
MSDS
for
Kh­
iizkdous
chemical(
s)
or,
in
the
alternative,
a
list
of
such
chemicals,
for
seventy­
five
(
75)
facilities,
to
the
LEPC,
SERC,
and
the
fire
department
with
jurisdiction
over
these
facilities,
identified
in
Attachment
B;

4.
EPCRA
9
312(
a),
42
U.
S.
C.
9
11022(
a)
and
the
regulations
found
at
40
C.
F.
R.
Part
370
at
sixty­
six
(
66)
facilities,
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,
identified
in
Attachment
B.

5
CWA
A.
For
purposes
of
this
Agreement,
Respondents
are
 
persons 
within
the
meaning
of
CWA
Q
31
l(
a)(
7),
33
U.
S.
C.
5
1321(
a)(
7),
and
40C.
F.
R.
5
112.2,
and
are
the
 
owners
or
operators ,
as
defined
by
CWA
Q
3
1l(
a)(
6),
33
U.
S.
C.
9
1321(
a)(
6),
and
40C.
F.
R.
5
112.2,
of
the
forty­
eight
(
48)
facilities,
described
more
fully
in
Attachment
B.

B.
The
regulations
at
40C.
F.
R.
0
112.3
through
Cj
112.7,
which
implement
$
3
11(
i)(
1)(
C)
of
the
CWA,
33
U.
S.
C.
5
13210)(
1)(
C),
set
forth
procedures,
methods
and
requirementsto
prevent
the
discharge
of
oil
from
non­
transportation­
relatedfacilities
into
or
upon
the
navigable
waters
of
the
United
States
and
adjoining
shorelines
in
such
quantities
that
by
regulation
have
been
determined
may
be
harmhl
to
the
public
health
or
welfare
or
environment
of
the
United
States
by
owners
or
operators
who
are
engaged
in
drilling,
producing,
gathering,
storing,
processing,
refining,
transferring,
distributing
or
consuming
oil
or
oil
products.

C.
40
C.
F.
R.
$
112.3(
a)
requires
owners
and
operators
of
onshore
and
offshore
facilities
that
have
discharged
or
due
to
their
location,
could
reasonably
be
expected
to
discharge
oil
in
harmful
quantities
into
or
upon
the
navigable
waters
of
the
United
States
or
adjoining
shorelines,
to
prepare
a
Spill
Prevention
Control
and
Countermeasure
(
SPCC)
Plan.

D.
Respondents
are
engaged
in
storing
or
consuming
oil
or
oil
products
for
backup
generators
located
at
the
forty­
eight
(
48)
facilities,
described
in
Attachment
B,
in
quantities
that
 
may
be
harmful, 
as
defined
by
40
C.
F.
R.
$
110.3.

E.
Forty­
eight
(
48)
of
Respondents 
facilities,
described
in
Attachment
B,
are
 
onshore
facilities 
within
the
meaning
of
CWA
5
31l(
a)(
lO),
33
U.
S.
C.
5
1321(
a)(
10)
and
40
C.
F.
R.
9
112.2,
which,
due
to
their
location,
could
reasonably
be
expected
to
discharge
oil
into
 
navigable
waters 
of
the
United
States,
as
defined
by
CWA
9
502(?),
33
U.
S.
C.
6
1362(
7),
and
40
C.
F.
R.
3
110.1,
or
its
adjoining
shoreline,
that
may
either
(
1)
violate
applicablewater
quality
standards
or
(
2)
cause
a
film
or
sheen
or
discolorationof
the
surface
of
the
water
or
adjoining
shorelines
or
cause
a
sludge
or
emulsionto
be
depositedbeneath
the
surface
of
the
water
or
upon
adjoining
shorelines.

F.
Based
on
the
above,
and
pursuant
to
3
31lQ)(
l)(
C)
and
its
implementingregulations,
­
Respondentsare
subject
to
the
requirements
of
40C.
F.
R.
8
1
12.3through
Q
112.7,
at
the
forty­
eight
(
48)
facilities
listed
in
Attachment
B,
hereby
incorporated
by
reference.

G.
For
purposes
of
this
Agreement,
Complainanthereby
states
and
alleges
that,
based
on
the
information
supplied
by
Respondentsto
EPA,
Respondents
have
violated
the
CWA
at
forty­
eight
(
48)
facilities
identified
in
Attachment
B,
by
failing
to
prepare
and/
or
implement
an
SPCC
Plan,
as
required
by
CWA
$
31
l(
j)(
l)(
C),
33
U.
S.
C.
1321(
i)(
l)(
C),
and
the
regulations
found
at
40
C.
F.
R.
0
112.3
through
Q
112.7.

6
A.
For
purposes
of
this
Agreement,
Respondents
are
 
persons 
within
the
meaning
of
CAA,
$
302(
e),
42
U.
S.
C.
6
7602(
e)
and
operate
 
stationary
source 
withinthe
meaning
of
9
302(
z),
42
U.
S.
C.
6
7602(
z).

B.
Section
1
lO(
a)(
l)
of
the
CAA,
42
U.
S.
C.
9
7410(
a)(
l),
requires
a
State
to
submit
an
implementation
plan,
commonly
known
as
a
state
implementation
plan
(
SIP)
to
implement,
maintain
and
enforce
ambient
air
quality
standards.

C.
The
following
States,
in
which
Respondents 
facilities
are
located,
submitted
SIPS,
which
were
approved
by
EPA
under
5
110
of
the
CAA,
42
U.
S.
C.
6
7410,
on
the
following
dates:

i.
Maricopa
County
Environmental
Services
Department,
Air
Quality
Division:
37
Fed.
Reg.
15,080
(
July
27,
1972)

ii.
South
Coast
Air
Quality
Management
District:
43
Fed.
Reg.
52,237
(
Nov.
9,
1978)

iii.
San
Joaquin
Valley
Air
Pollution
Control
District:
64
Fed.
Reg.
39,920
(
July
23,1999)

iv.
Kansas:
60
Fed.
Reg.
36,361
(
July
17,
1995)

v.
New
Jersey:
37
Fed.
Reg.
10,880
(
May
3
1,1972),
5
1
Fed.
Reg.
42,565
(
Nov.
25,
1986)

vi.
Pennsylvania:
38
Fed.
Reg.
32,893
(
Nov.
28,1973),
as
amended
at
45
Fed.
Reg.
33,627
(
May
20,
1980);
51
Fed.
Reg.
18,840
(
May
20,
1986);
53
Fed.
Reg.
3
1,330
(
Aug.
18,
1988);
59
Fed.
Reg.
30,304
(
June
13,
1994);
60
Fed.
Reg.
47,085
(
Sept.
11,1995);
6
1
Fed.
Reg.
16,062
(
April
11,1996);
63
Fed.
Reg.
13,794
(
March
23,1998);
63
Fed.
Reg.
23,673
(
April
30,1998)

D.
For
purposes
of
this
Agreement,
Complainant
hereby
states
and
alleges
that,
based
on
the
2
information
supplied
by
Respondents
to
EPA,
Respondents
have
violated
a
SIP
requirement
at
eight
(
8)
facilities.
The
requirements
and
the
facilities
are
listed
in
Attachment
B,
hereby
incorporated
by
reference.

RCRA
­
HAZARDOUS
WASTE
A.
Respondents
are
 
persons 
within
the
meaning
of
RCR4
9
1004(
15),
42
U.
S.
C.
0
6903(
15),
and
are
the
 
operators 
of
the
facility
designated
as
VA­
8
in
Attachment
B,
within
the
meaning
of
9
Virginia
Administrative
Code
(
VAC)
20­
60­
260(
A),
[
40
C.
F.
R.
$
260.101.
Respondents
are
also
 
generators 
of
hazardous
waste
at
VA­
8,
within
the
meaning
of
9
VAC
20­
60­
260(
A),
[
40
C.
F.
R.
9
260.
lo].
Because
Respondents
generate
less
than
one
hundred
7
kilograms
of
hazardous
waste
in
a
month
at
VA­
8,
Respondents
qualify
as
a
conditionally
exempt
small
quantity
generator
and
are
therefore
subject
to
the
requirements
of
9
VAC
20­
60261
A),
[
40
C.
F.
R.
$
261.51.

B.
Section
3006
of
RCRA,
42
U.
S.
C.
§
6926,
provides
that
States
may
be
authorized
to
issue
and
enforce
permits
for
the
storage,
treatment
and
disposal
of
hazardous
waste,
and
to
administer
EPA­
authorized
hazardous
waste
programs
within
their
State.
Virginia,
where
VA­
8
is
located,
has
been
authorized
to
administer
its
own
hazardous
waste
programs.
Virginia
has
incorporated
by
reference
the
federal
requirements
found
at
40
C.
F.
R.
Part
260
through
270
at
9
VAC
20­
60­
260
through
270.

C.
Pursuant
to
RCRA
6
3006(
g),
42
U.
S.
C.
6926(
g),
and
f3
3008(
a)
and
(
g),
42
U.
S.
C.
3
6928(
a)
and
(
g),
EPA
may
enforce
the
federally
approved
state
hazardous
waste
programs,
as
well
as
the
federal
regulations
promulgated
pursuant
to
the
Hazardous
and
Solid
Waste
Amendments.

D.
In
order
for
a
conditionally
exempt
small
quantity
generator
(
CESQG)
to
be
exempt
fiom
full
regulation,
they
must
comply
with
9
VAC
20­
60­
261(
A),
[
40
C.
F.
R.
Q
261.5(
g)]
which
lists
three
requirements.
First,
the
CESQG
must
comply
with9
VAC
20­
60­
262(
A),
[
40
C.
F.
R.
tj
262.1
13
and
make
a
hazardous
waste
determination.
Second,
the
waste
may
only
accumulate
for
a
specified
time
period.
Finally,
the
waste
must
be
treated
on­
site
or
delivered
to
an
off­
site
treatment,
storage
or
disposal
facility
as
defined
by
9
VAC
20­
60­
26
1(
A),
[
40
C.
F.
R.
$
261S(
g)(
3)(
i)­(
vii)].

E.
Respondents
deactivated
six
squibs,
a
small
explosive
placed
in
airplane
fire
extinguishers,
in
a
single
event
in
1998.
The
squibs
were
generated
at
VA­
8.
Squibs
are
regulated
as
a
hazardous
waste.
since
they
are
a
reactive
waste
defined
by
9
VAC
20­
60­
26
1(
A)
[
40
C.
F.
R.
6
261.23(
a)(
6)].

F.
Based
on
information
provided
by
Respondents,
Respondents
violated
9
VAC
20­
60
261(
A),
[
40
C.
F.
R.
0
261.5(
g)(
1)]
when
they
failed
to
makea
hazardous
waste
determination
on
the
squibs
and
9
VAC
20­
60­
261(
A),
[
40
C.
F.
R.
261.5(
g)(
3)]
when
they
improperly
disposed
of
the
squibs
by
detonating
them.

RCRA
­
FINANCIAL
ASSURANCE
A­

A.
For
purposes
of
this
agreement,
Respondents
are
 
persons 
within
the
meaning
of
RCRA
$
9001(
6),
42
U.
S.
C.
$
6991(
6),
and
40
C.
F.
R.
$
280.12.

B.
For
purposes
of
this
agreement,
Respondents
are
the
 
operators, 
as
defined
in
RCRA
0
9001(
4),
42
U.
S.
C.
6991(
4),
40
C.
F.
R.
6
280.12,
of
four
 
underground
storage
tank 
(
UST)
systems,
as
defined
in
RCRA
6
9001(
1),
42
U.
S.
C.
$
6991(
1),
40
C.
F.
R.
0
280.12,
and
30
Texas
Administrative
Code
(
TAC)
5
334.2,
identified
in
Attachment
B.

8
.

C.
Pursuant
to
RCRA
$
9
9002­
9003,42
U.
S.
C.
$
9
6991a
­
6991b,
EPA,
and
the
State
of
Texas
promulgated
rules
pertaining
to
owners
and
operators
of
UST
Systems,
set
forth
at
40
C.
F.
R.
Part
280
and
30
TAC
$
9
334
and
37.

D.
Section
9003(
d)
of
RCRA,
42
U.
S.
C.
9
6991b(
d)
requires
owners
or
operators
of
UST
systems
to
obtain
UST
insurance
policies
that
must
be
worded
according
to
the
format
set
forth
in
40
C.
F.
R.
3
280.97
and
30
TAC
$
37.801.

E.
For
purposes
of
this
Agreement,
Complainant
hereby
states
and
alleges
that,
based
on
the
information
supplied
by
Respondents
to
EPA,
Respondents
have
violated
RCRA
$
9003(
d),
42
U.
S.
C.
0
6991b(
d),
40
C.
F.
R.
$
280.97
and
30
TAC
$
9
334
and
37.801,
when
the
insurance
policy
failed
to
use
the
terms
 
corrective
action 
or
 
sudden,
non­
sudden
or
accidental
release 
to
describe
coverage
for
the
four
(
4)
facilities
listed
in
Attachment
B.

RCRA
­
UST
(
Philadelphia)

A.
For
purposes
of
this
agreement,
Respondents
are
 
persons 
within
the
meaning
of
RCRA
5
9001(
6),
42
U.
S.
C.
§
6991(
6),
and
40
C.
F.
R.
9
280.12.

B.
For
purposes
of
this
agreement,
Respondents
are
the
 
owners ,
as
defined
in
RCRA
5
9001(
3),
42
U.
S.
C.
5
6991(
3),
40
C.
F.
R.
5
280.12,
of
one
 
underground
storage
tank 
(
UST)
system,
as
defined
in
RCRA
9
9001(
1),
42
U.
S.
C.
6
6991(
1),
40
C.
F.
R.
tj
280.12,
at
their
Philadelphia
facility,
identified
in
Attachment
B.

C.
Pursuant
to
RCRA
$
8
9002­
9003,42
U.
S.
C.
$
9
6991a
­
6991b,
EPA
promulgated
rules
pertaining
to
owners
and
operators
of
UST
systems,
set
forth
at
40
C.
F.
R.
Part280.

D.
Section
9003
of
RCRA,
42
U.
S.
C.
96991b
and
40
C.
F.
R.
Part
280
set
forth
all
relevant
regulations
for
owners
or
operators
of
UST
systems
including
release
detection,
prevention,
and
financial
assurance.

E.
Respondents
had
a
storage
tank
at
the
Philadelphia
facility
that
was
determined
to
be
an
UST
because
it
was
surrounded
by
an
earthen
material,
Le.,
sand.

T.
Pursuant
to
RCRA
$
9002(
a),
42
U.
S.
C.
$
6991a(
a),
the
owner
of
an
UST
shall
notify
the
State
or
local
agency
or
department
designated
pursuant
to
5
9002(
b)(
1)
of
the
existence
of
such
tank
by
May
8,1986.
Pursuant
to
40
C.
F.
R.
$
280.22(
a)
any
owner
who
brings
an
UST
system
into
use
after
May
8,
1996,
must
within
30
days
of
bringing
such
tank
into
use,
submit
a
notice
of
existence
of
such
tank
system
to
the
state
or
local
agency
or
department
designated
to
receive
such
notice.

G.
For
purposes
of
this
Agreement,
Complainant
hereby
states
and
alleges
that,
based
on
the
information
supplied
by
Respondents
to
EPA,
Respondents
have
violated
the
following
requirements:

9
1.
RCRA
0
9002(
a)(
l),
42
U.
S.
C.
0
6991(
a)(
1),
and
the
regulations
found
at
40
C.
F.
R.
9
280.22(
a)
when
they
failed
to
notify
the
state
at
one
(
1)
facility,
identified
in
Attachment
B.

2.
RCRA
0
9003,42
U.
S.
C.
0
6991b,
and
all
of
the
relevant
UST
regulations
found
at
40
C.
F.
R.
tj
280
for
the
one
(
1)
facility
identified
in
Attachment
B;

V.
Civil
Penaltv
A.
EPA
agrees,
based
upon
the
facts
and
information
submitted
by
Respondents
and
upon
Respondents certification
herein
to
the
veracity
of
this
information,
that
Respondents
have
satisfied
all
of
the
conditions
set
forth
in
the
Audit
Policy
and
thereby
qualifies
for
a
100%
reduction
of
the
gravity
component
of
the
civil
penalty.
Complainant
alleges
that
the
gravity
component
of
the
civil
penalty
is
$
1,553,747.
Of
that
penalty,
$
1,160,622
is
attributableto
EPCRA
violations;
$
220,000
is
attributableto
CAA
violations;
$
137,500
is
attributable
to
CWA
violations;
and
$
35,625
is
attributable
to
RCRA
violations.
EPA
alleges
that
this
gravity
component
is
assessable
against
Respondents
for
the
violations
that
are
the
basis
of
this
Agreement.

B.
Under
the
Audit
Policy,
EPA
has
discretion
to
assess
a
penalty
equivalent
to
the
economic
benefit
Respondents
gained
as
a
result
of
their
noncompliance.
Based
on
information
provided
by
Respondents
and
use
of
the
Economic
Benefit
(
BEN)
computer
model,
EPA
has
determined
that
Respondents
obtained
an
economic
benefit
of
$
35,004
as
a
result
of
their
noncompliance
in
this
matter.
Of
this
amount,
$
7,581
is
attributable
to
the
EPCRA
violations;
$
1,136
is
attributable
to
the
CAA
violations;
$
21,458
is
attributable
to
CWA
violations;
and
$
4,829
is
attributable
to
the
RCRA
violations.
Accordingly,
the
civil
penalty
agreed
upon
by
the
parties
for
settlement
purposes
is
$
35,004.

VI.
Terms
of
Settlement
A.
Respondents
agree
to
pay
THIRTY­
FIVE
THOUSAND
AND
FOUR
DOLLARS
($
35,004),
in
satisfaction
of
the
civil
penalty.

B.
For
payment
of
the
civil
penalties
related
to
EPCRA,
CAA,
and
RCRA,
Respondents
­
.&
all
send,
within
thirty
(
30)
days
of
issuance
of
the
Final­
Order;
a
cashier s
check
or
certified
check
in
the
amount
of
THIRTEEN
THOUSAND,
FIVE
HUNDRED
AND
FORTY­
SIX
DOLLARS
($
13,546),
made
payable
to
the
 
Treasurer
of
the
United
States
of
America, 
to
the
following
address:

United
States
Environment
Protection
Agency
Hearing
Clerk
P.
O.
Box
360277M
Pittsburgh,
PA
15251
10
The
check
should
indicate
that
it
is
for
In
re:
Nextel
Communications,
Inc.,
et.
al.
and
NII
Holdings,
Inc.,
Docket
No.
EPCRA­
HQ­
2002­
6001,
CAA­
HQ­
2002L6001,
and
RCRA­
HQ2002
6001.

Alternatively,
Respondents
shall
pay
THIRTEEN
THOUSAND,
FIVE
HUNDRED
AND
FORTY­
SIX
DOLLARS
($
13,546)
by
wire
transfer
with
a
notation
of
 
Nextel
Communications,
Inc.,
et.
al,
and
NII
Holdings,
Inc.,
Docket
No.
EPCRA­
HQ­
2002­
6001,
CAA­
HQ­
2002­
600
1,
and
RCRA­
HQ­
2002­
600
1 
by
using
the
following
instructions:

Name
of
Beneficiary:
EPA
Number
of
Account
for
deposit:
68010099
The
Bank
Holding
Account:
Treas
NYC
The
ABA
routing
Number:
021030004
C.
In
payment
of
the
civil
penalty
related
to
CWA,
Respondents
shall,
withinthirty(
30)
days
of
issuance
of
the
Final
Order,
forward
a
cashier s
or
certified
check,
in
the
amount
of
TWENTY­
ONE
THOUSAND
AND
FOUR
HUNDRED
AND
FIFTY­
EIGHT
DOLLARS,
($
21,
458),
made
payable
to
the
 
Oil
Spill
Liability
Trust
Fund, 
to:

Commander,
National
Pollution
Funds
Center
United
States
Coast
Guard
Ballston
Common
Office
Building
Suite
1000
4200
Wilson
Boulevard
Arlington,
VA
22203
The
check
should
indicate
that
it
is
for
In
re:
Nextel
Communications,
Inc.,
et.
al..
and
NII
Holdings.
Inc.,
Docket
No.
CWA­
HQ­
2002­
6001.

Alternatively,
Respondents
shall
pay
TWENTY­
ONE
THOUSAND
AND
FOUR
HUNDRED
AND
FIFTY­
EIGHT
DOLLARS,
($
21,458)
by
wire
transfer
with
a
notation
of
 
Nextel
Communications,
Inc.,
et.
al.,
and
NII
Holdings,
Inc.,
Docket
No.
CWA­
HQ­
2002­
6001 
by
using
the
following
instructions:

­ >

Bank s
ABA
Number:
02103U004
Treas
NYC
Coast
Guard
BeneficiaryNumber:
69025102
Type/
Subtype
Code:
10
00
D.
Respondents
shall
forward
copies
of
these
checks
or
evidence
of
wire
transfer
to
EPA,
within
five
(
5)
days
of
payment,
to
the
attention
of:

11
­­
Elizabeth
Cavalier
Multimedia
Enforcement
Division
(
2248­
A)
Office
of
Enforcement
and
Compliance
Assurance
U.
S.
Environmental
Protection
Agency
1200
PennsylvaniaAve,
N.
W.
Ariel
Rios
Building,
Room
3119A
Washington,
DC
20460
and
Clerk,
EnvironmentalAppeals
Board
U.
S.
EnvironmentalProtection
Agency
MC
1103B
1200
PennsylvaniaAve.,
NW
Washington,
DC
20460
E.
Respondents 
obligations
under
this
Agreement
shall
end
when
they
have
paid
the
civil
penalties
as
required
by
this
Agreement
and
the
Final
Order,
and
in
accordance
with
Section
VI@)
and
(
C),
and
complied
with
its
obligations
under
SectionVI(
D)
of
this
Agreement.

F.
For
the
purposes
of
state
and
federal
income
taxation,
Respondents
shall
not
be
entitled,
and
agree
not
to
attempt,
to
claim
a
deduction
for
any
civil
penalty
payment
made
pursuant
to
the
Final
Order.
Any
attempt
by
Respondentsto
deduct
any
such
payments
shall
co&&
ute
a
violation
of
the
Agreement.

G.
Pursuant
to
31
U.
S.
C.
$
j3717,
EPA
is
entitled
to
assess
interest
and
penalties
on
debts
owed
to
the
United
States
and
a
charge
to
cover
the
cost
of
processing
and
handling
a
delinquent
claim.
Interest
will
therefore
begin
to
accrue
on
the
civil
penalty
fkom
the
date
of
entry
of
the
Final
Order,
if
the
penalty
is
not
paid
by
the
date
required.
Interest
will
be
assessed
at
the
rate
of
the
United
States
Treasury
tax
and
loan
rate
in
accordancewith
40
C.
F.
R.
9
13.11.
A
charge
will
be
assessed
to
cover
the
costs
of
debt
collection,
including
processing
and
handling
costs
and
attorney
fees.
In
addition,
a
penalty
charge
of
twelve
(
12)
percent
per
year
compounded
annually
will
be
assessed
on
any
portion
of
the
debt
that
remains
delinquent
more
than
ninety
(
9.0)
days
after
payment
is
due.

VII.
Public
Notice
A.
The
parties
acknowledgethat
the
settlementportions
of
this
Agreement
which
pertain
to
the
CWA
violations
are,
pursuant
to
CWA
9
31
1(
6)(
C)(
i),
33
U.
S.
C.
9
1321(
6)(
C)(
i),
subject
to
public
notice
and
comment
requirements.
Furthermore,
the
parties
acknowledgeand
agree
that
at
that
time,
EPA
will
also
provide
an
opportunityto
comment
on
the
EPCRA,
CAA,
and
RCRA
portions
of
this
Agreement.
Should
EPA
receive
comments
regarding
the
issuance
of
the
Final
Order
assessing
the
civil
penalty
agreed
to
in
Paragraph
VI(
A),
EPA
shall
forward
all
such
comments
to
Respondents
within
ten
(
10)
days
of
the
receipt
of
the
public
comments.
12
B.
As
part
of
this
Agreement,
and
in
satisfactionof
the
requirements
of
the
Audit
Policy,
Respondents
have
certified
to
certain
material
facts.
The
parties
agree
that
should
EPA
receive,
through
public
comments
or
in
any
way,
informationthat
proves
or
demonstrates
that
these
material
facts
are
other
than
as
certified
by
Respondents,
the
portion
of
this
Agreement
pertaining
to
the
affected
facility
or
facilities,
includingmitigation
of
the
proposed
penalty,
may
be
voided,
or
this
entire
agreement
may
be
declared
null
and
void
at
EPA s
election
prior
to
the
issuance
of
the
Final
Order,
and
EPA
may
proceed
with
an
enforcement
action.

C.
The
parties
agree
that
the
Respondents
preserve
all
of
their
rights
should
this
Agreement
be
voided
in
whole
or
in
part.
The
parties
further
agree
that
Respondents 
obligations
under
this
Agreement
will
cease
should
this
Agreement
be
rejected
by
the
EnvironmentalAppeals
Board.

VIII.
Reservation
of
Rights
and
Settlement
A.
This
Agreement
and
the
Final
Order,
when
issued
by
the
EAB,
and
upon
payment
by
Respondents
of
civil
penalties
in
accordance
with
Section
VI,
shall
resolve
only
the
civil
claims
specified
in
Attachment
B
and
shall
constitute
a
final
and
complete
settlement
of
all
federal
civil
and
administrative
claims
bd
causes
of
action
arising
from
the
violations
specified
in
Attachment
B,
and
the
facts
alleged
in
Section
IV.
Nothing
in
this
Agreement
and
the
Final
Order
shall
be
construed
to
limit
the
authority
of
EPA
and/
or
the
United
States
to
undertake
any
action
against
Respondents,
in
response
to
any
condition
which
EPA
or
the
United
States
determines
may
present
an
imminent
and
substantialendangerment
to
the
public
health,
welfare,
or
the
environment.
Furthermore,
issuance
of
the
Final
Order
does
not
constitute
a
waiver
by
EPA
and/
or
the
United
States
of
its
right
to
bring
an
enforcement
action,
either
civil
or
criminal,
against
Respondents
for
any
other
violation
of
any
federal
or
state
statute,
regulation
or
permit.

IX.
Other
Matters
A.
Each
party
shall
bear
its
own
costs
and
attorney
fees
in
this
matter.

B.
The
provisions
of
this
Agreement
and
the
Final
Order,
when
issued
by
the
EAB,
shall
apply
to
and
be
binding
on
the
Complainant,
and
the
Respondents,
as
well
as
Respondents 
afficers,
agents,
successors
and
assigns.
Any
change
in
omership
or
corporate
status
of
the
Respondents
including,
but
not
limited
to,
any
transfer
of
assets
or
real
or
personal
property
shall
not
alter
Respondents 
responsibilities
under
this
Agreement,
including
the
obligation
to
pay
the
civil
penalty
referred
to
in
Paragraph
V@).

C.
Nothing
in
this
Agreement
shall
relieve
Respondents
of
the
duty
to
comply
with
all
applicableprovisions
of
the
EPCRA,
CAA,
CWA,
and
RCRA
or
other
federal
state
or
local
laws
or
statutes,
nor
shall
it
restrict
EPA s
authority
to
seek
compliance
with
any
applicable
laws,
nor
shall
it
be
construed
to
be
a
ruling
on,
or
a
determinationof,
any
issue
related
to
any
federal,
state
or
local
permit.

13
D.
Except
as
provided
in
Section
VII(
C),
Respondents
waive
any
rights
they
may
have
to
contest
the
allegations
contained
herein
and
its
right
to
appeal
the
proposed
Final
Order
accompanying
this
Agreement
by
reference.

E.
Although
EPA
is
not
requiring
submission
of
inventory
forms
for
previous
reporting
cycles,
i.
e.,
before
reporting
year
2000,
in
order
to
settle
thismatter,
Respondents
agree
to
contact,
if
they
has
not
already
done
so,
the
SERC,
or
the
equivalent
entity
delegated
the
authority
specified
in
EPCRA
$
301,42
U.
S.
C.
$
11001,
for
each
State
in
which
a
facility
is
alleged
to
be
in
violation
to
determine
whether
submission
of
previous
years
of
EPCRA
$
3
12
inventory
forms
is
required.
This
Agreement
does
not
preclude
or
limit
any
state
action
regarding
filing
fees
which
may
be
owed
or
any
other
state
action
regarding
Respondents 
obligations
under
state
law.

F.
The
undersigned
representatives
of
each
party
to
this
Agreement
certify
that
each
is
duly
authorized
by
the
party
whom
he
represents
to
enter
into
these
terms
and
bind
that
party
to
it.

FOR
Respondents
(
Except
NII
Holdings,
Inc.):

L.
23, 
LOoL
Senior
Vice
President
and
General
Counsel
Nextel
Communications,
Inc.,
et.
a1
FOR
Respondents
NII
Holdings,
Inc.:
­\

Vice
Prdent
and
General
Counsel
NII
Holdings,
Inc.
FOR
Complainant:

Dat
Acting
Director
Mulitmedia
Enforcement
US.
Environmental
Protection
Agency
14
­­
BEFORE
THE
ENVIRONMENTAL
APPEALS
BOARD
UNITED
STATES
ENVIRONMENTAL
PROTECTION
AGENCY
WASHINGTON,
D.
C.

IN
THE
MATTER
OF:

NEXTEL
Communications,
Inc.,
et.
a1
2001
Edmond
Halley
Dr.
Reston,
Virginia
20
191
NII
Holdings,
Inc.
10700
Parkridge
Blvd
Suite
600
Reston,
Virginia
20191
Respondents
1
1
1
)
1
)
)
1
)
1
FINAL
ORDER
Docket
No.
EPCRA­
HQ­
2002­
6001
Docket
No.
CWA­
HQ­
2002­
6001
Docket
No.
CAA­
HQ­
2002­
6001
Docket
No.
RCRA­
HQ­
2002­
6001
Whereas
Complainant,
the
United
States
Environmental
Protection
Agency,
and
Respondents,
Nextel
Communications,
Inc.,
its
subsidiaries
and
NII
Holdings,
Inc.,
identified
in
the
Consent
Agreement,
the
Parties
herein,
represented
by
counsel,
have
consented
to
the
entry
of
this
Final
Order,
and
agree
to
comply
with
the
Consent
Agreement
signed
by
the
parties
and
incorporated
herein;
and
Whereas
EPA
caused
a
Notice
for
Public
Comment
on
the
proposed
issuance
of
this
Final
Order
to
be
published
in
the
Federal
Register
on
2002,
asrequired
by
the
Clean
Water
­.
s.

Act
5
3
11(
b)(
6),
33
U.
S.
C.
tj
1321(
b)(
6),
the
public
notice
and
comment
period
required
has
closed,
and
no
comments
have
been
received;

The
Consent
Agreement
is
hereby
approved
and
incorporated
by
reference
into
this
Final
Order.
The
Respondents
are
hereby
ordered
to
comply
with
the
terms
of
the
Consent
Agreement,
effective
immediately.
SO
ORDERED.

By:
Date:
Environmental
Appeals
Judge
Environmental
Appeals
Board
US
EPA
L­
ATTACHMENT
A
NEXTEL
Subsidiarieswhich
are
parties
to
this
agreement:

Nextel
Finance
Company
2001
Edmund
Halley
Drive
Reston,
Virginia
20191
Nextel
Operatiom,
Inc.
2001
Edmund
Halley
Drive
Reston,
Virginia
20191
Nextel
Systems
Corp.
2001
Edmund
Halley
Drive
Reston,
Virginia
20191
Domestic
USF
Corp.
2001
Edmund
Halley
Drive
Reston,
V
i20191
Nextel
Aviation,
Inc.
2001
Edmund
Halley
Drive
Reston,
Vi@
20191
NII
Holdings,
Inc.
10700
parkridge
Blvd.
Suite600
Reston,
Virginia
20191
Nextel
West
Corp.
27755
Stansbury
Blvd.
FarmingtOn
Hills,
Michigan
48334
Nextel
South
Corp.
851
Trafalgar
Court,
Suite
300­
E
Maitland,
Florida
32751
Nextel
of
California,
Inc.
1255
Treat
Blvd.,
Suite
800
Walnut
Creek,
California
945%

'
IIJgtelCommunicationsof
the
Mid­
Atlantic,
Inc.
4340
East
WestHighway,
Suite
800
Bethesda,
Maryland
20814
Nextel
of
New
York,
Inc.
565
Taxter
Road
Elmsford,
New
York
10523
Nextel
of
Texas,
lnc.
Franklin
Plaze
111
Congress
Avenue,
7"'
Floor
Austin.
Texas
78701
Stateof
Incorporation
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Georgia
Delaware
Delaware
Delaware
Texas
A:\
amch
a
2
from
Irn.
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