Consent Agreements and Proposed Final Orders for Animal Feeding Operations (Board decision, January 7, 2009)

Plain-English summary

EPA offered animal feeding operations an opportunity to resolve potential liabilities under the Clean Air Act, CERCLA, and EPCRA through consent agreements and Final Orders. The Board had already vacated seventeen agreements in an October 24, 2008 order. EPA later identified seven additional agreements that had been omitted from that order and represented that they duplicated previously approved agreements. The Board vacated those seven agreements and their corresponding Final Orders, and ordered EPA to serve the affected respondents and file a certificate of service.

Decision snapshot

• Cited authorities: 42 U.S.C. § 7401; 42 U.S.C. § 9601; 42 U.S.C. § 11001
• Outcome: The seven identified consent agreements and corresponding Final Orders were vacated.
• Key point: The Board vacated duplicate consent agreements and Final Orders that had been omitted from an earlier vacatur order.

Full text (EPA EAB public release)

BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.

In re: ) Consent Agreement and
) Final Order
Consent Agreements and Proposed ) CAA-HQ-2005-xx
Final Orders for Animal Feeding ) CERCLA-HQ-2005-xx
Operations ) EPCRA-HQ-2005-xx

ORDER SUPPLEMENTING
ORDER VACATING CONSENT AGREEMENTS AND FINAL ORDERS

I. BACKGROUND

On October 24, 2008, the Environmental Appeals Board (“Board”) issued an order vacating seventeen of the two thousand six hundred and twenty Consent Agreements (“Agreements”) the Board has ratified in the above-captioned matter.1 The following Consent Agreements should have been included in that order but were inadvertently omitted:2 (1) Hansen Farms L.C. (Docket No. 0544); (2) Crown Farm Partners I, Inc. (Docket No. 0555); (3) Tower Farms, Inc. (Docket No. 0699); (4) Adwell Farms, Inc. (Docket No. 0704); (5) Prism Pork, Inc. (Docket No. 0709); (6) Spartan Farms, Inc. (Docket No. 0728); and (7) Neil Zwart Dairy (Docket No. 0968).

In its October 16, 2008 memorandum requesting that the Board vacate various of the Agreements, EPA's Office of Enforcement and Compliance Assurance (“OECA”) represents that the above-mentioned Agreements are duplicates of previously approved Agreements, and requests that they be vacated.

II. ORDER

Upon consideration of the foregoing, the Board hereby VACATES the above-mentioned Agreements and their corresponding Final Orders.

1 These Agreements are part of a large group of proposed agreements EPA has received in response to a nationwide offer EPA made to animal feeding operations (“AFOs”) in the egg, broiler, chicken, turkey, dairy, and swine industries that meet the definition of an AFO under the Clean Water Act. See Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. 4958, 4959 (Jan. 31, 2005). EPA offered AFOs the opportunity to sign consent agreements to resolve potential liabilities under the Clean Air Act (“CAA”), CAA §§ 101-618, 42 U.S.C. §§ 7401-7671q, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), CERCLA §§ 101-405, 42 U.S.C. §§ 9601-9675, and the Emergency Planning and Community Right-To-Know Act (“EPCRA”), EPCRA §§ 301-330, 42 U.S.C. §§ 11001-11050. See Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. 4958 (Jan. 31, 2005); see also Animal Feeding Operations Consent Agreement and Final Order, 70 Fed. Reg. 40016 (July 12, 2005).

2 On October 16, 2008, the Board received a memorandum from the EPA's Office of Enforcement and Compliance Assurance (“OECA”) requesting it to vacate twenty-four of the Agreements. See Memorandum from Granta Y. Nakayama on Consent Agreements and Proposed Final Orders for Animal Feeding Operations to Environmental Appeals Board (Oct. 16, 2008). The Board's October 24, 2008 order covered seventeen of these agreements.

Complainant is ordered to serve each of the above-mentioned Respondents. Complainant shall submit to the Board a certificate of service confirming that such service has been made.

So ordered.

ENVIRONMENTAL APPEALS BOARD

By: Edward E. Reich
Environmental Appeals Judge

Dated: 1/7/09

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order Supplementing Order Vacating Agreements and Final Orders in the matter of Consent Agreements and Proposed Final Orders for Animal Feeding Operations, were sent to the following persons in the manner indicated:

By Interoffice Mail
(and copy by facsimile):

Bernadette Rappold
Tim Sullivan
Special Litigation & Projects Division
Office of Civil Enforcement (2248-A)
U.S. Environmental Protection Agency
1200 Pennsylvania Ave., NW
Washington, DC 20460

FAX: (202) 564-0010

Dated: JAN -7 2009

Annette Duncan
Secretary