Consent Agreements and Proposed Final Orders for Animal Feeding Operations (Board decision, October 24, 2008)

Plain-English summary

The Environmental Appeals Board had ratified consent agreements for animal feeding operations resolving potential liabilities under the Clean Air Act, CERCLA, and EPCRA. EPA asked the Board to vacate 17 agreements because nine respondents had sold or shut down their farms before approval, and eight agreements were duplicates of previously approved agreements. The Board vacated the identified agreements and corresponding Final Orders and directed EPA to serve the affected respondents and file certificates of service.

Decision snapshot

• Cited authorities: 42 U.S.C. §§ 7401, 9601, and 11001
• Outcome: Seventeen animal-feeding-operation consent agreements and corresponding Final Orders were vacated.
• Key point: The EAB may vacate a ratified consent agreement and Final Order when EPA establishes that the agreement should be cancelled or duplicates another approved agreement.

Full text (EPA EAB public release)

BEFORE THE ENVIRONMENTAL APPEALS BOARD

BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C.
Clerk, Environmental Appeals Board
INITIALS

Consent Agreement and
Final Order
CAA-HQ-2005-xx
CERCLA-HQ-2005-xx
EPCRA-HQ-2005-xx

OCT 24 2008

In re:

Consent Agreements and Proposed
Final Orders for Animal Feeding
Operations

eee ee ae

ORDER VACATING CONSENT AGREEMENTS AND FINAL ORDERS

I. BACKGROUND
On October 16, 2008, the Environmental Appeals Board (“Board”) received a memorandum from the EPA’s Office of Enforcement and Compliance Assurance (“OECA”, also referred to as “Complainant”) requesting, inter alia,! to vacate twenty-four of the two thousand six hundred and twenty Consent Agreements

(“Agreements”) the Board has ratified in the above-captioned

matter.?

• The same submittal requested that the Board approve a new
  Agreement, approve changes to forty-one previously ratified Agreements, and transfer six of the Agreements. 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 will rule on these requests in separate orders.

• As of October 16, 2008, the Board had ratified eight groups of
  Agreements consisting of two thousand six hundred and twenty

Agreements. See Consent Agreements and Proposed Final Orders for Animal Feeding Operations (EAB Jan. 27, 2006) (ratifying 20 agreements); Consent Agreements and Proposed Final .Orders for Animal

Feeding Operations (EAB Apr. 17, 2006) (ratifying 702 agreements) ;

Consent Agreements and Proposed Final Orders for Animal Feeding

Operations (EAB May 5, 2006) (ratifying 286 agreements); Consent (continued...)

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) .?

In its memorandum, OECA represents that the following nine Respondents have informed OECA that they either sold or shut down their farms prior to Board approval of their Agreement and that

they wish to cancel their Agreement: (1) Mike Menges (Docket No.

2(...continued)
Agreements and Proposed Final Orders for Animal Feeding Operations (EAB July 19, 2006) (ratifying 1,205 agreements); Consent Agreements and Proposed Final Orders for Animal Feeding Operations (EAB, Aug. 7, 2006) (ratifying 353 agreements); Consent Agreement and Proposed Final Order for Animal Feeding Operations - Foster Brothers Farm, Inc. (EAB Aug. 17, 2006) (ratifying 1 agreement); Consent Agreement and Proposed Final Order for Animal Feeding Operations - Seaboard Farms LP (EAB Aug. 21, 2006) (ratifying 1 agreement); Consent Agreements and Proposed Final Orders for Animal Feeding Operations (EAB Dec. 16, 2006) (ratifying 52 agreements).

° 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 §8§ 7401-7671q, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), CERCLA §§ 101-

-405, 42 U.S.C. §§ 9601-967, and the Emergency Planning and Community Right-To-Know Act (“EPCRA”), EPCRA §§ 301-330, 42 U.S.C. §§ 1101- 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).

0393); (2) Hillside Ranch (Docket No. 1086); (3) Dilworth Poultry (Docket No. 1143); (4) Sandhill Hog Farm (Docket No. 1671);

(5) Boomer Enterprises, LLC (Docket No. 1848); (6) Michael A. Braun (Docket No. 1922); (7) Wade Harrison (Docket No. 2241);

(8) Greg Campbell (Docket No. 2249); and (9) Cameo Dairy (Docket No. 2384). OECA agrees that these Agreements should be cancelled and requests that the Board vacate each of these Agreements.

OECA also represents that it has determined that the following Agreements were duplicates of previously approved Agreements, and requests that they be vacated as well: (1) Tahoe Farms, LLC

(Docket No. 1298) (submitted twice); (2) Balsam Coop (Docket No.

1304) (submitted twice); (3) Elk Run Farms, Inc. (Docket. No. 1599) (submitted twice); (4) Dircks Farms, Inc. (Docket No. 1913) (submitted twice); (5) Flagship Farms, LLC (Docket No.

2057) (submitted as a duplicate of 8 other Agreements); (6) Desert Star Dairy (Docket No. 2291) (submitted twice); (7) Sloping Hills Dairy (Docket No. 2390) (submitted twice); and (8) Dan and Peggy

Comstock (Docket No. 2713) (submitted twice).

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

Final Orders.

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

Lae

, - | By: <
Dated: jo/24 [08 Edward E. Reich
Environmental Appeals Judge

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing 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

; <a } ) % i /
pated: OCT 24 2008 NeLld! ot— f,

Annette Duncah
Secretary