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

Plain-English summary

EPA asked the Environmental Appeals Board to correct 41 previously ratified consent agreements for animal feeding operations. The Office of Enforcement and Compliance Assurance represented that penalty amounts for 25 respondents had been miscalculated, largely because respondents supplied incorrect or ambiguous information. OECA also reported that 16 agreements were captioned with incorrect respondent names or addresses. The Board amended the penalty amounts and corrected the names and addresses as specified in the two attachments, amended and corrected the corresponding Final Orders, and ordered service on the affected respondents.

Decision snapshot

• Cited authorities: 42 U.S.C. §§ 7401, 9601, and 11001
• Outcome: Penalty amounts were amended for 25 agreements, and respondent names and/or addresses were corrected for 16 agreements.
• Key point: The corresponding consent agreements and Final Orders were amended or corrected to reflect the accurate penalty, respondent, and address information.

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 AMENDING PENALTY AMOUNTS AND
CORRECTING NAMES AND ADDRESSES

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,¹ to approve changes to forty-one of the two thousand six hundred and twenty Consent Agreements (“Agreements”) the Board has ratified in the above- captioned matter.²

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. §§ 9601-967, 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).

Under the model agreement published in the January 31, 2005 Federal Register notice, participating AFOs will pay a civil penalty based on the number and size of the farms and the number of animals at each AFO covered by the Agreement, in accordance with a table set forth therein. The Final Orders ratifying the two thousand six hundred and twenty Agreements set forth the penalty amounts assessed against each of these Respondents.

In its memorandum, OECA represents that the penalty amounts assessed against twenty-five Respondents were miscalculated.³ OECA explains that the miscalculated penalty amounts were largely caused by incorrect and/or ambiguous information submitted by Respondents. OECA also explains that Respondents providing incorrect or ambiguous information also led OECA to incorrectly caption sixteen Agreements with respect to the Respondents’ names and/or addresses.⁴ OECA requests that the Board amend the Agreements and Final Orders for these Respondents as provided in Attachments 1 and 2 of this Order.

II. ORDER

Upon consideration of the foregoing, the Board hereby AMENDS the penalty amounts of the twenty-five Agreements listed in Attachment 1 of this Order, in the manner indicated in that attachment. The Board also CORRECTS the Name and Addresses in the Agreements listed in Attachment 2 of this Order, in the manner this attachment prescribes. The corresponding Final Orders are hereby amended and corrected accordingly.

In addition, the Board orders Complainant to serve, and certify service of this Order to, all the Respondents listed in Attachments 1 and 2.

So ordered.

ENVIRONMENTAL APPEALS BOARD

Dated: 10/24/08

By: Edward E. Reich
Environmental Appeals Judge

Attachment 1

Business Confidentiality Asserted¹

Penalty Corrections Table

Business Confidentiality Asserted¹

Business Confidentiality Asserted¹

¹ Several Respondents asserted business confidentiality claims over the number of farms covered by their Agreements – this information has been removed from this version of the document.

Attachment 2

Respondent Name and Address Corrections Table

¹ Several Respondents asserted business confidentiality claims over the number of farms covered by their Agreements – this information has been removed from this version of the document.

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order Amending Penalty Amounts and Correcting Names and Addresses 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: OCT 24 2008

Annette Duncan
Secretary