Consent Agreements and Proposed Final Orders for Animal Feeding Operations (Board decision, August 7, 2006)

Plain-English summary

EPA made a nationwide offer to animal feeding operations in the egg, broiler, chicken, turkey, dairy, and swine industries. Operations that signed a standard consent agreement would pay a civil penalty, help fund a two-year national air emissions monitoring study, and receive a release and covenant not to sue for certain past and study-period violations of the Clean Air Act, CERCLA, and EPCRA. Settlements begun at EPA Headquarters are not final until the Environmental Appeals Board ratifies them, so each batch of signed agreements comes to the Board for review.

This order handles the fifth batch. On August 4, 2006 the Board received 353 signed agreements from EPA's enforcement office. The Board had already worked through the legal questions when it examined the first batch of 20 agreements in January 2006, holding a hearing and taking briefs from the enforcement office, from respondent counsel, and from a coalition of community and environmental groups. It concluded then that the agreements were administrative penalty orders subject to Board review, that they did not violate the Clean Air Act or the Part 22 procedural rules, and that the penalties followed the statutory penalty criteria. Three more batches followed, bringing the running total to 2,213 ratified agreements.

Because the enforcement office represented that this batch is identical to the agreements already approved and to the model agreement published in the Federal Register, the Board applied its earlier findings and ratified all 353. Each respondent must comply with its agreement, pay the penalty calculated under Paragraph 48 within 30 days, and understands that failing to meet the non-penalty terms voids the releases. The enforcement office was ordered to serve every respondent and file a certificate of service.

The attached penalty calculation table lists all 353 respondents with docket number, name, address, and penalty. Most penalties are $200 or $500. The largest is $100,000, assessed against Tyson Foods, Inc. Many respondents claimed the farm counts behind their penalty as confidential business information, so the table is released in two parts: 294 rows with the farm count columns removed, and 59 rows where the counts are shown.

Decision snapshot

• Cited authorities: Clean Air Act sections 101-618, 42 U.S.C. §§ 7401-7671q; CERCLA sections 101-405, 42 U.S.C. § 9601 et seq.; EPCRA sections 301-330, 42 U.S.C. § 11001 et seq.; 40 C.F.R. §§ 22.4(a) and 22.18(b)(3)
• Outcome: All 353 Consent Agreements ratified and entered as Final Orders; civil penalties assessed per Paragraph 48 of each agreement.
• Key point: The Board treated its January 27, 2006 findings on the first 20 agreements as controlling, because the enforcement office represented this batch to be identical to the 2,213 agreements already ratified and to the published model agreement.
• Scale: Fifth batch under the initiative. Running total after this order is 2,566 ratified agreements.

Full text (EPA EAB public release)

[Filed stamp: FILED AUG -7 2006 / CLERK, ENVIRONMENTAL APPEALS BOARD / INITIALS AAS]

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
)

FINAL ORDER

I. BACKGROUND

On August 4, 2006, the Environmental Appeals Board (“Board”) received for review and ratification three hundred and fifty three Consent Agreements and Proposed Final Orders (“Agreements”)¹ from the EPA’s Office of Enforcement and Compliance Assurance (“OECA”, also referred to as “Complainant”), in accordance with 40 C.F.R. § 22.18(b)(3) of the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation/Termination or Suspension of

 ¹ The Office of Enforcement and Compliance Assurance

provided a list of the three hundred and fifty three companies (or “Respondents”) that entered into these Agreements. See Attachment A to Memorandum from Granta Y. Nakayama on Consent Agreements and Proposed Final Orders for Animal Feeding Operations to Environmental Appeals Board (August 4, 2006). This attachment has been incorporated into this Order as Attachment 1. This Order applies to all the Respondents listed in the Attachment.

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Permits, 40 C.F.R. pt. 22 (“Part 22”).² The 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 these 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).

 ² According to section 22.18(b)(3), settlements or consent

agreements arising from proceedings commenced at EPA Headquarters need the Board’s approval before becoming final Agency action. 40 C.F.R. § 22.18(b)(3) (“No settlement or consent agreement shall dispose of any proceeding under these Consolidated Rules of Practice without a final order from * * *, in a proceeding commenced at EPA Headquarters, the Environmental Appeals Board, ratifying the parties’ consent agreement.”). See also id.
§ 22.4(a) (“The Environmental Appeals Board * * * approves settlements of proceedings under these Consolidated Rules of Practice commenced at EPA Headquarters”).

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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. Participating AFOs would also share responsibility for funding a two-year nationwide emissions monitoring study aimed at the development of methodologies for estimating emissions from AFOs, which in turn would be used to determine participating companies’ regulatory status and compliance under the CAA, CERCLA, and EPCRA. As part of the Agreements, the companies would receive a release and covenant not to sue for potential civil violations of specified requirements of these statutes that may have already occurred or that may occur during the study period.

This is the fifth group of Agreements the Board has received for review and ratification under this initiative. The first group consisted of twenty Agreements, which, after careful examination,³ the Board ratified by Final Order dated January 27,

 ³ On November 18, 2005, after a preliminary examination of

the first group of Agreements and the supporting documentation OECA submitted, the Board issued an order identifying various areas that needed clarification and requesting OECA to file a supplemental memorandum answering several questions. The Board also scheduled a hearing inviting OECA and any interested Respondents to address the areas identified in the order. See Order Scheduling Hearing and Requesting Supplemental Information (EAB, Nov. 18, 2005). On December 6, 2005, the Board received a

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2006. See Consent Agreements and Proposed Final Orders for Animal Feeding Operations (EAB, Jan. 27, 2006). In its review of the first twenty Agreements, the Board found that: (1) the Agreements were administrative penalty orders subject to Board review; (2) the Agreements did not violate the Clean Air Act or Part 22; and (3) the penalty amounts set forth in the Agreements followed the applicable statutory penalty criteria and any deviations from EPA’s penalty policies were appropriately explained. Id. 8-34. The Board ratified the second group of Agreements, consisting of seven hundred and two Agreements, on April 17, 2006. See Consent Agreements and Proposed Final Orders for Animal Feeding Operations (EAB, Apr. 17, 2006). The third group, consisting of two hundred eighty-six Agreements, was ratified on May 5, 2006. See Consent Agreements and Proposed

joint request from various community and environmental groups (collectively referred to as “AIR“), seeking, among other things, to file a memorandum to respond to OECA’s supplemental brief and asking to participate at the hearing. By order dated December 8, 2005, the Board granted AIR the opportunity to participate at the hearing. See Order Granting Opportunity to Participate at Hearing and Allocating Time (EAB, Dec. 6, 2005). By a separate order, the Board allowed AIR to file a non-party brief. See Order Denying Motion for Leave to Intervene (EAB, Dec. 8, 2005).

The Board held the hearing on December 13, 2005. OECA, counsel for six of the Respondents, and AIR participated at the hearing. On December 20, 2005, AIR filed a non-party brief responding to OECA’s supplemental brief. On January 6, 2006, OECA and Respondents each filed a response brief to AIR’s non- party brief. Upon consideration of all responsive filings, the Board issued a Final Order on January 27, 2006, ratifying the Agreements.

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Final Orders for Animal Feeding Operations (EAB, May 5, 2006). The fourth group, consisting of one thousand two hundred and five agreements, was ratified by the Board on July 13, 2006. See Consent Agreements and Proposed Final Orders for Animal Feeding Operations (EAB, July 19, 2006). The discussion and findings in these earlier orders apply with equal force to these Agreements as well.

In its transmittal memorandum, OECA represents that the Agreements in this current group are identical to the two thousand two hundred and thirteen Agreements previously ratified by the Board, the model agreement published in the January 31, 2005 Federal Register notice, and the sample Agreement attached to its transmittal memorandum.⁴ The transmittal memorandum further states that each penalty assessed by the Agreements is in accordance with the formula established in Paragraph 48 of the model agreement.⁵

 ⁴ Memorandum on Consent Agreements and Proposed Final Orders

for Animal Feeding Operations from Granta Y. Nakayama to Environmental Appeals Board (August 4, 2006) at 3.

 ⁵ Id. The Board has previously found that this paragraph is

consistent with all applicable statutory penalty criteria and that any deviations from applicable penalty policies are appropriate. See Consent Agreements and Proposed Final Orders for Animal Feeding Operations (EAB, Jan. 27, 2006) at 25-34.

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Upon review, the Board hereby issues the following order.

II. FINAL ORDER

Pursuant to 40 C.F.R. § 22.18(b), the Board issues this Final Order ratifying the Agreement executed by the Complainant and each Respondent listed in Attachment 1 to this Order as submitted to the Board by Complainant on August 4, 2006. Complainant and Respondent have consented to the entry of this Final Order and have agreed to comply with the Agreement. It is hereby ORDERED that:

1. Respondent shall comply with all the terms of the
   Agreement, incorporated herein by reference;

2. Nothing in the Agreement relieves Respondent from
   otherwise complying with the applicable requirements set forth in the CAA, CERCLA, and EPCRA.

3. Respondent is hereby assessed a civil penalty in the sum
   of the amount determined by Paragraph 48 of the Agreement.

4. Respondent shall, within thirty (30) days of the date an
   executed copy of the Agreement is received by the Respondent,

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forward a certified check or money order, payable to the United States Treasurer, in the amount determined by Paragraph 48 of the Agreement to:

 U.S. Environmental Protection Agency
 (Washington, D.C. Hearing Clerk)
 Docket No. [insert Respondent’s case docket number]
 P.O. Box 360277
 Pittsburgh, PA 15251-6277

The check or money order shall bear the notation of the name of the Respondent and the appropriate case docket number. A transmittal letter, indicating Respondent’s name, complete address, and the case docket number must accompany the payment. Respondent shall file a copy of the check and the transmittal letter by mailing the copies to:

 U.S. Mail Address
 Office of Hearing Clerk
 U.S. Environmental Protection Agency
 1200 Pennsylvania Avenue, N.W.
 MC 1900L
 Washington, D.C. 20460-0002

 Courier/FedEx Address
 U.S. EPA Office of the Hearing Clerk
 1099 14th Street, NW
 Suite 350, Franklin Court
 Washington, D.C. 20005

5. Failure to remit the civil penalty assessed under the
   Agreement may subject the Respondent to civil action pursuant to section 113 of the CAA, 42 U.S.C. § 7413, section 109 of CERCLA,

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42 U.S.C. § 9609, and/or section 325 of EPCRA, 42 U.S.C. § 11045, to collect any unpaid portion of the monies owed, together with the interest, handling charges, enforcement expenses, including attorney fees and nonpayment penalties set forth in Paragraphs 51 and 52 of the Agreement.

6. With respect to all requirements of the Agreement except
   for those related to the assessment and payment of penalties in Paragraphs 48-52, failure to comply with these other requirements will void the releases and covenants not to sue granted by the Agreement as provided for in Paragraph 37 of the Agreement.

7. Complainant is ordered to serve each of the Respondents
   listed in Attachment 1. Complainant shall submit to the Board a certificate of service confirming that such service has been made.

So ordered.

ENVIRONMENTAL APPEALS BOARD

Dated: August 7, 2006

By: Edward E. Reich
Environmental Appeals Judge

Attachment 1

Penalty Calculation Table for 353 Respondents

The attachment is released in two parts. In the first part, covering 294 Respondents, the farm count columns have been removed because those Respondents claimed that information as confidential business information. In the second part, covering the remaining 59 Respondents, the farm counts are shown. Penalty amounts are printed in the source document as plain numbers under a column headed “Penalty (in $)” and are transcribed here as printed.

Part 1: farm counts claimed confidential (294 Respondents)

Footnote as printed: “Information contained in the Number of Farms columns has been claimed CBI by the Respondents and has been removed.”

Part 2: farm counts not claimed confidential (59 Respondents)

Footnote as printed: “Information contained in the Number of Farms columns has not been claimed CBI by the Respondents.” The source pages are footed with the date 8/4/2006.

Certificate of Service

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Final Order 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):

Robert A. Kaplan
Bruce Fergusson
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: AUG -7 2006

Annette Duncan
Secretary

[Transcription notes: This document is a scanned paper original with no text layer, so the text above was produced by OCR and proofread against the page images. The attachment pages are landscape scans whose content is rotated ninety degrees relative to the page box, and each table row was read from the page image rather than from an automated cell extraction, because character-level OCR on the individual table cells proved unreliable. Obvious OCR misreads in the order text have been corrected against the page images and against the parallel language in the Board's related orders in this docket: the first caption line scanned as "CBRA-HQ-2005-xx" and is corrected to "CAA-HQ-2005-xx"; the Clean Air Act section range scanned as "1602-618" and the EPCRA range as "361-330", corrected to "101-618" and "301-330"; the hearing date scanned as "December 13, 2008" and is corrected to December 13, 2005, which the surrounding chronology requires; "January 6, 20066" is corrected to January 6, 2006; the Federal Register cite scanned as "76 Fed. Reg. 4959" and is corrected to 70 Fed. Reg. 4958; "(July 12, 200605)" is corrected to (July 12, 2005); the second section heading scanned as "IIT." and is rendered "II." as the sequence requires; the ZIP scanned as "Pittsburgh, PA 18251-6277" is corrected to 15251-6277, "MC 1S00L" to MC 1900L, "Courter/FedEx" to Courier/FedEx, "Pranklin Court" to Franklin Court, and "U.3. Mail Address" to U.S. Mail Address; in the certificate of service the mail code scanned as "(2249a-A)" is corrected to (2248-A), the street number "12060 Pennsylvania" to 1200 Pennsylvania, and the fax number "202-564-0410" to 202-564-0010, each matching the Board's other orders in this matter. Two readings could not be resolved and are left as printed: page 5 states that the fourth group "was ratified by the Board on July 13, 2006" while the accompanying citation to the same order reads "(EAB, July 19, 2006)", and the scan does not settle which digit is correct. Several items are genuine features of the original and are transcribed as printed rather than corrected: the statutory cites "42 U.S.C. §§ 9601-967" and "42 U.S.C. §§ 1101-11050" are both truncated in the source, and "42 U.S.C §§ 7401-7671q" omits the period after the C. In the attachment tables, the following entries are printed as shown and are not typographical corrections by the transcriber: docket 2480 appears as "2430" on its page, though the surrounding sequence 2479 and 2481 fixes the value; "Grand Act IA 50107" for docket 2479, where ZIP 50107 is Grand Junction, Iowa; the four-digit ZIP "Nashville AR 7852"; "Montiallo IN 47960" for docket 2675, where ZIP 47960 is Monticello, Indiana; "Wakanusa IN 46573" for docket 2680, where the town is Wakarusa, Indiana; "Platte SD 52369" for docket 2552, where the Platte, South Dakota ZIP is 57369; "RTM Diary, L.L.C." for docket 2389; and "Williamette Egg Farms, LLC" for docket 2563. Blank farm count cells in Part 2 are blank in the original and are left blank here. The row count was verified against the order's own figure: 294 rows in Part 1 plus 59 rows in Part 2 equals the three hundred and fifty three Agreements the order ratifies, with no duplicate docket numbers.]