Animal Feeding Operations (Board decision, December 12, 2006)

Plain-English summary

EPA's Office of Enforcement and Compliance Assurance submitted 52 Consent Agreements and Proposed Final Orders for animal feeding operations. The agreements addressed potential liabilities under the Clean Air Act, CERCLA, and EPCRA and were part of EPA's nationwide animal feeding operations initiative. The Environmental Appeals Board ratified the agreements and ordered each listed respondent to comply with the agreement terms. Each respondent was assessed the civil penalty determined under paragraph 48, with the penalty calculation tables included in the order's attachment. The Board also noted that the submission separately requested changes to 186 previously approved agreements, including nine requested vacaturs, but said those matters would be addressed in a separate order.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 22.18(b)(3), 22.18(b), and 22.4(a); 42 U.S.C. §§ 7413, 9609, and 11045
• Outcome: Fifty-two Consent Agreements were ratified, compliance was ordered, and the paragraph-48 civil penalties were assessed.
• Key point: The EAB ratified a large group of animal feeding operations settlements under the same consent-agreement and penalty framework it had previously approved.

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

                          FINAL ORDER

                     I.    BACKGROUND


 On December 6, 2006, the Environmental Appeals Board

("Board") received for review and ratification fifty-two 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 Permits, 40 C.F.R. pt. 22

   The Office of Enforcement and Compliance Assurance

provided a list of the fifty-two 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 (December 6, 2006). This attachment has been incorporated into this Order as Attachment 1. This Order applies to all the Respondents listed in the Attachment.

 The same submittal also requested that the Board approve

changes made to one hundred and eighty-six Agreements previously approved, including vacating nine of those Agreements. Id. The Board will rule on these Agreements in a separate order. ("Part 22").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).

  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) (\TheEnvironmental Appeals Board * * * approves settlements of proceedings under these Consolidated Rules of Practice commenced at EPA Headquarters"). 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 seventh 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,⁴
the Board ratified by Final Order dated January 27,

   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
(continued.. . )
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. After the first group of twenty

Agreements, the Board has received six additional groups of

varying numbers of Agreements for Board ratification. On April

17, 2006, the Board ratified the second group of Agreements,

consisting of seven hundred and two Agreements. See Consent

 3 (   . . .continued)

(EAB, Nov. 18, 2005). On December 6, 2005, the Board received a joint request from various community and environmental groups (collectively referred to as "AIR), seeking, among other things, to file a memorandum to respond to OECA1s 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. 8, 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 OECA1s 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 . 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 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 19, 2006. See Consent Agreements

and Proposed Final Orders for Animal Feeding Operations (EAB,

July 19, 2006). The fifth group, consisting of three hundred and

fifty-three Agreements, was ratified on August 7, 2006. See

Consent Agreements and Proposed Final Orders for Animal Feeding

Operations (EAB, Aug. 7, 2006). On August 16, 2006, the Board

received the sixth group, which consisted of two Agreements. The

Board ratified these two Agreements in separate orders; one order

was issued on August 17, 2006, see Consent Agreement and Proposed

Final Order for Animal Feeding Operations - Foster Brothers Farm,

Inc. (EAB, Aug. 17, 2006), the other one was issued on August 21,

2006, see Consent Agreement and Proposed Final Order for Animal

Feeding Operations - Seaboard Farms LP (EAB, Aug. 21, 2006).

Currently, the Board has ratified a total of two thousand five

hundred and sixty-eight final Agreements. 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 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.~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

 Upon review, the Board hereby issues the following order.



                    II.   F I N A L 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 December 6, 2006.

Complainant and Respondent have consented to the entry of this

   Memorandum on Consent Agreements and Proposed Final Orders

for Animal Feeding Operations from Granta Y. Nakayama to Environmental Appeals Board (December 6, 2006) at 4.

   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. 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;
1

 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,

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. 20460-0001


      Courier/FedEx Address
      U.S. EPA Office of the Hearing Clerk
      1099 14th Street, N.W.
      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,

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: 12/12/06 Edward E. Reich
Environmental Appeals Judge
 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




                                    Secretary

Attachment 1

Business Confidentiality Asserted¹

Penalty Calculation Table for 52 Respondents

Business Confidentiality Asserted'
Penalty Calculation Table for 52 Respondents
pee i oe ee | com | ome | ove1| | Penalty|
Ce cate oe eho 20 |e UT eo | ee | ae [aa (ns)
| 2699 |KDFarms [28400 4t0thst. [Rolfe, A50581— J A | P2000
| 2701 |BremcoFarms 07914 Co Road. 66A [New Bremen, OH 45869 | OH [ [T2000
| 2702 |DRSG Partnership | 15959 730th Street—[Cresco, A52136 | A TT 00
| 2703 [Paris Foods, Inc. —*|15002 140th Street [Cresco, AS21396 | A [T3000
[27047 |Meirek Enterprises ULC [3324 100m St___[Protivin, 62165 | A_| [| | | | — 00]
|2705 [QuiveraPork [312 NorthB Street_[Washington, KS 66068 [ KS [200
2706 [Rolling Hills Pork [312 North B Street_ | Washington, KS 66068 [KS [600]
[itor [Ransss Sele! Pont —|ste Nert'B Srect—— [washer RS eevee [ke [- | boo a eT
| 2741 |Ilini Hi-Tech, Inc. [17469 Baseline Road [Kingston 160745 Te [ees [i500]
| 2712 [Flecha Dairy [PO Box 460 Dexter, NM 88230 NM J 500
[2715 [Rindler Farm [1480 Wourms Rd,____ Ft. Recovery, OH 46846| OH | || | | 600]
| 2716 [S&JFarmCom. ([8617ESR26 Portland, IN47377 | IN TT T5000)
| 2717 [MurcrestFarms, LLC [31721NYSRt12__ [Copenhagen NY 13626 | Ny [ [TT 200
| 2718 |EdealDairy [147 AEdealRoad |Lostunas, NMe703T | NM[ TT 000
2720 |Patterson Farms, Inc. [Townline Road |Auburn, NY 13021 NY
| 2725 [Stokes McKoy Farm [4175 HoneycuttRoad|[Salemburg, NC 28385 | NC [TT 500
| 2728 |Heritage Dairy 650CRF Clovis, NMB101 NM PO 00}
| 2729 [StarerFarmsinc. [PO Box85 __|Hofiman, MNS6330_ | MN [TTT T2000]
| 2730 [Diller Pullet Farm [872 Union CityRd [Ft Recovery, OH 45846 | OH [TT 200
|2731 IA Quality Pullets, LLP [4275 225th Avenue [Sioux Rapids A50585 | IA [TT 500}
[27348 [Edi Sciiattersasssemmeens| 12647/SR(69 aes [Paulding 1 OH 4507.0 eens | Olle [seu eeeeen | sumeeeeery| eueeeeee |emeees|e881200|
| 2736 |M-MSwineLLC [2302 RiverRoad [Algona AS50517 | A [TT 5 00)
| 2737 [Daybreak Foods, Inc. |P.0.Box800 [Lake Mills, wis3551 | Wh [T3500]
= [_2738 [Tim Friedman Farm [5453 Vine Street [Dubois IN47527 TIN [TT 500)
=
5
is
3 Sanitized ‘Information contained in the Number of Farms columns has been claimed CBI by the Respondents and has been removed. page 1 of 2 Ed
=

Business Confidentiality Asserted"
Penalty Calculation Table for 52 Respondents
i se a ee
Pe ee eee
ee ae ee
Ue a oe ee
Linn Grove Pulleis Ino [876 440th Street rrr——<“i—esO—OSOC—S—SCSsMshsTeshs_eseeese 5135 Live Oak Hog 2747__|Ernest Byrd Hog Farm Company Road Pink Hill, NC 28572, NC 200) 2748_[Sperry Farms, Inc. 11420 Sperry Road Atlantic, PA 16111 [PA| | || | 1000] DeGroot Dairy (Barnes II

2749 |Dairy) 5520 W Delaware Avenue|Visalia, CA 93291 CA
[Stephenson Hog Farm [3794 Hwy. 90 Vienna, GA 31092 [GA 200)

2746_ [Maple Brook Farms, LLC |19646 SR 292 Ridgeway, OH 43345 | OH} |_| | | —200|

2750 1352 250th Street Webster City, AS50595 [A [T7500] Daybreak Dail PO Box 170 Mesquite, NM 88048) 2) John Fortkamp 14574 State Rt.49 Ft.Recovery,OH45846 | OH|{ | | SCT SCT S500}

2753 _|Appell Dair 2602 Knox Road 1900 E Altona, IL 61414 ee |e 500) Sanitized ‘Information contained in the Number of Farms columns has been claimed CBI by the Respondents and has been removed. page 2 of 2

Penalty Calculation Table for 52 Respondents‘

Le ae ae
a ee ee a
Pe ee ee
[egiet| RespondentName | Addiess | City State.2ip, Stato) 280% [rmeamtsul tage | Te "ng bed ee ee Ue oe a si aa 13859 Roberts Road [Sunbury, OH 43074 oH fT 200 (Girard Bros LLC 13359 P Road Osceola, NE 68651 EE Ee) Eee) eee ee Be) IDan and Peggy Comstock 21779 Hwy MM. Versailles, MO 65084 IMO [| if | { ‘4{ 200; ILWN Properties, L.P. P.O. Box 1285 Manhattan, KS 66505 a
[2721 |Welch Farm 10088 New Hope Rd.|Galt, CA 95632 Cl es [2] 1000} Rover's Farm inc. [396 North Farm Rd. [Chazy, NY 12927 A | | Lloyd Brabacker 561 Brown Rd Meyerstown, PA 17087|PA_| | 1| | 1} 509] ("2724 [Adam Robson Farm 711554 Pucker Street [Niles, MI 49120, i =) a a ee 2726_[Van Eaton Pork 3369 DeltaAvenue [Prescott, IA 50859 AT 500)
[Sunrise Farms-Ken Beers 1236 Newport Rd uricarimnons Ati 020 cases) Ae | areca | cece m0] | ee | e500}
[Wuebker Farm 2129 Wuebker Road [Maria Stein,OH45860 [OH | | Saf S|, St = Ed Raszkowski 7499 E. 1000N. [Union City, IN 47390 wf ff
: The Pullet Connection, Inc. [28595 703th Avenue _|Danube, MN 56230 [MAN | eee yt 500} Jerry Post Pullets 2758 Fox Road Fort Recovery, OH 45846 [OH [| 1] | 1] 500] 11/15/2006 ‘Information contained in the Number of Farms columns has not been claimed CBI by the Respondents. page 1 of 1