Animal Feeding Operations (Board decision, February 22, 2007)

Plain-English summary

EPA asked the Environmental Appeals Board to transfer responsibility in six consent agreements involving animal feeding operations after the farms were sold. The Board found the supporting documentation acceptable and amended the agreements and Final Orders to identify the new responsible owners. The affected agreements were part of EPA's nationwide program addressing potential Clean Air Act, CERCLA, and EPCRA liabilities and emissions monitoring. A new owner who did not want to assume responsibility, including any unpaid penalty, could ask the Board to vacate the transfer as to that owner within 30 days of receiving the order.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 22.4 and 22.18; 42 U.S.C. §§ 7413, 9609, and 11045
• Outcome: Responsibility was transferred in six previously ratified agreements, subject to the stated opt-out procedure.
• Key point: The EAB may amend a ratified agreement and Final Order to reflect a new owner when the record supports the transfer.

Full text (EPA EAB public release)

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


                                  )

In re: ) Consent Agree
) Final Order
Consent Agreements and Proposed ) CAA-HQ-2005-xx Final Orders for Animal Feeding ) CERCLA-HQ-2005-xx Operations ) EPCRA-HQ-2005-xx
1

              ORDER TRANSFERRING RESPONSIBILITY


                        I.   BACKGROUND

 On December 6 , 2006, 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,' the transferring of responsibility in six of the two thousand five hundred and sixty- eight Consent Agreements ("Agreements") the Board has ratified in the above-captioned matter.'

   The same submittal requested that the Board ratify fifty-two

other Agreements, approve changes to one hundred and seventy-one previously ratified Agreements, and vacate nine of the ratified Agreements. Memorandum from Granta Y. Nakayama on Consent Agreements and Proposed Final Orders for Animal Feeding Operations to Environmental Appeals Board (December 6, 2006). The Board ratified the fifty-two Agreements in an order dated December 12, 2006, vacated the nine Agreements in an order dated January 17, 2007, and approved changes to the one hundred and seventy-one previously ratified Agreements in an order dated January 18, 2007.
' AS of December 6, 2006, the Board had ratified six groups of
Agreements consisting of two thousand five hundred and sixty-eight Agreements. See Consent Agreements and Proposed Final Orders for Animal ~eedingOperations (EAB, Jan. 27, 2006) (ratifying 20 agreements); Consent Agreements and Proposed Final Orders for Animal
~eedingoperations (EAB, Apr. 17, 2006) (ratifying 702 agreements); See 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). 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 5 s 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-KnowAct ('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

 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); see 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). 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 companies 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 companiesi 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.

 In its memorandum requesting the transferring of

responsibility in six Agreements, OECA represented that six Respondents informed OECA that they sold their farm(s) after Board approval of their Agreement, and that the new owners wish to assume responsibility for the Agreement. OECA also represented that it contacted the new owners and that they expressed interest in assuming responsibility for these Agreements. Finding no supporting documentation in OECAis submittal package corroborating these representations, the Board issued an order directing OECA to provide written confirmation from the new owners showing that they are indeed interested in assuming responsibility. See Order Requesting Supporting Documentation (EAB, Jan. 19, 2007). On February 9, 2007, OECA complied with the Board's order by submitting the requested documentation. Although the recently submitted documentation evidences the new owners interest in participating in the Agreements, it is not clear from this submittal whether the new owners understood that a penalty is associated with each of these Agreements, and whether they are agreeing to assume responsibility for these penalties. Notwithstanding, the Board finds OECA1s submittal acceptable and, as stated below, grants OECA1s request, but provides the new owners the opportunity to opt out of the Agreements in the event that they were not aware of the penalties associated to each of these agreement^.^

                              11.   ORDER

 Upon consideration of the foregoing, the Board grants OECA1s

request to transfer responsibility, and hereby amends the Agreements listed in the table below and their corresponding Final Orders to reflect the following changes:

0448     Homewood F a r m s           D&M Farm
                                      2 8 Dempsey L a n e
                                      C a s a , AR 7 2 0 2 5




   OECArs submittals do not indicate whether the penalties have

already been paid, mooting this concern. 0487 Conrad Farms Don Davis
1 9 5 3 Highway 5
Knoxville, IA 5 0 1 3 8 (mailing)
Rural Route 1
Powersville, MO 6 4 6 7 2 (site)
0985 Rodney Palla Farms Palla Rosa Farming Co.
5 5 5 5 Houghton Road
Bakersfield, CA 9 3 3 1 3
1662 Schmidt Livestock, Inc. RW Swine Management
1 3 5 0 Allen Ave
Garner, IA 5 0 4 3 8 (mailing)
2 1 6 5 Apple Ave
Ventura, IA 5 0 4 8 2 (site)
2305 Smith Brothers Farms, Nelson Faria
Inc . 1 1 7 9 2 Rd. 1 2 - 5 SW
Royal City, WA 9 9 3 7 5
2399 Hico Property Dairy Uphill Dairy
9 1 0 East FM 2 1 9
Hico, TX 7 6 4 5 7

 Any new owner not interested in assuming responsibility for

their Agreement and the penalty associated with it (if not yet paid) may file a motion within 30 days of receipt of this order requesting the Board that this order be vacated as to them.4

   Documents that are sent through the U.S. Postal Service

(except by Express Mail) must be addressed to the Board's mailing address, which is:
U.S. Environmental Protection Agency
Clerk of the Board, Environmental Appeals Board (MC 1103B)
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460-0001
Documents that are hand-carried in person, delivered via
courier, mailed by Express Mail, or delivered by a non-U.S. Postal service carrier (e-g.,Federal Express or UPS) must be delivered to:
U.S. Environmental Protection Agency
Clerk of the Board, Environmental Appeals Board
(continued.. . )
 In addition, the Board orders Complainant to serve all the

Respondents and new owners listed above and submit to the Board a

certificate of service confirming such service has been made.

 So ordered.


                                  ENVIRONMENTAL APPEALS BOARD

Dated: 2/22 *' Edward E. Reich
Environmental Appeals Judge

  ( . . .continued)
 Colorado Building
 1341 G Street, N.W., Suite 600
 Washington, D.C. 20005
 Documents are "filed" with the Board on the date they are

received by the Clerk.
 CERTIFICATE OF SERVICE

 I hereby certify that copies of the foregoing Order

Transferring Responsibility 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
Washjngton, DC 20460

Dated: ,-.. 2 2 2007
'Fq
Secretary