Animal Feeding Operations (Board decision, January 18, 2007)

Plain-English summary

EPA ran a nationwide program letting animal feeding operations sign standard consent agreements to settle possible air and emergency-reporting liability. By December 2006 the Environmental Appeals Board had ratified 2,568 of those agreements across six batches. EPA's Office of Enforcement and Compliance Assurance then reported two kinds of clerical error. First, the civil penalty had been miscalculated for a set of respondents, mostly because the farms themselves had submitted incorrect or ambiguous counts of how many farms they operated and how many were above the large-CAFO size threshold. Second, the same bad information had caused ninety-two agreements to be captioned with the wrong respondent name or the wrong address, often because an integrator or consultant filled out the form in its own name. The Board granted both requests. It amended the penalty amounts set out in Attachment 1, corrected the names and addresses set out in Attachment 2, amended the matching final orders, and ordered EPA to serve every listed respondent and certify that it had done so. Individual penalty changes ranged from a drop of 62,500 dollars for JCT, LLC down to swings of a few hundred dollars, and some penalties went up rather than down.

Decision snapshot

• Cited authorities: Clean Air Act §§ 101-618, 42 U.S.C. §§ 7401-7671q; CERCLA §§ 101-405, 42 U.S.C. § 9601 and following; EPCRA §§ 301-330; and the program notices at 70 Fed. Reg. 4958, 4959 (Jan. 31, 2005) and 70 Fed. Reg. 40016 (July 12, 2005)
• Outcome: Penalty amounts amended and respondent names and addresses corrected; the corresponding final orders were amended accordingly.
• Key point: A ratified consent agreement and its final order can be reopened to fix a miscalculated penalty or a mis-captioned party without disturbing the settlement itself.
• Companion orders: the same December 6, 2006 submittal produced a ratification order dated December 12, 2006 and a vacatur order dated January 17, 2007.

Full text (EPA EAB public release)

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

[Filed stamp]
JAN 18 2007
Clerk, Environmental Appeals Board
INITIALS [illegible]

                                 )

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 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,[1] to approve changes to one hundred and seventy-one of the two thousand five hundred and sixty-eight Consent Agreements ("Agreements") the Board has ratified in the above-captioned matter.[2]

 [1] The same submittal requested that the Board ratify fifty-two other Agreements, transfer responsibility in six of the 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 will rule on the remaining six Agreements in a separate order.

 [2] 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 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); See Consent Agreements and Proposed Final Orders for Animal Feeding Operations (EAB, May 5, 2006) (ratifying 286 agreements); Consent 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).

                                 -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).

                                 -3-

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 five hundred and sixty-eight Agreements set forth the penalty amounts assessed against each of these Respondents.

In its memorandum, OECA represents that the penalty amounts assessed against seventy-nine Respondents were miscalculated.[3] OECA explains that the miscalculated penalty amounts were largely caused by incorrect and ambiguous information submitted by Respondents. OECA also explains that Respondents providing incorrect or ambiguous information also led OECA to incorrectly caption ninety-two Agreements with respect to the Respondents' names and/or addresses.[4] OECA requests that the Board amend the

 [3] OECA provided a table identifying the seventy-nine Respondents, setting forth the new penalty amounts, and explaining the reasons for the penalty change. See Attachment E (Penalty Correction Table) 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.

 [4] OECA also provided a table identifying the ninety-two Agreements with incorrect captions. See Attachment F (Respondent Name and Address Corrections Table) 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 2.

                                 -4-

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 seventy-two 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: 1/18/07 [signature]
Edward E. Reich
Environmental Appeals Judge

                                 -5-

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): 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: JAN 18 2007 [signature]
Annette Duncan
Secretary

Attachment 1

Business Confidentiality Asserted[1]

Penalty Corrections Table

(Attachment 1, page 1 of 6)

 [1] Several Respondents asserted CBI claims over the number of farms submitted under their Agreements -- this information has been removed from this version of the document.

(Attachment 1, page 2 of 6. Same "Business Confidentiality Asserted" heading and same footnote 1.)

(Attachment 1, page 3 of 6. Heading reads "Penalty Corrections Table"[1] with the footnote given below.)

 [1] Information contained in the Justification column has not been claimed CBI by the Respondents.

(Attachment 1, page 4 of 6. Same heading and same footnote 1 as page 3 of 6.)

(Attachment 1, page 5 of 6. Same heading and same footnote 1 as page 3 of 6.)

(Attachment 1, page 6 of 6. Same heading and same footnote 1 as page 3 of 6.)

Attachment 2

Respondent Name and Address Corrections Table

(Attachment 2, page 1 of 7. In the original the Name Correction, Address Correction, From and To columns sit under a single spanning header reading "Corrective Action Required". Each page carries the footer date 11/20/2006.)

(Attachment 2, page 2 of 7)

(Attachment 2, page 3 of 7)

(Attachment 2, page 4 of 7)

(Attachment 2, page 5 of 7)

(Attachment 2, page 6 of 7)

(Attachment 2, page 7 of 7)

[Transcription notes: the released order carries three different counts for the penalty corrections and all three are reproduced as printed. The Background section and footnote 3 say the penalties assessed against "seventy-nine Respondents" were miscalculated; the ORDER section amends "the seventy-two Agreements listed in Attachment 1"; and Attachment 1 as released lists 83 rows across its six pages. Attachment 2 lists 92 rows, matching the "ninety-two Agreements" the Background section describes. Page 2 of the order prints the CERCLA range as "42 U.S.C. §§ 9601-967" and the EPCRA range as "42 U.S.C. §§ 1101-11050"; both were magnified and read directly from the scan and are reproduced exactly as released, each appearing to have dropped a digit in the original. In Attachment 2 the entry for docket 1130 prints the contact name as "Brain Winter", the entry for docket 1533 prints the respondent as "Kempwerth Farms" with a corrected street address of "Kampwerth Rd.", and the entry for docket 1839 prints "Pollmann" in the From column and "Pollman" in the To column; all are transcribed as printed. Docket 0524 and docket 2627 each appear twice in Attachment 2, once for a name correction and once for an address correction. Attachment pages 6 through 18 of the PDF are landscape tables scanned into an upright page box, so their cells were read directly from the page images rather than from OCR output. The signature-block date on the order page is handwritten and reads 1/18/07, matching the January 18, 2007 filing stamp.]