Maulsby Farms, LLC (Board decision, October 24, 2008)

Plain-English summary

EPA offered animal feeding operations a consent process addressing potential liabilities under the Clean Air Act, CERCLA, and EPCRA. Maulsby Farms, LLC entered a Consent Agreement that the Environmental Appeals Board reviewed and ratified. The Board ordered Maulsby Farms to comply with the agreement, continue complying with the three statutes, and pay a $200 civil penalty. The order also requires payment within 30 days after Maulsby Farms receives an executed copy of the agreement.

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: The Consent Agreement was ratified, Maulsby Farms was ordered to comply, and a $200 civil penalty was assessed.
• Key point: The EAB ratified the consent agreement after finding that the agreement and penalty followed the applicable administrative and statutory requirements.

Full text (EPA EAB public release)

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

                                  OCT 24 2008
                     Clerk, Environmental Appeals Board
                     INITIALS [illegible]

                                  )

In re: Consent Agreement and ) Consent Agreement and
Final Order ) Final Order
) CAA-HQ-2008-01C
Consent Agreement and Proposed ) CERCLA-HQ-2008-01C
Final Order for Animal Feeding ) EPCRA-HQ-2008-03C
Operations - Maulsby Farms, LLC )
Inc. )
)

                              FINAL ORDER

                         I. BACKGROUND

    On October 16, 2008, the Environmental Appeals Board ("Board") received for review and ratification a Consent Agreement and Proposed Final Order ("Agreement")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.

¹ The same submittal requested that the Board approve changes to forty-one previously ratified Agreements, transfer six of the ratified Agreements, and vacate twenty-four of the Agreements. Memorandum from Granta Y. Nakayama on Consent Agreements and Proposed Final Orders for Animal Feeding Operations to Environmental Appeals Board (Oct. 16, 2008). The Board will rule on these requests in separate orders. Thus, this Order only applies to Maulsby Farms, LLC, hereinafter referred to as "Respondent".

    ("Part 22").² This Agreement is 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).

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").

                                  2

    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.

    The Agreement between OECA and Maulsby Farms, LLC³ (the "Maulsby Agreement") is one of two thousand six hundred and twenty final 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, 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 seven additional groups of varying numbers of Agreements for Board ratification,⁵ and as noted above, has currently ratified a total of two thousand six hundred and twenty final Agreements. The discussion and findings in these earlier orders apply with equal force to this Agreement as well.

³ See supra note 1.

⁴ 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 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. 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 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.

⁵ On April 17, 2006, the Board ratified the second group of Agreements, consisting of seven hundred and two Agreements. 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 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). The seventh group, consisting of fifty-two Agreements was ratified on December 12, 2006.

⁶ Memorandum on Consent Agreements and Proposed Final Orders for Animal Feeding Operations from Granta Y. Nakayama to Environmental Appeals Board (Oct. 16, 2008) at 4-5.

                                  5

    In its transmittal memorandum, OECA represents that the Maulsby Agreement is identical to the agreements the Board previously ratified, the model agreement published in the January 31, 2005 Federal Register notice, and the sample Agreement attached to its transmittal memorandum.⁶ The transmittal memorandum further states that the penalty the Maulsby Agreement assesses is in accordance with the formula established in Paragraph 48 of the model agreement.⁷

⁷ Id. at 5. 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.

    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 Respondent. 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 amount of TWO HUNDRED dollars ($200);

4. Respondent shall, within thirty (30) days of the date an executed copy of the Agreement is received by the Respondent, forward payment in the amount of TWO HUNDRED dollars ($200) via one of the methods described below:

a) Via U.S. Postal Service regular mail of a certified or cashier's check, made payable to the "United States Treasurer," sent to the following address:

U.S. Environmental Protection Agency
Fines and Penalties
Cincinnati Finance Center
P.O. Box 979077
St. Louis, MO 63197-9000

b) Via overnight delivery of a certified or cashier's check, made payable to the "United States Treasurer," sent to the following address:

U.S. Environmental Protection Agency
Fines and Penalties
U.S. Bank
1005 Convention Plaza
Mail Station SL-MO-C2GL
St. Louis, MO 63101

                                  7

    The U.S. Bank customer service contact for both regular mail and overnight delivery is Natalie Pearson, who may be reached at 314) 418-4087.

c) Via electronic funds transfer ("EFT") to the following account:

Federal Reserve Bank of New York
ABA No. 021030004
Account No. 68010727
SWIFT Address = FRNYUS33
33 Liberty Street
New York, NY 10045

Field Tag 4200 of the Fedwire message should read: "D 68010727 Environmental Protection Agency"

The Federal Reserve customer service contact may be reached at (212) 720-5000.

d) Via automatic clearinghouse ("ACH"), also known as Remittance Express ("REX"), to the following account:

PNC Bank
ABA No. 05136706
Environmental Protection Agency
Account 310006
CTX Format
Transaction Code 22 - checking
808 17th Street, NW
Washington, DC 20074

The PNC Bank customer service contact, Jesse White, may be reached at (301) 887-6548.

e) Via on-line payment (from bank account, credit card, debit card), access "www.pay.gov" and enter "sfo 1.1" in the search field. Open the form and complete the required fields.

                                  8

    The Respondent's payment shall include the Respondent's full name and address and the EPA Docket Number of this Consent Agreement (CAA-HQ-2008-01C, CERCLA-HQ-2008-01C, EPCRA-HQ-2008-03C). Respondent shall file a copy of the check or wire transfer by mailing a copy to:

                          U.S. Mail Address
                          Office of the Hearing Clerk
                          U.S. Environmental Protection Agency
                          Mail Code 1900L
                          1200 Pennsylvania Avenue, NW
                          Washington, D.C. 20460-0001

                          OR

                          Courier / FedEx Address
                          U.S. Environmental Protection Agency
                          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, 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 Respondent with a copy of this Order. Complainant shall submit to the Board a certificate of service confirming that such service has been made.

   So ordered.
   
                         ENVIRONMENTAL APPEALS BOARD
   

Dated: 10/24/08 By: [signature]
Edward E. Reich
Environmental Appeals Judge

                                  10

                        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 - Maulsby Farms, LLC, 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

[signature]
Annette Duncan
Secretary