Animal Feeding Operations Consent Agreement and Final Order, 4958-4977 [05-1536]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 19 (Monday, January 31, 2005)]
[Notices]
[Pages 4958-4977]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-1536]



[[Page 4957]]

-----------------------------------------------------------------------

Part IV





Environmental Protection Agency





-----------------------------------------------------------------------



Animal Feeding Operations Consent Agreement and Final Order; Notice

Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / 
Notices

[[Page 4958]]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[OAR-2004-0237; FRL-7864-4]


Animal Feeding Operations Consent Agreement and Final Order

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of consent agreement and final order, and request for 
public comment.

-----------------------------------------------------------------------

SUMMARY: The EPA is offering animal feeding operations (AFOs) an 
opportunity to sign a voluntary consent agreement and final order 
(henceforth referred to as the ``Air Compliance Agreement'' or the 
``Agreement''). A copy of the Air Compliance Agreement is attached as 
an Appendix to this notice. The sign-up period for eligible AFOs to 
sign the Agreement will run for 90 days from the date of this notice.
    AFOs that choose to sign the Air Compliance Agreement will share 
responsibility for funding an extensive, nationwide emissions 
monitoring study. The monitoring study will lead to the development of 
methodologies for estimating emissions from AFOs and will help AFOs to 
determine and comply with their regulatory responsibilities under the 
Clean Air Act (CAA); the Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA); and the Emergency Planning and 
Community Right-To-Know Act (EPCRA). Once applicable emission 
estimating methodologies have been published by EPA, the Agreement will 
also require each participating AFO to certify that it is in compliance 
with all relevant requirements of the CAA, CERCLA and EPCRA.
    EPA is requesting comment on the Air Compliance Agreement, with 
particular emphasis on implementation of the Agreement. All comments 
should be submitted within 30 days of the date of this notice.

DATES: Comments must be received on or before March 2, 2005.

ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2004-
0237, by one of the following methods:
     Agency Web site: https://www.epa.gov/edocket. EDOCKET, 
EPA's electronic public docket and comment system, is EPA's preferred 
method for receiving comments. Follow the on-line instructions for 
submitting comments.
     E-mail: a-and-r-docket@epa.gov.
     Fax: (202) 566-1741.
     Mail: Air Docket, Environmental Protection Agency, 
Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Please include a total of two copies.
     Hand Delivery: Environmental Protection Agency, 1301 
Constitution Avenue, NW., Room B102, Washington, DC 20460. Such 
deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. OAR-2004-0237. 
The EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at http:/
/www.epa.gov/edocket, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the Federal regulations.gov Web sites are 
``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through EDOCKET or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the EDOCKET index 
at https://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other information, 
such as copyrighted materials, is not placed on the Internet and will 
be publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy form at Docket ID No. OAR-2004-0237, EPA/DC, EPA West, Room B102, 
1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Air Docket is (202) 
566-1742.

FOR FURTHER INFORMATION CONTACT: For information on the Air Compliance 
Agreement, contact Mr. Bruce Fergusson, Special Litigation and Projects 
Division, Office of Enforcement and Compliance Assurance, U.S. EPA, 
Ariel Rios Building, Washington, DC 20460, telephone number (202) 564-
1261, fax number (202) 564-0010, and electronic mail: 
fergusson.bruce@epa.gov.
    For information on the monitoring study, contact Ms. Sharon Nizich, 
Organic Chemicals Group, Emission Standards Division, Office of Air 
Quality Planning and Standards, U.S. EPA, Research Triangle Park, NC 
27711, telephone number (919) 541-2825, fax number (919) 541-3470, and 
electronic mail: nizich.sharon@epa.gov.

SUPPLEMENTARY INFORMATION:
    Overview of the Air Compliance Agreement: By offering AFOs this 
opportunity to sign an Air Compliance Agreement, the Agency will help 
participating AFOs pool their resources to lower the cost of measuring 
emissions and ensure that they comply with all applicable environmental 
regulations in the shortest amount of time. While EPA has the authority 
on a case-by-case basis to require AFOs to monitor their emissions and 
to come into compliance with applicable Federal laws, that process has 
proven to be difficult and time consuming, partly due to the 
uncertainty regarding emissions from AFOs, which was reiterated in a 
recent report by the National Academy of Sciences (NAS).\1\ Moreover, 
even when EPA has reached a successful resolution of an enforcement 
case, only the facilities that are the subject of the enforcement 
action were directly affected. Consequently, EPA believes that the Air 
Compliance Agreement will be the quickest and most effective way to 
address the current uncertainty regarding emissions from AFOs and to 
bring all participating AFOs into compliance with all applicable 
regulatory requirements.
---------------------------------------------------------------------------

    \1\ NAS, ``Air Emissions From Animal Feeding Operations: Current 
Knowledge, Future Needs,'' National Research Council, 2003.
---------------------------------------------------------------------------

    The Air Compliance Agreement will not affect in any way EPA's 
ability to respond to an imminent and substantial endangerment to 
public health, welfare or the environment. Nor will participation in 
the Agreement provide protection for criminal violations of

[[Page 4959]]

environmental laws. Finally, the Air Compliance Agreement is not 
intended to affect compliance by AFOs with any requirements of the 
Clean Water Act (CWA) and the implementing regulations applicable to 
concentrated animal feeding operations.
    AFOs that choose not to sign an Air Compliance Agreement will be 
subject to potential enforcement action by the Federal Government for 
any CAA, CERCLA, or EPCRA violations, as would any AFO that signs the 
Agreement but later drops out by not complying with the terms of the 
Agreement.
    EPA recognizes that AFOs can have a negative impact on nearby 
residents, particularly with respect to objectionable odors and other 
nuisance problems that can affect their quality of life. EPA also 
recognizes that concerns have been raised recently regarding the 
possible health impacts from AFO emissions. It is important to note, 
however, that under existing Federal laws, EPA has an important but 
limited role in dealing with many of the potential impacts from AFOs. 
To the extent that certain pollutants from AFOs are regulated under the 
CAA and are emitted in quantities that exceed regulatory thresholds, 
EPA can and will require AFOs to comply with all applicable CAA 
requirements, including limiting those emissions where appropriate. 
However, many of the negative impacts resulting from AFOs, such as 
odor, are not currently regulated under Federal laws, but are addressed 
by State and local laws. EPA supports local and State efforts in those 
areas and relies on them to enforce their State and local laws for odor 
and nuisance problems, health code violations, and zoning challenges 
posed by AFOs. The Air Compliance Agreement will explicitly require 
participants to comply with final State nuisance orders. In addition, 
the Agreement will not affect the ability of States or citizens to 
enforce compliance with nonfederally enforceable State laws, existing 
or future, that are applicable to AFOs.
    Sources may also emit fugitive emissions, but this notice does not 
address fugitive emissions. Guidance on fugitive emissions will be 
issued along with other appropriate guidance/and or regulations after 
the conclusion of the monitoring study.
    Relevant Air Pollutants and Applicable Laws: AFOs emit several air 
pollutants, including ammonia (NH3), hydrogen sulfide 
(H2S), particulate matter (PM), and volatile organic 
compounds (VOC). NH3 and H2S are hazardous 
substances under CERCLA and EPCRA, and the release of these gases may 
need to be reported under CERCLA and EPCRA if released in sufficient 
quantities. H2S, PM, and VOC are all regulated under the CAA 
and subject to various requirements under that statute and the 
implementing Federal and State rules and regulations. Emissions of 
these pollutants come from many different areas at AFOs, including 
animal housing structures (e.g., barns, covered feed lots) and manure 
storage areas (e.g., lagoons, covered manure piles). An important issue 
that arises under the CAA is whether emissions from different areas at 
AFOs should be treated as fugitive or nonfugitive. The Agency plans to 
issue regulations and/or guidance on this issue after the conclusion of 
the monitoring study.
    Applicability: The Air Compliance Agreement is being offered to 
AFOs in the egg, broiler chicken, turkey, dairy and swine industries 
that meet the definition of an AFO under the CWA. The Agreement will 
address emissions coming from buildings or structures that house 
agricultural livestock, and from lagoons or similar structures that are 
used for storage and/or treatment of agricultural livestock waste at 
participating AFOs. The Air Compliance Agreement will not address AFOs 
that only have open-air feedlots, such as cattle feedlots. Nor will it 
address emissions from sources other than animal housing structures or 
agricultural livestock waste storage and treatment units.
    Major Terms of the Air Compliance Agreement: The Air Compliance 
Agreement establishes specific obligations that will apply to all 
participating AFOs and includes limited, conditional covenants not to 
sue and liability releases from EPA. AFOs that choose to participate 
will agree to pay a civil penalty which is based on the size of the 
AFO. The penalty ranges from $200 to $1,000 per AFO, depending upon the 
number of animals at the AFO. The threshold ranges depend upon the 
species of animal. The total penalty is capped and ranges from $10,000 
for a participant having 10 or fewer farms to $100,000 for a 
participant having over 200 farms. Participation in the Air Compliance 
Agreement and payment of a penalty will not be an admission of 
liability by an AFO.
    In addition, participating AFOs, except for certain contract 
growers, will be responsible for the payment of approximately $2,500 
per farm into a fund to conduct a nationwide emission monitoring study 
and for making their facilities available for emissions testing under 
the nationwide monitoring study. In general, the monitoring study, 
which is described more fully below and in Attachment B to the Air 
Compliance Agreement (included as an appendix to this notice), will 
undertake over a 2-year period, emissions monitoring at a 
representative sample of animal housing structures and manure storage 
and treatment units across the country. At the end of the monitoring 
study, EPA will use the data from the monitoring study and any other 
relevant, available data to develop emissions estimating methodologies. 
These emissions estimating methodologies will then be used by the AFO 
industry to estimate their annual emissions.
    EPA's publication of the emissions estimating methodologies will 
trigger the obligation of participating AFOs to determine their 
emissions and to comply with all applicable CAA requirements, including 
applying for all required permits, and to make any requisite hazardous 
release notices under CERCLA and EPCRA. EPA expects to apply these 
emission estimating methodologies to all AFOs, whether or not they 
participate in the Air Compliance Agreement.
    Please note that the Air Compliance Agreement does not define the 
scope of the term ``source'' as it relates to animal agriculture and 
farm activities. The Agency plans to provide guidance on this issue at 
the conclusion of the monitoring study.
    Any AFO that fails to comply with the requirements as described 
will not receive the limited conditional release and covenant not to 
sue described later in this notice. Any conditional release and 
covenant not to sue offered as part of the Air Compliance Agreement 
will be revoked, and the AFO will remain liable for all past and 
ongoing violations.
    AFOs that choose to participate in the Air Compliance Agreement and 
meet all its conditions will receive from EPA a limited release and 
covenant not to sue from liability for certain past and on-going CAA, 
CERCLA and EPCRA violations. The release and covenant not to sue will 
cover an AFO's liability for failing to comply with certain provisions 
of CERCLA, EPCRA, and the CAA up to the time the AFO reports its 
releases under CERCLA or EPCRA and applies for and receives the 
requisite CAA permits.
    Participating AFOs will also be obligated to comply with all final 
actions and final orders issued by the State or local authority that 
address a nuisance arising from air emissions at the AFO. Failure to 
comply with the final action or order to correct the nuisance will void 
the conditional release and covenant not to sue offered in the Air 
Compliance Agreement.

[[Page 4960]]

    Some very large AFOs will be required to immediately report 
estimated releases of NH3, solely for purposes of the Air 
Compliance Agreement and not for purposes of reporting under CERCLA or 
EPCRA.
    Finally, AFOs that install waste-to-energy systems that convert 
animal manure into electricity will get an extra 180 days to apply for 
CAA permits and to make the requisite hazardous release notifications 
under CERCLA and EPCRA.
    Terms Applicable to Contract Growers and Integrators: Many AFOs, 
particularly in the swine, broiler chicken, and turkey industry, raise 
livestock for separate corporations that usually own the animals, 
provide feed and medical services, and that process and market the meat 
products. In those cases, the AFO that grows the animals is referred to 
as a ``contract grower,'' and the separate corporation that processes 
and markets the meat products is referred to as an ``integrator.''
    The Air Compliance Agreement includes provisions that will allow 
both integrators and contract growers to participate. Among other 
things, a contract grower will not be responsible for the payment of 
monies into the monitoring fund if an integrator has already agreed to 
be responsible for the payment of such monies. The contract grower/
integrator provisions in the Agreement will also apply to AFOs that 
produce milk under contract with a cooperative or that supply heifers 
to dairy herds owned by a separate entity.
    Emissions Monitoring Study: The purpose of the monitoring study is 
to: collect data and aggregate it with appropriate existing emissions 
data; analyze the monitoring results; and create tools (e.g., tables 
and/or emission models) that AFOs could use to determine whether they 
emit pollutants at levels that require them to apply for permits under 
the CAA or submit notifications under CERCLA or EPCRA. The monitoring 
study is designed to generate scientifically credible data to provide 
for the characterization of emissions from all major types of AFOs in 
all geographic areas where they are located. To provide a framework for 
the monitoring study and to generate a comprehensive field sampling 
plan from representative farms in the United States, a protocol 
(Attachment B to the Air Compliance Agreement, included as part of the 
Appendix to this notice) was developed through the collaborative 
efforts of industry experts, university scientists, government 
scientists, and other stakeholders knowledgeable in the field. Although 
the protocol development was facilitated by the U.S. EPA and the U.S. 
Department of Agriculture (USDA), it represents the opinions of the 
scientists, government experts, and stakeholders involved. In addition, 
there was extensive internal review and input by representatives from 
U.S. EPA's Office of Enforcement and Compliance Assurance, Office of 
Air and Radiation, and Office of Research and Development.
    As recommended in the NAS 2003 report, ``Air Emissions From Animal 
Feeding Operations,'' and paraphrased here, EPA and USDA should for the 
short term, initiate and conduct a coordinated research program 
designed to produce a scientifically sound basis for measuring and 
estimating air emissions from AFOs. Specific recommendations being 
addressed with the protocol that were discussed in the NAS 2002 Interim 
Report \2\ are related to direct measurements at sample farms by 
utilizing information on the relationships between air emissions and 
animal types, nutrient outputs, and manure handling practices; 
conducting studies to evaluate the extent to which ambient atmospheric 
concentrations of the various pollutants of interest are consistent 
with estimated emissions; and using scientifically sound and practical 
protocols for measuring pollutant concentration emission rates. EPA's 
longer-term strategy involves additional recommendations from the NAS 
which entail developing a process-based model that considers the entire 
animal production process. The data collected in the monitoring study 
will lay the groundwork for developing these more process-related 
emission estimates. However, as with any large and complex effort, this 
work must be conducted over a period of years.
---------------------------------------------------------------------------

    \2\ NAS, ``The Scientific Basis For Estimating Air Emissions 
From Animal Feeding Operations.'' Interim Report, National Research 
Council, 2002.
---------------------------------------------------------------------------

    Under the Air Compliance Agreement, the participating AFOs will set 
up an umbrella nonprofit entity (referred to here as the nonprofit 
organization or NPO) to handle the funds contributed by the individual 
participating facilities. The NPO will then subcontract to a Science 
Advisor and independent monitoring contractor (the ``IMC'') to run the 
nationwide monitoring study. The IMC will submit a proposed plan for 
review and approval by EPA that is consistent with the monitoring 
protocol outlined in Attachment B to the Air Compliance Agreement. The 
proposed plan would also include a list of recommended candidate 
facilities to be monitored.
    EPA will review and approve or disapprove the proposed plan within 
30 days of receiving it from the IMC. If the proposed plan is 
disapproved, EPA will specifically state why the plan is being 
disapproved and what changes need to be made. The IMC will then have 30 
days to modify the proposed plan to address the changes required by EPA 
and to submit the modified plan to EPA for review and approval. Once 
the plan is approved, all participating AFOs, through the NPO, will be 
obligated to fully fund the nationwide emission monitoring study and to 
establish a binding contract with the IMC to carry out the approved 
plan.
    Monitoring will be conducted pursuant to EPA protocols and be done 
by a fleet of mobile labs purchased by the NPO and overseen by the IMC 
hired to run the study. Emissions at the facilities will be monitored 
at both buildings and waste lagoons and will include H2S, 
VOC, PM and NH3. Monitoring will occur at facilities across 
the country to get a representative sample of the facility types in 
major geographic regions. EPA expects that the monitoring will begin in 
2005 and continue for 2 years. Two years of monitoring is the minimum 
time needed because emissions from AFOs can vary greatly over the 
course of a year and may vary significantly from year to year. The data 
generated during the monitoring study will be made fully available to 
the general public.
    Technical experts on emissions monitoring at EPA and from a number 
of universities believe that monitoring the farms described in the 
attached protocol will provide sufficient data to get a valid sample 
that is representative of the vast majority of the participating AFOs. 
Significantly increasing the number of farms to be monitored would be 
prohibitively expensive and would not add substantially to the value of 
the data collected.
    Throughout the course of the monitoring study, EPA will review and 
analyze the data as they are generated. EPA will use the data generated 
from the monitoring and all other available, relevant data to develop 
methodologies for estimating annual emissions from swine, dairy, egg 
laying, broiler chicken, and turkey AFOs. Within 18 months after the 
conclusion of the nationwide emissions monitoring study, EPA expects 
that it will publish on its Web site, on a rolling basis as work is 
completed, the methodologies for estimating emissions for the vast 
majority of AFOs in the eligible animal groups.

[[Page 4961]]

Relationship Between the Air Compliance Agreement and Other Actions the 
Agency May Take To Address AFO Air Emissions

    In September 2001, EPA's Office of Air and Radiation (OAR) and the 
USDA jointly commissioned the NAS to prepare a report recommending 
approaches for characterizing emission profiles and identifying 
emission mitigation techniques, including:
     Review industry characterization and use of model farms;
     Evaluate emission factors, measurement methods, and 
modeling approaches;
     Recommend fate and transport methodologies;
     Identify mitigation technologies and management practices; 
and
     Identify critical research needs.
    The NAS concluded its report in 2003 with a number of key findings, 
some of which are quoted here from the report:

    * * * EPA and USDA should use process-based mathematical models 
with mass balance constraints for nitrogen-containing compounds, 
methane, and hydrogen sulfide to identify, estimate, and guide 
management changes that decrease emissions for regulatory and 
management programs.
    * * * measurement protocols, control strategies and management 
techniques must be emission and scale specific * * *
    * * * There is a general paucity of credible scientific 
information on the effects of mitigation technologies on 
concentrations, rates, and fates of air emissions from AFOs. 
However, the implementation of technically and economically feasible 
management practices (e.g., manure incorporation into soil) designed 
to decrease emissions should not be delayed.
    * * * scientifically sound and practical protocols for measuring 
air concentrations, emission rates, and fates are needed for the 
various elements (nitrogen, carbon, sulfur), compounds (e.g., 
ammonia [NH3], CH4, H2S) and 
particulate matter.

    The EPA is planning to proceed in a manner that is consistent with 
the recommendations of the NAS. EPA's plan is focused on the 
achievement of real environmental benefits to protect public health and 
the environment while supporting a sustainable agricultural sector. EPA 
plans to continue to work with USDA and others to:
     Collect data and information related to operations at 
AFOs;
     Determine emissions from individual AFOs; and
     Identify appropriate regulatory and nonregulatory (e.g., 
best management practices, environmental management systems, etc.) 
responses for each farm.
    The Air Compliance Agreement with individual AFOs is an integral 
component of the data collection and emissions determinations of this 
effort. As discussed earlier in this notice, as part of the Air 
Compliance Agreement, AFOs will fund a 2-year nationwide emissions 
monitoring study to gather emissions data and mass balance information 
from AFOs. It is anticipated that emissions monitoring will be 
conducted at farms that represent the major animal sectors, types of 
operations, and different geographic locations.
    The information gathered during the emissions monitoring study will 
be used to more adequately characterize emissions from individual 
farms. Individual farm emissions estimates will be used, along with 
other relevant information, to determine appropriate regulatory and 
nonregulatory responses to address the emissions. As recommended in the 
NAS report, EPA will then move forward to develop a process-based model 
which entails considering the entire animal feeding process. Similar to 
other large and complex efforts, the work must be conducted in stages 
over a period of years. The monitoring study, and the resulting 
emission estimating methodology, is a critical first step in this 
multiyear effort.
    Conclusion: EPA believes that the Air Compliance Agreement will be 
the quickest and most effective way to address the current 
uncertainties regarding air emissions from AFOs and to bring the entire 
AFO industry into compliance with the CAA, section 103 of CERCLA, and 
section 304 of EPCRA. The Air Compliance Agreement's terms, conditions, 
and protections will be available only to those facilities that are 
eligible, that elect to participate, and that comply with the terms of 
the agreement. As appropriate, nonparticipants, and those who sign up 
but later drop out due to noncompliance with the Air Compliance 
Agreement, will be subject to enforcement actions in which significant 
penalties and injunctive relief could be sought for violations of the 
CAA, section 103 of CERCLA, and section 304 of EPCRA.
    This notice describes an Air Compliance Agreement that EPA is 
offering certain types of AFOs and requests public comment on that 
Agreement. No new rights or obligations on behalf of EPA or any other 
party are created beyond what is contained in a fully executed and 
approved Agreement.
    This notice provides a general description of the Air Compliance 
Agreement. Interested parties are encouraged to carefully read the Air 
Compliance Agreement and its Attachments (included as an Appendix to 
this notice) to fully understand what is being offered to AFOs. To the 
extent that provisions of the Air Compliance Agreement and its 
Attachments are inconsistent with this notice, the provisions of the 
Agreement will prevail.
    Participation in the Air Compliance Agreement is voluntary. The 
Agreement is not intended to affect in any way EPA's ability to respond 
to an imminent and substantial endangerment to public health, welfare 
or the environment. Participation in the Agreement will not provide 
protection for criminal violations of environmental laws. In addition, 
the Agreement is not intended to affect the ability of States or 
citizens to enforce compliance with nonfederally enforceable State laws 
applicable to AFOs.
    EPA recognizes that State and local agencies are undertaking 
efforts to improve emissions estimation methodologies for AFOs. EPA 
supports continued action to improve emissions information for all 
source categories and will use the best information available as we 
implement our programs. EPA also supports State and local efforts to 
demonstrate improved emissions reduction strategies and recognizes the 
value of State or local control requirements tailored to the needs of 
specific geographic areas. For these reasons, nothing in the Air 
Compliance Agreement will be used to delay or otherwise interfere with 
the implementation and enforcement of existing State statutes that 
eliminate exemptions to CAA requirements for agricultural sources of 
air pollution.
    Request for Public Comment: As stated above, EPA is requesting 
comment on the Air Compliance Agreement, with particular emphasis on 
implementation of the Agreement. All comments should be submitted 
within 30 days of the date of this notice.
    Earlier drafts of the Air Compliance Agreement have been circulated 
publicly. EPA requested and received comments on those drafts from, 
among others, representatives of state governments, environmental 
groups, local citizens' groups, and the AFO industry. Those comments 
were considered, and, where appropriate, changes were made to the draft 
agreement. In addition, the emission monitoring protocol for the 
nationwide emission monitoring program (Attachment B to the Agreement, 
included in the Appendix to this notice) was developed by a group of 30 
leaders in the area of AFO air emissions, including scientists from 
EPA, the AFO industry, environmental groups, and several colleges and 
universities.

[[Page 4962]]

    Sign Up Procedures: To participate in the Air Compliance Agreement, 
eligible AFOs should sign the Air Compliance Agreement and fill out 
Attachment A to the Agreement (the Farm and Emission Unit Information 
Sheets). A copy of the Agreement and all attachments can be downloaded 
from EPA's Web site at: https://www.epa.gov. The signed Agreement should 
be returned to EPA during the 90-day sign-up period that commences on 
the date of this notice. EPA will not sign the Agreement and forward it 
to EPA's Environmental Appeals Board for approval until after the 
conclusion of the public comment period.
    Owners and operators of AFOs who want to sign Air Compliance 
Agreements with EPA will need to provide all of the following 
information on the Farm and Emission Unit Information Sheets for each 
AFO they would like to be covered by the Compliance Agreement:
     The name and address of the Respondent signing the Air 
Compliance Agreement;
     The name of each facility to be covered by the Agreement;
     The name of the owner and operator of each facility, 
including whether it is a contract grower facility;
     The location of all the covered facilities;
     The animal type and number of animals at each facility;
     The type of animal housing structure and number of 
structures at each facility;
     The type of manure handling system and the number of 
manure storage areas (e.g., manure piles or lagoons) at each facility;
     The capacity and surface area, if applicable, of all 
manure storage areas at each facility; and,
     A description of any emission control technology or 
nontraditional manure treatment systems at each facility.
    Signed Air Compliance Agreements, including all properly filled out 
attachments, should be sent to: Special Litigation and Projects 
Division (2248A), Attn: Air Compliance Agreements, Office of Regulatory 
Enforcement, Office of Enforcement and Compliance Assurance, U.S. EPA, 
1200 Pennsylvania Ave., NW., Washington, DC 20460.
    At the end of the sign-up period, EPA will determine whether a 
sufficient number of AFOs of each species have elected to participate. 
The determination will be based on whether the number of participants 
is sufficient to fully fund the monitoring study and whether the number 
of participants for each type of operation is sufficient to provide a 
representative sample to monitor. If the total number of participants 
is insufficient, EPA will not sign any Air Compliance Agreements and 
will not proceed with the monitoring study. If, however, the total 
number of participants is sufficient but there are an insufficient 
number of AFOs with a particular species or type of operation, EPA may 
decline to sign Air Compliance Agreements with those particular 
operations and decide not to proceed with the monitoring of that type 
of operation. No later than 30 days after the end of the sign-up 
period, EPA will decide whether to proceed with all, part, or none of 
the monitoring study and will sign the Air Compliance Agreements and 
forward them to EPA's Environmental Appeals Board (EAB) for final 
approval.
    Additional Sources of General Information: To find out more about 
compliance with the CAA or section 103 of CERCLA, or EPCRA 304, please 
access the EPA Web site at

https://www.epa.gov/air/oaq_caa.html/ or
https://www.epa.gov/superfund/action/law/cercla.htm.

    Dated: January 21, 2005.
Thomas V. Skinner,
Assistant Administrator for Enforcement.
Jeffrey R. Holmstead,
Assistant Administrator for Air and Radiation.
Appendix 1--Air Compliance Agreement With Attachments A and B; 
Attachment A--Farm Information Sheet; Attachment B--National Air 
Emissions Monitoring Study Protocol

Appendix 1

In the Matter of [Participating Company]; Consent Agreement and Final 
Order; CAA-HQ-2005-XX; CERCLA-HQ-2005-XX; EPCRA-HQ-2005-XX

I. Preliminary Statement

    1. The United States Environmental Protection Agency (EPA) and 
[Participating Company] (Respondent) voluntarily enter into this 
Consent Agreement and Final Order (Agreement) to address emissions 
of air pollutants and hazardous substances from certain animal 
feeding operation(s) that may be subject to requirements of the 
Clean Air Act, the hazardous substance release notification 
provisions of the Comprehensive Environmental Response, Compensation 
and Liability Act (CERCLA) and the emergency notification provisions 
of the Emergency Planning and Community Right-to-Know Act (EPCRA).
    2. The purpose of this Agreement is to ensure that 
[Participating Company] complies with applicable requirements of the 
Clean Air Act and applicable release notification provisions of 
CERCLA and EPCRA. To that end, this Agreement requires 
[Participating Company], among other things, to be responsible for 
the payment of funds towards a two-year national air emissions 
monitoring study that will lead to the development of Emissions-
Estimating Methodologies that will help animal feeding operations 
determine and comply with their regulatory responsibilities under 
the Clean Air Act, CERCLA and EPCRA.
    3. This Agreement is issued pursuant to section 113 of the Clean 
Air Act, 42 U.S.C. 7413 (federal enforcement of the Clean Air Act); 
sections 103 and 109 of CERCLA, 42 U.S.C. 9603 and 9609 (federal 
enforcement of notification provisions); section 325 of EPCRA, 42 
U.S.C. 11045 (federal enforcement of EPCRA notification provisions); 
and 40 CFR 22.13(b) and 22.18(b)(2) and (3) (procedural requirements 
for the quick resolution and settlement of matters before the filing 
of an administrative complaint). Respondent's participation in this 
Agreement is not an admission of liability. At this time, Respondent 
neither admits nor denies that any of its Farms is subject to CERCLA 
or EPCRA reporting or Clean Air Act permitting requirements, or is 
in violation of any provision of CERCLA, EPCRA or the Clean Air Act. 
The execution of this Agreement by Respondent is not an admission 
that any of its agricultural operations has been operated 
negligently or improperly, or that any such operation is or was in 
violation of any federal, state or local law or regulation.
    4. As described more specifically in paragraphs 26 and 35 below, 
this Agreement resolves Respondent's civil liability for certain 
potential violations of the Clean Air Act, CERCLA and/or EPCRA at 
[Participating Company's] Farm(s) listed in Attachment A. The 
release and covenant not to sue found in paragraph 26 resolves only 
violations identified and quantified by applying the Emissions-
Estimating Methodologies developed using data from the national air 
emissions monitoring study described herein.
    5. This Agreement is one of numerous identical agreements 
between EPA and animal feeding operations across the nation. Through 
these agreements, EPA and participating animal feeding operations 
aim to assist in the development of improved Emissions-Estimating 
Methodologies for air emissions from animal feeding operations and 
to ensure that all animal feeding operations are in compliance with 
applicable Clean Air Act, CERCLA and EPCRA requirements. 
Notwithstanding any other provision, this Agreement shall not delay 
or interfere with the implementation or enforcement of State 
statutes that eliminate exemptions to Clean Air Act requirements for 
agricultural sources of air pollution.
    6. EPA may decline to enter into this Agreement with animal 
feeding operations (and their successors and assigns) that have been 
notified by EPA or a State that they currently may be subject to a 
Federal or State Clean Air Act, CERCLA section 103 or EPCRA section 
304(a) enforcement action.

II. Definitions

    7. Unless otherwise defined herein, terms used in this Agreement 
shall have the same meaning given to those terms in the Clean

[[Page 4963]]

Air Act, 42 U.S.C. 7401 et seq.; the Comprehensive Environmental 
Response, Compensation, and Liability Act, 42 U.S.C. 9601 et seq.; 
the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. 
11001 et seq., and the implementing regulations promulgated 
thereunder. For purposes of this Agreement only, the following terms 
shall have the following meanings.
    8. The term ``Agricultural Waste'' or ``Agricultural Livestock 
Waste'' means Livestock manure, wastewater, litter including bedding 
material for the disposition of manure, and egg washing or milking 
center waste treatment and storage. ``Agricultural Livestock'' or 
``Livestock'' include dairy cattle, swine and/or poultry among 
others.
    9. The term ``Contract Grower'' means the owner or operator of a 
Farm that raises Livestock or produces milk or eggs under a contract 
with Respondent.
    10. The term ``Emissions-Estimating Methodologies'' means those 
procedures that will be developed by EPA, based on data from the 
national air emissions monitoring study and any other relevant data 
and information, to estimate daily and total annual emissions from 
individual Emission Units and/or Sources. These methodologies will 
be published on EPA's Web site (https://www.epa.gov).
    11. The term ``Emission Unit'' means any part of a Farm that 
emits or may emit Volatile Organic Compounds (VOCs), Hydrogen 
Sulfide (H2S), Ammonia (NH3), or Particulate 
Matter (TSP, PM10 and PM2.5) and is either: (a) A building, 
enclosure, or structure that permanently or temporarily houses 
Agricultural Livestock; or (b) a lagoon or installation that is used 
for storage and/or treatment of Agricultural Waste.
    12. The term ``Environmental Appeals Board'' or ``EAB'' means 
the permanent body with continuing functions designated by the 
Administrator of EPA under 40 CFR 1.25(e) whose responsibilities 
include approving administrative settlements commenced at EPA 
Headquarters.
    13. The term ``Facility'' shall mean ``CERCLA Facility and/or 
EPCRA Facility.'' The term ``CERCLA Facility'' shall have the 
meaning given that term under section 101(9) of CERCLA, 42 U.S.C. 
9601(9). The term ``EPCRA Facility'' shall have the meaning given 
that term under section 329(4) of EPCRA, 42 U.S.C. 11049(4).
    14. The term ``Farm'' shall mean the production area(s) of an 
animal feeding operation, adjacent and under common ownership, where 
animals are confined, including animal lots, houses or barns; and 
Agricultural Waste handling and storage facilities. ``Farm'' does 
not include land application sites for Agricultural Waste. This 
definition is limited exclusively to this Agreement and establishes 
no precedent for the interpretation of any statute, regulation or 
guidance.
    15. The term ``Nuisance'' is defined according to State and 
local common law, statutes, regulations, ordinances or usage.
    16. The term ``Permitting Authority'' means the local, State or 
Federal government entity with jurisdiction to require compliance 
with the permitting requirements of the Clean Air Act.
    17. The term ``Independent Monitoring Contractor'' means a 
person or entity that is not affiliated with Respondent or any other 
animal feeding operation, that has sufficient experience and 
expertise to fully implement the national air emissions monitoring 
study described herein, that meets the qualifications set forth in 
Attachment B to this Agreement, and that is approved by EPA.
    18. The term ``Qualifying Release'' means a release that 
triggers a reporting requirement under section 103 of CERCLA or 
section 304 of EPCRA.
    19. The term ``Respondent'' means [Participating Company].
    20. The term ``Source'' shall have the meaning given to the term 
``stationary source'' in the implementing regulations of the Clean 
Air Act at 40 CFR 52.21(b)(5) through (6), as interpreted by 
applicable guidance issued by EPA.
    21. The term ``State or Local Authority'' means a state or local 
government entity with jurisdiction over Respondent's Farm(s).

III. Consent Agreement

    22. EPA and Respondent have agreed to resolve this matter by 
executing this Agreement, as further set forth herein.
    23. Respondent asserts that it either owns, operates or 
otherwise controls, or contracts with Contract Growers who own, 
operate or otherwise control, the Farm(s) listed in Attachment A to 
this Agreement. Respondent agrees that this Agreement applies only 
to the Farm(s) that are listed in Attachment A and contain one or 
more Emission Unit(s) as defined in paragraph 11 and described in 
Attachment A.
    24. For the purpose of this proceeding, Respondent does not 
contest the jurisdiction of the Environmental Appeals Board.
    25. As specified more fully below, Respondent consents to pay a 
civil penalty, to be responsible for the payment of funds to the 
national air emissions monitoring study, and to facilitate 
implementation of the monitoring study, including making certain 
Farms available for monitoring.
    26. In consideration of Respondent's obligations under this 
Agreement and subject to the limitations and conditions set forth in 
paragraphs 27-30, 33, 34, 36, 37 and 43, EPA releases and covenants 
not to sue Respondent, with respect to the listed Emission Units 
located at the Farm(s) in Attachment A, for:
    (A) Civil violations of the permitting requirements contained in 
Title I, Parts C and D, and Title V of the Clean Air Act, and any 
other federally enforceable State implementation plan (SIP) 
requirements for major or minor sources based on quantities, rates, 
or concentrations of air emissions of pollutants that will be 
monitored under this Agreement, namely Volatile Organic Compounds 
(VOCs), Hydrogen Sulfide (H2S), Particulate Matter (TSP, 
PM10 and PM2.5), and Ammonia (NH3); and
    (B) civil violations of CERCLA section 103 or EPCRA section 304 
from air emissions of Hydrogen Sulfide (H2S) or Ammonia 
(NH3) that are not singular unexpected or accidental 
releases such as those caused by an explosion, fire or other 
abnormal occurrence.
    27. (a) The releases and covenants not to sue described in 
paragraphs 26 and 35 extend only to violations of the requirements 
identified in those paragraphs and apply only to emissions from 
Agricultural Waste at Emission Units (as defined in paragraph 11). 
They do not extend to any other requirements including but not 
limited to: (i) Any possible requirements that relate to emissions 
generated by other equipment or activities co-located at the Farm, 
including waste-to-energy systems; (ii) activities at open cattle 
feedlots for beef production; (iii) Clean Air Act permitting 
requirements triggered by an expansion of a Farm beyond its design 
capacity as of the date this Agreement is executed; or (iv) 
requirements that are not triggered by the quantity, concentration 
or rate of emission of Volatile Organic Compounds (VOCs), Hydrogen 
Sulfide (H2S), Particulate Matter (TSP, PM10 and PM2.5) 
or Ammonia (NH3), including work practice requirements 
and equipment specifications.
    (b) The release and covenants not to sue in paragraphs 26 and 35 
shall apply to the liability of a Contract Grower with respect to a 
Farm if and only if the Contract Grower executes an Agreement with 
EPA covering that Farm.
    28. The release and covenant not to sue described in paragraph 
26 covers Respondent's liability for violations with respect to an 
Emission Unit located at a Farm listed in Attachment A if and only 
if Respondent complies with all applicable requirements of this 
Agreement and, with respect to that Emission Unit:
    (A) Within 120 days after receiving an executed copy of this 
Agreement, for any Farm that confines more than 10 times the ``large 
Concentrated Animal Feeding Operation'' threshold of an animal 
species,\3\ the animal feeding operation provides to the National 
Response Center (NRC) and to the relevant local and state emergency 
response authorities written notice describing its location and 
stating substantially as follows:
---------------------------------------------------------------------------

    \3\ This definition is being used in this Agreement solely for 
the purpose of determining the penalty assessed, and for certain 
limited reporting purposes. ``Large Concentrated Animal Feeding 
Operation'' is defined as: (a) 2,500 swine weighing more than 55 
pounds; (b) 10,000 swine weighing less than 55 pounds; (c) 82,000 
laying hens; (d) 125,000 broilers; (e) 55,000 turkeys; or (f) 700 
mature dairy cows or 1000 dairy heifers.
---------------------------------------------------------------------------

    This operation raises [species] and may generate routine air 
emissions of Ammonia in excess of the reportable quantity of 100 
pounds per 24 hours. A rough estimate of those emissions is [--] 
pounds per 24 hours, but this estimate could be substantially above 
or below the actual emission rate, which is being determined through 
an ongoing monitoring study in cooperation with the U.S. 
Environmental Protection Agency. When that emission rate has been 
determined by this study, we will notify you of any reportable 
releases pursuant to CERCLA section 103 or EPCRA section 304. In the 
interim, further information can be obtained by contacting [insert 
contact information for a person in charge of the operation].


[[Page 4964]]


Respondent shall provide to EPA, at the address in paragraph 64, a 
copy of any written notice given pursuant to this subparagraph. This 
interim notice shall be provided to satisfy the terms of this 
Agreement only and is not intended to establish a precedent or 
standard for reporting under CERCLA or EPCRA.
    (B) Where application of the Emissions-Estimating Methodologies 
establishes that no Clean Air Act requirements or that no CERCLA or 
EPCRA notifications are required for a Source or Facility, 
Respondent shall so certify to EPA in writing within 60 days after 
EPA publishes Emissions-Estimating Methodologies applicable to the 
Emission Units at the Source or Facility. Any such certification 
shall identify each Source or Facility covered by the certification 
and the Emissions-Estimating Methodology used to calculate its 
emissions. If EPA notifies Respondent that this certification is not 
correct because application of the Emissions-Estimating 
Methodologies indicates that the Source or Facility is subject to 
such requirements, Respondent shall have 90 days from notification 
by EPA to comply with the provisions in paragraph 28(C) or submit, 
in writing, clear and convincing proof to EPA that Respondent's 
certification is correct.
    (C) Respondent complies with all of the applicable requirements 
set forth below:
    (i) Within 120 days after EPA has published Emissions-Estimating 
Methodologies applicable to the Emission Units at Respondent's 
Source, Respondent submits all Clean Air Act permit applications 
required by the Permitting Authority for the Source, based on 
application of those Emissions-Estimating Methodologies.
    (a) For a Source whose emissions exceed the major source 
threshold in Title I, Part C or D, based on the area's attainment 
status (e.g., in an attainment area, more than 250 tons per year of 
a regulated pollutant), this requirement includes:
    (1) Applying for and ultimately obtaining a permit that contains 
a federally enforceable limitation or condition that limits the 
potential to emit of the Source to less than the applicable major 
source threshold for the area where the Source is located; or,
    (2) Installing best available control technology (BACT) in an 
attainment area, or technology meeting the lowest achievable 
emission rate (LAER) if the Source is located in a nonattainment 
area, as determined by and in accordance with the schedule provided 
by the Permitting Authority for the Source, and obtaining a 
federally enforceable permit that incorporates an appropriate BACT 
or LAER limit. For the purposes of this Agreement, compliance with 
the requirements found in 40 CFR 52.21(k) through (p) is not a 
condition of the release and covenant not to sue described in 
paragraph 26. Nothing in this paragraph is intended to limit a state 
or local government's authority to impose applicable permitting 
requirements. Emission reductions that result from installing BACT 
or LAER may not be used in netting calculations to offset emissions 
from a future modification to the Source.
    (b) The annual emissions from a particular Source shall be 
determined based on Respondent's current operating methods and on 
the maximum number of animals housed at the Source at any time over 
the 24 months prior to EPA's publication of the applicable 
Emissions-Estimating Methodologies.
    (c) Respondent promptly and fully responds to any notices of 
deficiency (or other equivalent notification that the permit 
application is incomplete or incorrect) issued by the Permitting 
Authority with respect to the permit application(s).
    (d) As described in paragraph 34, below, Farms installing waste-
to-energy systems will have an additional 180 days to submit the 
above-referenced permit applications.
    (ii) Within 120 days after EPA has published Emissions-
Estimating Methodologies applicable to Emission Units at 
Respondent's Facility, Respondent reports all Qualifying Releases of 
Hydrogen Sulfide (H2S) and Ammonia (NH3) in 
accordance with section 103 of CERCLA and section 304 of EPCRA.
    (iii) Respondent timely installs all emission control equipment 
and implements all practices required by this Agreement or contained 
in the Clean Air Act permits issued in response to the applications 
submitted in accordance with subparagraph (i) of this paragraph.
    (iv) Respondent provides EPA with written certification that it 
has timely installed all emission control equipment and implemented 
all practices required by this Agreement or contained in the Clean 
Air Act permits issued in response to the applications submitted in 
accordance with subparagraph (i) of this paragraph, within 30 days 
of meeting those requirements or within 30 days of acknowledgment of 
compliance by the Permitting Authority if such acknowledgment is 
required.
    (D) Respondent's failure to comply with any of the above 
requirements in this paragraph at any particular Source shall affect 
the release and covenant not to sue for the noncompliant Source only 
and shall not affect the release and covenant not to sue for 
Respondent's complying Sources. In addition, Respondent's failure to 
comply with any of the above requirements in this paragraph at any 
particular Facility shall affect the release and covenant not to sue 
for the noncompliant Facility only and shall not affect the release 
and covenant not to sue for Respondent's complying Facilities.
    29. For any Farm listed in Attachment A that is owned and 
operated by a Contract Grower, Respondent is not responsible for 
complying with paragraphs 28, 30 and 60. However, the release and 
covenant not to sue described in paragraph 26 covers Respondent's 
liability for violations with respect to the Emission Units located 
at such Farm if, and only if, the Contract Grower complies with all 
the requirements of paragraph 28. The Contract Grower's liability 
for violations with respect to the Emission Units located at that 
Farm is not covered by any of the releases and covenants not to sue 
set forth in this Agreement. However, the Contract Grower may enter 
its own agreement with EPA (thus becoming a respondent in its own 
agreement) and obtain similar conditional releases and covenants not 
to sue with respect to the emission units at its farm.
    30. In addition, the release and covenant not to sue described 
in paragraph 26 covers violations with respect to the Emission Units 
located at a Farm listed in Attachment A if, and only if, Respondent 
complies with the following requirements, with respect to that Farm:
    (A) During the period in which potential violations at the Farm 
are covered by the release and covenant not to sue as described in 
paragraph 26, Respondent complies with all final actions and final 
orders issued by the State or Local Authority that address a 
Nuisance arising from air emissions at the Farm and that are:
    (i) Issued after Respondent has been given notice and 
opportunity to be heard (including any available judicial review) as 
required by applicable state or local law; and,
    (ii) Issued during the time period in which potential violations 
at the Farm are covered by the release and covenant not to sue as 
described in paragraph 26.
    (B) Within 60 days of coming into compliance with the final 
action or order of the State or Local Authority, Respondent provides 
EPA with written certification that Respondent has complied with the 
final action or final order and within the time schedule approved by 
the State or Local Authority.
    31. Respondent agrees that the statute of limitations for all 
claims covered by the release and covenant not to sue in paragraph 
26 will be tolled from the date this Agreement is approved by the 
EAB and until the earlier of: (a) 120 days after Respondent files 
the required certifications in accordance with paragraph 28(B) or 
paragraph 28(C)(iv), or (b) December 31, 2011. This time period can 
be extended by written agreement of both parties.
    32. EPA will publish Emissions-Estimating Methodologies within 
18 months of the conclusion of the monitoring period and will 
publish such Methodologies on a rolling basis as soon as they are 
developed. If EPA's Science Advisory Board determines that EPA is 
unable to publish Emissions-Estimating Methodologies applicable to a 
particular type of Emission Unit in Attachment A within 18 months of 
the conclusion of the monitoring period because of inadequate data, 
EPA will attempt to resolve such data problems as soon as possible. 
EPA's inability to publish an Emissions-Estimating Methodology for a 
particular type of Emission Unit in Attachment A within 18 months 
shall have no effect on any other deadline or provision of this 
Agreement for any other type of Emission Unit listed in Attachment 
A.
    33. As a condition of its participation in this Agreement, 
Respondent agrees to accept, regardless of any collateral 
proceeding, the study protocols employed in and the emissions data 
developed by, the national air emissions monitoring study conducted 
under the plan described in paragraphs 53 through 63 below. If 
Respondent challenges the protocols employed or the data developed, 
the release and covenant not to sue described in paragraph 26 of 
this Agreement will become null and void and will have no effect on 
Respondent's past or future liability.
    34. Respondent may choose to install and operate one or more 
systems that process

[[Page 4965]]

Agricultural Livestock Waste to produce electricity (a waste-to-
energy system). If Respondent selects this option, it will have, 
with respect to a Farm at which such a system will be installed, an 
additional 180 days to comply with the requirements of paragraph 28 
provided the following requirements are met, with respect to that 
Farm:
    (A) Within 120 days after EPA has published Emissions-Estimating 
Methodologies applicable to the Emission Units at Respondent's 
Source, Respondent provides EPA with a written certification that it 
intends to install a waste-to-energy system, identifies each Farm at 
which such a system is or will be installed, and describes the type 
of waste-to-energy system installed and the percentage by volume of 
Agricultural Waste processed by the system at each Farm.
    (B) The waste-to-energy system processes at least 50 percent of 
the Agricultural Waste by volume produced at the Farm.
    (C) Respondent makes each Farm at which a waste-to-energy system 
is installed available for inspection by EPA.
    (D) Respondent agrees to operate the waste-to-energy system for 
24 months from the first date of operation or the date EPA publishes 
Emissions-Estimating Methodologies for the Emission Units at 
Respondent's Source, whichever is later. If during that 24-month 
period Respondent has to shut down the waste-to-energy system, the 
benefits of this paragraph will still be applicable if Respondent 
has made all reasonable efforts to maintain and operate the system.
    (E) Respondent obtains, within applicable time limits, all 
required federal and state permits needed to construct and operate 
the waste-to-energy system at the Farm.
    35. Subject to paragraphs 27, 37 and 43, if during the pendency 
of the nationwide monitoring study, Respondent promptly reports and 
corrects a civil violation of a federally approved SIP or an 
approved Federal implementation plan (FIP) resulting from emissions 
of Volatile Organic Compounds (VOCs), Hydrogen Sulfide 
(H2S), Ammonia (NH3), or Particulate Matter 
(TSP, PM10, and PM2.5) from a Farm listed in Attachment A that 
causes or contributes to a violation of any provision of the 
federally approved SIP that requires compliance with an ambient air 
quality standard at the Farm's property line, EPA releases and 
covenants not to sue Respondent for the reported and corrected 
violation if, and only if, the conditions set forth below are met:
    (A) Unless Respondent first learned of the violation through a 
notice from EPA, Respondent provides notice of the violation to EPA 
and the applicable Permitting Authority within 21 days of 
Respondent's discovery of the violation or the final order of the 
EAB approving this Agreement, whichever is later;
    (B) Respondent corrects the violation, including making any 
necessary adjustments to its operations at the Farm to prevent the 
violation from happening again, within 60 days after notice is given 
by Respondent or EPA as described in subparagraph (A) above. If the 
violation cannot reasonably be corrected within 60 days, Respondent 
must, before the end of the 60-day time period, submit a plan that 
is ultimately approved by EPA and the applicable Permitting 
Authority to correct the violation and must comply with the approved 
plan in accordance with the specified schedule. Within 30 days of 
correcting the violation, Respondent shall submit a written 
certification to EPA indicating that it has corrected the violation 
in accordance with the approved plan; and,
    (C) The violation is not a repeated violation that Respondent 
previously reported to EPA pursuant to this paragraph. Respondent 
may rectify the loss of the above release and covenant not to sue 
for the first instance of a repeat violation; however, if it pays a 
stipulated penalty of $500 a day for each day that the Farm exceeds 
the ambient air quality standard, and it meets the requirements of 
subparagraphs (A) and (B), except that the time to correct the 
violation shall be 30 days instead of 60 days.
    36. All certifications that Respondent must submit to comply 
with this Agreement shall include the following statement:
    I certify under penalty of law that the information contained in 
this submittal to EPA is accurate, true, and complete. I understand 
that there are significant civil and criminal penalties for making 
false or misleading statements to the United States government.

    The above statement shall be signed by a responsible official 
for the Respondent (i.e., the owner if Respondent is a sole 
proprietorship, the managing partner if Respondent is a partnership, 
or a responsible corporate official if Respondent is an incorporated 
entity).
    37. The releases and covenants not to sue described in 
paragraphs 26 and 35 do not cover Respondent's liability for any 
violation with respect to an Emission Unit located at a Farm if 
Respondent fails to comply with any of the applicable requirements 
of this Agreement with respect to that Emission Unit, including the 
limitations and conditions in paragraphs 26-29 and 33-34 above. The 
releases and covenants not to sue described in paragraphs 26 and 35 
cover only violations with respect to the Emission Units located at 
the Farm that occur before the earlier of: (a) The date Respondent 
submits the last required certification covering those Emission 
Units; or (b) 2 years after Respondent submits any permit 
applications pursuant to paragraph 28(C)(i). This time period can be 
extended by a period not to exceed 6 months upon written agreement 
of both parties provided the Respondent's action or inaction is not 
the cause of any delay in obtaining a permit.
    38. EPA will notify Respondent if EPA has determined that it 
cannot develop Emissions-Estimating Methodologies for any Emission 
Units listed in Attachment A.
    (A) This notice shall identify (individually or by category) 
Emission Units, Sources and/or Facilities for which Emissions-
Estimating Methodologies cannot be developed.
    (B) For the Emission Units identified in such a notice:
    (i) No certification under paragraph 28 shall be required for 
those Emission Units and any other related Emission Units that 
comprise the Source or Facility; and,
    (ii) The releases and covenants not to sue described in 
paragraphs 26 and 35 shall cover potential violations that occur on 
or before 120 days after the date the notice is mailed, but shall 
not cover potential violations that occur more than 120 days after 
that date.
    (C) Notice required under this paragraph will be deemed proper 
if sent via U.S. mail postage prepaid to the address listed in 
Attachment A.
    39. The execution of this Agreement is not an admission of 
liability by Respondent, and Respondent neither admits nor denies 
that it has violated any provisions of the Clean