Animal Feeding Operations Consent Agreement and Final Order, 40016-40022 [05-13672]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 132 (Tuesday, July 12, 2005)]
[Notices]
[Pages 40016-40022]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-13672]


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

ENVIRONMENTAL PROTECTION AGENCY

[OAR-2004-0237; FRL-7936-4]


Animal Feeding Operations Consent Agreement and Final Order

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental notice; response to comments on consent agreement 
and final order.

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

SUMMARY: On January 31, 2005 (70 FR 4958), EPA announced an opportunity 
for animal feeding operations (AFO) to sign a voluntary consent 
agreement and final order (air compliance agreement).
    The comment period ended May 2, 2005. This supplemental notice 
publishes the Agency's response to comments.

ADDRESSES: Comments are posted on Docket ID No. OAR-2004-0237 at the 
Agency Web site: https://www.epa.gov/edocket.

[[Page 40017]]

    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: On January 31, 2005, EPA published a notice 
in the Federal Register announcing an Air Compliance Agreement (the 
Agreement) AFO, and requested public comment on the Agreement. The 
original comment period ran until March 2, 2005. The comment period was 
subsequently reopened on April 1, 2005, and ran until May 2, 2005. EPA 
received approximately 800 separate sets of comments.
    The development of the Agreement was an open and extensive process, 
both before and after the January 31, 2005, publication in the Federal 
Register. Prior to that announcement, EPA worked with numerous 
stakeholders for 3 years to develop the Agreement. Agency officials met 
and received input from representatives from all the relevant AFO 
industry groups, State officials, national and local environmental 
groups, and local citizen groups. EPA provided copies of prior drafts 
of the Agreement to these groups, and received comments. EPA made 
changes to the draft Agreement in response to concerns raised during 
the development of the Agreement. The vast majority of comments 
received during the public comment periods were ones that had been 
previously expressed to EPA, and they had already been considered in 
the development of the Agreement.
    After the Agreement was published in the Federal Register, EPA 
continued to meet with various stakeholders from the AFO industry, 
States, environmental groups, and local citizen groups regarding the 
Agreement. Many informative meetings were held around the Nation to 
discuss the Agreement with stakeholders. EPA has reviewed all comments 
and has determined that no changes are needed to the current version of 
the Agreement. The two most frequent concerns raised were the need for 
more time to provide comments and for more time to consider whether to 
sign the Agreement. These two concerns were addressed with the 
reopening of the comment period and the extension of the signup period 
by 60 days until July 1, 2005. In addition, EPA is now extending the 
signup period a final time until July 29, 2005.
    EPA has identified a number of common concerns in the comments and 
responds to each below. Additional information can be found on EPA's 
website in documents including the ``Fact Sheet,'' ``Frequently Asked 
Questions,'' and the ``Agreement Sign-Up Instructions.''
    Comment: Emergency Planning Community Right-to-Know Act/
Comprehensive Environmental Response, Compensation and Liability Act 
(EPCRA/CERCLA) Applicability.
    Many commenters from the poultry industry suggested that EPCRA and 
CERCLA were not intended to regulate the agriculture industry, and that 
the Agency should exempt these sources from reporting. Other commenters 
claimed that, to the contrary, it was essential for these emissions to 
be reported to the National Response Center and local emergency 
response centers in order to provide the public with information 
regarding quantities of ammonia emissions released from nearby 
agricultural operations.
    Response: AFO may be subject to the notification requirements of 
CERCLA for releases of hazardous substances from their facilities. 
Generally, CERCLA section 103 requires a person in charge of a 
``facility'' to report any release, including air emissions, of a 
hazardous substance from the facility if the release exceeds the 
reportable quantity (RQ) for that substance. Section 101(9) of CERCLA 
defines a facility to include: ``(A) any building, structure, 
installation, equipment, pipe or pipeline * * * well, pit, pond, 
lagoon, impoundment, ditch, landfill, storage container, motor vehicle, 
rolling stock, or aircraft, or, (B) any structure, installation * * *. 
ditch, landfill (or) site or area where a hazardous substance has been 
deposited, stored, disposed of, or placed, or otherwise come to be 
located.'' CERCLA hazardous substances of particular concern to the AFO 
industry typically are ammonia and hydrogen sulfide. Both of these 
hazardous substances have a reportable quantity of 100 pounds. CERCLA 
103 requires any person in charge of a facility, as soon as they have 
knowledge of a release in an amount equal to or greater than the RQ 
from their facility, to immediately notify the National Response Center 
of such a release. EPCRA section 304 requires the same notification to 
State emergency response commissions and local emergency planning 
committees when CERCLA 103 is triggered in order to protect and expand 
public right-to-know interests.
    To date, AFO that have reported to the National Response Center 
generally have reported estimated emissions coming from their barns and 
lagoons. In addition, AFO have the option of submitting a single, 
written report that characterizes continuous release reporting from 
their facilities. This ``continuous release report'' is the least 
burdensome form of reporting.
    The Agency is aware of the concerns expressed and is committed to 
streamline the notifications so that they impose the least amount of 
burden for the reporting entities. EPA is particularly sensitive to the 
need for more specific triggering thresholds for CERCLA. One of the 
goals of the Agreement's 2-year monitoring study is to determine a more 
specific range of operations/species-specific release sizes that would 
trigger CERCLA and EPCRA.
    In addition, the Agency has not received a formal request to 
consider a CERCLA administrative reporting exemption specifically for 
AFO for ammonia and/or hydrogen sulfide reporting.
    Comment: Impact on State Actions.
    Commenters noted that the Agency should clarify whether respondents 
will be shielded from future State lawsuits by signing this Agreement. 
A number of State commenters voiced concerns about the effect of the 
Agreement on State efforts to enforce against AFO. The primary 
objection was that the Agreement may undercut action of State, local, 
or tribal authorities

[[Page 40018]]

attempting to enforce their own authorities against AFO.
    Response: The Agreement has no impact on the most important State 
enforcement tools to protect local residents from AFO emissions. These 
include zoning classification, State (non-Federally enforceable) 
permits, nuisance actions, workplace regulations and health and safety 
laws. Further, the Agreement does not impact any actions to abate odors 
because there are no Federal Clean Air Act (CAA) odor control 
regulations. The Agreement does not and is no way intended to undermine 
the State, local or tribal enforcement authorities. The Agreement does 
not affect any requirements that do not arise under CERCLA, EPCRA, or a 
federally-approved CAA State implementation plan. Prior to the 
Agreement, very few actions were brought against AFO for air emissions 
under the authorities set out in the Agreement. The great majority of 
enforcement came about under regulations that are not impacted by the 
Agreement. Concerns that the Agreement could affect the ability of 
regulators to protect the health and safety of local residents are 
unfounded. The Agreement does not affect the ability of any regulator 
to bring an action under the emergency provisions of the CAA and other 
statutes to prevent an imminent and substantial endangerment to public 
health, welfare or the environment.
    The Agreement augments and improves State and local control in 
several respects. First, emissions data generated by the nationwide 
emissions study will be available to the public during the study. EPA's 
publication of emissions--estimating methodologies will also assist and 
guide State, local and tribal efforts. In December 2002, the National 
Academy of Sciences released a report concluding that scientifically 
sound and practical protocols for measuring air concentrations and 
emissions rates were needed to guide regulatory and enforcement 
decisions. The data collected by this study, along with EPA's analyses, 
will be a helpful step for all in answering the concerns of the 
National Academy of Sciences. Second, participating farms which need to 
obtain Prevention of Significant Deterioration/New Source Review (PSD/
NSR) permits at the conclusion of the study will submit applications to 
the States. The Agreement explicitly does not limit a State or local 
government's authority to impose applicable permitting requirements. In 
addition, the covenant not to sue will be nullified if AFO fail to 
comply with State nuisance final orders arising from air emissions. 
Finally, a number of States are undertaking their own programs to 
address air emissions from AFO. These efforts range from mandatory 
permit programs to voluntary, cooperative approaches with industry. The 
Agreement is not intended to preempt or otherwise interfere with these 
efforts. Nothing in the Agreement absolves a failure to comply with 
non-federally enforceable State law, nor prohibits participation in 
other compliance programs.
    Comment: Length of Implementation Schedule.
    Several commenters expressed concern that major agricultural 
sources of air pollution may not be required to install emission 
control technology until 2010 or later under the Agreement. These 
commenters claim that such facilities are already having a significant 
negative impact on nearby residents and on local and regional air 
quality and, therefore, they should take immediate steps to reduce 
their emissions.
    Response: Under the Agreement, the national air emissions 
monitoring study will be conducted for 2 years, most likely starting in 
early 2006. At the end of the monitoring study in early 2008, EPA will 
have eighteen months to develop and publish emissions-estimating 
methodologies for AFO. Within 120 days after EPA has published an 
emissions-estimating methodology for a particular farm, the farm will 
have to submit all required CAA permit applications. Installation of 
controls required by any permits will be in accordance with the 
deadlines established by the relevant State permitting authority.
    EPA believes that the above schedule represents the most aggressive 
schedule that is reasonably possible. EPA and the group of experts on 
AFO air emissions that developed the monitoring study protocol 
concluded that 2 years of monitoring were needed to conduct a study 
that will yield data adequate to allow EPA to develop reasonably 
accurate emissions-estimating methodologies. While much has to be done 
once the monitoring study is completed to develop the emissions-
estimating methodologies, such as analysis of data and review by EPA's 
Science Advisory Board, EPA will not wait until the end of the 2-year 
monitoring study before beginning the process of developing the 
Emissions-Estimating Methodologies, but rather will do so as soon as 
data become available. Moreover, EPA has agreed to publish the 
emissions-estimating methodologies on a rolling basis as they are 
developed. For those reasons, EPA is hopeful that it will be able to 
publish emissions-estimating methodologies for large segments of the 
AFO industry before the 18-month deadline, and that any required 
controls will subsequently be installed before 2010.
    EPA believes that the alternative to the Agreement suggested by 
several commenters--using enforcement authority to order AFO to measure 
their emissions and to comply with all applicable environmental 
requirements would take much longer. In addition to the above steps 
related to emissions monitoring and developing emissions-estimating 
methodologies for the AFO industry, which would take just as long if 
not longer under this scenario, there would also potentially be several 
years of litigation added to the timeline as AFO contested EPA's orders 
and emissions-estimating methodologies. By avoiding lengthy litigation, 
the Agreement provides the shortest timeframe possible to obtain the 
necessary data and to bring AFO into compliance with all applicable 
regulatory requirements pertaining to air emissions.
    Comment: BACT/LAER.
    Several commenters noted that it is not clear what types of control 
strategies/techniques respondents will be committing to install, since 
best available control technology (BACT)/lowest achievable emission 
limitations (LAER) determinations have not been made for agriculture 
sources. The commenters expressed concern that implementation of BACT/
LAER could force closure of farms.
    Response: The selection of both BACT and LAER are site-specific 
determinations that consider the achievability of controls. A BACT 
analysis requires the local permitting authority to consider the 
economic, energy, and environmental impacts in determining the degree 
of emissions reductions that are achievable for new or modified major 
sources in attainment areas. EPA does not envision significant burdens 
associated with the application of BACT. Although a LAER determination 
does not consider economic, energy, or environmental factors, a LAER 
limit also is not intended to impose costs that would prevent 
successful economic operation of a source. LAER is defined as the most 
stringent emission limitation that is either: (1) Contained in a State 
implementation plan, or (2) achieved in practice by a source in the 
same class or category. If a control technology is in use at another 
facility in the same class or category of farm, then this is evidence 
that the costs of that control are not prohibitive and would not cause 
a competitive disadvantage. EPA will be

[[Page 40019]]

issuing guidance in the future that will specify the conditions that 
constitute the same class or category of farm. Relative to non-
attainment and attainment areas under the CAA, BACT is applicable when 
a major source applies for a PSD permit, and is only applicable in 
attainment areas. LAER is applicable when a major source applies for a 
New Source Review (NSR) permit in a non-attainment area. Until emission 
estimates are developed for farm operations, it is not known whether 
BACT or LAER would be required. If they are needed, EPA will work with 
the U.S. Department of Agriculture (USDA) to determine the most 
effective BACT and LAER alternatives for the least cost. EPA will issue 
guidance addressing this along with methodologies for determining 
emission estimates at the conclusion of the study.
    Comment: Civil Penalty Payment.
    EPA received several comments suggesting that the civil penalty 
provision and the monitoring fund fees under the Agreement are 
inappropriate for various reasons. Commenters noted that the Agreement 
does not follow the penalty assessment criteria established by CERCLA, 
EPCRA and the CAA. Commenters also claimed that the EPA failed to 
adhere to its policies governing the assessment of penalties, known as 
Enforcement Response Policies (ERPs), in administrative enforcement 
proceedings which provide guidance in establishing penalties.
    Commenters argued that the penalties under the Agreement were 
either too low or too high. Those who thought that the penalties under 
the Agreement were too low referenced the criteria set forth in the 
statutes and in the ERPs. Those who thought that the penalties under 
the Agreement were too high commented that small farmers would have to 
pay a disproportionate amount of their total revenue where they are 
unlikely to trigger CERCLA, EPCRA or CAA reporting thresholds. Lastly, 
some commenters noted that the monitoring fund fees would impose a 
financial hardship.
    EPA also received several comments suggesting that the Agreement 
requires an admission of liability and that the term ``civil penalty'' 
carries negative connotations that imply guilt. Furthermore, companies 
should not have to pay to resolve unproven violations.
    Response: The Agreement is a voluntary settlement between the EPA 
and participating farmers. There is no obligation to participate. The 
penalty assessment criteria contained in CERCLA, EPCRA, and the CAA 
serve as guidance in establishing the penalty provision under the 
Agreement. The Agreement use a pro-rata determination based on the size 
of business in calculating the amount of the penalty. For example, the 
Agreement considers the number of facilities in making the penalty 
determination. Under the Agreement, some small farmers may pay as 
little as $200 in order to participate. The monitoring fund fees will 
be used to support monitoring activities to determine emissions from 
various types of operations across geographic regions and species. 
Given the lack of established emissions factors, participating 
facilities both large and small will benefit from increased certainty--
both in knowing their obligations and resolving possible current and 
past liability.
    By signing the Agreement, farmers are not admitting any liability 
or any sort of wrongdoing. The Agreement makes clear that signing 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.'' The 
civil penalty provision is not intended to be used for any other 
purposes other than this Agreement. Rather, payment of a penalty is 
part of the process to obtain a release from liability for possible 
violations. If the participant pays the penalty and complies with all 
the terms of the Agreement, the Federal Government cannot sue later for 
the violations covered by the Agreement. Payment provides participants 
with the full protections of the settlement.
    A primary focus of the national air emissions study is to determine 
how much air pollution farms emit. The type and quantity of emissions 
depend on many factors such as species, number of animals, type of 
operation, and location. Until the monitoring study is complete and 
more data are available, it would be difficult to say what requirements 
may apply to which particular size and type of operations, and whether 
these farms emit enough pollutants to trigger regulatory requirements. 
In fact, the study is designed to answer this question: what size and 
types of farms may have regulatory responsibilities? Therefore, the 
results of the study will be used to determine compliance status.
    Comment: Payment Responsibility for Monitoring.
    EPA received a number of comments relating to funding of the 
monitoring study. Some commenters noted that farms should not have to 
pay to monitor their facilities; EPA and/or USDA should pay for the 
monitoring or offer grants to help farms pay for the monitoring. Some 
commenters also noted possible inequities in the funding obligations 
across animal species because dairy and poultry cannot use check-off 
funds to pay for monitoring.
    Response: Every source is obligated to determine if it is in 
compliance with applicable Federal environmental laws. EPA recognizes 
it may be difficult for certain farms to determine their compliance 
responsibilities with respect to air emissions. The emissions 
monitoring study in the Agreement will help provide the scientific data 
needed to help farmers and EPA determine the compliance status of AFO. 
The Agreement is the quickest and most effective way to address current 
uncertainty regarding emissions from AFO and to bring all AFO into 
compliance with all applicable regulatory requirements pertaining to 
air emissions.
    EPA is offering the Agreement to AFO in the egg, broiler chicken, 
turkey, dairy and swine industries. The Agreement ensures that 
responsibility for funding the emissions monitoring study will be 
shared among the AFO that choose to sign the Agreement. Moreover, the 
Agreement should reduce the cost of measuring emissions for individual 
facilities by combining participants' resources.
    The Agreement also ensures participating farms are treated fairly 
and consistently across animal sectors. Under the Agreement, EPA will 
not sue any participant for certain past violations; in return, 
participants agree to pay a small civil penalty and contribute to the 
emissions monitoring study. The Agreement is designed to provide 
flexibility for the industry to generate or pool resources to cover the 
costs of the study.
    Comment: Immunity.
    Several commenters stated EPA should not give ``immunity'' as part 
of the Agreement, or at least not to the farms that are not monitored 
as part of the emissions monitoring study.
    Response: A release and covenant not to sue is a common provision 
of settlements and is consistent with the procedural requirements for 
the settlement of matters before filing an administrative complaint 
contained in 40 CFR part 22. In the Agreement, EPA agrees not to sue 
participating AFO for violations of certain federal environmental laws 
provided participants comply with specific conditions of the Agreement. 
This limited conditional release and covenant not to sue is offered to 
participating AFO that pay a small penalty and contribute to the 
monitoring study fund. Payment

[[Page 40020]]

provides participants with the full protections of a settlement.
    Comment: Monitoring Protocol--Outside Peer Review/Stakeholder 
Involvement.
    EPA received several comments suggesting that the monitoring 
protocol should be reviewed by groups outside the EPA, and that EPA 
should provide greater stakeholder participation. Commenters suggested 
that the monitoring protocol should undergo peer review by independent 
experts that were not involved in formulating the protocol. Also, some 
State and local agencies requested that they be allowed to participate 
with EPA in the periodic technical review of progress of the study.
    Response: The monitoring protocol was developed over a period of 
approximately 12 months by a group of thirty experts in the area of AFO 
air emissions. This group of experts included scientists from both USDA 
and EPA, the AFO industry, environmental groups, and academia. EPA is 
evaluating whether and how to conduct additional review.
    Comment: Monitoring Site Selection/Statistical Representation.
    EPA received many comments related to the selection of monitoring 
sites. Commenters stated that the number of monitoring sites is too 
small to provide scientifically defensible emission estimates. 
Commenters also noted that the number of sites is too limited to 
account for all of the differences in types of manure management 
systems, building types, ventilation rates, feeding practices, animal 
type/age, animal management practices, geography, and climate. Even for 
the types of farms monitored, commenters said that there may not be a 
sufficient number of samples to establish a statistically-valid 
standard deviation to account for random variability from a single farm 
type.
    Response: EPA recognizes that there is a wide variety of AFO 
processes used in the industry and that the mechanisms that generate 
emissions from the AFO industry are highly complex. EPA recognizes that 
it is impractical to expect that sufficient data could be collected in 
a timely manner to accurately characterize every different type of 
operation and practice used in the AFO industry. Technical experts on 
emission monitoring at EPA and a number of universities have concluded 
that monitoring the farms described in the protocol will provide 
sufficient data to get a valid sample that is representative of the 
vast majority of participating AFO. At the time the agreement was 
announced, EPA estimated that approximately 28 farms would be selected 
to represent the major animal groups (e.g., swine, dairy, and poultry), 
different types of operations, and different geographic regions. 
Twenty-eight farms represent EPA's estimate of the minimum number of 
farms that are expected to participate in the Agreement, based on the 
resources available. If more farms decide to participate, then 
resources will be available to monitor additional sites. Whatever 
number of sites are ultimately selected, EPA will choose farms that are 
representative of the broadest population of participating animal 
feeding operations. Moreover, in developing the methodologies for 
estimating AFO emissions, EPA will not be limited to using only the 
data collected under the Agreement. As stated in the Federal Register 
notice, EPA intends to aggregate the data collected under the Agreement 
with existing emissions data. Currently, substantial research on AFO 
emissions is being conducted by states, universities, and the USDA. For 
example, the USDA funded a project through the Initiative for Future 
Agriculture and Food Systems in early 2000. This emissions measurement 
project at livestock and poultry buildings is being conducted in six 
States: Indiana, Iowa, Illinois, Minnesota, North Carolina, and Texas. 
Mobile laboratories are being used by each State to collect aerial 
pollutant emissions from the barns of six different animal types, one 
type per each participating State. EPA will evaluate the results of the 
research and all other relevant studies and will incorporate the 
findings of any substantially similar studies that can meet quality 
assurance tests and other validity tests into the emissions-estimating 
methodologies.
    Comment: Use of a Single Nonprofit Organization/Independent 
Monitoring Contractor.
    Some commenters asserted that using a single nonprofit organization 
(NPO) and single independent monitoring contractor (IMC) to conduct the 
monitoring is inappropriate. Commenters stated that a separate NPO 
should be established for each animal sector to ensure the credibility 
and success of the monitoring results. In this manner, the monitoring 
study would be conducted by individuals who are most knowledgeable 
about each animal sector. A primary concern of the commenters was that 
the emission results will not be valid because the monitoring study 
will not be tailored to the needs of each animal species and study 
location.
    Response: The Agreement provides for individuals who are most 
knowledgeable to be responsible for planning and implementing the 
study. The use of a single NPO and IMC does not limit the scientific 
expertise that will be incorporated into planning and implementation. 
The NPO will be primarily responsible for administration of the study 
and communicating progress, but will not be involved in the technical 
aspects of the testing and monitoring program. The IMC and Science 
Advisor will be responsible for developing the monitoring plan; 
ensuring the consistency of the quality assurance objectives, test 
methods, and monitoring protocols that will be used at the various 
sites; and selection, hiring, and oversight of the Principal 
Investigators for each site, who will be responsible for conducting the 
monitoring at each site. The Principal Investigators will be selected 
based on the unique scientific expertise required for each animal 
species and farm operating practice.
    The Principal Investigators will be regional or local experts 
(e.g., nearby university researchers) who are familiar with local 
animal agricultural practices and the topographic and meteorological 
factors that influence emissions. Under the direction and approval of 
the Science Advisor, the Principal Investigators may participate in 
site selection and development of the site-specific monitoring plans 
and will be able to alter their plans due to interim findings as the 
study progresses. Hence, the study methodology is anticipated to allow 
sector experts to oversee the implementation of the plans and tailor 
the monitoring protocols as needed to address site-specific conditions.
    Comment: Testing and Monitoring Methods and Data Availability.
    EPA received a number of technical comments related to testing and 
monitoring methodologies. These comments addressed limitations and 
difficulties of applying specific sampling methods to barns and manure 
storage facilities (e.g., maintenance and operating procedures, the 
citing of samplers, sampling procedures, sampling frequency, method 
selection, and others).
    Several commenters stated that real-time monitoring data should be 
made available online to the public. Other commenters said that the 
industry participants and independent researchers that conduct the 
monitoring should have access to the data and be encouraged to publish 
the data.
    Response: The comments EPA received on testing and monitoring-
related issues came primarily from

[[Page 40021]]

researchers with experience in evaluating and monitoring emissions from 
the processes and animal groups addressed by the Agreement. These 
comments contain useful advice on the application of testing and 
monitoring methods, sampling locations, equipment selection, and 
maintenance as well as suggestions for avoiding potential pitfalls. 
These comments will be passed to the Science Advisor for consideration 
in developing site-specific testing and monitoring plans. As stated in 
the Agreement, all the emissions data collected will be made available 
to the public. Throughout the course of the study, the IMC will submit 
quarterly progress reports to EPA and provide all emissions data and 
analysis to the EPA as soon as possible. The EPA will review the data 
to validate the suitability for use in developing emission estimation 
tools. As the study progresses, EPA will periodically release interim 
findings to the public. At this time, the schedule for release and the 
format of the data have not been determined.
    Comment: Industry-Sponsored Study.
    A number of commenters stated that industry should not be 
responsible for the monitoring study because the results of the study 
could not be accepted as unbiased, especially since there is no outside 
oversight of the monitoring by EPA or anyone else not connected with 
the industry.
    Response: Throughout the study, the activities of the Principal 
Investigators will be subject to review and approval by EPA. The IMC 
must submit to EPA a proposed monitoring plan (including selection of 
the farms to be tested) for review and approval. The Agreement also 
requires the IMC to submit quarterly progress reports to EPA and 
schedule periodic meetings with EPA (additional meetings can be 
scheduled at the request of EPA). The IMC must notify EPA promptly of 
any problems or adjustments made to the approved plan. The EPA also 
will have access to the farms participating in the study to verify or 
observe the conduct of the monitoring. All emissions data generated and 
all analyses of the data made by the IMC during the monitoring study 
will be provided to EPA as soon as possible. EPA will review and 
analyze the data to verify credibility for use in developing the 
emissions-estimation methodologies. The emissions data also will be 
made available to the public.
    Since the inception of the CAA, most emissions data that have been 
used for regulatory applicability determinations and environmental 
rulemaking have been developed by industry. EPA policy requires that 
the data be collected using federally approved test methods. EPA 
reviews the final test reports and is the final authority on the 
acceptability of the data. The monitoring protocol for AFO differs only 
in the scope of the monitoring study and the additional degree of EPA 
involvement in the up-front planning of the study.
    Comment: Process-Based Models.
    Several commenters stated that the emissions-estimating 
methodologies developed by EPA should be process-based models as 
suggested by the National Academy of Sciences. In addition, development 
of the emissions-estimating methodologies should be an open process, 
with citizen and State involvement and peer review.
    Response: In the short-term, the monitoring study is designed to 
produce scientifically sound emissions-estimating methodologies for 
making regulatory applicability decisions for AFO. Our longer-term 
strategy involves development of process-based models that consider the 
entire animal production process, consistent with the recommendations 
from the National Academy of Sciences. The data collected in the 
monitoring study, along with other valid scientific studies that are 
available will be used to develop the process-based models. EPA has not 
determined the process by which emissions-estimating methodologies will 
be developed. EPA anticipates that the process will provide the 
opportunity for public input and review. However, the timing and extent 
of review have not been determined.
    Comment: Claim that Agreement is a Rule.
    Several commenters expressed the opinion that the Agreement was a 
rule, not an adjudication, and was, therefore, subject to the 
Administrative Procedure Act's procedures for rulemaking. Commenters 
expressed two concerns. First was a belief that the Agreement will 
excuse a large part of the industry from compliance with the CAA, 
CERCLA, and EPCRA for several years. Second, commenters expressed 
concern that binding emission evaluating protocols would be established 
without adequate public input.
    Response: Each Agreement that will be entered into by EPA is a 
settlement of potential civil violations under the Clean Air Act, 
CERCLA, and EPCRA and, therefore, clearly the result of an 
adjudication. It contains all the classic elements of an adjudicatory 
settlement, including an allegation of potential violations, a civil 
penalty, a resolution of liability, and a requirement that the 
participating farms come into compliance with all applicable regulatory 
requirements. While the commenters object that the Agreement does not 
require immediate compliance, it is common for settlements to establish 
a compliance schedule. Here, the Agreement requires that the 
participating company must first determine the amount of their 
emissions and which regulatory requirements apply, and then is required 
come into compliance expeditiously once that determination is made. The 
fact that EPA has chosen to exercise its enforcement discretion to 
enter into essentially the same settlement agreement with a class of 
facilities that may have the same potential violations does not convert 
the adjudicatory process into a rulemaking one.
    With regard to commenters' second concern, EPA has not determined 
the process by which emissions-estimating methodologies will be 
developed and anticipates that the process will provide the opportunity 
for public input and review. Because neither the final form of the 
emissions-estimating methodologies nor the process by which they will 
be developed has yet been determined, commenters' claim that EPA has 
failed to comply with procedural requirements is premature.
    Comment: Liability Impacts in Other Areas.
    EPA received a number of comments on potential adverse consequences 
of ``admitting liability'' by participation in the Agreement, with 
payment of a penalty pursuant to Paragraph 48 of the Final Order. Some 
farmers raised concerns that participation could affect their credit, 
immigration status, and ability to participate in other government 
programs.
    Response: As noted earlier, participation in the Agreement is not 
an admission of liability. Paragraph 3 of the Agreement makes clear 
that execution of the Agreement 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.'' Consistent with EPA's practice in 
settling both civil judicial and administrative matters, the Agreement 
states that, ``participation in this Agreement is not an admission of 
liability.'' Concerns that signing the Agreement may serve as an 
admission are addressed in the Agreement. No further clarification is 
necessary. Second, as set out in Paragraph 2 of the Agreement, the 
purpose of the Agreement is to ensure that participants comply with 
applicable requirements of the CAA and applicable reporting provisions 
of CERCLA and EPCRA.

[[Page 40022]]

Participation should not give rise to any inference of wrongdoing. To 
the contrary, EPA deems those who choose to participate to be 
cooperatively addressing an industry-wide problem, acting responsibly 
and proactively.
    Further, until the results of the study are published and EPA 
determines emissions factors, it can be difficult for participants to 
determine their compliance status. The Agreement provides a mechanism 
for resolution of civil liability, as set out in the Agreement, that is 
designed to achieve compliance for large segments of the industry as 
rapidly as possible. For all of these reasons, participants should not 
suffer adverse consequences in any other public or private application, 
program, or proceeding for voluntarily undertaking this action.

Conclusion

    Interested parties should refer to the January 31, 2005, Federal 
Register notice (70 FR 4958) to view the consent agreement and final 
order at Appendix 1, Attachment A--Farm Information Sheet, and 
Attachment B--National Air Emissions Monitoring Study Protocol.

    Dated: June 30, 2005.
Sally L. Shaver,
Director, Emission Standards Division, Office of Air Quality Planning 
and Standards.
    Dated: July 5, 2005.
Robert A. Kaplan,
Director, Special Litigation and Projects Division, Office of Civil 
Enforcement and Compliance Assurance.
[FR Doc. 05-13672 Filed 7-11-05; 8:45 am]
BILLING CODE 6560-50-P