[Federal Register Volume 85, Number 165 (Tuesday, August 25, 2020)]
[Notices]
[Pages 52343-52346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18649]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-10013-70-Region 4]


Order Denying Petition To Set Aside Consent Agreement and 
Proposed Final Order

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of order denying petition to set aside consent agreement 
and proposed final order.

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SUMMARY: In accordance with the Code of Federal Regulations and the 
Clean Water Act (``CWA or ``Act''), notice is hereby given that an 
Order Denying Petition to Set Aside Consent Agreement and Proposed 
Final Order has been issued in the matter styled as In the Matter of 
Jerry O'Bryan, Curdsville, Kentucky, Docket No. CWA-04-2018-5501(b). 
This document serves to notify the public of the denial of the Petition 
to Set Aside Consent Agreement and Proposed Final Order filed in the 
matter and explain the reasons for such denial.

ADDRESSES: To access and review documents filed in the matter that is 
the subject of this document, please visit: https://yosemite.epa.gov/oa/rhc/epaadmin.nsf/07a828025febe17885257562006fff58/4a9eaf5114545a51852584b700740a38!OpenDocument.

FOR FURTHER INFORMATION CONTACT: Patricia Bullock, Regional Hearing 
Clerk, Environmental Protection Agency, Region 4, 61 Forsyth Street, 
Atlanta, Georgia 30303; telephone number: 404-562-9511; email address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Legal Authority

    Section 404 of CWA, 33 U.S.C. 1344(f)(2), requires a permit for 
``any discharge of dredged or fill material into navigable waters 
incidental to any activity having as its purpose bringing an area of 
the navigable waters into a use to which it was not previously subject, 
where the flow or circulation of navigable waters may be impaired or 
the reach of such waters be reduced. . . .'' Section 301(a) of the CWA, 
33 U.S.C. 1311, provides that, ``the discharge of any pollutant into 
waters of the United States . . . except as in compliance with sections 
301 . . . and 1344 shall be unlawful. Sections 309(g)(1) and (g)(2) of 
the CWA empower the Environmental Protection Agency (``EPA,'' 
``Complainant'' or ``Agency'') to assess a Class 1 or Class 2 civil 
administrative penalty against any person found to have violated 
section 1311 . . . of the CWA or [who] has violated any permit 
limitation or condition implementing any such sections in a permit . . 
. issued under Section 1344.
    Before issuing an order assessing a Class I civil penalty under 
Section 309(g) of the CWA, the EPA is required by the Act and 
``Consolidated Rules of Practice Governing the Administrative 
Assessment of Civil Penalties and the Revocation/Termination or 
Suspension of Permits'' (Consolidated Rules) to provide public notice 
of and reasonable opportunity to comment on the proposed issuance of 
such order. (33 U.S.C. 1319(g)(4)(A); 40 CFR 22.45(b)).
    Any person who comments on the proposed assessment of a Class I 
civil penalty under 33 U.S.C. 1319(g)(4)(B) is entitled to receive 
notice of any hearing held under this Section and at such hearing is 
entitled to a reasonable opportunity to be heard and to present 
evidence. (33 U.S.C. 1319(g)(4)(B); 40 CFR 22.45(c)). If no hearing is 
held before issuance of an order assessing a Class I civil penalty 
under 33 U.S.C. 1319(g)(4)(C) of the CWA, such as where the 
administrative penalty action in question is settled pursuant to a 
consent agreement and final order (CAFO), any person who commented on 
the proposed assessment may petition to set aside the order on the 
basis that material evidence was not considered and request a hearing 
be held on the penalty. (33 U.S.C. 1319(g)(4)(C); 40 CFR 
22.45(c)(4)(ii)).
    The CWA requires that if the evidence presented by the Petitioner 
in support of the petition is material and was not considered in the 
issuance of the order, the Administrator shall immediately set aside 
such order and provide a hearing in accordance with Section 
309(g)(4)(C) of the CWA, 33 U.S.C. 1319(g)(4)(C). On the other hand, if 
the Administrator denies a hearing, the Administrator shall provide to 
the petitioner, and publish in the Federal Register notice of and 
reasons for such denial. Id.
    Pursuant to Section 309 of the CWA, the authority to decide 
petitions by commenters to set aside final orders entered without a 
hearing and provide copies and/or notice of the decision has been 
delegated to Regional Administrators in administrative penalty actions 
brought by regional offices of EPA. (See EPA Administrator's Delegation 
of Authority 2-51). The Region 4 Administrator has delegated authority 
to decide such petitions to the Regional Judicial Officer. (See Region 
4 Delegation of Authority 2-51, Class I Administrative Penalty Action). 
The Consolidated Rules require that where a commenter petitions to set 
aside a CAFO in an administrative penalty action brought by a regional 
office of the EPA, the Regional Administrator shall assign a Petition 
Officer to consider and rule on the petition. (40 CFR 
22.45(c)(4)(iii)). Upon review of the petition and any response filed 
by the Complainant, the Petition Officer shall then make written 
findings as to: (A) The extent to which the petition states an issue 
relevant and material to the issuance of the consent agreement and 
proposed final order; (B) whether the complainant adequately considered 
and responded to the petition; and (C) whether resolution of the 
proceeding by the parties is appropriate without a hearing. (40 CFR 
22.45(c)(4)(v)).
    If the Petition Officer finds that a hearing is appropriate, the 
Presiding Officer shall order that the consent agreement and proposed 
final order be set aside and establish a schedule for a hearing. (40 
CFR 22.45(c)(4)(vi)). Conversely, if the Petition Officer finds that 
resolution of the proceeding without a hearing is appropriate, the 
Petition Officer shall issue an order denying the petition and stating 
reasons

[[Page 52344]]

for the denial. (40 CFR 22.45(c)(4)(vii)). The Petition Officer shall 
then file the order with the Regional Hearing Clerk, serve copies of 
the order on the parties and the commenter, and provide public notice 
of the order. Id.

II. Procedural Background

    On or about May 10, 2018, the Director of the Water Division of EPA 
Region 4 and Jerry O'Bryan (Respondent) executed an Administrative 
Compliance Order on Consent (AOC) in the matter styled, In the Matter 
of Jerry O'Bryan Curdsville, Kentucky, Docket No. CWA-04-2018-5755. The 
AOC pertained to discharge of dredged and/or fill material using earth 
moving equipment by Respondent that resulted in the conversion of 
wetlands to agricultural land in or around June 2016. Respondent's 
discharge activities impacted approximately 2.1 acres of wetlands 
adjacent to the Green River, a traditionally navigable water of the 
United States, and approximately 800 linear feet of an unnamed 
tributary to the Green River. During the discharge, Respondent did not 
have a permit under section 404 of the CWA, 33 U.S.C. 1344, that 
authorized Respondent to perform such activities. Section 301 of the 
CWA, 33 U.S.C. 1311, makes it unlawful for any person to discharge 
pollutants into waters of the United States without proper permit 
authorization, including Section 404 of the CWA. Accordingly, the AOC 
determined Respondent's activities of discharging pollutants into 
navigable waters without a permit violated Section 301 of the CWA, 33 
U.S.C. 1311.
    Under the authority of Section 309(a) of the CWA, 33 U.S.C. 
1319(a), the EPA ordered, and Respondent agreed and consented to 
restore the impacted wetlands in accordance with a signed restoration 
plan prepared by the United States Department of Agriculture/Natural 
Resource Conservation Service on March 2, 2017. Respondent also agreed 
to comply with timelines concerning the construction start date, 
construction completion date, and inspection date of the restored site.
    Thereafter, the EPA and Respondent agreed to resolve Respondent's 
liability for federal civil penalties associated with Respondent's 
unauthorized discharge of dredged and/or fill material in the proposed 
CAFO, titled Docket No.: CWA-04-2018-5501(b). The CAFO sought to 
simultaneously commence and conclude an administrative penalty action 
under section 309(g)(2)(A) of the CWA. Under the terms of the CAFO, 
Respondent admitted the jurisdictional allegations set forth in the 
CAFO, but neither admitted nor denied the factual allegations and 
alleged violations. Respondent waived his right to a hearing or to 
otherwise contest the CAFO, and agreed to pay a civil penalty in the 
amount of $3346 and perform a Supplemental Environmental Project (SEP) 
to resolve the alleged CWA Section 404 violations. The SEP entails the 
conversion of approximately 281.9 acres of farmland located adjacent to 
the Green River from conventional farming practices to a soil health 
management farming system.
    On May 30, 2018, EPA provided public notice of its intent to file 
the proposed CAFO and accept public comments thereon. The EPA received 
six timely filled comment letters during the public comment period. All 
commenters opposed issuance of the proposed CAFO. The Community Against 
Pig Pollution and Disease, Inc. (CAPPAD or Petitioner) was one of six 
commenters. Complainant subsequently prepared a Summary of and Response 
to Public Comments (Response to Comments), which indicated the EPA 
would proceed with the proposed CAFO without amendment. The EPA mailed 
the Response to Comments together with a copy of the proposed CAFO to 
CAPPAD and other commenters on or about August 20, 2019. Complainant 
subsequently corrected a ministerial error in Paragraph 35 of the CAFO, 
and mailed replacement pages to CAPPAD and the other commenters on 
August 23, 2019. CAPPAD received the documents on August 27, 2019. 
CAPPAD timely filed a Petition seeking to set aside the proposed CAFO 
on or about September 17, 2019.
    The EPA Region 4 Administrator received the Petition on September 
24, 2019. Pursuant to 40 CFR 22.45(c)(4)(iii), Complainant considered 
the issues raised in the Petition and decided not to withdraw the CAFO. 
On October 24, 2019, the Region 4 Administrator assigned the 
undersigned as Petition Officer to preside over this matter. (40 CFR 
Sec.  22.45 (c)(4)(iii)). The Region 4 Administrator directed 
Complainant to provide a copy of the CAFO and file a written response 
to the Petition with the Petition Officer within 30 days of the 
assignment. (40 CFR 22.45(c)(iv)).
    Complainant filed its Response to the Petition to Set Aside Consent 
Agreement and Proposed Final Order (Response to Petition) on November 
19, 2019, with the Regional Hearing Clerk and served copies on 
Respondent and Petitioner. Complainant's filing with the Regional 
Hearing Clerk was erroneous since 40 CFR 22.45(c)(4)(iv) states, ``A 
copy of the response shall be provided to the parties and to the 
commenter, but not to the Regional Hearing Clerk or Presiding 
Officer.'' The Regional Hearing Clerk accepted the Response to 
Petition, but did not forward the file to the Petition Officer. On 
December 3, 2019, the Petition Officer inquired by email whether 
Complainant filed a response to the Petition. Complainant realized the 
erroneous filing with the Regional Hearing Clerk and sought to correct 
the matter by filing a ``Memorandum In Support of Motion For Leave To 
File Response to Petition Under 40 CFR 22.45(c)(4)(iv).'' On December 
9, 2019, the Petition Officer granted the motion finding that no harm 
resulted to Petitioner since the Complainant timely served the Response 
to Petition on the Petitioner and Respondent. Additionally, the 
Regional Hearing Clerk accepted and retained the file but did not 
forward the file to the Petition Officer.

III. Denial of Petitioner's Petition

    On July 24, 2020, the undersigned filed an ``Order Denying the 
Petition to Set Aside Consent Agreement and Proposed Final Order'' 
(Order) with the Regional Hearing Clerk (RHC), who served copies of the 
Order and enclosures on the Parties. On July 28, 2020, the undersigned 
filed a Corrected Order with the RHC for the purpose of correcting the 
title on page 21 to read ``Petition Officer.'' The undersigned also 
corrected numbers for topical headings on pages 17 and 18 to state, 
``5'' and ``6'', rather than ``6'' and ``7''. In this Order, the 
undersigned denied the Petition without need for a hearing on the basis 
that Petitioner had failed to present any relevant and material 
evidence that had not been adequately considered and addressed by 
Complainant.
    The Petitioner raised several issues in its Comments and Petition 
regarding Respondent's animal feeding operations (AFOs) in Curdsville, 
Kentucky. The undersigned categorized these issues into six headings as 
addressed below. First, Petitioner argued Respondent owns and operates 
concentrated animal feeding operations (AFOs) in violation of 
environmental laws, and argued the Kentucky Department of Water (KDOW) 
refused to verify hog counts, and collect water and soil samples. 
Specifically, Petitioner argued Respondent owns and operates large 
concentrated AFOs that discharge into waters of the United States. 
Petitioner also argued Respondent's operations meet the definition of 
large concentrated AFOs as stated in the Kentucky Administrative 
Regulation (KAR) 401 KAR 5.002 and 40 CFR 122.23(b)(2). Petitioner 
asserted

[[Page 52345]]

Respondent's farms at Doby/Bumblebee, Iron Maiden and Hardy discharged 
E. Coli with readings in excess of 4,4870 CFU/100 ml per sample into 
the Green River, and such readings violate the Ambient Water Rule. 
Petitioner opined KDOW should rescind the Kentucky No Discharge 
Operating Permits (KNDOPs) initially issued Respondent, and replace 
these permits with Kentucky Pollutant Discharge Elimination System 
(KPDES) permits. Petitioner also asserted that it provided information 
concerning the number of hogs on Respondent's farms, readings from 
water samples, and other unlawful activities committed by Respondent to 
KDOW. However, Petitioner contends KDOW has refused to verify the 
number of hogs, collect its own samples, and otherwise enforce 
compliance with the CWA.
    The undersigned determined that Complainant considered and 
addressed issues raised by Petitioner in its Response to Comments and 
Response to Petition. The undersigned found that issues raised 
regarding Respondent's AFOs at properties other than the Simpson McKay 
farm, and activities allegedly committed by Respondent in violation of 
Section 402 of the CWA are not relevant or material to allegations 
raised in the proposed CAFO. The undersigned further found that 
Complainant addressed Petitioner's claims that KDOW did not exercise 
proper oversight of Respondent's operations. For instance, Complainant 
explained that the Kentucky Department for Environmental Protection 
(KDEP) has authority to issue KNDOPs and KPDES permits, and described 
conditions appropriate for issuance of such permits. The undersigned 
concluded that Petitioner did not meet its burden of demonstrating that 
matters concerning Respondent's AFOs and KDOW's alleged lack of 
oversight of Respondent's operations are material and relevant evidence 
that Complainant had not considered in agreeing to the CAFO. Thus, this 
claim was denied.
    Second, Petitioner argued in its Petition that Respondent's AFOs 
lack necessary wastewater treatment facilities. In both its Comments 
and Petition, Petitioner asserted Respondent added barns and hogs to 
his AFOs, exceeding what was authorized in initial permits issued by 
KDOW. Petitioner further asserted Respondent did not increase the 
volume of lagoons that would service the additional barns and hogs, 
resulting in Respondent spraying excess effluent. Petitioner stated in 
its Petition that Respondent does not have wastewater treatment plants 
for his large AFOs and described the sites as, ``a large hole in the 
ground, not lined, not regulated or tested, and [not having] ground 
water monitoring wells at five locations.'' (Petitioner's Petition, p. 
2). The undersigned found that Complainant considered and addressed 
this issue and related allegations. Complainant explained that KDEP has 
authority to administer the National Pollutant Discharge Elimination 
System program, and thus KDEP issues KNDOPs for nondischarging AFOs and 
issues KPDES permits for AFOs that discharge into waters of the United 
States.\1\ Complainant referred issues raised by Petitioner and 
commenters to KDEP and reported action taken by this agency. (Response 
to Comments, p. 000132-000133). Additionally, Complainant argued in its 
Response to Petition that the lack of wastewater treatment facilities 
at Respondent's AFOs is not related to allegations set forth in the 
proposed CAFO, and therefore is not material or relevant evidence. The 
undersigned concluded this issue, which concerns Respondent's 
management of AFOs, did not constitute relevant and material evidence 
that Complainant had not considered in agreeing to the proposed CAFO. 
Thus, this claim was denied.
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    \1\ This authority is pursuant to National Pollutant Discharge 
Elimination System Memorandum of Agreement Between the Commonwealth 
of Kentucky and United States Environmental Protection Agency region 
4 (March 10, 2008).
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    Third, Petitioner argued in its Comments and Response that 
Respondent constructed a dam on Hardy Farm that floods a landowner's 
adjacent property during heavy rainfall. Petitioner opined this 
construction was a clear violation of the CWA. Petitioner stated KDOW 
inspected the construction, and in the inspection report, merely 
suggested that Respondent obtain a stream construction permit. 
Dissatisfied with KDOW, Petitioner referred the matter to the U.S. Army 
Corps of Engineers (USACE). In the Petition, Petitioner referred to 
this construction as ``the Hardy Sow Farm Black Water illegal bypass'' 
and stated water samples collected in 2018 from the lagoon revealed E. 
coli counts greater than 173,300 C.F.U./100 ML sample and ammonia 
nitrogen concentration greater than 950 mg/L. See Petitioner's Comment, 
p. 000175-000176. In Complainant's Response to Comments and Response to 
Petition, Complainant explained that the proposed CAFO only resolves 
allegations against Respondent for the unauthorized discharge of 
dredged and/or fill material at the Simpson/McKay farm in or about June 
2016 in violation of Section 404 of the CWA, 33 U.S.C. 1344. (Response 
to Comments, p. 000127). Complainant also explained the role of USACE 
as the lead enforcement agency for unpermitted discharges, and referred 
Petitioner's allegations to USACE. Id. In its Response to Petition, 
Complainant emphasized that allegations pertaining to Hardy Farm, which 
is not the Farm identified in the CAFO, are not relevant or material to 
allegations raised in the proposed CAFO. The undersigned determined, as 
argued by Complainant, that allegations raised concerning the dam at 
Hardy Farm does not constitute relevant and material evidence, and that 
Complainant thoroughly addressed allegations raised by Petitioner. The 
undersigned also determined that Petitioner did not offer any evidence 
that refutes, or casts doubt on evidence and assertions presented by 
Complainant. Therefore, this claim was denied.
    Fourth, Petitioner argued Respondent's AFOs have adversely impacted 
the community. Specifically, Petitioner stated their property values 
have declined because of contaminated water and depleted air quality 
caused by Respondent's activities. Petitioner further stated that 
``taxpayers have footed the bills for highway repair due to hog trucks 
wrecking and hog trucks spilling manure onto highways.'' (Petitioner's 
Petition, p. 000176). The undersigned found that the Petitioner had not 
demonstrated that the alleged adverse impact upon the community was 
caused or related to Respondent's unauthorized discharge of dredged 
and/or fill material at the Simpson/McKay Farm, as alleged in the 
proposed CAFO. Thus, this issue does not constitute relevant and 
material evidence. The undersigned also found that Complainant 
considered and responded to this issue. Therefore, this claim was 
denied.
    Fifth, Petitioner recommended that several conditions be added to 
the proposed CAFO and that the penalty be enhanced to deter Respondent 
from engaging in similar behavior in the future. (Petitioner's Comments 
p. 000052). As an example, Petitioner recommended that EPA exercise 
oversight of Respondent's operations after the SEP is completed and 
that EPA conduct unannounced inspections and review permits issued by 
KDOW at five farms owned and operated by Respondent. The undersigned 
determined that Complainant adequately considered and responded to 
Petitioner's recommendations, and explained its actions were consistent 
with Agency policies, statutes and

[[Page 52346]]

regulations. Specifically, Complainant explained that its actions were 
consistent with or mandated by the EPA Clean Water Act Section 404 
Settlement Penalty Policy and EPA Supplemental Environmental Projects 
Policy. Complainant further explained that actions taken by EPA were in 
accordance with applicable regulations and statutes. The undersigned, 
therefore, denied Petitioner's recommendations to modify the proposed 
CAFO.
    Sixth, Petitioner requested a hearing, arguing the proposed 
settlement and penalty are inadequate. At such hearing, Petitioner 
proposed presenting evidence of Respondent's prior infractions, 
Respondent's behavior as a habitual violator, and demonstrate that a 
severe penalty is warranted. The undersigned determined that the 
Consolidated Rules and Section 309(g)(4)(C) of the CWA do not provide 
for a hearing of this nature. Rather, evidence would be presented for 
the purpose of determining whether Complainant met its burden of 
proving that Respondent committed the violations as alleged in the CAFO 
and that the penalty is appropriate based on applicable law and policy. 
The undersigned noted that Petitioner did not offer material or 
relevant evidence, either documentary or testimonial, that it would 
present at such hearing. The undersigned further noted that Petitioner 
did not offer any evidence or arguments in its Comments or Petition 
that had not adequately been addressed by Complainant. For these 
reasons, the undersigned found that resolution of the proceeding by the 
Parties without a hearing would be appropriate.
    The undersigned therefore issued the Order Denying Petition to Set 
Aside Consent Agreement and Proposed Final Order.

    Dated: August 19, 2020.
Robin Allen,
Petition Officer, Region 4.
[FR Doc. 2020-18649 Filed 8-24-20; 8:45 am]
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