E6-7330. Animal Feeding Operations Consent Agreement and Final Order

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

EPA is considering the disclosure of certain information that may be subject to a claim of confidential business information (CBI) in connection with a proceeding before EPA's Environmental Appeals Board (EAB). The information is the name and address of Animal Feeding Operations (AFOs) who have submitted consent agreements and final orders to EPA to resolve potential civil violations related to air emissions from their facilities. EPA is requesting comments from the effected AFOs regarding the potential disclosure of their names and address.

DATES:

Comments must be received by May 22, 2006.

ADDRESSES:

Submit comments to:

Director, Attn: AFO CAFO Confidential Business Information Comments, Special Litigation and Projects Division (2248A), 1200 Pennsylvania Ave., NW., Washington, DC 20460.

Comments may also be submitted via facsimile to [phone] or via e-mail at [e-mail].

FOR FURTHER INFORMATION CONTACT:

For further information regarding this notice, contact Bruce Fergusson at [phone] or at [e-mail].

SUPPLEMENTARY INFORMATION:

On January 31, 2005, EPA offered certain Animal Feeding Operations (AFOs) the opportunity to sign a consent agreement and final order resolving potential violations 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) (henceforth referred to as the “Air Compliance Agreement” or the “Agreement”). By the close of the sign-up period on August 12, 2005, EPA had received over 2600 signed Agreements from AFOs. Approximately 1200 of the Agreements included broad claims by the submitting AFOs that the facility specific information that was required to be submitted in Attachment A to the Agreements was entitled to confidential treatment for reasons of business confidentiality (CBI). These broad claims potentially included the name of the facility and its address, which are found in Attachment A to the Agreements. EPA is considering the disclosure of the names and addresses of these AFOs in connection with the submittal of these proposed consent agreements and final orders to the EAB for approval.

With respect to proceedings commenced at EPA Headquarters, EPA is required to obtain a final order from the EAB ratifying any consent agreement that disposes of the proceeding. In accordance with this requirement, EPA submitted 20 Agreements, which did not contain any CBI claims, to the EAB on November 11, 2005, for approval. On January 27, 2006, the Board approved the first 20 Agreements. On April 11, 2006, EPA submitted 702 additional Agreements, which did not contain any CBI claims, to the EAB for approval. These additional Agreements were approved on April 17, 2006.

EPA is preparing to submit most of the approximately 1200 Agreements that contain information claimed as CBI to the EAB for review and approval. In connection with those proceedings, EPA is considering the disclosure of the names and addresses of the AFOs who signed the Agreements (the Respondents) pursuant to 40 CFR 2.301(g) (“Disclosure of information relevant to a proceeding”), notwithstanding that the information may be subject to a CBI claim. EPA's filings with the EAB are public, thus this information would be available to the public upon EPA's filing of the proposed Agreements and final orders. EPA is not considering, at this time, disclosing to the public any other information that has been claimed to be CBI. EPA is considering disclosing names and addresses because, initially, it appears that: (1) The names and addresses of the Respondents are relevant to the subject of the proceedings; (2) the public interest would be served by making available the names and addresses of the businesses with which EPA will be entering into consent agreements; and (3), the names and addresses of these businesses are reasonably attainable by other persons through public records such as telephone books and other business listings.

EPA is hereby providing an opportunity for any affected AFO to provide comments on the proposal by EPA to make their names and addresses available as part of the proceeding before the EAB to approve their Agreement. Such comments should address the issue of whether its name and address are relevant to the proceeding and whether it is in the public interest to disclose that information. The affected AFO may also address the issue of whether its name and address are entitled to confidential treatment pursuant to the criteria set forth in 40 CFR 2.208, including whether the information is reasonably obtainable by other persons through legitimate means. All comments should be submitted within five (5) days of the date of this notice. EPA is not seeking, or considering, comments from anybody other than the affected AFOs.

In accordance with 40 CFR 2.204(e)(1), any failure by an AFO to furnish timely comments will be construed as a waiver of its claim, and EPA will forward their Agreement to the EAB for review and approval no earlier than five (5) days after the close of the comment period. Although the names and addresses of the AFOs will be available to the public at that time, other information about the facility claimed as CBI will continue to be handled in accordance with EPA's CBI regulations. For those AFOs who furnish timely comments, EPA will proceed to make a determination under 40 CFR 2.301(g) after the close of the comment period.

Dated: May 9, 2006.

Robert A. Kaplan,

Director, Special Litigation and Project Division, Office of Civil Enforcement, Office of Enforcement and Compliance Assurance.