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Federal Court to Decide if Regulators Can Limit Air Emissions Under the Clean Water Act

07.09.2012

By Jennifer Thompson, Attorney, Bingham Greenebaum Doll LLP

On June 14, 2012, Lois Alt, a West Virginia owner and operator of a poultry-broiler farm, filed a lawsuit in the U.S. District Court for the Northern District of West Virginia seeking a declaration that EPA acted arbitrary, capricious, not in accordance with law and in excess of EPA’s jurisdiction and authority under the Clean Water Act (CWA) in determining that she violated the CWA and must apply for a National Pollutant Discharge Elimination Permit (NPDES).  The case is entitled Alt v. U.S. EPA, Civil Action No. 2:12-cv-42.   

The lawsuit questions EPA’s November 14, 2011 Findings of Violation and Order for Compliance (the Order) which found the farmer in violation of Section 301 of the Clean Water Act and 40 CFR § 122.21 for operating “a point source that is designed, constructed, operated, and maintained in a manner that has discharged pollutants from man-made ditches via sheet flow to Mudlick Run [a perennial stream] during rain events generating runoff without having obtained an NPDES permit.”  Order at 4.

EPA’s Order alleges that the farmer’s poultry houses are equipped with fans that blow dust containing “feathers and fine particulates of dander and manure” onto the ground which “would come into contact with precipitation during rain events and generate process wastewater that is carried into the nearby man-made ditches.”  Order at 3.   EPA also found that “manure on the ground .  .  .  would come into contact with precipitation during rain events and generate process wastewater that is carried into the nearby man-made ditches and/or flow via sheet flow in a southern direction across an access lane to land owned by a neighbor.”  Order at 3. 

Ms. Alt’s farm is a dry litter operation, all confinement and storage areas are under roof.  No water is discharged from inside the areas to waters of the United States.  The only run off is precipitation that falls on the roofs or on the farm yard.  The Order did not make any allegations that storm water did or could come into contact with pollutants inside the poultry house or other portions of the production area at the farm. 

A similar case is on appeal in state court in North Carolina, Rose Acre Farms and North Carolina Poultry Federation v. North Carolina Department of Environment and Natural Resources.  Just like with the federal case, the suit involves whether feathers and dust from ventilation systems are discharges subject to the NPDES requirements.  Additionally, the Rose Acres case involves NPDES best management practices to reduce air emissions and allegations that ammonia emissions from the farm are depositing directly onto a nearby wildlife refuge.  Originally the administrative law judge found in favor of industry on a summary judgment motion, and overturned the state-issued NPDES permit for the state’s largest egg farm.  However, the North Carolina reviewing board found that the administrative law judge must reconsider his ruling, and that decision has been appealed to state court.    

Both cases are important because they could have broad implications for concentrated animal feeding operations as well as industrial facilities and power plants that emit emissions such as mercury or nitrogen that deposit into waters.  

In fact, the Indiana Department of Environmental Management (IDEM) has included the following best management practices in its standard language for Individual Industrial Storm Water NPDES Permits.  “As part of the routine inspections, address all potential sources of pollutants, including (if applicable) air pollution control equipment (e.g. baghouses, electrostatic precipitators, scrubbers, and cyclones), for any signs of degradation (e.g. leaks, corrosion, or improper operation) that could limit their efficiency and lead to excessive emissions.  Consider monitoring air flow at inlets and outlets (or use equivalent measures) to check for leaks (e.g. particulate deposition) or blockage in ducts.”


To view a complete PDF of the May/June 2012 issue of the Environmental Letter, click HERE.

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