Rose Acre Farms, North Carolina state regulators battle in court
The stakes are high as state regulators attempt to use the federal Clean Water Act to restrict airborne emissions from a layer complex.
Can the compounds leaving a layer house via fan exhaust be regulated under federal clean-water laws? North Carolina’s Division of Water Quality thinks so, but Rose Acre Farms disagrees, and the matter is headed to superior court in Hyde County, N.C.
Rose Acre Farms has filed suit against the North Carolina Department of Environment and Natural Resources regarding the state’s demand that the farm obtain a Clean Water Act National Pollutant Discharge Elimination System permit for emissions of air pollutants that subsequently affect surface waters in the state. The lawsuit is the latest step in what has been a multi-stage contest.
The effects of air emissions on surface waters have been considered beyond the scope of the Clean Water Act’s authority in the past, and the North Carolina Department of Environment and Natural Resources' new approach has the potential to subject a wide variety of previously unregulated emission sources to regulation.
Rose Acre Farms’ Hyde County egg farm and egg packing operation houses approximately 3.5 million hens. The complex’s original National Pollutant Discharge Elimination System permit required that 100 percent of the manure generated at the complex be composted, and done so to specific standards for temperature and time. Approximately 30,000 tons of compost are produced annually and sold to local row crop and vegetable farmers.
When the complex’s National Pollutant Discharge Elimination System permit was up for renewal, the state required Rose Acre Farms to implement best management practices to reduce the amount of ammonia emitted to the atmosphere through the ventilation systems in the high-rise houses. Because of court rulings regarding which farms are required to have a permit, which were settled after Rose Acre Farms first received a permit for the Hyde County complex, most farms with dry litter operations were determined to not require permits. Rose Acre Farms is contesting the requirement that the Hyde County complex even requires a permit. The company is also contesting the requirement of best management practices for control of atmospheric deposition of ammonia, and the imposition of best management practices that had not been adopted or approved using the process required by the Tar-Pamlico River Basin NSW Management Strategy.
Rose Acre Farms won round one
In October of 2011, an administrative law judge ruled in favor of Rose Acre Farms that airborne ammonia discharges can’t be regulated under the federal Clean Water Act. But, the N.C. State Environmental Management Committee referred the case back to the Office of Administrative Hearings for a full hearing to determine if airborne emissions are ending up in the water. In January of 2012, a committee of the Environmental Management Commission issued a decision, which went against the judge's ruling, and said that the ammonia discharge could be regulated. This decision prompted Rose Acre Farm’s current lawsuit.
At issue in the case is whether a National Pollutant Discharge Elimination System permit is required for air emissions of ammonia and other pollutants that either are subsequently deposited into a body of surface water, or are deposited on the land where they then run off into surface water. Several courts have held that aerial application of pesticides to surface water requires a permit, but it appears that only one court has addressed how the Clean Water Act applies to atmospheric deposition of air emissions that are regulated by the Clean Air Act. In this one case, the court held that air emissions from a chemical weapons incineration facility did not require a permit, even if pollutants from the plant eventually were deposited in water.
If the North Carolina Department of Environment and Natural Resources' position is upheld, then industry and agriculture could face significant new regulatory obligations. Indeed, all discharges to surface waters are prohibited in the absence of a permit, and nearly every combustion source, industrial facility or commercial establishment has some amount of air emissions that will eventually find their way to surface water.
The U.S. Environmental Protection Agency has signaled in recent rule guidance for concentrated animal feeding operations that they expect National Pollutant Discharge Elimination System permit writers to address ventilation exhaust materials like ammonia, dust and feathers where such materials fall immediately to the ground and can mix with rainwater.
Possible legislative relief
The North Carolina State Senate is considering a bill (SB810) in which published reports have said it would include a declaration that airborne discharges from industrial or agricultural operations can’t be considered waste discharges into water.