Eight Isn't Enough: American Farm Bureau Permitted to Intervene In WV Poultry Dust Suit against EPA

On October 9, 2012, a federal judge in Elkins, West Virginia, issued an order allowing the American Farm Bureau Federation and the West Virginia Farm Bureau (Farm Bureau) to intervene in a lawsuit filed by a West Virginia poultry producer against the U.S. Environmental Protection Agency (EPA), Alt v. EPA.  The Farm Bureau’s intervention will result in bolstering the farmer’s efforts to challenge EPA’s position on “dust and feather” discharges in one of the first post-Sackett challenges to EPA authority to regulate Concentrated Animal Feeding Operations (CAFO).

Lois Alt is the owner and operator of Eight Is Enough, a poultry broiler operation near Old Fields, West Virginia.  Alt raises approximately 125,000 chickens per year at her farm located about 100 miles west of Washington, D.C.   Her farm is defined under EPA regulations as a CAFO.   Alt filed suit during June 2012, after EPA issued her an Administrative Compliance Order (ACO) which determined that her farm was in violation of the Clean Water Act (CWA) for discharging pollutants without a federal permit.

In the ACO, EPA accuses Alt of releasing dust consisting of feathers, dander and manure into the air from ventilation fans in her chicken barns.  EPA has no authority to regulate the emissions of dust and other particles onto land under the CWA; instead, the EPA claims that an unpermitted discharge occurs after the dust from the barns settles on the ground, mixes with stormwater and eventually reaches jurisdictional waters of the United States through man-made ditches.  EPA’s Order requires Alt to apply for a National Pollutant Discharge Elimination System (NPDES) permit and threatens her with a civil enforcement action if she fails to apply.  Statutory civil penalties under the CWA can reach $37,500 per day.

By way of background, the CWA requires point sources, including CAFOs, to obtain NPDES permits if the point source “discharges” into waters of the United States.  CAFOs historically have not been required to obtain NPDES permits because Congress exempted agricultural stormwater discharges from permit requirements.  CAFOs are frequently designed to prevent the discharge of pollutants and are described as “zero discharge facilities.”  Alt’s farm is a dry litter facility and wastewater is not discharged from the inside of the broiler houses; the only water that runs off the farm is rainwater.

The emission of particles containing dust, dander and manure from large farms is nearly unavoidable.  As a result, EPA’s order against Alt has substantial implications for farmers across the country.  If EPA prevails in this suit, thousands of large animal farms across the country may be subject to NPDES permitting requirements.  NPDES permits often include onerous provisions that require farmers to expend considerable sums of money and devote substantial managerial resources in order to comply with these requirements.

Until recently, recipients of ACOs could not challenge the EPA in federal court and were left with the unreasonable option of either complying with the order and applying for a permit or doing nothing and running the risk of substantial fines.  In March 2012, the U.S. Supreme Court, in Sackett v. EPA, unanimously held that recipients of ACOs could bring suit under the Administrative Procedure Act without awaiting an EPA enforcement action.   The Alt case is one of the first post-Sackett challenges to an ACO.  At a minimum, the right to bring suit against EPA gives farmers and others who receive ACOs a new ability to challenge excessive governmental authority.

The Alt case also represents the next chapter in EPA’s continuing efforts to require CAFOs to obtain NPDES permits.  During the past ten years, EPA has promulgated several rules which require CAFOs to obtain NPDES permits.  In 2003, EPA began requiring CAFOs to obtain NPDES permits if the CAFO discharged or had the “potential to discharge.”  In 2005, the Second Circuit, in Waterkeeper Alliance v. EPA, held that CAFOs could not be required to obtain NPDES permits on the basis of the “potential to discharge,” noting that the CWA only provided EPA with NPDES permitting authority over “actual discharges.”  In response to the Waterkeeper decision, EPA released a new CAFO Rule in 2008 which required CAFOs to obtain an NPDES permit if the facility discharged or “proposed to discharge.”  Not surprisingly, the Fifth Circuit struck the “propose to discharge” language in a 2011 case, National Pork Producers Council v. EPA.

It is now clear that EPA does not have authority under the CWA to require CAFOs to obtain NPDES permits unless those facilities “actually discharge.”  In response, EPA has turned its attention to air emissions from CAFOs in an attempt to establish “actual discharges” through the release of particles from ventilation fans.  If it succeeds in the Alt case, EPA will be one step closer to requiring CAFOs to obtain NPDES permits regardless of the lack of any impact the facility has on federal waters.  The Order granting the Farm Bureaus permission to intervene will begin to level the playing field as those associations have resources that Alt may not be able to provide on her own.

The Ag/FDABlog will be monitoring Alt v. EPA and providing readers with updates as they occur.

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