Posted on February 7, 2012 by Susan M. Franzetti
A rather surprising turn of events occurred recently in North Carolina, but the underlying reasons still remain unclear. On January 11, 2012, the North Carolina Environmental Management Commission (“EMC”), by a 4-3 vote, vacated an Administrative Law Judge’s (“ALJ”) decision on summary judgment that the Rose Acre egg farm’s airborne ammonia emissions are not subject to regulation under, and do not require, a National Pollutant Discharge Elimination System (“NPDES”) permit. The ALJ’s Decision and the parties’ pleadings are available here.The EMC remanded the matter back to the ALJ, August B. Elkins II, for a full evidentiary hearing. Thus, the case raises anew the question of whether a discharge to air can constitute a point source discharge to navigable waters of the United States which requires a NPDES permit under the Clean Water Act,. The answer may depend on whether such a discharge is found to remain “in the air” and not make its way by land “into the water.”
On October 17, 2011, ALJ Elkin found that the Rose Acre facility does not discharge or have the potential to discharge process wastewater (or manure, litter) to navigable waters of the United States. Judge Elkin’s relied on the March 2011 decision by the Firth Circuit Court of Appeals in National Pork Producers Council v. EPA, in which it held that the U.S. Environmental Protection Agency lacked the authority to require a NPDES permit for a facility that “proposes to discharge” or any facility that has not yet discharged into a navigable water of the United States. Judge Elkin held that the DENR has no authority to require Rose Acre to obtain an NPDES Permit.
Rose Acre is the site of 14 high-rise hen houses with a total of four million egg laying hens, located within the Tar-Pamlico River Basin in North Carolina. Rose Acre operates what is called a “dry-litter facility” that does not directly discharge into any waters. In 2009, before the Fifth Circuit’s decision in National Pork Producers Council that only CAFOs that actually discharge were required to secure a NPDES permit, Rose Acre applied for a NPDES permit. The Division of Water Quality of the North Carolina Department of Environment and Natural Resources (“DENR”) issued a NPDES permit to Rose Acre, which included conditions requiring amendment of the facility’s Best Management Plan (“BMP”). Rose Acre appealed, contending that it no longer needed an NPDES permit as well as challenging a number of the BMP conditions on the grounds that they exceeded the DENR’s regulatory authority. The ALJ granted Rose Acre summary judgment.
Existing precedent supports the ALJ’s decision. Both the Second and Tenth Circuit Court of Appeals have ruled that air emissions, even where there is atmospheric deposition into navigable waters, are not regulated by the Clean Water Act. The Second Circuit so held in its 2000 decision in No Spray Coalition, Inc. v. City of New York, dealing with insecticide spray to eradicate mosquitoes. In No Spray Coalition, the Second Circuit found that:
While the trucks and helicopters used to spray insecticides may be point sources…they discharge the insecticides into the atmosphere and not into navigable waters. It would be stretching the language of the [Clean Water Act] well beyond the intent of Congress to hold that the de minimus incidental drift over navigable waters of a pesticide is a discharge from a point source into those waters. The fact that a pollutant might ultimately end up in navigable waters as it courses through the environment does not make its use a violation of the Clean Water Act…To so hold would bring within the purview of the Clean Water Act every emission of smoke, exhaust fumes, or pesticides in New York City.
In 1997, the Tenth Circuit, in Chemical Weapons Working Group v. U.S. Department of the Army, refused to apply the Clean Water Act § 301(f) prohibition against disposal of chemical weapons into waters to smokestack emissions from a chemical weapons incinerator. The Tenth Circuit emphasized the potential duplication of regulation by the Clean Air Act as well as finding that under § 301(f), Congress clearly intended to authorize the incineration of chemical weapons. The Tenth Circuit also viewed the attempt to regulate stack emission under the Clean Water Act as contrary to plain old common sense. (“Although Plaintiffs may be correct in arguing that an object may fly through the air and still be ‘discharged…into the navigable waters’ under the Clean Water Act, common sense dictates that [the] stack emission constitute discharges into the air – not water- are therefore beyond § 301(f) reach.”).
Similarly, in American Canoe Assn. v. D.C. Water and Sewer Authority, the U.S. District Court for the District of Columbia rejected allegations that the D.C. Sewer Authority violated its NPDES permit by failing to install odor controlling carbon filters on sewer vents. The court found that attempts to control sewer gas or hydrogen sulfide fumes emanating from sewers in a NPDES permit are “unrelated to the general purposes of the CWA” and unenforceable obligations.
During oral argument on its challenge to the ALJ Elkin’s Rose Acre decision before a panel of the EMC, the DENR’s counsel appears to have successfully changed the focus of the legal inquiry from what’s in the air to what’s in the water? In its Exceptions to the ALJ’s Entry of Summary Judgment, the DENR contended that it had not attempted to regulate airborne emissions of ammonia. Instead, it now contends that Rose Acre does discharge to navigable waters, citing the fact that “with a rain event the feathers and dust from the ventilations fans at [Rose Acre] are flushed into a stormwater pond and then into waters of the State. The DENR further relied upon the comparative results of surface water monitoring taken before and the Rose Acre hens were stocked, which showed higher levels of ammonia nitrogen, total inorganic nitrogen, phosphorus and fecal coliform in surface water. Thus, the DENR took the position that although pollutants may initially be discharged “into the air,” if they wind up on the ground and then make their way to a regulated surface water, there is a “point source” discharge that is subject to regulation under the Clean Water Act.
Rose Acre contends that the DENR’s argument is a post hoc rationalization, without any supporting, credible evidence, to defend its decision to issue the NPDES permit. In this regard, Rose Acre notes that the ventilation fans in question “are pointed at a ninety degree angle away from a storm water retention pond that is located over one-fifth of a mile away.” Judge Elkin found that the stormwater pond point source theory was unsupported by the record. Relying on the holding in National Pork Producers Councilthat a CAFO is not required to apply for a NPDES permit until there is an “actual discharge into navigable waters to trigger the CWA’s requirements”, Rose Acre contends that the DENR has failed to present any proof of such a discharge.
If the Rose Acre case proceeds to ruling after the ordered full evidentiary hearing, it will be worth watching to see whether the ultimate decision is based on what’s in the air or what’s in the water (and how it got there).