Updated: Jul 9, 2020
By Ashley Ellixson
A few weeks ago, the North Carolina Department of Environment and Natural Resources (NC DENR) settled a long battle with Rose Acre farms and withdrew its position that air emissions from the Hyde County layer farm be regulated as a “discharge” under the Clean Water Act (CWA). In case you are unfamiliar with the case, Rose Acre Farms was started by the Rust family in the 1930’s with two hen houses and is now an industry-leader in egg production, with 17 facilities in six states. The case at issue concerned their operation in Hyde County, North Carolina, which houses 3.5 million hens.
The long-time battle began over the renewal of the farm’s CWA National Pollutant Discharge Elimination System (NPDES) permit in 2009. The Environmental Protection Agency (EPA) defines the NPDES permit:
“The Clean Water Act prohibits anybody from discharging “pollutants” through a “point source” into a “water of the United States” unless they have an NPDES permit. The permit will contain limits on what you can discharge, monitoring and reporting requirements, and other provisions to ensure that the discharge does not hurt water quality or people’s health. In essence, the permit translates general requirements of the Clean Water Act into specific provisions tailored to the operations of each person discharging pollutants.”
In short, if the operation is defined as a point source and is discharging pollutants into a water of the Unites States, the operation must apply for an NPDES permit and dispose of waste in certain manners as specified in the permit. Rose Acre Farms was issued a NPDES permit by the NC DENR when the Hyde County NC operation opened in 2004. This NPDES permit was for the duration of a standard five year-period. After applying for a renewal of their NPDES permit in 2009, the NC DENR took the position that dust, feathers, and ammonia emitted by poultry house fans to the outside can be deposited on the ground and eventually become a storm water discharge, requiring new best management practices Rose Acre must implement.
As a result of a National Pork Producers lawsuit against EPA, Rose Acre ultimately pulled their application for NPDES permit renewal. The National Pork Producers Council case confirmed that the EPA couldn’t make a Concentrated Animal Feeding Operation (CAFO) apply for an NPDES permit just because it is a CAFO, so dry litter CAFOs with no opportunity to discharge into U.S. waters do not require an NPDES permit. This applied specifically to Rose Acre’s operation in Hyde County because it is a dry poultry operation. After pulling their application for renewal, Rose Acre sued NC DENR for requiring the farm to obtain an NPDES permit that included criteria for emissions of air pollutants which, allegedly, subsequently affect surface waters in the state.
After the National Pork Producer lawsuit and the new requirements by the NC DENR, the North Carolina legislature passed a law in August 2012 addressing air emissions from operations. The law states that a “discharge of waste” is not interpreted to include an emission. The state legislature interprets the CWA as regulating waste, not air emissions, as do many other legislative bodies.
What the NC DENR argued is that the ammonia emissions from the poultry houses are actually discharges as defined under the CWA. This is a tough argument considering other courts have found that air emissions are “beyond the scope” of coverage under the CWA (i.e. air emissions are NOT discharges under the CWA) and the North Carolina state legislature took a stance on the issue. If the NC DENR won under this argument, Rose Acre would have had to apply for an NPDES permit because it would be discharging into “waters of the US,” with air emissions the discharges under this theory.
So, why should we care about Rose Acre’s issues in other states or Maryland? This battle between environmental groups wanting to regulate air emissions from agricultural operations comes up often and does not appear to be going away. It is important for ag producers in all states to understand their state’s individual stance on the subject and comply with regulations surrounding NDPES and state permits. For example, just last week a study was released showing air emissions from farms indeed contribute to water pollution, even addressing the Chesapeake Bay as one of these waters studied. Staying up to date on this issue can help farm operators stay in compliance with regulations.