A District Court judge in West Virginia is forcing EPA to defend a challenge to a now-withdrawn Administrative Compliance Order (“ACO”) related to “dust and feather” discharges from a broiler facility. In one of the first post-Sackett challenges to an EPA ACO under the Clean Water Act (“CWA”), a West Virginia poultry producer sued EPA after she was ordered to obtain a CWA permit based upon alleged discharges of dust and feathers from several chicken barns into ditches on her property. After the American Farm Bureau (“Farm Bureau”) and others intervened, EPA withdrew its order directing the owner of the facility, Lois Alt, to obtain a National Pollution Discharge Elimination System (“NPDES”) permit.
The case, Alt v. EPA, contests EPA’s authority to require Concentrated Animal Feeding Operations (CAFOs) to obtain NPDES permits on the basis that a “discharge” occurs when dust, feathers, and dander released through ventilation fans comes into contact with precipitation. The lawsuit has national implications for livestock producers and has attracted other high profile intervenors, including Waterkeeper Alliance and the Center for Food Safety.
After it dropped its administrative order on the highly tenuous factual grounds that Ms. Alt had taken steps to “remedy and prevent environmental harm caused by her operation,” EPA sought to dismiss the case on the basis that the lawsuit was moot, arguing that a live controversy no longer existed and that further litigation would be merely academic. American Farm Bureau opposed the dismissal motion, contending that although EPA changed course with respect to the specific order it had issued to Alt, its national policy regarding whether small accumulations of dust, feathers, and dander outside CAFO ventilation fans constitute a discharge under the CWA remained unchanged. American Farm Bureau argued that dismissing the Alt case would essentially allow EPA to improperly avoid defending its national policy regarding CAFO regulation.
On April 22, 2013, the District Court soundly rejected EPA’s arguments, reasoning that EPA could not avoid litigating the dust-and-feathers issue in this case while, at the same time, it continued enforcing the same policy in contested actions against other farmers. The upshot of the Court’s decision is that EPA’s feet will be held to the fire as the agency will now be forced to defend its policy of requiring NPDES permits for CAFOs on the basis of airborne emissions that come into contact with precipitation.
Much is at stake for the animal agriculture industry. An unfavorable decision for agriculture interests would support requiring livestock producers to obtain NPDES permits even where no discharges to waters of the United States were occurring. Moreover, the costs associated with obtaining and complying with NPDES permits are frequently high. More importantly, requiring producers to obtain NPDES permits — even when facilities do not discharge into rivers, streams, wetlands or even drainage ditches – will grant EPA (and delegated state environmental agencies) substantial regulatory control over livestock facilities under the CWA.
EPA’s track record before the Federal Courts on CAFO issues during the past decade has been abysmal. EPA’s efforts to regulate facilities that were not discharging into waters of the United States were challenged and partially struck down. Regardless of the outcome, an appeal to the Fourth Circuit is likely.
A copy of the order denying dismissal can be found here.