PANTEGO – Legal wrangling over a federal water quality permit at a huge egg farm in Hyde County has spurred legislators in Raleigh to change state law and could affect future monitoring of water pollutants at the massive plant adjacent to the Pocosin Lakes National Wildlife Refuge.
“It’s troubling because in this case we have a clear body of evidence that there is a discharge,” said Heather Jacobs Deck, the Riverkeeper for the Pamlico-Tar River Foundation. “It would be unregulated.”
Rose Acre Farms, which keeps 3.2 million chickens in 12 high-rise hen houses, contends that the issue is over air emissions from exhaust fans, not water pollution, and a Clean Water Act permit is not required.
When Rose Acres initially opened in 2004 in Pantego, about 1¼ miles from the refuge, the state Division of Water Quality had issued a National Pollution Discharge Elimination System permit authorized under the federal act and required some monitoring of nearby waters and controls of emissions. At the time, largely because of its unique location and significant size, it was the only poultry plant in the state operating under the NPDES permit, according to Eve Gartner, staff attorney for Earthjustice, an environmental advocacy group.“What we’re actually arguing is that we do not discharge into the waters of the United States – any water that’s not privately owned – which is what the Clean Water Act requires,” said Joseph Miller, Rose Acre’s general counsel at the company’s headquarters in Seymour, Ind. “We don’t need a permit at all because we don’t discharge.”
But when the company applied to renew the permit in 2010, the state added additional monitoring and other conditions, based on the state’s contention that it had detected elevated levels of nitrogen and ammonia in nearby water. The pollution, the state said, had been spewed into the air by the large exhaust fans in the hen houses and then dropped downwind into the water.
Objecting, Rose Acre soon took the position that it didn’t need a NPDES permit in the first place, since emissions into the air cannot be regulated by the Clean Water Act, and it sued the state Department of Environment and Natural Resources, where the division resides.
After an administrative law judge in October agreed with Rose Acre’s position, the matter went to the state Environmental Management Commission, which sent it back to the administrative court to clarify whether airborne ammonia would be considered a discharge into water.
At that point, Rose Acre appealed, landing the case in Hyde County Superior Court, where it currently awaits a ruling by Judge Waylon Sermons.
The issue got the attention of Republicans who control the N.C. General Assembly. They included a proposal in this year’s version of their regulatory reform act – Senate Bill 810 – that would change the definition in state regulations of an air emission, saying that such emissions would not constitute a discharge. The bill passed the Senate on its second reading yesterday. It has one more reading in that chamber before moving on to the state House.
The state, though, is administering a federal law, Deck noted. The federal Clean Water Act, she said, defines a discharge as any addition of any pollutant to navigable waters from any point source. That definition can’t be undone by state lawmakers. If the bill passes, the U.S. Environmental Protection Agency would have to decide whether the new state definition meets the requirements of federal law.
Deck said that monitoring of the water before and after construction of the egg farm established the connection to increased nutrients in nearby waters. Canals and streams on the plant site lead into the refuge, which is 75 percent water, the Tar-Pamlico estuarine system and the Pungo River.
“The data demonstrates that there is a discharge of pollutants, and it needs to be regulated,” she said.
David May, the regional aquifer protection supervisor at the Washington office of the Division of Water Quality, said that Rose Acre is being managed under the 2004 permit while the legal issues are being resolved. The site also has a surface irrigation system and a wastewater management system permit for the egg wash operation. The chicken waste is collected and composted inside a very large building.
The proposed permit would require additional surface water and flow monitoring in canals. It also would require other practices to minimize emissions including special fans to control dust particulates.
The state believes ammonia was released into the air by an extractor fan on the hen house and it settled into a detention pond, which feeds into a stream.
In fact, Gartner said, the law does not require such a thing as a pipe to be pumping pollutants directly into the water. Otherwise, she argued, every pipe could have an aerator attached to make pollution airborne.
“The bottom line is these are pollutants going out of the hen house into the water,“ Gartner said. “And that’s water pollution, and it should be regulated through a water pollution permit.”
But Rose Acre contends that upstream water sampling shows that whatever water pollution that is being detected is apparently coming from the refuge. Miller said that the company has been a good neighbor in Hyde County.
“Since we’ve been there, we’ve been inspected six or seven times by the state,” he said, “and every inspection has found no problems.”
The company is asking the judge to uphold the summary judgment issued by the administrative law judge, Miller said. The judge, he said, could also rule that the EMC was wrong and the administrative law judge was right, that the EMC was right and remand the case back to the administrative court or that they were both right and Rose Acres needs a NPDES permit.
One way or another, Miller said “it’s probable” that the case will eventually end up in the state Court of Appeals.
To the environmental groups, the outcome of the case boils down to a matter of preserving the checks and balances that the state and federal governments recognized were necessary with such a potential polluter.
“We’re looking at this as a way to keep intact the very modest monitoring that our clients always understood would be done at this facility,” said Jerry Eatman, an attorney for the Friends of Pocosin Lakes and the Pamlico-Tar River Foundation. “Our clients are very concerned that without this permit, effective monitoring will not be possible.”
Eatman said that his clients would like the judge to determine that as a matter of law, Rose Acres is required to have the permit. He said he expects there will be decision by the end of summer, or early fall. If it’s appealed, it could take an additional year.