A state administrative case we’ve been watching addresses the question whether an egg farm can be required to get a Clean Water Act NPDES permit for discharges of chicken feathers and litters into the air through its ventilation exhaust fans. The North Carolina DENR initially required a permit for the emissions from Rose Acre Farms, which end up in local waterbodies and are high in ammonia content, a potent nutrient. Rose Acre Farms challenged the permit, and an ALJ initially agreed with the challenge, holding that discharges into the air don’t constitute a covered Clean Water Act “discharge” to waters that would invoke the permitting requirement.
Now, the North Carolina Environmental Management Commission has vacated the ALJ’s decision and remanded the matter back to the ALJ for a determination whether a discharge of pollutants to waters in fact occurs.
This controversy touches on the interesting question whether a discharge to air can ever constitute a point source discharge to waters of the United States, invoking the NPDES permitting requirement. In fact, I gave my Environmental Skills students a similar question to work on this past Fall (I asked them to comment on a hypothetical rulemaking by EPA to amend the definition of “point source” in the regulations to include smokestacks located in close proximity to waters of the United States).
While the Tenth Circuit in 1997 rejected an attempt to apply the Clean Water Act § 301(f) prohibition against disposal of chemical weapons into waters to a smokestack emissions from a chemical weapons incinerator, that case relied heavily on the potential duplication of regulation by the Clean Air Act and Congress’s clear intent to authorize incineration of chemical weapons — factors that would not apply in the case of Rose Acres Farms. In addition, the feathery discharges from the ventilation fans at Rose Acres Farm fall right into a stormwater pond on site, and then are discharged directly to water during rain events, so the case does not involve purely air discharges.
Full disclosure: Waterkeeper Alliance, which I represent and serve on the board of, sought to intervene in the administrative proceedings in support of the permitting requirement, and has participated as an amicus.