What the Cluck?! Wastewater Discharge Permits for Air Pollutants?!

Posted on February 1, 2013 by Patricia Finn Braddock

Rose Acre Farms, Inc. et al. vs. NC Department of Environment and Natural Resources, et al., decided January 4, 2013

On January 4, 2013, a North Carolina court held that an egg production facility could be required to obtain a National Pollutant Discharge Elimination System (NPDES) permit solely on the basis that feathers and dust carrying ammonia nitrogen and fecal coliform, expelled from henhouses by ventilation fans, can be “pollutants” from a point source for which an NPDES permit is required if those pollutants reach waters of the State.  This is a case of first impression in which a court held that the impact of air emissions on water bodies could be regulated under the Clean Water Act (CWA).

North Carolina egg producer Rose Acre Farms (RAF) appealed a decision by the NC Department of Water Quality (DWQ) that an NPDES Permit renewal required stringent new BMPs on the grounds that: 1) the DWQ had no authority to require an NPDES permit for a “no discharge” facility; and 2) even if DWQ had authority to require an NPDES permit, the DWQ had no authority to impose new BMPs because: a) the feathers, dust and litter expelled into the air from ventilation fans are not “pollutants” as defined in 33 U.S.C. §1362(6); and b) even if ammonia nitrogen, total inorganic nitrogen, total phosphorus and fecal coliform associated with the feathers, dust and litter are “pollutants” that enter waters of the State, that activity would be exempt under the agricultural storm water discharge exemption in 33 U.S.C. §1362(14).

The Court held that ammonia nitrogen and fecal coliform carried by feathers and dust expelled by ventilation fans in the henhouses are “biological materials”, a term included in the definition of a “pollutant” in the CWA.  In addition, the Court relied on EPA guidance letters to determine that feathers, dust and litter expelled from a henhouse by ventilation fans are discharges from a point source that could reach waters of the State.  Finally, the Court held that the agricultural storm water discharge exemption in 33 U.S.C. §1362(14) applies only to land application in accordance with site specific nutrient management practices and does not apply to pollutants from feathers, manure, litter or dust that are expelled from the RAF henhouses but are not entrained in irrigation water.

If courts in other jurisdictions follow suit, other sources of air emissions with the potential to reach a receiving water, such as power plants and industrial facilities, may be required to address the impacts of their emissions on those receiving waters in future NPDES permits, independent of required air permits.

Comments (1) -

Kenneth S. Kamlet United States
2/12/2013 10:09:06 AM #


Back in the late 1970s or early 1980s, when I was counsel to the National Wildlife Federation,
I persuaded USEPA to assert jurisdiction under the Marine Protection, Research and Sanctuaries Act [the Ocean Dumping Law] over at-sea incineration of Shell Chemical Company hazardous wastes by a Chemical Waste Management incinerator ship on the basis that "what goes up, must come down."  Specifically, the technology relied upon dispersion and dilution of incinerator stack emissions (mostly hydrochloric acid) in the air and water in the wake of the moving incinerator ship.  The Ocean Dumping Law parallels the Clean Water Act in its permitting and regulatory structure.

This is little more than an historical oddity because incineration at sea never really caught on for various reasons.

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