Rose Acre continues appeals fight against (discharge) designation

By Sara Wyant

© Copyright Agri-Pulse Communications, Inc.

WASHINGTON, March 14, 2012 -In a case with national implications, North Carolina's largest egg producing facility is continuing its fight though an appeals process in a 10-year legal dispute with the North Carolina Department of Environment and Natural Resources.

In a case pitting Rose Acre Farms and the North Carolina Poultry Federation against the North Carolina Department of Environment and Natural Resources (DENR), an administrative judge decided a state agency may not force a concentrated animal feeding operation to have a Clean Water Act permit for the discharges of air emissions of ammonia. This decision built on a ruling that ammonia emissions from feathers and dust that escape from Rose Acres Farms into a retention pond do not qualify as “discharge.”

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Most recently, the NPDES Committee of the DENR's Environmental Management Commission (EMC) refused to affirm the judge's decision and contested the finding that Rose Acre does not produce discharge.

The Division of Water Quality (DWQ) in North Carolina contends the farm does discharge ammonia emissions and pollutes waters around the Pocosin Lakes. National Wildlife Refuge. Conservation groups filing against Rose Acre Farms argue that these emissions should be regulated through updated NPDES permits.

According to DWQ, “the Rose Acre facility has a stormwater retention pond that has the sole purpose of collecting and discharging runoff from the production area into the waters of the United States.”

However, Rose Acre Farms objects to claims that the facility contributes to poor water quality. North Carolina State University researchers found thatRose Acre Farm is situated in the best location that could have ever been chosen on the East Coast of the United States to minimize any impact of ammonia emissions from this facility on the surrounding land and quality of water draining from its land.”

In 2004, DENR issued a five-year NPDES permit to the farm and required Rose Acre to adopt certain Best Management Practices (“BMPs”) to minimize discharges of pollutants into waters of the United States. Four years later, EPA required all CAFOs that discharge or “propose to discharge” to apply for a National Pollutant Discharge Elimination System (NPDES) permit. In 2009, DENR required that Rose Acre apply to renew its existing NPDES permit, which it did, according to lead counsel for Rose Acre Farms, Gary Baise.

In September 2010, DENR reissued the permit, “which now required onerous and unjustified Best Management Practices ‘for reducing airborne ammonia emissions,' including requirements that the Rose Acre-owned chickens be fed a particular type of feed, that there be a monitoring of migratory bird activity, and that Rose Acre perform an expensive evaluation of all BMPs for airborne deposition of ammonia throughout the United States,” according to Baise's summary of the appeal.

If the EPA were allowed to monitor anything that emits from a facility that could potentially seep into the ground or water, “imagine all of the industries this would affect,” Baise said.

Rose Acre challenged the 2010 permit requirement, because it believed BMPs aimed at reducing air emissions had no place in a Clean Water Act NPDES permit. Since Rose Acre Farms is a dry-litter facility, the operation argues that is does not and cannot discharge into nearby waters.

In March 2011, the United States Court of Appeals for the Fifth Circuit ruled that the EPA could not require a non-discharging CAFO to obtain an NPDES permit. Last fall, Administrative Law Judge Augustus Elkins II ruled that North Carolina's DENR could not require Rose Acre to obtain an NPDES permit “because Rose Acre had no discharge of pollutants” to U.S. waters.

Early this year, the NPDES Committee of the Environmental Management Commission (EMC) reviewed Judge Elkins' decision and contested the ruling and asked for another hearing.

Responding to the EMC decision, Rose Acre filed a petition with the Superior Court of North Carolina last week, asking the state court to set aside EMC's decision.

“Rose Acre is not advocating that it is free to operate its egg farm without restraint.” Baise said. “The evidence is clear that Rose Acre does not discharge into water and that as a result DENR cannot require Rose Acre to obtain an individual NPDES permit.”

Rose Acre currently operates under the rules of its 2004 NPDES permit, the DENR's Solid Waste Composting Permit and the DENR's Storm Water Permit.



Original story printed in March 14, 2012 Agri-Pulse Newsletter.

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