A Win For The Chesapeake Bay

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The Chesapeake Legal Alliance recently won a notable victory for the Assateague Coastal Trust in a successful challenge to the Maryland Department of Environmental Protection’s issuance of a state NPDES general permit for wastewater discharges that failed to control ammonia emissions from animal feeding operations polluting the waters of the Chesapeake Bay. https://www.chesapeakelegal.org/assateague-coastal-trust-v-maryland-dept-of-the-environment/. The March 11 decision demonstrates how citizens’ organizations and their counsel can compel attention to pollution problems long uncontrolled because of technical complexity, governmental mismanagement, and political protection from regulation for favored economic interests like farming. The State appealed the trial court’s decision on April 12, but the litigation will continue to focus the Department’s attention on serious unaddressed pollution of the Bay.

Maryland’s NPDES general permit for animal feeding operations that authorizes discharges of pollutants to the Bay and requires owners or operators to implement specified best management practices to reduce odors and ammonia deposition. However, the permit did not provide limitations on the discharge of gaseous ammonia from concentrated animal feeding operations (CAFOs) including from poultry house exhaust fans and manure sheds. Maryland has 550 poultry operations producing 300 million birds and over 400 million pounds of manure each year.

Judge Burrell of the Circuit Court of Montgomery County, Maryland, ruled that the State’s expansion of the federal Clean Water Act’s definition of pollutant to include “gaseous” substances covered ammonia and that this pollutant is emitted to the Bay through the use of exhaust fans. Ammonia contains nitrogen, a nutrient that promotes algal growth and oxygen depletion in waterways. The Court cited “concrete and measurable” evidence of deposition of emitted ammonia at various distances from the source and remanded the permit to the Department to mandate effluent limitations for ammonia and other water quality based effluent imitations.

Best management practices such as grass, hedges, tree buffers and hay bales near exhaust fans can substantially reduce deposition in waterways as well as neighborhood nuisances, and are affordable to the farmers with substantial subsidies from the State. Reed, https://www.chesapeakelegal.org/maryland-court-hands-down-a-landmark-ruling-on-poultry-industry-ammonia-emissions/. One drawback of this mode of financing is that the cost of controls is borne by state taxpayers rather than meat marketers and purchasers where it belongs.

The Assateague Coastal Trust ruling occurred against a backdrop of over 15 years of unsuccessful effort by the federal EPA to develop emission factors to support permitting of ammonia and other pollutants from CAFO’s under the Clean Air Act. In 2005, EPA entered into an agreement with industry representatives to conduct an emissions monitoring study and to refrain from any civil enforcement proceeding until emission factors were developed. An EPA Inspector General’s report in 2017 chided the agency for extraordinary delay in completing the study, while noting technical complexity and loss of key experts and budgets. Neither Democratic nor Republican administrations have hurried to lay the groundwork for unwelcome controls on farming interests. Professor Adam Babich of Tulane Law School put it mildly saying EPA lacked “incentive” to act “quickly or efficiently” to finish the job. The study is still unfinished but reports are said to be forthcoming by July, 2021. See Wertz, https://publicintegrity.org/environment/factory-farming-air-pollution-pass-cafos/.

EPA’s new Administrator, Michael Regan, has worked with farming interests and dealt with CAFO pollution in his tenure as former Secretary of the North Carolina Department of Environmental Quality, a leading pork producing state. He is well qualified to convene representative stakeholders and take a fresh look at federal environmental assessment and regulation of factory farms. The Maryland ruling to help restore the waters of the nation’s largest estuary may have an even greater impact if it revives EPA attention and action on long neglected environmental harm from animal feeding operations nationwide.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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