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Ag in the Courtroom

RSS By: John Dillard, AgWeb.com

John Dillard grew up on a beef cattle farm and now works as an agricultural and environmental litigation attorney with OFW Law. His blog analyzes legal issues and court decisions that affect America’s farmers and ranchers.




Chicken Farmer, American Farm Bureau Don't Want to Let EPA Off the Hook

Feb 01, 2013



EPA bit off more than it could chew when it went after Lois Alt - a West Virginia chicken farmer who is not afraid of a fight. Now, facing a lawsuit from Alt and opposition from the American Farm Bureau Federation and West Virginia Farm Bureau, EPA is attempting to back down from the fight. However, Alt and the Farm Bureaus do not want to let EPA off so easily.

Alt operates a broiler operation that was slapped with an enforcement order for alleged violations of the Clean Water Act (CWA) stemming from particulate emissions from the farm's ventilation fans. Specifically, EPA alleged that dust particles containing manure and feathers landed on the ground outside the chicken houses. EPA further alleged that an illegal discharge occurred when these particles came into contact with precipitation and entered nearby ditches.

This is one of the first times, but will certainly not be the last, that EPA has attempted to require a CAFO to obtain a National Pollutant Discharge Elimination System (NPDES) based on so called "dust and feather" discharges. As I've said previously, EPA cannot require a CAFO to have a NPDES permit unless the CAFO is "actually discharging." CAFOs, however, are designed not to discharge, meaning there are no pipes or ditches carrying animal waste into waterways. Thus, EPA is pursuing the novel "dust and feathers" discharge strategy to require CAFOs to obtain NPDES permits.

Alt found herself on the frontlines of EPA's assault on CAFOs when she received the enforcement order by EPA. Many operators would have chosen to fold because farmers and ranchers lack the resources to fight EPA. However, Alt chose to balance the playing field by filing suit in federal court, arguing that EPA was exceeding its authority. Soon, American Farm Bureau and West Virginia Farm Bureau intervened in the lawsuit to support Alt's side. The Farm Bureaus represented the interests of their members, who are concerned about EPA's new approach to CAFO regulation, which has national implications.

Facing this opposition, EPA flinched. Six weeks before both sides were scheduled to file briefs in federal court, EPA withdrew its enforcement order against Alt. Citing supposed improvements on Ms. Alt's operation discovered during a follow-up inspection, EPA said that the enforcement order is no longer necessary. Now, EPA claims that Alt's suit is moot and wants the federal court to dismiss it.

EPA's withdrawal of the enforcement order, which could carry penalties of up to $37,000 per day, is certainly a victory for Alt. However, this lawsuit pertains to issues of national importance, namely - what constitutes a discharge from a CAFO? If the lawsuit does not go forward, this question will remain unanswered.

Alt and the Farm Bureaus do not want to let EPA off the hook in the Alt case only to watch it make the same argument in another case. Instead, the Farm Bureaus want to litigate the "dust and feather" issue now. Thus, it will not consent with EPA's motion to dismiss the case.

American Farm Bureau is right when it says EPA upset the proverbial chessboard upon realizing it might lose in court. Now, it will be up to a federal judge to determine whether it will allow EPA to avoid having to defend its questionable enforcement actions in a court of law.

I will keep you updated on any developments in this case.

John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA.  John focuses his practice on agricultural and environmental law.  He occasionally tweets at @DCAgLawyer



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