|June 7, 2013|
Previously published on June 6, 2013
On June 14, 2012, Lois Alt (“Alt”), the owner of Eight is Enough, a small poultry farm in Old Fields, West Virginia, filed suit against the United States Environmental Protection Agency (“EPA”) in the United States District Court for the Northern District of West Virginia. Alt asked the court to determine the validity of a compliance order (the “Compliance Order”) she received from the EPA. The Compliance Order directed Alt to obtain a permit under the Clean Water Act (“CWA”) for alleged discharges flowing from her poultry farm operation.
The dispute dates back to June 17, 2011, when EPA inspected Alt’s farm. Two months after the inspection, EPA informed Alt by letter of several concerns observed during the inspection. Particularly, EPA asserted that Alt had allowed stormwater mixed with manure and ventilation dust to flow into Mudlick Run, a water of the United States.
The letter stated that the CWA strictly regulates concentrated animal feeding operations (“CAFOs”), which are prohibited from discharging pollutants into United States waters, unless such discharges are permitted under the National Pollutant Discharge Elimination System (“NPDES”). EPA did not expressly order Alt to obtain a NPDES permit, but the agency did state that regulated discharges generally included substances like the stormwater at Eight is Enough.
EPA subsequently issued a Findings of Violation and Compliance Order (the “Violation Order”) because it determined that Alt owned a “point source” discharge of pollutants into United States waters. The Violation Order identified two pollutant sources: (1) ventilation exhaust that contained dust, feathers, dander and manure from the exhaust fans on the poultry houses; and (2) manure discharged from the south end of the poultry houses. Additionally, EPA asserted that precipitation mixed with the above sources creating process wastewater that eventually discharged into the waters of the United States.
In response to the Violation Order, Alt originally said that she would obtain an NPDES permit from the West Virginia Department of Environmental Protection. However, under the direction of her counsel, Alt later withdrew her statement claiming that the de minimus amounts of “chicken litter, feed, or similar material” generated at the farm did not amount to a regulated discharge. Rather, Alt claimed that agricultural stormwater, which is exempt from regulation under the CWA, was the only substance emanating from her farming operation.
Not persuaded by Alt’s response, EPA replied by arguing that any precipitation that mixed with the fan-blown dust or manure constituted a discharge for which Alt needed an NPDES permit. The EPA also asserted that there was no agricultural stormwater exemption for the alleged discharge flowing from Alt’s farm. EPA conducted a subsequent inspection of Alt’s farm on May 23, 2012. However, Alt filed suit before receiving the results of the EPA’s latest inspection.
Alt has requested the court to provide the following: (1) a declaration that the mix of precipitation, dust, feathers or dander from the poultry house ventilation fans is merely agricultural stormwater for which no NPDES permit is required; (2) a declaration that any mix of stormwater and manure that is present in small quantities as a normal incident of poultry farming is merely agricultural stormwater that requires no NPDES permit; and (3) a declaration that the EPA acted arbitrarily and capriciously by requiring Alt to obtain an NPDES permit and to invalidate EPA’s order requiring the same.
After Alt filed suit, the court allowed the Farm Bureaus to join the lawsuit to protect the interests of farmers who wanted to resolve similar issues. Soon after, EPA’s director, Jon M. Capacasa, advised Alt’s lawyer that EPA would withdraw the Violation Order requiring Alt to obtain an NPDES permit. EPA then asked the court to dismiss Alt’s case arguing that EPA’s withdrawal of the Violation Order mooted Alt’s claims.
In response to EPA’s request, the court explained that although EPA withdrew its order, it neither changed its position regarding the stormwater outflow from Alt’s farm nor relinquished its right to issue a similar order to Alt in the future. Moreover, the court recognized the importance of Alt and the Farm Bureaus’ pending claims. Particularly, all parties challenged the Violation Order (or similar orders) and EPA’s purported authority to issue such an order under the particular circumstances.
Also important, dismissing Alt’s claim against EPA would not resolve the plight of other farmers who faced circumstances similar to Alt. Looking to analogous orders EPA issued to other farmers, the court noted that EPA never claimed that a discharge had actually occurred, only that a discharge “could have” occurred.
According to the court, EPA used this elusive language as a sleight-of-hand to avoid exposing their lack of authority in the absence of an actual discharge. Even though an agency’s withdrawal or alteration of an administrative policy can render a party’s attack irrelevant, EPA demonstrated that it had not actually changed its policy. In other words, even though EPA withdrew its order voluntarily, the core dispute still remained. Therefore, the court ruled that Alt’s case was not moot and rejected EPA’s request to dismiss her claims.
To date, the court has set a new deadline for all interested parties to file their motions for summary judgment. Barring any further time extensions, all summary judgment briefing is set to conclude by October 4, 2013.