Playing Chicken With EPA

One farmer says enough is enough and takes the agency to court

Lois Alt, a poultry producer in West Virginia, is challenging EPA for all of agriculture.

Here is what's at stake. Alt believes that dust, feathers, fine particulate of dander and particulate from manure emitted through ventilation exhaust fans from her farm's poultry buildings landing on the ground and being exposed to rain runoff, is not a "process waste water" regulated by EPA requiring a NPDES (National Pollutant Discharge Elimination System) permit. EPA says she is wrong.

EPA sent a CWA (Clean Water Act) notice of violation to Alt threatening her with huge fines if she did not apply for a CWA permit for discharging polluted rain water into a state stream. She turned the tables and sued EPA!

EPA, in a frantic effort to stall Alt, attempted to withdraw the CWA notice of violation issued to her. She was not about to allow EPA to bully her into submission.

In effect, EPA was caught in its own trap. Alt said EPA cannot withdraw its notice of violation against her, and with the help of American Farm Bureau lawyers, she won a major decision against EPA on April 22.

A U.S. District Court in West Virginia ordered EPA to stay in the case and answer Alt's charges. A win by Mrs. Alt will have tremendous benefits for animal agriculture.

I wrote about this case on July 10, 2012, where I posed the question of whether EPA can claim dust and ammonia emissions from ventilation fans as sources of water pollution. EPA says it can do so. (I am involved in a North Carolina case where I say EPA cannot.)

EPA, in a letter to Alt in August, 2011, said: "Storm water runoff can come into contact with spilled manure and ventilation dust. There are several manmade ditches with culverts that help facilitate storm water away from poultry houses and towards Mudlick Run." EPA never says there is an actual discharge or that it measured a discharge. EPA is now saying polluted storm water can run downhill and that gives EPA jurisdiction over your livestock operation!

EPA further claims that dust and manure coming out of the ventilation fans at Alt's farm generate "process waste water" when carried into a stream by rainwater. This is a violation of the Clean Water Act, and Alt would be required to obtain a discharge permit, says EPA.

Enough is enough

This was a stunning power grab by EPA, and Mrs. Alt said enough is enough.

EPA, in these cases, is attempting to obliterate the CWA Agricultural Storm water Runoff Exemption. This would mean any dust, fertilizer, and pesticide particles drifting or carried by storm water to a water of the state needs a CWA permit. It would, in effect, put EPA in charge of all agriculture operations in the U.S.!

When EPA can force a concentrated animal feeding operation (CAFO) to obtain a permit under the Clean Water Act, then EPA can attach best management practices (BMPs) to the permit, including telling the producer what feed to utilize, the amount of water the animals may ingest, the amount of moisture in the manure, and frankly any requirement EPA decides it wants the farmer to utilize. And, these requirements will be part of a public hearing.

The decision on April 22, 2013, also allows a small herd of environmental activists to intervene on behalf of EPA. The groups include the Potomac River Keeper, West Virginia Rivers Coalition, Waterkeeper Alliance, Center for Food Safety, and Food and Water Watch. These entities do not support Mrs. Alt and her challenge against the bully, EPA.

The court ordered Alt and the American Farm Bureau to file their motions for summary judgment on June 1, 2013. EPA and the environmental groups must file on July 1, 2013. The case probably will not be argued until October or November, 2013.

The court decision in the Alt case will be seminal because it will determine whether EPA bureaucrats take on and control an entire sector of American agriculture. If Alt wins, it would set a precedent and put a damper on future attempts to rewrite the Clean Water Act.

This is BIG!

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