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In a novel approach to water quality regulation, the North Carolina Department of Environment and Natural Resources (DENR) has required a large chicken farm to obtain a Clean Water Act NPDES permit in an attempt to regulate air emissions of ammonia and other pollutants from the farm. Should the state succeed in its argument that water quality impacts of air emissions can be regulated under NPDES permits, it would potentially open a wide variety of sources (some regulated and some unregulated under the Clean Air Act) to new regulation under the Clean Water Act – whether or not they are direct dischargers.
The farm holds an NPDES permit from 2004 that prohibits discharges to water. No discharge to water has ever occurred. No air permit is required for the facility, based on a determination that emissions are below federal thresholds. Nevertheless, in 2010 the state added several best management practices (BMPs) to the NPDES permit to address airborne ammonia emissions from the facility that were thought to be impacting local waters.
The farm initially challenged the BMPs before an administrative law judge, who sided with the farm. However, the administrative law judge's holding was overturned by the state's administrative board of appeals. The farm has now filed in the state Superior Court a Petition for Review of the decision and order by the state administrative appeals board. While this is a local skirmish at the moment, it has the potential for significant impacts nationally if the state succeeds in court.
© 2013 Varnum LLPAbout the Author
