Court Rules Industrial Farm May Require Clean Water Act Permit
Sufficient evidence of pollutant discharge into waterways warrants trial
Eve Gartner, Earthjustice, (917) 658-6506
Hannah Chang, Earthjustice, (917) 837-1543
Jerry Eatman, Lynch & Eatman, LLP, (919) 571-9714
A Superior Court in Hyde County, NC ruled on Friday that the state has authority to require Rose Acre Farms, a facility in Hyde County housing nearly 4 million egg-laying hens, to be regulated under the federal Clean Water Act because of pollutants released from ventilation fans in the henhouses. Rose Acre Farms had argued that the Clean Water Act does not apply to pollution from its ventilation fans. After examining the entire record, the court found that the State had presented evidence that Rose Acre Farms pollutes nearby waters.
Rose Acre Farms is located adjacent to the Pocosin Lakes National Wildlife Refuge (area shaded in white). Ventilation fans blow contamination over refuge land and water bodies. (View larger map.)
The Court noted that data shows that water around the Rose Acre facility had significantly higher levels of fecal coliform, ammonia nitrogen, total inorganic nitrogen, and total phosphorus after the facility began operating. The Court further noted evidence in the record that pollutant levels in the nearby Pocosin Lakes Wildlife Refuge increased as a result of Rose Acre’s operations. It therefore sent the case back to the administrative courts (which had previously ruled for Rose Acre) for a hearing to determine whether the evidence sufficiently establishes the need for a Clean Water Act permit.
“We are gratified that the Court recognized that the State has the authority to regulate the water pollution caused by this massive factory farm,” said Eve Gartner, an attorney at Earthjustice assisting local counsel in representing the Pamlico-Tar River Foundation and Friends of Pocosin Lakes National Wildlife Refuge.
Rose Acre’s Hyde County facility, the largest industrial egg farm in North Carolina, includes twelve high-rise henhouses equipped with giant ventilation fans. The henhouses currently hold nearly 4 million egg-laying hens. These millions of hens generate an enormous amount of urine and fecal matter. Bedding material soiled by the dropped excrement, and excrement-associated pollutants, including fecal bacteria, ammonia, nitrogen and phosphorous, are then released through the ventilation fans.
The fecal matter, feathers, dust, ammonia and other pollutants blown out of the chicken houses enter the surrounding areas and the Pocosin Lakes National Wildlife Refuge, which is less than one and a quarter miles from the RAF facility. The pollution from the facility degrades the water quality for the 300 wildlife species living in the wildlife refuge, diminishing this very special habitat that is enjoyed by local residents and thousands of visitors each year.
Rose Acre’s experts acknowledge that the facility deposits up to 73 tons of nitrogen each year into the surrounding areas, including the Pocosin Lakes National Wildlife Refuge. Other reports confirm that significant amounts of pollution from the Rose Acre facility are deposited into the surrounding areas, including into surface waters. North Carolina’s Division of Water Quality, for instance, found that ammonia, nitrogen, total inorganic nitrogen, total phosphorus, and fecal coliform concentrations in the surrounding waterways had increased significantly since Rose Acre began operations in 2004. The U.S. Fish and Wildlife Service also found that Rose Acre releases large amounts of ammonia onto the wildlife refuge and surrounding areas.
“We look forward to relying on this strong evidence that the Rose Acre facility is polluting nearby waters and damaging the fragile wetlands and ecosystems of the neighboring National Wildlife Refuge at the forthcoming trial,” said Earthjustice attorney Hannah Chang.
When RAF first arrived in Hyde County in 2004, there was widespread community concern about the impact of ammonia and other pollutant discharges into the waters and ecosystems in the Tar-Pamlico River Basin and the wildlife refuge. As part of the original Clean Water Act permit issued by the Department of Environment and Natural Resources (DENR), RAF committed to Best Management Practices to control the ammonia being released from its ventilation fans.
But RAF abruptly refused the re-issuance of the permit in September 2010, claiming that the state lacks authority to require a renewed permit. In October 2011, Administrative Law Judge Augustus Elkins agreed with Rose Acre, but his decision was overturned by the North Carolina Environmental Management Commission (EMC) in April 2012, which held that a Clean Water Act permit could be required if the facility was discharging pollutants, but that a trial was needed to determine whether the facility was in fact discharging pollutants. Rose Acre subsequently appealed the EMC decision in state superior court.
Hanging in the balance in Rose Acre Farm’s legal wrangling is the adjacent wildlife refuge and the entire Tar-Pamlico River system, which is the lifeblood of the people and communities who live within its watershed and the base for the economic health of the region. The issuance of a Clean Water Act permit for Rose Acre would allow the factory farm to continue its business, but would help protect the surrounding waterways and nearby Pocosin Lakes National Wildlife Refuge from harmful ammonia emissions emanating from the facility.
Earthjustice and Lynch & Eatman, LLP represent Pamlico-Tar River Foundation, Waterkeeper Alliance, Inc. and Friends of Pocosin Lakes National Wildlife Refuge.
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