Court Rejects Novel Air Emissions Argument Against CFO

An Indiana court recently rejected a new argument advanced by opponents of a CFO. The opponents appealed a CFO’s state permit. They claimed a subsurface perimeter tile drain at a proposed hog farm constituted a “point source” of pollutants into a water of the state which should have required a federal NPDES permit in addition to the state environmental permit. The opponents argued the ventilation fans at the hog barn would blow pollutants out of the barn which would land on the ground around the barns and that precipitation would cause the pollutants to sink down through the soil and ultimately end up in the perimeter tile system which would discharge to a nearby creek. I was happy to work with the state’s attorney to defend the permit. The Office of Environmental Adjudication (“OEA”)—the administrative court that hears permit challenges—rejected the opponents’ novel argument. See Troyers, 2021 OEA 10.

The perimeter tile drain was proposed at the site to drawn down the subsurface water table around the barns. The tile was not designed or intended to carry any pollutants. In fact, most perimeter tile systems include a check point to allow farm managers or consultants to monitor any water in the system. This can serve as another layer of environmental security if necessary. There was no evidence presented that any pollutants would come into contact with the perimeter tile drain system. Rather, the opponents relied on an “expert” who speculated that manure particles could or might reach the drainage tile. However, the opponents’ expert had never visited the site, had not reviewed the final site plan, and did not know where the tile outlet was located. Instead, the expert speculated about what could happen at the barn based on his past work (much of which was done opposing the construction of CFOs in other states). The OEA rightly concluded that speculation a permittee will not comply with the applicable environmental, construction, and operational regulations is not justification to reverse a permit approval. There must be an actual discharge to a water of the state to trigger the need for an NPDES permit. Nat’l Pork Producers Council v. U.S. E.P.A. (“NPPC”).

A federal court in West Virginia came to the same conclusion as the Indiana OEA. The federal district court held that “litter and manure which is washed…to navigable waters by a precipitation event is an agricultural stormwater discharge and therefore not a point source discharge, thereby rendering it exempt from the NPDES permit requirement of the Clean Water Act.” Alt v. U.S. E.P.A. (“Alt”). Because Alt’s farmyard was not an area where animals were confined, the court held it was not a production area. This interpretation was in accordance with EPA’s “longstanding interpretation” that the agricultural stormwater exemption is inapplicable to runoff from within a production area. The Indiana OEA’s decision is consistent with NPPC and Alt. This issue continues to be litigated in federal courts but the Indiana OEA decision can provide support for livestock farmers nationwide.