Determination important in battle with EPA

In the middle of the extreme frigid temperatures in early January, a beautiful dark heifer calf arrived. We dried her off, covered her with a calf blanket and promptly moved her into the heated shop for a warm welcome to the world. All was well until about a week later when we moved her to her own snuggly, well-bedded calf hut. She resided there for about 15 minutes while she dismantled it, then ran back to the shop door.

After several unsuccessful attempts at relocation, I gave up. She spent most of January in the shop. I respect her determination, so I named her Lois, after the plaintiff in Alt v. EPA, a case I am watching as it works its way through the federal courts.

Lois Alt is a 62-year-old grandmother and longtime electrician for the construction industry who invested her life savings in her West Virginia chicken farm. She saw the poultry business as a welcome alternative from her long commute to Virginia. She and her husband, Tony, own and operate a poultry operation in Old Fields, WV. They purchased their 24-acre farm in 2001. In her eight chicken houses, Lois raises about 200,000 broilers a year for Pilgrim’s Pride (who owns a local processing facility), so she is classified as a CAFO (concentrated animal feeding operation). Her farm is an exemplary-run family farm operation. She has earned an environmental award nearly every year for her stewardship.

The 2009 Chesapeake Bay Executive Order charged the federal EPA with accelerating the Chesapeake’s clean-up. So the EPA turned its attention to the three areas in the watershed with the largest number of animal feeding operations, including the Shenandoah Valley, where Lois farms. Under the Clean Water Act, states have the primary role of enforcing CAFO rules, but West Virginia was still defining its CAFO program. So, the federal EPA got involved and used flyovers and maps to identify large poultry farms. The Alt farm was one of four they chose to inspect.

The EPA inspectors arrived on the farm in June 2011. They shared their aerial photos of her farming operation. From these shots, it appears that the eight chicken houses are next to a stream, with just a small tree buffer separating them. In reality, a small hill runs up to an embankment, and Mudlick Run is about 70 feet below. The actual configuration would make it nearly impossible for rainwater to enter the stream on that site.

Between the houses, Tony Alt keeps the swales grassy and well-maintained. There is a 200-yard buffer zone between the houses and the creek bank behind the houses.

Two months after the EPA visit, Lois received a summary of the report. Although it mentioned possible stormwater discharges, she wasn’t concerned.

In November 2011, however, the EPA sent Lois a letter stating that she was discharging pollutants into Mudlick Creek in violation of the Clean Water Act. According to the agency, the dust from the chicken houses’ exhaust fans settles on the ground and can contain manure, dander, feathers and other pollutants. Inspectors allege they found trace amounts of manure that could come into contact with rain and generate “process wastewater that is carried into the nearby man-made ditches. The runoff could then enter Mudlick Run, a stream on the Alt’s property that eventually connects with the south branch of the Potomac River.” Essentially the EPA was concerned with trace amounts of these substances rainwater could come in contact. Unless she applied for an agricultural pollution permit in 90 days, the letter warned she was subject to civil fines of $37,500 per day.

The truly scary part is that the EPA’s Order was based on what might happen. No EPA representative had observed any water leaving the poultry operator’s facility. They had only noticed that the air emission of discharges of dust “would” possibly runoff of the property. Under this federal law, agricultural stormwater is exempt from regulation. Basically, the EPA was using conjecture and innuendo to attempt to make an exempt item (plain old agricultural stormwater) into a regulated one (process wastewater) so that the EPA had more power and control.

The West Virginia EPA advised her to simply do the paperwork and apply for the permit. Even her husband agreed with this resolution. But not Lois. As she told a reporter, “Nobody could tell me anything I could do differently. They just said get this paper. Well, what is this paper going to do to protect the stream? I do enough paperwork as it is.”

On June 14, 2012, Lois Alt’s attorney, David Yaussy, filed her suit against the EPA. Lois challenged the EPA’s Order and asked the Court to rule if feathers and dust from fans ejected from CAFOs when they fall to the ground and might come into contact with rainwater are subject to EPA agricultural pollution regulation? EPA then withdrew its Order and requested the Court dismiss the case as moot.

The federal judge rejected this request because the EPA hadn’t changed its underlying position that farms like the Alt operation needed the discharge permit. On October, 23, 2013, the US District Court for the Northern District of West Virginia ruled in favor of Lois specifically stating that common meaning and common sense were applied while interpreting the statutory language.

The EPA promptly appealed to the Fourth Circuit Court of Appeals. While the ultimate outcome is still unclear, Lois clearly won the first round. It is very rare for a small defendant to hold federal agencies accountable in federal courts. This case is worth watching as it could ultimately impact many livestock operations. Thank you, Lois! Keep up the fight!

Leisa Boley Hellwarth is a dairy farmer and an attorney. She represents farmers throughout Ohio from her office near Celina. Her office number is 419-586-1072.

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