Last month, a circuit court judge in Montgomery County reversed the Maryland Department of the Environment's final 2020 Animal Feeding Operation Discharge Permit for not considering ammonia emission discharges into the air as a pollutant into water since the ammonia discharges could fall into waters covered by the Clean Water Act.
This decision could have real-world implications far beyond the agricultural sector in Maryland, but we’ll have to wait and see what the outcome will be.
The environmental department began work on reissuing the AFO discharge permit in 2019 and allowed the public to comment on it. Assateague Coastal Trust provided comments related to gaseous ammonia discharge from concentrated animal feeding operations, or CAFOs. Specifically, ACT had concerns that the permit did not adequately address air pollution discharges, including ammonia, from exhaust fans and manure storage areas into the air and onto surface waters.
The department responded to this concern by pointing out that EPA did not regulate odors and air quality through the Clean Water Act’s permitting program. Because the department derives its authority delegated from the EPA, it also refused to take odors and air quality into account. The department issued the final permit last July with no limitations on ammonia emissions.
ACT filed a petition for judicial review of the final AFO permit for not limiting ammonia discharges. Typically, courts defer to an agency's interpretation of the law, unless that interpretation is erroneous. If a ruling erroneously interprets the law, then the court can substitute its judgment for the agency's interpretation.
The circuit court judge in this case decided that the Maryland General Assembly broadened the Clean Water Act’s reach with water quality legislation that provided additional remedies for the state's waters.
Included in this expansive view was the use of the word "emit" by the General Assembly in the definition of discharge. Looking at the dictionary definition of "emit," the court determined it included gaseous emissions such as ammonia from a poultry fan in a gaseous state.
The environmental department argued that using this interpretation would broaden the existing law and require it to regulate chimneys and cars for potential gas discharges that would hit the waters in the state.
The department cited a federal case — Chemical Weapons Working Group Inc. v. U.S. Department of the Army — where a group argued that pollution caused by incinerating chemical weapons would fall on land in Clean Water Act-covered waterways, thus requiring the Army to receive a discharge permit first. The 10th Circuit Court of Appeals refused to construe the Clean Water Act to require a permit for air emissions.
The circuit court judge disagreed that the decision supported the department’s argument because congressional action authorized chemical weapons incineration. The General Assembly did not provide similar authorizations to allow ammonia discharges.
The judge ruled that burning chemical weapons was a one-time event, and thus possible Clean Water Act violations were insubstantial compared to potential repeated violations by the AFOs.
The circuit court ruled that the environmental department erred as a matter of law by not including gaseous ammonia emissions and reversed the AFO permit's final determination.
What’s the impact?
The department may or may not appeal the ruling, depending on a host of factors. If the department doesn’t appeal, it would have to determine its options in implementing the court's ruling.
This decision is currently limited to Maryland and would only have implications in Maryland. Other states might consider adopting the view that gaseous emissions of ammonia should be included in general AFO discharge permits, but EPA has taken the opposite approach in its guidance.
Operators may be able to put into place best management practices, such as vegetation buffers around the poultry house, that can capture ammonia emissions and other particulate matter emissions.
It’s important to note that EPA currently has limited modeling data available online related to air emissions from AFO operations. More modeling data will come online later this year and will provide us with a view on potential ammonia releases from AFO operations, and possible methods that could be adopted to limit emissions.
It’s important to note that the court didn’t address EPA's view that point sources of air pollution become nonpoint sources of water pollution. Although we are dealing with a point source of ammonia emissions from a poultry fan, under EPA's view the department would appear to be acting appropriately in considering this discharge a nonpoint source of water pollution not covered under the Clean Water Act.
Looking at federal case law, the circuit court judge quickly rejected the 10th Circuit's decision as not on point with this case. The three-judge panel in that case found that taking the Chemical Working Group's argument to regulate emissions from the incineration of chemical weapons would create direct conflict between the Clean Water Act and the Clean Air Act, the federal law that regulates air emissions.
In that case, the Army received necessary permitting, including a Clean Air Act permit. The panel ruled that this direct conflict would create an irrational result of regulating air emissions under the Clean Water Act, not the Clean Air Act.
If we compare that court’s decision to the circuit court's decision, here we have an activity that’s currently exempt under the Clean Air Act, but a judge has ruled that it could be regulated as a discharge under water pollution statutes.
In most cases, courts often try to avoid irrational results or put statutes in conflict when interpreting statutory provisions. With that said, this is a case to keep a close eye on.
Goeringer is an Extension legal specialist with the University of Maryland’s Department of Agricultural and Resource Economics. This is not a substitute for legal advice.