Environmentalists say DENR might not enforce egg farm pollution laws

Posted by Craig Jarvis on May 19, 2014 

Correction: This article incorrectly said the N.C. Department of Environment and Natural Resources opposes Rose Acre Farms’ lawsuit in federal court regarding its egg farm in Hyde County. Environmental groups have opposed that lawsuit.

A coalition of environmental groups is trying to intervene in a lawsuit because they fear state regulators might not be strict enough.

Sound familiar?

It’s a repeat of the legal strategy in the N.C. Department of Environment and Natural Resource’s regulation of Duke Energy coal ash. But this time it’s a different issue: enforcing pollution controls against a massive egg farm near a wildlife refuge in the northeastern corner of the state.

The controversy over Rose Acre Farms’ operation near the Pocosin Lakes National Wildlife Refuge has been going on since 2010 when the state renewed the company’s federal Clean Water Act permit but also required it to investigate whether air emissions from its operation was settling into nearby streams.

Rose Acre balked, saying the state didn’t have the authority to regulate air emissions under the water pollution law. An administrative law judge agreed with the company, but the state Environmental Management Commission reversed that ruling.

The egg farm sued in state court, where a superior court judge ruled the state did have that authority, and ordered an administrative law judge to hold a hearing on whether the waterways were being polluted from air emissions.

More than a year later, in March, Rose Acre sued in federal court asking a judge to rule that any airborne discharges expelled from its ventilation fans and into streams constitutes agricultural stormwater discharges that are exempt from requirements to obtain a permit.

On May 12, the Pamlico-Tar River Foundation, Friends of Pocosin Lakes National Wildlife Refuge, and Waterkeeper Alliance asked the federal judge to let them intervene in the lawsuit, citing “the legitimate concern that DENR will not vigorously defend its authority to require Rose Acre obtain a permit.”

“DENR’s history of tepid protection of the environment raises the spectre that it may reach settlement with Rose Acre,” citing the agency’s controversial settlement with Duke over coal ash, according to a brief filed by attorneys at the New York-based public-interest law firm Earthjustice.

Republican legislators in the General Assembly in 2012 tried to protect the egg company by passing a law saying an airborne emission can’t be considered a water discharge. The superior court judge ruled the law doesn’t automatically protect Rose Acre Farms, because the administrative hearing must still be held to determine the source of the contaminants.

Update: An earlier version of this post incorrectly said DENR has filed an opposition to Rose Acre Farms’ federal court action. It has not.

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