Alt v. U.S. Envtl. Prot. Agency

• Decision Date: 23 October 2013
• Docket Number: Civil Action No. 2:12–CV–42.
• Citation: 979 F.Supp.2d 701
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Lois ALT, d/b/a Eight is Enough, Plaintiff, American Farm Bureau and West Virginia Farm Bureau, Plaintiff Intervenors, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant, Potomac Riverkeeper, West Virginia Rivers Coalition, Waterkeeper Alliance, Center for Food Safety, and Food & Water Watch, Defendant Intervenors.

979 F.Supp.2d 701

Lois ALT, d/b/a Eight is Enough, Plaintiff,American Farm Bureau and West Virginia Farm Bureau, Plaintiff Intervenors,

v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant,Potomac Riverkeeper, West Virginia Rivers Coalition, Waterkeeper Alliance, Center for Food Safety, and Food & Water Watch, Defendant Intervenors.

Civil Action No. 2:12–CV–42.

United States District Court,

N.D. West Virginia,

Elkins.

Oct. 23, 2013.

David L. Yaussy, Marsha W. Kauffman, Robinson & McElwee, PLLC, Charleston, WV, for Plaintiff Lois Alt.

Betsy Steinfeld Jividen, U.S. Attorney's Office, Wheeling, WV, Amanda Shafer Berman, Cynthia J. Morris, U.S. Department of Justice, Washington, DC, for Defendant.

James T. Banks, Joanne Rotondi, Hogan Lovells US, LLP, Washington, DC, Peter G. Zurbuch, Busch, Zurbuch & Thompson, PLLC, Elkins, WV, for Intervenor Plaintiff.

Kelly Hunter Foster, Waterkeeper Alliance, Tulsa, OK, Eve C. Gartner, Earthjustice, New York, NY, Christopher P. Stroech, Arnold & Bailey, PLLC, Charles Town, WV, Susan J. Kraham, Columbia Environmental Law Clinic, New York, NY, Paige Tomaselli, Center for Food Safety, San Francisco, CA, for Intervenor Defendants.

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF AND PLAINTIFF–INTERVENORS' JOINT MOTION FOR SUMMARY JUDGMENT

JOHN PRESTON BAILEY, Chief Judge.

Pending before this Court are: (1) Plaintiff and Plaintiff Intervenors' Joint Motion for Summary Judgment [Doc. 92]; (2) The United States' Cross–Motion for Summary Judgment [Doc. 105]; and (3) Environmental Intervenors' Motion for Summary Judgment [Doc. 108]. All the above Motions have been fully briefed and are ripe for decision.

In addition, the Plaintiff and Plaintiff–Intervenors have filed a Motion for Leave to File Joint Surreply in Response to the U.S. Environmental Protection Agency's Reply in Support of Summary Judgment [Doc. 138] and the EPA has included a request for leave to file a surrebuttal in its United States' Opposition to Plaintiff's Motion for Leave of Court to File Surreply [Doc. 140].

Procedural Background

This civil action was filed by the plaintiff, Lois Alt, on June 14, 2012, seeking declaratory and other relief due to the issuance by the United States Environmental Protection Agency (“EPA”), of a November 14, 2011, “Findings of Violation and Order for Compliance” under the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq [Doc. 1]. By Order entered October 9, 2012, this Court permitted the American Farm Bureau and West Virginia Farm Bureau (collectively “Farm Bureaus” or “Plaintiff Intervenors”) to intervene in the action [Doc. 27].

On March 12, 2013, the EPA moved to dismiss this case as moot [Doc. 68]. By Order entered April 22, 2013, 2013 WL 4520030, this Court denied the EPA's Motion to Dismiss, permitted the Potomac Riverkeeper, West Virginia Rivers Coalition, Waterkeeper Alliance, Center for Food Safety, and Food & Water Watch (collectively “Environmental Intervenors” or “Defendant Intervenors”) to intervene, and established a briefing schedule on the merits [Doc. 88].

On July 1, 2013, the plaintiff and Farm Bureaus filed their Plaintiff and Plaintiff Intervenors' Joint Motion for Summary Judgment and Supporting Memorandum [Doc. 92]. On August 1, 2013, the EPA filed its United States' Cross–Motion for Summary Judgment [Doc. 105] and the United States' Memorandum in Support of its Cross–Motion for Summary Judgment and in Opposition to Plaintiff's and Plaintiff–Intervenors'Motion For Summary Judgment [Doc. 106]. On the same date, the Environmental Intervenors filed their Environmental Intervenors' Motion for Summary Judgment [Doc. 108] and Memorandum Supporting Environmental Intervenors' Motion for Summary Judgment and in Opposition to Plaintiff's and Plaintiff Intervenors' Motion for Summary Judgment [Doc. 108–1]. On August 2, 2013, the Environmental Intervenors filed an Affidavit in support of their arguments [Doc. 109]. On September 4, 2013, the plaintiff and Plaintiff–Intervenors filed Plaintiff and Plaintiff–Intervenors' Joint Combined Response and Reply to Defendants' Motions for Summary Judgment [Doc. 121]. On October 3, 2013, the Environmental Intervenors filed their Reply in Further Support of Environmental Intervenors' Motion for Summary Judgment [Doc. 136]. On October 4, 2013, the EPA filed United States' Reply Memorandum In Support of its Cross–Motion for Summary Judgment [Doc. 137].

During this briefing period, the Chesapeake Bay Foundation, Inc. (“Chesapeake”), filed a motion for leave to intervene [Doc. 94], which, after briefing, was denied by Order entered July 30, 2013 [Doc. 104]. On August 1, 2013, Chesapeake filed its Motion of Chesapeake Bay Foundation, Inc. for Leave to File an Amicus Curiae Brief in Support of Defendant [Doc. 107]. On August 29, 2013, Chesapeake filed a Motion of Proposed Amicus Curiae, Chesapeake Bay Foundation, Inc., for Leave to Submit Extra-record Materials [Doc. 118], seeking leave to file 499 pages of documents not contained in the Administrative Record. By Order entered September 9, 2013, this Court denied Chesapeake's motion to file a brief as amicus curiae and motion to file extra record materials [Doc. 124].

Factual Background

Lois Alt operates a concentrated animal feeding operation (“CAFO”) at Old Fields, Hardy County, West Virginia, for raising poultry [AR1; AR2 at 3]. ¹ The facility consists of eight poultry confinement houses equipped with ventilation fans, a litter storage shed, a compost shed and feed storage bins [AR2 at 4]. All poultry growing operations, manure and litter storage, and raw material storage at Lois Alt's CAFO are under roof [AR2 at 4–5].

Some particles of manure and litter from Ms. Alt's confinement houses have been tracked or spilled in Ms. Alt's farmyard [AR1 at 4; AR2 at 4–5]. Some dust composed of manure, litter and dander, and some feathers, have been blown by the ventilation fans from the confinement houses into Ms. Alt's farmyard where they have settled on the ground [AR1 at 3; AR2 at 4].

Precipitation has fallen on Ms. Alt's farmyard, where it contacted the particles, dust and feathers from the confinement houses, creating runoff that carried such particles, dust and feathers across a neighboring grassy pasture and into Mudlick Run, a water of the United States [AR1 at 3–4; AR2 at 4–5; AR3].

Ms. Alt does not have a permit pursuant to the CWA or corresponding law of the State of West Virginia authorizing discharges into Mudlick Run [AR1 at 4; AR2 at 3].

At her CAFO, Ms. Alt implements management practices and procedures to reduce the amount of manure and litter that will be exposed to precipitation in her farmyard [ See AR2 3–5; Doc. 76–2 at 5–6(NMP); Doc. 76–1 at 5–7 (EPA June 22, 2012, Inspection Report) ]. These include:

1. Raising of poultry in confined poultry houses;

2. Storage of manure and litter in a covered shed; 3. Composting of mortalities in a covered shed;

4. Storage of feed in covered bins;

5. Exercise of reasonable care in cleaning up manure or litter that might spill during transfer operations, such as loading trucks to haul away the litter or moving litter from the confinement houses to the storage shed, including: (a) scraping and sweeping loading areas at the confinement houses and storage sheds during and after litter transfer; and (b) conducting litter transfer and loading operations during dry weather; and

6. Cleaning of ventilation fans and shutters in a manner that prevents the dust collected on them from being deposited in the farmyard.

EPA asserted its regulatory authority over stormwater runoff from Lois Alt's farmyard by issuing its November 14, 2011, Findings of Violation and Order for Compliance, executed by the Director of Water from EPA Region 3 (hereinafter, the “Order”) [AR1]. In its Order, EPA found that Ms. Alt's poultry production facility is a “concentrated animal feeding operation” (CAFO) that “has discharged pollutants from man-made ditches via sheet flow to Mudlick Run during rain events generating runoff without having obtained an NPDES permit.” [AR1, ¶¶ 30, 32]. On that basis, EPA concluded as a matter of law that Ms. Alt is in violation of the CWA and EPA's implementing regulations. [AR1 ¶ 33]. EPA said that it could bring a civil action against Ms. Alt for this violation, in which case Ms. Alt “will be subject to civil penalties of up to $37,500 per day of violation....” [AR1 ¶ 38]. EPA added that a criminal action could be initiated, and that if Ms. Alt were to be convicted she “may be subject to a monetary fine and/or imprisonment....” [AR1 ¶¶ 38, 39]. EPA also ordered Ms. Alt to apply for a permit [AR1 ¶ 34].

Plaintiff and Plaintiff–Intervenors move for summary judgment that EPA lacks the authority to issue its Order finding that Ms. Alt violated the CWA when precipitation on her farmyard picked up dust and poultry manure emitted from her poultry house ventilation fans and/or particles of poultry litter tracked or spilled from her poultry houses and caused a discharge to Mudlick Run.

Jurisdiction

In this case, the plaintiffs and plaintiff-intervenors seek declaratory judgment that any precipitation related discharges containing manure and litter emanating from Ms. Alt's farmyard are exempt agricultural stormwater discharges.

The EPA argues that this Court lacks jurisdiction since the issue was addressed by the EPA in its 2003 CAFO Rule which was upheld by the Second Circuit in Waterkeeper Alliance, Inc. v. USEPA, 399 F.3d 486 (2nd Cir.2005).

As part of its argument, EPA contends that the agricultural stormwater exemption applies only to discharges from land application areas under the control of the CAFO. As will be discussed below, this Court is unable to accept this premise. The plaintiff and plaintiff-intervenors are not challenging the 2003 Rules, which pertain to discharges from land application areas. Accordingly, this action is not barred by Waterkeeper or 33 U.S.C. § 1369(b). The plaintiffs and plaintiff intervenors do not “s...