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Author's note: On April 12, 2021, the Maryland Attorney General's office filed a notice of appeal with the Court of Special Appeals. I will post a new post covering the appeal once that information is available.
Earlier this month, a circuit court judge in Montgomery County reversed the Maryland Department of the Environment’s (MDE) final 2020 Animal Feeding Operation (AFO) Discharge Permit for not considering ammonia emission discharges into the air as a pollutant into the water, since the ammonia discharges could fall into waters covered by Clean Water Act (CWA). MDE does have to option to appeal this decision but as of writing this post, an appeal has not happened.
MDE began work on reissuing the AFO discharge permit in 2019 and allowed the public to comment on the draft permit during this process. Assateague Coastal Trust (ACT) provided comments during the comment period related to gaseous ammonia discharge from concentrated animal feeding operations (CAFOs). In particular, ACT had concerns that the permit did not adequately address discharges of air pollution (including ammonia) from exhaust fans and manure storage areas into the air and surface waters. MDE responded to this concern by pointing out that the Environmental Protection Agency (EPA) does not regulate odors and air quality through the CWA permitting program. Because MDE derives its authority through that delegated to it by EPA, MDE consequently also refused to take odors and air quality into account. MDE issued the final permit in July 2020, with no limitations on ammonia emissions.
Circuit Court Ruling
ACT filed a petition for judicial review of the final AFO permit for not limiting ammonia discharges. Typically, courts will defer to an agency’s interpretation of the law unless that interpretation erroneously interprets the law. If a ruling is an erroneous interpretation of law, then the court can substitute its judgment for the agency’s interpretation. To the circuit court judge, in this case, the Maryland General Assembly broadened the CWA’s reach in the state with water quality legislation passed to provide 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 would include gaseous emissions such as ammonia from a poultry fan in a gaseous state.
MDE argued that using this interpretation would broaden the existing law and require MDE to regulate chimneys and cars for potential gas discharges that would hit the waters in the state. To support this, MDE cites a federal case, Chemical Weapons Working Group, Inc. v. U.S. Department of the Army. In that case, a group argued that pollution caused by incinerating chemical weapons would fall to the earth and land in CWA-covered waterways requiring the Army to receive a discharge permit first. The Tenth Circuit Court of Appeals refused to construe the CWA to require a permit for air emissions. The circuit court disagreed that this decision supported MDE’s argument because incinerating chemical weapons was authorized by Congressional action. The General Assembly had not provided similar authorizations to allow ammonia discharges. Incinerating chemical weapons to the circuit court was a one-time event, and possible CWA violations were insubstantial compared to potential repeated violations by the AFOs here.
The circuit court ruled that MDE erred as a matter of law by not including gaseous ammonia emissions and reversing the AFO permit’s final determination.
It’s important to note again, this decision will likely be appealed; it will not be the last word on the AFO permit. MDE may or may not appeal this decision, depending on a host of factors. If MDE does not appeal, they would have to determine its options in implementing the court’s ruling.
One important note is that the circuit court quickly rejected the Tenth 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 the emissions from the incineration of chemical weapons would create direct conflict between the CWA and the Clean Air Act (CAA), the federal law regulating air emissions. In that case, the Army had received the necessary permits including a CAA-required permit. To the panel, this direct conflict would create an irrational result of regulating air emissions under the CWA and not the CAA. If we compare this to the circuit court’s decision, here we have an activity currently exempt under the CAA, but a circuit court ruling that would now regulate the discharges under water pollution statutes. This appears to create conflict between existing federal laws that courts typically try to avoid in interpreting statutes.
The court also does not deal here with EPA’s view that point sources of air pollution become non-point sources of water pollution. Although we are dealing with a point source of gaseous ammonia emissions from a poultry fan, under EPA’s view MDE would appear to be acting appropriately in considering this discharge a non-point source of water pollution the CWA would not cover.
With that said, this decision could have real-world implications far beyond the agricultural sector in Maryland. We will have to wait and see what the final outcome could be.