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Rose Acre Farms, Inc. v. NC Department of Environment & Natural Resources

ELR Citation: 43 ELR 20008
Nos. 12-CVS-10, (N.C. Super. Ct. , 01/04/2013)

A North Carolina court held that the state's environmental agency has the authority to require an egg farm to obtain a NPDES permit to prevent airborne pollutants from reaching state waters. The egg farm does not make any direct discharges into state waters, but ammonia and other pollutants may enter state waters via feathers and dust through the hen house's ventilation fans. The farm argued that its egg production facility is exempt as an agricultural stormwater discharge. But the agricultural exemption applies to pollutants that have been applied to land, not to pollutants that reach state waters from expulsion by ventilation fans. The agency, therefore, has the authority to require a permit. In addition, the record established a genuine issue of material fact as to whether pollutants from the farm enter state waters. On remand, the court must hold an evidentiary hearing to determine whether the permit at issue is valid.