Judge orders MDE to regulate ammonia emissions
ROCKVILLE, Md. — A Montgomery County Circuit Court Judge has ordered the Maryland Department of Environment to regulate ammonia emissions coming from large animal farms, particularly poultry operations on Maryland’s Eastern Shore.
The March 11 ruling by Circuit Court Judge Sharon V. Burrell sides in favor of the plaintiff Assateague Coastal Trust, represented by Chesapeake Legal Alliance. The alliance challenged MDE’s recently updated General Discharge Permit for Animal Feeding Operations should have included limits on ammonia gas coming from poultry houses as a water pollutant.
At the Jan. 26 hearing, MDE argued that as a substance in the air, ammonia gas is outside the scope of the federal Clean Water Act and including it would snowball into requiring permits for other sources like “cars and chimneys.”
Air emissions are typically regulated by the federal Clean Air Act, but the U.S. Environmental Protection Agency says it lacks sufficient data to set adequate standards for animal agriculture.
Neither federal law says much on how to regulate pollutants that cross from air to water. Yet, Burrell in her ruling said regulating ammonia gas does not expand the Clean Water Act.
“The Court finds no support for MDE’s argument that interpreting the Environment Article to include the emission of gaseous ammonia will lead to the regulation of tenuous forms of water pollution originating from the air,” she wrote. “The concrete and measurable nature of the pollution in this case does not justify the broad view of the CWA that MDE warns of.”
Burrell said Maryland’s expansion of the Clean Water Act through state law “unambiguously” includes ammonia gas in its purview.
“This intent is exemplified by the adoption of broad key terms throughout Maryland’s water pollution control laws,” Burrell wrote. “Of particular relevance is the term ‘pollutant,’ defined as ‘any liquid, gaseous, solid or other substance that will pollute any waters of the State.’ Of further importance is the term ‘discharge,’ which is defined as ‘the addition, introduction, leaking, spilling, or emitting of a pollutant into the waters of this State.’”
“This landmark decision protects our waters and reduces pollution in neighborhoods and communities across Maryland’s Eastern Shore,” David Reed, co-director of Chesapeake Legal Alliance, said. “We commend the Court for recognizing that ammonia pollution emitted into the air impacts our water too.”
After a year-long process involving public comment and approval from the U.S. Environmental Protection Agency, MDE’s revised general discharge permit became effective July 8, 2020 and will expire on July 7, 2025.
In a statement on the ruling, an MDE spokesman said the state’s regulation of animal feeding operations has led the nation and the department is reviewing the court’s decision.
“Maryland’s CAFO permits are among the strongest in the country, and the Maryland program’s effectiveness has been noted by the U.S. Environmental Protection Agency in its reviews,” said Jay Apperson, MDE’s deputy director of communications. “Maryland is also committed to protecting and improving local water quality and restoring the Chesapeake Bay.”
The Delmarva Chicken Association expects the state to appeal the ruling, executive director Holly Porter said in a statement, and chided the Assateague Coastal Trust for filing the challenge in “chicken-farm-free” Montgomery County. They deliberately searched for a forum that rarely adjudicates matters of agricultural law,” Porter said. “And it’s no accident that this comes as Assateague Coastal Trust benefits from a $3.6 million windfall from outside backers to fund new anti-agriculture lawsuits.”
Porter added the plaintiffs relied on faulty data the doesn’t accurately resemble chicken production on Delmarva. The plaintiff’s model “assumes chicken farms house birds every single day of the year (they don’t), assumes farmers never control ammonia with litter amendments (they do), and assumes the Eastern Shore has no ammonia-absorbing forested land (needless to say, it does),” Porter said. “The researchers have admitted their model is ‘not a realistic approach,’ but it fit these plaintiffs’ preconceived notions and they were only too eager to rely on it in court.”
Paul Goeringer, University of Maryland Extension legal specialist said MDE can choose to appeal the ruling to the Maryland Court of Special Appeals asking it to overturn the circuit court’s opinion or “see if they can work within the confines of the circuit court decision.” Goeringer pegged success in general for any appeal with a 50-50 chance.
“You never know how judges are going to turn on an appeal,” he said.
Assateague Coastal Trust and other environmental groups have sought legislation to establish air monitoring stations and collect data on air emissions from poultry farms through the proposed Community Healthy Air Act but bills have failed in the last three legislative sessions.
In April 2020, MDE began collect data on ammonia and particulate matter at two air monitoring sites near poultry farms. One station, near Pocomoke City, is in an area with a relatively high density of poultry houses, while a Princess Anne station is in an area where fewer poultry houses are nearby.
The Keith Campbell Foundation for the Environment and the Delmarva Chicken Association jointly contributed $500,000 to purchase the monitoring equipment leaving MDE the sole authority to select the monitoring sites and operate the equipment.
An MDE data summary from April 2020 to Feb. 2021 shows and average hourly ammonia level of 11 parts per billion at the Pocomoke City station with and a maximum value of 177 and the hourly average at the Princess Anne station is 6.3 parts per billion with a maximum value of 123. That compares to an urban station in Baltimore City with an average hourly ammonia level of 6.5 parts per billion and a maximum level of 26.9 and a rural station not near poultry houses that has an average hourly value of 2.2 parts per billion and a maximum value of 9.4. None of the stations came close to MDE’s one hour ammonia level threshold of 350 parts per billion.