The Times West Virginian

West Virginia

May 1, 2013

Judge: Farmer’s EPA lawsuit will be heard

MORGANTOWN — The U.S. Environmental Protection Agency is still exerting a permit power that chicken growers contend it doesn’t have, so a federal judge said he won’t dismiss a lawsuit by a West Virginia farmer the agency had accused of polluting the Chesapeake Bay watershed.

The EPA argued Lois Alt’s lawsuit was rendered moot in December, when it withdrew violation notices and proposed fines against her Eight is Enough farm in Hardy County. But Alt, the West Virginia Farm Bureau and the American Farm Bureau want their day in court, claiming the EPA’s actions in her case have implications for farmers throughout the region.

U.S. District Judge John Preston Bailey agreed last week, denying EPA’s motion to dismiss. The agency had not yet filed a response as of Tuesday.

In his ruling, Bailey said the EPA hasn’t changed its underlying position that some chicken farms are concentrated animal feeding operations and are now required to obtain permits they’ve never previously needed under the Clean Water Act.

The EPA has also issued orders to two other farmers in West Virginia and Virginia that were virtually identical to the one issued against Alt, Bailey said.

“EPA’s adherence to its underlying position ... demonstrates that the agency’s challenged assertion of authority not only can be ‘reasonably expected to recur,’ but in fact is ongoing even now,” Bailey wrote.

“EPA plainly has not withdrawn, rescinded, repudiated or otherwise altered its legal position that — despite the statutory exemption for agricultural storm water — farmyard storm water must be regulated through a federally mandated permit,” he wrote.

Although EPA did send a letter withdrawing Alt’s violations, Bailey noted, it did not explain the basis for its change of heart. Nor is Alt’s mere compliance with the agency’s demands enough to make the case moot.

“Otherwise, a defendant could engage in unlawful conduct, stop when sued to have the case declared moot,” Bailey wrote, “then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.”

The EPA said dust, feathers, and fine particles of dander and manure from Alt’s chicken farm could land on the ground, come into contact with storm water and flow into ditches, eventually reaching Chesapeake Bay tributaries.   

The EPA is focused on protecting the watershed, which encompasses parts of Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia, and all of the District of Columbia.

Alt acknowledged there is waste-tainted runoff from her farm but argued it was agricultural storm water, not “process wastewater” that would be subject to regulation under the Clean Water Act.

 

1
Text Only
West Virginia
  • Manchin urges mines to speak out for coal

    The Democratic senator leading the battle against the White House’s strategy to fight climate change urged the mining industry on Tuesday to speak out about coal’s role in providing affordable, reliable electricity to the country to help combat strict new emissions rules for coal-fired power plants.

    April 16, 2014

  • Many schools already meet new mandate for breakfast

    Many West Virginia public schools have changed the way they serve breakfast to students ahead of a requirement that goes into effect in September.

    April 14, 2014

  • W.Va. grower promotes unmodified feed corn

    Lyle Tabb is hoping that his non-genetically modified corn will take off with farmers who can charge top dollar for “all natural” eggs.
    Genetically modified or GMO corn has greatly simplified the process of getting rid of weeds, but has also substantially increased the amount of a chemical call glyphosate.

    April 13, 2014

  • Geologists link small quakes to fracking

    Geologists in Ohio have for the first time linked earthquakes in a geologic formation deep under the Appalachians to hydraulic fracturing, leading the state to issue new permit conditions Friday in certain areas that are among the nation’s strictest.
    A state investigation of five small tremors last month in the Youngstown area, in the Appalachian foothills, found the injection of sand and water that accompanies hydraulic fracturing, or fracking, in the Utica shale may have increased pressure on a small, unknown fault, said State Oil & Gas Chief Rick Simmers. He called the link “probable.”

    April 12, 2014

  • Phares looks forward to retirement

    James Phares looked forward to the challenge and opportunity to help make a difference in a state education system under fire when he was hired in late 2012 as West Virginia’s schools superintendent.
    After 18 months, Phares will be stepping down on June 30 — which he said was set long ago as the day at age 61 that he’d walk with his wife into retirement.

    April 11, 2014

  • Teacher planning, abortion ban among W.Va. vetoes

    Gov. Earl Ray Tomblin signed about 200 bills and nixed eight this year, leaving teachers and abortion opponents unsatisfied.

    April 7, 2014

  • Spill company president ‘bears no fault’

    The president of Freedom Industries “bears no fault” for a West Virginia chemical spill that spurred a water-use ban for up to 10 days for 300,000 people, his lawyer says in a court filing.
    On Friday, Freedom President Gary Southern withdrew his application to get paid for work he already did during the company’s bankruptcy proceedings. He also wanted Freedom and its insurance to cover his legal fees related to the Jan. 9 spill.

    April 5, 2014

  • Agencies to ask West Virginia residents about chemical spill

    Health agencies are making thousands of phone calls and going door-to-door to ask West Virginians how a January chemical spill affected them.
    The state Bureau for Public Health announced Thursday that volunteers will survey randomly selected households in nine counties about health concerns from the spill.

    April 5, 2014

  • Hearing scheduled on police shooting suit dispute

    The family of a Virginia man who was shot and killed by Martinsburg police officers after a scuffle is asking a judge to order the city to give them investigative and autopsy reports from the incident.
    The estate of 50-year-old Wayne Arnold Jones of Stephens City, Va., filed a $200 million federal lawsuit against the city after he was killed on March 13, 2013.

    April 4, 2014

  • Families remember mine disaster victims

    Four years after losing friends and relatives in a West Virginia mine disaster, 11 people preferred to watch a film together that they knew would reopen those wounds.
    The film, “Upper Big Branch - Never Again,” by former Massey Energy CEO Don Blankenship theorized that his old company wasn’t at fault for the deadly explosion, despite four investigations that concluded otherwise.

    April 3, 2014

House Ads
Featured Ads