BREAKING: An Administrative Law Judge decided for EAC and REVERSED a permit approval for a proposed CAFO on the Eastern Shore because of inadequate environmental protection.  MDE has never denied a permit under their CAFO program, and this is the first time a judge has stepped in on behalf of the environment. This is a big win for the community, their public health, and the environment.

EAC and ACT’s Press Release:  ACT-EAC press statement 5-31-18

Read Jeremy Cox’s article in the Bay Journal here: Judge calls on Maryland to reverse Eastern Shore poultry permit

Read the Judge’s Opinion here:  Bishop Proposed Decision 5.30.18

  • The Administrative Law Judge ruled against MDE and found that approval of the CAFO was “legally inconsistent” with environmental protection requirements
  • MDE approved a proposed CAFO for coverage under the General Discharge Permit while exempting necessary storage structures for the first two years of operation.  The storage structures include manure storage and mortality management facilities – both are critical to prevent pollutants from entering ground or surface waters
  • In this decision, the ALJ definitively stated that MDE may not authorize windrowing as an alternative to manure storage – a practice that MDE has routinely offered to proposed CAFO sites.
  • This is a big win for the regulatory process as an end to rubber-stamping CAFO applications.  Instead, this win directs MDE to enforce the requirements of the Clean Water Act and to protect the public health and environment from excessive nutrient runoff.
  • This will discourage future applicants from proposing a CAFO without ensuring all requirements are met
    • This decision fights against the pipeline of CAFOs that MDE and DPI created
    • An application has never been turned down, leading applicants to assume any proposed operation will be rubber stamped.

 

What to Expect Next:

  • The ALJ opinion is a proposed decision that must be adopted, modified, or rejected by a final decision maker from MDE (outside of the Animal Feeding Operations Division)
  • Both sides will have an opportunity to file exceptions with the final decision maker – the exceptions are a way of requesting modification from the ALJ’s proposed decision to the final decision
  • After the final decision maker issues their determination, either party will have an opportunity to appeal to the Circuit Court, where the case will be re-litigated.

 

Remaining Issues:

  • MDE had exempted storage requirements based on a lack of cost-share funds from the MACS Program.  EAC argued that this was inappropriate because the MACS Program is not intended for large CAFOs, rather for small scale farm operations.  Despite EAC’s arguments, the ALJ decided the case without addressing the use the MACS funds.  EAC will continue to advocate against the use of these tax-payer dollars for industrial-sized CAFOs.
  • While EAC lauds Judge Hofstetter’s thoughtful opinion, we are disappointed that the dangers of ammonia emission were not directly addressed.  Although EAC presented expert testimony on the public health and environmental hazards that ammonia from this operation would pose, Judge Hofstetter disregarded because the expert relied on diagrams and mapping of the site, rather than an in-person site visit.  Sadly, the expert had in fact made an effort to conduct an in-person site visit and initially was in coordination with the operator to schedule such visit.  However, the invitation was rescinded after the operator was instructed not to allow the expert on site.  EAC will continue to advocate against the hazards of ammonia emissions from CAFOs and fight for the public health and environmental protection of the surrounding communities.

 

The public health and the environment rely on decisions like this that put a foot down to CAFOs with inadequate protection. It is time somebody stood up to MDE and the poultry industry to stop the rubber stamped approvals of CAFOs. This was a clear case of a site plan that did not meet minimum protection measures, and the ALJ took note. Allowing industrial sized operations to cut corners hurts the community and especially local independent farmers. This opinion is a strong step toward greater environmental protections in the CAFO industry moving forward.