Louisville’s Butchertown neighborhood isn’t the only part of the state battling what is effectively pig poop. Swine waste is really stinking up Western Kentucky and, uh, people are taking note. Barry Sharp (and others) just won a major case in Franklin Circuit Court against the state Energy and Environment Cabinet in what can only be considered tremendous news for protecting Kentuckians from pollution. Concentrated Animal Feeding Operations need to be taken more seriously by the Commonwealth.

Let’s just dig right in. I’ll excerpt from the Opinion & Order and you can download the entire PDF document at the end of the post if you so desire.

This matter is before the Court for a decision on the merits, after full briefing and oral argument. The case involves the permitting actions taken by the Energy and Environment Cabinet (the “Cabinet”) in granting Kentucky No-Discharge Operating Permits (“KNDOPs”) to several farmers for large-scale hog production operations in Western Kentucky. Petitioners are property owners in the area who claim that the Cabinet’s actions will have an adverse effect on the air and water quality of the area and on their enjoyment of their own property. They content that the Cabinet erred ins several respects in the process of issuing these permits to the Respondent Farmers.

The Court, having reviewed the record, and being otherwise sufficiently advised, hereby issues the following Opinion and Order REVERSING the final administrative action of the Cabinet and REMANDING this action for further action. The Court finds that the large scale animal feeding operations at issue here meet the regulatory definition of Controlled Animal Feeding Operation (“CAFO”) under Kentucky law, and that accordingly they are subject to all statutory and regulatory requirements for CAFOs. Accordingly, the respondents are required by Kentucky law to obtain a Kentucky Pollution Discharge Elimination System (“KPDES”) permit, with the full range of public notice and participation requirements that are an integral part of that permitting system, rather than the KNDOP permit that was issued in this case (which provides for only minimal public participation in the permitting process).

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The Court further finds that the Cabinet failed to fully enforce its own regulatory requirements regarding nutrient management plans, air toxics, and pathogen controls. Accordingly, this case will be REMANDED to the Cabinet for further action consistent with this Opinion and Order.

Read the rest of this hot pig poop mess after the jump…

BackgroundThis case arises out of a long running dispute over the legal process involved in the permitting and construction of several large-scale hog production operations with deep pit barn designs, which store the animal waste in concrete pits below the barns. These permit applicants argue that these facilities are a significant advance over the prior method of waste storage for such facilities, an external “lagoon” system which stored animal waste in an open outdoor lagoon which was subject to leakage both by leaching through the soil below and from runoff due to precipitation events.

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The permits issued by the Cabinet did not contain any specific pathogen controls despite the undisputed fact that pathogens are a known constituent of hog manure. Hearing Officer’s Report, Finding of Fact 152-153. Further, the Cabinet did not impose any specific controls on those facilities for air toxics. It is undisputed that the stored liquid hog manure will generate and emit numerous air pollutants, including ammonia and hydrogen sulfide, both of which are recognized as hazardous substances under the federal statutory schemes… The lack of controls over pathogens or air toxics is an undisputed fact that demonstrates the failure of the KNDOP permits to comply with the provisions of KRS Chapter 224, which require the Cabinet to “provide for the prevention, abatement and control of all water, land and air pollution, including but not limited to particulates, pesticides, gases, dust, vapors, noise, radiation, odor, nutrients, heated liquid or other contaminants.”

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… The Secretary modified the findings of fact and conclusions of law to reject the Hearing Officer’s recommendation that the permit be required to incorporate additional requirements under the regulation governing air toxics…

As the Court noted in Waterkeeper, “[e]conomically, these CAFOs generate billions of dollars of revenue each year. The EPA has focused on the industry because CAFOs also generate millions of tons of manure every year, and ‘when improperly managed, [this manure] can pose substantial risks to the environment and public health.’”

Quite damning for the Cabinet, which is apparently keen on ignoring environmental risks.

The order goes on:

The Court finds that it was erroneous as a matter of state law for the Cabinet to change its legal interpretation in response to the Waterkeeper decision’s interpretation of federal law. The Cabinet’s adoption of the Waterkeeper decision on the issue of how to interpret the regulatory definition of CAFOs was erroneous, because the statutory authority under state law significantly differs from the federal act interpreted in the Waterkeeper case. The Cabinet’s decision to reinterpret the regulatory definition of CAFO and exempt CAFOs from KPDES permits is clearly erroneous because Kentucky’s water pollution statute is broader than the federal Clean Water Act on the crucial issue of whether a direct discharge into water is required to trigger the permit requirement.

The Kentucky Statute, unlike the federal Clean Water Act, prohibits both “directly and indirectly” any discharges that “cause or contribute to the pollution of the waters of the Commonwealth.”

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Unlike the EPA, which the Waterkeeper Court found lacked statutory authority to require permits of CAFOs, the Cabinet has abundant statutory authority to address this environmental threat to the waterways that surround the areas where millions of gallons of hog manure will be applied.

KRS 224.70-110 prohibits both direct and indirect discharges of any pollutant or pollution-causing substance into the waters of the Commonwealth. The undisputed facts of this case indicate that these facilities will produce a massive volume of waste – 1.78 million gallons of liquid manure per farm – which alone reveals a considerable potential for water pollution.

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Here, it appears that the Cabinet itself changed its interpretation of the CAFO definition in response to the Waterkeeper decision, and began to interpret the exemption for no-discharge operations… The Court finds that the Cabinet’s original interpretation was correct, that the Waterkeeper decision (based on a much different federal statute) has no application to Kentucky law on this issue, and that very few, if any, animal feeding operations would come within the regulatory definition if the Cabinet’s most recent position is upheld.

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As the record reflects, improper application of millions of gallons of hog manure has the potential to badly damage entire waterways or ecosystems, not to mention the increasing and vital public concern with public health and the potential cross contamination between animals and humans.

… It is difficult to see how a wastewater package treatment plant serving a single subdivision must obtain a full KPDES permit, while an industrial scale CAFO generating millions of gallons of hog waste can be exempted from the public notice and participation requirements of a KPDES permit, without offending a basic sense of fundamental fairness to the neighbors and adjoining communities whose lives, property and health will be affected by terms and conditions of these permits.

The Court REVERSES the Secretary’s Final Order to the extent that it accepted the Hearing Officer’s finding that the facilities at issue are not CAFOs per se… The Court finds under KRS 224.70-110 and the administrative regulations promulgated under that statute, that these facilities are CAFOs per se…

Blergh. Still more:

The Cabinet found that the farmer-permittees were already required to comply with the regulation, as it is self-implementing and imposes an affirmative duty on any facility which may “emit potentially hazardous matter or toxic substances.” … The Hearing Officer recommended that the permits be remanded for failure of the Cabinet and permittees to comply with 401 KAR 63:020, yet the Secretary rejected this conclusion in the Final Order. The Court agrees with the Hearing Officer and finds that the Secretary’s Final Order must be reversed on this point.

In the Final Order, the Secretary declined to remand the permits for the Division of Air Quality to perform a risk assessment … or to apply conditions to the permits pursuant to this regulation. As justification for this, the Secretary cited to testimony given at the hearing by Cabinet witnesses Peter Goodman and Diana Andrews that assert that there is inadequate data and evidence of harmful emissions from agricultural feeding operations to justify applying 401 KAR 63:020 to the permits. In a footnote, the Secretary found significance in the Cabinet’s filing of an updated air toxics program in May 2007that would repeat 401 KAR 63:020 which would make the citizens’ arguments moot. Clearly the Secretary’s finding of significance on this point was legal error. While it is understandable that the Secretary was reluctant to enforce a regulation she was trying to repeal, the regulation remains binding and must be enforced.

The continued applicability of 401 KAR 63:020, which has not been repealed, is a matter of law. The Secretary failed to articulate any valid reason to reject the Hearing Officer’s Report and Recommendation, and there is no basis to ignore an effective regulation under Kentucky law. Therefore, the Cabinet needed to, yet failed to articulate valid reasons for setting aside the Hearing Officer’s factual findings and ultimate conclusion that the citizens met their burred of proof to establish that the farmers’ proposal operations will be covered under 401 KAR 63:020 “because the farmers will each be controlling a source (the 1.78 million gallons of liquid manure per farm) which will generate known toxic substances ammonia and hydrogen sulfide.”

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The Hearing Officer found that “there is no doubt on this record that these permitted facilities are sources from which hazardous matter or toxic substances will be emitted.”

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The Hearing Officer found that the Cabinet dismissed the air toxics issue for arbitrary reasons rather than attempting to have a reasoned analysis of this issue done by those in the Cabinet who have expertise in the relevant areas such as risk assessment. … The Court agrees and finds that the Cabinet erred in failing to further investigate the potential for harmful or toxic emissions from these sources based on its obligation under 401 KAR 63:020.

The Cabinet appears to argue that sufficient information was not brought before it to indicate that 401 KAR 63:020 should be applied, but the Court finds that this approach was erroneous. The regulation contains no language that allows the agency, in the face of admitted knowledge of emissions of ammonia and hydrogen sulfide, to ignore the potential for harmful or toxic effects simply because the public failed to present conclusive evidence that harmful levels of emissions will occur. The Cabinet had an obligation to evaluate the facilities to determine their potential for harmful or toxic emissions in the form of conditions being placed int he permits that address this issue.

Oh snap.

Click here to download the entire PDF.