Poultry Industry Welcomes Ruling Rejecting “Co-Permitting” In Maryland

Poultry industry officials welcomed Monday a ruling by Maryland Administrative Law Judge Neile S. Friedman rejecting the state’s attempt to make poultry processing companies responsible for litter management by farmers.

“Judge Friedman’s ruling hopefully will put a stop to Maryland’s unlawful attempt to tie wastewater permits to unrelated on-farm environmental performance,” said Dr. James E. Marion, technical advisor to the National Chicken Council. “Companies will, however, continue to work on litter management with the farmers who grow chickens for them, as they are already doing in Maryland and across the country.”

The poultry industry adopted a voluntary program in 1998 to encourage farmers to develop nutrient management plans, which are considered the key to proper environmental management of poultry litter. A survey by the NCC this year showed that 75 percent of chicken growers either have nutrient management plans in place or are in the process of developing them.

Judge Friedman’s ruling is technically a recommendation to the secretary of the Maryland Department of the Environment (MDE), based on an appeal of the department’s attempt to issue wastewater treatment permits to processing plants that included conditions related to the farmers’ use of litter. Judge Friedman ruled that the state had no basis in law for trying to tie the wastewater permits to on-farm environmental performance.

“There is no relationship between the contested conditions and the wastewater discharges from the plants, and therefore, the contested conditions may not stand,” Judge Friedman ruled.

In her ruling, Judge Friedman rejected the state’s argument that state and federal law allowed it to regulate matters not mentioned in the laws.

“The plain language of (the law) is quite clear that the statute was intended to govern, and MDE is authorized to regulate, through a permit, the discharge from the facility whose operations are authorized by the permit, and not other facilities that may be owned, controlled, or even operated by the permittee, as MDE suggests here.” (Emphasis in the original) She noted a federal court ruling that said “the agency (Environmental Protection Agency) is powerless to impose permit conditions unrelated to the discharge itself.”

Maryland’s proposed program “has no precedent whatsoever in either federal or state wastewater discharge programs anywhere,” Judge Friedman wrote.

Judge Friedman completely rejected the state’s arguments and granted “summary judgment” on the case, noting that “there are no genuine issues of material fact” in dispute.

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