Assateague Coastkeeper et al v. Alan & Kristin Hudson Farm et al
Filing
211
FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge William M Nickerson on 12/20/2012. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WATERKEEPER ALLIANCE, INC.
v.
ALAN HUDSON et al.
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Civil Action No. WMN-10-487
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FINDINGS OF FACT AND
CONCLUSIONS OF LAW
I. INTRODUCTION
This suit was brought pursuant to the citizen suit
provision of the Clean Water Act (CWA), 33 U.S.C. § 1365.
While there were other plaintiffs initially, the sole remaining
plaintiff is Waterkeeper Alliance, Inc. (Waterkeeper), a
national non-profit engaged in various efforts to promote water
quality protection and restoration.1
Defendant Alan Hudson2
operates a farm (the Hudson Farm) on the Eastern Shore of
Maryland near the Pocomoke River.
In addition to field crops,
Hudson raises beef cattle and chickens.
Defendant Perdue Farms,
Inc. (Perdue) is a “poultry integrator” and, during the time
1
The additional plaintiffs were dismissed by the Court on a
motion to dismiss. See ECF Nos. 26 & 27.
2
Plaintiffs initially named the “Alan and Kristin Hudson Farm”
as a defendant. During the course of trial, the Court granted
Plaintiff leave to amend the Complaint to delete that Defendant
and to name, instead, Alan Hudson and Kristin Hudson,
individually. Kristin Hudson was subsequently dismissed by
stipulation.
relevant to this action, Perdue contracted with Hudson to raise
Perdue’s Cornish hens.
The substance of Plaintiff’s claim is that chicken litter,
which is alleged to contain various pollutants, was discharged
without a permit from the Hudson Farm into Prong 2 of the
Franklin Branch, a tributary of the Pocomoke River.
Although
Plaintiff’s theory as to the source of that chicken litter has
changed over time, its theory at trial centered on litter that
is either blown out through the chicken house exhaust fans or
tracked out on shoes and equipment coming in and out of the
chicken houses.
In addition to the alleged direct liability of
Mr. Hudson, Plaintiff seeks to hold Perdue liable under the CWA
on the theory that it exercises sufficient control over the dayto-day operations of the Hudson Farm’s poultry operations so as
to be deemed an “operator” of those poultry operations as well.
On March 1, 2012, the Court denied cross-motions for
summary judgment, ECF No. 143, and the case proceeded to a bench
trial.
The Court heard testimony and received evidence over the
course of 10 days, between October 9, 2012, and October 23,
2012, after which the Court invited the parties to submit
proposed findings of fact and conclusions of law.
Each of the
parties did so, ECF Nos. 201 (Hudson’s), 202 (Perdue’s) and 203
(Waterkeeper’s) and also filed further responses.
2
ECF Nos. 204
(Perdue’s), 205 (Hudson’s), and 206 (Waterkeeper’s).
The Court
then heard closing arguments on November 30, 2012.
After receiving the testimony, carefully considering all of
the evidence, weighing the credibility of the witnesses,
reviewing the exhibits and briefs, and studying the applicable
law, this Court makes the following Findings of Fact and
Conclusions of Law pursuant to Fed. R. Civ. P. 52.
The Court
notes that to the extent any of the following Findings of Fact
constitute Conclusions of Law, they are adopted as such, and to
the extent any Conclusions of Law constitute Findings of Fact,
they are so adopted.
Briefly stated and as explained more fully below, the Court
concludes that Plaintiff has failed to meet its burden of
establishing that there was a discharge of pollution from the
poultry operation on the Hudson Farm.
II. FINDINGS OF FACT3
This year marks the fortieth anniversary of the passage of
the Clean Water Act.
When Congress first passed the Act, it
articulated a goal of restoring and maintaining the chemical,
physical, and biological integrity of the nation's waters.
U.S.C. § 1251.
33
The statute has been highly effective in
cleaning up some of the nation’s waterways.
3
Unfortunately, the
Citations to the extensive record in this action are only
provided for those factual assertions that the Court believes
are potentially in dispute.
3
Chesapeake Bay is, for the most part, not one of them.
The
Pocomoke River, a tributary of the Chesapeake Bay, in whose
watershed the Hudson Farm is located, is impaired by nitrogen,
phosphorus, and bacteria, all pollutants that are associated
with animal manure.
Waterkeeper states as one of its goals, “[t]o promote water
quality and the protection and restoration of waterbodies
through litigation, education, scientific research and all other
legal means.”
Pl.’s Ex. 23 at 5.
The citizen enforcement suit
is one of the primary weapons in Waterkeeper’s arsenal.
Waterkeeper notes that “[c]itizen suit provisions, like Section
505 of the CWA, ensure that citizens have the opportunity to
protect their environment when the government fails to do so.”
ECF No. 165 at 8 (Pl.’s Trial Brief, citing Gwaltney v. CBF, 484
U.S. 49, 60 (1987)).
“‘Congress intended citizen suits to both
goad the responsible agencies to more vigorous enforcement of
the anti-pollution standards and, if the agencies remained
inert, to provide an alternate enforcement mechanism.’” Id.
(quoting Baughman v. Bradford Coal Co., Inc., 592 F.2d 215, 218
(3rd Cir. 1979)).
Waterkeeper is a membership organization and among its
members are Assateague Coastal Trust (ACT) and Kathy Phillips,
the “Assateague Coastkeeper.”
In addition to testimony from
Phillips, Plaintiff offered evidence, either through testimony
4
at trial or by declaration, from several other individuals who
are members of ACT: Stacy Paulsen, Gael W. Carlson, and David
Harvey.
Each stated that they kayaked, canoed, fished, or
simply enjoyed observing the scenery and wildlife on the
Pocomoke River at or below the point where the Franklin Branch
enters the Pocomoke River.4
Each testified that, due to concerns
about pollution coming off of the Hudson Farm, they have either
ceased recreating on the Pocomoke River or that their enjoyment
or frequency of recreational activities on the river has
diminished.
All but Paulsen further testified that, were that
pollution to be addressed, they would again recreate on the
Pocomoke with greater frequency and enjoyment.
As Coastkeeper, Phillips is responsible for the day-to-day
operations of ACT.
Phillips describes the purpose of ACT as
advocating for “the preservation of the natural resources of the
Worcester County region, which includes . . . the Pocomoke
River.”
Phillips, Tr. 25 at 13.
Of special concern to Phillips
and Waterkeeper is pollution from agricultural runoff on the
Eastern Shore, particularly the “environmental and social
4
The distance from the Hudson Farm to the Pocomoke, along the
Franklin Branch, is about 3.5 miles.
5
For ease of reference, the Court will cite the trial transcript
by trial day (1 to 10). For days in which separate transcripts
were prepared for the morning and afternoon session, the Court
will designate the morning session transcript as (A) and the
afternoon’s as (B). So for example, “Tr. 1A” is the transcript
of the morning session of the first trial day.
5
devastation caused by [Concentrated Animal Feeding Operations,
or] CAFOs.”
Phillips, Tr. 2 at 57; Perdue’s Ex. 218 (Phillips
Decl. at ¶ 21).
While on the witness stand, Phillips tried to
distance herself from statements made elsewhere by other
spokespersons of Waterkeeper.
It appears to the Court from her
testimony, and the overall course of this litigation, that
Waterkeeper has a goal of using the CWA to force poultry
integrators, like Perdue, to seriously alter if not abandon
their operations on the Eastern Shore.
While no one could
question the passion with which Phillips approaches that goal,
the Court observed in her testimony and her conduct a certain
“ends justifies the means” approach, where truth can be “spun”
to achieve a desired goal.
In her role as Coastkeeper, Phillips, accompanied by a
Waterkeeper Alliance attorney and a reporter from the Wall
Street Journal, conducted an aerial surveillance flight over the
farmland of the lower Delmarva Peninsula on October 20, 2009.
Phillips, Tr. 2 at 76-77.
The plane was furnished through
Lighthawk, a non-profit organization that provides environmental
organizations access to planes, helicopters, and pilots.
The
purpose of the flight was to “document industrial chicken farms
in the region to inform a Clean Water Act lawsuit [Waterkeeper]
intend[ed] to file.”
purpose of flight).
Perdue’s Ex. 140 (Lighthawk memo re:
Specifically, they were looking for
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“outside storage of poultry litter.”
(Phillips’ trip comments).
Perdue’s Ex. 141
The next day, Phillips reviewed the
photographs taken during the flight and concluded that there was
a large uncovered pile of poultry manure located near the
chicken houses on the Hudson Farm.
She also concluded that the
ground around the pile was trenched to channel runoff from the
pile to a nearby drainage ditch.
A general description of the layout of the Hudson Farm is
helpful at this point.
Like much of the Eastern Shore, the
Hudson Farm is very flat.
To help drain the fields, a network
of drainage ditches was created many years ago to channel ground
and surface water.
One of the primary ditches on the property,
Ditch 1, traverses through the center of the farm, from the
northeast corner to southwest corner, where the ditch exits the
farm property, intersects with other ditches, and the water then
travels through a culvert under Route 50 and into Prong 2 of the
Franklin Branch.
Near the center of the farm, Ditch 1 passes
just to the west of the two chicken houses.
The pile that
Phillips observed in the photographs was just north of the
chicken houses, and also near Ditch 1.
The two chicken houses on the Hudson Farm are approximately
500 feet long and 40 feet wide, with the long dimension running
east to west.
The northern house is designated as House #1, the
southern house, House #2.
Each house can hold approximately
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40,000 birds.
Between the two chicken houses is a manmade
vegetated swale, approximately 60 feet wide.
There are five sidewall fans on each poultry house, four of
which are directed towards the swale, and one is located on the
east end of each house.
Pl.’s Ex. 18 (photo of houses).
In
addition, there are six large tunnel ventilation fans on the
westernmost end of each house.
Three of the tunnel fans in each
house are directed towards the swale.
The other three fans in
each house are located on the sides of the houses opposite of
the swale.
There are also concrete pads at both ends of both houses.
There are large “heavy use area pads” (HUA pads) on the eastern
end of both houses.
The pad on the western end of House #1 is
slightly smaller to permit a sufficient vegetative buffer
between it and Ditch 1.
The pad on the western end of House #2
is smaller still for the same reason; Ditch 1 runs much closer
to House #2 than House #1.
The purpose of the concrete pads is
to permit any chicken litter that is tracked out of the houses
to be swept back into the houses.
The ground in the swale between the houses is graded to
gradually slope from the houses to the center of the swale and
the center of the swale slopes gradually from east to west.
At
the west end of the swale is a pipe that penetrates a berm and
enters Ditch 1.
Just to the south of the chicken houses is
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Ditch 3, which also drains into Ditch 1.
Ditch 3 runs between
House #2 and a field used by Hudson as a cow pasture.
As
discussed more fully below, the origin of Ditch 3 is an area of
the farm that was once a dairy operation but is now a place
where the cattle from Hudson’s beef operation frequently
traverse and gather.
After her observation flight, Phillips began sampling the
water near the point where Ditch 1 exits the Hudson Farm.
Samples were taken on twelve occasions from October 21, 2009,
through April 9, 2010.
Many of these samples showed alarmingly
high levels of fecal coliform (FC), E. Coli (EC), nitrogen (TKN)
and phosphorous (P).
Phillips and Waterkeeper assumed that the
source of these high levels of pollutants was the large
uncovered pile of what they believed to be chicken manure.
For
the next two months, however, Phillips and Waterkeeper did not
express their concerns to either state or federal environmental
regulatory agencies.
On December 17, 2009, Waterkeeper filed a “Notice of
Intent” to sue Hudson Farm and Perdue.
Despite the fact that
Waterkeeper had never tested the pile nor attempted to gain
access to test the pile, Waterkeeper represented in that notice
that “[o]ur investigation revealed that Hudson Farm stockpiles
uncovered poultry manure next to a drainage ditch in its
production area.”
Pl.’s Ex. 14.
Phillips also held a press
9
conference on December 17, 2009, announcing the filing of the
Notice of Intent to Sue and represented that the Hudson Farm was
discharging pollution from an uncovered pile of chicken manure.
Phillips, Tr. 2A at 80.
In response to Plaintiff’s Notice of Intent, four Maryland
state employees visited the Hudson Farm the next day, December
18, 2009.
Those employees were: Harry Hunsicker and Richard
Stewart of the Maryland Department of the Environment (MDE)
Water Management Administration compliance staff; Doug Jones,
District Manager for the Worcester Soil Conservation District;
and David Mister, the Maryland Department of Agriculture’s (MDA)
Regional Coordinator for the Eastern Shore.
65-7.
Mister, Tr. 9A at
Of the four, only Mister was called as a witness, and he
was called by Perdue.
The Court finds Mister to be a very knowledgeable and
credible witness.
since 1995.
Mister has been MDA’s Regional Coordinator
In that role, he has attended numerous workshops
sponsored by MDE and the United States Environmental Protection
Agency (EPA) regarding CAFOs and CAFO inspections.
He has also
conducted inspections on hundreds of poultry farms and has
accompanied the EPA on all of that agency’s site visits to
Delmarva poultry farms.
Mister and the other MDE staff quickly determined that the
large pile on the Hudson Farm was not chicken manure but was
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Class A bio-solids.
These bio-solids were obtained from the
Ocean City Wastewater Treatment Plant several months earlier and
Hudson was anticipating spreading the material on his fields as
fertilizer.6
After determining the nature the pile, Mister and
the other MDE and MDA staff conducted an inspection of the
poultry operation on the Hudson Farm to determine if there were
any water quality issues.
Mister took photographs and annotated
those photographs as is his standard practice and those
photographs were submitted into evidence.
Perdue’s Ex. 87.
Mister noted that there was a “small amount of litter on [the
western HUA pad of House #1] from the recent cleanout.”
Id.7
As
for the small concrete pad on the western end of House #2,
Mister observed “[t]here are no discharges from this area” and
noted that discolored areas on his photograph were “mud and not
manure.”
Id.
He opined that there was “no more than a wheel
barrow load of [litter] between both houses.”
Id.
Regarding
the swale, Mister noted, “Good vegetated area between the two
chicken houses.
No problems with manure or dust from the tunnel
6
The MDE ultimately determined that Hudson was improperly
storing the material and sought a fine of $4,000 related to that
improper storage. An administrative judge, however,
subsequently declined to impose the fine.
7
Hudson was not on the farm on the day of this visit and Mister
simply assumed that the litter he observed was from a recent
cleanout. Hudson was actually “windrowing” by this time, a
process of piling litter inside the house to accelerate
composting and that does not require “clean outs.” Thus, it is
not clear how long this litter had been on the concrete pad.
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fans.”
Id.
Regarding the vegetated buffer area between the
south side of House #2 and Ditch 3, Mister observed, “the
vegetation in this area is very good. . . .
There is no
evidence of any type of discharge from this side of the poultry
houses.”
Id.
Shortly thereafter, Brian Littlefield of the MDE visited
the Hudson Farm and instructed Mr. Hudson to move the pile of
bio-solids farther away from Ditch 1, to cover it with a tarp,
and to place hay bales around the pile.
early January 2010.
Mr. Hudson did so by
Mr. Hudson also placed a large hay bale at
the head of Ditch 3, believing that, in addition to the biosolids pile, his cows might be a source of the high levels of
bacteria and nutrients sampled in the water leaving his farm.
After the discovery that the pile on the Hudson Farm was
bio-solids, and not chicken manure as first alleged, Phillips
and Waterkeepers continued to represent to the press and public
that the pile contained a mixture of human waste and chicken
manure.
Remarkably, Phillips on behalf of ACT issued a press
release on December 23, 2009, stating that “[w]e are appalled to
learn from Perdue’s public statements that it now admits
importing human sewage into [the Hudson Farm],” Perdue’s Ex.
145, although Perdue had never made any such admission.
As late
as February 27, 2010, Phillips continued to state in press
releases that the pile contained chicken manure, despite the
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fact that she had no evidence to support that representation.
See Phillips, Tr. 2 at 97-98; Perdue’s Ex. 180.
A second inspection of the Hudson Farm occurred on January
26, 2010, when ten employees of the Maryland Department of the
Environment visited the Hudson Farm.
Among the ten were an
Assistant Attorney General, the assistant director of MDE’s Land
Management Administration (LMA), a section head from LMA, two
LMA inspectors, a district manager (David Bramble) from MDE’s
Water Management Administration (WMA), a compliance specialist
from WMA (Richard Stewart), and three employees from the Science
Services Administration who were there to collect water samples
(Kathleen Bassett, William Beatty, Ian Spotts).
Perdue called
Bramble as a witness in its case, Plaintiff called Bassett,
Beatty and Spotts as witnesses in its case.
Like Mister, the Court found Bramble to be a knowledgeable
and credible witness.
He testified that he has 16 years of
experience with the Maryland Department of Agriculture’s Soil
Conservation Program.
In that capacity, he designed and
implemented best management practices for erosion and sediment
control, waste management, and waste storage for poultry and
livestock operations.
From 2000 to 2010, Bramble did compliance
and inspection work for MDE’s WMA.
During the January 26, 2010,
inspection of the Hudson Farm, Bramble and Stewart walked
through and inspected the production area around the chicken
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houses, the cattle barns, and the cattle feeding and watering
areas.
Bramble testified that he observed “trace amounts of
chicken litter” on the HUA pads on the eastern end of the
chicken houses.
Bramble, Tr. 9A at 46.
He also stated that he
did not recall observing material below the sidewall fans.
at 52.
Id.
Regarding the cattle operation, however, Bramble
reported, “that the farmer had approximately 42 head of beef
cows that are being fed in a small dirt field with manure coming
into contact with stormwater which was contributing to the farm
runoff to the open ditch.”
Perdue’s Ex. 128 (1/27/10 email from
Bramble to his supervisor).
As discussed below, from Bramble’s
testimony and from a review of the photographs he took on
January 26, 2010, it is clear to the Court that this pool of
stormwater, in which the cow manure was laying, drained into the
eastern end of Ditch 3.
Water samples were also taken on January 26, 2010, from
five sampling points in Ditch 1 and one sampling point in Ditch
6, a ditch on another part of the farm that runs just to the
south of one of the Hudson Farm cow pastures.
Three of the
sampling points in Ditch 1, HF05, HF04, and HF03, were above the
chicken houses.
Sampling point HF02 was located below the point
where the swale pipe entered Ditch 1, but also below the point
where Ditch 3 entered Ditch 1.
The last sampling point on Ditch
1 was located near the point where Phillips and Waterkeeper had
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done their sampling, i.e., where the ditch left the Hudson Farm.
Beatty testified that a significant factor in determining where
the samples were to be taken related to the MDE samplers’
ability to access the steep, heavily vegetated ditches.
Bramble, Tr. 2 at 175.
It is important to note that the purpose
of this testing was focused on evaluating the residual pollution
from the bio-solids pile and the testing was not designed to
isolate whatever contribution there might have been from the
chicken houses.
The samples taken on January 26, 2010, from Ditch 1 yielded
the following results:
HFO5 (FC: 13; EC: <100; TKN = 0.8; P = 1.07)
HFO4 (FC: 13; EC: 100; TKN = 1.3; P = 0.95)
HFO3 (FC: 2,300; EC: 730; TKN = 3.5; P = 0.92)
HFO2 (FC: 300,000; EC: >241,920; TKN = 5.3; P = 1.99)
HFO1 (FC: 70,000; EC: 111,990; TKN = 2.5; P = 1.65).
The sample taken from Ditch 6 yielded these results:
HFO6 (FC: 50,000; EC: 51,720)
These sample results obviously indicate that something
significant was happening between HF03 and HF02, that something
was adding high levels of bacteria and nutrients to the water in
Ditch 1.
Because of the location of the sampling points, the
likely candidates would be water entering from the swale between
the chicken houses, or water from Ditch 3, or both.
15
Unfortunately, because HF03 is above both the swale and Ditch 3
and HF02 is below both of those potential sources, the sampling
data from January 26, 2010, is of no assistance in determining
how much pollution is coming from either of those sources.
Photographs taken of the Hudson Farm and the testimony of
witnesses on the farm, however, do provide the Court with clear
indications as to the source of the pollutants.
During the
relevant time period, October 2009 to April 2010, the Hudson
Farm housed between 85 and 90 cows and calves – one bull, 40
brood cows, and calves.
Each cow produces about 60-80 pounds of
manure per day and, thus, the Hudson Farm cattle together
produce about 3000 pounds of manure per day.
Hudson does not
collect the cow manure that is deposited in his fields or
barnyard.
Furthermore, there is no dispute that cow manure
contains the same bacteria and nutrients, including fecal
coliform, E. Coli, nitrogen, and phosphorous, that were found in
the water samples taken on the Hudson Farm.
In contrast to the chickens that are always confined, the
cattle on the Hudson Farm were permitted to graze in several
different fields.
Water, however, was only available at one
location, a water trough located near the drainage area at the
head of Ditch 3.
Cows take water two or three times a day and
from the aerial photographs of the farm, one can clearly see the
paths taken by the cows from the various pastures to the water
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trough.
All of these paths go through the drainage area at the
head of Ditch 3.
See Perdue Ex. 59.
Also, because the winter
of 2009/2010 was exceptionally wet, Hudson set up a feeding area
and a bedding area on a concrete pad near the trough that also
drained to Ditch 3, further concentrating the cattle in this
area.
Photographs taken during the relevant time period clearly
show an abundance of cow manure near Ditch 3 and in the area
near the water trough that drained into the ditch.8
Perdue’s Exs. 4, 5, 18.
See, e.g.,
As Bramble noted, this manure is in
direct contact with significant amounts of water.
He also noted
that the topography permitted that water to drain into Ditch 3.
Bramble, Tr. 9A at 61-2.
The Court also observes that the fact
that there is a culvert placed under the farm lane connecting
this barnyard drainage area to Ditch 3 is a fairly obvious
indication that the barnyard was intended to, and does, drain
into Ditch 3.
8
Plaintiff and Plaintiff’s expert, Bruce Bell, contend that this
area does not drain, or drains little, into Ditch 3. See Bell,
Tr. 5A at 48-51. From the review of the photographs, see
Perdue’s Exs. 16 and 18, the Court concludes that it clearly
would drain into Ditch 3, particularly in wet weather. To the
extent that the photographs entered in evidence might be
misleading or might tell an incomplete story, the Court notes
that Defendants requested that the Court conduct a site visit to
make first-hand observations of the farm. ECF No. 150.
Waterkeeper strenuously objected to the Court doing so, ECF No.
153, and the Court declined the invitation.
17
Furthermore, while there is some dispute as to how much
Ditch 3 slopes towards Ditch 1, there can be no serious dispute
that, with any significant rainfall, water in Ditch 3 will flow
into Ditch 1.
Ditches are designed to drain the land.
has no outlet to the east.
west.
Ditch 3
Ditch 3 connects to Ditch 1 to the
Thus, it is clearly designed to flow into Ditch 1.
Furthermore, Hudson and Perdue’s expert both testified that
Ditch 3 flowed westward into Ditch 1.
Charles Hagedorn, Tr. 8A at 82.
Hudson, Tr. 7B at 16;
Even Plaintiff’s expert
witness, Bruce Bell, implicitly conceded that there was some
flow in Ditch 3 to Ditch 1.
Bell testified that “a portion of
what’s in the barnyard” will contribute to a sample from HF02.
Bell, Tr. 5A at 50-51.
This contribution could only occur if
Ditch 3 flowed into Ditch 1.
Bassett also testified that she observed cow manure in the
pasture near Ditch 3 (Field 15).
Bassett, Tr. 3 at 139.
While
Bell initially sought to minimize the portion of that pasture
that drained towards Ditch 3, when confronted with a contour map
during cross examination, he conceded that a much larger portion
of the pasture would drain to Ditch 3 or Ditch 1 above HF02.
Bell, Tr. 5A at 87-88.
While the unconfined cattle produce literally tons of
manure that is left in the fields, some which is in direct
contact with runoff, Plaintiff contends that it is chickens that
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are the major source of pollution on the Hudson Farm.
In
contrast to the tons of cattle manure, what was observed outside
of the chicken houses and identified as actual chicken litter is
limited to small or trace amounts that were seen on the concrete
pads.
There is some additional material that was described as
litter or simply as “dust” on the fans and on the ground
immediately below the fans, but that material was never tested
to determine if it was indeed chicken litter or manure, or what
its bacterial or nutrient content might have been.
Nor, for
that matter, was the litter found on the concrete pads ever
tested.
The Court also notes that no photograph shows any water
actually coming out of the swale pipe and no witnesses testified
that they observed water coming out of the pipe.
See Pl.’s Exs.
164, 167, 169 (showing Ditch 1 end of swale pipe with no water
exiting) and Perdue’s Ex. 86A (showing swale end of pipe and no
water).
Photographs of the swale itself show either no water,
whatsoever, in the swale, Perdue’s Ex. 88 at DA001841, or very
small isolated puddles, Perdue’s Ex. 3 and Pl.’s Ex. 171.
Mister testified concerning the litter he did see on the pads
that he did not observe “any channels in the ground that
appeared . . . capable of directing water or manure to the
ditch.”
In short, there was no evidence of any observable
19
discharge of pollution from chicken litter into any ditch on the
Hudson Farm.
Plaintiff notes, correctly, that bacteria and nutrients can
be microscopic and, thus, not all discharges would be visible to
the naked eye.
To support the theory that a discharge must have
occurred despite the fact that no discharge was ever observed,
Plaintiff turns to its expert, Dr. Bell.
While the Court noted
during closing arguments that it found Bell to be, for the most
part, credible and forthcoming, the Court also notes that he
makes half of his income as a professional expert and testifies
on behalf of plaintiffs bringing environmental actions 90
percent of the time.
Bell, Tr. 5A at 11-12.
In addition, his
curriculum vitae indicates that he has authored only two
publications since 1990, the last being in 1996.
at 15.
Pl.’s Ex. 27
The Court qualified Bell as an expert in environmental
engineering, “fate and transport of pollutants, as well as
environmental sampling, stormwater management, environmental
microbiology and chemistry.”
Tr. 5A at 11, 14.
In his testimony, Bell proffered different “pathways” that
microscopic amounts of chicken litter and attendant pollutants
could have found their way into the Franklin Branch.
Specifically, he proffered two “primary pathways to get manure
or litter or dust . . . from inside the chicken houses to the
outside to the ditches:” “fans discharging contents of the
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chicken house, in effect” and “drag-out of manure directly
during placements, during any time you bring equipment in and
out of the house [and] some, any time you bring people in and
out of the house.”
Bell, Tr. 5A at 62-63.
While mentioning
“drag-out” as a pathway, Bell focused most of his attention on
the fans.
Bell, in fact, came close to conceding that he did
not know if there was any litter on the concrete pads that would
have contributed to the results of the January 26, 2010,
sampling.
Bell, Tr. 5A at 75.
To support his “exhaust fan” pathway, Bell relied on two
scientific papers9 that state that the air in chicken houses can
contain fecal bacteria and that, for the particular chicken
houses studied, bacteria was found outside of the houses, up to
40 feet from the exhaust fans.
As Perdue points out, however,
the studies are far from conclusive in determining whether
bacteria were emitted from the fans on the Hudson Farm.
The
Davis and Morishita article was based upon a study of caged
layer houses with significantly larger bird capacities than
those on the Hudson Farm.
Unlike the Hudson Farm houses, these
9
“Relative Ammonia Concentrations, Dust Concentrations, and
Presence of Salmonella Species and Escherichia coli Inside and
Outside Commercial Layer Facilities.” Meredith Davis and Teresa
Morishita, Avian Diseases, 49(1):30-35. 2005 (Perdue’s Ex. 185)
and “An Aerobiological Perspective of Dust in Cage-housed and
Floor-housed Poultry Operations” Natasha Just, Caroline Duchaine
and Baljit Singh, Journal of Occupational Medicine and Toxology
2009, 4:13. (Pl.’s Ex. 916).
21
caged layer houses employ manure pits, not litter to absorb
waste.
Also, the fans in the study ran “constantly,” whereas
the Hudson Farm fans typically run only 12 minutes per hour and
even less in the winter.
Finally, Davis and Morishita
acknowledged that further study was needed to even determine if
the bacteria found outside of the facilities was the same as the
bacteria isolated inside the facility.
Perdue’s Ex. 185 at 34.
The second “study,” the Just article, is more of a review
of the literature, not an independent study.
The article
focuses on contaminates in the air inside of poultry facilities
and the impact of those contaminates on poultry workers.
In a
single paragraph, the article mentions contaminates exiting the
poultry house and states that “[c]ontaminated indoor air is
expelled from animal facilities by exhaust fans,” but the only
authority cited for that position is the Davis and Morishita
study.
The article also mentions that dust in poultry
facilities is a “complex mixture” of organic and inorganic
material that, in addition to fecal matter, urine and other
environmental contaminates, also includes skin flakes, pollen,
feed and litter particles, and feathers.
Pl.’s Ex. 916 at 2.
The article further mentions that the aerosolization of
contaminates can be affected by a number of variables including:
“animal activity, air temperature, relative humidity,
ventilation rate, animal stocking density, animal mass, type of
22
litter, type of bird, bird age, type of feed, feeding method,
time of day, air distribution, relative locations of dust
sources and presence or absence of air cleaning technologies.”
Id. at 4.
Beyond that variability, the article notes that the
survival time for bacteria suspended in the air or attached to
poultry dust can be affected by any number of factors including:
“mechanism of dispersal into the air, deposition on host
surfaces, host susceptibility, humidity, temperature, bacterial
repair processes and the open-air factor, which can kill
microorganisms.”
Id.
Given this variability in the composition of dust that can
be emitted from poultry houses, it seems that the obvious method
for Plaintiff to have attempted to prove its case would have
been to sample some of the dust emitted from the fans on the
Hudson Farms.
Plaintiff repeatedly displayed before the Court a
large blowup of a photograph of material that had accumulated on
the Hudson Farm tunnel fans.
See Pl.’s Exs. 168, 172.
While
Bell described the material as chicken litter, others who are
familiar with poultry operations determined it was dust, not
litter.
69.
Tammie Seyfert, Tr. 4B at 59-60; Jeff Smith, Tr. 3 at
Plaintiff also makes much of the fact that a light colored
substance can be seen in the areas immediately around the
exhaust fans in several photographs.
It would, of course, have
been a simple matter to sample the material seen accumulated on
23
the fans or the soil underneath the fans and yet Bell, who was
designated as an expert in “environmental sampling,” took no
such samples.
Similarly, to demonstrate the validity of his pathway
theory, Bell could have taken samples of the water in Ditch 1
below the swale pipe but above where Ditch 3 enters Ditch 1.
This would have isolated the alleged contribution of
contaminates from the chicken houses from that contributed by
the cattle.
Again, neither Bell nor Plaintiff did any sampling
that perhaps could have established this absolutely critical
aspect of Plaintiff’s case.
Plaintiff offers two explanations for this failure to do
any addition testing or sampling.
First, Plaintiff suggests
that it would be impossible to “go back in time” to duplicate
the precise conditions on the Hudson Farm during the October
2009 to April 2010 time period.
That argument is belied both by
Plaintiff’s allegation that there is a continuing violation on
the Hudson Farm, as well as by common sense.
In support of its
continuing violation theory, Plaintiff argues in its post-trial
memorandum that
the Hudson CAFO discharged pollutants on April 9,
2010, five weeks after Plaintiff filed its Complaint.
. . . Alan Hudson continued to grow chickens for
Perdue in the poultry houses. The operation of the
poultry houses continued to include running the fans,
windrowing, and other activities requiring significant
equipment and foot traffic out of the houses. The
24
poultry production area continued to be drained by a
swale and pipe to Ditch 1, and the ditch system
continued to convey water and pollutants off the
Hudson property and to the Franklin Branch.
ECF No. 203-1 at 25.
If pollutants were continuing to come off
of the Hudson Farm, Plaintiff could have easily conducted
sampling to determine if the poultry operation was the source of
that pollution.
Furthermore, if Plaintiff was concerned that
conditions on the property might somehow have been altered to
point away from the poultry operation as the source of the
contaminants, the “wealth of documentary and photographic
evidence” of the conditions on the Hudson Farm during the
relevant time period to which Plaintiff points, ECF No. 203-1 at
3, would have rendered any alteration readily discernible.
Plaintiff’s second argument for not doing the necessary
sampling to prove its case is somewhat astonishing.
When asked
during closing argument why the testing was not done, counsel
responded that Waterkeeper is “not made of money” and that the
testing would have been too expensive.
Given the significant
amount of resources that Plaintiff has expended on this
litigation, coupled with the foreseeable resource expenditures
imposed on Defendants, as well as the time and effort imposed on
the Court, it borders on indefensible that Plaintiff would not
have conducted the straightforward testing and sampling that
25
could have established a discharge from the poultry operation,
if there was such a discharge.
Without that sampling, the substance of Bell’s opinion is
nothing more than: poultry fans can emit dust; poultry dust can
contain litter; poultry litter can contain certain pollutants;
and, because those pollutants were found in the water exiting
the Hudson Farm, some of those pollutants must have come from
the poultry operations.
One additional aspect of Bell’s expert opinion warrants
comment.
In order to minimize the contribution of cows to the
discharge from the Hudson Farm, Bell opines that, from his
analysis of the MDE sample results, the topography of the Hudson
Farm, and the evidence concerning the areas used by cows, the
sample results from HF06 would give a good estimate of what the
cow contribution, by itself, would be.
Bell, Tr. 5A at 52.
The
MDE January 26, 2010, sample results showed fecal coliform and
E. Coli in the samples taken from HF06 in an amount that is
roughly one fifth of that in the samples taken from HF02.
Bell
concludes that, because a portion of a cow pasture (Field 15)
drains into Ditch 1 above HF02 and a similar portion of another
field (the Cow Pasture) flows into Ditch 6 above HFO6, the cow
contribution to both would be the same and, thus, the primary
contribution of pollution measured at HF02 must have come, not
26
from the cows, but from the poultry operation.
Bell, Tr. 5A at
51-52.
The Court finds several flaws in the conclusions drawn by
Bell from the HF06 samples.
First, as demonstrated on cross-
examination, Bell overestimated the degree of accuracy
obtainable from the topographic data he was using.
at 81-84.
Bell, Tr. 5A
More significantly, however, Bell’s analysis largely
ignores the cow contribution from the drainage area at the head
of Ditch 3.
In contrast to the field near HF06, this is an
area where all of the cattle traverse several times a day, the
ground is compacted, and there is little, if any, vegetative
buffer between that depression and Ditch 3.
In addition, as
mentioned above, the cow manure in this area is in direct
contact with the stormwater.
While in answer to a question as
to the cow contribution to HF06, Bell hypothesized that part of
the barnyard “sheds sort of in this direction [to HF06], away
from that depressed area or depression area,” Bell, Tr. 5A at
52, the Court concludes, as discussed above, that water from
this barnyard area clearly flows to Ditch 3 and HF02.
To counter Bell’s “pathway” theory, Defendants offered the
testimony of their expert witness, Charles Hagedorn.
also found Hagedorn to be credible and forthcoming.
The Court
Unlike
Bell, however, Hagedorn is an academic researcher and scientist
who is not at all dependent upon courtroom appearances as a paid
27
expert.
This proceeding was, in fact, the first time Hagedorn
has served as an expert witness and, in the Court’s view, this
gives him added credibility.
He also has no apparent ties to
the poultry industry.
The Court also finds that, for the most part, Professor
Hagedorn’s expertise is more closely aligned with the critical
issues in this case.
Hagedorn is a tenured professor of
Environmental Microbiology at Virginia Polytechnic Institute and
State University and has taught there since 1986.
He has
published hundreds of articles and books, including, just last
year, a book on microbial source tracking.
Hagedorn is
routinely called upon by government agencies and environmental
groups to determine the sources of water pollution, especially
in rural watersheds.
He has experience tracking the sources of
water pollution in the District of Columbia, 17 states, and five
foreign countries.
On the issue of bacterial and nutrient content in the dust
and in the air inside of chicken houses, Hagedorn offered the
following testimony which the Court finds persuasive.
Echoing
the Just article, Hagedorn noted that the dust in poultry houses
includes, not just litter and manure, but skin debris, feather
debris, feed debris, dust from outside, and pollen.
He opines
that is composed “primarily of skin cells, skin debris, feather
debris, and crystallized urine.”
28
Hagedorn, 8A at 42.
He
acknowledged that the air in poultry houses would contain
bacteria as well, but the most prevalent form would be the
bacterial genus staphylococcus, not fecal bacteria.
Id. at 43.
Furthermore, as fecal bacteria enters the air, it quickly dies
out - how quickly, again as noted in the Just article, depends
on a number of variables related to the management of the
poultry facilities.
Id. at 44.
The survival rate of fecal bacteria is also tied to the
size of the material, if any, to which it is attached.
Free
floating bacteria, Hagedorn testified, would die off almost
immediately when exposed to oxygen in the air.
Id.
Attachment
to minute particles of organic matter would offer only slightly
more protection and that bacteria would die off almost as
rapidly.
The larger the particle to which the bacteria is
attached, the longer it can survive, but also, the less likely
it would remain suspended in the air and be emitted from the
poultry houses.
Id. at 44-45.
Hagedorn also testified regarding nutrients in the poultry
house air and dust.
While the dust would contain some nutrients
such as nitrogen, phosphorous, and ammonia, the concentration of
airborne nutrients would be much lower than that found in litter
on the floor of a chicken house.
Like bacterial concentrations,
airborne nutrient levels would vary greatly based upon the
management practices employed by the grower.
29
Of significance,
during the relevant time period, the Hudson Farm treated all of
the litter it used with a litter treatment, PLT, an acid that
binds with nutrients and reduces the amount of ammonia that
would otherwise be released into the air.
at 20.
Todd LaKites, Tr. 4A
While the purpose of PLT is to reduce the ammonia level
inside the houses to promote bird health, it also reduces the
amount of airborne ammonia that could be emitted from exhaust
fans.
Hagedorn testified that, like bacterial levels, nutrient
levels in the litter, dust, or air inside or outside of the
Hudson Farm poultry houses could have been tested by various
methods, some of which are very simple and inexpensive.
Hagedorn, Tr. 8A at 41.
Assuming that some bacteria and nutrients are emitted by
exhaust fans, Hagedorn described various obstacles that would
have prevented those contaminates from reaching Ditch 1 or
ultimately, the Franklin Branch.
First, there is the continued
natural die-off of bacteria on small airborne particles, as
discussed above.
Next, Hagedorn testified that the heavy
vegetation in the swale would act as a natural biological filter
for dust and nutrient molecules.
Some nutrients are taken up
directly by the plants and others will be consumed by a biofilm
of microorganisms that cover the surfaces of the plants.
55-56.
Id. at
Particles that do not land on plants would encounter a
“biological mat of microorganisms in the upper part of the soil
30
and in the thatch at the bottom of the plants.
This biological
mat contains trillions of different microorganisms per cubic
inch.”
Id. at 56.
These organisms also take up nutrients.
There is one aspect of Hagedorn’s testimony that the Court
would discount.
Hagedorn testified that no surface water runoff
would occur until the water table is at or near the surface.
Hagedorn, Tr. 8A 72-73, 87 and 8B at 51.
While that might be
true in some general sense, i.e., that more rain would be able
to soak into the ground when the water table is low, common
experience recognizes that if rainfall is sufficiently heavy,
surface runoff will occur regardless of where the water table
might be.
That said, as noted above, there was no testimony by
anyone stating that they observed water ever actually flowing in
the swale.
Given the minimal amounts of fecal bacteria and nutrients
that would have escaped from the poultry houses and deposited in
the swale and the significant obstacles to the transport of
those materials and the survival of the bacteria, Hagedorn
concluded that it is not likely that any bacteria or nutrients
would have reached Ditch 1.
Hagedorn, Tr. 8A at 61-62.
Assuming, however, that some minute particles did enter Ditch 1,
Hagedorn testified that many of the same obstacles that operated
in the swale would operate in the ditch, which is also heavily
vegetated.
Id. at 66.
In addition, Hagedorn testified that
31
there is a “very large biological mat” of microbes and algae
present in the ditch water.
Id. at 68.
This enormous
population of microbes and algae would also take up nutrients
and the enzymes would further degrade any dust molecules.
at 69.
Id.
These mechanisms would further prevent any bacteria or
nutrients from the poultry houses from reaching the Franklin
Branch or the Pocomoke River.
The Court notes that even in the
short distance between HF02 and HF01, there is a significant
decrease in the levels of fecal bacteria and nutrients.
See,
supra, at 15.
Given the minimal amounts of bacteria and nutrients that
are emitted from the chicken houses and the obstacles to their
survival and transport, Hagedorn concluded that the poultry
operations on the Hudson Farm did not contribute to the sampling
results obtained by MDE or Waterkeeper.
Instead, Hagedorn
pointed to the cow manure as the cause of the pollution
observed.10
10
Hagedorn also pointed to the approximately 150,000 gallons of
urine that the cattle on the Hudson Farm would deposit on the
landscape each year, urine that would contain high levels of
nitrogen. Hagedorn, Tr. 8A at 79-80. Plaintiff objected to
this evidence on the ground that Hagedorn did not disclose cow
urine as a factor in his expert report. The Court agrees that
this is a sufficiently new area of testimony and will not
consider it. Given that a full grown cow can drink close to 100
gallons of water per day, Hudson, Tr. 6B at 85, the Court could
perhaps take judicial notice that cows will leave a considerable
amount of urine on the landscape. The nutrient content of that
32
Plaintiff’s primary attack on Hagedorn’s testimony and
conclusions is that if, as Hagedorn conceded, pollutants from
cow manure are subject to the same obstacles as pollutants from
chicken manure, there would be no pollutants, at all, in Ditch 1
if Hagedorn’s conclusions were valid.
ECF No. 203-1 at 34-35.
On that basis, Plaintiff characterizes Hagedorn’s conclusion as
absurd.
Id.
Plaintiff’s argument, however, completely ignores
the fundamental differences between the chicken litter and the
cow manure on the Hudson Farm.
The first and most obvious of these differences is the
sheer volume of cow manure - a ton and one half per day –
compared to the tiny amount that might escape the chicken house
by fan, foot, or tire.
While not all of that manure is
generated in the drainage basin of Ditch 3, much of it is, given
the barnyard area located at the end of Ditch 3 where all of the
cows traverse several times each day.
Not only is there far,
far more cow manure, the particle size is much larger, and the
ability of bacteria to survive or nutrients to be absorbed can
be a function of particle size.
In addition, unlike the swale,
the ground in the barnyard area (where the cow manure is
observed in direct contact with the water) is heavily compacted,
limiting absorption into the ground.
Unlike the swale, the
urine, however, is probably beyond the scope of that judicial
notice.
33
ground between the barnyard area and the head of Ditch 3 is not
heavily vegetated.
Also, unlike the swale, water was actually
observed in the barnyard and in Ditch 3.
In addition to what happens in the ditches on the Hudson
Farm, the parties offer very different views as to what happens
to the water from Ditch 1 and any pollutants that it carries
once that water leaves the farm.
On this issue, the Court
generally agrees more with Plaintiff and Dr. Bell.
Maps of the
region, both current and historical, showing the Franklin Branch
and its prongs, along with the testimony of witnesses as to the
flow of water from Ditch 1 and under Route 50, and photographs
showing that flow, all establish a clear hydrological connection
between Ditch 1 and the Pocomoke River, at least during the
relevant time period.
Defendants’ counter-argument that downed
trees or partially clogged culverts prevent the water in a
river’s tributary from reaching that river is without support
and runs counter to common experience.
Similarly, Defendants’
reliance on the fact that some maps show Prong 2 of the Franklin
Branch as an intermittent stream is unavailing, given the
undisputed testimony that the weather was exceptionally wet
during the relevant time period.
While the Court would agree that the water in Ditch 1 will
eventually reach the Pocomoke River, the degree to which the
nutrients and bacteria would complete that journey is not clear.
34
Bell testified that, particularly with regard to the nutrient
levels, there would not be a significant reduction in the 3.5
miles to the Pocomoke River.
Bell, Tr. 5B at 18-19.
As to
bacteria, Bell opined that at least 10 to 15 percent would
survive and reach the Pocomoke.
Id. at 21.
While Defendants
counter that downed trees and the other obstacles identified by
Hagedorn would slow down the transport of nutrients and bacteria
and decrease the survivability of bacteria, the Court concludes
that given the significantly high levels of nutrients and
bacteria measured as the water leaves the Hudson Farm, some of
those contaminants would reach the Pocomoke River.
III. CONCLUSIONS OF LAW
A. Standing
As an initial matter, the Court must address Plaintiff’s
standing to bring this action.
“An association has standing to
sue on behalf of its members when its members would otherwise
have standing to sue in their own right, the interests at stake
are germane to the organization’s purpose, and neither the claim
asserted nor the relief requested requires the participation of
individual members in the lawsuit.”
Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs., 528 U.S. 167, 181 (2000).
An
association with members that are other associations has
standing to sue when one or more member associations would have
35
standing to sue based on their individual members.
New York
State Club Ass’n v. City of New York, 487 U.S. 1, 9 (1988).
For an individual to have standing, three elements must be
established.
First, the plaintiff must have suffered an “injury
in fact” - an invasion of a legally protected interest which is
(a) concrete and particularized, and (b) “actual or imminent,
not “conjectural” or “hypothetical.”
Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992) (citations and quotations
omitted).
Second, there must be a causal connection between the
injury and the conduct complained of - the injury has to be
“fairly ... trace[able] to the challenged action of the
defendant.”
Id.
Third, it must be “likely,” as opposed to
merely “speculative,” that the injury will be “redressed by a
favorable decision.”
Id.
In the context of suits alleging
environmental damage, an individual plaintiff satisfies the
injury in fact prong of standing if “they use the affected area
and are persons ‘for whom the aesthetic and recreational values
of the area will be lessened by the challenged activity.’”
Laidlaw, 528 U.S. at 183 (quoting Sierra Club v. Morton, 405
U.S. 727, 735 (1972)).
That individual’s reasonable fear and
concern about the effects of the challenged activity must be
supported by objective evidence and directly affect the
individual’s recreational interests.
36
Friends of the Earth, Inc.
v. Gaston Copper Recycling Corp., 204 F.3d 149, 161 (4th Cir.
2000) (Gaston I).
Phillips, Paulsen, Carlson, and Harvey are all members of
ACT and ACT is a member of Waterkeeper.
Phillips and Paulsen
are also individual members of Waterkeeper as well.
Each of
these individuals testified that they recreate on the Pocomoke
River and that their enjoyment of that recreating has been
lessened by their understanding of the manner in which the
Hudson Farm was polluting the Pocomoke.
They also testified
that their concerns would be remedied if pollution issues from
the Hudson Farm were addressed.
The primary challenge to standing argued by Defendants is
that the places where the standing witnesses recreate are too
distant from the relevant zone of discharge.
In support of that
argument, Defendants rely on Friends of the Earth, Inc. v.
Gaston Copper Recycling Corp., 629 F.3d 387 (4th Cir. 2011)
(Gaston III), in which the Fourth Circuit held that
“[p]laintiff[s] claiming injury from environmental damage must
use the area affected by the challenged activity and not an area
roughly ‘in the vicinity of it.’”
504 U.S. at 565-66).
Id. at 397 (quoting Lujan,
In the Gaston litigation, the defendant
discharged water from a storm water treatment facility into a
lake on his property, the lake’s water overflow discharged into
a branch, and that branch was a tributary of a creek which
37
flowed into the North Fork of the Edisto River.
F.3d at 391.
Gaston III, 629
The distance from the defendant’s discharge to the
creek’s confluence with the Edisto River was about 16.5 miles.
After the plaintiff whose property was significantly closer to
the point of discharge and on whom standing had been based died
during the course of the litigation, the Fourth Circuit
considered whether the plaintiffs continued to have standing
through two other individual plaintiffs and remanded the case to
the district court to determine factual issues related to
standing.
Friends of the Earth, Inc. v. Gaston Copper Recycling
Corp., 263 Fed. Appx. 348 (4th Cir. 2008) (Gaston II).
In remanding the case, the Fourth Circuit instructed, that
the plaintiffs “were not required to present evidence of actual
harm to the environment so long as a direct nexus existed
between the plaintiffs and the ‘area of environmental
impairment.’”
Id. (quoting Gaston I, 204 F.3d at 159).
The
court concluded, however, that the plaintiffs were required to
show that the plaintiffs on whom standing was to be based “used
the area affected by the challenged activity, and that use of
“an area roughly in the vicinity” of the affected area was
insufficient.
Id. at 355 (quoting Lujan, 504 U.S. at 565–66).
On remand, the district court found that one of the
plaintiffs, Jones, used the area at the confluence of the Edisto
River and the creek and, on that basis, concluded there was
38
standing.
On appeal of that decision, the Fourth Circuit
concluded that, based on its determination in Gaston I that the
waters at the confluence were impacted by the discharges from
the defendant’s facility, they were able to conclude that that
plaintiff used an “area affected by the challenged activity”
rather than “an area roughly in the vicinity of it.”
at 397.
629 F.3d
“In view of Jones’ use of the waters in this area, and
his reasonable concern that runoff from Gaston's facility is
polluting the waters in that area, we hold that the plaintiffs
asserted an injury in fact through their member Jones and
established standing to prosecute this suit.”
Id.
The Gaston
III decision turned on a previous determination in Gaston I that
the discharge from defendant’s facility “affects or has the
potential to affect the waterway for 16.5 miles downstream” from
that facility.
Gaston I, 204 F.3d at 158.
Here, because
Plaintiff’s standing requires a similar finding that the
challenged discharge reached the confluence of the Franklin
Branch and the Pocomoke River, the standing issue becomes
somewhat intertwined with the merits of Plaintiff’s claim.11
Phillips testified that she kayaked at the confluence of
the Franklin Branch and the Pocomoke which is about 3.5 miles
11
That issues of standing and issues going to the merits of a
claim become intertwined is not unusual. See Charles Alan
Wright, Arthur Miller, Edward Cooper, Federal Practice and
Procedure § 3531.15 at 331-333 (2008).
39
from the Hudson Farm and at the confluence of the Timmonstown
Branch and the Pocomoke River which is about 4.5 miles from the
Hudson Farm.
Other standing witnesses stated that they
recreated on the Pocomoke anywhere from 7 to 28 miles from the
Hudson Farm.
Were the facts as Plaintiff allege and the Hudson
Farm poultry operation the cause of the high readings of levels
of bacteria and nutrients discharged from the Hudson Farm,
Plaintiff could make a reasonable case that the discharge from
the poultry operation affected, at least, the area near the
confluence of the Franklin Branch and the Pocomoke River.
As
noted above, Bell testified that much of the nutrient load found
in the Waterkeeper samples and as much as 10 to 15 percent of
the bacteria would have made it at least to the confluence.12
At
least one of the standing witnesses testified that she kayaked
at that confluence and on that basis, the Court finds Plaintiff
has standing.
B. Violation of the Clean Water Act
In a previous memorandum opinion issued in this action,
this Court set out the regulatory and permitting scheme for
12
While the Court concludes that Plaintiff has not established
that any of the nutrients or bacteria in those samples came from
the poultry operation, see infra, that issue is best resolved as
an issue going to the merits rather than as an issue of
standing. See Sunrise Corp. of Myrtle Beach v. City of Myrtle
Beach, 420 F.3d 322, 325 n.1 (4th Cir. 2005) (where challenge to
the plaintiffs’ standing was that there was no injury in fact,
which was also element of the plaintiffs’ claim, court should
have addressed the issue as an attack on the merits).
40
CAFOs under the Clean Water Act.
Assateague Coastkeeper v. Alan
and Kristen Hudson Farm, 727 F. Supp. 2d 433, 445-36 (D. Md.
2010).
That discussion will not be repeated here.
Briefly
stated, however, the CWA prohibits the “discharge” of pollutants
from a “point source” to “waters of the United States,” except
as authorized by a permit issued under the National Pollution
Discharge Elimination System (NPDES) program.
U.S.C. §§ 1311, 1342, 1362.
Id. at 444; 33
Although there is some disagreement
as to which specific portions of the Hudson Farm are encompassed
in its production area, there is no disagreement that the
poultry operation on the Hudson Farm is a CAFO and a point
source under the CWA.
122.23.
See 33 U.S.C. § 1362(14); 40 C.F.R. §
While, as noted above, Defendants attempted to argue to
the contrary, the Court finds that water from Ditch 3 flows into
the Franklin Branch which in turn flows into the Pocomoke River,
which is one of the waters of the United States.
The Court will
assume, arguendo, that Mr. Hudson did not have a permit during
the relevant time period although, on this issue, Defendants
have made a compelling argument.
The Court concludes, however, that Plaintiff has not
established the alleged CWA violation because Plaintiff has
failed to establish that there was a discharge from the poultry
operation.
On the issue of whether there was such a discharge,
Plaintiff had the burden of proof by a preponderance of the
41
evidence. Coeur D’Alene Tribe v. Asarco, Inc., 280 F. Supp. 2d
1094, 1102 (D. Idaho 2003).
“The burden of showing something by
a ‘preponderance of the evidence,’ the most common standard in
the civil law, simply requires the trier of fact to believe that
the existence of a fact is more probable than its nonexistence
before he may find in favor of the party who has the burden to
persuade the judge of the fact's existence.”
Moberly ex rel.
Moberly v. Secretary of Health and Human Servs., 592 F.3d 1315,
1322 n.2 (internal quotations omitted).
The Court would agree that it is possible that some
particle of chicken litter made its way out of the house, into
the swale, through the swale pipe, into Ditch 1, off the Hudson
Farm and into the Franklin Branch.
It is also possible that, if
Plaintiff had done appropriate testing on the Hudson Farm, they
could have found evidence of that discharge.
As Plaintiff
notes, Defendants’ expert witness readily concedes that it “was
possible” that pollutants could be released from the chicken
houses.
ECF No. 203 at 33 (citing Hagedorn, Tr. 8B at 15-17).
That such pollution is possible, however, does not satisfy the
preponderance of evidence standard.
As Perdue notes, the evidence offered here in support of
Plaintiff’s claim stands in sharp contrast to the evidence
presented in every reported case involving discharge from a CAFO
in violation of the CWA.
ECF No. 204 at 12 n.8 (citing
42
Concerned Area Residents for the Envt. v. Southview Farm, 34
F.3d 114, 117-118 (2d Cir. 1994); Am. Canoe Ass’n v. Murphy
Farms, Inc., 412 F.3d 536, 538 (4th Cir. 2005); Idaho Rural
Council v. Bosma, 143 F. Supp. 2d 1169, 1176 (D. Idaho 2001);
Community Ass’n for Restoration of the Envt. v. Henry Bosma
Dairy, 65 F. Supp. 2d 1129, 1148 (E.D. Wash. 1999); Higbee v.
Starr, 598 F. Supp. 323, 331 (D. Ark. 1984)).
decisions, there was an observed discharge.
In each of those
For example, in
Southview Farm for one of the discharges that the appellate
court found to be a proven violation, immediately after two of
the plaintiffs observed the defendant spreading liquid manure on
a particular field, they “observed liquid manure flowing into
and through a swale [on the defendant’s farm] and through a
drain tile leading directly into a stream which ultimately flows
into the Genessee River”.
34 F.3d at 117.
In response to the
defendant’s argument that the plaintiffs offered no direct
eyewitness testimony of manure actually leaving the farm on two
other dates, the appellate court found that the plaintiff had
made out a “strong circumstantial case” for violations on those
dates, as well, because they made detailed observations of
defendant spreading manure in the same manner in the same field
as on the day the manure was observed leaving the farm.
120.
43
Id. at
Similarly, in Henry Bosma Dairy, a third party gave
eyewitness testimony that he observed, on several occasions, a
pipe from the defendant’s farm “spilling green-brown manure
water” into a canal that the court had determined to be the
waters of the United States.
65 F. Supp. 2d at 1148.
In Idaho
Rural Council, a witness stated in an affidavit that “he
observed a steady flow of polluted surface runoff” from the
defendant’s farm into a spring that the court had determined met
the definition of waters of the United States.
This runoff
included “syringes, examination gloves, mastitis tubes, and
manure.”
Id.
The Court is not implying by citing these cases that there
must always be an eyewitness to a discharge in order for a CWA
violation to be established.
In the case at bar, the Court
could readily envision finding a violation without eyewitness
testimony of an observed actual discharge had there been any
testing or sampling tailored to measure the contribution of the
poultry houses.
Plaintiff, however, cannot require the Court to
ignore the obvious source of the discharge in favor of a source
tied to the discharge by a string of possibilities.
Having found insufficient proof of any discharge from the
poultry houses, the Court must briefly address an issue raised
by Plaintiff in what strikes the Court as a rather puzzling
footnote.
ECF No. 206 at 5 n.2.
44
Plaintiff states in that
footnote that, “[d]ue to the overwhelming evidence that the
poultry production contributed pollutants to the discharge from
Ditch 1, Plaintiff has not summarized the evidence establishing
that even if the pollution was solely due to pollution from the
cows, this would still be a CWA violation but those facts exist
in the record.”
Id. (emphasis in original).
While Plaintiff
mentioned some months ago in another footnote13 that it “retains
the right to present evidence at trial that the cows are
confined within the meaning of the regulations and that
discharges from the cows are, indeed, violations of the CWA,”
Plaintiff has never seriously advanced the Hudson Farm cows as a
basis of CWA liability.
What is even more puzzling about this
footnote is that Plaintiff asserts that “liability for the
violations [solely due to pollution from the cows] flows to both
Defendants as a result.”
ECF No. 206 at 5 n.2 (emphasis added
by Court).
Regardless of whether the discharge from the Hudson Farm
cattle operation might be a CWA violation, there is certainly no
evidence in the record on which Plaintiff could support the
conclusion that Perdue would be liable for that violation.
There is no evidence that Perdue had anything to do with the
Hudson Farm cattle operation.
Furthermore, Plaintiff can assert
13
This footnote was in its opposition to Defendants’ motions for
summary judgment, ECF No. 127 at 19 n.116.
45
no liability in this action arising out of the cattle operation
because to do so would be inconsistent with the CWA’s notice
provisions.
As the Court explained more fully in its memorandum
denying Defendants’ motions to dismiss, under the CWA, a
plaintiff must provide 60 days’ notice to the EPA, the State
where the alleged violation occurred, and the alleged violators
before filing suit.
1365(b).
727 F. Supp. 2d at 437; 33 U.S.C. §
In the notice, a plaintiff must “provide the alleged
violator with enough information to attempt to correct the
violation and avert the citizen suit.”
400; see also 40 C.F.R. § 135.3(a).
Gaston III, 629 F.3d at
As the Court noted in its
letter order denying the parties’ cross motions for summary
judgment, any claim under the CWA based upon discharges from the
cattle operation would be beyond the scope of the Notice of
Intent, which was clearly limited to poultry waste.
ECF No. 143
at 3; see Compl., Ex. A at 1 (citing “discharge of pollutants
associated with poultry waste” as the CWA violation).
For all these reasons, the Court concludes that Plaintiff
has not established a violation of the Clean Water Act.
Having
reached that conclusion, there are a number of other issues
raised by the parties that the Court need not reach, such as:
whether the swale was part of the production area, whether the
alleged discharges were exempt agricultural stormwater
46
discharges, or whether Plaintiff has proven a continual
violation.
There is one remaining issue that the Court will briefly
address both because the parties devoted so much attention to
the issue and because it was the central focus of Plaintiff’s
litigation strategy.
That issue is whether Perdue could be held
liable as an operator had the Court found a CWA violation based
upon a discharge from the poultry operations on the Hudson Farm.
While in the current posture of this case the conclusion is
certainly dicta, the Court concludes that there was insufficient
evidence to impose CWA liability on Perdue.
In denying Perdue’s motion to dismiss, the Court recognized
that integrators can, under certain circumstances, be subject to
the CWA as an operator of a CAFO.
727 F. Supp. 2d at 442.
In
order to be deemed an “operator” of a polluting facility,
however, a person or entity “must manage, direct, or conduct
operations specifically related to pollution, that is,
operations having to do with the leakage or disposal of
hazardous waste, or decisions about compliance with
environmental regulations.”
United States v. Bestfoods, 524
U.S. 51, 66-67 (1998) (emphasis added).
Although Plaintiff
introduced evidence that Perdue gave extensive advice and
instruction to its growers and, in many ways, regulated the
growers’ activities; that advice, instruction and regulation
47
related primarily to bird health and product quality and not
environmental compliance.
That type of control exercised by
Perdue does not provide a basis for imposing CWA liability.
There was evidence, however, that some of Perdue’s advice
to its growers was related to environmental concerns.
That
evidence related to a “Clean Water Environmental Initiative”
that was part of a program in which Perdue entered into a
memorandum of understanding with the EPA to promote
environmental stewardship and training with its growers.
Under
that program, Perdue personnel received training from the EPA
relating to environmental compliance and the use of best
management practices and Perdue, in turn, educated its growers
on those issues.
Plaintiff sought to use the training material
prepared by Perdue as part of this program, Pl.’s Ex. 462, as a
means to impose CWA liability on Perdue.
While the undersigned has not hesitated to criticize Perdue
and impose liability on Perdue for violation of a federal
statute when appropriate, see Heath v. Perdue Farms, Inc., 87 F.
Supp. 2d 452 (D. Md. 2000) (finding that Perdue willfully
violated the Federal Fair Labor Standards Act), in this
instance, the evidence at trial would suggest that Perdue should
be commended, not condemned.
Perdue appears to have tried to
take the lead in addressing some of the very issues about which
Plaintiff is concerned.
It also appears that Perdue suspended
48
this effort, at least in part, because of concerns related to
this litigation and concerns that Plaintiff would do just as it
has done, i.e., attempt to use the Initiative as proof of
control and as a basis of liability.
IV. CONCLUSION
The Court has no disagreement with Plaintiff that the
Chesapeake Bay is an important and vital resource, that it is
seriously impaired, and that the runoff from factory farms,
including poultry operations, may play a significant role in
that impairment.
Nor does the Court disagree that citizen suits
under the Clean Water Act can play a significant role in filling
the void where state regulatory agencies are unable or unwilling
to take appropriate legal action against offenders.
When
citizen groups take up that mantle, however, they must do so
responsibly and effectively.
The Court finds that in this
action, for whatever reason, Waterkeeper did not meet that
obligation.
Finding that Plaintiff has not shown, by a preponderance of
the evidence, that the poultry operation on the Hudson Farm has
discharged pollutants into the waters of the United States, the
Court will enter judgment against Plaintiff and in favor of Alan
49
Hudson and Perdue.
A separate order will issue.
_______________/s/________________
William M. Nickerson
Senior United States District Judge
DATED: December 20, 2012
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