Water Keeper Allianc, et al v. Smithfield Foods, et al
ORDER granting 133 Motion to Enforce Judgment and granting 140 Motion for Leave to File Reply: Plaintiffs' Renewed Motion to Enforce the Consent Decree, [DE #133], is GRANTED, and defendants are directed to issue written notice to proceed to the consultant in accordance with the Phase II Scope of Work. Plaintiffs' Motion for Leave to File a Reply Memorandum [DE #140], is GRANTED. Signed by Senior Judge Malcolm J. Howard on 12/4/2017. (Lee, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WATERKEEPER ALLIANCE, INC.,
SMITHFIELD FOODS, INC.,
This matter is before the court on plaintiffs' Renewed Motion
response in opposition,
for leave to file a reply
Defendants 1 filed a
Plaintiffs also filed a motion
[DE #140] .
For good cause shown,
adjudication of this motion.
This Court entered a Consent Decree in this matter on March
Decree") . 2
Resolution Pursuant to Consent Decree.
'[DE #10 1] .
After the filing of this action on February 28, 2001, and prior to the entry
of the Consent D~cree on March 24, 2006, Murphy-Brown, LLC ("Murphy-Brown"),
was incorporated as a wholly-owned subsidiary of Smithfield, assuming
ownership of and responsibility for Smithfield's hog production operations.
Murphy-Brown is a named defendant in this court's Consent Decree, [DE #93].
2 This Court's continuing jurisdiction is provided in§ XX of the Consent
Decree, [DE #93].
was filed after defendants had already provided a Notice of Dispute
to plaintiffs on October 31, 2013, pursuant to paragraph 43 of the
Consent Decree, providing for a period of thirty calendar days for
participated in a mediated settlement conference on January 27,
2014, and on several dates by telephone until May 22, 2014, with
Mediator Thomas R. West, all resulting in an impasse.
On October 14, 2015, plaintiffs filed a Motion to Enforce the
and in the Alternative,
Consent Decree Dispute.
to Resolve Defendants'
Defendants filed a response,
[DE #117], and plaintiffs filed a reply.
[DE #119] .
On July 5,
this Court ordered the parties to participate in a court[DE #120].
hosted settlement conference to resolve the dispute.
United States Magistrate Judge Robert B. Jones, Jr., conducted two
[DE #123 and #132].
The first settlement
conference on September 7, 2016, resulted in a tentative settlement
otherwise file a status report.
[DE #123 and #124].
13, 2016, this court issued an order dismissing without prejudice
Alternative, to Resolve Defendants' Consent Decree Dispute.
On October 2 4,
the parties filed a
report requesting a telephonic conference.
differing interpretations of the terms of settlement.
United States Magistrate
conducted a second in-person settlement conference,
which resulted in an impasse.
to Resolve Defendants'
and in the Alternative,
On March 14,
Statement of the Facts
This Consent Decree,
the amended complaint,
the Clean Water Act
[DE # 93] ,
resolved the claims pled in
filed May 29, 2002, pursuant to
pursuant to the Resource Conservation and Recovery Act,
The Consent Decree included an
agreement by defendants to remediate groundwater pollution at its
Murphy-Brown hog production facilities in Eastern North Carolina.
Central to the Consent Decree is the Ground Water Risk Ranking
("GWRRu) Program in Section IX and Ex. E.
[DE #93 at 25; DE #93-
Plaintiffs allege the goal of the GWRR Program is to
facilities in North Carolina by
evaluating these facilities
for the potential of receptor 3 exposure to swine waste constituents
3 "Receptor" is defined by the Consent
Decree as "human and aquatic fauna,
including benthic species." "Exposure" in the context of the Consent Decree is
"the presentation of a swine waste constituent of concern at concentrations
equal to or greater than the regulatory standards to a receptor via
groundwater." "Swine waste constituents" are "selected constituents associated
via groundwater using site-specific data collection programs and
(2) developing technically sound corrective action plans
[DE #93-6 Ex. E
to mitigate potential groundwater contamination.
at 2 §§ 1.1, 1.2].
Plaintiffs allege the parties agreed that S&ME,
the mutually agreed upon independent consultant
facility evaluations needed to achieve the GWRR program's goal of
reducing the risk of groundwater contamination under the Consent
The Consent Decree outlined three progressive phases under
the GWRR program.
Phase I included the development and use of the
Risk Ranking System
to evaluate approximately 260 farms
Farms would be evaluated and ranked into one of
cut-off score exceeding 3 60;
and gap in data.
Phase II involved the evaluation of the farms
that were not previously eliminated from review under Phase I.
for the remaining facilities.
Phase I was completed on October 14,
found that eleven facilities advanced to Phase II.
Of the eleven
with swine wastes, to include nitrate, nitrite, ammonia, phosphorous, fecal
coliform, cadmium, copper, lead, manganese, nickel, and zinc." Consent Decree,
DE #93, Ex. E § 6.0.
4 There were actually twelve facilities that advanced to Phase II, but one of
the facilities is no longer owned or controlled by defendants.
facilities, seven were advanced to Phase II on the basis of lagoon
leakage at the facilities, thereby activating a Default Trigger to
The remaining four facilities were advanced to Phase II
on the basis of elevated nitrogen concentration in the facilities'
activating the Default Trigger for groundwater
Plaintiffs allege the consultant prepared a draft Scope of Work
detailing data to be collected for the development of technically
The Final Phase II Scope of Work was issued on October
The Final Scope of Work identified data needed to develop
technically sound CAPs during Phase III and detailed methods for
the collection of this data.
Plaintiffs allege that over the last three years defendant
Murphy-Brown has blocked the consultant from evaluating the eleven
facilities that advanced to Phase II, resulting in continued threat
to groundwater quality.
The Final Phase II Scope of Work provides "[t]he functional
outcome of the Phase I
evaluation was that a failure of either
Cut-Off Score performance or Automatic Trigger performance was the
conclusion that the potential of receptor exposure to swine waste
constituents via groundwater, as embraced by the GWRRS, had been
[DE #117-7 at 3
The consultant found the
presence of Default Triggers demonstrated a potential of receptor
therefore required a CAP to mitigate the conditions.
The consultant has further stated in the Final Phase II
have been considered,
Solutions 5 by
eligible for re-scoring.
Defendants argue the Phase II Scope of Work,
[DE #117-7], is
inconsistent with the Consent Decree in two critical respects.
concludes that the "potential of receptor exposure to swine waste
constituents via groundwater
had been demonstrated" based
solely on the default triggers, thereby merging Phase II with Phase
"conceptual" Scope of Work plans that call for the collection of
implementation, would lead to removal of the Automatic Trigger."
The data for Phase I had been supplied to S&ME, the agreed-upon consultant by
the defendants, pursuant to the Consent Decree, [DE #134-1 Phase I Scoring Final
Report at 3-4; DE #93-6 Ex. E at § 1.4].
After approving the advancement of
eleven farms from Phase I to Phase II and prior to the consultant's issuance of
the draft Phase II Scope of Work, Murphy-Brown retained another consulting firm,
Geo Solutions Limited, Inc. ("Geo Solutions") to collect additional data related
to the potential of receptor exposure to swine waste constituents via
groundwater at these farms.
Geo Solutions conducted site visits at each farm
including electromagnetic profiling, visual inspection, water level monitoring
(lagoon and. water table), and geochemical analysis according to accepted
protocols. In separate reports issued for the seven farms with reported lagoon
leakage and four farms with elevated nitrogen concentrations, Geo Solutions
found no evidence the lagoons were leaking and concluded the sources of elevated
nitrogen concentrations was not groundwater contamination. While the hiring of
a separate consultant was not contemplated by the Consent Decree, the agreedupon consultant still agreed to consider the data.
[DE #117-7 at § 4.0].
Defendants argue the Final Scope of Work
should not merge Phase II and Phase III by proceeding to CAPS for
the eleven farms advanced to Phase II by a Default Trigger.
application of rules of contract construction.
Anita's New Mexico
Style Mexican Food, Inc., v. Anita's Mexican Foods Corp., 201 F.3d
314, 319 (4th Cir. 2000) (citing United States v. Armour
(1972); United States v.
Co., 420 U.S. 223 (1975)).
ITT Continental Baking
"[T]he scope of a consent decree must
be discerned within its four corners and not by reference to what
might satisfy the purposes of one of the parties to it."
When a contract between parties
confers discretion on one party that will affect the rights of
another, such discretion must be "exercised in a reasonable manner
based upon good faith and fair play."
N.C. App. 11, 200 S.E.2d 410, 414
Mezzanotte v. Freeland, 20
(1973), cert denied, 201 S.E.2d
Plaintiffs request the court to order Murphy-Brown to
fulfill its obligations under the Consent Decree, specifically to
provide written notice
to proceed with the
Program Phase II Data Needs Assessment and Scope of Work, developed
[DE #93-6 Ex. E and DE #115-2].
to the consultant's Final Phase II Scope of Work.
unfounded in light of the terms of the Consent Decree.
argue the Final Scope of Work should not merge Phase II and Phase
III by proceeding to develop CAPS for the eleven farms advanced to
Phase II by a Default Trigger, generated by conditions including
before all eleven farms are advanced to Phase III, requiring data
collection for development of CAPS.
Under the Consent Decree, a Default Trigger is "[a]
regardless of the Farm/Facility's RRS
6.0 at 18].
According to this
consultant has wide latitude to define a Default Trigger.
parties have already agreed to the eleven farms being advanced to
Phase II on the basis of Default Triggers,
and thus the parties
considered the reports of Geo Solutions submitted by defendants
and found there was no potential for re-scoring the eleven farms.
The consultant has found in the Phase II Scope of Work that
the presence of Default Triggers indicates a potential of receptor
exposure to swine waste constituents via groundwater,
CAPS to mitigate the conditions.
[DE #115-2; #117-7].
consideration will be those [f]arms/[f]acilities identified by the
RRS that pose an identified potential of receptor exposure to swine
waste constituents via groundwater on the basis of the cut-off
[DE #93-6 Ex.
1. 4 at
The farms were not
advanced on the basis of a cut-off score, but rather because the
consultant found the presence of Default Triggers,
which in its
professional judgment, indicates a potential of receptor exposure
to swine waste constituents via groundwater.
Thus, advancing the
eleven farms to Phase III for data collection and development of
CAPS is in accordance with the Consent Decree.
Further, the Consent Decree provides that a corrective action
is "[s]pecific to Phase III herein,
generally accepted cost
[f]arm/[f]acility being re-ranked below the cut-off score and/or
mitigate the conditions that generate a Default Phase II Trigger."
[DE #93-6 Ex. E
6.0 at 18].
Thus, mitigation of conditions that
generated a default trigger is the purpose of a corrective action
Considering that each of the farms were advanced to
Phase II for a Default Trigger, generated by conditions including
corrective action is necessary to mitigate such conditions.
Therefore, the consultant's proposed Phase II Scope of Work
further data collection to develop a
sound CAP for each farm is in accordance with the Consent Decree,
and the defendants are directed to issue written notice to proceed
to the consultant in accordance with the Phase II Scope of Work,
[DE #115-2 and #117-7].
and defendants are directed to issue written
notice to proceed to the consultant in accordance with the Phase
II Scope of Work.
Plaintiffs' Motion for Leave to File a Reply
Memorandum [DE #140], is GRANTED.
SO ORDERED this
4 ¢ of December 2017.
Senior United State
At Greenville, NC
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