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February 18, 2013
Perdue seeks court fees in CAFO case

The general counsel for Perdue Farms Inc., announced that the company had filed a memorandum in U.S. District Court for the District of Maryland supporting its request for reimbursement of litigation costs in a case in which the company successfully defended itself again claims that a Maryland farmer under contract to Perdue had illegally discharged pollutants from chicken litter into a tributary of the Pocomoke River, which empties into Chesapeake Bay.

Both environmental groups and the agricultural community have closely followed the case since a ruling against Perdue would set a precedent in assigning liability under the Clean Water Act (CWA) to an agricultural integrator, a corporation that owns animals that are raised and processed by a contracted farm.

Aerial surveillance

In the case, Waterkeeper Alliance alleged that Alan Hudson, owner of a concentrated animal feeding operation (CAFO) with 80,000 chickens, was in violation of the CWA by allowing pollutants from uncontained piles of chicken litter to run into the regulated tributary.  The charge originated when Waterkeeper staff in an airplane flew over Hudson Farm and later reported that they had observed standing water and piles of waste near ditches that drained into the Pocomoke River.  Waterkeeper concluded that the waste piles contained chicken litter, which, under the CAFO regulations, may not be discharged into waters.  

MDE investigation

But subsequent investigations by the Maryland Department of the Environment (MDE) determined that the piles were Class A biosolids that Hudson had obtained from a wastewater treatment plant several months earlier and was anticipating spreading on his fields as fertilizer.

While Maryland and federal regulations require a permit for wastewater treatment plant operators that produce and/or process Class A sewage sludge, individual users do not need a separate permit.  Individuals who use Class A material remain responsible for its proper storage and application–the same as any fertilizer–to prevent runoff and over-application of nutrients.  MDE inspectors fined Hudson $4,000 for keeping the biosolids pile too close to a drainage ditch and instructed the farmer to move the pile, which he did.  

Burden of proof

Even though Judge William Nickerson of the U.S. District Court for the District of Maryland cautioned Waterkeeper about the weakness of the case, the organization persisted, including broadcasting in the news media that the pile contained a mixture of human waste and chicken manure.

Nickerson eventually ruled in favor of the defendants, stating that Waterkeeper and other environmental organizations that had filed supporting briefs had been neither responsible nor effective in pressing the case.  “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,” wrote Nickerson.

Cost as deterrent

“The Waterkeeper Alliance had multiple opportunities to withdraw:  when the supposed chicken manure pile was found to be legal biosolids, when the Maryland Department of Environment officially cleared the Hudsons and determined the situation to be corrected, and again following the Court’s summary judgment ruling,” stated Herb Frerichs, Perdue’s general counsel. 

Frerichs noted that Waterkeeper’s lead counsel is part of the University of Maryland’s Environmental Law Clinic and is therefore paid by Maryland’s taxpayers. 

“The Waterkeeper Alliance incurs no cost when it files a baseless claim,” said Frerichs.  “Simply put, awarding litigation fees is the most effective way to discourage the Waterkeeper Alliance from doing more of the same.  Undeterred by defeat in this court, they can simply move on and sue the next farm."

Click here for the district court’s opinion in Waterkeeper Alliance, Inc., v. Alan Hudson et al..

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