BERLIN – Hudson Farm owners Alan and Kristin Hudson violated state law by placing potentially polluting materials too close to waters of the state, a state agency has concluded, and have been fined $4,000 for the transgression.
The Maryland Department of the Environment (MDE) hit Perdue chicken raiser Hudson Farm, a Confined Animal Feeding Operation (CAFO) of 80,000 birds near Berlin, with the penalty three weeks after the Waterkeeper Alliance and Assateague Coastal Trust filed a lawsuit over alleged pollution by the farm. The state investigation was triggered by the notice of intent to file a lawsuit by those groups in December. MDE released its findings on March 26.
Maryland state law prohibits discharge of pollutants into state waters, which includes the Chesapeake Bay, the Pocomoke River and all tributaries and ditches. Prohibited pollutants include biological materials and agricultural waste. Under state law, discharge includes “placing any pollutant in a location where the pollutant is likely to pollute.”
By law, MDE can set an administrative penalty up to $5,000 per violation, not to exceed $50,000 total, on pollution violations. The complaint specifies, “each day a violation occurs is a separate violation.”
According to the MDE complaint document, the Hudson Farm received 31 deliveries of treated sewage sludge from the Ocean City wastewater plant, to be used as fertilizer, between March and August 2009, a total of 213.57 tons of treated sewage.
“At the direction or approval of the Hudsons, each delivery of sewage sludge by Ocean City was deposited in an uncovered pile on the property approximately 50 feet from a ditch and stream, a water of the state,” the complaint reads. “The Hudsons dug two trenches from the pile of sewage sludge to the ditches. During and after rain events, the sewage sludge stockpile discharged pollutants into the ditches, which drained into state waterways that are already nutrient-impaired.”
Treated sewer sludge sat near the ditch for 274 days, according to MDE. Treated sewer sludge can be a pollutant, according to the state, and “may not be placed in a position likely to enter the waters of the state.”
The MDE complaint concluded that the pile of sewage sludge on the Hudson Farm “was located in a position likely to pollute ground water and surface waters of the state.”
The farm did not have a state discharge permit that would have allowed sewage sludge to be stored near the ditch.
The MDE complaint concludes that the Hudsons violated state law by keeping Class A sewer sludge within 50 feet of a ditch leading to waters of the state, prompting the $4,000 fine. A $4,000 penalty for 274 days of violation works out to a fine of $14.60 per day.
MDE, which inspected the farm four times as well as sampling water in the ditch, concluded that bacteria levels were high adjacent to the farm but could not be decisively attributed to the CAFO.
According to MDE, the bacteria levels were less concentrated adjacent and immediately downstream of the farm, with higher concentrations found further down the ditch.
MDE contended that the high levels of bacteria could be from wildfowl, deer and raccoons as well as Hudson Farm.
Total maximum daily load studies for the heavily forested Dividing Creek area, over 25 miles to the south, showed that most bacteria came from wildlife. MDE applied this conclusion to the agricultural neighborhood where the Hudson Farm is located.
Scott Edwards, director of advocacy for the Waterkeeper Alliance, noted that MDE said that it has the tools to understand where bacteria originated in the Dividing Creek watershed, but then says it cannot determine bacteria origin in the Hudson Farm area.
“You either have the tools or you don’t,” said Edwards.
“While this case has received extensive media attention, MDE pursues enforcement actions in federal or state court only when circumstances merit that level of action. In this case, MDE did not have strong evidence conclusively linking bacterial pollution to Hudson Farm and is not pursuing enforcement on that issue,” said MDE Secretary Shari T. Wilson.
The Hudson Farm, along with Perdue, also faces a citizen lawsuit brought under the federal Clean Water Act by the Waterkeeper Alliance and Assateague Coast Trust over polluting state waters.
The MDE decision is independent of the Waterkeeper lawsuit.
“It doesn’t affect the lawsuit at all,” said Assateague Coastkeeper Kathy Phillips. “Ours is all about the continued discharge off that Perdue CAFO.”
Edwards added MDE’s decision to not pursue a fine for the impact on water quality has no bearing on the lawsuit.
“The fact they chose not to prosecute the farm under the Clean Water Act has no bearing on our case,” said Edwards. “MDE doesn’t do a lot of things. That’s where citizen lawsuits come in.”