Friday, July 23–Court Ruling Keeps Perdue In River Pollution Lawsuit

BERLIN – Perdue Farms will remain part of a lawsuit brought by
environmental activists against a local chicken farm raising Perdue birds that
has allegedly polluted the Pocomoke River.

The Clean Water Act pollution lawsuit, brought against Hudson Farm and
Perdue Farms by Coastkeeper Kathy Phillips, Assateague Coastal Trust (ACT), and
the national Waterkeeper Alliance, has survived an effort by the defendants to
have the suit dismissed.

“It’s incredibly positive,” said Assateague Coastkeeper Kathy
Phillips. “The merits of our arguments stood up.”

Waterkeeper Alliance Advocacy Director Scott Edwards said the ruling
is critical.

“Up until now, Perdue has found a way to engage in a very intensive
industrial process and at the end of their very profitable day, get up and walk
away from their own industrial waste stream – chicken manure,” said Edwards.
“No other industry in this country has figured out how to do that.”

The court ruling excited Jane Barrett, director of the Maryland School
of Law Environmental Clinic.

“We’re very eager to see this case move forward in the coming months,”
said Barrett. “We are confident that discovery will show just how much this
industry controls the day-to-day operations of the so-called contract growers.”

The decision of the federal court follows case law in keeping Perdue
Farms as a defendant along with Alan and Kristin Hudson, owners of Hudson
Farm. 

Perdue’s attorneys argued that the poultry company should be removed
from the lawsuit because it is not required to have a discharge permit, but the
court decision references a provision in the Clean Water Act that states it is
illegal for “any person” to discharge a pollutant.

The Act also places responsibility for pollution on those who control
the work of the polluters, as well as those who pollute directly.

Perdue’s possible liability is not based on a discharge permit, but on
the poultry integrator’s control over its chicken raising contractors, like the
Hudsons, the decision concludes.

Perdue owns the chickens, provides all feed, medication and
supplements, and prescribes how the chickens are cared for, the decision noted.

The 26-page decision refutes a contention by the defendants that the
notice of intent to sue only covered a pile of material near the contaminated
drainage ditch as a pollution source and did not name other sources on the
Hudson Farm.

Case law, according to the recent decision not to dismiss the
Waterkeepers’ lawsuit, does not require that every aspect of a violation needs
to be described in the notice.

The purpose of the notice, according to the federal decision, is to
give violators the chance to correct problems.

The decision also disagreed with the defendants’ motion that the notice
needed to identify the exact point source of the pollution. The plaintiffs
listed the point source as the Hudson Farm, not one pile of material, according
to the court decision.

The court document notes that the defendants emphasize the
identification of a pile of material near the ditch as poultry manure, and the
point source, but since the plaintiffs were not able to enter Hudson Farm and
ascertain the actual point source, no other identification of the source is
necessary, the court concluded.

The decision also notes that the Maryland Department of the
Environment examined the entire farm when investigating the plaintiffs’
allegations, not just one pile of waste.

An attempt by the defendants to seek dismissal on the grounds that the
violations were eliminated before the lawsuit was filed was disallowed by the
court.

The Clean Water Act only requires good faith complaints of
intermittent or continued violations at this point in the lawsuit.

“Here, Plaintiffs’ complaint raises a reasonable inference that the
Hudson Farm CAFO [Combined Animal Feeding Operation], and more specifically the
chicken operation, is the source of the pollutants discovered,” the decision
reads.

One part of the defendants’ requests succeeded removing Phillips and
ACT from the lawsuit as plaintiffs because of technical issues in the notice of
intent to sue, which did not contain Phillips’ or ACT’s addresses and phone
numbers.

“It was definitely a minor technicality that took me off of it,”
Phillips said.

Phillips is exploring her options to get back onto the lawsuit as a
plaintiff with the lawsuit legal team.

Despite this minor setback, Phillips was pleased with the federal
court’s decision.

“The implication there is the judge felt that based on the merits of
our argument, he agreed the case needs to move forward,” Phillips said.

 

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