Clean Water Act Suit Enters Final Stretch

BERLIN — The latest milestone in the ongoing landmark civil suit filed against a Berlin farm family and Perdue over alleged pollution violations passed this week with parties on both sides filing their proposed findings of fact and conclusions.

Testimony ended in mid-October in the civil trial pitting a New York-based environmental watchdog group against Berlin’s Hudson Farm and Perdue and on Wednesday, each of the parties filed their proposed findings of fact and conclusions of law following the trial. In the findings of fact and conclusions of law, each of the parties attempts to show the court what they were successful in presenting during the trial and what their opponents did not prove successfully.

The filing of the documents by the defendants Hudson Farm and Perdue, and the plaintiff, the Waterkeeper Alliance, represent the next significant step in what has been a three-year battle and moves the case closer to a conclusion. Each of the parties will now have the opportunity to refute their opponents’ findings and conclusions before closing arguments scheduled for later this month. It remains possible U.S. District Court Judge William Nickerson could waive oral closing statements in the case if he determines the findings and conclusions filed this week are satisfactory in determining a ruling.

In March 2010, the New York-based Waterkeeper Alliance, along with the Assateague Coastal Trust and the Assateague Coastkeeper, filed suit in U.S. District Court against Perdue and Berlin’s Hudson Farm, a contract factory farm operation of about 80,000 birds. The suit was filed after sampling in ditches adjacent to the property allegedly revealed high levels of harmful fecal coliform and E. coli in concentrations that exceed state limits.

The Waterkeeper Alliance filed suit in federal court accusing the farm of violating the state’s Clean Water Act. ACT and the Assateague Coastkeeper early on were dismissed as plaintiffs in the case, leaving the Waterkeeper as the sole plaintiff in the case. The Hudsons and Perdue are the defendants.

Each party’s proposed findings of fact and conclusions of law filed this week go into lengthy detail essentially rehashing and summarizing the testimony during the 10-day trial in October. The Waterkeeper Alliance’s findings include 99 pages of detailed facts it believes it proved during trial, while Perdue’s report numbers 72 pages. By far, the shortest and most terse report was the Hudson’s report, which numbers just nine pages.

The Waterkeeper’s proposed findings of fact details the sources of the alleged violations the discharge of pollutants without a permit, clearly identifies the defendants including the Hudson Farm and Perdue as a facilitator and alleges continuing violations. The Waterkeeper’s proposed conclusions of law assert the Hudson Farm is an animal feeding operation and thus a point source, the farm discharged pollutants into U.S. waters, and the discharges were unpermitted and in violation of the Clean Water Act.

Perdue’s findings of fact and conclusions of law attempt to prove the Waterkeeper Alliance did not prove a Clean Water Act violation at trial. The report concludes there is no evidence the Hudson Farm poultry houses discharged pollutants and that the farm should be deemed to have the appropriate permits. Perdue also attempts to show the poultry house fan emissions are not subject to a zero discharge limit and that the plaintiff did not prove at trial that water from the Hudson Farm reaches navigable U.S. waters.

The lengthy document also attempts to show Perdue does not control environmental compliance at the Hudson Farm, that the Waterkeeper Alliance lacks standing to bring the suit in the first place and that the notice of intent to sue was legally insufficient. Perdue also attempts to show the plaintiff was not successful in proving continuing violations at the Hudson Farm and that state standards are not enforceable in a federal suit.

In its own findings, the Hudson Farm adopts Perdue’s findings of fact and conclusions of law and submits its own proposed facts and conclusions. The Hudson document meticulously outlines the history of the farm, which has been in the family for generations and details its growth and development over the years. The Hudson report also provides a timeline for various permit approvals in recent years. The Hudsons’ own findings of fact and conclusions of law assert the various government agencies have found no problems with the poultry houses on the farm and outline the effects of the ongoing litigation on the family.

Each of the parties will now have the opportunity to refute the other’s findings of facts and conclusions of law in advance of closing oral arguments, which are tentatively scheduled for Nov. 30.

The judge will make a ruling sometime thereafter, although it remains to be seen if the filings this week are sufficient to reach a decision.

One comment on “Clean Water Act Suit Enters Final Stretch

  1. If environmental group only would be concerned how their own waste is treated. In another lawsuit, they are taking the EPA to court for not setting ‘nutrient treatment’ standards under the Clean Water Act (CWA). Nitrogenous (urine and proteins) waste in sewage is now called a nutrient, while this waste represents 40% of the waste in sewage Congress intended to treat under the CWA. Due to a faulty applied test, EPA ignored 60% of the pollution in sewage Congress intended to remove, while the ignored nitrogenous waste, not only exerts an oxygen demand (like fecal waste) it also is a fertilizer for algae. In a recent article by Investigate West (www.invw.org) an EPA spokeswoman states that urine does not need to be treated under the CWA, except if effluents discharge in ‘ammonia’ sensitive waters. EPA clearly does not understand that nitrogenous waste exerts directly an oxygen demand when discharged into open waters, but that each pound will grow 20 pounds of alga, which when it dies will exert an oxygen demand similar to that caused by fecal waste, thereby contributing to the formation of dead zones.
    So why waste more time and money on legal fights while it could spent its time on asking their representatives in Washington to demand that EPA implement the CWA.

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