BERLIN – Despite the refusal of the Hudson Farm owner to allow a state agency to take samples of potentially polluting materials from his land, the state says it still has a case for enforcement action against the chicken farm.
The Maryland Department of the Environment (MDE), despite sending inspectors to alleged polluter Hudson Farm, has been refused access to the farm to sample materials, which may have sent high levels of fecal coliform and e. coli bacteria and other pollutants into a local ditch that ultimately drains to the Chesapeake Bay.
MDE spokesperson Dawn Stoltzfus said Thursday that the agency has enough evidence, from visual inspections and photographs, to take enforcement action against Hudson Farm for polluting without the samples sought.
“If it’s warranted to take an enforcement action, we can take it without those samples,” Stoltzfus said.
However, Stoltzfus did say MDE plans to sample and test the materials stored on site as well as the ditch water.
After four refusals to allow MDE inspectors onsite, late last week MDE offered Hudson one last chance to allow inspectors on the farm.
“We did send a letter to the farm, saying here are the laws that give us the legal authority to sample,” said Stoltzfus. “The next step is to get the courts involved and get a warrant.”
This is not the first time MDE has been forced to seek a search warrant to access private property that by law they have the authority to visit and test.
“Inspectors go out by themselves. We don’t want to put them into any situation where things are hostile or they feel unsafe,” Stoltzfus said.
Inspectors did not experience any such problems with the Hudsons, she added. However, the Hudsons do appear to be violating the law in not permitting MDE to take samples.
Maryland sewage sludge laws specifically give MDE the right to access property to enforce those laws, and property owners cannot deny access or interfere with an inspection, under section 9-243 of the Environment Article.
Maryland water laws also give MDE the right to access private property to gather samples, information and records, under section 9-261 of the Environment Article.
Under the General Permit for Concentrated Animal Feed Operations (Part VII B), Confined Animal Feeding Operations (CAFOs), which Hudson Farm qualifies as, must allow MDE to enter the property and take samples of any discharge or possible pollutant. According to MDE, this information is part of the compliance schedule in a document MDE received from Hudson Farm on March 5, 2009, the Notice of Intent for General Discharge for Animal Feeding Operations.
“We’re pretty confident we’re going to get those samples,” Stoltzfus said.
Coastkeeper Kathy Phillips said she hopes MDE samples every pile of material on the Hudson Farm to test for pollutants.
MDE finally asked ACT and the Waterkeeper Alliance this week for the test results from the samples of ditch water she began taking in October.
ACT continues to monitor pollution apparently flowing from the Hudson Farm into the ditch.
“I pulled another sample on Monday morning,” said Phillips this week.
The fecal coliform and e. coli bacteria counts are still high, much higher than levels deemed safe by the federal Environmental Protection Agency, though the counts are lower than the bacteria amounts found in the ditch water earlier in the fall, according to Phillips.
“It’s not the astronomical numbers we had before but it’s still very high. It’s an unacceptable discharge under the Clean Water Act and the CAFO permit,” Phillips said.
CAFOs must have permits under Maryland law. The CAFO permit specifies zero discharge. Hudson Farm is listed as a CAFO with the state.
“These are numbers that are high enough that it’s a health threat,” said Phillips. “We still have a significant discharge coming off that property.”
If a significant discharge is still coming off the property in mid-February, the deadline for the notice of intent, the Waterkeepers will probably go ahead with the Clean Water Act lawsuit. The Waterkeepers Alliance has acknowledged it just wants the property cleaned up and would prefer to not go the lawsuit route if possible.
The ditch, which ACT has sampled several times where it reaches public land next to the Hudson property, leads to Franklin Branch, which leads to the Pocomoke River, which empties into the heavily impaired Chesapeake Bay.
The Waterkeeper Alliance and Assateague Coastal Trust sent a notification of intent to file a lawsuit under the federal Clean Water Act to the farmer Alan Hudson and chicken contract holder Perdue on Dec. 17, alleging that extremely high levels of bacteria, phosphorous and nitrogen, had been found in a drainage ditch leading off the farm. The property owner and Perdue were given 60 days to rectify the situation or the Alliance plans to file the lawsuit.