Assateague Coastkeeper et als. v. Alan and Kristen Hudson Farm and Perdue Farms Incorporated, Civil Action WMN-10-cv-0487, D.Md. (slip op. dated July 20, 2010).
Defendant Perdue Farms Incorporated (“Perdue”) unsuccessfully sought dismissal of this Clean Water Act citizen’s suit, even though it did not own or directly operate the Hudsons’ chicken growing operation. This case thus extends citizen’s suit liability to parties, like Perdue, who are not directly responsible for water pollution but have sufficient control over the water-polluting activities of their contractors.
Plaintiffs alleged that poultry manure had been discharged from the Hudsons’ concentrated animal feed operation (CAFO) into a ditch that empties into waters of the United States. Perdue is an “integrator” that contracts with farmers, like the Hudsons, to raise its chickens. The Hudsons, but not Perdue, are covered by Maryland’s CAFO general permit, which is the State counterpart to the federal CAFO regulation. Nevertheless, the federal district court refused to dismiss Perdue, reciting CWA § 301(a) (“the discharge of any pollutant by any person shall be unlawful.”) 33 U.S.C. § 1311(a) (slip op. at 21, emphasis in original). Liability is not placed solely on permit-holders. Also, “the CWA imposes liability both on the party who actually performs the work and on the party with responsibility for or control over the performance of the work.” (id., citation omitted.) Plaintiffs alleged that Perdue exercised extensive control over the Hudson’s operations: “Perdue owns the chickens and provides all of the feed, fuel, litter, medications, vaccinations and other supplies necessary for the Hudson Farm CAFO to grow the chickens” and “Perdue dictates the aspects of care … and makes periodic site visits to ensure compliance with its dictates.” (slip op. at 23). The court held that these allegations were sufficient to survive Perdue’s motion to dismiss.
The court also rejected defendants’ contentions that plaintiffs’ notice of citizen’s suit was defective and that plaintiffs had not shown that a “continuing violation” was occurring.