32 ELR 20320 -- Water Keeper Alliance v. Smithfield Foods, Inc.

Water Keeper Alliance v. Smithfield Foods, Inc.

Nos. 4:01-CV-27-H(3); 4:01-CV-30-H(3) (UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA September 20, 2001)

ELR Digest

A court denies a concentrated animal feeding operation's (CAFO's) motion to dismiss an environmental group's claims that the CAFO violated various provisions of the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA). The CAFO failed to obtain a national pollutant discharge elimination system (NPDES) permit before discharging pollutants, and the court first holds that the text and structure of the CWA taken as a whole support the court's conclusion that the CWA subjects the CAFO to the NPDES permit requirement. The court next holds that the CAFO's argument that it is not a CAFO due to a design exception, and, therefore, not subject to the NPDES program, is one of fact not appropriately resolved under a motion to dismiss. The court further holds that the CAFO's argument that sprayfields at its operations cannot fall within the definition of a point source because animals are not confined in the sprayfield area is nonsensical. Excluding parts of the waste management system from the definition of a CAFO by limiting the CAFO area to the land underneath the feeding areas would compromise the goals of the CWA by allowing widespread pollution by industrial feedlots pumping waste into other areas of their farms. The sprayfield areas are a vital part of the CAFO and cannot be separated from the confinement areas merely because the waste has been moved from one area of the farm to another. The court finally holds that the question of whether the CAFO returns animal waste to the soil for fertilization purposes or instead applies waste in such large quantities that its usefulness as organic fertilizer is eliminated, and, therefore, a solid waste under RCRA, is a question of fact.

The full text of this opinion is available from ELR (13 pp., ELR Order No. L-405).

Counsel for Plaintiffs
Robert F. Kennedy Jr.
Pace Environmental Law Clinic
78 N. Broadway, White Plains NY 10603
(914) 422-4343

Counsel for Defendants
Brad Johnston
Hogan & Hartson
885 Third Ave. New York NY 10022
(212) 409-9800

[32 ELR 20320]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]