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Patricia Smith
U.S. District Court Judge Malcolm Howard has denied motions by Smithfield to dismiss several allegations in the cases.
"He slam-dunked them and denied all their motions," said Rick Dove, southeast representative for the Water Keeper Alliance and former Neuse River keeper.
Nicolette Hahn, senior attorney with the Water Keeper Alliance, said the decision marks a critical landmark in the case because the plaintiffs can now go forward with depositions and other investigation of Smithfield.
"This is the first time that the River Keepers have been able to get into the discovery phase in the courts," Dove said. Now they can request Smithfield records, he said.
Jerry Hostetter, spokesman for Virginia-based Smithfield Foods, declined to comment on the decision citing company policy regarding litigation.
A Feb. 28, 2001, Smithfield news release quoted Richard Poulson, vice president and senior adviser to the company chairman, reacting to a Water Keeper Alliance announcement that they intended to file the lawsuits.
"Hog production is one of the most heavily regulated segments of American agriculture," Poulson said. "Every one of our hog farms in North Carolina and other states uses state-of-the-art waste disposal technologies. Every farm has a legal permit from an appropriate government agency and is subject to a strict zero-tolerance standard for environmental discharge, a standard not applied to municipalities and many other industries."
Smithfield Foods owns subsidiaries Carroll's Foods, Brown's of Carolina and Murphy Farms, which represents about 70 percent of North Carolina's hog farm industry.
On Feb. 28, the Water Keeper Alliance, an environmental coalition, filed complaints against Brown's and Smithfield claiming numerous violations of the Clean Water Act and the Resource Conservation and Recovery Act at Brown's facility No.5/No.6 and Brown's facility No.9/No.22. Both farms are located in Jones County, Hahn said.
On May 4, Smithfield and Brown's filed motions to dismiss. An Aug. 7 court order denied Smithfield's request to be dropped from the case and on Sept. 6 the parties argued for and against the other motions.
The lawsuits claim the farms are concentrated animal feeding operations, which discharge pollutants into navigable waters and therefore must obtain National Pollutant Discharge Elimination System permits under the federal Clean Water Act. Smithfield and Brown's argued that the lagoon and sprayfield systems used at the farms do not discharge into navigable waters and that any runoff from these systems fall within an agricultural storm water exemption.
Judge Howard ruled Sept. 20 that sprayfields can qualify as a point source for pollution if it is part of a concentrated animal feeding operation.
"It is clear that point sources are not subject to the storm water exemption," he wrote in his ruling. "Federal regulations limit the storm water exemption to non-point sources including storm water runoff from orchids, cultivated crops, pastures, range lands and forest lands, but not discharges from concentrated animal feeding operations."
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