McElmurray v. U.S. Dept. of Agriculture
| Decision Date | 25 February 2008 |
| Docket Number | Civil Action No. CV105-159. |
| Citation | 535 F.Supp.2d 1318 |
| Parties | R.A. McELMURRAY, III, R.A. McElmurray, Jr., Richard P. McElmurray, and Earl D. McElmurray, Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant. |
| Court | U.S. District Court — Southern District of Georgia |
F. Edwin Hallman, Jr., Richard A. Wingate, Decker, Hallman, Barber & Briggs, Atlanta, GA, James S. Murray, Wm. Byrd Warlick, Warlick, Tritt, Stebbins & Hall, LLP, Augusta, GA, for Plaintiffs.
Delora L. Kennebrew, U.S. Attorney's Office, Savannah, GA, for Defendant.
Plaintiffs, R.A. McElmurray, III, R.A. McElmurray, Jr., Richard P. MeElmurray, and Earl D. McElmurray (collectively, the "McElmurrays"), filed the above-captioned case against the United States Department of Agriculture ("USDA"), seeking judicial review of an administrative decision, which denied the McElmurrays' application for a "prevented planting" federal farm subsidy.
Presently before the Court are the parties' cross-motions for judgment on the administrative record. Because the agency's decision was arbitrary and capricious, Plaintiffs' motion will be GRANTED and Defendant's motion will be DENIED.
The City of Augusta operates the Messerly/Butler Creek Wastewater Treatment Plant, which treats industrial and household wastewater. Administrative Record ("AR") 1862.
Before Congress passed the Clean Water Act in 1972, industrial wastewater effluent was dumped into the nation's rivers, oceans, and other waterways, not subject to much, if any, oversight or regulation. See Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159, 168 (2006). One infamous result of this pollution was that the Cuyahoga River, near Lake Erie in Cleveland, Ohio, caught on fire in the 1960s.
After unregulated dumping of industrial pollutants into the nation's rivers was prohibited, effluent from industries began being routed through the municipal wastewater treatment plants across the country, along with household sewage. At municipal treatment plants, wastewater is treated to remove chemicals, pathogens, and toxic metals from the effluent. These materials are concentrated in the byproduct remaining after treatment, sewage sludge. This byproduct also contains beneficial materials like those found in commercial fertilizer. AR 1233-34. Municipalities were left with a considerable amount of sewage sludge to dispose of in some manner. See Peter Scalamandre & Sons, Inc. v. Kaufman, 113 F.3d 556, 559 (5th Cir.1997). In the late 1970s, the treated sewage sludge was re-christened "biosolids" and a "land application/recycling" program was started.
The Clean Water Act recognizes that municipal sewage sludge contains toxic pollutants, and it requires that the United States Environmental Protection Agency ("EPA") establish numerical limitations for each such pollutant. 33 U.S.C. § 1345(d)(2)(A)(i) (2001). In 1979, the EPA enacted rules governing the land application of sludge to farmland where crops are grown. 40 C.F.R. § 257.4 (2007). In 1993, the EPA enacted the "Part 503 Sludge Rule," which further regulates the amounts of heavy metals that may be contained in biosolids applications, and reinforced the agency's view that such municipal waste is safe for spreading on farms where crops are grown. 40 C.F.R. Part 503 (2007).
Because the sludge applications that took place in this case ended before Part 503 was enacted, the Part 503 Rules do not supercede the Part 257 regulations in the instant dispute. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). The McElmurrays insist that Part 257 governs, and the USDA has never advanced any argument explaining why Part 503 should apply retroactively.
The EPA's Inspector General has criticized the EPA's biosolids program sharply, finding, in a 2002 report, that the AR 1485, 1518.1
Since 1938, the McElmurrays have owned and operated a family dairy farm near Hephzibah, Georgia. In the 1970s, Augusta developed a land application program, whereby treated sewage sludge from the Messerly plant was recycled as fertilizer and applied to private farmland, at no cost to the farmers. In 1979, the McElmurrays and Augusta entered into a series of agreements, and the City began applying its sewage sludge at the McElmurrays' farm. Plaintiffs contend that they were told the fertilizer was safe, and the applications continued on their land through 1990.
According to R.A. McElmurray, III, in November 1990, he was having trouble with his crops. McElmurray described the problem to his brother-in-law, who had a degree in agriculture from the University of Georgia. McElmurray related that his brother-in-law opined that the problem was probably aluminum toxicity. Thereafter, McElmurray asked Augusta's land application supervisor to test for aluminum in the sludge. When the result was high, McElmurray ceased allowing sludge applications on his family's farmland. AR 1743.
McElmurray conceded that he did not quit planting the land involved in this dispute until 1998. The land produced a full crop that year, but planting was ceased due to "[l]iability, and what it was doing to our dairy cows [.]" AR 1777. According to Plaintiffs, only years after the sludge applications took place did they learn the full extent of the damage that the sewage sludge had wrought on their land. The McElmurrays accused the City of withholding pertinent information about the particular locations on their land Where the sludge was applied, the volume applied, and the presence and amount of toxic metals contained in the sludge. The McElmurrays contend that the sludge poisoned plants grown on the land, which were fed to their dairy cattle, causing the cows to become seriously ill and die.
As part of the Farm Bill of 2002, Congress provided certain farmers with subsidies, which were based on historical acreage and yields, not current production choices. Direct and Counter-Cyclical Program, 67 Fed.Reg. 64, 748 (Oct. 21, 2002). A farmer could establish his base acres and payment acres by including "any acreage on the farm that the producers were prevented from planting during the 1998 through 2001 crop years to covered commodities because of drought, flood, or other natural disaster, or other conditions beyond the control of the producers.. . ." 7 U.S.C. § 7911 (a)(1)(A)(ii) (2007 Supp.)(emphasis added).2
Prevented plant[ing] means, for the purpose of establishing base acres under § 1412.201, the inability to plant a crop with proper equipment during the established planting period for the crop or commodity. A producer mast prove that the producer intended to plant the crop and that such crop could not be planted due to a natural disaster rather than managerial decisions. The natural disaster that caused the prevented planting must have occurred during the established planting period for the crop.
On January 15, 2003, Plaintiffs submitted a request for acreage/disaster credit to the USDA, listing environmental contamination of the land on their application as the reason for the "prevented planting." The McElmurrays listed the intended crops as 907.1 acres of cotton3 and 204.8 acres of corn for the years 1999 to 2001. The following day, the McElmurrays submitted additional forms, stating that their request included an additional 559.1 acres of cotton and 59.5 acres of corn for the years 1999 to 2001. The total request was for a prevented planting credit of 1466.2 acres of cotton and 264.3 acres of corn. AR 2134,
At first, Plaintiffs' applications were reviewed by the USDA's Farm Service Agency ("FSA") County Committee. After a preliminary review by the County Committee, the McElmurrays' application was denied because the damage was not caused by a natural disaster, as the County Committee believed was required for relief. Yet, a superior FSA official in Washington, D.C., John A. Johnson, reversed the basis for that determination. Johnson, the FSA Deputy Administrator for Farm Programs, stipulated that the McElmurrays could receive the subsidy if their land was contaminated, and the contamination caused the McElmurrays to refrain from planting the intended acreage. On April 22, 2003, the FSA County Committee again denied Plaintiffs' application for payments.
The McElmurrays appealed to the FSA State Committee. This five-member committee of farmers oversees USDA farm programs in Georgia, sets local policies, and settles agriculture-related disputes that involve farmers and public policy. After reviewing the record and conducting multiple hearings, the FSA State Committee voted in favor of Plaintiffs' application, by a vote of three to two. In finding for the McElmurrays, the State Committee discounted the advice of its attorney, Donald Kronenberger, who had opined that the State Committee was bound by certain documents provided to the Committee by the EPA, and had to deny the McElmurrays' application. AR 1988 & 2745.
However, the State Committee's decision was stayed, pending a review by the FSA's Deputy Administrator for Farm Programs, pursuant to 7 C.F.R. § 1412.102(d). Although the entire agency record was forwarded to Johnson, there is no indication that the Deputy Administrator reviewed the file. AR 2134 & 2433. On March 18, 2004, the Deputy Administrator overruled the State Committee and denied Plaintiffs' application. AR 2256-57. In part, Johnson's...
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