Northeast Iowa v. Agriprocessors
| Decision Date | 29 November 2006 |
| Docket Number | No. 04-CV-1037-LRR.,04-CV-1037-LRR. |
| Citation | 469 F.Supp.2d 666 |
| Parties | NORTHEAST IOWA CITIZENS FOR CLEAN WATER, Plaintiff, v. AGRIPROCESSORS, INC., Defendant. United States of America, Plaintiff, v. AgriProcessors, Inc., Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Lawrence P. McLellan, Sullivan & Ward, PC, West Des Moines, IA, for Plaintiff, Northeast Iowa Citizens for Clean Water.
Robert M. Butler, U.S. Attorney's Office, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff, United States of America.
Debra Lynne Hulett, Jay. Eaton, Nyemaster, Goode, West, Hansell & O'Brien, PC, Des Moines, IA, for Defendant.
The matter before the court is the Motion to Enter Proposed Consent Decree ("Motion") (docket no. 51), filed by the United States of America ("United States"), on behalf of the United States Environmental Protection Agency ("EPA").
On December 1, 2004, the United States, on behalf of the EPA, filed a Complaint against Defendant AgriProcessors, Inc. ("AgriProcessors"). The Complaint alleges that AgriProcessors repeatedly violated various federal environmental laws, including the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq.,1 the Emergency Planning and Community Right-to-Know Act ("EPCRA"), 42 U.S.C. § 11001 et seq., and the Clean Air Act ("CAA"), 42 U.S.C. § 7470 et seq.
According to the Complaint, AgriProcessors owns and operates a kosher meat processing plant ("Plant") in the City of Postville, Iowa ("City"). The Plant produces wastewater and uses, anhydrous ammonia.
AgriProcessors discharges its wastewater to the City's Publicly Owned Treatment Works ("POTW"). The POTW is a controlled-release, four-cell lagoon system. It does not mechanically treat water, but instead relies on biological processes to reduce the level of pollutants in the wastewater over time. The POTW was designed to retain wastewater for 180 days to ensure adequate treatment. The POTW discharges into Hecker Creek, and then to the Yellow River, in northeast Iowa.
The State of Iowa, operating under an EPA-approved program, issued a National Pollutant Discharge Elimination System permit ("Permit") to the City. The Permit limits what AgriProcessors can release into the POTW ("pretreatment effluent limitations") and what the City can release into Hecker Creek ("final effluent limitations"). Since 1996, the Permit has contained pretreatment effluent limitations on flow, five-day biochemical oxygen demand ("BOD5"), total suspended solids ("TSS"), pH, chlorides, and oil and grease. The Permit contains final effluent limitations for flow, five-day carbonaceous biochemical oxygen demand ("CBOD5"), TSS and pH.
In addition to discharging wastewater, the Plant uses large quantities of anhydrous ammonia.2 Various federal environmental laws required AgriProcessors to do two things: (1) annually report the amount of anhydrous ammonia it used and (2) develop and implement a risk management program, including a hazardous assessment a prevention program and an emergency response program.
Count I of the Complaint alleges that, over approximately five years, AgriProcessors exceeded the Permit's pretreatment effluent limitations for flow, BOD5, TSS and chlorides, in violation of 33 U.S.C. §§ 1311 and 1317 and 40 C.F.R. § 403.5. Count II alleges that AgriProcessors's discharges to the POTW caused the City to violate the Permit's final effluent limitations for flow, CBOD5, TSS and pH, in violation of 33 U.S.C. §§ 1311 and 1317 and 40 C.F.R. § 403.5. Count III alleges that AgriProcessors failed to properly submit a completed emergency and hazardous chemical inventory form for the calendar years 1998, 1999, 2000 and 2001, in violation of 42 U.S.C. § 11022(a) and 40 C.F.R. Part 370, Subpart B. Count IV alleges that AgriProcessors failed to properly submit a Form R for anhydrous ammonia for calendar year 1998, in violation of 42 U.S.C. § 11023 and 40 C.F.R. Part 372. Count V alleges that AgriProcessors failed to develop and implement a risk management program or submit such program to the EPA, in violation of 42 U.S.C. § 7412(r) and 40 C.F.R. Part 68. The. United States seeks injunctive relief and civil penalties.
On April 7, 2005, AgriProcessors filed an Answer. AgriProcessors denies the substance of the United States's Complaint.
On December 14, 2004, a local environmental group, Northeast Iowa Citizens for Clean Water ("NICCW"), filed a motion to consolidate the suit against the United States against AgriProcessors with NICCW v. AgriProcessors, Inc., No. 04-CV-1037-LRR (N.D.Iowa) ("Citizens' Lawsuit"). In the Citizens' Lawsuit, NICCW asserts a claim under the CWA against AgriProcessors, which is similar to the United States's CWA claims. However, NICCW also alleges that AgriProcessors stored and applied paunch3 waste without a permit, in violation of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., and maintained an open dump, in violation of Iowa Code § 455B.307. On January 11, 2005, the court granted NICCW's motion and consolidated the two cases under the instant case number.
The United States and AgriProcessors unsuccessfully attempted to settle their dispute before the United States filed the Complaint on December 1, 2004. On that date, AgriProcessors and the EPA requested court-sponsored mediation. The court granted the request and scheduled mediation before Chief Magistrate Judge John A. Jarvey. NICCW learned of the mediation and asked the court for permission to participate in it. The court granted NICCW's request.
In January of 2005, Magistrate Judge Jarvey conducted nineteen hours of mediation in two days. The United States, NICCW and AgriProcessors participated. The parties were unable to reach an agreement.4
In August of 2005, the United States and AgriProcessors resumed settlement negotiations without NICCW. The parties dispute why NICCW did not participate.5
On August 30, 2005, the court set a bench trial on both NICCW's complaint and the United States's Complaint for the three-week period beginning on October 16, 2006. On September 21, 2005, the United States, AgriProcessors and NICCW jointly moved the court to stay the case, in order to allow the United States and AgriProcessors more time to reach a settlement. On October 4, 2005, the court granted the motion in part. The court left the parties free to suspend discovery and pursue settlement negotiations, but declined to continue the trial.
On August 31, 2006, the United States lodged a proposed consent decree ("Consent Decree") (docket no. 44-2) with the court. The Consent Decree requires AgriProcessors to (1) pay a cash penalty of $590,756 to the United States; (2) spend at least $12,300 on a supplemental environmental project for the purchase of certain emergency response equipment for the City's fire department; and (3) conduct and follow-up with environmental compliance audits at the Plant and another facility AgriProcessors owns in Nebraska. The Consent Decree contains stipulated penalties for non-compliance. AgriProcessors does not admit the violations that are alleged in the United States's Complaint.
On September 8, 2006, the United States filed notice of the Consent Decree in the Federal Register. See 71 Fed.Reg. 53132-01. (Sept. 8, 2006) (setting comment period expiring on October 5, 2006). The United States received two comments, including one submitted on behalf of NICCW. The crux of both comments was that the civil penalty is too low.
On October 12, 2006, the United States filed the Motion. On October 26, 2006, NICCW filed a Resistance. In a separate filing, NICCW informed the court that it did not want to prosecute its complaint any further and its role would be limited to objecting to the Consent Decree. On October 30, 2006, AgriProcessors and the Untied States filed responses, to NICCW's Resistance.
On October 30, 2006, the court held a hearing ("Hearing") on the Motion. The United States was represented by Robert Butler, Assistant United States Attorney; Arnold Rosenthal, Senior Counsel, United States Department of Justice; and Patricia Miller, Senior Assistant Regional Counsel, EPA. Attorney Jay Eaton represented AgriProcessors. Attorney Lawrence McLellan represented NICCW.
The Hearing was not an evidentiary hearing. Although the parties and the court discussed the possibility of holding an evidentiary hearing on various occasions, none of the parties formally moved for such a hearing. In any event, the court finds that an evidentiary hearing is not necessary. See United States v. BP Amoco Oil PLC, 277 F.3d 1012, 1017 (8th Cir.2002) (...
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