Sierra Club, Inc. v. Tyson Foods, Inc., No. 4:02CV-73-M (W.D.Ky. 11/10/2003)
| Decision Date | 10 November 2003 |
| Docket Number | No. 4:02CV-73-M.,4:02CV-73-M. |
| Parties | SIERRA CLUB, INC., MARY B. EDWARDS, NORMA CAINE, and LEESA WEBSTER, PLAINTIFFS, v. TYSON FOODS, INC., TYSON CHILDREN, PARTNERSHIP, ADAMS CHICKEN FARMS, STIRMAN ADAMS, BUCHANAN LIVESTOCK, BUCHANAN FARMS, and ROLAND BUCHANAN, DEFENDANTS. |
| Court | U.S. District Court — Western District of Kentucky |
Joseph H. McKinley, Jr. Judge, United States District Court.
This matter is before the Court on Plaintiffs' Motion for Partial Summary Judgment as to the First and Second Causes of Action [DN 44]; on a motion by Defendants for summary judgment on the CERCLA and EPCRA issues [DN 49]; on a motion by Defendants, Tyson Food on its behalf and on behalf of Tyson Chicken for partial summary judgment on the issue of "person in charge" [DN 50]; on a motion by Defendant, Tyson Children Partnership, for partial summary judgment on the issue of "person in charge" [DN 48]; on a motion by Plaintiff to stay consideration of Tyson Food's motion for partial summary judgment on the issue of "person in charge" [DN 61]. Plaintiffs allege that Defendants have failed to report ammonia emissions from certain chicken production operations in Kentucky in violation of the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675, and the Emergency Planning and Community Right-to-Know Act ("EPCRA"), 42 U.S.C. § 11001-11050, and also allege that the operations constitute nuisances under state law. Plaintiffs seek damages and penalties, as well as declaratory and injunctive relief. By agreement of the parties, the parties are attempting to simplify the litigation by submitting dispositive motions on certain threshold issues at the initial phase of the litigation. See Joint Status Report and Rule 26(f) Report of Counsel, September 10, 2002 [DN 18]. A limited amount of discovery has been conducted. Fully briefed, these matters are ripe for decision.
In order to grant a motion for summary judgment or for partial summary judgment, the Court must find that the pleadings, together with the depositions, interrogatories and affidavits, establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The moving party bears the initial burden of specifying the basis for its motion and of identifying that portion of the record which demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party is required to do more than simply show that there is some "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Co., 475 U.S. 574, 586 (1986). The Rule requires the non-moving party to present "specific facts showing there is a genuine issue for trial." Fed. R. Civ. P. 56(e) (emphasis added). Moreover, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252.
There are four chicken production operations at issue in this case: (1) the "Tyson Operation," consisting of 24 poultry houses, is located at or near 4200 Ilsey Road in Earlington, Hopkins County, Kentucky, and is owned by Tyson Children Partnership and leased by Tyson Chicken, Inc.; (2) the "Adams Operation," consisting of 16 poultry houses, is located near 2300 Kentucky 593 in Calhoun, McLean County, Kentucky, and is owned by Adams; (3) "Buchanan #1 Operation," consisting of 24 poultry houses, is located at or near 1886 Gravel Pit Road and/or 53 Honeysuckle Lane, and/or 63 Davis Road in Sebree, Webster County, Kentucky, and is owned by Buchanan; and (4) the "Buchanan #2 Operation," consisting of 16 poultry houses, is located at or near 1061 Collins Road and/or 1097 Collins Road in Sebree, Webster County, Kentucky, and is owned by Buchanan. See Declaration of John Blair, Exhibits A-D [DN 45].
The broiler houses are generally 40 to 43 feet wide and 400 to 500 feet long and generally 50 to 60 feet apart. The houses are roofed and insulated, and constructed to prevent entry of other animals. The chicken production farms share common access roads and interconnecting roads. Tyson Chicken[1] typically delivers between 160,000 and 180,000 chickens to a farm at a time, roughly enough to fill 8 chicken houses. Tyson Chicken delivers feed to all of Defendants' operations almost daily. Tyson Chicken formulates, makes, and owns the feed and maintains feed delivery records. Tyson Chicken retains ownership of the chickens and feed while at the chicken production operations. Through its contracts with the growers, Adams and Buchanan, Tyson Chicken mandates that they cooperate with it in adopting and/or installing recommended management practices and equipment. Tyson Chicken provides their growers with a "Broiler Growing Guide" to ensure that they raise the chickens according to Tyson Chicken standards. Under the contract, Tyson Chicken reserves the right to unfettered access to the growers' property. Tyson Chicken technical advisors visit the Adams and Buchanan operations on approximately a weekly basis. The chickens are fed, watered, and cared for by the growers — e.g. Adams and Buchanan[2] — for approximately forty-nine to fifty-one days. At that time, Tyson Chicken picks up the chickens from the facilities.
Ammonia is a colorless, irritant gas produced by decomposing animal waste. For purposes of chicken production operations, the growers grow chickens in houses on a floor of litter, generally a layer of rice hulls. When the birds defecate, their waste collects in the litter. Ventilation in the poultry houses is necessary to protect the health of the chickens and is accomplished by a combination of exhaust fans and vents. The grower controls ventilation by adjusting which fans are operating and which vents are open. Many of the ventilation tasks, along with feed, water, and heating or cooling tasks, are automated. After a flock is caught and removed for processing, the grower generally will remove a small layer of 1 or 2 inches of the litter that is usually found below the watering lines and that is found in clumps due to higher moisture content; this process of removal is called "decaking." Proper decaking is necessary to provide a suitable environment for the placement of baby chicks for the next production cycle. The growers decake the litter after every flock, but they do a total cleanout — that is, removal of the litter, about every two years.
Plaintiffs complaint alleges the chicken production operations discharge dangerous quantities of ammonia into the environment. Plaintiffs allege that Defendants have failed to report these releases to the appropriate authorities in violation of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675 and the Emergency Planning and Community Right to Know Act ("EPCRA"), 42 U.S.C. §§ 11001- 11050.
CERCLA and EPCRA provide, in combination, for federal, state, and local governments to receive immediate notification of releases of hazardous substances into the environment so that these government agencies can initiate appropriate responses. Specifically, Section 103 of CERCLA provides that any person in charge of a facility from which a hazardous substance has been released in a reportable quantity (RQ) must immediately notify the National Response Center ("NRC"). 42 U.S.C. § 9603(a). Releases that exceed 100 pounds per day must be reported under section 103. 42 U.S.C. § 9603; 40 C.F.R. § 302.4. Section 103(f)(2) of CERCLA further provides for relaxed reporting requirements for substances that are classified as a continuous release. 42 U.S.C. § 9603(f). EPCRA requires owners or operators of facilities to provide immediate notice of the release of an extremely hazardous substance or CERCLA hazardous substance to the designated state emergency response commission ("SERC") and the emergency coordinator for the appropriate local emergency planning commission ("LEPC"). 42 U.S.C. § 11004(a); 40 C.F.R. § 355.40(b)(1). The statute also requires a written follow-up emergency notice to the SERC and the LEPC "[a]s soon as practicable after a release." 42 U.S.C. § 11004(c).
CERCLA authorizes any person to "commence a civil action on his own behalf . . . against any person . . . . who is alleged to be in violation of any standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter . . . ." 42 U.S.C. § 9659(a)(1). Similarly, enforcement of EPCRA can occur through the citizen-suit provision, 42 U.S.C. § 11046(a)(1), which authorizes civil penalties and injunctive relief against "[a]n owner or operator of a facility for failure," among other things, to "[s]ubmit a followup emergency notice" as required under Section 304(c) of EPCRA. 42 U.S.C. § 11046(a)(1)(A)(i).
Plaintiffs have moved for partial summary judgment as to the First and Second Causes of Action set forth in the First Amended Complaint arguing that (1) a "facility" under the definitions contained in both CERCLA and EPCRA includes multiple chicken houses that are located on single or adjacent sites within a concentrated area; and (2) that Tyson Foods, including its wholly owned subsidiary, Tyson Chicken, Inc., is an operator and thus liable under CERCLA for the unreported ammonia releases occurring at the chicken production facilities. [DN 44]. Defendants have moved for summary...
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