United States District Court, D. Arizona
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Murray Snow Chief United States District Judge.
to the stipulation of the parties, the Court held a trial
without a jury regarding the Plaintiff's Complaint on
October 17, 2018. The Court hereby makes its findings of fact
and conclusions of law pursuant to Federal Rule of Civil
Defendant Hickman's Egg Ranch, Inc.
(“Hickman's”) owns and operates Desert Pride
Farms, which is located at 41625 West Indian School Road in
Tonopah, Arizona (“Tonopah Facility”).
Hickman's also owns and operates a facility that is
located at 32902 West Ward Road and 32425 West Salmone
Highway in Arlington, Arizona (“Arlington
Plaintiff Don't Waste Arizona (“DWA”) is a
non-profit organization dedicated to protecting the Arizona
environment. Certain members of DWA live in the vicinity of
the two facilities owned by Hickman's.
natural byproduct of the decomposition of chicken waste is
ammonia, which is included among the chemical compounds that
are listed as extremely hazardous substances under the
Emergency Planning and Community Right to Know Act
(“EPCRA”) 42 U.S.C. §§ 11001-11050;
see also 40 C.F.R. § 302.4.
purpose of EPCRA is “to encourage and support emergency
planning efforts at the State and local levels and to provide
the public and local governments with information concerning
potential chemical hazards present in their
communities.” 52 ed. Reg. at 13378 (Apr. 22, 1987).
Although the figures vary from month to month, documents
produced by Hickman's show that the Arlington Facility
housed as many as 4, 127, 267 laying hens in May 2013 while
the Tonopah Facility housed as many as 3, 344, 877 laying
hens in January 2017.
the Tonopah and Arlington Facilities emitted into the air
over 100 pounds per day of ammonia from animal waste during
the timeframes relevant to this proceeding.
Individuals from both Arlington and Tonopah testified that
they could smell ammonia regularly at their residences
following the construction of both the Arlington and Tonopah
Where releases of hazardous substances are continuous, the
EPCRA reporting requirement is satisfied if an initial notice
is provided to the National Response Center
(“NRC”), the State Emergency Response Commission
(“SERC”), and the Local Emergency Planning
Committee (“LERC”) in the state in which the
release occurs. 40 C.F.R. § 302.9. Prior to the passage
of the FARM Act, EPA determined that release of hazardous
substances from animal waste typically qualify for continuous
release reporting. See Final Rule, (Dec. 18, 2008),
73 Fed. Reg. 76, 948 at 76, 952.
2006, Hickman's submitted a letter to the Environmental
Protection Agency (“EPA”) Office of Regulatory
Enforcement. There, Hickman's acknowledged the Arlington
Facility “may generate routine air emissions of ammonia
in excess of the reportable quantity of 100 pounds per 24
hours, ” and that “a rough estimate of those
emissions is approximately 125 pounds per 24 hours, but this
estimate could be substantially above or below the actual
emission rate.” (Defendant's Trial Ex. 101). At the
time, EPA was developing an emission rate factor to estimate
the amount of ammonia generated by large agricultural
operations. The letter further explained that because an
emission rate factor was under development, when EPA
finalized that emission rate, Hickman's would
“notify [EPA] of any reportable release pursuant to
CERCLA section 103 or EPCRA section 304.”
(Id.). EPA did not ultimately produce an emission
rate factor for ammonia from chicken waste.
May 2, 2016, Plaintiff served written notice on Hickman's
of its intent to file a citizen's action under provisions
of the Comprehensive Environmental Response, Compensation,
and Liability Act (“CERCLA”), 42 U.S.C.
§§ 9601-9675 and EPCRA, based on Hickman's
alleged failure to submit notification under these statutes
that reportable quantities of hydrogen sulfide and ammonia
had been released at the Arlington and Tonopah Facilities.
Nearly five months later, Plaintiff filed its Complaint.
(Doc. 4). The Complaint alleged that Hickman's violated
EPCRA because it failed to file the necessary reports
regarding the release of ammonia at the Arlington Facility
and the Tonopah Facility. Hickman's filed an answer
denying liability on October 21, 2016. (Doc. 11).
There are additional agricultural operations within two to
five miles of the Arlington and Tonopah facilities, including
multiple dairy farms that produce cow waste. (Defendant's
Trial Ex. 106). Ammonia is also a natural byproduct of cow
Once the chicken waste is dried at its facilities,
Hickman's processes the chicken waste and sells it as a
fertilizer to facilities in neighboring areas.
Hickman's regularly tested for ammonia and hydrogen
sulfide emissions ...