Don't Waste Arizona Inc. v. Hickman's Egg Ranch Inc.

          REVISED FINDINGS OF FACT AND CONCLUSIONS OF LAW

          G. MURRAY SNOW CHIEF UNITED STATES DISTRICT JUDGE.

         According to the stipulation of the parties, the Court held a bench trial regarding the Plaintiff's Complaint on October 17, 2018. Plaintiff filed a Motion for Reconsideration of the Court's Findings of Fact and Conclusions of Law (Doc. 143). The Court will grant the Motion in part and deny in part. The Court hereby makes its revised findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.

         FINDINGS OF FACT

         1. 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”).

         2. 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 Facility”).

         3. 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.

         4. A 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.

         5. The 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).

         6. 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.

         7. Both 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.

         8. 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 Facilities.

         9. 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.

         10. In 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.

         11. On 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.

         12. 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).

         13. 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 waste.

         14. 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.

         15. In March 2017, Hickman's filed compliance reports with the NRC, SERC and LERC. (Doc. 107 at 6). Hickman's also filed ...