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October 22nd, 2012

Perdue Trial Testimony Reveals Hidden Pollution Sources

By Michele Merkel

There was some pretty stunning testimony in the Perdue trial this week that is just now winding down in federal court in Baltimore. This testimony implicates, not only the defendants, but also our entire broken system of controlling pollution pouring from the many industrial agriculture operations that are destroying the Bay and other waterways across the country.

By way of background, the Perdue case involves a claim made by environmentalists that Perdue and one of its contract growers, Hudson Farm, is responsible for high levels of pollution — nutrients and fecal bacteria — coming off of the chicken growing operation located on the Hudson’s property. At issue in the case is whether the pollutants found in the ditches running on and from the farm is caused, even in part, by the emissions of dust, feather, litter and manure blown out of the giant chicken exhaust fans, in addition to manure left on the ground outside of the houses during flock maintenance. Defendants, in their everything-but-the-chickens-did-it defense, claim that there is no evidence that the chicken growing operation contributed anything to the undeniable pollutant loads found in these nearby ditches, instead pointing to cows and wildlife.

During last week’s cross examination of Alan Hudson, an owner of the farm, the issue of his Comprehensive Nutrient Management Plan, or CNMP, came up. CNMPs are a farm’s waste management plan. It’s an examination of sources of pollution on the farm and a prescription for eliminating, or at least reducing, the flow of pollution from the farm into ditches and waterways. CNMP’s are critical documents; they are supposed to be prepared by objective professionals and driven by sound science and “best management practices,” in the ongoing effort to reduce the impact of operations like the Hudson Farm are having on the Bay, where agriculture remains the largest source of nutrients and sediments to this dying watershed.

However, in the case of the Hudson Farm, considerations other than science and environmental concerns came into play when finalizing his CNMP — seems Hudson’s lawyers helped write his latest plan to keep him and Perdue off the hook for the pollution found in ditches near the chicken houses.

An independent consultant by the name of George Maurer of Conservation Planners prepared the Hudson Farm CNMP. During the CNMP development process over the past year, there were several drafts prepared and submitted to Alan Hudson for review. According to Hudson’s testimony, one of these drafts was given to him in February of 2012 while the case against the contract grower and Perdue was quickly heading to trial.

Here, in Alan Hudson’s own words, was what happened next:

Q. But you told him [Maurer] that you needed to send [the CNMP] to your lawyers for comment, correct?
A. Yes
Q. And you, in fact, did send it to your lawyers for comment?
A. Yes.
Q. And then you got — you received information back – you called Mr. Maurer, or he called you, and you had a phone conversation where you relayed the information on the changes that you wanted in the CNMP, correct?
A. Probably.
Q. You did do that, didn’t you, Mr. Hudson?
A. Yes.
Q. And one of the changes you wanted removed was the notation that Mr. Maurer had made that in 2011 too much phosphorus had been applied on to some of your fields, correct?
A. It could have been.
Q. And another change that you asked him to make is Mr. Maurer had recommended what are known as vegetative environmental buffers, correct?
A. He could have.
Q. Well, those are the rows of trees that are planted in front of the fans to block emissions, correct? …..That was in the plan. And you told him to take that out too?
A. Yes.
Q. There was also a pipe, a — that was going to be put in in Ditch 3, correct?
A. Yes.
Q. And the purpose of the pipe in Ditch 3 was so that you could cover over Ditch 3 and plant vegetative buffers, so that the blow out of the fans would blow on to dirt in this area and not into the ditch, correct?
A. That’s what was in the plan.
Q. And that’s what Mr. Maurer proposed, correct?
A. Yes.
Q. You told him to take that out?
A. Yes.
Q. Mr. Maurer also had a reference to dust from the poultry houses coming out. And you told him to take that out as well, didn’t you?
A. Yes.
Q. So then Mr. Maurer, in about March of 2012, took all of your revisions, made the revisions and sent them back to you again, didn’t he?
A. Yes.

Obviously, the testimony speaks for itself. Hudson’s farm waste management plan was carefully redacted by the defendants to avoid any mention of the chicken house as a source of pollution on the farm. Suggested practices that would reduce loads of pollution from Perdue’s chicken operation were erased from the document. Apparently, in the case of the Hudson Farm, CNMP stands for Chickens Not Mentioned in Plan.

All this manipulation was done in an attempt to spare Perdue and the Hudsons from being found liable for the very discharges of pollutants that the CNMP is designed to put an end to. It was just downstream from Ditch 3 and the chicken houses that the Maryland Department of the Environment (MDE) found the highest levels of pollutants on the farm, with fecal bacteria counts over 100 times the safe limit for swimming, yet the CNMP was altered to ensure that “Ditch 3” on the farm still remains a conduit for chicken house pollution. To add insult to injury, Hudson also testified that the $4,900 bill for this self-serving CNMP was paid for with your taxpayer money.

That, in itself, is egregious enough to warrant condemnation by anyone who believes that the Bay should take priority over the anyone’s false right to pollute, but it also implicates a much broader problem because MDE went ahead and placed its seal of approval on this manipulated CNMP and offered it as the final plan for public comment just a couple of months ago.

CNMPs are the last and often the only line of defense in the protection of the Bay watershed from agricultural pollution. The acts of the defendants in this case render the CNMP process a sham. Until the state of Maryland starts to take the issue of pollution from chicken CAFOs seriously and ensure that all CNMPs are properly designed and implemented to eliminate all sources of farm pollution, the fight to clean the Bay will forever be a losing one.





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