Summary of a Recent
Judicial Development in
Animal Feeding Operations

Entire Chicken Production Operation Constitutes
"Facility" Under CERCLA

Harrison M. Pittman
Research Assistant Professor of Law and Staff Attorney

Summary of Decision

In Sierra Club, Inc. v. Tyson Foods, Inc., 299 F.Supp.2d 693 (W.D. Ky. 2003), the United States District Court for the Western District of Kentucky held that each of four multi-house chicken production operations constituted a "facility" under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675.

Background

Section 9603 of CERCLA requires that

Any person in charge of a vessel or an offshore or an onshore facility shall, as soon as he has knowledge of any release (other than a federally permitted release) of a hazardous substance from such vessel or facility in quantities equal to or greater than those determined pursuant to section 9602 of this title, immediately notify the National Response Center established under the Clean Water Act . . . of such release. The National Response Center shall convey the notification expeditiously to all appropriate Government agencies, including the Governor of any affected state.

42 U.S.C. § 9603(a).

Under CERCLA, a "facility" is defined as

(A) Any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or
(B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.

Id. at § 9601(9).

Plaintiffs Sierra Club, Inc. (Sierra) and several landowners brought an action against four large-scale chicken production operations (hereinafter defendants) alleging that each operation failed to report releases of ammonia from chicken droppings produced in each operation in violation of CERCLA § 9603. See id. Each defendant operated at least 16 and up to 24 chicken houses. See id.

Arguments

The plaintiffs argued that under CERCLA the term "facility" is the entire farm site for each of the four operations and that each site releases more than 100 pounds of ammonia each day. See id. at 708. The defendants argued that each poultry house rather than the entire farm site is a "facility" under § 9603 because § 9603 defines "facility" as "any building." See id. The defendants further argued that the case law relied upon by the plaintiffs to support their position was inapplicable because the cases involved actions brought under non-§ 9603 CERCLA provisions. See id. The defendants also relied upon Sierra Club v. Seaboard Farms, Inc., No. CIV-00-997-C, 2002 WL 32443304, (W.D. Okla. July 18, 2002), where it was held that the term "facility" refers to each separate building or structure rather than an entire site. See id. It is important to note that following issuance of the decision in the present case, Sierra Club was reversed by the United States Court of Appeals for the Tenth Circuit in Sierra Club, Inc. v. Seaboard Farms, Inc., 387 F.3d 1167 (10th Cir. 2004).

Analysis and Holding

The court held that "a whole chicken farm site is a facility from which releases must be reported under CERCLA." Id. The foundation of the court's holding rested upon three pillars.

First, the court explained that "when multiple sources of hazardous substances are grouped together, the facility encompasses the entire area and extends to ‘the bounds of the contamination.'" Id. at 708-09 (quoting United States v. Township of Brighton, 153 F.3d 307, 313 (6th Cir. 1998)). The court also explained that in accordance with case law, "if an area is managed as a whole, it is a single facility for CERCLA purposes." Id. (citing Brighton, 153 F.3d at 313; United States v. 150 Acres of Land, 204 F.3d 698, 709 (6th Cir. 2000; Axel Johnson, Inc. v. Carroll Carolina Oil Co., Inc., 191 F.3d 409, 417-18 (4th Cir. 1999) (parenthetical quotation omitted); Akzo Coatings, Inc. v. Aigner Corp., 960 F.Supp. 1354, 1359 (N.D. Ind. 1996), aff'd in part, vacated in part by, 197 F.3d 302 (7th Cir. 1999) (parenthetical quotation omitted); Cytec Industries v. B.F. Goodrich Co., 232 F.Supp.2d 821, 836 (S.D. Ohio 2002) ("This court concludes that usually, although perhaps not always, the definition of facility will be the entire site or area, including single or contiguous properties, where hazardous wastes have been deposited as part of the same operation or management."); Clear Lake Properties v. Rockwell Int'l Corp., 959 F.Supp. 763, 767-68 (S.D. Tex. 1997) (parenthetical quotation omitted)). The court noted that in the present case each of the defendant's operations, including each operation's chicken houses, is operated for a singular purpose. See id. at 709. The court stated that because "each chicken production operation operates as a single operation, it is a single facility for CERCLA purposes." Id. (citation omitted).

Second, the court rejected the defendants' argument that the cases relied upon by the plaintiffs were inapplicable because they involved interpretations of the term "facility" in the context of non-§ 9603 CERCLA actions. See id. The court acknowledged that the defendants were correct that none of the cases relied upon by the plaintiffs interpreted the term "facility" in the § 9603 context but found "no rational reason to disregard these cases in discussing the definition of . . . ‘facility' in a . . . [§ 9603] reporting case." Id. The court added that "‘facility' for reporting purposes, cleanup purposes or any other statutory purpose extend under the case law to the bounds of the contamination." Id.

Next, the court determined that the purpose of § 9603 "is best served by a broad definition." Id. at 710. It explained that CERCLA "is a remedial statute designed to protect human health and the environment from potentially hazardous substances." Id. The court added that

A definition of a chicken facility that encompasses the entire chicken production facility is the only interpretation of the statute that meets CERCLA's basis purpose: to protect and preserve public health and the environment. The Court finds no reason to treat the definition of facility any differently in emergency reporting cases.

Id.

The case was decided on November 7, 2003; this summary was posted Aug. 25, 2005.