On July 21, the U.S. District Court for the District of Maryland denied a motion to dismiss filed by Perdue Farms, Inc. in a Clean Water Act (“CWA”) citizen suit. The suit alleges Perdue is liable for CWA violations of the contractor that operates a “concentrated animal feeding operation” (CAFO) in Maryland.
The Court held that Perdue could be liable as an operator of the facility based on allegations that it exercised control over its contractor’s chicken operations and that it was not necessary for Perdue to hold the actual permit in order to be liable for permit violations.
The ruling could result in so-called “integrators” like Perdue being held liable when the facilities they purchase processed livestock from discharge pollutants in violation of their CWA permits, and therefore subject them to citizen suits seeking to enforce the Act’s requirements.
According to the ruling, EPA acknowledged this basis of liability for integrators in its 2001 Proposed CAFO Rule, in which it stated that “under the existing regulation and the existing case law, integrators [that] are responsible for or control the performance of the work at individual CAFOs may be subject to the CWA as an operator of the CAFO.”
The CWA makes violations by “any person” actionable in a citizen suit, and other courts “have held that ‘the CWA imposes liability both on the party who actually performed the work and on the party with responsibility for or control over performance of the work.'”
This district court ruling could impact the operations of agricultural companies that contract with growers to produce food, where the growers either have or are required to obtain National Pollutant Discharge Elimination System Permits for discharges from their operations. Because such companies could be liable for another company’s actions, any company that contracts with such growers should evaluate their operations in light of the court ruling.