BALTIMORE -- Environmental activists who are suing Salisbury-based poultry giant Perdue Farms and a Worcester County farm that raises poultry for Perdue have scant evidence that the poultry interests polluted the Pocomoke River, the defendants' lawyers said Tuesday.
On the opening day of a trial in U.S. District Court, Jane F. Barrett, director of the University of Maryland's Environmental Law Clinic, which is representing plaintiffs the Waterkeeper Alliance and Assateague Coastal Trust, said the case was triggered by a photograph, taken in 2009, of a pile near a drainage ditch on the farm of Alan and Kristin Hudson.
Kathy Phillips, executive director of the Assateague Coastal Trust, was shown a photograph of the pile, which she said appeared to be chicken manure, Barrett told Judge William Nickerson.
In fact, the material was treated sewage biosolids that the Hudsons had taken from Ocean City for use as fertilizer, said lawyers for Perdue and the farmers.
An inspector from the Maryland Department of Agriculture confirmed the finding after visiting the farm in December 2009, said George Faulkner Ritchie IV, the Hudsons' lawyer. The inspector also wrote there was no evidence of poultry manure in the pile, that the area between two poultry houses was well vegetated and that he found no problems, Ritchie said.
Officials of the Maryland Department of the Environment directed the Hudsons to move the pile away from the ditch and place straw around it to absorb any runoff, which they did, Ritchie said. The Hudsons did not violate any law or regulation, "but [the environmental groups] sued anyway," Ritchie said.
The lawsuit, seeking up to $300,000 in penalties, could wipe out the Hudsons and their farm, which their family has worked for more than 100 years, he said.
Contributions are paying much of the Hudsons' legal bills.
The Waterkeeper group went on an “aerial hunt” with a camera and planned a lawsuit in advance, said Michael Schatzow, a lawyer representing Perdue.
And they let alleged pollution of the Pocomoke River continue without calling in authorities while they waited to file the lawsuit, he added.
Their case relies “on theories that something could have happened,” Schatzow said.
Lacking proof that bacteria detected came from chicken manure, the pile the group focused on to make its case “has gone from a pile, to no pile, to over-fertilization of fields to [claiming that] minute amounts of manure tracked out on Alan Hudson's feet” from the chicken houses could have caused fecal coliform levels measured in a drainage ditch, Schatzow said.
That's hard to believe because it is likely that most bacteria that tracked out would have been killed by sunlight before they could be washed into the ditch and downstream to the river, he said.
Barrett said an environmental engineer would testify that manure from some of the cows that the Hudsons keep in a pasture could have contributed to the fecal bacteria count, but are not the primary source.
The farm has “one permit, one point source, and whatever is coming off that production area is a violation of the Clean Water Act,” Barrett said.
Critics have said the Hudsons are collateral victims of environmental groups who oppose intensive livestock and poultry growing operations.
The case, which resumes at 10 a.m. Wednesday, is expected to take three weeks.