United States District Court, E.D. North Carolina, Eastern Division
Malcolm J. Howard, Senior United State District
matter is before the court on plaintiffs' Renewed Motion
to Enforce the Consent Decree [DE #133] .
Defendants filed a response in opposition, [DE #139].
Plaintiffs also filed a motion for leave to file a reply [DE
#140] . For good cause shown, the motion is GRANTED and the
court considers the reply in its adjudication of this motion.
Court entered a Consent Decree in this matter on March 24,
2006, [DE #93] ("Consent Decree") . On December 4,
2013, defendants filed a Notice of Invocation of Formal
Dispute Resolution Pursuant to Consent Decree. [DE #101].
This Notice was filed after defendants had already provided a
Notice of Dispute to plaintiffs on October 31, 2013, pursuant
to paragraph 43 of the Consent Decree, providing for a period
of thirty calendar days for the parties to resolve the
dispute informally. The parties participated in a mediated
settlement conference on January 27, 2014, and on several
dates by telephone until May 22, 2014, with Mediator Thomas
R. West, all resulting in an impasse. [DE #110].
October 14, 2015, plaintiffs filed a Motion to Enforce the
Consent Decree, and in the Alternative, to Resolve
Defendants' Consent Decree Dispute. [DE #114]. Defendants
filed a response, [DE #117], and plaintiffs filed a reply.
[DE #119]. On July 5, 2016, this Court ordered the parties to
participate in a court-hosted settlement conference to
resolve the dispute. [DE #120]. United States Magistrate
Judge Robert B. Jones, Jr., conducted two settlement
conferences. [DE #123 and #132]. The first settlement
conference on September 7, 2016, resulted in a tentative
settlement with an order for parties to consummate their
settlement or otherwise file a status report. [DE #123 and
#124]. On September 13, 2016, this court issued an order
dismissing without prejudice plaintiffs' Motion to
Enforce the Consent Decree, and in the Alternative, to
Resolve Defendants' Consent Decree Dispute. [DE #125]. On
October 24, 2016, the parties filed a joint status report
requesting a telephonic conference. [DE #128]. After a
telephonic conference on November 1, 2016, the parties had
differing interpretations of the terms of settlement. [DE
#130]. On December 8, 2016, United States Magistrate Judge
Robert B. Jones, Jr., conducted a second in-person settlement
conference, which resulted in an impasse. [DE #132] . On
March 14, 2017, plaintiffs filed their Renewed Motion to
Enforce the Consent Decree, and in the Alternative, to
Resolve Defendants' Consent Decree Dispute. [DE #133].
of the Facts
Consent Decree, [DE #93], resolved the claims pled in the
amended complaint, [DE #54], filed May 29, 2002, pursuant to
the Clean Water Act ("CWA"), section 505, 33 U.S.C.
§ 1365, and pursuant to the Resource Conservation and
Recovery Act, ("RCRA"), section 7002, 42 U.S.C.
§ 6972. The Consent Decree included an agreement by
defendants to remediate groundwater pollution at its
Murphy-Brown hog production facilities in Eastern North
Carolina. Central to the Consent Decree is the Ground Water
Risk Ranking ("GWRR") Program in Section IX and Ex.
E. [DE #93 at 25; DE #93-6 Ex. E] . Plaintiffs allege the
goal of the GWRR Program is to mitigate existing groundwater
contamination at Murphy-Brown facilities in North Carolina by
(1) evaluating these facilities for the potential of
receptor exposure to swine waste constituents via
groundwater using site-specific data collection programs and
(2) developing technically sound corrective action plans
("CAPS") to mitigate potential groundwater
contamination. [DE #93-6 Ex. E at 2 §§ 1.1, 1.2].
Plaintiffs allege the parties agreed that S&ME, the
mutually agreed upon independent consultant
("consultant"), would have substantial discretion
to exercise its technical expertise and professional judgment
in order to conduct the facility evaluations needed to
achieve the GWRR program's goal of reducing the risk of
groundwater contamination under the Consent Decree.
Consent Decree outlined three progressive phases under the
GWRR program. Phase I included the development and use of the
Risk Ranking System ("RRS") to evaluate
approximately 260 farms and facilities. Farms would be
evaluated and ranked into one of three categories: cut-off
score exceeding 360; default trigger; and gap in data. Phase
II involved the evaluation of the farms that were not
previously eliminated from review under Phase I. Phase III
involved the development of corrective action plans
("CAPS") for the remaining facilities.
was completed on October 14, 2011. The consultant found that
eleven facilities advanced to Phase II. Of the eleven
facilities, seven were advanced to Phase II on the basis of
lagoon leakage at the facilities, thereby activating a
Default Trigger to Phase II. The remaining four facilities
were advanced to Phase II on the basis of elevated nitrogen
concentration in the facilities' production wells,
activating the Default Trigger for groundwater contamination.
[DE #115-2; #117-7 Scope of Work §§ 5.2-5.3].
Plaintiffs allege the consultant prepared a draft Scope of
Work detailing data to be collected for the development of
technically sound CAPS. The Final Phase II Scope of Work was
issued on October 2, 2013. The Final Scope of Work identified
data needed to develop technically sound CAPs during Phase
III and detailed methods for the collection of this data.
allege that over the last three years defendant Murphy-Brown
has blocked the consultant from evaluating the eleven
facilities that advanced to Phase II, resulting in continued
threat to groundwater quality.
Final Phase II Scope of Work provides "[t]he functional
outcome of the Phase I evaluation was that a failure of
either Cut-Off Score performance or Automatic Trigger
performance was the conclusion that the potential of receptor
exposure to swine waste constituents via groundwater, as
embraced by the GWRRS, had been demonstrated." [DE
#117-7 at 3 § 1.0]. The consultant found the presence of
Default Triggers demonstrated a potential of receptor
exposure to swine waste constituents via groundwater, and
therefore required a CAP to mitigate the conditions. [DE
#115-2; #117-7]. The consultant has further stated in the
Final Phase II Scope of Work that the provided reports of Geo
Solutions by defendants have been considered, and
the eleven farms are not eligible for re-scoring.
argue the Phase II Scope of Work, [DE #117-7], is
inconsistent with the Consent Decree in two critical
respects. First, defendants contend the final Phase II Scope
of Work concludes that the "potential of receptor
exposure to swine waste constituents via groundwater . . .
had been demonstrated" based solely on the default
triggers, thereby merging Phase II with Phase III. Second,
the Final Phase II Scope of Work provides for additional data
collection at all eleven farms based on
"conceptual" Scope of Work plans that call for the
collection of data needed "to develop a technically
sound CAP which, upon implementation, would lead to removal
of the Automatic Trigger." [DE #117-7 at § 4.0].
Defendants argue the Final Scope of Work should not merge
Phase II and Phase III by proceeding to CAPS for the eleven
farms advanced to Phase II by a Default Trigger.
scope of a consent decree should be determined by application
of rules of contract construction. Anita's New Mexico
Style Mexican Food, Inc., v. Anita's Mexican Foods
Corp., 201 F.3d 314, 319 (4th Cir. 2000)(citing
United States v. Armour & Co., 402 U.S. 673,
681-82 (1972); United States v. ITT Continental Baking
Co., 420 U.S. 223 (1975)). "[T]he scope of a
consent decree must be discerned within its four corners and
not by reference to what might satisfy the purposes of one of
the parties to it." Armour & Co., 402 U.S.
at 682 (1972). When a contract between parties confers
discretion on one party that will affect the rights of
another, such discretion must be "exercised in a
'reasonable manner based upon good faith and fair
play." Mezzanotte v. Freeland, 20 N.C.App. 11,
200 S.E.2d 410, 414 (1973), cert denied, 201 S.E.2d
689 (1974) . Plaintiffs request the court to order
Murphy-Brown to fulfill its obligations under the Consent
Decree, specifically to provide ...