After a 3-year fight, the Sierra Club and three private citizens won a major settlement in the first lawsuit filed under the Clean Water Act relying primarily on citizen-collected evidence--including jars of polluted creek water and a two-year "odor log."
Willard and Barbara Jones and Pearl Ivey of Henagar, Alabama, are neighbors of the Whitaker & Sons confined animal feeding operation, and a creek that drains the facility runs through the Jones' property. The Joneses and Ivey teamed up with the Sierra Club in 2003 to bring suit against Whitaker for polluting streams that flow into the Tennessee River.
The suit also claimed that the odor from the hog operation was damaging neighbors' property values and quality of life, and that the factory sprayed liquid waste not just on their own fields, but on neighboring property. Sierra Club v. Whittaker & Sons was filed after water samples collected by Willard Jones and other volunteer water monitors found high levels of E. coli and fecal coliform in steams flowing off the Whitaker property.
|Don't Drink This Water: Willard Jones reaches into a creek near his home to gather samples of water polluted by the hog feeding operation just up the road. The Sierra Club joined Jones and two other plaintiffs in using citizen-gathered evidence to win a Clean Water Act court victory against the hog factory operator.
"I never imagined our retirement to be spent fighting a hog farm," says Jones, a 76-year-old former refinery manager. He and his wife had planned to build a retirement home on their property, but the stench from the hog factory and concerns over water pollution caused them to abandon that plan. "Our family property was made almost completely unusable because of the hog waste," he says.
As the lawsuit got underway, plaintiff Pearl Ivey began writing down every time she could smell the hog operation when she went outside her home. Over a two-year period, her log showed there was an offensive odor on more than 1,200 occasions. "Many days I can't go outside my home because of the stench from hog waste that ends up in my pond," she says. "I didn't ask for any money from this case; I just want clean air and water."
Sierra Club Alabama Chapter Conservation Chair Bryan Burgess, an adjunct professor of environmental science at Jacksonville State University, started the ball rolling on the case in 2002 when he applied to the Club's Water Sentinels Program for funds to monitor the Whittaker operation. He and Jacksonville State colleague Blake Otwell began monitoring streams near the factory, and they recruited Jones to help collect water samples because of his knowledge of local creeks and his proximity to the Whittaker facility.
Getting down on hands and knees and wading into creeks, the three collected samples from streams and wetlands bordering the Whittaker property and analyzed them in the Jacksonville State lab, where Burgess and Otwell trained Jones in water analysis. Jones and a group of neighbors presented their data to the state Department of Environmental Management and appealed for help. But when no action was forthcoming, they turned to the courts.
"Nobody likes to get into a lawsuit," says Alabama Sierra Club organizer Peggie Griffin. "You want to be good friends with your neighbors, but your neighbors have to be good friends with you." Griffin had been rallying citizens to fight back against factory farm pollution through the Club's Building Environmental Community program, which funded and produced a film, "The Scoop on the Poop," showing how hog factories destroy rural communities. Jones and Burgess are featured in the movie, which was shown throughout Alabama.
To represent the Sierra Club, Burgess and Griffin recruited attorney Mark Martin, a native Alabamian and avid kayaker. Martin met with several neighbors who were affected by the Whittaker operation and identified the plaintiffs. A decision was made early on to use an independent, outside laboratory in addition to Jacksonville State to analyze water samples.
Despite being matched up against a team of corporate attorneys, Martin successfully negotiated a settlement that calls for Whitaker & Sons to stop dumping hog waste into local waterways; replace the existing fecal "lagoon" with an above-ground tank system; plant barriers of fast-growing trees to help prevent the odor from spreading to nearby homes; build berms and plant grass strips to help stop or absorb runoff; conduct regular soil and water testing; repair spraying equipment used in applying hog waste to fields as fertilizer; and pay the plaintiffs $100,000 in damages.
The settlement was announced on August 14 by U.S. District Judge William Acker in Birmingham, Alabama.
Whittaker played hardball along the way. At a press event during the lawsuit, a photographer asked Willard Jones to accompany him to take a photo of the Whittaker facility. When the photographer turned into Whitaker's driveway, Jones immediately told him to stop. Nevertheless, the Whitakers claimed Jones and the photographer had pulled up into their yard, and Jones was arrested and convicted of trespassing.
"They had tried to intimidate Willard before by filing a trespassing claim when he was taking water samples," Griffin says. "That's one reason they got a conviction; it was the second complaint--even though both complaints were false." The conviction was subsequently challenged on appeal and thrown out.
"The outcome of this case serves the dual function of showing factory farms that they are not above the rules and showing citizens how powerful their activism can be," says Martin, who was named Sierra Club Legal Hero of the Month this August by the Club's Environmental Law Program.
Meanwhile, Jones and his neighbors continue their vigilance, collecting water samples to be sure that Whittaker keeps its word.
For more on the Sierra Club's efforts to fight water pollution and the spread of factory farms, see sierraclub.org/cleanwater.