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REYNOLDS v. RICK'S MUSHROOM SERVICE

March 29, 2004.

WARREN REYNOLDS, JOHN REYNOLDS, through his guardians, Jacklen E. Powell and Wilmington Trust Co., and WILMINGTON TRUST CO., as Trustee, Plaintiffs
v.
RICK'S MUSHROOM SERVICE, INC., M.A.Y. FARMS, INC., and RICHARD MASHA, Defendants



The opinion of the court was delivered by: CYNTHIA RUFE, District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER
This case concerns a dispute between neighboring landowners. Plaintiffs contend that Defendants are improperly storing, processing and disposing of agricultural waste in violation of the Clean Water Act, 33 U.S.C. § 1251-1387, and the Pennsylvania Clean Streams Law, 35 Pa. Stat. Ann. §§ 691.1-691.1001. Presently before the Court are Plaintiffs' Motion for Injunctive Relief, Plaintiffs' Motion for Imposition of Civil Penalties and Defendants' Motion for Denial of Plaintiffs' Motion as a Matter of Law. Evidentiary hearings spanned six days.*fn1 The parties have submitted proposed findings of fact and conclusions of law. For the reasons below, Plaintiffs' motions are granted in part and denied in part and Defendants' motion is denied in its entirety.

Upon careful consideration of the evidence, testimony and counsels' written and Page 2 oral arguments, the Court hereby enters its preliminary findings of fact and conclusions of law.

 I. FINDINGS OF FACT

  BACKGROUND

  1. Plaintiffs Warren Reynolds, John Reynolds and Wilmington Trust Company, as trustee, own property located east of Penn Green Road in New Garden Township, Chester County, Pennsylvania (the "Reynolds Property").

  2. Warren Reynolds has resided on the Reynolds Property for the last forty-two years. He farms and lives on the Reynolds Property with his wife, their infant child and his wife's two children. [2/12/04 N.T. at 81 (Reynolds)]

  3. A 6 ½ acre pond is located on the Reynolds Property. The pond is fed by a stream called Trout Run, which is a tributary of the East Branch of the White Clay Creek. Congress designated Trout Run as a component of the National Wild and Scenic Rivers System, 16 U.S.C. § 1274(a)(162)(A), pursuant to the White Clay Creek Wild and Scenic Rivers System Act, Pub.L. 106-357, § 3, 114 Stat. 1393 (2000).

  4. Warren Reynolds and his family have used the pond for fishing, swimming, boating and aesthetic enjoyment. [2/12/04 N.T. at 82 (Reynolds)] The Reynolds family no longer uses the pond for these purposes because, based on Mr. Reynolds' observations of the pond's color, quality and odor, Mr. Reynolds believes the pond is polluted. In addition to affecting his use of the pond, the condition of the pond causes Mr. Reynolds distress and anxiety. [2/12/04 N.T. at 83, 99, 113-115 (Reynolds)]

  5. In 1996, Defendant M.A.Y. Farms, Inc. purchased a property adjacent to the eastern boundary of the Reynolds Property (the "MAY Property"). The MAY Property is upstream and Page 3 up-gradient from the Reynolds Property. M. A. Y. Farms, Inc. was specifically incorporated for the purpose of purchasing the MAY Property. [3/2/04 N.T. (Cutone)]*fn2

  6. The Reynolds Property and the MAY Property are located in southern Chester County, Pennsylvania, where mushroom farming is widespread. Mushrooms are grown in compost material inside mushroom houses. Spent mushroom substrate ("SMS") is a waste material that remains after the mushrooms have been grown and harvested. SMS is composed of various organic materials but consists mostly of animal manure.

  7. Michael Cutone directs and is responsible for the daily operations of M.A.Y. Farms, Inc. In addition, Mr. Cutone operates forty mushroom growing houses, eight of which are located on the MAY Property. [3/2/04 N.T. (Cutone)]

  8. Defendant Rick's Mushroom Service, Inc. ("Rick's") leases a portion of the MAY Property, and Defendant Richard Masha directs and is responsible for Rick's daily operations. Rick's does not grow mushrooms or any other crops. Rather, it receives SMS from area mushroom growers, stores and processes the SMS on-site, and then transports it off-site for disposal. Whatever SMS is not transported off-site is permitted to sit on the MAY Property for a year or more to allow certain constituents in the waste to leach out so that it can be sold as potting soil. Mr. Cutone is also involved in the day-to-day operations of Rick's.

  9. When M.A.Y. Farms, Inc. purchased the MAY Property in 1996, SMS covered almost the entire site in piles approximately five feet to fifteen feet deep. [3/2/04 N.T. (Cutone)]; [2/18/04 N.T. at 124 (Filler)]

  10. When rain or other water falls on piles of SMS, it percolates down through the SMS, Page 4 absorbs constituents of the SMS and flows out as a black liquid commonly known as "leachate" or "wastewater."

  11. The Chester County Conservation District ("CCCD") provides technical assistance to the local agricultural community and encourages the use of Best Management Practices ("BMPs") to minimize environmental harm. The CCCD is not a regulatory agency; it is a technical assistance agency. [D-22 at 1, "Disclaimer"] The CCCD often works with mushroom farmers and facilities such as Rick's to control stormwater runoff and off-site flow of leachate. Through the use of PL-566 contracts, the CCCD provides financial assistance and incentives for mushroom growers and others to develop BMPs for facilities within the Red and White Clay Creek watersheds.

  12. In 1997, Mr. Masha contacted the CCCD to request assistance in developing a conservation plan for Rick's operations at the MAY Property. The CCCD advised Mr. Masha to remove all SMS from the MAY Property and develop a Mushroom Farm Environmental Management Plan. The CCCD inspected the MAY Property and worked with Mr. Masha and Mr. Cutone to develop BMPs, including physical improvements and operational practices designed to prevent SMS leachate from leaving the MAY Property and entering the natural environment, including Trout Run.

  13. In consulation with Mr. Masha, the CCCD developed a Mushroom Farm Environmental Management Plan for Rick's ("MFEMP"). The MFEMP is based on a Pennsylvania Department of Environmental Protection ("DEP") guidance document entitled Best Practices for Environmental Protection in the Mushroom Farm Community ("Mushroom Manual"). [D-4] The MFEMP calls for a system of structures designed to collect, control and dispose of leachate generated by Rick's operations. The MFEMP is intended to minimize soil erosion, improve Page 5 ground and surface water quality, minimize odors, protect aquatic habitat and public health, and improve overall operations. The first version of the MFEMP is dated December 20, 1999, [D-22], and the most recent revision is dated August 2003. [P-13d, Ex. 2 at 2]

  14. The United States Department of Agriculture's Natural Resources Conservation Service ("NRCS") designed a leachate collection and disposal system for Rick's ("Rick's Leachate Control System") that includes:
(a) an uncovered 3.2 acre SMS storage area;
(b) a concrete sedimentation basin;
(c) a 1.4 million gallon wastewater storage impoundment lined with high density polyethylene ("HOPE"), which was actually constructed to hold 1.8 million gallons [P-73]; [2/18/04 N.T. at 95 (Vanderstappen)];
(d) 3.2 acres of sprayfields (split between the north and south sprayfields), which, after construction, occupy 5 acres total [D-17]; and
(e) 12 spray guns in two systems (6 in each sprayfield).
  15. Rick's Leachate Control System uses gravity, land gradation and a surrounding earthen berm to direct leachate flow from the SMS piles into the sedimentation basin. From the sedimentation basin, the leachate flows into the larger impoundment, where it can be pumped into a system of pipes leading to the spray guns. Upon activation, the spray guns then apply the leachate to the sprayfields. NRCS designed the entire system to collect, store and dispose of leachate for a capacity of 90 days of rainfall plus a 25-year/24 hour storm event. [2/18/04 N.T. at 91-92 (Vanderstappen)]; [P-73]. Rick's installed the necessary components of its Leachate Control System in the summer and fall of 2000. Page 6

  16. Defendants' analysis of leachate collected from the north and south sprayfields shows elevated levels of ammonia nitrogen, fecal coliforms, total kjeldahl nitrogen, and potassium. [P-12 (5/27/03 Sampling Data)]; [5/29/03 N.T. at 127-37 (Miller)]

  17. The MFEMP [P-13d, Ex. 2] and the Detailed Operations and Maintenance Requirements ("Operations Requirements") [P-73] call for Rick's to adopt certain operational practices designed to implement BMPs and prevent environmental harm.

  18. Compliance with the MFEMP and the Operations Requirements is entirely voluntary. [2/18/04 N.T. at 55-56 (Greig)] However, DEP believes that operating in accordance with the MFEMP is the best way to limit the environmental ...


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