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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF WASHINGTON
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` NO. 1:13-CV-3017-TOR
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`
`ORDER FINDING NON-
`COMPLIANCE, SETTING
`BRIEFING ON SANCTIONS AND
`FULL COMPLIANCE
`
`
`
`COMMUNITY ASSOCIATION FOR
`RESTORATION OF THE
`ENVIRONMENT, INC., a
`Washington Non-Profit Corporation,
`and CENTER FOR FOOD SAFETY,
`a Washington, D.C. Non-Profit
`Corporation,
`
` Plaintiffs,
`
` v.
`
`GEORGE & MARGARET, LLC, a
`Washington Limited Liability
`Company, GEORGE DERUYTER &
`SON DAIRY, LLC, a Washington
`Limited Liability Company, and
`D&A DAIRY and D&A DAIRY
`LLC, a Washington Limited Liability
`Company,
`
` Defendants.
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`
`
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`BEFORE THE COURT is Plaintiffs’ allegations of Defendants’ non-
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`compliance with the Consent Decree and request for sanctions. This matter was
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`ORDER FINDING NON-COMPLIANCE, SETTING BRIEFOING ON
`SANCTIONS AND FULL COMPLIANCE ~ 1
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`Case 2:13-cv-03017-TOR ECF No. 256 filed 04/14/20 PageID.9432 Page 2 of 16
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`submitted for consideration without oral argument. The Court has reviewed the
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`record and files herein, and is fully informed. For the reasons discussed below, the
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`Court finds Defendants have not complied with the Consent Decree in part.
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`Accordingly, the Court sets this matter for further briefing to address the
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`appropriate sanctions to be imposed and dates certain for full compliance.
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`BACKGROUND
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` This case arises out of the dairy operation practices of Defendants George &
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`Margaret LLC, George DeRuyter & Son Dairy LLC, D&A Dairy, and D&A Dairy
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`LLC (collectively, “the Dairies”) and their impact on the environmental health of
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`the surrounding community. Plaintiffs Community Association for Restoration of
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`the Environment, Inc. (“CARE”) and Center for Food Safety (“CFS”) brought this
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`suit under the citizen suit provision of the Solid Waste Disposal Act, also known as
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`the Resource Conservation and Recovery Act (“RCRA”), alleging improper
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`manure management practices constituting “open dumping” of solid waste. See
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`generally ECF No. 80.
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`A. May 2015 Consent Decree
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`On May 19, 2015, the parties entered into a Consent Decree approved by the
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`Court. ECF No. 169. The parties stipulated that to the extent agreed to by the
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`United States Environmental Protection Agency (“EPA”), the EPA would oversee
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`implementation and enforcement of the terms of the Consent Decree. ECF No.
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`ORDER FINDING NON-COMPLIANCE, SETTING BRIEFOING ON
`SANCTIONS AND FULL COMPLIANCE ~ 2
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`Case 2:13-cv-03017-TOR ECF No. 256 filed 04/14/20 PageID.9433 Page 3 of 16
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`169 at 8, ¶ 14. The Consent Decree outlined a number of environmental
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`improvement initiatives Defendants were obligated to undertake on their dairy
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`properties and timelines for doing so, including lining manure storage lagoons and
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`a catch basin on the properties, monitoring of groundwater for contaminants,
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`maintaining a Dissolved Air Filtration System (“DAF”), inspection of underground
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`conveyance systems, installation of concrete aprons along water troughs within
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`cow pens, ensuring silage areas are located along impervious surfaces, removing
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`all compost from the facility, regrading and compacting existing compost areas,
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`applying liquid and solid manure to agricultural fields at agronomic rates and in
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`conjunction with a nutrient management budget, and providing clean drinking
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`water to nearby residences. ECF No. 169 at 9-25. The Court expressly retained
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`jurisdiction to interpret and enforce the Consent Decree. Id. at 3.
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`B. Motion to Show Cause
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`On December 2, 2019, Plaintiffs filed a Motion for an Order to Show Cause,
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`alleging Defendants repeatedly violated the Consent Decree over a more than four-
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`year period. ECF No. 231. On January 7, 2020, Defendants filed their response
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`and supporting declarations. ECF Nos. 242-248. On January 15, 2020, the Court
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`held a telephonic hearing to discuss the status of the case. The Court granted the
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`Plaintiffs’ Motion for an Order to Show Cause and indicated that it would
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`“consider the parties briefing in formulating a procedure and decision to resolve
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`ORDER FINDING NON-COMPLIANCE, SETTING BRIEFOING ON
`SANCTIONS AND FULL COMPLIANCE ~ 3
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`Case 2:13-cv-03017-TOR ECF No. 256 filed 04/14/20 PageID.9434 Page 4 of 16
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`the issues, including, if necessary an evidentiary hearing to be scheduled.” ECF
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`No. 252.
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`DISCUSSION
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`A. Civil Contempt Standard
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`“A consent decree is a judgment, has the force of res judicata, and it may be
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`enforced by judicial sanctions, including … citations for contempt.” S.E.C. v.
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`Randolph, 736 F.2d 525, 528 (9th Cir. 1984). “Consent decrees are entered into by
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`parties to a case after careful negotiation has produced agreement on their precise
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`terms…[T]he scope of a consent decree must be discerned within its four corners,
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`and not by reference to what might satisfy the purposes of one of the parties to it.”
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`United States v. Armour & Co., 402 U.S. 673, 681-82 (1971). “[A] federal court is
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`not necessarily barred from entering a consent decree merely because the decree
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`provides broader relief than the court could have awarded after a trial.” Local No.
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`93, Int’l Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501,
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`525 (1986). “[T]he parties have themselves created obligations and surrendered
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`claims in order to achieve a mutually satisfactory compromise.” Id. at 524. “To be
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`sure, consent decrees bear some of the earmarks of judgments entered after
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`litigation. At the same time, because their terms are arrived at through mutual
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`agreement of the parties, consent decrees also closely resemble contracts.” Id. at
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`519.
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`ORDER FINDING NON-COMPLIANCE, SETTING BRIEFOING ON
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`“Civil contempt occurs when a party fails to comply with a court order.”
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`General Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1379 (9th Cir. 1986). “It is
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`well established that the district court has the inherent authority to enforce
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`compliance with a consent decree that it has entered in an order, to hold parties in
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`contempt for violating the terms therein, and to modify a decree.” Nehmer v. U.S.
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`Dep’t of Veterans Affairs, 494 F.3d 846, 860 (9th Cir. 2007). “The district court
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`has ‘wide latitude in determining whether there has been a contemptuous defense
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`of its order.’” Stone v. City & Cty. of San Francisco, 968 F.2d 850, 856 (9th Cir.
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`1992), as amended on denial of reh’g (Aug. 25, 1992) (citing Gifford v. Heckler,
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`741 F.2d 263, 266 (9th Cir. 1984)). “If an injunction does not clearly describe
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`prohibited or required conduct, it is not enforceable by contempt.” Gates v. Shinn,
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`98 F.3d 463, 468 (9th Cir. 1996).
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`In seeking a finding of civil contempt, “[t]he moving party has the burden of
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`showing by clear and convincing evidence that the contemnors violated a specific
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`and definite order of the court.” Stone, 968 F.2d at 856 n.9 (citing Balla v. Idaho
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`St. Bd. of Corrections, 869 F.2d 461, 466 (9th Cir. 1989)). “The burden then shifts
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`to the contemnors to demonstrate why there were unable to comply.” Id. (citing
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`Donovan v. Mazzola (Donovan II), 716 F.2d 1226, 1240 (9th Cir. 1983), cert.
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`denied, 464 U.S. 1040 (1984)). “Intent is irrelevant to a finding of civil contempt
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`and, therefore, good faith is not a defense.” Id. However, “[i]f a violating party
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`Case 2:13-cv-03017-TOR ECF No. 256 filed 04/14/20 PageID.9436 Page 6 of 16
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`has taken ‘all reasonable steps’ to comply with the court order, technical or
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`inadvertent violations of the order will not support a finding of civil contempt.”
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`General Signal Co., 787 F.2d at 1379 (citation omitted). “‘Substantial compliance’
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`with the court order is a defense to civil contempt.” In re Dual-Deck Video
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`Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993).
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`B. Lagoon Lining and Maintenance
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`The Consent Decree provides for Defendants to double line twelve lagoons
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`(which include two catch basins and a take-up pond) by December 31, 2018. ECF
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`No. 169 at 9-12. Defendants have only completed the Consolidated Lagoon 3
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`lining project (Lagoons 3 and 4) and the Stormwater Catch Basin as of December
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`31, 2018. See ECF Nos. 231 at 6; 232-1; 245 at ¶¶ 27, 35. The undisputed
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`evidence shows that Defendants have failed to comply with the remaining lagoon
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`lining provisions of the Consent Decree, without valid justification.
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`In summary, Defendants contend the wording of the Consent Decree allows
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`their non-compliance with the timeline for implementing the lagoon lining. First,
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`Defendants highlight the wording that the lagoon work will be performed
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`according to the Dairy Lagoon Work Plan, “or as may reasonably be modified
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`through the discussions of Plaintiffs, Defendants, and the EPA.” ECF No. 248 at
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`10 (citing Consent Decree, ECF No. 169 at ¶ 18). Yet, Defendants cite to no
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`ORDER FINDING NON-COMPLIANCE, SETTING BRIEFOING ON
`SANCTIONS AND FULL COMPLIANCE ~ 6
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`agreement or discussion between the parties and EPA that modifies the Dairy
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`Lagoon Work Plan. This exception does not apply.
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`Next, Defendants cite to the same paragraph providing that “the lining shall
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`occur at a rate of at least two per year, according to the schedule set forth in the
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`Lagoon work Plan and any modification required by EPA.” ECF No. 248 at 10.
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`Without documentation, Defendants contend “the EPA refused to approve the
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`lagoon design upon which the parties agreed.” Id. at 8, 11 (citing to Larsen
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`Declaration, ECF No. 245 at ¶ 20 (merely stating that “EPA did not approve the
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`April 20, 2015 Dairy Lagoon Work Plan that IES prepared, but rather raised
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`additional questions and concerns.”)). Significantly, Defendants do not cite to any
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`“modification required by EPA” that would absolve them from complying with the
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`lagoon lining timeline. Defendants then cite to a letter dated August 1, 2018, from
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`the EPA that clearly concerns the Administrative Order on Consent (AOC) and
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`allows the delay of lining D&A Lagoons 1 and 2 until 2020. ECF No. 245-8. This
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`delayed implementation of the AOC primarily for financial reasons, did not pertain
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`to the Parties’ Consent Decree, nor was it a “modification required by the EPA.”
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`Defendants contend the lagoon lining timeline was “subject to” such things
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`as unanticipated weather, unanticipated site conditions, as well as the EPA’s ability
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`to “approve lagoon installation plans” in a timely manner. ECF No. 248 at 11 (see
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`ECF No. 169 at ¶ 18). Yet, Defendants cite to no weather, site conditions, or EPA
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`SANCTIONS AND FULL COMPLIANCE ~ 7
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`delay (as opposed to Defendants’ delay) that would warrant wholesale non-
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`compliance with the lining program.
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`Finally, Defendants contend that Plaintiffs have not submitted these
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`complaints to the dispute resolution process. Plaintiffs have cited and attached
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`numerous letters sent to Defendants complaining of non-compliance and allowing
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`for the dispute resolution process to be invoked by the Defendants, which
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`Defendants did not initiate.
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`The only issue remaining is what sanction the Court should impose for
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`failure to timely comply and the imposition of a future date certain to comply.
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`C. Dissolved Air Flotation System (DAF)
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`Plaintiffs contend Defendants have failed to timely and fully provide the
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`nutrient data from the DAF according to the Consent Decree. ECF No. 231 at 30.
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`Defendants responded that after some negotiations as to what type of “data” was
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`envisioned by this provision, Defendants agreed to collect the data twice annually
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`and provide it to Plaintiffs. ECF No. 248 at 27. Plaintiffs concede that
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`Defendants have now produced DAF information for 2016 through 2018, but
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`maintain that production was untimely and they should not have to request the
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`information.
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`Defendants appear to concede the information was not timely provided, but
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`the information has now been produced. No prejudice or material breach of the
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`ORDER FINDING NON-COMPLIANCE, SETTING BRIEFOING ON
`SANCTIONS AND FULL COMPLIANCE ~ 8
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`Case 2:13-cv-03017-TOR ECF No. 256 filed 04/14/20 PageID.9439 Page 9 of 16
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`Consent Decree warrants sanctions at this time. Defendants are reminded to fully
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`comply with these terms of the Consent Decree in the future.
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`D. Underground Conveyance Inspection
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`The Consent Decree required Defendants to inspect all underground
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`conveyance systems, pressure test transmission lines, document underground
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`structures, and provide the inspection results to Plaintiffs within five days of
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`completion. ECF No. 169 at ¶ 28. It also required leaks and improper piping to be
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`fixed so that all wastes are appropriately directed to lined lagoons. Id.
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`Defendants admit they have not complied with this provision even though
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`there is no express deadline. ECF No. 248 at 26. Defendants now complain that
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`the inspection may be too expensive and also question whether the inspection is
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`reasonable or necessary. Id. at 26-27.
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`Defendants voluntarily entered into the Consent Decree and are bound by its
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`terms. The only issue remaining is what sanction the Court should impose for
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`failure to timely comply and the imposition of a future date certain to comply.
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`E. Compost Area
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`Plaintiffs contend that the Defendants have not complied with the
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`composting requirements of the Consent Decree. Specifically, Plaintiffs contend
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`Defendants failed to re-grade and compact its compost area in one-third increments
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`of the area annually, starting in the year 2016. ECF Nos. 231 at 26; 169 at ¶ 34.
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`ORDER FINDING NON-COMPLIANCE, SETTING BRIEFOING ON
`SANCTIONS AND FULL COMPLIANCE ~ 9
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`Additionally, Plaintiffs assert Defendants have failed to “remove all compost from
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`the current location at D & A facility by December 31, 2017.” ECF Nos. 231 at
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`28; 169 at ¶ 33.
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`Defendants admit that no compaction or regrading work was done in 2016 or
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`2017. ECF No. 248 at 24. However, Defendants explain that their consultant
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`indicated that no regrading was required and only a few areas needed compaction
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`(“a few areas below the required compaction”). ECF No. 247-13. Defendants then
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`provided Plaintiffs with a final “compaction letter, confirming full compliance” on
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`September 25, 2018. Id. at 25; ECF No. 247-14.
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`Defendants contend they also complied with the removal of all compost in
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`2017 and are not storing compost at the facility. ECF No. 248 at 25. Defendants
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`contend the alleged compost that was photographed is bedding for the cows, not
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`compost. Id. Defendants explain that what was photographed “is post-composted
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`material that we bring in from the northern compost operation to use as bedding for
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`our cows. We deliver it from GDS, and then we spread it in the pens for our cows.
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`It is totally dry material which is why we use it for bedding.” ECF Nos. 243 at 8
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`(Dan DeRuyter Declaration); 243-6 (photograph).
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`Plaintiffs contend that this post-composted material is still compost and is
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`highly nitrogenous as indicated by the EPA’s testing and data. ECF No. 254-8 at
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`4. The only issue remaining is what sanction the Court should impose for failure
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`ORDER FINDING NON-COMPLIANCE, SETTING BRIEFOING ON
`SANCTIONS AND FULL COMPLIANCE ~ 10
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`to timely comply and the imposition of a future date certain to comply with the
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`removal of all compost.
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`F. Manure Application & Field Management
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`Plaintiffs contend Defendants have exceeded the nitrate and phosphorus
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`manure application restrictions of the Consent Decree for each of the last four
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`years on multiple fields. ECF No. 231 at 13. In summary, Plaintiffs contend at
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`ECF No. 231 at 14-17 that the following nitrate overapplication has occurred in the
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`following fields:
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`Field
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`GDS-SU04
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`GDS-SU05
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`GDS-SU06
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`GDS-SU07
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`GDS-SU08
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`Year
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`2015
`2016
`2017
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`2016
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`2018
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`2018
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`2015
`2016
`2017
`2018
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`Nitrate
`Level
`86.5
`80.2
`30.2
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`89.5
`47.4
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`64.5
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`53
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`93.5
`76.1
`63.1
`58.1
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`Gallons Applied
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`in Year
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`9,000
`2,676,707
`1,533,507
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`227,000
`627,380
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`420,158
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`428,592
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`1,507,236
`829,683
`152,000
`6,327,000
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`2016
`2017
`2018
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`2017
`2018
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`2019
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`2019
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`2016
`2017
`2018
`2019
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`Defendant’s Response and accompanying Table of nitrogen field sampling
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`and manure application confirms these apparent violations of the Consent Decree.
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`ORDER FINDING NON-COMPLIANCE, SETTING BRIEFOING ON
`SANCTIONS AND FULL COMPLIANCE ~ 11
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`ECF No. 246-1 at 23 (Table 4, SS-22). Defendants do not directly contest that
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`they violated the Consent Decree, but rather contend that they have “functioned in
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`a manner consistent with meeting the intent of their DNMP, AOC, CAFO, and
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`Consent Decree requirements.” ECF No. 248 at 18. Defendants explain that
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`Plaintiffs seized on instances where they have “technically not complied” rather
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`than looking at the “huge improvement in soil quality.” Id. at 22. Defendants
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`concede that millions of gallons of manure were applied to fields, although they
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`explain that it was justified “during the historic winter weather of 2016-17 in order
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`to avoid a catastrophic outcome.” Id. at 19. Indeed, Defendants’ consultant
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`acknowledges that “in some instances” these emergency applications “resulted in
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`applications to fields that would not have qualified for applications under the
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`Consent Decree.” ECF No. 246 at ¶ 18.2 (Stephen’s Declaration). Defendants’
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`consultant also attempts to justify the over-applications by explaining that the
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`manure was applied to the corners of some fields which have not received the same
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`level of historical application. Id. at 12, 14. However, the Consent Decree does
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`not allow for such. Defendants also contend Plaintiffs’ “claims are a result of lack
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`of understanding of the data and wrong interpretations.” ECF No. 248 at 21.
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`Defendants contend most of this misunderstanding is caused by “a crop year basis
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`versus a calendar year basis.” Id. Yet, Defendants’ Table of nitrogen field
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`ORDER FINDING NON-COMPLIANCE, SETTING BRIEFOING ON
`SANCTIONS AND FULL COMPLIANCE ~ 12
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`sampling and manure application confirms these obvious violations of the Consent
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`Decree. ECF No. 246-1 at 23 (Table 4, SS-22).
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`Plaintiffs also contend that Defendants have violated the Consent Decree
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`phosphorus restrictions by continuing to apply manure to fields that testing showed
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`far exceeded the phosphorus limitations (manure cannot be applied to fields until
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`below 40 ppm of phosphorus in the upper foot of soil, unless applied based upon
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`nutrient budget that seeks to reduce phosphorus application to less than 66.66
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`percent of crop removal (ECF No. 169 at ¶ 38). ECF No. 231 at 18-21 and
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`specifically Table 2 as shown here:
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`Defendants do not directly contest the phosphorus violations, but rather
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`assert that there is “a positive data trend on both a weighted average and an
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`individual field basis.” ECF No. 248 at 19-20. Defendants’ consultant spends
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`ORDER FINDING NON-COMPLIANCE, SETTING BRIEFOING ON
`SANCTIONS AND FULL COMPLIANCE ~ 13
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`considerable time explaining that the “Plaintiffs have focused exclusively on the
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`recommendations and the application process, but have studiously avoided
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`addressing the outcomes.” ECF No. 246 at 16-27. Apparently conceding certain
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`over-applications, Defendants’ consultant indicates field testing clearly shows a
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`downward trend of phosphorus levels. See e.g., id. at 23.
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`The Consent Decree specifically provided that “all future applications of
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`manure are to be based upon the nutrient management budget. . . . Defendants to
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`determine all future manure application rates based on residual soil . . . phosphorus
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`levels, ensuring that manure is applied in agronomic quantities and rates as
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`defined” therein. ECF No. 169 at 17. Essentially, “for fields with more than 40
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`ppm phosphorus in the upper foot, based on a valid sample obtained during the
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`calendar year at issue, manure may only be applied in a manner that, based upon a
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`nutrient budget, seeks to reduce phosphorus application to less than 66.66 percent
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`of crop removal until such time as phosphorus levels are reduced to 40 ppm or less
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`phosphorus in the upper foot of the soil column, based on a valid sample obtained
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`during the calendar year of planting. Once 40 ppm is achieved, no applications of
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`manure will be allowed that cause residual phosphorus levels to once again exceed
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`40 ppm.” Id. at 20.
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`ORDER FINDING NON-COMPLIANCE, SETTING BRIEFOING ON
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`Case 2:13-cv-03017-TOR ECF No. 256 filed 04/14/20 PageID.9445 Page 15 of 16
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`Generally, Defendants’ data shows downward phosphorus trending, but it
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`also shows violations of the Consent Decree by overapplying manure to several of
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`the fields. See ECF No. 246-1 at SS-13 and SS-22.
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`Finally, Plaintiffs complain that Defendants have violated the Consent
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`Decree by providing incomplete and incorrect records as compared to the records
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`provided to the State Department of Ecology. ECF No. 231 at 21-23. Specifically,
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`Plaintiffs complain that Defendants’ 2018 Annual Report shows that they applied
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`13,424,119 gallons of liquid manure to its fields when records provided to
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`Plaintiffs show less than half of that manure application total – 5,757,387 gallons.
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`Defendants explain that some differences are attributed to “calendar year” as
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`opposed to “crop year basis,” and others were “simply related to records not
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`making it to DeRuyter’s office for entry in a timely manner. Once the original
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`records made it to the office, the numbers were entered promptly.” ECF No. 246
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`at 27-28.
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`The Court will entertain what sanction and corrective action need be taken
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`for the nitrate, phosphorus and records violations. In any event, Defendants are
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`reminded to fully comply with these terms of the Consent Decree in the future.
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`//
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`//
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`ORDER FINDING NON-COMPLIANCE, SETTING BRIEFOING ON
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`Case 2:13-cv-03017-TOR ECF No. 256 filed 04/14/20 PageID.9446 Page 16 of 16
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`ACCORDINGLY, IT IS HEREBY ORDERED:
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`1. The Court finds Defendants have not complied with the Consent Decree
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`as indicated above. Accordingly, the Court sets this matter for further
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`briefing to address the appropriate sanctions to be imposed and dates
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`certain for full compliance.
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`2. Plaintiffs shall file a brief addressing proposed sanctions and justification
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`for such, as well as proposed future compliance deadlines for each
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`violation outlined above, on or before May 12, 2020.
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`3. Defendants shall file a brief in response to each of Plaintiffs’ proposals
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`no later than June 2, 2020.
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`4. Plaintiffs may file a reply no later than June 9, 2020.
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`5. Unless the parties demand oral argument no later than June 2, 2020
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`using the procedures set forth at LCivR 7(i)(3), the Court will hear this
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`matter without oral argument on June 12, 2020.
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`The District Court Executive is directed to enter this Order and furnish
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`copies to counsel.
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`DATED April 14, 2020.
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`THOMAS O. RICE
`Chief United States District Judge
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`ORDER FINDING NON-COMPLIANCE, SETTING BRIEFOING ON
`SANCTIONS AND FULL COMPLIANCE ~ 16
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