Case: 4:12-cv-154 As of: 10/13/2018 04:04 PM EDT 1 of 19
CLOSED,Jury Trial,MEDIATION,STAYED,USMJ Gates
U.S. District Court EASTERN DISTRICT OF NORTH CAROLINA (Eastern Division)
CIVIL DOCKET FOR CASE #: 4:12−cv−00154−D

North Carolina Environmental Justice Network et al v. Taylor et Date Filed: 07/27/2012

al

Date Terminated: 08/13/2018

Assigned to: Chief Judge James C. Dever, III

Jury Demand: Plaintiff

Cause: 33:1365 Environmental Matters

Nature of Suit: 893 Environmental Matters

Jurisdiction: Federal Question

Plaintiff

North Carolina Environmental Justice Network TERMINATED: 10/21/2014

represented by Johanna N. Skrzypczyk New York State Office of the Attorney General 120 Broadway, 24th Floor New York, NY 10271 212−416−80000 Email: jskrzypczyk@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael T. Leigh Debevoise & Plimpton LLP 919 Third Ave. New York, NY 10022 Email: mtleigh@debevoise.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stanley B. Green Strauch Green & Mistretta, P.C. 911 Paverstone Drive Suite F Raleigh, NC 27615 704−564−9878 Fax: 336−725−8867 Email: sgreen@sgandm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bethany Davis Noll Debevoise & Plimpton LLP 919 Third Ave. New York, NY 10022 212−909−6000 Fax: 212−521−7763 Email: badavisn@debevoise.com TERMINATED: 02/01/2013

Chinelo E. Dike−Minor Debevoise & Plimpton LLP 919 Third Ave. New York, NY 10022 212−909−6000 Fax: 212−521−7175 Email: cedike@debevoise.com TERMINATED: 03/08/2013

Lee Knight Caffery Strauch Green & Mistretta, P.C. 530 North Trade St., Suite 303 Winston−Salem, NC 27101

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336−725−8688 Fax: 336−725−8867 Email: lcaffery@sgandm.com TERMINATED: 03/05/2014

Plaintiff Neuse Riverkeeper Foundation, Inc.

represented by Kelly H. Foster Waterkeeper Alliance P. O. Box 4483 Tulsa, OK 74159 918−619−9073 Fax: 212−747−0611 Email: kfoster@waterkeeper.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Gray Jernigan Waterkeeper Alliance 19 W. Hargett St. Raleigh, NC 27601 919−215−9466 Email: gjernigan@waterkeeper.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stanley B. Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee Knight Caffery (See above for address) TERMINATED: 03/05/2014

Plaintiff Waterkeeper Alliance, Inc.

represented by Kelly H. Foster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Gray Jernigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stanley B. Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee Knight Caffery (See above for address) TERMINATED: 03/05/2014

V.
Defendant
Taylor Finishing, Inc. TERMINATED: 08/31/2012

represented by Amy P. Wang Ward and Smith, P.A. P. O. Box 867 1001 College Court New Bern, NC 28563−0867

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252−672−5400 Fax: 252−672−5477 Email: apw@wardandsmith.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donalt J. Eglinton Ward and Smith, P.A. P. O. Box 867 1001 College Court New Bern, NC 28563−0867 252−672−5456 Fax: 252−672−5477 Email: dje@wardandsmith.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank H. Sheffield , Jr. Ward and Smith, P.A. Post Office Box 867 1001 College Court New Bern, NC 28563−0867 252−672−5507 Fax: 672−5477 Email: fhs@wardandsmith.com TERMINATED: 10/30/2014 LEAD ATTORNEY

Defendant
Donald Taylor Individually and d/b/a Taylor Finishing

represented by Amy P. Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donalt J. Eglinton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Frank H. Sheffield , Jr. (See above for address) TERMINATED: 10/30/2014 LEAD ATTORNEY

Defendant
Frederick A. McLawhorn TERMINATED: 09/17/2014

represented by John William King , Jr. Stubbs & Perdue, PA 310 Craven St. P. O. Box 1654 New Bern, NC 28563 252−633−2700 Fax: 252−633−9600 Email: jking@stubbsperdue.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lars P. Simonsen Simonsen Law Firm, P.C. P. O. Box 848 Edenton, NC 27932 252−482−2175 Fax: 252−482−1355 Email: lars@simonsenlawfirm.com LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Defendant Aaron McLawhorn

represented by John William King , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lars P. Simonsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Annie Taylor Individually and d/b/a Taylor Finishing

represented by Amy P. Wang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donalt J. Eglinton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant McLawhorn Livestock Farm, Inc.

represented by John William King , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Justin T. McLawhorn

represented by John William King , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lars P. Simonsen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party
U.S. Department of Justice Environment and Natural Resources Division P.O. Box 7415 Washington, DC 20044 202−305−0641

Date Filed 07/27/2012

# Docket Text
1 COMPLAINT against Aaron McLawhorn, Frederick A. McLawhorn, Justin T McLawhorn, Donald E Taylor, Taylor Finishing, Inc. ( Filing fee $ 350 receipt number 0417−2160433.), filed by Waterkeeper Alliance, Inc., Neuse River Foundation, Inc., North Carolina Environmental Justice Network. (Attachments: # 1 Exhibit A −− Taylor Notice of Intent to Sue, # 2 Exhibit B −− McLawhorn Notice of Intent to Sue, # 3 Civil Cover Sheet, # 4 Summons for Aaron McLawhorn, # 5 Summons for Frederick McLawhorn, # 6 Summons for Justin McLawhorn, # 7 Summons for Taylor Finishing, Inc., # 8 Summons for Donald Taylor) (Green, Stanley) (Entered: 07/27/2012)

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07/27/2012 07/27/2012 07/27/2012 07/27/2012 07/27/2012 07/30/2012 07/31/2012
08/17/2012 08/17/2012
08/21/2012
08/21/2012
08/21/2012 08/21/2012 08/21/2012 08/21/2012 08/21/2012 08/21/2012 08/22/2012 08/22/2012

2 NOTICE of Appearance by Stanley B. Green on behalf of All Plaintiffs (Green, Stanley) (Entered: 07/27/2012)
3 NOTICE of Change of Address by Stanley B. Green (Green, Stanley) (Entered: 07/27/2012)
4 FINANCIAL DISCLOSURE STATEMENT by North Carolina Environmental Justice Network (Green, Stanley) (Entered: 07/27/2012)
5 FINANCIAL DISCLOSURE STATEMENT by Neuse River Foundation, Inc. (Green, Stanley) (Entered: 07/27/2012)
6 FINANCIAL DISCLOSURE STATEMENT by Waterkeeper Alliance, Inc. (Green, Stanley) (Entered: 07/27/2012)
7 SUMMONS ISSUED as to Aaron McLawhorn, Frederick A. McLawhorn, Justin T. McLawhorn, Donald Taylor, and Taylor Finishing, Inc. Counsel should print summonses and effect service. (Sawyer, D.) (Entered: 07/30/2012)
Case Selected for Mediation − A printable list of certified mediators for the Eastern District of North Carolina is available on the court's Website, http://www.nced.uscourts.gov/attorney/mediators.aspx. Please serve this list on all parties. (Horton, B.) (Entered: 07/31/2012)
8 SUMMONS Returned Executed by Waterkeeper Alliance, Inc., Neuse River Foundation, Inc., North Carolina Environmental Justice Network. Donald Taylor served on 8/2/2012, answer due 8/23/2012. (Green, Stanley) (Entered: 08/17/2012)
9 SUMMONS Returned Executed by Waterkeeper Alliance, Inc., Neuse River Foundation, Inc., North Carolina Environmental Justice Network. Taylor Finishing, Inc. served on 8/2/2012, answer due 8/23/2012. (Green, Stanley) (Entered: 08/17/2012)
10 SUMMONS Returned Executed by Waterkeeper Alliance, Inc., Neuse River Foundation, Inc., North Carolina Environmental Justice Network. Frederick A. McLawhorn served on 8/16/2012, answer due 9/6/2012. (Green, Stanley) (Entered: 08/21/2012)
11 SUMMONS Returned Executed by Waterkeeper Alliance, Inc., Neuse River Foundation, Inc., North Carolina Environmental Justice Network. Justin T. McLawhorn served on 8/16/2012, answer due 9/6/2012. (Green, Stanley) (Entered: 08/21/2012)
12 SUMMONS Returned Executed by Waterkeeper Alliance, Inc., Neuse River Foundation, Inc., North Carolina Environmental Justice Network. Aaron McLawhorn served on 8/16/2012, answer due 9/6/2012. (Green, Stanley) (Entered: 08/21/2012)
13 NOTICE of Appearance by Frank H. Sheffield, Jr. on behalf of Donald Taylor, Taylor Finishing, Inc. (Sheffield, Frank) (Entered: 08/21/2012)
14 NOTICE of Appearance by Donalt J. Eglinton on behalf of Donald Taylor, Taylor Finishing, Inc. (Eglinton, Donalt) (Entered: 08/21/2012)
15 MOTION for Extension of Time to File Answer regarding 1 Complaint by Donald Taylor, Taylor Finishing, Inc. (Attachments: # 1 Text of Proposed Order) (Sheffield, Frank) (Entered: 08/21/2012)
16 FINANCIAL DISCLOSURE STATEMENT by Donald Taylor, Taylor Finishing, Inc. (Sheffield, Frank) (Entered: 08/21/2012)
17 FINANCIAL DISCLOSURE STATEMENT by Donald Taylor, Taylor Finishing, Inc. (Sheffield, Frank) (Entered: 08/21/2012)
MOTION REFERRED to Julie A. Richards, Clerk of Court: 15 Motion for Extension of Time to File Answer to 1 Complaint. (Sawyer, D.) (Entered: 08/22/2012)
18 NOTICE of Appearance by Amy P. Wang on behalf of Donald Taylor, Taylor Finishing, Inc. (Wang, Amy) (Entered: 08/22/2012)

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08/22/2012 08/24/2012 08/24/2012 08/24/2012 08/24/2012 08/31/2012 08/31/2012
09/06/2012 09/06/2012 09/07/2012 09/10/2012
09/11/2012 09/13/2012 09/13/2012 09/13/2012 09/13/2012 09/19/2012 09/27/2012 09/27/2012

19 ORDER granting 15 Motion for Extension of Time to Answer. Donald Taylor and Taylor Finishing, Inc. answer due 9/13/2012. Signed by Julie A. Richards, Clerk of Court on 8/22/2012. (Sawyer, D.) (Entered: 08/22/2012)
20 NOTICE of Appearance by Bethany Davis Noll on behalf of North Carolina Environmental Justice Network (Noll, Bethany) (Entered: 08/24/2012)
21 NOTICE of Appearance by Chinelo E. Dike−Minor on behalf of North Carolina Environmental Justice Network (Dike−Minor, Chinelo) (Entered: 08/24/2012)
22 NOTICE of Appearance by Michael T. Leigh on behalf of North Carolina Environmental Justice Network (Leigh, Michael) (Entered: 08/24/2012)
23 NOTICE of Appearance by Kelly H. Foster on behalf of Neuse River Foundation, Inc., Waterkeeper Alliance, Inc. (Foster, Kelly) (Entered: 08/24/2012)
24 NOTICE of Voluntary Dismissal by Neuse River Foundation, Inc., North Carolina Environmental Justice Network, Waterkeeper Alliance, Inc. (Green, Stanley) (Entered: 08/31/2012)
25 AMENDED COMPLAINT and Jury Demand against Aaron McLawhorn, Justin T. McLawhorn, Donald Taylor, filed by Waterkeeper Alliance, Inc., Neuse River Foundation, Inc., North Carolina Environmental Justice Network. (Attachments: # 1 Exhibit A−−Taylor Notice of Intent to Sue, # 2 Exhibit B−−McLawhorn Notice of Intent to Sue) (Green, Stanley) (Entered: 08/31/2012)
26 NOTICE of Appearance by John William King, Jr on behalf of Aaron McLawhorn, Frederick A. McLawhorn, Justin T. McLawhorn (King, John) (Entered: 09/06/2012)
27 MOTION for Extension of Time to File Answer Complaint by Aaron McLawhorn, Frederick A. McLawhorn, Justin T. McLawhorn. (Attachments: # 1 Text of Proposed Order) (King, John) (Entered: 09/06/2012)
MOTION REFERRED to Julie A. Richards, Clerk of Court: 27 Motion for Extension of Time to File Answer to Complaint. (Sawyer, D.) (Entered: 09/07/2012)
28 ORDER granting 27 Motion for Extension of Time to Answer. Aaron McLawhorn answer, Frederick A. McLawhorn, and Justin T. McLawhorn's answer due 9/27/2012. Signed by Julie A. Richards, Clerk of Court on 9/10/2012. (Sawyer, D.) (Entered: 09/10/2012)
29 NOTICE of Appearance by Lars P. Simonsen on behalf of Aaron McLawhorn, Frederick A. McLawhorn, Justin T. McLawhorn (Simonsen, Lars) (Entered: 09/11/2012)
30 MOTION to Dismiss Plaintiffs' Complaint by Donald Taylor. (Eglinton, Donalt) (Entered: 09/13/2012)
31 Memorandum in Support regarding 30 MOTION to Dismiss Plaintiffs' Complaint filed by Donald Taylor. (Attachments: # 1 Exhibit 1−Notice of Intent to Sue) (Eglinton, Donalt) (Entered: 09/13/2012)
32 FINANCIAL DISCLOSURE STATEMENT by Aaron McLawhorn, Frederick A. McLawhorn. (King, John) (Entered: 09/13/2012)
33 FINANCIAL DISCLOSURE STATEMENT by Justin T. McLawhorn. (King, John) (Entered: 09/13/2012)
34 WAIVER OF SERVICE Returned Executed by Waterkeeper Alliance, Inc., Neuse River Foundation, Inc., North Carolina Environmental Justice Network. Annie Taylor waiver sent on 9/14/2012. (Green, Stanley) (Entered: 09/19/2012)
35 AFFIDAVIT by Aaron McLawhorn, Frederick A. McLawhorn. (Attachments: # 1 Errata Lease Termination Agreement, # 2 Exhibit Certificate of Existence) (King, John) (Entered: 09/27/2012)
36 MOTION to Dismiss for Lack of Jurisdiction by Aaron McLawhorn, Frederick A. McLawhorn, Justin T. McLawhorn. (King, John) (Entered: 09/27/2012)

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09/27/2012 10/09/2012 10/09/2012
10/10/2012 10/10/2012
10/15/2012
10/15/2012 10/22/2012 10/22/2012
10/23/2012 10/23/2012 10/24/2012 10/30/2012 11/06/2012 11/06/2012

37 Memorandum in Support regarding 36 MOTION to Dismiss for Lack of Jurisdiction filed by Aaron McLawhorn, Frederick A. McLawhorn, Justin T. McLawhorn. (King, John) (Entered: 09/27/2012)
38 RESPONSE/MEMORANDUM in Opposition to 30 Motion to Dismiss filed by North Carolina Environmental Justice Network. (Leigh, Michael) (Entered: 10/09/2012)
39 DECLARATION in support of 31 Response/Memorandum filed filed by North Carolina Environmental Justice Network. (Attachments: # 1 Exhibit 1 − Certificate of Coverage, # 2 Exhibit 2 − Letter from Frank H. Sheffield, # 3 Exhibit 3 − Compliance Inspection, # 4 Exhibit 4 − Plan of Action dated January 26, 2011, # 5 Exhibit 5 − Plan of Action dated September 27, 2011, # 6 Exhibit 6 − Letter from Donald and Annie Taylor, # 7 Exhibit 7 − Confidential Settlement Communications Agreement) (Noll, Bethany) (Entered: 10/09/2012)
40 NOTICE of Appearance by Lee Knight Caffery on behalf of All Plaintiffs (Caffery, Lee) (Entered: 10/10/2012)
REMINDER TO COUNSEL regarding 38 Memorandum in Opposition and 39 Declaration: Pursuant to Judge Dever's practice preferences, counsel shall provide a courtesy copy of motions and memoranda for documents over 20 pages, by mailing or delivering to the case manager at the clerk's office in Raleigh. (Sawyer, D.) (Entered: 10/10/2012)
NOTICE TO COUNSEL regarding 38 Response/Memorandum and 39 Declaration. For future reference, counsel should reflect in the case caption the division in which the case has been assigned. Counsel failed to attach a certificate of service to 39 Declaration. Counsel should file the certificate of service using Civil Events − Service of Process. (Heath, D.) (Entered: 10/15/2012)
41 CERTIFICATE OF SERVICE by North Carolina Environmental Justice Network regarding 39 Declaration. (Leigh, Michael) (Entered: 10/15/2012)
42 MEMORANDUM IN OPPOSITION to 36 Motion to Dismiss filed by Neuse River Foundation, Inc., North Carolina Environmental Justice Network, and Waterkeeper Alliance, Inc. (Green, Stanley) (Entered: 10/22/2012)
43 DECLARATION of Bethany A. Davis Noll in support of 36 Motion to Dismiss filed by Waterkeeper Alliance, Inc., Neuse River Foundation, Inc., and North Carolina Environmental Justice Network. (Attachments: # 1 Exhibit 1−−Certificate of Coverage, # 2 Exhibit 2−−Findings and Decision et al., # 3 Exhibit 3−−North Carolina Department of Environment and Natural Resources Letter, # 4 Exhibit 4−−Water Quality Inspection, # 5 Exhibit 5−−North Carolina Department of Environment and Natural Resources Letter, # 6 Exhibit 6−−Administrative Reinstatement, # 7 Exhibit 7−−Affidavit) (Green, Stanley) (Entered: 10/22/2012)
44 MOTION for Extension of Time to File Reply as to 38 Memorandum in Opposition to Defendant Donald Taylor's Motion to Dismiss by Donald Taylor. (Attachments: # 1 Text of Proposed Order) (Eglinton, Donalt) (Entered: 10/23/2012)
MOTION REFERRED Julie A. Richards, Clerk of Court: Motion 44 for Extension of Time to File Reply to 30 Motion to Dismiss. (Sawyer, D.) (Entered: 10/23/2012)
TEXT ORDER granting defendant's 44 motion for extension of time. Defendant Donald Taylor has through and including October 30, 2012 to reply to his 30 motion to dismiss. Signed by Jolie Skinner for Julie A. Richards, Clerk of Court on 10/24/2012. (Skinner, J.) (Entered: 10/24/2012)
45 REPLY regarding 30 Defendant Donald Taylor's Motion to Dismiss filed by Donald Taylor. (Attachments: # 1 Exhibit December 22, 2010 Notice of Intent to Sue, # 2 Exhibit January 11, 2011 Notice Letter) (Eglinton, Donalt) (Entered: 10/30/2012)
46 NOTICE of Change of Address by Stanley B. Green (Green, Stanley) (Entered: 11/06/2012)
47 NOTICE of Change of Address by Lee Knight Caffery (Caffery, Lee) (Entered: 11/06/2012)

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11/09/2012 11/09/2012 11/09/2012 11/13/2012 11/28/2012 11/28/2012 12/03/2012 12/04/2012
12/04/2012
12/17/2012 12/18/2012 12/21/2012
12/21/2012 01/02/2013 01/07/2013

48 MOTION to Dismiss Plaintiffs' Amended Complaint by Annie Taylor. (Eglinton, Donalt) (Entered: 11/09/2012)
49 MEMORANDUM in Support of 48 Motion to Dismiss Plaintiffs' Amended Complaint filed by Annie Taylor. (Attachments: # 1 Exhibit Notice of Intent − January 11, 2011) (Eglinton, Donalt) (Entered: 11/09/2012)
50 DECLARATION in support of 48 Motion to Dismiss filed by Annie Taylor. (Attachments: # 1 Affidavit Declaration of Annie Taylor) (Eglinton, Donalt) (Entered: 11/09/2012)
MOTIONS SUBMITTED to Chief Judge James C. Dever III: 30 and 36 Motions to Dismiss. (Sawyer, D.) (Entered: 11/13/2012)
51 MOTION for Leave to File Second Amended Complaint by Neuse River Foundation, Inc., North Carolina Environmental Justice Network, Waterkeeper Alliance, Inc. (Green, Stanley) (Entered: 11/28/2012)
52 Memorandum in Support of Motion for Leave to File Second Amended Complaint filed by Neuse River Foundation, Inc., North Carolina Environmental Justice Network, Waterkeeper Alliance, Inc. (Attachments: # 1 Exhibit Proposed Second Amended Complaint) (Green, Stanley) (Entered: 11/28/2012)
53 Memorandum in Opposition regarding 48 MOTION to Dismiss Plaintiffs' Amended Complaint / Plaintiffs' Memorandum of Law in Opposition to Defendant Annie Taylor's Motion to Dismiss filed by North Carolina Environmental Justice Network. (Noll, Bethany) (Entered: 12/03/2012)
NOTICE TO COUNSEL regarding the Certificate of Service attached to 53 Memorandum In Opposition. The document contains an incorrect signture block. The signature block does not reflect the filing attorney's signature. Counsel should file a separately captioned Certificate of Service using Civil Events − Service of Process. (Heath, D.) (Entered: 12/04/2012)
54 CERTIFICATE OF SERVICE by North Carolina Environmental Justice Network regarding 53 Memorandum in Opposition, Certificate of Service for Plaintiffs' Memorandum of Law in Opposition to Defendant Annie Taylor's Motion to Dismiss, Dated December 3, 2012, Per Clerk's Notice of December 4, 2012 (Noll, Bethany) (Entered: 12/04/2012)
55 REPLY to Response to Motion regarding 48 MOTION to Dismiss Plaintiffs' Amended Complaint filed by Annie Taylor. (Attachments: # 1 Exhibit 1−Warranty Deed) (Eglinton, Donalt) (Entered: 12/17/2012)
MOTION SUBMITTED to Chief Judge James C. Dever III: 48 Motion to Dismiss. (Sawyer, D.) (Entered: 12/18/2012)
56 RESPONSE in Opposition regarding 51 MOTION for Leave to File Second Amended Complaint filed by Annie Taylor, Donald Taylor. (Attachments: # 1 Exhibit Declaration of Donald Taylor, # 2 Exhibit Declaration of Annie Taylor, # 3 Exhibit Waterkeeper Alliance v. Alan Kristin Hudson Farm, document 210, # 4 Exhibit Waterkeeper Alliance v. Alan Kristin Hudson Farm, document 211, # 5 Exhibit Judge Nickerson's Order, # 6 Exhibit Administrative Reinstatement of the Corporation by the NC Secretary of State) (Eglinton, Donalt) (Entered: 12/21/2012)
57 Declaration regarding 56 Response in Opposition to Motion,, Notice of Filing by Annie Taylor, Donald Taylor. (Attachments: # 1 Affidavit Declaration of Donald Taylor, # 2 Affidavit Declaration of Annie Taylor) (Eglinton, Donalt) (Entered: 12/21/2012)
MOTION SUBMITTED to Chief Judge James C. Dever III: 51 Motion for Leave to File Second Amended Complaint. (Sawyer, D.) (Entered: 01/02/2013)
58 REPLY to Response to Motion regarding 51 MOTION for Leave to File Second Amended Complaint filed by Neuse River Foundation, Inc., North Carolina Environmental Justice Network, Waterkeeper Alliance, Inc. (Attachments: # 1 Exhibit 1 − Email, # 2 Declaration of Michael T. Leigh) (Green, Stanley) (Entered: 01/07/2013)

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01/29/2013 01/30/2013 01/30/2013 02/01/2013 03/06/2013 03/07/2013
03/07/2013 03/08/2013 04/24/2013
04/25/2013 05/06/2013
05/06/2013 05/07/2013
05/07/2013
05/09/2013 05/20/2013 05/21/2013

59 NOTICE of Appearance for non−district by Johanna N. Skrzypczyk on behalf of North Carolina Environmental Justice Network (Skrzypczyk, Johanna) (Entered: 01/29/2013)
60 MOTION to Withdraw as Attorney by North Carolina Environmental Justice Network. (Noll, Bethany) (Entered: 01/30/2013)
MOTION SUBMITTED to Chief Judge James C. Dever iII: 60 Motion to Withdraw as Attorney. (Sawyer, D.) (Entered: 01/30/2013)
61 ORDER granting 60 Motion to Withdraw as Attorney. Attorney Bethany Davis Noll terminated. Signed by Chief Judge James C. Dever III on 2/1/2013. (Sawyer, D.) (Entered: 02/01/2013)
62 MOTION to Withdraw as Attorney by North Carolina Environmental Justice Network. (Dike−Minor, Chinelo) (Entered: 03/06/2013)
NOTICE TO COUNSEL regarding 62 Motion to Withdraw and Proposed Order. Counsel failed to attach the proposed order as an exhibit. Pursuant to Local Civil Rule 6.1 and Section L(2)(b) of the Courts' Electronic Policy and Procedure Manual, all exhibits must be attached separately and identified with a clear and complete description of the document. (Heath, D.) (Entered: 03/07/2013)
MOTION SUBMITTED to Chief Judge James C. Dever III: 62 Motion to Withdraw as Counsel. (Sawyer, D.) (Entered: 03/07/2013)
63 ORDER granting 62 Motion to Withdraw as Attorney. Attorney Chinelo E. Dike−Minor terminated. Signed by Chief Judge James C. Dever III on 3/8/2013. (Sawyer, D.) (Entered: 03/08/2013)
64 ORDER granting 51 Plaintiffs' Motion for Leave to File Second Amended Complaint and denying as moot 30 , 36 , and 48 Motions to Dismiss. Counsel should file the second amended complaint attached to its motion no later than 4/30/2013. Signed by Chief Judge James C. Dever III on 4/24/2013. (Sawyer, D.) (Entered: 04/24/2013)
65 SECOND AMENDED COMPLAINT filed by Waterkeeper Alliance, Inc., Neuse River Foundation, Inc., and North Carolina Environmental Justice Network. (Green, Stanley) (Entered: 04/25/2013)
66 MOTION for Extension of Time to File Answer regarding 65 Amended Complaint by Aaron McLawhorn, Frederick A. McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc.. (Attachments: # 1 Text of Proposed Order) (King, John) (Entered: 05/06/2013)
MOTION REFERRED to Julie A. Richards, Clerk of Court: 66 Motion for Extension of Time to File Answer to 65 Amended Complaint. (Sawyer, D.) (Entered: 05/06/2013)
67 MOTION to Correct the Style of the Case filed by Neuse River Foundation, Inc., North Carolina Environmental Justice Network, Waterkeeper Alliance, Inc. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order) (Green, Stanley) (Entered: 05/07/2013)
TEXT ORDER granting defendants' 66 motion for extension of time. Defendants Aaron McLawhorn, Justin T. McLawhorn and McLawhorn Livestock Farm, Inc. have through and including June 5, 2013 to answer or otherwise respond to plaintiffs' second amended complaint. Signed by Jolie Skinner for Julie A. Richards, Clerk of Court on 5/7/2013. (Skinner, J.) (Entered: 05/07/2013)
68 ANSWER to 65 Second Amended Complaint filed by Annie Taylor and Donald Taylor. (Wang, Amy) (Entered: 05/09/2013)
MOTION SUBMITTED to Chief Judge James C. Dever III: 67 Motion to Correct the Style of the Case. (Sawyer, D.) (Entered: 05/20/2013)
69 MOTION (Corrected) to Correct the Style of the Case filed by Neuse River Foundation, Inc., North Carolina Environmental Justice Network, and Waterkeeper Alliance, Inc. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order) (Green, Stanley) (Entered: 05/21/2013)

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05/22/2013 05/23/2013 05/30/2013 05/30/2013 06/21/2013 06/24/2013
07/29/2013 08/26/2013 09/03/2013 09/04/2013 10/08/2013
10/09/2013 10/18/2013 10/18/2013 10/18/2013 11/19/2013 11/27/2013
12/10/2013

MOTION SUBMITTED to Chief Judge James C. Dever III: 69 Motion (Corrected) to Correct the Style of the Case. (Sawyer, D.) (Entered: 05/22/2013)
70 ORDER granting 69 Motion to Correct the Style of the Case. Signed by Chief Judge James C. Dever III on 5/23/2013. (Sawyer, D.) (Entered: 05/23/2013)
71 MOTION TO DISMISS for Failure to State a Claim filed by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc. (King, John) (Entered: 05/30/2013)
72 MEMORANDUM in Support of 71 Motion to Dismiss filed by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc. (King, John) (Entered: 05/30/2013)
73 MEMORANDUM in Opposition to 71 Motion to Dismiss filed by Neuse River Foundation, Inc., North Carolina Environmental Justice Network, Waterkeeper Alliance, Inc. (Green, Stanley) (Entered: 06/21/2013)
REMINDER TO COUNSEL regarding 73 Memorandum in Opposition: Pursuant to Chief Judge Dever's Practice and Procedures located on the court's website, counsel shall provide a courtesy copy of all filed documents that exceed 20 pages, by mailing or delivering to the clerk's office in Raleigh. (Sawyer, D.) (Entered: 06/24/2013)
MOTION SUBMITTED to Chief Judge James C. Dever III: 71 Motion to Dismiss. (Sawyer, D.) (Entered: 07/29/2013)
74 ORDER denying 71 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge James C. Dever III on 8/26/2013. (Sawyer, D.) (Entered: 08/26/2013)
75 ANSWER to 65 Amended Complaint by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc.. (King, John) (Entered: 09/03/2013)
76 ORDER FOR DISCOVERY PLAN sent to all parties. Counsel should read the order in its entirety for critical deadlines and information. Signed by Julie A. Richards, Clerk of Court on 9/4/2013. (Sawyer, D.) (Entered: 09/04/2013)
77 MOTION for Extension of Time to File Joint Discovery Plan by Neuse River Foundation, Inc., North Carolina Environmental Justice Network, Waterkeeper Alliance, Inc.. (Attachments: # 1 Text of Proposed Order) (Green, Stanley) (Entered: 10/08/2013)
MOTION SUBMITTED to Chief Judge James C. Dever III: 77 Motion for Extension of Time to File Joint Discovery Plan. (Sawyer, D.) (Entered: 10/09/2013)
78 REPORT of Rule 26(f) Planning Meeting by Neuse River Foundation, Inc., North Carolina Environmental Justice Network, Waterkeeper Alliance, Inc.. (Caffery, Lee) (Entered: 10/18/2013)
79 NOTICE by Neuse River Foundation, Inc., North Carolina Environmental Justice Network, Waterkeeper Alliance, Inc. Firm Name Change (Green, Stanley) (Entered: 10/18/2013)
80 NOTICE by Neuse River Foundation, Inc., North Carolina Environmental Justice Network, Waterkeeper Alliance, Inc. Firm Name Change (Caffery, Lee) (Entered: 10/18/2013)
81 SCHEDULING ORDER: Counsel should read the order in its entirety for all deadlines and information. Discovery due by 10/3/2014. Motions due by 11/7/2014. Signed by Chief Judge James C. Dever III on 11/19/2013. (Sawyer, D.) (Entered: 11/19/2013)
Pursuant to Local ADR Rule 101.1c(a), counsel is reminded that the parties must file a written statement identifying an agreed upon mediator within twenty one (21) days of the entry of the Scheduling Order. If a statement is not timely filed, the Clerk of Court will appoint a mediator from the list of court certified mediators. (Horton, B.) (Entered: 11/27/2013)
82 SELECTION OF Robert A. Beason, Esq. as mediator (Eglinton, Donalt) (Entered: 12/10/2013)

Case: 4:12-cv-154 As of: 10/13/2018 04:04 PM EDT 11 of 19

12/11/2013 02/21/2014 02/21/2014 02/21/2014 02/21/2014 02/24/2014 02/24/2014 02/24/2014 02/25/2014 02/27/2014
02/27/2014
03/04/2014 03/04/2014 03/05/2014 06/06/2014 06/09/2014 06/18/2014 06/20/2014 06/20/2014

83 ORDER Appointing Mediator Robert A. Beason. Signed by Julie A. Richards, Clerk of Court on 12/11/13. (Horton, B.) (Entered: 12/11/2013)
84 MOTION for Extension of Time to Object or Otherwise Respond to Discovery by Annie Taylor, Donald Taylor, Taylor Finishing, Inc.. (Attachments: # 1 Text of Proposed Order) (Eglinton, Donalt) (Entered: 02/21/2014)
85 MOTION for Extension of Time to Object or Otherwise Respond to Request to Permit Entry Upon Land by Annie Taylor, Donald Taylor, Taylor Finishing, Inc.. (Attachments: # 1 Text of Proposed Order) (Eglinton, Donalt) (Entered: 02/21/2014)
86 MOTION for Extension of Time by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc.. (King, John) (Entered: 02/21/2014)
87 Proposed Order regarding 86 MOTION for Extension of Time filed by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc.. (King, John) (Entered: 02/21/2014)
MOTIONS SUBMITTED to Chief Judge James C. Dever III: 84 85 86 Motions for Extension of Time. (Sawyer, D.) (Entered: 02/24/2014)
Motions No Longer Submitted: 84 85 86 Motions for Extensions of Time. (Sawyer, D.) (Entered: 02/24/2014)
MOTIONS REFERRED to Julie A. Richards, Clerk of Court: 84 85 86 Motions for Extension of Time. (Sawyer, D.) (Entered: 02/24/2014)
88 ORDER granting 84 Motion for Extension of Time. Signed by Julie A. Richards, Clerk of Court on 2/25/2014. (Sawyer, D.) (Entered: 02/25/2014)
TEXT ORDER granting defendants' 85 motion for extension of time. Defendants Donald Taylor and Annie Taylor, individually and d/b/a Taylor Finishing have through and including March 26, 2014 to object or otherwise respond to the request to permit entry upon land. Signed by Jolie Skinner for Julie A. Richards, Clerk of Court on 2/27/2014. (Skinner, J.) (Entered: 02/27/2014)
TEXT ORDER granting defendants' 86 motion for extension of time. Defendants McLawhorn Livestock Farm, Inc., Justin T. McLawhorn and Aaron McLawhorn have through and including March 24, 2014 to respond to plaintiffs' first set of requests for production of documents. Signed by Jolie Skinner for Julie A. Richards, Clerk of Court on 2/27/2014. (Skinner, J.) (Entered: 02/27/2014)
89 MOTION to Withdraw as Attorney by Neuse River Foundation, Inc., North Carolina Environmental Justice Network, Waterkeeper Alliance, Inc.. (Attachments: # 1 Text of Proposed Order) (Caffery, Lee) (Entered: 03/04/2014)
MOTION SUBMITTED to Chief Judge James C. Dever III: 89 Motion to Withdraw as Attorney. (Sawyer, D.) (Entered: 03/04/2014)
90 ORDER granting 89 Motion to Withdraw as Attorney. Attorney Lee Knight Caffery terminated. Signed by Chief Judge James C. Dever III on 3/5/2014. (Sawyer, D.) (Entered: 03/05/2014)
91 Joint MOTION for Protective Order / Joint Motion for Entry of Consent Protective Order by North Carolina Environmental Justice Network. (Attachments: # 1 Proposed Consent Protective Order) (Leigh, Michael) (Entered: 06/06/2014)
MOTION SUBMITTED to Chief Judge James C. Dever III: 91 Joint Motion for Protective Order. (Sawyer, D.) (Entered: 06/09/2014)
92 ORDER REFERRING MOTION to US Magistrate Judge James E. Gates: 91 Joint Motion for Entry of a Consent Protective Order. Signed by US Chief District Judge James C. Dever, III, on 6/17/2014. (Fisher, M.) (Entered: 06/18/2014)
93 First MOTION to Compel / Plaintiffs' Notice of Motion to Compel Access to the Taylor Finishing Property by North Carolina Environmental Justice Network. (Attachments: # 1 Text of Proposed Order) (Leigh, Michael) (Entered: 06/20/2014)
94 Memorandum in Support regarding 93 First MOTION to Compel / Plaintiffs' Notice of Motion to Compel Access to the Taylor Finishing Property filed by North Carolina

Case: 4:12-cv-154 As of: 10/13/2018 04:04 PM EDT 12 of 19

06/20/2014 06/30/2014 07/01/2014 07/03/2014
07/10/2014 07/10/2014 07/10/2014 07/10/2014
07/11/2014 07/17/2014 07/30/2014 07/31/2014 07/31/2014 08/12/2014 08/12/2014

Environmental Justice Network. (Leigh, Michael) (Entered: 06/20/2014)
95 Declaration regarding 93 First MOTION to Compel / Plaintiffs' Notice of Motion to Compel Access to the Taylor Finishing Property // Declaration of Michael T. Leigh by North Carolina Environmental Justice Network filed by North Carolina Environmental Justice Network. (Leigh, Michael) (Entered: 06/20/2014)
96 MOTION for Extension of Time to File Response as to 93 First MOTION to Compel / Plaintiffs' Notice of Motion to Compel Access to the Taylor Finishing Property by Annie Taylor, Donald Taylor, Taylor Finishing, Inc. (Attachments: # 1 Text of Proposed Order) (Eglinton, Donalt) (Entered: 06/30/2014)
MOTION REFERRED to Julie A. Richards, Clerk of Court: 96 MOTION for Extension of Time to File Response as to 93 First MOTION to Compel / Plaintiffs' Notice of Motion to Compel Access to the Taylor Finishing Property. (Edwards, S.) (Entered: 07/01/2014)
TEXT ORDER granting defendants' 96 motion for extension of time. Defendants Donald Taylor and Annie Taylor, individually and d/b/a Taylor Finishing have through and including July 10, 2014 to respond to plaintiffs' first motion to compel. Signed by Jolie Skinner for Julie A. Richards, Clerk of Court on 7/3/2014. (Skinner, J.) (Entered: 07/03/2014)
97 RESPONSE in Opposition regarding 93 First MOTION to Compel / Plaintiffs' Notice of Motion to Compel Access to the Taylor Finishing Property filed by Annie Taylor, Donald Taylor, Taylor Finishing, Inc.. (Eglinton, Donalt) (Entered: 07/10/2014)
98 NOTICE by Annie Taylor, Donald Taylor regarding 97 Response in Opposition to Motion to Compel (Eglinton, Donalt) (Entered: 07/10/2014)
99 Declaration regarding 97 Response in Opposition to Motion, 98 Notice−(other) Second Declaration of Donald Taylor by Annie Taylor, Donald Taylor, Taylor Finishing, Inc.. (Eglinton, Donalt) (Entered: 07/10/2014)
100 Declaration regarding 97 Response in Opposition to Motion, 98 Notice−(other) Declaration of Donalt J. Eglinton by Annie Taylor, Donald Taylor, Taylor Finishing, Inc.. (Attachments: # 1 Exhibit A−Emails dated February 13−17, 2014, # 2 Exhibit B−Emails dated March 12−13, 2014, # 3 Exhibit C−Emails dated June 13−22, 2014) (Eglinton, Donalt) (Entered: 07/10/2014)
Motion Submitted to Chief Judge James C. Dever III: 93 First MOTION to Compel / Plaintiffs' Notice of Motion to Compel Access to the Taylor Finishing Property. (Edwards, S.) (Entered: 07/11/2014)
101 NOTICE of Appearance by Robert Gray Jernigan on behalf of Neuse River Foundation, Inc., Waterkeeper Alliance, Inc. (Attachments: # 1 Certificate of Service) (Jernigan, Robert) (Entered: 07/17/2014)
102 CONSENT PROTECTIVE ORDER (AS MODIFIED) regarding 91 Joint Motion for Protective Order/Joint Motion for Entry of Consent Protective Order − Signed by Magistrate Judge James E. Gates on 7/30/2014. (Tripp, S.) (Entered: 07/30/2014)
103 ORDER REFERRING MOTION to Magistrate Judge James E. Gates: 93 First MOTION to Compel / Plaintiffs' Notice of Motion to Compel Access to the Taylor Finishing Property filed by North Carolina Environmental Justice Network. Signed by Chief Judge James C. Dever III on 7/31/2014. (Tripp, S.) (Entered: 07/31/2014)
Motion No Longer Submitted to Chief Judge James C. Dever III: 93 First MOTION to Compel / Plaintiffs' Notice of Motion to Compel Access to the Taylor Finishing Property. (Tripp, S.) (Entered: 08/05/2014)
104 Joint MOTION to Strike Plaintiffs' Demand for Jury Trial by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc., Annie Taylor, Donald Taylor, Taylor Finishing, Inc.. (Eglinton, Donalt) (Entered: 08/12/2014)
105 Memorandum in Support regarding 104 Joint MOTION to Strike Plaintiffs' Demand for Jury Trial filed by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc., Annie Taylor, Donald Taylor, Taylor Finishing, Inc.. (Eglinton, Donalt) (Entered: 08/12/2014)

Case: 4:12-cv-154 As of: 10/13/2018 04:04 PM EDT 13 of 19

08/20/2014
08/20/2014 08/21/2014 09/05/2014 09/17/2014 09/17/2014 10/21/2014 10/23/2014 10/23/2014 10/23/2014 10/23/2014
10/23/2014
10/28/2014

NOTICE OF DEFICIENCY − Failure to File Financial Disclosure Statement as to McLawhorn Livestock Farm, Inc. and Annie Taylor. Pursuant to Fed. R. Civ. P. 7.1 and Local Civil Rule 7.3, all parties must file a corporate affiliate/financial interest disclosure statement. A negative statement is required if a party has no disclosures to make. The disclosure statement must be on a form provided by the clerk. This form is available at the clerk's office and on the court's website. (Tripp, S.) (Entered: 08/20/2014)
106 FINANCIAL DISCLOSURE STATEMENT by McLawhorn Livestock Farm, Inc.. (King, John) (Entered: 08/20/2014)
107 FINANCIAL DISCLOSURE STATEMENT by Annie Taylor. (Eglinton, Donalt) (Entered: 08/21/2014)
108 RESPONSE to Motion regarding 104 Joint MOTION to Strike Plaintiffs' Demand for Jury Trial filed by Neuse River Foundation, Inc., North Carolina Environmental Justice Network, Waterkeeper Alliance, Inc.. (Jernigan, Robert) (Entered: 09/05/2014)
109 REPLY to Response to Motion regarding 104 Joint MOTION to Strike Plaintiffs' Demand for Jury Trial filed by Annie Taylor, Donald Taylor. (Eglinton, Donalt) (Entered: 09/17/2014)
Motion Submitted to Chief Judge James C. Dever III: 104 Joint MOTION to Strike Plaintiffs' Demand for Jury Trial. (Tripp, S.) (Entered: 09/17/2014)
110 STIPULATION of Dismissal / Stipulation of Voluntary Dismissal by North Carolina Environmental Justice Network. (Leigh, Michael) (Entered: 10/21/2014)
111 Joint MOTION to Amend/Correct 78 Discovery Plan, 81 Scheduling Order to Extend Time for Filing Dispositive Motions and for Expedited Ruling by Annie Taylor, Donald Taylor. (Attachments: # 1 Text of Proposed Order, # 2 Text of Proposed Order) (Eglinton, Donalt) (Entered: 10/23/2014)
112 Memorandum in Support regarding 111 Joint MOTION to Amend/Correct 78 Discovery Plan, 81 Scheduling Order to Extend Time for Filing Dispositive Motions and for Expedited Ruling filed by Annie Taylor, Donald Taylor. (Eglinton, Donalt) (Entered: 10/23/2014)
Remark − Alerted chambers of Chief Judge James C. Dever III to the filing of 111 Joint MOTION to Amend/Correct 78 Discovery Plan, 81 Scheduling Order to Extend Time for Filing Dispositive Motions and for Expedited Ruling. (Tripp, S.) (Entered: 10/23/2014)
113 ORDER regarding 111 Joint MOTION to Amend/Correct 78 Discovery Plan, 81 Scheduling Order to Extend Time for Filing Dispositive Motions and for Expedited Ruling − For good cause shown, upon Motion of Defendants Donald Taylor and Annie Taylor, individually and d/b/a Taylor Finishing, and Defendants McLawhorn Livestock Farm, Inc., Justin T. McLawhorn, and Aaron McLawhorn, and in order to expedite the resolution of their Motion to Modify Scheduling Order to Extend Time for Filing Dispositive Motions, Plaintiffs Neuse Riverkeeper Foundation, Inc. and Waterkeeper Alliance, Inc. are ordered to respond to the Motion to Modify Scheduling Order to Extend Time for Filing Dispositive Motions by October 28, 2014. Signed by Chief Judge James C. Dever III on 10/23/2014. (Tripp, S.) (Entered: 10/23/2014)
114 ORDER granting 111 Joint Motion to Amend/Correct 78 Discovery Plan, 81 Scheduling Order to Extend Time for Filing Dispositive Motions and for Expedited Ruling − The Scheduling Order entered on November 19, 2013 is modified to extend the time within which to serve and file all potentially dispositive motions from November 7, 2014, to and including November 21, 2014. Signed by Chief Judge James C. Dever III on 10/23/2014. (Tripp, S.) (Entered: 10/23/2014)
115 Memorandum in Opposition regarding 111 Joint MOTION to Amend/Correct 78 Discovery Plan, 81 Scheduling Order to Extend Time for Filing Dispositive Motions and for Expedited Ruling filed by Neuse Riverkeeper Foundation, Inc., North Carolina Environmental Justice Network, Waterkeeper Alliance, Inc.. (Green, Stanley) (Entered: 10/28/2014)

Case: 4:12-cv-154 As of: 10/13/2018 04:04 PM EDT 14 of 19

10/30/2014 10/30/2014 10/30/2014 10/31/2014 10/31/2014 10/31/2014 10/31/2014 11/10/2014 11/10/2014 11/11/2014
11/11/2014 11/12/2014
11/21/2014

116 MOTION to Withdraw as Attorney by Annie Taylor, Donald Taylor. (Attachments: # 1 Text of Proposed Order) (Eglinton, Donalt) (Entered: 10/30/2014)
Motion Submitted to Chief Judge James C. Dever III: 116 MOTION to Withdraw as Attorney . (Tripp, S.) (Entered: 10/30/2014)
117 ORDER granting 116 Motion to Withdraw as Attorney. Attorney Frank H. Sheffield, Jr. terminated. Signed by Chief Judge James C. Dever III on 10/30/2014. (Tripp, S.) (Entered: 10/30/2014)
118 REPLY to Response to Motion regarding 111 Joint MOTION to Amend/Correct 78 Discovery Plan, 81 Scheduling Order to Extend Time for Filing Dispositive Motions and for Expedited Ruling filed by Annie Taylor, Donald Taylor. (Eglinton, Donalt) (Entered: 10/31/2014)
Remark − 115 Memorandum in Opposition and 118 REPLY submitted to Chief Judge James C. Dever III. (Tripp, S.) (Entered: 10/31/2014)
119 MOTION for Reconsideration regarding 114 Order on Motion to Amend/Correct, AND FOR COURT CONFERENCE TO DISCUSS OUTSTANDING DISCOVERY AND MODIFICATION OF SCHEDULING ORDER DEADLINES by Neuse Riverkeeper Foundation, Inc., Waterkeeper Alliance, Inc.. (Green, Stanley) (Entered: 10/31/2014)
120 Memorandum in Support regarding 119 MOTION for Reconsideration regarding 114 Order on Motion to Amend/Correct, AND FOR COURT CONFERENCE TO DISCUSS OUTSTANDING DISCOVERY AND MODIFICATION OF SCHEDULING ORDER DEADLINES filed by Neuse Riverkeeper Foundation, Inc., Waterkeeper Alliance, Inc.. (Green, Stanley) (Entered: 10/31/2014)
121 RESPONSE to Motion regarding 119 MOTION for Reconsideration regarding 114 Order on Motion to Amend/Correct, AND FOR COURT CONFERENCE TO DISCUSS OUTSTANDING DISCOVERY AND MODIFICATION OF SCHEDULING ORDER DEADLINES filed by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc.. (King, John) (Entered: 11/10/2014)
122 Declaration regarding 121 Response to Motion, by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc.. (King, John) (Entered: 11/10/2014)
123 RESPONSE regarding 119 MOTION for Reconsideration regarding 114 Order on Motion to Amend/Correct, AND FOR COURT CONFERENCE TO DISCUSS OUTSTANDING DISCOVERY AND MODIFICATION OF SCHEDULING ORDER DEADLINES filed by Annie Taylor, Donald Taylor. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A−Excerpt from Klecker, # 3 Exhibit B−Map, # 4 Exhibit C−Working Agreement, # 5 Exhibit D−General Permit, # 6 Exhibit E−Certificate of Coverage, # 7 Exhibit F−Excerpt from Anderson, # 8 Exhibit G−Excerpt from Larick, # 9 Exhibit H−Excerpt from D. Taylor, # 10 Exhibit I−Excerpt from Dove, # 11 Exhibit J−Excerpt from A. McLawhorn, # 12 Exhibit K−Excerpt from Baldwin, # 13 Exhibit L−Excerpt from Yaggi, # 14 Exhibit M−Excerpt from Jacobson, # 15 Exhibit N−Email from Baldwin, # 16 Exhibit O−Email from Jernigan) (Eglinton, Donalt) (Entered: 11/11/2014)
124 NOTICE by Annie Taylor, Donald Taylor regarding 119 MOTION for Reconsideration regarding 114 Order on Motion to Amend/Correct, AND FOR COURT CONFERENCE TO DISCUSS OUTSTANDING DISCOVERY AND MODIFICATION OF SCHEDULING ORDER DEADLINES, 123 Response,,, 121 Response to Motion, (Eglinton, Donalt) (Entered: 11/11/2014)
REMINDER TO COUNSEL: Pursuant to Chief Judge Dever's Practice and Procedures located on the court's website, http://www.nced.uscourts.gov/judges/dever.aspx, counsel shall provide a courtesy copy of motions and memoranda for documents over 20 pages, by mailing or delivering to the clerk's office in Raleigh. If your recently filed document(s) is less than 20 pages or if you have already mailed the courtesy copy(ies), please disregard this notice. Thank you. The courtesy copies MUST have the court's file stamp numbers on the bottom of every page. (Tripp, S.) (Entered: 11/12/2014)
125 Joint MOTION for Summary Judgment by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc., Annie Taylor, Donald Taylor. (King, John)

Case: 4:12-cv-154 As of: 10/13/2018 04:04 PM EDT 15 of 19

11/21/2014
11/21/2014 11/21/2014 11/21/2014 11/21/2014 11/21/2014 11/21/2014
11/21/2014 11/21/2014
11/21/2014 11/24/2014 11/24/2014

(Entered: 11/21/2014)
126 Memorandum in Support regarding 125 Joint MOTION for Summary Judgment filed by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc., Annie Taylor, Donald Taylor. (Attachments: # 1 Exhibit A− Excerpt from L. Baldwin # 2 Exhibit B, Excerpt from R. Dove # 3 Exhibit C− Excerpt from J. Klecker, # 4 Exhibit D− Excerpt from J. Jacobson, # 5 Exhibit E− Excerpt from M. Yaggi, # 6 Exhibit F− Excerpt from J. Somerday, # 7 Exhibit G− Excerpt from J. Jacobson, # 8 Exhibit H− Excerpt from D. McCracken, # 9 Exhibit I− Excerpt from J. Starr, # 10 Exhibit J− Declaration of V. Spillane) (King, John) (Modified on 11/25/2014 by O'Brien, C. to correct exhibit description pursuant to Section L of the CM/ECF Policies and Procedures Manual.) (Entered: 11/21/2014)
127 NOTICE by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc., Annie Taylor, Donald Taylor regarding 126 Memorandum in Support, of Filing (King, John) (Entered: 11/21/2014)
128 MOTION for Summary Judgment by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc.. (King, John) (Entered: 11/21/2014)
129 Memorandum in Support regarding 128 MOTION for Summary Judgment filed by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc.. (Attachments: # 1 Declaration) (King, John) (Entered: 11/21/2014)
130 NOTICE by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc. regarding 129 Memorandum in Support of Filing (King, John) (Entered: 11/21/2014)
131 MOTION for Summary Judgment by Annie Taylor, Donald Taylor. (Eglinton, Donalt) (Entered: 11/21/2014)
132 Memorandum in Support regarding 131 MOTION for Summary Judgment filed by Annie Taylor, Donald Taylor. (Attachments: # 1 Index, # 2 Exhibit A−Third Declaration of Taylor, # 3 Exhibit B−Excerpt from Klecker, # 4 Exhibit C−Memorandum of Agreement, # 5 Exhibit D−Excerpt from DENR 30.b.6, # 6 Exhibit E−Declaration of Anderson, # 7 Exhibit F−Excerpt from Larick, # 8 Exhibit G−Excerpt from Dove, # 9 Exhibit H−Excerpt from A.McLawhorn, # 10 Exhibit I−Excerpt from Stilley, # 11 Exhibit J−Excerpt from May, # 12 Exhibit K−Excerpt from M.McLawhorn, # 13 Exhibit L−Excerpt from Baldwin, # 14 Exhibit M−Excerpt from WKA 30.b.6, # 15 Exhibit N−Excerpt from NRF 30.b.6, # 16 Exhibit O−Produced Doc−MTPRDEM−2240, # 17 Exhibit P−Excerpt from Jacobson) (Eglinton, Donalt) (Entered: 11/21/2014)
133 NOTICE by Annie Taylor, Donald Taylor regarding 131 MOTION for Summary Judgment , 132 Memorandum in Support,,, (Eglinton, Donalt) (Entered: 11/21/2014)
134 Declaration regarding 133 Notice−(other), 131 MOTION for Summary Judgment , 132 Memorandum in Support,,, by Annie Taylor, Donald Taylor. (Attachments: # 1 Index, # 2 Exhibit A−Google Earth Image, # 3 Exhibit B−Notice to State, # 4 Exhibit C−Permit dated February 20, 2009, # 5 Exhibit D−Certificate of Coverage dated February 4, 2011, # 6 Exhibit E−Permit dated March 7, 2014, # 7 Exhibit F−Certificate of Coverage dated October 1, 2014, # 8 Exhibit G−Benchmark Proposal, # 9 Exhibit H−Field Leveling Plan, # 10 Exhibit I−Report of Inspection, # 11 Exhibit J−Response to Report) (Eglinton, Donalt) (Entered: 11/21/2014)
135 Declaration regarding 133 Notice−(other), 131 MOTION for Summary Judgment , 132 Memorandum in Support,,, by Annie Taylor, Donald Taylor. (Attachments: # 1 Exhibit A−Certificate of Coverage dated February 4, 2011, # 2 Exhibit B−Certificate of Coverage dated October 1, 2014, # 3 Exhibit C−EPA Report, # 4 Exhibit D−Taylors' Response) (Eglinton, Donalt) (Entered: 11/21/2014)
136 AMENDED DOCUMENT by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc.. Amendment to 126 Memorandum in Support, Notice of Filing. (King, John) (Entered: 11/24/2014)
137 AMENDED DOCUMENT by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc.. Amendment to 129 Memorandum in Support Notice of Filing. (King, John) (Entered: 11/24/2014)

Case: 4:12-cv-154 As of: 10/13/2018 04:04 PM EDT 16 of 19

11/25/2014 11/25/2014 11/26/2014 12/05/2014
12/05/2014 12/09/2014 12/10/2014 12/10/2014 12/10/2014 12/10/2014 12/11/2014

NOTICE OF CORRECTION regarding: 126 Memorandum in Support− Pursuant to Section L of the CM/ECF Policies and Procedures Manual, attachments and exhibits must be identified with a clear and complete description in the docket entry text. The clerk's office has corrected the deficiency in this instance, but future filings must adhere to the courts filing policy. (O'Brien, C.) (Entered: 11/25/2014)
138 REPLY to Response to Motion regarding 119 MOTION for Reconsideration regarding 114 Order on Motion to Amend/Correct, AND FOR COURT CONFERENCE TO DISCUSS OUTSTANDING DISCOVERY AND MODIFICATION OF SCHEDULING ORDER DEADLINES by Taylor Defendants filed by Neuse Riverkeeper Foundation, Inc., Waterkeeper Alliance, Inc.. (Jernigan, Robert) (Entered: 11/25/2014)
Motion Submitted to Chief Judge James C. Dever III: 119 MOTION for Reconsideration regarding 114 Order on Motion to Amend/Correct, AND FOR COURT CONFERENCE TO DISCUSS OUTSTANDING DISCOVERY AND MODIFICATION OF SCHEDULING ORDER DEADLINES. (O'Brien, C.) (Entered: 11/26/2014)
139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Judgment , 131 MOTION for Summary Judgment , 125 Joint MOTION for Summary Judgment and, alternatively, MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT, and REQUEST FOR EXPEDITED RULING by Neuse Riverkeeper Foundation, Inc., Waterkeeper Alliance, Inc.. (Attachments: # 1 Exhibit A−−Smolen Declaration, # 2 Text of Proposed Order (Relief Pursuant to Rule 56(d) and Extension of Time), # 3 Text of Proposed Order (Request for Expedited Ruling)) (Green, Stanley) (Entered: 12/05/2014)
140 Memorandum in Support regarding 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Judgment , 131 MOTION for Summary Judgment , 125 Joint MOTION for Summary Judgment and, alternatively, MOTION FOR EXTENSION OF TIME TO RES filed by Neuse Riverkeeper Foundation, Inc., Waterkeeper Alliance, Inc.. (Green, Stanley) (Entered: 12/05/2014)
141 ORDER for Telephonic Conference. A telephonic conference will be held before US Magistrate Judge James E. Gates on Thursday, 11 December 2014, at 1:00 p.m. regarding 93 and 139 . Signed by US Magistrate Judge James E. Gates on 12/9/14. Counsel is reminded to read the order in its entirety for critical deadlines and information. (O'Brien, C.) (Entered: 12/09/2014)
142 RESPONSE regarding 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Judgment , 131 MOTION for Summary Judgment , 125 Joint MOTION for Summary Judgment and, alternatively, MOTION FOR EXTENSION OF TIME TO RES filed by Annie Taylor, Donald Taylor. (Attachments: # 1 Exhibit A−Email from Stanley Green to Donalt Eglinton) (Eglinton, Donalt) (Entered: 12/10/2014)
143 Joint MOTION to Strike 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Judgment , 131 MOTION for Summary Judgment , 125 Joint MOTION for Summary Judgment and, alternatively, MOTION FOR EXTENSION OF TIME TO RES the Declaration of Michael D. Smolen, Ph.D. by Annie Taylor, Donald Taylor. (Eglinton, Donalt) (Entered: 12/10/2014)
144 Memorandum in Support regarding 143 Joint MOTION to Strike 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Judgment , 131 MOTION for Summary Judgment , 125 Joint MOTION for Summary Judgment and, alternatively, MOT filed by Annie Taylor, Donald Taylor. (Attachments: # 1 Exhibit A−Email Correspondence, # 2 Exhibit B−Itemized Expense Report) (Eglinton, Donalt) (Entered: 12/10/2014)
145 RESPONSE regarding 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Judgment , 131 MOTION for Summary Judgment , 125 Joint MOTION for Summary Judgment and, alternatively, MOTION FOR EXTENSION OF TIME TO RES filed by Aaron McLawhorn, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc.. (King, John) (Entered: 12/10/2014)
Set Hearing as to: 93 First MOTION to Compel / Plaintiffs' Notice of Motion to Compel Access to the Taylor Finishing Property, 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Judgment , 131 MOTION for

Case: 4:12-cv-154 As of: 10/13/2018 04:04 PM EDT 17 of 19

12/11/2014 12/11/2014
12/29/2014 01/14/2015
01/22/2015 01/23/2015 01/23/2015 02/06/2015

Summary Judgment , 125 Joint MOTION for Summary Judgment and, alternatively, MOTION FOR EXTENSION OF TIME TO RES. Motion Hearing set for 12/11/2014 01:00 PM Telephonically before US Magistrate Judge James E. Gates. (O'Brien, C.) (Entered: 12/11/2014)
MOTIONS REFERRED to U.S. Magistrate Judge James E. Gates: 143 Joint MOTION to Strike 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Judgment , 131 MOTION for Summary Judgment , 125 Joint MOTION for Summary Judgment and, alternatively, MOT, 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Judgment , 131 MOTION for Summary Judgment , 125 Joint MOTION for Summary Judgment and, alternatively, MOTION FOR EXTENSION OF TIME TO RES. (O'Brien, C.) (Entered: 12/11/2014)
146 ORDER regarding 128 MOTION for Summary Judgment filed by Justin T. McLawhorn, McLawhorn Livestock Farm, Inc., Aaron McLawhorn, 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Judgment , 131 MOTION for Summary Judgment , 125 Joint MOTION for Summary Judgment and, alternatively, MOTION FOR EXTENSION OF TIME TO RES filed by Neuse Riverkeeper Foundation, Inc., Waterkeeper Alliance, Inc., 131 MOTION for Summary Judgment filed by Donald Taylor, Annie Taylor, 125 Joint MOTION for Summary Judgment filed by Donald Taylor, Justin T. McLawhorn, McLawhorn Livestock Farm, Inc., Aaron McLawhorn, Annie Taylor. The deadline for plaintiffs to respond to defendants motions for summary judgment is STAYED pending further order of the court. Signed by US Magistrate Judge James E. Gates on 12/11/14. Counsel is reminded to read the order in its entirety for critical dates and information. (O'Brien, C.) (Entered: 12/11/2014)
147 ORDER denying 104 Motion to Strike: In sum, the court DENIES defendants' motion to strike plaintiffs' jury demand on the issue of liability for civil penalties. Signed by Chief Judge James C. Dever III on 12/29/14. Counsel is reminded to read the order in its entirety for critical deadlines and information. (O'Brien, C.) (Entered: 12/29/2014)
148 ORDER AND MEMORANDUM AND RECOMMENDATION regarding: 93 Plaintiff's Motion to Compel; 139 Defendant's Motion to Strike; 143 Plaintiff's Motion for Relief Pursuant to Rule 56(d); 125 Join Motion for Summary Judgment; 128 Motion for Summary Judgment and 131 Motion for Summary Judgment. In sum, IT IS ORDERED that plaintiff's motion to compel 93 is ALLOWED IN PART AND DENIED IN PART and that defendant's motion to strike 139 is DENIED AS MOOT. IT IS RECOMMENDED that plaintiff's motion for relief pursuant to Rule 56(d) 143 be denied but that the pending motions for summary judgment be DENIED without prejudice. Objections to M&R due by 1/27/2015. Signed by US Magistrate Judge James E. Gates on 1/14/15. Counsel is reminded to read the order in its entirety for critical deadlines and information. (O'Brien, C.) (Entered: 01/14/2015)
149 NOTICE by Neuse Riverkeeper Foundation, Inc., Waterkeeper Alliance, Inc. Notice of Secured Leave (Green, Stanley) (Entered: 01/22/2015)
150 Joint MOTION for Reconsideration regarding 148 MEMORANDUM AND RECOMMENDATIONS regarding 143 Joint MOTION to Strike 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Judgment , 131 MOTION for Summary Judgment , 125 Joint MOTION for Summ by Annie Taylor, Donald Taylor, Taylor Finishing, Inc.. (Eglinton, Donalt) (Entered: 01/23/2015)
151 Memorandum in Support regarding 150 Joint MOTION for Reconsideration regarding 148 MEMORANDUM AND RECOMMENDATIONS regarding 143 Joint MOTION to Strike 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Judgment , 131 MOTION for Sum filed by Annie Taylor, Donald Taylor, Taylor Finishing, Inc.. (Attachments: # 1 Exhibit A−Taylors' Objections and Responses to First Request to Permit Entry Upon Land, # 2 Exhibit B−Letter from Donalt Eglinton to Stanley Green, # 3 Exhibit C−Emails dated June 13−22, 2014) (Eglinton, Donalt) (Entered: 01/23/2015)
152 Memorandum in Opposition regarding 150 Joint MOTION for Reconsideration regarding 148 MEMORANDUM AND RECOMMENDATIONS regarding 143 Joint MOTION to Strike 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Judgment , 131 MOTION for Sum filed by Neuse Riverkeeper Foundation, Inc., Waterkeeper Alliance, Inc.. (Green, Stanley) (Entered: 02/06/2015)

Case: 4:12-cv-154 As of: 10/13/2018 04:04 PM EDT 18 of 19

02/23/2015
02/23/2015
02/23/2015
03/05/2015 03/05/2015 03/12/2015 03/30/2015
03/30/2015 04/13/2015
04/28/2015 05/14/2015

153 Supplemental MOTION for Reconsideration regarding 151 Memorandum in Support,, 148 MEMORANDUM AND RECOMMENDATIONS regarding 143 Joint MOTION to Strike 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Judgment , 131 MOTION for Summary Judgment , 125 Joint MOTION for Summ, 150 Joint MOTION for Reconsideration regarding 148 MEMORANDUM AND RECOMMENDATIONS regarding 143 Joint MOTION to Strike 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Judgment , 131 MOTION for Sum by Annie Taylor, Donald Taylor. (Eglinton, Donalt) (Entered: 02/23/2015)
154 Memorandum in Support regarding 153 Supplemental MOTION for Reconsideration regarding 151 Memorandum in Support,, 148 MEMORANDUM AND RECOMMENDATIONS regarding 143 Joint MOTION to Strike 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Jud filed by Annie Taylor, Donald Taylor. (Attachments: # 1 Index, # 2 Exhibit A−Objections and Responses to Request for Entry, # 3 Exhibit B−Letter dated May 23, 2014, # 4 Exhibit C−Letter dated June 3, 2014, # 5 Exhibit D−Email exchange dated June 13−18, 2014, # 6 Exhibit E−Plaintiffs' Proposed Order, # 7 Exhibit F−Email exchange dated February 13−17, 2015, # 8 Exhibit G−Email exchange dated February 13−20, 2015) (Eglinton, Donalt) (Entered: 02/23/2015)
155 REPLY to Response to Motion regarding 150 Joint MOTION for Reconsideration regarding 148 MEMORANDUM AND RECOMMENDATIONS regarding 143 Joint MOTION to Strike 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Judgment , 131 MOTION for Sum filed by Annie Taylor, Donald Taylor. (Attachments: # 1 Exhibit A−Letter dated May 2, 2014, # 2 Exhibit B−Biosecurity Guide, # 3 Exhibit C−General Biosecurity Practices) (Eglinton, Donalt) (Entered: 02/23/2015)
156 NOTICE by Annie Taylor, Donald Taylor Renewed and Restated Request for Expedited Ruling (Eglinton, Donalt) (Entered: 03/05/2015)
Remark: 156 submitted to Chief Judge James C. Dever III for his review and consideration. (O'Brien, C.) (Entered: 03/05/2015)
157 RESPONSE in Opposition regarding 153 Supplemental MOTION for Reconsideration regarding 151 Memorandum in Support,, 148 MEMORANDUM AND RECOMMENDATIONS regarding 143 Joint MOTION to Strike 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Jud filed by Neuse Riverkeeper Foundation, Inc., Waterkeeper Alliance, Inc.. (Green, Stanley) (Entered: 03/12/2015)
158 REPLY to Response to Motion regarding 153 Supplemental MOTION for Reconsideration regarding 151 Memorandum in Support,, 148 MEMORANDUM AND RECOMMENDATIONS regarding 143 Joint MOTION to Strike 139 MOTION Relief Pursuant to Rule 56(d) regarding 128 MOTION for Summary Jud filed by Annie Taylor, Donald Taylor, Taylor Finishing, Inc.. (Attachments: # 1 Exhibit A − Indemnification Agreement, # 2 Exhibit B − Email Between D. Eglinton and K. Foster) (Eglinton, Donalt) (Entered: 03/30/2015)
Motions Submitted to Chief Judge James C. Dever III: 148 MEMORANDUM AND RECOMMENDATION, 150 Joint MOTION for Reconsideration, and 153 Supplemental Motion for Reconsideration. (O'Brien, C.) (Entered: 03/30/2015)
159 ORDER: The court adopts the Memorandum and Recommendation and Order 148 and overrules the objections. Defendants' joint motion for reconsideration and clarification 150 and the Taylor defendants' supplemental motion for reconsideration 153 are DENIED. Defendants' motion to strike 143 , defendants' motion to expedite 153 , and plaintiffs' motion to reconsider 119 are DISMISSED as moot. Signed by Chief Judge James C. Dever III on 4/13/2015. Counsel is reminded to read the order in its entirety for critical information. (O'Brien, C.) (Entered: 04/13/2015)
160 NOTICE by Neuse Riverkeeper Foundation, Inc., Waterkeeper Alliance, Inc. −−NOTICE OF SUBPOENA (Green, Stanley) (Entered: 04/28/2015)
161 NOTICE by Neuse Riverkeeper Foundation, Inc., Waterkeeper Alliance, Inc. Notice of Subpoena (Green, Stanley) (Entered: 05/14/2015)

Case: 4:12-cv-154 As of: 10/13/2018 04:04 PM EDT 19 of 19

05/14/2015 05/18/2015 06/03/2015 06/04/2015
06/29/2018 07/02/2018 07/25/2018 07/25/2018 08/13/2018 08/14/2018 08/29/2018

162 NOTICE by Neuse Riverkeeper Foundation, Inc., Waterkeeper Alliance, Inc. Amended Notice of Subpoena (Green, Stanley) (Entered: 05/14/2015)
163 NOTICE by Annie Taylor, Donald Taylor of Filing of Notice of Bankruptcy Case Filing (Attachments: # 1 Exhibit Notice of Bankruptcy Case Filing) (Eglinton, Donalt) (Entered: 05/18/2015)
164 ORDER STAYING CASE: Pursuant to 11 U.S.C. § 362, the action in this court is STAYED pending resolution of the bankruptcy case. Parties shall notify the court within 14 days of settlement or resolution of the bankruptcy case. Signed by Chief Judge James C. Dever, III on 6/3/2015. (Lee, L.) (Entered: 06/03/2015)
165 ORDER − This case comes before the court sua sponte to place in the public record correspondence submitted by counsel directly to the undersigned magistrate judge (without filing in the court's CM/ECF case management system). Given the need for formal motions practice, the parties' submissions did not effectively bring any request for relief before the court, and does not deem any such request to be pending before it. Counsel should read this order in its entirety for pertinent information. Signed by Magistrate Judge James E. Gates on 6/4/2015. (Attachments: # 1 Exhibit 1− Letters and email exchanges between counsel, # 2 Exhibit 2− Letter and emails between counsel dated 5/28/15, # 3 Exhibit 3− Letter and emails exchanes between counsel dated 5/27/15 through 5/29/15, # 4 Exhibit 4− Letters and email exchanges between dated 5/14/15 through 5/15/15; 5/20/15 through 5/21/15 and 5/27/15 through 5/29/15) (Rudd, D.) (Entered: 06/04/2015)
166 Notice filed by Waterkeeper Alliance, Inc. NOTICE OF LODGING OF PROPOSED CONSENT DECREE. (Attachments: # 1 Text of Proposed Order Consent Decree) (Green, Stanley) (Entered: 06/29/2018)
166 Notice submitted to Chief Judge James C. Dever III. (Briggeman, N.) (Entered: 07/02/2018)
167 Notice filed by U.S. Department of Justice regarding 166 Notice − other of the United States' Comments on the Proposed Consent Judgment. (Turner, Frederick) (Entered: 07/25/2018)
167 Notice of the United States' Comments on the Proposed Consent Judgment submitted to Chief Judge James C. Dever III. (Sellers, N.) (Entered: 07/25/2018)
168 CONSENT DECREE − Signed by Chief Judge James C. Dever III on 8/13/2018. (Sellers, N.) (Entered: 08/13/2018)
169 STIPULATION of Dismissal Voluntary Dismissal with Prejudice by Neuse Riverkeeper Foundation, Inc., Waterkeeper Alliance, Inc. (Green, Stanley) (Entered: 08/14/2018)
170 STATUS REPORT JOINT STATEMENT REGARDING STATUS OF CASE by Neuse Riverkeeper Foundation, Inc. (Green, Stanley) (Entered: 08/29/2018)

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA
N o . 4 : 1 2 - C V- 1 5 4

North Carolina Environmental Justice Network, Neuse Riverkeeper Foundation, Inc., and Waterkeeper Alliance, Inc.
Plaintiffs,
v.
Taylor Finishing, Inc., Mr. Donald Taylor, Mr. Frederick A. McLawhorn, Mr. Justin T. McLawhorn, and Mr. Aaron McLawhorn,
Defendants.

COMPLAINT AND JURY DEMAND 33 U.S.C. § 1365 42 U.S.C. § 6972

Plaintiffs North Carolina Environmental Justice Network (“NCEJN”), Neuse Riverkeeper Foundation, Inc. (“NRF”), and Waterkeeper Alliance, Inc., by their attorneys, Debevoise & Plimpton LLP, Waterkeeper Alliance, and Strauch Fitzgerald & Green allege as follows for their complaint against Mr. Donald Taylor (“Defendant Taylor”) and Taylor Finishing, Inc. (formerly McLawhorn Livestock Farm (Banks)) (“Defendant Facility”), Mr. Frederick A. McLawhorn, Mr. Justin T. McLawhorn, and Mr. Aaron McLawhorn (“Defendants McLawhorns”) (collectively, “Defendants”) for violations of federal environmental laws.
PRELIMINARY STATEMENT 1. This case seeks to address the pollution and endangerment to human health and the environment caused by the illegal management, discharge and disposal of swine waste at Taylor Finishing, a concentrated animal feeding operation (“CAFO”), and its present and former owners. Defendants have caused the release of pollutants, including nitrogen, phosphorus and

Case 4:12-cv-00154-D Document 1 Filed 07/27/12 Page 1 of 27

bacteria, onto the lands and into waters surrounding Defendant Facility which is located in the coastal plain of North Carolina within the Neuse River Basin. Defendants have caused, and continue to cause, illegal discharges of pollutants without a permit, illegal open dumping of swine waste, and/or illegal treatment, storage, and disposal of swine waste, creating an imminent and substantial endangerment to human health and the environment in violation of federal law. 2. Plaintiffs bring this citizen suit under three separate provisions of federal law.
a. First, under section 505 of the Clean Water Act (“CWA”), as amended, 33 U.S.C. § 1365, Plaintiffs seek a declaratory judgment, injunctive relief, the imposition of civil penalties, and the award of costs, including attorneys’ and expert witness’ fees, for Defendant Taylor’s and Defendant Facility’s repeated violation of the CWA by continuously discharging pollutants into the waters of the United States without a National Pollution Discharge Elimination System (“NPDES”) permit. 33 U.S.C. §§ 1311(a), 1342, 1362(14).
b. Second, under section 7002(a)(1)(A) of Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(A), Plaintiffs seek a declaratory judgment, injunctive relief, the imposition of civil penalties, and the award of costs, including attorneys’ and expert witness’ fees, for Defendant Taylor’s and Defendant Facility’s repeated violations of the RCRA, Section 4005(a), 42 U.S.C. § 6945(a), prohibition against the open dumping of solid waste in the form of industrial swine waste.
c. Third, under section 7002(a)(1)(B) of RCRA 42 U.S.C. § 6972(a)(1)(B), Plaintiffs seek a declaratory judgment, injunctive relief, the imposition of civil penalties, and the award of costs, including attorneys’ fees and expert witness’ fees, for Defendants McLawhorns’, Defendant Taylor’s, and Defendant Facility’s contribution to the past and present treatment,
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storage, and disposal of solid waste that may present an imminent and substantial endangerment to the health and/or environment.
JURISDICTION AND VENUE A. JURISDICTION 3. This Court has personal jurisdiction over Defendants because Defendants are organized under the laws of North Carolina and/or have a principal place of business and/or reside within the Eastern District of North Carolina, and/or conduct substantial business activities within the Eastern District of North Carolina, and because the acts, events, or omissions at issue have occurred, and are continuing to occur, in the Eastern District of North Carolina. 4. This Court has subject matter jurisdiction under section 505(a) of the CWA, 33 U.S.C. § 1365(a) and 28 U.S.C. § 1331. The relief requested is authorized pursuant to 33 U.S.C. §§ 1319 and 1365(a) and 28 U.S.C. §§ 2201 and 2202. 5. This Court has subject matter jurisdiction under sections 7002(a)(1)(A) & (B) of RCRA, 42 U.S.C. § 6972(a)(1)(A) & (B). The relief requested is authorized pursuant to 42 U.S.C. §§ 6972(a) and (e), 6928(a) and (g), and 28 U.S.C. §§ 2201 and 2202. 6. On December 22, 2010, January 11, 2011, and April 27, 2012 Plaintiffs gave notice of the CWA and RCRA violations and their intent to file suit to the Administrator of the United States Environmental Protection Agency (“EPA”), to the North Carolina Department of Environment & Natural Resources and the Division of Soil & Water (“NCDENR”), and to Defendants, as required by section 505(b)(1)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A) and by section 7002(b)(1)(A), 42 U.S.C. § 6972(b)(1)(A). 7. More than 60 days have passed since the notice was served and neither the EPA nor the State of North Carolina have commenced or are diligently prosecuting a civil or criminal action
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to address the violations of the CWA. In addition, neither the EPA nor the State of North Carolina have commenced or are diligently prosecuting an administrative civil penalty action under the CWA, undersection 309(g)(6) of the CWA, 33 U.S.C. § 1319(g)(6), to address the violations prior to the issuance of the notice letter. A copy of the notice letters are attached hereto as Exhibit A and Exhibit B. Since service of the notice on Defendants, violations of the CWA have continued and are continuing. 8. More than 90 days have passed since the notice was served and neither the EPA nor the State of North Carolina have commenced or are diligently prosecuting a civil or criminal action to address the violations under the RCRA, as required by section 7002 of the RCRA, 42 U.S.C. § 6972(b). In addition, neither the EPA nor the State of North Carolina have commenced or are diligently prosecuting an action under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), engaged in a removal action under section 104 of CERCLA, incurred costs to investigate a Remedial Investigation and Feasibility Study, or obtained a court order pursuant to section 106 of CERCLA. Since service of the notice on Defendants, violations of the RCRA have continued and are continuing.
B. VENUE 9. Venue is proper in the Eastern District of North Carolina pursuant to section 505(c)(1) of the CWA, 33 U.S.C. § 1365(c)(1) because the violations are occurring within the District. Venue is also proper in the Eastern District of North Carolina pursuant to section 1391(b) of Title 28, 28 U.S.C. § 1391(b) because Defendants reside in the district, and the discharges, acts and omissions occurred in the District. 10. Venue is appropriate in the Eastern District of North Carolina pursuant to section 7002(a)(2) of the RCRA, 42 U.S.C. § 6972(a)(2), because the violation occurred in the District
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and because the pollution threatens the health and environment of the District. Venue also is proper in the Eastern District of North Carolina pursuant to section 1391(b) of Title 28, 28 U.S.C. § 1391(b) because Defendants reside in the District, and the disposals, acts, and omissions occurred in the District.
PARTIES A. PLAINTIFF NORTH CAROLINA ENVIRONMENTAL JUSTICE NETWORK 11. Plaintiff North Carolina Environmental Justice Network (“NCEJN”) sues on behalf of itself and its members. 12. NCEJN is a not-for-profit membership corporation organized under the laws of North Carolina, with offices in Tillery, North Carolina. It is concerned both with the environmental and human health effects caused by industrial animal feeding operations, including CAFOs, and with protecting and preserving North Carolina lands and waterways, including the Long Branch, Trent River, Neuse River, Neuse Estuary, and their associated lands and waters (“Neuse River Basin”). 13. NCEJN’s organizational interests are being and will be impacted by Defendants’ failure to properly dispose of swine waste because those discharges impair the habitability, recreational value, and aesthetic benefits of the affected waterways and communities. 14. NCEJN has approximately 400 members across the State of North Carolina. Approximately 75 to 400 of NCEJN’s members live in the Neuse River Basin, and approximately two next to and within the general vicinity of Defendant Facility. NCEJN’s members are concerned with the negative environmental, economic, health, aesthetic and recreational impacts on the Neuse River Basin, including the Trent River, Neuse River and Neuse River Estuary, as a result of Defendants’ unlawful conduct.
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15. NCEJN’s members use, recreate in, and enjoy the Neuse River Basin, including its lands and waters, in the following ways:
a. NCEJN’s members live within the watershed impacted by Defendant Facility. By causing swine waste to contaminate the waters, lands, and air of the Neuse River Basin, Defendants have significantly undermined NCEJN’s members’ quality of life.
b. NCEJN’s members recreate, or would recreate, by fishing or boating in the Neuse River Basin. By causing runoff of swine waste to drain into the Long Branch, the Trent River, the Neuse River, and the Neuse River Estuary, Defendants have limited and/or prevented NCEJN’s members from engaging in these activities.
c. NCEJN’s members hike, and observe and enjoy, or would hike, and observe and enjoy, wildlife in the watershed around Defendant Facility. By causing pollutants from the swine waste to contaminate the area surrounding Defendant Facility, and by causing runoff of swine waste to drain into the Long Branch, the Trent River, the Neuse River, and Neuse River Estuary, Defendants have limited and/or prevented NCEJN’s members from engaging in those activities.
d. NCEJN’s members hunt, or would hunt, wildlife in the watershed around Defendant Facility. By causing pollutants from the swine waste to contaminate the area surrounding Defendant Facility, and by causing runoff of swine waste to drain into the Long Branch, the Trent River, the Neuse River, and the Neuse River Estuary, areas in which these animals live, feed and drink, Defendants have limited and/or prevented NCEJN’s members from engaging in those activities.
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e. NCEJN’s members use, or would use, the outdoor air to dry their clothes, and ventilate their homes. By causing airborne pollutants and odor from swine waste to contaminate the area surrounding Defendant Facility, Defendants have limited and/or prevented NCEJN members from engaging in those activities.
f. NCEJN’s members have an aesthetic and health interest in keeping the impacted waters in the Neuse River Basin free of animal manure and other discharged pollutants.
16. Defendants’ unlawful discharges have negatively impacted and continue to negatively impact NCEJN’s members’ interests in the Neuse River Basin. 17. Enforcement of the CWA and RCRA will help to restore and protect water quality in the Neuse River Basin, thereby promoting the interests of NCEJN and improving the use and enjoyment of the area by its members.
B. PLAINTIFF NEUSE RIVERKEEPER FOUNDATION, INC. 18. Plaintiff Neuse Riverkeeper Foundation, Inc. (“NRF”) sues on behalf of itself and its members. 19. NRF is a not-for-profit membership corporation organized under the laws of the State of North Carolina, with offices in New Bern, North Carolina. NRF is dedicated to the preservation, protection and defense of the environment, wildlife and natural resources of the Neuse River Basin, including Long Branch, the Neuse River, the Neuse Estuary, the Trent River, and other waters and lands affected by Defendants’ unlawful activities. The economic, health, recreational, aesthetic, and environmental interests of NRF and its members have been, are being, and will be adversely impacted by Defendants’ unlawful waste management practices and discharges of swine waste and the resulting impairment of the lands and waters in the Neuse
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River Basin. NRF has approximately 450 members across the state of North Carolina, many of whom reside in the Neuse River Basin, next to and within the general vicinity of Defendant Facility. NRF’s members are concerned with the negative environmental, economic, health, aesthetic, and recreational impacts on the Neuse River Basin, including Long Branch, the Trent River, the Neuse River, and the Neuse River Estuary, caused by Defendants’ unlawful waste management practices and discharges. NRF’s members use, recreate in, and enjoy the Neuse River Basin in the following ways:
a. NRF’s members live within the watershed impacted by Defendant Facility. By causing swine waste to contaminate the waters and lands of the watershed, Defendants have significantly undermined NRF’s members’ quality of life.
b. NRF’s members earn or would earn a living, including by fishing and photography on the waters impacted by discharges from Defendant Facility. By causing swine waste to drain into Long Branch, the Trent River, the Neuse River and the Neuse River Estuary, Defendants have limited and/or prevented NRF’s members from earning a living through fishing, photography, or other commercial activity on these waters.
c. NRF’s members recreate, or would recreate, by fishing, swimming, rafting, kayaking, canoeing, and other boating in and around the waters impacted by discharges from Defendant Facility. By causing swine waste to drain into Long Branch, the Trent River, Neuse River, and the Neuse River Estuary, Defendants have limited and/or prevented NRF’s members from engaging in these activities.
d. NRF’s members hike and observe and enjoy wildlife in the watershed around Defendant Facility. By causing pollutants from the swine waste to contaminate the area
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surrounding Defendant Facility, Defendants have limited and/or prevented NRF’s members from engaging in these activities.
e. NRF’s members eat, or would eat fish from the Neuse River Estuary, Neuse River, and Trent River.
f. NRF and its members have an environmental, aesthetic and health interest in keeping the Neuse River Basin and impacted waters free of animal manure and other discharged pollutants.
20. Defendants’ unlawful discharges have negatively impacted and continue to negatively impact NRF and it members’ interests in, and use and enjoyment of, the Neuse River Basin. 21. Enforcement of the CWA and RCRA will help to restore and protect water quality in the Neuse River Basin, thereby promoting the interests of NRF and improving the use and enjoyment of the area by its members.
C. PLAINTIFF WATERKEEPER ALLIANCE, INC. 22. Plaintiff Waterkeeper Alliance, Inc. (hereinafter “Waterkeeper”) sues on behalf of itself and its 11,500 individual members. 23. Waterkeeper is a national non-profit organized under the laws of the State of New York representing the interest of nearly 200 member watershed groups, including NRF. It has member organizations in North Carolina representing numerous North Carolina members, including the approximately 450 NRF members. Waterkeeper Alliance promotes water quality protection and the restoration of waters, including the Neuse River Basin, through litigation, education, scientific research, and other legal means; advocates for compliance with environmental laws
9 Case 4:12-cv-00154-D Document 1 Filed 07/27/12 Page 9 of 27

such as the CWA and RCRA; responds to citizen complaints; identifies threats to water bodies; and generally works to guarantee the public’s right to a pollution-free environment. 24. In addition to its member organizations, Waterkeeper has individual members who reside and earn a living in and on the Neuse River Basin, including the Neuse River, Neuse River Estuary and Trent River, in North Carolina. These members use the Neuse River Basin for recreation, including fishing, swimming, hiking, boating, wildlife viewing, bird-watching, photography, and other uses. Some of these members own property along the Neuse and Trent Rivers. By causing swine waste to contaminate the waters and lands of the Neuse Basin, Defendants have significantly undermined Waterkeeper Alliance’s members’ quality of life; limited and/or prevented Waterkeeper Alliance’s members from earning a living through fishing, photography, or other commercial activity on these waters; limited and/or prevented Waterkeeper Alliances’s members from engaging in recreational activities and wildlife viewing; and adversely affected their aesthetic enjoyment of the affected land and waters. 25. Defendants’ unlawful discharges have negatively impacted and continue to negatively impact Waterkeeper Alliance’s and its members’ interests in and use and enjoyment of the Neuse River Basin, including the Trent River, Neuse River, and Neuse River Estuary. 26. Enforcement of the CWA and RCRA will help to restore and protect water quality in the Neuse River Basin, thereby promoting the interests of Waterkeeper Alliance and its member organizations and improving the use and enjoyment of the area by its members.
D. DEFENDANTS 27. Defendant Facility, Taylor Finishing, Inc., is a corporation organized under the laws of the State of North Carolina and doing business in Trenton, North Carolina.
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28. Defendant Facility is a swine concentrated animal feeding operation (“CAFO”) located in the Coastal Plain of North Carolina, in Jones County, North Carolina and has the official mailing address of 498 E. Pleasant Hill Rd., Pink Hill, NC, 28572-8719. 29. Defendants McLawhorns were the representatives, registered agents, owners, and/or operators of Defendant Facility, known then as McLawhorn Livestock Farm (Banks), until on or about November 23, 2010. Their mailing address is 5903 Highway 17S New Bern, NC 28562, 5909 Highway 17S New Bern, NC 28562, and/or 6001 Highway 17S New Bern, NC 28562. 30. Defendant Donald E. Taylor has been the representative, registered agent, owner, and/or operator of Defendant Facility since on or about November 23, 2010, when he purchased Defendant Facility from Defendants McLawhorns. Defendant Taylor changed the name of Defendant Facility from McLawhorn Livestock Farm (Banks) to Taylor Finishing, Inc. 31. All Defendants were or are engaged in, and are and/or were responsible for, the operation of a swine animal feeding operation, the generation of large volumes of swine waste and the handling, storage, disposal and discharges of swine waste and associated pollutants onto lands and into waters surrounding Defendant Facility and the Neuse River Basin. All Defendants are responsible for the violations of federal law respectively alleged herein against them, as well as the resultant injury to lands and waters in the Neuse River Basin. 32. All parties are “persons” within the meaning of Section 502 of the CWA, 33 U.S.C. § 1362(5), and Section 1004 of the RCRA, 42 U.S.C. § 6903(15).
FACTUAL ALLEGATIONS A. POLLUTION FROM SWINE WASTE 33. Pollutants found in swine waste include nutrients, such as nitrogen, ammonia, nitrates, phosphorus, and pathogenic bacteria, viruses and parasites, as well as other pollutants, that can
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endanger human health and environment, cause pollution and cause violations of water quality standards when released onto land or into water. 34. Elevated levels of nutrients in waters can cause harmful algal blooms, excessive algal growth, toxic blue-green algae production, and eutrophication of water bodies. In turn, these blooms can produce “dead zones” in water bodies where dissolved oxygen levels are so low that most aquatic life cannot survive and can cause fish kills. Excessive algae in drinking water sources can cause closure of water bodies to fishing and recreation, as well as result in the production of harmful disinfection byproducts in drinking water, such as trihalmethanes and haloacetic acids, that can produce serious adverse effects on human health. 35. Fecal coliform and E. coli bacteria are microbial pathogens associated with human and animal waste. High levels of fecal bacteria can indicate a water body is not safe for body-contact recreation, for consumption of shellfish, or for use as drinking water. Excessive amounts of fecal bacteria in water used by humans can cause diarrhea, cramps, nausea, headaches, and other symptoms, as well as indicate the presence of other pathogenic bacteria, viruses and protozoa that can present serious risk to human health.
B. NEUSE RIVER BASIN 36. The Neuse River Basin is the third largest river basin in North Carolina and is contained entirely within the boundaries of North Carolina. The Long Branch is a tributary to the Trent River, the Trent River is a tributary to the Neuse River, and the Neuse River Estuary and all of these water bodies are contained within the Neuse River Basin. 37. The Neuse River feeds one of the nation’s largest and most productive coastal estuaries, the Albermarle-Pamlico Sound, a nursery for 90 percent of the commercial seafood species caught in North Carolina. The Neuse River Basin is an important spawning area for numerous
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species such as herring, shad, and striped bass, and provides habitat for several important recreational and commercial species, including catfish, bass, flounder, blue crabs, shrimp, and oysters, as well as several rare and/or endangered species. The Neuse River Basin is heavily used for outdoor recreational activities, such as hiking, biking, wildlife viewing, recreational boating, recreational and commercial fishing, and commercial shellfish harvesting. 38. Excessive nutrient loading is the primary stressor causing water quality impairment in the Neuse River Basin. The water quality and use of the waters in the Neuse River Basin for recreational and commercial activities has been adversely affected by the growth of excess algae and eutrophication from nutrient pollution. 39. The already declining Neuse River Basin water quality has been adversely impacted by the increase in the number of CAFOs in the Neuse River watershed and the release of nutrients from these facilities into the surrounding waters and onto the surrounding land. This is, in part, because many of these CAFOs have ditches and tile drains that serve as direct conveyances for the highly nutrient-laden water from CAFOs to surface waters. 40. As a result of nutrient pollution, all of the waters in the Neuse River watershed are designated Nutrient Sensitive Waters – waters that require reductions in nutrients such as nitrogen and phosphorus.
C. DEFENDANT FACILITY’S SITE DESCRIPTION AND WASTE DISPOSAL PRACTICES 41. Defendant Facility is located in the Neuse River Basin. 42. It is bordered on the east by a tributary of the Long Branch and on the northwest, west, and southwest by the Long Branch. The Long Branch is a tributary to the Trent River which is a tributary of the Neuse River.
13 Case 4:12-cv-00154-D Document 1 Filed 07/27/12 Page 13 of 27

43. Defendant Facility is a Large CAFO, as defined by 40 CFR § 122.23, that confines or stables approximately 10,200 feeder-to-finish swine, and is designed to hold 4,380 wean-tofeeder swine. 44. In or about July 1998, July 2007, and October 2009, North Carolina’s Department of Environment and Natural Resources issued Defendant Facility a Certificate of Coverage (Number AWS520002), requiring the operation of the Defendant Facility’s animal waste collection, treatment, storage, and land application system in accordance with the state General Permit AWG100000, which requires compliance with a “zero discharge” standard, prohibiting any discharges of pollutants to waters of the state. 45. Defendants have not applied for, and do not possess, a federal NPDES permit for the Defendant Facility as required by the CWA. 46. Defendant Facility and the land where swine waste is applied is traversed by drainage ditches that carry water and associated pollutants from the facility and land application area into the Long Branch which in turn flows to the Trent River and then to the Neuse River, which are waters of the United States. The Neuse River empties into the Albermarle-Pamilico Sound. The Neuse River is listed as a nutrient-impaired water under the CWA. 47. Defendant Facility is underlain by shallow groundwater that discharges to the Long Branch which in turn flows to the Trent River and then to the Neuse River. 48. Defendant Facility has disposed, and is continuing to dispose of large volumes of swine waste on land at the facility in excess of any legitimate crop fertilization requirement, on bare ground, directly into water, into drainage ditches, and generally in a manner that causes runoff of waste, discharges of pollutants, and contamination of groundwater. Discharges occur, without limitation, through direct releases to water, groundwater transport, and runoff generated by
14 Case 4:12-cv-00154-D Document 1 Filed 07/27/12 Page 14 of 27

rainfall from the areas where Defendants have stored and disposed of swine waste at Defendant Facility. 49. Defendant Facility has a pattern of historic and continuing illegal discharges and releases of pollutants from swine waste to land, groundwater, and surface waters of the Neuse River Basin. These historic and continuing discharges, releases, and waste management practices pose an imminent and substantial endangerment to human health and the environment in the Trent and Neuse River watersheds. 50. Swine waste generated at Defendant Facility has been improperly treated, stored, and disposed of in a manner that has created an “open dump” and has polluted the surrounding land, groundwater and surface water. 51. Water sampling and investigations conducted by Plaintiffs have confirmed the discharge of pollutants from Defendant Facility to waters of the United States. Sampling of the Long Branch and a ditch channeling runoff from Defendant Facility conducted by Plaintiffs shows elevated levels of nutrients, including nitrogen and phosphorus, and fecal coliform in discharges from Defendant Facility. 52. Sampling conducted by Plaintiff detected elevated levels of fecal coliform in water running downstream from Defendant Facility in the Long Branch and the ditch, without limitation, on or about the following dates: September 29, 2008, October 20, 2008, October 27, 2008, November 6, 2008, December 12, 2008, January 14, 2009, February 10, 2009, February 19, 2009, March 16, 2009, March 23, 2009, August 4, 2009, November 23, 2009, December 2, 2009, December 3, 2009, February 23, 2010, June 17, 2010, June 29, 2010, August 5, 2010, August 25, 2010, October 1, 2010, October 5, 2010, November 17, 2010, December 2, 2010, January 18, 2011, March 11, 2011, March 17, 2011, July 14, 2011, August 5. 2011, August 15,
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2011, September 6, 2011, September 14, 2011, September 22, 2011, October 17, 2011, January 12, 2012, June 13, 2012, and June 26, 2012. 53. Sample results show fecal coliform counts as high as 29000 MPN/100ml, 49000 MPN/100ml, 63000 MPN/100ml, 6800 MPN/100ml, 8000 MPN/100ml, 20000 MPN/100ml, 33000 MPN/100ml, and 87000 MPN/ml, greater than 72 times over North Carolina standards for surface waters. 54. Sampling conducted by Plaintiffs also detected elevated levels of nutrients in water running downstream from Defendant Facility, in the Long Branch and the ditch, without limitation, on or about the following dates: September 29, 2008, October 20, 2008, October 27, 2008, November 6 and 19, 2008, December 12, 2008, January 14, 2009, February 10 and 19, 2009, March 16 and 23, 2009, August 4, 2009, November 23, 2009, December 2 and 3, 2009, February 23, 2010, June 17 and 29, 2010, August 5 and 25, 2010, October 1 and 5, 2010, November 17, 2010, December 2, 2010, January 18, 2011, March 11 and 17, 2011, May 3, 2011, July 14, 2011, August 5 and 15, 2011, September 6, 14 and 22, 2011, October 17, 2011, January 12 and 25, 2012, February 21 and 27, 2012, April 16, 2012, and June 13 and 26, 2012. 55. Photographs taken on or about December 1, 2009, February 19, 2010, August 25, 2010, October 2 and 4, 2010, November 15, 2010, February 18, 2011, and April 6, 2011, and August 5, 2011 also document the discharge of swine waste effluent from Defendant Facility into the Long Branch. These photographs show the color, flow, and quantity of effluent flowing from Defendant Facility’s spray-fields and into the Long Branch. The photographs also show the direct application of effluent to drainage ditches, which is contrary to the agronomic use of effluent as fertilizer. Application of waste materials in this manner places substantial quantities
16 Case 4:12-cv-00154-D Document 1 Filed 07/27/12 Page 16 of 27

of effluent directly into ditches; the ditches, in turn, direct the effluent off the property and into the Long Branch. 56. Photographs taken on or about December 1, 2009, February 19, 2010, July 13, 2010, October 2 and 4, 2010; January 5, 2011, January 18, 2011, February 18, 2011, May 19, 2011 and August 5, 2011 show the application of effluent to fields at rates greater than necessary or desirable for crop fertilization, causing “ponding” and over-saturation of fields with effluent. 57. Defendant Facility has a history of violations recorded by the North Carolina Department of Environment and Natural Resources, Division of Water Quality (“DWQ”), including overirrigation of fields, excessive ponding waste on fields, and land application of waste on bare ground. The DWQ found violations on January 28 and March 11, 2010.
CLAIMS A. COUNT ONE: DEFENDANT FACILITY AND DEFENDANT TAYLOR HAVE AND
CONTINUE TO DISCHARGE POLLUTANTS WITHOUT AN NPDES PERMIT IN VIOLATION OF SECTION 505 OF THE CWA. 58. Plaintiffs restate and re-allege herein the foregoing allegations. 59. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the discharge of pollutants from a point source into waters of the United States unless pursuant to the terms of an NPDES permit issued under Section 402 of the CWA, 33 U.S.C. § 1342. 60. Defendant Facility is a swine Large CAFO and is a point source under the CWA pursuant to 42 U.S.C. § 1362(14) and 40 C.F.R. 122.23(b)(2) and (4). 61. Discrete conveyances, including but not limited to ditches, spray equipment, vehicles, waste lagoons and impoundments, ventilation fans and subsurface drainage tiles, are point sources under the CWA pursuant to 42 U.S.C. § 1362(14).
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62. Defendant Facility and Defendant Taylor have discharged and continue to discharge pollutants at and from Defendant Facility, a point source, and through discrete conveyances, to waters of the United States, including the Long Branch, the Trent River and the Neuse River. 33 U.S.C. § 1362(6). 63. Defendant Facility and Defendant Taylor have discharged and continue to discharge pollutants from a point source into waters of the United States without obtaining an NPDES permit issued under section 402 of the CWA, 33 U.S.C. § 1342. 64. By discharging and continuing to discharge pollutants such as solid waste, biological waste, and agricultural waste, including bacteria, nitrogen and nitrogen compounds, phosphorus and phosphorus compounds, ammonia, and other pollutants into waters of the United States without an NPDES permit, Defendant Facility and Defendant Taylor have violated and continue to violate section 301(a) of the CWA, 33 U.S.C. §1311(a). 65. Defendant Facility is constructed, managed, and operated such that pollutants are and will continue to be discharged into waters of the United States. Therefore, Defendant Facility will remain in violation of the CWA for each day that it operates without an NPDES permit. Consequently, Defendant Facility’s and Defendant Taylor’s violations are continuing, in that they are at least intermittent or sporadic. 66. Defendant Facility’s and Defendant Taylor’s violations of the CWA discharge provisions are recent, frequent, and likely to continue. 67. Defendant Facility and Defendant Taylor should be subject to an injunction in accordance with 33 U.S.C. § 1365(a).
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68. Defendant Facility and Defendant Taylor are subject to assessment of civil penalties, as well as all costs of litigation (including Plaintiffs’ reasonable attorneys and expert witness fees), pursuant to sections 309(d) and 505 of the CWA, 33 U.S.C. §§ 1319(d) and 1365(a) and (d). 69. For the purpose of assessing the maximum penalty for which Defendant Facility and Defendant Taylor may be liable, each unlawful discharge of waste constitutes a separate violation of section 301(a) pursuant to section 309(d), 33 USC § 1319(d). Based thereon, Defendant Facility and Defendant Taylor are liable for civil penalties of up to $37,500 per day for each violation. 33 U.S.C. § 1319(d),(g); 40 C.F.R. § 19.4, Table 1.
B. COUNT TWO: DEFENDANT FACILITY AND DEFENDANT TAYLOR HAVE VIOLATED AND CONTINUE TO VIOLATE THE RCRA PROHIBITION AGAINST OPEN DUMPING
70. Plaintiffs re-state and re-allege herein the foregoing allegations. 71. Swine waste from Defendant Facility is “solid waste” within the meaning of section 1004(27) of RCRA, 42 U.S.C. § 6903(27), relevant regulatory definitions, including those in 40 C.F.R. Part 261, and section 4005 of RCRA, 42 U.S.C. § 6945. 72. Defendant Facility and Defendant Taylor do not operate “a sanitary landfill which meets the criteria promulgated under section 6944 . . . and which is not a facility for disposal of hazardous waste,” and therefore operate an open dump under the meaning of section 1004(14), 42 U.S.C. § 6903(14), and all relevant regulatory definitions, including those in 40 C.F.R. Part 257. 73. Defendant Facility, including all contiguous land, structures, other appurtenances, and improvements on the land, is a “facility” within the meaning of the RCRA’s open dumping provision, 40 C.F.R. § 257.2. 74. The disposal, dumping, leaking, and placing of swine waste onto lands in and around Defendant Facility has been applied at greater than agronomic rates for the purposes of the crops
19 Case 4:12-cv-00154-D Document 1 Filed 07/27/12 Page 19 of 27

planted and is in excess of any legitimate fertilization purpose under 40 C.F.R. §§ 257.2 and 261.4. 75. When Defendant Facility and Defendant Taylor over-apply swine waste in quantities that are greater than necessary or desirable for crop fertilization they “dispose” of “solid waste” under the meaning of the RCRA. See 42 U.S.C. §§ 6903(3), 6903(27). 76. Defendant Facility and Defendant Taylor have engaged and continue to engage in open dumping of solid waste through discharging, dumping, leaking, and placing of swine waste onto lands surrounding Defendant Facility and into nearby surface water. See 42 U.S.C. § 6903(14), 40 C.F.R. Part 257. 77. Defendant Facility and Defendant Taylor have further discharged and continue to discharge waste and associated pollutants onto lands and into drainage ditches and surface waters surrounding Defendant Facility. 78. Defendant Facility’s and Defendant Taylor’s “open dumping” practices are ongoing, and Defendant Facility and Defendant Taylor continue to operate Defendant Facility without providing for the proper disposal of animal waste. 79. As described above, Defendant Facility’s and Defendant Taylor’s animal waste disposal and waste management practices constitute “open dumping” in violation of 42 U.S.C. § 6945(a) and applicable EPA regulations. 80. Defendant Facility is constructed, managed, and operated such that it will continue to be in violation of the RCRA by open dumping in violation of 42 U.S.C. § 6945(a). 81. Defendant Facility and Defendant Taylor should be subject to an injunction ordering the cessation of ongoing violations, pursuant to 42 U.S.C. § 6945(a), and 42 U.S.C. § 6972(a)(1)(A) & (B).
20 Case 4:12-cv-00154-D Document 1 Filed 07/27/12 Page 20 of 27

82. Defendant Facility and Defendant Taylor are subject to assessment of civil penalties, as well as all costs of litigation (including Plaintiffs’ reasonable attorneys and expert witness fees), pursuant to 42 U.S.C. § 6945(a), 42 U.S.C. § 6972(a)(1)(A), and 42 U.S.C. § 6928(a) & (g). 83. For the purpose of assessing the maximum penalty for which Defendant Facility and Defendant Taylor may be liable, each occurrence of open dumping constitutes a separate violation of 42 U.S.C. § 6945(a) and applicable EPA regulations. Based thereon, Defendant Facility and Defendant Taylor are liable for civil penalties of up to $37,500 per day for each violation. 42 U.S.C. § 6928(a) & (g); 40 C.F.R. § 19.4, Table 1.
C. COUNT THREE: DEFENDANTS’ PAST AND PRESENT WASTE DISPOSAL PRACTICES POSE AN IMMINENT AND SUBSTANTIAL ENDANGERMENT TO HEALTH OR THE ENVIRONMENT
84. Plaintiffs re-state and re-allege herein the foregoing allegations. 85. RCRA prohibits “any person . . . including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility,” from disposing of solid waste which “may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B). 86. Defendant Facility has been and is a generator of swine waste. 87. Swine waste is a solid waste under the RCRA, 42 U.S.C. § 6903(27), 40 C.F.R. § 261.2. 88. Defendants McLawhorns were generators of swine waste and/or were representatives, agents, owners, and/or operators of a treatment, storage, or disposal facility for swine waste. 89. Defendant Taylor has been and continues to be a generator of swine waste and/or was and is a representative, agent, owner, and/or operator of a treatment, storage, or disposal facility for swine waste.
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90. All Defendants are “persons” under the RCRA who have in the past and/or continue to contribute to the past or present handling, storage, treatment, transportation, or disposal of swine waste at Defendant Facility and its adjacent lands and waters. 91. Runoff, leaching, and discharges of animal waste and its constituents impairs water quality, causes fish and shellfish closures, adversely affects aquatic life and wildlife, makes water unsafe for drinking and recreation, causes violations of water quality standards, and contributes to the formation of potentially carcinogenic disinfection byproducts in drinking water, toxic blue-green algae, and toxic Pfiesteria piscicida. 92. An imminent and substantial endangerment to health or the environment in the Neuse River Basin may be presented, and is in fact presented, as a direct and proximate result of Defendants’ past and present contribution to the handling, storage, treatment, transportation, or disposal of swine waste at Defendant Facility and its adjacent lands and waters, which presents potential exposure to numerous pollutants, bacteria, viruses, and pathogens. 93. Defendant Facility is constructed, managed, and operated such that it will continue to be in violation of the RCRA by its treatment, storage, and disposal of waste that may present an imminent and substantial endangerment to health and the environment in violation of 42 U.S.C. § 6972. 94. Defendant Facility and Defendant Taylor should be subject to an injunction ordering them to cease violations, to remediate Defendant Facility and the lands and waters affected by Defendants’ conduct, and to take all such other action as may be necessary to abate the imminent and substantial endangerment to health or the environment, pursuant to 42 U.S.C. § 6972(a)(1)(B).
22 Case 4:12-cv-00154-D Document 1 Filed 07/27/12 Page 22 of 27

95. Defendants are subject to assessment of civil penalties, as well as all costs of litigation (including Plaintiffs’ reasonable attorneys and expert witness fees), pursuant to 42 U.S.C. § 6972(a)(1)(B) and 42 U.S.C. § 6928(a) & (g). 96. For the purpose of assessing the maximum penalty for which Defendants may be liable, each occurrence of open dumping constitutes a separate violation of 42 U.S.C. § 6972(a)(1)(B) and applicable EPA regulations. Based thereon, Defendants are liable for civil penalties of up to $37,500 per day for each violation. 42 U.S.C. § 6928(a) & (g); 40 C.F.R. § 19.4, Table 1.
RELIEF REQUESTED WHEREFORE, Plaintiffs seek a judgment from this Court against Defendants as follows: 97. Declare Defendants to have violated and to be in violation of the CWA and RCRA, 33 U.S.C. §§ 1311 and 1342 and RCRA, 42 U.S.C. §§ 6972(a)(1)(A) and 6972(a)(1)(B); 98. Order Defendant Facility and Defendant Taylor to immediately cease and desist from discharging pollutants waste into waterways of the United States except in compliance with without fulfilling the mandatory permitting requirements of the CWA and enjoin Defendant Facility and Defendant Taylor from discharging or engaging in activities likely to discharge any pollutants to waters of the United States except where such discharge is due to or a direct result of a “25-year 24-hour rainfall event for that location”; 99. Enjoin Defendant Facility and Defendant Taylor from operating Defendant Facility in such a manner as will result in the further violation of the CWA and RCRA; 100. Order Defendant Facility and Defendant Taylor to obtain an NPDES permit; 101. Order Defendant Facility and Defendant Taylor to cease all storage, treatment, disposal, and release of solid waste that constitutes a violation of the RCRA;
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102. Order a comprehensive assessment of Defendant Facility and surrounding environment by an independent engineer appointed by the Court upon recommendation by the parties to ensure compliance with the CWA and RCRA and a comprehensive remediation of Defendant Facility that will restore the environment and abate all discharges and releases of pollutants, restore water quality, and ameliorate the imminent and substantial endangerment to human health and the environment, with costs to be borne by all Defendants; 103. Order Defendant McLawhorns to contribute, to the extent they are at fault, to the monetary costs of cleanup and remediation necessary to restore the environment and water quality and ameliorate the imminent and substantial endangerment to human health and the environment, as authorized by the Court’s injunctive powers under the RCRA, 42 U.S.C. § 6972(a). 104. Authorize Plaintiffs, for the period beginning on the date of the Court’s order and running for five years after Defendant Facility and Defendant Taylor achieve compliance with the CWA, RCRA, and an NPDES permit, to sample or arrange for sampling of any waste, soil, groundwater, and surface water at Defendant Facility, including upstream and downstream sampling of surface water, with costs to be borne by Defendant Facility and/or Defendant Taylor; 105. Order Defendants to provide Plaintiffs, for the period beginning on the date of the Court’s order and running five years after Defendants achieve compliance with the CWA, RCRA, and an NPDES permit, with a copy of all monitoring results, reports and other documents which Defendants have submitted or submit to the State or Federal government related to Defendant Facility when submitted to these authorities and all monitoring results
24 Case 4:12-cv-00154-D Document 1 Filed 07/27/12 Page 24 of 27

which are not submitted to the State or Federal government within 30 days of their receipt by Defendants; 106. Order Defendant Facility and Defendant Taylor to pay appropriate civil penalties for each day of each violation of section 301(a), pursuant to sections 309(d) and 505(a) of the CWA, 33 U.S.C. §§ 1319(d) and 1365(a), including violations listed in this complaint and those that may come to light throughout the course of this litigation; 107. Order Defendant Facility and Defendant Taylor to pay appropriate civil penalties for each day of each violation of the RCRA, 42 U.S.C. § 6972(a)(1)(A) and (B) as authorized by 42 U.S.C. §§ 6928(a) and (g), including those violations listed in this Complaint and those that may come to light in the course of this litigation; 108. Order Defendants McLawhorns to pay appropriate civil penalties for each day of each violation of the RCRA, 42 U.S.C. § 6972(a)(1)(B) as authorized by 42 U.S.C. §§ 6928(a) and (g), including those violations listed in this Complaint and those that may come to light in the course of this litigation; 109. Award Plaintiffs costs (including reasonable attorney and expert witness fees) as authorized by section 505(d) of the CWA, 33 U.S.C. § 1365(d) and RCRA section 7002(e), 42 U.S.C. § 6972(e); and 110. Award such other relief as this Court deems appropriate.
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Dated: July 27, 2012.

Respectfully submitted,

/s/ Bethany Davis Noll

/s/ Kelly H. Foster

Bethany A. Davis Noll, NYS Bar No. 4541116

Kelly H. Foster

Chinelo E. Diké-Minor, NYS Bar No. 4564787

Waterkeeper Alliance

Michael T. Leigh, NYS Bar No. 4873394

P.O. Box 4483

Kimberly R. Barnashuk, NYS Bar No. 5055561 (of counsel) Tulsa, Oklahoma 74159

Debevoise & Plimpton LLP

(918) 619-9073

919 Third Avenue

kfoster@waterkeeper.org

New York, NY 10022

Oklahoma State Bar No. 17067

(212) 909-6000

Counsel for Plaintiffs Waterkeeper

badavisn@debevoise.com

Alliance, Inc.; Neuse RiverKeeper

cedike@debevoise.com

Foundation

mtleigh@debevoise.com

krbarnas@debevoise.com

/s/ Stanley B. Green

Counsel for Plaintiff NCEJN

Stanley B. Green

Strauch Fitzgerald & Green

118 So. Cherry St

Winston-Salem, NC 27101

(336) 837-1064

sgreen@sfandglaw.com

North Carolina State Bar No. 25539

Local Civil Rule 83.1 Counsel

Counsel for All Plaintiffs

26 Case 4:12-cv-00154-D Document 1 Filed 07/27/12 Page 26 of 27

JURY DEMAND

Plaintiffs hereby demand a trial by jury as to all issues triable thereby in the above-

captioned action.

/s/ Bethany Davis Noll

/s/ Kelly H. Foster

Bethany A. Davis Noll, NYS Bar No. 4541116

Kelly H. Foster

Chinelo E. Diké-Minor, NYS Bar No. 4564787

Waterkeeper Alliance

Michael T. Leigh, NYS Bar No. 4873394

P.O. Box 4483

Kimberly R. Barnashuk, NYS Bar No. 5055561 (of counsel) Tulsa, Oklahoma 74159

Debevoise & Plimpton LLP

(918) 619-9073

919 Third Avenue

kfoster@waterkeeper.org

New York, NY 10022

Oklahoma State Bar No. 17067

(212) 909-6000

Counsel for Plaintiffs Waterkeeper

badavisn@debevoise.com

Alliance, Inc.; Neuse RiverKeeper

cedike@debevoise.com

Foundation

mtleigh@debevoise.com

krbarnas@debevoise.com

/s/ Stanley B. Green

Counsel for Plaintiff NCEJN

Stanley B. Green

Strauch Fitzgerald & Green

118 So. Cherry St

Winston-Salem, NC 27101

(336) 837-1064

sgreen@sfandglaw.com

North Carolina State Bar No. 25539

Local Civil Rule 83.1 Counsel

Counsel for All Plaintiffs

27 Case 4:12-cv-00154-D Document 1 Filed 07/27/12 Page 27 of 27

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION 4:12-CV-154-D

NORTH CAROLINA ENVIRONMENTAL )

JUSTICE NETWORK; NEUSE

)

RIVERKEEPER FOUNDATION, INC.; and )

WATERKEEPER ALLIANCE, INC.,

)

)

Plaintiffs,

)

)

v.

)

)

DONALD TAYLOR and ANNIE TAYLOR, )

individually and d/b/a TAYLOR

)

FINISHING; MCLAWHORN LIVESTOCK )

FARM, INC.; JUSTIN T. MCLAWHORN; )

and AARON MCLAWHORN,

)

)

Defendants.

)

)

ORDER and MEORANDUM AND RECOMMENDATION

This case comes before the court on two motions by plaintiffs Waterkeeper Alliance, Inc. and Neuse Riverkeeper Foundation, Inc. (“plaintiffs”): (1) a motion (D.E. 93) to compel inspection and to extend time1 (“motion to compel”); and (2) a motion (D.E. 139) for relief pursuant to Fed. R. Civ. P. 56(d) or, alternatively, for extension of the time to respond to defendants’ motions for summary judgment pursuant to Rule 6(b) (“Rule 56(d) motion”). Also before the court is a motion (D.E. 143) by defendants Donald Taylor (“Mr. Taylor”) and Annie Taylor, individually and d/b/a Taylor Finishing (collectively “Taylor defendants”), and McLawhorn Livestock Farm, Inc., Justin T. McLawhorn, and Aaron McLawhorn (collectively “McLawhorn defendants”) (all defendants collectively “defendants”). Defendants’ motion seeks to strike the declaration of a purported expert (D.E. 139-1) submitted by plaintiffs in support of their Rule 56(d) motion. All three motions were referred to the undersigned. For the reasons

1 Now-dismissed plaintiff North Carolina Environmental Justice Network was also a party to this motion.

Case 4:12-cv-00154-D Document 148 Filed 01/14/15 Page 1 of 21

stated below, plaintiffs’ motion to compel will be allowed in part and denied in part; defendants’ motion to strike will be denied as moot; and it will be recommended that plaintiffs’ Rule 56(d) motion be denied, but that comparable relief be provided under Rule 16.
BACKGROUND I. PLAINTIFFS’ CLAIMS
Plaintiffs, along with the North Carolina Environmental Justice Network (“Network”), commenced this federal citizens environmental action on 27 July 2012. (See Compl. (D.E. 1)). With leave of court, they filed their second amended complaint (D.E. 65)—the most current version—on 25 April 2013. The claims against the Network were dismissed with prejudice by stipulation on 21 October 2014 (D.E. 110).
The property which is the subject of the second amended complaint (“Taylor Facility”) is a hog-processing farm in Jones County presently owned by the Taylor defendants and previously owned by the McLawhorn defendants. (2d Am. Compl. ¶¶ 28-31). Plaintiffs allege that defendants’ illegal management, discharge, and disposal of swine waste has resulted in the release of pollutants onto the land and waters in the Neuse River Basin area of the coastal plain of North Carolina. (Id., e.g., ¶ 1). Plaintiffs assert claims for violations of: (1) section 505 of the Clean Water Act, 33 U.S.C. § 1365, by continuing to discharge pollutants without a permit (2d Am. Compl. ¶¶ 58-70); (2) section 7002(a)(1)(A) of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(A), by allowing open dumping (2d Am. Compl. ¶¶ 7184); and (3) section 7002(a)(1)(B) of RCRA, 42 U.S.C. § 6972(a)(1)(B), by posing an imminent and substantial endangerment to health or the environment (2d Am. Compl. ¶¶ 85-97). As relief, plaintiffs seek a declaratory judgment, injunctive relief, civil penalties, costs, and other relief.
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(Id. ¶¶ 98-111). Defendants deny the material allegations in plaintiffs’ second amended complaint. (See generally Ans. to 2d Am. Compl. (D.E. 68, 75)). II. RELEVANT CASE HISTORY
The court entered a Scheduling Order (D.E. 81) on 19 November 2013, adopting the parties’ Discovery Plan (D.E. 78) with minor modifications of certain proposed deadlines. The Scheduling Order provided for: the commencement of discovery on 29 October 2013 (Sch. Ord. 1; Disc. Plan ¶¶ 3, 4.d); completion of fact discovery by 1 June 2014 (Sch. Ord. 1; Disc. Plan ¶ 4.i); disclosure of expert reports by 8 August 2014 (Sch. Ord. ¶ 1); completion of all discovery by 3 October 2014 (id. ¶ 2); and filing of potentially dispositive motions by 7 November 2014 (id. ¶ 3). Plaintiffs served on the Taylor defendants a request for inspection of the Taylor Facility on 22 January 2014 (D.E. 95 at 5-13). By agreement of plaintiffs, the Taylor defendants did not serve their response (D.E. 95 at 15-32) to the inspection request until 16 April 2014, broadly objecting to it. Over the ensuing two months, plaintiffs attempted to resolve their disputes with the Taylor defendants regarding the inspection request. Some, but not all, differences were resolved. On 20 June 2014, plaintiffs filed the instant motion to compel. Prior to the filing, the Taylor defendants agreed to extension of the fact discovery deadline to 1 July 2014. (See 13 June 2014 Email from Taylor Defs.’ Counsel (D.E. 95 at 74)).
In their motion, plaintiffs sought access to the Taylor Facility for a total of about six and a half months between 15 August 2014 and 1 July 2015 to take photographs, obtain samples, and perform other inspection activities. (See Pls.’ Proposed Compel Ord. (D.E. 93-1) ¶¶ 1, 3-8). Plaintiffs’ motion also sought extension of, among other deadlines, those for expert reports and the completion of discovery to 7 August 2015 and 2 October 2015, respectively. (Id. ¶ 2).
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Plaintiffs did not produce any expert reports by the 8 August 2014 deadline established in the Scheduling Order or thereafter. However, on 3 November 2014, they emailed to defendants’ counsel supplemental initial disclosures identifying at least five expert witnesses. (See Defs.’ Strike Mot. Mem. (D.E. 144) 5; 3 Nov. 2014 Email from Pls.’ Counsel (D.E. 144-1 at 2)).2
On 23 October 2014, on defendants’ motion, the court extended the deadline for defendants’ potentially dispositive motions to 21 November 2014.3 (See D.E. 114). On 21 November 2014, defendants filed three separate motions for summary judgment. (See D.E. 125137). Plaintiffs filed their motion for relief under Rule 56(d) on 5 December 2014.
In support of their Rule 56(d) motion, plaintiffs filed a declaration of Michael D. Smolen, Ph.D. (D.E. 139-1), a purported expert in the environmental matters at issue. On 10 December 2014, defendants filed their motion to strike the Smolen Declaration.
The court held a telephone conference with counsel on the motions on 11 December 2014. After the telephone conference, the court entered an order (D.E. 146) staying the deadline for plaintiffs to respond to defendants’ summary judgment motions pending further order of the court.
PLAINTIFFS’ MOTION TO COMPEL (D.E. 93) (Allowed in Part and Denied in Part)
I. INSPECTION A. Applicable Legal Standards The Federal Civil Rules enable parties to obtain information by serving requests for
discovery on each other, including requests to permit entry on land to “inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.” Fed. R.
2 The supplemental initial disclosures do not appear to have been filed with the court. 3 Plaintiffs seek reconsideration of the extension order. (See D.E. 119).
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Civ. P. 34(a)(2); see generally Fed. R. Civ. P. 26-37. Rule 26(b) provides for a broad scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). At the same time, Rule 26(c) authorizes the court “for good cause, [to] issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The Fourth Circuit has held that, pursuant to this provision, “the degree to which [a] proposed inspection will aid in the search for truth must be balanced against the burdens and dangers created by the inspection.” Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 908 (4th Cir. 1978); see also Clay v. Consol Penn. Coal Co., LLC, 5:12-cv92, 2013 WL 3819922, at *4 (N.D.W. Va. 12 June 2013) (“Any dangers must be balanced against the relevance and need for the inspection.”); Johnson v. Mundy Indus. Contractors, Inc., 7:01CV99–BO3, 2002 WL 31464984, at *2 (E.D.N.C. 15 Mar. 2002) (“[A]n inquiry into when to compel an inspection goes beyond mere ‘relevance’ and must balance the need presented by the moving party against the ‘burdens and dangers created by the inspection.’” (quoting Belcher, 588 F.2d at 908)). The need for such balancing is rooted in the reality that “entry upon a party's premises may entail greater burdens and risks than mere production of documents,” as to which the general relevance standard of Rule 26(b) routinely controls. Belcher, 588 F.2d at 908. Thus, the court must exercise “precision and care in the formulation of inspection orders.” Id. at 911. It has been held that the burden rests on the objecting party to convince the court that the
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inspection requested is unnecessary. See Arkansas Game & Fish Comm’n v. United States, 74 Fed. Cl. 426, 432 (16 Nov. 2006) (citing 8A Fed. Prac. & Proced. Civ. § 2214).
B. Analysis 1. Groundwater Sampling. As set out in their proposed order, plaintiffs seek to install nine sampling wells on the Taylor Facility at locations originally identified in their request for inspection and to take groundwater samples from the wells on a biweekly basis. (Pls.’ Proposed Compel Ord. ¶ 5 & Ex. A). The proposed period for sampling was 15 August to 1 November 2014 and 1 March to 1 July 2015, meaning sampling would occur over six and a half months during a period spanning ten and a half months. (Id. ¶ 1). The gap between 1 November 2014 and 1 March 2015 apparently reflects a period during which swine waste effluent is not being sprayed on fields and groundwater sampling would not be as meaningful as it otherwise might be. In their inspection request, plaintiffs had sought a sampling period of similar duration—six months, running from 17 February to 8 August 2014—but with sampling occurring on a weekly basis. (Insp. Req. 1-2, 3 ¶ 8). In negotiations with the Taylor defendants, plaintiffs proposed a sampling period of four and a half months—15 June to 1 November 2014— also with weekly sampling. (30 May 2014 Ltr. from Pls.’ Counsel (D.E. 95 at 47-50) 2).4 The Taylor defendants oppose any groundwater sampling. In a declaration by Mr. Taylor supporting the Taylor defendants’ response to plaintiffs’ motion to compel, he details the burdens and risks that would be imposed upon the Taylor Facility by installation of the requested groundwater wells and the weekly sampling sought in the inspection request. (2d Taylor Dec. (D.E. 99)). According to the declaration, the Taylor Facility is operated by three people—Mr.
4 Plaintiffs submitted this letter and other correspondence among counsel from their negotiations over plaintiffs’ inspection request in support of the motion to compel. (See D.E. 95 at 34-75). The Taylor defendants did not object to submission of this evidence and themselves discuss the negotiations in their memorandum opposing the motion. Both sides have therefore waived any objection they might otherwise have had to evidence of their negotiations.
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Taylor, his son, and a laborer. (Id. ¶ 10). Mr. Taylor would have to monitor installation and sampling, thereby tying up for significant periods one-third of the labor force needed to operate the facility; installation would increase the risk of exposure of the 9,000 animals at the facility to the PED virus, which can kill entire herds, and likely agitate and disturb the animals; installation as well as operation and removal of the wells in the vicinity of three swine waste lagoons creates a risk of damaging the lagoons, which are presently in a condition satisfactory to the North Carolina regulatory agencies and the United States Environmental Protection Agency; and installation would impede operation of equipment needed to maintain the lagoons. (Id. ¶ 15).5
Plaintiffs offered no expert or scientific evidence responsive to the concerns raised in the Taylor Declaration. They do cite, in a footnote, to naked allegations in their second amended complaint regarding surface water sampling from areas adjacent to the Taylor Facility, photographs of the Taylor Facility, and two violation notices from state water quality officials. (Pls.’ Compel Mot. Mem. (D.E. 94) 6 n.3); 2d Am. Compl. ¶¶ 53-58). Many of the sampling results and the two violation notices predate the Taylor defendants’ taking ownership of the Taylor Facility on 23 November 2010. (See 2d Am. Compl. ¶ 31; Taylor Defs.’ Ans. to 2d Am. Compl. ¶¶ 53-58).
Plaintiffs also submitted a letter from their counsel to the Taylor defendants’ counsel transmitting various sampling results and photographs culled from discovery to support their inspection request. (3 June 2014 Ltr. from Pls.’ Counsel (D.E. 95 at 56-71)). As with the
5 The Taylor defendants also challenged the groundwater sampling plaintiffs requested on legal grounds—that is, that groundwater contamination is not within the scope of plaintiffs’ claims. The court need not resolve this issue given the impermissibility of the groundwater sampling for the reasons stated.
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allegations from the second amended complaint, there is no explanation of this evidence, including where the sampling occurred and how it supports plaintiffs’ inspection request.6
The cases plaintiffs cite as precedent for the groundwater and other sampling they seek is readily distinguishable. None is binding precedent.7
Based on the record before it, the court finds that the Taylor defendants have
demonstrated that the installation, operation, and removal of the groundwater wells, even if
sampling is done on a biweekly basis, presents burdens and risks that outweigh the potential
benefits to be obtained from such sampling. Plaintiffs’ request to install and operate
groundwater wells on the Taylor Facility will accordingly be denied.
2. Surface Water Sampling. Plaintiffs seek to take surface water samples at 15
locations originally identified in their inspection request as well as from additional surface water
conveyances they identify upon inspection, on a biweekly basis, as opposed to a weekly basis as
sought in their inspection request. (Pls.’ Proposed Compel Ord. ¶ 6 & Ex. B). The length of the
requested period of sampling—six and a half months—is the same as proposed for groundwater
sampling in both the proposed order and inspection request, which, as indicated, plaintiffs agreed
to reduce to four and a half months in negotiations. (Id. ¶ 1; Insp. Req. 1-2, 3-4 ¶ 9; 30 May
2014 Ltr. from Pls.’ Counsel (D.E. 95 at 47-50) 2).
6 According to the Smolen Declaration, plaintiffs had retained Dr. Smolen by the time they served their inspection request in January 2014. (Smolen Decl. ¶¶ 7, 8). It therefore appears that plaintiffs could readily have presented expert evidence in support of their motion to compel, but chose not to do so. The Smolen Declaration, filed 5 December 2014, is not properly considered in evaluation of plaintiffs’ motion to compel because, among other reasons, it was filed months after any supporting materials for that motion, filed in June 2014, were due. Notably, plaintiffs cite to at least one case in support of their motion to compel in which the moving party did support its inspection request with expert evidence. See United States v. Acquest Wehrle, LLC, No. 09-CV-637C(F), 2010 WL 1708528, at *1 (W.D.N.Y. 27 Apr. 2010). 7 Notwithstanding plaintiffs’ characterization of the groundwater and other inspection activities they seek as routine, one of the cases it cites describes the request for soil sampling there as “perhaps extraordinary.” Versatile Metals, Inc. v. Union Corp., Civ. A. No. 85-4085, 1986 WL 8720, at *3 (E.D. Pa. 8 Aug. 1986).
8
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The Taylor defendants appear to agree to surface water sampling on two occasions, although the number of locations remains in dispute. (See 3 June 2014 Ltr. from Taylor Defs.’ Counsel (D.E. 95 at 52-54) 2). It is apparent from the Taylor Declaration that provision of access on even a biweekly basis as proposed by plaintiffs in their motion would place a substantial burden on the Taylor defendants.
The court concludes that sampling on four occasions over a period of three months would strike an appropriate balance between plaintiffs’ need for the sampling and the burden such sampling places on the Taylor defendants. This period also accounts for plaintiffs’ delay and the other considerations discussed below in connection with their request for extension of time. Assuming, as the record suggests, that sampling could begin by March, the three months allowed for it equates to extension of the fact discovery deadline and thereby the deadline for completion of this sampling to 31 May 2015. The sampling needs to be done on dates reasonably agreed to by the Taylor defendants8 to properly address the burden the sampling will place on them. To avoid undue burden to the Taylor defendants, the number of locations at which sampling may occur shall be limited to 15, comprised of locations identified in Exhibit B to plaintiffs’ proposed order (D.E. 93-1 at 5) and/or other locations reasonably agreed to by the Taylor defendants.
3. Soil Sampling. Plaintiffs seek to take soil samples on three fields on two separate dates selected by them. (Pls.’ Proposed Compel Ord. ¶ 4). On each field, three cores would be drilled to a depth of 24 inches and 20 cores would be drilled to a depth of 6 inches. (Id.). In their inspection request, plaintiffs sought soil sampling on dates agreed to by the parties (Insp. Req. ¶ 11), but otherwise the terms of that request are the same as those proposed by plaintiffs in their motion.
8 “Reasonably agreed to” signifies that agreement may not be unreasonably withheld.
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In their response to the motion, the Taylor defendants agreed to eight six-inch soil samples on two occasions. (See Taylor Defs.’ Compel Mot. Mem. (D.E. 97) 3). Four samples would be from locations identified in the inspection request and four from mutually acceptable locations. (Id.).
In accordance with plaintiffs’ and the Taylor defendants’ apparent agreement, the court will permit soil sampling on two occasions during the extended discovery period. The soil sampling shall occur on dates reasonably agreed to by the Taylor defendants on which plaintiffs are conducting surface water sampling.
An article from the North Carolina Department of Agriculture & Consumer Services entitled, “Soil sampling basics,” submitted by plaintiffs, states that for agricultural samples 15 to 20 cores should be taken from each area. (“Soil sampling basics” (D.E. 95 at 77-78) 1 (N.C. Dep’t of Agric. & Consumer Servs. Sept. 2013)). In contrast, as noted, plaintiffs seek to take 23 cores per field. The court will limit plaintiffs to 15 cores per field on the grounds that plaintiffs’ own evidence indicates this number is sufficient and the taking of additional cores would require additional time, placing an unjustified burden on the Taylor defendants’ labor force. Although the article specifies for agricultural land a maximum depth of six to eight inches (“Soil sampling basics” 2), it is not apparent that samples of 24 inches would require more time or otherwise impose an unnecessary burden on the Taylor defendants. Accordingly, up to 3 of the core samples from each field may be 24 inches in depth.
The Taylor defendants have not shown that sampling at any particular location would impose a greater burden on them than any other location. Plaintiffs will therefore be permitted to select the locations in the three fields from which the soil samples are to be taken.
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4. Inspection, Measurement, and Photography. In their proposed order, plaintiffs seek to inspect, measure, and photograph the Taylor Facility, the draining infrastructure, waste management structures, and wastewater as follows: (i) the Taylor Facility, including buildings, outdoor storage areas, equipment, waste land application areas, the perimeter of the property, the property line, and all fences; (ii) draining infrastructure, including, but not limited to, perennial streams, intermittent steams, catch basins, pipes, gutters, tile drains, ditches, swales and/or other water conveyances on or leading from the Taylor Facility; (iii) waste management structures, including waste lagoons; and (iv) wastewater in lagoons, sprayed and/or ponding on the property, and in open conveyances. (Pls.’ Proposed Compel Ord. ¶ 3). These proposed inspection activities are somewhat less expansive than those sought in the inspection request. (See Ins. Req. ¶ 2). While the Taylor defendants objected to these activities in their response to plaintiffs’ inspection request, they did not address them specifically in their memorandum in response to plaintiffs’ motion to compel, and appeared to have agreed to them in negotiations. (See, e.g., 23 May 2014 Ltr. from Taylor Defs.’ Counsel (D.E. 95 at 39-45) 6; 18 June 2014 Email from Pls.’ Counsel (D.E. 95 at 73)).
The court finds that these inspection activities are relevant and would not impose an undue burden on the Taylor defendants, provided that they are conducted on one or more dates reasonably agreed to by the Taylor defendants on which plaintiffs are performing surface water sampling. The court will therefore allow the inspection, measurement, and photographic activities on these terms.
5. Lagoon Sampling. Plaintiffs and the Taylor defendants appear to have agreed and the court will order that plaintiffs may take samples from each of the Taylor Facility’s three lagoons on two separate occasions. (See Pls.’ Proposed Compel Ord. ¶ 7; Taylor Defs.’ Compel
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Mot. Mem. 3). The sampling shall be on dates reasonably agreed to by the Taylor defendants on which plaintiffs are performing surface water sampling to adequately address the burdens the sampling imposes on the Taylor defendants. The samples may be of surface and bottom lagoon waste, as sought by plaintiffs. (Pls.’ Proposed Compel Ord. ¶ 7).
6. Sampling of Central Pivot Sprayer. The parties appear to agree and the court will order that plaintiffs may on one occasion sample swine waste effluent from the central pivot sprayer as it is being applied to sprayfields. (See, e.g., Pls.’ Proposed Compel Ord. ¶ 8; 3 June 2014 Ltr. from Taylor Defs.’ Counsel 3). This sampling shall occur on a date reasonably agreed to by the Taylor defendants on which plaintiffs are performing surface water sampling.
7. Biosecurity and Other Conditions on Inspection Activities. Plaintiffs represent in their proposed order that the parties have reached agreement on biosecurity and other conditions on plaintiffs’ inspection activities. (Pls.’ Proposed Compel Ord. ¶¶ 9-13). The Taylor defendants do not contest that representation in their response memorandum. The court will accordingly require that these conditions apply. These conditions are as follows, except as otherwise provided herein:
a. Plaintiffs shall identify by name and position the specific contingent of people who will be going on the Taylor Facility in order to conduct any inspection activities, and no person about whom the Taylor defendants state a reasoned objection shall be permitted to enter the property;
b. Each water and soil sample taken by plaintiffs from the Taylor Facility during the Sampling Period shall be divided into two portions, one of which may be tested by plaintiffs and the other of which will be provided to the Taylor defendants, both of which to be labeled
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with the date, time, and location where the sample of was taken and the identity of the individual taking the sample.
c. Plaintiffs shall enter an agreement with the Taylor defendants pursuant to which plaintiffs agree to indemnify and hold harmless the Taylor defendants from all loss incurred by the plaintiffs as a result of any action taken in connection with the Plaintiffs’ entry on the Taylor Facility and the inspection activities.
d. Plaintiffs and all people in plaintiffs’ contingent will follow and adhere to appropriate farm biosecurity and exclusion measures and guidelines recommended by the North Carolina Department of Agriculture & Consumer Services, Veterinary Division when at the Taylor Facility.
IT IS THEREFORE ORDERED that the portion of plaintiffs’ motion to compel (D.E. 93) seeking an order compelling inspection of the Taylor Facility is ALLOWED IN PART and DENIED IN PART on the foregoing terms. The parties may agree to modifications in the terms of the various inspection activities authorized herein, provided that any such modifications shall be subject to and shall not extend the deadline for completion of fact discovery. The parties shall confer expeditiously in good faith in an effort to resolve without court intervention any disputes that arise regarding performance of the inspection activities provided for herein. II. EXTENSION OF TIME
A. Applicable Legal Standards With exceptions not relevant here, Rule 16 requires that a district court enter a scheduling order setting deadlines for completion of discovery and addressing other scheduling matters. Fed. R. Civ. P. 16(b)(1), (3). “A schedule may be modified only for good cause . . . .” Fed. R. Civ. P. 16(b)(4). The good cause modification provision specific to Rule 16(b)(4) takes
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precedence over the generally applicable extension provisions of Rule 6(b)(1). E.g., Dilmar Oil Co. v. Federated Mut. Ins. Co., 986 F. Supp. 959, 980 (D.S.C. 1997), aff’d, 129 F.3d 116 (4th Cir. 1997); Corkrey v. Internal Revenue Serv., 192 F.R.D. 66, 67 (N.D.N.Y. 2000). The good cause provision of Rule 16(b)(4) does not focus on the prejudice to the non-movant or bad faith of the moving party, but rather on the moving party’s diligence. Dilmar Oil Co., 986 F. Supp. at 980; see also Cook v. Howard, 484 Fed. Appx. 805, 815 (4th Cir. 2012) (“‘Good cause’ requires ‘the party seeking relief [to] show that the deadlines cannot reasonably be met despite the party’s diligence,’ and whatever other factors are also considered, ‘the good-cause standard will not be satisfied if the [district] court concludes that the party seeking relief (or that party’s attorney) has not acted diligently in compliance with the schedule.’”) (quoting 6A Charles Alan Wright, et al., Fed. Prac. & Proc. Civ. § 1522.2 (2010)); McDonald v. Marlboro County, 5:12CV1725-RBHKDW, 2013 WL 6580631, at *4 (D.S.C. 16 Dec. 2013) (“[T]he key to the ‘good cause’ analysis of Rule 16 is whether the party was diligent in seeking to amend.”); Fed. R. Civ. P. 16(b), advisory committee’s note—1983 amendment (“[T]he court may modify the schedule on a showing of good cause if it cannot reasonably be met despite the diligence of the party seeking the extension.”). The party moving to modify a scheduling order bears the burden of demonstrating the existence of good cause. United States v. Cochran, No. 4:12–CV–220–FL, 2014 WL 347426, at *2 (E.D.N.C. 30 Jan. 2014) (citing Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008)). “[T]he scheduling order ‘is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.’” Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C. 1987) (quoting Gestetner Corp. v. Case Equipment Co., 108 F.R.D. 138, 141 (D. Me. 1985)).
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B. Analysis Plaintiffs’ pursuit of the inspection activities at the Taylor Facility has been characterized by delay. Among the delay is their service of the request for inspection in January 2014, some three months after commencement of discovery in October 2013, representing almost half of the approximately seven-month fact discovery period and one-quarter of the approximately elevenmonth overall discovery period to which plaintiffs agreed in the Discovery Plan. They then consented to extension of the Taylor defendants’ response to the request for inspection by another two months, until mid-April 2014, a month and a half before the close of fact discovery and the approximate midpoint of the overall discovery period. While plaintiffs complain that the length of the extension the Taylor defendants sought was unreasonable (it equaled and was in reciprocation for the extension defendants allowed plaintiffs on their responses to plaintiffs’ discovery), the extension was effected only because plaintiffs agreed to it. Plaintiffs then negotiated over their differences with the Taylor defendants regarding the inspection request for an additional two months before bringing their motion to compel in midJune 2014. Plaintiffs thus filed their motion less than two weeks before expiration of the stipulated extended 1 July 2014 deadline for fact discovery (and after the 1 June 2014 deadline for fact discovery to which they had agreed in the Discovery Plan and which the court had adopted). The motion came with less than four months left in the overall discovery period. While both the Federal Civil Rules and Local Civil Rules require parties to attempt to resolve disputes among themselves without court intervention, they act at their peril if they negotiate for such a period that they jeopardize their ability to comply with case deadlines. Such negotiations obviously do not suspend case deadlines.
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Nor can it be said that the motion to compel suspended the stipulated fact discovery deadline of 1 July 2014 or any subsequent deadlines established by the Scheduling Order. See, e.g., Fitchett v. Wilson, 2013 WL 5468389, at *1 n.4 (D.S.C. 30 Sept. 2013), aff’d, 561 Fed. Appx. 256 (4th Cir. 19 Mar. 2014).9 The Discovery Plan itself, as adopted by the court, provides that “[i]nterim deadlines for discovery shall be as follows, unless otherwise agreed to by the parties or ordered by the court.” (Disc. Plan ¶ 4.i) (emphasis added). Thus, by agreement of plaintiffs, only a stipulation or order could modify the case deadlines, not a mere motion.10
As indicated, in the course of the parties’ negotiations, the Taylor defendants agreed to a range of inspection activities plaintiffs sought. (See, e.g., 23 May 2014 Ltr. from Taylor Defs.’ Counsel 5-6). Plaintiffs, though, chose not to take advantage of the access that the Taylor defendants offered them, opting instead to seek broader access through litigation.
Given the timing of their motion, plaintiffs proposed an inspection period (including a four-month hiatus from November 2014 through February 2015) of about ten and half months, 50 percent longer than the original fact discovery period. Only a fraction of the proposed inspection activities sought could be conducted during the ten days remaining in the extended fact discovery period after the motion was filed. As to the overall discovery deadline, plaintiffs proposed to extend it a full year, to 2 October 2015.
9 The Fitchett court stated: Plaintiffs’ assumption that the Court would grant their motion for a continuance (really, a motion to hold Defendants’ motion in abeyance and to stay the deadline to respond pending further discovery) on the day the response was due was imprudent, and Plaintiffs must bear the consequences of not complying with a deadline absent a court-ordered extension. Indeed, the question of whether to extend procedural deadlines is one for the Court—not Plaintiffs.
Fitchett, 2013 WL 5468389, at *1 n.4. 10 Notably, plaintiffs did not ask the that the deadlines they sought to extend be suspended pending ruling on their motion to compel, as they did with respect to their deadline for responding to defendants’ summary judgment motions pending ruling on their motion to compel. (See Pls.’ Rule 56(d) Mot. ¶ 12).
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Plaintiffs’ delay, as serious as it was, does not dictate complete denial of their request for extension of time. They did file their motion before the stipulated, extended deadline for fact discovery and they did try to resolve the disputes over their request for inspection without court intervention. In addition, to deprive plaintiffs of any additional time to conduct inspection activities would appear to impair their ability to prosecute their claims. Federal policy, of course, favors resolution of cases on the merits. See, e.g., Choice Hotels Intern., Inc. v. Goodwin and Boone, 11 F.3d 469, 471-72 (4th Cir. 1993); Rudisill v. United States, No. 5:13–CV–110–F, 2014 WL 2014 WL 1117976, at *2 (E.D.N.C. 20 Mar. 2014) (citing Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006)). Further, the permitted inspection activities themselves would not impose any greater burden on the Taylor defendants during an extension of the fact discovery period than they would have during the prior period for fact discovery. To the extent that defendants would need to re-depose any persons as a result of the inspection activities allowed, the prejudice can be ameliorated by requiring plaintiffs to bear any additional court reporter and videographer fees defendants incur.
The court has already found that extension of the fact discovery deadline to 31 May 2015 will adequately accommodate the permissible inspection activities by plaintiffs. Extension to this date will also adequately address plaintiffs’ lack of diligence with respect to inspection activities and the inherent prejudice to defendants and burden on the court arising from further delay in resolution of this case. The post-fact discovery deadlines are appropriately extended using as a guide the same intervals between deadlines as under the Scheduling Order.
IT IS THEREFORE ORDERED that the portion of plaintiffs’ motion to compel (D.E. 93) seeking extension of the case schedule be ALLOWED IN PART and DENIED IN PART on the following terms:
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1. Any additional fact discovery, including the inspection activities provided for herein, shall be commenced in time to be completed by 31 May 2015.
2. Reports from retained experts are due by 1 July 2015, and from rebuttal experts by 3 August 2015.
3. All discovery shall be completed by 2 September 2015. 4. Any further potentially dispositive motions shall be filed by 2 October 2015. 5. Except as modified herein, the Scheduling Order, as previously amended, remains in full force and effect. 6. Plaintiffs shall bear the court reporter and videographer costs reasonably incurred by defendants for any depositions of persons whom defendants previously deposed that are prompted by inspection activities provided for herein.
DEFENDANTS’ MOTION TO STRIKE (D.E. 139) (Denied as Moot)
Rule 37(c)(1) addresses tardy disclosure of expert witnesses: If a party fails to provide information or identify a witness as required by Rule 26 . . . (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney’s fees, caused by the failure; (B) may inform the jury of the party’s failure; and (C) may impose other appropriate sanctions . . . . Fed. R. Civ. P. 37(c)(1). Defendants seek to strike the Smolen Declaration on the grounds that it contains expert opinion; plaintiffs failed to disclose Smolen by the 8 August 2014 expert report deadline; and Rule 37(c)(1) prohibits plaintiffs from using the Smollen Declaration in support of its Rule 56(d) motion.
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As discussed below, allowance of the inspection activities provided for herein dictates that further proceedings on summary judgment be deferred until after such activities are conducted, irrespective of the Smolen Declaration. IT IS THEFORE ORDERED that defendants’ motion to strike (D.E. 139) is DENIED AS MOOT.
PLAINTIFFS’ RULE 56(d) MOTION (D.E. 143) (Recommended for Denial, but with Provision of Comparable Relief) Rule 56(d) provides that where “a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). In their Rule 56(d) motion, plaintiffs request, pursuant to that provision, the entry of an order denying without prejudice or deferring resolution of defendants’ motions for summary judgment. Alternatively, plaintiffs seek an order under Rule 6(b) extending the time to respond to the summary judgment motions. Basic fairness dictates that plaintiffs not be required to respond to defendants’ motions for summary judgment until after the additional discovery provided for herein is completed. Indeed, such additional discovery could be feckless if plaintiffs were not able to exploit it in defending against summary judgment motions by defendants. While plaintiffs base their motion on statements in the Smolen Declaration that the inspection activities sought in the inspection request are vital to their case, that is not the basis for the court’s determination. Rather, as indicated, it is the court’s partial allowance of plaintiffs’ motion to compel that mandates deferral of summary judgment proceedings. Thus, such deferral is not pursuant to Rule 56(d) or Rule 6(b), but rather Rule 16(b)(4), as part of modification of the schedule for proceedings in this case.
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The deferral of summary judgment proceedings pending completion of the additional discovery is most efficiently effected by denying without prejudice the pending motions for summary judgment. In addition to preserving plaintiffs’ opportunity to utilize the additional discovery in summary judgment proceedings, such denial would enable defendants to tailor any further summary judgment motions they may assert to information developed through the additional discovery, rather than attempting to address it by supplementation of their current summary judgment filings.
IT IS THEREFORE RECOMMENDED that plaintiffs’ Rule 56(d) motion (D.E. 143) be DENIED, but that the pending motions for summary judgment be DENIED WITHOUT PREJUDICE, pursuant to Rule 16.
CONCLUSION In sum, IT IS ORDERED that plaintiffs’ motion to compel (D.E. 93) is ALLOWED IN PART AND DENIED IN PART on the terms set out above and that defendants’ motion to strike (D.E. 139) is DENIED AS MOOT; IT IS RECOMMENDED that plaintiffs’ motion for relief pursuant to Rule 56(d) (D.E. 143) be denied, but that the pending motions for summary judgment be DENIED without prejudice pursuant to Rule 16; and IT IS FURTHER ORDERED that the Clerk send copies of this Order and Memorandum and Recommendation to counsel for the respective parties, who shall have until 27 January 2015 to file written objections to the Memorandum and Recommendation herein on plaintiffs’ motion Rule 56(d) motion. Failure to file timely written objections bars an aggrieved party from receiving a de novo review by the District Judge on an issue covered in the Memorandum and Recommendation and, except upon grounds of plain error, from attacking on appeal the
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unobjected-to proposed factual findings and legal conclusions accepted by the District Judge. Any response to objections shall be filed within 14 days after service of the objections on the responding party.
SO ORDERED, this the 13th day of January 2015. _________________________ James E. Gates United States Magistrate Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION 4:12-CV-154-D

NORTH CAROLINA ENVIRONMENTAL )

JUSTICE NETWORK; NEUSE

)

RIVERKEEPER FOUNDATION, INC.; and )

WATERKEEPER ALLIANCE, INC.,

)

)

Plaintiffs,

)

)

v.

)

)

DONALD TAYLOR and ANNIE TAYLOR, )

individually and d/b/a TAYLOR

)

FINISHING; MCLAWHORN LIVESTOCK )

FARM, INC.; JUSTIN T. MCLAWHORN; )

and AARON MCLAWHORN,

)

)

Defendants.

)

)

ORDER and MEORANDUM AND RECOMMENDATION

This case comes before the court on two motions by plaintiffs Waterkeeper Alliance, Inc. and Neuse Riverkeeper Foundation, Inc. (“plaintiffs”): (1) a motion (D.E. 93) to compel inspection and to extend time1 (“motion to compel”); and (2) a motion (D.E. 139) for relief pursuant to Fed. R. Civ. P. 56(d) or, alternatively, for extension of the time to respond to defendants’ motions for summary judgment pursuant to Rule 6(b) (“Rule 56(d) motion”). Also before the court is a motion (D.E. 143) by defendants Donald Taylor (“Mr. Taylor”) and Annie Taylor, individually and d/b/a Taylor Finishing (collectively “Taylor defendants”), and McLawhorn Livestock Farm, Inc., Justin T. McLawhorn, and Aaron McLawhorn (collectively “McLawhorn defendants”) (all defendants collectively “defendants”). Defendants’ motion seeks to strike the declaration of a purported expert (D.E. 139-1) submitted by plaintiffs in support of their Rule 56(d) motion. All three motions were referred to the undersigned. For the reasons

1 Now-dismissed plaintiff North Carolina Environmental Justice Network was also a party to this motion.

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stated below, plaintiffs’ motion to compel will be allowed in part and denied in part; defendants’ motion to strike will be denied as moot; and it will be recommended that plaintiffs’ Rule 56(d) motion be denied, but that comparable relief be provided under Rule 16.
BACKGROUND I. PLAINTIFFS’ CLAIMS
Plaintiffs, along with the North Carolina Environmental Justice Network (“Network”), commenced this federal citizens environmental action on 27 July 2012. (See Compl. (D.E. 1)). With leave of court, they filed their second amended complaint (D.E. 65)—the most current version—on 25 April 2013. The claims against the Network were dismissed with prejudice by stipulation on 21 October 2014 (D.E. 110).
The property which is the subject of the second amended complaint (“Taylor Facility”) is a hog-processing farm in Jones County presently owned by the Taylor defendants and previously owned by the McLawhorn defendants. (2d Am. Compl. ¶¶ 28-31). Plaintiffs allege that defendants’ illegal management, discharge, and disposal of swine waste has resulted in the release of pollutants onto the land and waters in the Neuse River Basin area of the coastal plain of North Carolina. (Id., e.g., ¶ 1). Plaintiffs assert claims for violations of: (1) section 505 of the Clean Water Act, 33 U.S.C. § 1365, by continuing to discharge pollutants without a permit (2d Am. Compl. ¶¶ 58-70); (2) section 7002(a)(1)(A) of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(A), by allowing open dumping (2d Am. Compl. ¶¶ 7184); and (3) section 7002(a)(1)(B) of RCRA, 42 U.S.C. § 6972(a)(1)(B), by posing an imminent and substantial endangerment to health or the environment (2d Am. Compl. ¶¶ 85-97). As relief, plaintiffs seek a declaratory judgment, injunctive relief, civil penalties, costs, and other relief.
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(Id. ¶¶ 98-111). Defendants deny the material allegations in plaintiffs’ second amended complaint. (See generally Ans. to 2d Am. Compl. (D.E. 68, 75)). II. RELEVANT CASE HISTORY
The court entered a Scheduling Order (D.E. 81) on 19 November 2013, adopting the parties’ Discovery Plan (D.E. 78) with minor modifications of certain proposed deadlines. The Scheduling Order provided for: the commencement of discovery on 29 October 2013 (Sch. Ord. 1; Disc. Plan ¶¶ 3, 4.d); completion of fact discovery by 1 June 2014 (Sch. Ord. 1; Disc. Plan ¶ 4.i); disclosure of expert reports by 8 August 2014 (Sch. Ord. ¶ 1); completion of all discovery by 3 October 2014 (id. ¶ 2); and filing of potentially dispositive motions by 7 November 2014 (id. ¶ 3). Plaintiffs served on the Taylor defendants a request for inspection of the Taylor Facility on 22 January 2014 (D.E. 95 at 5-13). By agreement of plaintiffs, the Taylor defendants did not serve their response (D.E. 95 at 15-32) to the inspection request until 16 April 2014, broadly objecting to it. Over the ensuing two months, plaintiffs attempted to resolve their disputes with the Taylor defendants regarding the inspection request. Some, but not all, differences were resolved. On 20 June 2014, plaintiffs filed the instant motion to compel. Prior to the filing, the Taylor defendants agreed to extension of the fact discovery deadline to 1 July 2014. (See 13 June 2014 Email from Taylor Defs.’ Counsel (D.E. 95 at 74)).
In their motion, plaintiffs sought access to the Taylor Facility for a total of about six and a half months between 15 August 2014 and 1 July 2015 to take photographs, obtain samples, and perform other inspection activities. (See Pls.’ Proposed Compel Ord. (D.E. 93-1) ¶¶ 1, 3-8). Plaintiffs’ motion also sought extension of, among other deadlines, those for expert reports and the completion of discovery to 7 August 2015 and 2 October 2015, respectively. (Id. ¶ 2).
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Plaintiffs did not produce any expert reports by the 8 August 2014 deadline established in the Scheduling Order or thereafter. However, on 3 November 2014, they emailed to defendants’ counsel supplemental initial disclosures identifying at least five expert witnesses. (See Defs.’ Strike Mot. Mem. (D.E. 144) 5; 3 Nov. 2014 Email from Pls.’ Counsel (D.E. 144-1 at 2)).2
On 23 October 2014, on defendants’ motion, the court extended the deadline for defendants’ potentially dispositive motions to 21 November 2014.3 (See D.E. 114). On 21 November 2014, defendants filed three separate motions for summary judgment. (See D.E. 125137). Plaintiffs filed their motion for relief under Rule 56(d) on 5 December 2014.
In support of their Rule 56(d) motion, plaintiffs filed a declaration of Michael D. Smolen, Ph.D. (D.E. 139-1), a purported expert in the environmental matters at issue. On 10 December 2014, defendants filed their motion to strike the Smolen Declaration.
The court held a telephone conference with counsel on the motions on 11 December 2014. After the telephone conference, the court entered an order (D.E. 146) staying the deadline for plaintiffs to respond to defendants’ summary judgment motions pending further order of the court.
PLAINTIFFS’ MOTION TO COMPEL (D.E. 93) (Allowed in Part and Denied in Part)
I. INSPECTION A. Applicable Legal Standards The Federal Civil Rules enable parties to obtain information by serving requests for
discovery on each other, including requests to permit entry on land to “inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.” Fed. R.
2 The supplemental initial disclosures do not appear to have been filed with the court. 3 Plaintiffs seek reconsideration of the extension order. (See D.E. 119).
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Civ. P. 34(a)(2); see generally Fed. R. Civ. P. 26-37. Rule 26(b) provides for a broad scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). At the same time, Rule 26(c) authorizes the court “for good cause, [to] issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The Fourth Circuit has held that, pursuant to this provision, “the degree to which [a] proposed inspection will aid in the search for truth must be balanced against the burdens and dangers created by the inspection.” Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 908 (4th Cir. 1978); see also Clay v. Consol Penn. Coal Co., LLC, 5:12-cv92, 2013 WL 3819922, at *4 (N.D.W. Va. 12 June 2013) (“Any dangers must be balanced against the relevance and need for the inspection.”); Johnson v. Mundy Indus. Contractors, Inc., 7:01CV99–BO3, 2002 WL 31464984, at *2 (E.D.N.C. 15 Mar. 2002) (“[A]n inquiry into when to compel an inspection goes beyond mere ‘relevance’ and must balance the need presented by the moving party against the ‘burdens and dangers created by the inspection.’” (quoting Belcher, 588 F.2d at 908)). The need for such balancing is rooted in the reality that “entry upon a party's premises may entail greater burdens and risks than mere production of documents,” as to which the general relevance standard of Rule 26(b) routinely controls. Belcher, 588 F.2d at 908. Thus, the court must exercise “precision and care in the formulation of inspection orders.” Id. at 911. It has been held that the burden rests on the objecting party to convince the court that the
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inspection requested is unnecessary. See Arkansas Game & Fish Comm’n v. United States, 74 Fed. Cl. 426, 432 (16 Nov. 2006) (citing 8A Fed. Prac. & Proced. Civ. § 2214).
B. Analysis 1. Groundwater Sampling. As set out in their proposed order, plaintiffs seek to install nine sampling wells on the Taylor Facility at locations originally identified in their request for inspection and to take groundwater samples from the wells on a biweekly basis. (Pls.’ Proposed Compel Ord. ¶ 5 & Ex. A). The proposed period for sampling was 15 August to 1 November 2014 and 1 March to 1 July 2015, meaning sampling would occur over six and a half months during a period spanning ten and a half months. (Id. ¶ 1). The gap between 1 November 2014 and 1 March 2015 apparently reflects a period during which swine waste effluent is not being sprayed on fields and groundwater sampling would not be as meaningful as it otherwise might be. In their inspection request, plaintiffs had sought a sampling period of similar duration—six months, running from 17 February to 8 August 2014—but with sampling occurring on a weekly basis. (Insp. Req. 1-2, 3 ¶ 8). In negotiations with the Taylor defendants, plaintiffs proposed a sampling period of four and a half months—15 June to 1 November 2014— also with weekly sampling. (30 May 2014 Ltr. from Pls.’ Counsel (D.E. 95 at 47-50) 2).4 The Taylor defendants oppose any groundwater sampling. In a declaration by Mr. Taylor supporting the Taylor defendants’ response to plaintiffs’ motion to compel, he details the burdens and risks that would be imposed upon the Taylor Facility by installation of the requested groundwater wells and the weekly sampling sought in the inspection request. (2d Taylor Dec. (D.E. 99)). According to the declaration, the Taylor Facility is operated by three people—Mr.
4 Plaintiffs submitted this letter and other correspondence among counsel from their negotiations over plaintiffs’ inspection request in support of the motion to compel. (See D.E. 95 at 34-75). The Taylor defendants did not object to submission of this evidence and themselves discuss the negotiations in their memorandum opposing the motion. Both sides have therefore waived any objection they might otherwise have had to evidence of their negotiations.
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Taylor, his son, and a laborer. (Id. ¶ 10). Mr. Taylor would have to monitor installation and sampling, thereby tying up for significant periods one-third of the labor force needed to operate the facility; installation would increase the risk of exposure of the 9,000 animals at the facility to the PED virus, which can kill entire herds, and likely agitate and disturb the animals; installation as well as operation and removal of the wells in the vicinity of three swine waste lagoons creates a risk of damaging the lagoons, which are presently in a condition satisfactory to the North Carolina regulatory agencies and the United States Environmental Protection Agency; and installation would impede operation of equipment needed to maintain the lagoons. (Id. ¶ 15).5
Plaintiffs offered no expert or scientific evidence responsive to the concerns raised in the Taylor Declaration. They do cite, in a footnote, to naked allegations in their second amended complaint regarding surface water sampling from areas adjacent to the Taylor Facility, photographs of the Taylor Facility, and two violation notices from state water quality officials. (Pls.’ Compel Mot. Mem. (D.E. 94) 6 n.3); 2d Am. Compl. ¶¶ 53-58). Many of the sampling results and the two violation notices predate the Taylor defendants’ taking ownership of the Taylor Facility on 23 November 2010. (See 2d Am. Compl. ¶ 31; Taylor Defs.’ Ans. to 2d Am. Compl. ¶¶ 53-58).
Plaintiffs also submitted a letter from their counsel to the Taylor defendants’ counsel transmitting various sampling results and photographs culled from discovery to support their inspection request. (3 June 2014 Ltr. from Pls.’ Counsel (D.E. 95 at 56-71)). As with the
5 The Taylor defendants also challenged the groundwater sampling plaintiffs requested on legal grounds—that is, that groundwater contamination is not within the scope of plaintiffs’ claims. The court need not resolve this issue given the impermissibility of the groundwater sampling for the reasons stated.
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allegations from the second amended complaint, there is no explanation of this evidence, including where the sampling occurred and how it supports plaintiffs’ inspection request.6
The cases plaintiffs cite as precedent for the groundwater and other sampling they seek is readily distinguishable. None is binding precedent.7
Based on the record before it, the court finds that the Taylor defendants have
demonstrated that the installation, operation, and removal of the groundwater wells, even if
sampling is done on a biweekly basis, presents burdens and risks that outweigh the potential
benefits to be obtained from such sampling. Plaintiffs’ request to install and operate
groundwater wells on the Taylor Facility will accordingly be denied.
2. Surface Water Sampling. Plaintiffs seek to take surface water samples at 15
locations originally identified in their inspection request as well as from additional surface water
conveyances they identify upon inspection, on a biweekly basis, as opposed to a weekly basis as
sought in their inspection request. (Pls.’ Proposed Compel Ord. ¶ 6 & Ex. B). The length of the
requested period of sampling—six and a half months—is the same as proposed for groundwater
sampling in both the proposed order and inspection request, which, as indicated, plaintiffs agreed
to reduce to four and a half months in negotiations. (Id. ¶ 1; Insp. Req. 1-2, 3-4 ¶ 9; 30 May
2014 Ltr. from Pls.’ Counsel (D.E. 95 at 47-50) 2).
6 According to the Smolen Declaration, plaintiffs had retained Dr. Smolen by the time they served their inspection request in January 2014. (Smolen Decl. ¶¶ 7, 8). It therefore appears that plaintiffs could readily have presented expert evidence in support of their motion to compel, but chose not to do so. The Smolen Declaration, filed 5 December 2014, is not properly considered in evaluation of plaintiffs’ motion to compel because, among other reasons, it was filed months after any supporting materials for that motion, filed in June 2014, were due. Notably, plaintiffs cite to at least one case in support of their motion to compel in which the moving party did support its inspection request with expert evidence. See United States v. Acquest Wehrle, LLC, No. 09-CV-637C(F), 2010 WL 1708528, at *1 (W.D.N.Y. 27 Apr. 2010). 7 Notwithstanding plaintiffs’ characterization of the groundwater and other inspection activities they seek as routine, one of the cases it cites describes the request for soil sampling there as “perhaps extraordinary.” Versatile Metals, Inc. v. Union Corp., Civ. A. No. 85-4085, 1986 WL 8720, at *3 (E.D. Pa. 8 Aug. 1986).
8
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The Taylor defendants appear to agree to surface water sampling on two occasions, although the number of locations remains in dispute. (See 3 June 2014 Ltr. from Taylor Defs.’ Counsel (D.E. 95 at 52-54) 2). It is apparent from the Taylor Declaration that provision of access on even a biweekly basis as proposed by plaintiffs in their motion would place a substantial burden on the Taylor defendants.
The court concludes that sampling on four occasions over a period of three months would strike an appropriate balance between plaintiffs’ need for the sampling and the burden such sampling places on the Taylor defendants. This period also accounts for plaintiffs’ delay and the other considerations discussed below in connection with their request for extension of time. Assuming, as the record suggests, that sampling could begin by March, the three months allowed for it equates to extension of the fact discovery deadline and thereby the deadline for completion of this sampling to 31 May 2015. The sampling needs to be done on dates reasonably agreed to by the Taylor defendants8 to properly address the burden the sampling will place on them. To avoid undue burden to the Taylor defendants, the number of locations at which sampling may occur shall be limited to 15, comprised of locations identified in Exhibit B to plaintiffs’ proposed order (D.E. 93-1 at 5) and/or other locations reasonably agreed to by the Taylor defendants.
3. Soil Sampling. Plaintiffs seek to take soil samples on three fields on two separate dates selected by them. (Pls.’ Proposed Compel Ord. ¶ 4). On each field, three cores would be drilled to a depth of 24 inches and 20 cores would be drilled to a depth of 6 inches. (Id.). In their inspection request, plaintiffs sought soil sampling on dates agreed to by the parties (Insp. Req. ¶ 11), but otherwise the terms of that request are the same as those proposed by plaintiffs in their motion.
8 “Reasonably agreed to” signifies that agreement may not be unreasonably withheld.
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In their response to the motion, the Taylor defendants agreed to eight six-inch soil samples on two occasions. (See Taylor Defs.’ Compel Mot. Mem. (D.E. 97) 3). Four samples would be from locations identified in the inspection request and four from mutually acceptable locations. (Id.).
In accordance with plaintiffs’ and the Taylor defendants’ apparent agreement, the court will permit soil sampling on two occasions during the extended discovery period. The soil sampling shall occur on dates reasonably agreed to by the Taylor defendants on which plaintiffs are conducting surface water sampling.
An article from the North Carolina Department of Agriculture & Consumer Services entitled, “Soil sampling basics,” submitted by plaintiffs, states that for agricultural samples 15 to 20 cores should be taken from each area. (“Soil sampling basics” (D.E. 95 at 77-78) 1 (N.C. Dep’t of Agric. & Consumer Servs. Sept. 2013)). In contrast, as noted, plaintiffs seek to take 23 cores per field. The court will limit plaintiffs to 15 cores per field on the grounds that plaintiffs’ own evidence indicates this number is sufficient and the taking of additional cores would require additional time, placing an unjustified burden on the Taylor defendants’ labor force. Although the article specifies for agricultural land a maximum depth of six to eight inches (“Soil sampling basics” 2), it is not apparent that samples of 24 inches would require more time or otherwise impose an unnecessary burden on the Taylor defendants. Accordingly, up to 3 of the core samples from each field may be 24 inches in depth.
The Taylor defendants have not shown that sampling at any particular location would impose a greater burden on them than any other location. Plaintiffs will therefore be permitted to select the locations in the three fields from which the soil samples are to be taken.
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4. Inspection, Measurement, and Photography. In their proposed order, plaintiffs seek to inspect, measure, and photograph the Taylor Facility, the draining infrastructure, waste management structures, and wastewater as follows: (i) the Taylor Facility, including buildings, outdoor storage areas, equipment, waste land application areas, the perimeter of the property, the property line, and all fences; (ii) draining infrastructure, including, but not limited to, perennial streams, intermittent steams, catch basins, pipes, gutters, tile drains, ditches, swales and/or other water conveyances on or leading from the Taylor Facility; (iii) waste management structures, including waste lagoons; and (iv) wastewater in lagoons, sprayed and/or ponding on the property, and in open conveyances. (Pls.’ Proposed Compel Ord. ¶ 3). These proposed inspection activities are somewhat less expansive than those sought in the inspection request. (See Ins. Req. ¶ 2). While the Taylor defendants objected to these activities in their response to plaintiffs’ inspection request, they did not address them specifically in their memorandum in response to plaintiffs’ motion to compel, and appeared to have agreed to them in negotiations. (See, e.g., 23 May 2014 Ltr. from Taylor Defs.’ Counsel (D.E. 95 at 39-45) 6; 18 June 2014 Email from Pls.’ Counsel (D.E. 95 at 73)).
The court finds that these inspection activities are relevant and would not impose an undue burden on the Taylor defendants, provided that they are conducted on one or more dates reasonably agreed to by the Taylor defendants on which plaintiffs are performing surface water sampling. The court will therefore allow the inspection, measurement, and photographic activities on these terms.
5. Lagoon Sampling. Plaintiffs and the Taylor defendants appear to have agreed and the court will order that plaintiffs may take samples from each of the Taylor Facility’s three lagoons on two separate occasions. (See Pls.’ Proposed Compel Ord. ¶ 7; Taylor Defs.’ Compel
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Mot. Mem. 3). The sampling shall be on dates reasonably agreed to by the Taylor defendants on which plaintiffs are performing surface water sampling to adequately address the burdens the sampling imposes on the Taylor defendants. The samples may be of surface and bottom lagoon waste, as sought by plaintiffs. (Pls.’ Proposed Compel Ord. ¶ 7).
6. Sampling of Central Pivot Sprayer. The parties appear to agree and the court will order that plaintiffs may on one occasion sample swine waste effluent from the central pivot sprayer as it is being applied to sprayfields. (See, e.g., Pls.’ Proposed Compel Ord. ¶ 8; 3 June 2014 Ltr. from Taylor Defs.’ Counsel 3). This sampling shall occur on a date reasonably agreed to by the Taylor defendants on which plaintiffs are performing surface water sampling.
7. Biosecurity and Other Conditions on Inspection Activities. Plaintiffs represent in their proposed order that the parties have reached agreement on biosecurity and other conditions on plaintiffs’ inspection activities. (Pls.’ Proposed Compel Ord. ¶¶ 9-13). The Taylor defendants do not contest that representation in their response memorandum. The court will accordingly require that these conditions apply. These conditions are as follows, except as otherwise provided herein:
a. Plaintiffs shall identify by name and position the specific contingent of people who will be going on the Taylor Facility in order to conduct any inspection activities, and no person about whom the Taylor defendants state a reasoned objection shall be permitted to enter the property;
b. Each water and soil sample taken by plaintiffs from the Taylor Facility during the Sampling Period shall be divided into two portions, one of which may be tested by plaintiffs and the other of which will be provided to the Taylor defendants, both of which to be labeled
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with the date, time, and location where the sample of was taken and the identity of the individual taking the sample.
c. Plaintiffs shall enter an agreement with the Taylor defendants pursuant to which plaintiffs agree to indemnify and hold harmless the Taylor defendants from all loss incurred by the plaintiffs as a result of any action taken in connection with the Plaintiffs’ entry on the Taylor Facility and the inspection activities.
d. Plaintiffs and all people in plaintiffs’ contingent will follow and adhere to appropriate farm biosecurity and exclusion measures and guidelines recommended by the North Carolina Department of Agriculture & Consumer Services, Veterinary Division when at the Taylor Facility.
IT IS THEREFORE ORDERED that the portion of plaintiffs’ motion to compel (D.E. 93) seeking an order compelling inspection of the Taylor Facility is ALLOWED IN PART and DENIED IN PART on the foregoing terms. The parties may agree to modifications in the terms of the various inspection activities authorized herein, provided that any such modifications shall be subject to and shall not extend the deadline for completion of fact discovery. The parties shall confer expeditiously in good faith in an effort to resolve without court intervention any disputes that arise regarding performance of the inspection activities provided for herein. II. EXTENSION OF TIME
A. Applicable Legal Standards With exceptions not relevant here, Rule 16 requires that a district court enter a scheduling order setting deadlines for completion of discovery and addressing other scheduling matters. Fed. R. Civ. P. 16(b)(1), (3). “A schedule may be modified only for good cause . . . .” Fed. R. Civ. P. 16(b)(4). The good cause modification provision specific to Rule 16(b)(4) takes
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precedence over the generally applicable extension provisions of Rule 6(b)(1). E.g., Dilmar Oil Co. v. Federated Mut. Ins. Co., 986 F. Supp. 959, 980 (D.S.C. 1997), aff’d, 129 F.3d 116 (4th Cir. 1997); Corkrey v. Internal Revenue Serv., 192 F.R.D. 66, 67 (N.D.N.Y. 2000). The good cause provision of Rule 16(b)(4) does not focus on the prejudice to the non-movant or bad faith of the moving party, but rather on the moving party’s diligence. Dilmar Oil Co., 986 F. Supp. at 980; see also Cook v. Howard, 484 Fed. Appx. 805, 815 (4th Cir. 2012) (“‘Good cause’ requires ‘the party seeking relief [to] show that the deadlines cannot reasonably be met despite the party’s diligence,’ and whatever other factors are also considered, ‘the good-cause standard will not be satisfied if the [district] court concludes that the party seeking relief (or that party’s attorney) has not acted diligently in compliance with the schedule.’”) (quoting 6A Charles Alan Wright, et al., Fed. Prac. & Proc. Civ. § 1522.2 (2010)); McDonald v. Marlboro County, 5:12CV1725-RBHKDW, 2013 WL 6580631, at *4 (D.S.C. 16 Dec. 2013) (“[T]he key to the ‘good cause’ analysis of Rule 16 is whether the party was diligent in seeking to amend.”); Fed. R. Civ. P. 16(b), advisory committee’s note—1983 amendment (“[T]he court may modify the schedule on a showing of good cause if it cannot reasonably be met despite the diligence of the party seeking the extension.”). The party moving to modify a scheduling order bears the burden of demonstrating the existence of good cause. United States v. Cochran, No. 4:12–CV–220–FL, 2014 WL 347426, at *2 (E.D.N.C. 30 Jan. 2014) (citing Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008)). “[T]he scheduling order ‘is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.’” Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C. 1987) (quoting Gestetner Corp. v. Case Equipment Co., 108 F.R.D. 138, 141 (D. Me. 1985)).
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B. Analysis Plaintiffs’ pursuit of the inspection activities at the Taylor Facility has been characterized by delay. Among the delay is their service of the request for inspection in January 2014, some three months after commencement of discovery in October 2013, representing almost half of the approximately seven-month fact discovery period and one-quarter of the approximately elevenmonth overall discovery period to which plaintiffs agreed in the Discovery Plan. They then consented to extension of the Taylor defendants’ response to the request for inspection by another two months, until mid-April 2014, a month and a half before the close of fact discovery and the approximate midpoint of the overall discovery period. While plaintiffs complain that the length of the extension the Taylor defendants sought was unreasonable (it equaled and was in reciprocation for the extension defendants allowed plaintiffs on their responses to plaintiffs’ discovery), the extension was effected only because plaintiffs agreed to it. Plaintiffs then negotiated over their differences with the Taylor defendants regarding the inspection request for an additional two months before bringing their motion to compel in midJune 2014. Plaintiffs thus filed their motion less than two weeks before expiration of the stipulated extended 1 July 2014 deadline for fact discovery (and after the 1 June 2014 deadline for fact discovery to which they had agreed in the Discovery Plan and which the court had adopted). The motion came with less than four months left in the overall discovery period. While both the Federal Civil Rules and Local Civil Rules require parties to attempt to resolve disputes among themselves without court intervention, they act at their peril if they negotiate for such a period that they jeopardize their ability to comply with case deadlines. Such negotiations obviously do not suspend case deadlines.
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Nor can it be said that the motion to compel suspended the stipulated fact discovery deadline of 1 July 2014 or any subsequent deadlines established by the Scheduling Order. See, e.g., Fitchett v. Wilson, 2013 WL 5468389, at *1 n.4 (D.S.C. 30 Sept. 2013), aff’d, 561 Fed. Appx. 256 (4th Cir. 19 Mar. 2014).9 The Discovery Plan itself, as adopted by the court, provides that “[i]nterim deadlines for discovery shall be as follows, unless otherwise agreed to by the parties or ordered by the court.” (Disc. Plan ¶ 4.i) (emphasis added). Thus, by agreement of plaintiffs, only a stipulation or order could modify the case deadlines, not a mere motion.10
As indicated, in the course of the parties’ negotiations, the Taylor defendants agreed to a range of inspection activities plaintiffs sought. (See, e.g., 23 May 2014 Ltr. from Taylor Defs.’ Counsel 5-6). Plaintiffs, though, chose not to take advantage of the access that the Taylor defendants offered them, opting instead to seek broader access through litigation.
Given the timing of their motion, plaintiffs proposed an inspection period (including a four-month hiatus from November 2014 through February 2015) of about ten and half months, 50 percent longer than the original fact discovery period. Only a fraction of the proposed inspection activities sought could be conducted during the ten days remaining in the extended fact discovery period after the motion was filed. As to the overall discovery deadline, plaintiffs proposed to extend it a full year, to 2 October 2015.
9 The Fitchett court stated: Plaintiffs’ assumption that the Court would grant their motion for a continuance (really, a motion to hold Defendants’ motion in abeyance and to stay the deadline to respond pending further discovery) on the day the response was due was imprudent, and Plaintiffs must bear the consequences of not complying with a deadline absent a court-ordered extension. Indeed, the question of whether to extend procedural deadlines is one for the Court—not Plaintiffs.
Fitchett, 2013 WL 5468389, at *1 n.4. 10 Notably, plaintiffs did not ask the that the deadlines they sought to extend be suspended pending ruling on their motion to compel, as they did with respect to their deadline for responding to defendants’ summary judgment motions pending ruling on their motion to compel. (See Pls.’ Rule 56(d) Mot. ¶ 12).
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Plaintiffs’ delay, as serious as it was, does not dictate complete denial of their request for extension of time. They did file their motion before the stipulated, extended deadline for fact discovery and they did try to resolve the disputes over their request for inspection without court intervention. In addition, to deprive plaintiffs of any additional time to conduct inspection activities would appear to impair their ability to prosecute their claims. Federal policy, of course, favors resolution of cases on the merits. See, e.g., Choice Hotels Intern., Inc. v. Goodwin and Boone, 11 F.3d 469, 471-72 (4th Cir. 1993); Rudisill v. United States, No. 5:13–CV–110–F, 2014 WL 2014 WL 1117976, at *2 (E.D.N.C. 20 Mar. 2014) (citing Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006)). Further, the permitted inspection activities themselves would not impose any greater burden on the Taylor defendants during an extension of the fact discovery period than they would have during the prior period for fact discovery. To the extent that defendants would need to re-depose any persons as a result of the inspection activities allowed, the prejudice can be ameliorated by requiring plaintiffs to bear any additional court reporter and videographer fees defendants incur.
The court has already found that extension of the fact discovery deadline to 31 May 2015 will adequately accommodate the permissible inspection activities by plaintiffs. Extension to this date will also adequately address plaintiffs’ lack of diligence with respect to inspection activities and the inherent prejudice to defendants and burden on the court arising from further delay in resolution of this case. The post-fact discovery deadlines are appropriately extended using as a guide the same intervals between deadlines as under the Scheduling Order.
IT IS THEREFORE ORDERED that the portion of plaintiffs’ motion to compel (D.E. 93) seeking extension of the case schedule be ALLOWED IN PART and DENIED IN PART on the following terms:
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1. Any additional fact discovery, including the inspection activities provided for herein, shall be commenced in time to be completed by 31 May 2015.
2. Reports from retained experts are due by 1 July 2015, and from rebuttal experts by 3 August 2015.
3. All discovery shall be completed by 2 September 2015. 4. Any further potentially dispositive motions shall be filed by 2 October 2015. 5. Except as modified herein, the Scheduling Order, as previously amended, remains in full force and effect. 6. Plaintiffs shall bear the court reporter and videographer costs reasonably incurred by defendants for any depositions of persons whom defendants previously deposed that are prompted by inspection activities provided for herein.
DEFENDANTS’ MOTION TO STRIKE (D.E. 139) (Denied as Moot)
Rule 37(c)(1) addresses tardy disclosure of expert witnesses: If a party fails to provide information or identify a witness as required by Rule 26 . . . (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney’s fees, caused by the failure; (B) may inform the jury of the party’s failure; and (C) may impose other appropriate sanctions . . . . Fed. R. Civ. P. 37(c)(1). Defendants seek to strike the Smolen Declaration on the grounds that it contains expert opinion; plaintiffs failed to disclose Smolen by the 8 August 2014 expert report deadline; and Rule 37(c)(1) prohibits plaintiffs from using the Smollen Declaration in support of its Rule 56(d) motion.
18 Case 4:12-cv-00154-D Document 148 Filed 01/14/15 Page 18 of 21

As discussed below, allowance of the inspection activities provided for herein dictates that further proceedings on summary judgment be deferred until after such activities are conducted, irrespective of the Smolen Declaration. IT IS THEFORE ORDERED that defendants’ motion to strike (D.E. 139) is DENIED AS MOOT.
PLAINTIFFS’ RULE 56(d) MOTION (D.E. 143) (Recommended for Denial, but with Provision of Comparable Relief) Rule 56(d) provides that where “a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). In their Rule 56(d) motion, plaintiffs request, pursuant to that provision, the entry of an order denying without prejudice or deferring resolution of defendants’ motions for summary judgment. Alternatively, plaintiffs seek an order under Rule 6(b) extending the time to respond to the summary judgment motions. Basic fairness dictates that plaintiffs not be required to respond to defendants’ motions for summary judgment until after the additional discovery provided for herein is completed. Indeed, such additional discovery could be feckless if plaintiffs were not able to exploit it in defending against summary judgment motions by defendants. While plaintiffs base their motion on statements in the Smolen Declaration that the inspection activities sought in the inspection request are vital to their case, that is not the basis for the court’s determination. Rather, as indicated, it is the court’s partial allowance of plaintiffs’ motion to compel that mandates deferral of summary judgment proceedings. Thus, such deferral is not pursuant to Rule 56(d) or Rule 6(b), but rather Rule 16(b)(4), as part of modification of the schedule for proceedings in this case.
19 Case 4:12-cv-00154-D Document 148 Filed 01/14/15 Page 19 of 21

The deferral of summary judgment proceedings pending completion of the additional discovery is most efficiently effected by denying without prejudice the pending motions for summary judgment. In addition to preserving plaintiffs’ opportunity to utilize the additional discovery in summary judgment proceedings, such denial would enable defendants to tailor any further summary judgment motions they may assert to information developed through the additional discovery, rather than attempting to address it by supplementation of their current summary judgment filings.
IT IS THEREFORE RECOMMENDED that plaintiffs’ Rule 56(d) motion (D.E. 143) be DENIED, but that the pending motions for summary judgment be DENIED WITHOUT PREJUDICE, pursuant to Rule 16.
CONCLUSION In sum, IT IS ORDERED that plaintiffs’ motion to compel (D.E. 93) is ALLOWED IN PART AND DENIED IN PART on the terms set out above and that defendants’ motion to strike (D.E. 139) is DENIED AS MOOT; IT IS RECOMMENDED that plaintiffs’ motion for relief pursuant to Rule 56(d) (D.E. 143) be denied, but that the pending motions for summary judgment be DENIED without prejudice pursuant to Rule 16; and IT IS FURTHER ORDERED that the Clerk send copies of this Order and Memorandum and Recommendation to counsel for the respective parties, who shall have until 27 January 2015 to file written objections to the Memorandum and Recommendation herein on plaintiffs’ motion Rule 56(d) motion. Failure to file timely written objections bars an aggrieved party from receiving a de novo review by the District Judge on an issue covered in the Memorandum and Recommendation and, except upon grounds of plain error, from attacking on appeal the
20 Case 4:12-cv-00154-D Document 148 Filed 01/14/15 Page 20 of 21

unobjected-to proposed factual findings and legal conclusions accepted by the District Judge. Any response to objections shall be filed within 14 days after service of the objections on the responding party.
SO ORDERED, this the 13th day of January 2015. _________________________ James E. Gates United States Magistrate Judge
21 Case 4:12-cv-00154-D Document 148 Filed 01/14/15 Page 21 of 21

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION No. 4:12-CV-154-D

NORTH CAROLINA ENVIRONMENTAL )

WSTICE NETWORK, NEUSE

)

RIVERKEEPER FOUNDATION, INC., )

and WATERKEEPER ALLIANCE, INC., )

)

Plaintiffs,

)

)

v.

)

)

DONALD TAYLOR and

)

ANNIE TAYLOR, individually and

)

d/b/a TAYLOR FINISHING,

)

WSTIN T. MCLAWHORN, and

)

AARON MCLAWHORN,

)

)

Defendants. )

ORDER

On January 14, 2015, Magistrate Judge Gates issued a Memorandum and Recommendation and Order ("M&R and Order") [D.E. 148]. In that M&R and Order, Judge Gates ordered that plaintiffs' motion to compel [D.E. 93] be allowed in part and denied in part, that defendants' motion to strike [D.E. 139] be denied as moot, and recommended that plaintiffs' motion for relief pursuant to Rule 56(d) [D.E. 143] be denied, but that the pending motions for summary judgment [D.E. 125, 128, 131] be denied without prejudice. On January 23, 2015, defendants filed a joint motion and memorandum for reconsideration and clarification of the M&R and Order [D.E. 150, 151]. On February 6, 2015, plaintiffs responded in opposition to defendants' motion for reconsideration [D.E. 152]. On February 23, 2015, the Taylor defendants filed a supplemental joint motion and memorandum for reconsideration and clarification, a motion to expedite [D.E. 153, 154], and a reply to plaintiffs' response [D.E. 155]. On March 12, 2015, plaintiffs responded in opposition to the supplemental motion for reconsideration [D.E. 157]. On March 30, 2015, the Taylor defendants replied [D.E. 158].

"The Federal Magistrates Act requires a district court to make a de novo determination of those portions ofthe magistrate judge's report or specified proposed findings or recommendations towhichobjectionismade." Diamond v. Colonial Life &Accident Ins. Co., 416 F.3d 310,315 (4th Cir. 2005) (emphasis, alteration, and quotation omitted); see 28 U.S.C. § 636(b). Absent a timely objection, "a district court need not conduct a de novo review, but instead must only satisfy itselfthat there is no clear error on the face of the record in order to accept the recommendation." Diamong, 416 F.3d at 315 (quotation omitted).
The court has reviewed the M&R and Order, and the record. The court is satisfied that there is no clear error in the M&R and Order. The court has reviewed de novo the portions of the M&R and Order to which defendants objected. The court adopts the M&R and Order [D.E. 148] and overrules the objections.
Defendants' joint motion for reconsideration and clarification [D.E. 150] and the Taylor defendants' supplemental motion for reconsideration [D.E. 153] are DENIED. Defendants' motion to strike [D.E. 143], defendants' motion to expedite [D.E. 153], and plaintiffs' motion to reconsider [D.E. 119] are DISMISSED as moot.
Before filing any more discovery-related or schedule-related motions, the party shall notify Magistrate Judge Gates's chambers via written communication copied to the opposing party. If warranted, Judge Gates will hold a hearing (in person or by telephone) to resolve the discovery or scheduling issue and then file any order on the docket.
SO ORDERED. This jJ_ day of April2015.
ChiefUnited States District Judge
2

 
 90-1-24-04788
Law and Policy Section P.O. Box 7415 Washington, DC 20044

U.S. Department of Justice Environment and Natural Resources Division
Telephone (202) 514-1442 Facsimile (202) 514-4231

VIA ELECTRONIC CASE FILING

July 25, 2018

Clerk of Court United States District Court Eastern District of North Carolina P.O. Box 25670 Raleigh, NC 27611
Re: N.C. Environmental Justice Network et al. v. Taylor et al., United States District Court for the Eastern District of North Carolina, No. 4:12-cv-154-D
Dear Clerk of the Court,
I am writing to notify you that the United States has reviewed the proposed consent decree in the above-referenced matter and does not object to its entry by this court.
On July 5, 2018, the Citizen Suit Coordinator for the Department of Justice received the proposed consent decree. The document is subject to review pursuant to the Clean Water Act, 33 U.S.C. §1365(c)(3).1 This provision provides, in relevant part:
No consent judgment shall be entered in an action in which the United States is not a party prior to 45 days following the receipt of a copy of the proposed consent judgement by the Attorney General and the Administrator.
See also 40 C.F.R. § 135.5 (service on Citizen Suit Coordinator in the U.S. Department of Justice). A settlement that does not undergo this federal review process is at risk of being void.
1 For the purposes of the United States’ right of review, the term “consent judgment” in the Clean Water Act citizen suit provisions has a broad meaning and encompasses all instruments entered with the consent of the parties that have the effect of resolving any portion of the case. For example, the United States views a document stipulating to dismissal of a case of any part thereof would be within the scope of this language. Such documents and any associated instruments (even if not submitted to the Court) must be submitted to the United States for review, notwithstanding any provisions purporting to maintain the confidentiality of such materials. The Department monitors citizen suit litigation to review compliance with this requirement.

Case 4:12-cv-00154-D Document 167 Filed 07/25/18 Page 1 of 3

Pursuant to 11 U.S.C. § 362, this action was stayed on June 3, 2015 pending resolution of the bankruptcy case. ECF No. 164. On March 23, 2018, the plaintiffs and Taylor defendants (debtors in the bankruptcy case) filed a motion in the Bankruptcy Court for an order approving a settlement agreement that would resolve claims raised in this Clean Water Act case as well as the issues in the bankruptcy proceeding, including the plaintiffs’ objections to the reorganization plan and the Taylor defendants’ objections to plaintiffs’ proofs of claim. See ECF No. 166-1. A copy of that motion was received by the Department of Justice on April 16, 2018. The decision as to whether the settlement agreement is permissible under Bankruptcy Rule 9019 was made by the Bankruptcy Court for the Eastern District of North Carolina, which granted the motion on April 20, 2018, see id., however, the United States is filing its comment letter in this Court because the terms of the settlement agreement resolve issues arising from the above-referenced Clean Water Act case.
In its review, the United States seeks to ensure that the proposed consent judgment complies with the requirements of the relevant statute and is consistent with its purposes. See Local 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 525-56 (1986) (a consent decree should conform with and further the objectives of the law upon which the complaint was based). For example, if the defendant has been out of compliance with statutory or permit requirements, the proposed consent judgment should require the defendant to come into prompt compliance and should include a civil penalty, enforceable remedies, injunctive relief, and/or a supplemental environmental project (SEP) payment sufficient to deter future violations, or combinations of the above.
Section V of the proposed consent decree incorporates by reference the terms of the settlement agreement entered by the Bankruptcy Court. Under that agreement, the Taylor defendants must conduct periodic inspections of the sludge levels in the facility lagoons, complete a sludge survey, and remove sludge from the lagoons such that sludge levels do not exceed 50% of the design volume for the respective lagoon. The agreement further requires that the removed sludge be taken off site for land application and that the use of offsite land for management of swine waste continue at the same level, or greater than it was during the bankruptcy proceeding. The Taylor defendants also agree to modify the Bankruptcy Reorganization Plan to remove language that could be interpreted to relieve them of liability for future violations (i.e., post-petition violations) of state or federal environmental laws. The plaintiffs agree to not take water samples, conduct soil testing, or file any new citizen suit against the Taylor defendants for three years from the effective date of the settlement agreement.
The parties further agree in the settlement to bear their own attorneys’ fees and to not seek to recover fees. The United States notes for the record that the settlement does not incorporate civil penalties, which are an available and typically appropriate remedy under the Clean Water Act.
Given the facts of this case, the United States has no objection to the proposed consent decree. We accordingly notify the Court.
The United States affirms for the record that it is not bound by this settlement. See, e.g., Hathorn v. Lovorn, 457 U.S. 255, 268 n.23 (1982) (Attorney General is not bound by cases to which he is not a party); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found. Inc., 484 U.S.
- 2 -
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49, 60 (1987) (explaining that citizen suits are intended to “supplement rather than supplant governmental action”); Sierra Club v. Electronic Controls Design, 909 F.2d 1350, 1356 n.8 (9th Cir. 1990) (explaining that the United States is not bound by citizen suit settlements, and may “bring its own enforcement action at any time”); 131 Cong. Rec. S15, 633 (June 13, 1985) (statement of Senator Chafee, on Clean Water Act section 505(c)(3), confirming that the United States is not bound by settlements when it is not a party). The United States also notes that, if the parties subsequently propose to modify further the consent judgment entered in this case, the parties should so notify the United States, and provide a copy of the proposed modifications, 45 days before the Court enters any such modifications. See 33 U.S.C. § 1365(c)(3).
We appreciate the attention of the Court. Please contact the undersigned at (202) 3050641 if you have any questions.
Sincerely, /s/ Frederick H. Turner Frederick H. Turner, Attorney U.S. Department of Justice Environmental and Natural Resources Division Law and Policy Section P.O. Box 7415 Washington, D.C., 20044-7415
cc: Counsel of Record via ECF
- 3 -
Case 4:12-cv-00154-D Document 167 Filed 07/25/18 Page 3 of 3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION

CIVIL ACTION NO: 4:12-CV-00154-D

NORTH CAROLINA ENVIRONMENTAL JUSTICE NETWORK, NEUSE RIVERKEEPER FOUNDATION, INC., and WATERKEEPER ALLIANCE, INC.,

Plaintiffs,

v.
MR. DONALD TAYLOR AND MS. ANNIE TAYLOR, INDIVIDUALLY and d/b/a TAYLOR FINISHING, MCLAWHORN LIVESTOCK FARM, INC., MR. JUSTIN T. MCLAWHORN, and MR. AARON MCLAWHORN,

NOTICE OF LODGING OF PROPOSED CONSENT DECREE

Defendants.

Plaintiffs Neuse Riverkeeper Foundation, Inc. n/k/a Sound Rivers, Inc. (“Sound Rivers”)

and Waterkeeper Alliance, Inc. (“Waterkeeper”) (collectively “Plaintiffs”) hereby give notice to

this Court of the Proposed Consent Decree entered into between Plaintiffs and Mr. Donald Taylor

and Ms. Annie Taylor (“Taylor Defendants”), attached hereto as “Exhibit 1.” In support of the

Proposed Consent Decree, Plaintiffs show the Court the following:

1. This matter was stayed on June 3, 2015 pending settlement or resolution within the

Bankruptcy court after the Taylor Defendants filed for Chapter 11 bankruptcy protections.

2. Negotiations between Plaintiffs and Taylor Defendants occurred within the

bankruptcy process and resulted in the Parties arriving at a Settlement and Release Agreement

effective as of March 23, 2018 (Attached hereto as Exhibit B to the Proposed Consent Decree).

Case 4:12-cv-00154-D Document 166 Filed 06/29/18 Page 1 of 3

3. On April 20, 2018, the Settlement and Release Agreement was approved by the Honorable Stephani W. Humrickhouse, United States Bankruptcy Judge presiding. Judge Humrickhouse’s approval order is attached hereto as “Exhibit A” to the Proposed Consent Decree.
4. On the date of the filing of this Notice of Lodging, Plaintiffs will cause to be served a copy of this Notice with the attached Proposed Consent Decree and Settlement and Release Agreement on the Attorney General of the United States, the Administrator of the Environmental Protection Agency, and the Regional Administrator of EPA Region 4 pursuant to 33 U.S.C. § 1365(c)(3).
5. After forty-five (45) days have elapsed from service upon the DOJ and EPA, Plaintiffs will notify the Court and file a motion requesting entry of the Proposed Consent Decree. As long as the Court is informed that neither the EPA nor the Attorney General objects or otherwise seeks to intervene in this matter, this Decree may be entered by the Court.
6. A Stipulation of Voluntary Dismissal as to McLawhorn Livestock Farm, Inc., Mr. Justin T. McLawhorn, and Mr. Aaron McLawhorn shall be filed subsequent to this Notice of Lodging within seven (7) business days.
Respectfully submitted this the 29th day of June, 2018.
STRAUCH GREEN & MISTRETTA, P.C. /s/ Stanley B. Green Stanley B. Green NC Bar No. 25539 911 Paverstone Drive, Suite F Raleigh, NC 27615 Direct Telephone: 704-564-9878 Office Telephone: 919-278-7453 sgreen@sgandm.com Attorney for Plaintiffs Sound Rivers, Inc. and Waterkeeper Alliance, Inc.
Case 4:12-cv-00154-D Document 166 Filed 06/29/18 Page 2 of 3

CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that on this day the foregoing Notice of Lodging of Proposed Consent Decree was served upon the attorney(s) of record for all parties in this action by filing the document with the Court’s CM/ECF system, with a courtesy copy sent via Email to:
David J. Haidt Ayers & Haidt, PA davidhaidt@embarqmail.com Bankruptcy Counsel for Taylor Defendants Frederick H. Turner Attorney, U.S. Department of Justice Environment and Natural Resources Division Law and Policy Section frederick.turner@usdoj.gov
This the 29th Day of June, 2018.
STRAUCH GREEN & MISTRETTA, P.C. /s/ Stanley B. Green Stanley B. Green 911 Paverstone Drive, Suite F Raleigh, NC 27615 Direct Telephone: 704-564-9878 Office Telephone: 919-278-7453 sgreen@sgandm.com Attorney for Plaintiffs Sound Rivers, Inc. and Waterkeeper Alliance, Inc.
Case 4:12-cv-00154-D Document 166 Filed 06/29/18 Page 3 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION

CIVIL ACTION NO: 4:12-CV-00154-D

NORTH CAROLINA ENVIRONMENTAL JUSTICE NETWORK, NEUSE RIVERKEEPER FOUNDATION, INC., and WATERKEEPER ALLIANCE, INC.,

Exhibit 1

Plaintiffs,

v.
MR. DONALD TAYLOR AND MS. ANNIE TAYLOR, INDIVIDUALLY and d/b/a TAYLOR FINISHING, MCLAWHORN LIVESTOCK FARM, INC., MR. JUSTIN T. MCLAWHORN, and MR. AARON MCLAWHORN,

[PROPOSED] CONSENT DECREE

Defendants.

The following Consent Decree is entered into by and between Plaintiffs Neuse Riverkeeper

Foundation, Inc. n/k/a Sound Rivers, Inc. (“Sound Rivers”) and Waterkeeper Alliance, Inc.

(“Waterkeeper”) and Defendants Donald Taylor and Annie Taylor, individually and d/b/a Taylor

Finishing (collectively the “Taylor Defendants”). The entities and persons entering into this

Consent Decree are each an individual “Party” and collectively the “Parties.”

RECITALS

WHEREAS, on August 31, 2012 Plaintiffs filed an Amended Complaint against the

Defendants in the United States District Court for the Eastern District of North Carolina, Case No.

4:12-CV-00154-D, alleging violations of the substantive requirements of the Clean Water Act, 33

U.S.C. § 1365 (“Clean Water Act” or “CWA”) and the Resource Conservation and Recovery Act,

42 U.S.C. § 6972 (“Resource Conservation and Recovery Act” or “RCRA”);

1 Case 4:12-cv-00154-D Document 166-1 Filed 06/29/18 Page 1 of 29

WHEREAS, the Defendants deny any and all of Plaintiffs’ allegations and claims as set forth in the Complaint;
WHEREAS, this matter was automatically stayed on June 3, 2015 pursuant to the automatic stay provisions of the Bankruptcy Code after the Taylor Defendants declared bankruptcy and filed notice of bankruptcy proceedings with this Court;
WHEREAS, Plaintiffs and the Taylor Defendants have entered into a Settlement Agreement (attached hereto as Exhibit A), and that Agreement was submitted to the Bankruptcy Court for approval on March 23, 2018;
WHEREAS, the Bankruptcy Court for the Eastern District of North Carolina entered an order approving the Settlement Agreement on April 20, 2018 (attached hereto as “Exhibit A”);
WHEREAS, notice of that settlement in the bankruptcy proceedings was received by the Environmental Protection Agency (“EPA”) and Department of Justice (“DOJ”) on April 16, 2018;
WHEREAS, the Taylor Defendants’ filed their Amended Plan of Reorganization on April 4, 2018;
WHEREAS, the Parties have agreed that it is in the Parties’ mutual interest to enter into a Consent Decree setting forth the terms and conditions appropriate for resolving Plaintiff’s allegations set forth in the Complaint without further proceedings, and Plaintiffs and Taylor Defendants have consented to the entry of this Consent Decree and Order without trial of any issues, and hereby stipulate that, in order to settle the claims alleged in the Complaint this Consent Decree should be entered;
NOW THEREFORE, it is hereby stipulated and agreed by the Parties, and ORDERED, ADJUDGED, and DECREED by this Court as follows:
CONSENT DECREE
2
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1. The above RECITALS are incorporated into and shall become a part of this Consent Decree.
I. JURISDICTION 2. For purposes of entry of this Consent Decree, the Parties agree this Court has jurisdiction over the subject matter and the Parties in this action pursuant to Section 505(a) of the CWA, 33 U.S.C. § 1365(a), and Section 7002(a) of the RCRA, 42 U.S.C. § 6972(a). 3. Venue is proper in the Eastern District of North Carolina pursuant to Section 505(c)(1) of the CWA, 33 U.S.C. § 1365(c)(1), because this is the judicial district in which the Defendants are located. The Complaint states claims upon which relief may be granted pursuant to Section 505(a)(1) of the CWA, 33 U.S.C. § 1365(a)(1), and Section 7002(a) of the RCRA, 42 U.S.C. § 6972(a). 4. Plaintiffs have standing to bring this action. 5. Plaintiffs have complied with 33 U.S.C. § 1365(c)(3) and met the notice requirements therein. 6. The Court shall retain jurisdiction over this matter for purposes of enforcing the terms of this Consent Decree for the life of the Consent Decree, or as long thereafter as is necessary for the Court to resolve any motion to enforce this Consent Decree.
II. LODGING AND APPROVAL OF DECREE 7. Pursuant to Section 505(c)(3) of the CWA, 33 U.S.C. § 1365(c)(3), this Consent Decree will be lodged with the Court and presented to the U.S. Attorney General and U.S. Environmental Protection Agency for review and comment as required by law. Plaintiffs shall cause to be served a copy of this Decree upon the Attorney General, the Administrator of the EPA, and the Regional Administrator of EPA Region 4. Once Plaintiffs receive notice of the dates upon
3
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which the EPA and the Attorney General have received the proposed Consent Decree, Plaintiffs shall inform the Court of the dates of service and inform the Court whether the EPA or the Attorney General objects or otherwise desires to intervene. As long as the Court is informed that neither the EPA nor the Attorney General objects or otherwise seeks to intervene in this matter, this Decree may be entered by the Court. No consent judgment shall be entered in an action in which the United States is not a party prior to the forty-five (45) days following receipt of a copy of the proposed consent judgment by the Attorney General and the Administrator. 33 U.S.C. § 1365(c)(3).
III. APPLICABILITY AND BINDING EFFECT 8. This Consent Decree shall apply and be binding upon the Parties hereto, and their successors, managers, owners, assigns, affiliates, agents, predecessors, officers, directors, employees, members, and representatives. To the extent that federal law (including federal principles of res judicata) allows, this Consent Decree shall be considered binding upon all persons and entities who may hereafter file a citizen suit against the Taylor Defendants regarding claims that are the subject of this Consent Decree. However, this Consent Decree shall not be construed to limit the authority of the United States or the State of North Carolina to take whatever action it deems necessary to enforce the laws of the United States or of the State of North Carolina.
IV. EFFECTIVE DATE 9. The Effective Date of this Consent Decree shall be the date upon which the Court enters this Decree or grants a motion to enter this Consent Decree, whichever occurs first, as recorded on the Court’s docket.
V. TERMS AND INTEGRATION
4
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10. All terms of the Settlement Agreement, signed and dated by all parties as of March 23, 2018, are hereby incorporated into this Consent Decree as though fully set forth herein. The Settlement and Release Agreement is attached hereto as “Exhibit B.”
11. No term of the Settlement Agreement or this Consent Decree shall be deemed or construed as an admission of liability by the Taylor Defendants in this matter.
12. This Consent Decree constitutes the final and complete agreement and understanding among the Parties with respect to the settlement embodied herein. This Consent Decree supersedes all prior agreements and understandings, whether oral or written, concerning the settlement embodied herein, except that the Settlement Agreement dated March 23, 2018 shall remain effective between the Parties and this Consent Decree shall not interfere or conflict with the Order of the Bankruptcy Court related to this matter.
VI. COSTS AND ATTORNEYS FEES 13. Each Party shall bear their own costs and attorneys’ fees in this matter. This Consent Decree makes no findings of liability under the CWA or RCRA, and no costs or fees shall be awarded to any party under the fee shifting provisions of those statutes.
VII. SIGNATURES 14. Each undersigned representative of the Parties certifies that he or she is fully authorized to enter into the terms and conditions of this Consent Decree and to execute and legally bind the Party he or she represents to this document. 15. This Consent Decree may be signed in counterparts and its validity shall not be challenged on that basis.
VIII. FINAL JUDGMENT
5
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16. Upon approval and entry of this Consent Decree by the Court, this Consent Decree shall constitute a final judgment of the Court as to the claims alleged by Plaintiffs against the Taylor Defendants.
17. On the Effective Date of this Consent Decree, this matter shall be dismissed with prejudice. The Court shall retain jurisdiction to ensure that the terms of this Consent Decree are satisfied.
18. The Court hereby finds that: a. This Consent Decree has been negotiated in good faith and at arm’s length; b. This Consent Decree is fair, reasonable, and in the best interests of the Parties and in the public interest; c. This Consent decree is consistent with the goals of the Clean Water Act and the Resource Conservation and Recovery Act.
This the ___ day of ____________, 2018.
The Honorable James C. Dever III Chief United States District Judge
[SIGNATURE PAGE FOLLOWS]
6 Case 4:12-cv-00154-D Document 166-1 Filed 06/29/18 Page 6 of 29

/s/ Stanley B. Green Counsel of Record for Plaintiffs 6/29/18 /s/ Stanley B. Green Counsel of Record for Plaintiffs 6/29/18
/s/ Stanley B. Green
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Case 15-02730-5-SWH Doc 379 Filed 04/20/18 Entered 04/20/18 13:31:40 Page 1 of 1

SO ORDERED. SIGNED this 20 day of April, 2018.

Exhibit A

___________________________________________ Stephani W. Humrickhouse
United States Bankruptcy Judge
_________________________________________________________________________

UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NEW BERN DIVISION

In the Matter of: DONALD E. TAYLOR, ANNIE T. TAYLOR,
Debtors.

Case No.: 15-02730-5-SWH Chapter 11

ORDER APPROVING COMPROMISE AND SETTLEMENT OF CLAIMS, PLAN OBJECTIONS AND OBJECTIONS TO CLAIMS UNDER BANKRUPTCY RULE 9019
THIS MATTER, coming on before the Bankruptcy Court upon the Motion of Debtor seeking an Order approving the Settlement and Release Agreement with Waterkeeper Alliance, Inc. and Sound Rivers, Inc., and it appearing that good cause exists,
IT IS THERFORE ORDERED, ADJUDGED AND DECREED that the Motion for Order Approving Compromise and Settlement of Claims, Plan Objection and Objections to Claims is hereby GRANTED pursuant to Bankruptcy Rule 9019 and the executed Settlement and Release Agreement attached to the Motion is hereby APPROVED.

END OF DOCUMENT
1

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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION

CIVIL ACTION NO: 4:12-CV-00154-D

NORTHCAROLINA ENVIRONMENTAL JUSTICE NETWORK, NEUSE RIVERKEEPER FOUNDATION, INC., and WATERKEEPER ALLIANCE, INC.,

Plaintiffs,

V.
MR. DONALD TAYLOR AND MS. ANNIE TAYLOR, INDIVIDUALLY and d/b/a TAYLOR FINISHING, MCLAWHORN LIVESTOCK FARM, INC., MR. JUSTIN T. MCLAWHORN, and MR. AARON MCLAWHORN,

CONSENT DECREE

Defendants.

The following Consent Decree is entered into by and between Plaintiffs Neuse Riverkeeper

Foundation, Inc. nlk/a Sound Rivers, Inc. ("Sound Rivers") and Waterkeeper Alliance, Inc.

("Waterkeepe'r") and Defendants Donald Taylor and Annie Taylor, individually and d/b/a Taylor

Finishing (collectively the "Taylor Defendants"). The entities and persons entering into this

Consent Decree are each an individual "Party" and collectively the "Parties."

RECITALS

WHEREAS, on August 31, 2012 Plaintiffs filed an Amended Complaint against the

Defendants in the United States District Court for the Eastern District of North Carolina, Case No.

4:12-CV-00154-D, alleging violations ofthe substantive requirements ofthe Clean Water Act, 33

U.S.C. § 1365 ("Clean Water Act" or "CWA") and the Resource Conservation and Recovery Act,

42 U.S.C. § 6972 ("Resource Conservation and Recovery Act" or "RCRA");

1

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WHEREAS, the Defendants deny any and all of Plaintiffs' allegations and claims as set forth in the Complaint;
WHEREAS, this matter was automatically stayed on June 3, 2015 pursuant to the automatic stay provisions ofthe Bankruptcy Code after the Taylor Defendants declared bankruptcy and filed notice of bankruptcy proceedings with this Court;
WHEREAS, Plaintiffs and the Taylor Defendants have entered into a Settlement Agreement (attached hereto as Exhibit A), and that Agreement was submitted to the Bankruptcy Court for approval on March 23, 2018;
WHEREAS, the Bankruptcy Court for the Eastern District of North Carolina entered an order approving the Settlement Agreement on April20, 2018 (attached hereto as "Exhibit A");
WHEREAS, notice of that settlement in the bankruptcy proceedings was received by the Environmental Protection Agency ("EPA") and Department of Justice ("DOJ") on Apri116, 2018;
WHEREAS, the Taylor Defendants' filed their Amended Plan of Reorganization on April 4, 2018;
WHEREAS, the Parties have agreed that it is in the Parties' mutual interest to enter into a Consent Decree setting forth the terms and conditions appropriate for resolving Plaintiffs allegations set forth in the Complaint without further proceedings, and Plaintiffs and Taylor Defendants have consented to the entry of this Consent Decree and Order without trial of any issues, and hereby stipulate that, in order to settle the claims alleged in the Complaint this Consent Decree should be entered;
NOW THEREFORE, it is hereby stipulated and ag_reed by the Parties, and ORDERED, ADJUDGED, and DECREED by this Court as follows:
CONSENT DECREE
2
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1. The above RECITALS are incorporated into and shall become a part ofthis Consent Decree.
I. JURISDICTION 2. For purposes of entry of this Consent Decree, the Parties agree this Court has jurisdiction over the subject matter and the Parties in this action pursuant to Section 505(a) of the CWA, 33 U.S.C. § 1365(a), and Section 7002(a) ofthe RCRA, 42 U.S.C. § 6972(a). 3. Venue is proper in the Eastern District of North Carolina pursuant to Section 505(c)(l) ofthe CWA, 33 U.S.C. § 1365(c)(l), because this is the judicial district in which the Defendants are located. The Complaint states claims upon which relief may be granted pursuant to Section 505(a)(l) ofthe.CWA, 33 U.S.C. § 1365(a)(l), and Section 7002(a) ofthe RCRA, 42 U.S.C. § 6972(a). 4. Plaintiffs have standing to bring this action. 5. Plaintiffs have complied with 33 U.S.C. § 1365(c)(3) and met the notice requirements therein. 6. The Court shall retain jurisdiction over this matter for purposes of enforcing the terms ofthis Consent Decree for the life of the Consent Decree, or as long thereafter as is necessary for the Court to resolve any motion to enforce this Consent Decree.
II. LODGING AND APPROVAL OF DECREE 7. Pursuant to Section 505(c)(3) of the CWA, 33 U.S. C. § 1365(c)(3), this Consent Decree will be lodged with the Court and presented to the U.S. Attorney General and U.S. Environmental Protection Agency for review and comment as required by law. Plaintiffs shall cause to be served a copy of this Decree upon the Attorney General, the Administrator of the EPA, and the Regional Administrator ofEPA Region 4. Once Plaintiffs receive notice ofthe dates upon
3
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w~ich the EPA and the Attorney General have received the proposed Consent Decree, Plaintiffs shall inform the Court ofthe dates of service and inform the Court whether the EPA or the Attorney
\
General objects or otherwise desires to intervene. As long as the Court is informe·d that neither the EPA nor the Attorney General objects or otherwise seeks to intervene in this matter, this Decree may be entered by the Court. No consent judgment shall be entered in an action in which the United States is not a party prior to the forty-five (45) days following receipt of a copy of the proposed consent judgment by the Attorney General and the Administrator. 33 U.S.C. § 1365(c)(3).
III. APPLICABILITY AND BINDING EFFECT 8. This Consent Decree shall apply and be binding upon the Parties hereto, and their successors, managers, owners, assigns, affiliates, agents, predecessors, officers, directors, employees, members, and representatives. To the extent that federal law (including federal principles ofresjudicata) allows, this Consent Decree shall be considered binding upon all persons and entities who may hereafter file a citizen suit against the Taylor Defendants regarding claims that are the subject of this Consent Decree. However, this Consent Decree shall not be construed to limit the authority of the United States or the State of North Carolina to take whatever action it deems necessary to enforce the laws of the United States or of the State of North Carolina.
IV. EFFECTIVE DATE 9. The Effective Date of this Consent Decree shall be the date upon which the Court enters this Decree or grants a motion to enter this Consent Decree, whichever occurs first, as recorded on the Court's docket.
V. TERMS AND INTEGRATION
4
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10. All terms of the Settlement Agreement, signed and dated by all parties as of March 23, 2018, are hereby incorporated into this Consent Decree as though fully set forth herein. The Settlement and Release Agreement is attached hereto as "Exhibit B."
11. No term of the Settlement Agreement or this Consent Decree shall be deemed or construed as an admission ofliability by the Taylor Defendants in this matter.
12. This Consent Decree constitutes the fmal and complete agreement and understanding among the Parties with respect to the settlement embodied herein. This Consent Decree supersedes all prior agreements and understandings, whether oral or written, concerning the settlement embodied herein, except that the Settlement Agreement dated March 23, 2018 shall remain effective between the Parties and this Consent Decree shall not interfere or conflict with the Order of the Bankruptcy Court related to this matter.
VI. COSTS AND ATTORNEYS FEES 13. Each Party shall bear their own costs and attorneys' fees in this matter. This Consent Decree makes no fmdings of liability under the CWA or RCRA, and no costs or fees shall be awarded to any party under the fee shifting provisions of those statutes.
VII. SIGNATURES 14. Each undersigned representative of the Parties certifies that he or she is fully authorized to enter into the terms and conditions ofthis Consent Decree and to execute and legally bind the Party he or she represents to this document. 15. This Consent Decree may be signed in counterparts and its validity shall not be challenged on that basis.
VIII. FINAL JUDGMENT
5
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16. Upon approval and entry of this Consent Decree by the Court, this Consent Decree shall constitute a fmal judgment of the Court as to the claims alleged by Plaintiffs against the Taylor Defendants.
17. On the Effective Date of this Consent Decree, this matter shall be dismissed with prejudice. The Court shall retain jurisdiction to ensure that the terms of this Consent Decree are satisfied.
18. The Court hereby finds that: a. This Consent Decree has been negotiated in good faith and at arm's length; b. This Consent Decree is fair, reasonable, and in the best interests of the Parties and in the public interest; c. This Consent decree is consistent with the goals ofthe Clean Water Act and the Resource Conservation and Recovery Act.

Au3 This the li_ day of

u.s± , 2018.

[SIGNATURE PAGE FOLLOWS]
6
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AGREED TO AND ACCEPTED BY:

Waterkeeper Alliance, Inc.
Is/ Stanley B. Green
By: Title: Counsel of Record for Plaintiffs Date: 6/29/18
Neuse Riverkeeper Foundation, Inc. n/k/a Sound Rivers, Inc.

Donald E. Taylor, individually and d/b/a Taylor Finishing
·p~J2EJI+,
Date: s·- ;;) .2.. -d-O ( g
Annie T. Taylor, individually and d/b/a Taylor Finishing

Is/ Stanley B. Green
By: Title: Counsel of Record for Plaintiffs Date: 6/29/18

APPROVED AS TO FORM AND SUBSTANCE:

Is/ Stanley B. Green
Stanley B. Green Strauch Green & Mistretta, P.C. 911 Paverstone Drive, Suite F Raleigh, NC 27615 Phone:(704)564-9878 Fax: (336) 725-8867 Email: sgreen@sgandm.com Attorney for Plaintiffs Waterlceeper Foundation, Inc. and Sound Rivers, Inc.

/s/ oavi d J Haj dt David J. Haidt Ayers & Haidt, PA Post Office Box 1544 New Bern, NC 28563 Phone: (252) 638-2955 Fax: (252) 638-3293 Email: davidhaidt@embarqmaH.com
Attorneyfor Defendants Donald Taylor and
Annie Taylor

7 Case 4:12-cv-00154-D Document 168 Filed 08/13/18 Page 7 of 29

Case 15-02730-5-SWH Doc 379 Filed 04/20/18 Entered 04/20/18 13:31·

SO ORDERED. SIGNED .this 20 day of April, 2018.

Exhibit A
ApLv~ 01. L;!JU/7~
Stephani W. Humrickhouse United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NEW BERN DIVISION

In the Matter of: DONALD E. TAYLOR, ANNIE T. TAYLOR,
Debtors.

Case No.: 15-02730-5-SWH Chapter 11

ORDER APPROVING COMPROMISE AND SETTLEMENT OF CLAIMS, PLAN OBJECTIONS AND OBJECTIONS TO CLAIMS UNDER BANKRUPTCY RULE 9019
THIS MATTER, coming on before the Bankruptcy Court upon the Motion ofDebtor seeking an Order approving the Settlement and Release Agreement with Waterkeeper Alliance, Inc. and Sound Rivers, Inc., and it appearing that good cause exists,
IT IS THERFORE ORDERED, ADJUDGED AND DECREED that the Motion for Order Approving Compromise and Settlement of Claims, Plan Objection and Objections to Claims is hereby GRANTED pursuant to Bankruptcy Rule 9019 and the executed Settlement and Release Agreement attached to the Motion is hereby APPROVED.

END OF DOCUMENT

Case 4:12-cv-00154-D Document 168 Filed 08/13/18 Page 8 of 29

Case 15-02730-5-SWH Doc 370 Filed 03/23/18 Entered 03/23/18 17:05:41 Page 1 of 24

IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NEW BERN DIVISION

Exhibit B

In the Matter of: DONALD E. TAYLOR, ANNIE T. TAYLOR,
Debtors.

Case No.: 15-02730-5-SWH Chapter 11

MOTION FOR ORDER APPROVING COMPROMISE AND SETTLEMENT OF CLAIMS, PLAN OBJECTION AND OBJECTIONS TO CLAIMS

NOW COME Donald E..Taylor and Annie T. Taylor (the "Debtors"), by and through

undersigned counsel, and hereby move the Court (the "Motion") pursuant to Rule 9019 of the

Federal Rules of Bankruptcy Procedure, for the entry of an Order approving the compromise and

settlement ofall claims and controversies, including pending objections to claims filed in the above-

captioned case, by and between the Debtors and Waterkeeper Alliance, Inc. and Sound Rivers, Inc.

In support thereof, the Debtors show unto the Coutt as follows:

1.

This Court has jurisdiction over this Motion pursuant to 28 U.S.C. §§ 151, 157, and

1334. This matter is a core proceeding pursuant to 28 U.S.C. §157, and the court has jurisdiction

pursuantto 28 U.S.C. §§ 151, 157, and 1334. The court has the authority to hear this matter pursuant to the General Order ofReference entered August 3, 1984, by the United States District Court for the

Eastern District of North Carolina.

2.

Venue is proper in this district pursuant to 28 U.S.C. § 1408.

3. · On or about May 14, 2015, the Debtors filed a voluntary petition under Chapter 11 of

the United States Bankruptcy Code. Prior to the filing of the petition, on July 27, 2012 Neuse Riverkeeper Foundation, Inc. (now known as "Sound Rivers, Inc." and hereinafter referred to as "Sound Rivers") and Waterkeeper Alliance, Inc. ("Waterkeeper Alliance") commenced a civil action

under the citizen suit provisions ofthe Federal Water Pollution Control Act, as amended, 33 U.S.C.

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Case 15-02730-5-SWH Doc 370 Filed 03/23/18 Entered 03/23/18 17:05:41 Page 2 of 24

§ 1365, and the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(l)(A),

(hereinafter the "Lawsuit") against the Debtors individually and d/b/a Taylor Finishing, Justin T.

McLawhorn, and Aaron McLawhorn for alleged violations of federal environmental laws.

Collectively, the Debtors, Waterkeeper Alliance and Sound Rivers shall be referred to as the

"Parties."

4.

Asserting claims and remedies set forth in the Lawsuit, Waterkeeper Alliance filed

three proofs of claim in the bankruptcy proceeding ("Proofs of Claim Nos. 17, 18 and 19") on

September 14,2015 and Sound Rivers filed two proofs ofclaim ("Proofs ofClaim Nos. 20 and 21)

on the same date. The Debtors filed objections (the "Claim Objections") to each ofthese claims on
\
October 8, 2015 and said Claim Objections are pending before the Court.

5.

The Debtors filed their Plan ofReorganization ("Plan") and Disclosure Statement on

July 6, 2016. Waterkeeper Alliance and Sound Rivers filed their objections (the "Plan Objection") to

the Plan and Disclosure Statement on August 19, 2016. The Plan and objections thereto, including

the Plan Objection, are currently pending before the Court.

6.

As a result of lengthy negotiations, the Parties reached a compromise (the

"Compromise") to settle all controversies and issues between and among the Parties relating to the

claims asserted in the Lawsuit and this bankruptcy proceeding, including the Plan Objection and

Claim Objections.

· 7. To memorialize the Compromise, the Parties have drafted and executed a Settlement

and Release Agreement effective as of March 23,2018. A true and accurate copyofthe Settlement

and Release Agreement is attached hereto as Exhibit A and incorporated herein by reference.

2
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Case 15-02730-5-SWH Doc 370 Filed 03/23/18 Entered 03/23/18 17:05:41 Page 3 of 24
8. In considering the terms ofthe Compromise, the Parties have taken into consideration existing factual and legal disputes, including the strengths and weaknesses ofthe Parties' positions, the equities involved, the information available to the Parties and the costs and risks of litigation.
9. The Debtors believe that the proposed Compromise and settlement is fair and reasonable, and that approval ofthe terms set forth in the Settlement and Release Agreement is in the best interest of the bankruptcy estate.
Wherefore, the Debtors pray to the Court as follows: I. For an Order from the Court granting the Compromise according to the terms as set forth in the Settlement and Release Agreement; and 2. For such other and further relief as the Court deems just and proper. DATED: March 23,2018
AYERS & HAIDT, P.A.
Is/ David J. Haidt By: David J. Haidt N.C. State Bar No. 22092 Attorneys for the Debtors Post Office Box 1544 New Bern, North Carolina 28563 (252) 638-2955 telephone (252) 638-3293 facsimile davidhaidt@embarqmail.com
3
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Case 15-02730-5-SWH Doc 370 Filed 03/23/18 Entered 03/23/18 17:05:41 Page 4 of 24
/

IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NEW BERN DIVISION

In the Matter of: DONALD E. TAYLOR, ANNIE T. TAYLOR,
Debtors.

Case No.: 15-02730-5-SWH Chapter I I

NOTICE OF DEBTORS' MOTION FOR ORDER APPROVING COMPROMISE AND SETTLEMENT OF CLAIMS, PLAN OBJECTION AND OBJECTIONS TO CLAIMS

NOTICE IS HEREBY GIVEN that the Debtors, by and through their undersigned counsel, have filed a Motion for Order Approving Compromise and Settlement ofClaims, Plan Objection and Objections to Claims, arising from controversies between the Debtors and Waterkeeper Alliance, Inc. and Sound Rivers, Inc.
Your rights may be affected. You should read these papers carefully and discuss them with your attorney, ifyou have one in this bankruptcy case. (Ifyou do not have an attorney, you may wish to consult one.)
Ifyou do not want the court to grant the reliefsought in the motion, or ifyou want the court to consider your views on the motion, then on or before Aprill3, 2018 unless otherwise ordered, you or your attorney must file with the court, pursuant to Local Rule 9013-1 and 9014-1, a written response, an answer explaining your position, and a request for hearing at: Clerk, United States ~ankruptcy Court, Post Office Box 791, Raleigh, NC 27602.
Ifyou mail your response to the court for filing, you must mail it early enough so the court will receive it on or before the date stated above. You must also mail a copy to the undersigned as well as the additional parties shown on the attached Certificate of Service.
Ifa response and a request for hearing is filed in writing on or before the date set above, a hearing will be conducted on the motion at a date, time and place to be later set and all parties will be notified accordingly.

Ifyou or your attorney do not take these steps, the court may decide that you do not oppose the relief

sought in the motion and may enter an order granting that relief.

·

DATE OF NOTICE: March 23,2018

AYERS & HAIDT, P.A.
Is/ David J. Haidt By: David J. Haidt N.C. State Bar No. 22092 Attorneys for the Debtors Post Office Box 1544 New Bern, North Carolina 28563 (252) 638-2955 telephone (252) 638-3293 facsimile davidhaidt@embarqmail.com

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Case 15-02730-5-SWH

Doc 370 Filed 03/23/18 Entered 03/23/18 17:05:41 24
CERTIFICATE OF SERVICE

Page 5 of

I, David J. Haidt, Post Office Drawer 1544, New Bern, North Carolina 28563, certifY:

That I am, and at all times hereinafter mentioned was, more than eighteen (18) years ofage;

That on the 23n1 day of March, 20 I8, a member of my office staff served copies of the foregoing Motion and Notice ofMotion on the parties listed by electronic service and/or regular mail, postage prepaid.

I certifY under penalty of perjury that the foregoing is true and correct.

EXECUTED ON: March 23,2018

BY: Is/ David J. Haidt DAVID J. HAIDT N.C. State Bar No. 22092

TO:

Bankruptcy Administrator (VIA CM/ECF)

Stanley B. Green, Esq. (VIA CM/ECF) Attorney for Waterkeeper Alliance, Inc. and Sound Rivers, Inc.

See attached Exhibit "A"

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Case 15-02730-5-SWH Doc 370 Filed 03/23/18 Entered 03/23/18 17:05:41 Page 6 of 24
SETTLEMENT AND RELEASE AGREEMENT WHEREAS, on July 27, 2012, Neuse Rivet·keeper Foundation, Inc. (currently known as "Smfnd Rivers,. !ric."} and Watet-keepe~ Alliance, Inc. (collectively, "~laintifls"), commenced a eivil action under the citizen suit pt·ovisions of the Fedel'al Water Pollution Control Act, as amended, 33 lJ.S.C. § 13.65, and the Resource Conservation and Recovery Act (''RCRA"), 42 U.S.C. § 6972(a)(l )(A), (hereh1after· "Civil Case") against Mt·. Donald Taylm• and Ms. Annie Taylor ("Taylor Defendants") individually and d/b/a Taylor Finishing (formerly known as McLawhom Livestock Farn1 (Banks)), McLawhbt'il Livestock Fatm, Inc. (also known as
McLawhorn Livestock Farms (Banks)), Mr. Justin T. McLawhorn, and· Mr·. Aaron McLawhtwn
(collectively ''McLa,vhorn Defendantsv) for alleged violations of federal envir~mmentallaws. Plaintiffs filed their Amended Complaint on Apl'il25, 2013;
WHEREAS, Plaintiffs' Civil. Case alleges, int~r alia, that the r.x:_aylor Defendants, Taylor Finishihg (hereinafter "Facility"), McLawhom Livestock Fru·m~ lrtc;1 and the McLawhom Defendants (collectively "Defei1dants") caused the release of polltltants, inCluding nitrogen, phosphorus and bacteria, onto the lands and into waters surrounding the Facility, which is located in the coastal plain of North Carolina w{thin the Neuse Rive!' Basin. Plaintiff.c; futther alleged that Oetendants have caused, and/or continue to cause, illegal discharges ofpollutants without a permit, illegu Iopen dmnpiilg ofswine waste, and/or illegaltreatment, st01~nge, altd disposal ofswine waste, cr·eating an irnminertt and substantial endangerment to human health and the environment in violiitio11 of the CWA and/or· RCRA;
WHEREAS, Plaintiffs' Complaint seeks (I) a decla!'atory judgment, injunctive relief;. the imposition of civil penalties, and the aWat·d of costs, including·attorneys' and expert witness' fees fi·om the Taylpr· Defendants for· aJleged repeatc;d violatiQn of the C\VA through ·Continuously
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Case 15-02730-5-SWH Doc 370 Filed 03/23/18 Entered 03/23/18 17:05:41 Page 7 of 24
.discharges of pollutants into the waters ofthe United States fi·orn the Facility without a National Pollution Dischat·ge Elimination System ("NPDES") pel'm it) 33 U.S.C. §§ 131 I(a), 1342, 1362(14); (2) a declaratory judgmet1t, injunctive. reliei: the iniposition of Civil penalties, and the award of costs, including attomeys) and expett witrtess; fees, from the Taylor Defendants fm· alleged repeated violations ofthe prohibition in RCRA, Section 4005(a), 42 U:S.C. § 6945(a), agaihst the: open duti1pirig of solid waste in the foni1 of swjrie waste; and (3) a declaratory judgment, injunctive reliet: the imposition of civil penalties, and the award of costs, including attorneys' fees and expert witness' lees, !Tom the McLawhorn Defendants and Taylor Defendants for alleged contributions to the past: and present treatment, storage, and cjisposal ofsolid waste that may pt·esent an imminent and substantial endangerment to the heal(h and/or environment in violation of7002(a)(l)(B) ofRCRA 42 U.S.C. § 6972(a)(I)(B);
WHEREAS, Defendants have genet·ally deilied the allegations set forth the' Complaint and deuy that they are lhib le for violatioits of the CWA and RCRA;
WHEREAS, on May 14, :2015, the Taylor Defendants filed a voluntary petition for relief 1,111der Chapter II of the United .States Bankruptcy Code and ctmently operate as debtors-inpossession, Bankruptcy Court for the Eastern District of North Carolina - Case No. I5-02730-5~ SWH, ('1Bankmptcy Prqceeding''). On June3, 2Ql5, District Court Judge Dever entered an Order staying all proceedings in the Lawsuit pmsuarit tp II U.S.C. § 362 as it t•eceived Debtors' filing oil May 18, 2015. On October 25, 2017, the Taylot· Defendants and Plaintiffs (hereafter the "Parties'') announced to the Bankruptcy Cotut that they had J"each a settle.rnent;jh principle upon terms read into the record before the Bankruptcy Court. The Taylor Defendants and Plaintiffs .agreed that their settlement wiil be subject to approval of the Bankruptcy Coul't and incorporated in the Reorganization Plan tor the purpose of effectuating a global resolution and settlement of
2
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Case 15-02730-5-SWH Doc 370 Filed 03/23/18 Entered 03/23/18 17:05:41 Page 8 of 24
the Civil Case and all cJaims and controversies assertect by the Plaintiff.<; against the Taylor Defendants or existing between the Parties in the Bat1kruptcy Proceeding and in District Court;
WHEREAS, the Pa1ties.agree, without flMl adjudication of the issues of Hict or law, that
settlement ofthis matter is fair, reasonable and in the publie interest, and stipulate that in order to resolve the claims set forth in Plaintiff's Amended Complaint, this Settlement Agreement is in the best interests of the Parties thereto;
WHEREAS, settlement of these claims does riot constitute an admission of liability by Defendants, nor does settlement constitute an acknowledgement by Defendants that the Facility posed or poses a threat to human health or the environment. Putther, settlement of these claims does n.ot constitute an admission by Pluintiffs that the Facility is in compliance with the CWA or
RCRA, nor does it constitute an acknowledgement by Plaintiffs that the Facility does not pose a th1·eat to human he!tlth ot· theenvil'pnment; and
WHEREAS, PlaintifiS and Taylor DeH~ildants agree that it is in the interest of the public, the Parties, and judicial ecoriomy to resolve the claims in this lawsuit without ful'ther litigation.
NOW, THEREFORE, the Parties hereby agree.as follows:
I. APPLlCATION AND SCOPE I. Binding Nature: The provisions of this Settlement Agreement shall apply t6, and be
binding upon, the Parties, as well as their officet·s, directot·s, employees, successors, attd
assi~ns.
2. Effective· Date: This Settlement Agreement, and all ofthe provisions herein, shall become effective, llindh)g and entbrceable upon the Bankruptcy Court'.s entry of an Order approving its terms in accordance with 33 U.S.C. ~ 136S(c)(3). II. DE.FINITIONS
(
3
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3. ~he following definitions shall apply to this SettlementAgreement: a. "Sludge" means solid, semi-solid, liquid or slurt·y i·esidue generated during the tt·catment oi· storage of animal waste. b. "Design Volume" means the design minimum tt·eatment volume as described in U.S. Department of' Agriculture North Car9li11a Practice Standard 359. c. "Offsite" means land application areas located outside ofthe FaCility boundaries reOected on Exhibit I. d. '\Lagoon" means a confined body of water to hold animal byproducts including bodily waste n·om animals or a mixtttre ofwaste with feed, bedding, litter or other agricultural matel'ials. e. "Lagoon I'' means the sm.allest lagoon lpcated on the western side of the confinement barns. f. "Lagoon 2" means the lagoon located on tl1e northeastet'n side of the confinement batns.
g. "Lagoon .3" means the lagoon locate.d on the: southeastern side ofthe confinement barns.
h. ''FacilitY's Permit" meat1s Permi~AWS 520002 issued .to the Taylor Oetendan~ by the North Carolina Department ofErtviroilmei1tal Quality, irtcludihg their Certified
Anhnul Waste Management Plart, and subs·eqtient permits goverr1h1g the operation
of th~ animal waste management system of the Taylor Defendants by any penn itting agency. i. "Reot·ganization Plan" means the Plan of Reorganization filed by the Taylor Defendants in the U.S. Bankruptcy Cout't for the Eastern Distrkt ofNorlh Carolina,
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New Bem Division, Case No. 15-02730·5-SWH [Doc. No. 223] (July 6, 201 6) and modi lkatiorts thereto. j; "Plaintiff.-;" shall mean the Plaintiff oi'ganlzations, parent corporations and subsidiaries, together with their respective officers, members, agents, employees; predecessors, successors and assigns.
III. SETTLEMENT TERMS 4. A~nt~al Facility Lagoon In$pection andSul'vcy: As requh'ed by the termsofihe Facility
Pem1it, the Taylor Defendants shall conduct periodic inspections (at least on an annual basis) ofsludge levels and complete a sludge survey to evaluate sludge levels in-relation to lagoon design volume. The Taylor Defendants shall create ~:~nd retain complete records of all sludge inspections and surveys. 5. Lagoon Sludge Removnl: The Taylot' Defendants shallt·emove sludge fi·om the Facility Lagoons as necessary to ensure that sludge levels do t\cit exceed SO% ofthe design volume tbr the respective lagoon, Additionally; the Taylor Defendants shall remove sludge fl·om Taylor Finishing Lagoon I within eighteen (18) months after the effective da:te of this SettlemerH Agr·eement, itt a rnanner pt·eviously approved by tlte State ofNorth Carolina.
Sludge shall be removed .all Facility Lagoon~ as necessat·y to ensure that sludge levels do
not e,xceed 50% of the design volume fot· the respective lagqon based on the results ofthe annual sludge surveys, 6. Land Application of Sludge: The Taylor Defendants shall ensure that all sludge removed fi·om Facility Lagoons' is taken off site for land application, applied at agronomic rates and . in accordance with the terms ofthe Facility's permit.
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7. Offsite Laud Application Areas: The Taylor Deftmdants shall continue to use offsite land application ~reas tor management of swine waste to the same extent, Ol' greater than, than they have during the course of the Bankruptcy Pmceeding, and shall colldi.tct all laiid application in accordance \vith the terms of the Facility pcrt11it.
8. Compliance with Permit: The Taylor Defendants shall operate the Facility in· accordance with the terms ofthe Facility's permit.
9. Facility Reorganization Plan: The Taylot' Defendants will modify their Bankruptcy Reorganizatiot1 Plan to t·e·move any language that is intended, Ol' could be intet:preted, to relieve the Taylor Defendants of liability for flltm·e violations (meaning post-petition violations) of state or tederal eitvironmeittallaws Additionally, the Taylot· Defendants will recognize this Settlement Agreement as part of their Reorganization Plan and shall comply with the tenns of, the Reorganization. Plan and this Settlement Agreement. The Taylor Dettmdants are r·eleased from liability to Plaintiffs for violations of federal law only to the extent provided by Sectioh VII ofthis Settlement Agreement.
I0. Public Statements: The Parties agree to issue a joint press release upon the approval of this Settlement Agreement by the Bankruptcy Court, provided the language ·is mutual!)' agreeable to the Parties, The Parties agree that future public statements by all Parties 1·egarding this settlement, dil'ectJy or tlwough a third party including. but not limited to, the NC Farm Families organization, will be consistent with the spirit and intent of the Settlement Agreement ai1d the joint press r'elease.
I L Withdrawal of Appeal on Expert Discovery Order: Within ten (10) days after the
approval of thi.s Settlement Agreement, Plaintiffs will withdraw their appeal of the
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Bankruptcy Court's September 12, 2017 Order regarding expert discovery [Bankruptcy Proceeding.- Docket #330]. 12. Sampling Testing and Aeriall,hotography: Plaintiffs agree that they will not take watct· samples from: (!}any stream, ditch, 01· other body of water that is adjatent to the Facility, including a prohibltiotl on taking samples from the Ben. Banks Road bl'idge, ot• (2) fi·om any stt·eam, ditch, or othe1· body ofwater that is adjacent to and adjoining the Weyerhauser property and the Facility, for a three-year period beginning on the apptoval date of this Settlement Agreement. Plaintiffs thrther agree they will hot engage in soif testing on any -lartd or soil that is: adjacent to the Facility or on the Weyerhauser property adjacent to the Facility, nor will Plaintit'ts engage in low altitude photography related to the Facility tbr the same three-year period beginning on the effective-date ofthis Settlement Agreement. This-Paragraph 12 shall not apply should the Debtors sell the Facility-to a third-party.
13. Attorney Fees, Expert Fees and Other Costs: Plaintiffs and Defendants agree that all Parties to this Settlemertt Agreement will bear· their own attorney fees, expett fees or any
othe•· costs o1· expenses directly or indil'ectly asso~iated with the CivH Case and the Bankruptcy Proceeding, and that no Party will seek to recover their fees, expenses and/or costs associated with the Civil Case and Bankruptcy Proceeding fi·om any other Party. 14. Enforcement OfScttleittent Agreement: No automatic stay ordiscltarge injunction in the Bankruptcy Proceeding shall prevent the filirig of motions to enforce this Settlement Agreement. The Pa1ties may seek enforcement ofthe terms .of this Settlement Agreement in Bankruptcy Court.
IV. NOTIFICATIONS
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24

15. All notifications, submittals, 1·eports, and other Information required by this Settlement Agreement shaH be directed to the individuals at· the addresses specined below, unless those individuals or their successors give notice ofa change to the other parties in writing. As to Waterkeepe-rAIIiance: Dnniel Estrin 1.80 Maiden Lane Suite 603 New York, NY 10038 Will Hendrick 976 Martin Luther King, Ji'., Blvd., Suite P Chapel Hill, NC 27517 As to Sound Rivers Heather Deck l08 Gladden Street
Washington, NC 27889
As to the Taylor Defendants: David J; Haidt .307 MetcalfStreet New Bern, NC 28563
V. CONTINUING JURISDJCTlON 16. Continuing Jurisdiction: NotvVithstanding the dismissal ofthe Civil Case, the Bankruptcy
Court shall retain jurisdiction to re$olve any disputes arising under the SettlenJent
Agreement and toi' issuing such nu·thet· orders OJ' directions as may be necessary or
appropi'iate to construe, implement, modify, or enforce the terms of this Settlement Agt·eement. Vl. EFFECT OJ,? SETTLEMENT, CONSENT DECREE AND RELEASE
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17. Plaintiffs.' Release of Claims: Unless otherwise t'eserved in this Settlement Agreement, the Parties agree that this Settlement Agt·eement resolves all claims in the Civil Case, as well as all claims and actions against the Taylot· Defelldants in the Bankruptcy Pt·oceeding. The Parties agree that 1,1pon entry of this Settlement Agreement, Plaintiffs release and covenant not lo sue Defendants, their f.1mlly members, their parent corporations, subsidiaries, predecessors, or successot·s and their respective attorneys, agents, directors, officers, and employees with respect to ar1y and all contentions, claims, causes of action, suits, or demands of any kind whatsoever, including attorney tees,. expeti costs, or othet· litigation expenses, whether in law ot· equity, known or unknown, that Plaintiffs brought, or could have brought prior to the etTect.ive date of this Settlement Agreement, whether related to the Taylor Defendants, or Plaintiff.<;' investigation and litigation of f~e matters . raised in the Civil Case and/or the Bankruptcy Proceeding.
18. .Defendants.~ Release of Claims: Unless otherwise reset·ved in this Settlement Agreement, the Parties agree that this Settlement Agreement resolves all claims in the Civil Case, as well as all of all claims and actions against Plaintiff.<; in the Bankruptcy Proceeding, including all motions against Plaintiffs, including but not limited to the Motion for Sanctions for violation of II U.S.C. § 362. The Parties agree that upon Bankruptcy Court approval of this Settlement Agi·eemenl, the Taylor Defendants and their dit·ectors; officers and employees release and covenant not to sue Plaintiffs, theit• parent ·corporations, subsidiaries; predecessors, ot· successors and their respective attorneys, agents; directors, officers, and emplqyees with n~srect to any and all contentions, claims, causes of action, suits, ot demands of any kind whatsoeve1', including.attot'l1ey fees, expert costs, or other litigation expenses, whether in law o1· equity, known or unknown1 that Def~ndantsbrought,
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or could have brought, prior to the effective date of this Settlement Agreement, relating to the Facilit)', Plaintiffs' investigation and litigation in this matter, Plaintiffs' Amended Complaint, and/or the Ballki'Uptcy Proceeding. 19. Claims t'or Continuing Violations of Environmental Laws at Facility: Plaintiffs agree that they will not tile any new citizen suit against the Taylor Defendants relating to the Facility for three years after the effective date of this Settleinent Agt·eement. After the expiratiOil ofthat three-year period, the Bankruptcy Coul't will serve as a gatekeeper for an
additional tour-year period to review any new citizen s~tit against the Taylor Defenpants
that Plaintiffs intend to _tile t•egarding the Facility; During this four-yeat· period, Plaintiffs therefore acknowledge and agree that in addition to required statutory notifications to appropriate federal and state agencies, Plaintiffs shall also be required to notif)l the Bankruptcy Court which may take any and all action that it is authorized to take tmde:r governing laws, including Section I05 of the Bankruptcy Code, I I U.S.C. § I05, in a manner to be established by the Bankntptcy Court. 20. Voluntary Dismissal: Based upon the representations and commitments herein and upon 45 days prior notice to the Attorney General.ofthe United States and the Adminjstrator of the EPA plu'suailt to 33 U.S.C. 1365(c)(3), Plaintiffs' Ch>il Case shall be DISMlSSED WITH PREJUDICE put·suant to entry ofa Consent Decree by Judge Dever in District Court which shall attach this Settlement and Release Agreement and Plaintitf."l shaJI withdraw their monetary claims. in the Bankruptcy Proceeding together with pending objections to the Taylor Defendants' Reorganization Plan. The Bankruptcy Court approves the filing of the Consent Decree in the District Court and also approves a Rule 41 (a)
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I

'

Stipulation of Dismissal with respect to reniaining pat'tks remaining in the District Court

Action and such tllings (and those related to them) shall not be subJect to II U.S.C. § 362.

21. No Waiver of Rights: By enterit1g into this Settlement Agreement, Plaintiffs do not waive

any right they have to bring suit against Defendants three yem·s aftet• the effective date of

this Settlement Agreement, subject to the requirements ofPamgraph I9 herein. Further, by

entering into this Settlement Agreement, Defendants do not waive any claim or detenses

they may have .in any actiot1 brought by the Plaintiffs three years after the effective date of

this Settiement Agreement. Plaintiffs and Taylor Defendants agree that, other than issues

related to implementation of this Settlement Agreement reserved for the Bankruptcy Court

het·ein, any new suit shall be bmught in a separate action ii1 Distt'ict Cou.rt and not pursuant

to this Settleinent Agreement.

VII. MODlFlCATION

22. Entire Agreement: This Settlement Agreement constitutes the entire agreement of

Plaintiffs and Defendants J·egat·ding the matters currently pending in the Civil Case and

Bankruptcy Proceeding. Neither prior drafts of the Settlement Agreement nor any other

prior statements, agreements or understandings, otal or written, shall be used in any action

involving the interpretation or enforcement of this Settlement Agreement.

23. MOdifications: This Settle!l'lerH Agreen1ent shall not be modified except by express

written agreement of all Pnities. Any modification agi·ced to by all Parties shall not be

~ffective m: enforceable in the absence of a Bankruptcy Court- ordet· appt~oviitg the

modification.

VIII. DISPUTE RESOLUTION

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24. Dispute Resolution: Plaintiffs and Defendants agree to provide opposing counsel for all Parties written notice of any dispute related to compliance with this Settlement Agreement at least thirty days prior to filing any request fo1· relief with the Bankruptcy Court. Dlil·ing that thirty-day time period, and prior to seeking rel)ef from any Bankruptcy Court, Plaintitls and Defendant:> agree to attempt to resolve·any disputes regarding this Settlement Agreement that may arise by agreement. This period may be extended by written agreement of the Pal'ties. Nothing in this paragraph is intended to preclude the parties, or their representatives, fi·om engaging ii1 infonnal communic.ations to attempt to resolve any potential disputes. Any petition to the Bankruptcy Court seeking resolution of a, dispute after the thirty-day informal dispute resolution process shall qe initiated by filing a motiOil asking the Bankruptcy Court to resolve the dispute that ( 1) describes the nature ot: and basis f,>l', the dispute, (2) sets Joiih the steps taken to resolve it informally and the resu Its, (3) proposes aresolution, and (4) states that the party filing:the motion has made· a diligent, good faith effoti to resolve the dispute informally. Within fifteen days after receipt of the 111otion, the other parties to the dispute s.hall file their response, which may include an alternative for resolution and/or a counte1· motion for enforcement of the Settlement Agreeinent. The BankruptCy Court's ruling on the dispute shall be binding, tina.! and nonappealable reg11rding the matter submitted f(>l' resolution. IX. BREACH
25. Remedy for Breach: Plaintiff.<> and Defendants agree that any party may file a motion to enfot·ce the Settlement Agreement andior any related court order in .Bankruptcy Court. The remed)• tot· breach of this Settlement Agrceme11t shl)ll be an order enforcing the terms of the Settlement Agreement. However, remedies for failure to comply with a court order
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directing compliance with the Settlement Agreement are detennined by the discretion of
i
the COUI't. X. SEVERABILITY
26. Severability and Court Acceptance: Wherever possible, each provision ofthis Settlement Agt·eement shall be interpreted in such a manner as to be effective and valid. Ifsubsequent to approval by the !3ankntptcy Cmu't any provision of this Settlement Agreement is detet·mined to by prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remaindei· of such.pmvlsion or at1y the t·emaining provisions this Settlemetlt Agreement. XI. ASSIGNABILITY
27. The obligations of the Defendant Taylors under Part !.II, Paragraphs 4,5,6,7, and 8 of this Settlement Agreement shall be binding upon future ownet's of the Facility. Otherwise, this Settlement Agreement shall not be assignable to any third pat·ty that operates or owns the Facility withatlt the express prior written consent of all Parties. Xll. SIGNATORIES
28. Each undet·signed represetitative of the Plaintiffs and Defendants cel·tifies that he OJ' she is fully authorized to enter into,and execute the terms and conditions of this Settlement Agreement, and to legally bind such respective P<llty to this Settlement Agreement. The terms ofthis Settlement Agreement apply to, are binding upon, and inure to the benefit of Plaintiffs and Defendants, as well as their successors, assigns, and designees.
[REMAINOER OF PAGE lN1'ENTIONAUS LHF1' BLANK; SIGNA7'UUE PA<JF:S FOUOW]
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IN WITNESS WHEREOF, each of the u11dersigned has executed this Agreement as of the date indicated below.
FOR THE PLAINTIF.FS: Waterkeeper Alliance, Inc. By: Daniel E. Estrin 1'itlc: General Counsel & Advocacy Director
Date: March 23,2018 Neuse n.iverkeepct· Foundation, Inc. n/kla Sound Rivers, Inc.
By: Title: Date:
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"!"',!' ·.::-···;._
JN WITNESS WHEREOF, each ofthe undersigned has executed this Agreement as of the date indicated below. FOR THE PLAINTIFFS: Watcrkecper Alliance, Inc. By: Title: Date: Neuse Riverkceper Foundation, Inc. n/1{/a Sound Rivers, Inc.
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FOR THE TAYLOR DEFENDANTS: Donald E. Taylor, individually and d/b/a Taylor Finishing Annie T. Taylor, individually and d/b/a Taylor Finishing
[END OF DOCUMENT]
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