Here in Upstate New York, the themes of whole foods, fresh from the farm, and locally grown produce are part of the culinary culture.  We view all of these themes as positive for the local economy and a double-win on healthier for our bodies.

If I set up a legal narrative with a farm that grew from 50 acres to 4,000, that processes its farm-grown vegetable 70 miles away within 6-hours of leaving the field, and I put it in a $40 million plant where 200,000 bottles are filled daily, others will think that I’m out of my mind.

The aforementioned vegetable is a spicy, red, jalapeno pepper that gets mixed with garlic.   The final product in the bottle is the popular hot sauce, Sriracha.   Local residents near the hot sauce factory are claiming headaches, burning throats, and watering eyes. In this setting, the parties should look for a factory emission expert witness.

A quick research yielded that claims of farm-to-factory smells impacting health and property values are not at all uncommon.  In North Carolina, where the state agriculture department estimates more than 45,000 jobs and $2.5 billion in farm income come from pork products, which come from hogs, which live on farms that use hog waste lagoons.  In a Pennsylvania lawsuit, it was chickens who were the culprits of 2.8 million pounds of excrement per year from more than 80,000 hens and roosters at one 340-acre farm.

What we’re talking about is the issue of emissions – the tort cliché being “offensive and noxious odors.”  The emissions expert witness in such cases has responsibilities to track down emission sources, monitor air quality, identify environmental factors that could impact emissions and dissipation, review statutory and regulatory requirements, and consider industry standards.  For the emissions expert witness, taking the stand is not as simple as pinching one’s nose and saying “Ew!”

Another aspect of these claims can be the defendant’s assertion of the costs of requested remediation efforts.  In the case of the chili pepper sauce, arguments were asserted that the air scrubber system recommended would cost $600,000 to install.  Consider that argument one requiring expert testimony on requested remediation costs, alternatives, and economic impact.

We’re familiar with emissions experts in the context of factory emissions, but we generally think narrowly in terms of chemicals being produced or used.  It is less common for us to recognize that seemingly “natural” or “organic” processing – of hot peppers, for example – can also become a tort culprit.

If it’s fresh from the farm and the smell in the complainant’s air, you might be on your way to find an emissions expert witness.

By:  Paloma Capanna, Attorney At Law