Summary of a Recent
Judicial Development in
Animal Feeding Operations

Court Grants Summary Judgment for
CAFO on CWA and RCRA Claims

Kaycee Wolf
National AgLaw Center Research Associate

Summary of Decision

In Coon v. Willet Dairy, LP, Nos. 5:02-CV-1195 & 5:04-CV-917, 2007 WL 2071746 (N.D.N.Y. July 17, 2007), the United States District Court for the Northern District of New York granted defendants' motion for summary judgment with regard to plaintiffs' Clean Water Act, Resource Conservation and Recovery Act, Rivers and Harbors Act, and the New York Environmental Conservation Law claims that arose from defendants' operation of a large agricultural business.

Background

This case was a consolidated action involving two nearly identical complaints. Plaintiffs collectively asserted seven causes of action arising from defendants' operations. Coon v. Willet Dairy, LP, 2007 WL 2071746, at *1. Plaintiffs lived near Willet Diary and complained of several injuries allegedly caused by Willet Dairy's filling, damming, and diverting streams and discharged waste into the ground and water which caused flooding on plaintiffs' properties. Id.

Defendants argued that plaintiffs failed to comply with the notice and delay requirements of the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA). The CWA and RCRA require a citizen-plaintiff to provide sixty days notice before filing suit. Id. at *1-2 (citing 33 U.S.C. § 1365(b); 42 U.S.C. § 6972(c)). When the citizen-plaintiff fails to meet this requirement, the district court must dismiss. Id. (citing Hallstrom v. Tillamook County, 493 U.S. 20, 33 (1989)). However, a plaintiff can proceed without delay when filing a "hybrid complaint," alleging both CWA and closely-related RCRA claims. Id. (citing Dague v. City of Burlington, 935 F.2d 1343, 1353-54 (2d Cir. 1991)). Plaintiffs in this case filed a "hybrid complaint" and were not required to delay their court action. Id. at *2.

Arguments

Plaintiffs alleged that defendants violated the CWA by contributing to the discharge of pollutants and polluted runoff intermittently and continuously. Id. at *2. Plaintiffs also alleged that defendants filled streams and wetlands in violation of § 404 of the CWA, 33 U.S.C. § 1334. Defendants claimed that they were exempt from the CWA's permit requirement pursuant to 33 U.S.C. §1334(f)(1)(C). Id. at *3.

Defendants contended that the "permit shield" of 33 U.S.C. § 1342(k) precluded the balance of plaintiffs' CWA claims and that plaintiffs may not question the adequacy of their permit. Id.

Plaintiffs further alleged that defendants' handling of solid waste created "an imminent and substantial endangerment to health or the environment." Id. at *5. Plaintiffs contended that the court should abate the endangerment and pay plaintiffs' litigation costs pursuant to the RCRA's citizen suit provision in 42 U.S.C. § 6972(a)(1)(B). Id. Defendants argued that a duplicative CWA provisions regulates the farm and that the RCRA claim was precluded because it contained non-duplication provisions. Id. Plaintiffs also contended that the defendants violated the Rivers and Harbors Act of 1899, 33 U.S.C. § 401, by bulldozing Schaeffer Brook. Id. at *6.

Plaintiffs claimed that defendants violated the New York Environmental Conservation Laws (ECL) by polluting well and ground water. Id. In response, defendants argued that the ECL provides no private right of action. Id.

Analysis and Holdings

As to plaintiffs' first argument that defendants violated the CWA by contribution to polluted runoff and discharge pollutants, the court explained that it does not have jurisdiction over citizen suits under the CWA that concern wholly past violations. Id. at *2 (citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 64 (1987)). The court therefore explained that it should dismiss a citizen suit against a violator regarding the same subject matter when a state regulatory body charged with implementing the CWA and a violator enter into a consent order. Id. It further explained that the court should dismiss the citizen suit "so long as the settlement reasonably assures that the violations have ceased and will not recur." Id. Because Willet Dairy and the New York Department of Environmental Conservation (DEC) entered into a Consent Order regarding the March 2001 manure spill, the court granted defendants' motion for summary judgment on plaintiffs' claim relating to the March 2001 incident.

Plaintiffs argued that defendants bulldozed Schaeffer Brook to create a farm pond in violation of the CWA. The court recognized that "permits are … not required for the construction of new farm ponds on existing farming operations." Id. at *3. Defendants created the farm pond on an area of existing diary and crop farming operation. Id. Accordingly, the court granted defendants' motion for summary judgment on plaintiffs' CWA claims regarding the filling of streams and wetlands.

In reviewing defendants' contention that the permit shield precludes the balance of plaintiffs' CWA claim, the court stated that the DEC confirmed the extension of time by renewing and revising the State Pollutant Discharge Elimination System (SPDES) general permit, and thereby confirming the extension of time for defendants' CWA compliance. Id. at *4. Compliance with the SPDES permit constitutes compliance with the CWA because the purpose of the permit shield is to protect a permit holder from facing challenges to the adequacy of the permit. Id. (citing Atl. States Legal Found., Inc. v. Eastman Kodak Co., 12 F.3d 353, 357 (2d Cir. 1993)). The court found that plaintiffs did not have "regulatory authority prior to the December 31, 2006 deadline for full compliance." Id. at *5. Accordingly the court granted defendants' motion for summary judgment on plaintiffs' CWA claims.

When examining the RCRA claim, the court found that the RCRA has two non-duplication provisions. Id. The first provision states that, "[n]othing in this chapter shall be construed to apply to … any activity or substance which is subject to the Federal Water Pollution Control Act." Id. (citing 42 U.S.C. § 6905(a)). The second provision "directs the government administrator to 'avoid duplication, to the maximum extent practicable,' between [the] RCRA regulation and government regulation under [the] CWA and other environmental acts." Id. at *6 (citing 42 U.S.C. § 6905(b)). Duplication should be avoided by granting summary judgment on the RCRA claim when that section of the RCRA is adequately covered by a duplicate section of the CWA. Id. (citing Jones v. E.R. Snell Contractor, Inc., 333 F. Supp. 2d 1344, 1350 (N.D. Ga. 2004)). The court found that allowing the RCRA claim would violate the first non-duplication provision of the RCRA and accordingly, granted defendants' motion for summary judgment on plaintiffs' RCRA claims. Id.

The court granted defendants' motion for summary judgment on plaintiffs' claims under the Rivers and Harbors Act because the Act does not confer a private right of action (citing Sierra Club v. Army Corps of Eng'rs, 701 F.2d 1011, 1033 (2d Cir. 1983)). Id.

The court granted defendants' motion for summary judgment on plaintiffs' claims under the ECL because no private cause of action exists. Id. at *7. The court further dismissed the supplemental state law claims for negligence, trespass, and public and private nuisance without prejudice because all federal claims were dismissed before trial. Id.

The case was decided on July 17, 2007; this summary was posted January 10, 2008.