Community Res. of Environment v. Henry Bosma Dairy

• Citation: 65 F.Supp.2d 1129
• Decision Date: 29 July 1999
• Docket Number: No. CY-98-3011-EFS.,CY-98-3011-EFS.
• Court: U.S. District Court — Eastern District of Washington
• Parties: COMMUNITY ASSOCIATION FOR RESTORATION OF THE ENVIRONMENT (CARE), a Washington non-profit corporation, Plaintiff, v. HENRY BOSMA DAIRY, a Washington proprietorship, aka Hank Bosma Dairy, aka Bosma Dairy, aka H & M Dairy, aka H & S Bosma Dairy, aka B & M Dairy; Liberty Dairy, a Washington proprietorship; Henry Bosma, owner and operator of Henry Bosma Dairy and Liberty Dairy; and Bosma Enterprises, a Washington corporation, Defendants.

65 F.Supp.2d 1129

COMMUNITY ASSOCIATION FOR RESTORATION OF THE ENVIRONMENT (CARE), a Washington non-profit corporation, Plaintiff, v. HENRY BOSMA DAIRY, a Washington proprietorship, aka Hank Bosma Dairy, aka Bosma Dairy, aka H & M Dairy, aka H & S Bosma Dairy, aka B & M Dairy; Liberty Dairy, a Washington proprietorship; Henry Bosma, owner and operator of Henry Bosma Dairy and Liberty Dairy; and Bosma Enterprises, a Washington corporation, Defendants.

No. CY-98-3011-EFS.

United States District Court, E.D. Washington.

July 29, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Charles M. Tebbutt, Marianne Dugan, Facaros Dugan & Rosas, Eugene, OR, Richard C. Eymann, Eymann Allison Hunter & Jones PS, Spakone, WA, for Plaintiff.

Charles Camillus Flower, Flower & Flower, Yakima, WA, for Amicus Curiae Intervenor.

Jerry Robert Neal, Preston Gates & Ellis, Spokane, WA, John S. Moore, Velikanje, Moore & Shore, PS, Yakima, WA, for Defendants.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

SHEA, District Judge.

This case was tried to the Court to determine liability on June 1, 1999, and concluded on June 15, 1999. In a pre-trial ruling the Court had bifurcated the issues of liability and penalties. Plaintiff Community Association for Restoration of the Environment (CARE) was represented by Charles M. Tebbutt and Elizabeth Mitchell of Western Environmental Law Center, and Richard D. Eymann of Feltman, Gebhardt, Eymann & Jones. Defendants Henry Bosma Dairy, Liberty Dairy, Henry Bosma and Bosma Enterprises were represented by Jerry R. Neal of Preston Gates & Ellis, and John S. Moore of Velikanje, Moore & Shore. The Court having heard the evidence, and having considered the pleadings and the argument of counsel, now enters the following Findings of Fact and Conclusions of Law on the issue of liability.

I. BACKGROUND

This suit is brought under the citizen suit provision of the Federal Water Pollution Control Act, Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387, and the Washington Clean Water Act, R.C.W. § 90.48. Plaintiff CARE has alleged that Defendants (hereinafter Bosma) have discharged pollutants into the waters of the United States without a permit in violation of 33 U.S.C. § 1311, as well as with a National Pollution Discharge Elimination System (NPDES) permit in violation thereof, and continue to violate their NPDES permit, their Washington State General Dairy Permit (hereinafter included in the term NPDES), the CWA and Washington CWA by discharging animal manure wastes into the waters of the State.

Prior to commencement of trial, the Court resolved the following issues on summary judgment as a matter of law:

The Defendants' dairies are Concentrated Animal Feedlot Operations (hereinafter CAFOs). As such, they are point sources subject to the NPDES permit requirement and cannot discharge animal wastes without a NPDES permit or in violation of the NPDES permit they eventually obtained. The CAFOs include not only the ground where the animals are confined, but also the lagoons as well as the equipment which distributes and/or applies the animal waste produced at the confinement area to fields outside the animal confinement area. (Ct.Rec. 147, at 10.)

Clarification of the Order Granting Partial Summary Judgement

Bosma admits its Dairies are CAFOs and therefore, must obtain a NPDES permit. In order to do so, Bosma had to work with the SYCD and the NRCS to design a DWMP. This was done in 1998. A discharge in violation of the NPDES permit including a discharge as a result of a violation of the DWMP, is a violation of the CWA.

There are two approaches to the issue of what constitutes a discharge violation. First, this Court could broadly interpret a CAFO to include the confinement area, the milk production area, calf pens, as well as waste storage areas, waste and wastewater conveyances including pipes and ditches, storage ponds, and also, equipment used to collect, channel and apply the animal wastes and wastewater, for example, trucks, wheel lines, center pivot irrigation and spray guns. These are all integral parts of the CAFO and the disposition of the huge amounts of animal wastes and wastewater produced by it which pose a risk to the waters of the United States.

However, this Court believes that it is correct to define a CAFO as the confinement area including the milk production area, cow pens, feeding area, truck wash area, calf pens, and fields therein on which manure is stored and any ditches therein. The integral parts of the DWMP including all storage ponds and all devices for conveyance to those ponds as well as all devices for application of animal wastes and wastewater would then be point sources. This would include, but not be limited to, trucks, wheel lines, center pivot irrigation, and spray guns. Any discharge therefrom would be a violation of the NPDES permit and the CWA. By "discharge therefrom", the Court means an overapplication of manure or animal wastewater in violation of the DWMP which causes a discharge to the waters of the United States. This would eliminate the possibility that the CAFOs' crop production fields would be included in the definition of the CAFO. If they were included, then, regardless of the cause or reason, any discharge from them to the waters of the United States would be considered a discharge from a point source. Such an interpretation would conflict with the explicit point source exception for irrigated runoff. See 33 U.S.C. § 1362(14) (excepting return flows from irrigated agriculture as point source). It is only where the overapplication of the manure or wastewater to those fields by the CAFO owner or operator or its agents is the cause of the discharge that there is a violation of the DWMP, NPDES permit and the CWA. See Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114, 115 (2nd Cir.1994). See, infra, the discussion regarding the manure deposits at Price/Kellum Road acreage.

Plaintiff CARE can enforce the effluent limitations contained in Washington's "Dairy Farm National Pollution Discharge Elimination System and State Waste Discharge General Permit." (Ct. Rec. 147, at 12.)

The applicable statute of limitations for discharge violations is five years and 60 days back from the filing of the Complaint. (Ct.Rec. 147, at 13.)

Plaintiff CARE provided adequate pre-suit notice of its claims under 33 U.S.C. § 1365(b) and 40 C.F.R. § 135.3. The Notice of Intent to Sue gave sufficient information to the recipients enabling them to identify the location of alleged discharges. The allegation in the Notice that wastewater from lagoons was entering Joint Drain 26.6 (hereinafter J.D. 26.6) was sufficient to enable the recipients to identify Bosma's lagoons as a source of discharge violations and was sufficiently similar to the claims of leaking lagoons that both the letter and spirit of 40 C.F.R. § 135.3(a) were met. Accordingly, the Court had subject matter jurisdiction over the discharges alleged in the Notice. The Court also had subject matter jurisdiction over the alleged violations contained in "Appendix B" of the Complaint because those violations were sufficiently similar to those contained in the Notice. (Ct.Rec.156.) The Court did not have jurisdiction over allegations of violations relating to Price/Kellum and Hanford Highway areas because the Notice of Intent to Sue contained no information which would enable the recipients to identify the acreage at Price/Kellum Road and Hanford Highway as locations of discharge violations as required by 40 C.F.R. § 135.3(a). This ruling was limited to precluding the Plaintiff from seeking penalties for alleged discharge violations at these two locations. The Court expressed no opinion and thereby reserved ruling on whether or not evidence of manure wastes produced at the Bosma dairy farms and applied at these two locations by the Defendants was admissible at trial. (Ct.Rec. 156, at 16.) At trial, after there was undisputed evidence that the Price/Kellum Road acreage was included in the Dairies' Dairy Waste Management Plan as a location for application of manure, the Court allowed evidence of deposit of manure at that location in May of 1998.

A. Summary of the Court's Findings and Conclusions

For the purpose of establishing a CWA violation, J.D. 26.6, the Sunnyside Valley Irrigation District (SVID) Canal and the Yakima River are "waters of the United States." Any discharge of pollutants by a CAFO into these waters is a violation of the CWA.

The Court affirms it has subject matter jurisdiction to hear this case since the evidence taken at trial confirms that the information provided by CARE to the recipients in the pre-suit notice was sufficient to enable them to identify the locations and dates of the alleged discharges.

The claimed violations of the CWA present a federal question and give the Court jurisdiction under 28 U.S.C. § 1331, and specifically 33 U.S.C. § 1365(a). Additionally, the complaint contained good faith allegations of continuing violations and a reasonable likelihood of recurrent violations which met the Gwaltney test for retention of jurisdiction.

The Court finds that CARE, by and through its representatives Helen Reddout and Shari Conant, has standing to sue the Defendants. CARE established (1) an injury in fact, (2) an injury that is traceable to Bosma, and (3) a redressable injury.

At trial, CARE proved that as of the date of the filing of the complaint, January 15, 1998, there was a continuing violation and a reasonable likelihood of recurrent violations of the following: (1) discharges of wastewater from the truck wash to J.D. 26.6, (2) misapplication or overapplication of animal wastewaters to the 14.3 acre field which would flow down the slope east into J.D. 26.6, and (3) a long history of repeated violations resulting from discharges to J.D. 26.6 and the Canal due to operation and maintenance of the Dairies. Accordingly, the Court has Article III jurisdiction. CARE...