Concerned Area Residents for Environment v. Southview Farm
| Decision Date | 02 September 1994 |
| Docket Number | D,No. 1608,1608 |
| Parties | , 24 Envtl. L. Rep. 21,480 CONCERNED AREA RESIDENTS FOR THE ENVIRONMENT; Philip Karcheski; Kathleen Karcheski, Individually and as Parents and Legal Guardians of Brian Karcheski and Robyn Karcheski, Infants; Lois E. Link; Daniel L. Wilson; William A. Fagan; Betty C. Fagan; Jeffrey Ferris; Linda Ferris, Individually and as Parents and Legal Guardians of Chad J. Ferris, Stacey P. Ferris and Shawn W. Ferris; Kirk Schroeder, Individually and as Parent and Legal Guardian of Stacy L. Schroeder, Kirk Bly and Vickie Bly, Plaintiffs-Appellants, v. SOUTHVIEW FARM and Richard H. Popp, Defendants-Appellees. ocket 93-9229. |
| Court | U.S. Court of Appeals — Second Circuit |
Donald W. O'Brien, Jr., Rochester, NY (Woods, Oviatt, Gilman, Sturman & Clarke; Alan J. Knauf, Knauf, Craig & Doran, P.C., of counsel), for plaintiffs-appellants.
John W. Clarke, Rochester, NY (James H. Ferreira, Harris Beach & Wilcox, of counsel), for defendants-appellees.
(Jeffrey H. Kirby, Glenmont, NY), for New York Farm Bureau, Inc. and American Farm Bureau Federation, amici curiae.
(John J. Rademacher and Michael J. Stientjes, Park Ridge, IL, of counsel), for American Farm Bureau Federation, amicus curiae.
(Lois J. Schiffer, Acting Asst. Atty. Gen., U.S. Dept. of Justice, Environmental and Natural Resources Div., Washington, DC (Anne S. Almy, Nancy K. Stoner, Mark R. Haag; Stephen J. Sweeney, Office of General Counsel, Joseph G. Theis, Office of Enforcement, U.S.E.P.A., of counsel)), for U.S., amicus curiae.
Before: OAKES and MINER, Circuit Judges, and CARTER, Senior District Judge. *
This is a citizen's suit under the Clean Water Act of 1977, 33 U.S.C. Secs. 1251 et seq. (1988 & Supp. IV 1992), ("CWA" or the "Act"), with some state law claims for nuisance, negligence and trespass. The suit arises on account of the liquid manure spreading operations of a large dairy farm in western New York. After denial of a motion to dismiss the complaint and of a motion for summary judgment, the case proceeded to jury trial. See Concerned Area Residents for the Env't v. Southview Farm, 834 F.Supp. 1410 (W.D.N.Y.1993) ("CARE I "). Following a jury verdict in plaintiffs' favor on five CWA violations and the state law trespass claim, the United States District Court for the Western District of New York, David Larimer, Judge, granted judgment to the defendants as a matter of law on the five CWA violations. Concerned Area Residents for the Env't v. Southview Farm, 834 F.Supp. 1422 (W.D.N.Y.1993) ("CARE II "). The court left standing the verdict and damages of $4,101 on the trespass count. CARE II, 834 F.Supp. at 1435-37.
The appeal by plaintiffs involves only the five CWA violations and raises anew the question what is a "point source" within the meaning of 33 U.S.C. Sec. 1362(14), a question this court touched upon in United States v. Plaza Health Labs., Inc., 3 F.3d 643, 649 (2d Cir.1993) (), cert. denied, --- U.S. ----, 114 S.Ct. 2764, 129 L.Ed.2d 878 (1994). The appeal also concerns whether the liquid manure spreading operations fell within the "agricultural stormwater discharges" exception to point source discharges under the Act. 33 U.S.C. Sec. 1362(14).
We now hold that the liquid manure spreading operations are a point source within the meaning of CWA section 1362(14) because the farm itself falls within the definition of a concentrated animal feeding operation ("CAFO") and is not subject to the agricultural exemption.
Plaintiffs, who refer to themselves collectively as Concerned Area Residents For the Environment ("CARE"), are a group of land owners who live near Southview Farms, a dairy farm in the town of Castile, in Wyoming County, New York. Defendants are the farm itself, and Richard H. Popp, an individual. Southview Farm is one of the largest dairy farms in the State of New York. It employs twenty-eight full-time and nine part-time employees. As of 1992, it owned 1,100 crop acres and had an animal population of 1,290 head of mature cows with over 900 head of young cattle, heifers and calves, making a total of 2,200 animals.
Unlike old-fashioned dairy farms, Southview's operations do not involve pasturing the cows. Instead, the cows remain in their barns except during the three times per day milking procedure. Also unlike old-fashioned dairy farms where the accumulated manure was spread by a manure spreader, Southview's rather enormous manure operations are largely performed through the use of storage lagoons and liquid cow manure. The storage lagoons number five on the main farm property ("A Farm"). One four-acre manure storage lagoon has a capacity of approximately six-to-eight million gallons of liquid cow manure.
In connection with this particular manure storage lagoon, Southview has installed a separator which pumps the cow manure over a mechanical device which drains off the liquid and passes the solids out through a compressing process. The solids that remain are dropped into bins for transport while the liquid runs by gravity through a pipe to the four-acre manure storage lagoon. This separated liquid was apparently used for the purpose of washing down the barns where the cows are housed.
Insofar as application of the manure as fertilizer to the land is concerned, there is a center pivot irrigation system for spreading liquid manure over the fields. The diameter of the circle of this irrigation system can be modified to conform to the field on which the application is being made. A series of pipes connects the pivot to the liquid manure storage lagoons. The pivot is self-propelled with the height of the arc from the manure spray being somewhere between 12 and 30 feet.
Southview also spreads its manure with a hard hose traveler which is a long piece of plastic tubing on a large reel. The traveler can be unwound and has a nozzle on the end which can send liquid manure 150 feet in either direction making a 300-foot-wide swath for purposes of fertilizing farm fields. The height of the arc from the projected spray is "a couple of feet higher" than that of the center pivot irrigator. Since 1988, a piping system consisting of a six-inch aluminum pipe and running under both the state highway and a town road to a lagoon on at least one Southview Farm other than the "A Farm," has transported liquid manure from the storage lagoon to various locations without the use of vehicles.
Southview also uses conventional manure spreading equipment including spreaders pulled by tractors and self-propelled vehicles which, generally speaking, have a 5,000 gallon capacity for liquid manure. These vehicles were used to spread manure from the smaller lagoons on the "A Farm" which do not receive liquid manure processed through the separation system. Southview's manure spreading record reflects the application of millions of gallons of manure to its fields.
On May 9, 1990, the plaintiffs notified Southview Farms and Richard H. Popp that they intended to sue the defendants for violations of federal and state environmental laws in connection with Southview's manure operations. (Letter of 5/9/90 from Alan J. Knauf, attorney for CARE, to Richard H. Popp.) On January 22, 1991, the plaintiffs filed the original complaint. Complaint, CARE v. Southview Farms, No. 91-6031 (W.D.N.Y. filed Jan. 22, 1991) ("Original Complaint") and on May 31, 1991, they filed an amended complaint. Complaint, CARE v. Southview Farms, No. 91-6031 (W.D.N.Y. filed May 31, 1991) ("Amended Complaint").
On May 19, 1993, after a three-week trial commencing April 26, 1993, the eight-person jury returned a verdict in favor of the plaintiffs on five of the eleven CWA violations which had been submitted to the jury for its consideration. On July 1, 1993, the defendants filed a motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b). On October 19, 1993, the court granted in part the defendants' Fed.R.Civ.P. 50(b) motion for judgment as a matter of law ("judgment m.o.l.," formerly judgment notwithstanding the verdict or "judgment n.o.v."), CARE II, 834 F.Supp. at 1437, and a final judgment was entered thereafter.
On November 18, 1993, the plaintiffs timely filed a notice of appeal. This court has jurisdiction under 28 U.S.C. Sec. 1291 (1988).
The moving party bears a heavy burden to prevail on its motion for judgment m.o.l. Fed.R.Civ.P. 50(b); Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir.1988), cert. denied, 489 U.S. 1034, 109 S.Ct. 1095, 103 L.Ed.2d 230 (1989). In ruling on such a motion, the court must "consider the evidence in the light most favorable to the [non moving party] and ... give that party the benefit of all reasonable inferences that the jury might have drawn in [its] favor from the evidence." Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 367 (2d Cir.1988). To grant a judgment m.o.l., the court must find that there is " 'such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or ... such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against [it].' " Song v. Ives Lab., Inc., 957 F.2d 1041, 1046 (2d Cir.1992) (quoting Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163, 168 (2d Cir.1980)).
The CWA provides that, absent a permit and subject to certain limitations, "the discharge of any pollutant by any person shall be unlawful." 33 U.S.C. Sec. 1311(a); see Plaza Health, 3 F.3d at 645. A pollutant includes "solid waste, ... sewage, ... biological materials, ... and agricultural waste discharged into water" and thus includes the manure in this case. 33 U.S.C. Sec. 1362(6). A "discharge" is ...
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