By Nathalie Camarena and Rebecca Andrews
Recently the U.S. District Court for the Northern District of Iowa was faced with claims of water and soil contamination from runoff and manure spreading from a nearby confined animal feeding operation (CAFO). In the end, plaintiff was unable to establish any ongoing actions, thus failing in it’s case under RCRA or the federal Clean Water Act. [Garrison v. New Fashion Pork, LLP, ___F.Supp.3d___, Case No. 18-CV-3073-CJW-MAR (N.D. Iowa Mar. 27, 2020).]
Factual and Procedural Background
Defendants, New Fashion Pork, LLP, own and operate a confined animal feeding operation in Emmet County, Iowa on a piece of land known as the “Sanderson property.” Plaintiff, Gordon Garrison, is an adjacent landowner. Plaintiff alleged that defendants’ misapplication of hog manure to defendants’ fields caused manure to runoff into water on the plaintiff’s property constituting a violation of the federal Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), and Iowa statutes, regulations and common law.
The hog manure pit on the Sanderson property is customarily emptied by defendants every fall after the crop harvest is complete. To empty the pit, defendants fill a tanker truck with manure and then apply the manure directly into the soil and cover the manure with another layer of soil. Excess manure that is not applied to defendants’ fields is sold as fertilizer to other farms.
Plaintiff alleged that, on two separate occasions, defendants improperly applied the manure to fields on the Sanderson property, causing the manure to run off the Sanderson property and into water on plaintiff’s property. First in 2016, plaintiff observed defendants apply manure to the Sanderson property when the soil was saturated. Second, in the fall of 2018, defendants applied manure on top of frozen ground and snow. Because the ground at the Sanderson property was too frozen and snow-covered to inject the manure into the soil, the defendants got permission from the Iowa Department of Natural Resources (DNR) to spray manure onto the frozen ground rather than inject it. However, in December 2018, the weather became unreasonably warm, which caused the manure to unfreeze and run off the Sanderson property.
Defendants moved for summary judgment on plaintiff’s RCRA and CWA claims and requested the court to decline to exercise supplemental jurisdiction over plaintiff’s remaining state law claims. The parties also filed separate motions to strike portions of and exclude certain expert testimony reports.
The District Court’s Decision
Defendants’ Motion for Summary Judgement of Plaintiff’s Federal Claims
RCRA’s citizen suit provision permits a private party to bring suit only upon a showing that the solid waste or hazardous waste at issue may present an imminent and substantial endangerment to health or the environment. The CWA similarly requires a Plaintiff to demonstrate an “imminent an ongoing threat.” Thus, in order to prevail on its motion for summary judgement, Defendants were required to demonstrate that the hog manure spreading activity did not present an imminent and ongoing threat under the RCRA or CWA.
Defendant made two arguments in support of their motion. First, defendant argued that plaintiff could not show an ongoing violation because defendants did not apply the manure on the Sanderson property following the 2019 harvest, electing instead to dispose of the manure from the Sanderson property onto another property owned by the defendants. Second, defendants argued that plaintiff did not have sufficient evidence to meet the threshold “imminent and ongoing” requirement under the RCRA or CWA.
In response, Plaintiff argued that defendants’ decision to apply the manure to other fields and a statement from defendants’ environmental manager that the lawsuit was “definitely a consideration” in defendant’s decision to begin spreading manure elsewhere effectively served as an admission that defendants were creating an imminent and substantial endangerment. Second, that water test results show that defendants’ repeated application of manure to the Sanderson field polluted plaintiff’s property. Finally, plaintiff argued, that the manure was disposed of in violation of the RCRA’s anti-dumping provision.
Defendants’ Change in Manure Spreading Practice
In regards to defendants’ first argument, the court reasoned that in order for the court to find that defendants’ changed spreading practice showed there was no threat of future or imminent harm, there must be clear evidence demonstrating that the original spreading practice could not reasonably be expected to recur. Defendants had done nothing to show that they would not start applying manure to the Sanderson property after the lawsuit is resolved.
The court was also unpersuaded by plaintiff’s argument that defendants’ change in spreading practice demonstrated an imminent and ongoing threat, and constituted an admission of such a finding. First, the court held that the change in practice alone did not show an imminent and ongoing threat. Second, defendants’ environmental manager’s statement was not sufficient evidence.
Plaintiff’s Physical Observations and Water Test Results
Turning to plaintiff’s second argument, the court held that plaintiff’s physical observations and water test results failed to establish a substantial endangerment to plaintiff’s property. On the issue of physical observations, the plaintiff provided deposition testimony that Plaintiff once observed manure applied to saturated soil. The court determined that a single observation was insufficient to establish an imminent and ongoing threat. On the issue of water test results, the court determined that the results would need to show a pattern of periodic spikes of nitrate levels in the water correlating to Defendants’ emptying of the manure pit. Plaintiff’s water samples, however did not indicate such a pattern. The court also found plaintiff’s argument that it takes time for over applied manure to work its way through the soil, into the plaintiff’s drainage system and into plaintiff’s stream was unpersuasive. It held that plaintiff’s second argument failed because the water tests did not establish a discernable pattern of violations, and further that, Plaintiff failed to provide sufficient evidence showing that the nitrate levels were caused by defendants’ misapplication.
Open-Dumping in Violation of the RCRA
Plaintiff also argued that Defendants’ over application of manure constituted “open dumping” in violation of RCRA. The court held that this argument also failed because the plaintiff failed to cite to any authority supporting its assertion that the open dumping prohibition was exempted from the threshold requirement under the citizen suit provision of the RCRA that the violation must be ongoing. Thus, the court determined the plaintiff waived this claim by failing to cite any supporting legal authority.
The Remaining Claims
The court declined to exercise supplemental jurisdiction over plaintiff’s remaining state law claims and dismissed them without prejudice. The court was also presented with the parties’ motion to strike and exclude certain expert witness reports. The court determined the grant of defendants’ summary judgement rendered this issue moot.
Conclusion and Implications
This case demonstrates that a single occurrence of a past violation is not sufficient to meet the “imminent and ongoing” threshold requirement under the Resource Conservation and Recovery Act or the Clean Water Act.
