Bufford v. Williams , 42 F. App'x 279 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 2 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
NORMAN BUFFORD; ZULA
BUFFORD,
Plaintiffs - Appellants,
v. No. 00-6055
(D. C. No. 98-CV-1570-A)
N. A. WILLIAMS, in his official capacity (W. D. Oklahoma)
as acting director of the Crescent Public
Works Authority and Acting Mayor of the
City of Crescent; CRESCENT PUBLIC
WORKS AUTHORITY,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before EBEL and KELLY, Circuit Judges, and WINDER**, District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered
This order and judgment is not binding precedent, except under the doctrines of
*
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
The Honorable David K. Winder, Senior District Judge, United States District
**
Court for the District of Utah, sitting by designation.
submitted without oral argument.
Plaintiffs Norman Bufford and Zula Bufford brought this action in the United
States District Court for the Western District of Oklahoma against defendants N.A.
Williams and the Crescent Public Works Authority, alleging violation of the Federal
Water Pollution Control Act, also known as the Clean Water Act, 33 U.S.C. § 1251 et
seq., as administered in Oklahoma by the Oklahoma Pollutant Discharge Elimination
System, Okla. Stat. tit. 27A § 2-6-201 et seq. Plaintiffs and defendants filed cross-
motions for summary judgment. The district court granted defendants’ motion,
concluding plaintiffs failed to show a causal connection between defendants’ facility and
any pollutant found on plaintiffs’ property. Exercising jurisdiction pursuant to 28 U.S.C.
§ 1291, we AFFIRM.
BACKGROUND
Wastewater Solutions, Inc. operates the wastewater treatment facility in Crescent,
Oklahoma, pursuant to a contract with the Crescent Public Works Authority. The facility
occupies 160 acres of land and consists of a three-celled total retention lagoon and a land
application system. The total retention lagoon is operated in series, i.e., flows of
wastewater enter cell No. 1, flow to cell No. 2, and then to cell No. 3. During the holding
time in the lagoon, sewage in the wastewater is broken down by natural biological
processes. The treated wastewater in cell No. 3 is appropriate for irrigation and is, in fact,
the water used for irrigation at the facility. The cells in the lagoon are designed to be and
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function as “no discharge” ponds. There is no evidence that cells are seeping or leaking.
The land application or irrigation system consists of a land application field,
located east of the lagoon, equipped with a center pivot and an irrigation boom that
applies treated wastewater from cell No. 3 to the field. Because the facility is considered
a total retention system with land application, an Oklahoma Pollution Discharge
Elimination System (“OPDES”) permit1 is not required for operation of the system.2
Oklahoma law requires that land application of wastewater via irrigation be
conducted at an agronomic rate, i.e., a rate the does not exceed the ability of the crop
grown on the land application field to absorb the nutrients in the wastewater. At
Crescent, and at other wastewater facilities in Oklahoma, land application sites are
designed to maximize evaporation and crop uptake of treated wastewater in order to
prevent pooling or ponding of water on the land application field. In addition, any water
soaking into the ground of these sites will be filtered by the soil. Therefore, the
probability of contamination of underlying groundwater is minimal.
1
The federal equivalent of this permit under the Clean Water Act is a National
Pollutant Discharge Elimination System (“NPDES”) permit. Because the United States
Environmental Protection Agency has delegated authority to the Oklahoma Department of
Environmental Quality to administer the Clean Water Act in Oklahoma, the required
permit for those facilities that discharge into the waters of the State of Oklahoma is the
OPDES permit rather than the NPDES permit.
2
Even if the facility had been designed for discharge into the nearby Cimarron
River, the wastewater in cell No. 3 would require no further treatment under an OPDES
permit because the treated water is of such a quality that it would not degrade the river
below the Beneficial Uses for the Cimarron River as established by the Oklahoma Water
Resources Board.
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In 1986, heavy rains caused an elevated groundwater table in the area. To lower
the groundwater table and permit the construction of cell No. 3, defendants constructed a
groundwater interceptor trench at the facility along the east side of the treatment lagoon.
The interceptor trench was left in place after construction and currently serves two
purposes: (1) as a channel for water originating offsite to flow across the facility property
as it previously had; and (2) as an outlet for groundwater under the facility to insure that
the separation between the lagoon cell bottoms and the groundwater table is maintained.
The groundwater interceptor trench does not provide an outlet for water in the treatment
lagoon. Similarly, there is no evidence that the interceptor trench contains pollutants
from the treated wastewater that is applied to the land application field.
In 1994, cracks in the aging sewer collection lines in Crescent caused an
infiltration problem at the facility by allowing storm water and groundwater to enter the
sewage lines resulting in a volume of water exceeding design specifications flowing into
the lagoon. To preserve the lagoon walls and prevent downstream flooding, discharges of
treated wastewater from cell No. 3 were periodically made directly to the land application
field by “unbuckling” the irrigation arm from its center pivot and allowing water to flow
directly onto the land application field, by-passing the irrigation boom. The inflow and
infiltration problems were repaired in the fall of 1994.
In May of 1999 a similar discharge was required after a tornado destroyed the
irrigation boom at the facility. Once again, the discharge was of the treated wastewater
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from cell No. 3. Test results for water samples taken from cell No. 3 during the post-
tornado discharge indicated that the water in cell No. 3 was of better quality than water
discharged by many treatment facilities that discharge water in compliance with OPDES
permits. Water of this quality does not pose a threat to livestock or agricultural crops.
Plaintiffs Norman Bufford and Zula Bufford own property adjacent to each other
in Crescent, Oklahoma. In May of 1998, plaintiffs hired an expert to perform a Limited
Environmental Site Investigation. Plaintiffs’ expert sampled water on the Bufford
property, located southwest of the facility, and also sampled water on the Endicott
property, located directly south of the facility. Both the Bufford and Endicott properties
are used for agricultural purposes and for grazing cattle. Plaintiffs’ expert found elevated
levels of fecal coliform, total organic carbon, and chemical oxygen demand, indicating
the presence of biodegradable organic material. Fecal coliforms exist in both human and
cattle waste.
Plaintiffs’ expert assumed for purposes of his investigation that the water he
sampled on the Bufford and Endicott property was water from the facility, and he
admitted that he had not actually observed water originating from the facility. Plaintiffs’
expert never entered the facility site. He did not sample water from the interceptor trench
which begins and ends on facility property, and did not sample water from the treatment
lagoon. Plaintiffs’ expert stated that he did not know if the land application system was
in operation at the time he was taking samples from plaintiffs’ property. Plaintiffs’ expert
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did not know the quantity of water that processed through the land application system
when it was turned on, and did not know the groundwater level at the facility site.
Prior to construction of the facility there was a natural drainage pattern in which
ground and surface water flowing from the current facility site flowed across the
northwest corner of the Endicott property to the northeast corner of the Bufford property.
The current drainage pattern is similar to the pattern that existed prior to construction of
the facility. Surface elevations of the facility and the surrounding area reflect that neither
the elimination of the facility nor the elimination of the interceptor trench would decrease
the amount of groundwater surfacing on plaintiffs’ property.
Plaintiffs filed suit under the Clean Water Act, claiming that since facility
operations commenced there have been a significant number of non-permitted discharges
from the facility across plaintiffs’ property causing “environmental harm and detriment to
approximately five to ten acres of plaintiffs’ property.” Specifically, plaintiffs claim that
the groundwater interceptor trench is a “point-source” from which the facility is
discharging pollutants. Plaintiffs and defendants filed simultaneous motions for summary
judgment. The district court granted defendants’ motion, concluding that plaintiffs’ had
“failed to establish a material question of fact regarding the origination or discharge of
any pollutants from the Defendants’ treatment facility.”
DISCUSSION
We review the grant or denial of summary judgment de novo, applying the same
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legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c). Wolf v.
Prudential Insurance Co., 50 F.3d 793, 796 (10th Cir. 1995); Applied Genetics Int’l, Inc.
v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). Summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). “When applying this standard, we examine the factual record and
reasonable inferences therefrom in the light most favorable to the party opposing
summary judgment.” Applied Genetics, 912 F.2d at 1241. If there is no genuine issue of
material fact in dispute, then we next determine if the substantive law was correctly
applied by the district court. Id.
While the movant bears the burden of showing the absence of a genuine issue of
material fact, the movant need not negate the non-movant’s claim, but need only point to
an absence of evidence to support the non-movant’s claim. Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). If the movant carries this initial burden, the non-movant may not
rest upon its pleadings, but must set forth specific facts showing a genuine issue for trial
as to those dispositive matters for which it carries the burden of proof. Celotex, 477 U.S.
at 324; Wolf, 50 F.3d at 796. An issue of material fact is genuine if a reasonable jury
could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
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The Clean Water Act prohibits the discharge of any pollutant from a point source,
except as provided for in the Act. See 33 U.S.C. § 1311 (“Except as in compliance with
this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the
discharge of any pollutant by any person shall be unlawful.”); 33 U.S.C. § 1362 (12)(A)
(providing that “discharge of a pollutant” means “any addition of any pollutant to
navigable waters from any point source”). Therefore, to establish a violation of the Act,
plaintiffs in this case must put forth factual evidence of a point source discharge of
pollutants by defendants. See, e.g., Michigan v. City of Allen Park, 501 F. Supp. 1007,
1014 (E.D. Mich. 1980).
Plaintiffs contend that because certain pollutants were detected in water samples
taken from the Endicott property, located south of the facility, as well as samples taken
from the plaintiffs’ property, located southwest of the facility, the facility must be the
source of the pollutants. Our review of the evidence of record leads us to conclude, as did
the district court, that plaintiffs have failed to provide any credible evidence supporting
this theory.
First, plaintiffs have failed to provide any evidence of a “point source” discharge
from the facility. As the district court noted, plaintiffs failed to supply any affidavits
regarding the flow of water from the facility, the use of the irrigation system, or any
potential leaks or seepage. Although plaintiffs’ expert expresses the opinion that water
from the third cell of the lagoon, which is used to irrigate the field, soaks into the ground
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and runs out of the interceptor trench, he failed to provide any evidence to support this
theory. Plaintiffs’ expert admits he did not enter the facility site. He did not sample
water or soil from the interceptor trench and did not sample water from the treatment
lagoon. In addition, plaintiffs’ expert admits that he did not observe the land application
system in operation, and was unaware of whether the system was in operation when he
visited plaintiffs’ property. Defendants, on the other hand, provided concrete evidence
that the interceptor trench located on facility property is an outlet for naturally occurring
groundwater, not discharge from the lagoon or irrigation system, and that water flows
through the interceptor trench from sources located upstream.
Moreover, we agree with the district court’s conclusion that even assuming
evidence existed demonstrating that water from the facility either flows onto plaintiffs’
property or somehow infiltrates the property’s groundwater, there is no evidence that this
water is polluted with fecal coliform originating from the facility. Defendants put forth
substantial evidence suggesting that the fecal coliform detected on the Endicott and
Bufford property could not have come from the facility. Fecal coliform are destroyed
rapidly by biological consumption once they leave the intestinal tract and enter the
environment, and the holding time in the lagoon at the facility is longer than the time
needed for any fecal coliform in the water entering the facility to be destroyed.
Additionally, samples of lagoon water revealed that there were no coliform organisms in
cells No. 2 and No. 3. Finally, even if fecal coliform existed in cell No. 3–the water used
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to irrigate the land application field–these organisms would be destroyed by the spraying
process or by other microorganisms in the ground before the fecal coliform could migrate
from the land application field.
Plaintiffs’ expert limited his testing to water found on the Endicott and Bufford
properties, both of which are used for grazing cattle. Fecal coliforms originate from both
cattle and humans, and plaintiffs’ expert admits it is impossible to differentiate fecal
coliform originating in human waste from that originating in the waste of other warm-
blooded animals such as cattle based on the type of tests used. Although plaintiffs’ tests
indicated that there were certain pollutants found at some of the test sites, these tests
reveal nothing about the potential source of the pollutants, and therefore do not constitute
evidence of a point source discharge of pollutants.
In sum, after conducting a thorough review of the evidence, we agree with the
district court’s conclusion that plaintiffs have failed to present any credible evidence
demonstrating a point-source discharge of any pollutant from the facility.3 Absent such
3
On appeal, plaintiffs claim that the district court “failed to recognize that it is not
necessary for the [plaintiffs] to prove to a scientific certainty that the [defendants’]
operations are the primary source of pollution” found on their property. Br. of Appellants
at 12. As support for this argument, plaintiffs cite Public Interest Research Group v.
Powell Duffryn Terminals, 913 F.2d 64 (3d Cir. 1990), cert. denied, 498 U.S. 1109(1991); Student Public Interest Research Group, Inc. v. P.D. Oil & Chemical Storage,
Inc., 627 F. Supp. 1074 (D. N.J. 1986); and Student Public Research Group v. AT&T Bell
Laboratories, 617 F. Supp. 1190, 1202 (D. N.J. 1985).
Plaintiffs’ reliance on these cases is misplaced as they are readily distinguishable.
First, the language upon which plaintiffs rely concerns standing requirements. Second,
the cases are distinguishable because in each instance there was clear evidence that
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evidence, plaintiffs cannot establish the essential elements of their claim under the Clean
Water Act. Summary judgment in favor of defendants is therefore proper.
The district court’s grant of summary judgment in favor of defendants is
AFFIRMED.
ENTERED FOR THE COURT
David K. Winder
District Court Judge
defendants had discharged pollutants. In each case the defendants had permits to
discharge certain levels of pollutants into waterways, however, reports indicated that the
defendants had exceeded the permitted amounts. Accordingly, the issue in these cases
was not, as in the present matter, whether plaintiffs put forth any evidence of a point
source discharge, but whether the plaintiffs were able to establish a connection between
the excess discharges, that were undisputably produced by defendants, and the specific
injury alleged.
While it may not be necessary to link a specific discharge to a specific injury in
order to meet standing requirements, to establish a violation of the Clean Water Act it is,
however, necessary to put forth evidence of a point-source discharge of pollutants in the
first instance.
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