continuing to follow, further discharges are likely.
Plaintiffs also allege that actual discharges have occurred since the amended complaint was filed on May 31, 1991. In particular, plaintiffs allege "continuous" daily discharges of chemical wastes from a lagoon on Southview farm, a discharge of liquid manure from a broken pipe in July 1992, a discharge into a stream or ditch in October 1991, and a discharge onto a road in July 1992. Clarke Aff. Ex. C. Plaintiffs also allege two discharges between the filing of the original and the amended complaints. Id.
Defendants' attempt to show that these alleged discharges do not show an ongoing violation is not persuasive. Defendants admit that the July 1992 pipe break occurred, but state that it was an "isolated and transient" event. Def. Mem. of Law p. 37. Defendants also admit the roadway discharge in that same month, but minimize it as involving only a small amount of manure.
I believe that plaintiffs have adduced sufficient evidence to avoid summary judgment and to proceed to trial. The test for continuity as set forth in the Gwaltney cases is not a stringent one. Minimizing the significance or importance of the post-complaint discharges by characterizing them as small or isolated events does not meet defendants' burden--which the Supreme Court has said "is a heavy one," Gwaltney, 484 U.S. at 66--of proving that it is "absolutely clear" that the discharges will not recur. Id.
Plaintiffs' argument that defendants are using the same practices and procedures that caused the discharges alleged in the complaint is also well-taken. Plaintiffs' case is based in part on the theory that defendants' usual method of spreading manure has led to recurring discharges. Defendants do not contend, and there is no proof in the record, that defendants have now ceased using those methods. It remains to be seen whether plaintiffs can prove at trial that the discharges have occurred and that they are causally related to defendants' procedures. Plaintiffs' allegations, however, which have some support in the affidavits submitted in opposition to defendants' motion, do suggest a continuing likelihood of recurrence in intermittent or sporadic violations, Gwaltney, 890 F.2d at 693, sufficient to defeat a motion for summary judgment.
D. Manure as a "Pollutant"
Defendants argue that the manure is not a "pollutant" as that term is used in 33 U.S.C. § 1311(a), which makes unlawful "the discharge of any pollutant" unless in compliance with CWA. Although the definition of "pollutant" at 33 U.S.C. § 1362(6) includes, inter alia, "solid waste," "sewage," "biological materials," and "agricultural waste," defendants contend that an analysis of applicable federal regulations demonstrates that the manure as it is used by defendants is not a "pollutant" because it is not "discarded," but is used as fertilizer.
I am not persuaded by defendants' argument. For one thing, there is case law supporting the view that manure--including manure used as fertilizer--is a pollutant under the Act. In Carr v. Alta Verde Indus., Inc., 931 F.2d 1055 (5th Cir. 1991), the Fifth Circuit reversed a decision which had dismissed a CWA suit for lack of standing where plaintiffs alleged that discharges from certain holding ponds on a cattle feedlot had violated CWA. Waste from the feedlot, primarily cow manure, drained into these ponds, and the defendant then used the water to irrigate and fertilize its fields. Although not directly faced with the issue of whether the manure-laden water constituted a pollutant, the court clearly treated it as such.
Similarly, in Higbee v. Starr, 598 F. Supp. 323 (E.D.Ark. 1984), aff'd, 782 F.2d 1048 (8th Cir. 1985), although the court dismissed the action following a bench trial for lack of causation, it concluded as a matter of law that hog waste that had accumulated in holding basins on the defendant's farm, and which was then mixed with water and used as fertilizer, was "agricultural waste." 598 F. Supp. at 330. The court further held that any discharge of that waste into an adjacent river would violate 33 U.S.C. § 1311 unless done in compliance with CWA. Id.; see also United States v. Frezzo Bros., Inc., 546 F. Supp. 713 (E.D.Pa. 1982) (discharge of compost made partially from chicken manure for use in growing mushrooms violated CWA), aff'd, 703 F.2d 62 (3d Cir.), cert. denied, 464 U.S. 829, 78 L. Ed. 2d 109, 104 S. Ct. 106 (1983).
Furthermore, aside from these cases, the regulations relied upon by defendants do not support their position. First, the regulations cited relate not to CWA but to the Resource Conservation Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., and are therefore of limited relevance to this case. The fact that CWA does not define "agricultural waste" or "solid waste" does not justify lifting definitions from other acts absent some indication that Congress intended the terms to have the same meaning in both statutes.
Second, defendants have focused on RCRA's definition of "solid waste," and have ignored CWA's inclusion of "sewage," "biological materials," and "agricultural waste" within the term "pollutants." Defendants have failed to offer any cogent reasons why manure could not be included among those categories.
Third, the RCRA regulations themselves implicitly support the view that manure used as a fertilizer constitutes solid waste. The regulations state that:
The following solid wastes are not hazardous wastes:
* * *
(2) Solid wastes generated by any of the following and which are returned to the soils as fertilizers: