the Rural Clean Water Program, which sought to provide financial incentives to farmers to implement "best management practices" in controlling nonpoint source pollution from their land. 33 U.S.C. § 1288(j). A 1985 Senate Report stated that it had become "clear that nonpoint source pollution could no longer be ignored. . . . As point sources are brought under control, nonpoint pollution looms as a larger and larger problem." S. Rep. No. 50, 99th Cong., 1st Sess. 7-8 (1985) (quoted in Robert D. Fentress, Comment, Nonpoint Source Pollution, Groundwater, and the 1987 Water Quality Act: Section 208 Revisited?, 19 Envtl. L. 807, text accompanying n. 57 (1989)). In 1987, Congress passed the Water Quality Act, which declared a "national policy that problems for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this Act to be met through the control of both point and nonpoint sources of pollution." 33 U.S.C. § 1251(7). The 1987 amendments set up additional state nonpoint source management programs. 33 U.S.C. § 1329.
What is also apparent, however, is that Congress has been reluctant to attempt outright federal control of agricultural and other nonpoint source pollution, preferring instead to leave most of the responsibility in this area to the states, and to use incentives rather than compulsion. Fentress, supra, text accompanying n. 85 (noting more "carrots" than "sticks" in provisions dealing with nonpoint sources). Regarding the irrigation return flow exemption, one commentator has even stated that "the drafters intended all agricultural drainage to be excluded from regulation and, as nonpoint sources, to be covered instead only by the informal planning processes" provided for elsewhere in the Act. John H. Davidson, Thinking About Nonpoint Sources of Water Pollution and South Dakota Agriculture, 34 S.D. L. Rev. 20, text accompanying n. 114 (1988/1989).
With these considerations in mind, I conclude that the evidence in this case was not sufficient to establish that the July 13 incident was a point source discharge. The pollutants witnessed by Bly and Karcheski that day consisted of diffuse runoff, and in my view this was not the sort of pollution that Congress intended to be covered by the Act.
The linchpin of plaintiffs' attempt to show that this was a point source discharge is the reference by Bly and Karcheski to a "ditch," which is part of the Act's definition of a point source. 33 U.S.C. § 1362(14). The term "ditch" suggests a discrete channel; the most apt definitions of "ditch" in Webster's Third New International Dictionary (1981 ed.) are "a long narrow excavation dug in the earth," "a trench for conveying water for drainage or irrigation," and "a natural or artificial usu. narrow watercourse or waterway."
The record, however, shows that on July 13 the liquid simply, and quite naturally, flowed to and through the lowest areas of the field. Describing the "ditch," Karcheski said that "there's kind of like two rises, and like a ditch . . . A low area running in between . . ." Karcheski Tr. 4/28/93 at 6. Similarly, Bly stated that "Manure was flowing off the hilly areas of the field and down into the low spots under the fence, off the field." Bly Tr. 4/30/93 at 9-10. He said that at another part of the same field, he saw "the manure flowing off at a low spot in the field, a depression into another small stream . . ." Id. at 10.
The photographs taken by Bly of the October 4, 1991 incident, which occurred at the same area as the July 13, 1989 event, and which was intended to establish that the violation at that field was a continuing one, also do not reveal any "ditch." It appears only that there were some gentle rises or slopes in the field, which of course means that there were relatively low spots as well. Plaintiffs' Ex. 77.
The testimony and photographs do indicate that the liquid eventually flowed off the field into a small stream or rivulet. This stream, however, appears to have been a natural watercourse, which in turn led to other streams and eventually into the Genesee River.
The question, therefore, is how the pollutants reached this stream, and I find that they did so in too diffuse a manner to create a point source discharge. The liquid manure was spread on the field, some of it settled into low-lying areas, and some eventually reached the stream.
This type of discharge lacks some of the essential elements of a point source discharge. The pollutants in this case were not "collected" by human activity; in fact, the opposite occurred--the manure was dispersed over the ground. Further, once the manure was spread, defendants made no effort to collect or channel it. They did not pour it into a pool or lagoon, for example, nor did the field have any sort of berm or dike intended to make it a self-contained system. This case therefore contrasts with Oxford Royal Mushroom Products, 487 F. Supp. 852, in which the waste water was supposed to remain within the field, but flowed out through a break in the surrounding berm.
In short, there was no "system" here, no "physical structures and instrumentalities that systematically acted as a means of conveying pollutants . . . to navigable waterways." Plaza Health, slip op. at 5773, 3 F.3d 643, 1993 U.S. App. LEXIS 22414 at *11. As one commentator has observed, a "man-induced gathering mechanism plainly is the essential characteristic of a point source," 5 Robert E. Beck, Waters and Water Rights, § 53.01(b)(3) at 216-17 (1991). Such a "mechanism" was absent here.
Furthermore, I do not believe that the vehicles or other devices used to spread the manure on the fields can be considered point sources under these facts. For one thing, they were not "gathering mechanisms" discharging pollutants into navigable waters. Rather, they dispersed the fertilizer onto the ground, some of which eventually reached waterways.
This is not to say that polluters may always escape liability under the Act merely by dumping pollutants on the ground. There may be situations where the causal connection is so immediate that the spreading mechanism could be deemed a point source, as, for example, where the pollutant is poured onto a dike at the edge of a river. In this case, though, the connection between defendants' activity and the alleged discharge was too far-removed to consider the tractors or spreaders as point sources. Virtually every manmade pollutant at some time was gathered or collected somewhere, and if a point source discharge could be found merely by tracing the pollutants back to the time at which they were last collected, practically every discharge would be a point source discharge. For example, solid fertilizer sold in bags may have been stored in a shed or truck before being spread on the fields. Surely neither the shed nor the truck would be considered a point source in this scenario.
I also believe that defendants' actions here were the kind of activity that Congress wanted to keep beyond the reach of the Act. The manner in which the manure was spread, and entered the waterways, presents many of the same characteristics of agricultural pollution in general which Congress has found inappropriate for point-source-based, or "end of pipe" controls. On any given day, farmers throughout the country may be applying fertilizer to their fields. Some chemicals from that fertilizer may end up in navigable waters.
Trying to trace those chemicals to particular fields or applications, and determining whether the discharges were due to an overapplication of fertilizer, to irrigation return flows, or to stormwater runoff, would pose immense problems.
In that sense, these manure applications were similar to irrigation return flows. Speaking of the exemption for the latter, one writer has stated that
testimony in field hearings suggested that effluent limits based on technological methods may not be appropriate for control of return flow pollutants and the [Senate] committee determined that these sources were practically indistinguishable from any other agricultural runoff, which may or may not involve a similar discrete point of entry into a watercourse. All such sources, regardless of the manner in which the flow was applied to the agricultural lands, and regardless of the discrete nature of the entry point, are more appropriately treated under the requirements of section 208(b)(2)(F).
Davidson, supra, text accompanying n. 115 (citing S. Rep. No. 370, 95th Cong., 1st Sess. 35 (1977)).
In short, Congress believed that control of this kind of pollution could best be accomplished not through conventional technology-based systems, but through "radical changes in land use patterns" which Congress has sought to encourage, but which thus far it has been "unwilling to mandate without further study." Plaza Health, slip op. at 5788, 3 F.3d 643, 1993 U.S. App. LEXIS 22414 at *34 (Oakes, J., dissenting).
I reach this conclusion cognizant of my prior rulings that there were sufficient questions of fact on this issue to overcome defendants' summary judgment and dismissal motions. My decision today does not repudiate those prior rulings. A denial of summary judgment in no way precludes a subsequent entry of judgment as a matter of law after the evidence has been heard at trial, see, e.g., Voutour v. Vitale, 761 F.2d 812, 822 (1st Cir. 1985), cert. denied, 474 U.S. 1100 (1986); Catts Co. v. Gulf Ins. Co., 723 F.2d 1494, 1502 (10th Cir. 1983), and I do not hold that under no set of facts could plaintiffs have prevailed on this issue, or that a discharge of manure can never be a point source discharge. This decision today is based on the evidence actually presented at trial; that evidence did not show a point source discharge.
In sum, I find that there was insufficient evidence to prove that pollutants were discharged from a point source on July 13, 1989 from defendants' fields, as required for a CWA violation.
5. Trespass Claim
Defendants maintain that the trespass claim should be dismissed because the testimony of plaintiffs' experts was insufficient to establish that defendants' manure was responsible for nitrates in plaintiffs' wells. Specifically, defendants contend that the expert testimony was too speculative and was not supported by adequate facts, and that the testimony of one expert, Dr. Jeffrey Chiarenzelli, was impermissibly based on the opinion of the other expert, Dr. Dale Baker.
The portions of the trial transcript submitted by defendants in support of their motion reveal that defendants did not object to the testimony that they now seek to challenge. See Def. Ex. J, K. To the extent that defendants contend that the testimony of these two men was not admissible, then, I find that defendants waived this issue by failing to make a timely objection at trial. See United States v. Bilzerian, 926 F.2d 1285, 1294-95 (2d Cir.) (since expert's general testimony was not objected to at trial, admissibility issue was waived), cert. denied, 116 L. Ed. 2d 39, 112 S. Ct. 63 (1991).
I also reject defendants' argument that the expert testimony was insufficient to support the jury verdict on the trespass claim. Defendants are incorrect in their assertion that plaintiffs' experts' opinions were based wholly on speculation or conjecture unsupported by any facts or data.
Baker, for example, opined that Southview's manure application caused nitrates to enter ground water through a process known as nitrification. He stated that this process is caused by microorganisms, and occurs at temperatures above fifty degrees. Def. Ex. J at 25. He also stated that these nitrates will enter the ground water if there are no crops present to take up the nitrates, and that because nitrates are water soluble, "if water moves, nitrates move with it. There's no retardation of the nitrates by the soil." Id. at 26.
Chiarenzelli based his opinion that nitrates found in the plaintiffs' wells had come from Southview Farm on his understanding of water flow and the topography of the area in question. Def. Ex. K at 105-06. He explained how he arrived at his opinion, and his testimony was not simply unsupported speculation.
Defendants' argument that Chiarenzelli's opinion was worthless because it was based on the opinions of Baker is without merit. Baker stated that he believed that the nitrates in the plaintiffs' wells came from Southview because Southview was "the only significant nitrate source up-gradient of the plaintiffs' wells." Def. Ex. K at 105.
I note again that defendants made no objection to the admission of this opinion on this ground at trial. They therefore waived any argument that the testimony was inadmissible. Bilzerian, 926 F.2d at 1294-95.
Second, the only authority offered by defendants for the proposition that an expert cannot base an opinion on the opinion of another expert, United States v. 102.93 Acres of Land, 154 F. Supp. 258 (E.D.N.Y. 1957), aff'd, 257 F.2d 805 (2d Cir. 1958), is distinguishable in that the expert in that case based his conclusions on "the advice and counsel of others who were not called as witnesses." Id. at 261 (emphasis added). Thus, that case implicated a concern that was not present in the instant case, namely, the inability of the adverse party to cross-examine the expert whose opinions underlie the witness' opinion. Baker testified that Southview was indeed a source of nitrates, and defendants had the opportunity to, and did, cross-examine him concerning that opinion. Cf. American Bearing Co. v. Litton Indus. Inc., 540 F. Supp. 1163, 1172 (E.D.Pa. 1982) (finding inadmissible economist's testimony based on alleged out-of-court statement of another expert who testified prior to economist, since other expert made no such statement when testifying, and defendant had no opportunity to cross-examine him about it).
Moreover, 102.93 Acres was decided prior to the adoption of the Federal Rules of Evidence, which expressly permit an expert to base an opinion even on otherwise inadmissible evidence if that evidence is "of a type reasonably relied upon by experts" in the same field. Fed. R. Evid. 703. This rule has been held to permit an expert in one field to base on opinion in part on the opinions of other experts in other fields. See United States v. 1.014.16 Acres of Land, 558 F. Supp. 1238 (W.D.Mo. 1983), (real estate appraiser could consider opinions of forester and hydrologist in arriving at estimate of property's value, and forester could consider hydrologist's data to frame opinion on effect flooding would have on foliage), aff'd, 739 F.2d 1371 (8th Cir. 1984).
This view is perfectly sensible. As the district court observed in 1,014.16 Acres, "an expert cannot be an expert in all fields, and it is reasonable to expect that experts will rely on the opinion of experts in other fields as background material for arriving at an opinion." 558 F. Supp. at 1242.
The import of Chiarenzelli's testimony, then, was merely that if one accepted Baker's opinion that nitrates from Southview entered streams and ground water, those nitrates would tend to be carried toward plaintiffs' property. If the jury did not credit Baker's opinion that the water contained nitrates, they simply would have been unconcerned with the direction of the flow of the water. This was effectively no different from having an expert give an opinion based on hypothetical facts, on the expectation that the jury will find those facts to exist in the actual case before them.
I am equally unpersuaded by defendants' argument that the experts were unable to state with certainty that there was a causal connection between defendants' activities and the nitrates in plaintiffs' wells. First, Baker did not need to testify on that matter. He was called to testify about the leaching of nitrates from manure into ground water, not about the movement of that ground water from defendants' to plaintiffs' property.
Defendants' argument that Baker's opinion was "totally speculative as evidenced by his statements that 'it [nitrate] probably does [leach into the groundwater] by the time fall comes' . . .," Def. Mem. at 24, takes Baker's testimony out of context. Baker made this statement in response to a question whether "all of the nitrate that's left in the soil . . . necessarily leaches into the ground water . . ." Def. Ex. J at 77. He explained that when the weather turned cold in the fall, nitrification would be less likely to occur, so that some nitrates might remain in the soil. Merely because he did not state to an absolute certainty that one hundred percent of the nitrates present would have leached out of the soil by the end of the growing season did not render speculative his opinion that leaching did occur.
Similarly, Chiarenzelli's testimony was not merely speculative about the existence of a connection between nitrate contamination of plaintiffs' wells and defendants' activities at Southview Farm. At one point during cross-examination, defense counsel asked him, "But you concluded that it was highly likely [that there was a connection], even though you could not establish a direct connection; isn't that correct?" Chiarenzelli responded, "Right, you can almost never establish a direct connection." Viewed in context, Chiarenzelli's testimony did not mean that he was simply guessing about this matter; as defense counsel himself stated, Chiarenzelli had "concluded that it was highly likely" that there was a causal connection." Def. Ex. K at 135. Furthermore, Chiarenzelli stated earlier in his testimony that in his opinion, "the nitrates in the plaintiffs' wells can only be coming from fields owned, rented and operated by Southview Farm." Id. at 105. His statement about never being able to establish a direct connection, then, could reasonably be taken to mean only that it was virtually impossible to prove the connection beyond all doubt, and that it was necessary to infer the connection from circumstantial evidence.
I conclude that Baker's and Chiarenzelli's testimony was properly before the jury and that it gave the jury a sufficient basis for their verdict on the trespass claim. Defendants were free to explore further the foundation of the experts' opinions through cross-examination, and to argue before the jury at the close of the case that the experts were not worthy of credence. See Daubert v. Merrell Dow Pharmaceuticals, 125 L. Ed. 2d 469, 113 S. Ct. 2786, 2798 (1993) (noting value of cross-examination and presentation of contrary evidence as preferred means of challenging value of expert testimony). Beyond that, the weight to be given the experts' opinions was for the jury to consider, and in my view this evidence was sufficient to support the verdict concerning the trespass claims.
Based on the jury verdict rendered on May 19, 1993, judgment is entered in favor of all the plaintiffs on their trespass claim in the following amounts:
Karcheski Family $ 1000.00
Lois E. Link/
Daniel L. Wilson $ 1000.00
Fagan Family $ 1.00
Ferris Family $ 100.00
Kirk Schroeder $ 1000.00
Bly Family $ 1000.00
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