ELR Citation: ELR 20396
No(s). 91-CV-6031L (W.D.N.Y. Apr 7, 1993)

The court holds that a partnership, and one of its partners that own a farm in upstate New York are not entitled to summary judgment dismissing tort and Federal Water Pollution Control Act (FWPCA) claims and common law, brought by landowners residing near the farm, which relate to defendants' alleged storage and spraying of manure on the farm as a fertilizer. The court first grants the landowners' motion to supplement their complaint to allege FWPCA violations arising out of manure discharges that occurred after suit was commenced, to add an FWPCA claim based on alleged violations they learned about through discovery, and to add a pendant claim that one discharge was done intentionally to caused emotional distress to two plaintiffs. The allegations sought to be added relate to the claims in the amended complaint, the defendants will suffer little prejudice by the addition of the new FWPCA claim, the pendant emotional distress claim will not inject new issues into the case to a significant degree, and intent issues are already present in the trespass claim. The court also grants leave to a private organization representing farmers' interests to submit an amicus brief. The court next holds that plaintiffs sufficiently alleged injury-in-fact to support standing. Aesthetic harm and harm to one's quality of life may support an FWPCA claim, as long as the plaintiff is among the persons adversely affected. Here, plaintiffs alleged that the sights and smells of manure-laden watercourses near, and sometimes adjacent to, the farm are offensive and have diminished their quality of life and their ability to enjoy the surrounding environment. The court holds that plaintiffs' personal observations and expert opinions suffice to create an issue of fact as to whether defendants' alleged point source discharges harmed plaintiffs.

The court next holds that plaintiffs were not required to allege that defendants violated a state pollution discharge elimination system permit. To hold otherwise would invite polluters to avoid liability by simply failing to obtain a permit in the first place. The court holds that plaintiffs have sufficiently alleged ongoing violations of the FWPCA to defeat defendants' motion for summary judgment on that issue. Defendants' attempt to show that their alleged discharges were insignificant was insufficient to meet their heavy burden of proving that their discharges will not recur. Also, plaintiffs argue that defendants are using the same practices and procedures that caused the discharges alleged in their complaint. The court rejects the defendants' argument that manure is not a "pollutant" within the meaning of FWPCA §502(6), because relevant authority is directly to the contrary. The court holds that there are genuine issues of fact whether defendants' alleged discharges originated from a point source. The fact that some of the alleged discharges may have resulted from rainwater runoff does not necessarily mean that the discharges did not originate from a point source. Plaintiffs have presented photographs and both lay and expert testimony tending to show that the farm contains both natural and man-made streams and ditches that,if plaintiffs' allegations are true, can and have conveyed pollutants from defendants' manure-spreading activity into navigable waters. Also, plaintiffs allege that they have witnessed discrete furrows or ditches on the farm carrying liquid manure, and several alleged incidents do not involve runoff, but discharges from distinct sources, including a broken pipe and a truck. The court also holds that there are factual issues relating to whether the farm is a "concentrated animal feeding operation" under 40 C.F.R. §122.23, which would automatically make it a point source.

The court next denies defendants' motion for summary judgment on plaintiffs' trespass claim. There is some evidence that liquid manure, or chemicals therefrom, have entered plaintiffs' property as a result of defendants' willful activities. Whether this evidence will ultimately support a finding that defendants have interfered with plaintiffs' rights to exclusive possession of their property, and whether defendants should have realized the probable consequences of their actions to a degree sufficient to support this claim, remains to be seen. Finally, the court denies the defendants' motion to dismiss plaintiffs' nuisance claims. The record presents questions of fact concerning whether defendants have contaminated waterways in the area around the farm, and if so whether they have endangered the health or comfort of the public at large. Plaintiffs may also be able to show at trial that they have suffered some harm peculiar to them by virtue of their status as landowners and residents near the farm. Likewise, there are issues of material fact concerning whether defendants' activities constitute an unreasonable invasion of plaintiffs' use and enjoyment of their property. The court further holds that the New York Right-to-Farm Law does not bar plaintiffs' nuisance claim.

Counsel for Plaintiffs
Donald W. O'Brien
Woods, Oviatt, Gilman, Sturman & Clarke
Central Trust Bldg.
44 Exchange St., Rochester NY 14614
(716) 454-5370

Counsel for Defendants
John W. Clarke, Althena Jamesson
Harris, Beach & Wilcox
Granite Bldg.
130 E. Main St., Rochester NY 14604
(716) 232-4440