IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF IOWA
`CENTRAL DIVISION
`
`
`GORDON GARRISON,
`
`
`
`Plaintiff,
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`No. 18-CV-3073-CJW-MAR
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`vs.
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` ORDER
`
`NEW FASHION PORK LLP; and BWT
`HOLDINGS LLLC,
`
`Defendants.
`
`_________________
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`TABLE OF CONTENTS
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`FACTUAL BACKGROUND ............................................................. 2
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`I.
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`II.
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`III. MOTION FOR SUMMARY JUDGMENT ............................................. 6
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`PROCEDURAL BACKGROUND ....................................................... 4
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`A. Applicable Law ...................................................................... 7
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`B. Wholly Past Violations ............................................................. 9
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`1.
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`Applicable Law ............................................................. 9
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`2.
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`Discussion ...................................................................10
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`a.
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`Parties’ Arguments .............................................11
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`b. Manure Spreading Location Change ...........................11
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`c.
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`Physical Observations and Water Tests ........................13
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`Case 3:18-cv-03073-CJW-MAR Document 99 Filed 03/27/20 Page 1 of 20
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`d.
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`Open-Dumping .....................................................16
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`
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`C.
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`State Law Claims ...................................................................16
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`IV. EXPERT REPORTS .......................................................................18
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`V.
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`
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`CONCLUSION .............................................................................20
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`This matter is before the Court on Defendants’ Motion for Summary Judgment
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`(Doc. 68), Plaintiff’s Objections to Magistrate’s Order Striking Plaintiff’s Expert’s
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`Supplemental Report (“Objections to Magistrate’s Order”) (Doc. 86), and Defendants’
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`Motion to Strike Expert Reports Submitted with Plaintiff’s Resistance to Defendants’
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`Motion for Summary Judgment (“Motion to Strike Expert Reports”) (Doc. 88). Plaintiff
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`timely resisted defendants’ Motion for Summary Judgment (Doc. 81) and defendants filed
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`a timely reply (Doc. 90). Defendants timely resisted plaintiff’s Objections to Magistrate’s
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`Order. (Doc. 94). Plaintiff also timely resisted defendants’ Motion to Strike Expert
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`Reports (Doc. 93) and defendants filed a timely reply (Doc. 97). On February 27, 2020,
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`the Court held a hearing on all the pending motions and the parties presented oral
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`arguments. (Doc. 98).
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`For the following reasons, defendants’ motion for summary judgment (Doc. 68)
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`is granted. Plaintiff’s Objections to Magistrate’s Order (Doc. 86) and defendants’
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`Motion to Strike Expert Reports (Doc. 88) are denied as moot.
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`I.
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`FACTUAL BACKGROUND
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`The following background facts are undisputed unless otherwise indicated. The
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`Court will discuss additional facts below as they become relevant to the Court’s analysis.
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`This case involves animal manure runoff from a confined animal feeding operation
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`(“CAFO”) that is allegedly damaging a neighboring landowner’s property. Defendants
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`2
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`own and operate a CAFO in Emmet County, Iowa, on a piece of land known as the
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`“Sanderson property.” (Docs. 79, at 1; 81-1, at 1). Defendants’ business and operations,
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`however, are not limited to the CAFO on the Sanderson property. Instead, defendants
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`and their subsidiaries own and operate a vast agricultural network related to their hog
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`operations. For example, defendants own significant amounts of farmland on which they
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`plant crops that have been fertilized with manure produced by their hogs. (Doc. 81-1, at
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`5). Defendants also sell excess manure to other farmers and generate revenue through
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`other means related to raising hogs. (Id., at 3-5).
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`Plaintiff is an individual who lives in Emmet County, Iowa. (Doc. 91, at 1).
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`Plaintiff’s property is adjacent to the Sanderson property. (Doc. 79, at 1). Plaintiff
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`alleges that defendants have previously misapplied and continue to misapply hog manure
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`to defendants’ fields, which causes the manure to runoff into water on plaintiff’s property.
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`(Doc. 60, at 6-7, 9). Plaintiff alleges that this misapplication of hog manure generated
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`at the CAFO on the Sanderson property violates the Resource Conservation and Recovery
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`Act (“RCRA”), the Clean Water Act (“CWA”), and Iowa statutes, regulations, and
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`common law. (Id., at 3-14).
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`The manure pit on the Sanderson property is scheduled to be emptied by defendants
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`every fall after the crop harvest is complete. (Doc. 81-1, at 6). To empty the pit,
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`defendants fill a tanker truck with the manure and then apply the manure directly into the
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`soil. (Id.). The manure is directly injected into a small slit in the soil and then covered
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`with another layer of soil. (Id., at 6-7). Excess manure that is not applied to defendants’
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`fields is sold as fertilizer to other farms. (Id., at 3-5).
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`Plaintiff alleges that on two separate occasions defendants improperly applied the
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`manure to fields on the Sanderson property. First, in 2016, plaintiff observed defendants
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`apply manure to the Sanderson property when the soil was saturated from recent rains.
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`(Id., at 7). Second, in the fall of 2018, defendants applied manure on top of frozen
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`3
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`ground and snow. (Id.). In the fall of 2018, the ground at the Sanderson property was
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`too frozen and snow-covered to inject the manure into the soil. (Id.). Before applying
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`the manure, defendants contacted the Iowa Department of Natural Resources (“DNR”)
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`to get permission to spray manure onto the frozen ground rather than inject it. (Id.). The
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`DNR approved the application and defendants sprayed manure onto the frozen ground
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`with the stated intent that the manure would also freeze and soak into the ground during
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`the spring thaw. (Id.). In December 2018, however, the weather became unseasonably
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`warm, which caused the manure to unfreeze and run off the Sanderson property. (Id.,
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`at 8). The DNR sent defendants a notice of violation for the December 2018 discharge.
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`(Id., at 12). Defendants entered into an Administrative Consent Order with the DNR
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`which included an administrative penalty and an order for defendants to develop a
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`standard procedure for applying manure. (Id., at 12-13).
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`II.
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`PROCEDURAL BACKGROUND
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`Plaintiff filed his first complaint in this case on December 20, 2018. (Doc. 1). In
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`his first complaint, plaintiff asserted three federal claims based on RCRA, the CWA, and
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`Federal Farm Bill violations. (Id., at 4-10, 13-14). Plaintiff also asserted state law
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`claims for manure management plan violations, unlawfully discharging manure through
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`air emissions, violating drainage laws, nuisance, and trespass. (Id., at 10-15). In the
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`original complaint, however, plaintiff only alleged a single specific act that occurred in
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`October 2016 giving rise to plaintiff’s claims. (Id., at 7-8).
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`Defendants moved to dismiss plaintiff’s RCRA, CWA, and Federal Farm Bill
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`claims. (Doc. 9). For plaintiff to assert RCRA and CWA claims plaintiff had to allege
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`ongoing violations. Defendants argued the complaint failed to allege any ongoing
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`violations, that the manure was not “solid waste” subject to RCRA, that there was no
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`discharge into navigable waters, that RCRA’s anti-duplication provision precluded claims
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`for both CWA and RCRA violations, and that the complaint did not cite to a specific
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`4
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`Federal Farm Bill violation. (Doc. 13, at 3-21). Defendants also moved to dismiss the
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`remaining state law claims because, after dismissing the federal claims, the district court
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`would lack supplemental jurisdiction. (Id., at 21-22). Defendants requested oral
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`argument (Doc. 17). The Court granted the request (Doc. 19) and held oral argument
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`on defendants’ motion (Doc. 25).
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`
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`After oral argument, the Court found plaintiff could only point to a single specific
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`violation and general statements that the manure was applied once or twice every year to
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`support his claim that the violations were ongoing. (Doc. 31, at 7-10). The Court
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`concluded a single specific violation was insufficient to show an ongoing violation. (Id.).
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`The Court did, however, permit plaintiff to amend his complaint to allege additional facts
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`that could show there was an ongoing violation of the CWA. (Id., at 9).
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`To assert a claim under RCRA plaintiff also had to allege sufficient facts to support
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`a finding that defendants were discarding “solid waste” as defined by RCRA. Based on
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`the complaint and oral argument, the Court found that plaintiff had not alleged that
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`defendants were applying manure to defendants’ fields to discard it, and thus the manure
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`was not “solid waste.” (Id., at 10-13). Because there was no solid waste, plaintiff’s
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`RCRA claim failed, and the Court dismissed the RCRA claim with prejudice. (Id., at
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`13). The Court also found the Federal Farm Bill did not create a private right of action,
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`so the Court dismissed plaintiff’s Federal Farm Bill claim as well. (Id., at 18-19).
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`Finally, because the Court allowed plaintiff to amend his CWA claim, the Court declined
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`to address its supplemental jurisdiction over the state law claims. (Id., at 19-21).
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`
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`Plaintiff responded to the Court’s order by filing an amended and substituted
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`complaint alleging a second specific violation of RCRA and the CWA. (Doc. 34).
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`Plaintiff alleged that in the fall or early winter of 2018 defendants spread manure on
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`fields that were “covered in snow and/or frozen.” (Id., at 9). Plaintiff also moved for
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`the Court to amend or correct its judgment and for leave to amend his RCRA claim.
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`(Doc. 35). Plaintiff asserted that the fall or early winter 2018 violation could also be
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`used to show that defendants were not using the manure as fertilizer, and instead they
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`applied the manure to discard it. (Doc. 35-1, at 7). Thus, plaintiff argued the manure
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`was “solid waste,” and he could allege a valid RCRA claim. The Court permitted
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`plaintiff to file his Second Amended and Substituted Complaint. (Doc. 52, at 10).
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`
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`Plaintiff’s second amended complaint asserts seven causes of action. (Doc. 60).
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`Specifically, plaintiff alleges that defendants violated or are violating RCRA and the
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`CWA. (See id., at 3-12). The other five causes of action assert claims under Iowa law.
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`(Id., at 12-14). Defendants moved to dismiss the RCRA, CWA, and air emissions claim
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`and asked that the Court decline to exercise supplemental jurisdiction over the remaining
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`state law claims. (Doc. 63). The Court granted defendants’ motion to dismiss the air
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`emissions claim but denied the motion as to the rest of the claims. (Doc. 72).
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`Defendants now move for summary judgment on plaintiff’s RCRA, CWA, and
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`Manure Management Plan claims and ask the Court to decline to exercise supplemental
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`jurisdiction on the remaining state law claims. (Doc. 71, at 2-3). The Court heard oral
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`argument on defendants’ Motion for Summary Judgement, as well as defendant’s Motion
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`to Strike Expert Reports and plaintiff’s Objections to Magistrate’s Order, on February
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`27, 2020. (Doc. 98).
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`III. MOTION FOR SUMMARY JUDGMENT
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`Defendants move for summary judgment here. Defendants argue that plaintiff’s
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`RCRA claim must fail because plaintiff failed to provide the required notice for the 2018
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`violation. (Doc. 71, at 4-6). Defendants also argue that the manure at issue is not “solid
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`waste” covered by RCRA. (Id., at 6-9). As a third basis for summary judgment,
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`defendants assert plaintiff cannot prove any imminent or future harm that would subject
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`defendants to liability under RCRA. (Id., at 9-11). Lastly, defendants argue RCRA’s
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`anti-duplication provision bars plaintiff’s claim. (Id., at 11-13).
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`Defendants then argue that the Court should grant summary judgment on plaintiff’s
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`CWA claim because the DNR’s administrative enforcement action precludes plaintiff’s
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`CWA claim. (Id., at 13-16). Defendants also reassert their ongoing violation and lack
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`of notice arguments as to plaintiff’s CWA claim. Next, defendants argue plaintiff cannot
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`prove a discharge from a point source. (Id., at 17-19). Last, defendants argue plaintiff
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`cannot prove any discharge into a navigable water as required by the CWA. (Id., at 19-
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`20).
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`Defendants also argue that the Court should dispose of plaintiff’s state law claims.
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`Defendants assert the Court should grant summary judgment on plaintiff’s manure
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`management plan claim because plaintiff admitted that the plan is fully compliant with
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`Iowa law. (Id., at 22-24). Defendants also assert that after granting summary judgment
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`on plaintiff’s federal claims, the Court should dismiss any remaining state law claims for
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`lack of supplemental jurisdiction. (Id., at 24-25).
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`A.
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`Applicable Law
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`Summary judgment is appropriate when “the movant shows that there is no
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`genuine dispute as to any material fact and the movant is entitled to judgment as a matter
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`of law.” FED. R. CIV. P. 56(a). When asserting that a fact is undisputed or is genuinely
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`disputed, a party must support the assertion by “citing to particular parts of materials in
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`the record, including depositions, documents, electronically stored information, affidavits
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`or declarations, stipulations . . ., admissions, interrogatory answers, or other materials.”
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`FED. R. CIV. P. 56(c)(1)(A); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
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`Alternatively, a party may show that “the materials cited do not establish the absence or
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`presence of a genuine dispute, or that an adverse party cannot produce admissible
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`evidence to support the fact.” FED. R. CIV. P. 56(c)(1)(B). More specifically, a “party
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`may object that the material cited to support or dispute a fact cannot be presented in a
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`form that would be admissible in evidence.” FED. R. CIV. P. 56(c)(2).
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`7
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`A fact is “material” if it “might affect the outcome of the suit under the governing
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`law[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted).
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`“An issue of material fact is genuine if it has a real basis in the record,” Hartnagel v.
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`Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citation omitted), or “when a reasonable
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`jury could return a verdict for the nonmoving party on the question,” Wood v.
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`DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (internal quotation marks and
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`citation omitted). Evidence that presents only “some metaphysical doubt as to the
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`material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
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`(1986), or evidence that is “merely colorable” or “not significantly probative,” Anderson,
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`477 U.S. at 249-50, does not make an issue of fact genuine. In sum, a genuine issue of
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`material fact requires “sufficient evidence supporting the claimed factual dispute” that it
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`requires “a jury or judge to resolve the parties’ differing versions of the truth at trial.”
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`Id. at 249 (citation and internal quotation marks omitted).
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`The party moving for summary judgment bears “the initial responsibility of
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`informing the district court of the basis for its motion and identifying those portions of
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`the record which show a lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citation
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`omitted). Once the moving party has met this burden, the nonmoving party must go
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`beyond the pleadings and by depositions, affidavits, or other evidence designate specific
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`facts showing that there is a genuine issue for trial. See Mosley v. City of Northwoods,
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`415 F.3d 908, 910 (8th Cir. 2005).
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`In determining whether a genuine issue of material fact exists, courts must view
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`the evidence in the light most favorable to the nonmoving party, giving that party the
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`benefit of all reasonable inferences that can be drawn from the facts. Tolan v. Cotton,
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`134 S. Ct. 1861, 1863 (2014); Matsushita, 475 U.S. at 587-88 (citation omitted); see
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`also Reed v. City of St. Charles, 561 F.3d 788, 790 (8th Cir. 2009) (stating that in ruling
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`on a motion for summary judgment, a court must view the facts “in a light most favorable
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`8
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`to the non-moving party—as long as those facts are not so ‘blatantly contradicted by the
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`record . . . that no reasonable jury could believe’ them”) (alteration in original) (quoting
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`Scott v. Harris, 550 U.S. 372, 380 (2007)). A court does “not weigh the evidence or
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`attempt to determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo &
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`Co., 383 F.3d 779, 784 (8th Cir. 2004) (citation omitted). Rather, a “court’s function
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`is to determine whether a dispute about a material fact is genuine[.]” Quick v. Donaldson
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`Co., 90 F.3d 1372, 1376-77 (8th Cir. 1996). When considering a motion for summary
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`judgment, the court “need consider only the cited materials, but it may consider other
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`materials in the record.” FED. R. CIV. P. 56(c)(3).
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`B. Wholly Past Violations
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`The Court first considers whether there is a genuine issue of material fact as to
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`any current and ongoing violations of RCRA and the CWA. The Court finds plaintiff
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`has only provided evidence of past violations but has not provided any evidence from
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`which a reasonable factfinder could find that defendants’ violations are current and
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`ongoing. Thus, because there is no genuine issue of material fact that defendants’
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`violations are wholly past violations, defendants’ motion for summary judgment as to
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`plaintiff’s RCRA and CWA claims is granted.
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`1.
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` Applicable Law
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`As the Court explained in its Order granting in part and denying in part defendants’
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`Motion to Dismiss Plaintiff’s Second Amended and Substituted Complaint, RCRA does
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`not support citizen suits for wholly past violations. (Doc. 72, at 9-11) (citing Meghrig
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`v. KFC W., Inc., 516 U.S. 479, 483-86 (1996)). RCRA’s purpose is to “minimize the
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`present and future threat to human health and the environment” by reducing hazardous
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`waste and ensuring waste is properly treated, stored, and disposed of. Meghrig, 516
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`U.S. at 483 (quoting 42 U.S.C. § 6902(b)). RCRA’s citizen suit provision “permits a
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`private party to bring suit only upon a showing that the solid or hazardous waste at issue
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`9
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`‘may present an imminent and substantial endangerment to health or the environment.’”
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`Id. at 485 (quoting 42 U.S.C. § 6972(a)(1)(B)). The statute’s reference to waste which
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`“may present” imminent harm “excludes waste that no longer presents such a danger.”
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`Id. at 485-86. A harm is imminent if it threatens to occur immediately. Id. RCRA’s
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`language is clear that a remedy is not available for wholly past violations, and thus, a
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`plaintiff must allege that the defendants’ RCRA violation “is current and ongoing.” 307
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`Campostella, LLC v. Mullane, 143 F. Supp. 3d 407, 413 (E.D. Va. 2015). The CWA
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`similarly does not support citizen suits for wholly past violations. Gwaltney of Smithfield,
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`Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 64 (1987).
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`2.
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`Discussion
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`In the Court’s Order on defendants’ second motion to dismiss, the Court rejected
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`defendants’ argument that the second amended complaint only alleged past violations of
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`RCRA and the CWA. (Doc. 72, at 11, 16-17). In reaching its finding, the Court
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`considered plaintiff’s allegations of the 2016 incident, the 2018 incident, and plaintiff’s
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`additional circumstantial allegations. (Id., at 11). The Court found that “[w]hen viewed
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`independently, the 2016 and 2018 incidents appear to be wholly past violations.” (Id.).
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`When combined with plaintiff’s additional circumstantial allegations about defendants’
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`pattern of violations, however, the Court found the allegations were sufficient to state a
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`claim of imminent and ongoing harm. (Id.). The Court did not find that there are current
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`and ongoing violations, it found that plaintiff had alleged facts that raised the right to
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`relief above a speculative level. (Id., at 9-10). At the summary judgment stage, though,
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`plaintiff’s allegations alone are insufficient; plaintiff must point to facts in the record from
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`which a jury could find a current and ongoing violation of RCRA and the CWA. See
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`FED. R. CIV. P. 56(a); Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007) (“Mere
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`allegations, unsupported by specific facts or evidence beyond the nonmoving party's own
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`conclusions, are insufficient to withstand a motion for summary judgment.”).
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`a.
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`Parties’ Arguments
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`Defendants make two arguments in support of their assertion that plaintiff cannot
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`show any ongoing violation. First, defendants argue that they did not apply any manure
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`on the Sanderson property following the 2019 harvest, electing instead to dispose of the
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`manure from the Sanderson property CAFO onto another property owned by defendants.
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`(Docs. 71, at 10; 81-1, at 11). In other words, defendants argue plaintiff cannot show
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`an ongoing violation because defendants now have an alternative disposal method and no
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`longer need to apply manure to the Sanderson property. Second, defendants argue that
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`“[p]laintiff does not have any evidence that there is any immediate and substantial
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`endangerment that meets the threshold requirement of RCRA” (Doc. 71, at 10) or the
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`CWA (id., at 16-17).
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`Plaintiff makes several arguments in support of his claim that there is an imminent
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`and ongoing threat. First, plaintiff argues that defendants’ decision to apply the manure
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`to other fields effectively serves as an admission that defendants were creating an
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`imminent and substantial endangerment. (Doc. 83, at 18). Second, plaintiff argues the
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`manure was disposed of in violation of anti-dumping laws. (Id.). Third, plaintiff asserts
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`that “evidence shows . . . that from the start of the Defendants’ CAFO operation until
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`the fall of 2019, they had repeatedly applied manure to the field and the water tests show
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`that excess manure was polluting [plaintiff’s] property.” (Id., at 27).
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`b. Manure Spreading Location Change
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`The Court is not persuaded by defendants’ argument that because defendants now
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`have another field on which they can apply manure, there is no longer a threat of
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`imminent or ongoing harm. Other than the 2016 and 2018 incidents, plaintiff’s only
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`allegation of an ongoing harm is that the manure application occurs annually. It is true,
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`then, that since defendants started spreading the manure elsewhere, the evidence in the
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`record shows that violations do not occur annually as a standard practice. But, for the
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`11
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`Court to find defendants’ spreading practice change shows there is no threat of future or
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`imminent harm, there must be clear evidence the original spreading practices could not
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`reasonably be expected to recur. Mississippi River Revival, Inc. v. City of Minneapolis,
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`319 F.3d 1013, 1016 (8th Cir. 2003). Defendants, however, have done nothing to show
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`they will not start applying manure to the Sanderson property after this lawsuit is
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`resolved. Thus, defendants’ one-time change in spreading practices does not, standing
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`alone, establish that there is no threat of ongoing or imminent harm.
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`The Court, however, finds plaintiff’s argument that defendants’ change in
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`practices shows there was an imminent and ongoing threat unpersuasive as well. Plaintiff
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`has cited only one piece of evidence in support of its argument, namely defendants’
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`environmental manager Jay Moore’s statement that this lawsuit was “definitely a
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`consideration” in defendants’ decision to begin spreading manure elsewhere. (Doc. 83,
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`at 18). Plaintiff does not cite any additional evidence that defendants were concerned
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`they would be found liable if they continued spreading, nor do they cite any additional
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`evidence that could lead the Court to conclude defendants were concerned there was an
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`ongoing and imminent threat. Far from an effective admission, plaintiff’s argument
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`amounts to nothing more than a conclusory guess at defendants’ motives and reasoning.
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`The Court would also be unlikely to consider defendants’ new spreading practices
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`as evidence of an admission that there was an imminent and ongoing threat if the case
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`proceeded to trial. Federal Rule of Evidence 407 provides: “When measures are taken
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`that would have made an earlier injury or harm less likely to occur, evidence of the
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`subsequent measures is not admissible to prove: negligence; culpable conduct; . . ..” All
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`evidentiary rules are generally relaxed when the judge is the fact-finder, as will be the
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`case in the bench trial here. Null v. Wainwright, 508 F.2d 340, 344 (5th Cir. 1975)
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`(“Strict evidentiary rules of admissibility are generally relaxed in bench trials . . ..”).
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`Despite the relaxed standard, evidentiary rules still apply. A party opposing a motion
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`for summary judgment can only rely on evidence “that would be admissible in evidence”
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`to generate a genuine issue of material fact. FED. R. CIV. P. 56(c)(2). Here, plaintiff
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`seeks to use defendants’ decision to spread manure on another field to show that there
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`was previously an imminent and ongoing threat. In other words, plaintiff wants the Court
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`to conclude that defendants’ subsequent remedial measure is proof that defendants
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`previously violated the law. Thus, the Court would not consider this evidence at trial as
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`an admission of a prior violation.
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`Although the Court does not find that defendants’ change in spreading practices
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`showed there was an imminent and ongoing threat, if defendants resumed spreading on
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`the Sanderson property and additional specific instances of discharge onto plaintiff’s
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`property occurred, it could create an imminent and ongoing threat going forward. The
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`2016 and 2018 spreading events standing alone do not create a pattern of ongoing harm,
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`but if additional events occurred each year then there would be a question of fact whether
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`the events were isolated or part of a pattern establishing an imminent and ongoing harm.
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`Finding neither plaintiff’s nor defendants’ arguments decisive on this point, the
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`Court will consider the parties’ additional arguments.
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`c.
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`Physical Observations and Water Tests
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`Turning to defendants’ second argument, the Court finds plaintiff has not presented
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`any evidence that the violations are imminent and ongoing. Once the party moving for
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`summary judgment has identified the portions of the record which show the lack of a
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`genuine issue, the nonmoving party must designate specific facts showing that there is a
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`genuine issue for trial. Hartnagel, 953 F.2d at 395 (citation omitted). Plaintiff asserts
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`“the results of water tests and physical observations clearly established that the
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`[d]efendants would be causing imminent and substantial endangerment to [plaintiff’s]
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`property.” (Doc. 83, at 17, 27). Plaintiff provided deposition testimony that he observed
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`manure applied to saturated soil, but this observation appears to be based on a single
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`Case 3:18-cv-03073-CJW-MAR Document 99 Filed 03/27/20 Page 13 of 20
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`occurrence. (Doc. 68-3, at 35). Plaintiff has not identified any additional evidence that
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`he physically observed misapplications or overapplications on an ongoing basis causing
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`manure runoff into his stream. Plaintiff’s argument, then, rests entirely on his claim that
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`the water tests create a genuine issue of material fact about the ongoing nature of
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`defendants’ actions.
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`The water test results do not create an issue of material fact. First, plaintiff’s
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`water tests do not show a pattern of ongoing violations. Part of the Court’s reasoning in
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`allowing plaintiff’s claim to survive defendants’ second motion to dismiss was plaintiff’s
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`claim that defendants empty the manure pit under the CAFO once or twice each year and
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`defendants then apply the manure to their crop fields on the Sanderson property. (Doc.
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`72, at 10). Plaintiff also asserts that in 2016 and 2018 manure was applied to a saturated
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`field and a snow-covered field, respectively. The Court understands these allegations to
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`mean that when manure was applied to the field the manure was not taken up by the soil
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`and instead ran off the topsoil into plaintiff’s stream. For the water testing results to
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`support plaintiff’s allegations the results would need to show periodic spikes correlating
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`to defendants annual or semi-annual emptying of the manure pit. Plaintiff’s water
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`samples, however, do not show spikes in nitrate levels once or twice a year indicating a
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`pattern of violations correlating with the alleged misapplications or overapplications.
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`Even if plaintiff’s argument is that it takes time for overapplied manure to work
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`its way through the soil into the drainage system and then into plaintiff’s stream,
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`plaintiff’s inference is only reasonable if there is some pattern of increased nitrate levels
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`that correlate with overapplication, or some other evidence in the record linking the water
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`testing results to the timing of the alleged misapplications or overapplications. Plaintiff
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`has provided no evidence that any increased level of nitrates correlates to the once or
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`twice-yearly manure application. Indeed, the only pattern the Court is able to discern in
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`plaintiff’s evidence is a slight decrease in nitrate levels from 2016 to the end of 2018, the
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`period during which plaintiff alleges that defendants violated RCRA and the CWA.
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`(Docs. 81-3, at 3-17; 81-4).
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`Second, plaintiff has not designated any expert to testify about the nitrate levels or
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`specifically about the issue of causation. Even if the Court allows each of plaintiff’s
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`proposed experts’ testimony in its entirety, plaintiff cannot link the nitrate levels in the
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`water tests to misapplication of the manure. Plaintiff’s proposed experts discuss manure
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`management plans and soil drainage issues, but the Court finds no expert testimony in
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`the record linking defendants’ alleged overapplication or misapplication of manure to
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`higher levels of nitrates in plaintiff’s water tests. (See Doc. 81-5, at 1-29). Although
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`taking water samples and testing them for nitrates may not require scientific or specialized
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`skill, interpreting the results does require expert analysis. Here, plaintiff has provided
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`no expert testimony, admissible or not, tying defendants’ alleged misapplications or
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`overapplications of manure to the nitrate levels in the stream on plaintiff’s property.
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`Plaintiff has also not established a baseline to show that the nitrate levels are occurring
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`at a higher rate than before defendants started spreading manure or at a higher rate than
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`would be expected to naturally occur. Without an established baseline or metric there is
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`no evidence that the nitrate levels are occurring at a higher rate attributed to runoff from
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`defendants’ fields.
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`Thus, plaintiff’s water tests do not establish a discernable pattern of violations,
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`nor does plaintiff provide evidence that the nitrate levels are caused by defendants’
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`manure application. Plaintiff, then, can only point to the two wholly past violations in
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`2016 and 2018 in support of his RCRA and CWA claims. Just as the Court found in its
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`prior Orders, these two instances standing alone are insufficient to support a claim that
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`defendants’ violations are imminent and ongoing.
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`d.
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`Open-Dumping
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`Plaintiff also argues defendants’ “over-application of manure constituted open
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`dumping, in violation of RCRA.” (Doc. 83, at 18). RCRA does proh