Jump to Navigation
Jump to Content

Coon v. Willet Dairy, Ltd. Partnership

ELR Citation: 38 ELR 20190
Nos. Nos. 07-3453, -3462, (2d Cir., 07/30/2008) Aff'd

The Second Circuit upheld the dismissal of residents' Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) claims against a nearby dairy for emitting hazardous pollutants into the environment. The residents argued that the dairy violated the CWA by operating as a concentrated animal feeding operation without a permit before July 1999. But this claim was waived because they failed to raise it properly before the lower court. Besides, the suit alleges a "wholly past violation" that cannot be the subject of a CWA citizen suit. In addition, the CWA's permit shield provision, which protects a CWA permitholder from facing suits challenging the adequacy of its permit, prohibited the residents' action as to any claims after that date. And because the residents' RCRA claims are based on the same activities and substances that the CWA claims cover, the RCRA claims were prohibited under the statutes' non-duplication clause. Last, the dairy did not need a permit to construct a stock pond since it was built on land already being used for farming.

[A prior decision in this litigation can be found at 37 ELR 20191.]