32 ELR 20824 -- Bufford v. Williams

Bufford v. Williams

No. 00-6055 (42 Fed. Appx. 279) (UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT July 2, 2002)

ELR Digest

The court affirms a district court's grant of summary judgment in favor of a wastewater treatment facility sued by landowners alleging that the facility allowed pollutants to be discharged onto their property in violation of the Clean Water Act. The landowners contended that because fecal coliform was detected in water samples taken from a neighbor's property, located south of the facility, as well as samples taken from their own property, located southwest of the facility, the facility must be the source of the pollutants. The court holds that because the landowners failed to present any credible evidence demonstrating a point source discharge of any pollutant from the facility, the district court properly granted summary judgment in favor of the facility. First, the landowners failed to provide any evidence of a point source discharge from the facility. Moreover, even assuming evidence existed demonstrating that water from the facility either flows onto the landowners' property or somehow infiltrates the property's groundwater, there is no evidence that this water is polluted with fecal coliform originating from the facility. The facility put forth substantial evidence suggesting that the fecal coliform detected on the properties could not have come from the facility. Meanwhile, the landowners' expert limited his testing to water found on the landowners' and neighbor's properties, both of which are used for grazing cattle. Fecal coliforms originate from both cattle and humans, and the landowners' expert admitted it is impossible to differentiate fecal coliform originating in human waste from that originating in the waste of other warm-blooded animals such as cattle based on the type of tests used.

The full text of this decision is available from ELR (6 pp., ELR Order No. L-544).

Counsel for Plaintiffs
Jon M. Laasch
Jacobson & Laasch
212 E. Second St., Edmond OK 73034
(405) 341-3303

Counsel for Defendants
Patricia L. Franz
Rainey, Ross, Rice & Binns
735 First National Center W., Oklahoma City OK 73102
(405) 235-1356

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]