                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                  JUL 2 2002
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 NORMAN BUFFORD; ZULA
 BUFFORD,

         Plaintiffs - Appellants,

    v.                                                         No. 00-6055
                                                        (D. C. No. 98-CV-1570-A)
 N. A. WILLIAMS, in his official capacity                   (W. D. Oklahoma)
 as acting director of the Crescent Public
 Works Authority and Acting Mayor of the
 City of Crescent; CRESCENT PUBLIC
 WORKS AUTHORITY,

         Defendants - Appellees.


                                ORDER AND JUDGMENT*


Before EBEL and KELLY, Circuit Judges, and WINDER**, District Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered


        This order and judgment is not binding precedent, except under the doctrines of
         *

law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

        The Honorable David K. Winder, Senior District Judge, United States District
         **

Court for the District of Utah, sitting by designation.
submitted without oral argument.

       Plaintiffs Norman Bufford and Zula Bufford brought this action in the United

States District Court for the Western District of Oklahoma against defendants N.A.

Williams and the Crescent Public Works Authority, alleging violation of the Federal

Water Pollution Control Act, also known as the Clean Water Act, 33 U.S.C. § 1251 et

seq., as administered in Oklahoma by the Oklahoma Pollutant Discharge Elimination

System, Okla. Stat. tit. 27A § 2-6-201 et seq. Plaintiffs and defendants filed cross-

motions for summary judgment. The district court granted defendants’ motion,

concluding plaintiffs failed to show a causal connection between defendants’ facility and

any pollutant found on plaintiffs’ property. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, we AFFIRM.

                                     BACKGROUND

       Wastewater Solutions, Inc. operates the wastewater treatment facility in Crescent,

Oklahoma, pursuant to a contract with the Crescent Public Works Authority. The facility

occupies 160 acres of land and consists of a three-celled total retention lagoon and a land

application system. The total retention lagoon is operated in series, i.e., flows of

wastewater enter cell No. 1, flow to cell No. 2, and then to cell No. 3. During the holding

time in the lagoon, sewage in the wastewater is broken down by natural biological

processes. The treated wastewater in cell No. 3 is appropriate for irrigation and is, in fact,

the water used for irrigation at the facility. The cells in the lagoon are designed to be and


                                             -2-
function as “no discharge” ponds. There is no evidence that cells are seeping or leaking.

       The land application or irrigation system consists of a land application field,

located east of the lagoon, equipped with a center pivot and an irrigation boom that

applies treated wastewater from cell No. 3 to the field. Because the facility is considered

a total retention system with land application, an Oklahoma Pollution Discharge

Elimination System (“OPDES”) permit1 is not required for operation of the system.2

       Oklahoma law requires that land application of wastewater via irrigation be

conducted at an agronomic rate, i.e., a rate the does not exceed the ability of the crop

grown on the land application field to absorb the nutrients in the wastewater. At

Crescent, and at other wastewater facilities in Oklahoma, land application sites are

designed to maximize evaporation and crop uptake of treated wastewater in order to

prevent pooling or ponding of water on the land application field. In addition, any water

soaking into the ground of these sites will be filtered by the soil. Therefore, the

probability of contamination of underlying groundwater is minimal.

       1
        The federal equivalent of this permit under the Clean Water Act is a National
Pollutant Discharge Elimination System (“NPDES”) permit. Because the United States
Environmental Protection Agency has delegated authority to the Oklahoma Department of
Environmental Quality to administer the Clean Water Act in Oklahoma, the required
permit for those facilities that discharge into the waters of the State of Oklahoma is the
OPDES permit rather than the NPDES permit.
       2
        Even if the facility had been designed for discharge into the nearby Cimarron
River, the wastewater in cell No. 3 would require no further treatment under an OPDES
permit because the treated water is of such a quality that it would not degrade the river
below the Beneficial Uses for the Cimarron River as established by the Oklahoma Water
Resources Board.

                                             -3-
       In 1986, heavy rains caused an elevated groundwater table in the area. To lower

the groundwater table and permit the construction of cell No. 3, defendants constructed a

groundwater interceptor trench at the facility along the east side of the treatment lagoon.

The interceptor trench was left in place after construction and currently serves two

purposes: (1) as a channel for water originating offsite to flow across the facility property

as it previously had; and (2) as an outlet for groundwater under the facility to insure that

the separation between the lagoon cell bottoms and the groundwater table is maintained.

The groundwater interceptor trench does not provide an outlet for water in the treatment

lagoon. Similarly, there is no evidence that the interceptor trench contains pollutants

from the treated wastewater that is applied to the land application field.

       In 1994, cracks in the aging sewer collection lines in Crescent caused an

infiltration problem at the facility by allowing storm water and groundwater to enter the

sewage lines resulting in a volume of water exceeding design specifications flowing into

the lagoon. To preserve the lagoon walls and prevent downstream flooding, discharges of

treated wastewater from cell No. 3 were periodically made directly to the land application

field by “unbuckling” the irrigation arm from its center pivot and allowing water to flow

directly onto the land application field, by-passing the irrigation boom. The inflow and

infiltration problems were repaired in the fall of 1994.

       In May of 1999 a similar discharge was required after a tornado destroyed the

irrigation boom at the facility. Once again, the discharge was of the treated wastewater


                                             -4-
from cell No. 3. Test results for water samples taken from cell No. 3 during the post-

tornado discharge indicated that the water in cell No. 3 was of better quality than water

discharged by many treatment facilities that discharge water in compliance with OPDES

permits. Water of this quality does not pose a threat to livestock or agricultural crops.

       Plaintiffs Norman Bufford and Zula Bufford own property adjacent to each other

in Crescent, Oklahoma. In May of 1998, plaintiffs hired an expert to perform a Limited

Environmental Site Investigation. Plaintiffs’ expert sampled water on the Bufford

property, located southwest of the facility, and also sampled water on the Endicott

property, located directly south of the facility. Both the Bufford and Endicott properties

are used for agricultural purposes and for grazing cattle. Plaintiffs’ expert found elevated

levels of fecal coliform, total organic carbon, and chemical oxygen demand, indicating

the presence of biodegradable organic material. Fecal coliforms exist in both human and

cattle waste.

       Plaintiffs’ expert assumed for purposes of his investigation that the water he

sampled on the Bufford and Endicott property was water from the facility, and he

admitted that he had not actually observed water originating from the facility. Plaintiffs’

expert never entered the facility site. He did not sample water from the interceptor trench

which begins and ends on facility property, and did not sample water from the treatment

lagoon. Plaintiffs’ expert stated that he did not know if the land application system was

in operation at the time he was taking samples from plaintiffs’ property. Plaintiffs’ expert


                                            -5-
did not know the quantity of water that processed through the land application system

when it was turned on, and did not know the groundwater level at the facility site.

       Prior to construction of the facility there was a natural drainage pattern in which

ground and surface water flowing from the current facility site flowed across the

northwest corner of the Endicott property to the northeast corner of the Bufford property.

The current drainage pattern is similar to the pattern that existed prior to construction of

the facility. Surface elevations of the facility and the surrounding area reflect that neither

the elimination of the facility nor the elimination of the interceptor trench would decrease

the amount of groundwater surfacing on plaintiffs’ property.

       Plaintiffs filed suit under the Clean Water Act, claiming that since facility

operations commenced there have been a significant number of non-permitted discharges

from the facility across plaintiffs’ property causing “environmental harm and detriment to

approximately five to ten acres of plaintiffs’ property.” Specifically, plaintiffs claim that

the groundwater interceptor trench is a “point-source” from which the facility is

discharging pollutants. Plaintiffs and defendants filed simultaneous motions for summary

judgment. The district court granted defendants’ motion, concluding that plaintiffs’ had

“failed to establish a material question of fact regarding the origination or discharge of

any pollutants from the Defendants’ treatment facility.”

                                       DISCUSSION

       We review the grant or denial of summary judgment de novo, applying the same


                                             -6-
legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c). Wolf v.

Prudential Insurance Co., 50 F.3d 793, 796 (10th Cir. 1995); Applied Genetics Int’l, Inc.

v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.”

Fed.R.Civ.P. 56(c). “When applying this standard, we examine the factual record and

reasonable inferences therefrom in the light most favorable to the party opposing

summary judgment.” Applied Genetics, 912 F.2d at 1241. If there is no genuine issue of

material fact in dispute, then we next determine if the substantive law was correctly

applied by the district court. Id.

       While the movant bears the burden of showing the absence of a genuine issue of

material fact, the movant need not negate the non-movant’s claim, but need only point to

an absence of evidence to support the non-movant’s claim. Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986). If the movant carries this initial burden, the non-movant may not

rest upon its pleadings, but must set forth specific facts showing a genuine issue for trial

as to those dispositive matters for which it carries the burden of proof. Celotex, 477 U.S.

at 324; Wolf, 50 F.3d at 796. An issue of material fact is genuine if a reasonable jury

could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).


                                             -7-
       The Clean Water Act prohibits the discharge of any pollutant from a point source,

except as provided for in the Act. See 33 U.S.C. § 1311 (“Except as in compliance with

this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the

discharge of any pollutant by any person shall be unlawful.”); 33 U.S.C. § 1362 (12)(A)

(providing that “discharge of a pollutant” means “any addition of any pollutant to

navigable waters from any point source”). Therefore, to establish a violation of the Act,

plaintiffs in this case must put forth factual evidence of a point source discharge of

pollutants by defendants. See, e.g., Michigan v. City of Allen Park, 501 F. Supp. 1007,

1014 (E.D. Mich. 1980).

       Plaintiffs contend that because certain pollutants were detected in water samples

taken from the Endicott property, located south of the facility, as well as samples taken

from the plaintiffs’ property, located southwest of the facility, the facility must be the

source of the pollutants. Our review of the evidence of record leads us to conclude, as did

the district court, that plaintiffs have failed to provide any credible evidence supporting

this theory.

       First, plaintiffs have failed to provide any evidence of a “point source” discharge

from the facility. As the district court noted, plaintiffs failed to supply any affidavits

regarding the flow of water from the facility, the use of the irrigation system, or any

potential leaks or seepage. Although plaintiffs’ expert expresses the opinion that water

from the third cell of the lagoon, which is used to irrigate the field, soaks into the ground


                                             -8-
and runs out of the interceptor trench, he failed to provide any evidence to support this

theory. Plaintiffs’ expert admits he did not enter the facility site. He did not sample

water or soil from the interceptor trench and did not sample water from the treatment

lagoon. In addition, plaintiffs’ expert admits that he did not observe the land application

system in operation, and was unaware of whether the system was in operation when he

visited plaintiffs’ property. Defendants, on the other hand, provided concrete evidence

that the interceptor trench located on facility property is an outlet for naturally occurring

groundwater, not discharge from the lagoon or irrigation system, and that water flows

through the interceptor trench from sources located upstream.

       Moreover, we agree with the district court’s conclusion that even assuming

evidence existed demonstrating that water from the facility either flows onto plaintiffs’

property or somehow infiltrates the property’s groundwater, there is no evidence that this

water is polluted with fecal coliform originating from the facility. Defendants put forth

substantial evidence suggesting that the fecal coliform detected on the Endicott and

Bufford property could not have come from the facility. Fecal coliform are destroyed

rapidly by biological consumption once they leave the intestinal tract and enter the

environment, and the holding time in the lagoon at the facility is longer than the time

needed for any fecal coliform in the water entering the facility to be destroyed.

Additionally, samples of lagoon water revealed that there were no coliform organisms in

cells No. 2 and No. 3. Finally, even if fecal coliform existed in cell No. 3–the water used


                                             -9-
to irrigate the land application field–these organisms would be destroyed by the spraying

process or by other microorganisms in the ground before the fecal coliform could migrate

from the land application field.

       Plaintiffs’ expert limited his testing to water found on the Endicott and Bufford

properties, both of which are used for grazing cattle. Fecal coliforms originate from both

cattle and humans, and plaintiffs’ expert admits 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. Although plaintiffs’ tests

indicated that there were certain pollutants found at some of the test sites, these tests

reveal nothing about the potential source of the pollutants, and therefore do not constitute

evidence of a point source discharge of pollutants.

       In sum, after conducting a thorough review of the evidence, we agree with the

district court’s conclusion that plaintiffs have failed to present any credible evidence

demonstrating a point-source discharge of any pollutant from the facility.3 Absent such


       3
         On appeal, plaintiffs claim that the district court “failed to recognize that it is not
necessary for the [plaintiffs] to prove to a scientific certainty that the [defendants’]
operations are the primary source of pollution” found on their property. Br. of Appellants
at 12. As support for this argument, plaintiffs cite Public Interest Research Group v.
Powell Duffryn Terminals, 913 F.2d 64 (3d Cir. 1990), cert. denied, 498 U.S. 1109
(1991); Student Public Interest Research Group, Inc. v. P.D. Oil & Chemical Storage,
Inc., 627 F. Supp. 1074 (D. N.J. 1986); and Student Public Research Group v. AT&T Bell
Laboratories, 617 F. Supp. 1190, 1202 (D. N.J. 1985).
        Plaintiffs’ reliance on these cases is misplaced as they are readily distinguishable.
First, the language upon which plaintiffs rely concerns standing requirements. Second,
the cases are distinguishable because in each instance there was clear evidence that

                                             - 10 -
evidence, plaintiffs cannot establish the essential elements of their claim under the Clean

Water Act. Summary judgment in favor of defendants is therefore proper.

       The district court’s grant of summary judgment in favor of defendants is

AFFIRMED.

                                          ENTERED FOR THE COURT



                                          David K. Winder
                                          District Court Judge




defendants had discharged pollutants. In each case the defendants had permits to
discharge certain levels of pollutants into waterways, however, reports indicated that the
defendants had exceeded the permitted amounts. Accordingly, the issue in these cases
was not, as in the present matter, whether plaintiffs put forth any evidence of a point
source discharge, but whether the plaintiffs were able to establish a connection between
the excess discharges, that were undisputably produced by defendants, and the specific
injury alleged.
        While it may not be necessary to link a specific discharge to a specific injury in
order to meet standing requirements, to establish a violation of the Clean Water Act it is,
however, necessary to put forth evidence of a point-source discharge of pollutants in the
first instance.

                                           - 11 -
