[This post originally appeared on OFW Law's blog, AgFDABlog.com]
Four Washington State dairies are the targets of environmental activists in lawsuits that could have far-reaching consequences for animal agriculture in the United States. In these cases, the environmentalists assert that the dairies’ manure storage and application practices violate the Resource Conservation and Recovery Act (RCRA), the federal statute that regulates the disposal of solid and hazardous waste. The crux of the environmentalists’ argument is that manure is a "solid waste" under RCRA if it is not strictly used as a fertilizer applied at agronomic nutrient uptake rates.
The plaintiffs, Community Association for the Restoration of the Environment ("CARE") and Center for Food Safety ("CFS"), brought suit against the dairies under RCRA’s "citizen suit" provision. RCRA is generally enforced in the context of sanitary landfills and industrial waste disposal, not agricultural operations. However, the plaintiffs allege that the dairies are violating Section 7002(a) of RCRA by storing, handling, and disposing of manure in a manner that endangers health and the environment. Furthermore, the plaintiffs contend that the dairies’ manure handling activities amount to "open dumping" of solid waste, which violates Section 4005(a) of RCRA.
In additional to seeking recovery of their attorneys’ fees, CARE and CFS are seeking an injunction that would require the dairies to undertake several remedial and preventive actions. Some of these actions include installing synthetic liners in all existing storage lagoons, undertaking an extensive soil and water quality monitoring program, funding independent study to develop a remediation plan, and providing an alternative drinking water source for neighbors within a three-mile radius of the dairies.
Is Manure a Solid Waste?
Manure is generally not considered a "solid waste" for the purposes of RCRA. RCRA defines solid waste as "garbage, refuse . . . and otherdiscarded materials" resulting from commercial and community activities. Manure is not typically discarded, but is instead a useful by-product of animal agriculture. In fact, EPA regulations specifically exempt manure from RCRA if it is "returned to the soil as fertilizers and soil conditioners."
While recognizing the exemption for manure as a fertilizer, the plaintiffs alleged that manure is a solid waste if it is applied at levels beyond agronomic uptake rates or leaks into groundwater. In other words, the plaintiffs’ case rests on the theory that any manure that is not strictly used as a fertilizer is "discarded" and thus, a solid waste. Using this theory, the plaintiffs alleged that the dairies violated RCRA due to excessive application of manure to agricultural fields that resulted in runoff or leaching into the soil. Furthermore, the plaintiffs alleged that millions of gallons of liquid manure leaked out of the dairies’ lagoons and entered groundwater supplies.
This is not the first time a case has been litigated under this theory. In 2006, EPA sought to hold a swine operation liable under RCRA on the basis that manure applied in excess of agronomic uptake rates was a "solid waste" for RCRA purposes. However, EPA and the swine producer entered into a consent decree, which avoided establishing precedent on the matter. In a separate matter, Oklahoma v. Tyson Foods, Inc., the state of Oklahoma applied the same theory to poultry litter. In that case, the court held that manure applied as a useful fertilizer did not transform into solid waste simply because its entire contents were not absorbed by crops as nutrients. 2010 WL 653032 at *10.
Plaintiffs Have Cleared a Hurdle
The dairies sought to have the cases dismissed on the basis that manure intended for use as fertilizer is not transformed into solid waste in the event it is over-applied to fields or leaked from lagoons. However, in a setback to the dairies, the court rejected this argument. The court did acknowledge that Congress did not intend for manure that is applied as fertilizer to be regulated as a solid waste under RCRA. However, the Court held that it was "untenable" that manure could never transform into solid waste through unintentional excess application or leaking from lagoons.
By surviving the motion to dismiss, the plaintiffs cleared a substantial legal hurdle. The case now rests on whether the plaintiffs can demonstrate that the dairies’ manure storage and application activities actually led to manure runoff and leaching as well as leakage into the groundwater. Whether the facts of the case match the plaintiffs’ claims remains to be seen. For instance, USDA’s Natural Resources Conservation Service was highly critical of EPA’s methodology and conclusions in a study of the dairies’ impact on drinking water; the plaintiffs rely, in part, on this study for their own claims.
Parallel EPA Enforcement
These Washington state dairies are also the subjects of EPA enforcement actions under the Safe Drinking Water Act. EPA targeted the dairies because it believed they were the cause of elevated nitrate levels in drinking water in the vicinity of the operations. EPA initially served Notices of Violation to five Yakima Valley dairies. Rather than face enforcement, one dairy decided to cease operations and sell off its herd. The other four entered into onerous consent decrees, which require the dairies to provide alternative drinking water sources for neighbors within a one-mile radius, install multiple monitoring wells on the property, and conduct a comprehensive assessment that identifies ways to reduce or minimize the impact of the dairies on surrounding water quality.
Implications for Agriculture
Activists often seek to bring ordinary agricultural practices under the purview of RCRA. For instance, in Safe Air for Everyone v. Meyer, several of my OFW Law colleagues represented a group of Idaho bluegrass farmers in another RCRA citizen suit brought by activists over the practice of "open burning" fields, which promotes regeneration of bluegrass and maintains yields after seeds are harvested. In Meyer, the Ninth Circuit held that an agricultural "waste," such as grass residue, is not a solid waste under RCRA if the generators of the residue (farmers) reuse it in a continuous system that improves crop yields and is in accordance with established farming practices.
The Washington dairy cases could have major implications for livestock, dairy and poultry operations in the United States. Manure is a valuable by-product and a critical component for ecological and economic sustainability in animal farming operations. Animal agriculture is accustomed to regulation under the Clean Water Act. However, shoehorning livestock, dairy and poultry operations into RCRA, a statute intended to regulate waste storage and sanitary landfills, has the potential to create confusion and possibly duplicative regulations.
I will be following this case and will provide updates as necessary.
John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA. John focuses his practice on agricultural and environmental law. He occasionally tweets at @DCAgLawyer. This column is not a substitute for legal advice.