Novel Court Ruling Subjects Manure To RCRA Regulation As Solid Waste Posted: January 15, 2015 A federal district judge is backing environmentalists’ claims that a Washington state dairys lax manure management practices violated the Resource Conservation & Recovery Acts (RCRA) solid waste requirements, a first-time ruling that opens the door to regulating livestock facilities that are often exempted from environmental rules. In a Jan. 14 order, Judge Thomas Rice of the U.S. District Court for the Eastern District of Washington grants summary judgment for environmentalists on most of their claims against the dairy, finding that manure is a “solid waste” under RCRA when it is applied to crops without regard for the plants actual nutritional needs or stored in leaky or otherwise defective lagoons, and the resulting contamination of groundwater constitutes “imminent and substantial endangerment.” Rices ruling, in Community Association for Restoration of the Environment (CARE) v. Cow Palace, LLC, holds the dairy liable under RCRA even though Congress largely exempts manure from regulation and the facility agreed to address drinking water concerns through a separate consent order with EPA. “This Court finds there is no triable issue that when Defendants excessively over-apply manure to their agricultural fields -- application that is untethered to [the drinking water agreement] and made without regard to the fertilization needs of their crops -- they are discarding the manure and thus transforming it to a solid waste under RCRA,” the order says. Similarly, he says, when operators allow storage lagoons to leak, “the manure leaking from Defendants’ lagoons is not a natural, expected consequence of the manure’s use or intended use but rather a consequence of the poorly designed temporary storage features of the lagoons. The consequence of such permeable storage techniques, thus, converts what would otherwise be a beneficial product (the stored manure) into a solid waste.” Rice goes on to hold that since the manure is a RCRA solid waste, contamination of nearby groundwater sources “present[s] an imminent and substantial endangerment to public health,” the standard for corrective action under the waste law. The Cow Palace suit is one of five cases CARE and the Center for Food Safety (CFS) have mounted against Washington state dairies over nitrate contamination in groundwater that the groups say is due to poor management of animal waste at the facilities. While the cases involve similar legal issues and are all being considered by Rice, they are proceeding at different paces and the substantive ruling only applies to Cow Palace as yet. But according to a Jan. 15 article in Washingtons Yakima Herald, industry attorneys are already planning to appeal the decision, even though a trial is still pending to determine the extent of contamination caused by the dairy and what the remedy should be. Legal Precedent If Rices decision survives review by the U.S. Court of Appeals for the 9th Circuit, the precedent created by a ruling for CARE could require concentrated animal feeding operations (CAFOs) not covered by Clean Water Act (CWA) discharge permits to either seek permit coverage or upgrade their manure storage facilities to comply with RCRA’s waste disposal requirements, including lining and covering the lagoons to meet the act’s definition of a “sanitary landfill.” Both RCRA and the Superfund law generally exempt manure from regulation when applied as a fertilizer, but courts had never broadly ruled on how to interpret the waiver and whether it extends to pre-application waste storage. In his ruling, Rice holds that manure application is only exempt from waste laws when it is “returned to the soil as fertilizers,” and that over-application of manure to the point where it no longer adds usable nutrients, as well as storing the waste in defective lagoons, is “not useful or beneficial but rather constitute[s] discard.” A separate Jan. 14 order also denies requests from the American Farm Bureau Federation, National Cattlemens Beef Association and state industry groups to file amicus briefs in the case, because “Prospective amici’s brief offers no additional legal or other substantive information or perspective that has not already been represented to, or previously decided by, the Court in this litigation or that is particularly helpful to this Court’s pending determination.” Environmentalists and EPA have long sought to strengthen regulation of CAFOs and their handling of manure, but federal courts have rebuffed or sidestepped those efforts. EPA in a 2010 rule required CAFOs to seek CWA permits if they “proposed to discharge” to jurisdictional waters, but the 5th Circuit in 2011 ruled in National Pork Producers Council v. EPA that the agency could only require permits for actual discharges, not proposed or probable discharges. The agency attempted to craft implementing guidance for the 5th Circuit ruling. But last year, EPA withdrew its long-pending draft guidance after more than a year of White House review. Former Oklahoma Attorney General Drew Edmondson (D) pushed for five years for federal courts to subject CAFOs in neighboring Arkansas to RCRA rules, with many of his arguments hinging on whether “manure” is subject to waste law requirements. But he ultimately failed in his suit, Oklahoma v. Tyson Foods, et al., when the district court ruled in 2010 that land-applied animal waste is not “solid waste” under RCRA because it is not “discarded material,” but instead used constructively as fertilizer or bedding, among other purposes. The court said that even waste that is not land-applied as fertilizer but is being stored for future land application is exempted from the waiver. As a result, Rices finding that manure can be considered a solid waste subject to RCRA requirements seems to bolster environmentalists’ efforts because it subjects CAFOs to citizen suits under RCRA and Superfund. However, CAFO operators could defend against such suits by seeking CWA permits that courts have held provide a “shield” from private enforcement actions under RCRA and other laws. Scott Yager Environmental Counsel National Cattlemen’s Beef Association 1301 Pennsylvania Ave, NW Suite 300 Washington, DC 20004-1701 (202) 879-9102
Posted on: Fri, 16 Jan 2015 19:10:17 +0000
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