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Monday, February 23, 2015

WA dairy ruling a warning for feedlots

Specter of RCRA applying to livestock manure worrisome

by Kerry Halladay, Editor

Do you operate a feedlot?

If yes, how do you manage your manure? Do you spread it on your fields? How often do you test it for nutrient levels? How often do you test the soil? How do you store your manure? Does your storage allow it to leak? What are the nitrogen levels in your soil below the root zone? What about in the ground water? How do you know? Can you prove it?

These are all questions feedlot operators should be asking themselves. A recent ruling against a quartet of connected dairies—and the potential fallout for all confined cattle operations— serves as a warning shot for coming up short in your answers.

Back in January, U. S. District Court Judge Thomas Rice of the Eastern District of Washington ruled against the Cow Palace Dairy et al. of Washington in a case involving manure, and the definitions of open dumping and solid waste under the Resource Conservation and Recovery Act (RCRA).

At issue was the habit of the Cow Palace Dairy to spread its manure on its crop fields, the permeability of its manure storage lagoons, and its manner of manure composting. Plaintiffs Community Association for Restoration of the Environment (a Washington state non-profit) and Center for Food Safety (a Washington D.C. non-profit) alleged these practices were endangering the local community via groundwater contamination and violating RCRA.

“According to Plaintiffs, [Cow Palace Dairy]’s manure management practices constitute open dumping of solid waste and cause an imminent and substantial danger to public health and the environment because when the manure is improperly managed and stored, as well as over-applied to agricultural fields, it is discarded and consequently contributes to high levels of nitrates in underground drinking water,” summarized the court ruling.

Though the case had numerous points, the most pressing to the agricultural community related to RCRA.

What is RCRA?

RCRA was passed in 1976 and is overseen and enforced by the Environmental Protection Agency (EPA).

“The purpose of RCRA is to govern environmental harm as a result of things being thrown out in the environment,” explained Ted Hadzi-Antich, Senior Staff Attorney with the Pacific Legal Foundation, a group that frequently champions landowner rights issues.

As with many environmental acts, RCRA provides for citizen suits. This is the backdrop to the Cow Palace Dairy suit.

“Plaintiffs contend that [Cow Palace Dairy]’s handling, storage, and disposal of manure has contributed to an imminent and substantial endangerment to human health and the environment and violated RCRA’s ban on ‘open dumping,’” read the ruling.

Hadzi-Antich told WLJ that RCRA is very detailed and in places convoluted. The matters of what constitutes solid waste and open dumping are not exceptions.

“The RCRA definition of solid waste is incredibly complex and intricate. It takes three pages in the Federal Register just for the definition,” he pointed out. “There’s always been an issue of land application [of manure]. If a farmer or anyone else applies stuff that’s generated as waste in some other context onto the land for use as a fertilizer or otherwise, the question is, ‘is that being discarded?’ There’s been a long history of debate on that issue both in and out of court and in legal journals.”

Court ruling

On the question of whether the dairy’s manure constituted solid waste, the court noted that EPA’s regulations and RCRA’s legislative history does not apply to agricultural waste, except “to the extent the wastes are ‘returned to the soil as fertilizers or soil conditions.’” The court found that manure could therefore be considered a solid waste if overapplied to a field. The difference between a waste product and a non-waste product centers on its utility. So the reasoning goes, the overapplied manure is not of use, therefore it is waste.

According to the summary judgment ruling, the defendants claimed to rely on their dairy nutrient management plan (DNMP) in determining application rates of manure to their crop fields. However, the ruling points out that the DNMP says the listed rates are merely a guide “and may need to be adjusted according to the actual test results.” It was further noted to require a number of tests of manure and soil.

Quoted testimony of the defendants in the ruling indicate they did not run all of the required tests on the nutrient content of the manure, the fields before application, nor took into consideration the needs or yield goals of the crops in the fields. Ultimately, the ruling faulted the dairy for relying on the estimates provided in the DNMP rather than seeking out and utilizing actual numbers in its activities.

Speaking of how this related to RCRA, Hadzi-Antich said, “The rules do address the issue that if you throw stuff onto the ground in order to use it, they don’t want you throwing more than you need because that’s tantamount to disposing of it in an easy way. They don’t want you to dispose of it in an easy way. They want you to go through the bells and whistles to dispose of it properly.”

The court additionally found that the lagoons wherein manure was stored prior to use were leaking. This leaking was found to constitute a discarding of solid wastes into the environment under RCRA. Additionally, the composting efforts of the dairy were similarly considered a discarding of solid wastes as it was conducted on “open, native soils” which allowed the manure to leak into the ground.

The evidence cited on the matter of the lagoons contains important details. Of the dairy’s roughly 10 manure lagoons, only one had appropriate documentation proving it was up to Natural Resource Conservation Service (NRCS) standards. Despite that, the ruling noted that “even assuming the lagoons were constructed pursuant to NRCS standards, these standards specifically allow for permeability and, thus, the lagoons are designed to leak.”

“The general learning on that is that even if a material is being stored for future use and it’s not itself discarded, spills from that material are considered solid waste because they’re considered to be discarded.

Even if it’s unintentional, they’re considered thrown away simply by virtue of the fact they’ve spilled,” Hadzi- Antich explained on the matter of leakage.

“As a practical matter the agency has said there’s no difference between intentionally throwing something out and unintentionally spilling something. It still gets out into the environment, so it still should be treated the same way.”

All of these elements—the over-application of manure, the leaking lagoons, and the composting on bare soil— were found to be contributing to the contamination of the soil beneath the dairy. The same conclusion was reached about the groundwater beneath or downstream of the dairy. Soil and water samples supported this conclusion according to the ruling.

This latter detail was contested by the defendants.

According to the ruling, the defendants suggested other sources of nitrogen contamination of the water. However, water taken from downstream wells were noted to have modern dairy drugs, along with very high nitrogen levels, whereas upstream they did not.

The plaintiffs called the summary judgment ruling a “pivotal victory” that would set precedent.

“It is long past due that these dairy factories be held accountable for their toxic waste and compromising of human health,” said George Kimbrell, Senior Attorney for Center for Food Safety in the group’s announcement following the summary judgment. “These dairies’ practices harm drinking water and the environment, and we are gratified that the Court agrees that such pollution is unlawful.”

What does it mean?

One of the biggest concerns regarding rulings of this nature is the potential precedent that could be set. At the moment, however, that potential is low given the nature of the court that made the ruling.

“Since this is a federal district court decision, it doesn’t have any precedential value anywhere else,” explained Karen Budd- Falen of Budd-Falen Law Offices, a frequent name in landowner rights issues. “Courts can look at it and consider it but they’re not required to follow it. So in a different situation it may or may not have an impact on somebody else’s case and that part is almost impossible to guess. Another court could look at the reasoning and say ‘gee, I think that’s a great reason,’ but they are not required to.”

She explained that the potential of precedence starts at the circuit court level. Circuit courts have jurisdiction over the lower district courts. If the defendants decide to appeal the summary ruling, they would be appealing to the Ninth Circuit Court of Appeals.

“If you get a circuit court decision, that means that all the district courts in that circuit have to follow it. In the Ninth Circuit you’ve got Alaska, Washington, Oregon, California, Montana, Idaho, Nevada, Arizona and Hawaii.”

Historically, the Ninth Circuit Court has not been the friendliest to agricultural topics or landowner concerns. This presents some level of additional risk to the prospect of appeal.

“An appeal to the Ninth is always a guess,” commented Budd-Falen. “You don’t get to pick your panel of judges. You just get randomly assigned three judges. So it’s hard to tell who would hear the case. If the Ninth Circuit would overturn that decision then it would have no precedential value and there wouldn’t be any additional requirements or concerns for dairymen or people who have confined animal feeding operations (CAFOs) on their property. If the Ninth Circuit upholds that decision, then there’s lots of issues, but my biggest concern is it opens up landowners and ranchers to additional citizen suits and legal requirements under RCRA.”

Based on the ruling and the evidence to which Judge Rice pointed to in making his ruling, any sort of confined animal feeding operation such as feedlots could have a lot to worry about.

Regarding the application of manure as fertilizer, the evidence cited in the ruling suggests the dairy would have needed to conduct a large number of soil and manure tests, as well as keeping records of the calculations behind their manure application rate to have prevailed. Using the estimated numbers in the DNMP was not sufficient. Similarly, it is telling that the court suggests even following and proving adherence to NRCS standards would not have been sufficient to prevent its ruling.

The ruling suggests a higher level of rigor needs to be undertaken by CAFO operators to prevent RCRA from being applied to them.

“That is a concern,” said Budd-Falen flatly. “If courts start saying that RCRA also applies to CAFOs, that is very concerning and dangerous. Not just for applying the RCRA standards itself, but for the citizen suit provisions. So it just means a lot more litigation. That never turns out well for anybody except for the environmental attorneys who are making attorney fees off the deal.”

She noted that the defendants have two choices—let the ruling stand unopposed or appeal it—but that there “is certainly weight on the side of appeal.” But appealing is not a decision to be made lightly.

“It is really not a call that anybody else, except those people sitting in that poor landowner’s seat, can make.”

Attempts to contact Debora Kristensen, an attorney for Givens Pursley, the law firm that represented the defendants, on the matter of if they intend to appeal were unsuccessful and messages were not returned as of press time. — Kerry Halladay,WLJ Editor

 
 


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