Federal Court Decides Manure Can Be A Solid Waste

Food and Agriculture Law  

January 29, 2015

Opens The Door For Using RCRA To Go After Dairies and Livestock Operations

A recent ruling out of a federal court in Washington could have far-reaching implications for dairies and livestock operations. In Community Association for Restoration of the Environment (“CARE”) v. Cow Palace, LLC et al., a judge in the United States District Court for the Eastern District of Washington applied the Resource Conservation and Recovery Act (“RCRA”) to a dairy’s management of manure. The Resource Conservation and Recovery Act is a federal regulation intended to govern the management of solid and hazardous waste from initial generation through final disposal. We found no previous cases where RCRA has been applied to the handling of manure at a dairy or livestock operation. And, its application in this case could change the way dairies and livestock operations handle, store, and apply manure.

CARE, and another NGO, the Center for Food Safety, Inc. (collectively, “Plaintiffs”) sued Cow Palace, LLC, the Dolsen Companies and Three D Properties (collectively, “Defendants”), all owners of the Cow Palace Dairy, a large concentrated animal feeding operation. Plaintiffs alleged under RCRA that Defendants’ manure management practices constituted open dumping of solid waste and caused an imminent and substantial endangerment to human health and the environment. To prevail on these allegations, Plaintiffs had to show that the manure at issue was a solid waste rather than a beneficial product.

In Cow Palace, the District Court acknowledged that manure is excluded from the definition of solid waste under RCRA when it is returned to the soil as a fertilizer or soil conditioner. 40 C.F.R. section 257.1(c)(1). When managed in this way, the manure is not a discarded material. However, the District Court found that the Defendants’ did not manage their manure as a beneficial product for the following reasons:

1.     Defendants over-applied manure to their fields so that the manure was no longer operating as a fertilizer. In applying the manure above the agronomic rate, the Defendants also failed to follow their Dairy Nutrient Management Plant (“DNMP”).

2.     Defendants’ manure lagoons, even though constructed in compliance with National Resource Conservation Service guidelines and which allow for permeability, still leaked.  This leakage to the subsurface converted the manure from a beneficial product to a discarded one.

3.     Defendants’ composting of manure on the ground in an unlined composting area allowed the manure to leach into the ground and into shallow groundwater. This converted the manure from a beneficial product to a discarded one.

The District Court also found that the Defendants’ manure management practices contaminated groundwater beyond the dairy with nitrates above the Maximum Contaminant Level. As a result, the District Court found that the Defendants’ disposed of solid waste in a manner that constitutes open dumping, and contributed to the creation of an imminent and substantial endangerment to human health and the environment in violation of RCRA.

The implications of this decision could be far reaching. Initially, environmental groups, relying on this decision, can now bring a RCRA citizen suit against a dairy or livestock operation based upon its manure management practices. While RCRA citizen suits do not permit the plaintiff to recover monetary damages, they do permit a prevailing plaintiff to recover its attorneys’ fees. And, RCRA also requires violators to not only stop polluting, but also to clean up any damage caused, which could be very costly. The Cow Palace decision could affect any large livestock facility that produces more manure than it can responsibly manage, including dairies, poultry, beef and hog farms. These dairy and livestock operations will need to ensure that they manage their manure as a beneficial product, which could be costly, or face the consequences of a RCRA citizen suit. The Cow Palace case goes to trial in March, when the Court will address issues related to the Defendants’ remediation obligations.