Cow Palace Dairy Case
A recent U.S. District Court ruling in the Eastern District of Washington has raised significant issues for agricultural producers and others to monitor. On January 14, 2015, the district court in Community Association for the Restoration of the Environment, Inc. (CARE) v. Cow Palace, LLC ruled that under certain circumstances, livestock manure can be regulated as a solid waste under the federal solid and hazardous waste statutes. This decision would set a new precedent if it is upheld.
Cow Palace operates a large dairy in the Lower Yakima Valley of Washington. Numerous other dairies operate in the same area, and have for some time. The operation is regulated by the State of Washington through an approved nutrient management plan. Nitrate levels in surrounding groundwater are elevated, which has drawn the attention of the United States Environmental Protection Agency (EPA) and the citizen group, CARE. Contaminants in the groundwater also include traces of pharmaceuticals used in the dairy industry.
In 2013, EPA issued Orders to Cow Palace and other area dairies requiring measures to reduce nitrate levels beyond the requirements of state nutrient management plans. However, CARE was not satisfied with the actions of state and federal agencies and initiated a citizen suit under the federal Resource Conservation and Recovery Act (RCRA), alleging that the manner in which Cow Palace handles its manure constitutes disposal of solid waste under RCRA. Historically, RCRA has not been used to regulate agricultural waste because of an exclusion for "wastes that are returned to the soil as fertilizer or soil conditioners."
The district court sided with CARE in early rulings, indicating that if manure application to crops is not followed precisely at agronomic rates, the manure is no longer a fertilizer or soil conditioner and becomes a solid waste that has been disposed of improperly. The court went on to rule that because the area’s groundwater is contaminated, the disposal of manure (as a solid waste) is creating a "substantial and imminent endangerment to the health or the environment," which enables a citizen suit to be filed. These were preliminary decisions in the Cow Palace case, which will now proceed to trial for determination of the appropriate remedies. The court will ultimately rule on any cleanup requirements and penalties at the trial, which is scheduled to start in May 2015. The RCRA cleanup process is very onerous and is guided by a Federal act under the oversight of EPA. This would be a departure from the more common practice of a state overseeing compliance with nutrient management plans and handling any groundwater concerns at the state level.
The court was heavily influenced by testimony that showed some practices of Cow Palace varying from, or not documenting its adherence to, the state nutrient management plan regarding crop nutrient needs. The court was also critical of the operation for its lack of historic records showing precisely how the waste lagoons were constructed and maintained. As such, the court assumed that millions of gallons of manure leaked from the structures into the groundwater. Other areas of concern for the court were unlined and uncompacted bare ground areas used for compost beds at the dairy. Each of these types of operational features is more typically handled by the state under its livestock permitting program.
It will be important to monitor the progress of this case. The Cow Palace facility had two elements that made the RCRA case possible: the inability to show that it was properly handling its manure, and the existence of groundwater contamination that related back to the operation of the dairy. Therefore, takeaway lessons from this decision include the importance of livestock producers to follow and document nutrient management plans as precisely as possible and to demonstrate agronomic application of manure. Facilities with lagoons or constructed basins should retain all construction design and maintenance records to be able to demonstrate structural integrity and performance. Agriculture, or any industry or municipality, which returns part of its waste stream to the soil as "fertilizer or soil conditioner" should pay attention to the Cow Palace case. For further information, or if you wish to discuss how this case may impact your operations, please contact us.
by Michael J. Linder