Dairy Suit Draws Attention

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) — Manure from dairy operations could be deemed solid waste if it is not managed properly, a federal judge has ruled in a Washington state case that has drawn the attention of national agriculture groups.

A federal district court earlier this month issued a first-of-its-kind ruling finding that nitrate levels exceeding federal limits in drinking wells downstream from Washington state dairy operations are enough to trigger a violation of the Resource Conservation and Recovery Act, based on the dairies’ alleged improper management of manure.

Questions remain as to whether the ruling will have a wider effect on how livestock operations manage manure across the country. A handful of agriculture interest groups pointed out in a December amicus brief filed with the U.S. District Court for the Eastern District of Washington, that the dairy and thousands like it across the country already are regulated by the Clean Water Act and the Safe Drinking Water Act.

Additionally, Cow Palace, LLC, in Granger, Wash., already was working with the U.S. Environmental Protection Agency to correct problems related to manure management and drinking water.

The court ruled manure from dairies owned by Cow Palace may be a hazardous waste according to RCRA standards, endangering nearby residents. RCRA gives EPA authority to control hazardous waste from generation through transportation, treatment, storage and disposal. Never before has a court ruled, however, that manure becomes a hazardous waste when it is managed improperly.

The lawsuit was the latest in a series of legal actions taken against the dairies by two Washington, D.C.-based non-profit groups — Community Association for Restoration of the Environment, Inc., and Center for Food Safety, Inc.

Charlie Tebbutt, an attorney representing the plaintiffs in the case, told DTN he believes the court’s ruling sets legal precedent on a number of fronts. An attorney for a national farm group told DTN on background the industry is watching the lawsuit closely, but declined to comment on the record because the evidence in the case remains sealed by the court ahead of a possible trial.

"As for its precedent-setting value, among other things, the court found that lagoons, even if built to NRCS (Natural Resources Conservation Service) guidelines, cause substantial leakage of manure," Tebbutt said. "This decision is the first of its kind in the country that finds that manure from industrial dairies, when mishandled as it is at Cow Palace, is a solid waste that is causing an immediate threat to human health.

"This facility is no different from the thousands of other animal factories across the country that are causing the same harms to the people around them. It is long past time for local, state and federal health protectors to take up the mantle and protect human health over corporate profits."

DTN’s attempts to reach attorneys for the defendants were unsuccessful.

OTHER LAWSUITS

Other lawsuits have unsuccessfully attempted to convince courts to deem mismanaged manure as a solid waste; the courts declined because dairies and other livestock operations already are regulated.

There is concern in the agriculture industry that if a higher court was to at some point side with the Washington court, dairies and other livestock operations across the country could face manure management restrictions that would be unmanageable.

The court in this case issued a scathing indictment of the way lagoons are designed across the country. Lagoons generally are designed to have at least some level of permeability — meaning all lagoons have at least some leakage not necessarily considered to be dangerous to public water supplies. In the case of Cow Palace, the court said in its ruling that the plaintiffs offered evidence of nitrate soil contamination up to 47 feet below ground near lagoons, "evidencing horizontal seepage between the lagoons."

"…Here, 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 court wrote in its opinion.

"The consequence of such permeable storage techniques, thus, converts what would otherwise be a beneficial product (the stored manure) into a solid waste (the discarded, leaching constituents of manure) under RCRA because the manure is knowingly abandoned to the underlying soil. Save for one lagoon, defendants possess limited documentation to evidence that lagoons were actually constructed to meet NRCS standards.

"However, even assuming the lagoons were constructed pursuant to NRCS standards, these standards specifically allow for permeability and, thus, the lagoons are designed to leak."

AG AMICUS BRIEF

An amicus brief filed with the Washington court in December on behalf of the dairy by National Cattlemen’s Beef Association, American Farm Bureau Federation, Washington Cattlemen’s Association and the Washington Cattle Feeders Association, stated that the case should have been dismissed based on an "anti-duplication provision" of the RCRA statute because the Washington dairy already is regulated by other federal statutes.

The Washington court, however, cited a Ninth Circuit of Appeals opinion that there could be circumstances in which a material accumulates in the environment long enough after it serves its intended purposes, meeting RCRA’s definition of solid waste.

The Washington court said the plaintiffs in this case showed Cow Palace had been applying manure in crop fields at rates beyond what could benefit plants — meaning the manure would fit the definition of a solid waste. In addition, the court points to the storage of manure in composting bins as a problem.

"Here, this court finds that the manure in the unlined composting area is both knowingly abandoned and accumulating in dangerous quantities and thus a solid waste," the court said. "…The consequence of such unlined composting surfaces converts what would otherwise be a beneficial product (the composted manure) into a solid waste (the discarded, leaching constituents of manure) under RCRA because the manure is knowingly abandoned to the underlying soil.

"…In conclusion, this court finds no genuine issue of material fact that defendants’ application, storage and management of manure at Cow Palace dairy violated RCRA’s substantial and imminent endangerment and open dumping provisions and that all defendants are responsible parties under RCRA. This court reserves remedial issues, as well as the other remaining issues as discussed above, for trial."

In March 2013, EPA reached an agreement with Cow Palace and several other dairies in the region now operated by Cow Palace, to reduce nitrate levels in groundwater. According to an EPA news release, the dairies agreed to provide alternate drinking water sources for neighbors within a mile radius whose wells were found to have nitrate levels above EPA’s drinking water standard of 10 parts per million.

In addition, the dairies agreed to take steps to control nitrogen sources such as manure and commercial fertilizer used at their facilities, and to conduct soil and groundwater testing at each dairy to determine whether nitrogen sources were being controlled.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow Todd on Twitter @toddneeleyDTN

(AG/CZ)