A Federal District Court recently ruled on summary judgment motions that the manure management practices of a large dairy operation violated the Resource Conservation and Recovery Act (RCRA). In the case of Community Association for Restoration of the Environment, Inc. et al v Cow Palace LLC et al, No. 13-CV-3016, the U.S. District Court for the Eastern District of Washington found that the dairy’s practices, which ignored appropriate criteria for management of manure as fertilizer, constituted open dumping of a solid waste. The Court further ruled that the dairy’s actions presented an imminent and substantial endangerment to human health and the environment due to the contribution to elevated nitrate levels in nearby groundwater and drinking water.
THE DAIRY’S OPERATIONS
Cow Palace Dairy (the Dairy) is a large concentrated animal feeding operation (CAFO) located in the Yakima Valley of Washington state. According to the facts presented in the case, the Dairy houses over 11,000 cows mainly in open lot containment pens. The Dairy is estimated to produce over 100 million gallons of manure-contaminated liquids annually, consisting of approximately 60% manure-contaminated animal wash water and 40% liquid manure. The majority of this liquid is stored in open, unlined pits, and applied to some 530 acres of the Dairy’s agricultural land for use as fertilizer for growing crops. A small amount of manure is converted to dry fertilizer and sold. In addition, the farm is subject to an estimated 4.4 million gallons of annual storm water runoff.
Washington State Department of Agriculture regulations require the Dairy to maintain and follow a Dairy Nutrient Management Plan (DNMP) to prevent the contamination of surface waters and aquifers from the storage and land spreading of manure. The DNMP compels the plan holder, among other requirements, to:
- test nutrient residuals, liquid in storage pools, and dry manure before land application;
- test its soils for residual nutrients as close as possible to the time of seeding;
- consider average crop yields when determining manure application;
- apply manure based on proper timing;
- maintain a record for each field with the above data; and
- avoid applying manure to bare ground.
RCRA regulates the management of solid waste and hazardous waste to minimize the threat to human health and the environment. When properly managed under the DNMP and used as a fertilizer, manure has not been regulated as a solid waste under this federal law.
To determine whether the Dairy was liable under RCRA, the Court examined several questions. First, did the Dairy’s manure fit the definition of a regulated solid waste? Second, did the Dairy’s management practices constitute open dumping? Finally, did the contamination that occurred cause or contribute to an imminent and substantial endangerment to health and the environment? In finding the Dairy liable under RCRA, the Court answered all three of these questions affirmatively.
MANURE, AS MANAGED BY THE DAIRY, CONSTITUTED SOLID WASTE
The Court ruled that the manure was handled in such a manner that it was not useful as fertilizer. Specifically, the Court found that the Dairy discarded manure by applying it to fields “without regard to crop fertilization needs, and abandoned the manure when storing it in lagoons that leak,” as well as managing and composting it on bare ground. These practices resulted in large amounts of nitrate seeping into the groundwater.
The Court’s ruling was based, in part, on evidence demonstrating that the Dairy failed in many regards to adhere to the DNMP requirements, including:
- using “estimated figures” instead of calculating actual nitrogen concentration rates based on actual data, which varied widely;
- sporadically taking samples from the main lagoon;
- not considering residual manure when calculating application rates;
- not employing yield goals to calculate application rates;
- not tracking or producing annual reports of irrigation water applied; and
- applying manure to bare ground on numerous occasions.
Because the Court found that the manure was not being properly treated, stored, and disposed of and it no longer had any beneficial use as a fertilizer, the Court ruled that the manure was a solid waste regulated under RCRA.
DAIRY’S MANURE MANAGEMENT PRACTICES CONSTITUTE OPEN DUMPING UNDER RCRA
After deciding that the Dairy’s manure was a regulated solid waste, the Court turned to the next question, whether the Dairy’s management practices constituted open dumping in violation of RCRA. For several reasons, the Court found that the Dairy’s management of manure resulted in open dumping.
First, with regards to land application, the Court found that the Dairy applied manure inconsistently with its DNMP and without regard to crop fertilization scheduling. Thus, the otherwise beneficial purpose of the manure was defeated by over-application, and the land application constituted open disposal of manure. Second, with regards to the lagoons, manure was consistently leaking into the environment as a consequence of the unlined, open- pit storage design. Discarding material in this manner constituted a violation of RCRA. Third, regarding composting, manure was stored in unlined composting areas. Again, this practice allowed the nutrients to leach into the environment uncontrolled, thus resulting in open dumping.
CONTAMINATION RESULTING FROM THE DAIRY’S MANURE MANAGEMENT PRACTICES POSES AN IMMINENT AND SUBSTANTIAL ENDANGERMENT
The Court then considered whether the uncontested groundwater contamination was causing or contributing to an imminent and substantial endangerment to human health and the environment. Based on evidence presented by the plaintiffs, the Court found it reasonable to conclude that groundwater recharge was occurring relatively quickly, thus drawing the nitrate into groundwater, and, further, that the Dairy’s operations were contributing to the high levels of nitrate.1 Despite defendants’ arguments to the contrary, the Court also found that soils underneath the Dairy were not conducive to denitrification, a condition that could have decreased nitrate levels.
The Court emphasized that substantial endangerment does not require proof of actual harm, such as actual illness; the risk of potential harm is sufficient to satisfy the statutory standard. The maximum contaminant level (MCL) for nitrate is set by the Environmental Protection Agency (EPA) because serious health risks, such as cancer, autoimmune system dysfunction, and reproductive problems, could occur when water is consumed at or above the MCL. In this case, 66 out of 115 residential wells in a one mile radius of the Dairy exceeded the MCL. Thus, having linked the Dairy’s operations to the groundwater contamination, the Court held that the contamination from the Dairy’s manure management practices constituted an imminent and substantial endangerment to health and the environment. With the last question answered, the Court held that the Dairy’s manure management practices violated RCRA.
RULING COULD HAVE A NATION-WIDE EFFECT ON OTHER LARGE LIVESTOCK FACILITIES THAT MISMANAGE ANIMAL WASTES
This is the first occasion, of which we are aware, that animal waste has been classified as a solid waste under RCRA. It is important to note that the decision was fact specific as the Court’s determination rested in large part on the Dairy’s failure to follow manure management practices required under Washington regulations and the farm’s DNMP. Thus, if a farm is using proper nutrient management practices, a court may find that the manure remains a beneficial fertilizer rather than a regulated solid waste and thus would not trigger RCRA.
It is also worth noting that in 2013 EPA entered into an Administrative Order on Consent (AOC) with the Dairy and other dairy farms in the Yakima Valley under the Clean Water Act (CWA). These operations had been pinpointed as sources of the nitrate contamination in the area. Such enforcement actions by EPA and state regulatory agencies may preclude citizen suits. In this case, for example, the 2013 AOC precluded the filing of a citizen suit under the CWA, but not under RCRA. Thus, the use of the “imminent and substantial endangerment” provision of RCRA, will likely open the door to potential new claims which would otherwise have been precluded by the existence of an AOC.
An appeal of this matter to the Ninth Circuit Court of Appeals is likely. Should this decision be upheld on appeal, it foretells likely claims against other large CAFOs on which animal waste is not being properly managed as a fertilizer.