In June 2013, the Eastern District of Washington federal court denied a motion to dismiss filed by a group of dairy farmers who were sued by the Community Association for Restoration of the Environment, Inc. (“CARE”) in four separate cases.1 CARE brought this lawsuit under the citizen suit provisions of the Resource Conservation and Recovery Act (“RCRA”), alleging that manure generated by dairy farmers constitutes a “solid waste,” as defined by RCRA, when it is not used strictly as a fertilizer. The court found that whether the dairy cow manure was “solid waste” under RCRA was a question of fact unsuitable to be decided prematurely.

The overriding issue is the manner in which the dairy farmers dispose of manure, such as “applying it to agricultural fields as fertilizer, and storing liquid manure in lagoons until it is applied to agricultural fields.” CARE alleges that when the manure is applied to agricultural fields at above-agronomic levels and stored in lagoons it leaks into and contaminates underground water sources. CARE claims a violation under RCRA, stating that the handling of manure caused an “imminent and substantial endangerment” to public health and constituted illegal open dumping.

The dairy farmers’ central argument is that manure is not subject to RCRA regulation because it is a useful product. Because it is used as a fertilizer, it cannot be “discarded material” within the boundaries of RCRA’s “solid waste” definition. Additionally, classifying manure as a “solid waste” means that all dairies across the nation must be treated as sanitary landfills, which would be an undesired result. On the other hand, CARE argues that manure is “solid waste” when it is over-applied to fields because it is the same thing as “discarding waste.” Additionally, RCRA’s definition of disposal also includes leaking, which places the storage tanks containing the manure within this definition.

RCRA defines “solid waste” as “discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from ... agricultural operations. ...” While RCRA does not define “discarded material,” the Ninth Circuit Court of Appeals has defined it as “to cast aside; reject; abandon; give up.” The dairy farmers argue that manure is a “useful byproduct” and note that RCRA’s legislative history, along with state and federal regulations, indicates that manure should not be treated as a solid waste.

The Eastern District of Washington Court acknowledges the dairy farmers’ argument but was uncomfortable with making a blanket statement to the effect that manure can never be solid waste once it has ceased to be “beneficial” or “useful.” The dairy farmers do over-apply the manure to the fields, and it often leaks away from the lagoons. Over-application of fertilizer is not automatically protected merely because the dairy farmers did not intend to over-apply it. The court distinguished cases relied upon by the dairy farmers, saying the distinguishing feature was “whether a certain material was discarded in the course of its ordinary use in amounts necessary to serve its intended purpose.” The dairy farmers applied more manure than was strictly necessary for fertilization; thus, they cannot rely upon cases in which the defendants applied only the amount of product necessary.

The court further states that there is no blanket exception that excludes animal waste from the “solid waste” definition. The appropriate issue to analyze is how dairy farmers use the animal waste products, rather than to look at the agricultural waste definition. The court refuses to dismiss the case prematurely before even reviewing evidence on the issue of intended use for a beneficial purpose. The court stressed that the only way to decide these issues is to develop a factual record about what the dairies actually do with the manure.

Although this case has passed only a motion to dismiss, it already has strong implications. If CARE is successful, farmers nationwide will be required to implement RCRA’s stringent requirements for the use, storage and disposal of manure. Additionally, all farms using animal waste products in their operations will fall under RCRA’s definition of sanitary landfills, which will have severe impacts on the farmers, agricultural production and consumers. RCRA violations can involve large fines and expensive cleanup actions if solid waste is not stored and/or disposed of properly. Therefore, it is important for dairy farmers, as well as any business in the agriculture industry, to fully understand all of the regulations that could potentially apply to their operations.

For more information regarding RCRA’s requirements, contact Melissa Gardner or any of Taft’s environmental attorneys.2