On January 14, 2015, the U.S. District Court for the Eastern District of Washington granted summary judgment in a case against a dairy farm and declared manure from the farm’s livestock is a solid waste under the Resource Conservation and Recovery Act (RCRA). The first of its kind decision could have far-reaching consequences, as manure that is returned to the soil as a fertilizer is generally exempt from regulation as a solid waste under RCRA. The case could have major implications for concentrated animal feeding operations (CAFOs) as it would subject certain manure applications to regulation as solid waste. The court found that manure is a solid waste under RCRA when it is applied to crops without regard for the crops’ nutritional needs, or when the manure is stored in surface impoundments or in other ways that result in releases of the manure to the environment. These releases, the court found, constitute an imminent and substantial endangerment under RCRA Section 7003. The case, Community Association for Restoration of the Environment, Inc. and Center for Food Safety, Inc. v. Cow Palace, LLC, concerns Cow Palace Dairy’s manure management practices and their effect on human health and the environment. The crux of the plaintiffs’ argument is that Cow Palace’s manure management operations are simply thinly veiled disposal operations. Cow Palace, located in Lower Yakima Valley in Washington, runs a herd of over 11,000 cattle and handles significant amounts of manure generated by the herd. The dairy manages its manure in a variety of ways, including transforming it into compost and selling it, temporarily storing it in several earthen impoundments, and applying it to agricultural fields as fertilizer. In February 2013 the plaintiffs sued Cow Palace, alleging that its manure management practices constitute open dumping of solid waste and cause an imminent and substantial danger to public health and the environment because when the manure is improperly managed and stored, as well as over-applied to agricultural fields, it is discarded and consequently contributes to high levels of nitrates in underground drinking water. In March 2013, the U.S. Environmental Protection Agency (EPA) also exercised its regulatory power under the Safe Drinking Water Act and entered an Administrative Order on Consent with Cow Palace to address the high levels of nitrates found in underground drinking water. The court’s decision centers on three ways that Cow Palace manages the manure from its operations: use as a fertilizer, storage in impoundments, and composting. Regarding the use as fertilizer, the court found that Cow Palace did not apply the manure consistent with agronomic nutrient uptake rates. The decision states that manure “could plausibly be considered “solid waste”––as a legal matter—when it is over-applied to fields and managed and stored in ways that allow it to leak into the soil because at that point, the manure is no longer “useful” or “beneficial” as a fertilizer.” The court determined that the issue of whether manure can be considered a solid waste hinges factually on whether the manure is handled and used in such a manner that its usefulness as a fertilizer is eliminated. The court found “no triable issue that when Defendants excessively over-apply manure to their agricultural fields”, an application that is untethered to established management practices and made without regard to the fertilization needs of their crops. As such, the court ruled that Cow Palace is discarding the manure and thus transforming it to a solid waste under RCRA. Because the excess manure is not “returned to the soil as fertilizers,” it is not exempt from RCRA’s provisions, the court found. The court also took issue with Cow Palace’s storage of manure in surface impoundments. “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 stated. 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. Thus, this manure is discarded and properly characterized as a solid waste under RCRA, the court found. Finally, with respect to composting of the manure, the court ruled that manure in Cow Palace’s unlined composting area “is both knowingly abandoned and accumulating in dangerous quantities and thus a solid waste. As with the lagoons, this Court finds that leaching into the soil is a natural and intended consequence of preparing (on unlined soil) the manure for later use as compost, not while actually using it for its beneficial purpose as a fertilizer.” The consequence of such unlined composting surfaces converts what would otherwise be a beneficial product (the composted manure) into a solid waste, the court stated. Given the resounding implications of this decision, it is almost a certainty that industry groups will appeal the decision and seek to have it reviewed by the U.S. Court of Appeals for the 9th Circuit. If the Appeals Court upholds the ruling, it could force CAFO operators that do not have Clean Water Act permits to seek such permits or to ensure that their surface impoundments meet RCRA regulations.
