01.22.2015

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Updates

Community Ass’n for Restoration of the Envt. v. Cow Palace, The Dolsen Companies, and Three D, Case No. 13-3016 (E.D. Wash.)

On January 14, 2015, Judge Thomas O. Rice of the Eastern District of Washington ruled that the Resource Conservation and Recovery Act could apply to manure used, stored and managed at a dairy in the Yakima Valley, holding that the dairy “discarded” manure so as to make it a solid waste under the statute.  Granting in part the environmental citizen group plaintiffs’ motion for summary judgment, the court further found that the dairy’s discarding of manure (and conversion of that manure’s constituents to nitrate) means that Cow Palace is contributing, or has contributed, to the handling, storage and treatment of solid waste that may cause an imminent and substantial endangerment to human health or the environment, and that the dairy’s discarding of manure contaminated an underground drinking water source so as to violate RCRA’s ban on open dumping.  This ruling, the first in which a federal district court has applied RCRA to the handling of dairy manure, comes on the heels of hotly contested litigation and may have profound impacts to the dairy industry in Washington and beyond.

Background and Overview

As a backdrop, this case is one of four RCRA citizen suits brought by several environmental citizen groups against four family-owned dairies in Washington’s Yakima Valley.  The plaintiffs asserted that the dairies’ manure-handling practices were responsible for nitrate contamination in the surface and groundwater downgradient from the dairies, which in turn was causing exceedances of nitrate levels in drinking water sources.

Before the plaintiffs brought suit, the dairies had already been the main focus of an EPA report issued in September 2012 relating to potential sources of nitrate contamination in the Yakima Valley.  Although the dairies disputed many of the findings in the EPA report, they entered into a 2013 Administrative Order on Consent with the EPA under the Safe Drinking Water Act.  Under the AOC, the dairies committed to thoroughly investigate (and address, if necessary) the effect of various specified manure handling practices may have had on the groundwater in the Valley.  Among other things, the dairies agreed in the AOC to sample and monitor the fields on which the dairies applied manure to grow crops like corn and triticale, and adjust their application practices if necessary, and to test lagoons in which the dairies temporarily stored manure, and then, if necessary, to line the lagoons under an agreed-upon schedule.

Even though the dairies entered into the AOC, the environmental groups sued the dairies under RCRA.  One of the dairies entered into an early settlement with the plaintiffs; the other three cases were consolidated for purposes of discovery but not trial.  The first to reach the summary judgment stage was the case against the Cow Palace dairy.

To decide whether the manure at issue was solid waste, Judge Rice recognized EPA’s rules that explicitly state that RCRA will not apply to agricultural waste.  40 C.F.R. § 257(c)(1).  However, the court also relied on the U.S. Court of Appeals for the Ninth Circuit’s recent decision in Ecological Rights Foundation v. Pacific Gas & Elec. Co., 713 F.3d 502 (9th Cir. 2013), to find that RCRA would apply to manure (as a solid waste) if management and storage of the manure was conducted in a manner such that the it was no longer wanted (i.e., that it was no longer “useful” or “beneficial” as fertilizer and therefore being discarded).  The court then held there were no genuine disputes of material fact that: (1) the dairy’s “over-application” of manure to its fields in amounts higher than necessary for effective use as fertilizer by the crops on those fields meant the dairy was discarding the manure; (2) the dairy’s use of unlined earthen lagoons to store manure meant that it was discarding the manure in the lagoons because the lagoons leaked into the underlying soil, and in fact were designed to so leak; and (3) the dairy’s placement of manure on unlined native soils to allow it to compost without actually using the composted material for fertilizer also meant that it was discarding the manure.

Once the court held that manure was discarded—and thus a RCRA “solid waste”—it then found that groundwater sampling at and near the dairy, as well as other evidence, showed that the dairy’s manure handling caused groundwater contamination when the discarded manure’s constituents converted to nitrate that entered the soil (and then groundwater) beneath the root zone of the crops on the fields and the leaking lagoons and compost areas.  The court then ruled that the excess nitrate entering groundwater as a result of the dairy’s manure handling practices “may” be contributing to an imminent and substantial endangerment to the public, based on nitrate detections in drinking water downgradient from the dairy.  Judge Rice further held that the dairy’s manure handling practices constituted open dumping because nitrate contamination from handling of manure in the dairy’s fields, lagoons and compost areas was extending beyond the “solid waste boundary”; that is, it was extending beyond the outermost perimeter of where the dairy was “discarding” the manure.

The court left only two issues for trial: whether surface water was being contaminated by Cow Palace’s operations and the relief to which the plaintiffs are entitled as a result of proving Cow Palace’s RCRA liability.

Potential Implications

The implications of this opinion are yet to be fully determined, in part because it is not a final judgment.  Indeed, on January 20, 2015, the dairy filed a motion for certification for an interlocutory appeal.  Judge Rice has yet to decide on the relief he will award plaintiffs above and beyond the work required under the AOC.  However, the opinion has the potential to affect the handling of manure at all dairies, as well as the use and application of manure as fertilizer on any parcel of land.

The key takeaway for those handling and storing manure is to consider the possibility of RCRA’s application.  If nitrate from converted manure is getting below the root zone of crops due to over-application, or is leaking from unlined lagoons or other storage areas, this opinion would mean that such manure constitutes a RCRA solid waste.  RCRA citizen suits, including potential fee-shifting awards, and possible EPA enforcement under its RCRA authority could then follow.

© 2015 Perkins Coie LLP