Updated: Jul 9, 2020
This post is not intended to be legal advice.
Recently a Federal district court in Washington state found that manure from a dairy farm could be considered “solid waste” under the Resource Conservation and Recovery Act (RCRA). You are probably asking yourself, “Paul, why do I care what some court in Washington state did?” Well the answer is simple: RCRA is a Federal act and could potentially impact decisions interpreting RCRA as it applies to agriculture in other states. RCRA was enacted in 1976 and governs the disposal of solid and hazardous waste. The Act is concerned with ensuring that solid and hazardous waste is disposed of in environmentally sound methods, among other things.
The Cow Palace Dairy, located in Washington, has a herd of roughly 11,000 and generated roughly 100 million gallons of manure and waste water combined. In 2010, the Environmental Protection Agency (EPA) became aware of high nitrate levels in the region’s drinking water and began to investigate by collecting samples. EPA determined that a cluster of dairies (including the Cow Palace) was potentially the source of nitrates. Cow Palace entered into an agreement to provide safe alternative water sources for those in the area using groundwater polluted with nitrates, agreeing to take actions to control potential nitrogen sources, establish monitoring wells, and use nutrient management to reduce nitrogen from being introduced into groundwater used for drinking.
The Cow Palace Dairy did have a nutrient management plan as required by the state. This plan included guidance on how best to apply manure in a beneficial way for crops and reduce environmental harm. When it came to applying manure to the land, the dairy calculated agronomic rates in the nutrient management plan and not off nutrient sampling. When the dairy tested manure to determine nutrient concentrations, the dairy only tested 1 of 11 lagoons and used those results for all lagoons – even though testing showed the lagoons varied in concentration. The dairy failed to take into account nutrients already in the soil when applying new nutrients. Application rates were not calculated on yield goals but on an average of previous yields. Nutrients were applied to bare ground where no crops were planted. The lagoons were shown to have no liners and incomplete building records, and soil testing showed the lagoons were leaking millions of gallons of manure each year. Manure was also composted on the farm on unlined soil and this manure potentially leached into the soil.
Now let’s look at RCRA and what needed to be established:
The dairy managed or disposed of a solid waste, in this case manure;
The solid waste contaminated an underground drinking water source; and
Beyond the solid waste boundary (did the waste escape beyond the area it was being held in).
The court here looked at definitions in RCRA to determine if manure was a solid waste. The court found manure to fall under the solid waste definition for a discarded material or one that has been abandoned or cast aside. RCRA did not apply to agricultural waste used as a fertilizer or soil conditioners but here the court found manure used in this case was not a fertilizer because it was applied without regard to the nutrient management plan, manures stored in leaking lagoons was also considered to be a solid waste, as was the composting manure because it was leaking into the groundwater.
Looking at point 2, the court easily agreed that there was enough evidence to demonstrate that the manure was polluting an underground drinking water source. This was done through evidence of high nitrate levels in the groundwater. Contamination was beyond the outermost perimeter of where the manure was stored because the groundwater running under the dairy flowed away from the farm.
Because of all that, the Federal district court agreed with the plaintiffs in this case that the dairy was violating RCRA with open dumping of a solid waste. I need to point out that this case potentially would have come out differently if the dairy could have pointed to properly nutrient testing, applying nutrients to match yield goals, soil testing to take into account residual nutrients, and lined lagoons and composting areas. Demonstrating even a few of these may have changed the courts outcome.
Now on to why this is important to Maryland producers. Like Washington, we have large animal feeding operations (although our dairies are not nearly on the size of the Cow Palace) which produce large amounts of solid waste each year. This case highlights the importance of producers taking proactive steps to manage their manure to ensure it is applied at agronomic rates or stored within legal limits to prevent leakage.
Potentially liability does exist beyond the normal environmental laws we hear about daily. This case would have potentially come out differently if the dairy operators could have pointed to the fact that they had applied manure at agronomic rates, had lined lagoons, and had composting areas. If that had happened, the court may have not found manure there to be a solid waste.