Court Says Application of Manure To Farmland In Manner Inconsistent With Good Husbandry Agricultural Practices is Subject to Federal Regulation as Solid Waste
Community Association for Restoration of the Environment, Inc., et al. v. Cow Palace, LLC, et al., No. 13-CV-3016-TOR, 2015 U.S. Dist. LEXIS 4514 (E.D. Wash. Jan. 14, 2015)
Update: On May 11, 2015, a settlement was reached in the case. It is reported that under the settlement, the defendant (and similar operations in the Washington's Yakima Valley) will limit manure application, utilize double liners in manure storage lagoons and provide clean drinking water to local residents until existing contamination is eliminated.
The Resource Conservation and Recovery Act (RCRA) of 1976 subjects hazardous material to federal regulation if it is solid waste. In general, RCRA is designed to address the problems related to hazardous waste disposal at local landfills. RCRA establishes a permitting scheme to regulate the disposal of hazardous waste and determine liability. Hazardous waste must be “discarded” to be subject to regulation under the RCRA. Other than farm dump sites and on-farm fuel storage tanks, RCRA doesn’t have a great application to farming and ranching operations. Importantly, fertilizer is not considered “waste” under RCRA. However, in 2013, a federal court refused to grant several dairy operations summary judgment on the claim that RCRA didn’t apply to land application of manure on the basis that the over-application (and allegedly improper application) of manure to fields, and the leakage of manure from lagoons constituted a “discarding” of hazardous waste. Now, the same court has determined that manure is a hazardous solid waste that is “discarded” and, therefore, subject to RCRA where the land application of that manure is inconsistent with sound agricultural practices and is spread on the land without regard to crop fertilization needs or best management practices.
RCRA was amended in 1984 to establish a comprehensive leak detection, prevention and cleanup program for underground storage tanks. The program regulates underground storage tanks containing petroleum products and certain hazardous substances, and is primarily administered at the state level. The act requires registration of most underground tanks, bans the installation of unprotected tanks, establishes federal technical standards for all tanks, coordinates regulatory efforts between the states and the federal government, and provides for federal inspection and enforcement. Exempt from regulation are farm or residential tanks of 1,100 gallons or less which are used for storing motor fuel, tanks used to store heating oil for consumption on the premises, pipeline tanks regulated under federal laws, and storage tanks in an underground area that are above the surface of the floor. A 1986 amendment created a petroleum underground storage tank response program.
The amendments give the federal government authority to respond to petroleum spills and leaks, and provide a leaking underground storage tank fund to clean up leaks from petroleum storage tanks. The trust fund is funded primarily through federal taxes on motor fuels. The 1986 amendments also directed the EPA to establish financial responsibility requirements for underground storage tank owners and operators to cover the costs associated with any corrective action and to compensate third parties for injury and property damage caused by leaking underground storage tanks.
RCRA Application to Farms and Ranches
Dump sites located on farms and ranches may be subject to the permitting requirements of RCRA. While RCRA contains a pesticide exemption for farmers, the scope of the exemption is unclear presently. The original purpose of the pesticide exemption for farmers was to exempt farmers from RCRA liability for disposal of FDA-approved pesticides. It is critical, however, that farmers dispose of pesticides properly for the exemption to apply. The EPA requires farmers to follow disposal instructions provided by the pesticide manufacturer. While this exemption appears to provide protection for most, if not all, farmers, the EPA lists pesticides and herbicides as constituting the predominant waste at nearly one-fifth of all hazardous waste sites on the government's national priorities list. This means that even if a particular farmer avoids liability under RCRA, the farmer still may be liable under CERCLA. In addition, ranchers may not be able to avail themselves of the exemption, and the exemption may not cover fertilizers.
Facts of Cow Palace, LLC
The defendant operated a large concentrated animal feeding operation (CAFO) on its 800 acres with a herd of over 11,000, including over 7,000 milking cows. The herd produced over 100 million gallons of manure annually. Under state (WA) law, the defendant had to maintain a Dairy Nutrient Management Plan (DNMP) which had been approved and updated over the years. Five hundred thirty-three of the defendant’s 800 acres were used for land application of manure. In addition, some manure was given away to third parties, some was sold and some was converted to compost. The defendant used an estimated figure from the DNMP rather than agronomic rates based on soil sampling to determine its land application rates of manure. Also, manure was applied to the defendant’s land without regard to existing residual fertilizer supply, but with regard to the amount the surface crop could uptake. Likewise, the defendant did not calculate the application rates with reference to actual yield goals, again relying on the basic guidelines in the DNMP. The defendant also applied manure to bare ground where no crops were planted. Post-harvest soil sampling showed consistently high nitrate, phosphorous and potassium levels.
The defendant stored the manure in earthen impoundments on nine acres consisting of approximately 30 million gallons of storage. None of the lagoons had a synthetic liner, and it couldn’t be established that the storage lagoons satisfied Natural Resource Conservation Service standards. Importantly, there was no dispute that the CAFO was neither a qualified landfill nor a facility for the disposal of hazardous waste.
The groundwater (used as a source of drinking water) near the defendant’s CAFO was contaminated with high levels of nitrates. The plaintiffs, non-profit environmental organizations, sued claiming that the defendant’s application, storage and management caused the groundwater contamination. Specifically, the plaintiffs claimed that the surface application of “over-applied” manure was a solid waste under RCRA and that conditions at the defendant’s CAFO violated the RCRAs ban on open dumping and constituted an imminent and substantial endangerment.
The plaintiffs moved for summary judgment and the defendant moved to dismiss. So the legal question as to RCRAs application to the problem boiled down to whether the CAFO’s manure, when over-applied to land, stored in lagoons that leaked, and managed on unlined, permeable soil surfaces constituted the “handling, storage, treatment, transportation, or disposal of…solid waste" that contaminated water beyond the solid waste boundary in a manner that imposed a “imminent and substantial endangerment to human health or the environment.” The court rejected the defendant’s claim that manure used as fertilizer can never be a “solid waste” under RCRA. The court held that determination depended on the facts of the particular situation and whether the manure had been discarded or ceased to be “useful or beneficial.” On this point the court noted that the Congress had not categorically excluded all agricultural wastes from RCRA regulation, but only those that are “returned to the soils as fertilizers or soil conditioners” and originate from “agricultural operations.”
Land-applied manure. As for the land-applied manure, the court found the evidence clear – the manure was not returned to the soil as fertilizer, but was merely being discarded without any concern for soil nutrient levels, crop fertilization needs or the DNMP. As such, the land-applied manure was a “solid waste” that had been “discarded” and was subject to RCRA.
Lagoons. While the defendant claimed that its storage lagoons met NRCS specifications concerning construction, maintenance and operation and, thus, could not become subject to RCRA when it is used as fertilizer that then creates environmental problems as a result of its intended use. However, the court held determined that the leaks from the lagoons were not a natural, expected consequence of the manure’s intended use, but rather a consequence of poor designs of the lagoons. The court also found that the defendant had only limited documentation that the construction of the lagoons met NRCS standards. But, the court also noted that the NRCS standards allow for lagoons to be designed that leak. Ultimately, the court held that the leaked manure from the lagoons was “discarded material” that constituted “solid waste” under RCRA.
Composting. The court also determined that the manure that was composted on unlined, native soils where it leached into groundwater was “knowingly abandoned and accumulating in dangerous quantities and thus a solid waste.”
The court concluded that the defendant’s CAFO activity contaminated the groundwater and that its practices transformed the manure from fertilizer to solid waste that was subject to RCRA. The court denied the defendant’s motion to dismiss and granted, in part, the plaintiffs’ motion for summary judgment. The court’s opinion does not stand for the proposition that the land-application of manure or its storage in lagoons or composting of it is always subject to RCRA, as some environmental groups have claimed. But, when a CAFO (whether comprised of dairy cattle, poultry, beef cattle or other livestock) produces manure in such a quantity that it can’t be used as a beneficial agricultural product on the CAFO owner’s agricultural property or sold to third parties as part of the overall operation, it can be transformed into a regulable solid waste under RCRA. The court’s opinion indicates that the use of sound agronomic practices when spreading manure, regard for existing soil nutrient levels, proper construction of storage lagoons and careful composting of manure to prevent leaching into groundwater will not transform manure into solid waste under RCRA.
The court’s decision is likely to be appealed. We will keep you informed of any developments as they occur.
 42 U.S.C. § 6903(27) (2008). Solid waste is defined as “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material...resulting from industrial, commercial, mining, and agricultural operations, and from community activities...”. The regulatory definition (for purposes of the permit requirement) of “solid waste” is narrower than the statutory definition (which applies to citizen suits brought to abate imminent hazards to health or the environment).
 In general, waste must be discarded to be solid waste under RCRA. Accordingly, agricultural open burning practices are likely not a regulable activity under RCRA. See, e.g., Safe Air For Everyone v. Meyer, et al., 373 F.3d 1035 (9th Cir. 2004), cert. denied, 544 U.S. 1018 (2005)(bluegrass residue from open burning not “solid waste” under RCRA); but see, Safe Air for Everyone, et al. v. United States Environmental Protection Agency, 488 F.3d 1088 (9th Cir. 2007) (EPA approval of amendment to state plan that would permit agricultural open burning subject to review based on EPA’s rationale for approving amendment).
 Community Association for Restoration of the Environment, et al. v. Bosma Dairy, et al., No. 13-CV-3019-TOR, 2013 U.S. Dist. LEXIS 87758 (E.D. Wash. Jun. 21, 2013).
 Community Association for Restoration of the Environment, Inc., et al. v. Cow Palace, LLC, et al., No. 13-CV-3016-TOR, 2015 U.S. Dist. LEXIS 4514 (E.D. Wash. Jan. 14, 2015)
 42 U.S.C. § 6991 (2008). The RCRA also has been held to not apply to the regular, intended use of lead shot on a shooting range. See, e.g., Cordiano, et al. v. Metacon Gun Club, Inc., 575 F.3d 199 (2d Cir. 2009)(RCRA inapplicable to regular, intended use of lead shot on shooting range and plaintiff failed to offer sufficient evidence to create material issue of fact as to whether defendant discharged lead shot into “navigable water” from a “point source”; trial court’s award of summary judgment for defendant affirmed).
 40 C.F.R. § 264.1(g)(4).
 Many states also regulate the disposal of solid waste. See, e.g., Littleton v. Whatcom County, 86 P.3d 1253 (Wash. Ct. App. 2004)(agricultural manure used in agricultural operation not “solid waste” under state solid waste management statute; worm farmer utilizing chicken manure in operation not required to obtain solid waste handling permit).
 Community Association for Restoration of the Environment, Inc., et al. v. Cow Palace, LLC, et al., No. 13-CV-3016-TOR, 2015 U.S. Dist. LEXIS 4514 (E.D. Wash. Jan. 14, 2015).
 42 U.S.C. §6903(27).
 The court noted that there was insufficient briefing on the issue of whether the manure from the cows while in confinement pens constituted solid waste.
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