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Blockbuster Defeat For Agriculture

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On Jan. 14, 2015, a U.S. District Court judge ruled that dairy manure is a “solid waste,” like garbage, under EPA’s Resource Conservation Recovery Act. The judge said conditions existed at the Washington State Cow Palace dairy which may cause or contribute to eminent and substantial endangerment to citizens drinking water and that the storage of dairy manure in lagoons constituted “open dumping” under RCRA.

RCRA does not allow solid waste management practices for disposal of solid waste which will constitute open dumping. It defines an open dump as any facility or site where solid waste is disposed of which is not a sanitary landfill.

The Court asked “Whether Defendants’ Manure Can be Characterized as a ‘Solid Waste’ Under RCRA.” The definition of solid waste includes “any garbage, refuse…and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from…agricultural operations…”

The Court focused on the term “discarded material.” The Court relied on ordinary meaning of discarded material and defined it as “to cast aside; reject; abandon; give up.” (Most producers probably never think of fertilizer or manure if over applied as abandoned or discarded.)

The Court reviewed whether dairy manure could be considered a solid waste under RCRA when it is “over-applied” to fields and managed and stored in ways which allow it to leak into soil and add nitrates to the groundwater. The Court said that manure that is over-applied or leaks is no longer useful or beneficial as a fertilizer and is discarded as a solid waste.
The Court recognized that RCRA clearly exempts agricultural manures when they are returned to the soil as fertilizers or soil conditioners. (Two court cases say manure or agricultural residues are not solid wastes or discarded.)

The Court concluded that Cow Palace defendants “…excessively over-applied manure to their agricultural fields…” The Court further said “…they [Cow Palace and others] are discarding the manure under RCRA. Because the excess manure is not ‘returned to the soil as fertilizers” it is not exempt from RCRA’s provisions. (Apparently the Court does not understand soil structure or soil texture and its buildup.)

As to the Cow Palace’s lagoons, the Court said manure leaking from a lagoon 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 concluded because the manure is knowingly being abandoned to the underlying soil, it is being “discarded”. The Court found that manure leaking from the lagoon and accumulating in the soil did lead to indisputable evidence that will lead to dangerous accumulations of nitrates in the soil and these nitrates will eventually reach drinking water aquifers.

A 111-page opinion by a U.S. District Court judge includes factual background and what the experts on both sides of the issue had to say. The plaintiffs tried to discredit, with some success, and disallow Cow Palace’s experts’ opinions’. They failed.

The lawsuit followed earlier actions taken by the U.S. Environmental Protection Agency which resulted in an Administrative Consent Order against the dairy. The study conducted by EPA on groundwater contamination was determined previously by NRCS to be deeply flawed; however, it was accepted by the court into the record. (No one from NRCS was apparently called to do an affidavit to help the dairy.)

Two environmental nonprofit corporations brought this case. Community Association for the Restoration of the Environment claims to serve as an advocate to protect and restore economic, social and environmental resources in the Northwest.

The second plaintiff, Center for Food Safety, is a nonprofit in Washington, D.C., and claims it is protecting the environment and human health “…from harmful food production technologies, including the negative impacts of industrial agricultural technologies.”

It is curious that the Washington State Department of Health did not act if there is manure contaminating groundwater or why EPA did not bring an action against the dairy. Both allegedly protect public health and eliminate imminent endangerments. Two non-profits brought this action and their experts apparently were better than the dairy’s experts.
One dairy has gone out of business due to this case.

This is a blockbuster decision for animal and tillage agriculture. USDA and state departments of agriculture better figure out quickly how to help producers and the courts with the facts or we will see more operations go out of business!

(This article first ran in Farm Futures on January 14, 2015)

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