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“Fertilizer” manure? Suit against mega-dairies could lead to CAFOs complying with RCRA

“Fertilizer” manure? Suit against mega-dairies could lead to CAFOs complying with RCRA

By Jessica Culpepper, Food Safety & Health Attorney

Earlier this summer, in our series of cases against five mega-dairies in Washington State, U.S. District Judge Thomas Rice denied the defendants’ motions to dismiss. This was an important win. The lawsuit that Public Justice and the Law Offices of Charlie Tebbutt, along with Public Justice Foundation Board Member Brad Moore of Stritmatter Kessler Whelan Coluccio, filed on behalf of the Community Association of Restoration of the Environment (CARE) and the Center for Food Safety is vital not only to protecting the community and the environment in the Yakima Valley, but also to creating new precedent that could expand citizen-groups’ ability to get justice on behalf of polluters.

The case, CARE v. Haak Dairy, will determine whether the five mega-dairies have violated the Resource Conservation and Recovery Act (RCRA), opening the door to a landmark ruling on whether over-applied manure on fields is considered a solid waste or if it is exempt as a “useful product” for fertilizing soil. You see, crops can only absorb so much nutrients from manure when used as fertilizer; if the manure is applied above that amount, what can’t be absorbed runs off or seeps through the soil into the groundwater below.

We argue that animal waste that leaks out of storage lagoons or is land-applied above the level useful for fertilization is being “discarded” within the meaning of RCRA, even though it is co-mingled with manure that is being used productively. RCRA generally exempts manure from regulation when applied as a fertilizer, but courts have yet to fully interpret the waiver and whether it extends to manure applied above the rates it is absorbed.

In the order, Judge Rice agreed with our arguments that manure from the five dairies can be considered a “solid waste” and thus subject to RCRA regulation “after it has ceased to be ‘beneficial’ or ‘useful’ when it is over-applied to the fields and when it has leaked away from lagoons.” Rice writes it is “untenable that the over-application or leaking of manure that was initially intended to be used as fertilizer can never become ‘discarded’ merely because it is ‘unintentionally’ leaked or over-applied.”

If successful, our case could require certain Concentrated Animal Feeding Operations (CAFOs) to comply with RCRA’s waste disposal requirements, including lining and covering the lagoons to meet RCRA’s definition of a “sanitary landfill.” The precedent would lay a foundation for communities to have recourse when CAFOs over-apply “fertilizer” manure, as they so often do, to the point that it creates a pollution problem in the surrounding area.

This is a vital step to regulating an industry that has remained virtually ignored by government regulators and actively protected in this Congress.

A 2012 EPA study of private wells around the dairies found 20 percent of the wells tested had nitrate levels above federal drinking water standards, endangering the 24,000 Yakima Valley residents reliant on well water. The dairies entered into a consent agreement with the EPA in March to remedy the pollution, but like so other many chances the EPA has had to meaningfully regulate this industry, it backed down and failed to protect the communities. Rather than creating a scheme to clean the well water and stop further pollution, the agreement includes such gems as “Farms will consider planting crops with longer root zones, which would absorb more nitrates” (emphasis added). These five farms have been dumping thousands of tons of manure into unlined leaking lagoons and on fields, leaving it to runoff into community wells, and the best the EPA could do was ask the farms “to consider” planting different crops?

Faced with yet another failure by the EPA to regulate, community groups like CARE need a remedy in court that will provide them with meaningful relief. And this case not only could provide such a remedy but also could interpret a piece of law that could empower more communities to seek similar relief.