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On January 14, 2015, a federal judge ruled for the first time that manure, managed in a manner that the court considered to be improper, is a solid waste under the Resource Conservation and Recovery Act (RCRA).  The defendant dairy in this particular order, Cow Palace, is one of the largest dairies in the Yakima Valley in southern Washington.  The federal judge found that Cow Palace’s application, storage, and management of manure polluted groundwater and threatened drinking water quality and public health.  The issue was determined on summary judgment, and now remedial issues and other remaining issues will be addressed at trial.  Assuming that a final judgment is entered after trial, this case may set precedent for dairies nationwide.

Background

The plaintiffs in CARE v. Cow Palace, LLC are two non-profit corporations, Community Association for Restoration of the Environment (CARE) and Center for Food Safety.  Defendant Cow Palace manages a herd of over 11,000 head of cattle.

The plaintiffs brought suit against three interconnected entities, including Cow Palace, in 2013.  Groundwater near the dairy was contaminated with high concentrations of nitrate that exceeded the maximum contaminant level (MCL) for drinking water established by the U.S. Environmental Protection Agency (EPA) in many locations.  Central to the case was whether Cow Palace’s manure management practices contributed to those concentrations.  Cow Palace managed its manure by applying it to surrounding agricultural land as fertilizer, storing it in lagoons, and composting on unlined soil.

Liability Under RCRA

RCRA governs the treatment, storage, and disposal of solid and hazardous waste to minimize threats to human health and the environment.  Like the Clean Water Act, RCRA is a federal law that provides for citizens suits.  Gaining standing under RCRA’s citizen suit provision, the Plaintiffs alleged that the methods that Cow Palace used to handle, store, and dispose of its manure “contributed to an imminent and substantial endangerment to human health and the environment and violated RCRA’s ban on ‘open dumping.’ ”

An “open dump” under RCRA is a place where solid waste is disposed of, other than a landfill or a hazardous waste disposal facility.  Applying RCRA to the facts at issue, the court required plaintiffs to show that solid waste disposed of at Cow Palace contaminated drinking water beyond the solid waste boundary.

To establish liability under the “imminent and substantial endangerment” provision of RCRA, plaintiffs were required to demonstrate that Cow Palace was or is contributing to the management of solid or hazardous waste that presents an imminent and substantial endangerment to human health or the environment.

To determine the endangerment and open dumping issues, the court analyzed these questions:  whether the manure, as managed by Cow Palace, constituted solid waste; whether the manure contaminates groundwater or surface water beyond the solid waste boundary to constitute open dumping; and whether the contamination causes or contributes to an imminent and substantial endangerment to human health and the environment.

The Court’s Findings

The court held that Cow Palace’s manure constituted solid waste under RCRA when managed under Cow Palace’s land application, lagoon storage, and composting practices.  The court held that excessively over-applying manure to land transforms manure into solid waste under RCRA.

According to the court, the manure stored in lagoons constituted solid waste because the lagoons leaked regularly, allowing the manure to accumulate in the surrounding environment.  The court did not seem to base this finding off of any particular amount that leaked from lagoons.  Evidence that the lagoons leaked and that the manure accumulated in the surrounding environment was enough.

The court also found that manure constituted solid waste when Cow Palace composted it by leaving it on unlined soil.  This practice allowed the nutrients to leach out of the manure, rendering it useless as a beneficial product while allowing the manure to accumulate in the surrounding environment without mitigation by denitrification or crop uptake.

As to contamination, the court found that the plaintiffs presented evidence sufficient to demonstrate that Cow Palace contributed to high nitrate levels in the groundwater.  Additionally, the court agreed with plaintiffs that the soils underneath Cow Palace were not conducive to denitrification, which could have decreased nitrate levels.  Plaintiffs were not required to quantify Cow Palace’s contribution under RCRA – they only had to show that Cow Palace contributed to the disposal of solid waste that may pose a serious threat to public health.  Accordingly, the court found that Cow Palace’s manure management contributed to the contamination of groundwater.

Additionally, the court found that contamination extended beyond the solid waste boundary because the nitrate contamination went past the outermost perimeter of where Cow Palace discarded its manure.

Ultimately, the court held that Cow Palace’s manure management constituted imminent and substantial endangerment to human health and the environment.

Conclusion

The court found that Cow Palace’s manure was solid waste and that its application, storage, and management, as practiced at Cow Palace, constituted open dumping and caused an imminent and substantial endangerment under RCRA.

Once a final judgment is entered in this case, it is likely that it will be appealed to the Ninth Circuit Court of Appeals.  Thus, this and subsequent determinations in this case may set precedent for dairies nationwide.

For further information regarding this decision, please contact Lauren Bernadett by email at lbernadett@somachlaw.com.

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