Waste Management Practices Yield RCRA Compliance Issues


In a very long opinion (111 pages), making rulings on motions for summary judgment and the controverted exclusion of expert witness testimony, the U.S. District Court for the Eastern District of Washington held that the manure management practices of a number of large dairy operations in Washington State generated dangerous amounts of what the District Court determined to be solid waste regulated under the Resource Conservation and Recovery Act (“RCRA”). In doing so, it concluded that the defendants in a RCRA Citizen Suit have violated RCRA’s open dumping and substantial and imminent endangerment prohibitions. The case is Community Association for the Restoration of the Environment, Inc., et al., v. Cow Palace, LLC, et al., and this decision was issued on January 14, 2015. This ruling makes the point that even innocuous, non-hazardous waste management practices can have adverse consequences if the waste is not properly managed and monitored for compliance.

The District Court noted, under the RCRA, “solid waste” includes garbage, refuse and other discarded material including solid, liquid, and gaseous material resulting from agricultural operations. It further noted that “[w]ith regards to manure, both RCRA’s legislative history and EPA’s supporting regulations explicitly state that RCRA’s provisions do not apply to agricultural wastes, but only to the extent the wastes are “returned to the soil as fertilizers or soil conditions.” 40 C.F.R. § 257.1(c)(1) (EPA regulations stating that RCRA provisions ‘do not apply to agricultural wastes, including manure and crop residues, returned to the soil as fertilizers or soil conditions’); see [Safe Air for Everyone v. Meyer, 373 F. 3d 1035, 1045-46 (9th Cir. 2004)] (noting that RCRA’s legislative history explicitly states that ‘[a]gricultural wastes which are returned to the soil as fertilizers or soil conditioners are not considered discarded materials’) (citing H.R. Rep. No. 94-1491(I) at 2 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6240).”

The defendants large herd of dairy cattle generates huge quantities of manure, which is stored in lagoons and used as fertilizer, arguably in accordance with a Washington State Dairy Nutrient Management Plan. According to the District Court , the evidence presented to him convinced the court that these large amounts of manure–the defendant Cow Palace needs to manage at least 100 million gallons of manure every year–have overwhelmed the management systems in place and must be designated as a “solid waste” subject to RCRA. (This may be the first time manure has been so designated). The storage lagoons leak, the fields have been over fertilized, and there is considerable evidence in the record that local soil, surface water and ground water have been contaminated.

The next stage of the trial will focus on what remedies are appropriate.