Five dairies recently settled a case that is raising serious concerns for agriculture across the country. The settlement followed a January 2015 ruling from a federal court in Washington, which found that nutrients leaching from manure, compost, and feed were a solid waste that could be regulated under the federal Resource Conservation and Recovery Act (RCRA)–a statute that regulates nonhazardous industrial solid waste and municipal solid waste, and prohibits the open dumping of solid waste. At least one federal court had previously held to the contrary.

In fact, the Environmental Protection Agency’s (EPA) regulations specifically exempt manure from RCRA , if it is “returned to the soil as fertilizers and soil conditioners.” The Washington decision would change the course of regulation for dairies, feedlots, and other confined animal feeding operations (also referred to as CAFOs).

Livestock producers are not unfamiliar with laws requiring regulation of manure from confined animals. The federal Clean Water Act and state statutes require CAFOs to manage manure and prevent the discharge of pollution to surface water. Producers are issued CAFO permits that include terms and conditions, including animal waste management plans, to prevent pollutant discharges and manage manure. Dairies that hold these permits have long been under the impression they are shielded from litigation. That is no longer the case.

The five dairies involved in the Washington case are located in the lower Yakima Valley of Central Washington. The dairies managed their manure by several accepted methods, including storage of the manure in a lined lagoon and applying manure as crop fertilizer. However, the Washington court found that land-applied manure, if applied at too high of a rate, becomes a pollutant and, at that point, a hazardous waste requiring special treatment. The court also found that percolating water and leachate from leaky lagoons may transport contaminants, and nitrates in particular, to groundwater.

Before the case was filed, the EPA and the five dairies had entered into a consent order to address the nitrates found in the groundwater in the area where the dairies are located. The dairies agreed to (1) provide alternative drinking water to local residents, (2) control potential sources of nitrogen, (3) install and monitor wells, and (4) manage nutrients at their facilities.

The settlement reached last month includes many of the same terms. However, it also requires the dairies to double-line their manure storage lagoons—making the linings equivalent to landfill lining standards. Compost and feed storage areas also must be lined. The settlement further requires the dairies to reduce land application of manure to limit nitrates to 25 ppm in the top two feet of the soil—a level well below agronomic rates being utilized for animal waste management plans in Washington and Oregon.

The five dairies’ settlement sets new standards for CAFO operations, and does so outside the context of the regulatory process. It also provides a new avenue for litigation against agriculture livestock producers, and does so regardless of whether they hold a CAFO permit for their facility. Even operators with Natural Resources Conservation Service-compliant lagoons and a waste management plan that meets industry standards may be at risk.

There are lessons to be learned, and applied, while the implications of this case and settlement continue to unfold. Ensuring compliance with a nutrient management plan, documenting that applications are within agronomic rates, ensuring lagoons are in good repair, and lining feed and compost areas are a few steps that may provide good defenses to litigation that may be just ahead for other livestock producers in the Pacific Northwest.

Schwabe, Williamson & Wyatt’s Ag attorneys understand the multitude of legal, commercial, and regulatory issues and unique concerns that arise from growing, processing, and distributing food and fiber. We have years of experience and long-standing relationships farms and ranches in the Pacific Northwest. Click here for more information.

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