Ms. Deb Kristensen - When Animal Manure is Regulated like Municipal Dumps – Imposing RCRA Liability on Agricultural Operations
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When Animal Manure is Regulated like Municipal Dumps – Imposing RCRA Liability on Agricultural Operations - Ms. Deb Kristensen, Partner at Givens Pursley, LLP, from the 2015 NIAA Annual Conference titled 'Water and the Future of Animal Agriculture', March 23 - March 26, 2015, Indianapolis, IN, USA. More presentations at http://www.trufflemedia.com/agmedia/conference/2015_niaa_water_future_animal_ag
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Ms. Deb Kristensen - When Animal Manure is Regulated like Municipal Dumps – Imposing RCRA Liability on Agricultural Operations
- 1. www.givenspursley.com When Animal Manure is Regulated Like Municipal Dumps – Imposing RCRA Liability on Agricultural Operations Debora K. Kristensen, Esq. Givens Pursley, LLP 601 W. Bannock Street Boise, ID 83702 Tel: (208) 388-1200 dkk@givenspursley.com
- 2. www.givenspursley.com Overview • Background – Yakima Valley • EPA Consent Order – History – Dairies at issue • What is RCRA? – Legislative history • Yakima lawsuits • Judge Rice’s SJ decision • What can be done to minimize risk of RCRA lawsuit?
- 4. www.givenspursley.com Long history of agriculture
- 7. www.givenspursley.com EPA Consent Order • History – 2008 articles in Yakima Herald – 2009 EPA designated YV as “Environmental Justice Showcase Community” (rec’d $$$) – EPA used money to conduct study of nitrates in YV; issued report in March 2013 pointing finger at dairies – During study period, EPA negotiated with 5 dairies under threat of SDWA enforcement action
- 8. www.givenspursley.com • Yakima dairies targeted by EPA: – Cow Palace, LLC – Henry Bosma Dairy – Liberty Dairy, LLC – George & Margaret, LLC, George DeRuyter & Son Dairy, LLC and D & A Dairy, LLC – Haak Dairy (smaller, physically separate from other dairies) • All dairies already subject to DNMP requirements and regular inspections by WSDA • 4 of 5 dairies entered to Consent Order (not Haak Dairy) – March 2013 • EPA’s Consent Order predicated on emergency provisions of Safe Drinking Water Act
- 10. www.givenspursley.com • Consent Order – Requirements – Provide alternative drinking water source to all users 1 mile downgradient with nitrates above safe drinking water standard of 10 mg/L (“MCL”). – Install extensive series of groundwater monitoring wells. – Conduct quarterly groundwater and soil testing. – Assess all lagoons for compliance with NRCS Standard 313; if not compliant, must line lagoons at rate of one per year. – Implement detailed Irrigation Water Management Plan and Field Application Plan (including installing soil moisture sensors) regarding crop applications. – Follow specific procedures, as dictated by professional agronomist, so as to achieve no greater than 45 ppm of nitrates at the two foot level in soil. – Implement series of other actions around farm to minimize risk of nitrate escapement. – 8 year timeline; can be expanded if goals not achieved.
- 11. www.givenspursley.com What is RCRA? Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C.§ 6901, et seq. is a comprehensive environmental statute intended to address nation’s industrial wastes. RCRA regulates the disposal of two types of waste: (1) Hazardous waste (e.g., hazardous chemicals from industrial processes) (2) Solid waste (e.g., municipal land fills) “Solid waste” defined as “any garbage, refuse . . . and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations.” “Discarded material” not defined by RCRA; courts have held that a substance is “discarded” where it is “disposed of, thrown away or abandoned.”
- 12. www.givenspursley.com Legislative history of RCRA • When enacted in 1976, legislative history made clear that agricultural wastes that are “returned to the soil as fertilizers or soil conditioners” are not considered “discarded” under RCRA. • For almost 40 years, EPA never brought a RCRA action against an agricultural operation alleging that its manure constitutes a “solid waste” under RCRA. • Recent attempts by environmental groups to expand RCRA application to manure failed at motion to dismiss stage (e.g., Tyson Foods).
- 13. www.givenspursley.com Yakima Lawsuits • Environmental groups filed NOI against five dairies in October 2012 (as EPA study being finalized). • February 2013, filed five separate (but identical) RCRA “citizen suit” actions in the E.D. Washington (all assigned to new district court Judge Thomas Rice). – Alleged that the manner in which the dairies use, handle and store manure (under state approved NMP) violates RCRA’s bar against “open dumping” and poses an “imminent and substantial” endangerment to health and the environment
- 14. www.givenspursley.com Specific allegations: • Liquid manure stored in NRCS compliant lagoons “leak” and, therefore, constitute a “discard” under RCRA. • Dairies “over-apply” manure to crops such that residual nitrates exist in soil after harvest. This “over- application” amounts to a “discard” under RCRA.
- 15. www.givenspursley.com Litigation • Defendants brought Motion to Dismiss - denied – Duplicative & Inconsistent with EPA Consent Order – Animal manure not a “solid waste” under RCRA when used as fertilizer • Haak case settled early • Extensive discovery: – Ongoing data generated under Consent Order – Plaintiffs onsite soil and water testing – Rule 34 – Deposed state/local agency personnel • Bosma/Liberty cases consolidated • Plaintiffs added third parties that were current or former landowners of land used by dairies to grow copes.
- 16. www.givenspursley.com Judge Rice’s Summary Judgment Decision in Cow Palace • First court in country to find that animal manure is a “solid waste” under RCRA • Specific holdings: – manure “over-applied” to crops is “discarded” under RCRA. – manure which escapes from NRCS compliant lagoons is a “discard” under RCRA (such lagoons are “designed to leak”). – manure composted on native, unlined soil constitutes “discard” under RCRA. – third party landowners liable. • Issue of fact for trial – Manure in cow pens = discard under RCRA? – Surface water impacts – Remediation efforts RESULT: consolidated trial set for May 11, 2015
- 17. www.givenspursley.com What can be done to minimize and/or avoid RCRA liability?
- 18. www.givenspursley.com Questions? Debora K. Kristensen, Esq. Givens Pursley, LLP 601 W. Bannock Street Boise, ID 83702 (208) 388-1200 dkk@givenspursley.com
Editor's Notes
- Yakima on eastern side of Cascades, unlike Western Washington receives very little rainfall (average less than 8 inches per year). Irrigation from Yakima and Naches rivers and canal districts.
- Washington is #1 producer of apples, cherries and pears in USA, and Yakima County is #1 producer of apples. Tree fruit farming large part of economy. Rapidly expanding beer and wine region (and tourism) other crops, like sugar beets, mint, etc. 70-80% of land in valley used for agriculture. Most on irrigation, formerly flood irrigation – methods changed in the last 30 years to use water more efficiently.
- Cattle were first ranched in valley in 1850s, grown over years and includes dairy farms now. Dairies started expanding operations in late 1970s. Regulated under state Dairy Nutrient Management Plans and NRCS standards.
- Green is 2001-2010; yellow is 1990-2000
- My clients were originally named in five separate lawsuits: 1) Cow Palace; 2) Liberty Dairy; 3) Bosma Dairy; 4) George DeRuyter Dairy; and 5) Haak Dairy. Haak dairy located off this map – much smaller, couldn’t afford to enter into Consent Order with EPA, settled soon after being sued by CARE. Out of business. Remaining four were consolidated to three (Liberty/Bosma) and currently have three pending lawsuits in ED.WA.
- NRCS standard 313 require permeability of 1 x 10-6 cm/sec (with manure seal recognized as providing up to 1 x 10 minus 7). Plaintiffs allege that this is NOT impermeable and anything that “leaks” cannot be used as fertilizer, therefore, is discarded. Alleged millions of gallons (without real data and in contradiction of our experts). All crop applications made under state approved Dairy Nutrient Management Plans, and subject to annual inspections. As of March 2013, all activities on dairies governed by EPA approved protocols and plans.
- January 14, 2015 – issued Memorandum Decision and Order.
- (1) No guarantees – new area of liability expected to be used throughout country; (2) reliance on state inspections/following NMPs not enough; (3) reliance on NRCS standards not enough; (4) compliance with EPA Consent Order not enough; (5) know the requirements of your NMP; paperwork matters, ensure follow through; (6) hire professional agronomist; (7) know your area – what is aquifer like? Soil conditions? Nitrates or phosphorus levels in GW?; (8) employing cutting edge environmental practices may not be enough – soil moisture sensors, irrigation flow controls, significant soil sampling, composting, digesters, centrifuges; (8) NPDES permit not a shield to RCRA liability;