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Excess Land Application of Dairy Manure Constitutes Open Dumping As Solid Waste

Thomas P. McElligott, David A. Strifling
Association of Corporate Counsel - Lexology

Last month, a federal district court held a Washington dairy liable under the Resource Conservation and Recovery Act ("RCRA") because the court determined that the CAFO land applied manure at high rates without regard to actual crop fertilization needs, presumably in an effort to discard excess supply. Land application of agricultural wastes as fertilizer is relatively commonplace and is specifically excluded from RCRA's reach when done for that purpose. However, the court found that the CAFO over-applied manure on its fields to the extent that the application could not be classified as a fertilizer; instead, it constituted open dumping of a solid waste and caused an imminent and substantial endangerment to human health or the environment. The defendant, Cow Palace LLC, is a concentrated animal feeding operation ("CAFO") that generates on the order of 100 million gallons of manure each year and land applies much of that manure as fertilizer over 533 acres of its property.

The outcome of the case hinged on whether the CAFO handled the manure in a manner that eliminated its usefulness as a fertilizer. Applying that standard, the court ultimately found that the CAFO's application constituted open dumping of a solid waste rather than beneficial application of a fertilizer for three reasons. First, the CAFO failed to use a manure nutrient analysis or consider average crop yields when setting application rates. Second, the CAFO failed to account for residual manure already present in the soil. Third, based on post-harvest sampling, the CAFO applied nutrients far in excess of what the crops could or did use. Based on these facts, the court determined that the land applications were not tethered to best management practices spelled out in the CAFO's Dairy Nutrient Management Plan and were done without regard to actual crop fertilization needs. Instead, the court found, the CAFO simply intended to discard excess supply. Further, the court found no question that the CAFO's land application operations contributed to high nitrate levels in the groundwater because the highly mobile nitrates would continue to migrate through the vadose zone to the underlying aquifer.

Wisconsin operations could come under a similar microscope. The Washington case is significant because it demonstrates a federal court's willingness to determine that land application is "open dumping" if not properly calibrated to the soil's ability to accept and process the nutrients. Last fall, six environmental groups petitioned EPA to take emergency action in Kewaunee County, Wisconsin, and made very similar allegations about landspreading operations there. Specifically, the groups alleged that elevated levels of nitrates and bacteria in groundwater constituted an imminent and substantial endangerment to the health of local residents. The petition pinned the primary blame for the situation on land application operations, which it alleged to "far exceed" the carrying capacity of the land for nitrogen bearing wastes, especially animal manure, resulting in a net annual nitrogen loss to the environment of well over a million pounds. Even more recently, a Wisconsin administrative law judge blamed "massive regulatory failure" for the groundwater contamination in Kewaunee County and required one CAFO to install groundwater monitoring wells on fields where manure is being spread. The judge called the condition of the Kewaunee County groundwater "a crisis" and agreed that the evidence suggested that landspreading operations are contributing to the pollution.

The federal case is Community Ass'n for Restoration of the Environment, Inc. and Center for Food Safety, Inc. v. Cow Palace, LLC, E.D. Wash. Case No. 13-CV-3016-TOR.

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