- The Washington Times - Sunday, April 5, 2015

A lawsuit over millions of gallons of manure is raising a stink in the animal agriculture sector, now that a federal judge — for the first time — has ruled farms may be held liable for how they use manure fertilizer under decades-old law on solid waste.

If upheld on appeal, the case could have sweeping ramifications for large-scale dairies across America.

Until now, these operations didn’t think the 1976 law applied to their businesses and the vast quantities of animal waste they produce. Besides, they had a patchwork of other clean-water laws and regulations to worry about.

That changed this year, when U.S. District Judge Thomas O. Rice said Cow Palace Dairy, a large dairy in the Yakima Valley in Washington, used more fertilizer than its land could handle — which he declared amounted to “open dumping.” He ruled that posed an “imminent and substantial danger” to the surrounding community and the water it drinks, and said that meant opponents could sue under the Resource Conservation and Recovery Act of 1976 to try to stop the dairy.

Typically, the law is associated with chemicals waste and manufacturing scrap.

“This is the first case that would define manure as a solid waste,” said Jessica Culpepper, a food safety and health attorney at Public Justice, a public interest law firm that is representing a community association in the case against Cow Palace and four nearby dairies that face similar accusations and will be part of an upcoming trial next month.

Observers say the judge’s decision to invoke the solid waste law, if upheld, could lead to a ripple effect throughout the country.

“The decision is of intense interest to the animal agriculture industry,” the Congressional Research Service said in a memo on the case last week.

In his Jan. 14 order, Judge Rice said the dairy’s excess manure amounted to solid waste that’s being discarded. He also said the dairy used “poorly designed” storage lagoons that leaked liquid manure into the soil, canceling out its use for composting.

The case spotlights the steady shift away from small family farms in the U.S. to larger animal feeding operations. The resulting amounts of manure and air emissions already trigger four environmental laws — the Clean Water Act, Safe Drinking Water Act, Clean Air Act and Superfund Act, congressional researchers noted.

Debora Kristensen, lead attorney for the dairy, said the 1976 solid waste law shouldn’t be added to the list.

“We don’t believe the statute was intended to cover this kind of thing,” Ms. Kristensen said, saying the legislative history suggests Congress carved fertilizer out of the law.

She said Cow Palace had been under the “very watchful eye” of the federal government for two years anyway, after the dairy entered a voluntary consent order with the Environment Protection Agency to address contamination in the region.

Those leaky lagoons, she said, had been made in line with federal standards.

“It’s not like they’re just doing whatever they want,” she said of the dairies.

The judge, though, said the link between the dairy and groundwater contamination was hard to ignore.

“Its entire herd produces over 100 million gallons of manure per year, with millions of those gallons leaking from its lagoons and compost area, and being applied to fields that cannot possibly use the substance as fertilizer,” he wrote. “Given these numbers, any attempt to diminish the Dairy’s contribution to the nitrate contamination is disingenuous, at best.”

Ms. Culpepper said the case should offer a helping hand to others who want to protect their natural resources.

“I really hope,” she said, “that this helps rural communities get clean water.”

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