Recently, a federal district court in the Pacific Northwest found that certain waste/byproduct management practices constituted violations of the Resource Conservation and Recovery Act (RCRA). In CARE v Cow Palace LLC, the U.S. District Court for the Eastern District of Washington found that a dairy operation’s manure management practices constituted open dumping of solid waste and contributed to an imminent and substantial endangerment to human health and the environment. Despite the dairy’s approved Nutrient Management Plan (NMP) and the limits included therein, the court based its decision on manure application rates to land that exceeded the approved rates in the NMP, storing manure in leaking lagoons, composting manure with significant liquid content on permeable soils and adverse impacts on drinking water wells from constituents found in manure.

“Hard cases make bad law”

Although RCRA’s legislative history and EPA’s supporting regulations explicitly state that RCRA is not intended to apply to agricultural wastes, the court found that the defendant’s practices that did not comply with the approved NMP constituted management of “discarded material” and the manure could be characterized as “solid waste” under RCRA. The court recognized that manure is widely used as an organic fertilizer but the RCRA exclusion for agricultural wastes only applies to the extent the wastes are returned to the soil as fertilizers or soil conditioners. The significant degree of over-application and manure management practices not complying with the NMP led to the court’s conclusion that, here, manure was not managed as a “fertilizer” but was managed as a “discarded material” and is, therefore, a “solid waste.”

While this case is newsworthy in that RCRA liability was found to lie (which allows for the recovery of attorneys’ fees by private party litigants), this case should really serve more as a cautionary tale of the importance of nutrient management than as a RCRA horror story. Practically speaking, poor resource management practices have long been actionable under some state solid waste statutes and regulations and/or, more widely, under state nuisance law.

Byproduct & Waste Transactions

Interestingly, the court’s 100+ page opinion did note the parties’ very different views on whether giving away a waste/byproduct made such materials less “valuable” (making such practices more a matter of waste disposal than beneficial use of a byproduct). However, in the end, the court’s analysis focused more on the poor resource management practices (over-application, leaky lagoons, and liquid seepage during composting) than on the practice of giving away manure.

There was no mention of the reality that, despite their nutrient and soil conditioning values, many byproducts and waste products will only be utilized as feed, fertilizer, or soil amendments if provided at nominal or no cost to ag producers. This case alone should not alter the calculus in determining whether to continue providing these resources to ag producers or redirecting them to a landfill. However, it should serve as an incentive to re-evaluate resource management practices and to memorialize the value both parties are receiving for such “gift” transactions (or to review the adequacy of this language in any existing agreements), as such agreements may be useful to defend against agency or private party enforcement for alleged violations at the “purchaser’s” property.

What This Means to You

While on your own property, your resources (whether raw materials, byproducts, or wastes) need to be managed as the valuable products they really are to avoid environmental (and human health) impacts, bad press, and cleanup liability. When transferring these resources for nominal or no cost, ensure that the value of “gift” transactions is memorialized (and well explained) in written agreements with your ag producer purchasers.

If you need assistance with nutrient management related matters (including drafting “gift” agreements), please contact Amy Wachs, Coty Hopinks-Baul, or one of our other attorneys within the Food and Ag or Environmental practice groups.