In efforts to curb pollution from agricultural operations, is RCRA the new Clean Water Act?

Agriculture is a major source of pollution for a number of our nation’s impaired waters, including the Chesapeake Bay.  For that reason, government agencies and environmental organizations have targeted agricultural operations as part of their clean water enforcement initiatives.  However, recent efforts to use the enforcement provisions of the Clean Water Act to address pollution from agricultural operations have been, to put it mildly, a disaster.

Take Alt v. EPA, No. 2:12-CV-42 (N.D. W. Va.).  In that case, EPA issued a compliance order to an operator of a farm in West Virginia for failure to obtain a NPDES permit for discharges of stormwater containing pollutants from manure and fan-blown dust and feathers.  EPA withdrew the compliance order after the operator responded with a lawsuit.  The agency currently finds itself stuck defending a withdrawn compliance order after the court denied its motion to dismiss the lawsuit as moot.

Or consider Waterkeeper Alliance, Inc. v. Hudson, No. WMN-10-487 (D. Md.).  There, the Waterkeeper Alliance and other environmental organizations filed a citizen suit against the operator of a farm in Maryland (as well as a poultry integrator) for discharging, without a NPDES permit, pollutants from chicken litter alleged to have originated from exhaust fans, shoes and equipment (only after it was revealed that a large pile on the farm originally assumed to be chicken litter was actually Class A bio-solids).  After concluding that the Alliance failed to establish at trial that there was a discharge from the poultry operation (appearing to find it far more likely that the pollution detected in a nearby stream was caused by a small cattle operation), the court entered a judgment against the Alliance, which currently finds itself in the uncomfortable position of having to defend against a motion for attorneys fees that the court all but invited the defendants to file.

In light of these cases, those seeking to address pollution from agricultural operations likely have been searching for a more forgiving enforcement tool outside of the Clean Water Act.  Last month, they may have found it.

In Cmty. Ass’n for Restoration of the Env’t, Inc., et al. v. Cow Palace, LLC, No. 13-CV-3016-TOR (E.D. Wash.), environmental organizations filed RCRA citizen suits against a number of dairy operations that manage large volumes of manure by storing it in lagoons and applying it to agricultural fields.  Under the RCRA citizen suit provision, a person may file a lawsuit against another person “who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.”  Here, the plaintiffs alleged that the manure is a solid waste under RCRA causing high levels of nitrates in underground drinking water.

RCRA defines “solid waste” to include “discarded material, including solid, liquid, semisolid or contained gaseous material resulting from . . . agricultural operations . . . .”  The defendants moved to dismiss the complaint on the ground that the manure is not a solid waste because it is used as fertilizer and therefore is not discarded.  In support of their argument, the defendants pointed to RCRA’s legislative history, in which Congress found that “[a]gricultural wastes which are returned to the soil as fertilizers or soil conditioners are not considered discarded materials in the sense of this legislation.”  Defendants maintained that the manure is in no way “transformed into ‘solid waste’ if it is over-applied or leaked as an unintended consequence of its intended use.”

The plaintiffs responded that when manure leaks from lagoons or is applied to agricultural fields at above-agronomic levels, it is discarded because it has been abandoned and no longer serves a useful purpose.  In support of their argument, plaintiffs pointed to a decision in Water Keeper Alliance, Inc. v. Smithfield Foods, Inc., in which the Eastern District of North Carolina found that “no blanket animal waste exception excludes animal waste from the ‘solid waste’ definition” and that the determination “is a functional inquiry focusing on defendants’ use of the animal waste products rather than the agricultural waste definition.”

Last week, the court sided with the plaintiffs.  The court found it “untenable that the over-application or leaking of manure that was initially intended to be used as fertilizer can never become ‘discarded’ merely because it is ‘unintentionally’ leaked or over-applied.”  Because plaintiffs alleged that the defendants “have applied manure in amounts beyond what is necessary to serve as fertilizer,” the court was able to distinguish cases finding that material is not discarded when used for its intended purpose, including the Ecological Rights Foundation v. Pacific Gas & Electric Co. decision that we discussed here (finding that wood preservative that escaped from utility poles through normal use was not discarded and therefore not a solid waste, but expressly not deciding whether and under what circumstances such material “becomes a RCRA ‘solid waste’ when it accumulates in the environment as a natural, expected consequence of the material’s intended use.”)  Concluding that it “would be premature at this stage in the proceedings to dismiss this case without any argument or evidence as to whether the manure was put to its intended use and/or used for beneficial purposes,” the court denied the defendants’ motion to dismiss.

Following this decision and in light of the recent string of bad outcomes in cases brought pursuant to the enforcement provisions of the Clean Water Act, I would expect to see more plaintiffs seeking to address pollution from agricultural operations asserting their claims under the enforcement provisions of RCRA.  Operators of farms would do well to consider this decision in developing and implementing nutrient management plans for their operations.