Manure has been determined to be a solid waste under EPA's Resource Conservation Recovery Act. Now, a U.S. District Court in Ohio has determined air pollutants can float through the air and land on the ground and become solid waste. The court said "…the release into the air of a substance in 'particle form' via a stack, which is then deposited onto the ground in particle form, and enters the groundwater, constitutes disposal of solid waste."
Even though this case involved a major U.S. corporation, tillage and animal agriculture should not ignore it. DuPont has made a product which is a household name, Teflon. Teflon is from a family of fluorine-containing chemicals named perfluorinated compounds. This compound in many forms is used in food packaging for pizza boxes, firefighting foams, hardwood floor protectants, and of course Teflon, which is famous for its use in non-stick cookware.
In 1981, according to the Court opinion, DuPont started studying its PFC compound C8. In 1984, DuPont detected C8 in The Little Hocking Ohio Water Association water supply. EPA has determined that C8 is biopersistent and can remain in the environment for hundreds, if not thousands, of years. DuPont, having used C8 since 1951, phased the product out of production completely in June 2013.
DuPont did not contest the fact that it had released C8 via air emissions and through water disposal. DuPont even admitted that the C8 from its Ohio facility was transported by the air from DuPont's stacks and was deposited on Little Hocking's property and surface soils.
DuPont knew that C8 was on Little Hocking's property where there were wells that Little Hocking used to provide potable water to approximately 12,000 people in ten different townships in southeastern Ohio. DuPont's Washington Works facility in West Virginia was approximately "…1300 feet down river…" from Little Hocking's well water field.
Little Hocking owns approximately 45 acres of land where its wells are located, and claims that DuPont's air emissions contaminated its water supply.
What is a solid waste
The Court opinion is 74 pages in length and is a virtual law review article regarding RCRA and what is a solid waste. The case is important for agriculture because many agricultural operations generate air emissions, particularly CAFOs which discharge substances such as ammonia, hydrogen sulfide and volatile organic chemicals and they may seep into the ground. These substances fall on the ground as did C8.
DuPont argued that its air emissions of C8 particulate matter, through an industrial stack, does not constitute "disposal" of solid waste and is not regulated by EPA under RCRA. (There is no discussion as to whether DuPont had any type of state or federal permit to discharge C8.)
Little Hocking said the C8 which was released into the air and then touched down onto the ground constituted a disposal of solid waste under RCRA. It went on to argue that even byproducts of coal combustion even though the plume passed through various cleaning equipment, the flue gas and particulate according to the Court are discarded material. The Court reasoned that flue gas and particulate matter coming from a stack is abandoned once the air pollutant discharge has touched down onto the land and remains.
Little Hocking argued that DuPont's discharge of its C8 particulates into the air fell onto its land and constituted a disposal of solid waste. DuPont argued that its air emissions coming from its stacks were similar to emissions of particulate matter in diesel exhaust from trains and vehicles which are discharged into the air and fall onto the ground and nearby waters.
Precursor for ag arguments
The 9th Circuit Court of Appeals has said that such emissions from diesel engines that fall onto the ground are not "disposal" under RCRA. The Ohio Court decided not to follow the 9th Circuit Court of Appeals. The Ohio Court held that DuPont's emissions of C8 from its factory stacks went into the air, landed on plaintiff's property and contaminated the soil and groundwater. This constitutes a disposal of solid waste under RCRA.
Little Hocking also alleged DuPont created a nuisance, trespass, engaged in conversion of personal property, created an ultra-hazardous activity, and other tortious conduct.
Significantly, the Court ruled that DuPont's air emissions constituted a trespass. This case is a road map for future actions against agricultural activities.
Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.