A U.S. District Court judge in Washington State determined the Cow Palace Dairy's cow manure is a regulated solid waste under the Resource Conservation Recovery Act. The Court analyzed the case incorrectly.

This decision needs to be overturned because it has enormous consequences for animal and tillage agriculture.

RCRA, according to Congress, was to deal with 3-4 billion tons of discarded materials generated each year for landfills - not agricultural residues being reused.

The defendant, Cow Palace dairy, and the Court, relied heavily on a 9th Circuit Court case, Safe Air for Everyone (SAFE) v. Meyer LLC.

SAFE involved the burning of tons of field straw and stubble off of harvested bluegrass and wheat fields in Idaho, and thousands of pounds of particulate being emitted into the air as smoke. The smoke allegedly caused numerous health problems to heart patients and asthmatic children. (I know this case well because my team and I tried this case in U.S. District Court, and I argued the appellate case in the 9th Circuit and won for the farmers.)

The Cow Palace Court did not rely on the cases, or the reasons cited by the 9th Circuit Court as to what is a solid waste. Neither did defendant Cow Palace.

The SAFE decision determined first what was a solid waste, not whether there was an imminent endangerment or open dumping. The Cow Palace court took the wrong path and concluded there was an imminent health problem first. Then it determined manure was a solid waste as defined by RCRA. Wrong cow path!

Winning roadmap

The SAFE decision is a roadmap to winning for farmers. The District Court spends 79 pages of a 111-page opinion discussing the facts about the excessive amounts of manure being spread and leaking manure lagoons. An RCRA discussion does not occur until page 79 of the opinion, where there is a cursory description of what is a solid waste. The Court incorrectly and immediately starts describing what is an imminent and substantial endangerment, without determining first that dairy manure is a solid waste under RCRA.

On page 83, the Court finally gets to a definition of a solid waste and focuses only on what is "discarded" material. The Court does say that Congress intended to exclude agricultural waste when they are "returned to the soils as fertilizers or conditioners [and] are not considered discarded materials." Then the Court engages in determining if manure is over-applied and there are leaks into the soil from lagoons, thus the manure is no longer a fertilizer and becomes a solid waste. (Soil conditioner discussion is ignored by the Court.)

Both the defendant's court filings and the District Court focus on one term – "discarded material." The Court cites SAFE for the definition of 'discard,' which means, "cast aside; reject; abandon; give up." No reference to EPA definitions or regulations.

The 9th Circuit Court in SAFE v Meyer reviewed other circuit courts' opinions of the definition of solid waste. (The Cow Palace judge and Cow Palace should have done the same.) The SAFE decision reviewed American Mining Congress v. EPA, which said a material is a solid waste if "…truly discarded, disposed of, thrown away, or abandoned." (Note the word "truly"). There must be "intent" to discard!!!

This hardly describes manure when it is applied to land, even when applied as the Court said "excessively". The American Mining Case also says there is no waste disposal problem where wastes are "destined for beneficial reuse or recycling in a continuous process."

Another DC Circuit case, relied on by the SAFE Court, Association of Battery Recyclers v. EPA,involved the mineral processing industry. EPA was told it could not regulate material as a solid waste if the material "…is not abandoned or thrown away." This case is never cited by the Cow Palace Court or the defendant.

The SAFE court then examined whether grass residue composed of straw and stubble being burned was solid waste even though the burning created smoke and air pollution.

The plaintiffs claimed an imminent endangerment from the smoke. Evidence was presented that the growers never had "intent" to discard the grass residue or straw and stubble by burning, which in turn created air pollution. The Court agreed that the reuse of the grass, straw and stubble for burning was a continuing process in producing a crop or enhancing the soil structure. Thus, no solid waste as defined by RCRA, no imminent endangerment under RCRA.

The SAFE court looked carefully at the term "discarded" and the term "abandon". The Cow Palace court only looked at the term "discarded." The SAFE court said that bluegrass straw and stubble is an agricultural remnant and when burned, adds nutrients to the soil. The trial in SAFEfocused on the air pollution resulting from the burning of the residue straw and stubble just as the Cow Palace Court focused almost entirely on the nitrates from manure leaching into ground water. The court pointed out that the burning of bluegrass residue "…is not the evil against which Congress took aim." SAFE declared "Agricultural wastes which are returned to the soil as fertilizers or soil conditioners are not considered discarded materials…"

The Cow Palace Court should have reached the same conclusion based on the SAFE Court decision.

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.