A U.S. District Court case in California filed in 2007 and ending in 2011 was recently brought to my attention to show another court has determined that manure was not a solid waste to be regulated under the Resource Conservation and Recovery Act (RCRA).

The case, Coldani v Hamm, involved the Hamm family’s operation of a ranch and 1,000-cow dairy. The original complaint claimed the dairy was violating the Clean Water Act (CWA) and RCRA because the dairy manure from the Hamms’ Lima Ranch polluted groundwater with excess nitrates under Coldani’s adjacent property, which was ultimately discharged into the San Joaquin River Delta System.

The Court found the CWA claims to have merit, but eventually they were voluntarily dismissed. The reason for dismissal is curious because the complaint assumed the groundwater contaminated by the dairy flowed west. Following discovery, the plaintiff changed its tune and claimed the groundwater flowed east. The Court was not amused by this finding, and subsequently the plaintiff moved to voluntarily dismiss the CWA claim with prejudice which meant the case could not be filed again alleging CWA violations.

The RCRA claim was a different matter and its language is important for all CAFOs applying manure and that manure being incorporated into the ground and nitrates from the manure possibly migrating into groundwater.

The U.S. District Court judge relied on a case my team and I tried and won in the 9^th Circuit - SAFE Air for Everyone v Meyer.  The U.S. Court of Appeals for the 9^th Circuit ruled in the SAFE case that “RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste. Congress’ overriding concern in enacting RCRA was to establish the framework for a national system to ensure the safe management of hazardous waste.” The SAFE court concluded agricultural residue such as manure is not a solid waste under RCRA. The judge in Coldani concluded the allegation that animal waste is a solid waste is insufficient as a legal claim under RCRA. The Court reviewed the definition of solid waste that is defined under RCRA to determine if manure was similar to garbage, refuge, sludge, other discarded material, solid or dissolved materials in irrigation return flows, or “industrial discharges which are point sources subject to CWA permits.”

Interestingly, the Court turned Coldani’s argument around and said that because the Lima Ranch dairy operation is a CAFO and is discharging allegedly into navigable waters it is therefore subject to a CWA NPDES permit. The U.S. District Court judge concludes, “…that because animal waste [manure] discharged by Lima Ranch constitutes industrial discharge from a point source subject to NPDES permits under the CWA, it is excluded from the definition of solid waste under…RCRA.”

For this dairy possibly being subject to the CWA, the Court wrote it would not exercise jurisdiction to avoid duplicative regulation under the CWA. The Court also concluded that if it regulated wastewater discharges which could be subject to point source control under the CWA, it “…would subject the [manure] discharges to duplicative regulation under both the CWA and RCRA.”

Finally the Court explained “…that the purpose of the industrial point source discharge exclusion is to avoid duplicative regulation of point source discharges under RCRA and CWA because, without such provision, the discharge of wastewater into navigable waters would be ‘disposal’ of solid waste, and potentially subject to regulation under both the CWA and RCRA.” 

The Court concluded with an interesting observation that RCRA was not to be used to create a regulatory hole to, in essence, regulate solid waste being discharged in water. This Court figured out how to interpret environmental statutes.

The opinions of Gary Baise are not necessarily those of Farm Futures or Penton Agriculture.