4/16/15
Manure Case Law & the Importance of Nutrient Management Planning

A federal court in Yakima, WA ruled in January that a dairy farm is liable for over-application of nutrients that impacted groundwater quality with nitrate pollution.  This new case law puts a heightened emphasis on formal nutrient management plans - and carefully following them.  Most biosolids are applied in accordance with such plans.

The lawsuit (CARE et al. v. Cow Palace Dairy et al.) was brought under the federal Resource Conservation and Recovery Act (RCRA) by neighbors to the dairy, with help from Public Justice and a local environmental group, CARE.  RCRA stipulates that manures are not solid waste if they are beneficially used.  The judge found that, at the Cow Palace Dairy, excess manure applied to land and released from lagoons was not beneficially used and, thus, when released, "violated RCRA's ban on 'open dumping.'"  (Read the court decision.)

If the ruling stands, it will apply to thousands of farms across the U.S. that have to manage manure (and other nutrient sources). "Farms can be held liable for pollution from manure," explained a Reuters headline (other coverage: New York Times, Huffington Post, Yakima Herald, legal discussion: TMDWLaw, and background info: Hoard's).  Already, the defendant farm has agreed to install liners in its manure storage lagoons.  Three other dairy farms in the area were sued as well and will likely be following suit.

This case illustrates the stark contrast between the stricter regulations for biosolids land application and manure management.  By federal regulation (40 CFR Part 503), biosolids must be applied at the agronomic rate, supplying only as much nutrient (usually based on nitrogen) as the crop requires.  In many states, bulk biosolids used on farms must be applied in accordance with a nutrient management plan, and field storage is carefully controlled.  In contrast, when it comes to manures and fertilizers, nutrient management in many states has been just a recommendation, although, over the past decade, USDA (e.g. NRCS Code 590), EPA, and states have been pushing farmers toward formal nutrient management planning and most farms have nutrient management plans.

For biosolids management, CARE et al. is a reminder that careful application rates and storage are important. Working with farms that have active nutrient management plans is recommended.  Agronomic rate applications are the right thing to do.  

But the court's ruling also raises the question of how balanced must a recycled soil amendment (manure) be?  In the future, might excess phosphorus applied in manure that negatively impacts surface water be the subject of a lawsuit?  It seems likely the courts will need to strike a balance between egregious impacts from excess nutrients (as in the Yakima case, where years of data show significant levels of nitrate in groundwater) and applications of some nutrients in smaller excess of crop needs that do not have any signficant impacts.

Could biosolids be a target of similar action?  First, it is important to remember that biosolids fall under the RCRA "domestic sewage exclusion," which states that "neither domestic sewage nor any mixture of domestic sewage and other wastes that 'passes through a sewer system to a publicly-owned treatment works for "treatment" are solid waste.'"  Thus, it seems unlikely that someone could argue successfully under RCRA that excess biosolids applied would redefine the biosolids as solid waste, as happened with manures in the Yakima case.  But, even if land-applied biosolids do not fall under RCRA, their application rates are clearly governed by Part 503 and state biosolids regulations.