Legal battles between environmental groups and the dairy industry over land, air and water have been dragging on for the past several years. Complex regulations – and court interpretations of those regulations – impact the way dairies conduct their business.

To help explain the new regulations and recent court rulings, Dr. Shannon Ferrell, associate professor of agricultural economics at Oklahoma State University, conducted a webinar on Aug. 6.

Ferrell spent most of the hour focusing on the court decision in the recent case regarding Cow Palace, a dairy in Washington’s Yakima Valley, where residents have long been concerned about the safety of their groundwater.

Lawsuits have also been filed against other Yakima Valley dairies, including D&A Dairy, George DeRuyter & Son Dairy, Liberty Dairy and R&M Haak Dairy.

Environmental groups argued that when dairies apply more manure than necessary to meet their fertilization needs, they violate the Resource Conservation and Recovery Act (RCRA) rules regarding solid waste. In January, a federal district court agreed with them, deciding that manure could be considered solid waste under federal environmental laws.

In siding with environmentalists, Judge Thomas O. Rice of the U.S. District Court for the Eastern District of Washington ruled that when dairies “excessively overapply manure to their agricultural fields … they are discarding the manure and thus transforming it into a solid waste under RCRA. Because the excess manure is not ‘returned to the soil as fertilizers,’ it is not exempt from RCRA’s provisions.”

The court cited a statute that reads, “Any solid waste management or disposal of solid waste or hazardous waste is prohibited …” The court found that the dairies’ actions met the criteria of “(posing) a reasonable probability of adverse effects on health or the environment.”

Ferrell added that material leaked from dairies’ lagoons and infiltrating from composting on bare soils could also constitute solid waste, as can material in storage areas “where there is a reasonable expectation that the material would escape. This is a provision that has been used to clean up tons of dump sites across the U.S.”

The court determined the dairy’s manure management practices resulted in an “imminent and substantial endangerment to public health and the environment.” The word “imminent,” according to the court, means there is the risk of threatened harm, and “substantial” is their synonym for serious.

Ferrell compared the concept of “imminent” to a Wile E. Coyote cartoon “where it’s pretty certain that the harm is going to come, even though it hasn’t come yet.”

“The undisputed facts are that residential wells down-gradient of the dairy exceed the maximum contaminant level, as established by the EPA,” stated the court ruling.

“The groundwater sampling, not surprisingly, was a big issue in this case,” said Ferrell.

In response to the contention by Cow Palace’s general manager that the dairy “engaged in a series of calculations” to determine how much manure to apply to its fields, the court said, “Considering (the manager’s) declaration, as well as his deposition testimony, it is clear that characterizing his practices as ‘engaging in a series of calculations’ is a stretch.”

“You never want to hear that from a judge,” Ferrell commented, before listing the actions he believes the dairy made which didn’t help his case, such as using estimated application rates rather than actual testing data, failing to test for soil residuals, and applying waste when soils had sufficient nutrients. Also, the dairy had completed documentation for only one of its lagoons.

Ferrell advised those in the dairy industry to have an environmental assessment done before buying property, to keep good records of EPA inspections and nutrient applications, to use a centrifuge manure separator and to have nutrient management plans.

“Those nutrient management plans are so important, but it’s not enough to have nutrient management plans – you’ve got to follow through with them,” he said. “You’ve got to calculate what the soil can get rid of.”

Although the ruling was a setback for Yakima Valley dairies, the court’s decision may not have a major impact on other dairies, according to Ferrell. “As of right now, it’s an unpublished case,” he explained. “It has to be cited by a court or jurisdiction to be published. It (currently) doesn’t have precedential value for other courts. It may though.”

Turning his attention to the legal battles over air emissions, Ferrell said the main concerns for environmentalists and animal agriculture are ammonia and hydrogen sulfide, with the main challenges being measuring and reporting, since both compounds are difficult to measure.

The legal action by the Waterkeepers Alliance against the EPA started in January 2009 when a group of petitioners filed for a review of the farm exemption. Since then, a collection of environmental and animal welfare groups filed a lawsuit against the EPA for failure to regulate ammonia gas releases from animal feeding operations.

In October 2010, the EPA started the process of reconsidering its farm exemption. At the same time, the National Emissions Monitoring Study was launched with the goal of creating final emissions estimating methodologies. The most recent court action regarding emissions occurred this July when the parties agreed to a briefing schedule.

“Measuring air emissions from point sources is hard,” said Ferrell. “Measuring them from non-point sources is way harder. It’s just scientifically darn tough.”

Water is another battleground between environmental activists and the dairy industry. “Both parties have used this as a call to action,” said Ferrell in the last minutes of his webinar. “Congress may need to modify the Clean Water Act. The Clean Water Act never defines what ‘waters of the United States’ means.”  PD

Steve Pastis is a freelance writer based in Visalia, California.

PHOTO: Ferrell advised those in the dairy industry to have an environmental assessment done before buying property, to keep good records of EPA inspections and nutrient applications, to use a centrifuge manure separator and to have nutrient management plans. Staff photo.