Federal Court Limits Application of RCRA Citizen Suit Bar And Expands RCRA Definition of “Solid Waste”

By: Ralph H. Palumbo, Partner, Summit Law Group PLLC

The federal District Court’s recent decision in Care v. Cow Palace, LLC drastically enlarges the scope of RCRA citizen suits and expands the definition of “solid waste” to include products which have useful purposes if any residue from those products may be discharged into the environment. The court’s decision, if followed by other federal courts, will create additional regulatory burdens on agricultural and other industries without resulting in commensurate benefits to the environment or public health.

In February 2013, two non-profit environmental groups (collectively, “CARE”) brought citizen suits against three dairies (“Dairies”) located in Washington’s Yakima Valley, alleging that manure management, storage, and fertilizer application practices “may cause or contribute to an imminent and substantial endangerment.” Each dairy handles millions of tons of manure each year by selling manure as compost, applying manure to agricultural fields as fertilizer, and storing liquid manure in lagoons until it is applied to agricultural fields. Plaintiffs claimed that manure is a “solid waste” under RCRA field applications at greater than “agronomic” rates, and leakage from lagoons result in being “discarded,” thereby releasing nitrates that can potentially migrate to underground drinking water sources.

Each dairy had entered into a Consent Order with EPA under the Safe Drinking Water Act that required the Dairies to implement measures that would result in achieving the MCL for nitrate in the aquifer beneath and downgradient of the Dairy Facilities. By 2014, the Dairies had reached Consent Order soil nitrate goals for some of their application fields and other fields were very close to achieving the goal.

Other federal courts have held that RCRA citizen suits based on activities regulated under another statute are barred. Willet Dairy, 536 F.3d at 174; Jones v. E.R. Snell Contractor, Inc., 333 F. Supp.2d 1344, 1350-51 (N.D. Ga. 2004) (RCRA citizen suit based on activities covered by the Clean Water Act is barred); see also United States v. Burns, 512 F. Supp. 916, 918-19 (W.D. Pa. 1981) (enforcement action under RCRA based on substance regulated by Toxic Substances Control Act is barred). Moreover, the Safe Drinking Water Act, not RCRA, is the nation’s primary source of protection for underground drinking water. The Second Circuit has rejected attempts to sue under RCRA when the plaintiffs cannot sue under the primary regulatory statute. No Spray Coal, 252 F.3d at 148; Coon v. Willet Dairy, LP, 536 F.3d 171, 174 (2d Cir. 2008).

Even when the statutory non-duplication bar does not apply directly, courts have consistently held that citizens cannot maintain RCRA lawsuits when the environmental hazard has been addressed. Clean Harbors, Inc. v. CBS Corp., 875 F. Supp.2d 1311, 1330-32 (D. Kan. 2012; Trinity Indus. v. Chicago Bridge & Iron Co., 867 F. Supp.2d 754, 763 (W.D. Pa. 2012); 87th St. Owners Corp. v. Carnegie Hill-87th St. Corp., 251 F. Supp.2d 1215, 1219-22 (S.D.N.Y. 2002); SPPI‑Somersville, Inc. v. TRC Co., 2009 WL 2612227, *14-15 (N.D. Cal. 2009); Kara Holding Corp. v. Getty Petroleum Mktg., Inc., 2004 WL 1811427, *11-12.

Because the citizen suits sought to regulate the same activities (land-application and storage of manure) and the same substance (nitrates) in a manner inconsistent with EPA’s Consent Decrees, they should have been barred by RCRA’s non-duplication provision.

The Court held the citizen suits were not barred because the Consent Order did not encompass all relief sought by CARE, including that:

  • CARE requested that the Dairies supply drinking water to residents within a three mile radius, as opposed to a one mile radius in the Consent Order;
  • CARE requested “fate and transport” studies, while the Consent Order only requires monitoring;
  • CARE requested studies to determine agronomic application rates, while the Consent Order merely requires compliance with NRCS Practice Standards to determine if manure was over-applied;
  • CARE requested that Defendants immediately line the manure lagoons; while the Consent Order includes lining as a contingent remedy;
  • CARE requested soil sampling to 4 feet, while Consent Order requires 1-3 feet.

The Court’s holding effectively eliminates RCRA’s statutory non-duplication bar because citizen suit plaintiffs will always be able to request some relief that is additional to, or different from, the relief sought by EPA. The Court’s refusal to enforce RCRA’s statutory citizen suit bar for reasons as superficial as the difference between a one and three mile radius for drinking water supply, or the difference between sampling to four feet rather than three feet, is directly contrary to RCRA’s express language. If the Court’s reasoning is adopted by other federal courts, the result will be duplicative and often inconsistent enforcement actions by EPA and citizens’ groups. Compliance with RCRA will be diminished, rather than advanced. For those reasons, the Court’s holding should be soundly rejected by other federal courts.

The Court’s decision on whether manure is a “solid waste” within the meaning of RCRA is equally troubling. Manure is a well-established product that the Dairies and third parties use beneficially. The Diaries’ manure is a valuable fertilizer used to raise crops. There was no evidence that the Dairies had ever applied manure “simply to be rid of it.” Tyson Foods, 2010 WL 653032 at *9. The availability of nitrogen to growing plants is governed by a complex, dynamic process known as the nitrogen cycle. The nitrogen cycle is understood and agronomic application rates can be estimated, but the nitrogen cycle processes cannot be directly controlled or precisely forecast. Thus, while dairies and other agricultural operations work towards the “perfect” application amount, it is virtually impossible to apply exactly the amount of manure that will be needed by the crop, such that no residual nitrates remain in the soil at the end of the growing season.

The Ninth Circuit and other courts consistently have rejected attempts to impose RCRA liability based on the contention that materials placed to some useful purpose nevertheless are “discarded.” This is true even though some residues or constituents of the materials enter the environment. See Ctr. for Comm. Action, et al. v. BNSF Railway Co., et al., 764 F.3d 1019, 1030 (9th Cir. 2014) (rejecting argument that particulate matter emitted in diesel exhaust is “solid waste” that is “disposed” of); Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 516 (9th Cir. 2013) (rejecting argument that a chemical preservative dripping or leaching from utility poles is “solid waste”); Safe Air, 373 F.3d at 1047 (airborne particulate matter from burning grass residue as a field treatment is not a “solid waste”); No Spray Coal., Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir. 2001) (rejecting argument that spraying pesticide along city streets misused the chemical and was “tantamount to a disposal” that rendered it a “solid waste”); Oklahoma v. Tyson Foods, 2010 WL 653032 at *10-11 (N.D. Okla. 2010) (land-applied poultry manure is not “solid waste”); Water Keeper Alliance v. U.S. Dep’t of Def., 152 F. Supp.2d 163, 169 (P.R. Cir. 2001) (rejecting claim that projectiles ending up in the environment after artillery practice are “solid waste”).

Before the Court’s decision in the dairy cases, no court had ever held (or even hinted) that RCRA requires a product such as fertilizer to be used at some theoretical minimum effective rate in an attempt to guarantee no escapement or over-application in any circumstance. The Court’s decision is contrary to established precedent in the Ninth Circuit and other federal circuits; and, if followed by other federal courts, will create uncertainty and regulatory burdens on agricultural and other industries without resulting in commensurate benefits to the environment or public health.
A founding member of Summit Law Group, Ralph’s practice includes a unique depth of experience in complex commercial litigation, environmental matters, and corporate and business law. He has tried cases in state and federal courts involving a broad spectrum of complex issues, including: antitrust and trade regulation; patent law and licensing; environmental law (hazardous and toxic substances, clean air, clean water, and natural resource damages); product liability, commercial and contract disputes; trade secrets/non- competition; products liability (biologics, toxic torts, explosions, and product defects); class-action litigation; state and federal securities regulation and shareholder rights; breaches of contract; insurance coverage and bad faith; fraud, misrepresentation and customer protection act violations; employment agreements, noncompetition, non-solicitation and intellectual property agreements; violations of fiduciary duties; and real property taxation.