Legal Rulings in Animal Agriculture: 
An Environmental Law Update 
 
August 6, 2015 
Dr. Shannon L. Ferrell 
Associate Professor, Agricultural Law 
Oklahoma State University Department of Agricultural Economics 
And now,  
a word from our sponsors 
Livestock and Poultry  
Environmental Learning Center  
By Sea, Air, and Land 
(but today, Land, Air, and Sea) 
By Land 
Community Association for Restoration of the 
Environment, Inc. & Center for Food Safety, Inc. 
v. Cow Palace, LLC (“Cow Palace”) 
Photo credit: Ross Courtney, AgWeb 
Cow Palace: 
Background 
•  Dairy in Granger, WA – Lower Yakima Valley 
•  Total herd size ≈ 11,000 
–  7,372 milking cows 
–  897 dry cows 
–  243 springers 
–  89 breeding bulls 
–  3,095 calves 
•  Open lot pen setup 
•  Overlies aquifer used for residential drinking 
water (30 – 190 feet below grade) 
EPA Administrative Order on 
Consent (AOC) 
Study conducted starting 2010; AOC entered 
thereafter and updated in 2014 
1.  Provide a permanent, safe alternative drinking water supply 
to residents with wells that exceed MCLs a one-mile radius 
(MCLs),  
2.  Take specific actions to further control potential sources of 
nitrogen at the dairy,  
3.  Establish a network of monitoring wells to measure the 
effectiveness of the nitrogen source reduction actions, and  
4.  Ensure effective nutrient management at the dairy to 
reduce the introduction of nitrate to an underground source 
of drinking water. 
Cow Palace: 
Case Status 
•  E.D. Wash., case 13-CV-3016-TOR 
•  Order on cross-motions for summary 
judgment issued Jan. 15, 2015 
•  Consent decree entered May 19, 2015 
Cow Palace:  
Issues addressed in court order 
1.  Plaintiffs’ standing 
2.  Admissibility of evidence 
3.  “Whether animal waste, when over-
applied onto soil and leaked into 
groundwater, is a ‘solid waste’…” 
Cow Palace:  
Issues addressed in court order 
4.  Whether dairy’s manure management 
practices constitute open dumping 
5.  Whether manure management practices  
may cause or contribute to an imminent 
and substantial endangerment to public 
health and the environment 
6.  Whether the dairies are responsible 
parties 
•  42 U.S.C. § 6972 (a)(1)(B) citizen suits 
“against any person who has contributed or who 
is contributing to the past or present handling, 
storage, treatment, transportation, or disposal of 
any solid or hazardous waste which may 
present an imminent and substantial 
endangerment to health or the environment.” 
Issue 3:  
“Whether animal waste, when over-applied onto soil 
and leaked into groundwater, is a ‘solid waste’…” 
Definition of solid waste: 42 U.S.C § 6903(27): 
[A]ny garbage, refuse, sludge from a waste treatment plant, 
water supply treatment plant, or air pollution control facility 
and other discarded material, including solid, liquid, 
semisolid, or contained gaseous material resulting from 
industrial, commercial, mining, and agricultural 
operations, and from community activities, but does not 
include solid or dissolved material in domestic sewage, or 
solid or dissolved materials in irrigation return flows or 
industrial discharges which are point sources subject to 
permits under section 1342 of title 33, or source, special 
nuclear, or byproduct material as defined by the Atomic 
Energy Act of 1954, as amended [42 U.S.C. 2011 et seq.].  
 
Issue 3:  
“Whether animal waste, when over-applied onto soil 
and leaked into groundwater, is a ‘solid waste’…” 
Issue 3:  
“Whether animal waste, when over-applied onto soil 
and leaked into groundwater, is a ‘solid waste’…” 
•  Pretty much anything disposed of, unless an 
exclusion or exemption applies. 
–  Disposed of: “has served its intended purpose 
and is no longer wanted by the consumer” 
Ecological Rights 713 F.3d 502, 515 (9th Cir. 2013) 
•  And speaking of exemptions: 
–  40 C.F.R. § 257.1(c)(1): “agricultural wastes, 
including manures and crop residues, returned to 
the soil as fertilizer or soil conditioners.” 
 
Issue 3:  
“Whether animal waste, when over-applied onto soil 
and leaked into groundwater, is a ‘solid waste’…” 
This Court finds there is no triable issue that when 
Defendants excessively over-apply manure to their 
agricultural fields -- application that is untethered to 
the DNMP and made without regard to the 
fertilization needs of their crops -- they are 
discarding the manure and thus transforming it to 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. 
•  Also found material leaked from lagoons and 
infiltrating from composting on bare soils could 
constitute solid waste 
Issue 4: 
“Whether animal waste, when over-applied onto soil and leaked 
into groundwater, is a ‘solid waste’…” 
•  42 U.S.C. § 6945(a): any solid waste 
management practice or disposal of solid waste 
or hazardous waste which constitutes the open 
dumping of solid waste or hazardous waste is 
prohibited 
•  42 U.S.C. § 6903(14): The term “open dump” 
means any facility or site where solid waste is 
disposed of which is not a sanitary landfill which 
meets the criteria promulgated under section 
6944 of this title and which is not a facility for 
disposal of hazardous waste. 
•  40 C.F.R. §§ 257.3, 257.3-4:  
–  Solid waste disposal facilities or practices which 
violate any of the following criteria pose a reasonable 
probability of adverse effects on health or the 
environment: 
•  A facility or practice shall not contaminate an 
underground drinking water source beyond the 
solid waste boundary  
•  Court found criteria for open dumping to 
be satisfied 
Issue 4: 
“Whether animal waste, when over-applied onto soil and leaked 
into groundwater, is a ‘solid waste’…” 
Issue 5: Whether manure management practices  may 
cause or contribute to an imminent and substantial 
endangerment to public health and the environment 
•  42 U.S.C. § 6972 (a)(1)(B): Citizen suits 
permitted “against any person who has 
contributed or who is contributing to the 
past or present handling, storage, 
treatment, transportation, or disposal of 
any solid or hazardous waste which may 
present an imminent and substantial 
endangerment to health or the 
environment.” 
Issue 5: Whether manure management practices  may 
cause or contribute to an imminent and substantial 
endangerment to public health and the environment 
•  [I]mminent "does not require a showing that actual harm 
will occur immediately so long as the risk of threatened 
harm is present."  
–  Price v. U.S. Navy, 39 F.3d 1011, 1019 (9th Cir. 1994). 
•  Endangerment is "substantial" when it is "serious.” 
–  Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1021 
(10th Cir. 2007).  
•  A substantial endangerment does not require proof of 
actual harm but rather "a threatened or potential harm."  
–  Price v. U.S. Navy, 39 F.3d at 1019 
Issue 5: Whether manure management practices  may 
cause or contribute to an imminent and substantial 
endangerment to public health and the environment 
The undisputed facts are that residential 
wells downgradient of the Dairy exceed the 
maximum contaminant level, as established 
by the EPA, and even if the Dairy's AOC 
obligations are helping to "reduce" the risk of 
the adverse health effects of the nitrate-
contaminated water to nearby residents, the 
risk still remains to these residents…” 
Issue 6: Whether the dairies are 
responsible parties 
 
•  “[T]o state a claim predicated on RCRA liabilityfor 
'contributing to' the disposal of hazardous waste, a plaintiff 
must allege that the defendant had a measure of control 
over the waste at the time of its disposal or was otherwise 
actively involved in the waste disposal process."  
–  Hinds Invs., L.P. v. Angioli, 654 F.3d 846, 852 (9th Cir. 2011). 
•   Congress intended that the term "contribution" be 
"liberally construed," and such term includes "a share in 
any act or effect" giving rise to disposal of the wastes that 
may present an endangerment.  
–  United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 
1383-84 (2d Cir. 1989). 
Cow Palace:  
Issues addressed in court order 
1.  Plaintiffs’ standing 
2.  Admissibility of evidence 
3.  “Whether animal waste, when over-
applied onto soil and leaked into 
groundwater, is a ‘solid waste’…” 
THEY 
HAD IT
 
IT GO
T IN 
IT WA
S 
Cow Palace:  
Issues addressed in court order 
4.  Whether dairy’s manure management 
practices constitute open dumping 
5.  Whether manure management practices  
may cause or contribute to an imminent 
and substantial endangerment to public 
health and the environment 
6.  Whether the dairies are responsible 
parties 
THEY
 DID 
THEY D
ID 
THEY
 WER
E 
Cow Palace: Epilogue 
•  Consent decree entered May 19, 2015 
•  EPA inspections and nutrient application 
recordkeeping 
•  Lagoon redesign incl. synthetic liners 
•  Monitoring wells (overlap w/ previous AOC) 
•  Drinking water w/in defined area 
•  Centrifuge manure separator, aerated 
composting 
Cow Palace takeaways: 
Nutrient management plans 
Defendants contend [Cow Palace’s general manager] 
“engaged in a series of calculations” when applying manure 
to the Dairy’s agricultural fields… Considering [the 
manager’s] declaration, as well as his deposition testimony, 
it is clear that characterizing his practices as ‘engag[ing] in 
a series of calculations’ is a stretch. 
–  Used estimates for application rates rather than actual 
testing data 
–  Tested from central lagoon rather than specific lagoon 
withdrawn 
–  Failed to test for soil residuals 
–  Applied waste when soils had sufficient nutrients 
Cow Palace takeaways: 
Lagoon design and “as-built” specifications 
•  Save for one lagoon, Defendants do not have complete documentation for 
each lagoon.  However, Defendants admit that none of the Dairy's lagoons 
have a synthetic liner.  Although Cow Palace asserts … that Laurie Crowe 
of the SYCD inspected the lagoons and opined that they "appeared" to 
meet NRCS standards, and the DNMP states the lagoons meet NRCS 
standards, these assertions cannot be affirmatively established. For 
instance, although Lagoon 1 documentation suggests that the lagoon was 
"designed to have a bentonite clay liner," it cannot be established that it was 
actually built with a clay liner or that the clay liner was reinstalled when this 
lagoon was deepened in the 1990s. 
–  Dispute as to amount of estimated leakage from lagoons, but “[t]hat 
being said, although the parties dispute the magnitude of leakage, the 
fact that the lagoons leak is not genuinely in dispute. 
–  “Although Defendants dispute the rate of seepage and nitrate 
accumulation around and beneath the lagoons, the parties do not 
genuinely dispute that both events are occurring.” 
Cow Palace takeaways 
•  Unpublished case (which cites a few 
unpublished cases) 
•  We’ve seen the RCRA line of thought 
before – but also not in published cases 
•  …Ninth Circuit 
By Air 
Waterkeeper Alliance et al v. EPA 
D.C. 09-1017 
Background 
•  Most air emissions regulated by CAA; 
certain releases of hazardous substances 
trigger reporting under CERCLA/EPCRA 
–  Constituents of concern for animal agriculture 
are ammonia (NH3) and hydrogen sulfide (H2S) 
–  Reportable quantity: 100 lbs. in 24 hour period 
•  Challenges in measurement and reporting 
–  Non-point sources; difficult to measure 
–  Debate re: emission factors 
 
Waterkeeper Alliance et al v. EPA 
D.C. 09-1017 
Background 
•  January, 2005: EPA issues proposed consent 
order to handle present & past releases and to 
start National Air Emissions Monitoring Study to 
evaluate AFO emissions 
•  2008: EPA issued rule exempting farms from 
CERCLA/EPCRA reporting (73 Fed. Reg. 76951) 
–  All farms exempt from reporting to National Response 
Center 
–  Exempts operations smaller than the Large AFO 
thresholds from reporting to state and local emergency 
coordinators 
Waterkeeper Alliance et al v. EPA 
D.C. 09-1017 
Background 
Waterkeeper Alliance et al v. EPA 
D.C. 09-1017 
Background 
•  January, 2009: Group of petitioners filed 
for review of farm exemption 
•  August, 2010: EPA files for voluntary 
remand to reconsider rule 
•  October, 2010: Court grants remand 
–  EPA commences reconsideration of rule 
–  National Emissions Monitoring Study to create 
final Emissions Estimating Methodologies 
Waterkeeper Alliance et al v. EPA 
D.C. 09-1017 
Background 
•  December, 2012: Draft EEMS for some 
operations released, but no final action 
taken 
•  December, 2012 – April, 2015: … 
•  April, 2015: Petitioners file motion to recall 
mandate (and proceed on merits) or writ of 
mandamus 
•  July, 2015: parties agree to briefing 
schedule 
Takeaways from Waterkeeper 
•  [Nothing concrete yet] 
•  Measuring air emissions from point-
sources is hard.  Measuring them from 
non-point sources is waaaaaaay harder. 
•  Right tool, right job: 
–  CERCLA/EPCRA are meant to respond to 
releases of hazardous substances.   
–  The CAA is meant to permit and monitor air 
emissions 
By Sea 
WOTUS, again 
•  June 29, 2015: Final rule 
issued (80 Fed. Reg. 37054) 
•  July 30, 2015: House 
Committee on Oversight & 
Government Reform releases 
50 pages of USACE 
documents critical of EPA 
economic analysis of rule and 
scope 
–  Dogs and cats live together 
–  Mass hysteria 
•  August 28, 2015: Effective 
date of rule 
THANKS! 
Dr. Shannon L. Ferrell 
OSU Department of Agricultural Economics 
shannon.l.ferrell@okstate.edu