Fertilizer or Solid Waste: How Far Does RCRA Spread?

• Date: 01 July 2015

7-2015 NEWS & ANALYSIS 45 ELR 10633

D I A L O G U E

Fertilizer or Solid Waste:

How Far Does

RCRA Spread?

Summary

On January 14, 2015, the Eastern District of Wash-

ington held that Cow Palace Dairy, LLC, is liable

under the Resource Conservation and Recovery Act

(RCRA) for storing, applying, and managing manure

in a way that poses a substantial and imminent endan-

germent to public health in violation of open dump-

ing provisions. is opinion is signicant because it

denes Cow Palace’s manure as solid waste under

RCRA. e court focused on the manner in which

Cow Palace stored and used the manure to determine

that RCRA exemptions, such as the agricultural waste

exemption for fertilizer, did not apply. Given the rul-

ing’s signicance, the Environmental Law Institute

(ELI) convened a seminar on this topic on February

26, 2015. e panelists held a dynamic discussion:

What are the connes, or lack thereof, for the deni-

tion of solid waste under RCRA? Why can the same

byproduct, in this case manure, be regulated waste in

one case and unregulated fertilizer in a separate case?

What does this case mean going forward for RCRA

practitioners, the regulated industry, nonprot advo-

cacy, and government regulation? Below, we present a

transcript of the event, which has been edited for style,

clarity, and space considerations.

Bruce Myers (moderator) is a Senior Attorney at ELI.

Craig Johnston is Professor of Law and Director of Earth-

rise Law Center at Lewis & Clark Law School.

Jessica Culpepper is the Food Safety and Health Attorney

with Public Justice.

Dale Mullen is a Partner with McGuireWoods LLP.

Bruce Myers: Welcome, everyone. We have three out-

standing panelists who will discuss the Resource Con-

servation and Recovery Act (RCR A)1 and the Cow Palace

1. 42 U.S.C. §§6901-6992k, ELR S. RCRA §§1001-11011.

case.2 I’ll introduce each of t hem in the order that t hey

will speak to us today. Craig Johnston is a professor of law

and clinical director of Earthrise Law Center at Lewis &

Clark Law School, where he has been a faculty member

since 1991. He was an assistant regional counsel with the

U.S. Environmental Protection Agency (EPA), and also

practiced with Perkins Coie. He teaches a variety of envi-

ronmental law subjects, and has published extensively in

the eld of environmental law, including co-authorship of

a casebook on hazardous waste law.

Jessica Culpepper is the Food Safety and Hea lth Attor-

ney with Public Justice, a public interest law rm, based

in their D.C. headquarters. Jessica’s environmental practice

at Public Justice covers industria l anima l agriculture, and

she’s long been engaged in sustainable and humane animal

agriculture. Public Justice’s food safety and health project

is dedicated to bringing integrity to the food system and

is primarily focused on reforming the industrial animal

agriculture industry with environmental and common-law

tort litigation. Previously, Jessica worked with the Humane

Society of the United States.

Dale Mullen is a partner with McGuireWoods LLP,

based in Richmond. Dale represents clients in complex

litigation, on regulatory compliance issues, and with

respect to legislative matters. He has broad experience in

federal, state, and local government, and represents clients

in agriculture and a variety of other industries, includ-

ing utilities. Dale served in the U.S. Navy and has held

appointments as Special Assistant U.S. Attorney, Assistant

Attorney General for the Commonwealth of Virginia, and

county attorney.

We’re going to open with a round of initial remarks

from each of our three panelists. Craig will lead o by pro-

viding background and broader context on RCRA. Jessica

and Dale will then share what I suspect are very dierent

perspectives on the Cow Palace c ase and what its implica-

tions might be, and they will talk a bit about the future of

RCRA. After the presentations, we will have an opportu-

nity for responses and comments from the panelists, and

then we will invite questions from the audience.

2. Community Ass’n for Restoration of Environment (CARE) v. Cow Palace,

LLC, No. 13-CV-3016, 45 ELR 20008 (E.D. Wash. Jan. 14, 2015) [here-

inafter Cow Palace].

Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.