Opening the Gates of Cow Palace: Regulating Runoff Manure as a Hazardous Waste Under RCRA.

• Author: McCalib, Reed J.
• Position: Resource Conservation and Recovery Act of 1976

In 2015, a federal court held for the first time that the Environmental Protection Agency ("EPA") may regulate runoff manure as a "solid waste" under the Resource Conservation and Recovery Act ("RCRA"). The holding of Community Ass'n for Restoration of the Environment, Inc. v. Cow Palace, LLC opened the gates to regulation of farms under the nation's primary toxic waste statute. This Comment argues that, once classified as a "solid waste," runoff manure fits RCRA's definition of "hazardous waste" as well. This reclassification would expand EPA's authority to monitor and respond to the nation's tragically common groundwater-contamination emergencies.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND OF RCRA A. General History of RCRA B. Solid Waste, Hazardous Waste, and Animal Manure Under RCRA C. Runoff Manure Poses a Substantial Risk to Human Health and the Environment II. THE HOLDING OF COW PALACE PLACES OVERAPPLIED MANURE WITHIN RCRA'S DEFINITION OF HAZARDOUS WASTE A. Background and Holding of Cow Palace B. Aftermath of Cow Palace C. RCRA's Definition of Hazardous Waste and the Regulatory Exclusion of Properly Applied Manure III. THE PROCESS AND EFFECTS OF RECLASSIFYING OVERAPPLIED MANURE AS A HAZARDOUS WASTE A. Citizen Suits and Enforcement Actions as the Sources of Classification B. Examples of EPA's Would-Be Authority to Regulate Runoff Manure as a Hazardous Waste C. Substantive and Procedural Safeguards Against Overly Burdensome Hazardous Waste Regulation CONCLUSION INTRODUCTION

The landscape of American agriculture has drastically transformed since Thomas Jefferson dreamed of an agrarian democracy. (1) Farms have become fewer, bigger, and more concentrated as massive "factory farms" (2) have replaced the small family farms that once formed the backbone of the American economy. (3) The size and concentration of today's industrial farms come at a cost to human health: American agriculture produces nearly two billion tons of manure each year, (4) much of which contains dangerous contaminants such as E. coli, salmonella, and Campylobacter. (5) When manure applied to fields as fertilizer runs off into waterways or leaches into groundwater, the consequences can be fatal. (6) Despite these threats, the agricultural industry has historically avoided regulation under two of the nation's most important antipollution statutes, the Clean Water Act ("CWA") (7) and the Resource Conservation and Recovery Act ("RCRA"). (8) This Comment focuses on the latter.

Congress passed RCRA on October 1, 1976. (9) The statute regulates the production, generation, and disposal of harmful toxic wastes. (10) The accompanying regulations have grown into "perhaps the most comprehensive regulations [the Environmental Protection Agency] has ever developed." (11) As a result, the unregulated open dumping of hazardous wastes--at least of those recognized by the statute--has all but ended. (12)

Until 2015, animal waste produced by agricultural operations rested comfortably beyond the scope of RCRA. (13) On January 14, 2015, a federal court abruptly declared otherwise. In Community Ass'n for Restoration of the Environment, Inc. v. Cow Palace, LLC, the U.S. District Court for the Eastern District of Washington held that certain animal waste--particularly runoff manure originally applied to fields as fertilizer--should be considered "solid waste" under RCRA's definition of the term. (14) The decision opened the gates to regulation of agricultural waste under the nation's primary toxic waste statute, and the implications are potentially profound. (15)

This Comment argues that, in light of the court's reasoning in Cow Palace and despite an apparent regulatory exclusion, animal manure that is overapplied to fields (making it useless as fertilizer) necessarily constitutes not only a "solid waste" under RCRA but also a "hazardous waste." Such a reclassification would have a significant impact on EPA's ability to regulate the disposal of harmful agricultural animal waste. Part I provides a background of RCRA and its historical application vis-a-vis animal manure before Cow Palace. Part II argues that the holding in Cow Palace, when taken to its necessary conclusion, indicates that animal manure classified as a "solid waste" ought to be "hazardous waste" as well, despite an apparent regulatory exclusion. Part III envisions the reclassification process and explores the implications of classifying runoff manure as a hazardous waste.

1. BACKGROUND OF RCRA

   This Part provides a background of RCRA and its historical application vis-a-vis animal manure before Cow Palace. It also highlights the health risks associated with runoff manure. Section I.A outlines the general scope and history of RCRA. Section I.B explores the difference between "solid waste" and "hazardous waste" under RCRA and explains why agricultural animal waste was historically considered to be neither. Section I.C argues that agricultural animal waste poses serious risks to human health and the environment.

   1. General History of RCRA

      Congress passed the RCRA on October 21, 1976. (16) Widely considered "our nation's primary law governing the disposal of solid and hazardous waste," (17) RCRA has been amended three times since 1976 (18) and now enjoys a comfortable position among the strongest and most robust environmental statutes in our nation's history. (19) The statute "authorizes EPA to set standards for facilities that generate or manage hazardous waste, establishes a permit program for hazardous waste treatment, storage, and disposal facilities, and authorizes EPA to set criteria for disposal facilities that accept municipal solid waste." (20) It established the "first federal permit program for hazardous waste management" and banned open dumping of hazardous waste. (21)

      The goals of RCRA are apparent from its language: to protect human health and the environment from dangerous waste and to conserve energy and natural resources. (22) Responding to an era in which toxic wastes were freely burned or buried, RCRA sought to regulate disposal and end irresponsible practices. (23) Its methods are clear: to reduce or eliminate the generation of hazardous waste in the United States "as expeditiously as possible" by ensuring that waste is "treated, stored, or disposed of so as to minimize the present and future threat to human health and the environment." (24)

      RCRA's definition of waste governs its scope. The statute defines "solid waste" broadly to include "any 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 ...," (25) If a material fits the definition of "solid waste," it can be a "hazardous waste" in one of two ways: (1) its characteristics are such that it poses a "substantial present or potential hazard to human health or the environment" (26) or (2) EPA specifically lists the waste as such in the Code of Federal Regulations. (27)

   2. Solid Waste, Hazardous Waste, and Animal Manure Under RCRA

      RCRA treats materials deemed "solid waste" differently from those deemed "hazardous waste." While disposal of solid wastes comes with certain restrictions, it is generally regulated "much more loosely" than hazardous wastes. (28) Hazardous wastes, on the other hand, are regulated "cradle to grave." (29) Whether a material constitutes a hazardous waste as opposed to merely a solid waste impacts how closely the government regulates its disposal.

      Under RCRA, the federal government largely defers to state and local governments to regulate solid waste. (30) Although EPA has promulgated some regulations regarding the design and operation of disposal facilities, the agency's main role is one of support. (31) This deferential approach to nonhazardous solid waste management offers state and local governments broad leeway regarding the disposal of solid waste. (32)

      Hazardous waste, by contrast, is regulated by EPA through every step of its life. Subtitle C of RCRA, which addresses hazardous waste, "has resulted in perhaps the most comprehensive regulations EPA has ever developed." (33) Focusing on all parties involved in the handling of hazardous wastes--generators, transporters, and storage/treatment/disposal facilities (34)--Subtitle C includes strict regulations, permitting requirements, and broad enforcement authority. (35)

      Animal manure produced by agricultural operations has traditionally been entirely exempt from RCRA's reach. (36) This exemption exists even though Congress "allowed for the possibility that 'solid waste' originate from 'agricultural operations.'" (37) Courts have reasoned that as long as manure spread over fields is being put to use as fertilizer, it is not "discarded" and is therefore not a "solid waste" under RCRA's definition. (38) Since "[ojnly materials that meet the definition of solid waste under RCRA can be classified as hazardous wastes," (39) animal manure has traditionally been considered neither solid waste nor hazardous waste. For RCRA's entire history, farmers who dispose of their manure by spreading it, (40) storing it, (41) or selling it to other farmers (42) have avoided regulation under RCRA.

   3. Runoff Manure Poses a Substantial Risk to Human Health and the Environment

      Despite being historically exempt from the scope of RCRA, runoff manure (43) can pose serious health risks to human health (44) and the environment. (45) Threats to human health include skin rashes, hair loss, birth defects, "blue baby syndrome," (46) and thyroid cancer. (47) As for the environment, phosphorus and nitrogen found in manure can lead to an explosion in aquatic-plant biomass, which saps nutrients from marine ecosystems, blocks out valuable sunlight, and creates "dead zones" through a process called eutrophication. (48)

      ...