Legislation protects against litigation under solid waste law

Farm Regulatory Certainty Act will protect farmers from being subject to solid waste regulations.

New bipartisan legislation clarifies an exemption for livestock producers from being subject to the Resource Conservation & Recovery Act (RCRA), which governs the safe disposal of solid waste.

The Farm Regulatory Certainty Act (H.R. 5685), sponsored by Rep. Dan Newhouse (R., Wash.), would spell out that the RCRA, enacted in 1976 to govern solid wastes in landfills, is not intended to regulate agricultural operations like dairy farms. The RCRA statute has been used inappropriately to target agriculture, specifically dairy and livestock producers, even if they have demonstrated that they have been following approved plans for using manure as a fertilizer. The Farm Regulatory Certainty Act will also protect farmers from citizen suits if they are undergoing efforts to comply with federal orders.

In January 2015, a federal judge in Spokane, Wash., sided with environmental activists who brought a lawsuit against several dairies in the state of Washington under the RCRA for what they claimed was the inappropriate storage and handling of animal manure. However, RCRA was intended to govern landfills and to prevent the opening dumping of “solid wastes.”

The litigation claimed that farms had inappropriately handled and stored animal manure under the RCRA, even though the RCRA was not intended to focus on farming practices or the management of livestock manure. The U.S. District Court for the Eastern District of Washington determined that the amount of manure deposited exceeded approved limits and constituted environmental and human endangerment.

The Environmental Protection Agency’s own pre-existing RCRA regulations from 1979 acknowledge that the RCRA does “not apply to agricultural waste, including manure and crop residue, returned to the soil as fertilizers or soil conditioners.” [40 CFR 257.1(c)(1)] The novel interpretation of the law stretches definitions to describe manure nitrates as a “solid waste” in order to hold livestock producers liable. Such an interpretation opens up the nation’s agricultural producers who use or store manure or other fertilizers to an additional, expansive, unintended layer of federal regulation under the RCRA.

“As a farmer myself, I know how seriously farmers take our responsibility to be good stewards,” Newhouse said. “The goal of environmental rules should be to assist agriculture producers to improve nutrient management and reduce their environmental footprint, not subject them to lawsuits and put them out of business.”

Newhouse said it is unfair for agricultural nutrients to be exempt from a law but then have a court find farmers at fault for non-compliance with the law. “Farmers need certainty to what rules apply to them,” he explained. “Complying with appropriate federal regulations should never be a guessing game that results in increased liability, especially when many farmers are taking proactive, voluntary steps to manage land and water quality.”

Specifically, the bill reaffirms and clarifies congressional intent regarding the inappropriateness of subjecting agricultural byproducts to the RCRA. It also codifies EPA’s regulations regarding the treatment of agricultural byproducts under the RCRA.

The bill also prevents farmers who are already engaged in legal action or are making a diligent attempt to work with the state or federal government to address nutrient management issues from being targeted by citizen suits. It doesn’t, however, exempt livestock producers from any laws or regulations intended to govern agricultural operations.

“This legislation would help end the confusion among farmers about environmental regulations, especially those who practice responsible waste management,” said Jim Mulhern, president and chief executive officer of the National Milk Producers Federation. “The RCRA law was not intended to govern farms, and Congress needs to enact this bipartisan legislation to reinforce that point.”

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