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Washington dairies ask for dismissal of manure lawsuits


By CAROL RYAN DUMAS



Capital Press



Five dairies in Washington's Yakima Valley have filed a motion to dismiss lawsuits against them brought by the Community Association for Restoration of the Environment and the Center for Food Safety.



Plaintiffs allege that manure is a solid waste and when applied on land or stored is leaching nitrates and contaminating groundwater in violation of the Resource Conservation and Recovery Act.



The plaintiffs want manure classified as a solid waste and dairies treated as open dumps, such as municipal landfills, and regulated under that law, said the dairies' attorney, Hugh O'Riordan, of Givens and Pursley.



"It's a real stretch of the law," he said.



Manure is not a solid waste, and it is not being disposed of. It's a soil nutrient, and the law does not regulate manure, he said.



Similar lawsuits attempting to regulate chicken manure and power poles treated with insecticide under the law were dismissed on the grounds that chicken manure is a soil amendment and power poles were not being disposed of, he said.



"It's the same argument for us. It's being used for nutrient management plans and it's not waste; it's a useful product," he said.



A motion to dismiss the lawsuits was filed April 29 in Federal District Court, Eastern District of Washington, he said.



Plaintiffs are seeking a declaration that by operating illegal dumps, the dairies are contaminating ground water in the Yakima Valley. They are asking for temporary and permanent injunctive relief plus civil penalties of $37,500 a day per violation of the law, fines and attorney fees, he said.



They are saying the way manure is applied or composted makes it waste. A farm is not a dump, but they are alleging it is an unpermitted landfill, he said.



"It's a very radical view," he said.



Dairy and beef producers are concerned about the precedent that could be set if the plaintiffs prevail. The implication is that anyone who applies manure on land would have to be permitted and manure would be treated like municipal waste. Every farm in the country would have to be licensed like a solid waste landfill, he said.



"RCRA was never intended to do that," he said.



If the plaintiffs prevail, it will cost the dairies hundreds of millions of dollars. But the issue is not about the five farms, it's about changing the law, said Dan Wood, director of government affairs for the Washington State Dairy Federation.



The law is very clear that manure is neither a solid waste nor a hazardous waste, he said.



If the lawsuits are successful, they will put livestock agriculture out of business and put even more than livestock agriculture in jeopardy, he said.



The plaintiffs are not going to stop, and the organizations fighting the suit are prepared to take it to the Supreme Court level, he said.



"It's a national precedent-setting case," said Bob Naerebout, executive director of Idaho Dairymen's Association.



The pending lawsuits have implications for all livestock operations regardless of their size or location, he said.



IDA's board of directors has authorized IDA to cover half of the legal fees for the defendant dairies through its Independent Dairy Environmental Action League.



The Washington Agricultural Legal Foundation is covering the other half, Wood said.



In the plaintiffs' original complaint filed in February, they also alleged violations of the Emergency Planning and Community Right to Know Act and the Comprehensive Environmental Response Compensation and Liability Act but have since dropped those allegations, O'Riordan said.





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