YAKIMA CONSENT DECREE AND LAWSUIT OVERVIEW. 195 River Vista Place Twin Falls, Idaho

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1 YAKIMA CONSENT DECREE AND LAWSUIT OVERVIEW 195 River Vista Place Twin Falls, Idaho

2 Yakima Washington Lawsuit against Five Dairies What are we Going to Cover? - EPA authority Under the Safe Drinking Water Act - EPA Consent Decree - Lawsuit based on Resource Conservation and Recovery Act - How this Impacts dairies across the United States

3 Executive Summary The effects of this litigation are not confined to the Yakima Valley. If the plaintiffs succeed in this litigation, all farming activities utilizing common manure management systems throughout the United States which are managed by their state agricultural departments and state environmental agencies will be subject to a new and sweeping federal regulation that will result in endless citizen suit litigation. This is a national issue brought by national environmental groups and will have an impact on every livestock farm in the United States.

4 YAKIMA COUNTY AGRICULTURE q 68 dairy facilities in Yakima County 103,088 milking & dry cows 47,085 heifers & calves 35,727 acres 57 dairies export manure 37 dairies compost q BEEF Estimated Numbers Unless they have a NPDES Permit they are unregulated larger feedlots for beef/heifer lots, range in size ,000 head Estimated total number 170,000

5 YAKIMA COUNTY AGRICULTURE q Total Agricultural Acres - 346,570 Fruits and Vegetables - 133,470 Livestock Feed Acres Including Pasture - 120,440 Conservation Reserve Program and ground listed as Fallow - 51,580 Grain - 35,000 q Balance Nursery Crops, Golf Courses, Trees, Seed Crops, Tobacco, Sod, Wildlife Feed.

6 Arial of the Yakima Cluster

7 Individual Dairy Arial

8 Feed Lane & Shades

9 Corrals & Feed Lane

10 EPA Authority U.S. Environmental Protection Agency sought emergency authority under the Safe Drinking Water Act (SDWA) to impose a complicated consent order upon Yakima dairy operations. The authority was based off a EPA conducted study that the scientific community stated was flawed. There were no violations by any of these dairy operations. They met all of the requirements of their state Nutrient Management Plans.

11 Consent Decree - In late March 2013, the EPA entered into voluntary Consent Orders that was negotiated with four of the five dairy operations. One (1) dairy operation liquidated because of the cost of the Consent Decree. - The Consent Recognizes that Potential sources of nitrogen at Respondents Dairy Facilities include pens, manure piles, manure lagoons, and application fields. - The EPA has determined that the actions required by this Consent Order are necessary to protect the health of persons who are currently consuming or who may consume or use water from the contaminated portion of the aquifer.

12 Consent Decree - Respondents, individually or collectively, shall retain one or more contractors to perform the actions specified in the Statement of Work and shall notify the EPA of the name(s) and qualifications of such contractor(s) within ten (10) days of the Effective Date. - Respondents shall, commencing on the Effective Date, provide EPA and its representatives, including contractors, with access at all reasonable times to property owned or possessed by Respondents for the purpose of conducting any activity related to this Consent Order. - EPA retains all of its access authorities and rights, as well as all of its rights to require and use restrictions, including enforcement authorities related thereto, under SDWA, CERCLA, RCRA and any other applicable statutes or regulations.

13 Consent Decree - Each Respondent shall be liable to the EPA for stipulated penalties in the amounts set forth below for its failure to comply with the requirements of this Consent Order as specified below. Penalty Per Violation Per Day Period of Noncompliance - $ 300 1st through 14th day - $ th through 30th day - $ 1,000 31st day and beyond - Within 60 days of the Effective Date, Respondents shall submit to EPA a Groundwater Monitoring Plan The objectives of the Groundwater Monitoring are to establish a baseline of groundwater quality information at the Dairy Facilities to evaluate whether actions taken to reduce nitrogen loading are effective over time. This is a eight (8) year monitoring program.

14 Consent Decree - Respondents shall offer to provide reverse osmosis (RO) treatment systems, or other alternative water if mutually approved by EPA and Respondents, to each residence where testing shows that the drinking water supply exceeds the nitrate MCL of 10 mg/l. one mile down gradient of the boundary of the Dairy Facilities This remains in effect until the residential water is continually below 10 mg/l for a 2 year period. - Lagoons Within 60 days of the Effective Date, Respondents shall submit to the EPA a Lagoon Review Report that provides documentation, i.e., plans and specifications signed by a WA licensed engineer, that shows that existing lagoons are constructed to current WA NRCS 313 standards, including a soil permeability rate not to exceed 1x10-6 ( NRCS 313 standard ). Original language was 1x10-13

15 Consent Decree - Manure Management Respondents shall manage solid animal waste stored or managed on site to minimize generation of leachate (the liquid produced in a landfill from the decomposition of waste within the landfill). - Respondents shall also endeavor to avoid transporting manure to locations where groundwater is known by Respondents to currently exceed 10mg/L nitrate. Applications of manure on crop fields in such areas is allowed only if post-harvest soil sample is 45 ppm NO3-N or lower at the 2 foot depth. Respondents shall maintain records of locations to which manure is transported off of the Dairy Facilities.

16 Consent Decree - Furrow Irrigation Respondents shall eliminate all furrow irrigation at the Dairy Facilities within two years of the Effective Date. - Irrigation Water Management Working with the assistance of a professional irrigation consultant, Respondents shall prepare and submit an Irrigation Water Management Plan. The IWM Plan shall describe flow metering to measure the volume of liquid applied to specific fields, and the installation of electronic sensors at the bottom of the root zone in each application field to provide for automatic shut off of the irrigation system to minimize water movement - Silage Storage - Within 60 days of the Effective Date, Respondents shall take actions to reduce nitrate contributions from silage storage at the Dairy Facilities.

17 Consent Decree - Solid Separator Within 60 days of the Effective Date, Respondents shall take actions to reduce nitrate contributions from solid separators operated at the Dairy Facilities. - Within 60 days of the Effective Date, Respondents shall submit a Dairy Facility Application Field Management Plan that meets EPA requirements. - The EPA Dairy Facility Application Field Management Plan will be consistent with the following: A minimum of 20 subsamples will be collected from discrete locations within of 25 acres or less. Between 25 to 50 acres in size, 25 subsamples will be collected. Greater than 50 acres in size, 30 subsamples will be collected.

18 Lawsuit - Filed by the Community Association for Restoration of the Environment, Inc. (CARE) (PNW based) and the Center for Food Safety, Inc. (DC based) in the Federal District Court for the Eastern District of Washington. - The CARE complaints allege most of the same facts as EPA s allegations, but under a different environmental statute. Instead of the Safe Drinking Water Act (SDWA), CARE alleges violations of the Resource Conservation and Recovery Act (RCRA) in an attempt to expand the scope of RCRA to govern, for the first time, the use, storage and handling of manure in agricultural operations. - GOAL OF LITIGATION - CARE is seeking to have routine manure management activities at dairies classified as solid waste dumps under RCRA

19 Lawsuit - According to CARE, the Yakima dairies are dumps which operate in a manner to cause an imminent and substantial endangerment to human health and environment. - The plaintiffs ask the court to: declare that the day-to-day operations of the dairies imminently and substantially endanger the public health and environment. Plaintiffs also seek a declaration that, by operating illegal dumps the dairies are contaminating ground water throughout the Yakima Valley. Plaintiffs ask for temporary and permanent injunctive relief against the operation of the dairies plus the award of plaintiffs attorneys fees, expert fees and costs.

20 Intent of RCRA legislation - Congress clearly did not intend this result: RCRA excludes the regulation of manure as a hazardous waste, and the State of Washington specifically excludes the management of manure under its definition of a solid waste. - Request for Dismissal Denied. The district court held that plaintiff's allegation that the dairies consistently over applied manure was adequate to allow the case to go forward. Court stated it could not find that the over application of manure could never as a matter of law not potentially be a disposal of solid waste.

21 If the Court finds in Favor of the Plaintiffs. - Dairy operations (not just CAFO s) will be subject to a new set of RCRA regulations. Likely to include; Solid waste landfills are regulated under RCRA Subtitle D. These are extensive regulations. Regulated facilities shall not contaminate groundwater at facility boundary at levels greater than the MCL. This means nitrates must be less than 10ppm. Subtitle D has location restrictions including restrictions on location in wet lands, groundwater monitoring, and corrective action for clean up. There are design restrictions and expansion limitations. New disposal rules for dairies will be complex and expensive. In other words everything included in the Consent Decree with the addition of closure requirements.

22 Protection With a NPDES Permit? - Case law provides that citizens can not sue under RCRA for discharges covered by an NPDES permit. So the NPDES permit provides a permit shield. The NPDES Permit program in the state of Washington had lapsed so the operations did not have a permit. - One unknown is if the shield applies to groundwater discharges. NPDES is a surface water discharge statute. These in effect are groundwater discharges.

23 The Future - Phase I Federal District Court in Washington First trial is slated for September Phase II 9 th Circuit Court of Appeals San Francisco - Phase III U.S. Supreme Court

24 How can YOU Assist - Help us bring awareness to the dairy industry and allied industry. - Amicus Briefs are welcome. Experts with suggestions welcome too. - Financial Support Those currently assisting in funding the legal challenge. - Farmers Cooperative Creamery - Grassland, LLC - Idaho Dairymen s Association IDEAL - Dairy Farm Advocacy Committee - United Dairymen of Arizona - Washington State Agricultural Legal Foundation - Washington State Dairy Federation - Washington Cattle Feeders Association

25 Contact Information

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