Cmty. Ass'n for Restoration of the Env't, Inc. v. Cow Palace, LLC

• Decision Date: 14 January 2015
• Docket Number: No. 13–CV–3016–TOR.,13–CV–3016–TOR.
• Citation: 80 F.Supp.3d 1180
• Court: U.S. District Court — District of Washington
• Parties: COMMUNITY ASSOCIATION FOR RESTORATION OF THE ENVIRONMENT, INC., a Washington Non–Profit Corporation; and Center for Food Safety, Inc., a Washington, D.C. Non–Profit Corporation, Plaintiffs, v. COW PALACE, LLC, a Washington Limited Liability Company, et al., Defendants.

80 F.Supp.3d 1180

COMMUNITY ASSOCIATION FOR RESTORATION OF THE ENVIRONMENT, INC., a Washington Non–Profit Corporation; and Center for Food Safety, Inc., a Washington, D.C. Non–Profit Corporation, Plaintiffs

v.COW PALACE, LLC, a Washington Limited Liability Company, et al., Defendants.

No. 13–CV–3016–TOR.

United States District Court, E.D. Washington.

Signed Jan. 14, 2015.

Brad J. Moore, Stritmatter, Kessler, Whelan, Withey, Coluccio, Beth E. Terrell, Blythe H. Chandler, Toby James Marshall, Terrell, Marshall, Daudt & Willie, PLLC, Seattle, WA, Charles M. Tebbutt, Daniel C. Snyder, Law Offices of Charles M. Tebbutt PC, Eugene, OR, Elisabeth A. Holmes, Paige Michelle Tomaselli, George Andreas Kimbrell, San Francisco, CA, Jessica L. Culpepper, Public Justice, Washington, DC, for Plaintiffs.

Debora Kathleen Kristensen, Jeffrey C. Fereday, Preston N. Carter, Givens Pursley LLP, Boise, ID, Brendan Victor Monahan, Sean A. Russel, Stokes, Lawrence, Velikanje, Moore & Shore, Yakima, WA, Mathew Lane Harrington, Olivia E. Gonzalez, Stokes Lawrence PS, Ralph Howard Palumbo, Summit Law Group PLLC, Seattle, WA, for Defendants.

ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT

THOMAS O. RICE, District Judge.

BEFORE THE COURT are the following motions: Defendant Cow Palace, LLC's Motion for Summary Judgment (ECF No. 190); Defendants The Dolsen Companies' and Three D Properties' Motion for Summary Judgment (ECF No. 191); Plaintiffs' Motion to Exclude Expert Testimony of Scott Stephen (ECF No. 193); Defendant Cow Palace, LLC's Daubert Motion to Exclude Testimony in Reliance on the EPA Report and to Exclude EPA Report Under Rule 403 (ECF No. 200); Plaintiffs' Motion to Exclude Expert Testimony of James Maul (ECF No. 202); Plaintiffs' Motion to Exclude Expert Testimony of Michael Backe (ECF No. 206); Defendant Cow Palace LLC's Motion to Dismiss Under FRCP 12(b)(1) (ECF No. 209); Plaintiffs' Motion for, and Memorandum in Support of, Summary Judgment (ECF No. 211; see ECF No. 234–1 (praecipe)); and Cow Palace, LLC'S Motion to Strike Undisclosed Expert Testimony (ECF No. 237).

These matters were heard on January 6, 2015. Charles M. Tebbutt, Elisabeth A. Holmes, Daniel Snyder, Jessica L. Culpepper, and Blythe H. Chandler appeared on behalf of Plaintiffs. Debora K. Kristensen and Brendon V. Monahan appeared on behalf of Defendant Cow Palace. Ralph H. Palumbo appeared on behalf of Defendants Three D Properties and The Dolsen Companies. The Court has reviewed the motions and the file herein and heard from counsel, and is fully informed.

BACKGROUND

This is a case concerning Defendants' manure management practices and their effect on public health and the environment. Cow Palace Dairy (“Dairy”), located in Lower Yakima Valley, houses a large number of animals and must handle significant amounts of manure generated by its herd. The Dairy manages its manure in a variety of ways, including transforming it into compost and selling it, temporarily storing it in several earthen impoundments, and applying it to agricultural fields as fertilizer.

In February 2013, Plaintiffs commenced the instant lawsuit alleging violations under the Resource Conservation and Recovery Act (“RCRA”).¹ According to Plaintiffs, Defendants' manure management practices constitute open dumping of solid waste and cause an imminent and substantial danger to public health and the environment because when the manure is improperly managed and stored, as well as over-applied to agricultural fields, it is discarded and consequently contributes to high levels of nitrates in underground drinking water. ECF No. 1. In March 2013, the U.S. Environmental Protection Agency (“EPA”) exercised its regulatory power under the Safe Drinking Water Act and entered an Administrative Order on Consent (“AOC”) with Defendants to address the high levels of nitrates found in underground drinking water. ECF No. 38–1.

Presently before the Court are a variety of motions which can be reduced to the following issues: (1) whether Plaintiffs have Article III standing; (2) whether certain evidence, including expert testimony, should be limited or excluded from trial; (3) whether animal waste, when over-applied onto soil and leaked into groundwater, is a “solid waste” under RCRA; (4) whether the Dairy's manure management, storage, and application practices constitute “open dumping” under RCRA; (5) whether the Dairy's manure management, storage, and application practices may cause or contribute to an imminent and substantial endangerment to public health and the environment; and (6) whether Cow Palace, LLC, Three D Properties, LLC, and The Dolsen Companies are all responsible parties under RCRA.

FACTS

A. Cow Palace Dairy

Cow Palace Dairy is located in the Lower Yakima Valley, in Granger, Washington. ECF Nos. 211–1 ¶ 2; 181 at 14. The Dairy can be characterized as a “large concentrated animal feeding operation” (“CAFO”) as defined in relevant state and federal laws. 40 C.F.R. § 122.23 ; Wash. Admin. Code 173–224–030. In 2012, Cow Palace reported its herd size to number over 11,000, with 7,372 milking cows, 897 dry cows, 243 springers, 89 breeding bulls, and 3,095 calves predominately housed in open lot containment pens. ECF Nos. 190–1 ¶ 2; 211–1 ¶ 24; 220–1 (COWPAL002097). The Dairy produces milk, meat, crops, and manure, ECF No. 190–1 ¶ 6; however, Plaintiffs assert the manure “produced” at the Dairy is less of a product than the unwanted byproduct of its primary milk operations, ECF No. 286–1 ¶ 6.

Specifically regarding its manure, the Dairy, like other CAFOs, generates massive amounts of manure from its operation. According to estimates, the Dairy creates, on an annual basis, over 100 million gallons of this substance that must be managed: 61,026,000 gallons of manure-contaminated water from washing the cows and 40,383,850 gallons of liquid manure excreted by the herd.² ECF No. 226–1 (COWPAL000511). Defendants contend the Dairy's manure is a “valuable product” sold and used in a variety of ways both on the Dairy's property and elsewhere. ECF No. 190–1 ¶ 13. The manure is gifted to third parties, allegedly to foster goodwill and deepen commercial relationships; transformed into compost and sold to third parties; and applied to the Dairy's fields to fertilize crops, such as silage corn and alfalfa, which in turn is fed to the herd. Id. ¶¶ 17, 23–25, 27. Plaintiffs, however, question how “valuable” Defendants' manure really is considering it is given away for free to third parties, over-applied to fields, stored in lagoons that leak, and managed on permeable surfaces that allow its constituents to freely leach into the soil. ECF No. 286–1 ¶ 13.

1. Manure and the Nitrogen Cycle

The parties strongly debate whether the Dairy's manure management practices are contributing to the high concentrations of nitrate found in the groundwater. Central to this debate is the nitrogen cycle; specifically, the process by which manure constituents convert to nitrates in the soil.

The nitrogen cycle is well-documented and understood; however, it is affected by many environmental factors, which can be roughly predicted and estimated, but not controlled. ECF Nos. 190–1 ¶¶ 36–37; 211–1 ¶ 32; 256–1 ¶ 32. Manure contains organic nitrogen and ammonium. Although influenced by certain conditions—such as soil temperature, moisture-content, and oxygen-content—some of these manure constituents are converted to nitrate.³ ECF Nos. 190–1 ¶¶ 31–34; 211–1 ¶¶ 33, 38–39; 256–1 ¶ 33. Nitrate, as well as ammonium, is available to plants as fertilizer, providing important and beneficial nutrients. ECF Nos. 190–1 ¶¶ 31–34; 211–1 ¶¶ 33, 38; 256–1 ¶ 33. Although some nutrients are immediately available to plants, a “lag” between the time the manure is applied to the soil and when its nutrients decompose and become available for crop use is expected. ECF No. 256–1 ¶ 39; see ECF No. 226–1 (COWPAL000477). Further, at low temperatures, the conversion of manure constituents to nitrate slows or stops. ECF Nos. 256–1 ¶¶ 33, 39; see 211–1 ¶¶ 33, 39 (noting that ammonium converts if soil temperatures are above four degrees centigrade and that the mineralization and nitrification process slows when soil temperatures drop below fifty degrees Fahrenheit).

Once converted, nitrate is a highly mobile element to the extent there is sufficient water in the soil to transport it. ECF Nos. 211–1 ¶¶ 32, 39; 256–1 ¶ 32. Accordingly, because of its highly mobile nature, any residual nitrate not consumed by plants is susceptible to leaching deeper into the soil from irrigation, precipitation, snowmelt, and additional manure applications. ECF Nos. 211–1 ¶ 33; 256–1 ¶ 33 (acknowledging that nitrate is highly mobile and can move through soil with sufficient water to transport it). Once nitrate has leached below the root zone of crops, it will, with the presence of water to transport it, continue migrating downward, toward groundwater.⁴ ECF Nos. 211–1 ¶ 34; 256–1 ¶ 34; see ECF No. 211–1 ¶ 37 (citing the deposition of Defendants' expert, Dr. Melvin, ECF No. 228–1, who agreed that nitrates below root zones will “eventually” reach groundwater and that, with sufficient rainfall, manure applications “will probably leach through the system before you ever get the plant to grow into that root zone”). That is, however, in the absence of conditions suitable to denitrification: the process by which nitrate is converted to nitrogen gas. ECF No. 211–1 ¶ 34.

The parties dispute whether the conditions underlying the Dairy are conducive to denitrification. In support of their assertion that denitrification is unlikely to occur, Plaintiffs put forth evidence of the soil types underlying Cow Palace, with the predominant soil type presenting little potential for any loss of nitrate through denitrification. Id. ¶ 35. Plaintiffs' expert, Dr. Byron Shaw, stated the following regarding the soils underlying the Dairy:

The dominant soils in the area of Cow Palace include the Warden soil series, which is characterized as a

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