Legal Liability Aspects Of Manure Applications - Dr. Peggy Hall, Ohio State University Extension, from the 2018 Conservation Tillage and Technology Conference, March 6 - 7, Ada, OH, USA. More presentations at https://www.youtube.com/channel/UCZBwPfKdlk4SB63zZy16kyA

1. Legal Liability Aspects
of Manure Applications
Peggy Kirk Hall, Asst. Professor
OSU Agricultural & Resource Law Program

3. “Nutrient pollution from row crop
agricultural operations, a by-product of
excess manure and chemical fertilizer
application, is the source of many local and
downstream adverse nutrient-related
impacts.”
“Current livestock agricultural practices are
one of the largest sources of nutrient
pollution to our nation’s waters.”
An Urgent Call to Action: Report of the State-EPA
Nutrients Innovations Task Group, August 2009

4. Litigation Strategies
Clean Water Act
NPDES Permit
Process
Safe
Drinking
Water Act
Resource
Conservation
& Recovery
Act
Clean Water
Act
Applicability

5. Care v. Cow Palace

6. CARE v Cow Palace
2015 U.S. Dist. LEXIS 4514 (E.D. Wash. Jan. 14, 2015)
Resource Conservation and Recovery Act (RCRA)
– Federal law governing the disposal of solid and
hazardous waste.
RCRA exception for agriculture:
– RCRA does not apply to agricultural wastes,
including manures and crop residues, returned to
soil as fertilizers or conditioners.

7. CARE v Cow Palace
Plaintiffs’ arguments:
1. Dairy’s manure management practices
constitute open dumping of solid waste that
cause an imminent and substantial danger to
public health and the environment.
2. When manure is improperly managed and
stored, as well as over-applied to agricultural
fields, it is discarded and not returned to the soil
as fertilizer or soil conditioners.

8. CARE v Cow Palace
Court’s holding: Dairy’s manure was improperly
managed, stored and “discarded” in three ways:
1. Over-application
– Application was “untethered to the NMP and made
without regard to fertilization needs of their crops.”
– Land application of manure was not “useful” or
“beneficial” but was an effort to discard excess supply.
– Dairy failed to account for residual manure already
present in the soil when determining how much
manure to apply.

9. CARE v Cow Palace
2. Lagoon storage
“The consequence of such permeable storage
techniques converts what would otherwise be a
beneficial product into a solid waste because the
manure is knowingly abandoned to the underlying
soil.”
3. Compost area
“Unlined composting surfaces converts what would
otherwise be a beneficial product into a solid waste
because the manure is knowingly abandoned to the
underlying soil.”

10. CARE v Cow Palace
Court granted summary judgment motion in
favor of CARE, allowing case to proceed.
“There can be no dispute that the Dairy’s
operations may present an imminent and
substantial endangerment to the public
who may be consuming the water.”

11. Cow Palace Settlement Terms
• Manure application restrictions
• Lagoon lining
• Groundwater monitoring
• Underground conveyance inspections
• Concrete aprons
• Water/RO for residents
• Fund clean drinking water project
• Attorney fees

12. Creative Legal Strategy
• Washington dairy RCRA cases began as Safe
Drinking Water Act investigations.
• Plaintiffs used information gathered by U.S.
EPA in these investigations to file RCRA
lawsuits.

13. Safe Drinking Water Act
A citizen may petition EPA to use its emergency
powers to issue orders and commence civil action if:
(1) a contaminant likely to enter a public water
system or underground source of drinking water
poses a substantial threat to public health, and
(2) state or local officials have not taken adequate
action to protect health.

15. Manure Liability under Ohio Law
• Permit violations by CAFFs
• Agricultural Pollution Abatement Program
– ODA, through SWCD
• Ohio Water Pollution Control Act and Ohio
Stream Litter Act
– OEPA
• Ohio Wildlife Takings Law
– ODNR

16. Liability for Violations
• Civil or criminal fines and/or imprisonment
– Misdemeanor charges
• Remediation costs
• Investigation costs
• Payment of minimum value of animals lost

17. Who is the Liable Party?
• The landowner?
• The custom applicator?
• The tenant farmer?
• The livestock operator?
• The employee?
1. Look to the
statute
2. Look to the
parties’
relationship
and
arrangement
3. Look to the
facts

18. Manure and Insurance
Dolsen Companies v. Bedivere Insurance
• Absolute pollution exclusion clause allowed
insurer to refuse to indemnify Cow Palace.
• Manure = pollutant
• And Insurer had no duty to defend since
event was not covered by policy.
Similar decisions in Minnesota, New York and
Iowa.

19. OSU Agricultural & Resource Law Program
Lawyers helping agriculture grow
aglaw@osu.edu
http://farmoffice.osu.edu
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