Manure Rulings Stink for Farmers
Originally published in Michigan Farm News, February 2015
Historically, the agricultural industry has not been the focus of stringent enforcement by environmental agencies. Presumably, regulators did not subject the agricultural community to the same level of scrutiny as industrial facilities because farms and food processing facilities do not typically use industrial chemicals. That trend has changed and over the last decade environmental agencies and environmental advocacy groups have both targeted farms and food processing facilities. Most recently, manure storage and land application has come under fire.
Recently, in Community Association for Restoration for the Environment (CARE) v. Cow Palace, LLC, the U.S. District Court for the Eastern District of Washington found that manure stored at a dairy was regulated as "solid waste" pursuant to the Resource Conservation and Recovery Act ("RCRA"). While manure storage and application is generally exempt from regulation as solid waste, the Court found that any such exemption was limited to circumstances where manure is returned to the soil as a fertilizer. In other words, any over-application of manure (in excess of quantities necessary for nutrients) or uncontrolled lagoon storage would arguably be subject to solid waste regulations promulgated under RCRA. Obviously, such a regulation would impose yet another regulatory burden on farms. This decision has reportedly been appealed to the Ninth Circuit; however, in the meantime this decision may open the door for environmental agencies and advocacy groups to pursue RCRA enforcement and/or citizen suit claims against farms.
In another recent decision, Wilson Mutual Ins. Co. v Falk (Wis. 2014), the Wisconsin Supreme Court held that manure is a "pollutant" under a farm insurance policy. In that case, the Falks sought coverage under a farm insurance policy when neighboring property owners alleged that their wells had been polluted by runoff from land application of manure from the Falk's dairy farm. Wilson Mutual Insurance Company denied coverage under the insurance policy (which provided coverage for property damage) citing an exclusion from coverage for "pollutants." In an ensuing lawsuit, the Wisconsin Supreme Court ultimately agreed with the insurer and found that manure fell within the pollutant exclusion provisions of the policy. While this decision is not controlling in Michigan, the same reasoning could be applied in Michigan courts. Thus, farmers should not assume that their general insurance policies will provide coverage for property damage relating to manure storage.