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Community Association For Restoration of Environment Inc. v. Cow Palace, LLC

United States District Court, E.D. Washington

January 14, 2015

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

For Community Association for Restoration of the Environment Inc, a Washington Non-Profit Corporation, Plaintiff: Brad J Moore, LEAD ATTORNEY, Stritmatter Kessler Whelan Withey Coluccio, Seattle, WA; Beth E Terrell, Blythe H Chandler, Toby James Marshall, Terrell Marshall Daudt & Willie PLLC, Seattle, WA; Charles M Tebbutt, Daniel C Snyder, PRO HAC VICE, Law Offices of Charles M Tebbutt PC, Eugene, OR; Elisabeth A Holmes, Paige Michelle Tomaselli, PRO HAC VICE, Center for Food Safety, San Francisco, CA; Jessica L Culpepper, PRO HAC VICE, Public Justice, Washington, DC.

For Center for Food Safety Inc, a Washington, DC Non-Profit Corporation, Plaintiff: Brad J Moore, LEAD ATTORNEY, Stritmatter Kessler Whelan Withey Coluccio, Seattle, WA; George Andreas Kimbrell, LEAD ATTORNEY, Center for Food Safety, San Francisco, CA; Beth E Terrell, Blythe H Chandler, Toby James Marshall, Terrell Marshall Daudt & Willie PLLC, Seattle, WA; Charles M Tebbutt, Daniel C Snyder, PRO HAC VICE, Law Offices of Charles M Tebbutt PC, Eugene, OR; Elisabeth A Holmes, PRO HAC VICE, Center for Food Safety, San Francisco, CA; Jessica L Culpepper, PRO HAC VICE, Public Justice, Washington, DC.

For Cow Palace LLC, a Washington Limited Liability Company, Defendant: Debora Kathleen Kristensen, LEAD ATTORNEY, Givens Pursley LLP, Boise, ID; Brendan Victor Monahan, Sean A Russel, Stokes Lawrence Velikanje Moore & Shore, Yakima, WA; Jeffrey C Fereday, Preston N Carter, PRO HAC VICE, Givens Pursley LLP, Boise, ID; Mathew Lane Harrington, Olivia E Gonzalez, Stokes Lawrence PS, Seattle, WA.

For The Dolsen Companies, a Washington Corporation, Three D Properties LLC, a Washington Limited Liability Company, Defendants: Ralph Howard Palumbo, LEAD ATTORNEY, Summit Law Group PLLC, Seattle, WA.

For National Cattlemen's Beef Association, Washington Cattle Feeders Association, Washington Cattlemen's Association, American Farm Bureau Federation, Amicus: Svend A Brandt-Erichsen, LEAD ATTORNEY, Marten Law Group PLLC, Seattle, WA.

ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT

THOMAS O. RICE, United States 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 well-drained soil with silt loam surface texture originating from wind blown loess. The subsoil grades from the loess to alluvial deposits, originating from soil erosion in the nearby Rattle Snake Hills, many of which are highly permeable. The combination of well-drained, moderate to high permeability soils with coarse subsoil layers makes ideal conditions for movement of nitrate and other contaminants to groundwater.

ECF No. 223 ¶ 49. Further, EPA gas analyses similarly showed no evidence of denitrification, and its continued monitoring data shows oxygen to be present in all monitoring wells, signifying little chance of denitrification. ECF No. 211-1 ¶ 35. Finally, one of Defendants' experts, Dr. Melvin, concurred that " probably very little" denitrification occurs in the soils underlying Cow Palace. Id. (citing ECF No. 228-1).

In response, Defendants proffer testimony from their soil scientist, Mr. Scott Stephen, who opined soil compacting from large farm machinery used at the Dairy would result in the top one to two feet of soil having the capacity to hold water for long periods of time; in turn, such standing water would create conditions conducive to denitrification. ECF Nos. 256-1 ¶ 35; 256-11. Mr. Stephen concedes that some of the soils underlying Cow Palace are classified as well-drained; however, he maintains that " [w]hile denitrification rates would not be expected to be considerable, the potential does exist." ECF No. 190-10, ex. 9 at 10-11 (opining that that the " choppers and large trucks . . . driven on the fields" results in " compaction layers . . . at depth[s] from 12-18 inches or deeper and can curb water drainage by slowing travel times as it tries to move through the denser zone(s)," which in turn can cause temporary " perched" water where denitrification can occur). Thus, considering all the evidence presented, denitrification is unlikely to occur in the soils underlying the Dairy, and even if the potential exists, the rate of occurrence ranges from " very little" to " not . . . considerable."

2. Dairy Nutrient Management Plan

To help manage Cow Palace's millions of gallons of yearly generated manure, Cow Palace Dairy is required, pursuant to Washington regulations, to obtain a Dairy Nutrient Management Plan (" DNMP" ).[5] ECF No. 211-1 ¶ 41. The Dairy's DNMP was approved in 1998 and subsequently updated in 2008 and 2012 due to increases in herd size and acreage. ECF No. 226-1(COWPAL000459). As stated in the DNMP itself,

[t]he purpose of [the DNMP] is to provide the dairy manager with Best Management Practices (BMP's) for the production, collection, storage, transfer, treatment, and agronomic utilization of the solid and liquid components of dairy nutrients in such a manner that will prevent the pollution or degradation of state ground waters and surface waters.

Id. (COWPAL000467). Specifically, the DNMP aims to prevent contaminated nutrients from entering nearby surface waters and underlying aquifers and to " agronomically recycle the nutrients produced through soil and crops." Id.

The DNMP provides ample guidance on applying manure as a fertilizer in both the body of the plan and its numerous appendices.[6] As an initial matter, the DNMP cautions, in bold, that the " [a]pplication rates discussed . . . are based on the average values listed previously, and may need to be adjusted according to the actual test results." Id. (COWPAL000476) (emphasis in original). The DNMP further explains that the " [a]pplication rates are established by balancing nitrogen with crop nutrient requirements." Id.

First, the DNMP requires the Dairy to test the nutrient content of the manure generated by its herd. Although the DNMP provides an " estimated nutrient content" of the liquid manure, the DNMP explicitly states that " [i]t is required that that the dairy manager test the nutrient residuals in the soil along with nutrient content of the liquid in the storages ponds and solid (dry) manure before land application." Id. (COWPAL000471, -478) (emphasis in original). Under the " Testing Requirements" section, the DNMP requires the following: " Nutrient analysis for all sources of organic and inorganic nutrients including, but not limited to, manure and commercial fertilizer supplied for crop uptake. Manure and other organic sources of nutrients must be analyzed annually for organic nitrogen, ammonia nitrogen, and phosphorus." Id. (COWPAL000478) (emphasis in original). Thus, although the DNMP lists an estimated nitrogen content of 1.51 pounds per 1,000 gallons of liquid manure, the DNMP explicitly requires the Dairy test the nutrient content of the liquid in its lagoons to verify its actual concentration.

Second, the DNMP requires the Dairy to test its soils for residual nutrients. Under the " Testing Requirements" subsection, the DNMP states that " [r]egular testing for soil nutrient availability is essential for proper nutrient management" decision making. Id. (COWPAL000478). According to the DNMP, " [s]oil tests should be completed as close as possible to the time of seeding for best results" and are to be " completed on each field or management group for a starting point for nutrient and manure application recommendations." Id. The testing requirements include an " annual post-harvest soil nitrate nitrogen analysis," and " [i]f double cropping, a spring and a fall test should [be] completed prior to any manure application." Id.

Third, the DNMP instructs the Dairy to consider average crop yields when determining manure application. " When determining agronomic rates for manure application, it is important to choose achievable yield goals. Average yields for the past three to five years for each field should be used." Id. (COWPAL000477). The DNMP specifically lists the primary crops grown on Cow Palace's agricultural fields and provides each crop's nitrogen, phosphorus, and potassium " uptake." Id. However, it is very clear that the uptake amounts are merely estimates, as the DNMP expressly states, again in bold, " [t]hese are guidelines only . . . farmers should vary timing and amounts of application depending on particular soil, crop type, [crop] needs, and weather conditions." Id. (emphasis in original).

Finally, the DNMP provides guidance to the Dairy on application rates. Regarding application specifically, the DNMP notes that " [i]t is critical that the land application of the liquids from the storage ponds be scheduled agronomically throughout the growth period," and that " [t]he proper timing of nutrient application is an essential part of management." Id. (COWPAL000480). The application rate depends, in part, on " infiltration characteristics of the soil," with the DNMP advising the Dairy that its fields predominately contain " a very deep, well-drained [type of] soil." Id. Although the DNMP recognizes the " lag time" regarding the conversion process, it also states that " some nutrients are available immediately" after a manure application, id. (COWPAL000477), and advises that " [c]aution should be taken when applying manure to fields with long histories of manure application," id. (COWPAL000480).

The DNMP summarizes the above guidelines in a list of " Do's" (sic). According to the DNMP, the Dairy should engage in the following practices: (1) " [t]ake manure nutrient concentration into account before applying to crops; " (2) " [t]ake soil nutrient levels into account before applying additional nutrients; " (3) " [a]pply nutrients based on realistic yield . . . goals, based on soils, precipitation, climate, available soil moisture, and yield history for the field; " (4) apply manure during periods of low precipitation and when winds are relatively calm; (5) " [a]void applying manure to bare ground," which " may cause nitrogen to leach into the ground water; " (6) " [s]oil test to determine the proper application of manure and any supplemental fertilizers; " and (7) " [m]aintain a record for each field showing the crop sequence, crop, soil test data, . . . kind and amount of nutrients applied, crop yields, and water applied." Id. (COWPAL000482).

Further, the DNMP provides several appendices to offer further guidance to the Dairy on Best Management Practices, including guidance on calculating agronomic manure application rates. See ECF No. 226-1; see also ECF No. 226-2 (COWPAL000577) (providing a bullet-point guidance sheet, titled " To Insure Proper Utilization, Follow These Guidelines," which similarly instructs the Dairy to " [p]erform a nutrient test of animal waste," " [t]est soils for nutrient levels," " [s]et realistic crop yield goals and apply animal waste to fit crop needs," and " [t]ime the application of animal waste so that neither surface or ground water contamination will occur" ).[7]

Thus, the DNMP provides extensive information and guidance to the Dairy on how to apply its manure in a way that is both most beneficial to its crops and least likely to cause environmental harm.

3. Land Application

One way the Dairy makes use of--or in Plaintiffs view, " gets rid of" --its millions of gallons of manure is by applying it to its agricultural fields as fertilizer. Out of Cow Palace's approximately 800 total acres, 533 acres are used for the application of manure to its crop fields. ECF No. 226-1 (COWPAL000467). After all, if " [p]roperly utilized, the manure generated by Cow Place Dairy has the potential to serve as a fertilizer for its crops. Id. (COWPAL000476).

Jeff Boivin, the general manager at Cow Palace Dairy, characterizes the DNMP as the " blueprint" for how he conducts manure management at Cow Palace and acknowledges that the DNMP contains " reference tools and best management practices" that he helps implement at the Dairy. ECF No. 132 ¶ ¶ 1, 11. Defendants contend Mr. Boivin " engaged in a series of calculations" when applying manure to the Dairy's agricultural fields. ECF No. 190-1 ¶ 49. Plaintiffs, on the other hand, strongly contest that Mr. Boivin engaged in any type of calculation when determining how much manure to apply to the fields. ECF No. 286-1 ¶ ¶ 48-49.

Considering Mr. Boivin's declaration, as well as his deposition testimony, it is clear that characterizing his practices as " engag[ing] in a series of calculations" is a stretch.

First, rather than calculating agronomic rates based on nutrient sampling, the Dairy used the " estimated" figure in the DNMP to determine application rates. ECF No. 211-1 ¶ 68.a (citing ECF No. 228-1); see also ECF Nos. 190-3 ¶ 58; 256-1 ¶ 68.a (admitting that Cow Palace Dairy historically applied manure based on the DNMP's estimate that the manure contained 1.5 pounds of nitrogen per 1,000 gallons, but asserting that it calculated manure applications with reference to manure sampling in 2014 and will continue to do so going forward). However, according to Cow Palace's records,[8] nutrient concentrations in the manure varied widely, with amounts ranging from 1.67 lbs/1000 gallons to 33.7 lbs/1000 gallons. ECF No. 211-1 ¶ 68.a (citing relevant records).

Second, rather than sampling concentrations from the specific impoundment that would be the source of the manure applied, the Dairy would only take sample concentrations from one lagoon. ECF No. 228-1 (" Q: " Just to clarify here, you used the main lagoon nutrient sampling for everything? A: Yes. Q: Regardless of where the application actually came from? A: Yes." ). According to recent sampling under the AOC, nutrient concentrations vary widely from lagoon to lagoon. See ECF No. 211-1 ¶ 68.a. (citing relevant sampling, ECF No. 228-1 (COWPAL009262-63)). Defendants do not dispute that, historically, the Dairy would only sample from the main lagoon, believing it to be representative of the other lagoons because the manure in the main lagoon was used to fill some of the other impoundments to provide for additional storage or application needs; however, in 2014, the Dairy maintains that it took samples from the specific lagoon sourcing the manure and will continue to do so going forward. ECF Nos. 256-1 ¶ 68.a; 256-16 ¶ 11.

Third, the Dairy failed to calculate applications with regard to actual residual manure constituents already present in the fields and available for crop fertilization. ECF No. 211-1 ¶ 68.b (citing ECF No. 228-1). Rather, as Mr. Boivin stated, the Dairy would consider the amount the crop could uptake, according to the DNMP estimates, and merely apply less than that estimate knowing the soil already contained residual levels. See e.g., ECF No. 228-1 (" Q: Sir, is that an over application of manure . . . A: Not sure. Q: Why aren't you sure? A: Because I applied less than what the triticale would uptake . . . Q: But you didn't take into account what was already there, did you? A: Probably not. Q: Probably not or is it no? A: No." ). Furthermore, the Dairy did not take spring soil samples when double-cropping its fields, although as Mr. Boivin admitted, he understood the importance of these samples " to see what that crop utilized." ECF No. 211-1 ¶ 68.b (citing ECF No. 228-1). Defendants contend that the Dairy did take into account residual soil nutrient, as Mr. Boivin explained, by simply applying less manure than the crop was anticipated to need based on the DNMP. ECF No. 256-1 ¶ 68.b.

Plaintiffs cite to several instances in which the Dairy applied considerably more nitrogen than the crop could possible use; for example, in 2012, although soil samples from the top two feet of the soil column showed nitrate levels in excess of what the alfalfa crop could use, the Dairy proceeded to apply 7,680,000 gallons of manure onto the already sufficiently fertilized field. ECF No. 304 at 3. Plaintiffs' expert Dr. Shaw cited numerous similar examples of non-agronomic applications, which resulted in tens of millions of gallons of manure applied to fields requiring no fertilization. See ECF No. 237-2 ¶ ¶ 76-78, 83-84, 101, 107, 109, 133, 144, 145, 149, 155, 157.

Fourth, the Dairy did not calculate application rates with reference to actual yield goals; rather, the Dairy relied upon the basic guidelines for crop removal rates as identified in the DNMP. ECF Nos. 211-1 ¶ 68.c; 228-1.

Q: And, again, you've got at the top triticale at 250 and corn at 250. How did you come up with those numbers?
A: From the Dairy Nutrient Management Plan.
Q: So did you take into account any of the past yields of crops from Field 2 in coming up with that number?
A: Yes.
Q: And there's no variability whatsoever?
A: Yes, there is variability.
Q: So why didn't the 250 number change?
A: Because I use an average of what our crops -- what we get for our crops from our property.
Q: So the average for the last year was such that you didn't need to change the pounds of " N" utilized by the crops?
A: I probably could have changed them.
Q: But you didn't?
A: No.
Q: Tell me about the calculation you would do to figure out how to change that number.
A: Well, I could look at the yields of that field or all our fields and come up with . . . what the yields are expected to get these amount of " N" to be used . . . and then calculate from there.
Q: But you didn't do that here? . . .
A: No, I just used the number that the Dairy Nutrient Management Plan has listed there.
Q: Right the standard --
A: Yes.
Q: - - number.

ECF No. 228-1. Defendants contend they did calculate agronomic rates with reference to yield goals; that is, the yield goals listed in the DNMP. ECF No. 256-1 ¶ 68.c.

Fifth, Mr. Boivin admitted that the Dairy failed to keep track of the amount of irrigation water applied to each field and never produced an annual report, conceding that the only record the Dairy would have is its water bill. ECF No. 211-1 ¶ 68.e (citing ECF No. 228-1). As stated above, irrigation water can cause unused nitrate to migrate through the soil.

Finally, Mr. Boivin testified that on numerous occasions, the Dairy applied manure to " bare ground" --that is, where no crop was planted. Id. ¶ 72 (citing ECF No. 228-1). Plaintiffs' expert Dr. Shaw uncovered even more instances in the Dairy's records. Id. ¶ 73 (citing ECF No. 223 ¶ 29). Defendants do not dispute this practice but explain that it intentionally applied manure before the crop was planted in order to ensure the manure constituents had sufficient time to convert to plant-available nutrients and to avoid damaging crops with the application. ECF No. 256-1 ¶ ¶ 72-32. Further, Plaintiffs highlight several instances in the Dairy's logbooks that suggest the Dairy applied manure to the fields until the lagoon was emptied, presumably, given the timing in late fall in an effort, to prepare for winter storage needs. ECF No. 211-1 ¶ 71. Defendants question how dispositive this evidence is, asserting that the Dairy applied manure according to DNMP guidance and merely noted when the lagoon was emptied. ECF No. 256-1 ¶ 71.

According to Mr. Boivin, the Dairy has followed the same manure management practices, as detailed above, since at least 2003. ECF No. 211-1 ¶ 69 (citing ECF No. 228-1).

In further support of its contention that the Dairy's land application of manure was not agronomic, Plaintiffs provide the following additional evidence. First, post-harvest soil sampling, conducted by both parties, showed consistently high nitrate, phosphorous, and potassium levels. Id. ¶ 77 (citing ECF No. 223 ¶ ¶ 31-40). Specifically, Plaintiffs' samples taken below crop root zones in the 3 to 5 foot range showed very high nitrate and phosphorous levels, which will continue to migrate toward the underlying aquifer.[9] Id. ¶ 77.b; see also ECF No. 305-4 at 4-5 (discussing recent post-harvest soil samples which demonstrate excess concentrations of nitrate in the Dairy's agricultural fields). Second, testimony by Dr. Melvin shows that even Defendants' expert agrees that the Dairy's applications were not agronomic. ECF Nos. 211-1 ¶ 80; 228-1 (" Q: Sir, do you believe that Cow Palace's applications of manure were agronomic? A: Not really. Q: So it is your opinion that they were not agronomic? A: At that time they weren't . . . ." ).

It should be noted that both parties agree that applying more manure nutrients to a crop that already has sufficient fertilizer is unnecessary and/or wasteful and will not necessarily result in a better crop yield. ECF Nos. 211-1 ¶ 79; 256-1 ¶ 79.

4. Lagoon Storage

Cow Palace Dairy stores the millions of gallons of liquid manure generated annually from its herd in a series of earthen impoundments, spanning just over 9 acres, which include four storage ponds, two settling basins, a safety debris basin, and several catch basins (collectively, " lagoons" or " impoundments" ). ECF No. 226-1 (COWPAL000468); see also ECF No. 212 ¶ 16 (citing the EPA report, ECF No. 222-1, which estimates the lagoon surface area at 400,000 square feet, or 9.2 acres). In total, the Dairy has the capacity to store only approximately 40 million gallons. ECF No. 226-1 (COWPAL000468). During winter months, " when application may not be possible" due to environmental conditions, the DNMP estimates the Dairy needs at least 30 million gallons of available manure storage. Id. (COWPAL000474, -475, -479).

The Natural Resource Conservation Service (" NRCS" ), within the United States Department of Agriculture, issues guidance for construction of storage lagoons, such as the Dairy's impoundments. The NRCS standards are merely guidelines, rather than legal requirements governing waste storage facilities. See ECF No. 190-11. Generally, NRCS standards recommend that storage lagoons and ponds be lined with any material, including compacted soil, so long as the lagoon meets certain permeability requirements.[10] ECF Nos. 190-1 ¶ 70; 286-1 ¶ ¶ 69-70. However, when an impoundment is placed above an aquifer--a practice not recommended unless there is no reasonable alternative--the NRCS standards suggest that " additional measures of safety from pond seepage," such as a clay or synthetic liner, should be considered. ECF Nos. 211-1 ¶ 87; 256-1 ¶ 87. Underlying the Dairy's lagoons is an aquifer used for residential drinking water. ECF Nos. 211-1 ¶ 85; 256-1 ¶ 85 (highlighting that the aquifer is 30 to 190 feet below the ground).

Save for one lagoon, Defendants do not have complete documentation for each lagoon.[11] ECF No. 190-1 ¶ 78. However, Defendants admit that none of the Dairy's lagoons have a synthetic liner. ECF No. 181 ¶ 52. Although Cow Palace asserts that SYCD documentation demonstrates that it had a " practice of designing its lagoons and ponds in accordance with guidelines in place at the time," that Laurie Crowe of the SYCD inspected the lagoons and opined that they " appeared " to meet NRCS standards, and the DNMP states the lagoons meet NRCS standards, these assertions cannot be affirmatively established. ECF Nos. 190-1 ¶ 78 (emphasis added); 256-1 ¶ 86; 286-1 ¶ 78. For instance, although Lagoon 1 documentation suggests that the lagoon was " designed to have a bentonite clay liner," ECF No. 190-1 ¶ 80, it cannot be established that it was actually built with a clay liner or that the clay liner was reinstalled when this lagoon was deepened in the 1990s, ECF No. 286-1 ¶ 80.

Conformance with NRCS standards aside, Plaintiffs have also presented evidence that the lagoons are not structurally sound. Although Defendants contend that Cow Palace " actively maintains its lagoons and storage ponds," ECF No. 190-1 ¶ 68, Mr. Boivin testified during his deposition that the lagoons at Cow Palace frequently dry and crack and have been subject to repeated freezing and thawing during the winter months. ECF No. 211-1 ¶ 90 (citing ECF No. 228-1). Further, Plaintiff's expert Mr. Erickson personally observed areas in the Dairy's lagoons that were substantially eroded and impacted by vegetation. Id. ¶ 91. Finally, when drilling nearby monitoring wells, personnel observed " bubbling" in one of the lagoons, which Plaintiffs contend signifies very permeable subsurface and discrete vertical flow paths. Id. ¶ 100; see ECF No. 256-1 ¶ 100 (failing to respond).

Plaintiffs' expert Mr. Erickson provided estimates of leakage for each lagoon. Due to lacking information, Mr. Erickson relied upon the following assumptions when calculating seepage: (1) for liner thickness, a compacted soil liner of one foot, which is the same thickness of the soil liner estimated by Defendants' lagoon expert, Mr. Trainor; (2) for the amount of liquid in each lagoon, a 50% figure; (3) for permeability of the soils compromising the liner, a permeability of 1 x 10-7 cm/s. ECF No. 211-1 ¶ 97 (citing ECF No. 212 ¶ ¶ 24, 27-28). Using Darcy's Law,[12] Mr. Erickson made the following, purportedly conservative, leakage estimates from the Dairy's lagoons: (1) Lagoon 1: 3,830 gallons per day or 460,000 gallons per year; (2) Settling Basins: 564 gallons per day, or 200,000 gallons, per year, per basin; (3) Lagoon 2: 1,018 gallons per day, or 185,000 gallons per year; (4) Lagoon 3: 763 gallons per day, or 91,000 gallons per year; (5) Lagoon 4: 416 gallons per day, or 50,600 gallons per year; [13] (6) N.W. Catch Basin: 831 gallons per day; (7) N.E. Catch Basin: 193 gallons per day; and (8) Pond: 6,777 gallons per day, or 2.47 million gallons per year. Id. ¶ 98 (citing ECF No. 212 ¶ ¶ 28, 34, 39, 43, 48, 64, 69, 74). Thus, according to Plaintiff's expert, the Dairy's lagoons leak, on an annual basis, millions of gallons of manure. Defendants dispute the reliability of these calculations based on the method used and assumptions made. ECF Nos. 256-1 ¶ ¶ 93, 94, 98; 256-8, ex. 6 (Rebuttal report of Defendants' expert, Michael Backe, agreeing that Mr. Erickson's calculations are " theoretically correct, but fundamentally flawed" ).[14] That being said, although the parties dispute the magnitude of leakage, the fact that the lagoons leak is not genuinely in dispute.

Plaintiffs also assert that borings drilled between two of the Dairy's lagoons--borings which found high levels of nitrate at depths as great as 18 feet, as well as ammonium and phosphorus--evidence horizontal seepage between the lagoons and possible impact on groundwater. ECF No. 212 ¶ 57. Although the manure constituent levels dropped below 18.2 feet, they were still present at depths as great as 47 feet. Id. Defendants' expert, Dr. Melvin, acknowledged that this evidence could indicate horizontal seepage from the lagoons and that such seepage could result in " some impact" on groundwater. ECF No. 211-1 ¶ 102 (citing ECF No. 228-1). Defendants dispute the significance of these findings and instead contend that nitrate penetration, although admittedly mobile in nature, is limited to the upper few feet of soil. ECF Nos. 256-1 ¶ ¶ 101-102; 256-3 (Rebuttal report of Defendants' expert, Dr. Melvin, concluding that there is " little or no nitrate leaching vertically to the groundwater that lies some 100 ft. below the basins but there had been some horizontal migration between the two basins" ).

Plaintiffs also presented samples from beneath another dairy's nearby abandoned lagoon to provide further support for evidence of leakage from the lagoons.[15] Plaintiffs advanced two borings, the second one of which was advanced 45 feet, into an abandoned manure storage lagoon, a lagoon of similar design and construction as Cow Palace lagoons and above similar soil. ECF No. 212 ¶ ¶ 77-78. Sampling from these borings evidenced substantial concentrations of nitrate, phosphorus, and ammonium in the first two feet of underlying soil. Id. ¶ ¶ 82-83. While Mr. Erickson noted that levels of nitrate and phosphorus decline after the first two feet, he noted their presence, without other sources of such contaminants, indicates that the Haak Lagoon was a source of contamination. Id. ¶ 86. In addition, Mr. Erickson noted the presence of perched groundwater, which Plaintiffs interpret as providing direct evidence that preferential pathways of contaminate migration exist below the lagoon. ECF No. 211-1 ¶ ¶ 104-105. Defendants interpret this evidence as showing declining concentrations of nitrates and thus minimal, if any, contributions of nitrates to groundwater and further question the significance of the perched groundwater. ECF No. 256-1 ¶ ¶ 104-105.

Although Defendants dispute the rate of seepage and nitrate accumulation around and beneath the lagoons, the parties do not genuinely dispute that both events are occurring. Plaintiffs highlight testimony of Defendants' experts who conceded that the lagoons are " potentially" leaking and contributing " some amount of nitrate" to the environment but refused to admit the leakage was " significantly" contributing to groundwater contamination. ECF No. 211-1 ¶ 106 (citing Trainor deposition, ECF No. 229-2); see ECF No. 229-2 (deposition of Mr. Backe conceding, in response to whether the lagoons leak, that " [e]verything that has a hydraulic conductivity [a.k.a. permeability] term to it implies that there is flow through" and that he has never seen a study showing " there is no seepage from a lagoon" ).

5. Composting & Cow Pen Contamination

Cow Palace composts solid manure on natural, unlined soil. ECF Nos. 190-1 ¶ 91; 211-1 ¶ 108; 212 at ¶ 88. According to the DNMP, Cow Palace generates 35,000 tons of finished compost each year that is used for light orchard application. ECF No. 190-5, ex. 3 at 5. Plaintiffs contend the composting practice allows for manure constituents to seep out of the solid manure into the soil, with the leaching aided by the high moisture content of the manure. ECF No. 211-1 ¶ 109. During his site visit, Plaintiffs' expert Mr. Erickson observed high liquid content of the solid manure being composted. Id. ¶ 109. Plaintiffs' 18-foot core sample of the soil beneath the composting area indicated vertical migration of nitrate, ammonium, and phosphorus. Id. ¶ ¶ 110-11.

In response, Defendants contend that Plaintiffs' sample shows " rapid attenuation" of the manure constituents, and at any rate, the boring was merely advanced to 18 feet, not to the depth of the groundwater. ECF No. 256-1 ¶ 110. Moreover, Defendants justify its composting operation by explaining that it is referenced in its DNMP and is inspected by the Washington State Department of Agriculture. Id. ¶ 108. The DNMP provides that " [a]ny run-off . . . from the stockpiled manure will be controlled at all times by whatever means the dairy manager deems necessary. . ." ECF No. 190-5, ex. 3 at 5. Defendants have not identified any means used to control the wet manure from leaching nitrates straight to native ground during the composting process used to generate 35,000 tons of dried manure.

The Dairy's herd lives and is fed in open containment pens on unlined native soil. ECF No. 190 at 18. Plaintiffs contend such operations allow manure constituents to leach into the permeable soil, which statement they support with sampling conducted by both parties demonstrating high levels of nitrate in the soil underlying the cow pens. ECF No. 286 at 19 (citing ECF No. 286-5 ¶ ¶ 166-69). Although the parties dispute the extent of the contamination in the cow pens, Defendants acknowledge that manure " might seep through the soil surface." ECF No. 190-1 ¶ 90.

6. Evidence of Groundwater Contamination

There is no dispute that the groundwater at or near Cow Palace Dairy is contaminated. Data shows high levels of nitrate contamination, with many of the nitrate concentrations exceeding the maximum contaminant level, 10 mg/L, as established by the EPA. ECF Nos. 211-1 ¶ 113; 213-1, ex. C (summarizing groundwater data). It is Plaintiffs' contention that the nitrate in the manure at the Dairy, when not used by the crops as fertilizer and without conditions conducive to denitrification, migrates deeper into the soil, moving past crop root zones and eventually reaching groundwater. ECF No. 211-1 ¶ 114. As detailed above, Defendants maintain that denitrification is possible in the soils underlying the Dairy; but even if the nitrate continued to migrate, it could take many decades to move through the vadose zone and finally reach the groundwater, if ever. ECF No. 256-1 ¶ 114.

The Dairy, located at the northern end of the Lower Yakima Valley, is bounded to the north by the basalt ridges of Rattlesnake Hills. ECF No. 211-1 ¶ ¶ 26, 30. There are two main aquifer types in the area: one deeper basalt aquifer underlying the sedimentary deposits and the other a relatively shallow alluvial aquifer. Id. ¶ 28. According to the U.S. Geological Service, the deeper aquifer is believed to be semi-isolated from the shallower aquifer, as well as local stream systems, and eventually discharges to the Columbia River. Id. ¶ 28. The shallower aquifer eventually discharges to the Yakima River, id. ¶ 28; however, it is contested where the aquifer and river meet, the amount of water the aquifer contributes to the River, and the water quality of the river at this intersection, ECF No. 256-1 ¶ 28.

The Valley's groundwater is influenced by a variety of sources. Precipitation is the primary source of groundwater recharge in the area, with most natural groundwater recharge occurring in the winter and early spring months. ECF No. 211-1 ¶ 29. Irrigation water, both from irrigation canals and application practices, also influences groundwater recharge, id.; however, Defendants contest whether the Dairy's activities affect the underlying aquifer, ECF No. 256-1 ¶ 56.

Sediments in the region greatly influence groundwater movement, with grain size affecting groundwater velocities. ECF No. 211 ¶ 30. Plaintiffs contend water movement through the sediments tends to follow preferential flow paths composed of coarse sediments; as a result, one well located along a preferential flow path may draw its water from a particular source, whereas a neighboring well, located along a different preferential flow path, may draw its water from a different source that has differing water chemistry.[16] Id.

In support of their contention that Defendants are contaminating the groundwater, Plaintiffs use data generated from the Dairy's AOC. The site model for the project shows nitrate contamination in the groundwater can originate from Cow Palace's unlined manure storage lagoons, manure land applications that exceed agronomic rates, and infiltration from the compost areas and confinement pens. Id. ¶ 114; see ECF No. 223 ¶ 55 (conceptualization of site model).[17] Because of the steep gradient in the topography in the area, which results in high groundwater flow, Plaintiffs focused on data generated from the monitoring wells. ECF No. 211-1 ¶ ¶ 120-24. Plaintiffs examined the following evidence to determine whether the nitrates found in the groundwater are actually originating from Cow Palace Dairy: (1) the presence of tracer chemicals associated with cow manure, such as chloride, sodium, phosphorus, ...


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