The Resources Conservation and Recovery Act (RCRA), a law enacted by Congress in 1976 to govern the safe disposal of solid wastes in sanitary landfills, has been misused to inappropriately target agriculture, specifically dairy and livestock producers. In several instances farmers suspected of contributing to high nutrient levels in nearby water supplies have been approached by the Environmental Protection Agency or state agencies to determine the source of nitrates and develop plans to reduce levels. Activists have then obtained that information through Freedom of Information Act (FOIA) requests and other means, and used the information to pursue citizen suits under RCRA against these producers.
RCRA was Never Intended to Regulate Agriculture
There are other statutes farmers are subject to, and even EPA’s original RCRA regulations promulgated in 1979 included exceptions for agricultural byproducts returned to the soil as nutrients. However, in 2015 a federal judge in Washington State found several dairies culpable of “open dumping” under RCRA, deciding that nitrates constitute a “solid waste,” despite the clear intent of Congress and the EPA’s own regulations. It is deeply troubling that this precedent not only opens livestock and dairy producers to unintended regulation under RCRA, but any farmer who uses nutrients on their crops may also be pursued for over-application. This would place our nation’s entire agricultural community in a gray-area of legal uncertainty.
The Farm Regulatory Certainty Act
Rep. Dan Newhouse (R-WA) introduced the H.R. 848, the Farm Regulatory Certainty Act. The purpose of the bill is three fold:
• First, it will reaffirm and clarify Congress’ intent regarding the inappropriateness of subjecting agricultural nutrient management activities to RCRA.
• It will also codify EPA regulations regarding the treatment of fertilizers and agricultural nutrients under RCRA.
• Finally, the legislation will offer increased protection for agricultural operations diligently seeking to address identified issues, and prevent farmers from being targeted twice if they are already engaged in legal action or are making a diligent attempt to work with the state or federal government to address identified issues.
The goal of the Farm Regulatory Certainty Act is to create a legal environment where farmers have a certain understanding of which laws govern their activities and which don’t. The goal of environmental stewardship should be to help farmers improve nutrient management and reduce their environmental footprint, not subject them to lawsuits and put them out of business for their proactive stewardship. We should be creating a culture where farmers can feel comfortable working with state and federal regulatory entities, not resistant and fearful of punitive measures, slowing efforts to identify and treat nutrient management issues.