Summary of a Recent
Judicial Development in
Animal Feeding Operations

Dairy Farm Must be a "Significant Contributor" of Pollution to be Subject to
Penalties Under Washington State Pollution Control Laws

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Department of Ecology v. Douma, 193 P.3d 1102 (Wash. Ct. App. 2008), the Washington Court of Appeals held that a dairy that is not determined to be a significant contributor of pollution is not subject to penalties under state water pollution control regulations.

Background

Dairy farmers pumped their waste into an unlined trench on land they leased from the state, and the Washington Department of Ecology fined them $53,000 for discharging pollutants into state waters pursuant to RCW 90.48.080 and 90.48.144. Id. at 1103. The penalty had two components: the "gravity" portion was $40,000, and the "economic benefit" portion (calculated to recover any economic benefit the violator gained) was $13,000. Id. at 1105. Upon review, the Pollution Control Hearings Board (PHCB) reduced the economic benefit portion by 50%, and suspended $10,000 of the gravity component on the condition that the dairy farmers obtain technical assistance to review their dairy nutrient management practices and abstain from committing any water quality violations for two years, and both the farmers and the Department of Ecology appealed. Id.

Arguments

The Department of Ecology argued that the PCHB could not reduce or add new conditions to a penalty imposed by the Department unless the PCHB concluded that the Department's penalty determination was incorrect in a particular respect. Id. at 1106-07.

The dairy farmers argued that the legislature had determined that dairies were to be treated differently than other entities and that they could not be subject to RCW Ch. 90.48 enforcement provisions without a finding that they were a "significant contributor of pollution" under RCW 90.64.030(6). Id.

Analysis and Holdings

RCW 90.48.080 prohibits allowing matter that causes or tends to cause pollution to seep into state waters. Id. at 1107. RCW 90.64.030(6) states that a dairy that is a "significant contributor of pollution" is subject to the enforcement provisions of Ch. 90.48. Id. The appellate court found that the Department of Ecology's argument that the PCHB could not alter the imposed penalty was erroneous and taken out of context from another RCW provision. Id. at 1107-08. The court further held that the Department must first determine that a dairy is a "significant contributor of pollution" before it can hold a dairy liable for an RCW water quality violation, which it did not do in this case. Id. at 1108. However, the court affirmed the dairy farmers' liability because there was overwhelming evidence presented showing they were a "significant contributor" of pollution. Id. ( 21-27, unpublished portion). The court further found that the Board's suspension of a portion of the gravity component of the penalty was reasonable and proper, but remanded for further findings regarding its reduction of the economic benefit portion because the Board had not sufficiently specified a basis for the reduction. Id. ( 44-49, unpublished portion).

The case was decided on October 14, 2008.