You Can Cry Over Excess Milk, But Don’t Dump It

As restaurants, hotels, and other food supply businesses have closed or cut back their operations in response to the novel coronavirus pandemic, the demand for milk and other dairy products has decreased. According to dairy industry estimates, restaurant closures and other disruptions have left suppliers with up to 10% more milk than can be used or sold. As a result, farmers across the country with milk and other dairy products they cannot sell have been forced to dispose of the excess as waste. There are news reports of these producers breaking eggs, dumping milk down the drain or on the ground, or disposing of this excess product in manure pits or holding ponds.

While it may be tempting to simply open the taps and dump excess milk down the drain or on the ground, that would be as illegal as it is to dump excess beer down the drain – a fact which has been recognized by large breweries now dealing with the problem of what to do with millions of gallons of beer that is going stale due to COVID-19 related stadium, concert, and festival cancellations. Numerous state and federal laws regulate the disposal of dairy waste, and any unpermitted disposal of dairy waste in drains, waterways, or even on land runs afoul of these laws.

For instance, in Colorado, there are two primary programs at the Colorado Department of Public Health and Environment (CDPHE) that regulate the disposal of dairy waste at farms and other dairy production facilities: (1) the Water Quality Control Division (“water division”), which oversees the regulation of discharges of pollutants to state waters pursuant to its federally delegated authority to administer the federal Clean Water Act (CWA) in Colorado; and (2) the Hazardous Materials and Waste Management Division/Solid Waste Unit (“solid waste unit”), which oversees the regulation of the solid waste storage and disposal activities at these facilities pursuant to its authority under the federal Resource Conservation and Recovery Act (RCRA). Most states have similar programs, and in states where there is no delegated authority under one or both of these programs, the U.S. Environmental Protection Agency (EPA) has jurisdiction over these facilities.

The Colorado Water Quality Control Act, implemented by the water division, prohibits the discharge of any pollutant through a point source (e.g., a pipe, ditch, channel, conduit, etc.) into state waters (e.g., rivers, streams, lakes, ponds, groundwater, etc.). See C.R.S. § 25-8-501. Milk and other forms of dairy waste are considered pollutants under these laws and cannot be discharged either directly into a state water or indirectly through stormwater runoff from the land into state waters. The reason for this is that when large volumes of milk break down in waterways, it creates a high biological oxygen demand (BOD) that can kill fish and other species living in these waters. As a result, if milk producers open up their holding tanks and let milk run out onto the ground, and that milk makes its way through a storm drain, ditch, or even a small natural channel to a state water, either directly or indirectly through stormwater runoff, the producer could be subject to significant fines for an unpermitted discharge or even criminal enforcement actions.

These products also cannot be dumped down the drain because this same water quality program regulates the discharge of non-domestic waste into publicly owned treatment systems (e.g., municipal sewer systems) under the “pretreatment” program requirements. See C.R.S. § 25-8-508. These requirements are designed to ensure that non-domestic wastewater, when discharged into a public sewer system, receives some level of “pretreatment“ so that the receiving treatment plant is not overwhelmed and can effectively and safely remove the volume and type of pollutants it receives.

Even disposal directly on a farmer’s land is regulated by the state solid waste unit. Milk and other dairy products are considered “solid waste” under the state solid waste regulations. As such, land disposal of these products is prohibited except at a site that has received a “certificate of designation” as a solid waste disposal facility from the applicable local government. See C.R.S. § 30-20-102. While the statute allows a person to dispose of his or her own personal solid waste on their own land, the disposal must still comply with the state solid waste rules and cannot result in the creation of a public nuisance. Id. In the case of commercial dairies, this exception does not apply. Moreover, the risk of creating a nuisance from any large quantity land disposal is high, as the off-gassing from the milk breakdown process can create a strong stench that impacts nearby landowners and communities. Additionally, land disposal creates a risk of an unpermitted discharges to state waters as discussed above.

While EPA issued an enforcement discretion policy in March 2020 providing that the agency would exercise enforcement discretion in certain circumstances for noncompliance with certain environmental laws that result from the COVID-19 pandemic, it is unlikely that the policy would provide leniency for the illegal dumping of dairy waste. As an initial matter, the policy does not apply to violations of waste disposal requirements under RCRA and equivalent state laws. In addition, the policy requires regulated entities to make every effort to comply with all applicable requirements and to work with governing state agencies to find solutions to the compliance concerns. In Colorado, the state has made it clear that it will work with the regulated community to find legal, workable solutions to environmental problems that arise during the pandemic. And with respect to excess milk and other dairy products, producers always have the option to transport excess supply to licensed solid waste disposal facilities rather than dumping these products on the ground.

If you have any further questions, please contact Laura Riese or Michelle DeVoe.