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January 23, 2015 CapitalPress.com 3 Idaho case could impact dairies nationwide Capital Press A ruling by a federal judge in a lawsuit alleging a Yaki- ma, Wash., dairy violated the Resource Conservation and Recover Act could have sig- nificant implications for dairy operations nationwide. U.S. District Judge Thom- as Rice, on Jan. 14, applied the federal law governing the disposal of solid waste and hazardous waste to manure handling, an application that has never been assigned in RCRA’s near 40-year history. The ruling could change the way dairies and other livestock operations handle, store and apply animal waste, requiring practices that could prove economically unviable. In denying Cow Palace Dairy’s motion for summary judgment in its favor, Rice ruled its storage, handling and application of manure, which allowed nitrate to leak into soils and contributed to groundwater contamination, constitutes “open dumping” of “solid waste” that may present an “imminent and substantial” danger to the public, in violation of RCRA regulations. The lawsuit brought by Community Association for Restoration of the Environ- ment and the Center for Food Safety in February 2013 is not the first to allege livestock op- erations violated RCRA, but it is the first ruling to apply RCRA to manure, said lead attorney for Cow Palace, Deb Governor seeks to expand Oregon’s GMO authority Farm regulators could establish ‘control areas’ for biotech crops By MATEUSZ PERKOWSKI Capital Press A bill proposed by Or- egon Gov. John Kitzhaber seeks to expand the authority of state farm regulators over genetically en- gineered crops. Until now, the Oregon Department of Agriculture’s power to reg- ulate geneti- cally modified Kitzhaber organisms ended when the USDA lifted federal restrictions on them. Legislation introduced at Kitzhaber’s request — Sen- ate Bill 207 — would allow the department to establish “control areas” to separate biotech crops from organic and conventional crops if the agency determines it’s “nec- essary to avoid conflicts” from cross-pollination. Under state law, control areas are intended to protect crops from pests, diseases and noxious weeds. The ODA can create con- trol areas for biotech crops if the USDA regulates them as potential plant pests, but the state agency loses the authority once they’re deter- mined not to pose that risk. However, lawmakers have specifically allowed ODA to extend that control area authority to canola. Seed farmers in Oregon’s Willamette Valley fear that canola could cross-pollinate with related crops and ruin their market. SB 207 would amend that statutory language to include control area authority for ge- netically engineered crops. The proposed bill re- quires the agency to specify the types of crops that are regulated within the bound- aries of control areas or ex- cluded from them. ODA must be “reason- able and just” in how it uses the authority and conduct a “careful investigation” be- fore creating control areas, according to the bill. Oregonians for Food and Shelter plans to oppose the legislation in its current form, said Paulette Pyle, grass roots director for the agribusiness industry group. ODA’s control area au- thority was intended for managing diseases and pests, not biotech crops, she said. “For now, it’s a no go for us,” Pyle said. “Right now, we don’t see any need for it.” Kitzhaber likely proposed the bill to assuage GMO crit- ics who opposed legislation he introduced in 2013 that pre-empted most local gov- ernment from regulating ge- netically engineered crops, she said. “He’s trying to make the organic folks feel protect- ed because they feel like they’re not right now,” Pyle said, noting that any bill will be subject to amendments. “We’re all going to be in- volved.” Richard Whitman, Kitzhaber’s natural resourc- es policy director, said he’s still consulting with mem- bers of the governor’s task force on genetic engineering and other industry stake- holders about GMO legisla- tion. The final language of the bill hasn’t yet been nailed down, but the basic con- cept is to create a voluntary process to resolve conflicts between farmers who grow organic, conventional and biotech crops, Whitman said. The system would not be foisted upon growers with- out their agreement, he said. “It’s not really trying to dictate a particular result,” Whitman said. “That should be dictated by the people on the ground.” Friends of Family Farm- ers, which supports stronger biotech regulation, believes it would be a good idea to make clear that ODA retains the ability to create control areas for genetically engineered crops after they’re deregulat- ed by USDA. “That seems like an im- portant clarification of the agency’s authority,” said Ivan Maluski, its policy director. Maluski said he can’t comment on a possible vol- untary coexistence process for growers of biotech, or- ganic and conventional crops because he has not seen the actual legislative language. Any coexistence measures between farmers are already voluntary, he said. “I’m not sure how it would be differ- ent from the current system.” Kristensen of Givens Pursley, a Boise law firm.. She said manure was nev- er intended to be covered un- der RCRA, which has been around since the ‘70s. EPA has never gone after a farm or dairy under RCRA, and the application of RCRA to manure has never before pre- vailed in court, she said. “This is the first case that says that can happen,” she said. “It’s a precedent-setting case,” said Bob Naerebout, executive director of Idaho Dairymen’s Association. The application of RCRA to manure could impact live- stock operations nationwide, regardless of size. Kristensen agrees, saying attorneys for environmental groups are likely looking at the judge’s ruling and deter- mining “who they can go af- ter.” Rice ruled that RCRA does not apply to agricultural wastes to the extent the wastes are “returned to the soil as fer- tilizer or soil conditioners.” Manure applied as fertilizer is not considered “discarded materials” under the act. But, he noted that in ear- lier rulings “this court found that manure could plausibly be considered ‘solid waste’ — as a legal matter — when it is over-applied to fields and managed and stored in ways that allow it to leak into the soil because at that point, the manure is no longer ‘useful’ or ‘beneficial’ as a ‘fertiliz- er.’” Rice ruled that Cow Pal- ace’s over-application of ma- nure to fields, untethered to the dairy’s nutrient manage- ment plan and without regard to the fertilization needs of the crops, transforms the manure to a “solid waste” without a beneficial use and constitutes a discard of the manure. Rice also ruled the dairy’s leaking lagoons — even as- suming they were constructed pursuant to Natural Resources Conservation Service stan- dards, which allow for per- meability — convert what otherwise would be a benefi- cial product into a solid waste under RCRA because the ma- nure is knowingly abandoned to the underlying soil. Likewise, Rice ruled ma- nure in the dairy’s unlined compost area is a discarded solid waste under RCRA, leaching nutrients into the soil and not being used for its ben- eficial purpose as a fertilizer. “Accordingly, a reasonable trier-of-fact, given the evi- dence presented, could come to no other conclusion than that the dairy’s operations are contributing to the high nitrate levels that are current- ly contaminating — and will continue to contaminate as nitrate present below the root zone continues to migrate — the underlying groundwater,” Rice ruled. Trial is set for March 23 and will primarily ad- dress remedies, impacts to surface water and the de- gree of liability of various defendants. High-tech cherry lines to keep growing By DAN WHEAT Capital Press WENATCHEE, Wash. — The West Coast cherry industry has been revolution- ized by electronic sizers and sorters in the past two years and packers will install many more in the next two years, a leading manufacturer says. “I’m more than 25 years in this business and I’ve never seen such a revolution in any other commodity in which we work. This is very fast,” said Luca Montanari, vice president of Unitec, Lugo, Italy. Montanari spoke to sever- al hundred tree fruit growers at the North Central Wash- ington Stone Fruit Day at the Wenatchee Convention Cen- ter, Jan. 20. The rush to high-tech pack- ing lines for cherries is be- cause they pay for themselves in about three seasons and in the long run make packers a lot more money than conven- tional sizers, Montanari said. It takes half the workforce to operate an electronic sys- tem at 18 tons per hour than a traditional system, saving $847,000 in a season, he said. Another $756,000 is saved by more accurate sizing of fruit since there’s a wider dif- ference in price between sizes in cherries than other fruit, he said. But even greater savings is realized by improved quality of reduced bruising and better appearance with longer shelf life, he said. Those savings are harder to quantify and not readily shared by packers, he said. The computerized elec- tronic system takes multiple images of each piece of fruit within fractions of seconds and sorts for size, color and internal and external defects. It detects softness and sugar content inside a cherry that the human eye cannot see. The result is a more consistent pack, adjustable for size and quality. Unitec’s system has patent- ed rotation of each cherry for better imaging in sizing and sorting. Unitec has installed 1,025 red and Rainier cherry lines throughout the world. The first electronic cherry sizer was installed in Spain in 2002, Montanari said. The first in Chile was in 2006 and the first in the United States was in 2012, he said. The systems have been steadily improving and ex- panding. OG Packing in Stockton, Calif., added 32 4-2/#17 By CAROL RYAN DUMAS Dan Wheat/Capital Press Cherries ride conveyors into Unitec electronic sizer and defect sorters “the big blue units” at Washington Fruit & Produce’s new cherry packing plant in Yakma, Wash., June 13. lanes to a 40-lane Unitec electronic system a year ago, making it the largest in the world. Northern Fruit in East Wenatchee installed the first in Washington state in 2012. Stemilt installed one in 2013 and added a second in Wenatchee and one at its plant in Stockton in 2014. “This year, we deliver a 40-lane system to Starr Ranch Growers in Wenatchee and they already have a 20-lane system,” Montanari said. Beside Unitec there are at least three other manufactur- ers who have installed about two dozen electronic systems for numerous West Coast cherry packers. Unitec has in- stalled half or more of them, said B.J. Thurlby, president of Northwest Cherry Growers, an industry trade association in Yakima. A traditional bin dumper is much rougher on cherries than bin dumpers in the new systems, Montanari said. Gentler drops of water flumes carrying the cherries through the first part of the packing line also reduces bruising, he said. The best mechanical sizer can have up to a 25-percent error rate while electronic siz- ing has 1 to 4 percent errors, he said. Human sorters get tired and miss defects while the elec- tronic eye does not, he said. In 2014, Chile exported 85,000 tons of cherries with 95 percent of them electron- ically sized and sorted, Mon- tanari said. Total U.S. produc- tion was 326,000 tons in 2014 with 60 percent electronically handled, he said, predicting 330,000 tons and 70 percent for 2015. 4-4/#6