An oyster company in Oregon’s Tillamook Bay wants to revive a lawsuit over the addition of food waste to an anaerobic digester that processes cow manure into energy.

The Hayes Oyster Co. accuses the state government of unlawfully modifying the digester’s solid waste disposal permit without ensuring it won’t degrade the bay’s water quality.

According to the company, state environmental regulators can’t legally allow the digester to process food waste along with dairy manure that’s later applied to fields as fertilizer.

“Instead, they just want to hand it over to the farmers and say it’s the farmers’ problem,” said Thomas Benke, the oyster company’s attorney.

A lawsuit over the permit was thrown out earlier this year after a judge determined the oyster company didn’t suffer an injury that would give it standing to pursue the case in court.

Company’s complaint

Hayes Oyster Co. is now asking the Oregon Court of Appeals to overturn that decision and reinstate its complaint against the state’s Department of Environmental Quality.

The company will not otherwise get the opportunity to challenge the fertilizer applications, which is why it must challenge the digester permit, Benke said during oral arguments on Dec. 20.

“The train is leaving the station. That is why we are before you now,” he said. “Oysters ain’t got no legs but Hayes Oyster Co. has standing.”

Due to pollution from fecal bacteria, the company is prohibited from harvesting 250 acres of its oyster beds in the bay and faces restrictions on another 350 acres.

Hayes Oyster has long contended that the department is too lax in regulating discharges from dairies in the region, whose pollution adversely affects the company’s harvests.

Dairy experts and state agencies say the industry is closely regulated and can’t be solely blamed for fecal contamination, since faulty septic tanks and other sources also contribute to pollution in Tillamook Bay.

ODA rules apply

In this case, the oyster company claims the DEQ has unlawfully turned over responsibility for the facility’s byproducts, known as “digestate,” to dairy confined animal feeding operations that don’t fall under its regulatory purview.

“The DEQ is so steeped in its hands-off approach to CAFOs, to agricultural operations, that it does not even recognize its own jurisdiction here,” he said.

The state’s Department of Agriculture has jurisdiction over waste from CAFOs that’s applied to fields as fertilizer, but the Hayes Oyster Co. claims these dairies cannot use food waste byproducts in the same way under the federal Clean Water Act.

“There is no existing permit to place the digestate on the farmed fields,” Benke said. “The agricultural stormwater exception is limited to the application of manure. Food waste digestate is not manure.”

Carson Whitehead, attorney for DEQ, said the use of digestate as fertilizer is managed under a different regulatory scheme than the permit for the digester.

“That is regulated under the agricultural laws and ultimately under the water quality laws,” Whitehead said.

Because the Hayes Oyster company isn’t affected by the digester’s permit, its complaint against DEQ was properly thrown out for lack of standing, he said.

“There’s no line where you can get from the issuance of this solid waste permit to an injury to Hayes Oyster,” he said.

The anaerobic digester’s owner, the Port of Tillamook Bay, simply received a permit from DEQ to accept food waste at the facility, which does not itself discharge pollutants, according to DEQ.

“The Port of Tillamook Bay is not the entity that is distributing the digestate on the fields. Those would be the CAFOs,” Whitehead said.

Similarly, a store that sells motor oil to a consumer is not legally liable if the buyer disposes of it illegally, he said.

“The Port of Tillamook Bay is not responsible for whether the material that comes out of the digester is unlawfully applied in a way that ends up in the water, or if it’s lawfully applied and that discharge to the water is authorized under a permit,” Whitehead said.

Even if the Hayes Oyster Co. did have standing to pursue the case, its legal theories would not hold up in court because DEQ correctly followed environmental rules in approving the permit, he said.

The food waste has low levels of the fecal bacteria that affects oyster harvesting in Tillamook Bay, and the digestate is even less hazardous, Whitehead said.

“The undisputed evidence shows the digester reduces the presence of fecal coliform bacteria by 99% or more,” he said.

Judge dismisses oyster company’s lawsuit over dairy pollution