Dairies facing lawsuits over pollution allegations
February 21, 2013
"This is a great example that no good deed goes unpunished," is how Matt Steuerwalt of Strategies 360 describes lawsuits brought last week against four local dairies.
Steuerwalt is a spokesperson for Seattle-based Strategies 360, which is working in conjunction with attorneys representing the dairy families.
The "good deed" Steuerwalt references is the voluntary cooperation by all four dairies - Liberty-Bosma, Cow Palace, D&A and George DeRuyter and Sons - in allowing the EPA to come on to their properties for a groundwater study.
The study's results were released last September and claimed dairies are responsible for 65 percent of nitrate-tainted groundwater in the Lower Yakima Valley.
It's a hot-button issue, as EPA studies show about 20 percent of the wells in the Lower Valley's rural areas have nitrate levels that exceed federal safety guidelines.
Last September's study is now being used against the dairies who participated in it, according to lawsuits filed last week by Outlook-based CARE (Community Association for Restoration of the Environment) and the Center for Food Safety from Washington D.C.
"Every day, in every aspect of our lives, people in the Yakima Valley are directly impacted by pollution from these industrial dairies," claimed Helen Reddout of CARE in a statement announcing the lawsuits. "EPA's study confirmed our long-suspected fears. It is time for these operations to take responsibility and stop dumping their problems on us taxpayers to deal with."
Reddout serves on a county groundwater advisory committee that includes representatives from the dairy industry.
The complaints allege violations of the Resource Conservation and Recovery Act's imminent and substantial endangerment and open-dumping provisions.
The complaints also allege reporting violations of the two federal statutes: the Emergency Planning and Community Right-to-Know Act and the Comprehensive Environmental Response, Compensation, and Liability Act. These statutes require the dairies in question to report the release of certain hazardous airborne pollutants, including ammonia, to various state and local agencies. The lawsuit seeks civil penalties against the dairies and a court order requiring the dairies to clean up the pollution and stop their alleged illegal practices.
The problem with these allegations, counters Steuerwalt, is the EPA study is faulty research. He says state and federal officials have questioned the EPA's science in its groundwater survey of the dairies.
"It's a much less certain document than you would expect," Steuerwalt says.
The EPA's study itself notes that dairies are a "likely" source of pollutants but stops short of naming them as absolute sources.
When the study was unveiled last September at a press conference in Granger it was met with criticism by all sides, including environmentalists and ag industry representatives.
Charlie Tebbutt of Eugene, Ore. is the lead attorney for CARE and the Center for Food Safety in pursuing lawsuits against the four dairies. He says the civil standard for taking a case to court is based on a "more likely than not scenario." He says the EPA's indication that dairies are likely sources of pollution is sufficient. Further, he says the case is not based just on the EPA study.
Further, he points out the dairies did not comply completely with the EPA's request for information during the study.
For example, Tebbutt says there was soil and groundwater testing the EPA sought and was denied. During its presentation of the study last September, EPA officials at the time also noted the dairies declined to provide information about how they lined their lagoons.
"This issue has been known for more than a decade," Tebbutt says. "There's a larger story line here."
He claims dairies have long conducted harmful practices such as over-applying manure and operating leaky lagoons that allowed contamination to seep into the groundwater.
"Those lagoons are designed to leak, so of course they are polluting. It's just a question of how much," he contends. Tebbutt further alleges that dairies "do everything they can to dispose of manure at the least cost and in the process they put the problem on the back of the community."
In documentation related to last week's lawsuit, Tebbutt states the four dairies - called a "cluster" by the EPA for their close proximity to one another - have a combined surface area of 32 football fields for manure storage and allegedly leak between 3.3 and 39.6 million gallons of manure into the soil each year.
However, at least one of the dairies named in the lawsuit, DeRuyter and Sons, has taken steps to mitigate the manure problem.
Five years ago it installed a $4 million digester to process manure and convert methane gas for electricity. The dairy has also gone green by converting processed manure into an environmentally friendly peat moss. Dan DeRuyter operates the dairy and could not be reached for comment.
Steuerwalt points out that dairies named in the lawsuits have a stake in clean groundwater, too, because - like the DeRuyters - they are not corporations, but local families.
"These are fathers and sons who own and operate those dairies," he says. "They're all active community members in schools, churches and civic activities."
He adds the dairies have been working in cooperation with the EPA since the study's release last September.
CARE and the Center for Food Safety continued with lawsuits this week as just yesterday, Wednesday, they filed suit against R.M. Haak & Sons Dairy near Sunnyside on allegations similar to those filed against the other four dairies.
Tebbutt contends Haak & Sons, which also participated in the EPA study, leaks between 482,000 and 5.9 million gallons of manure annually.
"It's the same issue, just a different place," Tebbutt says of the Haak dairy's location about two miles from the "cluster" of four dairies sued last week.
Tebbutt confirmed that not all of the five dairies have yet been served with papers, and that they will have 20 days to file a response from the time they are served.
He says it could take a year-and-a-half to two years for the suits to reach federal district court in Yakima or the Tri-Cities.
Tebbutt also hinted lawsuits may not stop with the five dairies sued recently.
"CARE has been trying to hold the dairies accountable for more than 15 years," he said. "If the problems continue, CARE will continue to take action."
Speaking on behalf of the four dairies named in lawsuits last week, Paul Queary, VP for Strategies 360, noted, "The dairies are deeply disappointed that a hired gun lawyer and a Washington D.C. special interest group have sued."
Queary added, "The dairies continue to work with the EPA to protect groundwater and our communities. They continue to work with their neighbors and local, state and federal officials to address groundwater issues in the Yakima Valley collaboratively."
He calls the litigation "divisive and hurtful" and contends the plaintiffs "... are more interested in making headlines than making real progress."