Groups seek fines of up to $37,500 per day for groundwater contamination
By DAN WHEAT
SUNNYSIDE, Wash. -- Lawsuits filed against five Sunnyside-area dairies alleging pollution of drinking water and violations of environmental laws threaten fines that could total as much as $550 million and put the dairies out of business, an industry representative says.
The lawsuits, filed by environmental activist groups, seek injunctions directing the dairies to change their handling of manure, to correct soil and groundwater contamination and conduct future monitoring.
They seek fines of up to $37,500 per day for violations of the Emergency Planning and Community Right-to-Know Act and the Comprehensive Environmental Response, Compensation and Liability Act.
That could total $550 million over the five years covered by the statute of limitations, said Jay Gordon, executive director of the Washington State Dairy Federation. The likelihood of a judge ordering that outcome is remote but the threat exists, he said.
The dairies are accused of polluting groundwater people rely on for drinking.
EPCRA requires dairies to report to local emergency services if, at certain times of year, they emit more than 100 pounds per day of ammonia, Gordon said.
"Congress exempted fertilizer but did not specifically exempt manure or the ammonia from manure. We've asked Congress to clarify that," Gordon said. "Some of the dairies have been reporting and if they didn't report or not correctly, they should be able to amend and take care of it."
CERCLA requires reporting to other agencies. All the dairies have reported, so "I'm not sure why they are being sued on that," he said.
The more disconcerting allegation, Gordon said, is violations of the Resource Conservation and Recovery Act because it involves nitrates. While manure is exempt, the plaintiffs allege that nitrates, ammonia and phosphates from the manure are not exempt, he said.
"So they have to manage fields so that no nitrates get into groundwater. There's a whole litany of regulations under RCRA," he said.
The lawsuits were filed in U.S. District Court in Yakima Feb. 14-20 by the Community Association for Restoration of the Environment of the Sunnyside area and the Center for Food Safety of Washington, D.C. Public Justice, a national nonprofit group of law firms, and Charlie Tebbutt, an environmental attorney from Eugene, Ore., assisted.
The five defendant dairies, owned by four families, are George DeRuyter & Sons, Cow Palace, Liberty-Bosma, D&A, and R&M Haak.
The violations present a threat to the health of Lower Yakima Valley residents and the environment, a news release from the plaintiffs said. "Of chief concern is the leaking and over-applied manure which causes nitrates, antibiotics and other pollutants to enter soils and drinking water."
The release notes that a 2012 Environmental Protection Agency study showed 20 percent of 331 wells tested in the valley had nitrate levels above federal drinking water standards.
In October, CFS and CARE served the dairies with a 90-day notice of intent to sue unless corrective action was taken. No action has been taken and regulators have taken a wait-and-see approach, the release alleges.
The dairies said the EPA report was based on incomplete data and inaccurate assumptions. Lawyers from both sides are negotiating potential solutions.
George DeRuyter & Sons and Cow Palace dairies are working with Promus Energy, Seattle, on plans for $13.5 million worth of renovations and expansion of George DeRuyter & Sons' manure digester to reduce nitrates and produce natural gas. Tom Eaton, director of EPA's Washington Operations Office, has said that can be a good part of the long-term solution.
The federal Natural Resources Conservation Service has also said the EPA used limited site information and assumed values for computing specific discharge resulting in "findings that are erroneous and unreliable."
Eaton agreed EPA assumed dairy lagoon leakage rates because it was unable to get design and construction information about the lagoons from the dairies. Any errors in the EPA report will be corrected as the agency gathers new data from new monitoring wells, he has said.
Veterinarian pharmaceuticals, ionic signatures and nitrate concentrations along with hydrogeologic information collected by EPA all indicate dairies are contributing to groundwater contamination, the state Department of Ecology has said.
Local, tribal, state and federal officials are working in the Lower Yakima Valley Groundwater Management Area to develop a groundwater management program to address nitrate pollution in an area of about 512 square miles from Union Gap to Benton City.