A Central Washington dairy waited too long to challenge a study linking it to high levels of nitrates in drinking water in the Yakima Valley, a federal court has ruled.
In a decision posted online May 14, the 9th U.S. Circuit Court of Appeals dismissed a suit filed by the Cow Palace dairy and the Washington State Dairy Federation against the Environmental Protection Agency.
The suit alleged the EPA misled the dairy about the study’s strength, coercing the dairy in 2013 to undertake extensive and expensive measures to prevent groundwater contamination.
Cow Palace owner Adam Dolsen declared that he didn’t learn about the deception until he met with EPA officials in 2019. He and the dairy federation filed the suit in 2020.
A three-judge panel ruled that the lawsuit should have been filed within 45 days of Dolsen’s meeting with the EPA, the window for challenging EPA actions taken under the Safe Water Drinking Act.
Dairy Federation director Dan Wood said Friday that the dairy and federation initially tried to negotiate with the EPA, rather than sue. The dairy and federation also needed more EPA documents before deciding whether to go to court, he said.
“The EPA controlled the release of those documents,” Wood said. “Basically, they delayed releasing the information that would have held them accountable, and they got away with it.”
The EPA declined to comment on the ruling. In court, the EPA rejected claims that it duped Cow Palace and other dairies into the agreements, which included lining manure lagoons to toxic-waste standards, costing dairies millions of dollars.
Wood said the ruling likely ends the case. “We could appeal, but it’s too much of a long shot. We’re left with an injustice,” he said.
Cow Palace agreed to operational changes soon after the EPA finished a study linking dairies to contaminated wells.
The report was classified in some EPA documents as “influential,” an official designation reserved for studies with a high level of peer review and used in regulatory actions.
According to the lawsuit, the EPA revealed in a meeting in 2019 that the study had been classified as “other,” a lower category.
“This does not make one confident that we live in a nation of laws,” Dolsen said in a statement.
“How can we trust the actions of federal officials when judges allow them to create false science, lie about the necessary review, delay providing documents that prove their guilt and then claim our complaints are too late?”
The EPA said that the study’s designation didn’t change its findings that linked the dairies to elevated levels of nitrates.