Type: Law Bulletins
Date: 04/20/2020

Dairy Farms Violate Consent Decree for Continued Groundwater Pollution; Sanctions Pending

A Washington federal district court has found two Washington state dairy farms in noncompliance with a 2015 consent decree that required the dairy farms to undertake certain environmental improvement initiatives to cure significant sources of groundwater contamination originating from the farms’ handling of cow manure. Sanctions will be imposed at a later date.

The consent decree arose from actions initiated in 2013 by the Community Association for Restoration of the Environment, Inc. and the Center for Food Safety, Inc. (collectively, plaintiffs). The plaintiffs filed a citizens suit under the Resource Conservation and Recovery Act against George & Margaret, LLC, George DeRuyter & Son Dairy, LLC, D&A Dairy and D&A Dairy LLC (collectively, defendants or defendant dairy farms). Plaintiffs alleged that the defendant dairy farms mismanaged animal waste such that defendants were polluting groundwater, endangering human health and the environment and engaging in open dumping.

The plaintiffs and defendant dairy farms settled the suit in 2015 by execution of a consent decree which addressed the most significant sources of contamination and helped ensure access to clean drinking water for the surrounding community. The Environmental Protection Agency was charged with overseeing the implementation and enforcement of the decree. Under the consent decree, defendant dairy farms were required to undertake numerous environmental safeguards, including (1) double-lining manure storage lagoons and associated maintenance; (2) groundwater monitoring via the installation of new monitoring wells; (3) the installation and maintenance of a Dissolved Air Flotation System (DAF); (4) inspection of all underground conveyance systems; (5) installation of concrete aprons along all water troughs within all cow pens; (6) locating silage areas entirely on impervious surfaces; (7) removal of all compost and regrading and compacting the existing compost area; (8) applying liquid and solid manure to agricultural fields at agronomic rates and pursuant to a nutrient management budget and (9) providing clean drinking water to nearby residences through bottled water service or reverse osmosis systems. The consent decree also provided specific timelines by which the defendant dairy farms were mandated to implement these environmental safeguards.

Over four years after execution of the consent decree, on Dec. 2, 2019, plaintiffs filed a Motion for Order to Show Cause, alleging that defendants repeatedly violated the consent decree since its inception and requesting that defendants be held in contempt as a result. More specifically, plaintiffs asserted that defendants (1) failed to double-line seven manure storage lagoons; (2) failed to timely and fully provide the nutrient data from the DAF; (3) failed to inspect all underground conveyance systems, pressure test transmission lines, document underground structures, and provide the requisite inspection results to plaintiffs; (4) failed to remove all compost and regrade and compact the existing compost area and (5) exceeded the decree’s nitrate and phosphorus manure application restrictions on multiple fields. Plaintiffs further requested that the Court enjoin defendants’ dairy and milking operations until defendants demonstrate strict compliance with the consent decree.

In response, defendants did not deny noncompliance with the consent decree. Rather, defendant dairy farms explained that compliance was not possible for several terms of the consent decree, despite defendants’ best efforts to comply.

On April 14, 2020, in Community Association for Restoration of the Environment Inc. et. al. v. George & Margaret LLC et. al., No. 2:13-CV-03017-TOR (E.D. Wash. Apr. 14, 2020), U.S. District Court Judge Thomas O. Rice agreed that defendant dairy farms did not comply with the consent decree, but did not go so far as to hold defendants in contempt or enjoin defendants’ operations. The only contested provision of the consent decree that the court found defendants did not materially breach was with respect to nutrient data from the DAF. The defendants ultimately produced the required DAF information, albeit in an untimely manner.

The court set the matter for further briefing to address the imposition of appropriate sanctions and the required dates for defendants’ full compliance with the consent decree.

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