Court Victory Against Water Polluting CAFO (Concentrated Animal Feeding Operation)

Courtesy of Helen Reddout, Photographer

Nelson Faria Dairy, a factory farm producing dairy products in the small farm community of Royal City  located in Washington State’s Grant County, has been held in contempt for violating the provisions of a consent decree, which had settled litigation brought by the Community Association for Restoration of the Environment (CARE) for pollution violating the Clean Water Act caused by its grossly inadequate manure management practices.  This defendant (or related parties) manages seven CAFOs (Concentrated Animal Feeding Operations) in the United States, the one held in contempt in Washington State, five in Texas and one in New Mexico.

A single dairy cow produces approximately 120 pounds of wet manure per day which is equivalent to that of 20-40 people according to the Environmental Protection Agency [www.epa.gov/region9/animalwaste/problem.html].  Jonathan Safran Foer, in his powerful Eating Animals (New York, Little Brown and Co., 2009), includes, as one of the three main reasons why  the industrial agricultural model is not sustainable long-term, the eye-opening point that farmed animals in the United States produce sewerage which is “30 times as much waste as the human population- roughly 87,000 pounds of shit per second” [the other two reasons: (1) antibiotic overuse in raising 450 billion land animals each year and (2) the “profoundly cruel systems” which produce meat as a product].  He makes a strong case that industrial agriculture has externalized the costs for environmental degradation, human disease and animal suffering.  This litigation affirms Mr. Foer’s concerns by revealing the enormous effort that is required to ensure that a single CAFO operation conforms to legal requirements in order to protect our water supply and environment from pollution.  The provisions of the clean water act and similar environmental protection laws are meaningless if they are merely written on paper and not enforced.

Federal District Court Judge Lonny R. Suko determined, after a three-day bench trial conducted last November, that Nelson Faria Dairy “failed to comply with the consent decree from the very outset of its operation of the dairy” from the time it purchased the CAFO from Smith Brothers Farms, Inc. on October 2, 2006.  Smith Brothers Farms had entered into a proposed consent decree eight months earlier on March 24, 2006 (which the court approved on May 23, 2006) in settlement of  violations of the Clean Water Act, 33 U.S.C. Sec 1251 et seq., which was held binding on Nelson Faria Dairy as the purchaser of the CAFO.   The judge made clear that “The fact Mr. Faria was not involved in the negotiations regarding the Consent Decree and was not an original party to the Decree is of no significance” (emphasis added).

Judge Suko, in his thorough decision, details the multiple instances of non-compliance which constituted contempt, noting that there was “never any reasonable effort” by the defendant to comply with specific terms of the consent decree.  The judge rejected the false notion that the defendant’s failure represented merely “a few technical violations.”  He focused on a multitude of problems with the defendant’s “manure management practices.”

First, during a period of just over a month, from November 18, 2008 until December 21, 2008, the defendant applied 2,216,000 gallons of liquid manure to land located just north of its factory farm, resulting in a ponded area adjacent to an irrigation canal.  The plaintiff provided persuasive evidence of this ponded area by photographs taken in an aerial fly-over in December 2008.  Ponded water was observed in this area up to June 5, 2009 in violation of the consent decree which required the defendant “to abide by its Dairy Nutrient Management Plan.”  This plan prohibited “the application of liquid manure under conditions that allow contaminated waters to run off fields and into surface waters, or to be allowed to infiltrate to ground water.”

Second, the defendant maintains a series of underground pipes for the transport of liquid manure from its lagoons to off-site fields.  Sometime in late November or early December 2008, it applied manure water through its underground pipes to land known as the Hebdon Field.   Two separate leaks in the piping apparatus “caused a ponded area to form on the north side of the Hebdon Field.”  Once again, plaintiff introduced convincing evidence of this illegal ponding by the use of aerial photographs.  This ponding of manure water “caused, or threatened to cause, a discharge of pollutants into surface waters and/or ground water.”  Further,  the plaintiff introduced evidence of soil sampling on the Hebdon Field taken two months later which revealed “excessively high levels of nitrate and phosphorus. . . consistent with over-applications of manure to the Hebdon Field.”  The defendant’s Dairy Nutrient Management Plan prohibits “application of manure unless post-harvest soil test results justify a need for nutrients” (emphasis added).

Third, sometime in the course of a three week period, between November 18 and December 11, 2008, the defendant applied 3,892,000 gallons of liquid manure to a field, east of its factory farm, known as the Dykes Field.  These applications occurred when the ground was frozen and/or snow covered and when “there was no active cropping.”   Soil sampling on the Dykes Field taken two months later revealed “excessively high levels of nitrate and phosphorus. . . consistent with over-applications of manure . . .”   Once again, defendant violated its Dairy Nutrient Management Plan which prohibits “application of manure unless post-harvest soil test results justify a need for nutrients” (emphasis added).

Fourth, the defendant uses trucks to haul liquid and solid manure off-site for application to nearby fields.  Since June 15, 2009, there have been “instances of liquid manure being spilled by Faria’s trucks onto public roadways,”  which were held to establish a failure by the defendant to adequately inspect and clean its vehicles that come in contact with manure.

Fifth, the defendant’s Dairy Nutrient Management Plan required it to maintain its “storage lagoons consistent with best management practices.”  The ability of  the storage lagoons to contain liquid manure is maintained by “regularly cleaning and agitating the lagoons to remove solid deposits.”  If this is not done, the “possibility of a release of manure from the lagoons during a significant precipitation event” is increased.  The defendant failed to “dredge its lagoons in 2007 and 2008 in violation of its Dairy Nutrient Management Plan and the Consent Decree.”

Sixth, the defendant’s storage and treatment lagoons are lined with a synthetic PVC plastic liner, to help prevent liquid manure from seeping into the ground and infiltrating the groundwater.  Repairs to tears were not made until more than a year after they were first noticed in violation of the Dairy’s Nutrient Management Plan which requires that any damage to the PVC liner must be repaired “as it occurs.”

Finally, nitrate contamination was found in three environmental groundwater monitoring wells along the northern border of the dairy’s property and one reference well nearby.  The court determined that “Faria’s manure management practices” were the predominant source of this contamination, resulting from the defendant’s “consistent over-application of manure to fields located adjacent to, and nearby, the Dairy.”

Based upon the “Defendant’s failure to comply with the Consent Decree from the very outset of its operation of the dairy,” Judge Suko determined that the Consent Decree would be extended for a period of three years, and awarded the plaintiff its reasonable past attorney fees and costs incurred in this litigation.  The court’s related Order on Relief in this matter, consisting of  34 pages, specifies (in remarkable detail) the steps to be taken to ensure that the defendant complies with its Dairy Nutrient Management Plan and the Consent Decree.

The community of Royal City, most known for producing a wide variety of crops including apples, cherries, peaches, timothy and alfalfa hay, melons, potatoes, onions, wine grapes, pears, mint and corn [//en.wikipedia.org/wiki/Royal_City,_Washington], may now also be known as a community with a water supply that is valued and protected, even if it took a vigilant non-profit group (with the ability to take aerial photographs to establish evidentiary proof) and federal litigation (Community Association for the Restoration of the Environment, a Washington nonprofit corporation v. Nelson Faria Dairy, Inc., No. CV-04-3060-LRS, 12/30/11, Judge Lonny R. Suko). The plaintiff, CARE, was represented by Charles M. Tebbutt, Esq., of Eugene, Oregon; Defendant Nelson Faria Dairy, Inc, by the Spokane, Washington law firm of Foster, Pepper (John Ray Nelson, Esq. and Lori A. Terry, Esq.).  The complete decision by Judge Suko is available on plaintiff’s attorney Charles M. Tebbutt’s website.

To find out how many CAFOs are in your area, check out Food & Water Watch’s Factory Farm Map:
www.factoryfarmmap.org/

Also see our earlier report on the work of Lynn Herring, who won the Goldman Prize in 2010 for exposing the immense pollution cased by the CAFO industry in Michigan [knowwhereyourfoodcomesfrom.com/2010/05/26/prestigious-environmental-prize-awarded-to-michigan-family-farmer/].
(FW Barrie, 3/13/12)

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