Clean-air lawsuit against dairy dropped, but the dust hasn't settled

OUTLOOK, Wash. -- An environmental group's abrupt decision to withdraw its lawsuit against an Outlook dairy over air emissions won't end the long-running battle between many dairies and their neighbors in the Lower Valley.

But the case demonstrates how hard it can be to measure smog-producing emissions from dairies in order to enforce clean air laws -- a long-standing goal of environmentalists.

While inroads have been made against surface-water pollution from feedlot and dairy discharges, environmentalists have been largely unsuccessful in bringing the federal Clean Air Act to bear on the emissions of gases, such as ammonia, from large animal-feeding operations.

"It's very difficult to do," said Frank Mitloehner, associate professor and air-quality specialist at the University of California, Davis.

Emissions vary depending on the time of day, the temperature and humidity, Mitloehner said. They also depend on where the measurement is taken and whether the urine and feces that breed the pollutants are fresh or old.

With at least 74,000 cows on 72 farms, the Lower Yakima Valley is dense with dairies. Complaints about odor are routinely collected by the Yakima Regional Clean Air Agency, according to officials at the agency. That odor isn't caused by a single substance but rather a number of compounds.

In large enough concentrations, those compounds have undisputed and potentially harmful effects on health, ranging from eye, nose and throat irritations from ammonia to fine particulates that can lodge in the smallest airways of the lungs.

Cows are also blamed for contributing to global warming through methane and nitrous oxide.

Concerns over health and ecological effects converged on DeRuyter Brothers Dairy in a federal lawsuit brought last year by the Granger-based Community Association for the Restoration of the Environment (CARE).

CARE had hopes of using the DeRuyter case to force dairies to apply for state and federal permits under the Clean Air Act for emitting 10 tons or more of methanol a year. Methanol -- or methyl alcohol -- from decomposing manure and silage is identified as a hazardous air pollutant by the U.S. Environmental Protection Agency.

But according to attorneys for the industry, CARE's case collapsed because of faulty science.

"Their expert witness was unraveled in deposition," said John Nelson, the Spokane-based lawyer who represented DeRuyter Brothers.

Nelson said CARE agreed to withdraw the case and not refile it if he agreed not to seek recovery of legal fees and costs, which DeRuyter estimates approach $500,000.

Charlie Tebbutt of The Western Environmental Law Center in Eugene, Ore., which represented CARE, conceded problems with the data collected by its expert witness. "A few samples were compromised for reasons we aren't clear about," he said.

But Tebbutt isn't conceding much else.

"We are still convinced that DeRuyter and others are emitting more than the law allows," he said. "The stink in the smell in the Lower Valley is hazardous chemicals."

Problems with air sampling method

CARE's expert, David Parker of West Texas A&M University, attempted to extrapolate a year's worth of methanol emissions from two days of air sampling at the DeRuyter Brothers Dairy, which has about 6,000 cows.

Parker concluded that the dairy's rate of methanol emissions per year was 37,812 pounds, just shy of the federal limit of 40,000 pounds but theoretically close enough for CARE to make its case.

But the industry experts pounced on his methodology, saying it wasn't valid or supported by scientific quality-control procedures. For example, Mitloehner said Parker never produced duplicate samples to reproduce his results.

"The entire study is suspect because it does not follow even the most fundamental principle of scientific methodology, that of arriving at replicable results," he testified.

Parker didn't respond to requests for comment.

Nelson and the dairy industry hope the end of the case is the end of CARE, a nonprofit that began winning settlements from dairies over water pollution more than 10 years ago. Founder Helen Reddout, a retired teacher and orchardist, admits the group is out of money.

But the tenacious activist is far from calling it quits. As she put it, CARE is going away only in Nelson's "wildest dreams."

CARE plans to seek grants and other sources of funding to continue its work, she said.

For their part, dairy owners Jake and Genny DeRuyter say they are the real stewards of the land, pointing to upgrades over the years in waste-handling technology and the removal of dusty, open-air corrals. They have about 6,000 cows under management and employ 75 people.

"None of these upgrades were required by the regulatory agencies or the law," Genny DeRuyter said.

They also note that their families homesteaded in the Yakima Valley. "We live here. We want to be good neighbors," she said.

Study of emissions from livestock

But the dust has far from settled.

Both the industry and environmentalists are wait-ing for the results of a $14.6 million, EPA-supervised study of emissions at large livestock operations around the country.

Five of the sites are dairies, including one in the Lower Valley. Researchers won't release the name of the owners, saying they were promised confidentiality.

Scientists are measuring levels of hydrogen sulfide, particulate matter, ammonia and other hazardous materials like methanol at 12 sites in eight states.

The results, which are expected early next year, will be used to bring operations into compliance if they exceed existing federal standards.

Larry Elmore of EPA's natural resources and commerce group at Research Triangle Park in North Carolina said livestock operators agreed in advance to accept the methodology of the study.

Measuring the emissions isn't rocket science, but it is time-consuming, he said. "It's not as easy as sticking a probe in a smokestack, but it can be done," Elmore said.

But he said practices used to reduce hazardous emissions will vary among different kinds of livestock operations, particularly dairies.

Many dairies in Indiana, for example, are fully enclosed in contrast with the open corral set-up for most Western dairies, he said.

Methods for controlling emissions include covering manure lagoons, installing windbreaks, scraping stalls more frequently and using advanced composting techniques that process manure more quickly.

Mitloehner, one of the investigators in the EPA study, believes it will be conclusive.

"I think there will be pretty robust emission estimates from dairies across the nation," he said.

* Leah Beth Ward can be reached at 509-577-7626 or lward@yakimaherald.com.

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