Errors in the way two state agencies investigated a complaint that dairy manure was spilling into a Lower Valley irrigation drain have prompted officials to halt the case and rescind a $22,000 penalty against the dairy.

The state Department of Ecology announced Thursday that it withdrew the penalty earlier this month against DeRuyter Brothers Dairy of Outlook because of problems with the way a dairy inspector collected evidence leading to the May 2010 penalty.

The inspector for the state Department of Agriculture, acting on an anonymous complaint, took water samples of the runoff from a field near Van Belle and Scoon roads near Sunnyside, but failed to sample the drain itself to determine the impact of the pollution.

The samples were then tested for the presence of E. coli bacteria instead of fecal coliform, which is the standard for quality in a body of water. Test results indicated elevated levels of E. coli in the runoff, which led to the fine.

In addition to the testing errors, Ecology failed to immediately notify the dairy as required by law about the release of manure into the drain north of Sunnyside.

Charlie McKinney, water quality section manager for Ecology's regional office in Yakima, said the agency withdrew the penalty after reviewing issues the DeRuyters raised in an appeal to the Pollution Control Hearings Board.

"We just felt like it was unfortunately not a strong enough case with which to proceed," McKinney said.

The dairy had denied a violation occurred.

Genny DeRuyter, who operates the dairy along with her husband, Jake, called Ecology's decision the right thing to do. She described as unfortunate the amount of time and money spent to challenge the penalty.

"We feel there were no facts to justify their position. We tried to tell them that all along," she said.

Ecology said no other cases are affected by the procedural errors disclosed in the DeRuyter case.

To try to avoid such problems in the future, McKinney said the agency will consult with the Agriculture Department to assure proper procedures are followed in the future. He also said the agency hopes to work more closely with dairies.

The split nature of dairy regulation, created by the Legislature, has been a problem in the past, resulting in a lack of coordination between the agencies. While the Agriculture Department administers the dairy nutrient management program and investigates complaints of improper handling of manure, Ecology is responsible for water quality laws.

* David Lester can be reached at 509-577-7674 or dlester@yakimaherald.com.