Cows & Yogurt Plants Pollute, Green Groups Say

ALBANY, N.Y. (CN) - A state plan to relax pollution controls to help small dairy farms supply more milk to New York's burgeoning yogurt industry will endanger waterways and the public health, seven environmental groups claim in court.

The new rules will allow more than 1 billion extra pounds of manure a year to be produced at farms no longer governed by strict waste-management regulations, the groups say in a lawsuit against the state Department of Environmental Conservation and Commissioner Joe Martens, in Albany County Supreme Court.

Lead plaintiff Riverkeeper and its co-plaintiffs, all nonprofits focused on protecting water quality, claim the state raised the herd threshold at which farms are required to have environmental systems in place "[f]or purely political and economic purposes - not scientific or technical ones."

The impetus for the changes was the August 2012 "Yogurt Summit" convened by Gov. Andrew Cuomo, to which farmers, producers and others were invited to talk about strategies for boosting the industry and creating new jobs, according to the 62-page complaint.

According to the Governor's Office, the number of yogurt-processing plants in New York has doubled since 2000, to 29, with milk production also rising dramatically. New York now hosts plants operated by Chobani and Fage, two big names in Greek yogurt, a thick, creamy product that requires three times more milk than traditional yogurt.

Cuomo's office pegged the combined economic impact of dairy farming and processing in the state at $8.9 billion.

At the one-day summit, New York announced that it wanted to help dairy farmers increase the size of their herds - and thus their milk production - to feed the yogurt boom. The state planned to do that by altering regulations to allow smaller farms to have more cows, and exempt them from some environmental permit requirements, according to a statement from Cuomo's office.

"Less than a year later, NYSDEC kept the administration's promise and completed its CAFO rulemaking, categorically dismantling its existing pollution-prevention scheme for a large number of dairy CAFOs," the plaintiffs say in the lawsuit.

CAFOs - concentrated animal feeding operations - are also known as "factory farms," where hundreds of animals are raised in confinement. Under state and federal regulations, "medium" CAFOs are farms with 200 to 699 mature cows that discharge pollutants.

These pollutants include "wet manure," which if improperly managed, "poses substantial risk to public health and the environment," according to the complaint. Animal waste contains potentially harmful pollutants, such as solids that can include bedding, feed, hair and feathers, and nitrogen and phosphorus, which can increase algae blooms that harm water quality and affect aquatic life.

One of the prime ways CAFOs dispose of animal waste is by applying it to the soil as fertilizer, but the plaintiffs say improper application is "[p]erhaps the most common way by which pollutants reach the surface waters."

In New York, the Department of Environmental Conservation developed a dual permit system for CAFOs under the so-called State Pollutant Discharge Elimination System, based on whether they previously had reported a discharge of pollutants, according to the complaint.

Both discharging and non-discharging CAFOs were required to establish ways to prevent pollutant releases, including creating so-called comprehensive nutrient management plans. The plans, prepared by agricultural specialists, offered farm-specific "best practices" - including where and how to apply manure to a field, to protect nearby water.

But as of July 7, the state "carved out an exemption" from permit requirements "for purportedly 'non-discharging' CAFOs with between 200 and 299 mature dairy cows, relieving them from the duty to develop and implement ... previously mandatory pollution controls," according to the complaint.

Under the new rules, another 285 farms could join the 72 large enough to be in the exempt category. Those 357 farms could produce another 3 million pounds of manure a day - 1 billion pounds a year - "and greatly increase the risk that such additional manure will be improperly managed, stored and applied," the complaint states.

The new rules also help the yogurt industry by letting plants dispose of acid whey - a liquid byproduct - by selling it to the deregulated CAFOs. The farms then could apply it to the soil as a fertilizer, like manure, without regular inspections, recordkeeping or nutrient management plans, according to the complaint.

The increased acid whey that will result, and the state's failure to take a hard look at how it will be disposed of, are "a fatal flaw" of the changes, the complaint states.

Joining Riverkeeper as plaintiffs are the Waterkeeper Alliance, the Citizens Campaign for the Environment, the Sierra Club Atlantic Chapter, Buffalo Niagara Riverkeeper, Lower Susquehanna Riverkeeper, and Theodore Gordon Flyfishers. All work to protect water and watersheds within New York, some of which flow south into the Chesapeake Bay.

The plaintiffs say that rather than an advisory opinion, they want the court to find New York's new regulations in violation of the state constitution, state rulemaking procedures, state environmental conservation law and the federal Clean Water Act.

They say the state failed to get the blessing of the U.S. Environmental Protection Agency before making the changes. The Clean Water Act prohibits states from enacting regulations on pollutant discharges that are less stringent than the federal ones, according to the complaint.

The plaintiffs say the state failed to "fully inform, seek review and obtain approval from U.S. EPA prior to finalizing its program revisions concerning dairy farm permitting," and failed to answer EPA requests for more information.

"Due to NYSDEC's failure to obtain explicit approval of its regulatory modifications from U.S. EPA, NYSDEC's finalized rulemaking cannot be effective as a matter of federal law, and is null and void," according to the complaint.

The plaintiffs want the new rules withdrawn and everyone affected by them told they have been rejected. They also want attorneys' fees and costs.

They are represented by Daniel Estrin of Pace Environmental Litigation Clinic in White Plains and Eve Gartner of Earthjustice in New York City.

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