Since filing a lawsuit against Willet Dairy in 2002, most of the seven original plaintiffs have sought greener pastures.

“All but one of the plaintiffs have now vacated,” said Gary Abraham, attorney for the now nine people who have signed onto the citizens suit against the large Genoa-based dairy. “They've been forced out of their homes - on doctor's orders.”

The only one of the original seven plaintiffs holding out is Fred Coon, an 85-year-old man whose family has lived on his current property long before the dairy's expansion. That land has suffered from the dairy manure that sometimes flows into Coon's swimming pond, Abraham said, and Coon gets spontaneous sores on his face due to the hydrogen sulfide and ammonia emitted from the dairy's alleged excessive spreading.

But to David Cook, Willet Dairy's attorney, such allegations are baseless.

Cook believes the dairy is

actually one of the best-managed farms in terms of environmental protection. It doesn't spread manure excessively, he said, and is not violating the Clean Water Act, as the suit alleges.

Any health problems the plaintiffs are claiming have no factual ground to stand on, he added.

“They have not produced ... one piece of evidence to show any causal link between the farms and problems that they are claiming,” Cook said.

In 2002, seven southern Cayuga County residents filed a citizens suit under the Clean Water Act against dairy operators Dennis and Scott Eldred. An eighth plaintiff later joined on, and in 2004, a near-identical suit arose on behalf of a child of two of the original plaintiffs.

Willet Dairy is the largest dairy farm in New York state based on its herd size, if all four of its facilities are considered, said Diane Carlton, DEC regional director for public affairs and education. In total, the dairy has about 7,000 cows, said Lyn Odell, the dairy's operations officer. Odell declined to comment on any of the specific allegations and referred further questions to Cook.

Now, after years of interviews, requests for documents and depositions on both sides, Cook and Abraham are hopeful the suit may soon be resolved, albeit with opposing outcomes. They have each recently filed motions for summary judgment in the federal district court in Syracuse.

Cook has also filed a Daubert motion, which would disallow expert testimony of someone who has a lack of expertise or has used questionable science to obtain information. Such is the case with the doctor the plaintiffs are employing to confirm that the farm has caused irreversible neurological damage to one of the plaintiffs, Cook said.

In addition to the amount of time both the plaintiffs and defendants have invested, there is also a substantial amount of money at stake.

The plaintiffs, all but one who live or lived in close proximity to the dairy's main facility in East Genoa, are seeking $150,000 in damages and $250,000 in punitive damages per plaintiff.

In addition to seeing Willet Dairy clean up the alleged pollution, the claimants also want the farm to pay civil penalties to the U.S. Treasury - up to $31,500 per day per violation (the citizens suit section of the federal Clean Water Act mandates that any violations penalties are paid to the treasury) and their litigation expenses.

The cost of the suit for Willet Dairy has been “an enormous amount,” Cook said. He declined to give an actual amount but said that “it's easily a six-figure number.”

In an effort to alleviate some of this financial burden, the New York Farm Bureau's Legal Defense Fund has allocated $7,500 to underwrite the dairy's defense costs.

“This case has been out there for a while, and it does have a significant impact,” said Elizabeth Dribusch, general counsel for the New York Farm Bureau. “It could open the floodgates for other suits against other farmers in the state.”

The plaintiffs seem to want to stop all manure-spreading in general, Dribusch said, but such spreading is heavily regulated by state and federal rules and is an important part of a dairy's operations.

Some of the claims of the plaintiffs are “quite vague,” Dribusch noted.

One of the main issues involved is whether or not Willet Dairy violated the Clean Water Act and its concentrated animal feeding operation (CAFO) permit, distributed by the state Department of Environmental Conservation.

“The general CAFO permit requires manure be spread at an agronomic rate,” Abraham said. “We're alleging that they spread excessively, in violation of the limits proposed on them by their nutrient management plan. There are scores of fields that they overapply on.”

This has not only alienated neighbors but also leads to runoff onto the plaintiffs' properties and into tributaries that connect to Owasco and Cayuga lakes, Abraham said, pointing out that those two bodies of water that already have issues with high amounts of phosphorus. The spreading has caused soil, water and air pollution, the complaint alleges.

Cook disputes such allegations and notes that there is also a grace period for when farms have to have all of their CAFO requirements in place. Willet Dairy was one of the first farms to sign up for the CAFO program when it was established in 1999, he added.

There are now 475 medium and 145 large permitted CAFO facilities in New York state, according to the DEC. In order to obtain a CAFO permit, these facilities must adhere to regulations for waste control and management, plans for manure storage and plans for nutrient management.

Carlton, of the DEC, confirmed that full implementation of the CAFO general permit comprehensive nutrient management plan isn't required to be completed until Dec. 31, though she said dairies do have to show annual progression and that they can at no time violate water quality regulations.

The DEC has been working in partnership with the dairy to offer technical assistance and to ensure that it is fully compliant by that date, she added.

“They're trying to do the right thing, and we're trying to do the right thing,” Carlton said, noting that excessive manure spreading has not been a problem with Willet Dairy. “They really are doing everything they need to do. We really do not have any issues with them.”

But Abraham sees serious issues to consider, including a 2000 report by the Cayuga County Health Department that there were coliform and E.coli bacteria in nearby East Genoa private wells.

The DEC also fined the farm $15,000 after “thousands of gallons of liquid manure” spilled from one of the dairy's lagoons into a tributary of Salmon Creek, according to a DEC consent order dated Nov. 25, 2002. The dairy reported the spill, which Carlton said was caused by a mechanical failure, and has since taken corrective measures to fix the problems.

Willet Dairy's last formal CAFO inspection by the DEC and U.S. Environmental Protection Agency was in June 2004. It shows that the dairy's four facilities, which include manure lagoons totaling more than 40 million gallons (some of which were then listed as not used), received mostly satisfactory marks except for three items of concern in relation to construction activities and wastewater discharge from the maintenance facility.

At the heart of the citizen suit is a debate about big, industrialized farms versus small farms. These larger farms are the ones subject to all of the environmental regulations, Cook said.

To Abraham, however, the larger “factory farms” are no saints. Though many think these big farms are more efficient than smaller farms, at a certain size, a farm becomes unmanageable and cost prohibitive, he said.

“They make money by cutting corners and by getting the benefit of no monitoring,” he continued, alluding to the plaintiffs' contentions with what they see as the DEC's lack of sufficient monitoring of nutrient management plans. “Nobody's watching them. It's the classic fox in the hen house arrangement.”

Abraham said that Willet Dairy has not accepted settlements that he has offered; he declined to discuss the amount of the settlements.

“They've no doubt spent much more than we offered to settle,” Abraham said. “Now they've kind of dug themselves into a hole.”

Abraham is optimistic the plaintiffs will get some sort of liability judgment but expects Willet to appeal the case to the second circuit.

Cook is hopeful his motions will lead to the judge dismissing the case before it goes to trial. If the Clean Water Act claims are dismissed, the only thing the plaintiffs will have left is the nuisance claims, he surmised.

“I think it's difficult to make a nuisance claim for agricultural practices,” Cook said, “when you're living in an agricultural district.”

Staff writer Linda Ober can be reached at 253-5311 ext. 237 or linda.ober@lee.net