An embattled Oceanside dairy was fined $90,000 and threatened with $174,000 in additional penalties by the state Tuesday for illegally expanding its herd and then violating an order to reduce the number of cows and control the flow of waste water from the property.
The penalty against Whelan Dairy, which has been under fire for more than a year from neighbors complaining of intolerable odors, was approved unanimously by the Regional Water Quality Control Board after a lengthy public hearing in San Diego.
The farm will immediately be assessed $90,000, plus $14,500 for each month that the herd size exceeds the legal limit of 464 head of cattle. The monthly fines would be collected only through Jan. 17.
The board also set three deadlines by which the dairy must address the waste water runoff problem. Failure to meet each deadline will trigger additional fines of $29,000 apiece.
The penalty, by far the heaviest ever levied by the regional board against a dairy in San Diego County, caps a long campaign to force the 323-acre San Luis Rey Valley ranch to reduce its herd to the legal limit of 464 head.
In approving the fine, board members expressed exasperation, explaining that they turned to punitive action only after numerous warnings and amicable negotiations toward a settlement failed.
"We have repeatedly set standards for Whelan Dairy and the operators have repeatedly failed to meet them," said Mary Jane Forster, board chairwoman. "Let's hope this action sends a message."
In October, 1984, the dairy's operators expanded the herd to about 1,200 head--600 of which are milking cows--without first obtaining permits from the board. That action vastly increased the volume of waste water that pours into Whelan Lake, which is used for irrigation, and Pilgrim Creek, which feeds the San Luis Rey River and ultimately flows into Oceanside Harbor.
The increase in runoff, which comes from corrals and milking barns and contains water, manure, detergent and nitrogen, caused odor problems and threatened to contaminate ground water, triggering health problems. Oceanside officials said they also suspect that beach closures are linked to pollution from Whelan Ranch.
The dairy's operators acknowledged Tuesday that the facility has problems but pleaded with the board for patience. They argued that unusual circumstances have prevented them from making the changes ordered by the board.
Situated in an unincorporated pocket of land adjacent to Camp Pendleton in east Oceanside, the dairy was for years owned by Ellen Whelan, a legendary figure whose family founded the farm in the early 1900s. Whelan died in December and left two vastly different wills, one directing that her assets be used to create a bird sanctuary, the other leaving the bulk of her wealth and property to the former dairy manager, Ivan Wood.
Friends of Whelan's, nervous about the conflicting wills, persuaded the state attorney general to enter the fray. Now a decision on disposition of the $9-million estate rests with the North County probate court and the dairy is being managed by county Public Administrator Jeanne McBride.
According to McBride's representative, Deputy County Counsel Leonard Pollard, the public administrator has made "good-faith efforts" to thin the herd and comply with the board's order to control runoff. But she has been stymied by North County Superior Court Judge Donald Martinson, who presides over the probate court and must approve any expenditure of estate funds.
"I think (McBride) has made substantial progress toward bringing the dairy into compliance with the board's waste discharge requirements," Pollard said. "But the court is the overseer of the estate and the public administrator serves at the court's discretion. We're in a bind."
Although board members have warned Martinson that fines were pending, the judge said at several hearings that he did not believe any penalties would be assessed.
Despite the unusual situation, board members seemed far more sympathetic to the testimony of Oceanside officials and residents, who characterized the dairy as a public nuisance that has been flagrantly mismanaged.
"I'm not against dairies, as a rule," said Olga Johnson, who lives 1.5 miles from the dairy and complained about the odors. "But when you get wall to wall cows, you get pollution. It's made our neighborhood a very undesirable, unpleasant place."
According to David Barker, a senior engineer with the board, the dairy can avoid $87,000 of the fine if operators complete a series of actions by mid-October. First, they must submit a plan outlining the construction that will control the runoff of waste water within 30 days. Those improvements must be made within 60 days and within 75 days an inspector must certify that they have been completed.
Another $87,000 of the fine will be waived if the herd is reduced to the legal number within 30 days, Barker said. McBride said the herd most likely will not be reduced for several months because a lease signed in 1984 with another dairyman who boards 500 cows at the dairy does not expire until then.