Chorus of critics may help change feedlot enforcement

Protracted sparring between the state’s top environmental cop and a smelly dairy feedlot near Thief River Falls is drawing a gathering chorus criticizing what’s seen as excessive timidity by the Minnesota Pollution Control Agency (MPCA) to deal with a problem that’s left several families and children sporadically inhaling “dangerous” hydrogen sulfide fumes over a two-year period.   

An MPCA official insisted the agency is “doing exactly the right thing” in pushing Excel Dairy to clean up, adding that the dairy is entitled to “due process” in an enforcement action.   

“Where’s the line in extending due process?” snapped DFL Rep. David Olin, a lawyer who served 32 years as Pennington County Attorney.  “This very much looks like the MPCA isn’t doing all it can to protect those living near the feedlot.”

The MPCA could have revoked Excel’s operating permit last April when the issue came before the agency’s citizen board.  But despite demands by residents living near the feedlot, by the area’s two legislative representatives, the Marshall County Board and Minnesota Attorney General Lori Swanson, the board revoked and then re-issued a conditional one-year permit with conditions that, so far, haven’t been followed.  

As well, Minnesota’s so-called “superfund” law allows MPCA to clean up the mess and stop the harmful emissions, and bill the recalcitrant dairy for costs. Instead, a dozen neighboring families have evacuated several times to escape fumes that the Minnesota Health Department says are a “public health hazard.”  Excel Dairy is one of 12 owned by Prairie Ridge Management (it calls itself “The Dairy Dozen”) of Veblen, S.D.

While many are frustrated by what they call an agonizing process in the Excel case, Clean Water Action’s Julie Janson says that compared to other feedlot cases that she’s dealt with over the past 14 years, this one is beginning to show signs that the reluctance of MPCA to move against feedlots may be withering. 

The growth of ‘factory farms’
The major problem, Janson said, is that the growth of “factory farms” has concentrated large numbers of animals into small spaces and their untreated manure is left to decompose in lagoons that give off hydrogen sulfide — which MPCA and others have been slow to recognize as a toxin that can cause respiratory health and neurological damage.  

“It’s so bad that for those living near feedlots the first thing they do in the morning is to check the wind direction,” Janson said.  “If it’s blowing from the feedlot toward them, it will be another miserable day.” She said that the Excel case is “so bad” that perhaps better enforcement of the state’s health-based standards may be a positive result. 

Excel is under an Oct. 1 MPCA order to complete a cleanup by month’s end by, among other things, drawing down liquid levels in the three manure lagoons.  An eyewitness said late last week that rather than emptying the lagoons are filling with rain runoff.

Rick Millner of Prairie Ridge says the pump-out and other tasks ordered by MPCA will be completed on time.  In the past Millner has balked at following the agency’s orders and at one time, say state officials, Excel once had many more cows at the site than its permit allowed and that its sewage lagoons could handle. While the dairy currently has no cows on site, the odor-emitting manure lagoons remain. 

New permit needed to restart operations
Millner said he intends to move 1,500 cows back onto the dairy and resume full operations next spring. But the dairy’s one-year permit that expires in April and to re-start operations it needs a new permit, says the MPCA. Since the agency has a 180-day permitting process the dairy needs to apply for a permit by about Nov. 1. Millner has called the current permit “illegal” and the company has sued to stop it.  To get a new permit the company would have to cover the lagoons, which Excel says is unnecessary and cost-prohibitive in a suppressed dairy market (milk prices have plunged 27 percent in the last 24 months). 

Atty. Gen. Swanson said the MPCA Board shouldn’t have issued the provisional one-year permit in the first place.  She forcefully argued in a long letter (PDF) to the agency that Excel’s permit should have been revoked, a position shared by the Marshall County Board and by Olin and DFL Sen. Leroy Stumpf, who represent the area in the Legislature. The attorney general’s office provides legal support for the agency, but its spokesman said policy positions are “those of the agency and the (Gov. Tim) Pawlenty administration.”   

Asked why the MPCA didn’t simply revoke the permit and move in to clean up a problem that the agency itself says is “dangerous,” the MPCA’s Gaylen Reetz said all of that would have taken more time to resolve, not less. 

The problem of court delays
Part of the problem, Reetz said, is that the company could challenge a revocation order in court (which it has done) but that it could also legally challenge an MPCA clean-up action. 

Long court delays are a problem.  More than a year ago a three-party civil action against the dairy was filed in Minnesota District Court and the judge in that case, Jeffrey Remick of Crookston, still hasn’t ruled and has no timetable for acting. 

Meanwhile, emissions still rise from the feedlot and the MPCA seems hamstrung by time-consuming due process.

State politics has a history of bowing to agriculture, especially in environmental policy.  It was nearly 40 years ago, when the then-new MPCA was getting started in rule-making to control run-off from animal feedlots, that the state’s agriculture commissioner, Jon Wefald (who recently retired as President of Kansas State University), appeared before the MPCA’s citizen board to say that he personally would stand in the way of actions he considered detrimental to farmers. 

Even before Wefald’s grandstanding challenge, the state’s progress in environmental protection has been handicapped by pitchfork power. To keep a farmers’ eye on the MPCA, state law requires that at least one MPCA board member must be a representative of agriculture. 

Obtaining a feedlot permit in Minnesota has become relatively easy despite sometimes-furious opposition to the stinky facilities, especially those housing hogs. The MPCA and other agencies often are slow to respond to complaints, critics say, and problems can persist for years.    

Nonfarm residents, concentrated stench
Through it all, a changing farm culture driven by economics has clashed with the growth of nonfarm home sites in areas previously reserved for cropland, and where the occasional aroma of manure was part of rural living. 

Janson said, however, that the concentration of manure on feedlots and the rancid, even toxic, emissions from them is too much for even farmers to cope with.  She said that unlike occasional whiffs of manure from family farms of 30 or 40 years ago, the odors from feedlots is much stronger and occurs much more frequently. 

Specialty farming has brought increased crowding of cows, beef cattle and hogs, and the wafting stench can be carried for miles.  Odor is one thing, but when — as in the case of Excel — the levels of hydrogen sulfide far exceeds health-based standards hundreds of times, even farm-area legislators like Rep. Olin and elected commissioners like those on the Marshall County Board join affected residents and say the time’s long past when enough is enough.