FEEDLOTS: ODOR CAN BE MORE THAN A NUISANCE

From 1996 to 2004 Excel Dairy, located in Marshall County in Northwestern Minnesota, is believed to have consisted of two dairy farms, a feed storage pad, and one clay-lined manure basin. In 2005 Excel was purchased by outside investors who then applied to the Minnesota Pollution Agency (MPCA) to expand the facility by adding another barn, a sand separator building and two additional manure basins. The permits issued by the MPCA in 2007 did not require covers for the two additional manure basins. The permit allowed up to 1,544 animal units.

Following construction of the expanded facility, the company failed to address the manure sludge building up in each basin, the defective field spreading of liquid effluent, and the faulty aerators in the basins. While the permit allowed for 1,544 animal units, Excel allegedly placed up to 2,700 animal units on the premises.

The MPCA permit required Excel to inspect the clay basin in the first manure pit and, if necessary, to repair deep ruts in the sidewalls of the basin, with a completion date of November 2007. Unfortunately, as of May 2008, the repairs to the basin were not completed

In May and June of 2008, neighbors of Excel complained that hydrogen sulfide levels adjacent to the feedlot were so high as to cause headaches, dizziness, respiratory difficulty, nausea, vomiting, sore throats and eye irritation. Several of the neighbors had been driven from their homes on numerous occasions because of the emissions. The MPCA determined that Excel exceeded the state’s ambient air quality standards. At one point the Department of Health advised neighbors to evacuate their homes.

In late June of 2008 Attorney General Swanson filed a lawsuit to enjoin the problems at the feedlot, claiming that it violated the nuisance laws of Minnesota

Swanson asserted that her agricultural nuisance claim was compatible with the state’s “freedom to farm” law. Under the “Freedom to Farm” law, a farm or feedlot is generally protected from nuisance lawsuits if, after two years from its established date of operation, the farm (1) is in an agriculturally zoned area; (2) complies with the provisions of all applicable federal, state, or county laws and regulations, and (3) operates according to generally accepted agricultural practices.

Swanson argued that the “Freedom to Farm” law did not apply to feedlots with more than 1,000 animal units.

Swanson also filed the lawsuit on behalf of the MPCA, claiming that the feedlot was not in compliance with the 2007 permit issued by the agency.

In April of 2009 the MPCA reviewed a request by Excel to re-issue its permit and allow it time to remediate the damage. Swanson filed a brief with the MPCA Citizens Board which requested that the Board simply revoke the Excel permit, arguing that it failed to remove livestock, failed to apply a straw crust to the manure basins, and failed to apply for land application permits for the aeration equipment used in the manure basins. The MPCA Board responded that Excel would have thirty days after spring road restrictions are lifted to remove the manure from the three basins. Excel did not meet this deadline and in June 2009 the MPCA Board issued a declaration that Excel’s permit was denied and that Excel’s motion for reconsideration also be denied.

Excel appealed the permit denial and the denial of the reconsideration. In March of 2010 the Minnesota Court of Appeals heard the matter and in June it remanded the matter back to the Agency. Finally, in November of 2010 the Agency issued a default judgement against Excel.

In the meantime, in April of 2010 the owners of Excel filed for bankruptcy. The property where Excel was located subsequently was sold to a railroad construction business as a center for repair work and equipment storage.

The litigation was complex. It included numerous orders issued by the Minnesota Department of Health, the U.S. Department of Health and Human Services, and the Minnesota Pollution Control Agency. It involved criminal charges brought by Marshall County, later dismissed. It included civil lawsuits by neighbors against Excel. It included an injunction issued by the Marshall County District Court. It involved lawsuits by and against Excel with the MPCA. Finally, it involved an appeal concerning Excel’s insurance coverage.

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