David Ganje: The Cheese Plant

South Dakota’s agriculture industry has a $32.5 billion economic impact each year for the state. In addition to generating 33 percent of the state’s economic activity, dairy and cheese plants are called value-added industries in the state’s economy. Economic development based on agri-industry makes good sense. The offical goal of the SD Department of Agriculture is to promote, protect and preserve agriculture in the state. The state’s policy tells us that “agriculture remains the common thread linking the citizens, businesses and communities of our state.” This link is a weak thread indeed if agriculture production results in the contamination of state waters. Such a consequence defeats the state’s laudable goal of promoting, protecting and preserving agriculture.

In a free market system, the preferred economic system under any political theory, it is the natural goal of farmers and the related agri-industry to produce enough to satisfy the demands of consumers. And agriculture should be profitable for producers as well as agri-industry. Equally significant, agri-industry should manage known environmental issues and protect the natural resources of the state. The state as the trustee of public waters is required to assure that is the case. My definition of sustainable agriculture is meeting society’s food needs without compromising the environment and without compromising the ability of future generations of producers to successfully use the land. Does the state Dept. of Ag or the state Department of Environment and Natural Resources have a policy or program advocating sustainable production? What does sustainable dairy production look like? What are the environmental responsibilities of agri-industry? My home town of Aberdeen started the first cooperative creamery organized in the U S. This long-established cooperative was sold in the 60s to a North Dakota creamery. I toured the creamery as an innocent wide-eyed kid. I was curious and impressed by the complicated way cheese was produced.

Last month the state DENR issued a large cheese processing facility in Lake Norden several citations for water discharge violations. Consider whether the state has the chops to oversee environmental issues affecting agri-business. In a 2006 professional article by two academics, the authors state, “The dairy industry is generally considered to be the largest source of food processing wastewater in many countries.” South Dakota has 8 dairy producing plants. The largest is a recently expanded facility in Lake Norden. The Lake Norden company operates a total of 39 dairy processing plants. The company is obviously no one-trick-pony. Let us accept the proposition that both the state and the processing plant understood the environmental issues and relevant risks associated with a cheese processing plant. How then was the required state approval of the facility handled before issuance of the permit, and what occurred in the operation of the plant after the permit was granted? Did the state consider my recommendation to do a cost-benefit analysis before issuing a permit regarding the effects of plant wastewater on the watershed and downstream users of the Big Sioux water system?

The Argus Leader previously described parties worried about possible water pollution arising from the Lake Norden facility as “environmental buffs.” The reporter penning that label was comfortably ignorant in the history of surface water pollution on the U S. Since passage of a 1972 law signed by President Nixon it has been illegal to discharge pollutants into the nation’s waters without a special discharge permit. In SD a wastewater discharge permit must be issued and approved by the state DENR. The issue is not new; the problem is not new.

Officials from the plant, the state and area water-management agencies were disappointed with the recent pollution violations. A state official stated, “The data is showing they’ve had some violations and it was worse than I expected.” Advanced knowledge of a problem allows for advanced preparation; knowing about potential problems makes it possible to prepare for them. Wastewater discharge law has been established for some time now. Clean water laws are not new. 1972 is a long time ago.

More than a year before the recent pollution citations issued against the processing plant, I wrote an opinion piece discussing anticipated, but not yet granted, permit issues. In the piece I reported that the DENR determined the plant’s waste water would cause a degradation in the state’s waters. Yet the same regulators concluded that a plant expansion will not violate any existing water quality standards. Did the state think that a nitrate discharge could not be a problem – regardless of the quantity discharged? In my prior column written before the permit was issued, I pointed out that the proposed permit would not put limitations on the actual concentration of nitrogen found in treated water to be discharged into the watershed. After public comments, the DENR put nitrate limits on the wastewater discharge from the plant. But for public comments there would have been no nitrate standards in the issued permit.

The cheese plant’s reported discharge amounts which caused the violations were arguably ‘minimal’ because of surface water dilution based on current high water volumes in the Big Sioux. Water is essential to the cheese industry because the cheese making process is water intensive, and the completed cheese making process is wastewater intensive. Just the same the state’s surface waters are equally as essential to the well-being of the state. Surface waters in South Dakota recharge aquifers. Many communities use aquifers as a source of drinking water.

On the problem of the recent cheese plant violations a state official opined that dealing with both the environment and economic development is a “balancing act.” South Dakota is exhibiting an inability to manage economic development along with its stewardship and trustee responsibilities over the state’s public waters.

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law. F

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