NORTH DAKOTA

• Large-scale corporate animal factories are moving into the state, setting up ownership arrangements that escape the state's prohibitions against corporate farming.
  
  
• North Dakota has unusually strong regulations to control odor from factory farms.
  
  
• North Dakota has not implemented its solid waste law for factory farms even though the law covers farms as well as industry. Neighbors of a controversial factory pig farm have gone to court to force the state to enforce the law against factory farms.

Today, most of the largest livestock operations in North Dakota are cattle feedlots.¹ The most controversial operation in North Dakota, however, involves an industrial pig farm close to urban Grand Forks. Cattle farming, a familiar part of the North Dakota landscape, tends to be located in more rural parts of the state and is widely accepted by state residents.

In recent years, public opposition has focused on a kind of farming that is relatively new to the state -- giant pig feedlots owned by out-of-state corporations. EnviroPork, a 5,000-sow operation that produces 110,000 piglets each year² has become a high-profile test case for the interpretation and enforcement of the state's environmental and agricultural laws. EnviroPork is not the largest factory farm in the state. Eleven factory farms, including two devoted to hogs, are larger.³ But EnviroPork's corporate connections and its proximity to Grand Forks have put it in the public eye. Permitted in December of 1997, EnviroPork is owned by North Dakota Pigs Cooperative (NDPC), a group of about 25 Minnesota hog producers.⁴ NDPC members have signed a contract with Swine Management Services (SMS), a division of Purina Mills, Inc., to run the day-to-day operations. Purina Mills promises to buy the pigs from NDPC members if the price falls below $32 each. Purina has the right to inspect the facility and the stock and to demand changes in operation. The chairman of the NDPC's interim board of directors is Amon Baer, who owns a Lake Park, Minnesota, Purina Feeds dealership.⁵

Pollution Problems

Just four months after receiving its first shipment of hogs in mid-January 1998, and before EnviroPork had reached its full capacity, neighbors complained of odors to the state Health Department, prompting tests for compliance with the state's odor standards. On May 12, 1998, the state recorded readings of 15 and 31 "odor concentration units," exceeding the state's standard by over 15 times. The site manager, Todd Erickson, said that because waste had been collecting for just two months, the lagoon hadn't built up enough liquid to cover the solids that pile up at the discharge point. Erickson also said the bacteria that break down the waste had not taken hold yet, and that he would add enzymes to kick-start the bacteria.⁶ Health Department environmental engineer Gary Haberstroh did not recommend disciplinary action, but said that he would continue to test odor levels for compliance.⁷

In July of 1998, EnviroPork's neighbors, Jim Griffin and Keith Peterson, went to court for an injunction forbidding the hog factory to operate until it obeys environmental laws.⁸ Northeast District Judge Bruce Bohlman declined to shut down the facility, but ordered the Health Department to draft a compliance schedule to ensure that the odor violations are cleared up quickly.⁹

EnviroPork worked with the University of North Dakota's Environmental Education Research Center to control the odor problem by placing straw on the lagoon and other methods. EnviroPork passed numerous odor tests in August and September 1998, but has been in regular non-compliance again since October 1998.¹⁰

EnviroPork has not had any water pollution problems, but neighbors Griffin and Peterson are suing the state over improper construction of the lagoon.¹¹ They say that this region of eastern North Dakota is an especially dangerous setting for a hog factory due to porous soil¹² and EnviroPork's proximity to the Turtle River.¹³ The Health Department is monitoring the groundwater around the lagoon with underground wells.¹⁴

Regulatory Climate

North Dakota's law and regulations require all animal feeding operations -- including swine, cattle and poultry -- that exceed one or more of the following criteria to apply for a state water quality permit:

• 200 or more animal units at any one time;
  
  
• 100 or more animal units at any one time and located in a flood plain;
  
  
• Distance to surface water of less than two feet per animal unit;
  
  
• Distance of less than 500 feet to a public well; or
  
  
• Distance of less than 50 feet to a private well.¹⁵

Although North Dakota's permitting threshold is stiffer that that in many states, the Health Department has not required most small-sized CAFOs that meet this threshold to apply for permits.¹⁶ Twenty-two livestock operations with more than 1,000 animal units have permits to operate in North Dakota.¹⁷ (Burkel Turkey Farms in southeastern North Dakota was the state's largest livestock operation, with 28,305 animal units,¹⁸ or about 1.6 million turkeys, but it went out of business in 1998.¹⁹)

Most of North Dakota's design, operating and pollution rules that are specific to CAFOs are fairly similar to those in other states. Several of the state's standards, however, are unusually strong, namely those regulating odor and corporate farming. Its solid waste standards, also unusually strong for agricultural operation, were originally written to address industrial pollution problems other than CAFOs.

Odor

North Dakota's air quality law and regulations include an odor standard of two "odor concentration units" and a hydrogen sulfide standard of 0.05 parts per million. The state rules define an "odor concentration unit" as the maximum number of standard units of odor-free air diluting a standard unit of odorous air so a certified inspector or review panel can still detect that objectionable odor in the diluted mixture. Tests are taken using a Barnebey-Cheney Scentometer for odor, and an ambient air analyzer for hydrogen sulfide. By law, enforcement of the odor and hydrogen sulfide rules is complaint-driven. While the odor law provides a mechanism for property owners or renters to prompt air quality tests, the law does not mandate that inspectors take enforcement action when they find violations.²⁰ In EnviroPork's case, for example, Health Department environmental engineer Gary Haberstroh chose to monitor the facility rather than take disciplinary action.²¹

Solid Waste

North Dakota's solid waste law includes agricultural waste in its definition of solid waste. But the regulations issued by the Health Department under this law exempt agricultural waste.²²

Griffin and Peterson's lawsuit asked Judge Bohlman to direct the Health Department to regulate EnviroPork under the solid waste law. Bohlman agreed, saying "[t]he classification of EnviroPork as a `farming operation' is erroneous... As a matter of law, EnviroPork is not a "farming operation'... but a pig factory. There is no family farm here, no cultivation of land, nor any other indicia of a farm. It is an industrial enterprise. It produces waste of a magnitude that clearly requires regulation under [the solid waste law]."²³

Immediately after Bohlman's decision, the Health Department issued an emergency interim rule, acting under its authority to issue emergency rules in the case of "immediate peril to public health, safety or welfare."²⁴ Under the emergency rule, which took effect October 9, 1998 and lasts for six months, agricultural operations will continue to be exempt from the solid waste rules as long as they "recycle" their waste by using it as fertilizer and do not cause water pollution.²⁵ Although the Health Department has said that the emergency rule would not apply to EnviroPork and other facilities that are already permitted, citizen activists say that they see no reason why existing facilities would not apply for amended permits under the new weaker rule. This rule is so weak it would exempt most factory farms unless there is a proven water pollution problem. Before becoming final, the rule must undergo public hearings and review by the state legislature.²⁶ Griffin and Peterson have filed a motion to expand their lawsuit to appeal the emergency rule.²⁷

If the solid waste law survives judicial and legislative review, the Health Department will likely have to initiate a rulemaking defining which type of agricultural operations have to comply with criteria established by the solid waste regulations and whether the solid waste law applies to future facilities, existing facilities or both. The criteria include:

• Disclosure of all civil, administrative and criminal complaints for the violation of any state or federal environmental laws and any felony convictions for fraud or misrepresentations;
  
  
• Provide county commissioners with the opportunity to call a special election for voters to approve or disapprove the facility based on public interest and impact on the environment. If a majority of the qualified electors voting in the election disapprove of the facility, the Health Department may not issue the permit and the facility may not be located in that county;
  
  
• Require the owner to post a bond insuring that the state has sufficient funds to clean up after a waste spill or if the company goes bankrupt, and
  
  
• Submit soil and hydrological studies by the state geologist.²⁸

Corporate Farming

North Dakota's corporate farming law prohibits ownership of agricultural land and operation of farms and ranches by corporations other than family farm corporations and cooperatives whose participants are actively involved in day-to-day operations.²⁹ In other states, major corporations have managed to get around anti-corporate farming laws of this type by contracting with farms to raise the corporation's animals. Other corporations have operated farms through farm cooperatives. EnviroPork has done both. Its factory hog farm is one of the first to employ these methods in North Dakota. The first EnviroPork proposal in 1997, under which North Dakota hog producer Bob Berquist would own the facility and Purina's SMS division would operate it, came under criticism from North Dakota Attorney General Heidi Heitkamp and Agriculture Commissioner Roger Johnson as violating the corporate farming law.³⁰ In an attempt to comply with the corporate farming law, EnviroPork floated a new proposal under which Bob Berquist would own the land, Dakota Facilities LLC (a company owned by Berquist and his brother-in-law, John Haugo) would own the buildings and SMS would operate the facility.³¹ Heitkamp gave the proposal her initial approval after SMS and North Dakota Pigs Cooperative (NDPC) changed all of the sections of their contract that read SMS "shall do" to read "in consultation with SMS, NDPC shall do."³² The Attorney General's office is now monitoring EnviroPork to see "who is running the show," according to Assistant Attorney General Carmen Miller.³³

There is talk of amending the corporate farming law in the 1999 legislative session to make it more lenient.³⁴ Public interest groups fear that the Farm Bureau and the North Dakota Pork Producers will revive an earlier proposal to exempt all livestock facilities or propose other ways to weaken the law.³⁵

Restrictions on Environmental Laws

North Dakota also has a law, passed by the 1989 legislature, which restricts the state's use of regulations that are stricter than federal regulations.³⁶ The coal industry used this law in 1997 to successfully weaken the state's ambient air quality standards for sulfur dioxide, and the law could be used to challenge the state's CAFO regulations if federal standards are weaker.³⁷ Specifically, the law could be used to challenge the state's odor standards since there are no federal odor standards. Under the law the Health Department can adopt rules more stringent than the corresponding federal regulations only if it makes a written finding that the corresponding federal regulations are not adequate to protect public health and the environment of the state. Any person affected by an existing rule that is either more stringent than federal regulations or where there is not corresponding federal regulation can petition the Health Department to review and revise those rules to make them equivalent with the federal regulations.³⁸ The review is conducted by the Health Department's rulemaking authority, the State Health Council, which is comprised of 11 members, all appointed by the Governor and includes two representatives of regulated industries.³⁹

Local Control

North Dakota counties and townships have the authority to regulate CAFOs, but few do. At least three counties -- Burleigh, Oliver and Grand Forks -- have initiated the process of writing regulations, but none has completed the process.⁴⁰ In April 1998, Burleigh County declared a six-month moratorium on feedlots of 200 animal units or more to allow time to write an ordinance regulating them. At that time, the county had two requests for cattle feedlots pending.⁴¹

Primary interviewees for this chapter:

Mark Trechock
Dakota Resource Council
P.O. Box 1095
Dickinson, ND 58601
Phone: 701-227-1851
Fax: 701-225-8315
e-mail: drc@dickenson.ctctel.com

Sara Kendall
Western Organization of Resource Councils
110 Maryland Avenue, N.E., Suite 307
Washington, DC 20002
Phone: 202-547-7040
Fax: 202-543-0978
e-mail: dc@worc.org

Notes

1. Mark Hanson, "Feedlots Focus on Meeting," Bismarck Tribune (June 2, 1998).

2. Erin Campbell, "Feedlot Debate Surfaces in N.D.," AGWEEK (February 9, 1998).

3. Mark Manson, "Feedlots Focus on Meeting," Bismarck Tribune (June 2, 1998).

4. "Hog Farm Violates State Health Standards," Grand Forks Herald (May 14, 1998).

5. Dale Wetzel, "Farm Permit Stalled," Bismarck Tribune (October 25, 1997).

6. Jaime Delage, "Hog Farm Violates State Health Standards," Grand Forks Herald (May 14, 1998).

7. Dale Wetzel, "Judge Says Hog Farm Must Clear Up Odor Problem," Bismarck Tribune (July 29, 1998).

8. State of North Dakota, ex. rel. Jim Griffin, et al., vs. Dakota Facilities, LLC, et al., Civil No. 98-C-00724.

9. Dale Wetzel, "Judge Says Hog Farm Must Clear Up Odor Problem," Bismarck Tribune (July 29, 1998).

10. Personal communication between Mark Trechock, Dakota Resource Council, and Lyle Witham, Counsel, North Dakota State Department of Health (November 9, 1998).

11. State of North Dakota, ex. rel. Jim Griffin, et al., vs. Dakota Facilities, LLC, et al., Civil No. 98-C-00724.

12. Associated Press, "New Hog Co-Op to be Scrutinized," Bismarck Tribune (February 11, 1998).

13. Dale Wetzel, "Judge Says Hog Farm Must Clear Up Odor Problem," Bismarck Tribune (July 29, 1998).

14. Jaime Delage, "Hog Farm Violates State Health Standards," Grand Forks Herald (May 14, 1998).

15. "Managing Livestock Waste," North Dakota Health Department (undated).

16. Erin Campbell, "Feedlot Debate Surfaces in N.D.," AGWEEK (February 9, 1998).

17. Erin Campbell, "Feedlot Debate Surfaces in N.D.," AGWEEK (February 9, 1998).

18. Mark Manson, "Feedlots Focus on Meeting," Bismarck Tribune (June 2, 1998).

19. Personal communication between Mark Trechock, Dakota Resource Council, and Lyle Witham, Counsel, North Dakota State Department of Health (November 9, 1998).

20. North Dakota Administrative Code Article 35-15-16.

21. Dale Wetzel, "Judge Says Hog Farm Must Clear Up Odor Problem," Bismarck Tribune (July 29, 1998).

22. North Dakota Century Code Section 23-29-03 and North Dakota Administrative Code Article 33-20-01.1-02.

23. State of North Dakota, ex. rel. Jim Griffin et al., vs. Dakota Facilities, LLC, et al., Civil No. 98-C-00724.

24. Associated Press, "Emergency Interim Rule on Farm Waste Issued by State Agency," Minot Daily News (October 10, 1998).

25. Dale Wetzel, "Making a Big Stink, Emergency Rules on Livestock Waste Challenged," Minot Daily News (October 15, 1998).

26. Associated Press, "Emergency Interim Rule on Farm Waste Issued by State Agency," Minot Daily News (October 10, 1998).

27. State of North Dakota, ex. rel. Jim Griffin et al., vs. Dakota Facilities, LLC, et al., Civil No. 98-C-00724.

28. North Dakota Century Code Sections 23-20.3 and 23-29.

29. North Dakota Century Code 10-06.1.

30. Letter to the Editor by Roger Johnson, North Dakota, Commissioner of Agriculture, and Craig Scott, Chair of Dakota Resource Council, "Corporate Farming Endanders Family Farms," Grand Forks Herald (November 6, 1997); "New Hog Co-Op to be Scrutinized," Bismarck Tribune (February 11, 1998).

31. Letter to the Editor by Roger Johnson, North Dakota, Commissioner of Agriculture, and Craig Scott, Chair of Dakota Resource Council, "Corporate Farming Endangers Family Farms," Grand Forks Herald (November 6, 1997); "New Hog Co-Op to be Scrutinized," Bismarck Tribune (February 11, 1998).

32. Personal communication between Mark Trechock, Dakota Resource Council, and Sarah Vogel, attorney for plaintiffs Griffin and Peterson (September 1998).

33. Associated Press, "New Hog Co-Op to be Scrutinized," Bismarck Tribune (February 11, 1998).

34. Erin Campbell, "Feedlot Debate Surfaces in N.D.," AGWEEK (February 9, 1998).

35. Senate Bill 2339 passed the North Dakota Senate 28-20 in 1995, but failed in the House of Representatives, 18-77.

36. North Dakota Century Code Sections 23-20:3 and 23-29.

37. North Dakota Department of Health, "Summary of Findings: North Dakota Sulfer Dioxide Standards," prepared for the State Health Council (January 1997).

38. North Dakota Century Code Section 23

39. North Dakota Department of Health, list of State Health Council members (June 14, 1996).

40. "County Panel Rethinks Proposed Livestock Rules," Grand Forks Herald (August 12, 1998); John McDonald, "Feedlot Ordinance Draws Fire," Bismarck Tribune (August 13, 1998).

41. Jeffery G. Olson, "Feedlots will Get Scrutiny," Bismarck Tribune (April 7, 1998).