A fight over whether large hog feed lots will contaminate water in two northwest Kansas counties has resulted in a judge declaring the state violated law by issuing permits for the hog operators.
The ruling by a Shawnee County Judge in Topeka declared the Kansas Department of Health and Environment broke the law in granting construction permits in Phillips and Norton counties. The ruling came in a challenge brought by the Sierra Club of Kansas which argued hog farmer Terry Nelson and his relatives were allowed to avoid sewage waste discharge controls. The Club contended Nelson subverted livestock concentration limits by creating side-by-side businesses which in essence were single operational complexes, according to the Topeka Capital Journal.
The legal fight was a test to determine whether hog producers, in consultation with the Kansas Livestock Association, had discovered a loophole to the minimum water setback of 500 feet for waste control systems at large hog confinement barns. KDHE accepted the applicants’ split-ownership strategy and applied the 250-foot separation distance typical of much smaller hog facilities.
Shawnee County District Court Judge Richard Anderson’s order rejected permitting decisions made in 2017 and 2018 by KDHE officials in the administration of then-Gov. Sam Brownback. The judge invalidated the permits issued by KDHE, sending the case back to the agency for further proceedings on the applications.
Anderson said in the Dec. 6 order the agency’s perspective wasn’t “supported by substantial evidence and is otherwise unreasonable, arbitrary and capricious.”
KDHE argued it had no obligation to investigate whether LLCs set up by the Nelson family had common ownership or operations, but the judge said KDHE “construed its authority too narrowly” and nevertheless could have denied the permits based on its overall duty to shield the environment from harm.
The Sierra Club asserted KDHE should have required the Husky Hogs and Prairie Dog Pork facilities in Phillips County and the Rolling Hills Pork and Stillwater Swine facilities in Norton County to be located at least 500 feet from surface water because of the number of hogs and distance of the facilities from water exceeded the maximum allowed for 250-foot permits.
“We are grateful that the judge upheld the clear intent of the Legislature when they increased protections for surface water near these large hog confinements,” said Craig Volland, chairperson of the agriculture committee of the Kansas chapter of the Sierra Club.
The 1998 Legislature recognized larger concentrated hog feeding operations, with their associated mass of waste, increased the risk of pollution to lakes and streams. The barriers linked to distance from water and livestock units on site were created to limit risk.
KDHE spokeswoman Kristi Zears said no decision had been made about appealing because the district court ruling was under evaluation.
“If a decision to appeal is made, it will only occur after KDHE and the attorney general’s office have thoroughly reviewed the matter,” Zears said.
The KLA didn’t respond to a request for comment, and the person who answered the telephone at Nelson Farms declined to take questions.
In 2018, The Topeka Capital-Journal reported KDHE assessed fines of $152,000 against the Nelson business empire for ignoring cease-and-desist orders to halt construction in Phillips and Norton counties of unauthorized hog confinement buildings and waste facilities capable of serving tens of thousands of swine.
Aaron Popelka, a KLA attorney, said the KDHE fine was challenged because there were “facts in dispute.”
KDHE had issued a $76,000 penalty to Rolling Hills Pork, which was the responsibility of Clarke and Julia Nelson, who are related to Terry Nelson. A fine of $71,000 tied to Old Stone Pork facility was directed at Janet Sell, manager of an LLC linked to Terry Nelson. Under a negotiated settlement, KDHE slashed the total fine last year to $34,000.
Source: Topeka Capital Journal