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ND Cass County judge hears sow barn appeal

FARGO, N.D. — A Cass County district judge will decide whether the North Dakota Department of Health properly approved a health permit for a large sow barn complex in western Cass County near the town of Buffalo, N.D.

Cass County District Judge Douglas R. Herman, heard arguments on Feb. 6 in Fargo, N.D., but didn't make any statements indicating how he'll decide on the permit for a 9,000-head swine complex that will include about 6,500 sows.

About 70 observers, mostly Concerned Citizens of Buffalo who are opposing the project, and state officials attended the three-hour long hearing. The judge said he'd make the case a priority and said it would still take weeks to decide and may end up at an appellate level. Herman said the files included 6,600 pages of background.

Derrick Braaten, a Bismarck attorney representing the community, argued the Rolling Green project failed to disclose the impact of piglet numbers, putting the project into a 1.5 mile setback for odor if confined animal feeding operations exceed a 5,000-animal unit.

Margaret "Maggie" Olson, an assistant state attorney general representing the health department, argued the piglets were properly counted and that the appellants knew about them. "This case really not about a hog facility at Buffalo but it is about the rule of law and whether we respect that rule of law," Braaten said.

Simple enough?

Braaten said the permit should have triggered a more exhaustive National Pollutant Discharge Elimination System study that applies to entities that discharge pollutants. She said the hog facility is considered a "zero-discharge facility." She said the state said they couldn't legally impose the NDPDES law because the state rule was required by the EPA but became unenforceable by a 2003 court ruling.

Braaten also said the project added 2,413 acres of land to the acreage for applying manure. Herman asked whether the addition of the land was "pro-environmental" but Braaten said the changes were all made as a reaction to the group itself, and constituted a new application because the public didn't have a chance to study the new sites.

Olson said the change in acreage should have the effect of increasing "the level of environmental protection" and that each parcel would be subject to its own manure management plans. "The important thing is that there are adequate acres in place," she said.

Olson called the piglet number rule a "red herring," in that the EPA includes unweaned pigs with the mother and that weaned pigs would be shipped away and that only those being kept for future breeding would remain.

Federal rules

Braaten said the state statute is clear about the weight of pigs, regardless of the EPA designation: swine weighing less than 55 pounds are .1 animal units. Olson said that even the piglets a 0.1 designation the facility would still be under 5,001 animal units that trigger needed for a 1.5-mile setback from neighbors.

Olson initially questioned the standing of the appellants — individually mentioning Randy Coon, an opponent of the project and an agricultural economics researcher, because they hadn't established specific injury or "identify which water, his interests, or impacts on his farming operations" beyond the general public.

Rolling Green's attorney, Robin "Rob" Ford, of Bismarck, N.D., said the citizens group is not a part of the permit and that public comment is discretionary. He noted that the process already has taken 11 months in a department in which permits typically take three months.