Herald and Journal, Feb. 25, 2002

MPCA closes the book on final chapter of Metro Dairy spill story

By Lynda Jensen

A large liquid manure spill almost one year ago at Metro Dairy, located three miles south of Waverly, was finally put to rest by the Minnesota Pollution Control Agency (MPCA) recently.

The spill was settled in court last fall, however, Wright County prematurely released information about the settlement before it was truly settled, said MPCA Information Officer Julie Swiler.

The case remained suspended over the winter, pending technical changes made in the legislature that might have affected part of the settlement, Swiler said.

The technical impact didn't happen and the original fine amount of $26,500 was delivered to owner Virgil Scherping last month.

It was possible that the legislative changes could have altered $6,000 of the total fine amount ­ either by having it being omitted entirely, or having it used in a different way, Swiler said.

The $6,000 is called the "supplement environmental project," or money given to the University of Minnesota Department of Biosystems and Agricultural Engineering for the purpose of conducting research to improve dairy milkhouse waste treatment processes in Wright County, according to the settlement.

The spill is related to more than 100,000 gallons of liquid manure that spilled March 15, 2001, when earthen lagoons at the dairy overflowed into a storm water pond near the dairy, and discharged thousands of gallons of liquid manure into a county ditch in Woodland Township.

Scherping was charged in September with a number of violations related to the county feedlot ordinance. Employee Chad Due was also charged with violating state MPCA reporting and remediation requirements.

The Wright County Attorney's Office joined forces to come up with an agreement regarding the court case against Scherping, and a Metro Dairy employee related to violations of the county feedlot ordinance.

This action was unusual because the MPCA is a civil process and the attorney's office is criminal; however the defendant requested the arrangement, according to the county attorney's office.

This was called a "global settlement" in legal terms, and means that "all the issues" were discussed with the parties together.

The settlement lists the simple facts of a spill March 15 that was well-documented by angry neighbors as far as six miles away.

The MPCA slapped Scherping with a $26,500 fine in the settlement, but left other loose ends hanging.

For example, wording in the MPCA settlement does not establish or prove that Metro Dairy caused the spill, although it fined the operation and caused a flurry of paperwork for Scherping to avoid future debacles of this nature.

"Nothing in this agreement constitutes an admission by either party or creates rights, substantive or procedural, that can be asserted or enforced with respect to any claim of or legal action brought by a person who is not a party to this agreement."

In fact, the settlement makes it clear that Scherping believed the MPCA reported incorrect information about the spill, although many locals living in the area took photographs, made journals and testified to the spill's existence.

"The regulated party (Scherping) does not admit these allegations, denies that its conduct violated any laws or regulations and believes many of MPCA's allegations below are mistaken, are taken out of context, do not reflect all relevant facts or otherwise are in error."

The MPCA alleged the following violations:

· Metro Dairy did not notify MPCA of the spill, or take actions to recover the spill or prevent pollution of waters.

The dairy is required to give 24 hours notice, and didn't give the state notice until four days after the initial spill.

· Untreated sewage.

The MPCA alleged that Metro Dairy allowed untreated sewage to be discharged into waters of the state. This occurred when liquid manure entered Wright County ditch #31 at the time of the spill.

· Prohibition against discharge into unsaturated zone.

The MPCA alleged that manure wastewater was discharged from the facility basin onto the ground and created a risk of pollution to ground water. However, the MPCA performed two rounds of drinking water well sampling in the vicinity and did not identify any contamination to ground water, the settlement said.

· Water discharge quality standards.

An owner of a feedlot with 1,000 animal units or more is required to comply with federal effluent limitation requirement.

· National pollutant discharge elimination system.

Metro Dairy should maintain a lagoon depth to handle precipitation and runoff to the lagoon from a 25-year, 24-hour storm event, whichever might be greater.

If Scherping does not follow through with the financial stipulations, he will be required to pay $1,000 per violation in late fees, depending on if he did not pay his fine on time, and possibly up to 10 percent of the fine amount in late fees.

Scherping must install a shut-off valve to control the flow of stormwater from the basin to ditch #31.

In addition, the MPCA must have access to Metro Dairy grounds and records, according to the settlement.

Repeat violations, if it could be established that the first one ever occurred, may call for harsher penalties from the federal and state environmental laws, according to the settlement.

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