Northwest Kansas producer battling KDHE rules

Nelson family is appealing $147,000 in fines for construction of hog barns before permitted by state

A prominent northwest Kansas farm family has been ordered to pay $147,000 by the state for allegedly ignoring cease and desist orders and repeated warnings to stop construction of a hog facility.

The Nelson family had not yet received approval from the Kansas Department of Health and Environment when they began dirt and concrete work at two sites in Norton and Phillips counties, according to the reports the High Plains Journal received from KDHE in late April.

According to the documents, KDHE workers alerted the Nelsons, both through notices and by site visits, that the family was in violation of state statute. 

Terry Nelson, the farm’s patriarch, and his family have been working closely with the Kansas Livestock Association and its Environmental Services division to rebuild and expand their operation after a June 2017 fire destroyed several hog barns.

The Nelsons are challenging the order, said Aaron Popelka, vice president of legal and government affairs of the KLA, which is representing the Nelsons on the swine projects.

Timeline

The Nelsons’ expansion plans began after a fire destroyed three hog barns at the Terry Nelson-owned Husky Hogs operation near Long Island. Losses totaled $3.5 million, which included 2,000 sows and 7,000 piglets.

Terry Nelson submitted registrations to KDHE announcing his intent to submit applications for two operations at the Husky Hogs breeding site where the fire occurred, plus five other sites in Phillips and Norton County that will grow out the additional piglets, according to Kansas Sierra Club documents.

Two of those new facilities—Old Stone Pork and Rolling Hills Pork—were subject to the KDHE fines for the construction violations, according to the KDHE documents.

In July, Janet Sell of Long Island submitted a registration form to the Livestock Waste Management program for the Old Stone Pork facility. She is listed as the owner. In late June, Clarke and Julia Nelson, Terry Nelson’s son and daughter-in-law, submitted a form for the Rolling Hills Pork facility. They, too, are listed as owners.

Both facilities would be operated by Terry Nelson’s Husky Hogs, according to the documents. Rolling Hills would be able to hold 9,300 head, while Old Stone would be capable of handling 24,000 head.

According to KDHE’s Administrative Order, on Oct. 5, while in the area to inspect the family’s new Hilltop Nursery site, a state inspector observed dirt work being done at the Old Stone Pork and Rolling Hills Pork sites.

A cease and desist order was issued a week later by KDHE Secretary Susan Mosier, stating the project must stop until the state formally approved permit applications, construction plans and waste management programs.

Mosier noted in the order that KDHE could take administrative action based on the observed violations, according to the KDHE documents.

“Any construction activity that continues after receipt of this letter and prior to approval of the requisite permit application and plans will be considered further violations of Kansas law and subject to civil penalties of up to $10,000 per day per violation,” Mosier stated.

The KLA Environmental Services submitted a permit application on behalf of Rolling Hills Pork on Oct. 18, and Old Stone Pork on Nov. 6.  KDHE then published a public notice in the Kansas Register of the complete permit applications on Nov. 23 and Nov. 16, respectively.

In its Administrative Order, KDHE officials claim they warned the Nelsons again in November to stop construction after they observed work being done on the sites. 

KDHE claims construction, however, continued with staff documenting construction activity twice more in early December.

KDHE issued civil penalties of $76,000 for Rolling Hills and $71,000 for Old Stone Pork in early January, but those fines are being appealed by Old Stone Pork and Rolling Hills Pork, according to KLA.

Permits now approved

The fines are unrelated to pollution and are procedural in nature regarding the construction.

Meanwhile, the Kansas Chapter of the Sierra Club has filed several complaints about the expansions—including regarding the existing permitted Husky Hogs site where the fire occurred. This site was not subject to any KDHE fines, according to the documents.

Craig Volland, agriculture chairman for the Sierra Club, provided documents addressing the organization’s concerns regarding the division of the Husky Hogs swine feeding and breeding operation into two new permitted operations—the other called Prairie Dog Pork—of a greater total capacity. 

Volland also noted the organization is concerned about the spacing between the operations and water quality in the nearby Prairie Dog Creek.

Both KLA’s Popelka and Volland noted a law change 20 years ago regarding swine operations. 

The 1998 Kansas Legislature passed stricter environmental legislation for swine operations compared to other livestock. To address odor issues, lawmakers increased setback distances from the nearest neighbor for new and expanding operations. It also established separation distances from water sources for swine operations with 3,725 animal units or greater. 

No similar statute applies to beef, sheep or poultry operations.

Popelka couldn’t comment on the KDHE fines for Old Stone Pork and Rolling Hills Pork because the fines are part of an ongoing legal issue that is being appealed.

Popelka was able to comment on the perceived issue involving Husky Hogs and Prairie Dog Pork as it is not part of the ongoing appeal with KDHE. He did say the fire at Husky Hogs was devastating for a family whose operation has a big economic impact on the region. 

The Nelsons wanted to grow a little bit after the fire, he said. To do so and stay within legislative guidelines, the operation would need to be divided into two separate entities.

KLA legal staff researched the regulations and spoke with KDHE about whether two wholly separate operations were allowed by Kansas law. With KDHE approval, two separate LLCs were created and KLA Environmental Services staff drew up the site plans.

Popelka added that the waste handling systems are separate for each operation and each operation has its own designated farmland for its nutrient management plan. Each operation must follow KDHE guidelines for waste.

“There are no environmental risks,” Popelka said. “These are designed by KLA Environmental Services, they are modern and up to the high standards that Kansas has.”

KDHE spokesman Gerald Kratochvil sent the Journal the following statement regarding spacing for hog facilities. 

Kratochvil noted that KDHE “classifies swine facilities as separate operations if the facilities are located on separate pieces of land without a contiguous property ownership. Each of the separately owned permitted facilities meet the required 4,000-foot separation distances to habitable structures; and all required separation distances from surface water, groundwater and drinking water wells. KDHE believes that the information that has been submitted demonstrates the capability of each facility to adequately protect the waters of the state and public health.”

Meanwhile, the Nelsons did get their permits approved by KDHE and construction is lawful. 

KDHE approved the permit application, construction plans, specifications and swine waste management plan for Old Stone Pork on Dec. 11, 2017, and for Rolling Hills Pork on Dec. 12, 2017, Kratochvil wrote.

Amy Bickel can be reached at 620-860-9433 or [email protected].