Ganje: What should the ‘standard of care’ be?

David Ganje

by David Ganje
Ganje Law Offices

A Lake Norden cheese manufacturer is expanding its operations. In the course of this expansion it has applied to the South Dakota DENR for a new wastewater discharge permit. The existing cheese plant expansion would discharge up to two million gallons of factory wastewater per day into the Big Sioux River watershed. This process is also called a stream discharge.

In a recent article on the pending permit an Argus Leader reporter described parties concerned with a new permit as “environmental buffs.” In this context buff means an enthusiast or hobbyist. To describe the parties as buffs belittles the parties’ points and diminishes the environmental issues raised by the parties. It should be noted that I do not represent any of the parties or the manufacturer in this matter.

Expansion of the existing plant would increase milk processing capacity by six million pounds per day. Advocates of the plant expansion suggest a good economic impact for the region, including regional dairy farmers. Dairy production and manufacturing facilities are iterations of today’s agribusiness and offer a means by which modern agriculture can continue to move on from the one-horse farm system of yesterday’s agricultural world. But such agribusiness also results in modern consequences to man’s natural resources and to the stewardship of those resources.

A finding in the draft cheese plant permit issued by the DENR indicates that such waste water would cause a degradation in the state’s waters, but further concluded that the expansion will not violate any existing water quality standards in the receiving waters. The draft permit would not put limitations on the actual concentration of nitrogen found within the water to be discharged.

High levels of nitrate can be toxic to humans and livestock. And some studies have linked moderate nitrate levels with birth defects, cancers and thyroid problems. The EPA has set the maximum contaminant level of nitrate as nitrogen at 10 parts per million for the safety of drinking water. Nitrate is just one of several potential surface water contaminants which could be found in the waters of the state.

There is no indication that discharge waters in this expansion project will reach the maximum contaminant level. However, the cheese plant draft permit states that nitrate wastewater quantities, “shall be monitored, but will not have a limit.” Testing in South Dakota suggests that long term levels of nitrate (NO3-N) are rising generally but that current levels are still below maximum acceptable standards.

Groundwater, in addition to surface waters, can also become affected by nitrate levels. In the 1980s the towns of Elkton, Aurora and Alcester closed their public water wells because of high concentrations of nitrate. In 2016 the Iowa Department of Public Health tested more than 1,700 private wells. It found that 19 percent were at or above the legal limit for nitrates.

Some public water system operations in South Dakota induce surface waters into shallow subsurface aquifers. These aquifers are used by public water systems. This activity helps with the recharge of important aquifers. Any increase in the concentration of nitrate in surface waters could be a potential problem for public water systems. A number of water systems with elevated nitrates blend their public water with lower nitrate water from alternate water sources.

The state has not yet granted the permit application and has not yet set the terms and conditions of a permit. Nevertheless the pending draft permit has no quantitative limitation on the amount of nitrate concentration that will be allowed. I am not aware of a written cost-benefit analysis done on the affected project waters concerning 1) water needs and uses of the existing downstream population; 2) the current water quality of the affected watershed; 3) and the future water use, trends and needs of affected waters. Should an activity be approved because a water system may not yet have reached the ‘maximum amount of effluents allowed by law’? This a weak argument for proceeding with business as usual. Should the maximum limits of the law be the state’s official standard of care when managing natural resources? The EPA in 2011 stated that individual states, the EPA and stakeholders, working in partnership, “must make greater progress in accelerating the reduction of nitrogen and phosphorus loadings to our nation’s waters.”

David Ganje practices in the area of natural resources, environmental and commercial law.