Minnesota District Court Judge Michael Kraker has dismissed, with prejudice, a criminal charges against the owners of Excel Dairy located near Thief River Falls, Minn.
The suit and criminal charges were brought last year by the Marshall County District Attorney against The Dairy Dozen, LLP, owners of Excel Dairy. The County Attorney alleged Excel repeatedly and criminally violated state odor standards as it emptied a manure pit.
Judge Kraker dismissed the cases because he said theCounty Attorney failed to show probable cause. "In sum, the State has not provided evidence of any [odor] exceedences that were not primarily caused by the remediation ordered by the Minnesota Pollution Control Agency,” Kraker wrote in his ruling.
The suits brought against Excel "were an extreme abuse of power,” says Rick Milner, one of the owners of Excel. "The judge is basically saying what we've been saying all along.”
The Dairy Dozen group bought Excel Dairy in 2005, and after renovations, began milking in December 2006. It sought and received an individual permit for the dairy to construct two more lagoons, the second and third stages of a manure processing system, in March 2007. As part of that permit, MPCA ordered that the original lagoon be completely emptied to inspect the clay lining of the pit.
"The events that happened once Excel Dairy began the ordered remediation in May 2008 have been a bureaucratic, legal and financial nightmare,” says Milner.
Last May and June, while cleaning the first pit, manure sludge from the on-going dairy operation was directed into the second and third stages. "This disrupted the normal anaerobic and aerobic settling pond process, thus worsening the odor,” says Milner. But he says it never was anyone's intent to cause offensive odors.
Earlier this spring, MPCA revoked the dairy's permit, and then immediately re-instated it with the condition that all three lagoons by emptied by June 1. The problem now, says Milner, is 20” of rain last fall left crops unharvested. And only now are combines running to salvage the corn where fields are dry enough. With fields still wet, it will be difficult to get the lagoons emptied in the next two weeks.