CITY ATTORNEY: TURNER COUNTY HAS AUTHORITY OVER DAKOTA PROTEIN SOLUTIONS
Dakota Protein Solutions (DPS), the Turner County rendering plant located a mile-and-a-half southeast of Freeman that has drawn public outcry on social media in recent months, was a hot topic as the Freeman City Council met in regular session Tuesday night, Aug. 5.
And the dozen residents who attended the meeting to both receive information and provide input learned from Freeman City Attorney Mike Fink that action to mitigate the smell coming from the plant could be forthcoming.
Fink, who has been in communication with Freeman Mayor Mike Walter in recent weeks regarding the situation, said the first possible step could come from Turner County, which issued the conditional use permit for the plant and has authority over DPS.
Even though the plant is closer to Freeman than any other town — and even though the city provides water to DPS — because the city of Freeman is in Hutchinson County and its zoning extends only one mile outside of city limits, the city has no jurisdiction.
And while Turner County does not have specific nuisance ordinances in the way the city of Freeman does, the commission “could pass one in short order.”
Fink also said that, according to the Turner County State’s Attorney, a notice will be sent “in the coming days requiring Dakota Protein Solutions to appear before the zoning board to show cause why the permit should not be withdrawn or amended, or some other action taken.”
No date had been set as of Monday night, but the meeting is expected to take place at the end of August or early September, and Fink encouraged both members of the public and city councilors to attend — and to speak out.
“They may need a fairly large room,” Fink said, noting that Dakota Protein Solutions also has an animal waste permit through the Department of Agriculture.
He also said there is one other regulatory agency relative to the discussion: The South Dakota Animal Industry Board, which has sanitation standards found in the administrative rules that are part of state law.
Meanwhile, Fink said he is “trying to put my hands on as much information as I can” and encouraged the public to provide him with as much documentation as possible.
“I already have lots of complaints,” he said, noting documentation should include names, dates and times for maximum impact. “Some pictures I received have led to a lot of interest from both the state vet and from the state’s attorney. I will continue to forward those on as I receive them.”
Other options
While the nuisance ordinances on the city of Freeman’s books don’t carry any weight in concerns over DPS, Fink said there is nothing stopping private citizens from banding together and bring a private nuisance claim on their own. The odor coming from DPS and what that could mean for property values “would be the type of damages a complaining party would be requesting,” he said. “Typically private parties don’t want to do that, because when they hear what it’s going to cost, very quickly, the dollars blow them out of the water.”
Fink was asked if the city could simply shut off the water to the plant.
“We could shut the water off and I am almost 100 percent convinced it would lead to litigation,” he responded. “We could be sued for damages if we did that, and I doubt our insurance coverage would protect us from that type of claim.
“We can’t breach a contractual obligation because we don’t like how somebody is doing business,” Fink continued. “Could we shut the water off? Sure. But we would be buying a lawsuit and the attorneys would end up paid well and, at the end of the day, I believe the spicket would be turned back on.”
The city attorney appeared sympathetic to the concerns expressed, even beyond encouraging the public to document as much as they can and pass it along to him.
“My personal opinion, beyond my role as attorney, is that I believe that the problem could be solved by simply shutting down the plant until they figure out the science,” he said. “That’s my opinion. But one of the things we don’t want to do is be on the wrong end of a lawsuit when we’re on the right side of the issue.
“We’re better off honoring our contractual obligations and urging the regulatory folks to do their job, and if that doesn’t lead to satisfaction, then consider other options.”
Tuesday’s meeting also included public input from Freeman residents who shared serious concerns over what the ongoing odor coming from DPS will mean for quality of life — and the future of the town.
Background
Dakota Protein Solutions opened last September after a years-long effort by a group of investors that began in 2019 to open the facility on the location of a previous rendering plant — Dakota Rendering.
Those behind the plant heralded it as the first of its kind in all of South Dakota — a non-proprietary, value-added animal waste handing facility with measures in place to mitigate the odor through an internal air scrubber system that cleans every square inch of the facility every 15 minutes.
“From a regulatory perspective we weren’t required to do that,” Scott Stern, a Freeman businessman at the time and one of the investors, told The Courier last August. “But we made a commitment to the community and the area that said we were going to build an enterprise that was going to mitigate their concerns.”
