FULL REPORT: BOARD FINDS DPS NON-COMPLIANT

Additional action expected when Turner County Board of Adjustment meets again Tuesday, Oct. 21 at 6:30 p.m., at Parker Community Building

So what now?

That’s the single biggest question following last week’s 5-0 decision by the Turner County Board of Adjustment that found Dakota Protein Solutions in violation of three conditions tied to its conditional use permit (CUP) granted by the board in September of 2021.

Those violations cited by Daisy Johnson, director of equalization and zoning with Turner County, were:

• Failure to establish a road agreement with both Turner County and Childstown Township;
• Failure to maintain dust control twice annually, and;
• Outdoor storage of dead stock.

Last week’s action came inside a crowded Parker Community Building Tuesday night, Sept. 23 and was part of the board of adjustment’s regular monthly meeting. Additional action is expected when the board meets again Tuesday, Oct. 21 at 6:30 p.m. — once again in the community building located on Main Street of the Turner County seat.

Turner County State’s Attorney Katelynn Hoffman said that could range from a period of probation to additional conditions required for operation to revoking the permit, which would shut the plant down.

All of this grows out of a story that has been developing since DPS opened with fanfare late last year, when a ribbon-cutting on Sept. 4, 2024 celebrated what the rendering plant would mean for the local economy and the agricultural industry in South Dakota as a whole.

“This fits right in with what we do,” Hunter Roberts, commissioner of the South Dakota Department of Ag and Natural Resources, said at last year’s ribbon-cutting. “It’s value-added agriculture and lowering the environmental footprint of that agriculture. It’s a grand slam for what I’ve done in my career.”

Johnson shows violations

But problems became evident last October when the processing of dead stock began producing an odor that intermittently infiltrated the larger Freeman community. Johnson said at last week’s meeting that, after fielding complaints, she sent a letter on Oct. 23 to DPS regarding its CUP compliance, and on Nov. 14 the Turner County Commission received a letter signed by Dan Heiman, plant manager at the time, acknowledging the challenges, and that multiple contractors had been engaged to help resolve the issues.

Turner County State’s Attorney Katelynn Hoffman, left, and Director of Equalization Daisy Johnson are pictured at the Sept. 23 meeting.

“In that letter he also affirmed commitment to address the odor and maintain good neighbor relations,” Johnson told the board of adjustment.

Meanwhile, as public outcry intensified on social media this past spring, Johnson said she continued to investigate the operation.

Another letter was sent to DPS with a compliance update on May 5, and on May 23, DPS “reported evaluating enhanced odor solutions, mechanical and chemical, (and) claimed the city of Freeman noted 70% improvement, which was disputed by the city later on,” Johnson said. “The letter also indicated details would be shared once next steps were finalized.”

In August, Johnson said she began receiving multiple aerial photos of the plant taken by David Huber showing trailers full of uncovered carcasses, decomposition fluids running from the trailers and dirt piles with a fluidlike substance openly stored on the northeast side of the property.

Those photos were taken on Aug. 3, 5, 6 and 10, she said.

Johnson said she also visited the plant during her investigation and observed dirty trailers, a strong odor, “and in general an unkempt condition … with weeds and scattered piles of materials throughout the property.”

A non-compliance order was issued on Aug. 14 after Johnson found no record of a road haul agreement with either Turner County or Childstown Township, and incomplete dust control documented by the township.

City of Freeman

In addition to Turner County officials, complaints about Dakota Protein Solutions also reached the council chambers at City Hall in Freeman in force on Aug. 5 when a number of local residents spoke strongly about the negative impact the smell was having on the community. One resident told the council that the city had “turned into an absolute hell” and another asked, “who are we protecting and who are we taking care of?”

City officials noted the only direct involvement Freeman has with DPS is a three-year contract to provide well water to the plant — DPS has repeatedly said that the quality of the water is problematic — and Freeman City Attorney Mike Fink noted that jurisdiction of the plant lies with Turner County government. Because of that, he said, the city’s nuisance ordinances do not apply to DPS.

Freeman City Attorney Mike Fink speaks at the Aug. 5 meeting of the Freeman City Council.

Fink also noted that both the Turner County State’s Attorney and Director of Equalization — Hoffman and Johnson — were aware of the situation and had been working to document several non-compliance issues, and all the city of Freeman and its residents could do was wait.

“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,” Fink said at the city council’s Aug. 5 meeting, as reported in the Aug. 13 issue of The Courier. “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.”

Those other options, he said, could include private nuisance claims brought by citizens, or the annexation of property by the city extending southeastward, which would then put nuisance violations into play per city ordinance.

Letter leads to Aug. 19, Sept. 23 hearings

Johnson’s findings led to a letter of notice issued to DPS on Aug. 14 and a hearing by the Turner County Board of Adjustment on Aug. 19. That meeting included public input shared by 10 Freeman area residents expressing deep concern over the smell, an explanation from Johnson of the cited violations, and a response from DPS officials, including Scott Stern, who apologized and told the residents, “We hear you.”

Stern also explained to the board of adjustment how and why the problems came to be and that DPS was committed to finding a solution.

“This is like a cancer,” he said, “but it’s a curable cancer.”

Also at the Aug. 19 meeting, the board learned that, per county ordinance, it was required to review the non-compliance issues and determine if they were founded in substantial evidence at its next meeting on Sept. 23. Officials agreed to move that meeting from the Miller Building — its temporary quarters while a new courthouse is being built — into a larger space to accommodate what was expected to be another big crowd of Freeman area residents. The board also agreed to move the meeting from its usual late-morning timeslot to 6:30 p.m., to accommodate those from Freeman who wanted to attend.

According to Johnson and based on the sign-in sheet, nearly 120 people poured into the Parker Community Building for last week’s meeting. They filled most of the chairs and stood in the back to take in the discourse that was civil, emotional, direct and, on occasion, contentious.

Last week’s public input

The 18 who spoke during the public input portion of the meeting iterated concerns similar to those shared before both the board of adjustment on Aug. 19 and the Freeman City Council on Aug. 5 — that the smell from DPS was having grave impact on the quality of life in the community.

But there were also new perspectives, as well as raw, unscripted emotion.

“If this starts to impact property values, that is when the (expletive) is going to hit the fan,” said Freeman city resident John Clem, who apologized for his language. “This is a bad problem. If they can’t physically fix that damn plant, the county has an obligation to put some limitations on how they operate. We can’t tolerate this crap anymore. We’re just pissed.”

Other comments came from those who have spoken out before and others who offered new insight. One was Mason Hanshaw, a sixth grader at Freeman Public who lives with his parents, Scott and Rebecca, along Highway 81 south of Freeman. The 11-year-old talked about how DPS is impacting the students.

With his mom, Rebecca, standing by, 11-year-old Mason Hanshaw shares with the Turner County Board of Adjustment how children in the Freeman community are responding to the odor being produced by Dakota Protein Solutions.

“The smell of the rendering plant makes kids feel awful and we have headaches at recess,” he told the board of adjustment. “We kids are over the smell and we hope you can do something about this. The town is not happy; please make things beautiful again and help make Freeman the town I once knew.”

Mason wasn’t the only one to address the impact the plant is having on children.

Freeman city resident Amy Cummings, who was joined at the lectern by her 8-year-old daughter, said her children come home from school complaining — “not about homework, not about recess being too short, but about the smell outside.

“These children now tell their classmates, ‘This is our new normal,’” said Cummings, who also spoke out at the Freeman City Council meeting in early August. “It breaks my mama heart.

“If an 8-year-old child can see that something is wrong, then surely we as adults, leaders and residents can recognize that action needs to be taken,” she continued. “We owe it to our kids to do better. Freeman has always been known as a safe, family-friendly, clean environment, and now we are known as the stinky town.”

“This has to stop!”

Dustin Randall, also a Freeman city resident, told about going outside to play with his 5-year-old daughter, but before he could join her she came back inside.

“Dad, we can’t go outside; it stinks out,” she told him. “It’s the rendering plant.”

Another time, Randall said, a mother from Bridgewater had her children at the swimming pool when the smell drifted in. She asked him what that odor was, “and before I could answer there were five or six kids — no older than fourth grade — saying, ‘It’s the rendering plant.’

“That’s what the new normal has become,” he said.

Randall also said he would leave Freeman.

“If the plant stays and the smell continues, I will move my family,” he said. “There are enough nice small towns in South Dakota.”

And he wasn’t the only one who shared that sentiment.

Rebecca Hanshaw — mom of Mason — said their family moved to Freeman with no connection and fell in love with the community. Now, they’re wondering about the future.

“All our family is out of state and I do not want to have them visit and experience this,” she said. “Nothing is holding us to Freeman. We could move any time we wanted.

“The rendering plant has changed our quality of life, as well as many others in town,” Hanshaw continued. “We want our quality of life back and to be proud of where we live.”

Larry Timmerman, a vocal critic on social media who also spoke at the board of adjustment’s Aug. 19 meeting, said he was ready to sell his city and rural properties and move somewhere else.

“I have land in three other counties,” he said. “Not everyone has that opportunity.”

Timmerman was direct.

“This is a non-working plant; all the experiments have failed,” he said. “The town and the plant cannot co-exist. If the plant stays, the town dies. This is an outright disregard for humanity. I cannot understand how one set of individuals can do this to another set of individuals.”

Cody Spangler, also a Freeman city resident, has been around the dead stock business for much of his life. His dad, Ray, operated Dakota Rendering on the location where DPS sits and he has seen operations in Minnesota, Iowa and Nebraska — “from large-scale international multi-million-dollar continuous cookers to father-son, two-batch operations.”

Freeman city resident Cody Spangler speaks to the Turner County Board of Adjustment on Sept. 23.

“I’ve tried to sideline myself from this issue, but due to the egregious nature of it this summer I could no longer remain silent,” he said. “I’ve been around (rendering) a large share of my life; I’ve seen well-run plants. I don’t believe the owners have the experience or the skillset necessary to operate this plant in a satisfactory manner to our community.

“The past year has proven that.”

Other Freeman area residents speaking out with concerns about the DPS operation were Robert Geier, Kim Paulson, Patrick Hofer, Janett Walter, Maurice Waltner, Tiffany Mehlhaf, Jennifer Tschetter, Kelly Weiss and Kristi Stahl.

DPS responds 

Dakota Protein Solutions had representation at the Sept. 23 meeting, as well, including two men who addressed the concerns — consultant Paul Kostboth and Ted Brandt, one of the owners. The board also heard briefly from James S. Simko, legal counsel for DPS.

Kostboth and his company, A1 Development Solutions of Sioux Falls, was hired by DPS in August to help solve the non-compliance issues the plant was facing and reached out right away to both the county and the township regarding the road haul agreements.

“We had multiple conversations on both sides,” he said, noting that the final agreement with Childstown Township had been signed the afternoon of last week’s meeting.

“Those are complete; everybody is on the same page,” he said.

Kostboth said DPS has also worked with the county to establish a plan for the dust control, noting that the chemical was on hand earlier this year, but the township’s preference was to wait to apply it until the road could be graded. It was applied for the first time in the last month, he said.

“The goal would be to set a standard schedule — probably early June and then again in October — so everybody knows when to expect it to make sure the road is done properly,” said Kostboth, who also noted the dust control would be applied on the rendering plant yard itself.

As for the dead stock storage, he said drivers have been made aware that all trucks coming onto the yard must have their trailers covered — and kept covered — until the carcasses can be processed. Animals would not be stored on plant grounds longer than 24 hours, per state statute, he said, and that all drivers are being required to access the facility through 280th St., known locally as “Old 44.”

That, he told the board, is DPS’s “commitment to you and the community.”

Brandt, who is a minority shareholder, represented the ownership group on behalf of Scott Stern, who Brandt said wanted to attend the meeting but had prearranged business travel that required him elsewhere.

Ted Brandt, a minority shareholder in Dakota Protein Solutions, speaks to the board on Sept. 23.

“Otherwise he would be here,” Brandt said. “He wanted me to apologize for all the issues we’re having; this is new to a lot of us shareholders who are involved in this operation. This is a new-from-the-ground-up facility and we’ve had our share of challenges.”

Brandt said dealing with the odor “is a very high priority for us; I can’t underexaggerate that.”

The root cause, he said, is water quality issues that DPS officials are working to remedy.

“We do have an alternate water source that we started working with over the last three weeks that we believe is going to help us tremendously, not just with our boiler operation, but also the air scrubbers that are in the facility today.”

Brandt also said there have been issues with the system that treats the water before it goes into the holding pond — “we’ve had some fats and solids that have been pumped out to that pond” — and once it’s drained post-harvest there should be improvement.

“Correcting that will definitely make a difference,” he said.

Steve Schmeichel, chair of the board of adjustment, asked Brandt about the technology DPS is using.

“Has this never been done before?” he asked.

“The facility is new, of course; the technology has been proven in other facilities,” Brandt said. “Our facility is similar to many other facilities in the Midwest. Most of those have years and years of experience. For us to get to operation excellence … I can tell you (for something) of this scale it generally takes a couple of years, and sometimes you might even go through a manager or two to get there. And that’s where we’re at today.”

“Do you have a manager hired as of right now?” asked Tony Ciampa, a member of the board of adjustment.

“We do not as of right now,” Brandt responded, who noted DPS has interim management and has also brought in a consultant from Texas “that has 20-plus years of experience and some insight.”

“We will have someone hired very shortly, but it has to be the right person,” he said. “The previous management we have had did not have a lot of rendering experience.”

Officials voice concern

During the comments from Kostboth and Brandt, Turner County officials expressed frustration and showed little sympathy for the situation in which DPS finds itself.

“I find it difficult to absorb everything you’re saying right now as truth and as fact when it was supposed to have been from Day 1,” Mick Miller, a member of the board, told Kostboth. “It took us to have a meeting for any action to get taken. I understand what you’re talking about, but what is there in that that would make us believe that it’s going to be true this time?”

“That’s a fair question; I can’t argue with that,” Kostboth responded. “I know there isn’t a partner that would sit here and say they did it right. They acknowledged that was absolutely missed. The ball was dropped, and they would certainly admit that.”

The Turner County Board of Adjustment reviews paperwork while visiting with Daisy Johnson, director of equalization for the county, Tuesday evening, Sept. 23. Pictured are, from left: Tony Ciampa, Mick Miller, Eric Meyer, Bruce Haase and board chair Steve Schmeichel. These five men will decide what action to take following the Sept. 23 meeting in which they voted unanimously to find Dakota Protein Solutions in violation of its conditional use permit. ALL PHOTOS BY JEREMY WALTNER

“What bothers me is that they waited until they were in trouble to hire you, when they should have hired you years ago,” Ciampa told Kostboth. “You’ve been doing this for years; you’ve come to Turner County, you’ve been very professional, you do stuff here and stuff turns out grand. But now they’re in trouble and now they’re calling you in. What about all those (other) years?”

“I can’t answer that,” Kostboth said. “I wasn’t involved before. I didn’t know there were any problems until I got the call from Scott.”

“I’m happy to help,” he continued. “This is horrible for the whole community; all I can talk about is what I’ve seen and heard in the past month. I have yet to hear any of the partners say, ‘No, it’s not that bad’ or ‘They need to get over it.’ Nobody is suggesting that at all.”

“This can be fixed,” Kostboth said. “There are rendering plants that don’t have this problem.”

Ciampa asked Brandt how often the shareholders hold meetings, to which Brandt replied, monthly.

“And this was never brought up in any shareholder meeting prior to now — that you were in violation?” Ciampa asked.

“Not that I can recall,” Brandt said. “As a startup a year into this, we have a lot of things we’re working through. A lot of priorities. A lot of issues. We have some good resources, but this one slipped through the cracks. That’s why we brought Paul on.”

But Ciampa pressed on.

“I find it hard to believe that, if you have a monthly shareholder meeting and a year ago you were having issues like this, why wasn’t it brought up and talked about then?” he asked.

“Which issue specifically?” Brandt asked.

“Everything,” Ciampa responded.

“The odor issues are discussed every month,” Brandt said. “It isn’t for lack of trying or lack of spend in an effort to get it right.”

Eric Meyer, a member of the board of adjustment, pinned the problems on management.

“As a board, gentlemen, when we have a problem, what is the root cause of that problem?” he asked.

“Management,” Miller responded. “The odor is the end result of a lot of things that haven’t been handled and managed right.”

Board action; what’s next

Following the testimony from both Kostboth and Brandt, the Turner County State’s Attorney explained that it was the board’s job to determine if substantial evidence could be established to find DPS in violation of the CUP.

“I had prepared a rebuttal argument after Daisy laid out her staff analysis, but I don’t know that I need to do that,” Hoffman said. “It sounds like DPS has essentially stipulated to the fact that they are in violation — falling on the sword.”

Following Hoffman’s comments, Ciampa made the motion “that the board finds substantial evidence that compliance with the conditional use permit has not been established by Dakota Protein Solutions.”

That’s when Simko — legal counsel for DPS — asked to make a comment, which Turner Conty officials allowed despite a vocal objection from the crowd.

“DPS said there were violations that were brought to its attention, but as we sit here tonight, those three violations have been satisfied,” Simko said. “I just want the record clear on that. I’m not saying we’re out of compliance, but at this point those three issues that we’re here to talk about have all been addressed.”

Hoffman responded by saying the violations could have been addressed years earlier and made a strong case for the non-compliance issue to be approved.

Katelynn Hoffman explains to the board why she believes DPS was not in compliance regarding its conditional use permit granted in September of 2021.

“Those conditions were happily accepted by DPS at the time (of the conditional use permit being granted),” Hoffman said. “The board was advised that DPS would be a good neighbor, that they would have a better run facility than perhaps previous owners did, that they would work to minimize odors, (and) ensure upkeep of roads. Based on those assurances, you guys set conditions, and based on the evidence that was provided to you today, I do not believe that Dakota Protein Solutions has met that standard that they essentially set for themselves.”

Hoffman continued:

“If the argument now is that DPS has become compliant … they’re essentially saying, ‘Well, we weren’t in compliance, but we are now, so forgive us.’ If that were the case, it renders our ordinance and the conditional use process moot. Under that scenario, essentially all a permit holder has to do is get the permit, act any way they want, be put on notice of a violation, and then clean up the act for that short time … kind of, do whatever you want and ask for forgiveness later.

“The spirit of the ordinance is to hold permit holders accountable to ensure conditions imposed by the board are taken seriously — that they’re followed,” she said. “Otherwise, what’s the point?”

The board then voted 5-0 to approve Ciampa’s motion. But Hoffman advised against taking any additional action at the Sept. 23 meeting.

“Before you make a decision as big as potentially revoking something, I think you want to take the time to determine if it’s a possibility to amend some conditions, and I don’t know that you’re prepared to do that tonight,” she said.

“If and when we choose to amend, are we still focused on just those three, or can we amend all conditions?” asked Miller.

“I think you would have the ability to do that,” Hoffman responded.

Johnson told the board members it was their responsibility to do some homework and “to think about what some of those conditions would look like before hosting another hearing.”

“I think I’ve already done my homework,” Ciampa said. “I’ve got things in mind already right now.”

The board ultimately determined that it would consider further action at its next regular meeting on Oct. 21.