Rolling Hill Dairy north of Ellisville has agreed to pay $144,000 in forfeitures and penalties to Kewaunee County and the state Department of Justice, Attorney General Josh Kaul announced on Wednesday (Feb. 3).

The matter resolves six violations of concentrated animal feeding operation (CAFO) manure discharge rules that occurred at the farm, N3265 County Road AB, from 2017 to 2019, according to the complaint and stipulations filed in Kewaunee County Circuit Court. Judge Keith A. Mehn approved the settlement Jan. 29.

The farm agrees to pay $48,000 a year for three years, beginning within 90 days, with most of the funds going to Kewaunee County and $4,000 in attorney fees paid to the Department of Justice.

“Those who unlawfully pollute our waters must be held accountable,” Kaul said in the news release announcing the settlement. “In this case, the work of DNR and DOJ to enforce our environmental laws has resulted in a significant financial penalty and greater protection against runoff into the East Twin River in Kewaunee County.”

In the stipulation and order for judgment, the two sides agree that the settlement constitutes full release of the dairy’s civil liabilities for the violations and that “Nothing contained in this Stipulation shall be construed as an admission of liability by Rolling Hills Dairy, or as a concession by the State regarding the veracity of the State’s allegations.”

According to the court documents:

Rolling Hills has a Wisconsin Pollution Discharge Elimination System (WPDES) permit that expired Feb. 28, 2017, but is required by law to operate under the terms of the expired permit until a new permit is issued.

Wisconsin administrative code prohibits a large CAFO from discharging manure or process wastewater to a navigable water unless precipitation causes an overflow and the containment structure is properly designed, constructed, and maintained to contain manure, process wastewater, and runoff from a 25-year, 24-hour rain event.

For Kewaunee County that 25-year standard would be 4.2 inches within 24 hours, which did not occur during the period in question, and so any significant manure runoff violates the code.

The six violations:

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While DNR agricultural runoff specialists Ben Uvaas and Andrea Gruen were inspecting Rolling Hills Dairy on June 14, 2017, in advance of reissuing the WPDES permit, they saw runoff from the feed storage area flowing south through the barn and into the leachate collection tank.

The concern was that runoff can eventually enter an unnamed tributary of the East Twin River, which is listed as a class 1 trout stream and is also on the list of impaired waters because of high phosphorus levels.

The DNR issued a notice of violation to the dairy on July 31, 2017, and met with dairy officials Aug. 22, telling them at a minimum they needed to install interim runoff controls for the feed storage area at the main dairy, while developing plans for improved permanent runoff controls.

On Sept. 29, Rolling Hills Dairy submitted a report to DNR stating that it had increased the time that the pump on the leachate collection tank ran from 12 minutes to 18 minutes.

But less than a week later DNR received a complaint Oct. 4 that “black, smelly runoff was flowing through the field swale. The complainant suspected the runoff was coming from the main dairy.”

Gruen and Schmitt Marquez investigated the complaint that day, taking water samples from the field swale and a road culvert that had unacceptably high levels of E. coli, phosphorus, biological oxygen and amonia nitrogen.

A new notice of violation was sent Oct. 19 concluded that runoff from Rolling Hills had entered the East Twin’s unnamed tributary and stating, in part, “To limit the Dairy’s potential liability, it is in its best interest to determine the origin of the discharge and re-evaluate its interim runoff control measures in order to comply with the [WPDES] Permit. Immediate action is necessary to prevent additional unpermitted discharges.”

During a Nov. 30 enforcement conference Rolling Hills Dairy claimed the Oct. 4 discharge did not come from the main dairy, that its equipment was functioning properly, and that other sources could have caused the discharge, such as runoff from County Road AB or from the agricultural field itself.

On May 9, 2018, the DNR completed an unannounced, wet-weather inspection of the main dairy, after it had rained seven of the previous nine days, including a 2.7-inch rainfall on May 4.

The inspection concluded that Rolling Hills Dairy had discharged manure and process wastewater from the production area at the main dairy to the unnamed tributary.

Violation 2: Denying DNR entry to inspect the CAFO

After Gruen and Schmitt Marquez finished inspecting the field swale and road culvert on Oct. 4, Gruen called Kim Kroll, DNR’s authorized representative for Rolling Hills Dairy, on the telephone.

Kroll said she was out of town and not able to return to the dairy farm for an inspection and that no other individuals at the dairy were available.

Rolling Hills Dairy also denied Gruen and Schmitt Marquez access to perform their unannounced wet-weather inspection of the main dairy from noon until 1:32 p.m. May 9, after the wet weather had passed.

Violation 3: Failure to comply with condition plan approval for the feed storage runoff controls

A monitoring plan set down in 2011 stated, “Grab sample results shall be submitted to the [DNR] region after each overflow event from the leachate collection tank. The region shall review the grab sample results and determine if a surface water standards violation has occurred. If a grab sample results exceeds surface water standards, the WDNR does not intend to seek monetary penalties through formal enforcement actions against the Dairy unless there is significant damage to the environment, as determined by the WDNR, such as a fish kill or contamination of a public or private water supply or groundwater. After 6 samples have been collected and no grab sample exceeded the surface water standards, the region will meet with the owner to discuss further options.”

On Jan. 10, 2018, Rolling Hills Dairy’s attorney sent a letter to DNR stating that “the dairy had not completed the sampling required by the Conditional Plan Approval because it was confused and did not understand that it was required to complete this sampling. Rolling Hills Dairy’s attorney further stated that DNR could not legally require Rolling Hills Dairy to complete the sampling and so it would not do so.

“As of the date of this Complaint, Rolling Hills Dairy has not submitted the sampling data required by the Conditional Plan Approval to DNR.”

Violation 4: Failure to submit plans and specifications and construct feed storage runoff controls at the Christoff Farm

The WPDES permit requires Rolling Hills Dairy to submit plans and specifications to DNR to correct any adverse conditions identified at the feed storage area at the Christoff farm, a smaller heifer farm it operates at N1974 County Road AB. These plans and specifications were due to DNR by Nov. 1, 2012.

After the enforcement conference about the July 2017 notice of violation, the dairy’s engineer did submit plans and specifications to DNR for upgrades to the feed storage area at the Christoff farm, which included a leachate collection system and waste storage pond expansion.

Construction was delayed, and Rolling Hills Dairy’s engineer finally submitted documentation to DNR on Nov. 18, 2020, that the construction of the required upgrades was completed.

Violation 5: Storing feed in an unapproved location and failing to divert clean runoff at the Christoff Farm

Rolling Hills Dairy’s engineer submitted a request to DNR Aug. 24, 2017, to approve a temporary feed storage area at the Christoff farm. The request stated that 1,000 tons of haylage would be stored in the temporary feed storage area for approximately 18 months. It stated that the haylage “will be covered with plastic to exclude precipitation from the pile and weighted down with tires.”

Uvaas approved the request a week later, with an expiration date of Feb. 24, 2019.

But on July 11, 2019, Gruen inspected the Christoff farm from the public right-of-way on County Road AB and saw a pile of feed in the former temporary feed storage area, uncovered and exposed to precipitation and runoff.

The dairy did remove the feed from the former temporary feed storage area by the end of September 2019.

Violation 6: Violation of land application restrictions

On March 19, 2020, Rolling Hills Dairy land applied manure and process wastewater from the waste storage facility at the Christoff farm to an agricultural field located immediately west of the Christoff farm. This field is identified as the “Hanna” field in Rolling Hills Dairy’s nutrient management plan.

Not long after the land application, a rain event occurred, and DNR agricultural runoff specialist James Salscheider inspected the Hanna field that evening.

He saw precipitation was mixing with the manure and process wastewater on the Hanna field, flowing into a depression south of the field and a roadside ditch at the southeastern corner of the field.

The breakdown of the $144,000 judgment:
forfeitures of $95,151.37
26% penalty discharge $24,739,35
20% environment surcharge $19,030.27
court costs $25
crime lab surcharge $13
court support services surcharge $68
1% jail surcharge $951.51
justice information system surcharge $21.50
attorney fees $4,000

The agreement also requires Rolling Hills Dairy to construct permanent runoff controls on the feed storage area at its main dairy to prevent discharges of contaminated runoff to the unnamed tributary by Aug. 30, 2021, and construct runoff controls on the feed storage area at its satellite facility as required by the WPDES permit by Oct. 31, 2021.

Photo: File photo of East Twin River