| Commissioner hearing appeal of permit for CAFO near park January 08, 2009 11:52 pm - By Wally Kennedy wkennedy@joplinglobe.com JEFFERSON CITY, Mo. - The opponents of a 65,600-chicken CAFO that has been operating for a year within a mile of Roaring River and its state park unveiled their case Thursday against the permitting procedures used by the Missouri Department of Natural Resources. Appearing before John Kopp, a commissioner with the Administrative Hearing Commission, in a hearing room of the Truman Building, attorneys for the department and the opponents staked their positions on the hilltop cluster of barns in Barry County. John Price, a Springfield attorney representing the Roaring River Parks Alliance, said in his opening remarks that a permit must be complete and accurate before it can be accepted by the department. He said the permit that was granted to Michelle and Rodney Ozbun, who live along Route F between the park and Eagle Rock, was neither complete nor accurate. Price would later interview an expert witness who said there was no detailed blueprint for the $1 million project, "just four rectangles on a piece of paper." Price also said the DNR has a duty to protect the state parks under its influence. The department, he said, looks at only one thing at a time, which in this case was water quality. He said it did not consider the impact on air quality and how that might affect the park. He said it simply ignored its responsibility to protect the park. "The DNR looks at things in a segmented fashion - water, air and state parks - and never the twain any shall meet," he said. The DNR was represented by Tim Duggan, an attorney with the Missouri attorney general's office. He said the Ozbuns' concentrated animal feeding operation is a dry-litter handling system, and that the hundreds of tons of waste produced by the CAFO annually are shipped off site for land application by a third party. The system, he said, cannot cause a "pollution event." He said the DNR protected the park when it issued the permit, and that the permit itself was complete and accurate. He said a less-strict approach to a permit is used with a dry-litter system. "The permit is adequate to protect public resources," he said. Before witnesses were called, the attorneys and Kopp discussed the potential impact of a recent decision by Cole County Circuit Judge Patricia Joyce that initially prohibited construction of a CAFO within 15 miles of a state park or historic site. The decision was amended in early December to two miles. That case involves proposed hog CAFOs near the Arrow Rock State Historic Site. Kopp and Duggan said the decision by Joyce had no bearing on the appeal by the opponents of the Ozbun CAFO. Price said it is relevant in establishing a record for future legal action that would make reference to the judge's decision. He said the opponents of the Ozbun CAFO could not cite the judge's action in a future appeal if they did not cite it during this initial hearing. Duggan said it is unclear whether the judge's decision would affect existing CAFOs or just those yet to be built. He said the judge's decision came after the Ozbun CAFO was up and running. "This has no bearing on the Ozbun CAFO," he said. But Price said the judge's decision was influenced by the inability of opponents of CAFOs near state parks and historic sites to get relief through the appeal procedure. He said the Administrative Hearing Commission is worthless in that regard because the DNR ignores the commission. Joyce, in her ruling, noted that when the construction permit initially was appealed by opponents of the CAFO at Roaring River, the hearing commission granted a stay of construction. While the stay was in effect, the DNR issued an operating permit to the CAFO because, it said, the construction was substantially complete and it was too late for the project to be stayed. Joyce said the DNR ignored the commission. Kopp said he would "love to comment" on that, but he stopped himself in midsentence. Duggan said the judge has assumed the role of the permitting authority, and that "this is a role she has assumed for herself." Kopp said the water permit issued by the Clean Water Commission for the Ozbun CAFO is the only thing over which he has jurisdiction. Price said that goes to the heart of the issue in that the DNR in its scope of purpose also must protect Missouri's state parks. He said there must be cooperation among all of the department's agencies and programs, and that that is not happening. With the DNR operating in such a segmented fashion, Roaring River State Park is not being protected, he said. Kopp said the courts have wide inherent powers that he does not have, and that Price was taking the discussion way outside the bounds of the legal authority Kopp has been granted by state statute. Price said the issue is important in establishing a record for appeal. Kopp permitted the discussion to be entered. Kopp heard from three members of the Roaring River Parks Alliance - Kaye Smith, Mark Stephenson and Beverly Sweeney - who described the makeup and objectives of the alliance, their stake in the permit procedure, and how the Ozbun CAFO has adversely affected their lives. The first expert witness called by Price was registered geologist Robert Lanning, of Springfield. He said he recently visited the area of the Ozbun CAFO, and determined that it was not well-suited for the site because of geology, topography, drainage and soil conditions. He said the Ozbun property is drained on two sides by two mostly wet-weather creeks, and that one of them is a losing stream. He said both streams merge to create a single stream that flows into Roaring River downstream from the park. The river itself is about a half-mile or so from the CAFO. Lanning, who acknowledged on cross-examination that he is not a soil scientist, said an outdoor area where the chicken waste is stored before it is shipped does not have appropriate runoff controls. He said storm water could interact with the waste and flow off-site. The next expert witness was Kathy Martin, of Norman, Okla., who has an engineering degree and an extensive background in CAFO regulations in Oklahoma and elsewhere. She said no detailed blueprint of the CAFO, a requirement of state regulations, was submitted in connection with the permit. She described the drawing that was submitted as a "sophomoric presentation." She also questioned the accuracy of the waste calculation, saying the DNR was using standards that were 30 years old. In a long testimony, she raised questions about how the runoff from the hill above the CAFO could affect runoff from the site, and whether particulate matter blown from the chicken barns by large fans could settle on the ground around the CAFO and eventually migrate to the river via storm-water runoff. The permit calculates 353 tons of waste per year. Martin said it could go as high as 1,100 tons, according to her calculations. Michelle Ozbun said the CAFO generated 475 tons in its first year of operation. Price said the permit calculation underestimated the amount. On cross-examination, Martin said she is not a public health expert, has never testified on behalf of a permit applicant and is not licensed as an engineer in Missouri. She said she has never prepared a permit for a dry-litter manure system and is not an expert on storm-water runoff. She said she has never worked on a poultry farm. Price asked her whether a two-mile buffer around the park would be a reasonable distance to prevent an impact from dust blown from the barns. She said it would be a reasonable distance. She said Oklahoma has adopted a three-mile setback for its recreational and incorporated areas. The hearing is to resume this morning with questioning of witnesses by Price and Duggan. The Administrative Hearing Commission will recommend a course of action to the Clean Water Commission after the hearing concludes. Sidelight The hearing Thursday was not without repartee. Before the lunch break, Commissioner John Kopp advised those attending the hearing that the cafeteria on a lower floor of the Truman Building was available to them. He then said: "It's Thursday. Uh, I think broasted chicken is in the menu today." The reaction from some of the dozen or so opponents of the CAFO who attended the hearing: "No thanks." Copyright © 1999-2008 cnhi, inc. Closing Statement Thank you, Commissioner Kopp, for allowing us to speak and attempt to give a less-technical explanation of who we are and what drives us. Roaring River Parks Alliance is a wildly disparate group of individuals who run the gamut in age, income and experience. The thing that binds us together is our concern about the effect the CAFO in question will ultimately have on the water quality, air quality, property values and tourism attraction of the area. We realize this hearing is based primarily on water issues, but we are, after all, talking about Roaring Rver an Table Rock Lake, two of the most popular waters in Missouri. Our loyalty to the river, park and lake area is personal to each of us. We do more than just appear in court. We feel somewhat vindicated about our actions because the courts in Missouri are becoming crowded with groups whose issues are the same as ours -- Richland Township, Arrow Rock, Barton, Co., Wheaton, Mo. to name a few. In the case of Arrow Rock, they won their suit, and the judge declared a 15-mile buffer zone against CAFOs around state parks and historic sites. That 15 miles was quickly rescinded to two miles. Now we learn yesterday that the two-mile zone is under review. We hope the two miles don't revert back to no miles. Two miles is better than nothing. It is though citizens all across our state are having some great epiphany about the dangers of pollution to our natural resources by the growing proliferation of CAFOs. The lawsuits are not confined to MO. Okla.'s Att. Gen. has sued several Arkansas poultry companies, accusing them of treating Okls.'s rivers like open sewers. This cowering to the interests of big business is not confined to the United States. It is world-wide. Right now there is a lawsuit in Equador against Chevron for dumping billions of gallons of oil wastes into the region's rivers and streams. Equador is far away, but the parallels are obvious. Pollution is pollution, wherever it is spread. Missouri is a small microcosm of the rest of the planet. We are being polluted by chicken and hog manure to satisfy the lust of the massive meat-packing processing industry. From reading the news, this does not seem an opportune time for expanding chicken houses. Tyson's CEO resigned Monday as they weather a downturn in the industry, due primarily to an over supply of chickens. They lost significant dollars in their poultry segment the last quarters and their stock value closed 2008 down 42%. It fell another 56 cents Monday, closing at $8.79. Pilgrim's Pride, the nation's largest chicken producer, filed for Chap. 11 bankruptcy last month and their CEO resigned. More is not always better! We tend to blame DNR for the CAFO growth because they claim to have no choice but to issue a permit to any applicant who dots the "i"s and crosses the "t"'s. I've always wondered -- if that be true, what use is that stack of regulations and statutes and do's and don'ts over there? Table Rock Lake is even specifically mentioned in there somewhere. When an operating permit was issued for this CAFO while a stay on its very construction was in effect (and I believe is still in effect), a DNR official explained it was done because there was no law that said they couldn't. (Mr. Duggan made some point along those lines just this morning. I shudder to think about the list of things we can do, but shouldn't, just because there is no law against it.) I found this explanation arrogant and willful in attitude, and personally offensive. It spoke volumes about the mindset of some at DNR. Now, let me attempt to show that I am willing to try to see more than one side of an issue. In all good conscience, DNR cannot be held totally culpable for their priorities, especially when their outgoing director stated publicly that he was appointed, in part, to help speed up the permitting process for CAFOs. Also, even if DNR stiffened its reaction to CAFO applications, mega-corporations would find a way around them. They're already doing it. In the 12/29/08 issue of the Monett Times, picked up from the Kansas City Star, it was reported that rather than building their own mega farms, companies are working with several smaller farms, each of which has fewer animals than would trigger the state pollution rules. The practice is legal, but it could create pollution problems because the farms generate large amounts of waste. MDNR admits that no one knows exactly how many farms with confined animals and waste lagoons aren't being closely regulated because they don't fall under state law. Our own Derek Steen is quoted, "The concern is when you take them all into account, it does add up to a substantial amount of manure that has to be managed." To be expected, Farm Bureau admits companies aren't building mega farms anymore, but says there is nothing wrong with corporations contracting with local farmers. All over the Earth, massive corporations are succombing to the siren song of huge profits on the bottom line. There must surely be a middle ground somewhere. In 2009, new emphasis is being placed on "going green" -- not as in dollars, but a healthier environment for our entire planet. If we can put a man on the moon, surely we can solve this conumdrum. Finally, Roaring River Parks Alliance is committed to staying the course in protecting MO's natural resources. When we organized into a 501 (c)3 organization, we adopted a mission state of "We will preserve, defend and protect MO's historical sites, state parks and natural resources." It's almost verbatim to our DNR's mission statement, but we thought that, since that didn't always seem to be their first priority, maybe it should be ours. We have heard a lot of discussion the last two days about whether air quality has any place in these proceedings. We are told only the Clean Air Commission has any purview over air issues, but even if they wanted to do something about it, they couldn't because they have no authority over CAFOs. Only the DNR has permitting authority and their reaction is, "It's not our problem -- it's not our responsibility." I guess my question is -- shouldn't it be someone's? Air is a pretty essential natural resource! Given the dept.'s very name and their very simple mission statement, why couldn't it -- why shouldn't it -- fall under the broader responsibility of DNR to protect our natural resources? I'm sure that seems awfully naive to the government officials here today, but that's how it appears to the ordinary man or woman walking around breathing the air we need to live. Sadly, one of our board members, Ed Buchner, is not here with us today because he passed away in September. As a final show of his commitment to our cause, Ed requested that anyone inclined to send flowers to his funeral instead make a contribution to RRPA. They did, and we are proud to honor him with our presence today. Thank you again for your time and attention. |