Opponents of Cooper Cnty. CAFOs, LLC v. Mo. Dep't of Natural Res. (In re PVC Mgmt. II, LLC)

• Decision Date: 30 March 2021
• Docket Number: WD 82525
• Citation: 623 S.W.3d 733
• Parties: In the MATTER OF: PVC MANAGEMENT II, LLC, Permit No. MOGS10560 Opponents of Cooper County CAFOs, LLC, Appellant, v. Missouri Department of Natural Resources and Missouri Clean Water Commission, Respondents.
• Court: Missouri Court of Appeals

623 S.W.3d 733

In the MATTER OF: PVC MANAGEMENT II, LLC, Permit No. MOGS10560

Opponents of Cooper County CAFOs, LLC, Appellant,

v.Missouri Department of Natural Resources and Missouri Clean Water Commission, Respondents.

WD 82525

Missouri Court of Appeals, Western District.

OPINION FILED: March 30, 2021

Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2021

Application for Transfer Denied June 29, 2021

Stephen G. Jeffery, Chesterfield, MO, Attorney for Appellant.

Eric S. Schmitt, Attorney General, and Timothy P. Duggan, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondents.

Before Division Three: Karen King Mitchell, Presiding Judge, and Gary D. Witt and Anthony Rex Gabbert, Judges

Karen King Mitchell, Presiding Judge

Opponents of Cooper County CAFOs, LLC (OCCC) seeks review of the Missouri Clean Water Commission's Final Decision approving the Missouri Department of Natural Resources (DNR)’s issuance of General Operating Permit MOGS10560 (the Permit) to PVC Management II, LLC (PVC II) for a concentrated animal feeding operation (CAFO) in Cooper County, Missouri (the Tipton East CAFO). OCCC raises four points on appeal.¹ In Points II, III, and IV, OCCC argues that the Commission erred in approving the Permit because (1) the Missouri Geological Survey (MGS) did not investigate whether the Tipton East CAFO would present a risk to the regional drinking water aquifer and did not determine whether groundwater monitoring should be required (Point II); (2) the Permit authorizes the placement of pollutants where they are reasonably certain to cause pollution of waters of the State (Point III); and (3) issuance of the Permit was arbitrary, capricious, unreasonable, an abuse of discretion, and was unsupported by competent and substantial evidence in that approval ignores evidence showing site conditions present a significant risk to surface water, groundwater, and the regional drinking water aquifer (Point IV). For Point V, OCCC argues that the Commission erred in denying a motion to disqualify Commission Chair Ashley McCarty for bias because she engaged in activities which she knew or should have known provided a direct benefit to PVC II. Because the only error found relates to the failure to comply with a procedure set out in a regulation that has since been amended, and because, in light of this regulatory change, reversing and remanding for reconsideration of the Permit would be futile, we affirm.

Background²

PVC II applied for a general operating permit for the Tipton East CAFO on January 31, 2018. According to the permit application, the Tipton East CAFO would have 1,080 swine over 55 pounds in a farrowing building; 4,704 swine over 55 pounds in a gestation building; and 1,620 swine over 55 pounds and 324 swine under 55 pounds in a gilt development unit. Based on the total number of intended swine, the Tipton East CAFO would be classified as a Class 1C CAFO.

The application also indicated that the Tipton East CAFO would be a no-discharge operation and an export-only operation.³ The facility would have a manure storage capacity of 365 days, more than double the number of days required. All manure generated at the facility would be stored in formed concrete pits.⁴ And the application included a certification from a Missouri-licensed professional engineer that the manure management and containment system at the Tipton East CAFO would be designed in compliance with all applicable laws. MGS, which is part of DNR, did not make a groundwater monitoring determination before DNR issued the Permit.

DNR received all required information from PVC II, reviewed that information, deemed it complete, and issued the Permit on June 19, 2018. The Permit is a no-discharge operating permit, which means that any discharge of water contaminants from the permitted operation to waters of the State would violate the Permit and could subject PVC II to enforcement. The Permit also states that the Tipton East CAFO is an export-only operation, meaning that manure generated by the facility will be used to fertilize agricultural fields that PVC II does not own or control.

OCCC timely filed a complaint with the Administrative Hearing Commission (AHC), challenging issuance of the Permit on several grounds.⁵ The AHC held an evidentiary hearing on September 24, 2018. DNR called Gorden Wray, an environmental specialist in DNR's Water Protection Program, who testified that he drafted the Permit after determining that the application met all applicable requirements.⁶

OCCC called several witnesses, including Corinne Bromfield, Doctor of Veterinary Medicine. Dr. Bromfield testified regarding the Food Animal Residue Avoidance Databank, which lists 251 drugs approved by the U.S. Food and Drug Administration for use in swine. According to Dr. Bromfield, when veterinary drugs are metabolized in the liver, they are excreted in feces; when the drugs are metabolized in the kidneys, the drugs are excreted in urine.

OCCC offered into evidence the Natural Resource Conservation Service's "Soil Survey of Cooper County, Missouri," and the AHC admitted the Survey over DNR's objection. According to the Survey, the soils at and near the Tipton East CAFO are Clafork series soils susceptible to "shrink-swell," meaning "[t]he shrinking of soil when dry and the swelling when wet. Shrinking and swelling can damage ... building foundations[ ] and other structures."

In addition, the depositions of Registered Geologist Thomas Aley and Professional Engineer Ivan Cooper were admitted. Aley testified regarding soil characteristics and geological formations underlying the Tipton East CAFO. Specifically, Aley testified that the geological setting at and near the Tipton East CAFO is Burlington-Keokuk limestone and "karst," which he defined as "a three-dimensional landscape located on and in a soluble rock in which there is appreciable water movement through dissolved-out openings in the bedrock." Aley also testified that, in his professional opinion, the Tipton East CAFO has the potential to contaminate a drinking water aquifer. Cooper testified regarding the administration of veterinary drugs to animals and the presence of pharmaceutical residues in the excretions of treated animals.

Following the hearing, the AHC issued a decision recommending that the Commission sustain DNR's issuance of the Permit. In its recommended decision, the AHC summarized the evidence presented by the parties and responded to each argument raised by OCCC, except, of course, for those arguments based on the Commission's subsequent consideration of the AHC's decision.⁷

On January 9, 2019, the Commission held a hearing on the AHC's recommended decision. Before voting on the recommended decision, the Commission took up a motion by OCCC to disqualify Commission Chair McCarty. Commissioner McCarty is the Executive Director of Missouri Farmers Care (MFC), an organization comprised of agri-businesses and trade groups.⁸ OCCC's motion asserts that, in her role as Executive Director of MFC, Commissioner McCarty sent emails to the Cooper County Commission containing information about the siting of the proposed Tipton East CAFO and the Cooper County Commission's consideration of a health ordinance that would affect the proposed CAFO's operations. OCCC claims that, by actively participating in efforts to locate the Tipton East CAFO in Cooper County, Missouri, and lobbying the Cooper County Commission to reject a health ordinance—which action would provide a direct benefit to the Tipton East CAFO—Commissioner McCarty was exposed to facts and evidence regarding the Tipton East CAFO outside the hearing record and was personally involved in a pending matter. OCCC also contends that, on August 22, 2018, MFC made campaign contributions totaling $2,500 to "Citizens to Elect Don Baragary," the re-election committee of Cooper County Commissioner Baragary.

The Commission denied OCCC's motion to disqualify Commissioner McCarty by a vote of 4-0 with Commissioner McCarty abstaining. After the vote denying OCCC's motion, Commissioner McCarty stated:

[T]o make clear, my role is to ensure that an opportunity exists in counties so that agriculture can grow and thrive.

My role is not to advocate for, defend, nor promote any individual operation, farm, nor permittee that would qualify in this case and all others, in that while working in this case in Cooper County to ensure that Cooper County did not enact additional regulations that were burdensome on agriculture, it did not involve my role in advocating for PVC II or any other permittee at that time. And ... that support for a county commissioner did not equate to support for this permittee or any other.

And in my work role, I work hard to maintain that I have two hats that I wear, one as a citizen, service here on the Clean Water Commission, and another in my work role in Missouri [F]armers [C]are. I am diligent in ensuring that those things are separate and that I do not advocate for anything or take any stand on anything that would be coming before me on the Clean Water Commission as it has in this case with PVC II.⁹

The Commission heard testimony from counsel for OCCC and counsel for DNR. Before considering a motion on the AHC's recommended decision, the Commissioners had an opportunity to comment, and Commissioner Coday stated,

Looking at soils is certainly an important thing and aspect, but again, I think that needs to be laid aside, because ... that really, as far as our purview as the Clean Water Commission, I believe legally that is outside the scope of our commission.

And so I believe it's important for us—the last permit hearing that we had, whether we agreed or not, we were very conscious of what the AHC had done, what they had looked at as far as the legality of the permit and what DNR had done.

The Commission voted 4-1 to adopt the AHC's recommended decision with Commissioners McCarty, Coday, Rowland, and Thomas in favor and Commissioner Reece...