An operating permit for a concentrated animal feeding operation, or CAFO, in southern Cooper County will come for review before the Clean Water Commission again Wednesday in the last step of an appeal to state agency brought by opponents of the large-scale hog farrowing operation known as Tipton East.

Opponents of Cooper County CAFOs appealed the Missouri Department of Natural Resources issuance of an operating permit for the Pipestone System operation in June. If the commission votes to uphold the permit, the opponents can appeal the decision to the Missouri Western District Court of Appeals, attorney Stephen Jeffery said.

The Administrative Hearing Commission, which heard Opponents of Cooper County CAFO’s appeal of the Tipton East permit, recommended that the Clean Water Commission uphold the permit.

The opponents argued the permit should be rescinded, because the state didn’t review the site to see if groundwater monitoring was necessary and didn’t investigate whether a nearby spring and wells made the operation a risk to drinking water. The Administrative Hearing Commission said testimony on the area’s geology made groundwater monitoring seem like a good idea but decided that wasn’t relevant to whether the permit should be issued.

Sean Simpson, general counsel for Pipestone Systems, which will manage Tipton East, said the groundwater isn’t going to be a problem, but he’s not opposed to monitoring. While it would add administrative work, it could help address concerns. He said he even suggested it early in the process.

“The problem is, once you agree to address one concern, they come up with another one,” Simpson said.

Thomas Aley, founder, president and senior hydrogeologist at Ozark Underground Laboratory, testified before the hearing commission that the Tipton East operation has the potential to contaminate drinking water.

Tipton East plans to collect hog manure in an underground, concrete storage pit. That could be an issue in the Clafork soil on the Tipton East site, Aley testified, according to a transcript of his deposition before the Administrative Hearing Commission. Citing a U.S. Department of Agriculture soil survey, Aley said the soil on the Tipton East site has high “shrink-swell” potential. The soil will swell when it is saturated, putting stress on the concrete, which could fracture and allow water to flow through, Aley said.

The USDA soil survey said the clafork soil has a moderate to high shrink-swell potential, which can damage buildings, roads and other structures and often requires special design.

Aley also said the area’s karst geology, where water moves through dissolved openings in the rock, means that contaminants could spread to springs and wells in the area. With the porous karst geology, groundwater isn’t filtered much.

“Basically, what you put in is what you get out,” Aley said.

Simpson said engineers have taken the site’s specific soil and geology into account in designing the concrete storage pit. Pipestone is going to invest millions of dollars in the operation, which they expect to last for decades, Simpson said. They’re not in the business of burning millions on a leaky storage pit, and they’ve done a lot more homework on the site than Aley, he said.

“We don’t do a project to pollute,” Simpson said.

Aley was brought as a witness by the opponents, who paid him $165 for an initial review of the site and $1,320 “plus travel time” for his expert testimony, he said in his deposition. Their attorney, Stephen Jeffery, said Aley’s testimony was independant and concurred with the USDA’s soil survey of Cooper County and a Missouri Geological Survey report on the bedrock geology of the Clarksburg area. The hearing commission rejected the state’s motion to exclude Aley’s testimony, but said it was “largely irrelevant” to the permit appeal.

The hearing commission said Aley’s testimony made groundwater monitoring “seem prudent and desirable,” but that there is no requirement for groundwater monitoring at the Tipton East operation.

A state regulation says the state may require a groundwater monitoring program, based on the 1996 “Hog Bill,” which gives the Department of Natural Resources the authority to regulate any Class I feeding operation. After giving the department authority over all Class I operations, the law narrows, stating that regulations may include monitoring wells on a specific site when the geological survey determines “Class IA concentrated animal feeding operation lagoons are located in hydrologically sensitive areas where the quality of groundwater may be compromised.”

The geological survey did not review the site in this case, and the hearing commission said it doesn’t have to because the “Hog Bill” only allows the Department of Natural Resources to require monitoring when the geological survey determines a Class IA operation’s manure storage lagoon could compromise groundwater. Tipton East is a Class IC operation, which is smaller than IA, and intends to use a concrete storage pit, not a lagoon, so it’s not subject to monitoring, the hearing commission determined.

Stephen Jeffery, attorney for the opponents of Tipton East, said the Clean Water Commission can require groundwater monitoring at Tipton East. He said the 1996 law doesn’t restrict the commission from regulating feeding operations smaller than class IA.

Simpson said he’s confident the commission will uphold the permit, given that they issued it in the first place and the Administrative Hearing Commission suggested upholding it.

Tipton East is the sixth permitted operation in Cooper County and the first owned by an out of state company. According to its permit application, Tipton East intends to have:

1,080 swine over 55 pounds in farrowing building 4,704 swine over 55 pounds in gestation building 1,620 swine over 55 pounds and 324 under 55 pounds in gilt development unit

PVC Management II, LLC, the company that applied for the Tipton East permit, is an agent of Minnesota-based Pipestone Systems, which manages hog operations in several states.

Before the Clean Water Commission rules on the permit at its 9 a.m. Wednesday meeting, it will have to decide whether to disqualify commission chair Ashley McCarty from the Tipton East case. In her role as executive director of Missouri Farmers Care, McCarty lobbied the Cooper County Commission to oppose local regulations of feeding operations. Opponents of Tipton East say that is a conflict of interest that should disqualify her from ruling on the permit, but McCarty said she keeps her roles as commissioner and head of Missouri Farmers Care separate.

bcrowley@gatehousemedia.com