Opponents of the Tipton East CAFO near the Cooper-Moniteau county line say they plan to appeal the Clean Water Commission's ruling to the Western District Court of Appeals.

JEFFERSON CITY — The sixth and most recent confined animal feeding operation, or CAFO, in Cooper County will keep its operating permit, but opponents say they plan to take their appeal to the courts.

The Missouri Clean Water Commission voted 4-1 Wednesday to uphold a permit issued in June for Pipestone System’s Tipton East operation. Opponents of Cooper County CAFOs, a group made up of area residents, appealed the permit over concerns it could contaminate their water supply.

Fred Williams lives near the site around the Cooper-Moniteau county line and is president of the opposition group. He said most people in the area get their water from wells, and there would not be an alternative source if groundwater is contaminated.

Commissioners who voted to uphold the permit said it satisfied legal and regulatory requirements. Commissioner Pat Thomas, who attended by telephone, said the concerns raised by opponents could only be addressed by the state legislature.

Stephen Jeffery, attorney for the opponents, cited the testimony of geohydrologist Thomas Aley, who said the soil and geology of the Tipton East site would inevitably damage its underground, concrete manure storage pit. The soil has a high “shrink-swell” potential, Aley said, citing a USDA soil survey of Cooper County. That means the soil will expand when it’s saturated, putting pressure on the concrete pit that could cause it to crack, he said.

Commissioner Stan Coday said Jeffery was cherry-picking facts. While Jeffery noted portions of the USDA soil survey that showed the soil’s shrink-swell could fracture concrete, he didn’t mention that the soil’s permeability was rated moderately low, Coday said.

“Looking at soils is an important aspect,” said Coday, noting that he taught soils as a vocational agriculture instructor for 30 years. The commission had to set those concerns aside, he said, because they are outside its authority.

Commissioner John Reece was the only vote against the permit. He said he worked 48 years in engineering and learned there are two types of concrete.

“Concrete that’s cracked, and concrete that’s gonna crack,” Reece said. “If you build a concrete structure, or tank, on those soils, due to the shrinking and expanding of the soil, those basins are gonna crack.”

The commission’s vote affirmed the recommendation of the Administrative Hearing Commission, which ruled the permit met legal requirements.Tipton East opponents said they plan to appeal the ruling to the Missouri Western District Court of Appeals.

During the discussion of the permit, commissioners declined to act on a request from opponents that they order groundwater monitoring at the site to protect their wells.

Jeffery argued that the commission has that authority but Assistant Attorney General Jennifer Hernandez, who represented the state during the appeal, said it does not.

That was also the ruling of the Administrative Hearing Commission, which stated in its recommendation that Aley’s testimony made groundwater monitoring seem “prudent and desirable” but is outside the commission’s authority.The state can only order groundwater monitoring at the largest CAFOs and only for those with lagoons.

Tipton East is not large enough and it uses pits instead of lagoons, the hearing officer concluded.

Sean Simpson, general counsel for Minnesota-based Pipestone Systems, which owns Tipton East through a company called PVC Management II, said in an interview he’s not opposed to groundwater monitoring if it would address the opponents’ concerns. But he said he didn’t think it would.

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

McCarty stays put, Hurst bows out

Before it voted on the permit Wednesday, the commission unanimously decided not to exclude commission chair Ashley McCarty from voting. In her role as executive director of Missouri Farmers Care, McCarty lobbied the Cooper County Commission to oppose local regulations of feeding operations.

Missouri Farmers Care also donated $2,500 to Presiding Commissioner Don Baragary’s re-election committee in late August 2018, after the primary elections, Jeffery noted in his motion to disqualify McCarty. After narrowly defeating challenger Bill Embry in the Republican primary, Baragary had no November challengers, and his re-election committee was dissolved in September, according to Missouri Ethics Commission filings.

The opponents argued McCarty’s lobbying and campaign donations should have disqualified her from voting on the permit.

McCarty said in an interview that she often advocates for limited agricultural regulations as director of Missouri Farmers Care. She said lobbying against regulations in Cooper County wasn’t about protecting Tipton East specifically, but to ensure that “opportunities are open for agriculture to grow and thrive in our community.”

Just before voting on the permit at the meeting Wednesday, McCarty said she had nothing to gain from supporting or denying the Tipton East permit, drawing muffled groans from some opponents in the crowd.

The commission was still down two members for the vote, even with McCarty. One seat was already vacant, and Vice-Chair Ben Hurst, the son of Missouri Farm Bureau President Blake Hurst, stepped down from the commission before the Wednesday meeting.

Opponents ask for groundwater monitoring

The commission did not order groundwater monitoring at the Tipton East site, which opponents argued it should.

Jeffery argued the Clean Water Commission has the authority to order a groundwater monitoring program at the Tipton East site. Sean Simpson, general counsel for Minnesota-based Pipestone Systems, which owns Tipton East through a company called PVC Management II, said in an interview he’s not opposed to groundwater monitoring if it would address the opponents’ concerns. But he said he didn’t think it would.

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

A state regulation allows the state to 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 hearing commission said 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.

Jeffery said that doesn’t make sense. Class IA operations have more than 7,000 animal units, equal to 17,500 hogs over 55 pounds. Class IB operations have between 3,000-6,999 animal units, equal to 17,499 hogs over 55 pounds.

“What difference should it make if you have a Class IA CAFO and a Class IB CAFO located side-by-side, and there’s a difference of one animal unit, if they both have the potential to affect all these people who have these shallow drinking water wells? What difference should one animal unit make?” Jeffery asked.

That’s a question for the state legislature, the commission showed in upholding the permit.

bcrowley@gatehousemedia.com