A law passed in 2016 changed the makeup of the Missouri Clean Water Commission, which issues operating permits for CAFOs. Opponents of the Tipton East CAFO say that law was passed in violation of the constitution and the commission's decision to issue a permit for the CAFO was invalid

Opponents of a large hog operation in southern Cooper County have exhausted their appeals to the state commission that issues permits. Now they’re asking the courts to rule that commission itself is unconstitutional.

Stephen Jeffery, an attorney representing Opponents of Cooper County CAFOs, filed a petition with the Missouri Western District Court of Appeals, asking the court to overturn the permit the Clean Water Commission granted to the Tipton East concentrated hog feeding operation in southern Cooper County.

The opponents challenged the Tipton East permit after the commission issued it in June for the Minnesota-based Pipestone Systems operation. The commission decided in January to uphold the permit, so the opponents are taking their challenge to the courts.

Jeffery, who has gained a lot of experience challenging the commission on behalf of CAFO opponents, claims four of the five active members of the commission were appointed in violation of the Missouri Constitution.

In 2016, lawmakers altered the makeup of the commission in a bill that changed several laws governing the Department of Natural Resources. The original bill, filed by Rep. Tim Remole, R-Excello, would have required the department to tell municipalities with wastewater treatment systems what options they have to update their system to meet discharge regulations.

That bill passed the House and moved on to the Senate, where then-Sen. Brian Munzlinger, R-Williamstown, added an amendment to change to the Clean Water Commission.

The constitution says no bill can be amended to change its original purpose, and no bill can be about more than one subject, which must be in the title of the bill. The original title for Remole’s bill was “relating to wastewater treatment systems.”

Before 2016, the seven-member commission had four members representing the general public, one with experience with wastewater, and no more than two representing agriculture, mining and industry. Munzlinger’s amendment changed it so at least two members had to represent industry, and no more than four could represent the general public.

“I’m not changing the makeup (of the commission), but rather allowing a change in the makeup to be made,” Munzlinger said when he proposed the amendment, according to the Kansas City Star.

The commission has seen rapid turnover since the change. Of the five commissioners who voted to uphold the Tipton East permit, four were appointed after 2016. Two seats on the seven-seat commission are vacant, and Ashley McCarty is the only current member remaining from before 2016.

McCarty, executive director of the pro-industry advocacy group Missouri Farmers Care, is listed on the commission’s website as one of the two representatives of industry. Stan Coday, a farmer, agriculture teacher and Wright County Farm Bureau president, is listed as the other.

Two commissioners listed as representatives of the general public have ties to industry. Pat Thomas was chief of staff for Munzlinger, a leading advocate for the agriculture industry in the Senate until his term ended this year. Allen Rowland has served on the boards of the Missouri Farm Bureau, the Missouri Soybean Merchandising Council and the Missouri Corn Merchandising Council. He also served as secretary and treasurer of the Southeast Missouri Regional Water District.

The fifth commissioner is John Reece, the designated representative with experience in wastewater treatment. Reece retired in 2011 as executive director of the Little Blue Valley Sewer District in Jackson County. He was the only commissioner to vote against the Tipton East permit in January.

Ben Hurst, appointed in 2017, left the commission before the January meeting where it decided to uphold the Tipton East permit. Hurst, son of Missouri Farm Bureau President Blake Hurst, said he left the commission because it wasn’t compatible with his new job as Assistant U.S. Attorney for the Western District of Missouri.

Supporters of the change said it was needed because the general public doesn’t have the expertise to deal with complex clean water regulations.

Fred Williams, a leading opponent of the Tipton East operation who raises livestock in southern Cooper County, said he’s as much an expert on livestock and water as others on the commission. He’s applied to fill one of the vacant seats, but doesn’t expect Gov. Mike Parson will appoint him.

“They say I can’t serve because I’m not an expert, but there’s only one guy on there (Reece) who’s an expert in water,” Fred Williams said.

The appeals court case isn’t the only time Jeffery has sought to use the changes to the Clean Water Commission to get a CAFO permit overturned. He represents the opponents of Trenton Farms in Grundy County in northern Missouri and opponents of RNR Farms in McDonald County in far southwest Missouri. In both cases, he’s tried to have a court rule those changes to the Clean Water Commission were unconstitutional.

No court has ruled on the RNR Farms challenge yet. In the Trenton Farms case, the Missouri Western District Court of Appeals said the opponents can’t make a constitutional challenge. Jeffery and the opponents of Trenton Farms are trying to appeal that to the Supreme Court of Missouri.

Jeffery said he’ll keep making that argument until there’s a final ruling on it. “Until the legal point gets resolved, we have to keep making it,” Jeffery said. “The Supreme Court could decide it’s unconstitutional.”

The other points Jeffery is using to challenge the Tipton East permit are similar to the ones the opponents made in the administrative appeal. Along with trying to have every member of the commission appointed after 2016 declared invalid, the opponents argue Ashley McCarty should be disqualified from ruling on the permit because her role as executive director of Missouri Farmers Care is a conflict of interest for a clean water commissioner.

McCarty lobbied the Cooper County Commission to oppose a local ordinance regulating CAFOs, emailing Presiding Commissioner Don Baragary two cases of counties being sued over local CAFO ordinances. The commission decided not to pass an ordinance, but the Cooper County Public Health Center Board did pass CAFO regulations. Both bodies are facing lawsuits over their decisions.

The opponents failed to have McCarty disqualified during their administrative appeal, where they argued McCarty’s emails to Baragary show she was lobbying in favor of Tipton East before she voted to give them an operating permit. McCarty has said her roles as chair of the Clean Water Commission and executive director of Missouri Farmers Care are separate. She lobbies against county CAFO regulations in general, she said, and doesn’t advocate for or against individual operations.

The opponents are also arguing that the Missouri Geological Survey should have reviewed the site of the proposed CAFO. The soil around Tipton East has high “shrink-swell” potential, meaning it will expand when saturated with water and put pressure on underground, concrete structures, like the pit Tipton East will use to store hog manure, Thomas Aley, a geohydrologist, testified during the administrative appeal. The karst geology of the area allows water to move through dissolved openings in rocks, meaning contaminants could spread into wells in the area, Aley testified.

The state can put groundwater monitoring wells on a CAFO site if the Missouri Geological Survey finds that the CAFO has the potential to pollute groundwater. In this case, the survey never reviewed the site, and wasn’t required to do so by the Administrative Hearing Commission, which heard the administrative appeal. The commission said the survey only needs to look at Class IA CAFOs using earthen basins to store manure, while Tipton East is a smaller, Class IC operation with a concrete storage pit. Jeffery argues the commission is misinterpreting the law, and that the geological survey should review the site.