By Wally Kennedy
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.
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.”
By Wally Kennedy