Clean Water Commission still tied on Callaway Farrowing operation

Piglets drink milk from their mother inside the University of Missouri's National Swine Resource and Research Center during an informational tour for the Fulton Sun over the summer. The piglets and their mother were held inside the farrowing room of the building, which sows are placed into before giving birth. The potential hog farm coming to Kingdom City includes a farrowing building that will house up to 1,200 sows.
Piglets drink milk from their mother inside the University of Missouri's National Swine Resource and Research Center during an informational tour for the Fulton Sun over the summer. The piglets and their mother were held inside the farrowing room of the building, which sows are placed into before giving birth. The potential hog farm coming to Kingdom City includes a farrowing building that will house up to 1,200 sows.

Missouri's Clean Water Commission failed Wednesday morning to clarify the status of a proposed combined animal feeding operation (CAFO) permit in Callaway County.

The four commissioners allowed to vote Wednesday morning voted 2-2 on a motion to endorse the Administrative Hearing Commission's recommendation to award the permit to Callaway Farrowing LLC, the southeastern Iowa company that wants to operate the farm west of Kingdom City.

But, since four "yes" votes were needed, the status of an already approved permit for Callaway Farrowing remains up in the air - and, since last week, in the state court of appeals in Kansas City.

During its Oct. 5, 2016, meeting - after the Missouri Clean Water Commission voted 3-2 to approve a permit for the confined animal feeding operation - commission attorney Shawna Bligh advised the commissioners they had failed to get the required four votes. However, the hearing transcript and Cole County Circuit Judge Dan Green's Dec. 21 ruling both show the three commissioners casting the "yes" votes determined that vote would be the commission's final decision. 

Subsequently, the group Friends of Responsible Agriculture - which has opposed the planned CAFO since 2014 - sued the commission, arguing state law required at least four "yes" votes for any final action to be effective.

Cole County Circuit Judge Dan Green agreed, ruling Dec. 21 that state law says: "All final orders or determinations or other final actions by the commission shall be approved in writing by at least four members of the commission."

Green also ruled Bennett had to announce at the meeting Wednesday that the Oct. 5 motion to approve the permit "failed because the motion did not receive four 'yes' votes," and the document confirming the permit "was improvidently issued and is withdrawn."

Bennett began Wednesday's meeting by reading that part of Green's order.

Green also has forbidden two
commissioners from participating in any Clean Water Commission votes on the Callaway permit. They stood in the back of the hearing room during Wednesday's discussion.

He ruled last July that, because then-Chairman Ben A. "Todd" Parnell and Commissioner Ashley McCarty in March 2015 had driven by and looked at "the location and topography of the site of the Callaway Farrowing CAFO while the permit appeal was pending before them," they had "obtained 'facts and evidence' directly regarding the Callaway Farrowing permit appeal outside the hearing record."

Bligh and Robert Brundage, a Jefferson City lawyer representing Callaway Farrowing, last month urged Green to let those two commissioners vote at Wednesday's meeting, but Green ruled the two "are not allowed to participate in any subsequent consideration, discussion, and vote on any matter involving the permit appeal."

Brundage on Wednesday urged the two commissioners who had voted "no" in October to change their votes.

In the meantime, he argued, their legal interpretation of the current situation is "Callaway Farrowing has a valid permit."

Marty Miller, general counsel for the Natural Resources department, gave the commissioners different advice: "I don't think I would recommend that anyone rely on that permit at the present time under these circumstances."

Brundage noted Callaway Farrowing has appealed Green's Dec. 21 ruling to the state appeals court. But since the appeal was filed Jan. 6, no hearing or briefing dates have been set.

Brundage urged the commission and the Natural Resources department to participate in the appeals process.

Eichelberger Farms Inc., based in Wayland, Iowa, wants to operate the Callaway Farrowing CAFO with 9,520 swine over 55 pounds and another 800 swine under 55 pounds.

The Friends of Responsible Agriculture - a nonprofit group formed to fight the proposed hog farm and its feared odors and polluted run-off - had challenged the state's general operating permit granted to Callaway Farrowing in 2014 and asked the Administrative Hearing Commission to block the permit.

But the AHC endorsed the proposal, and the Clean Water Commission's final decision was pending when the two commissioners drove past the proposed site.

The Friends group filed the lawsuit that resulted in Green's July 26 ruling, and the group challenged the Oct. 5 vote that led to Green's Dec. 21 order.

The commission still has to make a final decision on the AHC recommendation.

Correction: During its Oct. 5, 2016, meeting - after the Missouri Clean Water Commission voted 3-2 to approve a permit for a confined animal feeding operation in Callaway County - commission attorney Shawna Bligh advised the commissioners they had failed to get the required four votes. However, the hearing transcript and Cole County Circuit Judge Dan Green's Dec. 21 ruling both show the three commissioners casting the "yes" votes determined that vote would be the commission's final decision. The information was reported incorrectly in the original version of this story which has since been corrected above.