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In re Trenton Farms Re, LLC

Court of Appeals of Missouri, Western District, Fourth Division

November 22, 2016

IN THE MATTER OF: TRENTON FARMS RE, LLC Permit No. MOGS10500, Appellant,
v.
MISSOURI DEPARTMENT OF NATURAL RESOURCES, HICKORY NEIGHBORS UNITED, INC., Respondent.

         Appeal from the Clean Water Commission

          Before: Mark D. Pfeiffer, Chief Judge, Presiding, Karen King Mitchell, Judge and Gary D. Witt, Judge

          OPINION

          Gary D. Witt, Judge

         Trenton Farms RE, LLC ("Trenton Farms") appeals the decision of the Missouri Clean Water Commission ("CWC") to deny Trenton Farms' permit application for a swine concentrated animal feeding operation ("CAFO") to be operated in Grundy County, Missouri. Trenton Farms raises five points of error on appeal, four alleging that the CWC erred in its denial because it misinterpreted the permit requirements of 10 CSR 20- 6.010(3)[1] causing the regulation to be misapplied and resulting in violations of Trenton Farms' constitutional rights. Trenton Farms' final point alleges that the CWC erred in finding that Trenton Farms' application did not adequately prove that the CAFO operation was protected from a one hundred-year flood as required by 10 CSR 20-8.300(5)(A).[2] We affirm.

         Factual and Procedural Background

         In Missouri, the Clean Water Act ("CWA") is implemented by two administrative agencies: the Missouri Department of Natural Resources ("DNR") and the CWC. The DNR is Missouri's "general environmental agency charged with administering the programs assigned to the Department relating to environmental control and the conservation and management of natural resources." Mo. Soybean Ass'n v. Mo. Clean Water Comm'n, 102 S.W.3d 10, 19 (Mo. banc 2003) (internal quotation omitted). The CWC is charged by statute with a number of duties and granted numerous powers including:

(1) the "general supervision of the administration and enforcement" of the Missouri Clean Water Law, sec. 644.026.1(1); (2) developing "comprehensive plans and programs for the prevention, control and abatement of new or existing pollution of the waters of the state." sec.644.026.1(2); (3) identifying waters of the state and prescribing water quality standards for them, sec.644.026.1(7); (4) the power to promulgate rules and regulations to enforce and implement Missouri's Clean Water Law, and the duties imposed on the state by the CWA, sec.644.026.1(8); and (5) the power to exercise all incidental powers necessary to carry out the purposes of Missouri's Clean Water Law, and to assure that the State of Missouri complies with the CWA, sec.644.026.1(16).

Id. at 19 n.15. The CWC's "domicile" is within the DNR. Section 644.021.1. DNR reviews all applications for CAFOs and determines eligibility for permits. 10 CSR 20-6.010(2). Such decisions, however, are reviewed by the CWC and the CWC acts as the final deciding agency regarding whether an applicant will or will not receive a permit. Section 644.026.1.

         On April 6, 2015, Trenton Farms applied to the DNR[3] for a state no-discharge operating permit for a swine CAFO ("Permit Application"). The Permit Application was reviewed by DNR employee Greg Caldwell ("Caldwell"). Caldwell determined that the Permit Application met all statutory and regulatory requirements and, on August 12, 2015, DNR issued Permit MOGS10500 ("Permit") to Trenton Farms to operate the requested swine CAFO.

         Hickory Neighbors United, Inc. ("Hickory Neighbors") filed a Petition for Appeal of the Permit to the Administrative Hearing Commission ("AHC") on August 28, 2015, and a subsequent Amended Petition for Appeal ("Amended Petition") on September 22, 2015. Trenton Farms intervened in the AHC action, and the AHC held a hearing on Hickory Neighbors' Amended Petition on October 23, 2015. The AHC found that DNR met its burden of showing that the operating permit was issued in accordance with applicable laws and recommended that the grant of the Permit be upheld ("Recommended Decision"). The Recommended Decision was transmitted to the CWC on January 4, 2016. The CWC heard additional oral argument from the parties on February 17, 2016, issuing its Final Decision on February 24, 2016 ("Final Decision"). The CWC disagreed with the ultimate findings of the AHC, instead finding that the Permit was not appropriately and lawfully issued to Trenton Farms because DNR failed to determine that Trenton Farms was a "continuing authority, " as required by 10 CSR 20-6.010(3), and further that DNR failed to adequately determine that the swine CAFO would be protected in the event of a one hundred-year flood in accordance with 10 CSR 20-8.300(5)(A). The Final Decision by the CWC overruled the DNR's grant of the Permit to Trenton Farms. This appeal followed.

         Standard of Review

         Section 644.051.6 provides that decisions by the CWC shall be subject to appellate review pursuant to chapter 536 of the Missouri Administrative Procedure Act. Section 536.140.2 provides that, on review, this Court may determine whether the action of the agency: (1) violates a constitutional provision; (2) is in excess of statutory authority or jurisdiction of the agency; (3) is unsupported by competent and substantial evidence upon the whole record; (4) is unauthorized by law; (5) is made upon unlawful procedure or without a fair trial; (6) is arbitrary capricious or unreasonable; or (7) involves an abuse of discretion.

         We give deference to the agency's findings of fact so long as they are supported by competent and substantial evidence. Bd. of Educ. of City of St. Louis v. Mo. State Bd. of Educ., 271 S.W.3d 1, 7, 12 (Mo. banc 2008). As to questions of law, this Court conducts its review de novo. Albanna v. State Bd. of Registration for Healing Arts, 293 S.W.3d 423, 428 (Mo. banc 2009); ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

         Discussion

         I.

         As it is dispositive of this appeal, we will first discuss Trenton Farms' final Point Relied On. In Point Relied On V, Trenton Farms alleges that the CWC erred in denying the Permit in that "there was no evidence in the record that the barns were not protected from inundation by the 100-year flood."[4]

         The Manure Storage Design Regulations, which apply to this type of CAFO operation, require that "[m]anure storage structures, confinement buildings, open lots, composting pads, and other manure storage areas in the production area shall be protected from inundation or damage due to the one hundred-year flood." 10 CSR 20-8.300(5)(A). This protection may be accomplished by constructing all listed sites above the one hundred-year flood plain or by including with the permit application certification from an engineer that all relevant sites are protected.

         Trenton Farms argues that there was sufficient evidence presented to the CWC to support a conclusion that the manure management barns of the CAFO were adequately protected from a one hundred-year flood. First, Trenton Farms relies on the testimony of Caldwell who reviewed the Permit Application on behalf of DNR. Caldwell testified that Trenton Farms submitted a map with the application showing the flood plain but it was difficult to determine where the buildings would be placed on that map. He also noted that the flood boundary map crossed topographical lines, which prevented him from determining whether the CAFO was located within flood boundary lines based strictly on the map submitted. As a result, he obtained a FEMA map and a soil data map to determine that the CAFO was not actually located within the one hundred-year flood plain. He testified that his determination was based solely on the three additional maps that he obtained and which were entered into evidence by DNR. Unfortunately, as noted by Hickory Neighbors, the maps identified and entered into evidence by the DNR and allegedly relied upon by Caldwell are from counties other than Grundy.[5] Ultimately, although the AHC found that Caldwell was credible, it found that his conclusions merely went to the issue of flooding of the soil and were not actually dispositive of the issue of whether the CAFO project was located in a FEMA Zone A floodplain.

         Grundy County Emergency Management Director, Glen Briggs ("Briggs"), submitted an affidavit in support of Trenton Farms stating that he concluded that the CAFO building site is not located in the FEMA Zone A floodplain--also known as a one hundred-year floodplain. The AHC, however, noted that the orientation of the buildings on the map examined by Briggs did not match the ...


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