| Richard W. Miller, the principal attorney in the Miller Law Firm, P.C. of Kansas City, MO recently has been hired by the Friends of Arrow Rock, the Town Board of Trustees, together with the Missouri Parks Association, to assist them in protecting their community from the environmental effects of a concentration animal feeding operation (CAFO).
In a 35-page petition for declaratory judgment and mandamus filed with the Circuit Court of Cole County, Miller, on behalf of the plaintiffs, is seeking to overturn a permit issued by the Missouri Department of Natural Resources under the direction of Doyle Childers for the construction of a 4,800 head deep-pit wean-to-finish CAFO.
Miller's basic argument is that Dennis Gessling's farm with its potential for effecting air and water quality would have an "adverse effect on the historically significant town of Arrow Rock" which he describes in great detail, including its listing as a national Historic Landmark by the U.S. Department of the Interior for its significance in the history of westward expansion." To back up his argument he references a 400-page report compiled by a group of scientists selected by the United Nations and World Health Organization which claims to "unanimously express their concern with the adverse impact that CAFOs and related operations are having on the health of people and on the environment."
The challenge to protect area citizens against the ill effects of ammonia, the principal by-product of animal waste and waste treatment processes of CAFOs, their hydrogen sulfide emissions, and other air-emitting substances that also have the potential to cause health problems may be insurmountable by Childer's own written acknowledgment on September 6, 2007, that Miller has labeled "Exhibit D." Childers admits that the permit failed to issue regulations to safeguard against these concerns, but only because the Clean Water Act does not address health issues.
What Miller is up against is in surmounting the argument presented by the MDNR that in issuing the CAFO permitting, no matter where, the department is administering the programs of the state as provided by law relating to environmental control and the conservation and management of natural resources. Childer's own explanation in Exhibit D is that the department is obligated "to determine that a proposed site meets the appropriate requirements such as buffer distance, setback distance, geology as it pertains to the storage structure, flood plain location and relation to the waters of the state." Anything else, Childers implies comes under the domain of "zoning authority." It should be noted that Childers doesn't speak to any unprecedented special conditions that his department could establish on odor or a mandate that the litter not be spread in the Arrow Rock watershed--conditions similar to those mandated for MoArk, LLC, the subject of a well-organized citizen protest against that company's expansion in Neosho, MO of its egg-laying operation.
Miller also reminds the court that Childers statutorily is "designated as the state historic preservation officer...and [he] shall be responsible for establishing, implementing and administering federal and state programs or plans for historic preservation."
"It is the constitutional duty of the State and the statutory obligation of the DNR on behalf of the State to protect the historic sites in the State of Missouri and preserve them and to protect the citizens of the State of Missouri from harm," Miller concludes. However, without state-mandated aesthetics buffers around state parks, Childers would maintain the same argument that his department is following the law as it presently stands.
Is it enough to quote an out of state research study regarding the impact of CAFOs, ramble on about everyone's right to life, liberty and the pursuit of happiness, etc. or an obligation to the prevention of water pollution citing the Missouri Clean Water Law? Miller, of course, does not make a connection between Gessling's operation and any specific environmental degradation it has caused.
Gessling's construction permit calls for the establishment of two roofed barns, each of which would hold 2,400 hogs, weighing an average of 135 pounds per hog. A pit, 100 feet wide by 200 feet long by eight feet deep, to be constructed beneath each area on which the hogs would stand, would have the potential to hold 1,196,800 gallons of hog manure. Gessling's calculations call for the production of 2,091,879 gallons of hog manure annually, more waste, Miller says, than produced in a major city. The discrepancy, Miller points out, requires emptying the pits and the spreading of manure which the application suggests would be applied to "corn and soy bean fields on various properties belonging to Gessling and local farmers in and around Arrow Rock," and Miller suggests, an area "much larger than the Gessling farm itself." Undeniably, the potential for odor, as with any other hog operation, is substantial.
The answer to this in Childer's own words is, "...such facilities may still be subject to private legal action if harmful effects to individuals or properties can be proven." And it seems that lawsuits have been the catalyst for some improvements made by Smithfield Foods, the largest producer of hogs and processor of pork in the US. Smithfield's acquisition of Premium Standard Farms with operations in northern Missouri was approved last May by the US Department of Justice's Antitrust Division.
A jury last month awarded $4.5 million to six neighbors of Premium Standard who sought punitive damages over odors emanating from Premium Standard CAFOs that created a "nuisance." A class action suit involving 54 claimants has yet to be settled.
Unfortunately, without some sort of local zoning or health ordinance, there seems to be no governmental protection against the potential harmful effects of CAFOs. Mention the economy and jobs and you'll find that the Missouri state government does not favor checking the growth of CAFOs, apparently not even if it might protect the tourist industry in certain areas of the state.
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