K TRE HOLDINGS, LP, )
SHARON ENGLE, )
FRANCES HARE and JES BLAIR, )
)
Petitioners-Appellants, )
)
v. ) No. SD35512
) Filed: July 26, 2019
MISSOURI DEPARTMENT OF )
NATURAL RESOURCES, MISSOURI )
CLEAN WATER COMMISSION, and )
RNR FARM, LLC, )
)
Respondents-Respondents. )
APPEAL FROM THE CLEAN WATER COMMISSION
TRANSFERRED TO THE SUPREME COURT PER RULE 83.02
K Tre Holdings, LP, Sharon Engle, Frances Hare and Jes Blair (collectively
referred to as K Tre) seek judicial review of the decision of the Missouri Clean Water
Commission (CWC) to approve a permit application filed by RNR Farm, LLC (RNR) for
a poultry concentrated animal feeding operation (CAFO) in McDonald County, Missouri.1
1
Our opinion borrows substantially, without further attribution, from the prior
Western District decision authored by Judge Cynthia Martin in In re Trenton Farms RE,
LLC v. Hickory Neighbors United, Inc., No. WD 81385, 2019 WL 73232 (Mo. App. Jan.
2, 2019).
K Tre contends the CWC erred by approving the permit because: (1) RNR failed to provide
the Department of Natural Resources (DNR) with an aerial map showing production area
setback distances; (2) RNR failed to provide DNR with a copy of proposed building plans;
and (3) four of the commissioners were unlawfully appointed to the CWC.2 We affirm the
CWC’s order approving RNR’s permit, but we transfer this case to our Supreme Court
after opinion pursuant to Rule 83.02.3
Background
The subchapter containing the Missouri Clean Water Law is set out in §§ 644.006
through 644.141. It is Missouri’s public policy to conserve, protect and maintain the waters
of the state, and to meet these objectives while maintaining maximum employment and full
industrial development. § 644.011. The administration of programs relating to
environmental control and the conservation and management of natural resources is vested
in DNR. § 640.010. The CWC is one of the commissions assigned to, and domiciled with,
DNR. See § 640.010.3; § 644.021.1. Implementation of the Clean Water Law is vested in
the CWC and DNR. § 644.026.1. DNR is authorized to promulgate rules regulating
CAFOs. § 640.710.1. In accordance with regulations promulgated for that purpose, DNR
reviews CAFO applications to determine permit eligibility. 10 CSR 20-6.010(2).4
2
K Tre’s brief contained six points. Before oral argument, K Tre filed a motion to
withdraw Points 4-6 to narrow the issues for this Court’s consideration and review. We
grant that motion and will not address Points 4-6. RNR’s motion to strike portions of
K Tre’s brief is denied.
3
All rule references are to Missouri Court Rules (2019). All statutory references
are to RSMo (2016).
4
All regulatory references are to the Missouri Code of State Regulations (2012),
unless otherwise indicated.
2
On February 16, 2016, RNR applied to DNR for a “General Operating Permit” to
operate a Class 1C poultry CAFO in McDonald County, Missouri. On July 6, 2016, DNR
issued the “State No-Discharge” CAFO operating permit to RNR. The facility description
stated that “[p]rocess wastes are collected and managed as fertilizer by spreading onto
agricultural fields at agricultural rates in accordance with this permit.”
On August 2, 2016, K Tre appealed the issuance of that permit to the
Administrative Hearing Commission (AHC). See § 621.250.1; § 640.013. RNR was
granted leave to intervene in the appeal.
On October 21, 2016, the AHC conducted a hearing on K Tre’s appeal, using the
contested case procedures described in §§ 536.063 through 536.090 of the Missouri
Administrative Procedure Act (MAPA). See § 621.250. As required by § 621.250.6, DNR
bore the burden of proof in the proceeding before the AHC as the party defending the
issuance of the CAFO permit. See § 640.012.
On November 14, 2016, the AHC issued a recommended decision, with findings of
fact and conclusions of law. The AHC found that DNR sustained its burden of proof to
establish that a CAFO permit was issued to RNR in accordance with the applicable law
and regulations.
Once the AHC issued its recommended decision, the CWC was obligated to “issue
its own decision, based on the appeal, for permit issuance, denial, or any condition of the
permit.” § 644.051.6; see also § 621.250.3. In doing so, the CWC was not required to
issue its own decision with findings of fact and conclusions of law unless it decided to: (1)
change a factual finding or legal conclusion made by the AHC; or (2) modify or vacate the
AHC’s recommended decision. § 644.051.6. The AHC’s recommended decision was
3
placed on the CWC’s December 12, 2017 meeting agenda. The CWC voted 5-0 (with
Commissioner Hurst abstaining) to accept the AHC’s recommended decision. The CWC’s
vote was reflected by the signature of five commissioners on the AHC’s recommended
decision, which the CWC adopted as its own. See § 621.250.3; § 644.051.6.
Pursuant to § 644.051.6, this Court possesses original jurisdiction over judicial
review of the CWC’s decision pursuant to the procedures for judicial review described in
chapter 536 of the MAPA. K Tre timely filed its request for judicial review from the
CWC’s decision on January 11, 2018. The evidence presented to the AHC, as well as its
findings of fact and conclusions of law, will be addressed in more detail as we consider
K Tre’s three points on appeal.
Standard of Review
On judicial review of an administrative action pursuant to chapter 536, this Court
is directed to determine the matter “upon the petition and record filed[.]” § 536.140.1. As
provided by that statute:
The inquiry may extend to a determination of whether the action of the
agency
(1) Is in violation of constitutional provisions;
(2) Is in excess of the statutory authority or jurisdiction of the
agency;
(3) Is unsupported by competent and substantial evidence upon the
whole record;
(4) Is, for any other reason, unauthorized by law;
(5) Is made upon unlawful procedure or without a fair trial;
(6) Is arbitrary, capricious or unreasonable;
(7) Involves an abuse of discretion.
4
§ 536.140.2. This Court must render a decision “affirming, reversing, or modifying the
agency’s order, and may order the reconsideration of the case in the light of the court’s
opinion ... and may order the agency to take such further action as it may be proper to
require; but the court shall not substitute its discretion for discretion legally vested in the
agency, unless the court determines that the agency decision was arbitrary or capricious.”
§ 536.140.5.
Discussion and Decision
Point 1
K Tre’s first point contends the CWC erred in approving the CAFO permit because
RNR failed to provide DNR with an aerial map showing production area setback distances
in response to a DNR deficiency letter requesting the same. The following additional facts
are relevant to this point.
RNR’s permit application was filed on February 16, 2016.5 RNR’s permit
application documents were included in Exhibit 2. Exhibit 2, a multipage document,
includes two relevant photographs. Page 7 of the exhibit is an aerial photograph entitled
“General Layout Map” and dated 1/25/16. It is scaled at 1 inch = 440 feet. It contains a
compass rose and a legal description. It contains diagrams with distances showing the
locations of planned wells, a stacking shed composter, the property boundary lines and
planned poultry houses. Page 8 of Exhibit 2 is an aerial photograph entitled “New Poultry
5
The regulation then in effect required RNR to provide, inter alia, an aerial map
or drawing that showed “the spatial location and extent of the production area. Each
drawing or map must be easily readable and include a visual scale, a north directional
arrow, a fixed geographic reference point, and the date the drawing or map was completed.”
10 CSR 20-8.300(3)(A)2.
5
Houses” and dated 12/24/2015. It is scaled at 1 inch = 1000 feet. It includes a compass
rose, a legal description, the location of the production houses and property boundary, and
the 1500-foot and 1000-foot buffer lines. The photograph appears underexposed and fairly
dark.
On March 1, 2016, DNR issued a deficiency letter requiring RNR to provide an
aerial map showing production area setback distances.6 In response to the letter, RNR
submitted a Google Earth image. This 2014 aerial photograph contains the latitude and
longitude for the site. It is labeled with road names and includes an overlaid drawing that
shows the location of the production houses and stacking shed composter in yellow and a
number of blue and red circles around the production houses. The blue circles correspond
with the 1500-foot setback shown on page 8 of Exhibit 2.
The AHC hearing was held on October 21, 2016. Diane Reinhardt (Reinhardt) was
the first witness. Reinhardt was a civil engineer with nine years of experience with DNR
and 20 years of experience in start-to-finish engineering work. That included the planning,
design, layout, surveying, construction and inspection of CAFOs. Reinhardt worked as an
6
In relevant part, the regulations then in effect stated:
6. … When an application is submitted sufficiently complete, but is
otherwise deficient, the applicant and the applicant’s engineer will be
notified of the deficiency and will be provided time to address
department comments and submit corrections. Processing of the
application may be placed on hold until the applicant has corrected
identified deficiencies.
7. Applicants who fail to correct deficiencies and/or fail to satisfy all
department comments after two (2) certified department comment
letters shall have the application returned as incomplete and the
construction and operating permit fees shall be forfeited[.]
10 CSR 20-6.300(2)(F)6-7.
6
environmental engineer for DNR as part of the Construction Permitting Section. She had
reviewed RNR’s permit application materials and the deficiency letter. She described
RNR’s application, collectively identified as Exhibit 2, as containing “several maps and
aerial photos depending on what information is needed.” She described the aerial
photograph on page 7 of Exhibit 2 as “the general layout map” that showed the setback
distances. She described page 8 of Exhibit 2 as the aerial photograph with the buffer area
map. This photograph “shows buffer distances relative to the production barns.” She
described RNR’s Exhibit 6 as an aerial map that showed the buffer areas for neighbor-
notification purposes. Reinhardt testified that Exhibit 6 qualified as the aerial map
requested in the deficiency letter:
Q … I’d ask you to please turn to Exhibit 6. And could you identify that
one, please?
A That is a map that’s produced to determine the buffer areas for neighbor
notification purposes.
Q And was that submitted to DNR by Renner or RNR Farm, to your
knowledge?
A Yes.
Q And does that qualify as the aerial map that was requested by DNR?
A Yes. I believe the aerial map, we just needed one that – that had better
resolution and showed the dwellings on it. So this is a more clear copy. So,
yes, that satisfied the requirement.
Based upon Reinhardt’s testimony, the CWC found that Exhibit 6 satisfied DNR’s request
for an aerial map “because DNR only needed an aerial map with better resolution.” The
CWC concluded that this corrected the deficiency:
[Reinhardt] testified that the map contained on page 7 of [Exhibit 2] is a
general layout map that showed the setbacks and buffer distances relative
to the production barns. She stated that Exhibit 6 was produced to
7
determine the buffer areas for neighbor notification, and it satisfied DNR’s
requirement for an aerial map in its deficiency letter because DNR only
needed a map with better resolution that also depicted the dwellings.
[K Tre] did not present evidence to discredit Reinhardt’s testimony….
DNR presented credible evidence that the alleged deficiencies were
corrected. This is further evidenced by the fact that DNR did not send RNR
Farm a second deficiency letter as addressed in 10 CSR 20-6.300(2)(F)[7].
We must affirm the agency’s decision if it is supported by competent and
substantial evidence on the whole record. See MO. CONST. art. V § 18; § 536.140.2(3);
Wagner v. Missouri State Bd. of Nursing, 570 S.W.3d 147, 151 (Mo. App. 2019). As to
factual matters, we will not substitute our judgment for that of the administrative agency.
Owens v. Missouri State Bd. of Nursing, 474 S.W.3d 607, 611 (Mo. App. 2015).
On appeal, K Tre contends the evidence shows RNR failed to provide DNR with
an aerial map showing production area setback distances after receiving DNR’s deficiency
letter. We disagree.
A CAFO poultry production barn for a type 1C class size must be set back at least
1000 feet from the nearest public building or occupied residence. See § 640.710.2(1). The
CAFO applicant also is required to give notice to neighbors within 1.5 times the
§ 640.710.2 setback distance. See § 640.715.1. The aerial maps requested by DNR are
used to meet these two requirements.
Reinhardt testified that pages 7 and 8 of Exhibit 2, and Exhibit 6, viewed
collectively, provided the necessary information to view the production area setback
distances for the public building/occupied dwelling and for neighbor-notification purposes.
The CWC found Reinhardt’s testimony credible, and we defer to that factual determination.
In addition, DNR did not issue a second deficiency letter after receiving Exhibit 6.
8
Moreover, K Tre presented no evidence that either the 1000-foot or 1500-foot setback
distance was violated in this case. Point 1 is denied.
Point 2
K Tre’s second point contends the CWC erred in approving the CAFO permit
because RNR failed to provide DNR with a copy of proposed building plans in response to
a DNR deficiency letter requesting the same. The following additional facts are relevant
to this point.
RNR’s application for a CAFO operating permit included Form W, which
requested a “State No-Discharge” permit. This form did not include an engineer's
certification. The March 1, 2016 deficiency letter issued by DNR asked RNR to “have
your engineer send in a copy of your proposed building plans with his seal stamped
indicating that the proposed CAFO is designed to regulation specifications.” In response,
RNR submitted a second Form W CAFO operating permit application that included a
section for Engineer Certification. Part 13 of this document stated:
House Bill (HB) 28, which became effective on August 28, 2013, contained
provisions that changed construction permitting requirements.
Construction permits are required for the construction of an earthen storage
structure to hold, convey, contain, store, or treat domestic, agricultural, or
industrial process wastewater. Construction of all other point source
systems designed to hold, convey, contain, store, or treat domestic,
agricultural, or industrial process waste must be designed by a professional
engineer registered in Missouri in accordance with design regulations.
This Form W was signed and sealed by a Missouri engineering firm and contained the
following certification: “I, Project Engineer, certify that the above described systems have
been designed in accordance with Missouri CAFO design regulations in 10 CSR 20-8.300.”
At the AHC hearing, engineer Reinhardt testified that the second Form W with the
engineer’s certification was sufficient to satisfy the deficiency letter request:
9
Q (By DNR counsel) Okay. And addressing another item that was in the
letter, proposed building plans with an engineer’s seal, did Mr. Renner or
RNR Farm send anything to address that item?
A Yes. They submitted a copy – a second copy of Form W, which is our
application form for the operating permit for a CAFO, that has an engineer’s
seal on it and a certification statement declaring that the facility was
designed in accordance with the regulations.
Q Okay. And do you find that document here as an exhibit somewhere?
A That would be in Exhibit 10. And that’s the entirety of Exhibit 10, the
two-page document. The seal is on Page 2.
Q Okay. And looking at Page 2 specifically, you mentioned the seal. And
I think you described it briefly. But – so I apologize if I’m rehashing a bit.
But – so what is the significance of the seal and certification there on Page
2?
A The seal certifies that the appli – application of facility was designed in
accordance with our regulations.
Q Okay. And so currently, does DNR actually require submission of actual
building plans?
A No.
Q Okay. And why is that?
A Because of House Bill 28, which resulted in a change to the statutes in
August of 2013, construction permits are no longer required for the
construction of CAFOs unless they will have an earthen basin. In this case,
there was no earthen basin, so the certification statement is the engineer’s
assumption of responsibility for the completion and certification of the
design.
The CWC found that, in response to the deficiency letter, RNR provided “[a] second copy
of Form W, which is DNR’s application form for the operating permit for a CAFO, that
had an engineer’s seal from the project engineer … declaring that the facility was designed
in accordance with the regulations ….” Based on that updated form and Reinhardt’s
testimony about it, the CWC concluded that:
10
RNR Farm submitted a new Form W that contained an engineer’s seal and
certification attesting that the system was designed in accordance with the
design regulations contained in 10 CSR 20-8.300. DNR presented credible
evidence that the alleged deficiencies were corrected. This is further
evidenced by the fact that DNR did not send RNR Farm a second deficiency
letter as addressed in 10 CSR 20-6.300(2)(F)[7]. Accordingly, we find no
grounds to deny the Permit based on application deficiencies pled by
[K Tre].
(Footnote omitted.)
On appeal, K Tre contends the evidence shows RNR failed to provide DNR with a
copy of proposed building plans as required by the March 2012 version of 10 CSR-
8.300(3). This point lacks merit because the part of this regulation cited by K Tre was no
longer valid when RNR applied for its operating permit. The March 2012 regulation stated:
(3) Applications for a construction permit, or for an operating permit that
did not previously receive a construction permit, shall submit one (1) set of
documents described in this section for department approval as part of the
permit application process. (A) Engineering Documents … 3. Construction
plan drawings.
10 CSR 20-8.300(3)(A)3. In August 2013, however, § 644.051.3 was amended to
substantially modify the requirements for a construction permit. See H.B. 28, 2013 Mo.
Laws 254-55. In relevant part, this statute was amended to include the following language:
In addition, any point source that proposes to construct an earthen storage
structure to hold, convey, contain, store or treat domestic, agricultural, or
industrial process wastewater also shall be subject to the construction permit
provisions of this subsection. All other construction-related activities at
point sources shall be exempt from the construction permit requirements.
All activities that are exempted from the construction permit requirement
are subject to the following conditions:
a. Any point source system designed to hold, convey, contain, store
or treat domestic, agricultural or industrial process wastewater
shall be designed by a professional engineer registered in
Missouri in accordance with the commission’s design rules;
b. Such point source system shall be constructed in accordance with
the registered professional engineer’s design and plans[.]
11
§ 644.051.3. Because of this change, DNR was required to follow the statute as amended,
rather than the earlier regulation. See Leeper v. Scorpio Supply IV, LLC, 351 S.W.3d 784,
793 (Mo. App. 2011) (a regulation in direct conflict with a statute is invalid). Based upon
this statutory change, 10 CSR 20-8.300(3) was later amended to generally remove the
requirement for a construction permit for a CAFO unless an earthen storage structure is
being constructed. See September 2016 regulations 10 CSR 20-8.300(3)7 and 10 CSR 20-
6.300(2)(E). RNR’s second Form W complied with the statutory requirements in
§ 644.051.3. Reinhardt’s testimony concerning the amendment of § 644.051.3 supports
the CWC finding of fact and conclusion of law on this issue. Point 2 is denied.
Point 3
K Tre’s third point contends the CWC erred in approving the CAFO permit because
four of its commissioners were unlawfully appointed pursuant to an unconstitutional
statute. The issue presented in this case is identical to the one decided by the Western
District in In re Trenton Farms RE, LLC v. Hickory Neighbors United, Inc., No. WD
81385, 2019 WL 73232 (Mo. App. Jan. 2, 2019), and transferred to our Supreme Court on
April 30, 2019. Like the Western District, we conclude that K Tre does not have the
authority to assert this issue. Trenton Farms, slip op. at 7. The proper method to challenge
7
In relevant part, this amended regulation states:
Permit Application Documents. Applicants for a construction permit for
earthen basins shall include one (1) set of documents described in this
section for department approval as part of the construction permit
application process. Applicants who are not constructing earthen basins
and are seeking an operating permit shall develop and maintain these
documents and submit those required in 10 CSR 20-6.300.
10 CSR 20-8.300(3).
12
the constitutional validity of a commissioner’s authority is through a quo warranto action.
Id. We have reviewed the Western District’s analysis of this issue and agree with it.
Because we conclude that K Tre cannot privately challenge whether commissioners on the
CWC were serving unlawfully pursuant to an unconstitutional statute, Point 3 is denied.
The CWC’s order approving RNR’s permit is affirmed. Given the general interest
and importance of the issue raised in Point 3 and the pendency of that issue in our Supreme
Court, however, we transfer this case after opinion pursuant to Rule 83.02.
JEFFREY W. BATES, J. – OPINION AUTHOR
DANIEL E. SCOTT, J. – CONCUR
MARY W. SHEFFIELD, J. – CONCUR
13
K TRE HOLDINGS, LP, SHARON ENGLE, FRANCES HARE and JES BLAIR v. MISSOURI DEPARTMENT OF NATURAL RESOURCES, MISSOURI CLEAN WATER COMMISSION, and RNR FARM, LLC, Respondent-Respondents
Combined Opinion