dnr.mo.govdnr.mo.gov/env/wpp/cwc/docs/040418cwctabs.pdf · Missouri Clean Water Commission Meeting Lewis and Clark State Office Building LaCharrette/Nightingale Creek Conference Rooms

Missouri Clean Water Commission Meeting Lewis and Clark State Office Building

LaCharrette/Nightingale Creek Conference Rooms 1101 Riverside Drive

Jefferson City, Missouri

April 4, 2018

Approval of Minutes

Issue:

The Missouri Clean Water Commission review the Open Session minutes from the December 12, 2017, Clean Water Commission meeting

Recommended Action:

The Missouri Clean Water Commission to approve the minutes

List of Attachments: December 12, 2017, Clean Water Commission draft meeting minutes Official Transcript for the December 12, 2017, Clean Water Commission Meeting

WATER PROTECTION PROGRAM

DRAFT MINUTES OF THE

MISSOURI CLEAN WATER COMMISSION MEETING Capitol Plaza Hotel & Convention Center

415 West McCarty Street Jefferson City, Missouri

December 12, 2017

Present via Telephone Ben Hurst, Missouri Clean Water Commission John Kleiboeker, Missouri Clean Water Commission

Present at Capitol Plaza Hotel & Convention Center Ashley McCarty, Missouri Clean Water Commission Patricia Thomas, Missouri Clean Water Commission John Reece, Missouri Clean Water Commission Stan Coday, Missouri Clean Water Commission Chris Wieberg, Director of Staff, Missouri Clean Water Commission Ross Kaplan, Legal Counsel, Missouri Clean Water Commission Susan Borton, Secretary, Missouri Clean Water Commission

Michael Abbott, Department of Natural Resources, Jefferson City, Missouri Summer Ballentine, Associated Press, Jefferson City, Missouri Kurt Boeckmann, Department of Natural Resources, Jefferson City, Missouri Robert Brundage, Newman, Comley, and Ruth, Jefferson City, Missouri John Bryan, Missouri Poultry Association, Jefferson City, Missouri Dru Buntin, Department of Natural Resources, Jefferson City, Missouri Greg Caldwell, Department of Natural Resources, Jefferson City, Missouri John Carter, Citizen, Rolla, Missouri David Casaletto, Ozarks Environmental Services, Kimberling City, Missouri Carol S. Comer, Department of Natural Resources, Jefferson City, Missouri Eric Crawford, Department of Natural Resources, Jefferson City, Missouri Paul Dickerson, Department of Natural Resources, Jefferson City, Missouri Tim Duggan, Attorney General’s Office, Jefferson City, Missouri Brad Eitel, City of Kirksville, Kirksville, Missouri Ed Galbraith, Department of Natural Resources, Jefferson City, Missouri Jodi Gerling, Department of Natural Resources, Jefferson City, Missouri David Greene, Kansas City Water, Kansas City, Missouri Jennifer Hoggatt, Department of Natural Resources, Jefferson City, Missouri John Hoke, Department of Natural Resources, Jefferson City, Missouri Leslie Holloway, Missouri Farm Bureau, Jefferson City, Missouri Chris Klenklen, Department of Agriculture, Jefferson City, Missouri Margot McMillen, Citizen, Fulton, Missouri Refaat Mefrakis, Department of Natural Resources, Jefferson City, Missouri Nick Muenks, Geosyntec Consultants, Jefferson City, Missouri

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Holly Neill, The Nature Conservancy, Springfield, Missouri Kevin Perry, REGFORM, Jefferson City, Missouri Norb Plassmeyer, Citizen, Freeburg, Missouri Michelle Renner, RNR Farms, Goodman, Missouri Roger Renner, RNR Farms, Goodman, Missouri Jill Sellenriek, Citizen, Fulton, Missouri Penny Speake, Healy Law Offices, Springfield, Missouri Darrick Steen, Missouri Corn Growers/Soybean Association, Jefferson City, Missouri Trent Stober, HDR Engineering, Columbia, Missouri Don Willoh, Department of Natural Resources, Jefferson City, Missouri Tammy Wilson, Department of Natural Resources, Jefferson City, Missouri

The December 12, 2017, Missouri Clean Water Commission (CWC) meeting was transcribed by a court reporter. The Official Transcript is incorporated in its entirety as part of these minutes.

CALL TO ORDER

Chair McCarty called the meeting of the CWC to order on December 12, 2017, at 10:04 a.m., at the Capitol Plaza Hotel and Convention Center, 415 West McCarty Street, Jefferson City, MO.

Chair McCarty introduced the Commissioners, Staff Director, Legal Counsel, and the Commission Secretary. She also took a moment to extend appreciation and thanks to previous Commissioners Warren and Wood to recognize and honor their service to the Commission.

ADMINISTRATIVE MATTERS

Approval of the October 4, 2017, Missouri Clean Water Commission Meeting Minutes Agenda Item 1

Commissioner Reece moved to approve the October 4, 2017, meeting minutes as presented. Commissioner Hurst seconded the motion. The motion passed with a roll call vote:

Commissioner Thomas: Abstain Commissioner Coday: Abstain Commissioner Kleiboeker: Yes Commissioner Reece: Yes Commissioner Hurst: Yes Chair McCarty: Yes

Kirksville Variance CWC-V-1-17 Adoption Agenda Item 2

Lacey Hirschvogel, Water Protection Program, presented the Kirksville Variance CWC-V-1-17 and requested the Commission approve the Kirksville Variance CWC-V-1-17 as proposed. The variance will be adopted along with the Water Quality Standards (WQS) Rulemaking at the January 4, 2018, CWC meeting. Trent Stober, HDR Engineering, provided comments and requested the Commission approve the variance. Commissioner Reece and Chair McCarty provided comments.

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Commissioner Reece moved to approve the Kirksville Variance CWC-V-1-17 as proposed. Commissioner Coday seconded the motion. The motion passed with a roll call vote:

Commissioner Thomas: Yes Commissioner Coday: Yes Commissioner Kleiboeker: Yes Commissioner Reece: Yes Commissioner Hurst: Yes Chair McCarty: Yes

Commissioner Reece moved the Commission go into closed session to discuss legal, confidential, or privileged matters under Section 610.021(1), Revised Statutes of Missouri. Commissioner Coday seconded the motion. The motion passed with a roll call vote:

Commissioner Thomas: Yes Commissioner Coday: Yes Commissioner Kleiboeker: Yes Commissioner Reece: Yes Commissioner Hurst: Yes Chair McCarty: Yes

Open session re-convened at 11:07 a.m. Chair McCarty took a moment to recognize the Department’s leadership in attendance at today’s meeting. Carol Comer, Director, Department of Natural Resources; Dru Buntin, Deputy Department Director; and Ed Galbraith, Division of Environmental Quality Director. The Commission appreciates their time and leadership.

Water Quality Standards Rulemaking Update Agenda Item 3

John Hoke, Water Protection Program, provided an update on the proposed revisions to the WQS Rulemaking. The Department published proposed revisions to Missouri’s WQS in the October 16, 2017, Missouri Register. The public comment period for the proposed rule was from October 16 to November 28, 2017. A public hearing was held for the proposed rule on November 21, 2017. The order of rulemaking incorporates changes to the proposed rule as a result of comments during the public comment period. The Department will request the Commission to adopt the WQS Rulemaking at the January 4, 2018, CWC meeting. No action was taken by the Commission.

Administrative Hearing Commission’s Recommended Decision Regarding RNR Farm, LLC Permit Appeal No. 16-3308 Agenda Item 4

Greg Caldwell, Water Protection Program, presented the Administrative Hearing Commission’s (AHC) Recommended Decision regarding RNR Farm, LLC Permit Appeal No. 16-3308 CWC and recommended the Commission hear from the attorneys of the parties and make a decision to uphold the permit as originally issued by the Department. Chair McCarty provided comments and stated there had been several filings/motions made within the last 24 hours to disqualify or recuse several

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Commissioners, and also a motion to continue, so the Commission would consider and deal with those motions prior to their deliberations.

Petitioners K Tre Holdings and Sharon Engle, Frances Hare and Jes Blair, through their attorney of record, Jordan Paul, and also through Stephen Jeffery, motions to disqualify or recuse Commissioners Hurst, Coday, and Thomas:

Commissioner Hurst provided comments and stated he intended to honor the representation he made to the Circuit Court in his affidavit and would not be participating in the vote. Chair McCarty stated the motion to disqualify or recuse Commissioner Hurst was dismissed as moot, and he would not be participating in this consideration.

Commissioner Coday provided comments and stated he did not feel in any way his position as President of the Wright County Farm Bureau affected his ability to render an impartial decision in this case.

Commissioner Thomas moved to deny the motion to disqualify or recuse Commissioner Coday. Commissioner Reece seconded the motion. The motion passed with a roll call vote:

Commissioner Thomas: Yes Commissioner Coday: Abstain Commissioner Kleiboeker: Yes Commissioner Reece: Yes Commissioner Hurst: Abstain Chair McCarty: Yes

Commissioner Thomas provided comments and stated she did not feel in any way her position as Chief of Staff for State Senator Brian Munzlinger affected her ability to render an impartial decision in this case.

Commissioner Reece moved to deny the motion to disqualify or recuse Commissioner Thomas. Commissioner Coday seconded the motion. The motion passed with a roll call vote:

Commissioner Thomas: Abstain Commissioner Coday: Yes Commissioner Kleiboeker: Yes Commissioner Reece: Yes Commissioner Hurst: Abstain Chair McCarty: Yes

Petitioners K Tre Holdings by and through their attorney of record, Jordan Paul, as well as Stephen Jeffery, motion to continue:

Robert Brundage, Newman, Comley, and Ruth, provided comments and provided the Commission with a written objection on behalf of RNR Farm LLC to the motion for continuance.

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Commissioner Thomas moved the Commission deny the motion to continue. Commissioner Reece seconded the motion. The motion passed with a roll call vote:

Commissioner Thomas: Yes Commissioner Coday: Yes Commissioner Kleiboeker: Yes Commissioner Reece: Yes Commissioner Hurst: Abstain Chair McCarty: Yes

Tim Duggan, Legal Counsel, provided comments on behalf of the Department and invited Mr. Brundage to provide further comments. Mr. Brundage provided further comments regarding the record and requested the Commission adopt the AHC’s Recommended Decision as-is with no changes.

Commissioner Coday moved the Commission uphold the permit as originally issued by the Department. Commissioner Thomas seconded the motion. The motion passed with a roll call vote:


Administrative Hearing Commission’s Recommended Decision Regarding Trenton Farms RE, LLC Appeal No. 16-3924-CWC Agenda Item 5

Chair McCarty stated there had also been motions filed to disqualify or recuse Commissioners, and also a motion to continue, so the Commission would deal with those motions prior to their deliberations.

Petitioner’s Motion to recuse or disqualify Commissioners Hurst, Coday, and Kleiboeker:

Robert Brundage, Newman, Comley, and Ruth, provided comments and filed a legal document, Trenton Farms RE, LLC’s Suggestion in Opposition for Tendering Petitioner’s motion to recuse or disqualify Commissioners, with the Commission for the record. He also filed a revised objection to the continuance filed on behalf of Trenton Farms due to typographical errors in the previous version filed the day before.

Commissioner Hurst provided comments and stated he intended to honor the representation he made to the Circuit Court in his affidavit and would not be participating in the vote. Chair McCarty stated the motion to disqualify or recuse Commissioner Hurst was dismissed as moot, and he would not be participating in this consideration. She also stated the motions to recuse or disqualify the three Commissioners were all included in one motion, but would be treated as separate motions for clarity and purposes of voting.

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Commissioner Coday provided comments and stated he did not feel in any way his position as President of the Wright County Farm Bureau affected his ability to render an impartial decision in this case.

Commissioner Thomas moved to deny the motion to recuse Commissioner Coday. Commissioner Reece seconded the motion. The motion passed with a roll call vote:

Commissioner Thomas: Yes Commissioner Coday: Abstain Commissioner Kleiboeker: Yes Commissioner Reece: Yes Commissioner Hurst: Abstain Chair McCarty: Yes

Commissioner Kleiboeker provided comments and stated he did not feel in any way his position on the Missouri Soybean Association affected his ability to render an impartial decision in this case.

Commissioner Coday moved to deny the motion to disqualify or recuse Commissioner Kleiboeker. Commissioner Thomas seconded the motion. The motion passed with a roll call vote:

Commissioner Thomas: Yes Commissioner Coday: Yes Commissioner Kleiboeker: Abstain Commissioner Reece: Yes Commissioner Hurst: Abstain Chair McCarty: Yes

Petitioner’s motion for a continuance:

Robert Brundage, Newman, Comley, and Ruth, provided comments and stated they would like to have this matter resolved and does not consent to any further continuances.

Commissioner Reece moved the Commission deny the motion for a continuance. Commissioner Coday seconded the motion. The motion passed with a roll call vote:


Greg Caldwell, Water Protection Program, presented the AHC’s Recommended Decision regarding the Trenton Farms RE, LLC Appeal No. 16-3924-CWC and recommended the Commission hear from the attorneys of the parties and make a decision on the appeal.

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Tim Duggan, Legal Counsel, provided background and comments on the Trenton Farms RE, LLC Appeal No. 16-3924-CWC and noted typographical errors in the AHC’s Recommended Decision. Robert Brundage, Newman, Comley, and Ruth, provided comments and gave a presentation. He requested the Commission adopt the AHC’s Recommended Decision with the following exceptions:

1) The last sentence on page 10 be revised as follows: “This base flood elevation is 13.5’ abovebelow any opening the CAFO buildings, plus or minus a foot.”

2) On page 19, the last sentence of the first full paragraph be revised as follows: “Therefore,we find that that the CAFO is sufficiently protected from inundation or damage due to the100-year flood.”

3) On page 1, the fifth sentence of the second paragraph be revised as follows: “In response, onJanuary 18, 2019, 2017”…

4) On page 11, item 38 be revised as follows: “Phosphorous may be over applied when usingthe nitrogen rate because of volatilization (evaporation of phosphorus and nitrogen).”

Commissioner Coday moved the Commission accept and adopt the AHC’s Recommended Decision with the noted exceptions. Commissioner Reece seconded the motion. The motion passed with a roll call vote:

Commissioner Thomas: Yes Commissioner Coday: Yes Commissioner Kleiboeker: Not Present (dropped off the call) Commissioner Reece: Yes Commissioner Hurst: Abstain Chair McCarty: Yes

PRESENTATIONS

Director’s Update Agenda Item 6

Chris Wieberg, Director, Water Protection Program, reported the following to the Commission: He welcomed the new Commissioners to the CWC and offered services of staff and himself any time if needed. A New Commissioner Orientation will be scheduled in the upcoming weeks.

Public Comment and Correspondence Agenda Item 7

Norb Plassmeyer, Citizen, Freeburg, Missouri, provided comments and a presented a slide show regarding WQS adopted in 2013, Clean Water Act Section 101(a) use designations10 CSR 20-7.031(2)(A)-(G). Mr. Plassmeyer stated the rulemaking increased stream miles designated for“fishable/swimmable uses” from 25,025 to 115,735 miles of Missouri streams. It is his hope areduction in stream miles will be included in the rulemaking reduction efforts underway initiated byGovernor Greitens.

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John Carter, Citizen, Rolla, Missouri, thanked the Commissioners for their service on the Commission and provided comments supporting Mr. Plassmeyer’s suggestion that the expansion of stream miles be rescinded as part of the regulatory reduction plan. No action was taken by the Commission. Missouri Clean Water Commission Meetings Agenda Item 8

• January 4, 2018, Lewis and Clark State Office Building • April 4, 2018, Lewis and Clark State Office Building • July 11, 2018, Lewis and Clark State Office Building • October 3, 2018, Lewis and Clark State Office Building

ADJOURNMENT OF MEETING Commissioner Coday moved the Commission adjourn the meeting. Commissioner Reece seconded the motion. The motion passed with a roll call vote. Commissioner Thomas: Yes Commissioner Coday: Yes Commissioner Kleiboeker: Not Present (dropped off the call) Commissioner Reece: Yes Commissioner Hurst: Yes Chair McCarty: Yes Commission adjourned the open meeting at 1:06 p.m. Respectfully Submitted, Chris Wieberg Director of Staff

TRANSCRIPT OF PROCEEDINGS 12/12/2017TRANSCRIPT OF PROCEEDINGS 12/12/2017TRANSCRIPT OF PROCEEDINGS 12/12/2017TRANSCRIPT OF PROCEEDINGS 12/12/2017

www.alaris.uswww.alaris.uswww.alaris.uswww.alaris.us Phone: 1.800.280.3376Phone: 1.800.280.3376Phone: 1.800.280.3376Phone: 1.800.280.3376 Fax: 314.644.1334Fax: 314.644.1334Fax: 314.644.1334Fax: 314.644.1334ALARIS LITIGATION SERVICESALARIS LITIGATION SERVICESALARIS LITIGATION SERVICESALARIS LITIGATION SERVICES

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9 OPEN MEETING

10 TRANSCRIPT OF PROCEEDINGS

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1 BEFORE THE CLEAN WATER COMMISSION STATE OF MISSOURI

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5 OPEN MEETING


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8 Tuesday, December 12, 2017

9 10:00 a.m.

10 Capitol Plaza Hotel

11 415 W. McCarty Street

12 Jefferson City, MO 65101

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14COMMISSIONERS PRESENT:

15 Commissioner Ashley McCarty, Chair

16 Commissioner Patricia Thomas Commissioner John Reece

17 Commissioner Stan Coday Commissioner Ben Hurst - via telephone

18 Commissioner John Kleiboeker - via telephone

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21 Court Reporter:

22 Ms. Monnie S. Mealy, MO CCR #0538, CSR, RPR Alaris Litigation Services

23 3432 W. Truman Boulevard, Suite 207 Jefferson City, MO 65109

24 (573) 636-7551

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2 COMMISSIONER MCCARTY: Good morning,

3 everyone. We will now begin this meeting of the

4 Missouri Clean Water Commission. Welcome to

5 Jefferson City.

6 We will begin first with introductions.

7 And I am Ashley McCarty, Chair. I'm from

8 Kirksville area.

9 To my right is Stan Cody, Commissioner,

10 duly appointed from Seymour, Missouri. To his

11 right is John Reese, Commissioner, from Lee's

12 Summit. And to John's right is Patricia Thomas,

13 Commissioner, from Jefferson City.

14 Today, we also have joining with us on the

15 phone John Kleiboeker, Commissioner from Stotts

16 City, and Ben Hurst, Commissioner from Kansas City.

17 We welcome you here this morning. To my

18 left I have Chris Wieberg, who is Director of Staff

19 for the Commission and Director of the Water

20 Protection Program for the Department of Natural

21 Resources.

22 Ross Kaplan is joining us today from the

23 Attorney General's Office, and Susan Borton, our

24 hard-working Secretary to the Commission and

25 Secretary to the program. We appreciate all the




1 work that's gone into this meeting.

2 As you can tell, we are in a time of

3 change and transition and have new faces on the

4 Commission.

5 The first act that we want to undertake

6 today is to express formally our thanks for the

7 Commissioners that have served here before us that

8 include Dennis Wood and Wallace Warren.

9 Both gave many years of dedicated service

10 to the Commission, Wallace most recently serving at

11 Vice Chair.

12 And they have served respectively since

13 the 2011 vote and served with distinction devoting

14 many hours in this volunteer citizen capacity. And

15 we just want to extend our thanks to them.

16 We will be passing down resolutions

17 adopted by the Clean Water Commission today just

18 expressing our thanks to them.

19 As Wallace was serving as Vice Chair of

20 the Commission, at our next regularly scheduled

21 meeting, which will be held January 4th, 2018, we

22 will be holding an election for Vice Chair to serve

23 us in the coming year.

24 And at this time, we will move -- pardon

25 my voice. It's been winter. At this time, we will




1 move into our agenda. And the first order of

2 business before us is approval of the October 4th,

3 2017, Missouri Clean Water Commission minute --

4 meeting minutes.

5 COMMISSIONER REECE: So moved.

6 CHAIR MCCARTY: Commissioner Reece has

7 moved. Do I have a second for their approval?

8 MR. HURST: I'll second. This is Ben.

9 CHAIR MCCARTY: Okay. Commissioner Hurst

10 has seconded their approval. Susan, would you call

11 the role, please?

12 MS. BORTON: Commissioner Thomas?

13 COMMISSIONER THOMAS: Abstain.

14 MS. BORTON: Commissioner -- Commissioner

15 Reece?

16 COMMISSIONER REECE: Yes.

17 MS. BORTON: Commissioner Coday?

18 COMMISSIONER CODAY: Abstain.

19 MS. BORTON: Commissioner Hurst?

20 COMMISSIONER HURST: Yes.

21 MS. BORTON: And Commissioner Kleiboeker?

22 COMMISSIONER KLEIBOEKER: Yes.

23 MS. BORTON: Chair McCarty?.

24 COMMISSIONER MCCARTY: Yes. Okay. Those

25 minutes will stand as presented. The next order on




1 our agenda is the presentation of the Kirksville

2 variance, which we've heard about at our previous

3 meeting. Lacey Hirschvogel from the Department and

4 Water Protection Program will be presenting that to

5 us. Good morning, Lacey.

6 MS. HIRSCHVOGEL: Good morning,

7 Commissioners. The Department is requesting

8 approval of a water quality standards variance from

9 the underlying water quality standards utilized for

10 the development of Bear Creek total maximum daily

11 load, waste load allocation for total nitrogen,

12 total phosphorous and five-day biochemical oxygen

13 demand.

14 The variance would be equitable to the

15 permanent discharger M0049506 which, is the waste

16 -- Kirksville wastewater treatment facility.

17 The wastewater treatment plant discharges

18 effluent into Bear Creek where Bear Creek is a

19 classified Z stream. The factors precluding

20 attainment from underlying water quality standards

21 is based on 40 CFR Section 131.10(G)(6) where the

22 City of Kirksville and its residents would

23 experience substantial and widespread social and

24 economic impact if required to install

25 infrastructure that complies with the waste load




1 allocation approved in the Bear Creak TMDL.

2 It is the Department's stance that the

3 implementation of this variance will not result in

4 the lowering of existing water quality.

5 The City of Kirksville has recently

6 upgraded to an extended area activated sludge plant

7 that has been designed to fully nitrify plant flow.

8 Furthermore, the City of Kirksville is

9 requested -- is required as part of the variance to

10 comply with the highest effluent conditions for

11 total nitrogen, total phosphorous and five-day

12 biochemical oxygen demand as well as pollutant

13 minimization program.

14 The pollutant minimization program is a

15 structured set of activities to improve processes

16 and pollutant control that will prevent and reduce

17 pollutant loading.

18 The Department received comments from the

19 United States Environmental Protection Agency and

20 the Missouri Department of Conservation after the

21 public notice period of September 1st, 2017, to

22 October 11, 2017.

23 The changes to the variance in accordance

24 to the comments include removing the three-year

25 scheduled compliance to meet the highest attainable




1 effluent conditions for total nitrogen, total

2 phosphorous and bio-chemical oxygen demand in

3 modifying the pollutant minimization program to

4 include the requirements for the City of

5 Kirksville to operate and maintain the wastewater

6 treatment plant so that the plant flow is treated

7 at an optimized level whereas the goal of the --

8 whereas the goal of the optimized operation is to

9 treat effluent concentration of total nitrogen and

10 total phosphorous and five-day biochemical oxygen

11 demand that is lower than the highest attainable

12 effluent condition provided with the variance.

13 With the modified language within the

14 pollutant minimization program in the numeric

15 highest attainable effluent conditions, the

16 Department has set forth both quantitative and

17 future-reaching highest attainable effluent

18 condition that meets the requirements of the Clean

19 Water Act.

20 Additionally, we included the water

21 quality review for Bear Creek and the Bear Creek

22 TMDL implementation program as an intended

23 correction with the Kirksville variance packet.

24 The Department recommends the Commission

25 approve the Kirksville variance TWC-V-1-17 as




1 proposed.

2 The Kirksville variance will be adopted

3 along with the quality water standards rule-making.

4 I will now take any questions you might have.

5 COMMISSIONER MCCARTY: Commissioners, any

6 questions for Lacey on this variance -- proposed

7 variance?

8 CHAIR MCCARTY: I do not see any at this

9 time, Lacey. We would also -- yeah. Anyone

10 wishing to testify or comment on this? Trent

11 Stover?

12 MR. STOVER: Trent Stover with HDR.

13 MR. STOVER: Thank you, Chairman McCarty

14 and Commissioners, those on the phone. We --

15 speaking on behalf of the City of Kirksville, we

16 have Brad Idle in the back of the room as well from

17 the City who manages the wastewater treatment

18 system and collection system and so forth.

19 We sincerely appreciate all the DNR's

20 efforts to work with us through this variance

21 process and move this project forward.

22 You know, we -- I had a chance to reflect

23 on sort of the origins of this project recently

24 and, in fact, going back to planning efforts that

25 were done underway when the TMDL was developed back




1 in the -- you know, 2011 time frame.

2 So that's how long of a process we've been

3 -- we've been discussing here. And my firm helped

4 represent the City of Kirksville in comments to US

5 EPA regarding this -- the -- the TMDL.

6 And, in fact, made a point to -- that --

7 how the waste load allocations are not technically

8 achievable with today's technology and so forth.

9 And in response to that, EPA made a

10 comment that the -- that the Department is

11 responsible for implementation of permitting

12 programs and that there's plenty of flexibility

13 that the State will work with on -- on behalf -- or

14 in -- with the -- with the City to resolve those

15 issues.

16 And I think we've seen this play out. I

17 was a little bit surprised by the -- by some of the

18 comments that were provided given the long dialogue

19 that we understand that the State has had with EPA

20 and so forth.

21 And, really, when we reviewed the -- the

22 comments, I think those have been adequately

23 addressed or will be addressed by the -- the State

24 of Missouri. And we would be more than happy to

25 help provide any of that information.




1 One thing just to -- just to back up a

2 little bit. And, again, the -- the reason for this

3 project moving forward in the first place, the City

4 has embarked on what -- what amounts to one of its

5 most significant capital investments that the City

6 of Kirksville has ever made.

7 We replaced a -- an antiquated treatment

8 process, which was failing and posed great risk to

9 the receiving streams. This was a rotating

10 biological contact, which I know Commissioner Reece

11 has been involved with before.

12 And this will be probably the last one, I

13 believe, in the state to -- to -- to be removed.

14 And -- and with that, we had lost one of the

15 towers, Commissioner Reece.

16 We had lost some of the aeration capacity.

17 There was issues with infiltration and -- and

18 in-flow into the system, which was causing bypasses

19 that the City had made substantial investments in

20 and, meanwhile, took on what amounted to be a --

21 about a $20 million wastewater treatment plant

22 investment.

23 Now, when those -- the original estimates

24 were made, there was great optimization that we

25 would be in a good-fitting environment, that we




1 would be able to add in some provisions to even

2 enhance more nutrient removal than what was -- what

3 was currently implemented.

4 However, our -- our bidding was delayed by

5 two years for the permitting issues that we ran

6 into with respect to the -- to the Bear Creek TMDL

7 and the issues that we have to get them an

8 effective permit.

9 So that two-year delay increased the base

10 cost of that project by $2 million. So we had to

11 eliminate things like coatings and paintings for

12 some of the concrete facilities, some electrical

13 improvements which were really needed and so forth.

14 Just cut that out of project overall.

15 And then there were a number of alternate

16 item that's we -- we bid out to try to get, you

17 know, a better project moving forward, which

18 included some provisions to enhance the nitrogen

19 removal, which I see EPA asking for in their -- in

20 their letter.

21 So with that being said, I mean, we -- we

22 effectively lost, I'd say, probably about

23 $4 million in the delay based on inflation and the

24 bidding environment that changed during that

25 process.




1 So with -- with that said, we -- we ask

2 that you approve this variance that's before you

3 today.

4 I'd also like to give you notice that

5 we'll -- we'll likely present to the Commission a

6 request to get some grant monies, a small amount of

7 grant money.

8 And this was a $20 million project

9 probably for, you know, a few hundred thousand

10 dollars within -- improve some of the equipment to

11 go ahead and enhance the nitrogen removal and then

12 hopefully decrease the -- the effluent conditions

13 over time and so forth.

14 So we'll reserve that for another day.

15 But we would just like to say that that would

16 probably be something that we'll come forward to

17 the Commission with through the State's processes.

18 Thank you for your time.

19 COMMISSIONER REECE: Yes, Trent. Do you

20 have an estimate on just how much you're going to

21 need? You said a few hundred thousand. But you

22 had indicated you were 4 million over budget. Do

23 you know exactly how much you were going to need?

24 Do you have an estimate on -- in order to

25 bring the plant up to flight, capability what




1 what's your dollar figure?

2 MR. STOVER: It's probably in the

3 neighborhood -- total project, couple hundred

4 thousand dollars.

5 What -- what it is, Commissioner Reece, is

6 mixed lip, recycled pumps. And, you know, that --

7 that wouldn't cover any of the items that were cut

8 out of the project.

9 But -- but that would -- would be an

10 improvement that would -- that would likely, you

11 know, produce better effluent quality.

12 Just to give you a perspective, too,

13 this was a $20 million project. $18 million came

14 out from the SRF bonds and financing. $2 million

15 of that was paid for out of cash from the City.

16 So, you know, they're -- they're strapped

17 right now, and they're making continued investments

18 into the collection system to try to resolve bypass

19 issues by the commitment that they made with the

20 State prior. So definitely some financial need

21 with -- within that project for us.

22 COMMISSIONER REECE: Thank you.

23 MR. STOVER: Thank you.

24 COMMISSIONER MCCARTY: Thank you. I -- as

25 I expressed during our hearing at our last meeting,




1 I appreciate -- I appreciate DNR's extended effort

2 that was put forth on this project to make needed

3 infrastructure upgrades and make the best possible

4 effluent quality that could be had within the

5 economic constraints of the community.

6 So as one that particularly touches close

7 to home, the health of our -- our communities is

8 directly tied to the economic health of the rest of

9 our state.

10 And I certainly do appreciate the

11 leadership of DNR on making this a viable, feasible

12 project.

13 Okay. So Commissioners, with that, we --

14 I would accept or entertain any motion to approve

15 the variance as proposed.

16 COMMISSIONER REECE: Madam Chair, I'd like

17 to move that the Commission approve the Kirksville

18 variance CWC-V-1-17 as proposed.

19 COMMISSIONER MCCARTY: Thank you,

20 Commissioner Reece. Any second?

21 COMMISSIONER CODAY: I'll second the

22 motion.

23 CHAIR MCCARTY: Thank you, Commissioner

24 Coday. Susan, can you call the role?





1 COMMISSIONER THOMAS: I.


3 COMMISSIONER CODAY: I.

4 MS. BORTON: Commissioner Reece?

5 COMMISSIONER REECE: I.


7 COMMISSIONER HURST: I.

8 MS. BORTON: Commissioner Kleiboeker?

9 COMMISSIONER KLEIBOEKER: I.

10 MS. BORTON: Chairman McCarty?

11 CHAIR MCCARTY: I.

12 COMMISSIONER MCCARTY: Okay. Thanks to

13 all of you. The next item on our agenda is a water

14 quality standards rule-making update.

15 COMMISSIONER REECE: Madam Chair?

16 COMMISSIONER MCCARTY: Yes, sir.

17 COMMISSIONER REECE: Before we go into

18 Item No. 3 on the agenda, I would like to move that

19 the Clean Water Commission go into closed session

20 to discuss legal, confidential or privileged

21 matters under Section 610.021 Revised Statutes of

22 Missouri.

23 COMMISSIONER MCCARTY: Okay. Thank you.

24 Commissioner, is a there a second to that motion?

25 COMMISSIONER CODAY: I'll second the




1 motion.

2 COMMISSIONER MCCARTY: Okay. Commissioner

3 Coday seconds. Role call, Susan.




7 COMMISSIONER KLEIBOEKER: Yes. This is

8 John Kleiboeker.

9 COMMISSIONER MCCARTY: What was that,

10 John?

11 COMMISSIONER KLEIBOEKER: I said my name.

12 I apologize.

13 CHAIR MCCARTY: Yes, you did. You were

14 correct. You were called first on the role.


16 COMMISSIONER HURST: Yes.


18 COMMISSIONER THOMAS: Yes.


20 COMMISSIONER CODAY: Yes.

21 MS. BORTON: Chair McCarty?

22 CHAIR MCCARTY: Yes. Okay. As we have

23 two Commissioners joining us by phone today, we

24 would ask that attendees step into the lobby.

25 And as soon as we are -- as soon as we




1 adjourn from closed session, we will let everyone

2 know and welcome you back into the meeting room.

3 (The Commission went into closed session.)


5 everyone, for your patience and joining us back.

6 And we -- I also want to -- I failed to mention at

7 the outset of this meeting and just recognize the

8 DNR leadership that is with us today.

9 So I didn't want to -- I wanted to point

10 out that Director Carol Komer has joined us, and we

11 appreciate her time.

12 Deputy Director Drew Button is in the back

13 of the room as well. And Division of Environmental

14 Quality, Director Ed Galbraith is also with us. So

15 we appreciate that and your time and leadership on

16 these issues.

17 We are going to move into agenda Item

18 No. 3 now, which is the water quality standards

19 rulemaking update presented by John Hoke.

20 MR. HOKE: Thank you, Chairman McCarty.

21 Good morning, Commissioners. My name is John Hoke.

22 I'm Chief of the Water Shed Protection Section. My

23 staff and I work on water quality monitoring

24 assessment, development of the 303(d) list, total

25 maximum daily loads and the item today, water




1 quality standards.

2 Under the Federal Clean Water Act, the

3 State is required every three years to develop and

4 revise water quality standards. We are getting

5 close to the end of this process for the current

6 rule-making, which is the result of a number of

7 stakeholder meetings and efforts that have lasted

8 the past three years.

9 Priorities that have been established as a

10 part of this process include handling disapproved

11 EPA times such as the American Nutrient Criteria of

12 the lakes, various language as well as adoption of

13 provisions that were developed through the

14 stakeholder process submitted through the

15 Department through public process and sort of our

16 own initiatives as well.

17 We recently published in the Missouri

18 Register on October 16th those proposed revisions.

19 That kicked off a public comment period for the

20 proposed rule which ended November 28th.

21 It also included a public hearing at the

22 Lewis and Clark Building on November 21st. So just

23 after the public comment period, staff are in a

24 position then to review those comments and then

25 provide comment responses to those -- to those




1 comments.

2 In total, we had 30 written comments on

3 the proposed rule from 35 groups. They had 13

4 members of the public and associated interested

5 parties present at the public hearing on November

6 21st. Those comments that were received all

7 240-plus pages are in your blue packet.

8 COMMISSIONER MCCARTY: Under Tab 3.

9 MR. HOKE: Under Tab 3. Staff worked very

10 hard to accomplish the written responses to these

11 comments which ranged in levels of detail from very

12 simple and supportive to very technical. And so

13 I'm -- when I want to give a shout-out to staff for

14 their -- for their hard work.

15 The Department is currently finalizing our

16 responses to these comments which will be put into

17 what is called an Order of Rulemaking, which you

18 will consider at your January 4th meeting.

19 That Order of Rulemaking is sort of the

20 last formal step in that process before we file

21 with the Secretary of State, JCAR and others to

22 push that rule through the -- the final part of the

23 process before submitting to US EPA for their

24 approval.

25 That's my update. I appreciate your




1 patience. I appreciate your commitment to

2 reviewing the materials before your January 4th

3 meeting. And I'll be glad to answer any questions.

4 CHAIR MCCARTY: Okay. Commissioners, any

5 questions? Of course, we have -- I know that DNR

6 staff has been working diligently to prepare this

7 public comment document that we have just scanned

8 this morning we have not had time to review public

9 comments and responses to.

10 But we'll have the opportunity to do so

11 between now and the vote that will be taken January

12 4th.

13 Any questions or comments from the

14 Commission? Okay. Thank you very much, John.

15 MR. HOKE: Thank you.

16 CHAIR MCCARTY: Agenda Item No. 4 is the

17 consideration of the Administrative Hearing

18 Commission's recommended decision regarding RNR

19 Farm, LLC, for an appeal. And we will welcome Greg

20 Caldwell with the Water Protection Program.

21 MR. CALDWELL: Good morning. My name is

22 Greg Caldwell. I am with the Industrial Permits

23 Unit of the Water Protection Program.

24 I'm introducing the Administrative Hearing

25 Commission's Decision regarding the appeal of




1 permit MOGS105132 to RNR Farms, LLC.

2 This is a Class 1-C poultry concentrated

3 animal feeding operation proposed in McDonald

4 County. The application was received on February

5 16th, 2016.

6 The Department received numerous comments

7 during the neighbor notice comment period. The

8 Department also conducted a public hearing on April

9 25th, 2016.

10 The permit was issued to RNR Farms on July

11 6th, 2016. An appeal of the permit was filed

12 August 2nd, 2016, with the Administrative Hearing

13 Commission. And a hearing was held on October

14 21st, 2016.

15 On November 12th, the Administrative

16 Hearing Commission rendered a decision to uphold to

17 the Department's issuance of the permit.


19 hear from the attorneys for the parties and oppose

20 permit that was originally issued by the

21 Department. Does the Commission have any questions

22 at this time?

23 CHAIR MCCARTY: I don't think so at this

24 time, Greg. Stand by. We may as we enter

25 deliberations. So the -- before the Commission




1 considers and deliberates on the AHC's recommended

2 decision on this, there have been several filings

3 made in the last 24 hours primarily that we want to

4 consider and deal with prior to our deliberations.

5 So there have been motions to disqualify

6 or recuse several Commissioners and, also, a Motion

7 to Continue. So we will first deal with the

8 Motions to Disqualify or Recuse Commissioners one

9 by one.

10 The first was Commissioner Hurst has been

11 -- was moved by the Petitioners K Tre Holdings and

12 Sharon Engle, Frances Hare and Jes Blair through

13 their attorney of record, Jordan Paul, and also,

14 through Stephen Jeffery.

15 And we would like to consider this. I

16 would turn it over to Commissioner Hurst to any

17 comments you may have.

18 COMMISSIONER HURST: Thank you, Chairman

19 McCarty. I've got -- I'll just make one quick

20 comment here. In addition to the most recent

21 agreement that was filed with the Clean Water

22 Commission, I do need to go file a Petition and

23 closed disqualify me from the permit and another

24 part of the Clean Water Commission's response in

25 filing the Court there.




1 I recommended to the Cole County Court

2 that in the substance of the motion that I was not

3 participating, that the deliberations or vote on

4 this appeal and others.

5 Even though the Commission has now been

6 voluntarily withdrawn from the -- from the Cole

7 County Circuit Court, I intend to honor the

8 representation that I made to -- to the Circuit

9 Court there in my affidavit. So I'm not going to

10 participate in and I won't vote on this at all.


12 Commissioner. So that motion as it now stands

13 before the Clean Water Commission is dismissed as

14 it is moot, and Commissioner Hurst will not be

15 participating in this consideration today.

16 The next motion to disqualify or recuse

17 was filed regarding Commissioner Stan Coday as it

18 contends as President of the Wright County Farm

19 Bureau.

20 So, Commissioner Cody, do you feel that in

21 any -- that your position as President of the

22 Wright County Farm Bureau in any way affects your

23 abilities to render an impartial decision in this

24 case?

25 COMMISSIONER CODAY: No, I do not believe




1 that it does.

2 COMMISSIONER MCCARTY: Thank you. I would

3 accept any motion regarding the denial of the

4 Motion to Disqualify or Recuse Commissioner Coday.

5 COMMISSIONER THOMAS: So moved.

6 COMMISSIONER MCCARTY: Commissioner Thomas

7 moved. Second?

8 COMMISSIONER REECE: Second.

9 COMMISSIONER MCCARTY: Commissioner Reece

10 seconds. Susan, can you call the role on this

11 motion?






17 COMMISSIONER MCCARTY: That was

18 Commissioner Kleiboeker?

19 COMMISSIONER KLEIBOEKER: Approve.




23 Commissioner Hurst?

24 MR. WIEBERG: He's abstaining.





1 CHAIR MCCARTY: I. Okay. That objection

2 is then -- and motion is overruled. We will then

3 consider the motion to disqualify or recuse

4 Commissioner Thomas.

5 Commissioner, do you feel in any way that

6 your position as -- with -- as Chief of Staff for

7 State Senator Ryan Brunslinger in any way affects

8 your ability to render an impartial decision in

9 this case?

10 COMMISSIONER THOMAS: No.

11 COMMISSIONER MCCARTY: Okay. With that, I

12 would entertain a motion to the deny the Motion to

13 Disqualify or Recuse Commissioner Thomas.


15 CHAIR MCCARTY: Commissioner Reece moved.

16 Second?

17 COMMISSIONER CODAY: Second.

18 COMMISSIONER MCCARTY: Commissioner Coday

19 seconds. Susan, please call the roll.


21 COMMISSIONER THOMAS: Abstain.








1 MS>BORTON: Commissioner Reece?



4 COMMISSIONER HURST: Abstain.


6 COMMISSIONER MCCARTY: I. Okay. So those

7 are the -- that motion is overruled, and the motion

8 is denied.

9 The other motion that has been filed

10 before the Clean Water Commission is a Motion to

11 Continue that Petitioners K Tre Holding by and

12 through their attorney of record, Jordan Paul, as

13 well as Stephen Jeffery as well filed a Motion to

14 Continue this to a later date.

15 And the permittee and through their

16 Counsel of Record, Robert Brundage, filed an

17 objection to the Petitioner's Motion for

18 Continuance.

19 Counsel for RNR Farms is here today. We

20 would ask -- we see your objection to Petitioner's

21 Motion for Continuance but would ask you, as the

22 sole discretion of the permittee, to grant

23 continuance if the permittee desires to grant a

24 continuance at this time?

25 MR. BRUNDAGE: Chairman McCarty, members




1 of the Commission, Robert Brundage, Newman, Comley

2 & Ruth Law Firm of Jefferson City on behalf of RNR

3 Farms, LLC.

4 We stand behind the objection to the

5 Motion for Continuance. We do not grant in our

6 discretion from today.

7 I might note that this case has seen a

8 long delay caused by the Petitioners in this case

9 who filed an improper Petition for a Writ of

10 Prohibition in the Circuit Court of Cole County,

11 Case No. 17AC-CC00174.

12 And I brought with me today just to remind

13 me of how long this case has been delayed by the

14 petitioners by filing an improper writ that the

15 Court -- Circuit Court dismissed on September 1st

16 of 2017.

17 The preliminary writ was issued on March

18 28th, 2017. That's a 157-day delay that was caused

19 by the Petitioners.

20 The case was basically taken away from me

21 for that period of time and basically denied

22 justice to my client.

23 So we would strenuously object to any

24 continuance from today. Counsel could have

25 rescheduled whatever kind of matter that they have.




1 This Commission is six Commissioners at this point

2 in time, and I wouldn't want to have the job that

3 Mr. Wieberg has of trying to arrange all of your

4 schedules to try to have a meeting today.

5 And I appreciate very much that this

6 Commission got back together in such a short time

7 from the December 6th meeting when three

8 Commissioners were appointed the day before to have

9 this meeting today and at the time and effort that

10 it put together to be ready today.

11 So we appreciate that. But other than

12 that, I have nothing else to add. However, I do

13 want to -- it's kind of after the fact now.

14 But at least I'll put it in the record

15 that I have prepared some written suggestions on

16 the standard on recusal, which I'm sure that your

17 Counsel probably advised you on. But -- so I will

18 file that today with the Commission and send to

19 other Counsel who are not here today apparently.

20 Thank you.

21 COMMISSIONER MCCARTY: Thank you. Based

22 on that information, the -- I would entertain a

23 motion to deny the Motion for Continuance as it is

24 outside of the authority of the Clean Water

25 Commission and involved solely with the Permittee.




1 COMMISSIONER THOMAS: I move that we deny

2 this based on the fact that it falls beyond our

3 purview and it lies solely with the Permittee.

4 CHAIR MCCARTY: Okay. Commissioner Thomas

5 has moved. Is there a second?



8 seconded. Susan, can you call the roll?












20 CHAIR MCCARTY: I. Okay. We will now

21 move for consideration of the record before us on

22 the RNR Farm permit appeal.

23 So first, we would invite to present to us

24 Tim Duggan on behalf of the Department of Natural

25 Resources.




1 MR. DUGGAN: Good morning, Commissioners.

2 I am here representing the Department of Natural

3 Resources for purposes of this permit appeal.

4 And the reason that the Attorney General's

5 Office represents the Department in these types of

6 cases is by virtue of the statutory scheme.

7 If somebody is aggrieved by a permit

8 decision by the Department, the person may file the

9 complaint with the Administrative Hearing

10 Commission in order to have a what we call

11 contested case hearing, which is a hearing of

12 record.

13 Witnesses are presented. Exhibits are

14 introduced and so forth. It's all under oath.

15 It's taken down by a court reporter.

16 A contested case is a legal proceeding.

17 And the Department, which has the burden of proof

18 by statute, must be represented by an attorney.

19 And our office provides that service to the

20 Department.

21 The notion that the Department has the

22 burden of proof is an interesting one. It makes

23 sense from a practical point of view because the

24 challenge is to the Department's action.

25 So there's some logic in suggesting that




1 the Department should have to put on some kind of a

2 case to defend the decision that it made.

3 Since this is a third party appeal from

4 the grant of the operating permit by the

5 Department, the statute requires the Department to

6 -- to have the burden of proof at the

7 Administrative Hearing Commission level.

8 The Administrative Hearing Commission then

9 makes a recommended decision, which is passed along

10 with the entire contested case record, transcript,

11 all the exhibits and so forth to the Clean Water

12 Commission for a final decision.

13 That said, the Department really doesn't

14 have a legal stake in the fight, if you will, which

15 is, in this case, between the Applicant to the

16 permit and the persons opposed to the operation

17 being built in the first place.

18 We have a burden of proof. But the actual

19 legal interest, the property interest, if you will,

20 belongs to the holder of the permit.

21 And the -- in this case, as in most cases,

22 the person with that property interest or the

23 entity with that property interest did file a

24 Motion to Intervene in order to participate in the

25 hearing and protect that interest.




1 For purposes of these kinds of cases, I

2 always encourage the party on the other side to --

3 to do exactly that because I'm not really the

4 attorney for the permit holder.

5 Or if the shoe was on the other foot and

6 the Department denies the permit and the permittee

7 appeals, I'm not really representing the persons

8 who were successful in keeping the Department from

9 being issued in the first place.

10 So my role is to sort of make sure that

11 the record is complete before the AHC. And since

12 that, we show what the Department did in that, in

13 doing its job, it followed its own rules, crossed

14 the Ts, it dotted the Is in Court.

15 But we don't have the burden of hiring

16 experts. We don't have the burden of defeating

17 every possible claim that is thrown at the

18 Department.

19 We only have the burden, in my view, of

20 showing that the Department correctly determined

21 that the application was complete, that the

22 information was sufficient, that a permit could be

23 issued in compliance with the Clean Water

24 Commission's rules.

25 So for that reason, I'm not going to be up




1 here to talk a lot about any of the merits. I'm

2 going to defer to Mr. Brundage, who has represented

3 in this case the permit holder because it's his

4 client's interest that's at stake. They're the

5 ones that really have the fight to fight.

6 But I will say that in this case, the

7 Administrative Hearing Commission very carefully

8 went through the various elements of complaint in

9 the appeal, reviewed whether or not, in fact, the

10 Department did something wrong in terms of -- of

11 the way the issue was framed.

12 In this particular case, some of the

13 things that were thrown at the Administrative

14 Hearing Commission to consider had to do with

15 process.

16 So, for example, the neighbor notice

17 letter that was issued did not have attached to it

18 a certain plan. And the complaint was, Well, that

19 was a deficient application for a permit because it

20 didn't have the plan attached.

21 As you go through the Administrative

22 Hearing Commission's recommended decision, you find

23 the Commission carefully determined whether the

24 letter -- the neighbor notice letter was even

25 required in the first place and determined that it




1 was not and determined it was not because of a

2 matter of timing.

3 This particular application fell in the

4 gap between the older rules which at one time

5 required a construction permit to the newer rules,

6 which did away with the construction permit

7 requirement because the Legislature changed the

8 statute.

9 And there was a gap where they put in a

10 new rule that did require the a neighbor notice for

11 operating permit applicants going forward. This

12 application had come in between the construction

13 permit rules and didn't apply to -- the neighbor

14 notice didn't apply, and it was prior to the

15 promulgation of the new rule that did require --

16 does require the neighbor notice for an operating

17 permit applicant.

18 So this is the kind of fine distinctions

19 that the Administrative Hearing Commission is

20 required to make. They are lawyers if you're not

21 familiar with them.

22 The Administrative Hearing Commission is a

23 separate agency. It's part of the Office of

24 Administration. It is a kind of Court. Kind of a

25 Tribunal. Doesn't have the power of Court, but it




1 does have the power to make agency decisions in

2 these kinds of appeals. It's powers vary from a

3 agency to agency.

4 But in the case of DNR appeals, it only

5 makes a recommendation. It doesn't make a final

6 decision in most cases.

7 Certainly, the Clean Water Commission

8 doesn't make a final decision. It only makes a

9 recommendation. But it parsed through the counts

10 that were made, counts that were made, and most of

11 this was based on procedural issues and whether or

12 not the Department was, indeed, required to do

13 something upon its claim with regard to if it

14 failed or not.

15 And then if it was a requirement imposed

16 by the Department, did it follow the rules of the

17 Commission correctly?

18 I will also point out very briefly, the

19 continuing authority question was raised in this

20 case. It has since been disposed of by the Court

21 of Appeals, which held in what we call Trenton

22 Farms One, the first appeal Trenton Farms CAFO

23 battle that in order to follow what the -- what the

24 opponents were saying about continuing authority,

25 the Commission will have to promulgate a new rule,




1 will have to amend it's rule.

2 But as the rule is written today, the

3 Administrative Hearing Commission, consistent with

4 what the Court of Appeals ultimately decided, is

5 that that is kind of a non-issue.

6 There's no requirement for the applicant

7 to bring forth all kinds of financial information

8 to support the notion that it can afford to build

9 and operate a CAFO property.

10 The rule requires that all that needs to

11 be shown is that the applicant is a permanent

12 entity if it is a corporate entity. In this case,

13 it is an LLC of perpetual duration. Therefore, it

14 meets the rule as the rule is written today.

15 This is the kind of analysis that the

16 Administrative Hearing Commission will go through.

17 Now, for your purposes, your decision is primarily

18 the fact finder.

19 And because the process sets up the AHC to

20 they make it easier for you by giving you a

21 recommended decision, under the statute, your job

22 is to go through these facts.

23 If you agree to that the fact makes sense,

24 is supported by the evidence and so forth, then you

25 may have to adopt that fact. You may adopt the




1 recommended decision in whole. Or you may adopt it

2 in part.

3 But whatever you decide to do, if you

4 depart from this recommendation, you have to say

5 why. You have to be specific in terms of, Well,

6 this finding of fact isn't going to be accepted by

7 us and here's the reason.

8 So long as the finding you make

9 independently of the AHC is supported by something

10 in the record, you're going to be fine on

11 traditional review as far as we're concerned.

12 But your option really is to either adopt

13 this, make any changes that you think are necessary

14 to make it more accurate, to make it more

15 reflective on what you believe the facts are and

16 then to do your best to apply your own rules and

17 statutes to the facts as you find them.

18 And that's basically it. Once you make a

19 written decision, notice will be sent to the

20 parties. And then they will have an opportunity to

21 take it on judicial review if they're -- if --

22 whichever party is aggrieved.

23 And the other party will be primarily the

24 defender of the decision. I'm not sure the

25 Department needs to defend their decision, whatever




1 it is, on appeal. But we'll cross that bridge

2 when, in fact, we get to it.

3 And with that, I'll turn this over to

4 Robert because he -- he can more helpfully answer

5 your questions and talk about the -- the record.

6 COMMISSIONER MCCARTY: So I -- go ahead,

7 Robert. Come on up. I failed to let Tim know that

8 we came underneath the 10-minute timeline, that we

9 were holding input from Counsel to ten minutes

10 each. So I will begin the timer, and you are

11 welcome to begin.

12 MR. BRUNDAGE: Oh, boy. I don't know if I

13 can do it. But I'll try.

14 COMMISSIONER MCCARTY: Go ahead.

15 MR. BRUNDAGE: Thank you again. When this

16 case was first brought before the Commission for a

17 vote, I think in January earlier this year, I was

18 not Legal Counsel for RNR Farms at that point in

19 time.

20 Their Legal Counsel subsequently withdrew,

21 and I entered my appearance. However, I was in the

22 room that day when the case was argued.

23 And one of the issues was the neighbor

24 notice letter. What is the purpose of a neighbor

25 notice letter? It's to let the neighbors know that




1 there's -- somebody is applying for a permit and

2 they would have an opportunity to participate in a

3 public review process and provide any comments.

4 That is the purpose of a public notice letter.

5 And I remember back in January, I was

6 listening to opposing Counsel, and he was

7 complaining that they sent the neighbor notice

8 letter out and they forgot the enclosure in the

9 letter.

10 It was a nutrient management plan that was

11 maybe five pages long, I'm not sure, that kind of

12 described the nutrient management process or how

13 they were going to handle the manure.

14 Well, they subsequently -- my clients

15 subsequently mailed out the nutrient management

16 plan in a separate envelope, certified mail. But

17 they didn't put the cover letter.

18 And I remember back in January that

19 Counsel for the Petitioner was complaining that it

20 wasn't all in the same letter. And I thought to

21 myself, Is that the best you've got that you said

22 it was -- anyway, I'll let you rule on that here in

23 a little bit.

24 But the fact of the matter is that these

25 neighbors got full notice. And if you think about




1 an opportunity to comment, these people got above

2 and beyond what almost anybody else gets on a CAFO

3 permit because the DNR, in their discretion,

4 granted a public hearing to these folks.

5 The neighbor notice letter first went out

6 on December 28th, 2015. February 10, the -- the

7 enclosure, nutrient management plan, was mailed to

8 the neighbors.

9 And apparently, in April, DNR noticed that

10 they were going to hold a public hearing an let

11 people comment. That was held on April 25th.

12 So, you know, you've almost got four

13 months in there since the first neighbor notice

14 letter was issued. The people had notice that

15 something was going on. They had every opportunity

16 to try to participate in the process.

17 So I think it's hard for them to -- to

18 complain that they didn't get notice and didn't

19 have an opportunity to comment.

20 One of the other parts of their appeal was

21 that they were latching onto a -- what is termed a

22 deficiency letter.

23 Sometimes if you submit an application and

24 DNR says, Well, maybe you didn't quite do this or

25 we've got a couple questions about that, they'll




1 send you a letter and say, Hey, we need to have

2 this addressed before we issue you the permit.

3 Well, DNR issued a letter like that. And

4 at the hearing, there was testimony that the DNR

5 said the applicant met all their deficiencies.

6 One of the deficiencies was they wanted --

7 on the application form, there's a place where the

8 engineer signs, and we'll talk about that in the

9 next case today. And they certify their

10 engineering drawings.

11 There was another part of it where the DNR

12 wanted a map. And the testimony at the hearing was

13 that they need a map with some more clarity. And

14 the Petitioner complained that the map didn't have

15 a scale on it, which it didn't have on this

16 supplemental map.

17 But what they really didn't point out in

18 their Petition against -- that they filed in

19 against this permit is that the application itself

20 had the same kind of map and there's two kind of

21 maps.

22 You can't see these, but these were part

23 of the permit application. And down here at the

24 bottom was the scale on the map on both of these

25 maps. So it did include the scale.




1 And the testimony at the hearing was that

2 these weren't quite clear enough that we wanted a

3 subsequent aerial photo that we could see this a

4 little bit better.

5 And DNR says, We got that, that it was, I

6 guess, sufficiently clear to them, enough

7 resolution in the supplemental map, and they were

8 satisfied. And they said it satisfied their

9 deficiency letter.

10 So -- but let's just talk about what's the

11 purpose of these two maps that they were

12 complaining about that didn't have the scale on it?

13 At least the second map.

14 These maps did have a scale. One of them

15 shows the distance to the closest house. The

16 regulations say that you have to locate your CAFO

17 barns at least a thousand feet to the closest

18 house. That's what the statute says.

19 So DNR, rightfully so, would want to see a

20 permit application to prove that it's more than a

21 thousand feet.

22 The Petitioners in this cases don't even

23 allege that it's less than a thousand feet. They

24 just complain that the map didn't have a legend on

25 it.




1 But the underlying purpose of the whole

2 map is, Is it more than a thousand feet? That's

3 what protects these people so that somebody can't

4 put a CAFO 50 feet from your house.

5 Well, it's more than a thousand feet, and

6 they didn't even allege that deficiency in their

7 Petition.

8 The -- the other purpose of the map is to

9 show one and a half times that thousand feet.

10 That's -- that draws the circle on the neighbor

11 notice letter.

12 Anybody within 1,500 feet of the

13 buildings, whoever owns that property gets a

14 neighbor notice letter. And those -- those people

15 got that letter.

16 They don't complain that they didn't get

17 the letter. They do complain that it was in two

18 different envelopes and two different times, but

19 they got letters.

20 So the underlying purpose of -- of these

21 maps that they were complaining about is fully

22 satisfied in the permit application.

23 The last thing I'll just talk about very

24 briefly is the continuing authority issue. At the

25 time the Administrative Hearing Commission wrote




1 their recommended decision, the Trenton Farms

2 Appellate opinion was not yet handed down by the

3 Court of Appeals. And the -- the Administrative

4 Hearing Commission wrote a recommendation.

5 Basically, they -- they could have done a

6 good job of writing my Appellate brief because they

7 agreed with our position that, as Mr. Duggan told

8 you a minute ago, the only thing that the

9 continuing authority regulation requires is that

10 you're a corporation in good standing.

11 That's basically it. There's no financial test

12 involved.

13 And that's what the Court of Appeals said.

14 So I don't think I really even need to address

15 that. But I -- the new Commissioners may not be

16 aware that there was an Appellate opinion that

17 really slammed the door shut on this continuing

18 authority argument.

19 With that, that's really all of the --

20 that I think I need to say today. I would simply

21 appreciate a motion to adopt the Administrative

22 Hearing Commission's recommended decision as-is

23 with no changes. Thank you very much.

24 COMMISSIONER MCCARTY: Any questions? All

25 right. Thank you. At this time, we would welcome




1 Counsel or any representative of the Intervenors, K

2 Tre Holdings, if present. Petitioners K Tre

3 Holdings, if present.

4 Okay. Seeing none, this is now before our

5 deliberation as a body. And I would take any

6 questions if there's any other questions for

7 individuals or entertain a motion based upon the

8 record before you.

9 COMMISSIONER CODAY: Madam Chairman, I

10 move that we uphold the permit as originally issued

11 by the Department.


13 moved. Is there a second?

14 COMMISSIONER THOMAS: Second.


16 seconds. Susan, can you call the roll?


18 COMMISSIONER REECE: Yes.


20 COMMISSIONER HURST: Abstained.


22 COMMISSIONER THOMAS: Yes.







1 Commissioner Kleiboeker?

2 COMMISSIONER KLEIBOEKER: Would you repeat

3 the motion, please?

4 COMMISSIONER MCCARTY: Yes. That the

5 permit as originally issued by DNR and recommended

6 by the AHC is upheld. Correct?


8 COMMISSIONER MCCARTY: Yes.

9 COMMISSIONER KLEIBOEKER: John Kleiboeker

10 votes yes.


12 COMMISSIONER MCCARTY: Yes. Okay. That

13 is the final decision, then, in the case of the

14 issue with RNR Farms and Petitioner's K Tre

15 Holdings.

16 Okay. Moving on, then, to the next agenda

17 item. It's going to seem very familiar to everyone

18 in the room with the similar process of what we

19 just went through.

20 The item on the agenda is the

21 Administrative Hearing Commission's recommended

22 decision regarding Trenton Farms, LLC, which is

23 Appeal No. 16-3924 for the Clean -- with the Clean

24 Water Commission.

25 We will -- actually, Greg, before we




1 welcome you, let's go ahead -- there have also been

2 motioned filed on this before the Clean Water

3 Commission. So let's work through those as we need

4 to, and then we will welcome you to present them

5 for us.

6 Okay. So the first issue have been --

7 there have been Petitioner's Motions to Recuse or

8 Disqualify Commissioners. The, first being Ben

9 Hurst. Commissioner Hurst, would you like to --

10 MR. BRUNDAGE: Commissioner McCarty?

11 COMMISSIONER MCCARTY: Yes, sir. Just one

12 moment. This is Robert Brundage.

13 MR. BRUNDAGE: Just for the sake of

14 process and procedures, I wanted to file my legal

15 document with the Commission just for the record.

16 Trenton Farms RE, LLC's Suggestions in Opposition

17 for Tendering Petitioner's Motion to Recuse or

18 Disqualify Commissioners, I simply just want to be

19 on record that I'm filing that at this point in

20 time. And I apologize for interrupting, but --

21 CHAIR MCCARTY: No. That's all right.

22 MR. BRUNDAGE: I wanted to get this on

23 record before it was actually addressed.

24 COMMISSIONER MCCARTY: Thank you. We

25 appreciate the document that we have received




1 entitled RNR Farms Suggestions in Opposition to

2 Petitioner's Motions and Amended Motions to Recuse

3 Commissioners.

4 This is Trenton Farms Suggestions in

5 Opposition to Petitioner's Motion to Recuse to or

6 Disqualify Commissioners.

7 MR. BRUNDAGE: Commissioner McCarty, I'm

8 filing one other one. It's a revised objection to

9 the continuance filed on behalf of Trenton Farms.

10 There was some typographical errors in my

11 other one that I filed in haste yesterday morning.

12 So I'm just refiling this, and it's virtually the

13 same thing that you -- that was filed yesterday for

14 the Commission.

15 COMMISSIONER MCCARTY: Thank you. That is

16 before us as well. Commissioner Hurst, the same

17 circumstances apply to this as the previous. Do

18 you want to make any statement regarding the

19 Trenton Farms appeal before the Clean Water

20 Commission?

21 COMMISSIONER HURST: Yes. Chair McCarty,

22 thank you for getting me in here. Same with the

23 RNR Farms deal.

24 In addition, there was a peer review and

25 the Motion to Recuse and Disqualify has been filed




1 here two weeks ago, the Petitioners filed a

2 Petition in Cole County Circuit Court to disqualify

3 me from participating in the affirmative appeal.

4 Part of the Commission without respect to

5 the something that the Petitioner or any of the

6 arguments made there, I represented to the Cole

7 County Circuit Court that I would not participate

8 in or vote on the appeal here even though the Court

9 withdrew the preliminary Writ and the Petitioner

10 voluntarily dismissed the Motion.

11 I do feel bound to honor the

12 representation that I made at Circuit Court in my

13 affidavit, so I will not be participating in our

14 voting on the permit appeal for Trenton Farms.


16 Commissioner Hurst. Considering that statement

17 with respect to this motion, it is dismissed as it

18 is moot.

19 There was also a Motion to Recuse or

20 Disqualify Commissioner Stan Coday as President of

21 the Wright County Farm Bureau. Commissioner Cody,

22 again -- yeah.

23 I should let everyone know that the

24 Petitioners Motion to Recuse or Disqualify these

25 three Commissioners were all included in one motion




1 but will be treated as separate motions for clarity

2 and purposes of voting.

3 So, Commissioner Coday, again, do you feel

4 that your position as Wright County Farm Bureau

5 President in any way affects your ability to render

6 an impartial decision in this case?

7 COMMISSIONER CODAY: No.

8 CHAIR MCCARTY: I would entertain a motion

9 on this matter.

10 COMMISSIONER THOMAS: I move that we deny

11 the recusal of Commissioner Coday.

12 COMMISSIONER MCCARTY: Okay. Commissioner

13 Thomas has moved. Is there a second?



16 has seconded. Susan, can you call the roll?















3 CHAIR MCCARTY: I. Then Commissioner

4 Kleiboeker was also requested to be recused or

5 disqualified from this vote as his service is on

6 the Board of Directors of the Missouri Soybean

7 Association, a volunteer position.

8 Commissioner Kleiboeker, do you feel in

9 any way that your position on the Missouri Soybean

10 Association Board of Directors affects your ability

11 to in any way to render an impartial decision in

12 this case?

13 COMMISSIONER KLEIBOEKER: No.

14 COMMISSIONER MCCARTY: Thank you. With

15 that statement, I would entertain a motion to deny

16 the Motion to Disqualify or Recuse Commissioner

17 Kleiboeker.

18 COMMISSIONER CODAY: Move to deny the

19 Petitioner's Motion to Disqualify Mr. --

20 Commissioner Kleiboeker.


22 moved. Is there a second?

23 COMMISSIONER THOMAS: Second.











6 COMMISSIONER KLEIBOEKER: I abstain.




10 COMMISSIONER HURST: I abstain.


12 COMMISSIONER MCCARTY: I. In

13 consideration of those votes, the motion is

14 dismissed.

15 The other filing that has been made, one

16 moment, is a Motion for Continuance on this,

17 similar to the previous motion for continuance.

18 I will find -- as -- as discussed in our

19 previous case, the permittee has sole discretion to

20 grant continuance. They have filed as we have just

21 noted in the record a revised objection to this

22 continuance.

23 Is there any statement that Counsel for

24 Trenton Farms would like to make on this matter?

25 MR. BRUNDAGE: Robert Brundage for Trenton




1 Farms RE, LLC. We had filed our opposition to

2 this.

3 This case is what we call Trenton Two.

4 This litigation has been going on for -- I've lost

5 track of time. Maybe over two years.

6 And we have consented to it to delay until

7 December 6th, and now we have consented to a delay

8 and a continuance until today. And we do not

9 consent to any further continuances.

10 We would like to have this matter

11 resolved, and we would like to receive justice

12 before this body. Thank you very much.

13 COMMISSIONER MCCARTY: Okay. Thank you.

14 Based on that information that the permittee, RNR

15 Farms, by and through Counsel objects to the Motion

16 for Continuance and that Clean Water Commission

17 does not have the authority to then further grant

18 continuance, I would accept a motion to that end.



21 made the motion. Is there a second?

22 COMMISSIONER CODAY: Second.

















11 CHAIR MCCARTY: I. Okay. Then the motion

12 for a continuance is denied. Then we will now move

13 on and welcome Greg to the podium, Greg Caldwell

14 with Department of Natural Resources to present

15 this case.

16 MR. CALDWELL: I'm here to -- to introduce

17 the Administrative Hearing Commission's Decision

18 regarding the appeal of permit -- the -- an appeal

19 of permit issued to Trenton Farms RE, LLC, Permit

20 No. MOGS10520.

21 This is a Class 1-C swine operation. It's

22 a feeding operation in Grundy County. The

23 application was received August 5th, 2016.

24 We received numerous applications during

25 -- or numerous comments during the -- the neighbor




1 notice comment period. And we held a public

2 hearing on October 12th of 2016.

3 The permit was issued to -- to Trenton

4 Farms RE, LLC, on November 23rd, 2016. An appeal

5 was submitted to the Administrative Hearing

6 Commission on December 23rd, 2016, And hearings

7 were held on May 16th and June 21st of 2017.

8 The Administrative Hearing Commission

9 rendered a decision on August 31st -- 31st, 2017,

10 to uphold the Department's issuance of a permit.


12 hear from attorneys of the parties and make a

13 decision on the appeal. Do you have any questions

14 at this time?

15 COMMISSIONER MCCARTY: Any questions for

16 Mr. Caldwell? Thank you. We would then invite

17 Counsel for DNR, Tim Duggan, to present.

18 MR. DUGGAN: You've heard us refer to

19 Trenton One. This is Trenton Two. It was a

20 subsequent application for a CAFO, and it was very

21 similar to the application of Trenton One.

22 But there are differences between the two

23 cases. And the primary difference is the flood

24 plain issue.

25 The previous decision by the Commission in




1 Trenton One was to deny the permit by virtue of the

2 fact that that Commission, and I think Commissioner

3 McCarty was the only member of that Commission who

4 is still on the Commission, but the majority of

5 that Commission concluded that the Department had

6 not met its burden of proof, that the manure

7 storage areas would not be inundated by a 100-year

8 flood event rejecting the recommendation contrary

9 by the Administrative Hearing Commission.

10 When it went to the Court of Appeals, that

11 was the issue the Court of Appeals considered

12 dispositive of the case. Talked about continuing

13 authority didn't have to reach it. It did talk

14 about it.

15 But on the flood plain issue, the Court of

16 Appeals deferred to the Clean Water Commission's

17 determination of the facts and the credibility of

18 the evidence on the flood plain question and

19 determined that it must affirm the Commission.

20 The Commission is sort of a jury, if you

21 will. Unless your Findings of Fact are completely

22 off the rails, the Courts are bound to affirm them

23 and only look at questions of law.

24 So we learned a lot from the Trenton Farms

25 One opinion about the flood plain question. And




1 this record before you today is a very different

2 hearing than Trenton Farms One was.

3 And just as the Administrative Hearing

4 Commission states in this recommendation that they

5 are limited their view of the issues to the record

6 before them in this particular appeal and they are

7 ignoring everything that happened in Trenton Farms

8 One, you should do the same.

9 This record is very, very thorough on the

10 flood plain question. And it actually sort of

11 addresses some of the misconceptions or

12 misunderstandings that might have appeared in the

13 Court of Appeals decision.

14 So, for example, the importance of the

15 FEMA map. In Trenton Farms Two, the applicant --

16 and you know don't have the burden of proof. It's

17 really on the applicant to convince the Department

18 that it's entitled to the permit.

19 And then on appeal, we now have the burden

20 of proof that they now have to make the case to the

21 Administrative Hearing Commission, and we -- we

22 support our decision largely based on -- on what

23 they presented to the Department, plus, anything in

24 addition.

25 And in Trenton Farms Two, the applicant




1 really drilled down on the flood plain issue and

2 presented evidence to dispel the notion that the

3 FEMA map is dispositive of anything. It really has

4 no bearing on the rule of this Commission that the

5 material cannot be inundated by a 100-year flood.

6 The map is not an attempt to determine all

7 the elevations. For that, you need a hydrological

8 expert. You need a study. You need a HEC-RAS map

9 and data analysis and so forth. And that was

10 actually done in Trenton Farms Two as part of the

11 application process.

12 And I believe my witness for DNR even

13 testified he's never seen a more thorough

14 application than Trenton Farms Two was,

15 specifically on the flood plain issue.

16 The credibility determinations by the

17 Administrative Hearing Commission are not binding

18 on you. If you choose to believe one expert over

19 another, that's your prerogative.

20 But in this case, the experts on flood

21 plain issue for both sides are basically in

22 agreement that there would not be a risk to the

23 manure storage areas on this particular farm.

24 I do want to point out, Mr. Brundage and I

25 had talked about this in preparing for today,




1 paragraph 33 on Page 10 of the recommended decision

2 appears to have an error in it. And I think it's

3 an error because it's inconsistent with everything

4 else the AHC says in its Decision.

5 But at the very bottom of page -- page 10,

6 the sentence that begins there, the -- this base

7 flood elevation, it says, is 13.5 feet above any

8 opening in the a CAFO buildings plus our minus a

9 foot. The word above should be below.

10 Taken in context of the rest of that

11 paragraph and the following paragraph, the rest of

12 the opinion, that is clearly an error. And I would

13 suggest to you that if you adopt this opinion, you

14 do make that change.

15 Similarly, on the nutrient management

16 plan, paragraph 38 -- Robert might be able to do a

17 boater job of explaining this than I can. But it

18 makes a statement, Phosphorous may be over-applied

19 from using the nitrogen rate because of

20 volitilization (evaporation of phosphorous and

21 nitrogen).

22 That is an inaccurate statement, and it

23 can probably be corrected simply by striking of

24 phosphorous and because nitrogen is volatile and

25 the record will show this.




1 The phosphorous tends to cling to the soil

2 and is stored in the soil. And that is why you can

3 adjust the -- the rates for nitrogen in applying.

4 The rest of the opinion, though, again,

5 like in RNR Farms, the Administrative Hearing

6 Commission has gone to great lengths to explain

7 what the Department may do and may not do.

8 It points out, for example, that the

9 Department cannot be held to a guidance document

10 that it posted on the web at one time since it was

11 replaced. If it's not part of the rule, it's not

12 part of the standard that the Department is

13 expected to achieve when determining whether to

14 issue a permit or not.

15 And the AHC found that the Department's

16 witness, who was an expert in these permit reviews,

17 stuck to the rules, did what he was supposed to do

18 and ignored extraneous material that really should

19 have no bearing because it isn't part of the

20 rulings that he was to follow in evaluating a

21 permit.

22 The witness understood it. The

23 Administrative Hearing Commission understood it

24 after hearing his testimony and recommended to this

25 Commission adopt the -- or approve the permit as




1 issued by the Department in that decision.

2 If you have any questions, I'll be happy

3 to try to answer them. Otherwise, I'll turn this

4 over to Mr. Brundage.

5 COMMISSIONER MCCARTY: Any questions?

6 COMMISSIONER THOMAS: I have a question.

7 COMMISSIONER MCCARTY: Commissioner

8 Thomas.

9 COMMISSIONER THOMAS: Would it also be

10 correct to say that on page 1, midway through that

11 paragraph, it says, In response on January 18th of

12 2019, we should correct that date?

13 MR. DUGGAN: Yes. If the record reflects,

14 that is inaccurate. Sure. Because your decision

15 is -- it must be supported by common and

16 substantial evidence on the record. So if it's an

17 error in transcription or --

18 COMMISSIONER MCCARTY: '17.

19 MR. DUGGAN: Yes. And you don't have to

20 write a whole new opinion, obviously. If you were

21 to vote to adopt this recommendation, you could

22 simply note in your resolution approving it that

23 these errors are corrected. That preserves for

24 future initial review if it that goes that far.

25 COMMISSIONER REECE: Do we need that as a




1 separate motion to make these corrections before we

2 vote on the permit?

3 MR. DUGGAN: I think you do it all in one

4 motion. For example, I move to approve the permit

5 or I move to accept the recommendation of the

6 Administrative Hearing Commission with these

7 corrections noted. I think that could be done that

8 way rather than separate motions for each

9 scrivener's error.

10 COMMISSIONER THOMAS: Thank you.

11 COMMISSIONER MCCARTY: Thank you. Counsel

12 for Trenton Farms RE, LLC?

13 MR. BRUNDAGE: Chairman McCarty, may I

14 have a minute to try to fire up the -- the

15 projector?

16 COMMISSIONER MCCARTY: Absolutely. Your

17 clock hasn't started yet.

18 MR. BRUNDAGE: I beg your pardon?

19 COMMISSIONER MCCARTY: I said your clock

20 hasn't started yet, so --

21 MS. BORTON: So you may -- to pull it up,

22 you guys may have to --

23 COMMISSIONER MCCARTY: Okay.

24 (Break in proceedings.)

25 COMMISSIONER MCCARTY: Please proceed.




1 MR. BRUNDAGE: Madam Chair and members of

2 the Commission, Robert Brundage on behalf of the

3 Trenton Farms RE, LLC. I appreciate the

4 opportunity to be here today and to go over the


6 decision.

7 We were pleased with the recommended

8 decision. Frankly, I think it hit on about

9 everything that it needed to hit on, and it was

10 very well-written and extremely thorough.

11 As Mr. Duggan reported to you, the problem

12 that the Commission had with the original

13 application was that it wasn't clear enough proven

14 in the Commission's -- or at least four members of

15 the Commission at the time that these proposed hog

16 barns were not in a 100-year flood plain or they

17 were not protected from inundation.

18 So it's important for you to understand

19 what the regulatory requirements are when the

20 Department reviews these applications is that the

21 regulation merely says that they have to be

22 protected from inundation.

23 So that means that either -- it's either

24 located outside of a 100-year flood plain or it can

25 be located inside a 100-year flood plain, but it's




1 somehow protected from being flooded.

2 Now I'm going to pause until --are we

3 okay?

4 COMMISSIONER MCCARTY: Thank you. Yes.

5 MR. BRUNDAGE: Okay. So the original

6 application, the Clean Water Commission said that

7 the engineer's certification surely didn't mean

8 that he was certifying that it was in -- it was not

9 in the 100-year flood plain and was protected.

10 But in hindsight and now in the second

11 permit application, the very same exact engineer

12 again recertified in this one, but he made it

13 crystal clear that he was certifying in the

14 engineering application that it was protected from

15 inundation from the 100-year flood.

16 And we'll go by and go through a few

17 things and explain why that is. Before I address

18 that, this nutrient management plan for this

19 facility has listed in it 1,178 acres of crop land,

20 farm fields, land applied manure.

21 And according to the calculations and the

22 testimony of the nutrient management specialist who

23 drafted it said that there were only 656 acres

24 required for this facility to land apply. That's

25 al the number of acres that you really need to land




1 apply the manure.

2 But this facility almost has twice the

3 number of acres. What does that do for you? That

4 provides you a lot of flexibility depending on what

5 the crop is out of the ground, depending if this

6 feels a little too wet right now. You can go over

7 to this field because it's dry. It gives you a lot

8 of flexibility, and it's -- and it's a luxury that

9 this permit has in it to have that many acres

10 available for it.

11 But Petitioners complain and challenge

12 that this facility was not protected from

13 inundation from the 100-year flood. What I want to

14 show you is the FEMA Zone A map, which is their

15 100-year flood plain map.

16 And these type of maps -- and I'm going to

17 show you on the map right here, this line right

18 here is the -- the flood plain, the edge of the

19 flood plain. Here is the other side right here.

20 If you -- if you know how to read topo

21 maps, the Thompson River is over here, and this is

22 Hickory Creek. So this is going upstream to the

23 left. So the stream is flowing to your right.

24 So this is a -- this is a stream -- this

25 is a valley right here. But if you look at these




1 topo lines, what do they do? You would think that

2 if it was a flood plain map that typically water

3 would follow the same elevation due to gravity.

4 But this map crosses one, two, three,

5 bounces into a third topo line right there that

6 goes back down the hill and crosses three topo

7 lines right there, goes down to a little tiny creek

8 valley and goes back up the little, straight up the

9 hill on -- if you know how to read topo maps, it's

10 crossing three topo lines.

11 So we know water doesn't do that. So you

12 immediately know what are these maps really up to?

13 They're not -- they're really not that helpful.

14 And our engineer had tried his best to

15 digitally overlay where the property would be. And

16 so the Petitioner pointed out in the hearing that

17 this flood plain line kind of goes through the

18 lower portion of the property site.

19 But as you read in the decision that we

20 had hired an expert, a flood plain modeling expert

21 to tell us exactly what is the elevation that the

22 100-year flood would reach in this area.

23 And before I do that, I wanted to read to

24 you just a paragraph out of the recommended

25 decision. Paragraph 17 on page 6 says, While the




1 FEMA is the official designation of the flood

2 plain, this particular map is not a reliable

3 indicator of exactly where the flood waters may

4 actually be located in the event of a 100-year

5 flood event of either the Thompson River or the

6 Hickory Creek.

7 The FEMA Zone A map, that's -- that's what

8 that is there on this line -- alone is insufficient

9 to base a determination on whether the proposed

10 Trenton Farm buildings are located within the flood

11 plain or whether the buildings are protected from

12 the flood or inundation.

13 So after this Zone A map is largely

14 discredited as part of the application, on Exhibit

15 L, was this engineering -- there's an engineering

16 seal right there by the engineer. And included in

17 this are drawings of where the -- the flood would

18 actually be.

19 WOMAN: If you want to pull that

20 microphone out, it's wireless, Robert.

21 MR. BRUNDAGE: Thank you. Trenton Farms

22 hired John Holmes, who is a flood plain specialist

23 and a professional engineer and an expert in

24 modeling flood plains.

25 As Tim -- Mr. Duggan said, the model was




1 called the HEC-RAS, H-E-C-R-A-S S model, and he

2 performed models. And this is where the -- the

3 flood waters would be for the 100-year flood as

4 indicated in the application.

5 This blue line is where the flood would

6 be, and it hits the edge of a berm. These

7 buildings are going to be built upon an elevated --

8 COMMISSIONER REECE: Bob, say that again.

9 What was the blue line again? Was that the

10 100-year --

11 MR. BRUNDAGE: The blue line is the model

12 100-year --

13 COMMISSIONER REECE: Where his model

14 showed.

15 MR. BRUNDAGE: This is where his model

16 shows it would actually hit.

17 MR. BRUNDAGE: It would --

18 COMMISSIONER REECE: And the red line?

19 MR. BRUNDAGE: I beg your pardon?

20 COMMISSIONER REECE: The red line above

21 the blue line?

22 MR. BRUNDAGE: That's the topo line --

23 that's the existing topo line right there on the

24 map.

25 COMMISSIONER REECE: Okay.




1 MR. BRUNDAGE: And as you can see, this

2 blue line here goes in between these lines. So it

3 gives you an indication it's got to be correct

4 because it's staying in between two topo lines on

5 the USGS -- these are probably survey lines --

6 pardon me.

7 Let me show a cross section. See this

8 black line right through here? I want to show you

9 a cross section of the building right there and

10 what that would look like and where the waters

11 would be on this building.

12 Here is the model elevation, 744.4 feet.

13 So the water would be below the basement of the hog

14 building. These hog buildings are like a -- it's

15 like a basement in somebody's house. This is solid

16 concrete.

17 But the bottom of the pit floor is 744 --

18 747.8, which is about 3.4 feet above. So the

19 bottom of the building is over three and a half

20 feet from where the 100-year flood is.

21 But we know the building is protected from

22 inundation because the flood waters would have to

23 go over the top of the building to get in and

24 comingle with any manure with the hogs.

25 So the actual elevation where it's




1 protected from inundation is 757.8. That's 13 and

2 a half feet higher than this elevation line here.

3 And as Mr. Duggan talked before, I think

4 there's a scrivener's error in the recommended

5 decision that we'll address here later in our

6 discussion.

7 But this very clearly shows that these

8 buildings are protected from inundation from the

9 100-year flood.

10 It was interesting that Petitioners had

11 their own experts. They hired an expert to review

12 the work that our expert did. And he, too, was a

13 professional engineer who had experience in the

14 flood plain model.

15 And the rest of it was a guy named

16 Mr. Reese. And he agreed that our expert,

17 Mr. Holmes' modeling was -- I'll quote the -- quote

18 from his deposition. Reasonable and, quote, met

19 the standard of care in the area of engineering.

20 Their expert also said that Mr. Holmes,

21 who prepared this model, that his modeling was,

22 quote, accurate, plus or minus 1 to 2 feet, but

23 closer to 1 foot.

24 So that means Petitioner's experts said,

25 Well, he could have done some things differently




1 and this blue line could be below down here 1 to 2

2 feet or it could be up to here 1 or 2 feet.

3 But even if it's 2 feet higher, it's still

4 one and a half feet basically from the bottom of

5 the building or about 12 feet till it actually

6 would inundate the building. So there is a lot of

7 room that these buildings are protected it from

8 inundation.

9 The Administrative Hearing Commission held

10 that, quote, We find that the CAFO is sufficiently

11 protected from inundation or damage due to the

12 100-year flood.

13 Now, let me move on to Count 3 of the

14 Petition. There was some complaint that some of

15 the land application fields were down in the

16 Thompson River -- in the Thompson River bottoms,

17 and they were complaining that some of these fields

18 would flood from time to time.

19 And they complained that a DNR

20 publication, Publication No. 915, said, Areas with

21 flood frequencies greater than once in ten years

22 should not be the only land available for land

23 application.

24 Well, as I described before, our permit

25 has almost twice the number of acres available.




1 And as the Department of Natural Resources pointed

2 out on the stand that Publication 915 has been

3 superseded by a new publication, 2351. And it is

4 no longer one of DNR's publications.

5 But, also, as the Administrative Hearing

6 Commission pointed out, these publications are not

7 in the regulations. They're not binding at all on

8 the Department when they review these applications.

9 In fact, the Administrative Hearing

10 commission said, quote, We conclude the Publication

11 915 has no binding effect and is not an

12 interpretation of the regulations.

13 I'll briefly read one paragraph. The

14 Administrative Hearing Commission said on the

15 bottom of page 20, Even if it were to conclude that

16 Publication 915 was applicable here, the evidence

17 also established that there is approximately twice

18 as much manure storage in the CAFO as required.

19 There are twice as many fielded as needed each year

20 for land application. And while some of the

21 feelings may be probably flood, there are other

22 fields available to land application manure.

23 Finally, even though Trenton Farms has

24 included fields for land application, other

25 alternatives, such as seller giving away the manure




1 to be applied elsewhere is within the regulation

2 and Trenton Farms' discretion.

3 Kind of the third aspect of this appeal is

4 Count 4. Count 4 -- the Petitioners, Hickory

5 Neighbors United, put forth an expert who was from

6 the State of North Carolina and worked for the

7 extension service our there, a gentleman named

8 Mr. Rice.

9 Mr. Rice and his father are both members

10 of Hickory Neighbors United. But nonetheless, he

11 testified at the hearing. And he testified that

12 four fields in the nutrient management plan did not

13 have the appropriate setbacks from certain wetland

14 features that he claimed were there or other --

15 other water features. But the Administrative

16 Hearing Commission rejected his testimony.

17 What the Department testified to and what

18 the Administrative Hearing Commission ruled that

19 there are certain setbacks that you have to have

20 from property lines or a stream when you land apply

21 manure.

22 You have to keep so many feet away just as

23 a buffer, just as a precaution, a safety

24 precaution. And they were complaining that the

25 maps and the nutrient management plan didn't




1 include everything that they should have included,

2 and, therefore, they could be over land applying

3 when they're not supposed to be applying.

4 However, the Department testified that

5 nutrient management plan, the only thing it needs

6 to include is a table of what those setbacks are to

7 the different kinds of features and that while the

8 person was actually running the land application

9 permit, it's incumbent on them to follow those

10 because we know field conditions change from time

11 to time, and it's -- it's incumbent upon the

12 operator of the equipment to actually follow the

13 regulations.

14 Because the nutrient management plan, all

15 it has to do is have that protocol. What is the

16 protocol? It's the setback. And our nutrient

17 management plan did include appropriate setbacks

18 for those.

19 I'll conclude by reading what I thought

20 was an extremely cogent and to the point summary of

21 how the Administrative Hearing Commission ruled on

22 this testimony from Mr. Rice, the expert.

23 Quote, Though not required to do so by

24 regulations, Trenton Farms nutrient management plan

25 also identifies specific boundaries and other




1 setbacks on aerial maps to various fields.

2 The regulations only require a nutrient

3 management to include setback protocols. It was

4 used to ascertain the potential available land for

5 the manure.

6 Trenton Farms, as they state no discharge

7 operation may revise and amend its nutrient

8 management plan at any time without inquiring

9 Department approval.

10 So in other words, the nutrient management

11 plan had something in it that changing field

12 conditions came up. All you have to do is revise

13 your plan because they can revise the plan on this

14 type ever permit and do not have to get Department

15 approval to do that.

16 I'll continue. Quote, Hickory Farms

17 expert Rice contends that the setbacks were

18 inaccurately determined and that this will be there

19 for as a result in over-application to particular

20 fields.

21 Rice agrees as to the land application

22 rates specified in the Trenton Farms nutrient

23 management plan. But his calculations were

24 different based upon setbacks from ditches and

25 wetlands that he described.




1 While we found Rice to be a credible

2 witness in terms of his background and experience

3 with these nutrient management plans, we conclude

4 that the nutrient management plan contained the

5 setback protocols that are required by the

6 regulations.

7 While the possibility exists for

8 over-application of nitrogen and phosphorous on

9 certain fields contained within the nutrient

10 management plan as alleged by Hickory Neighbors,

11 that possibility is merely speculative.

12 It does not establish the permit does not

13 meet the requirements, nor does it mean that

14 over-application will occur. We give little weight

15 to the setbacks identified by Rice based upon dated

16 maps and insufficient descriptions and deficient

17 definitions of ditches and wetlands contained

18 within the crop land that Mr. Davis has farmed for

19 several years.

20 Mr. Davis is the land owner of these

21 fields. I'll continuing quoting. The last

22 paragraph, The ultimate responsibility for nutrient

23 management plan rests with the permit holder.

24 The proposed applicator for Trenton Farms,

25 Mr. Davis, is experienced with nutrient management




1 plans, and we believe that he will do the best to

2 make sure that the land application is carried out

3 appropriately and that the standards and records

4 are kept.

5 At the hearing, I have pointed out in an

6 argument that their expert did not point out and

7 identify or even identify -- or define these things

8 that he was talking about.

9 In fact, two of the so-called wetland

10 areas, we introduced photographs with Mr. Davis who

11 is sitting right here, standing in this bean field

12 that was freshly disked, freshly planted, and it

13 was dry as a bone. So that largely discredited

14 Mr. Rice right there. And the Hearing Officer I

15 just read to you gave little weight to his

16 testimony.

17 So in conclusion, I think we have

18 submitted a revised application. I think it is

19 extremely thorough. It documents how these areas

20 are not even in the 100-year flood plain.

21 We documented how we have an appropriate

22 nutrient management plan that includes the

23 protocols necessary for land application to meet

24 the requirements of the regulations and that we

25 have ample acreage to do appropriate and proper




1 land applications since we have over twice the

2 acres necessary to land apply.

3 So with that, I would ask that -- surely I

4 didn't give you my copy. I have handed out to you

5 a one-page piece of paper that that's the proposed

6 motion. And this is what I would ask you to do

7 today.

8 I would ask that someone say, I move that

9 the Commission accept and adopt the Administrative

10 Hearing Commission's recommended decision with, and

11 I had written two exceptions, and I will change

12 that to three.

13 First, the last sentence on page 10 be

14 revised as follows: Quote, This base flow

15 elevation is thirteen five -- 13.5 feet and it said

16 the word above. I think they meant below,

17 obviously. Below any opening in the CAFO

18 buildings, plus or minus one foot. And I'll show

19 to you this -- one of the exhibits that show how

20 the 100-year flood is 13.5 feet below.

21 The next paragraph I wrote says, Second,

22 on page 19, the last sentence of the first full

23 paragraph you revise as follows. It was actually

24 an extra word that said, Therefore, we find that,

25 instead of saying that that, it should say that the




1 CAFO is sufficiently protected from inundation of

2 damage due to the 100-year flood.

3 And, lastly, as Commissioner Thomas

4 correctly pointed out, which I missed, on page 1,

5 third, that the date Jane 18, 2018 on page 1 be

6 revised to January 18, 2017.

7 CHAIR MCCARTY: Mr. Brundage, Tim Duggan

8 brought up the page 11 phosphorous volatilization

9 error.

10 MR. BRUNDAGE: I -- okay. I'm glad that

11 you brought that up. I forgot to mention that.

12 And I agree with his statement.

13 COMMISSIONER REECE: What page was that

14 on?

15 COMMISSIONER MCCARTY: Page 11, item at

16 the very bottom of the page.

17 MR. BRUNDAGE: On Page 11, very bottom of

18 the page is paragraph 38. I wasn't going to say

19 anything about this, but it is technically

20 incorrect. And I wasn't going to say anything

21 because I didn't think it was absolutely crucial to

22 this decision.

23 But it's -- it's incorrect to say that

24 there was evaporation of phosphorous and nitrogen

25 as the reason that phosphorous may be over-applied




1 using the nitrogen.

2 The actual reason is, is that phosphorous

3 banks in the soil. And that may be a confusing

4 term to have as part of the testimony at the

5 hearing. Banked in the soil basically means that

6 phosphorous can be over land applied if you've

7 applied more than what the crop actually needs.

8 But phosphorous has the tendency that it

9 -- when it soaks into the soil, it globs on to soil

10 particles, and it just stays there. It's not --

11 it's very insoluble. And it stays there for future

12 years so the plant can use phosphorous this year.

13 If it's still there next year, it can use it that

14 way. So it's banked for use in the future.

15 But if that were the explanation, the

16 sentence could be changed to say that the nitrogen

17 rate because, I wrote in my notes, because

18 phosphorous may be banked or stored in the soil

19 period. That's how I would change it.

20 So that's four changes to this decision

21 that I would ask that you make when making a motion

22 to adopt this recommended decision.

23 COMMISSIONER MCCARTY: Thank you.

24 MR. BRUNDAGE: Thank you.

25 COMMISSIONER MCCARTY: We would welcome




1 any Counsel or representative of the Petitioner at

2 this time. Okay. Seeing none here today, this

3 item is ready for discussion, deliberation and a

4 motion.

5 COMMISSIONER REECE: Question.

6 COMMISSIONER MCCARTY: Yes. And any

7 questions.

8 COMMISSIONER REECE: Yeah. Robert, after

9 reviewing a lot of this information, reams and

10 reams of paper, I didn't see any place where they

11 calculated the volume of manure that was going to

12 be produced by these hogs depending on the amount

13 of water used to hose down and clean up, how many

14 gallons of manure are -- will be, you know,

15 produced.

16 And so I went into the -- to my computer,

17 and I looked up volumes of waste from animal

18 production. And you went into the United States

19 Department of Agricultural, and they resource

20 Conservation Service.

21 And in that document, they show the amount

22 of manure expected from -- for a thousand pounds of

23 animal unit. And, also, the volume of phosphorous

24 and nitrogen and phosphorous that would be produced

25 by -- from this waste.




1 And I'm just curious, I didn't see

2 anywhere where they talked about application rates

3 of nitrogen and phosphorous to the land per acre.

4 Also, I -- I did see where this did

5 require that all of the application would have to

6 be sub-surface injected. You just can't put it out

7 on top of the ground. Because if you get a rain

8 event, it's all going to wash down into the creek.

9 So I noticed -- noticed that they

10 recommended they go to sub-surface injection for

11 their disposal. So I was just curious where -- how

12 they calculated that data, where did they get that

13 information from. And do you have that

14 information? Or can somebody provide that

15 information?

16 Because this is very critical to the

17 operation of this facility is how much manure is

18 produced, volume, and the application rates on the

19 acreage.

20 MR. BRUNDAGE: The reason you didn't read

21 about that in the transcript is because the

22 Petitioners apparently must have thought that the

23 application was sufficient in that regard, so they

24 did not challenge that.

25 The Department thought that the submission




1 was -- was appropriate, and that's why they issued

2 a permit. But that was in the permit application.

3 So anyway, that's why you didn't read about it in

4 this permit appeal because it wasn't an issue in

5 this permit appeal. But --

6 COMMISSIONER REECE: Well, just the

7 question came up because I didn't see that

8 information provided.

9 MR. BRUNDAGE: Well, what you have to do

10 in the permit application is that you have to show

11 that you have at least 180 days of storage for the

12 manure.

13 Now, that's because, you know, in the

14 wintertime, it's not really a good time to land

15 apply, so you just store it. So Department

16 regulations require 180 days. I could dig it out,

17 and I --

18 COMMISSIONER MCCARTY: I believe it's --

19 we have copies of --

20 MR. BRUNDAGE: I think what we have are

21 more -- we have more than 365 day storage in our

22 system, in the buildings to store the manure.

23 COMMISSIONER REECE: Well, what data did

24 they use to determine that capacity?

25 COMMISSIONER MCCARTY: Petitioner's




1 Exhibit 2.

2 COMMISSIONER REECE: Speaking as a

3 wastewater engineer and not --

4 MR. BRUNDAGE: Now, I'm a lawyer, not an

5 engineer. But one of the exhibits at the hearing

6 was Exhibit 2.

7 MR. WIEBERG: It should be in your binder,

8 Commissioner.

9 COMMISSIONER MCCARTY: It is.

10 MR. BRUNDAGE: And Exhibit 2 was a copy of

11 the permit application.

12 COMMISSIONER REECE: I missed that then.

13 When looking through that data, I didn't see that.

14 If I did, I apologize.

15 MR. BRUNDAGE: Exhibit 7 is pages and

16 pages of the nutrient management plan, and it

17 includes the calculated rate in pounds of

18 phosphorous and nitrogen that should be applied on

19 each field based upon soil samples.

20 COMMISSIONER REECE: So what I'm -- what

21 I'm saying, it wasn't brought up in the hearing.

22 So evidently from that point, it -- DNR and the --

23 I guess the Hearing Commissioner was received that

24 the data presented was accurate.

25 MR. BRUNDAGE: Right. Just hold on for a




1 second.

2 MR. CALDWELL: That's the application

3 there. It should be in the first few pages of the

4 actual application.

5 CHAIR MCCARTY: So if I may, in -- our

6 Trenton Farms appeal Part Two, following -- and

7 they're not numbered at this point. But there is a

8 gestation facility, manure production and storage

9 calculations, the facility manure and production

10 calculations of the field development facility.

11 That was prepared by Softwell. And --

12 COMMISSIONER REECE: So it's there.

13 MR. CALDWELL: Yes. Right there.

14 COMMISSIONER REECE: All right. I

15 apologize for taking so much time. I didn't see

16 that during my initial review.

17 MR. CALDWELL: Yeah. And I believe the

18 basis they used for this is called Midwest Service

19 Planner. It's an Ivy State Publication, and it's

20 pretty standard in the industry for what we use in

21 the --

22 COMMISSIONER REECE: Is it for most

23 engineering?

24 MR. BRUNDAGE: Mr. Caldwell.

25 COMMISSIONER REECE: Thank you, Bob. That




1 answers my question. Thank you. Or Rob.

2 COMMISSIONER MCCARTY: Other questions

3 from the Commission? Okay. With that, I would

4 entertain a motion.

5 COMMISSIONER CODAY: Madam Chairman, I

6 move the Commission accept and adopt the


8 decision with the following exceptions: That the

9 last sentence on page 10 be revised to the base

10 flood evaluation of 13 and a half feet below any

11 opening in the CAFO buildings, plus or minus a

12 foot.

13 Second, on page 19, the last sentence of

14 the first full paragraph be revised to say,

15 Therefore, we find that, removing the second that,

16 that the CAFO is sufficiently protected from

17 inundation of damage due to the 100-year flood.

18 Third, on page 1, the fifth sentence of

19 second paragraph be revised as follows: In

20 response on January 18th of 2017. And then,

21 finally, on page 11, Item 38 be revised to say that

22 phosphorous may be over-applied when using the

23 nitrogen rate because of volatilization and

24 evaporation of nitrogen.

25 COMMISSIONER MCCARTY: Okay. Motion by




1 Commissioner Coday. Is there a second?


3 COMMISSIONER MCCARTY: Second by

4 Commissioner Reece. Susan, can you call the roll,

5 please?






11 Commissioner Kleiboeker? Commissioner Reece?



14 COMMISSIONER HURST: I abstain.


16 CHAIR MCCARTY: I. Okay. Thank you.

17 Therefore, the decision is final that the Clean

18 Water Commission uphold the granting of the permit

19 as recommended by the Administrative Hearing

20 Commission as -- with changes as noted in the

21 motion which have been noted --

22 MR. BRUNDAGE: Did Mr. Kleiboeker vote?

23 COMMISSIONER MCCARTY: No. We believe

24 that -- John, are you still on the line?

25 MR. WIEBERG: During the presentations, I




1 heard somebody fall off, so I'm assuming it's John.

2 CHAIR MCCARTY: You need to note that he

3 is not present for the vote.

4 MR. BRUNDAGE: So if the vote was four to

5 zero -- four for zero then?

6 COMMISSIONER MCCARTY: Four to zero.

7 COMMISSIONER WIEBERG: Yes.

8 COMMISSIONER MCCARTY: Yes. Let's --

9 thank you, Commissioners. We have two items left

10 on the agenda.

11 (The proceedings were concluded at 12:45 p.m. on

12 December 12, 2017.)

13

14

15

16

17

18

19

20

21

22

23

24

25




1 REPORTER'S CERTIFICATE

2

3 STATE OF MISSOURI ) )ss.

4 COUNTY OF OSAGE )

5

6 I, Monnie S. Mealy, Certified Shorthand Reporter,

7 Certified Court Reporter #0538, and Registered Professional

8 Reporter, within and for the State of Missouri, do hereby

9 certify that I was personally present at the proceedings as

10 set forth in the caption sheet hereof; that I then and there

11 took down in stenotype the proceedings had at said time and

12 was thereafter transcribed by me, is fully and accurately

13 set forth in the preceding pages.

14

15 IN WITNESS WHEREOF, I have hereunto set my hand and

16 seal on __________________________, 2017.

17

18

19 ______________________________

20 Monnie S. Mealy, CSR, CCR #0538

21 Registered Professional Reporter

22

23

24

25





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bottombottombottombottom 43:2461:5 71:17,1973:4 74:1581:16,17

bottomsbottomsbottomsbottoms 73:16BoulevardBoulevardBoulevardBoulevard 3:23bouncesbouncesbouncesbounces 68:5boundboundboundbound 51:11

58:22boundariesboundariesboundariesboundaries

76:25boyboyboyboy 40:12BradBradBradBrad 10:16BreakBreakBreakBreak 64:24bridgebridgebridgebridge 40:1briefbriefbriefbrief 46:6brieflybrieflybrieflybriefly 37:18

45:24 74:13bringbringbringbring 14:25

38:7broughtbroughtbroughtbrought 29:12

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BrundageBrundageBrundageBrundage 28:1628:25 29:135:2 40:12,1549:10,12,13,2250:7 54:2554:25 60:2463:4 64:13,1865:1,2 66:5

69:21 70:11,1570:17,19,2271:1 81:7,10,1782:24 84:2085:9,20 86:486:10,15,2587:24 89:2290:4

BrunslingerBrunslingerBrunslingerBrunslinger27:7

budgetbudgetbudgetbudget 14:22bufferbufferbufferbuffer 75:23buildbuildbuildbuild 38:8buildingbuildingbuildingbuilding 20:22

71:9,11,14,19,2171:23 73:5,6

buildingsbuildingsbuildingsbuildings 45:1361:8 69:10,1170:7 71:1472:8 73:780:18 85:2288:11

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BureauBureauBureauBureau 25:1925:22 51:2152:4

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calculatedcalculatedcalculatedcalculated 83:1184:12 86:17

calculationscalculationscalculationscalculations66:21 77:23



87:9,10CaldwellCaldwellCaldwellCaldwell 22:20

22:21,2256:13,16 57:1687:2,13,17,24

callcallcallcall 6:10 16:2418:3 26:1027:19 31:832:10 37:2147:16 52:1653:25 55:355:24 89:4

calledcalledcalledcalled 18:1421:17 70:187:18

capabilitycapabilitycapabilitycapability 14:25capacitycapacitycapacitycapacity 5:14

12:16 85:24capitalcapitalcapitalcapital 12:5CapitolCapitolCapitolCapitol 3:10captioncaptioncaptioncaption 91:10carecarecarecare 72:19carefullycarefullycarefullycarefully 35:7

35:23CarolCarolCarolCarol 19:10CarolinaCarolinaCarolinaCarolina 75:6carriedcarriedcarriedcarried 79:2casecasecasecase 25:24

27:9 29:7,8,1129:13,20 32:1132:16 33:2,1033:15,21 35:335:6,12 37:437:20 38:1240:16,22 43:948:13 52:653:12 54:1955:3 56:1558:12 59:2060:20

casescasescasescases 32:633:21 34:137:6 44:2257:23

cashcashcashcash 15:15causedcausedcausedcaused 29:8,18causingcausingcausingcausing 12:18

CCRCCRCCRCCR 3:22 91:20certaincertaincertaincertain 35:18

75:13,19 78:9certainlycertainlycertainlycertainly 16:10

37:7CertificateCertificateCertificateCertificate 2:4

91:1certificationcertificationcertificationcertification

66:7certifiedcertifiedcertifiedcertified 41:16

91:6,7certifycertifycertifycertify 43:9 91:9certifyingcertifyingcertifyingcertifying 66:8

66:13CFRCFRCFRCFR 7:21ChairChairChairChair 3:15 4:7

5:11,19,22 6:66:9,23 10:816:16,23 17:1117:15 18:13,2118:22 22:4,1623:23 26:2527:1,15 31:4,1931:20 49:2150:21 52:853:2,3 54:1156:10,11 65:181:7 87:589:15,16 90:2

ChairmanChairmanChairmanChairman 10:1317:10 19:2024:18 28:5,2547:9 48:1164:13 88:5

challengechallengechallengechallenge32:24 67:1184:24

chancechancechancechance 10:22changechangechangechange 5:3

61:14 76:1080:11 82:19

changedchangedchangedchanged 13:2436:7 82:16

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changingchangingchangingchanging 77:11

ChiefChiefChiefChief 19:2227:6

choosechoosechoosechoose 60:18ChrisChrisChrisChris 4:18circlecirclecirclecircle 45:10CircuitCircuitCircuitCircuit 25:7,8

29:10,15 51:251:7,12

circumstancescircumstancescircumstancescircumstances50:17

citizencitizencitizencitizen 5:14CityCityCityCity 3:12,23 4:5

4:13,16,167:22 8:5,8 9:410:15,17 11:4,1412:3,5,19 15:1529:2

claimclaimclaimclaim 34:1737:13

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52:1ClarkClarkClarkClark 20:22ClassClassClassClass 23:2

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clearclearclearclear 44:2,665:13 66:13

clearlyclearlyclearlyclearly 61:1272:7

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closercloserclosercloser 72:23closestclosestclosestclosest 44:15,17coatingscoatingscoatingscoatings 13:11CodayCodayCodayCoday 3:17 6:17

6:18 16:21,2417:2,3,25 18:318:19,20 25:1725:25 26:4,1426:15 27:17,1827:22,23 31:1131:12 47:9,1247:23,24 48:751:20 52:3,752:11,19,2053:18,21 54:354:4 55:2255:23 56:2,388:5 89:1,8,9

CodyCodyCodyCody 4:9 25:2051:21

cogentcogentcogentcogent 76:20ColeColeColeCole 25:1,6

29:10 51:2,6collectioncollectioncollectioncollection 10:18

15:18comecomecomecome 14:16

36:12 40:7comingcomingcomingcoming 5:23cominglecominglecominglecomingle 71:24ComleyComleyComleyComley 29:1commentcommentcommentcomment 10:10

11:10 20:19,2320:25 22:723:7 24:2042:1,11,19 57:1

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Commission'sCommission'sCommission'sCommission's22:18,2524:24 34:2435:22 46:2248:21 56:1758:16 65:5,1480:10 88:7

CommissionerCommissionerCommissionerCommissioner3:15,16,16,173:17,18 4:2,94:11,13,15,166:5,6,9,12,136:14,14,16,176:18,19,20,216:22,24 10:512:10,15 14:1915:5,22,24



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54:10,12 55:1355:19,20,2055:22,23,2355:25 56:1,256:3,4,5,6,7,856:9 57:1558:2 63:5,6,763:7,9,18,2564:10,11,16,1964:23,2566:4 70:8,1370:18,20,2581:3,13,1582:23,2583:5,6,8 85:685:18,23,2586:2,8,9,1286:20,2387:12,14,2287:25 88:2,588:25 89:1,289:3,4,6,7,8,989:10,11,11,1289:13,14,2390:6,7,8

CommissionersCommissionersCommissionersCommissioners3:14 5:7 7:710:5,14 16:1318:23 19:2122:4 24:6,830:1,8 32:146:15 49:8,1850:3,6 51:2590:9

commitmentcommitmentcommitmentcommitment15:19 22:1

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conclusionconclusionconclusionconclusion79:17

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24:4,15 27:335:14

considerationconsiderationconsiderationconsideration22:17 25:15

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58:11ConsideringConsideringConsideringConsidering

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CountCountCountCount 73:1375:4,4

countscountscountscounts 37:9,10CountyCountyCountyCounty 23:4

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couplecouplecouplecouple 15:342:25

coursecoursecoursecourse 22:5courtcourtcourtcourt 3:21

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CourtsCourtsCourtsCourts 58:22covercovercovercover 15:7 41:17CreakCreakCreakCreak 8:1credibilitycredibilitycredibilitycredibility 58:17

60:16crediblecrediblecrediblecredible 78:1creekcreekcreekcreek 7:10,18,18

9:21,21 13:667:22 68:769:6 84:8



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21:15cutcutcutcut 13:14 15:7CWC-V-1-17CWC-V-1-17CWC-V-1-17CWC-V-1-17

16:18

DDDD

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3:8 30:7 42:655:7 57:690:12

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53:10disapproveddisapproveddisapproveddisapproved

20:10dischargedischargedischargedischarge 77:6dischargerdischargerdischargerdischarger 7:15dischargesdischargesdischargesdischarges 7:17discrediteddiscrediteddiscrediteddiscredited

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24:8,23 25:1626:4 27:3,1349:8,18 50:650:25 51:2,2051:24 53:16,19

distancedistancedistancedistance 44:15distinctiondistinctiondistinctiondistinction 5:13distinctionsdistinctionsdistinctionsdistinctions

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78:17DivisionDivisionDivisionDivision 19:13DNRDNRDNRDNR 16:11 19:8

22:5 37:442:3,9,2443:3,4,11 44:544:19 48:557:17 60:1273:19 86:22

DNR'sDNR'sDNR'sDNR's 10:19 16:174:4

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dulydulydulyduly 4:10durationdurationdurationduration 38:13

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8:10 9:1,9,129:15,17 14:1215:11 16:4

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entireentireentireentire 33:10entitledentitledentitledentitled 50:1

59:18entityentityentityentity 33:23

38:12,12envelopeenvelopeenvelopeenvelope 41:16envelopesenvelopesenvelopesenvelopes

45:18environmentenvironmentenvironmentenvironment

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EnvironmentalEnvironmentalEnvironmentalEnvironmental8:19 19:13

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equitableequitableequitableequitable 7:14errorerrorerrorerror 61:2,3,12

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34:3 68:2169:3

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ExhibitExhibitExhibitExhibit 69:1486:1,6,10,15

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existingexistingexistingexisting 8:4

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83:22experienceexperienceexperienceexperience

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62:18extremelyextremelyextremelyextremely

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25:18,2231:22 51:2152:4 60:2366:20 69:10

farmedfarmedfarmedfarmed 78:18FarmsFarmsFarmsFarms 23:1,10

28:19 29:337:22,2240:18 46:148:14,2249:16 50:1,4,950:19,23 51:1454:24 55:1,1556:19 57:458:24 59:2,759:15,2560:10,14 62:564:12 65:369:21 74:2376:24 77:6,1677:22 78:2487:6

Farms'Farms'Farms'Farms' 75:2fatherfatherfatherfather 75:9feasiblefeasiblefeasiblefeasible 16:11featuresfeaturesfeaturesfeatures 75:14

75:15 76:7FebruaryFebruaryFebruaryFebruary 23:4

42:6FederalFederalFederalFederal 20:2



56:22feelfeelfeelfeel 25:20 27:5

51:11 52:353:8

feelingsfeelingsfeelingsfeelings 74:21feelsfeelsfeelsfeels 67:6feetfeetfeetfeet 44:17,21,23

45:2,4,5,9,1261:7 71:12,1871:20 72:2,2273:2,2,3,4,575:22 80:1580:20 88:10

fellfellfellfell 36:3FEMAFEMAFEMAFEMA 59:15

60:3 67:1469:1,7

fieldfieldfieldfield 67:7 76:1077:11 79:1186:19 87:10

fieldedfieldedfieldedfielded 74:19fieldsfieldsfieldsfields 66:20

73:15,17 74:2274:24 75:1277:1,20 78:978:21

fifthfifthfifthfifth 88:18fightfightfightfight 33:14 35:5

35:5figurefigurefigurefigure 15:1filefilefilefile 21:20 24:22

30:18 32:833:23 49:14

filedfiledfiledfiled 23:11 24:2125:17 28:9,1328:16 29:943:18 49:250:9,11,13,2551:1 54:2055:1

filingfilingfilingfiling 24:2529:14 49:1950:8 54:15

filingsfilingsfilingsfilings 24:2finalfinalfinalfinal 21:22

33:12 37:5,848:13 89:17

finalizingfinalizingfinalizingfinalizing 21:15finallyfinallyfinallyfinally 74:23

88:21financialfinancialfinancialfinancial 15:20

38:7 46:11financingfinancingfinancingfinancing 15:14findfindfindfind 35:22

39:17 54:1873:10 80:2488:15

finderfinderfinderfinder 38:18findingfindingfindingfinding 39:6,8FindingsFindingsFindingsFindings 58:21finefinefinefine 36:18 39:10firefirefirefire 64:14firmfirmfirmfirm 11:3 29:2firstfirstfirstfirst 4:6 5:5 6:1

12:3 18:1424:7,10 31:2333:17 34:935:25 37:2240:16 42:5,1349:6,8 80:1380:22 87:388:14

fivefivefivefive 41:11 80:15five-dayfive-dayfive-dayfive-day 7:12

8:11 9:10flexibilityflexibilityflexibilityflexibility 11:12

67:4,8flightflightflightflight 14:25floodfloodfloodflood 57:23

58:8,15,18,2559:10 60:1,560:15,20 61:765:16,24,2566:9,15 67:1367:15,18,1968:2,17,20,2269:1,3,5,10,1269:17,22,2470:3,3,5 71:2071:22 72:9,1473:12,18,2174:21 79:2080:20 81:288:10,17

floodedfloodedfloodedflooded 66:1floorfloorfloorfloor 71:17flowflowflowflow 8:7 9:6

80:14flowingflowingflowingflowing 67:23folksfolksfolksfolks 42:4followfollowfollowfollow 37:16,23

62:20 68:376:9,12

followedfollowedfollowedfollowed 34:13followingfollowingfollowingfollowing 61:11

87:6 88:8followsfollowsfollowsfollows 80:14

80:23 88:19footfootfootfoot 34:5 61:9

72:23 80:1888:12

forgotforgotforgotforgot 41:8 81:11formformformform 43:7formalformalformalformal 21:20formallyformallyformallyformally 5:6forthforthforthforth 9:16 10:18

11:8,20 13:1314:13 16:232:14 33:1138:7,24 60:975:5 91:10,13

forwardforwardforwardforward 10:2112:3 13:1714:16 36:11

foundfoundfoundfound 62:1578:1

fourfourfourfour 42:12 65:1475:12 82:2090:4,5,6

frameframeframeframe 11:1framedframedframedframed 35:11FrancesFrancesFrancesFrances 24:12FranklyFranklyFranklyFrankly 65:8frequenciesfrequenciesfrequenciesfrequencies

73:21freshlyfreshlyfreshlyfreshly 79:12,12fullfullfullfull 41:25 80:22

88:14fullyfullyfullyfully 8:7 45:21

91:12furtherfurtherfurtherfurther 55:9,17

FurthermoreFurthermoreFurthermoreFurthermore8:8

futurefuturefuturefuture 63:2482:11,14

future-reachingfuture-reachingfuture-reachingfuture-reaching9:17

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GalbraithGalbraithGalbraithGalbraith 19:14gallonsgallonsgallonsgallons 83:14gapgapgapgap 36:4,9General'sGeneral'sGeneral'sGeneral's 4:23

32:4gentlemangentlemangentlemangentleman 75:7gestationgestationgestationgestation 87:8gettinggettinggettinggetting 20:4

50:22givegivegivegive 14:4 15:12

21:13 78:1480:4

givengivengivengiven 11:18givesgivesgivesgives 67:7 71:3givinggivinggivinggiving 38:20

74:25gladgladgladglad 22:3 81:10globsglobsglobsglobs 82:9gogogogo 14:11 17:17,19

24:22 35:2138:16,22 40:640:14 49:165:4 66:16,1667:6 71:2384:10

goalgoalgoalgoal 9:7,8goesgoesgoesgoes 63:24

68:6,7,8,1771:2

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goodgoodgoodgood 4:2 7:5,619:21 22:2132:1 46:6,1085:14

good-fittinggood-fittinggood-fittinggood-fitting12:25

grantgrantgrantgrant 14:6,728:22,2329:5 33:454:20 55:17

grantedgrantedgrantedgranted 42:4grantinggrantinggrantinggranting 89:18gravitygravitygravitygravity 68:3greatgreatgreatgreat 12:8,24

62:6greatergreatergreatergreater 73:21GregGregGregGreg 22:19,22

23:24 48:2556:13,13

groundgroundgroundground 67:584:7

groupsgroupsgroupsgroups 21:3GrundyGrundyGrundyGrundy 56:22guessguessguessguess 44:6

86:23guidanceguidanceguidanceguidance 62:9guyguyguyguy 72:15guysguysguysguys 64:22

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handhandhandhand 91:15handedhandedhandedhanded 46:2

80:4handlehandlehandlehandle 41:13handlinghandlinghandlinghandling 20:10happenedhappenedhappenedhappened 59:7happyhappyhappyhappy 11:24

63:2hardhardhardhard 21:10,14

42:17hard-workinghard-workinghard-workinghard-working

4:24



HareHareHareHare 24:12hastehastehastehaste 50:11HDRHDRHDRHDR 10:12healthhealthhealthhealth 16:7,8hearhearhearhear 23:19

57:12heardheardheardheard 7:2 57:18

90:1hearinghearinghearinghearing 15:25

20:21 21:522:17,24 23:823:12,13,1632:9,11,11 33:733:8,25 35:735:14,2236:19,22 38:338:16 42:4,1043:4,12 44:145:25 46:446:22 48:2156:17 57:2,5,858:9 59:2,359:21 60:1762:5,23,2464:6 65:568:16 73:974:5,9,14 75:1175:16,18 76:2179:5,14 80:1082:5 86:5,2186:23 88:789:19

hearingshearingshearingshearings 57:6HEC-RASHEC-RASHEC-RASHEC-RAS 60:8

70:1heldheldheldheld 5:21 23:13

37:21 42:1157:1,7 62:973:9

helphelphelphelp 11:25helpedhelpedhelpedhelped 11:3helpfulhelpfulhelpfulhelpful 68:13helpfullyhelpfullyhelpfullyhelpfully 40:4hereofhereofhereofhereof 91:10hereuntohereuntohereuntohereunto 91:15HeyHeyHeyHey 43:1HickoryHickoryHickoryHickory 67:22

69:6 75:4,1077:16 78:10

higherhigherhigherhigher 72:273:3

highesthighesthighesthighest 8:10,259:11,15,17

hillhillhillhill 68:6,9hindsighthindsighthindsighthindsight 66:10hiredhiredhiredhired 68:20

69:22 72:11hiringhiringhiringhiring 34:15HirschvogelHirschvogelHirschvogelHirschvogel 7:3

7:6hithithithit 65:8,9 70:16hitshitshitshits 70:6hoghoghoghog 65:15 71:13

71:14hogshogshogshogs 71:24

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19:21 21:922:15

holdholdholdhold 42:1086:25

holderholderholderholder 33:2034:4 35:378:23

holdingholdingholdingholding 5:2228:11 40:9

HoldingsHoldingsHoldingsHoldings 24:1147:2,3 48:15

HolmesHolmesHolmesHolmes 69:2272:20

Holmes'Holmes'Holmes'Holmes' 72:17homehomehomehome 16:7honorhonorhonorhonor 25:7 51:11hopefullyhopefullyhopefullyhopefully 14:12hosehosehosehose 83:13HotelHotelHotelHotel 3:10hourshourshourshours 5:14 24:3househousehousehouse 44:15,18

45:4 71:15hundredhundredhundredhundred 14:9,21

15:3HurstHurstHurstHurst 3:17 4:16

6:8,9,19,2017:6,7 18:15,16

24:10,16,1825:14 26:2226:23 28:3,431:17,18 47:1947:20 49:9,950:16,21 51:1652:25 53:154:9,10 56:856:9 89:13,14

hydrologicalhydrologicalhydrologicalhydrological60:7

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identifiedidentifiedidentifiedidentified 78:15identifiesidentifiesidentifiesidentifies 76:25identifyidentifyidentifyidentify 79:7,7IdleIdleIdleIdle 10:16ignoredignoredignoredignored 62:18ignoringignoringignoringignoring 59:7immediatelyimmediatelyimmediatelyimmediately

68:12impactimpactimpactimpact 7:24impartialimpartialimpartialimpartial 25:23

27:8 52:653:11

implementatiimplementatiimplementatiimplementati ............8:3 9:22 11:11

implementedimplementedimplementedimplemented13:3

importanceimportanceimportanceimportance59:14

importantimportantimportantimportant 65:18imposedimposedimposedimposed 37:15improperimproperimproperimproper 29:9

29:14improveimproveimproveimprove 8:15

14:10improvementimprovementimprovementimprovement

15:10improvementsimprovementsimprovementsimprovements

13:13in-flowin-flowin-flowin-flow 12:18inaccurateinaccurateinaccurateinaccurate

61:22 63:14inaccuratelyinaccuratelyinaccuratelyinaccurately

77:18includeincludeincludeinclude 5:8

8:24 9:420:10 43:2576:1,6,17 77:3

includedincludedincludedincluded 9:2013:18 20:2151:25 69:1674:24 76:1

includesincludesincludesincludes 79:2286:17

inconsistentinconsistentinconsistentinconsistent61:3

incorrectincorrectincorrectincorrect 81:2081:23

increasedincreasedincreasedincreased 13:9incumbentincumbentincumbentincumbent 76:9

76:11independentlyindependentlyindependentlyindependently

39:9indicatedindicatedindicatedindicated 14:22

70:4indicationindicationindicationindication 71:3indicatorindicatorindicatorindicator 69:3individualsindividualsindividualsindividuals 47:7IndustrialIndustrialIndustrialIndustrial 22:22industryindustryindustryindustry 87:20infiltrationinfiltrationinfiltrationinfiltration 12:17inflationinflationinflationinflation 13:23informationinformationinformationinformation

11:25 30:2234:22 38:755:14 83:984:13,14,1585:8

infrastructureinfrastructureinfrastructureinfrastructure7:25 16:3

initialinitialinitialinitial 63:2487:16

initiativesinitiativesinitiativesinitiatives 20:16injectedinjectedinjectedinjected 84:6injectioninjectioninjectioninjection 84:10inputinputinputinput 40:9inquiringinquiringinquiringinquiring 77:8insideinsideinsideinside 65:25insolubleinsolubleinsolubleinsoluble 82:11installinstallinstallinstall 7:24insufficientinsufficientinsufficientinsufficient

69:8 78:16

intendintendintendintend 25:7intendedintendedintendedintended 9:22interestinterestinterestinterest 33:19

33:19,22,2333:25 35:4

interestedinterestedinterestedinterested 21:4interestinginterestinginterestinginteresting

32:22 72:10interpretationinterpretationinterpretationinterpretation

74:12interruptinginterruptinginterruptinginterrupting

49:20InterveneInterveneInterveneIntervene 33:24IntervenorsIntervenorsIntervenorsIntervenors 47:1introduceintroduceintroduceintroduce 56:16introducedintroducedintroducedintroduced

32:14 79:10introducingintroducingintroducingintroducing

22:24introductionsintroductionsintroductionsintroductions

4:6inundateinundateinundateinundate 73:6inundatedinundatedinundatedinundated 58:7

60:5inundationinundationinundationinundation

65:17,2266:15 67:1369:12 71:2272:1,8 73:8,1181:1 88:17

investmentinvestmentinvestmentinvestment12:22

investmentsinvestmentsinvestmentsinvestments12:5,19 15:17

inviteinviteinviteinvite 31:2357:16

involvedinvolvedinvolvedinvolved 12:1130:25 46:12

issuanceissuanceissuanceissuance 23:1757:10

issueissueissueissue 35:11 43:245:24 48:1449:6 57:2458:11,15 60:160:15,21 62:1485:4

issuedissuedissuedissued 23:10,20



29:17 34:9,2335:17 42:1443:3 47:1048:5 56:1957:3 63:1 85:1

issuesissuesissuesissues 11:1512:17 13:5,715:19 19:1637:11 40:2359:5

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itemsitemsitemsitems 15:7 90:9IvyIvyIvyIvy 87:19

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JaneJaneJaneJane 81:5JanuaryJanuaryJanuaryJanuary 5:21

21:18 22:2,1140:17 41:5,1863:11 81:688:20

JCARJCARJCARJCAR 21:21JeffersonJeffersonJeffersonJefferson 3:12

3:23 4:5,1329:2

JefferyJefferyJefferyJeffery 24:1428:13

JesJesJesJes 24:12jobjobjobjob 30:2 34:13

38:21 46:661:17

JohnJohnJohnJohn 3:16,184:11,15 18:8,1019:19,21 22:1448:9 69:2289:24 90:1

John'sJohn'sJohn'sJohn's 4:12joinedjoinedjoinedjoined 19:10joiningjoiningjoiningjoining 4:14,22

18:23 19:5JordanJordanJordanJordan 24:13

28:12judicialjudicialjudicialjudicial 39:21

JulyJulyJulyJuly 23:10JuneJuneJuneJune 57:7juryjuryjuryjury 58:20justicejusticejusticejustice 29:22

55:11

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KKKK 24:11 28:1147:1,2 48:14

KansasKansasKansasKansas 4:16KaplanKaplanKaplanKaplan 4:22keepkeepkeepkeep 75:22keepingkeepingkeepingkeeping 34:8keptkeptkeptkept 79:4kickedkickedkickedkicked 20:19kindkindkindkind 29:25

30:13 33:136:18,24,2438:5,15 41:1143:20,2068:17 75:3

kindskindskindskinds 34:1 37:238:7 76:7

KirksvilleKirksvilleKirksvilleKirksville 4:8 7:17:16,22 8:5,89:5,23,2510:2,15 11:412:6 16:17

KleiboekerKleiboekerKleiboekerKleiboeker 3:184:15 6:21,2217:8,9 18:4,5,718:8,11 26:1626:18,1927:24,2531:13,14 47:2548:1,2,9,952:21,22 53:453:8,13,17,2054:5,6 56:4,589:10,11,22

knowknowknowknow 10:22 11:112:10 13:1714:9,23 15:6,1115:16 19:222:5 40:7,1240:25 42:1251:23 59:16

67:20 68:9,1168:12 71:2176:10 83:1485:13

KomerKomerKomerKomer 19:10

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LLLL 69:15LaceyLaceyLaceyLacey 7:3,5

10:6,9lakeslakeslakeslakes 20:12landlandlandland 66:19,20

66:24,2573:15,22,2274:20,22,2475:20 76:2,877:4,21 78:1878:20 79:2,2380:1,2 82:684:3 85:14

languagelanguagelanguagelanguage 9:1320:12

largelylargelylargelylargely 59:2269:13 79:13

lastedlastedlastedlasted 20:7lastlylastlylastlylastly 81:3latchinglatchinglatchinglatching 42:21lawlawlawlaw 29:2 58:23lawyerlawyerlawyerlawyer 86:4lawyerslawyerslawyerslawyers 36:20leadershipleadershipleadershipleadership 16:11

19:8,15learnedlearnedlearnedlearned 58:24Lee'sLee'sLee'sLee's 4:11leftleftleftleft 4:18 67:23

90:9legallegallegallegal 17:20

32:16 33:14,1940:18,2049:14

legendlegendlegendlegend 44:24LegislatureLegislatureLegislatureLegislature

36:7lengthslengthslengthslengths 62:6let'slet'slet'slet's 44:10 49:1

49:3 90:8letterletterletterletter 13:20

35:17,24,2440:24,25 41:441:8,9,17,2042:5,14,2243:1,3 44:945:11,14,15,17

lettersletterslettersletters 45:19levellevellevellevel 9:7 33:7levelslevelslevelslevels 21:11LewisLewisLewisLewis 20:22lieslieslieslies 31:3limitedlimitedlimitedlimited 59:5linelinelineline 67:17 68:5

68:17 69:870:5,9,11,1870:20,21,2270:23 71:2,872:2 73:189:24

lineslineslineslines 68:1,7,1071:2,4,5 75:20

liplipliplip 15:6listlistlistlist 19:24listedlistedlistedlisted 66:19listeninglisteninglisteninglistening 41:6litigationlitigationlitigationlitigation 3:22

55:4littlelittlelittlelittle 11:17 12:2

41:23 44:467:6 68:7,878:14 79:15

LLCLLCLLCLLC 22:19 23:129:3 38:1348:22 55:156:19 57:464:12 65:3

LLC'sLLC'sLLC'sLLC's 49:16loadloadloadload 7:11,11,25

11:7loadingloadingloadingloading 8:17loadsloadsloadsloads 19:25lobbylobbylobbylobby 18:24locatelocatelocatelocate 44:16locatedlocatedlocatedlocated 65:24

65:25 69:4,10logiclogiclogiclogic 32:25longlonglonglong 11:2,18

29:8,13 39:841:11

longerlongerlongerlonger 74:4looklooklooklook 58:23

67:25 71:10lookedlookedlookedlooked 83:17lookinglookinglookinglooking 86:13lostlostlostlost 12:14,16

13:22 55:4lotlotlotlot 35:1 58:24

67:4,7 73:683:9

lowerlowerlowerlower 9:11 68:18loweringloweringloweringlowering 8:4luxuryluxuryluxuryluxury 67:8

MMMM

M0049506M0049506M0049506M0049506 7:15MadamMadamMadamMadam 16:16

17:15 47:965:1 88:5

mailmailmailmail 41:16mailedmailedmailedmailed 41:15

42:7maintainmaintainmaintainmaintain 9:5majoritymajoritymajoritymajority 58:4makingmakingmakingmaking 15:17

16:11 82:21managementmanagementmanagementmanagement

41:10,12,1542:7 61:1566:18,2275:12,25 76:576:14,17,2477:3,8,10,2378:3,4,10,2378:25 79:2286:16

managesmanagesmanagesmanages 10:17manuremanuremanuremanure 41:13

58:6 60:2366:20 67:171:24 74:18,2274:25 75:2177:5 83:11,1483:22 84:1785:12,22 87:8



87:9mapmapmapmap 43:12,13,14

43:16,20,2444:7,13,2445:2,8 59:1560:3,6,8 67:1467:15,17 68:268:4 69:2,7,1370:24

mapsmapsmapsmaps 43:21,2544:11,14 45:2167:16,21 68:968:12 75:2577:1 78:16

MarchMarchMarchMarch 29:17markedmarkedmarkedmarked 2:9materialmaterialmaterialmaterial 60:5

62:18materialsmaterialsmaterialsmaterials 22:2mattermattermattermatter 29:25

36:2 41:2452:9 54:2455:10

mattersmattersmattersmatters 17:21maximummaximummaximummaximum 7:10

19:25McCartyMcCartyMcCartyMcCarty 3:11,15

4:2,7 6:6,9,236:24 10:5,8,1315:24 16:19,2317:10,11,12,1617:23 18:2,918:13,21,2219:4,20 21:822:4,16 23:2324:19 25:1126:2,6,9,17,2527:1,11,15,1828:5,6,2530:21 31:4,731:19,20 40:640:14 46:2447:12,15 48:448:8,11,1249:10,11,21,2450:7,15,2151:15 52:8,12

52:15 53:2,353:14,21,2454:11,12 55:1355:20,2356:10,11 57:1558:3 63:5,7,1864:11,13,16,1964:23,2566:4 81:7,1582:23,2583:6 85:18,2586:9 87:588:2,25 89:389:15,16,2390:2,6,8

McDonaldMcDonaldMcDonaldMcDonald 23:3MealyMealyMealyMealy 3:22 91:6

91:20meanmeanmeanmean 13:21

66:7 78:13meansmeansmeansmeans 65:23

72:24 82:5meantmeantmeantmeant 80:16meetmeetmeetmeet 8:25

78:13 79:23meetingmeetingmeetingmeeting 1:9 3:5

4:3 5:1,21 6:47:3 15:25 19:219:7 21:1822:3 30:4,7,9

meetingsmeetingsmeetingsmeetings 20:7meetsmeetsmeetsmeets 9:18

38:14membermembermembermember 58:3membersmembersmembersmembers 21:4

28:25 65:1,1475:9

mentionmentionmentionmention 19:681:11

merelymerelymerelymerely 65:2178:11

meritsmeritsmeritsmerits 35:1metmetmetmet 43:5 58:6

72:18microphonemicrophonemicrophonemicrophone

69:20midwaymidwaymidwaymidway 63:10

MidwestMidwestMidwestMidwest 87:18millionmillionmillionmillion 12:21

13:10,23 14:814:22 15:13,1315:14

minimizationminimizationminimizationminimization8:13,14 9:3,14

minusminusminusminus 61:872:22 80:1888:11

minuteminuteminuteminute 6:3 46:864:14

minutesminutesminutesminutes 6:4,2540:9

misconceptiomisconceptiomisconceptiomisconceptio ............59:11

missedmissedmissedmissed 81:486:12

MissouriMissouriMissouriMissouri 1:1 3:14:4,10 6:38:20 11:2417:22 20:1753:6,9 91:3,8

misunderstanmisunderstanmisunderstanmisunderstan ............59:12

mixedmixedmixedmixed 15:6MOMOMOMO 3:12,22,23modelmodelmodelmodel 69:25

70:1,11,13,1571:12 72:14,21

modelingmodelingmodelingmodeling68:20 69:2472:17,21

modelsmodelsmodelsmodels 70:2modifiedmodifiedmodifiedmodified 9:13modifyingmodifyingmodifyingmodifying 9:3MOGS105132MOGS105132MOGS105132MOGS105132

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56:20momentmomentmomentmoment 49:12

54:16moneymoneymoneymoney 14:7moniesmoniesmoniesmonies 14:6monitoringmonitoringmonitoringmonitoring

19:23MonnieMonnieMonnieMonnie 3:22

91:6,20monthsmonthsmonthsmonths 42:13mootmootmootmoot 25:14

51:18morningmorningmorningmorning 4:2,17

7:5,6 19:2122:8,21 32:150:11

motionmotionmotionmotion 16:14,2217:24 18:124:6 25:2,1225:16 26:3,426:11 27:2,327:12,12 28:728:7,9,10,13,1728:21 29:530:23,2333:24 46:2147:7 48:349:17 50:5,2551:10,17,19,2451:25 52:853:15,16,1954:13,16,1755:15,18,2156:11 64:1,480:6 82:2183:4 88:4,2589:21

motionedmotionedmotionedmotioned 49:2motionsmotionsmotionsmotions 24:5,8

49:7 50:2,252:1 64:8

movemovemovemove 5:24 6:110:21 16:1717:18 19:17 31:131:21 47:1052:10 53:1856:12 64:4,573:13 80:888:6

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28:1

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22:21namednamednamednamed 72:15

75:7NaturalNaturalNaturalNatural 4:20

31:24 32:256:14 74:1

necessarynecessarynecessarynecessary39:13 79:2380:2

needneedneedneed 14:21,2315:20 24:2243:1,13 46:1446:20 49:360:7,8,863:25 66:2590:2

neededneededneededneeded 13:1316:2 65:974:19

needsneedsneedsneeds 38:1039:25 76:582:7

neighborneighborneighborneighbor 23:735:16,2436:10,13,1640:23,24 41:742:5,13 45:1045:14 56:25

neighborhoodneighborhoodneighborhoodneighborhood15:3

neighborsneighborsneighborsneighbors40:25 41:2542:8 75:5,1078:10

nevernevernevernever 60:13newnewnewnew 5:3 36:10

36:15 37:2546:15 63:2074:3

newernewernewernewer 36:5



NewmanNewmanNewmanNewman 29:1nitrifynitrifynitrifynitrify 8:7nitrogennitrogennitrogennitrogen 7:11

8:11 9:1,9 13:1814:11 61:19,2161:24 62:378:8 81:2482:1,16 83:2484:3 86:1888:23,24

non-issuenon-issuenon-issuenon-issue 38:5NorthNorthNorthNorth 75:6notenotenotenote 29:7

63:22 90:2notednotednotednoted 54:21

64:7 89:20,21notesnotesnotesnotes 82:17noticenoticenoticenotice 8:21 14:4

23:7 35:16,2436:10,14,1639:19 40:2440:25 41:4,741:25 42:5,1342:14,18 45:1145:14 57:1

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April 4, 2018

Approval of Minutes

Issue:

The Missouri Clean Water Commission to review the Closed Session minutes from the December 12, 2017, Clean Water Commission meeting

Recommended Action:


Confidential December 12, 2017, Closed Session Minutes provided to the Missouri Clean Water Commissioners for review and approval.




April 4, 2018

Approval of Minutes

Issue:

The Missouri Clean Water Commission review the Open Session minutes from the January 10, 2018, Clean Water Commission meeting

Recommended Action:


List of Attachments: January 10, 2018, Clean Water Commission draft meeting minutes

WATER PROTECTION PROGRAM

DRAFT MINUTES OF THE

MISSOURI CLEAN WATER COMMISSION MEETING Lewis and Clark State Office Building

1101 Riverside Drive Jefferson City, Missouri

January 4, 2018

Present via Telephone John Reece, Missouri Clean Water Commission

Present at Lewis and Clark State Office Building Ashley McCarty, Chair, Missouri Clean Water Commission Ben Hurst, Vice-Chair, Missouri Clean Water Commission Patricia Thomas, Missouri Clean Water Commission Stan Coday, Missouri Clean Water Commission Chris Wieberg, Director of Staff, Missouri Clean Water Commission Tim Duggan, Legal Counsel, Missouri Clean Water Commission Susan Borton, Secretary, Missouri Clean Water Commission

Michael Abbott, Department of Natural Resources, Jefferson City, Missouri Michael Bollinger, Ameren, St. Louis, Missouri Robert Brundage, Newman, Comley, and Ruth, Jefferson City, Missouri David Carani, HDR Engineering, Columbia, Missouri David Casaletto, Ozarks Environmental Services, Kimberling City, Missouri Brigid Cepauskas, Department of Natural Resources, Jefferson City, Missouri Eric Crawford, Department of Natural Resources, Jefferson City, Missouri Kaylyn Dalbom, Department of Natural Resources, Jefferson City, Missouri Sharon Davenport, Department of Natural Resources, Jefferson City, Missouri Samantha Davis, Missouri Corn Growers Association, Jefferson City, Missouri Paul Dickerson, Department of Natural Resources, Jefferson City, Missouri Joan Doerhoff, Department of Natural Resources, Jefferson City, Missouri Jake Faulkner, Department of Natural Resources, Jefferson City, Missouri Tim Ganz, Missouri American Water Company, St. Louis, Missouri Jodi Gerling, Department of Natural Resources, Jefferson City, Missouri David Greene, Kansas City Water, Kansas City, Missouri Lacey Hirschvogel, Department of Natural Resources, Jefferson City, Missouri Jennifer Hoggatt, Department of Natural Resources, Jefferson City, Missouri John Hoke, Department of Natural Resources, Jefferson City, Missouri Leslie Holloway, Missouri Farm Bureau, Jefferson City, Missouri Jay Hoskins, Metropolitan-St. Louis Sewer District, St. Louis, Missouri Ramona Huckstep, Missouri Municipal League, Jefferson City, Missouri

2

Rob Hunt, Department of Natural Resources, Jefferson City, Missouri Chris Klenklen, Missouri Department of Agriculture, Jefferson City, Missouri Traci Lichtenberg, Missouri American Water Company, St. Louis, Missouri Abby Lynn, WEI, Centralia, Missouri Refaat Mefrakis, Department of Natural Resources, Jefferson City, Missouri Rob Morrison, Barr Engineering, Jefferson City, Missouri Nick Muenks, Geosyntec Consultants, Jefferson City, Missouri Holly Neill, The Nature Conservancy, Springfield, Missouri David P. Nelson, Kansas City Water, Kansas City, Missouri Kevin Perry, REGFORM, Jefferson City, Missouri Krishna Poudel, Department of Natural Resources, Jefferson City, Missouri David Shanks, Boeing, St. Louis, Missouri Penny Speake, Missouri Public Utility Alliance, Springfield, Missouri Darrick Steen, Missouri Corn Growers/Soybean Association, Jefferson City, Missouri Robert Voss, Department of Natural Resources, Jefferson City, Missouri Phil Walsack, Burns & McDonnell, Joplin, Missouri Mary West-Calcagno, City of Moberly, Moberly, Missouri Brooke Widmar, Stream Teams United, Springfield, Missouri Tammy Wilson, Department of Natural Resources, Jefferson City, Missouri Susan Wrasmann, Stream Teams United, Rolla, Missouri

CALL TO ORDER

Chair McCarty called the meeting of the Missouri Clean Water Commission (CWC) to order on January 4, 2018, at 10:07 a.m., at the Lewis and Clark State Office Building, 1101 Riverside Drive, Jefferson City, MO. Chair McCarty introduced the Commissioners, Staff Director, Legal Counsel, and the Commission Secretary. She also took a moment to extend appreciation and thanks to previous Commissioner Kleiboeker to recognize and honor his service to the Commission.

ADMINISTRATIVE MATTERS

Election of Missouri Clean Water Commission Vice-Chair Agenda Item 1 Commissioner Coday made a motion to elect Ben Hurst as Vice-Chair. Commissioner Thomas seconded the motion. The motion passed with a roll call vote: Commissioner Thomas: Yes Commissioner Coday: Yes Commissioner Reece: Yes Commissioner Hurst: Yes Chair McCarty: Yes

3

Approval of the November 6, 2017, Missouri Clean Water Commission Teleconference Meeting Minutes Agenda Item 2 Commissioner Coday moved to approve the November 6, 2017, Teleconference meeting minutes as presented. Vice-Chair Hurst seconded the motion. The motion passed with a roll call vote: Commissioner Thomas: Yes Commissioner Coday: Yes Commissioner Reece: Yes Vice-Chair Hurst: Yes Chair McCarty: Yes Approval of the November 21, 2017, Missouri Clean Water Commission Public Hearing Minutes Agenda Item 3 Commissioner Thomas moved to approve the November 21, 2017, Public Hearing minutes as presented. Commissioner Coday seconded the motion. The motion passed with a roll call vote: Commissioner Thomas: Yes Commissioner Coday: Yes Commissioner Reece: Yes Vice-Chair Hurst: Yes Chair McCarty: Yes 2018 Missouri Section 303(d) List Adoption Agenda Item 4 Robert Voss, Water Protection Program, provided background, comments, and a summary of Department actions and changes as a result of public comments received from public availability meetings on the 2018 Missouri Section 303(d) List and recommended the Commission adopt the 2018 Missouri Section 303(d) List as proposed. Commissioner Thomas provided questions and comments. Commissioner Thomas moved to adopt the 2018 Missouri Section 303(d) List as proposed. Commissioner Coday seconded the motion. The motion passed with a roll call vote: Commissioner Thomas: Yes Commissioner Coday: Yes Commissioner Reece: Yes Vice-Chair Hurst: Yes Chair McCarty: Yes

4

2020 Missouri Listing Methodology Document Adoption Agenda Item 5 Robert Voss, Water Protection Program, provided background, comments, and a summary of Department actions and changes as a result of public comments received from public availability meetings on the 2020 Missouri Listing Methodology Document and recommended the Commission adopt the 2020 Missouri Listing Methodology Document as proposed, and also asked the Commission to be open to approve an amended version of the 2020 Listing Methodology Document at a later date. This would allow the Department to have further discussions on topics stakeholders wish to be vetted further. Robert Brundage, Newman, Comley, and Ruth, provided comments. He stated that he would be satisfied if the Commission were to vote on the Listing Methodology and adopt it, but part of the motion be that additional issues, including the assessment of small streams, continue to be addressed, and for a recommendation to come back to the Commission later this year. Commissioners Thomas, Coday, Hurst, Reece, Chair McCarty, and Chris Wieberg provided comments. After hearing the sentiments of the Commission, Chair McCarty stated she felt it best to table this consideration and vote to adopt the 2020 Missouri Listing Methodology Document at a later meeting knowing that there are meetings scheduled in April, July, and October, and ask for stakeholder’s engagement in those meetings as well as Department updates. The item was tabled. Water Quality Standards Rulemaking Adoption Agenda Item 6 John Hoke, Water Protection Program, provided background and comments on the proposed revisions to the Water Quality Standards (WQS) 10 CSR 0-7.031 and recommended the Commission adopt the WQS Order of Rulemaking as proposed. Robert Brundage, Newman, Comley, and Ruth, provided comments. Commissioner Coday moved to adopt the WQS Order of Rulemaking as proposed. Vice-Chair Hurst seconded the motion. The motion passed with a roll call vote: Commissioner Thomas: Yes Commissioner Coday: Yes Commissioner Reece: Yes Vice-Chair Hurst: Yes Chair McCarty: Yes Fiscal Year 2018 Clean Water State Revolving Fund Intended Use Plan Revisions Agenda Item 7 Joan Doerhoff, Financial Assistance Center, provided background and proposed revisions to the Fiscal Year 2018 Clean Water State Revolving Fund (CWSRF) Intended Use Plan (IUP) and recommended the Commission approve the changes to the Fiscal Year 2018 CWSRF IUP and Priority List as proposed.

5

Commissioner Thomas moved to approve the changes to the Fiscal Year 2018 CWSRF IUP and Priority List as proposed. Commissioner Coday seconded the motion. The motion passed with a roll call vote: Commissioner Thomas: Yes Commissioner Coday: Yes Commissioner Reece: Yes Vice-Chair Hurst: Yes Chair McCarty: Yes

PRESENTATIONS

Missouri Water Resources Plan Agenda Item 8 Jennifer Hoggatt, Water Resource Center, provided background, comments, and a PowerPoint presentation on the Missouri Water Resources Plan to update the Commission on the progress of the plan. No action was taken by the Commission. Director’s Update Agenda Item 9 Chris Wieberg, Director, Water Protection Program, reported the following to the Commission:

• U.S. Environmental Protection Agency’s Numeric Nutrient Criteria proposal • Water Quality Standards update • An update on the Red Tape Rule Reduction Rescissions • Upcoming Red Tape Reduction stakeholder meetings • Upcoming meetings to discuss the Listing Methodology • Upcoming Water Protection Forum meeting • Staffing changes within the Water Protection Program

Public Comment and Correspondence Agenda Item 10 David Casaletto, Ozarks Environmental Services, provided comments regarding small wastewater treatment systems. He wanted to introduce himself to the new Commissioners to let them know who he is and what he does. Before introducing Phil Walsack from Burns & McDonnell, Chair McCarty invited representatives from the Missouri Public Utility Alliance and Missouri Municipal League to introduce themselves and tell the Commission about their organization. Ramona Huckstep, Missouri Municipal League, provided comments and background regarding the Missouri Municipal League. Mary West-Calcagno, Missouri Public Utility Alliance, introduced herself and provided comments. Phil Walsack, Burns & McDonnell, provided comments and announced the passing of previous Commissioner, Jan Tupper, and wanted to recognize the service he provided. He also wanted to

6

acknowledge all the work that has gone into the Water Quality Standards. Burns & McDonnell will help the state through the water plan process. Lastly, he provided comments regarding water and wastewater career opportunities for incarcerated persons who will be released soon. He had the opportunity to visit the class, and it was a very humbling experience for him. Robert Brundage, Newman, Comley, and Ruth, provided comments regarding a presentation that Norb Plassmeyer, Citizen from Freeburg, Missouri, gave at the last CWC meeting regarding classified streams and water quality standards that apply to those streams. He wanted to let the Commission know that in the future, the Department will continue to see proposals come before them to change the map; the Missouri Use Designation Dataset; MUDD map. He will continue to work with the Department and hopes more clarity will come out of that process. Missouri Clean Water Commission Meetings Agenda Item 11

• April 4, 2018, Lewis and Clark State Office Building • May 17, 2018, Lewis and Clark State Office Building • July 16, 2018, Lewis and Clark State Office Building • September 21, 2018, Lewis and Clark State Office Building • October 18, 2018, East Elm Street Conference Center

ADJOURNMENT OF MEETING Commissioner Coday moved the Commission adjourn the meeting. Commissioner Thomas seconded the motion. The motion passed with a roll call vote. Commissioner Thomas: Yes Commissioner Coday: Yes Commissioner Reece: Yes Vice-Chair Hurst: Yes Chair McCarty: Yes Commission adjourned the open meeting at 12:15 p.m. Respectfully Submitted, Chris Wieberg Director of Staff

Missouri Clean Water Commission

Department of Natural Resources

Lewis and Clark State Office Building

1101 Riverside Drive


April 4, 2018

Administrative Hearing Commission’s Recommended Decision for Beverly’s Hill

Subdivision Method of Wastewater Disposal Letter Dated June 12, 2017.

Appeal 17-1015

Issue: This item requests a decision from the Missouri Clean Water Commission

regarding appeal No. 17-1015. The appeal concerns the Department’s June 12, 2017,

letter of approval for the method of wastewater disposal in the Beverly’s Hill

Subdivision, Jefferson City, Missouri

Background: On June 21, 2017, Ms. Carla Malone Steck filed a complaint to the

Administrative Hearing Commission (AHC) regarding the approval of the method of

wastewater treatment within the Beverly’s Hill Subdivision. The complaint consisted of

several items all of which are documented and included in the AHC’s recommended

decision as well as the hearing record. A hearing was held on August 25, 2017, and a

decision from the AHC was filed on October 13, 2017.

AHC Recommendation: The AHC recommends the Clean Water Commission sustain

the Department’s June 12, 2017, approval.

Recommended Action: The Department recommends the Clean Water Commission

hear from the parties or their attorneys on their behalf and sustain the June 12, 2017,

approval.

List of Attachments:

Administrative Hearing Commission’s Recommended Decision

Motion for Reconsideration of Unsigned Recommended Decision

Administrative Hearing Commission’s Denial of Motion for Reconsideration

BEFORE THE ADMINISTRATIVE HEARING COMMISSION

STATE OF MISSOURI

CARLA MALONE STECK, ) )

Petitioner, ) )

v. ) Case No. 17-1015 )

MISSOURI DEPARTMENT OF ) NATURAL RESOURCES, )

) Respondent. )

Motion For Reconsideration of Unsigned Recommended Decision

Recommended Decision

Findings of Fact #4

The 2000 geohydrologic evaluation did not conform to the requirements of 10 CSR

20-6.030. Ex. B identifies Heartland Estates Subdivision as the subject of the report

rather than Beverly’s Hill Subdivision. Furthermore 10 CSR 20-6.030 (2.)2 requires

a map and legal description of the proposed area. Ex. D revealed NO MAP

exists of the correct area for Beverly’s Hill Subdivision. 10 CSR 20-6.030 (4.) Plat

Map requires “area of development clearly outlined”. Evidence shows NO “U.S.

Geological Survey topographic map with the area of development clearly outlined.”

Findings of Fact #5 Footnote #3

The AHC inserts a new term to describe the geohydrological evaluation, describing it

as a “boilerplate form”. This type of term is used to favor and/or protect the

respondent. The party supplying the boilerplate form usually has developed

supposedly “standard” terms (some of which may not apply to every situation).

1

The AHC is not an impartial decision maker if the 2000 geohydrologic “boilerplate”

evaluation is relied upon in 2016. Approximately 22 acres of land outside Beverly’s

Hill Subdivision was the basis of the 2000 evaluation. The representative of the

Department identifies Heartland Estates Subdivision as the subject rather than

Beverly’s Hill Subdivision at hearing-Transcript, Page 31 .

There are no classified streams near Steck’s property. Named tributaries

maintain permanent flow or permanent pools during drought periods and support

aquatic life. 19 CSR 20-3.060(1)(D) Table 1-Minimum Set-Back Distance is 25 feet

for unnamed streams or ditches. The unnamed tributary does not hold water.


The AHC has interpreted the table based on erroneous information supplied by

respondent during the August 25, 2017 hearing. Ex. D/D-1 references a soil

evaluation report based on 22 acres of land outside the Beverly’s Hill Subdivision.

10 CSR 20-6.030 (3)Soils Report (A)(1) requires “The soils report shall contain a

topographic map delineating the proposed development into the following

slope categories: 0 to 2 percent, 3 to 14 percent, 15 to 30 percent and 31percent and

greater.” This critical component of determining lot size is missing from the 2000

report Ex. D/D-1. The proposed development was not delineated in the 2000 soil

evaluation report.

Findings of Fact #7 -(c)

The burden of proof is on the Department of Natural Resources to offer evidence a

conversation has or has not not occurred in 2000 to 2001 approving Steck’s

planned project at a future date. Written approval is not part of the approval

condition (c). The written approval was given in 2000 and Beverly’s Hill

Subdivision was recorded and platted. Fact sheet for this rule states: “After the

department has given written approval for the method of wastewater treatment in

a residential housing development, it then becomes the Department of Health and

Senior Services or local administrative authority’s jurisdiction to issue the

construction permit for the specific wastewater treatment system.”

2


The Parcel referenced as Lot A-1 should be corrected to Reserve Tract A-1.

Steck did not submit an application because she divided Lot #1. Steck requested a

replat from Cole County Public Works (CCPW) changing the boundaries by

subtracting land from Lot#1 and adding it to Reserved Tract A. CCPW sent her to

DNR assuming there were 3 new residential lots being created Ex. #7. No new

parcels and no new water supplies were planned or requested. Harwood (the

representative for the Department) demanded Steck apply for a new “METHOD” of

wastewater treatment for Lot #1 and her Reserved Tract A, he demanded Steck

apply for a “Cluster System” and this would be the only acceptable “METHOD”. He

threatened not to approve the reduction in lot size if she did not submit a new

application for “the subdivision rule”, this rule requires an Engineer’s

Report. All parties copied in correspondence to include Cole County Health

Department (CCHD) and CCPW refused to move forward on the replat if the

Department did not approve the reduction in size. Ex. #8 shows the representative

for the Department did not comprehend the project as a reduction in size, but a

project adding three new lots. When the mistake was identified by Steck Ex. #8, the

Department suggests Steck go through a different process for approval three months

after the application process began, and the finished report was already delivered to

the Department. Steck complied with the representative’s demands and waited for

the January 2017 approval letter to reduce the size of Lot#1 of Beverly’s Hill

Subdivision.

Findings of Fact #10

Should be corrected to say Reserve Tract A-1. This tract contains a 100 year old

century barn, now renovated into an artist’s workshop. Gallery is not the correct

terminology for the museum collection.


Steck sought, as shown in Ex. F “to share or use best sewage practices” dated

December 1, 2016. The AHC attempts to add a new definition for “Cluster System” a

3

definition not cited by law or official documents. DNR does not have a definition

for “Cluster System” Ex. #5, petitioner received the following EPA definition from

the Department, Ex. #9 with the following link on May, 30, 2017:

https://ofmpub.epa.gov/sor_internet/registry/termreg/searchandretrieve/

glossariesandkeywordlists/search.do?details=&glossaryName=Septic%20Systems

%20Glossary “A wastewater collection and treatment system under some form of

common ownership that collects wastewater from two or more dwellings or buildings

and conveys it to a treatment and dispersal system located on a suitable site near

the dwellings or buildings”. The AHC appears to support the respondent’s attempt to

oversee the “Cluster System” “DESIGN” by creating a new definition that supports

the departments interference with local authorities. “METHOD” is the respondent’s

jurisdiction on the “subdivision rule”. The new definition proposed by the AHC

should be eliminated.


The AHC states “10 CSR 6.030 (6)”/please correct to 10 CSR 20-6.030 (6), “does not

appear to be applicable to Steck’s situation” but because it does not affect the

outcome of the “Recommended Decision” the AHC will not formulate the appropriate

conclusions of law. Steck’s appeal has everything to do with the hardship caused by

the Department forcing her through 10 CSR 20-6.030 (6) a process not applicable to

her situation. Furthermore this rule does not include lot size “There cannot be

any deviation or change that may adversely affect the geohydrologic evaluation, soils,

estimated daily flow or the reported water supply for the development without first

securing written approval of the proposed changes from the department” subsection of

10 CSR 20-6.030 (6) 10 CSR 20-8.020.

Footnote #9

The AHC adds their own wording to the end of the engineer’s conclusion and quote

from Ex. G. and misleads the reader. The engineer does not use any acreage other

than Lot #1-A to “put down” waste otherwise known as the dispersal system Ex.#3.

The Engineer’s Report states the sewage from two, two bedroom homes can be hosted

4

https://ofmpub.epa.gov/sor_internet/registry/termreg/searchandretrieve/glossariesandkeywordlists/search.do?details=&glossaryName=Septic%20Systems%20Glossary

on Lot#1-A -the only one acre lot in the equation. The engineer does not imply or

put into writing the conclusion: “there was ample room to do this using both lots.”

The addition of the statement “using both lots” by the AHC, leads the reader to think

the system required both Lot#1-A and Reserve Tract A-1 to treat waste when in fact

only Lot #1-A was required to “put down” waste for 480 GPD (two, two bedroom

homes) according to the Engineer’s Report. The AHC is altering evidence relevant to a

legal proceeding. The 2016 Engineer’s Report required Steck’s resources of $900 and

time, yet no evidence has been presented the report was required for a second time.

Footnote #9

Steck has not asked to “proceed in a manner different than the department’s

approval”, she requested they refrain from designing her “Cluster System”

when their authority only allows for designating the “METHOD” of wastewater

treatment and to accurately interpret the rule requiring the new Engineer’s Report.

Steck has asked on several occasions the Department correct footnote 1 associated

with the INCORRECT TABLE in Ex. H “…As of this date Reserve Tract A and

Reserve Tract A-1 is not considered part of the residential housing development…”

Again, there is only one Reserve Tract.

Findings of Fact #13

At no time was soil science conducted on Reserve Tract A, (newly named Reserve

Tract A-1 the 1.31 acre tract), at no time was the representative for the

Geohydrological Survey asked to review anything but the proposed Lot#1-A for the

ability to treat sewage for two, two bedroom homes. The survey’s conclusion: “Based

on the characteristics observed, the site receives a slight overall geological limitation

rating. The potential for regional groundwater contamination is minimal,”.

Findings of Fact #14-15 Footnote #10

Steck continues to request the department correct the title of the one acre lot in the

2016 evaluation performed “where the liquid waste was to be put down” as Lot#1-A .

Steck continues to ask for corrections to the TABLE from the June 12th approval

letter. The table identifies two Reserve Tracts when only one exists. Furthermore

5

footnote 1 in the June 12, 2017 approval letter identifies three parcels when only one

Reserve Tract exists, recorded as Reserve Tract A-1, this INCORRECT TABLE and

footnote continues to confuse readers and cause Steck undue hardships.

Findings of Fact #16 Reserve Tract A-1 is the correct title.

Findings of Fact #17 The titles used by the AHC should be corrected to Lot #1-A and Reserve Tract A-1. The 2016 Engineer’s Report does not “take advantage of soils or the geohydrology

from both lots” this statement conflicts with Finding of Fact #14: “The 2016 report

was limited to an evaluation of groundwater contamination potential for the area

where the liquid waste was going to be put down.” The 2016 Engineer’s Report “puts

down” waste from two, two bedroom homes on the ONLY one acre tract titled Lot #1-

A Ex.#3. The theory of taking advantage of both lots is not fact, this is a false

statement. One, one acre parcel titled Lot#1-A is the location for waste to be “put

down” in the Engineer’s Report. The engineer’s “DESIGN” takes advantage of one

well, and joint ownership, not the soils from both lots nor the geohydrology from both

lots, this statement should be retracted.

Conclusion of Law

PAGE 7

Steck argues the Department has jurisdiction over “METHOD” but not “DESIGN” of

her or her son’s system on Lot#1-A. Steck has requested the AHC determine if the

Department’s demand for a second Engineer’s Report was lawful if the Departments

application of 10 CSR 20-6.030 (6) does not apply Footnote #8.

PAGE 7 Footnote #13

Steck agrees with the AHC “this distinction is important”, the Department is yet

to prove rule 10 CSR 20-6.030 applies to Steck in 2016. §644 (19) defines “Residential

housing development”as any land which is divided or proposed to be divided into

6

three or more lots,…”. No evidence was presented Steck is a “Developer” in 2016.

PAGE 8

The AHC recommends Steck use 10 CSR 20-6.030(1)(D) and the entire regulation.

Steck followed all procedures with a new 2016 application, the department then

decided to rely on the 2000 evaluation which does not follow the

requirements listed, most specifically the plat map 10 CSR 20-6.030(4)(A).

PAGE 9, 10

The AHC has quoted 10 CSR 20-6.030(7)(C) out of context, this rule is not referring to

a specific system but a “METHOD”. Ex. B states a geohydrologic evaluation is needed

if the water supply changes, no change in water supply has ever been suggested. The

number of lots has not changed and Lot#1-A is not a new lot but the existing Lot#1

reduced in size. Reserved Tract A was renamed Reserve Tract A-1and Lot #1

has been renamed Lot #1-A at CCPW’s request.

“Footnote # 8 Page 4:

“At hearing, the Department’s representative stated the engineering report

was required by 10 CSR 6.030(6) regarding multiple family housing units.

This subsection does not appear to be applicable to Steck’s situation…”

Transcript Page 65 line 24 states “Steck falls under (B) 2. of the rule.. This

statement also falls short of fact. There are no new lots!!!! CSR (B) 2 states clearly

“Resubdivides land into more lots, adds additional lots…”

Steck paid for a second Engineer’s Report in 2016 but the Department of

Natural Resources chose to rely on an inaccurate 2000 report for their approval which

the AHC uses for the recommended decision, then cancels its validity in ¶2 of page 9.

The Department chose to use a 2000 report that does not follow 10 CSR 20-6.030 (A)

(1) requirements: “The soils report shall contain a topographic map

delineating the proposed development…”

Steck has followed the EPA definition of “Cluster System”, and the “METHOD”

assigned in the 2017 approval letter. The AHC uses the word “system” loosly,

confusing the reader on what is “METHOD” and what is “DESIGN”. Steck has

7

recorded a deed with shared well and sewage rights between the ONLY two parcels

of land, Steck argues the interference from the Department on “DESIGN” rather

than their jurisdiction of “METHOD” has caused her more undue hardships.

PAGE 10 Footnote #16

The AHC suggests Steck intends to ignore the “METHOD” of waste water treatment

in the third DNR approval letter, this statement is not based on fact or evidence, this

should be retracted. Steck does not seek to install a single family septic system on

Lot#1-A. Steck has already installed a “Cluster System” as defined by the EPA.

Footnote 16 suggests DNR approves “DESIGN” when their jurisdiction only approves

“METHOD”. This footnote shows serious misunderstanding of what Steck is pleading

and the rule 10 CSR 20-6.030.

PAGE 11 contains truths, half truths and fiction.

TRUTH

• “In 2016, the Department did not reestablish a minimum lot size based upon a

geohydrologic evaluation, nor does the regulation require such from the Department”.

HALF TRUTH

• “The Department performed a geohydrologic evaluation of Lots 1-A and A-1 to

examine only the groundwater contamination potential where the effluent was going

to be put down”.

(The area of Lot#1 that was being proposed forLot#1-A at the time of evaluation is the

only area the representative from Rolla was asked to consider for the effluent, his

conclusion: “Based on the characteristics observed, the site receives a slight

overall geological limitation rating. The potential for regional groundwater

contamination is minimal,” ).

FICTION

• “The Department approved a cluster system because it takes into consideration the

acreage of both Lots 1-A and A-1”.

(the Department approved a “Cluster System” considering effluent from both Lot#1-

A and Reserve Tract A-1 but only acreage from Lot#1-A the one acre lot is

8

considered for the drain field location (Ex. #3) in the approved 2016 engineer’s report.

The Department wanted to force Steck in Ex. #1,2 to use one, one acre lot for effluent

from two, two bedroom homes, Steck requested the edit in the third approval letter.)

FICTION

•“The Department presented evidence that it properly performed its geohydrologic

evaluation per the regulation in 2000”.

(The Department presented evidence the 2000 evaluation was performed but no

evidence it was properly performed. A corrected map (Ex. D-1) shows approx. 22 acres

outside Beverly’s Hill Subdivision. No evidence has been presented showing the

regulations in 2000 but the evaluation does not meet the regulations of CSR Footnote 2

Page 2 of Rec. Decision.)

• “While the soils report would support a single family septic system on Lot 1-A, the

geological evaluation would not. Accordingly, the regulation requires Lot 1-A be at

least 2.2 acres to support a single family septic system”.

(The 2016 Engineer’s Report shows Lot#1-A as the one acre lot evaluated exclusively,

not Reserve Tract A-1 and the conclusion was Lot#1-A could handle effluent from two,

two bedroom homes @ 480 GPD. The 2016 report fulfilled the department’s demand,

Steck is requesting the department pay for the report if it is not applicable to their

approval process or said rule).

FICTION

• “Steck argues that her engineering report established that Lot #1-A was

appropriate for a single family system.”

(Steck argues Lot#1-A can support effluent from two, two bedroom homes not

just one single family system, evidenced by the Department’s approvals Ex. #1,2 )

• “Steck argues that this evidence establishes that a septic system serving just Lot 1-

A complies with the applicable laws.”

(Steck asked the AHC to formulate the appropriate conclusions of law, Footnote 8

“Steck asserts in her brief that she was required to pay for and submit an engineering

report by the Department when she was not required to by law. At hearing, the

9

Department’s representative stated the engineering report was required by

10 CSR 6.030(6) regarding multiple family housing units. This subsection does not

appear to be applicable to Steck’s situation, but we make no definitive finding as

it does not affect the outcome of our recommended decision.” The Department has not

proved Steck should have taken her time and resources to produce the 2016 Engineer’s

Report. Steck is not requesting changes to the “METHOD” in the 2017 approval letter

but that the department correct the TABLE and take responsibility for the reasonable

fees and expenses incurred by Steck following the respondents’ fallable directions.)

• “Steck’s engineer did not address the Department’s 2000 geohydrologic evaluation

and the 2.2 minimum acreage required by 10 CSR 20-6.030”.

(Steck’s engineer developed his report following the 2016 geohydrological evaluation

which stated the conclusion: “Based on the characteristics observed, the site

receives a slight overall geological limitation rating. The potential for

regional groundwater contamination is minimal,” )

PAGE 12 Request for Damages

Steck alleges that the position of the Department was not substantially justified

requiring she submit a costly 2016 Engineer’s Report when it was not applicable to

her situation and refuted in they 2016 approval process. Steck would be entitled to

reasonable fees and expenses incurred in the civil action or agency proceeding after

the hearing with Clean Water Commission if she is a prevailing party.

No decision on the application for fees and other expenses in connection with

that adversary proceeding shall be made §536.087. 4 until a final and unreviewable

decision is rendered by the court on the appeal or until the underlying merits of the

case have been finally determined pursuant to the appeal.

(underline and boldface for added emphasis, italics for Steck’s replies to conclusions of Law)

10

Respectfully submitted,

Petitioner

/s/ Carla Malone Steck

Carla Malone Steck 2110 Atelier Drive Jefferson City, MO 65109 Appearing “Pro Se”

Certificate of Service

I hereby certify that a true and accurate copy of the foregoing was

electronically delivered this 29th day of October, 2017 to:

Joshua Hawley, Attorney General Timothy P. Duggan, Assistant Attorney General P.O. Box 899 Jefferson City, MO 65102 Phone: (573) 751-9802 Fax: (573) 751-5660 Attorneys for Respondent

11

Missouri Clean Water Commission


Lewis and Clark State Office Building

1101 Riverside Drive


April 4, 2018

Administrative Hearing Commission’s Recommended Decision for the Oakcrest

Mobile Home Park Wastewater Treatment Facility, Missouri State Operating

Permit No. MO-0035441.

Appeal 17-1832

Issue: This item requests a decision from the Missouri Clean Water Commission

regarding appeal No. 17-1832. The appeal concerns Missouri State Operating Permit

No. MO-0035441for the Oakcrest Mobile Home Park Wastewater Treatment Facility.

The permit was issued to Mr. Charles Bellamy and became effective on September 1,

2017.

Background: On September 26, 2017, Mr. Charles Bellamy filed a complaint to the

Administrative Hearing Commission (AHC) regarding Missouri State Operating Permit

No. MO0035441 for the Oakcrest Mobile Home Park Wastewater Treatment Facility.

The complaint focuses on the increased and/or new monitoring requirements identified in

the Effluent Limitations and Monitoring Requirements section of the operating permit. A

hearing was held on December 4, 2017, and a decision from the AHC was filed on

January 8, 2018.

AHC Recommendation: The AHC recommends the Clean Water Commission sustain

the Department’s September 1, 2017, permit decision.

Recommended Action: The Department recommends the Clean Water Commission

hear from the parties or their attorneys on their behalf and sustain the September 1, 2017,

permit decision.

List of Attachments:

Administrative Hearing Commission’s Recommended Decision

• Before the

Administrative Hearing Commission State ofMissouri

CHARLES BELLAMY, ) ) ) ) ) ) ) ) ) ) ) )

Petitioner,

vs.

MISSOURI DEPARTMENT OF NATURAL RESOURCES,

Respondent.

No. 17-1832

RECOMMENDED DECISION

RECEIVED

JAN - 9 Z018

MISSOURI ATTORNEY GENERAL

The Administrative Hearing Commission recommends that the Missouri Clean Water

Commission (CWC) sustain the Department ofNatural Resources ' (Department) amended

operating permit (permit) issued on September 1, 2017, to Charles Bellamy for a wastewater

treatment facility (facility) for his mobile home park.

Procedure

On September 26, 2017, Bellamy filed a complaint appealing the Department's permit

issued for his facility. On October 10, 2017, the Department filed an answer. On December 4,

2017, we held a hearing. Assistant Attorney General Timothy Duggan represented the

Department, and Bellamy appeared prose. This matter became ready for our decision on

December 19, 2017, when the last brief was filed.

Findings of Fact

1. On September 1, 2017, the Department renewed Bellamy's permit to

operate his facility at his mobile home park in Mexico, Missouri. The permit is effective

until June 30, 2022. 1

2. The permit provides for interim effluenf limitations and monitoring

requirements effective September 1, 20 1 7 through August 31 , 2019. It also provides

for final effluent limitations and monitoring requirements effective September 1,

2019 through June 20, 2022.3

3. The permit requires Bellamy to conduct monthly monitoring and

composite samples. This is a change from the previous facility permits that required only

quarterly monitoring reports be submitted to the Department and no composite samples.

4. Bellamy is required to monitor the effluent parameters of the facility for

flow, biochemical oxygen demand (BOD), total suspended solids (TSS), Ammonia as N

(Ammonia), and E. coli.

5. The interim effluent limitations provide for, in part, the following:

a. There shall be no discharge of floating solids or visible foam in other than trace amounts.

b. The discharge shall be controlled, limited and monitored by the permittee as follows: 4

1 The facility was originally built in in 1979. Bellamy purchased it in 1981.

2 The term "effluent" is defmed in 10 CSR 20-2.01 0(24) as, "Any wastewater or other substance flowing out of or released from a point source, water contamination source or wastewater treatment facility." All references to "CSR" are to the Missouri Code of State Regulations as current with amendments included in the Missouri Register through the most recent update.

3 The final effluent limitations and monitoring requirements are the same as the interim ones, except for E. coli units.

4 The following explanations are helpful in understanding the below table: a) The symbol* means monitoring requirement only. b) A composite sample is made up from a minimum of four grab samples collected within a 24-hour

period within a minimum of two hours between each grab sample.

2

EFFLUENT

PARAMETER(S) LUNITS INTERIM EFFULENT LIMITATIONS MONITORING REQUIREMENTS

!Daily Weekly Monthly Measurement Sample

.. - MaximumAvera~e .Average Freq ':!_ency Type

-~ FLOW MGD * * once/week 24 hr. estimate

t

BOD I i '"!_lg/l 45 30 __ .. _ ~nce/wee,..k composite j_ -- 1

t I '

.,-I

·-+- - -+- - -- -TSS __ , mg/l _ ~s ~. 30

1once/week composite

-i --I l. ' -T -

- ~ J_- -l Ammonia I !grab , as N I - --- - - -~

Apr1 - Sept30 mg/L 6 1.2 ~nce(we~k grab

Oct 1 - Mar 31 7.9 t

2.9 +-- t - --· * l

-- __ ..J. -E. coli #/lOOml * once/week

6. The facility's BOD and TSS limitations were set by the Department per

federal law.

7. The facility discharges its effluent into a tributary ofthe Scattering Creek,

which is a water within the State of Missouri.

8. Bellamy incurs additional monthly monitoring expenses due to the new

requirements of the permit. 5

9. Bellamy operates a mobile home park in which many of the residents are

on fixed incomes or rely solely upon social security benefits, thereby prohibiting his

ability to transfer the extra monitoring costs to the residents.

10. Bellamy is concerned that he will be unable to afford the additional

expense.

5 It is unclear from the record the exact amount of Bellamy's additional costs. He testified that the E. coli monthly monitoring cost is $3 7.

3

11. In the past, the facility has been non-compliant with its permit

requirements, in part, as follows:

a. In 1983, the Department referred Bellamy to its enforcement section for noncompliance of the facility. 6

b. In February 1988, the Department issued an abatement order to Bellamy for violations at the facility. 7

c. In May 1988, the Department conducted an inspection of the facility and discovered black sludge and sewage bacteria in the ditch below the facility ' s discharge pipe, and Bellamy had not renewed the facility ' s operating permit. In addition, Bellamy violated the previous abatement order by: i) not submitting the required monitoring reports; ii) failing to hire a professional engineer to develop an operational evaluation of the facility; iii) failing to submit an engineering report for upgrades; iv) not having a certified operator perform operation and maintenance; and v) reportedly not having the facility ' s aerators operational and the sewage in the plant was septic.

d. In November 1989, the parties entered into a consent judgment in which one of the requirements was for Bellamy to permanently retain a certified wastewater operator and upgrade the facility.

e. In May 1990, the Department inspected the facility and noted that certain facility upgrades were not completed. (The Department did find that the facility met effluent limits; Bellamy hired a certified operator; and he submitted a permit application for the facility).

f. In July 1993, the Department inspected the facility and noted that sludge removal had occurred at the facility.

g. In October 1995, the Department inspected the facility and observed sludge in the receiving stream. (Bellamy informed the Department that he would clean up the sludge using a rock filter. He installed the filter).

h. In January 2007, the Department inspected the facility and discovered wastewater sludge, trash, and a tire in the unnamed tributary immediately

6 The record does not provide details of why the facility was non-compliant.

7 The record does not provide details of why the facility was non-compliant.

4

downstream from the facility.8

1. In August and December 2009, the Department inspected the facility and found, in part, sludge and bloodworms in the receiving tributary approximately 150 feet downstream of the facility 's outfall pipe, with only effluent from the facility contributing to the stream flow.

J. On December 11 , 2009, the Department issued Bellamy a notice of violation and referred him to its enforcement section. The violations included discharge of sludge into waters of the state that caused, or reasonably likely caused, pollution of the unnamed tributary. (On December 14, 2009, Bellamy informed the Department that he hired a certified operator and made changes to the facility) .

k. In January 2010, the facility exceeded its BOD limit.

1. In November 2010, Bellamy failed to report pH for the facility.

m. On February 23 , 2011 , the Department notified Bellamy that an enforcement case was referred to the Missouri Attorney General ' s Office because the Department had been unable to reach an agreement with him.

n. In June 2011 , the facility exceeded its pH limits.

o. In October and November 2012, Bellamy did not submit DOB and TSS reports.

p. In March 2013 , the Department conducted an inspection of the facility and issued a notice of violation on July 10, 2013. The Department determined that the facility was not in compliance with the Missouri Clean Water Law, applicable regulations; and Bellamy failed to submit timely, accurate, and complete DMRs (monitoring reports) as follows :

o No report was submitted for March and May 2013.

o The December 2012 DMR stated, "not able to sample due to weather conditions."

o The January 2013 DMR did not include analysis data for the parameters of five-day BODs and TSSs, and no quarterly DMR was submitted.

8 In June 2007, Bellamy provided the Department with an engineering report regarding the facility. Bellamy stated the engineer informed him he was doing a good job with the facility . This report was not placed into evidence.

5

o Bellamy failed to report flow weekly as required by the facility permit.

o (The report required Bellamy to submit the missing reports by July 25, 2013 , and if the reports were unavailable then to submit a written statement explaining why the information was unavailable and what actions he took to correct the violations and prevent reoccurrence.)

o (The Department observed, in part, that the effluent was clear and odorless; the tributary immediately downstream from the outfall was lined with white gravel and no sludge was observed in the receiving tributary. However, Bellamy informed the inspector that solids periodically accumulated in the tributary and he removed them as needed.)

q. On August 14, 2013, the Department issued a letter of warning to Bellamy for failing to report the facility ' s BOD levels for October and November 2012; failing to submit the 2012 inflow and infiltration report by January 2013; and for failing to submit the May 2013 DMR for flow and ammonia.

r. On August 29, 2013, the Department conducted an inspection of the facility and issued a notice of violation and a report dated November 5, 2013. The report noted the facility was in non-compliance with the Missouri Clean Water Law, applicable regulations, and its permit for the following violations:

o Bellamy failed to submit timely, accurate, and complete DMRs for July and August 2013. (The Department required Bellamy to submit the missing reports by November 20, 2013 , and if the reports were unavailable then to submit a written statement explaining why the information was unavailable and what actions he took to correct the violations and prevent reoccurrence.)

o Bellamy failed to submit the 2012 inflow and infiltration report that was due in January 2013. (The Department required Bellamy to submit the missing report by November 20, 2013 , and if the report was unavailable then to submit a written statement explaining why the information was unavailable and what actions he took to correct the violations and prevent reoccurrence.)

o In August 2013, the average effluent limits for the parameter of ammonia exceeded the facility's permit limit.

o (The Department observed, in part, that the effluent was clear and odorless; the tributary immediately downstream from the facility ' s outfall was lined with white gravel; and no sludge was observed in the receiving tributary).

6

s. On January 31 , 2014, the Department issued Bellamy a letter of warning for exceeding the permitted effluent limit for ammonia in August and November 2013. (Bellamy responded that he would "put more air" into the system and would start adding a bacteria supplement.)

t. On February 20, 2014, the Department sent a letter to Bellamy informing him that adding a bacteria supplement was not approved.

u. On October 20 and 21, 2014, the Department inspected the facility resulting in a notice of violation and a report issued on November 14, 2014. The report stated what corrective action was required ofBellamy.9 In the report, the Department found that the facility was in non-compliance with the Missouri Clean Water Law, applicable regulations, and its permit for the following violations:

o The facility failed to operate without the discharge of sludge.

o The facility caused water contamination in a location where it was reasonably certain to cause pollution to waters of the state.

o The facility's contaminants reduced the quality of such waters below the Water Quality Standards established by the CWC. The report reiterated that: i) the facility ' s effluent limit for ammonia was exceeded at least five times since July 1, 2013; and ii) the facility 's BOD limit was exceeded in May 2014.

o Bellamy modified the facility without first receiving a construction permit. 10

o Bellamy failed to provide oral and/or written notification to the Department for all bypasses as stated in the permit's standard conditions.

o Since December 22, 2013, the facility failed to comply with the applicable permit's effluent limits.

o Bellamy failed to upgrade the facility per the applicable permit.

9 The Department required Bellamy, in part, to obtain an engineering evaluation of the facility to determine why sludge was discharged into the receiving ditch, and a similar report showing how the facility could be modified or updated to meet the final ammonia limits per the permit.

10 Bellamy testified a permit costs $250.

7

o Bellamy failed to retain a certified operator to supervise the operation and maintenance of the facility as required by the applicable permit and the February 1988 abatement order. (Bellamy obtained a certification in May 2000, but failed to obtain training during the required certification cycle. His certification expired on May 31 , 2012. He did have a listed current operator.)

o Bellamy failed to submit timely and accurate DMRs as required by the applicable permit.

o Bellamy failed to carry out and submit the minimum requirement for laboratory testing to ensure adequate wastewater systems in-plant operational controls as required by the applicable permit.

o Bellamy failed to perform effluent testing by an approved method(s) according to the most current edition of the "Standard Methods for the Examination of Water and Wastewater" or other method(s) approved by the Department in violation of§ 644.076.1 and 10 CSR 20-7.015(9)(D)2. Ex. 4, p. 18.

o Bellamy failed to conduct a total solids test when removing wastewater sludge as required by the applicable permit.

v. On December 28, 2016, the Department issued Bellamy a notice of violation because the facility exceeded its ammonia limit in May and September 2016.

12. On September 1, 2017, the Department issued the permit to Bellamy that

required him to perform monthly monitoring of the facility. The Department determined

that monthly monitoring was required because of the facility's non-compliance history;

the need to fulfill the site specific information needs of the Department per 1 0 CSR 20-

7 .015(8)(B)4; the presence of sludge; and the modification to the facility without

engineering oversight.

13. It is common for the Department to require quarterly monitoring reports

for small domestic wastewater facilities .

14. On September 27, 2017, Bellamy agreed to a consentjudgment entered by

8

•

the Circuit Court of Audrain County, Missouri, in which he was ordered to perform the

following: 11

a. Elect to replace the facility ; 12 make mechanical repairs; conduct upgrades to the facility that are necessary to comply with the interim and final effluent limits in the permit; or connect the facility to another approved wastewater treatment facility or an area-wide wastewater treatment and collection system; and

b. Pay a civil penalty of $5,000 that is suspended upon condition that Bellamy complies with all other terms and conditions of the consent judgment; and

c. Pay court costs.

15. The consent judgment requires that Bellamy obtain a professional engineering

report that supports whatever action he chooses from the above list.

16. More recently, Bellamy paid an engineer $1 ,000 for a report, but the engineer

died. Bellamy did not receive a report and never got back his money.

17. Bellamy acknowledged that he modified his facility without engineering oversight

due to cost, but contends that it operates better than it did before the modifications.

18. The Department has the authority to modify the permit, and Bellamy may submit

to the Department a written request for a modification of the monthly monitoring requirements at

any time.

19. The Department is amenable to eliminating the interim monthly monitoring for E.

coli requirement in the permit in order to allow the permit to be consistent with a general policy

implemented since the permit was renewed.

11 The lawsuit resulting in the consent judgment was originally filed by the Department in January 2012. The Department sought penalties and injunctive relief due to compliance issues with the facility. The petition included two counts. Both counts alleged that on or about August 6 and 7, 2009 and December 8, 2009, Bellamy failed to prevent the discharge of partially treated wastewater, sludge or other unauthorized discharges from the facility.

12 Bellamy testified that the facility ' s replacement cost was between $150,000 to $250,000.

9

Conclusions of Law

We have jurisdiction to conduct the hearing and recommend a decision to the ewe.

Sections 621.250, 640.013, and 644.051.6.13 The Department bears the burden of proof in

this case. Section 640.012.

According to§ 644.051.1 , it is unlawful for any person to cause pollution to the

"waters ofthe state." 14 This includes the discharge of "any water contaminants into any

waters of the state which exceed effluent regulations or permit provisions as established by

the [eWe] or required by any federal water pollution control act." Section 644.051.1(3).

Section 644.051.2 requires any person operating a water contamination or point source15

regulated by the ewe to hold an operating permit from the ewD, "subject to the

exceptions as the [eWe] prescribe by rule or regulation."

The ewe promulgated 10 eSR 20-7.010, in part, to regulate the discharge of

pollutants from any point source, water contamination source, or wastewater treatment

facility into waters of the state. The regulation, in part, sets maximum effluent limitations

and monitoring requirements, and addresses the removal of sludge. According to 10 eSR

20-7.0 10(8)(B)4, which is applicable in this case, the Department is required to "establish

13 Statutory references are to RSMo. 2016 unless otherwise indicated.

14 The phrase "waters ofthe state" is defined in§ 644.016(27) as "all waters within the jurisdiction ofthis state, including all rivers, streams, lakes and other bodies of surface and subsurface water lying within or forming a part of the boundaries of the state which are not entirely confined and located completely upon lands owned, leased or otherwise controlled by a single person or by two or more persons jointly or as tenants in common."

15 The term "point source" is defined in§ 644.016(16) as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating crafts, from which pollutants are or may be discharged . .. [p]oint source does not include agricultural storm water discharges and return flows from irrigated agriculture[.]"

10

monitoring frequencies and sampling types to fulfil the site-specific informational needs of

the department."

In his complaint, Bellamy only contests the Department' s monthly monitoring

requirements. This is an increase from his prior facility permits that required quarterly

monitoring instead of monthly. Accordingly, the issue before us is whether the Department

had legal justification to increase Bellamy' s monitoring requirements from quarterly to

monthly.

Bellamy also opposes the increased monitoring requirements due to cost and time

commitments. He pled in his complaint that the Department informed him that the facility ' s

E. coli levels were "okay". Bellamy testified that he was advised by Department inspectors

that it is common among similar treatment facilities for there to be the appearance of sludge.

He testified that he was informed in training classes that some sludge would always be

present at the outlet and downstream. This testimony was not supported by any other

testimony or documentation.

Bellamy argues that the Department is not justified in its regulatory requirements, his

facility has not been out of compliance often, and one of the Department's inspectors was

retaliating against him. Overall, Bellamy asserts that the Department overused its powers.

Bellamy purchased the facility in 1981 . The Department referred him to its

enforcement unit in 1983; Bellamy received an abatement order in 1988 and a consent

judgment in 1989; and he received several notices of violation or letters of warning over the

years. Inspectors have observed sludge, or the indication that sludge has been removed by

Bellamy, in the facility ' s receiving stream in 1988, 1993, 1995, 2007, 2009, and 2014.

11

In March 2013, Bellamy acknowledged that solids periodically accumulate in the

tributary immediately downstream from the outfall, and he removed them as needed. This is

consistent with Bellamy' s additional testimony that sludge from the facility escapes onto the

gravel below the outfall and he removes the sludge and gravel, and then replaces the gravel.

In addition, Bellamy acknowledged that he modified his facility without permission from

the Department. The evidence is clear that over the years the facility has introduced

pollution into the receiving stream in violation of state and federal law.

However, the Department established no evidence of any violations in 2015, and

only that the facility exceeded its ammonia level in May and September 2016. Conversely,

the Department had an ongoing enforcement action against Bellamy since 2012 that was

only resolved after it issued its September 1, 2017 permit, which is the subject of this

appeal. Furthermore, the facility has a long history of non-compliance as discussed above,

and Bellamy acknowledged that he knowingly chose not to comply at times with the

applicable permits, such as choosing not to file DMRs, modifying the facility without

permission, and not having a certified operator at times.

The Department generally issues five-year permits, and within the last five years,

Bellamy' s facility has been non-compliant on numerous occasions. Since the current permit

was issued, Bellamy entered into a consent judgment. The Audrain County Circuit Court' s

consent judgment requires Bellamy to do several things, including obtaining a professional

engineering report that supports various corrective actions that Bellamy may act upon as

12

provided in the consent judgment. The consent judgment requires Bellamy to get the

facility into proper compliance as directed by a professional engineer.

While quarterly monitoring is the status quo for facilities the size ofBellamy' s

facility, it is reasonable for the Department to require monthly monitoring reports until such

time it has established that the facility is operating properly. Furthermore, it is not

unreasonable for the Department to require monthly monitoring for Bellamy' s facility given

its non-compliance history. Under the circumstances, it is reasonable for the Department to

want to know sooner than on a quarterly basis if the facility is further polluting the receiving

stream. While this approach increased Bellamy' s cost, it is legally justified.

We note that the Department is willing to work with Bellamy to reduce his

monitoring costs. The Department acknowledged that Bellamy may seek immediate relief

from the monthly E. coli monitoring by submitting a written request to modify the permit.

In addition, Bellamy agreed to obtain an engineering report and make necessary changes to

his facility per the consent judgment. His agreement to the consent judgment dilutes his

concern regarding the cost of the additional monitoring requirements. Furthermore, once he

complies with the consent judgement, he can again seek further changes to the monitoring

requirements.

We fmd that the Department established a reasonable basis for concern that the

facility may not be operating within the requirements of its permit. There is no evidence

that the Department abused its discretion in setting the monthly monitoring frequency.

13

Summary

The Department met its burden of proving that its permit issued on September 1,

20 17, to Bellamy for his facility was issued in accordance w ith current law. We

recommend that the CWC sustain the Department' s permit.

SO RECOMMENDED on January 8, 2018.

14

~ I <:::! d , ~~~t>-~

RENEE T. SLUSHER Commissioner

Missouri Clean Water Commission Meeting Department of Natural Resources

Lewis and Clark State Office Building LaCharrette/Nightingale Creek Conference Rooms


April 4, 2018

Fiscal Year 2018 Clean Water State Revolving Fund Intended Use Plan Revisions

Issue: Fiscal Year 2018 Clean Water State Revolving Fund Intended Use Plan Revisions. Background: Financial Assistance Center staff is recommending that the project lists be amended as follows:

Move the city of Poplar Bluff (C295671-01) in the amount of $18,119,172 from the Planning List to the Outstate Missouri Fundable projects list. This project has met the readiness to proceed criteria and is eligible to be allocated funds.

With this change the unallocated balance of funds available has decreased from $76,887,377 to $58,768,205. This available balance should encourage applicants on the Planning List to continue to progress their projects forward to meet the readiness to proceed criteria during Fiscal Year 2018.

Recommended Action: The Department recommends the Clean Water Commission approve changes to the Fiscal Year 2018 Clean Water State Revolving Fund Intended Use Plan as follows:

Move the city of Poplar Bluff (C295671-01) project in the amount of $18,119,172 to the Outstate Missouri Fundable projects list.

Suggested Motion Language: I move to approve the proposed changes to the Fiscal Year 2018 Clean Water State Revolving Fund Intended Use Plan and Priority List as proposed. List of Attachments:

Revised Fiscal Year 2018 Clean Water State Revolving Fund Intended Use Plan project lists.

Proposed Amendment April 4, 2018

Adopted November 6, 2017

Fiscal Year 2018(Oct. 1, 2017 – Sept. 30, 2018)

Clean Water State Revolving FundIntended Use Plan And Priority List

Amended January 4, 2018

268,819,768$

Boone County RSD (Oberlin Valley) * C295375-26 Coll, FM, PS 150 250 674,741$ 674,741$ MO-0117323 5 18-4 IVB 19-4

Boone County RSD (Lee Heights) * C295375-28 Coll, FM, PS 150 67 629,968$ 629,968$ MO-0102113 5 18-4 IVB 19-4

Festus * C295305-03Coll Exp, PS,

FM145 11,800 1,412,140$ 1,412,140$

MO-0122777

MO-00806321, 5 18-4 IVA 19-2

Carthage - WWTP Upgrades * C295809-01 TP Impr 130 14,378 6,000,000$ 6,000,000$ MO-0039136 5 18-2 I 19-2

Drexel* C295803-01 TP, PS, I, Det 125 965 2,392,000$ 2,392,000$ MO-0129852

MO-00236555 18-3 I, IIIA, IVB 19-3

Windsor * C295512-01 TP Impr, I/I 125 3,087 5,000,000$ 5,000,000$ MO-0047325

MO-00473171 18-4 I, IIIA, IIIB 19-4

Moscow Mills * C295810-01 PS, Coll, FM 125 2,509 2,592,737$ 2,592,737$ MO-0129852

MO-01197091 19-1 I, IIIA, IVB 20-1

Labadie Creek Watershed Sewer

District of Franklin County *C295727-01 TP, Coll, Exp 120 963 3,000,000$ 3,000,000$ Multiple 1 18-3 II, IVA 19-3

Total Carryover Fundable Projects 21,701,586$ 21,701,586$

Balance 247,118,182$ Notes: An explanation of the abbreviations and codes appears at the end of the project lists.

Fiscal Year 2018 Project Lists

Needs Category

Initi

atio

n of

O

pera

tions

Carryover Fundable List Available Funds

Prob

lem

Cod

e

Fina

ncin

g Sc

hedu

le F

Y -

Qua

rter

Eligible Costs Loan Amount NPDES #Applicant Project #

Des

crip

tion

Prio

rity

Poin

ts

Serv

ice

Are

a Po

pula

tion

1

Allocation of Available Loan Funding

Loan Balance Forward from Fundable Carry-over Project Lists 247,118,182$

Outstate Missouri (1) 40% 98,847,273$

Large Metropolitan Areas and Districts (2) 30% 74,135,455$

Combined Sewer Overflow (CSO) 15% 37,067,727$

Department Initiatives 15% 37,067,727$ (1) Service area population of less than 75,000.

(2) Service area population of 75,000 or more.

Large CombinedOutstate Metropolitan Sewer DepartmentMissouri Areas & Districts Overflow Initiatives Total

Loan Allocation 98,847,273$ 74,135,455$ 37,067,727$ 37,067,727$ 247,118,182$ Total Projects (1) (60,949,977)$ (126,400,000)$ -$ (1,000,000)$ (188,349,977)$ Balance Before Transfers 37,897,296$ (52,264,545)$ 37,067,727$ 36,067,727$ 58,768,205$

Transfers 37,067,727$ (37,067,727)$ -$

20,870,909$ 15,196,818$ (36,067,727)$ -$

-$

-$

Total Transfers 20,870,909$ 52,264,545$ (37,067,727)$ (36,067,727)$ -$

Balance Available (2) 58,768,205$ -$ -$ -$ 58,768,205$

Amount Forward to Project Tables (3) 119,718,182$ 126,400,000$ -$ 1,000,000$ 247,118,182$ (1) From the Project Lists on the subsequent pages.

(2) Balance may be shifted to other categories to fund projects that are ready to proceed.

(3) Amount equals the Allocation + Total Transfers.

Financial Summary of the Fundable Projects Lists (loan funding only)

2

Outstate Missouri Fundable List Available Funds 119,718,182$

Lathrop C295821-01TP Imp, I/I,

Rehab135 2,086 6,245,200$ 6,245,200$ MO-0112704 1, 5 18-4 II, IIIA, IIIB 20-1

Center Creek Wastewater Treatment

BoardC295446-02 TP Impr 130 15,268 2,750,000$ 2,750,000$ MO-0040185 1 18-2 I 19-2

Belle C295813-01 Coll Impr, PS 115 1,545 666,770$ 666,770$ MO-0048101 2 18-4 IIIB 19-4

Weston C295814-01TP Impr, PS,

Coll115 1,641 4,000,000$ 4,000,000$ MO-0031585 4, 5 18-3 I, II, IIIB 19-3

Ashland C295701-01 TP, Coll Impr 110 3,707 6,600,000$ 6,600,000$ MO-0106844 5 18-2 I, II 19-3

Aurora - Phase II C295711-02 I 105 7,508 1,324,870$ 1,324,870$ MO-0036757 5 18-4 IVB 19-4

Troy C295822-01 FM, PS, Impr 105 10,500 18,579,000$ 18,579,000$ MO-0054623

MO-01312961 19-1 I 20-2

Meadville C295801-01 TP Impr 95 512 1,339,080$ 1,339,080$ MO-0041114 5 18-2 I 19-2

East Lynne C295695-01 TP Impr 95 303 1,325,885$ 1,325,885$ MO-0099961 5 19-1 I 20-1

Poplar Bluff C295671-01 TP Impr 80 17,023 18,119,172$ 18,119,172$ MO-0043648 5 18-3 IIIB 19-3

$ 42,830,805 $ 42,830,80560,949,977$ 60,949,977$

$ 76,887,377

58,768,205$

Total Outstate Missouri Fundable Projects

Project #

Des

crip

tion

Prio

rity

Poin

ts

Serv

ice

Are

a Po

pula

tion

Eligible Costs

Balance

Fiscal Year 2018 Project Lists

Needs Category

Initi

atio

n of

O

pera

tions

Prob

lem

Cod

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Fina

ncin

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hedu

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Y -

Qua

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Loan Amount NPDES #Applicant

3

Project #

Des

crip

tion

Prio

rity

Poin

ts

Serv

ice

Are

a Po

pula

tion

Eligible Costs Needs Category

Initi

atio

n of

O

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tions

Prob

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Cod

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Fina

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Qua

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126,400,000$ MSD - MSD Public I/I Reduction

Program - Phase 5 C295023-40 I/I 155 1,300,000 82,400,000$ 82,400,000$ Multiple 4, 5 18-3 IIIA 19-3

MSD Gravois Trunk Sanitary Stroage

FacilityC295825-01 Det 115 79,716 44,000,000 44,000,000$ MO-0025151 4, 5 18-3 IVB 21-3

Total Large Metropolitan Areas & Districts Fundable Projects 126,400,000$ 126,400,000$

-$

-$

-$ -$

-$

1,000,000$ Missouri Agriculture & Small Business

DevelopmentC295212-10 NPS N/A N/A 1,000,000$ 1,000,000$ N/A 3 19-2 VIIB 20-4

1,000,000$ 1,000,000$

Balance -$

Total Department Initiatives Fundable Projects

Balance

Combined Sewer Overflow Fundable List Available Funds

Balance

Total Combined Sewer Overflow Fundable Projects

Large Metropolitan Areas & Districts Fundable List Available Funds

Department Initiatives Fundable List Available Funds

4

Project #

Des

crip

tion

Prio

rity

Poin

ts

Serv

ice

Are

a Po

pula

tion


Initi

atio

n of

O

pera

tions

Prob

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Cod

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Fina

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Total Fundable Contingency Projects -$

Kelso * C295195-02 TP 85 586 1,350,000$ MO-0115118 5 18-4 II 19-4

Spickard * C295823-01 TP 85 254 1,453,815$ MO-0113026 5 19-1 II 19-4

Total Contingency Projects 2,803,815$

Planning ListBoone County RSD (Bolli Road Coll

System) C295375-25 85 37 200,000$

Boone County RSD (Cedar Gate) * C295375-27 105 134 842,733$

Boone County RSD (Phenora North

Coll System) C295375-24 90 163 198,090$

Boone County RSD (South Route K)* C295375-21 120 2,477 5,275,628$

Deer Run Reorganized Common

Sewer DistrictC295815-01 90 385 1,808,100$

Garden City C295829-01 60 1,642 200,000$

Gravois Arm Sewer District - Phase 5 C295826-01 75 525 2,420,000$

Kearney C295828-01 55 8,381 3,252,000$

Lancaster * C295804-01 90 940 2,227,325$

Fundable Contingency List (Complete Facility Plan Submitted and Approved Debt Instrument)

Contingency List (Complete Facility Plan Submitted)

Note: Information will be added to the shaded columns when the project moves to the fundable or contingency list.

5

Project #

Des

crip

tion

Prio

rity

Poin

ts

Serv

ice

Are

a Po

pula

tion


Initi

atio

n of

O

pera

tions

Prob

lem

Cod

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Fina

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Qua

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Liberal C295827-01 75 759 1,709,337$

Peculiar C295824-01 55 4,608 8,129,713$

Poplar Bluff C295671-01 80 17023 18,119,172$

Sunrise Beach C295540-02 75 431 3,013,000$

Taney County Regional Sewer District C295219-07 125 1,443 5,000,000$

Tipton * C295293-02 75 3,296 1,677,000$

54,072,098$

54,072,098$

Notes:

Final eligible costs will be determined as documents are submitted and the project is closer to financing.

An * indicates the project is carried over from the previous year’s IUP.

Carry over projects from the fiscal year 2017 list must reapply to be considered for the fiscal year 2019 list.

Total Planning List Projects

Elimination System

NPS Non Point Source

PS Pump Station

FM Force Main

Impr Improvements

I Interceptor

NPDES National Pollution Discharge

I/I Inflow/Infiltration

Rehab Rehabilitation

TP Treatment Plant

Financing schedule shown is for planning purposes only. Final scheduling will be determined as documents are submitted and approvals obtained.

II Advanced Treatment

VIIB NPS: Animal

VIID NPS: Urban

IIIA I/I correction

IIIB Sewer replacement or rehabilitation

IVA New Collection

V CSO

IVB New Interceptors

2 - Unpermitted Discharge

3 - Water Quality Stds. Violation

5 - Future NPDES Violation

Expected

Description Reference List Coll Collection

Needs Codes I Secondary Treatment

Exp Expansion

CSO Combined Sewer Overflow

Det Detention

Problem Codes 1 - NPDES Permit Violation

4 - Public Health Problems

6

Missouri Clean Water Commission Department of Natural Resources



Clean Water Commission Meeting

April 4, 2018 Title: Clean Water State Revolving Fund (CWSRF) Amortization Schedule Variance Extension Request CWC-V-2-16 Issue: This request to extend Variance CWC-V-2-16 is being initiated by Department of Natural Resources’ staff because this Variance expired on October 31, 2017, and rulemaking on 10 CSR 20-4.041 has not been completed. The Department is initiating this extension as it would like to keep its ability to provide extended term financing for eligible CWSRF applicants. Background: The city of St. Joseph submitted a variance request to the Department on May 5, 2016. The application was submitted pursuant to Section 644.061, RSMo. On July 13, 2016, the Clean Water Commission approved the Department’s recommendation to the variance to 10 CSR 20-4.041 (9) (A), allowing the Department to issue CWSRF Direct Loans to qualified recipients, with amortization schedules that require the bonds, notes, or other debt obligations to be fully amortized in no more than 30 years after the initiation of operation. The CWSRF Amortization Schedule Variance Extension Request CWC-V-2-16 and relative documents were placed on public notice from January 30 through February 23, 2018. Comments were received from the Association of Missouri Cleanwater Agencies and city of St. Joseph. These positive comments showing support for the variance extension are included in the briefing materials. Recommended Action: The Department recommends that the Commission approve extending Variance CWC-V-2-16 until the earlier of the completion of a rulemaking process for 10 CSR 20-4.041 or October 31, 2019. Suggested Motion Language: I move that the Clean Water Commission approve extending Variance CWC-V-2-16 until the earlier of the completion of a rulemaking process for 10 CSR 20-4.041 or October 31, 2019. List of Attachments:

Exhibit 1 – CWSRF Amortization Schedule Variance Request to Extend CWC-V-2-16 State of Missouri, Department of Natural Resources

Exhibit 2 – Order Granting Variance No. CWC-V-2-16 Exhibit 3 – CWSRF Amortization Schedule Variance Request CWC-V-2-16 State of

Missouri, Department of Natural Resources Exhibit 4 – Comments showing support for the CWSRF Amortization Schedule

Variance to Extend CWC-V-2-16, State of Missouri, Department of Natural Resources

Draft Order for the Missouri Clean Water Commission’s signature Granting Extending Variance No. CWC-V-2-16, State of Missouri, Department of Natural Resources

CWSRF Amortization Schedule Variance Request to Extend CWC-V-2-16 State of Missouri


Prior History: This variance request extension is being initiated by the Missouri Department of Natural Resources’ staff. The reason is because Variance No. CWC-V-2-16 expired on October 31, 2017, and rulemaking on 10 CSR 20-4.041 has not been completed. The Department would like to keep its ability to provide extended term financing for eligible Clean Water State Revolving Fund (CWSRF) applicants. This request is in accordance with Section 644.061, RSMo, which states, “the variance may be extended by affirmative action of the commission.” Please see the enclosed the original Staff Recommendation for Variance No. CWC-V-2-16 for reference. The city of St. Joseph submitted a variance request to the Department on May 5, 2016. The application was submitted pursuant to Section 644.061, RSMo.

The city of St. Joseph requested a variance to 10 CSR 20-4.041(9)(A) Direct Loan Program. This paragraph covers the amortization period of the debt obligation for CWSRF Direct Loans. The statement in the regulation pertaining to this variance states,

“The bonds, notes or other debt obligations shall be fully amortized in no more than twenty (20) years after initiation of operation;”

The Water Resources Reform and Development Act of 2014 (WRRDA) was signed into law by President Obama on June 10, 2014. WRRDA included amendments to the Federal Water Pollution Control Act (FWPCA) that directly impacts the CWSRF program. As amended, section 603(d)(1)(A) now states that CWSRF loans may be made,

“at terms not to exceed the lesser of 30 years and the projected useful life (as determined by the State) of the project to be financed with proceeds of the loan.”

Revisions to 10 CSR 20-4.041(9)(A) are contemplated to allow the CWSRF program to extend the amortization schedules to qualified recipients for up to 30 years, but not exceeding the projected useful life, consistent with current federal law.

On July 13, 2016, the Missouri Clean Water Commission (CWC) approved the Department’s recommendation to the variance to 10 CSR 20-4.041 (9) (A), allowing the Department to issue CWSRF Direct Loans to qualified recipients, including but not limited to, the city of St. Joseph, with amortization schedules that requires the bonds, notes or other debt obligations be fully amortized in no more than 30 years after the initiation of operation. This variance was effective from the date of the CWC approval on July 13, 2016, and expired on October 31, 2017.

Exhibit 1

Department Recommendation

The Department believes that other CWSRF applicants may be similarly situated as St. Joseph regarding affordability of implementing of necessary capital improvements. Rather than bringing individual variance applications for each of these applicants, the Department recommends that the CWC approve extending Variance No. CWC-V-2-16, reauthorizing the Department to issue CWSRF Direct Loans with amortization schedules that requires the bonds, notes or other debt obligations be fully amortized in no more than 30 years after initiation of operation. The Department recommends extending Variance No. CWC-V-2-16 until the earlier of the completion of a rulemaking process for 10 CSR 20-4.041 or October 31, 2019. The Department recommends extending the variance without a public hearing based on the following justifications:

10 CSR 20-4.041(12) states “This rule sets out the general format for the direct loan programs. The commission and the Department shall have the authority to make specific refinements, variations or additional requirements as may be necessary in connection with the efficient operation of the direct loan program”

The Department believes granting this variance extension is necessary for the efficient operation of the CWSRF Direct Loan program.

The Missouri Clean Water Commission is, among other things, legally authorized to grant individual variances from the requirements of the Missouri Clean Water Law and the regulations adopted under it, unless a variance is prohibited by any federal water pollution control act.

1. "…if…compliance...will result in an arbitrary and unreasonable taking of property or in the practical closing and elimination of any lawful business, occupation or activity, in either case without sufficient corresponding benefit or advantage to the people ... " (644.061.1, RSMo)

The Department believes that granting this variance extension will not result in an arbitrary and unreasonable taking of property or in the practical closing and elimination of any lawful business, occupation or activity, in either case without sufficient corresponding benefit or advantage to the people. Moreover, by allowing amortization schedules up to 30 years for certain CWSRF loans, recipients could potentially be able to afford a larger loan, incentivizing them to complete a major project and/or result in lower annual debt service payments resulting in savings which can be passed on to customers.

2. "…no variance shall be granted where the effect of a variance will permit the continuance of a condition which may unreasonably cause or contribute to adverse health effects upon humans or upon fish or other aquatic life or upon game or other wildlife... " (644.061.1, RSMo)

The Department does not believe that the effect of this variance extension will permit the continuance of a condition which may unreasonably cause or contribute to adverse health effects upon humans or upon fish or other aquatic life or upon game or other wildlife. This variance extension will allow applicants with lower operating budgets to more easily afford wastewater treatment improvements needed to comply with FWPCA requirements.

3. "…any variance so granted shall not be so construed as to relieve the person who receives the variance from any liability imposed by other law for the commission or maintenance of a nuisance." (644.061.1, RSMo)

Granting this variance extension should not be considered as relieving any potential CWSRF recipient of any liability imposed by other law for the commission or maintenance of a nuisance. Any CWSRF recipient who receives the extended amortization schedule, will still be required to comply with all applicable laws and regulations. Amortization schedules up to 30 years, subject to not exceeding the projected useful life, are explicitly allowed pursuant to the FWPCA.

4. "Variances shall be granted for such a period of time and under such terms and conditions as shall be specified in its order... in no event shall the variance be granted for a period of time greater than is reasonably necessary for complying with sections 644.006 to 644.141... "

It is recommended that this variance extension be effective until the earlier of the completion of a rulemaking process for 10 CSR 20-4.041 or October 31, 2019. This variance would apply to all qualified CWSRF recipients.

This variance extension will not require approval by the Environmental Protection Agency as the city is not requesting a variance to Water Quality Standards.

Enclosures:

Exhibit 2- Order Granting Variance No. CWC-V-16

Exhibit 3 – CWSRF Amortization Schedule Variance Request CWC-V-2-16 State of Missouri, Department of Natural Resources

BEFORE THE MISSOURI CLEAN WATER COMMISSION

In The Matter Of~

Clean Water State Revolving Fund Amortization Schedule Variance Request

) ) ) ) ) )

No. CWC-V-2-16

ORDER GRANTING VARIAN CE

The Missouri Clean Water Commission hereby approves a variance from 10 CSR 20-

.;

4. 041 (9)(A) regarding the maximum length of the amortization schedules of the bonds, notes or other debt obligation for Clean Water State Revolving Fund (CWSRF) Direct Loans. The variance allows the department to issue CWSRF Direct Loans with amortization schedules for the debt obligations to be fully amortized no later than 30 years after initiation of operation. However,-in no event shall the amortization schedule exceed the projected useful life of the project.

This variance was requested by the city of St. Joseph and is applicable to eligible CWSRF recipients entering into a Direct Loan with the department pursuant to 10 CSR 20-4.040 & 10 CSR 20-4.041 during the effective period of this variance.

The primary basis for this decision is that the variance request meets the regulatory criteria associated with 10 CSR 20-4.041(12) that allows the commission and the department to make specific refinements, variations or additional requirements as may be necessary in connection with the efficient operation of the direct loan program. Additionally, the longer amortization schedules for the CWSRF progr.am are allowed pursuant to the Federal Water Pollution Control Act as amended in 2014.

Staff is directed to implement the variance as public noticed. The variance will expire on the earlier of (i) completion ofrulemaking process for 10 CSR 20-4.041 or (ii) October 31, 2017.

SO ORDERED this -~1=3_th_ day of July 2016.

Exhibit 2

\_,--- ~ Commissioner

MISSOURI CLEAN WATER COMMISSION

Vice Chair

~ ~--9 __ . ___ c..--__ r __ w_f;:J ___ _ Commissioner

Commissioner

CWSRF Amortization Schedule Variance Request CWC-V-2-16 State of Missouri


The city of St. Joseph submitted a variance request to the Department of Natural Resources on May 5, 2016. The application was submitted pursuant to Section 644.061, RSMo.

The city of St. Joseph is requesting a variance to 10 CSR 20-4.041(9)(A) Direct Loan Program. This paragraph covers the amortization period of the debt obligation for Clean Water State Revolving Fund (CWSRF) Direct loans. The statement in the regulation pertaining to this variance states,

“The bonds, notes or other debt obligations shall be fully amortized in no more than twenty (20 years after initiation of operation;”

The Water Resources Reform and Development Act of 2014 (WRRDA) was signed into law by President Obama on June 10, 2014. WRRDA included amendments to the Federal Water Pollution Control Act (FWPCA) that directly impacts the CWSRF program. As amended, section 603(d)(1)(A) now states that CWSRF loans may be made,

“at terms not to exceed the lesser of 30 years and the projected useful life (as determined by the State) of the project to be finance with proceeds of the loan.”

Revisions to 10 CSR 20-4.041(9)(A) are currently in process and, if adopted, would allow the CWSRF program to extend the amortization schedules to qualified recipients for up to 30 years, but not exceeding the projected useful life, consistent with current federal law. During stakeholder meetings, both support for and concern with extended financing was shared by stakeholders. Some stakeholders supported the idea because of the fact that a longer repayment term should result in lower annual debt payments which keeps user rates lower. Concern was shared by some stakeholders in regards to if a community doesn’t pay off its debt in 20 years on an original project, will it be in a position to be ready to take on the next set of upgrades in the future.

The Department is required to manage the CWSRF fund in perpetuity. This includes the Department responsibility to manage the funds in a fiscally responsible manner and making repayments available for new loans indefinitely into the future. The Department believes it to be prudent to develop a policy independent of the regulation and variance, by which loan terms exceeding 20 years may be available for CWSRF applicants. Key considerations will likely include the affordability of the project for the community, the department’s fiscal management of the CWSRF funds, keeping the CWSRF simple for applicants to understand and the Department to manage, and to address applicants who may wish to refinance existing loans.

Exhibit 3

St. Joseph Request & Support

The city is requesting that future CWSRF loan funding be considered for an amortization term of thirty (30) years. This variance would allow the city to afford a larger loan without having to further increase user rates. Based on the city’s 2014 user rates, the city estimates that it could afford to borrow $61.8 million using a 20-year amortization schedule using recent CWSRF interest rates. However, a 30-year amortization schedule assuming the same interest rate would allow the city to borrow $87.3 million with the same user rates.

In recent years, the city of St. Joseph has pursued compliance with water quality standards and a 2013 Consent Agreement from the U.S. Environmental Protection Agency to stop the discharge of pollutants from unauthorized point sources. The city has been working on three separate projects to reduce Combined Sewer Overflows (CSO) and to upgrade the city’s wastewater treatment facility. To fund these projects, the city has received $96,245,000 in CWSRF Direct Loans since 2013.

The city of St. Joseph applied to the CWSRF program for funding on September 24, 2014, for the Blacksnake Creek Stormwater Separation project. The project is listed on the Combined Sewer Overflow Fundable List in the Intended Use Plan and Priority List for Fiscal Year 2016. The project is estimated to cost approximately $100 million and the city is seeking $87,300,000 in CWSRF loan funds.

The city’s current sewer user rate for 5,000 gallons usage per month is $61.13, or approximately 1.7 percent of the median household income. The city has implemented rate increases over the last several years to support the capital projects referenced above. In addition, the city anticipates additional capital projects in the future to comply with the 2013 Consent Agreement. The city desires to keep user rates affordable while securing the necessary funds to support capital improvements necessary to comply with the FWPCA.

Other CWSRF Recipients

The Department believes that other CWSRF applicants may be similarly situated as St. Joseph regarding affordability of implementing of necessary capital improvements. Rather than bringing individual variance applications for each of these applicants, the Department recommends a variance for all eligible CWSRF applicants be put in place until the earlier of the following (i) rulemaking process is completed for 10 CSR 20-4.041, or (ii) October 31, 2017. This variance is consistent with federal law as a result of WRRDA.

As stated above, the Department intends to develop a policy regarding amortization schedules that extend beyond twenty (20) years, including who is eligible and the financial terms. The policy will be published on the department’s website and incorporated in whole or by reference in future CWSRF Intended Use Plans.

For the avoidance of doubt, this variance would only apply to CWSRF applicants receiving a CWSRF Direct Loan pursuant to 10 CSR 20-4.041 after the effective date of the variance and would not apply to Direct Loans pursuant to 10 CSR 20-4.041 funded by sources outside the CWSRF program.

Department Recommendation

The Department recommends the Clean Water Commission (CWC) approve a variance to 10 CSR 20-4.041(9)(A) allowing the Department to issue CWSRF Direct Loans with amortization schedules that requires the bonds, notes or other debt obligations be fully amortized in no more than 30 years after initiation of operation. The Department recommends the variance without a public hearing based on the following justifications:

10 CSR 20-4.041(12) states “This rule sets out the general format for the direct loan programs. The commission and the department shall have the authority to make specific refinements, variations or additional requirements as may be necessary in connection with the efficient operation of the direct loan program”

The Department believes granting this variance is necessary for the efficient operation of the CWSRF Direct Loan program.

The Missouri Clean Water Commission is, among other things, legally authorized to grant individual variances from the requirements of the Missouri Clean Water Law and the regulations adopted under it, unless a variance is prohibited by any federal water pollution control act.

1. "…if…compliance...will result in an arbitrary and unreasonable taking of property or in the practical closing and elimination of any lawful business, occupation or activity, in either case without sufficient corresponding benefit or advantage to the people ... " (644.061.1, RSMo)

The Department believes that granting this variance will not result in an arbitrary and unreasonable taking of property or in the practical closing and elimination of any lawful business, occupation or activity, in either case without sufficient corresponding benefit or advantage to the people. Moreover, by allowing amortization schedules up to 30 years for certain CWSRF loans, recipients could potentially be able to afford a larger loan, incentivizing them to complete a major project and/or result in lower annual debt service payments resulting in savings which can be passed on to customers.

2. "…no variance shall be granted where the effect of a variance will permit the continuance of a condition which may unreasonably cause or contribute to adverse health effects upon humans or upon fish or other aquatic life or upon game or other wildlife... " (644.061.1, RSMo)

The Department does not believe that the effect of this variance will permit the continuance of a condition which may unreasonably cause or contribute to adverse health effects upon humans or

upon fish or other aquatic life or upon game or other wildlife. This variance will allow applicants with lower operating budgets to more easily afford wastewater treatment improvements needed to comply with FWPCA requirements.

3. "…any variance so granted shall not be so construed as to relieve the person who receives the variance from any liability imposed by other law for the commission or maintenance of a nuisance." (644.061.1, RSMo)

Granting this variance should not be considered as relieving any potential CWSRF recipient of any liability imposed by other law for the commission or maintenance of a nuisance. Any CWSRF recipient who receives the extended amortization schedule, will still be required to comply with all applicable laws and regulations. Amortization schedules up to 30 years, subject to not exceeding the projected useful life, are explicitly allowed pursuant to the FWPCA.

4. "Variances shall be granted for such a period of time and under such terms and conditions as shall be specified in its order... in no event shall the variance be granted for a period of time greater than is reasonably necessary for complying with sections 644.006 to 644.141... "

It is recommended that this variance be effective until the earlier of the completion of a rulemaking process for 10 CSR 20-4.041 or October 31, 2017. This variance would apply to all qualified CWSRF recipients pursuant to a policy to be developed and published by the department.

This variance will not require approval by the Environmental Protection Agency as the city is not requesting a variance to Water Quality Standards.

Enclosures:

Exhibit 1- April 28, 2016, Variance Request

From: Andy ClementsTo: DEQ.WPCP.FACSubject: Support for Variance Request to Extend CWC-V-2-16Date: Friday, February 02, 2018 8:18:38 AM

I am writing to convey the City of St. Joseph’s strong support for the Department’s proposedextension of Variance No. CWC-V-2-16. St. Joseph operates a POTW, combined sewer system,separated sewer system, and separated storm water system. The utility needs access to 30-yearamortization schedules in order to keep sewer rates affordable. Moreover, it is only fair that capitalcosts of infrastructure with a 30-plus year service life will be shared by ratepayers over theinfrastructure’s service life.

That variance will allow the Department to continue to allow 30-year amortization schedules forClean Water State Revolving Loan Fund loans, including the currently outstanding loan for theBlacksnake Creek project in St. Joseph, Missouri. The variance extension allows the Department tocontinue to provide loan amortization schedules to the fullest extent allowable under federal law. This is critical flexibility for local government borrowers statewide. We urge the Commission toapprove the extension of the variance while the 30-year amortization schedule is adopted throughrulemaking.

We note that most states have either updated their programs or are in the process of doing so totake advantage of the 30-year amortization schedule now allowed under federal law.

St. Joseph greatly appreciates the critical federal-state-local partnership which the SRF programembodies. We wholeheartedly support the Department’s proposal to maximize the flexibilityavailable to borrowers under this critical public infrastructure financing program. We urge the CleanWater Commission to extend the 30-year amortization variance while a permanent rule to authorizethe change is adopted.

Thank you for considering our support for the variance extension. Please let me know if you haveany questions.

Andrew ClementsDirector of Public Works & Transportation1100 Frederick AvenueSt. Joseph, MO [email protected]

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Exhibit 4

mailto:[email protected]


http://www.websense.com/

From: Paul CalamitaTo: DEQ.WPCP.FACSubject: Support for Variance Request to Extend CWC-V-2-16Date: Thursday, February 01, 2018 10:59:14 PM

I am writing to convey the Association of Missouri Cleanwater Agencies’ (AMCA) strong support forthe Department’s proposed extension of Variance No. CWC-V-2-16. AMCA comprise public water,sewer, and stormwater utilities statewide. Our members use the State’s SRF program extensively. These public utilities need access to 30 year amortization schedules in order to keep sewer ratesaffordable. Moreover, it is only fair that capital costs of infrastructure with a 30-plus year service lifewill be shared by ratepayers over the infrastructure’s service life. That variance will allow the Department to continue to allow 30 year amortization schedules forClean Water State Revolving Loan Fund loans, including the currently outstanding loan for theBlacksnake Creek project in St. Joseph, Missouri. The variance extension allows the Department tocontinue to provide loan amortization schedules to the fullest extent allowable under federal law. This is critical flexibility for local government borrowers statewide. We urge the Commission toapprove the extension of the variance while the 30 year amortization schedule is adopted throughrulemaking. We note that most states have either updated their programs or are in the process of doing so inorder to take advantage of the 30 year amortization schedule now allowed under federal law. AMCA greatly appreciates the critical federal-state-local partnership which the SRF programembodies. We wholeheartedly support the Department’s proposal to maximize the flexibilityavailable to borrowers under this critical public infrastructure financing program. We urge the CleanWater Commission to extend the 30-year amortization variance while a permanent rule to authorizethe change is adopted. Thank you for considering our support for the variance extension. Please let me know if you haveany questions. Sincerely, Paul CalamitaGeneral Counsel

AMCA(804) 716-9021 ext. 201(804) 938-4211 (c)


BEFORE THE

MISSOURI CLEAN WATER COMMISSION

In The Matter Of: ) Clean Water State Revolving Fund ) No. CWC-V-2-16 Amortization Schedule Variance Extension ) ) ) )

ORDER GRANTING EXTENDING VARIANCE NO. CWC-V-2-16

The Missouri Clean Water Commission hereby approves extending Variance No. CWC-V-2-16, which is a variance from 10 CSR 20-4.041 (9)(A) regarding the maximum length of the amortization schedules of the bonds, notes or other debt obligation for Clean Water State Revolving Fund (CWSRF) Direct Loans. This extension to Variance No. CWC-V-2-16 allows the Department to continue to issue CWSRF Direct Loans with amortization schedules for the debt obligations to be fully amortized no later than 30 years after initiation of operation. However, in no event, shall the amortization schedule exceed the projected useful life of the project. This original variance was requested by the city of St. Joseph and is applicable to eligible CWSRF recipients entering into a Direct Loan with the Department pursuant to 10 CSR 20-4.040 & 10 CSR 20-4.041 during the effective period of this variance. The primary basis for this decision to extend Variance No. CWC-V-2-16 is that the variance request meets the regulatory criteria associated with 10 CSR 20-4.041 (12) that allows the Commission and the Department to make specific refinements, variations or additional requirements as may be necessary in connection with the efficient operation of the direct loan program. Additionally, the longer amortization schedules for the CWSRF program are allowed pursuant to the Federal Water Pollution Control Act as amended in 2014. Pursuant to Section 644.061, RSMo, the Department is allowed to extend variances by affirmative action of the Commission. Staff is directed to implement the extension to Variance No. CWC-V-2-16 as public noticed. Variance No. CWC-V-2-16 will expire on the earlier of (i) the completion of rulemaking process for 10 CSR 20-4.041, or (ii) October 31, 2019.

WHEREFORE, THE UNDERSIGNED MEMBERS APPROVE THIS ORDER ON THIS DAY OF .

MISSOURI CLEAN WATER COMMISSION Chair Vice-Chair Commissioner Commissioner Commissioner Commissioner Commissioner




April 4, 2018

Water Quality Standards Rulemaking Update

Background: Pursuant to Section 303(c) of the federal Clean Water Act, the Department has held workgroup and stakeholder meetings for the purpose of reviewing applicable water quality standards and, as appropriate, modifying and adopting new or revised standards. The water quality standards to be addressed during this rulemaking include U.S. Environmental Protection Agency (EPA) disapprovals from previous rulemakings and revisions as a result of stakeholder input and discussion. Priorities established as a result of this process include addressing EPA disapproved items (i.e., numeric nutrient criteria for lakes, variance language), updating water quality criteria for pH and other pollutants, changes to sections describing mixing zones and general criteria, and updating reference to Department documents and datasets. On January 4, 2018, the Missouri Clean Water Commission adopted the Order of Rulemaking for an amendment to 10 CSR 20-7.031, Water Quality Standards. The Department filed the amendment with the Missouri Secretary of State on February 8, 2018. The Order of Rulemaking will be published in the Missouri Register on March 15, 2018. The amendment will be published in the Code of State Regulations on March 31, 2018, and become effective 30 days later on April 30, 2018. Recommended Action: Information Only




April 4, 2018

Update on the Draft 2020 303(d) Listing Methodology Document (LMD)

Background: The Department has a public participation process for revision of the 303(d) Listing Methodology Document (LMD) that runs concurrently with the public notice for the 303(d) List. This document describes how the Department assesses waters against the Water Quality Standards for the 303(d) List. The draft 2020 LMD updates the 2018 LMD approved by the Missouri Clean Water Commission (CWC) in April 2016. At the January 10, 2018, CWC meeting the Commission asked the Department to continue to work with stakeholders to resolve the issues not addressed during the public comment period. Since that meeting, the Department has held three public availability meetings: January 18, February 5, and March 9, 2018. A summary of these meetings, as well as other pertinent discussion items and documents, are available on the Department’s website: http://dnr.mo.gov/env/wpp/waterquality/303d/303d.htm. These meetings addressed the following topics:

Data Quality Codes – Has been satisfactorily addressed by the Department Data Age – Has been satisfactorily addressed by the Department Total Organic Carbon Normalization Chronic Criteria – Has been satisfactorily addressed by the Department Lake Numeric Nutrient Criteria – Stakeholders and the Department have agreed

to table until a criteria has been approved/promulgated by EPA Assessing Small Streams Stream Segment Listing Length and Impairments – Has been discussed by the

Department and when the data systems are upgraded the issues will be resolved The Department hopes to have a final version ready for the Commission’s approval at the July 16, 2018, meeting. Recommended Action: Information Only

http://dnr.mo.gov/env/wpp/waterquality/303d/303d.htm




April 4, 2018

Director’s Update

Issue: Routine update to the Commission Recommended Action: Information only




April 4, 2018

Public Comment and Correspondence

Issue: This standing item provides an opportunity for comments on any issue pertinent to the Commission’s role and responsibilities. The Commission encourages any and all interested persons to express their comments and concerns. General Public Recommended Action: Information only




April 4, 2018

Future Meeting Dates

Information: Missouri Clean Water Commission Meeting dates and locations: May 17, 2018 – Lewis and Clark State Office Building July 16, 2018 – Lewis and Clark State Office Building September 21, 2018 – Lewis and Clark State Office Building October 18, 2018 – Elm Street Conference Center Recommended Action: Information only

Documents

dnr.mo.govdnr.mo.gov/env/wpp/cwc/docs/040418cwctabs.pdf · Missouri Clean Water Commission Meeting Lewis and Clark State Office Building LaCharrette/Nightingale Creek Conference Rooms