Denali Water Solutions and Synagro Central, two of 19 companies denied fertilizer permits by the Missouri Fertilizer Control Board (MoFCB) for the land application of their processing waste, filed suit in Cole County Circuit Court in Jefferson City on July 28.

In the suit, the petitioners are requesting judicial review of, and a declaratory judgment regarding what they allege was an abrupt change in the MoFCB’s interpretation of the Missouri Fertilizer Law in April, even though the Fertilizer Law had not been changed by legislature.

The 13-member, non-profit Missouri Fertilizer Control Board was organized by Missouri state statute in 2016 to promote the fertilizer industry. Prior to 2016, the fertilizer program was under the auspices of the University of Missouri’s Agriculture Experiment Station.

The original Missouri Fertilizer Law was approved March 14, 1903, and has undergone changes since then. Responsibility for legislative changes rests with the Missouri General Assembly.

Denali and Synagro allege in their petition that the MoFCB used a change in their interpretation of the fertilizer law to deny them fertilizer permits for the year beginning July 1, 2023, permits which count as exemptions with the Missouri Department of Natural Resources (DNR) for the land application of their materials. Without the fertilizer permits from the MoFCB and without No-Discharge permits from the Department of Natural Resource’s Missouri Clean Water Commission, the petitioners allege they were left with no other option than to either cease distributing their fertilizer products, or risk violating the Missouri Fertilizer Law and the Missouri Clean Water Law.

Denali and Synagro’s petition alleges that the change in the MoFCB’s interpretation of the Fertilizer Law has to do with the market value of fertilizer products, and that the MoFCB now interprets the law to apply only to distributors whose products have a “significant market value,” in the sense that they’re worth paying for. According to the petition, the MoFCB now interprets the law to say that because their customers aren’t paying Denali and Synagro for their products, the products have no significant market value, so the Missouri Fertilizer Law does not apply to them, nor is a fertilizer permit necessary. The petitioners disagree.

Denali and Synagro argue that their organic waste products do have fertilizer value in the form of nitrogen, phosphorous and potash — key nutrient components of fertilizer according to the Fertilizer Law. They say that their products have value, too, in that they distribute their fertilizer products to farmers for land application in Missouri as an alternative to costly chemical fertilizers.

“[The] petitioners advised [the MoFCB] that its new interpretation is contrary to the plain wording of the Law and wrong because there is no exemption in the Law predicated on the market value of material distributed for use as fertilizer,” the petition states.

Denali and Synagro claim to be two of the largest providers of organic waste recycling in the United States. They are both limited liability companies organized under Delaware law and are authorized to transact business in the state of Missouri.

“Collectively, [Denali and Synagro] have held fertilizer permits issued by the MoFCB or its predecessors for over 18 years and have paid over $12,000 in permit fees and over $1.6 million in tonnage distribution fees,” the petition states.

According to the petition, Denali and Synagro are “aggrieved” by the MoFCB’s refusal to issue fertilizer permits to them.

The decision “affected, determined, and prejudiced their legal rights and privileges under Chapter 266 [of the Revised Statutes of Missouri],” the petitioners stated, “by unlawfully and unreasonably denying the fertilizer permits and the [no-discharge] exemptions [with the DNR] to which Denali and Synagro are entitled as a matter of law.”

The issue of whether the MoFCB acted unlawfully and unreasonably by refusing to issue the permits is a “live controversy that is appropriate and ripe for judicial resolution,” the petition states.

The petition also states that “the scope of judicial review extends to whether the [MoFCB’s] decision was unconstitutional, unlawful, unreasonable, arbitrary, capricious or involves an abuse of discretion.”

By filing suit, Denali and Synagro are seeking judicial review of the MoFCB’s decision and are asking for a judgment in their favor.

A judge’s decision could have some bearing on how rapidly — and whether or not — an empty storage lagoon recently constructed by Denali in Randolph County, in northeastern Missouri, gets filled.

Residents who oppose the filling of the lagoon organized a public meeting in Macon on Aug. 21 for the purpose of attempting to dissuade the DNR from issuing no-discharge land application exemption permits. The permits from the DNR, along with accompanying regulations, are requisites for companies that land-apply waste if they do not have fertilizer permits.

Heather Peters, water pollution control branch chief of the Water Protection Program of the DNR, said she was present at the meeting, where about 200 people were in attendance.

According to Peters, the basin in Randolph County is 275 feet by 600 feet (around 3.8 acres), by 20 feet deep, and has an operational volume of 14,869,073 gallons. The basin has a compacted clay liner that exceeds the department’s minimum 12-inch thickness and is designed to meet the permeability requirements in the department’s regulations, she said.

The Randolph County lagoon is similar in size and capacity to the Evans lagoon in Newton County, which is 350 feet by 450 feet (a little over three acres), by 20 feet deep, with an operating volume of 13,812,511 gallons. (In a previous report by the Cassville Democrat, the volume was erroneously reported as two million gallons.) Peters said she believes the Gideon lagoon in McDonald County is similar in size to the Evans lagoon.

Peters said the case for judicial review between third parties (i.e. Denali, Synagro and the MoFCB) will not affect the DNR’s processing, review or permit decision for the Denali applications for the Randolph County lagoon.

“If the Missouri Fertilizer Control Program issues fertilizer licenses in the future to all of the Denalimanaged materials, then, yes, Denali could potentially withdraw any pending applications or terminate permits [with the DNR] and again request the permit exemption [from the DNR] associated with the management of licensed fertilizers,” Peters said.

In other words, it could be back to business as usual for Denali and Synagro if a judge rules in their favor.

Respondent Steve Taylor, Executive Director of the MoFCB, was served with notice of Denali and Synagro’s suit on Aug. 1.

Denali and Synagro are represented in their suit by Attorney Jennifer Griffin, with Lathrop GPM LLP, of Jefferson City.

A court date for the review and declaratory judgment has not yet been set.

Denali is currently the defendant in a property damage lawsuit filed in McDonald County Circuit Court on Dec. 27, 2022. The plaintiff, Collingsworth Land, LLC, is requesting a jury trial. A pre-trial conference is scheduled for Dec. 5.