Hearings held in multiple Denali court cases

A Nov. 29 order from the Missouri Department of Natural Resources (DNR) requiring Denali Water Solutions to immediately stop all land applications and empty its two storage basins in southwest Missouri may be followed, but it may not stop land applications entirely.

Heather Peters, with the Water Protection Section of the DNR, said, although Denali is not currently allowed to add content to their basins in southwest Missouri, they can potentially land-apply the same waste material from the same producers in the same areas where they previously applied it. The difference, Peters said, is in the party taking responsibility for the waste.

“If a facility or company has their own permit to conduct land application, the [DNR] does not have the authority to dictate who a company or facility subcontracts with to conduct their work,” Peters said. “If noncompliance with permit conditions occurs, the permitted facility or company would be responsible for noncompliance, including actions and activities by subcontractors operating under the facility or company’s authority.”

In other words, not much has changed, as long as producers (such as Tyson Foods) are willing to accept responsibility for any future violations of the Missouri Clean Water Law – violations which have occurred regularly over the past 18 months.

Environmental Attorney Stephen Jeffery, counsel for two citizens’ groups who are plaintiffs in lawsuits against the DNR, said his clients are more concerned about the material that goes into the waste pipeline for land-application, something he thinks the DNR is passing over. The distinction, he argued in a court hearing on Friday, should result in the categorization of Denali’s refuse as “solid waste,” thus making it subject to the permitting requirements of Missouri’s Solid Waste Law.

Jeffery alleges that the DNR and Denali have a common interest, in that they prefer that Denali is permitted under the Clean Water Law.

The benefits of such an arrangement for Denali are clear, in that a Clean Water permit is simpler and less costly to obtain and maintain.

During Friday’s hearing in Cole County 19th Circuit Court, Jeffery represented Citizens of Randolph County Against Pollution (CRAP) LLC. In southwest Missouri, he represents the citizens’ group Stop Land Use Damaging our Ground and Environment (SLUDGE) LLC. Both lawsuits allege that the DNR is failing to enforce the Missouri Solid Waste Law and are requesting that a judge rule in their favor and categorize industrial waste land-applied by Denali and other companies as “solid waste.”

In the CRAP vs. DNR hearing on Friday, Judge Cotton Walker allowed Denali to intervene in the case after the company cited a business interest in the outcome.

Jennifer Griffin, counsel for Denali, likened the CRAP members and Jeffery to a “lynch mob,” intent on “killing Denali’s business.”

“The conduct of CRAP, its counsel, and another citizens’ group, formed by its counsel, called SLUDGE, has resulted in unlawful death threats against Denali’s employees and farmers who use its fertilizer products,” Griffin said. “Specifically, threats have been made to ‘slit throats’ and put ‘bullets between the eyes’ of these persons.”

Griffin’s allegations were filed in court documents, and she also alleges that Denali is being singled out by the “lynch mob” because it’s the largest business of its kind operating in Missouri. Her allegation does not take into account that the land-applied refuse of other operators in the state could also be categorized as solid waste.

In another hearing held Thursday in Cole County, also presided over by Judge Cotton Walker, Denali urged the court to decide in its favor and force the Missouri Fertilizer Control Board (MoFCB) to reinstate its fertilizer permit. Such a move would allow Denali to operate as it had in the past, without land-application permission from the DNR.

The MoFCB asked the court to deny Denali’s demand.

“Denali wants to use the license as a shield from liability for causing pollution in violation of the Missouri Clean Water,” alleged the MoFCB, in a court document filed in connection with the Cole County case. “Neither [the Missouri Clean Water] law nor the Fertilizer Control Law requires the [MoFCB] to provide this protection.”

Meanwhile, in southwest Missouri, in SLUDGE’s suit against the DNR, subpoenas have been issued to Denali and landowners Keith Gideon and Jerry Evans. They are ordered to provide entry onto their properties to allow SLUDGE members, counsel and contractors to obtain test samples of the contents of their storage basins in Newton and McDonald Counties.

Subpoenas for the samples were issued by Judge Jon Edward Beetem, also of the 19th Circuit Court in Cole County.

Test results from the samples could provide proof that the substance in the Denali basins is indeed the “toxic stew” and the “solid waste” that SLUDGE’s lawsuit alleges. The subpoenas call for samples to be collected on or after Dec. 29.

Because the contents of the Denali storage basins and the materials being land-applied are of paramount concern to area residents, State Sen. Jill Carter, R-Granby, recently introduced Senate Bill 908, which, if passed, would more tightly regulate industrial waste.

“Sludge generated from multiple facilities, in multiple industries, containing unknown amounts of various wastewater treatment chemicals and contaminants are mixed together by the millions of gallons [in these basins] where they degrade and react before being pumped out and taken to their destination,” Carter said. “This [sludge] is then given away to a potentially unsuspecting land owners as a nutrient rich replacement for conventional fertilizer.

“Excessive levels of certain nutrients like phosphorous or ammonia can lead to a nutritional imbalance in soil, streams, and rivers, seriously harming the environment. Toxic algae blooms are fueled by high phosphorous, which depletes our waterways of oxygen. In these areas called ‘dead zones,’ and any aquatic life like fish that require oxygen cannot survive.”

Ultimately, Carter said, the regulatory standards for fertilizers are intended to prevent environmental pollution and ensure that materials used are safe, effective and environmentally friendly.

“Sludge containing high levels of contaminants would not fit that criteria,” Carter said. “There are extensive studies about the environmental and health impacts of some of these chemicals. In other areas of the country where sludge has been spread, there are reports of the Federal Government classifying these farms as ‘superfund sites,’ [where they halt] any use of the farmland due to PFA’s and heavy metal content.”

Carter said Senate Bill 908 is about safeguarding the very essence of what residents love about southwest Missouri.

“The bill will help encourage the use of new technology in the processing of the sludge, and result in safer utilization [of it],” she said.

Vallerie Steele, SLUDGE member and immediate neighbor of Denali’s Evans storage basin near Fairview, encourages residents to contact their legislators and encourage them to support SB 908.