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Posted on Apr. 24, 2010
By KAREN DILLON
The Kansas City Star

Stagnant government stalls quest to clean up pond near livestock sale barn

GALLATIN, Mo. | Sharon Berten’s pond used to be the place family and neighbors spent warm days out on a pontoon boat fishing.

Smells from a barbecue grill wafted through a gazebo and trees on the bank.

Then, more than three years ago, storm water began carrying into her pond chunks of manure from a cattle sale barn across the highway.

Today the fish are dead. The pond water is too filthy to swim in or for horses to drink. The once-clear water is murky and sometimes covered with a slab of algae.

Government officials agree it’s a mess and needs to be fixed, but three years after state and federal agencies ordered the barn to end the pollution — after threats to close the barn and after a lawsuit — they still have not forced it to stop:

•The Environmental Protection Agency warned in 2007 that pollution from the barn needed to stop, but the federal agency is deferring to the state.

•The Missouri Department of Natural Resources has papered the barn with notices of violation, but department officials say that’s all they can do. The barn now has a potential $800,000 in fines pending.

•The state attorney general, beginning in 2007, has filed legal actions that threaten to shut down the barn, but only last month was a trial scheduled.

“There is a huge injustice happening and nobody is doing anything about it,” said Kathleen Logan Smith, the executive director of the Missouri Coalition for the Environment. “The woman is basically being robbed.”

Berten has fought hard to protect her dream acreage. Over the years, she begged and cajoled federal, state and local officials, month after month, sometimes every day.

Berten, 69, said the stress has made her sick.

“They have thumbed their noses at me for four years,” she said. “My pond is a sewer.”

Nanci Gonder, a spokeswoman for Attorney General Chris Koster, said the case was proceeding and Koster’s staff thinks efforts by the barn to stop polluting are almost complete.

“We are definitely actively working on this case,” Gonder said.

But Smith said the attorney general is sending mixed signals.

“We are asking Koster to enforce the laws that are on the books and protect the rights of people of the state of Missouri,” Smith said. “You’ve got to ask, who are you working for?”

Sale barn

In 2006, after he started running the sale barn, Danny Froman increased the number of cattle being sold at the weekly auction.

Froman could not be reached for an interview over a period of several weeks. He has owned the granary and many other properties in and around Gallatin.

Froman’s lawyer, Michael Arnold, would not comment, his secretary said.

By early 2007, Berten noticed the water in the pond had a particularly bad smell. Then she noticed that the storm water coming from the sale barn after a rain also had a bad odor.

Berten paid a private expert to test the pond water. The results showed 90,000 colonies of E. coli per 1 milliliter of water. The state safety maximum is 126 colonies per 1 milliliter of water.

In March 2007, Berten wrote Froman and explained that contaminated runoff from the barn was going into her pond and she had seen dead fish floating in it.

“I feel confident that you will be anxious to investigate this and take appropriate steps to rectify this problem,” Berten wrote.

Berten said she got no response and filed her first official complaint with Natural Resources Department.

“Water coming into the pond was dark brown and appeared to have some manure in it,” an inspector wrote in a report.

Froman promised to place two sediment traps on the west side of the property and agreed not to stockpile manure anymore, the report said.

After two more inspections, inspectors from the Natural Resources Department cited Froman for several violations of the state Clean Water Act and ordered him to take some cattle holding pens out of service until vegetation could be established.

By August, most of the fish had died, and Berten’s veterinarian told her to keep her horses away from the pond. Berten got the EPA involved in the case.

After EPA inspectors visited the barn in the fall, William A. Spratlin, a regional official with the agency, sent a warning letter to Froman.

Spratlin warned that the EPA was prepared to proceed with a federal enforcement action if Froman was “unwilling to resolve the violations (i.e. cease illegal discharges) in a timely and appropriate manner.”

In the meantime, though, the EPA let the state take the lead, and that hasn’t changed. The EPA considers the actions by the Natural Resources Department to be appropriate, a spokesman said.

State Sen. Brad Lager, a Savannah Republican, went to bat for Berten. But Doyle Childers, then the director of the Natural Resources Department, wrote Lager, saying that the sales barn required a balancing act.

A state law called “conference, conciliation and persuasion” requires the Natural Resources Department to educate the owners of polluting businesses how not to pollute, rather than punish them.

Still, the sale barn had reached a point that DNR agents tried to resolve the problem, Childers explained.

A landmark in the case was reached in December 2007, when a settlement agreement required Froman to improve maintenance of the site, including obtaining a construction permit within 60 days. The permit would require Froman to build a basin and diversion berms around the cattle pens to control the polluted runoff.

There also were penalties if Froman violated the agreement. Today if those penalties were assessed, they would total almost $800,000.

Stockpiling manure

Berten was hopeful but wary. After so long, she wondered whether the agreement would really stop the pollution.

In January 2008, inspectors found a mountain of manure in a parking lot next to the barn. They issued a notice of violation.

(The Natural Resources Department estimated that the number of cattle going through the barn could generate up to 700 tons of manure every 120 days.)

Froman also missed the deadline to file a construction permit.

On July 7, the attorney general’s office filed a lawsuit against the sale barn.

In the meantime, Froman got federal engineers to design the required basin and berms for free. The cost to taxpayers was about $10,000 to $20,000, according to a rough estimate by government officials and engineering firms.

Officials with the National Resources Conservation Services, a branch of the U.S. Department of Agriculture, would not say why it agreed to do the work for Froman, even though he had been cited for pollution violations.

NRCS officials said they don’t have to provide information about deals they have with farmers.

Adding to Berten’s stress, her convenience store in Gallatin burned down.

Phil Tate, a former state representative who lives across from the sale barn, discussed Berten’s misfortune in a letter to the Natural Resources Department.

Tate complained about odors from the barn and expressed concern that Froman had a “dismal record by your own measures” of maintaining the facility.

“I would like to know what options exist if the plan is NOT successful,” Tate wrote.

Theft charges

New accusations about Froman hit the front pages of local newspapers in March 2009 — not for pollution, but for allegedly stealing $3 million from farmers through his granary business.

The case would be the second-largest grain theft in Missouri history. More than 100 farmers filed claims against the grain elevator firm. Froman soon got out of that business. He is awaiting trial on more than a dozen charges of theft.

Meanwhile, in December 2008, the Natural Resources Department gave Froman two months to construct the basin and berms. Work has been done but is not complete, according to department officials.

The Natural Resources Department recently issued more notices of violation. According to the notices, cattle had been in pens that were supposed to have been seeded to prevent manure from being carried off by storm water.

Department officials say they have used all the tools available under the law.

Inspectors made many trips to the sale barn over three years and wrote reports, letters and notices of violations. But officials say if the attorney general’s office does not act on those reports, they can do little else. The department does not have the authority to shut down the business, they said.

In Koster’s office, Assistant Attorney General Raymond Haight was assigned to the case. Haight also is handling the criminal charges against Froman.

Berten said she initially exchanged telephone calls and e-mails with Haight, but later he stopped answering her calls and e-mails.

In August 2009, Haight applied for a preliminary injunction against Froman and the barn.

Haight asked the court to order Froman to complete the work at the site and complete the basin within 30 days. He also asked that the judge order Froman to cease operations until construction was completed and until Froman had received an operating permit.

Since then, the Natural Resources Department has told the attorney general’s office that Froman has completed some of the work.

The injunction was never ordered, and officials in the attorney general’s office said they now are focused on the continuing lawsuit because they cannot agree with Froman over penalties, permit issues and additional work.

On March 31, Berten got a surprise: An e-mail and phone call from Haight.

Berten said it was the first time she had heard from him in almost a year. It also was one day after a reporter submitted written questions to the attorney general’s office about the sale barn. Haight told her that just that day he finally had gotten a trial scheduled for July 14.

Berten — who has filed a lawsuit against the sale barn but doesn’t have much money to fight it — says she is afraid that the state’s trial will just be continued.

Gonder, the spokeswoman for the attorney general’s office, said Haight was too busy to speak to a reporter.

“We stand by the way we have handled this case,” Gonder said. “Specific delays in the case were due to issues such as scheduling conflicts, a change of judge and weather problems.”

Big heart

At a cattle auction April 12, Froman’s friends and employees said the businessman was being maligned by some people in the community and the Natural Resources Department was harassing him.

“Danny’s got a big, big heart,” said Larry Beverlin, an employee. “He did have a little manure get away from the barn. You know manure does that.”

Julian Toney, a farmer who has known Froman most of his life, said Froman had been wronged. “He doesn’t aim to hurt anybody,” Toney said.

Beverlin and Toney said that without Froman and the sale barn, Gallatin would suffer.

“This is a hard economical area, as you can see,” Beverlin said. “This sale barn is strategically located — it is the fourth-largest sale barn in Missouri. The farmers depend on Danny to get a good price out of their cattle here at the sale.”

Berten said she never intended to close the sale barn, just to stop the pollution.

Her hopes rose in November, when David Colegrove, a special agent for the U.S. Agriculture Department, showed up at her door and told her he was investigating her situation.

“He was an important guy, and he had a badge as big as your fist,” Berten said. After she hadn’t heard from him for a while, Berten e-mailed Colegrove, who responded and said he “hadn’t forgotten her.”

When contacted by The Kansas City Star, Colegrove said he could not comment.

It was another bitter pill for Berten.

“All I want to know is one thing,” Berten said. “Why do you let this man get away with it?”

Berten isn’t the only one who misses the pond.

Anthony Jeffers, a 17-year-old neighbor, said he, his brother and his father had some of the best times of their lives there.

“We used to take the pontoon boat and catch catfish left and right,” Jeffers said. “Now we can’t because of the stupid sale barn.”

To reach Karen Dillon, call 816-234-4430 or send e-mail to kdillon@kcstar.com.

Read more: http://www.kansascity.com/2010/04/24/1900332/stagnant-government-stalls-quest.html#ixzz0n0n7DzpW    

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