An Iowa House member suggested last week that the state Environmental Protection Commission went “beyond the intent of the law” by calling a closed session to discuss a decision related to a hog lot expansion in Poweshiek County. However, a spokesperson for the Iowa Attorney General’s Office suggested that a “contested administrative law case that involves legal briefs, hearings, decisions, appeals” qualifies as a circumstance permitting a closed session under the Iowa Code.

Last week’s closed meeting stemmed from a dispute over Prestage Farms of Iowa LLC’s attempt to expand a Poweshiek County hog lot from 5,000 to 10,000 animals. In June, the Poweshiek County Board of Supervisors asked the Environmental Protection Commission to overturn the Iowa Department of Natural Resources’ preliminary decision to grant a permit for this expansion. This pdf file contains the Poweshiek supervisors’ appeal to the Environmental Protection Commission and supporting evidence. Excerpt:

The Master Matrix submitted as part of the Construction Permit Application for the expansion of PI-301 received a score of 440 points, which is the minimum number of points considered passing. The Master Matrix evaluation conducted by the Poweshiek County Board of Supervisors subsequent to its conditional approval and after learning of the possible inaccuracies in the initial completion of the Master matrix revealed that the Master Matrix score should have been reduced by 120 points for inaccurate and/or incomplete information provided in items 3 (15 points reduction), 12 (30 point reduction), 15 (20 point reduction), 17 (30 point reduction), and 25 (25 point reduction). Therefore, the Master Matrix score for Prestage Farms of Iowa, Site PI-301 Construction Permit Application should be 320 points, which falls below the minimum allowable score. Based upon this evaluation, issuance of a Construction Permit for this particular site is contrary to Iowa Code Section 459 and 567 IAC Chapter 65. Additionally, issuance of the permit is contrary to the interests of several members of the general population of Poweshiek County as set forth by the public comment and information received by the Poweshiek County Board of Supervisors in conjuction with review of this Construction Permit Application and the Construction Permit Application for Prestage Farms of Iowa PI-244. […] Based upon the information presented in this statement, the Poweshiek County Board of Supervisors respectfully requests that the Commission overturn IDNR’s preliminary decision to grant a construction permit to Prestage Farms of Iowa for Site PI-301.

Click here for the chapter of Iowa Code pertaining to “Master Matrix” scores as part of the permitting process for confined animal feeding operations. Here’s an excerpt from Iowa Code 459.304 (5):

        5. a.  The [Department of Natural Resources] shall approve an application for a

     construction permit if the board of supervisors which has filed a

     county construction evaluation resolution submits an adopted

     recommendation to approve the construction permit application which

     may be based on a satisfactory rating produced by the master matrix

     to the department and the department determines that the application

     meets the requirements of this chapter.  The department shall

     disapprove an application that does not satisfy the requirements of

     this chapter regardless of the adopted recommendation of the board.

     The department shall consider any timely filed comments made by the

     board as provided in this section to determine if an application

     meets the requirements of this chapter.

        b.  If the board submits to the department an adopted

     recommendation to disapprove an application for a construction permit

     that is based on a rating produced by the master matrix, the

     department shall first determine if the application meets the

     requirements of this chapter as provided in section 459.103.  The

     department shall disapprove an application that does not satisfy the

     requirements of this chapter regardless of any result produced by

     using the master matrix.  If the application meets the requirements

     of this chapter, the department shall conduct an independent

     evaluation of the application using the master matrix.  The

     department shall approve the application if it achieves a

     satisfactory rating according to the department’s evaluation.  The

     department shall disapprove the application if it produces an

     unsatisfactory rating regardless of whether the application satisfies

     the requirements of this chapter.  The department shall consider any

     timely filed comments made by the board as provided in this section

     to determine if an application meets the requirements of this

     chapter.

The state Environmental Protection Commission considered Poweshiek County’s appeal during its public meeting on July 17. According to a statement released by the non-profit organization Iowa Citizens for Community Improvement, “The case is the first of its kind before the EPC since Governor Terry Branstad was re-elected in 2010.” An Iowa CCI board member from Poweshiek County, Jim Yungclas, argued, “Our case is very strong because it’s built on years of precedent. If the EPC denies our petition they will be rolling back a long history of established case rulings.” Iowa CCI urged Environmental Protection Commission member Brent Rastetter “to recuse himself from the vote because as the CEO of Quality Ag, Inc, he builds factory farm barns and manure pits for a living.” (Last year Iowa CCI filed an ethics complaint against Rastetter’s service on the commission, but a state board rejected that complaint.)

Rastetter ignored the request to recuse himself from considering the Poweshiek County matter. After hearing presentations from representatives of Poweshiek County, the Iowa DNR, and Prestage Farms, all nine Environmental Protection Commission members voted on July 17 to affirm the DNR’s notice of intent to issue a permit for Prestage Farms PI-301 site. Commissioners did not evaluate whether the farm’s master matrix score was below the allowable level. Rather, they concluded that Poweshiek County had mistakenly approved the permit application in a May 7 letter to the Iowa DNR. By the time the county board of supervisors submitted their June 12 letter urging the Environmental Protection Commission to overturn DNR, the time for submitting such comments had expired.

In other words, the Environmental Protection Commission did not examine whether the Prestage Farms proposal met the legal requirements for getting a CAFO expansion approved. Rather, the Prestage Farms plan skates on a technicality: Iowa Code 459: 304 (4) states, “The department must receive the county board of supervisor’s comments or evaluation for approval or disapproval of an application for a construction permit not later than thirty days following the applicant’s delivery of the application to the department.”

Iowa CCI blasted the commission’s “astonishing cop-out and evasion of responsibility.” While I am inclined to agree, for the purposes of this post I’m more interested in the commissioners’ decision to discuss their Prestage Farms vote in closed session on July 26.

State Representative Chuck Isenhart, a Dubuque Democrat, who is ranking member on the Iowa House Environmental Protection Committee, expressed concern about that closed meeting in this statement on July 25.

From what I can tell, the Environmental Protection Commission is operating beyond the intent of the law by going into closed session to discuss its decisions related to animal feeding operations and other matters over which it has jurisdiction.

Tomorrow’s special telephone meeting is a case a point – a simple request from a group asking the Commission to document a previous decision. The agenda says the Commission will be going into closed session to discuss the request. The decision which the group wants documented is one that the Commission reached in a previous closed meeting last week.

Apparently, the attorney general has been advising state agencies that, if its decisions may be appealed to the courts, then the state agency can talk about those decisions in secret. My reading of the statute suggests that is a wild overreach. The state code says that a meeting can be closed if the matter to be discussed is presently in litigation or if litigation is “imminent.” It says nothing about closing a meeting simply because the general process includes the possibility of judicial review down the road. That’s a door anyone can drive an 18-wheeler through.

Unless someone in the current case has threatened to sue, then I see no reason why the public, much less the stakeholders, should be shut out of the discussions.

While I am not familiar with the specific details of the current case, a Poweshiek County hog lot, it should surprise no one that participants will have a hard time accepting a decision or feeling like they got a fair shake if the process is not open, or if the decision by the state agency is not documented or otherwise explained. As a former newspaper reporter, it should come as no surprise that I also believe that the public has a right to know.

Whether a board or commission must provide written decisions and findings of fact to petitioners or the public is a question I have raised with the attorney general in other circumstances. I expect those talks to continue between now and next session. Boards and commissions need better guidance, better rules or, if need be, better legislation if the public interest is to be served.

Bottom line, the Legislature has been talking about openness, accountability and transparency for a long time. The Environmental Protection Commission and attorney general haven’t been paying attention if they believe that closing government doors to the public is an acceptable routine.

State Rep. Chuck Isenhart, Dubuque

Ranking member, House Environmental Protection Committee

I sought comment from Geoff Greenwood, communications director for the Iowa Attorney General’s Office. First, I wanted to know whether Isenhart had accurately paraphrased the advice the AG’s office is giving state agencies. Greenwood replied, “We cannot disclose advice we give to client agencies, as that is protected under attorney-client privilege.” Regarding closed meetings and sessions, Greenwood commented,

Generally, if there is a contested administrative law case that involves legal briefs, hearings, decisions, appeals-all of which are subject to further judicial review-we regard that as litigation.  And public bodies may, under the law, discuss matters subject to litigation in closed session.

I asked which part of Iowa Code supports such a broad exception to the open meetings rules.  Couldn’t any decision by any government body conceivably be subject to future litigation? Greenwood responded,

The Iowa Code chapter is 21.5:  …A governmental body may hold a closed session only to the extent a closed session is necessary for any of the following reasons:

c.  To discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where it’s disclosure would be likely to prejudice or disadvantage the position of the governmental body in that litigation.

To answer your second question, while it may be conceivable that any decision by any government body could be subject to future litigation, the Iowa Code allows for closed sessions only in narrow circumstances, including matters subject to litigation.  In this case the Environmental Protection Commission, a decision-making body, was considering matters involving adverse parties in a construction permit case.  That is litigation.

I’m not an attorney, but I’ve always understood “litigation” to mean that a lawsuit has been filed or is about to be filed in court, rather than an appeal of an administrative decision using the administrative process. I asked Greenwood whether there is a part of the Iowa Code that defines litigation more broadly.

I’m not aware of an express definition.

Along the lines of what I said previously, here there were adverse parties briefing issues before the EPC, which is an agency decision maker.  We believe these elements fit the statutory grounds for the Commission to close the session to discuss strategy with its legal counsel before making a decision.

This legal dictionary defines litigation as follows:

An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.

UPDATE: Black’s Law Dictionary defines “litigation” as “1. The process of carrying on a lawsuit. 2. A lawsuit itself.”

I wouldn’t be surprised if one or more parties do file suit to prevent Prestage Farms from expanding this particular operation, but that hasn’t happened yet.

Greenwood provided a copy of the Environmental Protection Commission’s final decision on this matter, issued after the July 26 closed meeting by telephone. Excerpt:

Poweshiek County conceded that it had made a mistake by approving of the Master Matrix submitted by Prestage Farms in a letter to the Department dated May 7, 2012 (“After review we agree with the DNR Master Matrix scoring, but have concerns that stem from our public hearing…”) […] Both Prestage Farms and the Department stated that the EPC had no authority to now review this matter because Poweshiek County had approved the Master Matrix as submitted by Prestage Farms and the time had expired for the county to submit additional comments. […]

Motion was made by Commissioner Boote to affirm the Department’s Notice of Intent to Issue a Permit for PI-301 Site Poweshiek County, Facility ID #65294, which was seconded by Commissioner Greiman. The motion passed unanimously (9 to 0).

On July 26, 2012, the EPC held a specially scheduled telephonic meeting regarding this matter. Motion was made by Commissioner Boote to amend the EPC’s July 17, 2012 decision to affirm the Notice of Intent to Issue a Permit for PI-301 Site Poweshiek County, Facility ID #65294, by stating that the grounds for the EPC’s decision were that all statutory and rule provisions were satisfied for issuance of the permit; that Poweshiek County had approved the Master Matrix, thereby waiving its right to subsequently object to the Master Matrix scoring; and that the EPC was without authority to hear Poweshiek County’s subsequent and untimely objections to the Master Matrix scoring. The motion was seconded by Commissioner Couser and passed unanimously (8 to 0).

Sounds like the commissioners were concerned that they hadn’t provided enough legal justification for punting on this issue during their July 17 meeting. The Master Matrix scoring system was ostensibly designed to protect the public by making sure that CAFO expansions do not encroach too closely on non-agricultural businesses. The mission of the Environmental Protection Commission is to “provide policy oversight over Iowa’s environmental protection efforts,” not look for technicalities to avoid protecting the environment.

Any relevant comments are welcome in this thread.