Parties in a case appealing Arkansas Department of Environmental Quality-approved permit changes on a property in the Buffalo River watershed filed briefs this week.
The parties argued over whether Ellis Campbell needed a new permit when he asked the department to allow him to apply on his property up to 6.7 million gallons of hog manure from his cousin's farm.
A department permit that allows, among other things, the application of hog manure on land as fertilizer can be modified to apply only hog manure, the department and a landowner argued in their respective filings.
"There is nothing in Reg. 5 that requires a facility to void their current Reg. 5 permit and apply for a brand new Reg. 5 permit instead of simply modifying the current permit," attorneys for the department wrote in a brief filed Tuesday.
But Carol Bitting, who appealed a department-approved permit modification that allows a hog manure land application site in the Buffalo River watershed to accept outside waste, argued in a filing that a separate permit is required when a permittee plans to operate only a hog manure land application site.
"It is not for the participants in this proceeding to question the evidence that was before the [Pollution Control and Ecology] Commission when Regulation 5 was written, or to now question the wisdom of the clear wording of the parts of that Regulation relevant to this proceeding that clearly establish two separate permits for two different purposes," Richard Mays, Bitting's attorney, wrote in a filing submitted Tuesday.
The Arkansas Pollution Control and Ecology Commission creates the regulations that the department follows.
The filings argue over a permit that was modified by the department this summer at the request of Campbell, a cousin of Richard and Phillip Campbell of C&H Hog Farms in Mount Judea.
Ellis Campbell, owner of EC Farms, applied to have his environmental permit for a hog farm that applied the hogs' manure to the land as fertilizer modified to just a manure application operation that would allow him to apply up to 6.7 million gallons of waste that comes from C&H onto his land.
The land hadn't been used for hog farming or manure application since 2013, despite the permit remaining active. The department, which received numerous public comments opposed to the permit changes, approved the changes this summer.
C&H has been accused of posing a pollution risk to the Buffalo River because of its federally classified "large" size, although state-funded researchers are still monitoring the farm to see whether it has polluted at all and have so far released no definite finding. Bitting has been a staunch opponent of C&H's operations in the Buffalo River watershed.
A ruling in favor of Bitting would mean Campbell must apply for a new permit. A ruling in favor of Campbell would mean he can move forward with his operation.
After the department approved Campbell's permit change this summer, three women and the National Park Service appealed the decision to the department's administrative law judge, Charles Moulton. The women are Bitting, Nancy Haller and Lin Wellford. Bitting and Haller live in Newton County, and Wellford lives in Carroll County. The National Park Service eventually withdrew after failing to find counsel to represent it.
Moulton held a hearing Nov. 16 on the department's, Campbell's and the women's motions for summary judgment. At the end of the hearing, Moulton asked the parties to file briefs by Wednesday on the single issue of whether Campbell technically needed a new permit for his new venture.
Moulton denied the three women's motion for summary judgment last week and dismissed all other claims lodged by them, leaving only Bitting's claim that Campbell needed a new permit.
The Pollution Control and Ecology Commission rule cited in the dispute is Regulation 5's section 5.601, which states that a "separate permit may be issued for a land application site if the operator submits an application" meeting certain criteria. Moulton said Regulation 5, titled "Liquid Animal Waste Management Systems," appears to offer two different permits under its umbrella -- one for a hog farm and another for land application.
"The word 'separate' in Reg. 5.601 does not mean a different type or class of permit," department attorney Tracy Rothermel wrote in her filing. Terminating the permit and applying for a new one would be "duplicative and unnecessary when the activities and sites are already permitted," the filing reads.
Further, Rothermel wrote, "Reg. 5.601 states that a 'separate permit may be' obtained for land application sites only, but it does not state that one must be obtained."
Rothermel also noted the department did a similar modification for Tyson Foods in 2004.
Campbell's attorney, Bill Waddell, made a similar argument about the word "may" in his filing. He noted that EC Farms was already permitted to apply hog manure on its land and argued the changes to EC Farms' operations met department requirements for modifications, which are not limited to what is specified in the regulation.
But Mays argued that Regulation 5.102 outlines two types of permits for hog facilities subject to Regulation 5: one for "confined animal operations using liquid animal waste management systems" and one for "land application sites."
That means, Mays wrote, "the most logical reading of Regulation 5 as a whole is that a separate permit is required for land applications sites, and that a permit for a confined animal operation cannot be modified so that it is no longer a CAO permit, but a land application site permit."
Further, Mays argued, the word "may" in Reg. 5.601 doesn't mean the department has discretion over whether to require a separate permit. Mays cited a 1956 Arkansas Supreme Court case, Arkansas State Racing Commission v. Southland Racing Corp., in which the court sided with Southland Racing. In the case, Southland Racing argued that the commission's provision stating that it "may" issue a license when certain requirements were met meant that the commission must issue a license.
Mays cited other cases and argued that it is "well-established law in Arkansas that 'may' may frequently mean 'shall,' depending on the context of the statute or regulation, and the goal to be achieved by them."
Metro on 12/01/2016