By Emily Walkenhorst

Posted: February 4, 2018 at 4:30 a.m.

The Arkansas Department of Environmental Quality denied C&H Hog Farms an operating permit in part because the company did not conduct a study on the flow direction of groundwater or develop an emergency action plan, according to the department's responses to public comments on the permit application.

The department stated in a response to Comment 352 by Marti Olesen, a C&H opponent, that a groundwater flow study is recommended in the Agricultural Waste Management Field Handbook, Chapter 7. Chapter 2 of the handbook recommends an emergency action plan.

The department determined that both were necessary "due to the specific siting of this facility," according to its response to Olesen's comment.

Along with its final permit decision issued last month, the department responded to more than 17,000 public comments by narrowing them to 443 separate comments and responding to them in 422 pages published on its website.

The Arkansas Democrat-Gazette reviewed those comments and responses, and found little detail on the department's decision to deny the permit. Also found were numerous instances where the department defended its initial permitting decision in favor of the hog farm against commenters who believed state regulations should have been more strict or more stringently applied.

The department also defended itself against data that showed increases in nitrates in a well on the farm and nearby waters as not being significant differences or unexpected for a watershed of its type.

C&H, owned by Jason Henson, Philip Campbell and Richard Campbell, is near Mount Judea in Newton County. It's located in the Buffalo River watershed, along Big Creek, about 6 miles from where the creek feeds into the Buffalo. The farm has a permit to house 6,503 hogs at any given time, and includes two storage ponds for hog manure and fields where hog manure is spread as fertilizer.

Opponents of the farm argue that the rocky terrain makes operation of a large hog farm an unsuitable use for the land, and poses a risk to the river and groundwater by way of cracks below the surface.

C&H has been operating on an indefinite extension of its expired permit.

The department denied the farm's application for a new permit Jan. 10, but the Arkansas Pollution Control and Ecology Commission issued a stay of that decision Jan. 17.

The farm's owners appealed the department's decision, saying the department never informed them that they needed the information the department later said was lacking.

The stay will continue until the appeal process concludes. The Arkansas Pollution Control and Ecology Commission is scheduled to hold a preliminary hearing on the appeal via teleconference Tuesday.

The hog manure stored in the farm's storage ponds and sprayed onto nearby land is rich in nitrates and phosphorus -- nutrients that in too high of amounts in water can cause algae to grow and harm fish by reducing oxygen levels.

The groundwater flow study would have tracked the way water would have flowed from C&H's property.

Chapter 7 of the handbook states that karst areas, characterized by limestone and other rocks, can be problematic because they are permeable and allow the potential for groundwater contamination and sinkholes.

"As such, its recognition is important in determining potential siting problems," the chapter's topography section reads.

Chapter 2 mentions the "emergency action plan" once, stating "development of an emergency action plan should be considered for waste impoundments where there is potential for significant impact from breach or accidental release."

The department also noted that the farm's geologic investigation of the hog manure storage ponds, which would have identified the conditions affecting the ponds, did not comply with the handbook's Chapter 7 recommendations for such studies.

The Buffalo River Watershed Alliance contended that the inspection should have involved six bore holes in the ground examining the terrain, as recommended in the handbook, but noted that it included only three. The department did not explain why it believed the geologic investigation did not comply with the handbook.

The compaction test and permeability analysis also did not comply with the handbook's Chapter 10 recommendations, the department said in its response to comments.

Compaction refers to how pressed together soils are. It's tested to determine how easy it is for liquids to filter through soil. Permeability refers to how easily materials, such as water, can filter through soil.

The Buffalo River Watershed Alliance argued that the compaction test was poor because it used only one sample. The group also argued that the permeability analysis for the hog manure pond liners was deficient because it didn't include particle analysis, which would have examined the elements of the soil and how fine the particles were. The department did not explain why it believed either test was incomplete.

In addition to contending that it hadn't been asked for information that the department now says it needs, C&H asserts in its appeal that the department approved the farm's previous permit under nearly identical conditions, meaning that it previously considered the farm in compliance with the handbook under nearly identical conditions.

The handbook, along with the Field Office Technical Guide, is a publication of the U.S. Department of Agriculture's Natural Resource Conservation Service. Department Regulation 5.402 requires facility designs and waste management plants to company with the publications. C&H sought a Regulation 5 permit, which includes that requirement.

Bill Waddell, an attorney representing C&H, said last week that he could not discuss the department's responses to comments with the Arkansas Democrat-Gazette, citing the ongoing appeal process.

The Buffalo River Watershed Alliance, the Arkansas Canoe Club, the Ozark Society and three of its members have filed motions to intervene.

Gov. Asa Hutchinson met Thursday with agricultural leaders about C&H's permit denial, according to a news release from the Arkansas Agriculture Department, and said he believed the farmers should be able to supplement their application with any previously missing or incomplete information.

C&H applied in 2016 to continue operating under a no-discharge Regulation 5 permit, as opposed to a Regulation 6 permit that allowed the farm to discharge even though the farmers said they would not. In the application, C&H also asked to slightly modify its operations by increasing the number of sows it's allowed to house and decreasing the number of piglets. The farmers also asked to increase the number of fields where they are allowed to spray hog manure as fertilizer.

The department spent 643 days reviewing C&H's application and responding to the comments made on it.

The comments were often repetitive in nature, and the department frequently responded to comments with short, stock paragraphs that were repeated numerous times.

For example, the department responded to all of the baker's dozen Arkansas Farm Bureau comments with statements that were a repeat of responses previously given. Most of them simply declared that the department had made its decision based on the stipulations of Regulation 5, the regulation under which C&H had applied for a new operating permit.

Comments varied in legal references, technical expertise, tempered concern, emotional pleadings and fiery criticism. One commenter asked not only that the department relocate the farm but also force former department director Teresa Marks, whose administration approved C&H's original permit, to live near a hog farm and apologize to current department employees.

The majority of comments opposed C&H, but many were from supporters who asserted that C&H, under intense scrutiny since it first opened, has implemented more environmental safeguards than required and has become a model hog farm for the rest of the state.

Many comments did not address regulations specifically, and some served as a means of interviewing the department about its work and provided suggestions.

Few of the department's responses indicate why the department denied the permit, and many responses defended the hog farm for being in compliance with regulations where many commenters had accused it of not being in compliance.

The Ozark Society and numerous other commenters cited data that they believed showed increases in nitrates and E. coli in Big Creek and worsening dissolved oxygen levels in Big Creek. The department stated repeatedly that data did not show significant increases or conditions in the watershed that were incompatible with other watersheds.

David Peterson, president of the Ozark Society, said that while the department was correct in denying the permit, it still did not see what he and others say about the risk from C&H.

"That's what they can't seem to do," he said.

Many comments and their responses continued to highlight the difference between the concerns many hog farm opponents have and regulations that don't address them.

For instance, dozens of commenters expressed concern about hog manure being applied as fertilizer on the karst terrain of the Buffalo's watershed, but the department continually responded by noting that department regulations don't prohibit spreading manure on karst land.

Many also said they wanted C&H's new permit, if granted, to have an expiration date so the farm's permit can continue to be reviewed every few years. But Regulation 5, unlike the Regulation 6 permit C&H previously operated under, doesn't have such expiration dates.

Many commenters also noted concern that the department was not upholding Clean Water Act requirements to prevent Extraordinary Resource Waters like the Buffalo River from degrading. Many commenters added that the department did not have a plan to implement the anti-degradation requirement.

The department stated repeatedly that it had an anti-degradation implementation plan, in spite of years of the U.S. Environmental Protection Agency asserting that the department does not.

Metro on 02/04/2018