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Back to Buffalo Regulatory rigmarole

08 Jul 2018 11:35 AM | Anonymous member (Administrator)

Back to Buffalo

Regulatory rigmarole

By Mike Masterson

Posted: July 8, 2018 at 1:50 a.m


Attorneys for C&H Hog Farms (badly misplaced in the Buffalo National River watershed) are herding every pig-in-a-poke possible toward the state's Pollution Control and Ecology Commission in hopes of overturning their client's Regulation 5 permit denial.


Without exploring the tedious specifics of their attempt, I'll consolidate by saying my understanding is factory lawyers are arguing that just because the Arkansas Department of Environmental Quality (cough) issued C&H a since-discontinued Regulation 6 general permit in 2012, that permit should continue pending issuance of an individual version of the federal pollution elimination discharge permit.


By that line of reasoning, the department's subsequently denying of C&H's 2016 application for a Regulation 5 permit wasn't sufficient to terminate the factory's authority to operate. Huh?


Asked about that argument, attorney Richard Mays of the Buffalo River Watershed Alliance said, "There's no valid factual or legal basis for these arguments. Instead, they are designed to detract from the undisputed basic fact that, before ADEQ determined not to reissue its Regulation 6 general permit, C&H voluntarily elected to apply for coverage under a Regulation 5--not a Regulation 6."


The resulting evaluation process dragged on from April 7, 2016, to Jan. 10, 2018. And the agency's eventual denial led to C&H's ongoing appeal of that rejection.


"It was only after ADEQ denied C&H's Regulation 5 application that C&H conjured up its novel theory that a Regulation 6 general permit had to be replaced by a Regulation 6 individual permit and that ADEQ denying its Regulation 5 permit did not terminate its original coverage under the Regulation 6 general permit," Mays added.


Get all that regulatory rigmarole? The posturing gets confusing even to lawyers who write it.


Mays tried clarifying further: On April 7, 2016, C&H (operating on its original Regulation 6 general permit) applied for an individual permit under Regulation 5 which, unlike Regulation 6, is a state- rather than EPA-sanctioned pollution discharge permit with no expiration date. Such permits also likely are not subject to most citizen lawsuits.


"Then, two weeks later on April 20, 2016, C&H also filed a notice of intent to continue its coverage under the Regulation 6 general permit. However, ADEQ decided not to renew that general permit program," Mays said. "On May 3, 2016, [the agency] notified C&H it was considering C&H's application for a Regulation 5 permit to replace the factory's Regulation 6 general permit. C&H did not object, or appeal, the non-renewal of [its] Regulation 6 general permit."


Between April 7, 2016, when C&H applied for the Regulation 5 permit and Jan. 11, 2018, when the Department of Environmental Quality ultimately denied it, the department processed its application, issued an initial notice of intent to issue the permit (pending public comment), and received and analyzed some 20,000 public comments. C&H appealed that denial to the full commission, which initiated a hearing before the commission's Administrative Law Judge Charles Moulton.


"Yet at no time during that process did C&H raise any issues about continuing its coverage under the Regulation 6 general permit," said Mays.


In its appeal before Moulton, C&H raised numerous issues. One argument was that it is entitled, under various statutes and regulations, to continued coverage of its original general permit until an individual permit is issued. They claimed the denial of a Regulation 5 permit doesn't affect C&H's right to continue operating.


"In other words, C&H is arguing it cannot be closed down, and that ADEQ's permit denial is not even an option," said Mays. "In my opinion, it's a ludicrous argument arising from desperation. ADEQ and the intervenors (Watershed Alliance, Canoe Club, Ozark Society, etc.) all do not agree."


In response to the agency's motion to dismiss these matters, C&H also argued that, in having denied it the Regulation 5 permit, the agency was obligated to publish a public notice of its intent to deny that permit and solicit comment (just as it was obligated to and did publish an initial notice of intent to grant the permit).


Judge Moulton agreed with C&H on that point, and factory attorneys have filed a motion for summary judgment so it can ask the commission to remand the matter to the Department of Environmental Quality for that public notice and comments on the denial. That motion rests with Moulton. Meanwhile, the agency has been citing related cases in hopes of changing his decision.


Should Moulton stick with his original decision on the department giving public notice of its denial, I believe any instructions should be for the limited purpose of publication of the notice of intent to deny the Regulation 5 permit, not for agency reconsideration of its actual denial. I'm pleased to see Moulton made it clear he wasn't rendering an opinion on the validity of the permit denial--only on the agency's failure to publish a notice of intent to deny and comments.


I need a buffered powder. Please don't make me try to explain all this again.

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