Buffalo River Watershed Alliance
By Bill Bowden
Posted: January 20, 2018 at 4:30 a.m.
NWAOnline
The attorney for a Newton County hog farm has filed an appeal of the state's decision to deny the farm's permit to continue operating.
William Waddell of Little Rock filed the appeal Thursday on behalf of C&H Hog Farms, arguing that the Arkansas Department of Environmental Quality denied the permit because C&H didn't provide information that it was never asked to provide.
Waddell wrote that the department's decision was "arbitrary, capricious, not in accordance with state and federal law, in violation of the Arkansas and United States Constitution, and not supported by generally accepted scientific and engineering knowledge and practices."
Waddell wants the opportunity to present evidence and make an oral argument before the Arkansas Pollution Control and Ecology Commission, which is the appellate body of the state's Environmental Quality Department.
C&H owns and operates a concentrated animal feeding operation in Mount Judea. C&H has about 6,500 pigs at its farm near Big Creek, a tributary of the Buffalo National River.
The Buffalo River, administered by the National Park Service, encompasses 135 miles of the 150-mile-long river, which traverses Newton, Searcy and Marion counties before flowing into the White River just inside the Baxter County line.
The national park attracted nearly 1.8 million visitors in 2016.
Concerns for the Buffalo River have galvanized opposition to the farm. Opponents fear that pig manure stored in pits or spread on land could pollute the scenic, free-flowing river that's popular with floaters, fishermen, hikers and campers.
C&H had until Feb. 10 to file the appeal after the Jan. 10 denial of the farm's application for renewal of its operating permit in the Buffalo River watershed.
The department stated in its permit denial that it did not have sufficient information to ensure compliance with Regulation 5.402, which sets out the design and waste management systems as described in a technical guide and the Agricultural Waste Management Field Handbook, both published by the U.S. Department of Agriculture Natural Resources Conservation Service.
After a hearing Wednesday in Little Rock, the commission issued a stay in the case. C&H can continue operating until the appeal process is concluded.
Attorneys for the farmers argued that the stay should be granted on the grounds that failure to grant it would close the farm and cause irreparable harm to the farmers' livelihoods.
C&H is owned by Jason Henson and his cousins Phillip Campbell and Richard Campbell.
Opponents of the farm argued that the stay couldn't be legally granted when the permit is not under review.
The department didn't take a position at the hearing.
Henson didn't return a telephone call Friday seeking comment about the appeal, and Waddell said he wasn't authorized to discuss it.
In the appeal, Waddell listed four "issues" with the permit denial:
• Issue 1: Denial of the permit wasn't an option because C&H had submitted a timely and complete application for renewal of its Regulation 6 permit. Regulation 6 pertains to state administration of the National Pollutant Discharge Elimination System.
Two weeks after C&H applied April 20, 2016, to renew its Regulation 6 permit, the state decided to stop issuing those permits. They were set to expire Oct. 31, 2016.
"The department made the decision not to renew this general permit after an extensive review of all comments received during the public comment period," Becky W. Keogh, director of the Environmental Quality Department, wrote in a notification May 4, 2016. "Only one facility had received coverage during the five-year term of the general permit. ADEQ determined such limited use was inconsistent with the intent of a general permit and, thus, did not warrant renewal."
According to the U.S. Environmental Protection Agency, individual permits are written to reflect site-specific conditions of a single discharger, whereas a general permit is written to cover multiple dischargers with similar operations and types of discharges.
"Individual permits are issued directly to an individual discharger whereas a general permit is issued to no one in particular with multiple dischargers obtaining coverage under that general permit after it is issued," according to the agency.
Earlier, on April 7, 2016, C&H also applied for a no-discharge permit under the commission's Regulation 5.
The purpose of Regulation 5 is to establish the minimum qualifications, standards and procedures to issue permits for confined animal operations that use liquid animal waste management systems and to issue permits for land application sites within the state, according to the regulation.
After the department's decision to stop issuing Regulation 6 permits, it returned C&H's Regulation 6 permit application and told the company it would be considered for a Regulation 5 permit instead, Waddell wrote.
On Feb. 15, 2017, the department issued C&H a draft permit under Regulation 5. The comment period on the draft permit ended April 6, 2017.
"Following the close of the comment period, ADEQ requested C&H to provide additional information, and by Dec. 29, 2017, ADEQ confirmed that all requested additional information had been submitted and received," Waddell wrote.
The department denied the final permit Jan. 10.
• Issue 2: The department failed to provide public notice of its proposed decision and an opportunity for comment before denying the permit, according to the appeal.
• Issue 3: The permit denial was arbitrary, capricious and the department shouldn't be allowed to deny the permit for the reasons it stated, Waddell wrote.
"Within days of issuing the permit decision, ADEQ represented that it had all of the additional information it required, and without providing any notice or an opportunity to respond, ADEQ denied the permit for the purported reason that information was lacking," according to the appeal.
The decision should be reversed and C&H should be allowed to provide the additional information required, Waddell wrote.
• Issue 4: Statements made in the department's response to comments shouldn't be considered in the appeal and were inappropriate to support the permit denial, Waddell wrote.
Responses to some commenters provided "vague" references to information that was lacking in the permit application, including a groundwater flow study and geologic investigation of the waste storage ponds and berms, Waddell wrote.
"None of the responses to comments makes any substantive findings on any of these issues, but rather states that adequate information has not been presented," according to the appeal.
In some cases, the responses transformed recommendations in the Agricultural Waste Management Field Handbook into "requirements that were not communicated to C&H before the denial of the permit application," Waddell wrote.
C&H Hog Farms' original permit, granted in 2014, was never appealed to the commission because no one who opposed it submitted any public comments. Appeals must be based on issues raised in public comments that a commenter believes were not adequately addressed in the final permit decision.
Many opponents of C&H have said they didn't comment on the original permit because they didn't know about it, noting that notice of the permit application was required to be posted only on the department's website rather than in a newspaper, as is required of other permits.
Metro on 01/20/2018
Listen here: Arkansas Public Media
Controversial C&H Hog Farm Gets A Favorable Hearing, Still Faces Steep Permit Denial Appeal
By BOBBY AMPEZZAN
The Arkansas Pollution Control and Ecology Commission’s unanimous vote today not to enforce any immediate action following a decision earlier this month to deny C&H Hog Farm an operating permit was a win for the beleaguered and controversial swine operation, but a slight and temporary one.
The Arkansas Department of Environmental Quality announced on Jan. 11 its decision to deny the permit after more than 21 months. The hog operation has been operating on a lapsed permit until now.
The commission voted unanimously — with one member, Dr. Gary Wheeler, abstaining — not to actively enforce the permit denial until an appeal of the decision can be heard, though to date C&H hasn’t filed any appeal, a fact that administrative law judge Charles Moulton repeated often.
The hog farm supplies JBS U.S.A., a global meat processing company, hogs for pork processing. It’s lapsed permit capped the number of piglets at 4,000 and sows at about 2,500. The new permit sought to bump the number of sows and piglets and add boars. It estimated that animal waste ponds at the facility might hold more than 2.3 million gallons of manure.
The department denied the permit on the grounds that the application lacked critical information, specifically, “the requisite geological, geotechnical, groundwater, soils, structural, and testing information specified in Reg. 5.402” and “required by the Agricultural Waste Management Field Handbook.”
Following the vote, farm co-owner Jason Henson – the H in C&H – called the whole matter unfair.
“This is a very serious matter to us. I mean this is — we feel we’re being treated unfairly, and the stay to let us prove our innocence in court is all we were asking for.”
In fact, the appeals process does not entertain or adjudicate “innocence,” and lawyer Richard Mays, an opponent of the farm’s original permit and its new application, said reversing the agency’s denial is a tall order.
“They’re in a very difficult position right now. The agency has denied the permit. It is a decision that basically depends upon the expertise and judgement of the agency, and these appeals are going to have to throw into question whether the agency abused that discretion. That’s a very high standard.”
Mays, who represents the Buffalo River Watershed Alliance, denied that the commission’s unanimous vote gave the farm any “momentum” going into the appeals process, if they appeal, but he did say the vote today felt “equitable.” It permits the business to continue to operate, which is important to the livelihoods of many at the hearing.
But it doesn’t reverse the agency’s ultimate decision.
Henson and many others, from the state farm bureau to the pork producer JBS U.S.A., spoke on behalf of the farm. Lots of opponents were there too, saying that waste runoff from the farm demonstrably damages the water quality of the Buffalo River.
The farm and its advocates have until Feb. 10 to file an appeal. Administrative law judge Charles Moulton said that, if it’s denied or no appeal is filed, the next step would be for the farm to make a closure plan and turn it into the state.
This story is produced by Arkansas Public Media. What's that? APM is a nonprofit journalism project for all of Arkansas and a collaboration among public media in the state. We're funded in part through a grant from the Corporation for Public Broadcasting, with the support of partner stations KUAR, KUAF, KASU and KTXK. And, we hope, from you! You can learn more and support Arkansas Public Media's reporting at arkansaspublicmedia.org. Arkansas Public Media is Natural State news with context.
By Emily Walkenhorst
Posted: January 18, 2018 at 3:51 a.m. Updated: January 18, 2018 at 3:51 a.m.
The Arkansas Pollution Control and Ecology Commission issued on Wednesday a stay of the Arkansas Department of Environmental Quality's decision to deny C&H Hog Farms' application to continue operating in the Buffalo National River's watershed.
Operators of the farm with its 6,503 pigs on Big Creek must appeal the department's decision by Feb. 10 to maintain the stay. If the farmers do so, the stay would continue until the appeal process concludes.
Attorneys for the farmers argued Wednesday at a hearing that the stay should be granted on the grounds that failure to grant it would close the farm and cause irreparable harm to the farmers' livelihoods.
Opponents of the farm argued that the stay could not be legally granted when the permit is not under review.
The department did not take a position at the hearing.
C&H Hog Farms operates on the Buffalo River's fifth-largest tributary -- Big Creek -- 6 miles from where it enters the Buffalo River. Concerns for the river, which attracted nearly 1.8 million visitors in 2016, have galvanized opposition to the farm.Its detractors fear that pig manure stored in pits or spread on land will pollute the scenic, free-flowing river popular with floaters, fishermen, hikers and campers.
"We feel that we've been treated unfairly, and we hope this will give us an opportunity to bring that to light," said Jason Henson, a co-owner of C&H Hog Farms.
Henson owns the farm with his cousins Richard Campbell and Phillip Campbell on family land near Mount Judea in Newton County.
Opponents of the hog farm said they were not surprised by the commission's decision but were nonetheless frustrated.
"I'm disappointed on behalf of the Buffalo River," said Brian Thompson, a board member on the Buffalo River Watershed Alliance, which had filed a motion to deny the farm's request for a stay. The alliance formed in 2013 to oppose the hog farm.
The Pollution Control and Ecology Commission is the Arkansas Department of Environmental Quality's appellate body. The department approves and denies permits and permit modifications, and its decisions can be appealed to the commission.
C&H Hog Farms' original permit was never appealed to the commission because no one who opposed it submitted any public comments. Appeals must be based on issues raised in public comments that a commenter believes were not adequately addressed in the final permit decision.
Many opponents of C&H have said they did not comment on the original permit because they did not know about it, noting that notice of the permit application was only required to be posted on the department's website rather than in a newspaper, as is required of other permits.
If the commission had not approved a stay Wednesday, the department would have asked C&H to submit plans to close and clean up its operations.
During the nearly two-hour hearing on the motion Wednesday, attorneys and commissioners debated whether the farm could request the stay at all, given that its attorneys had not filed an appeal of the department's decision.
Department regulations stipulate that the commission may not issue a stay on a permit denial while the permit is under review unless under "appropriate circumstances to avoid substantial prejudice to any party."
"At this point there is no review," Buffalo River Watershed Alliance attorney Richard Mays said.
"It's not appropriate. It's not timely to decide whether to stay a decision that's not even before you," Mays continued.
C&H attorney Bill Waddell said he had not yet filed an appeal because it was unclear to him and his clients why the department had rejected the application.
The department stated in its permit denial that it did not have sufficient information to ensure compliance with Regulation 5.402, which sets out the design and waste management systems as described in a technical guide and a federal handbook that is published by the U.S. Department of Agriculture Natural Resource Conservation Service.
But Waddell stated repeatedly that he and his clients had reached out to the department to ensure it had all the information it needed.
The commission's administrative law judge, Charles Moulton, cut off Waddell, stating that the question at hand Wednesday was whether a stay should be approved, not whether the denial was appropriate.
Mays also argued that C&H's attorneys had provided no documentation explaining the damage they would face if they were forced to shut down.
If shut down, Waddell said, C&H would lose its pigs via breach of contract with hog supplier JBS Live Pork and would have to buy them back if they were able to restart in the future.
"It would be another eight to nine months from today before they could get back into an income producing or income stream," Waddell said.
The commission heard 10 public comments Wednesday, including five from C&H supporters who expressed concern that not getting a stay would force the owners of C&H to lose their livelihoods.
"We're going to lose everything if you don't grant me this stay. That's the way it is," Henson said. "JBS will pull their hogs out immediately, there's no ifs ands or buts about this. This is our livelihood that you're fiddling with here."
Jerry Masters, executive vice president of Arkansas Pork Producers Association, and others noted that the department and the U.S. Environmental Protection Agency had not found any environmental violations.
"These folks are the gold standard of what we need from pork producers in Arkansas," Masters said.
Other supporters argued that data collection done by University of Arkansas, Fayetteville researchers and a drilling project conducted in 2016 found no causes for concern.
But opponents of C&H cited different data in arguing the opposite. U.S. Geological Survey data show a lack of dissolved oxygen in recent years in Big Creek downstream of C&H, they said. Low dissolved oxygen can harm aquatic life and be a precursor to algae.
Opponents said said they fear an incremental degradation of Big Creek and the Buffalo National River if the farm continues to operate.
Thompson of the watershed alliance argued that the farm never should have been built in the first place, according to the technical guide and field handbook, which recommend finding a waste management system other than C&H's holding ponds if porous karst terrain is found 5 feet below the bottom of a holding pond. In the case of C&H, karst was detected in the drilling study to be above that level, Thompson said.
"In other words, it's saying that this thing shouldn't have even been built there," Thompson told the commission. C&H poses a continued risk, he said.
Moulton told commissioners that he thought they had three options on C&H's request. They could deny the stay by citing a lack of jurisdiction because no appeal had been filed; they could approve the stay to last only the duration of the period in which C&H can appeal; or they could initiate their own review of the permit in the absence of an appeal, triggering the public notice of the review to the more than 10,000 permit commenters.
He called the dilemma the "quintessential unorthodox situation." He said he wasn't aware of any legal precedent for the situation.
Commissioner Joe Fox, the state forester, motioned to approve a stay during C&H's window to appeal, with several seconds.
Commissioner Gary Wheeler, who represents the Arkansas Department of Health, said he was concerned about the commission's authority to issue the stay and that he was unsure of the harm C&H faced by not being granted the stay and what the conditions of the farmers' contract with JBS are.
"I am concerned that we would be making this decision without really having the authority of the statute," he said.
After many questions about the proposed stay, the commission's regulations and the impact of voting either way, the commission handily approved the stay.
Wheeler abstained from the vote, and Commissioner Robert Reynolds recused because of a conflict of interest over the type of permit C&H sought. The other commissioners, who were all present either in person or via telephone, voted in favor.
A map showing the location of C&H Hog Farm
Metro on 01/18/2018
Barry Haas reports from the meeting of the state Pollution Control and Ecology Commission that it has granted a stay that will allow continued operation of the C and H hog farm at Mount Judea while it appeals denial of a new permit for the factory hog feeding operation. The Commission said the farm must file its appeal no later than Feb. 10. If that deadline is met, the stay will remain in place. The vote was unanimous, with the exception of recusals by Gary Wheeler and Robert Reynolds. The Department of Environmental Quality denied the permit last week. The lawyer for the farm argued that it had submitted everything required by the department. The Buffalo Watershed Alliance argued this week that a stay shouldn't be granted. The permit expired more than a year ago and an appeal could last months or years. It argued for a phase-out of the operation and, failing that, posting of a substantial bond by the farm to cover potential hog waste pollution in the interim. The commission required no bond, however. Apparentlythe commission believed such a requirement was outside its power.
Tags: C and H hog farm, Buffalo River, Pollution Control and Ecology Commission
By Mike Masterson
Posted: January 16, 2018 at 4:30 a.m.
There have been plenty of aftershocks triggered by the Arkansas Department of Environmental Quality's unexpected decision to deny C&H Hog Farms' application for a revised operating permit.
Many wondered on social media why the farrowing factory, with some 6,500 swine, was originally permitted into the environmentally sensitive Buffalo National River watershed back in 2012. Others were sympathetic with the C&H owners who have a major financial investment.
Either way, the issue that's been roiling statewide for five years remains on the shoulders of the state Department of Environmental Quality, since it chose to quietly and quickly shepherd this factory into existence under a Regulation 6 operating permit (granted solely to C&H) without sufficient due diligence, public awareness or comment.
The factory's request to move from the discontinued Reg. 6 to a Reg. 5 permit finally provided an opportunity for well over a thousand upset citizens to have their voices heard.
The agency says its decision to deny the application was made primarily on the basis of inadequate geologic studies. Requirements C&H must follow to be permitted are detailed in the same "Agricultural Waste Management Field Handbook" that was used to identify standards for both permits. Officials said there were numerous shortcomings in the swine factory's request. The department's official record reportedly did not include specified geological testing information, nor sufficient geotechnical, groundwater, soils, and other testing.
Through their attorney William A. Waddell, the factory owners quickly submitted a request for "stay" of the agency's denial, to be heard this week before Administrative Law Judge Charles Mouton. They want to carry on operations as usual while they file an appeal. "There is no risk of harm to the public if a stay of the permitting decision is granted. A stay is fair, equitable, and necessary to protect the business interests of C&H and its owners," Waddell argues.
The problem here remains as it always has: improper location. For me the question of "harm to the public" is better described as legitimate risk to a precious national resource underlain with fractured karst. There has been enough geological fact-finding for many knowledgeable folks to realize the factory is operating in the wrong place and presents an unacceptable and needless risk to the national river. I certainly don't fault the owners for this mess the state needlessly created.
Dr. Todd Halihan made headlines in 2016 after conducting a transect study the previous year that suggested a large fracture and subsurface moisture near the two large waste lagoons. The department responded by ordering Harbor Environmental to drill a 120-foot investigative hole between the lagoons and the barn. During the drilling, independent Geologist Tai Hubbard noted the apparent presence of karst beneath and near the waste lagoons: "The highly weathered limestone bedrock and unconsolidated clay intervals observed ... appeared to have the characteristics of epikarst," Hubbard wrote.
Harbor's technicians also noted they were losing drilling water at about the same depths, yet didn't record how much was lost. But even I know all that water went somewhere underground. Halihan's transects also noted moisture at those same depths with his studies on a rainy afternoon in 2015.
Perhaps on the day Halihan made his transects, groundwater had accumulated at that same depth zone. I gather that's a well understood occurrence in epikarst, which transitions into karst.
When they went to fill the test hole with grout, the technicians used all the grout they had without reaching the top. The amount they used would have filled a small closet, says Brian Thompson with the Buffalo River Watershed Alliance. They had to return with more grout to finish the job.
To me and others, this suggests the underground opening between the lagoons and the barn was most likely a fracture. We know for certain there is a good-sized void of unknown dimensions within the karst subsurface.
As for any "harm to the public," the waste management handbook contains a "Vulnerability to Risk Matrix" specifically intended to inform engineers what a bad idea it is to build such facilities in fragile geologic conditions. This matrix table specifically says when voids or karst are detected within five feet of a proposed holding lagoon's bottom, the vulnerability becomes "very high" and the engineer should "evaluate other storage alternatives."
So that tells me in the case of C&H, with waste lagoon depths being within a matter of feet at their 20-foot bottoms from both karst and this opening discovered beneath the surface, this matrix table not only warns of risk, but basically advises anyone not to be building waste lagoons in such a location.
Wonder why the state didn't demand these same critical geological assessments in 2012? I believe they would have discovered then the apparent risks Halihan and Harbor found in time to shut it down! This location unquestionably has always presented a huge risk to our national jewel.
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Mike Masterson is a longtime Arkansas journalist. Email him at mmasterson@arkansasonline.com.
Editorial on 01/16/2018
By RICHARD MASON
This article was published today at 1:57 a.m.
Isn't the overriding goal of a society to steadily improve the quality of life of its people? Everyone would agree with that statement, but the how-to's are the sticky questions, and there are as many answers to those questions as there are countries in the world. Each country's leaders would tell you their method of achieving an enhanced quality of life is the way to go.
I'm a red, white, and blue American entrepreneur, a free market proponent, and a small business owner. I'm convinced the opportunities to make a profit here in the USA are the keys to our great standard of living and a super quality of life.
However, the American dream--to have a high standard of living and to make a lot of money in order to achieve our dream--must have its limits. We can't possibly be allowed to do virtually anything to make a dollar. A whole host of things do not only have a negative effect on our quality of life, but many times have a debilitating effect on the individual.
The list is as long as your arm; drugs, prostitution, etc. You could add hundreds of items, but the gray areas are the ones I want to address. It's basically a trade for short-term profit to the long-term detriment of a quality life.
By allowing a factory hog farm to be constructed near the Buffalo National River, politicians and other short-sighted individuals seemed willing to let profit take precedence over protecting the river. Fortunately, Arkansas Department of Environmental Quality has denied C&H Hog Farms' application for a new operating permit in the river's watershed.
Let's look at a bigger picture: The combination of coal mining and coal-fired plants is one of the major contributors to climate change.
Climate change is real, and saying it's not happening is right up there with the Flat Earth Society. What is even worse is that the climate-change deniers are doing it to make a profit. They know better! They are willing to trade our grandchildren's and great-grandchildren's futures for coal-mining profits. The horrors of climate change during the next 20 to 30 years will be catastrophic, and anyone who supports coal-fired electrical generating plants is committing a crime against humanity.
What our grandchildren and great-grandchildren will have to put up with is criminal. However, in order to continue to destroy the environment, it becomes cliché to deny climate change.
I grew up in and around Norphlet, a small town almost in the middle of the south Arkansas oilfields, and the last time I checked there was a pumping oil well right in the middle of town. I guess being associated with the oilfields and working in a refinery during my college summers had a big influence on my ultimate choice of professions, and today I'm still working as an oil and gas exploration geologist looking for new oil and gas fields.
Things have changed since I was a boy roaming the woods and fishing in the creeks of south Arkansas. As soon as I was old enough to hunt in the woods and swim in the creeks, I was faced with an environmental nightmare. In the 1940s and '50s many parts of south Arkansas producing oil wells dumped the saltwater produced with the oil into the nearest creek. Many of these older wells were producing several 100 barrels of saltwater a day along with the oil.
This was an accepted practice, considered part of the way things were. The creeks that received the saltwater became lifeless, and when the spring rains came and the creeks overflowed their banks, the land, sometimes as much as 50 yards on either side of the creeks, became as lifeless as the creeks. In the summer as the sun dried up the water, a thin layer of salt covered part of the creeks' drainage.
Let's fast-forward to 2018. The creeks are full of life, the salt flats are gone, Mother Nature has restored the vegetation, and the saltwater is pumped back deep in the subsurface. Sure, it costs more to dispose of the saltwater in this manner, but today, the idea that you would dump saltwater into the nearest creek is unthinkable, and that is the way it should be.
There are practices in industry that are detrimental to the environment and to the health of our citizens. It's trite to say we should steadily seek to reduce hazards to our health and environment in our society. Improving our environment automatically increases our quality of life, and as our industry prospers and profits soar, the society as a whole should tighten restrictions against polluting instead of loosening them.
That is exactly what has happened over the past 50-plus years. We have cleaner air to breathe, better quality water, and our land use has steadily improved. In making the USA the economic powerhouse of the world, we have succeeded in not only raising our standard of living through economic progress but have created a healthier country, which is the envy of the world.
Of all the things that should be bipartisan, our quality of life should always be something Republicans and Democrats alike can embrace. That has been the case during the administration of presidents from Ronald Reagan forward. However, the present administration is trying to undo the progress made by Reagan, the Bushes, Bill Clinton, and Barack Obama. A great deal of the environmental progress happened under Republican administrations.
Today, unemployment is at a record low and corporate profits are soaring. If anything, we should be strengthening environmental standards to continue the improvement of our quality of life. But we're not. This administration is systematically stripping the EPA of critical regulations and cutting its budget. By allowing the goal of making money to take precedence over environmentally policies, it is steadily reducing our quality of life.
Richard Mason is a registered professional geologist, downtown developer, former chairman of the Department of Environmental Quality Board of Commissioners, past president of the Arkansas Wildlife Federation, and syndicated columnist. Email richard@gibraltarenergy.com.
Editorial on 01/14/2018
Posted: January 14, 2018 at 1:50 a.m.
The Arkansas Department of Environmental Quality's decision to reject a revised operating permit for C&H Hog Farms in the Buffalo National River watershed brought welcome surprise for many Arkansans.
In appearing to finally move toward protecting the country's first national river, the agency triggered cautious celebrations among those who've devoted themselves to protecting this vital artery that nurtures God's Country.
I say "cautious" because our governor quickly issued a statement saying C&H should be able to continue operating with "appropriate safeguards" pending its lawyer's expected appeal.
Hutchinson also gave his approving nod to private property rights and agriculture without specifically mentioning the Buffalo's remarkably unique value and significant economic and recreational benefits for our state. After all, it's not just any stream or environment, which is why such widespread concern exists.
The governor said: "Private property rights are fundamental to Americans and even more so in Arkansas where agriculture is our No. 1 industry. The ADEQ has an important responsibility in balancing the commitment to private property rights with the need to protect our streams, water systems and environment. ADEQ determined that the hog farm application within the Buffalo River Watershed was insufficient in technical detail to provide assurance that the hog farm waste in the future will not be a risk to the watershed. This determination was reached by the technical and professional staff at ADEQ."
Sounds to me like a determination best made in 2012 before the agency approved the factory's initial permit in a secretive and hurried decision that later prompted former Gov. Mike Beebe to call this wrongheaded decision his worst regret in office.
Being in this business 47 years, I admit to being a tad cynical at times. For instance, cynical me wouldn't be surprised to envision an imaginary scenario like this unfolding:
The Department of Environmental Quality takes 463 days in regular office "hog huddles" to concoct a politically savvy way to escape this stink it's created for itself. Meanwhile, the factory keeps operating indefinitely using the agency's original 2012 permit that expired way back in April 2016.
Finally, a brighter agency bulb says: "Hey, why don't we deny the request for the new permit, which will mean this flaming pigskin will be lateraled by the factory lawyer's certain appeal to the Pollution Control and Ecology Commissioners? If the PC&E decision is appealed into the courts it could perhaps languish for years.
"This way," my illusory cynic side continues, "even if our decision eventually is overturned, the factory has continued operating as usual under our expired permit. Either way, we can always say we were the ones who denied the permit!"
My wild speculation here probably doesn't hold an ounce of water, but neither me nor neighbor dog, Sparky, believe the agency would foolishly make this momentous decision without approval from the governor (who appoints its director.)
It says it denied the Regulation 5 permit because of insufficient critical information that actually was required back in 2012: "The record fails to include the requisite geological, geotechnical, groundwater, soils, structural, and testing information specified in Reg. 5.402. Without the detailed geophysical and engineering data required by the Agricultural Waste Management Field Handbook, as amended, ADEQ is unable to ascertain compliance with Reg. 5.402."
The argument against locating a meat-producing factory with spray fields in karst terrain along a major Buffalo tributary has never been with the factory owners, or their abilities and concerns. Nor has it been with any alleged opposition to farming or farmers, although special interests have dishonestly painted the disagreement that way for political advantage.
The state wrongheadedly allowed a large concentrated animal feeding operation into the worst possible location, which is exactly why years ago that same agency placed a specific moratorium on permitting such factories into the Buffalo watershed.
Last week's denial is commendable. The action also provides a unique opportunity for the Department of Environmental Quality director now to permanently reinstate the needed moratorium in the Buffalo. It stands to reason if this intensely scrutinized factory can't meet the high environmental standards to operate safely in this kart-riddled watershed, no other can.
Also in fairness, Hutchinson inherited this mess. I believe he has done his best to walk a political tightrope with political forces like the Farm Bureau and Pork Producers tugging on one side as thousands of Arkansans who speak for the river yank the other.
The factory's expected appeal means this unfortunate ordeal remains far from finished. So the many Arkansans who wish this was over will continue to wait and watch and make their collective voices heard. It's always right to do the right thing.
Listen to the story here: Arkansas Public Media
Embattled Buffalo River Industrial Swine Farm Denied New Operating Permit
By JACQUELINE FROELICH
The Arkansas Department of Environmental Quality late Wednesday denied a new permit to C&H Hog Farms, the state's largest industrial swine breeding facility to maintain operations in rural Newton County. Opponents of the swine farm constructed in 2013 along Big Creek, a major tributary to the Buffalo National River, claim the farm is gravely polluting the watershed and have fought for five years to shut it down.
C&H Hog Farms owners plan to appeal ADEQ's decision.
C&H Hog Farms was granted its first federal-level Concentrated Animal Feeding Operation, or CAFO, permit in 2012 by the Arkansas Department of Environmental Quality to house 6,500 breeding sows, piglets, and boars. The swine also produce millions of gallons of hog waste annually, which is flushed into nearby sewage lagoons. Tanker trucks periodically suck up the liquid waste to spray on nearby hay pastures as fertilizer.
When farm owners Jason Hensen, Richard Campbell and Phillip Campbell applied for a new state-level operating permit in the spring of 2016, they were required to furnish key documents and data to ADEQ. Almost two years later, the agency announced it had denied a permit renewal request.
An ADEQ spokesperson would not comment for this report, saying the decision is now under final review. But in a notice of final permitting decision posted online, the agency states the farm failed to provide critical geologic, groundwater, soils and other testing records.
Gordon Watkins, president of the Buffalo River Watershed Alliance based in Newton County, which seeks to shut down the farm, says the grounds for ADEQ's decision to deny the permit were unexpected.
“We were surprised to some extent that they did deny the permit, based on issues that we’ve been harping on for five years, including lack of site investigations done before the permit was ever issued in the first place.”
The original permit failed to designate the farm’s terrain as sensitive karst topography where swine waste spread on pastures can leach into ground and surface waters. The state-funded University of Arkansas Division of Agriculture Big Creek Research Team, which has continually monitored the farm’s environment both upstream and down over the last five years, documents only background concentrations of pollutants similar to other Ozarks watersheds.
But teams of independent researchers, including retired NOAA fisheries scientist Teresa Turk, are documenting different results.
“What we’ve seen is huge algal blooms in tributaries and Buffalo River river, and high E. coli levels, a contaminate which will make you sick if you ingest it and in some cases, it can kill you. And we’ve also found really low dissolved oxygen."
Lack of dissolved oxygen can impair aquatic life, Turk says, describing the Buffalo River and tributaries as prized fishing locales.
“I believe these are all signs that the river is dying," Turk says. "It's in serious trouble and much of this started after C&H started spreading manure on fields very close to Big Creek which drains into the Buffalo.”
During the permit public comment period, more than a 1,000 comments were submitted to ADEQ, says Gordon Watkins, along with many thousands more since the factory farm opened, sent to by concerned citizens in Arkansas and across the nation. He's now calling on ADEQ to block all CAFO operations on the Buffalo National River Watershed.
“The current temporary moratorium which is in the hands of ADEQ director Becky Keogh can be made permanent at any time. And we would encourage her to go ahead and move quickly to implement a permanent moratorium to assure permanent protection for the Buffalo River.”
William Waddell, a Little Rock attorney who represents C&H Hog Farms, who declined to comment for this report, plans to appeal ADEQ's decision. The owners have thirty days to submit the necessary paperwork to Arkansas Pollution Control and Ecology Commission, which could issue a stay on immediate closure of the facility in the interim. C&H Swine Farms is under contract with integrator, JBS US Pork., which supplies the farm with breeding swine and boars. What legal and financial assistance, if any, the wealthy meatpacker might deliver to C&H Hog Farms operators as it fights to remain open is unclear. In the meantime C&H Farms is planning to build another, larger swine breeding CAFO, this one on the Arkansas River Watershed in Johnson County, which is also meeting strong opposition. As of this report no permit request for the facility, located near the community of Hartman, has been submitted to ADEQ.
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Attorneys for C&H Hog Farms have filed a request to stay the Arkansas Department of Environmental Quality's decision to deny the farm a new operating permit to replace its expired one and effectively shut down the farm.
The farmers will file a request for a hearing before the Arkansas Pollution Control and Ecology Commission, the department's appellate body, the stay request reads.
The request for a stay was filed with the commission.
In a statement sent Thursday to the Arkansas Democrat-Gazette, the farmers called the department's decision to deny their permit request "politically motivated." They, along with the Arkansas Farm Bureau in a separate statement, noted that the farm has not had any environmental violations since it opened nearly five years ago. It did have one violation related to paperwork.
It was unclear after conversations with department and commission officials Thursday how soon the farm would have to close if no action is taken to stay or reverse the department's denial of the new permit request.
Various environmental groups have opposed the Newton County hog farm, citing fear that its location on a creek 6 miles from where the tributary feeds into the Buffalo National River could jeopardize the river quality.
The department told the farmers in a letter dated May 3, 2016, that the farm could continue to operate under its original -- though expired -- permit until the department decided on the new permit request.
Under department Regulation 8.612, "the denial of a permit shall stand" during commission review. Only "the issuance, modification, or revocation of a permit or that part of a permit which is the subject of the appeal shall be stayed, unless otherwise required by state or federal law," the regulation reads.
"There is no risk of harm to the public if a stay of the permitting decision is granted," the filing reads. "A stay is fair, equitable, and necessary to protect the business interests of C&H and its owners, who have pledged substantial personal assets, including their homes, to finance the operations of C&H. C&H and its owners will be irreparably harmed if a stay is not granted."
The department said Wednesday in denying the new permit request that it did not have sufficient information to ensure compliance with Regulation 5.402, which sets out the design and waste management systems as described in a technical guide and a federal handbook that's published by the U.S. Department of Agriculture Natural Resource Conservation Service.
The filing further notes that the farmers had believed they had submitted all of the information the department had requested. The filing includes emails exchanged Dec. 29, the day the information was due to the department, discussing whether requested information had been supplied.
The documents show that C&H attorney Bill Waddell emailed Mike McAllister, managing attorney for the department, that morning asking him to confirm that the farmers had submitted all required information identified as missing in a Dec. 27 letter.
McAllister replied 41 minutes later, referring to a phosphorus index sent to the department and said "it appears that your client has responded to the issues identified in the 12/27 letter that were based on technical staff's initial review of the submissions."
On Thursday, the farmers and the Arkansas Farm Bureau each sent statements to the Arkansas Democrat-Gazette expressing dismay regarding the department's decision to deny the new permit request.
"ADEQ's reason for denial is inexplicably vague and leaves us guessing as to exactly why the permit was denied," the farmers wrote. "We can only assume that they have no valid ground."
The Farm Bureau called the decision "decidedly unfair" and detrimental to property owners.
"If this farm can't be permitted, it's likely no farm in Arkansas can meet Reg. 5 requirements," the statement reads. "This farm has been through more environmental scrutiny than any other property in our state -- without a single citation for violation. Yet, their permit is apparently being denied on a technicality, for what are apparently politically expedient, non-merits-based reasons and not on matters of science."
Metro on 01/12/2018
The Arkansas Department of Environmental Quality has denied C&H Hog Farms' application for a new operating permit in the Buffalo National River's watershed.
The decision ends 643 days -- just more than 21 months -- of waiting since C&H applied for a new permit to continue its farming operations in a slightly modified way.
C&H, which abuts a Buffalo River tributary in Newton County, has been operating on an indefinite extension of its expired permit. That permit falls under a different regulation and stipulates different numbers of hogs than the permit it was requesting.
The department explained its denial in three sentences in a three-page document.
"ADEQ denies issuance of the permit after determining that the record lacks necessary and critical information to support granting of the permit.
"The record fails to include the requisite geological, geotechnical, groundwater, soils, structural, and testing information specified in Reg. 5.402. Without the detailed geophysical and engineering data required by the Agricultural Waste Management Field Handbook, as amended, ADEQ is unable to ascertain compliance with Reg. 5.402."
The owners of the farm -- Jason Henson, Philip Campbell and Richard Campbell -- did not respond Wednesday evening to messages left for them seeking comment.
The farm's attorney, Bill Waddell, called the decision "incomprehensible." He said the farmers had made every effort to make sure the department had the requisite information.
"Once ADEQ undertook to tell C&H what was necessary to complete its application and C&H relied on what it was told, ADEQ is estopped to deny the application on the ground that information was not provided," Waddell wrote in an email to the newspaper.
Waddell said he would appeal the decision. The farm has 30 days to do so.
Others involved in the case for the more than five years since the hog farm received its original permit expressed surprise at the decision.
Steve Eddington, a spokesman for the Arkansas Farm Bureau, said his organization was "surprised" and "disappointed."
Richard Mays, an attorney who has represented the Buffalo River Watershed Alliance in its opposition to the hog farm's operation within the watershed, called the denial a "watershed moment."
Jessie Green, a former department employee who is now executive director of the White River Waterkeeper, upon hearing the news sent a text of "OMG! I have never been more surprised."
Gordon Watkins, president of the Buffalo River Watershed Alliance, said his organization had asked for many of the same documents that the department asked for in December to supplement the hog farm's permit application.
Some documents detailed previously unreported wells on and near the farm's property, Watkins said, but some of the documentation of their locations was inconsistent and one well was labeled as being in multiple locations.
The alliance also emphasized the handbook, which the department referred to in its denial.
"It appeared to us that they had ignored it altogether when they first applied," Watkins said. "It looks like ADEQ held their feet to the fire on that one. I commend them for doing so."
The department posted its decision after business hours Wednesday, along with 422 pages of the responses it received during the public comment period on the permit request.
The new permit would have allowed the farm to have up to six boars of about 450 pounds apiece, 2,672 sows of at least 400 pounds each and 750 piglets of about 14 pounds each. The request for the permit also estimated that two waste-holding ponds would contain up to 2,337,074 gallons of hog manure. That amount was listed as similar to what the farm has now, and any additional waste and wastewater would be applied over certain sites as fertilizer.
The farm's current permit allows for 4,000 piglets and 2,503 sows.
While C&H sought to increase the number of hogs on-site, officials said, it didn't expect a significant difference in the amount of waste the animals would produce.
C&H has become the target of groups that fear the hog farm's presence is an environmental risk to the Buffalo River. The farm sits along Big Creek, 6 miles from where the creek flows into the Buffalo River.
The Buffalo River attracted 1.8 million tourists in 2016, and C&H's proximity to the national river has caused concern that manure from the farm -- the largest hog operation ever to operate in the county -- could make its way into the Buffalo River and pollute it.
The Arkansas Department of Environmental Quality received more than 1,000 comments in response to the permit application, the first time opponents of the farm have had the opportunity to comment on the farm's existence. Opponents have said lax notification rules of C&H's original permit request kept people from opposing the farm's construction in the first place.
C&H's operators applied April 7, 2016, for an Arkansas Pollution Control and Ecology Commission Regulation 5 National Pollutant Discharge Elimination System permit for liquid animal waste. The farm's current permit is a Regulation 6 permit, which is similar to a Regulation 5 but has different notification and periodic renewal requirements. The department has decided to discontinue issuing Regulation 6 permits.
Also, the Department of Environmental Quality spent months before the Pollution Control and Ecology Commission's administrative law judge litigating a permit approval for a facility to spread manure from the C&H farm. After the permit approval was upheld, and nearly a year after C&H applied for it, the department gave preliminary approval to the application.
Green, who opposes the farm's location, wondered Wednesday how much of a celebration was in order.
If the hog farmers want to continue their operations, they could apply for another permit and propose using a wastewater-treatment plant instead of the two hog waste lagoons the farm has now,she said. Or they could propose trucking the waste off-site.
"I'm still not sure how I feel about it," Green said. "I still think this is a step in the right direction because one of the concerns I had about Reg 5 is there's no renewal on those," meaning the public would not have an opportunity to comment again on the permit as a whole, had it been issued.
Mays said he hopes the denial means that officials will be more cautious about issuing permits to hog farms in the future. He noted that large hog farms in other states have caused pollution problems.
"It can be a huge mess," he said. "You need to be very careful about where you locate them and how they're built. You need to be cautious about protecting the environment, because it can ruin it very quickly."
Gov. Asa Hutchinson issued a statement to the Arkansas Democrat-Gazette saying the farmers should be able to operate with "appropriate safeguards" pending their expected appeal of the department's decision.
"Private property rights are fundamental to Americans and even more so in Arkansas where agriculture is our number one industry," Hutchinson said. "The ADEQ has an important responsibility in balancing the commitment to private property rights with the need to protect our streams, water systems and environment. ADEQ determined that the hog farm application within the Buffalo River Watershed was insufficient in technical detail to provide assurance that the hog farm waste in the future will not be a risk to the watershed. This determination was reached by the technical and professional staff at ADEQ."
In a review of Department of Environmental Quality data and records last year, the Democrat-Gazette found that hog farms spilled manure into Arkansas waterways at least 16 times between 1996 and 2017, according to state inspections. More than 50 fish were killed in a pond in Pope County as the result of a spill in 1998, but the spills were not of the devastating scale that have occurred in other states.
Records don't always detail follow-up inspections, but in some cases the causes of the leaks were addressed right away.
Spills, leaks, overflows and unauthorized discharges were noted 339 times in the 1,332 inspection violation records analyzed by the newspaper. That figure does not count multiple spills listed in a single report, because multiple spills often were not recorded as separate spills.
In the past 10 years, records indicate that leaks have occurred less frequently as the number of hog farms has diminished.
More hogs were raised on farms in Newton and Searcy counties 20 years ago than are being raised there today. In 1997, 17 hog farms were permitted to hold more than 4,800 sows, 7,000 smaller pigs and 90 boars, according to Arkansas permit and compliance records. In 2017, five farms had about 4,000 sows, 5,700 smaller pigs and 15 boars.
C&H Hog Farms was the first and remains the only federally classified medium or large hog farm in the area.
C&H's operators have explored expanding their hog production.
Henson and representatives from JBS Live Pork, which supplies hogs to C&H Hog Farms, held a public meeting in October in Clarksville regarding a proposed 5,200-sow operation, parts of which would be in a flood-prone area of Johnson County. They said it would not replace C&H Hog Farms.
No permit application has been submitted for that facility.
Metro on 01/11/2018
Print Headline: State denies hog farm's revised permit request
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