Buffalo River Watershed Alliance

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LEGAL ISSUES AND COURT CASES RELATED TO C&H


The following are administrative cases before the Pollution Control and Ecology Commission, and civil cases before the Newton and Pulaski County Circuit Courts and Arkansas Supreme Court related  to ADEQ's decision to deny C&H an operating permit in January, 2018.  All legal documents relevant to these cases are found in numbered  Dockets and are available online at the links provided below.


Note that all of these appeals regard procedural issues and do not address the merits of the cases. In other words, they concern how the Commission and Circuit Court handles the permitting decisions but not the actual reasons for the denial of the permit. This is one way for C&H to delay confronting why it should not be allowed to operate in the Buffalo River watershed. C&H continues to operate and spread waste because of Stays issued by the Circuit Court and the Commission which prevent closure of the facility until the appeals are exhausted.



 NOTICE: On June 13, 2019 Governor Asa Hutchinson announced a settlement agreement between C&H and the state. In return for a payment to C&H of $6.2 million C&H will cease operations and close its facilities within 180 days of the execution of the Escrow Agreement which went into effect on August 5, 2019. The terms of the agreement specify that C&H will dismiss all of the ongoing cases.  


On June 21, 2019, BRWA sought and was granted a Stay of its Supreme Court cases pending resolution of the Closure Plan.


On August 21, 2019, C&H filed motions for 180-day Stays of all circuit court cases except Docket 60CV-19-644 (the FOIA case).


APC&E Administrative Appeals


Before a case can enter the state court system all administrative appeals must be exhausted. This means that any appeals of ADEQ decisions must first be argued before the Commission and its Administrative Law Judge (ALJ). Attorneys present their arguments to the Judge who then makes a Recommended Decision to the Commission. The Commission then votes to either affirm, deny or otherwise amend the Judge's Recommended Decision. If parties to the appeal are dissatisfied with the Commission's final decision they may then appeal it into Circuit Court.


There are currently no open dockets for C&H before the Commission but closed dockets are part of the record which will be relevant to both civil cases as well as potential new administrative cases. A list of Closed Dockets may be found here. Click on "2006-2018 Closed Dockets" and then click "C&H Hog Farms" for dockets 18-001-P and 18-004-P. A third docket, 18-001-MISC may be found here (scroll down for "C&H Hog Farms, Inc"). Following is a brief description of these Commission dockets.


ADEQ issued a denial of C&H's application for a Regulation 5 No-Discharge Permit, #5264-W on January 10, 2018. C&H has appealed that decision via the following dockets.


Because C&H originally was issued a Regulation 6 Permit to Discharge, #ARG5900001, and was seeking (and was denied) a Regulation 5 No-Discharge permit, the appeal was "split" into two dockets to deal with the Reg 5 and Reg 6 permit issues separately. Reg 5 issues were assigned docket 18-001-P and Reg 6 was assigned docket 18-001-MISC. A second appeal resulted in docket 18-004-P.


Decisions in all of these Commission cases resulted in appeals to Arkansas Circuit Court which are referenced below.


18-001-P, filed January 18, 2018, was C&H's initial appeal of ADEQ's decision to deny them a Regulation 5 No-Discharge permit, #5264-W, and requests an adjudicatory hearing before the Commission. BRWA and Arkansas Canoe Club and the Ozark Society intervened in this appeal. C&H successfully argued that ADEQ erred when it did not issue a Draft decision to deny the C&H permit and open a second comment period. The Commission instructed ADEQ to do so on August 24, 2018 and remanded the matter back to ADEQ via Order 18-20. A second comment period ensued and ADEQ issued a second and Final decision to deny C&H a permit. However, C&H claimed that the Commission erred in not "reversing and remanding" the matter to ADEQ and so it then appealed the decision to Newton County Circuit Court where it became Docket 51CV-18-58 (see below).


18-001-MISC, filed June 9, 2018, is C&H's claim that it retains ongoing coverage under the terms its original NPDES Regulation 6 permit, pending resolution of its Regulation 5 appeal. ADEQ argues that coverage under Regulation 6 terminated when C&H was denied a Regulation 5 permit. BRWA and Arkansas Canoe Club intervened in this case. On July 27, 2018, the Commission voted to affirm the ALJ's Recommended Decision and issued Order 18-16 which supported ADEQ's argument and docket 18-001-MISC was closed. On August 6, 2018 C&H appealed this decision to Newton County Circuit Court where it was assigned Docket 51CV-18-48 (see below)


18-004-P, filed December 13, 2018 was C&H's appeal of ADEQ's second, final denial of its permit on November 19, 2018 and requests a Stay of ADEQ's second and final decision on November 19, 2018 to deny C&H a permit. Because the Newton County Circuit Court had asserted full jurisdiction over the C&H permit ( see Docket below), on January 25, 2019 via Minute Order 19-05 the Commission dismissed C&H's appeal and closed the docket. C&H appealed this decision to Newton County Circuit Court where it was assigned Docket 51CV-19-7 ( see below).



Circuit Court Appeals


All filings for the following active civil cases for both Circuit Court and Arkansas Supreme Court may be found here by entering the docket numbers for each case in the "Case ID" field


On August 21, 2019, C&H filed motions for 180-day Stays of all circuit court cases except Docket 60CV-19-644 (the FOIA case).


51CV-18-48C&H vs PC&E Commission, filed August 7, 2018 is the appeal from Commission docket 18-001-MISC regarding ongoing coverage under Regulation 6.  BRWA, ACC and OS are intervenors.  A hearing of final arguments on this case was held on March 27, 2019 but, as of May 30, 2019, the Judge has not yet issued a ruling. 


51CV-18-58, C&H vs PC&E Commission, filed September 7, 2018 is the appeal from Commission docket 18-001-P and is a Motion for Stay Pending Appeal and includes a Contempt Hearing requiring ADEQ to show cause for why it should not be held in contempt of Judge Putman's assertion of full jurisdiction over the C&H permit when it issued a decision on November 19, 2018 to deny C&H a permit. . BRWA and ACC  are Intervenors and the Ozark Society later requested to intervene, a decision still pending. C&H requests that the Circuit Court stay the Commission from enforcing the C&H permit denial and demand for a closure plan until their appeal can be heard. The Court asserts that it retains full jurisdiction over the C&H permit. This case is currently on hold pending appeals before the state Supreme Court (see docket CV-19-165 and CV-19-172 below).


51CV-19-7 C&H vs. PC&E Commission, filed February 19, 2019 is an appeal of the Commission's docket 18-004-P dismissing C&H's appeal of the second, final decision to deny C&H's Reg 5 permit application. BRWA and ACC are intervening and the case is pending.


60CV-19-644 C&H vs ADEQ filed February 1, 2019 in Pulaski County Circuit Court. Complaint by C&H that ADEQ violated the Freedom of Information Act by not responding properly to a document request related to the C&H permit denial. BRWA is not a party to this case. On Feb 15 the Court denied ADEQ's Motion to Dismiss and the case is pending.





Arkansas Supreme Court Appeals


CV-19-165 ADEQ vs Newton County Circuit Court filed February 21, 2019, ADEQ is appealing the Circuit Court's assertion of jurisdiction over ADEQ's permitting authority regarding the C&H permit from Circuit Court docket 51CV-18-58. On February 28, 2019 the Court denied ADEQ's appeal and found their Motion for Stay to be moot.


CV-19-172 BRWA vs Newton County Circuit Court, filed February 22, 2019. BRWA is also appealing the Circuit Court's claim of full jurisdiction over ADEQ's permitting authority for the C&H permit from Circuit Court docket 51-CV-19-58 but using somewhat different arguments than those made by ADEQ in CV-19-165 by filing a petition for Writ of Certiorari or Prohibition. This case is pending and is continued in the following docket.


CV-19-237 This docket continues the above appeal, CV-19-172, and includes the briefs filed with the Supreme Court. The next milestone is June 29, 2019 when the C&H reply brief is due. On June 30, 2019 the Court granted a joint motion from C&H and BRWA to stay the proceedings pending the outcome of the closure plan announced by the Governor on June 13, 2019. 


On June 21, 2019, BRWA sought and was granted a Stay of the above Supreme Court cases pending resolution of the Closure Agreement.


US Federal Court Actions


Notice of Intent to sue C&H Hog Farm, Inc. over violations of the Federal Clean Water Act (CWA)


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