BRWA comments and background on rule making for changes to Regulation 6.

Background

Regulation 6 of the Arkansas Pollution Control and Ecology Commission defines the rules for the Arkansas Division of Environmental Quality (ADEQ) to administer the National Pollutant Discharge Elimination System (NPDES), a program delegated to the state by the federal Environmental Protection Agency. 

Reg 6 applies primarily to construction storm water permits, wastewater treatment plant permits, and pesticide applicator permits. Importantly, it also covers liquid animal waste permits, such as the one previously held by C&H Hog Farm, which was cancelled and closed by the State in 2019. C&H was the first and only such animal waste permit issued under Reg 6. (Others previously were and are currently permitted under Reg 5, a separate state permit program now administered by Arkansas Natural Resources Commission (ANRC)).

As part of the resolution of the C&H permit, then-Governor Asa Hutchinson directed ADEQ to take steps to establish a permanent moratorium against the issuance of any future swine permits within the watershed of the Buffalo National River to prevent the recurrence of such a threat to the river. The state legislature struck down a previous effort by ADEQ to comply with the Governor’s request.

Comments on Rule Making

This rule making primarily addresses changes necessary to comply with the federal NPDES program and includes such things as updates to federal and state law, clarifications and minor corrections. Of interest to BRWA and our supporters are the changes to Chapter 6, “Specific Watershed Requirements” which establishes a permanent moratorium, stating in part, “ The Director shall not issue a permit pursuant to this rule for a new swine CAFO in the Buffalo National River Watershed” We fully support this language. 

However, 6.602(C) says, “This rule does not prohibit the Director from: issuing a new Rule 6 permit for a facility that holds an active Liquid Animal Waste Management Systems permit as of the effective date of this rule.” The section does allow for the issuance of new Reg 6 permits to holders of existing Reg 5 permits in the watershed but does not allow for any increase in the number of animals. BRWA has identified four facilities in the Buffalo River watershed with “Active” permits, although none are currently operational and most have been effectively closed for several years. Although they have not completed the required closure procedures, none have any animals and none have submitted annual reports since 2019 or earlier. We would like clarification from DEQ as to whether any of these facilities could be reactivated to either 1) restock animals and resume previous operations, or 2) accept waste from other facilities for field application, including industrial waste. If these facilities could be reactivated,  or they  can accept transferred waste, we do not support this language. 

While BRWA generally supports this rulemaking we would like clarification regarding existing Reg 5 permits in the watershed and we remain concerned about similar language in Regulation 5 which is where current and future swine permits reside and we will be vigilant for future changes to Reg 5.