JUDGE FILES SCHEDULE IN HOG FARM SUIT
By Ryan McGeeney
Posted: February 9, 2014 at 1:41 a.m.
A lawsuit seeking a new environmental assessment of the possible effect of a Newton County hog farm on its natural surroundings has moved one step closer to resolution.
Judge D.P. Marshall Jr., a federal judge in the U.S. District Court for the Eastern District of Western Arkansas Division in Little Rock, issued a finalized legal-proceedings schedule Wednesday in Buffalo River Watershed Alliance, et al., v. Department of Agriculture, et al.
The schedule is the 25th document filed in the case that began in August when Earthjustice, a nonprofit environmental litigation group, filed suit against defendants that include the U.S. Department of Agriculture, the U.S. Small Business Administration and several top administrators in branches throughout both agencies.
The lawsuit questions the validity of the environmental impact study conducted by the Farm Service Agency in support of loan guarantees that were issued to the owners of C&H Hog Farms, a concentrated animal feeding operation built last year in Mount Judea. The farm, which is permitted by the Arkansas Department of Environmental Quality to house about 2,500 full-grown sows and as many as 4,000 piglets at any one time, is near Big Creek, a major tributary to the Buffalo National River. In addition to seeking a new environmental impact study, the suit asks the court to enjoin the loan guarantees.
According to documents previously filed in the case, on March 6 lawyers for the plaintiffs are to file a request for summary judgment asking the judge to issue a ruling in their favor with out them presenting additional evidence in the case, along with a brief supporting their argument. On April 7, lawyers for the defendants are scheduled to file a motion opposing the request for summary judgment.
While the suit, which grew out of a public outcry over the Environmental Quality Department’s decision to issue a wastewater permit to a facility that’s estimated to generate more than 2 million gallons of manure a year near a national park, and a perceived lack of adequate public notice, it’s likely thathog farming in Arkansas will remain essentially unchanged.
The production facility, which contracts with Cargill Inc. to provide weaned piglets for eventual processing as pork, is surrounded by about 630 acres of grasslands on which C&H Farms operators are permitted to spread the hog manure as fertilizer. According to an inspection dated Jan. 23, operators at C&H Hog Farms began spreading the manure in late December 2013, applying more than 100,000 gallons of the waste on 40 acres between Dec. 27 and Jan. 20.
Although C&H Hog Farms is the first and only operation in Arkansas to receive a general permit for concentrated animal feeding operations under the National Pollutant Discharge Elimination System, Arkansas began regulating similar operations in 1992 under "Regulation 5" individual permits. Federal permits for concentrated animal feeding operations didn’tappear until 2003, according to Environmental Protection Agency documents. The initial regulations were finalized in 2008.
According to the state department’s permit database, there are more than 260 facilities in the state that have active individual permits for concentrated animal feeding operations.
Nearly three-quarters of those are hog operations. Most of the rest are either dairy farms or chicken egg producers. Only one farm - at the Arkansas Department of Corrections Cummins Unit in Grady - has a Regulation 5 permit for general livestock.
Sevier and Howard counties have the most Regulation 5 hog farms in the state, with more than 50 active individual permits for concentrated animal feeding operations between those two counties. But hog farms dot the northwestern half of the state. And though much of the public debate over C&H Hog Farms centers on the wisdom of having a large farm so close to a river, there have been multiple Regulation 5 concentrated animal feeding operations within the river’s watershed for decades.
Mike Martin, a Cargill spokesman, said neither public debate nor the ongoing lawsuit are likely to affect the company’s decisions regarding farm contracts in Arkansas. "Cargill currently has no plan to significantly alter its hog production footprint in Arkansas," Martin said. He said the company considers many factors when working with contract farms, and the regulatory environment is only one of them.
Martin said Cargill currently has contracts with 87 hog farms in Arkansas, and that C&H Hog Farms is "a relatively small [concentrated animal feeding operation] by today’s standards."
Regardless of the success or failure of Earthjustice’s suit against the USDA, the case is likely to have very little of an effect on the future of hog farming in Arkansas, said Steve Eddington, a spokesman for the Arkansas Farm Bureau.
"I don’t hear complaints about environmental regulations, other than that they’re in place, and they’ve got to comply," Eddington said of farmers. "I’m not hearing, ‘Well, I’m not going to do this because of the environmental regulations.’"
Eddington said the biggest thing that affected hog farming in the state was the decision by Tyson Foods Inc. more than a decade ago to stop contracting with hog farmers in the region.Tyson Foods was a major "integrator" in terms of buying weaned piglets from multiple farmers for slaughter operations.
In 2002, Tyson began phasing out contracts with more than 130 hog farmers in Arkansas and Oklahoma, according to previous Arkansas Democrat-Gazette articles. The move meant that Arkansas ceased being a primary pork-producing state. Between 2004 and 2013, hog inventory in the state fell from more than 325,000 head to about 115,000, while overall U.S. farmed hog inventory rose from about 60 million head to about 66 million over that same time period.
Jerry Masters, executive vice president of the Arkansas Pork Producers Association, said the effect of Tyson’s decision on independent hog farmers was felt immediately.
At one time "we were 10th in the nation in hog production," Masters said. "When Tyson pulled out, we lost 65 percent of production in just a few months. Now, we’re not in the top 20. It was a dramatic, dramatic change in the industry in our state."
Masters said current efforts to change the notification requirements for concentrated animal feeding operations in the state are unlikely to dissuade future generations of farmers from entering the business. "I really don’t think it’ll have an effect," Masters said. "Agriculture is more than a job or career, it’s a way of life."
One result of the public outcry over the permitting process for C&H Hog Farms was the creation of a special committee, appointed by Gov. Mike Beebe, to make recommendations to the state Legislative Council about changes in notification policies regarding future concentrated animal feeding operations permits.
Environmental Quality Department spokesman Katherine Benenati said the five-member committee met twice last year - on Nov. 18 and Dec. 20 - and submitted its recommendations to the Legislative Council on Jan. 16, after reviewing comments received during a public comment period.
Ross Noland, a lawyer with the Little Rock-based lobbying group Arkansas Policy Panel and a member of the recommendation committee, said the committee’s recommendations were based in large part on practices in neighboring states. The recommendations included requiring permit applicants to notify property owners adjacent to the proposed facility, the county judge of the facility’s county, mayors of all municipalities within 10 miles of the site, and the superintendents of the school district that serves the area in question.
A co-chairman of the Legislative Council, state Sen. Bill Sample, R-Hot Springs, said the recommendations report won’t be discussed until the legislative fiscal session ends, probably in March or April. At that point, Sample said, the report will likely be referred to a standing committee, such as the Budget Committee, for review. That committee will then report its recommendations back to the Legislative Council.
Another outcome from public concern over C&H Hog Farms was the allocation of more than $340,000 in state funds to conduct extensive, ongoing water and soil testing in and around the Big Creek Watershed. Andrew Sharpley, a professor with the University of Arkansas Department of Crop, Soil and Environmental Sciences, was appointed to lead the Big Creek Research and Extension Team.
Sharpley said his research team had been working with residents, who have been collecting weekly water samples since September 2013 to establish "baseline data" for water quality in Big Creek, the Buffalo National River and some wells in the area.
Sharpley said the samples are analyzed at a UA laboratory in Fayetteville for nitrogen phosphates, ammonia nitrate, e.coli and a number of nutrients. Sharpley said periodically researchers will send "blind samples" to other EPA-certified labs in the region to verify their overall findings.
On Friday, the researchers released their first quarterly report, which primarily detailed existing conditions in the area. According to the report, the team will begin installing surface and subsurface monitoring equipment during the coming quarter.
Northwest Arkansas, Pages 11 on 02/09/2014