Arkansas panel backs effort on hog-farm ban; Buffalo watershed is focus of proposed rule
by Emily Walkenhorst
Environmental regulators are moving forward with a plan that would prevent a farm like C&H Hog Farms from building again in the Buffalo National River's watershed.
The Arkansas Pollution Control and Ecology Commission on Friday approved, without opposition, the beginning of a rule-making process to permanently ban hog farms of a federally classified medium or large size from the watershed.
The proposed permanent ban will go out for public comment later this year, and a public hearing will be held. After the public input, state legislative committees must additionally review the proposed ban and allow the rule-making to proceed.
Farms are federally classified as small, medium or large. Medium hog farms are defined as having 750 or more swine of more than 55 pounds, or 3,000 or more swine of 55 pounds or less.
Such farms have been banned since 2014 but only on a temporary basis, pending the conclusion of the Big Creek Research and Extension Team's research on the effect of C&H Hog Farms on Big Creek and the Buffalo National River.
C&H is a large-scale hog farm that sits within the Buffalo National River's watershed. It has been the subject of yearslong environmental concerns and will close in the coming months after reaching a $6.2 million buyout agreement with the state in June.
After signing the buyout agreement with C&H owners, Gov. Asa Hutchinson asked state environmental regulators to petition to make the temporary ban permanent.
The final research report is expected in the coming weeks.
After Friday's meeting, supporters of the ban and opponents of C&H said they were glad to see the rule-making move forward but were disappointed with how the meeting proceeded.
"It was a little disturbing that there wasn't more vigorous support," said Gordon Watkins, president of the Buffalo River Watershed Alliance, which formed in 2013 to oppose C&H's operations in the watershed.
Minutes before Friday's vote to move forward with the ban proposal, the commission appeared poised to reject it.
Commissioner Doug Melton, a governor appointee, made a motion to support the rule-making, proposed by the Arkansas Department of Energy and Environment's Division of Environmental Quality. He received no seconds to the motion from the other commissioners. Commissioners paused for an extended silence to listen for a possible second to the motion.
"I was shocked that we would not consider the approval of this minute order," Melton said.
Melton said he texted the governor during the meeting, who expressed surprise that the commission would not consider the ban. Hutchinson confirmed the conversation after the meeting.
"Yes, I shared my view that the rule should go forward for public comment, and I reiterated my support for making the current ban on large-scale hog permits in the Buffalo River permanent," the governor said in a statement released to the Arkansas Democrat-Gazette.
Before Melton's motion, Commissioner Mike Freeze, another governor appointee, raised objections to starting the rule-making before C&H had the money from the state to close down. Not everything required by the buyout agreement has been completed.
"I can assure you, it's not a done deal," Freeze said.
The proposed ban does not include a clause that would grandfather in existing medium or large hog farms. C&H is the only large hog farm in the watershed.
Freeze made a motion, which was quickly seconded, to delay the proposal until next month's meeting when, he anticipated, everything would be in place for C&H's closure. But the motion could not officially be considered because Melton's unseconded motion was still on the floor.
Richard McMullen, the commission's designee from the state Health Department, then seconded Melton's motion.
Freeze expressed frustration on the point of order because he supports the ban but would have to vote against starting the rule-making process for it now.
Mike McAlister, managing attorney for the Division of Environmental Quality, said a series of steps needs to be taken before the state can deposit the $6.2 million in closure funds and other compensation into escrow for eventual delivery to the farm's owners.
The division must write a closure plan, then certify delivery of the closure plan to C&H, which must then dismiss with prejudice "all legal proceedings," according to the buyout agreement. After that, the escrow agent will deliver the executed conservation easement for the land and disburse the money.
C&H has appealed to circuit court the rejection of its permit application and other issues related to it and has sued the Division of Environmental Quality over alleged noncompliance with the Arkansas Freedom of Information Act.
Delia Hawk, a farmer and a new governor-appointed commissioner, asked McAlister if the Big Creek Research and Extension Team report would be completed soon. Members of the public should have a chance to consider it in their comments, she said.
McAlister told commissioners that rule-making processes typically last a few months or more and that public-comment periods can be extended.
After some discussion on the terms of C&H's buyout agreement and the rule-making process, Freeze requested a 10-minute recess, which commission Chairman Robert Reynolds approved.
Freeze spent much of the recess on his cellphone, which he later told the Democrat-Gazette was because he had received questions from his fish farm's employees all morning.
When the meeting restarted, Freeze was the first member to speak.
"I've been informed that even if we initiate the rule-making ... if the [buyout] deal fell through ... we have the ability at that time to oppose the moratorium," he said. "Given that, I'm willing to withdraw my motion, though I guess it's not on the floor."
Once a rule-making process is initiated, McAlister said, officials can modify it.
"If the changes are material and significant, it usually results in a new draft and a new round of notice and comments saying, 'Look, we've made some changes. Here's where we are now,'" he said.
If the commissioners didn't like the proposed rule anymore, they could reject it, McAlister said.
The commission, without opposition, then approved starting the ban's rule-making process.
C&H Hog Farms opened in 2013 along Big Creek, about 6.6 miles from where it drains into the Buffalo River. The farm houses up to 6,503 hogs. Not long after the farm opened, conservation groups and others voiced concerns about its potential to pollute the Buffalo River and about the regulations that supported its construction.
In 2018, the then-Department of Environmental Quality placed Big Creek and the Buffalo River near Big Creek on its list of impaired water bodies that it submits every other year to the U.S. Environmental Protection Agency. It did not attribute the pollution to the farm but acknowledged it is a potential pollution source.
No research has definitively shown Buffalo River pollution caused by C&H.
The Buffalo River attracts more than 1 million visitors annually. The National Park Service estimated 1.2 million visitors spent $54.9 million in the region in 2018.
A Section on 07/27/2019