Buffalo River Watershed Alliance
Arkansasonline
by Emily Walkenhorst
The responsible party for issuing hog farm permits would change under a bill that cleared an Arkansas Senate committee Thursday.
The Arkansas Department of Environmental Quality would no longer have the authority to issue -- or deny -- hog farm permits under Senate Bill 550, sponsored by Sen. Gary Stubblefield, R-Branch.
Also, farmers would have the option to close the public notice portion of the typical permitting process. Public notice and comment are required under current law, but the bill would allow applicants to "waive" those requirements.
The bill, which cleared the Senate Agriculture, Forestry and Economic Development Committee without opposition and with not all members present, now heads to the full Senate.
The bill would affect only new permit applications after Jan. 1, 2021, and current permits would transfer on or before then.
In discussing the bill, Stubblefield said it was not about C&H Hog Farms in Newton County, whose new permit application was denied last year by the Department of Environmental Quality.
Stubblefield said the change is necessary because people who have both a poultry farm and a hog farm have to get their nutrient management plans approved at different state agencies.
The bill would make hog farm permitting the responsibility of the Arkansas Natural Resources Commission, which would issue de facto permits for hog farms if it approved of the farms' nutrient management plans.
"It's a bill that deals a lot with efficiency," Stubblefield told the committee.
Several people spoke against the bill Thursday, concerned that it would curtail the rules that applicants currently must follow when they seek permits. It would effectively eliminate the Arkansas Department of Environmental Quality's Regulation 5, which concerns liquid animal waste management systems.
That regulation specifies the use of the Agricultural Waste Management Field Handbook as guidance when crafting applications. References in the handbook led department regulators to deny C&H Farms' application last year.
Department of Environmental Quality officials told the committee Thursday that they are concerned that the change would dilute state rules regarding large concentrated animal feeding operations and make them less stringent than federal rules.
State rules must be as stringent or more so, department Chief of Staff Mitch Rouse said. Changing the permitting system could raise concern in the U.S. Environmental Protection Agency, which could revoke the state's ability to issue the permits, he said. Further, federal law requires an appeal process for permits, which the bill does not provide for, he said.
"I think one of our concerns is that we do have a robust administrative process to protect the permits that we issue and allow for everyone to participate in the process," department attorney Basil Hicks said. The bill would diminish that process, he said.
The bill allows applicants to appeal disapproved nutrient management plans to the commission's director.
John Bailey, a former department water division employee and current environmental and regulatory affairs manager for the Arkansas Farm Bureau, disagreed with that. Regulation 5 is a state permitting program, he said, and the EPA would be concerned only with the state's implementation of federal permits.
"I disagree with ADEQ that EPA would even blink an eye at Reg. 5," Bailey said. The Farm Bureau supports the bill, and Bailey said Arkansas Attorney General Leslie Rutledge's office did not oppose the bill.
EPA officials did not answer questions from the Arkansas Democrat-Gazette about whether the EPA reviews Regulation 5 changes or permits.
After the meeting, state department officials told the newspaper that the EPA is concerned with department regulations and actions as far as they pertain to upholding federal Clean Water Act requirements.
"EPA reviews ADEQ's state programs to ensure that they meet the minimum standards outlined in federal law," a spokesman said in an email. "If state regulations do not implement appropriate standards that comply with the Clean Water Act and other federal laws, then that would subject the entities under those regulations to review by EPA."
The nutrient management plan is only one aspect of the department's Regulation 5 permitting process, the department stated.
Leaders with the Natural Resources Commission were not available Thursday for comment.
No commission officials appeared to be at Thursday's meeting.
The commission currently has no official role in hog farm permitting but reviews poultry litter management plans.
Poultry farms do not require permits.
Poultry litter is often used to fertilize crops. It is waste that is combined with dry elements, such as hay, to reduce its liquidity and make it more transportable.
Hog manure, also often used as crop fertilizer, is nearly always kept in its liquid form.
Critics questioned whether the commission staff has the expertise that the Environmental Quality Department staff has in assessing permit applications, but senators argued that the commission staff has access to experts and the people who wrote the handbook.
"There's a good reason that liquid animal waste systems have been singled out for more scrutiny than dry litter," said Gordon Watkins, president of the Buffalo River Watershed Alliance, which was formed to oppose C&H Hog Farms' operation in the river's watershed.
Nutrient management plans outline how farms handle the waste produced by their animals and take into account the nitrogen and phosphorus contained in the waste. Excessive phosphorus in water can degrade water quality, cause algae to grow and requires years to reduce to healthy levels.
C&H Hog Farms opponents have complained that the state's current Phosphorus Index that limits the amount of waste that can be applied to land is not sufficient for protection of water quality in sometimes porous terrain.
Rainwater runoff from land on which poultry litter was applied is frequently blamed for causing high phosphorus levels in the Illinois River and its tributaries.
Oklahoma sued poultry producers in Northwest Arkansas over river pollution, and the amount of poultry litter spread on land in that region has been reduced. After months of testimony more than 10 years ago, a judge still has not ruled in that lawsuit.
Most farmers are good stewards of their land, Stubblefield said.
One person speaking against the bill noted the consolidation of dairy farms into large operations,and Stubblefield said regulations over the years have reduced Arkansas' dairy operations. Stubblefield used to be a dairy farmer.
He took issue with "some of these college boys that sit in a windowless basement and they draw up rules and regulations and they've never been on a dairy farm ... they put us out of business, but they still have a job."
Metro on 03/15/2019
DCReport
Trump Administration Pays Brazilian Meatpacker To Foul Arkansas River
By Sarah Okeson
A Brazilian-owned meatpacking firm that buys pork from an Arkansas farm suspected of fouling our nation’s first national river would receive about $5 million from Trump’s bailout program for American farmers hurt by his trade war.
JBS, the world’s largest meat processor, will sell 1.8 million pounds of pork products through a Trump bailout program that buys surplus commodities from farmers and ranchers.
“We at the Buffalo River Watershed Alliance find it ironic, and saddening, that bailout money intended to help American farmers is instead going to JBS, a multinational meatpacker based in Brazil,” said Gordon Watkins, president of the alliance. “…The pork gets shipped away, Brazil gets the money and the Buffalo gets degraded. It’s too bad this bailout money couldn’t be used to close or relocate this facility to a less sensitive location.”
The Buffalo River was befouled last summer by algae that sickened people, but the U.S. Geological Survey under Trump can’t decide if the nearby pig farm and more than 3 million gallons of pig waste those pigs produce each year are to blame.
A spokesperson for the USDA said the agency buys American commodities produced on American farms by American farmers.
Tell Agriculture Secretary Sonny Perdue your thoughts on our tax dollars going to foreign companies that support polluting our rivers. Write to him at U.S. Department of Agriculture, 1400 Independence Ave., SW, Washington, D.C. 20250. You can also tell Perdue your thoughts on Twitter.
The Buffalo River Watershed Alliance can be reached at buffalowatershed@gmail.com
In 2017, a conservation group, American Rivers, included the Buffalo on its annual list of the 10 most endangered rivers in our country because of pollution from the hog farm.
The red dot marks the approximate location of the C&H hog farm.
C&H Hog Farms, about 6.6 miles upstream of the Buffalo River in Newton County, supplies the U.S. operations of JBS. Cousins Jason Henson, Phillip Campbell and Richard Campbell own the business. Arkansas recently denied the farm a new permit, but the farm is continuing to operate while it fights that decision.
As part of Trump’s bailout, the administration is buying $1.2 billion in surplus products from farmers, including more than $500 million from pork producers, for distribution to food banks across the country. The U.S. trade deficit, which Trump claims can be combatted with tariffs, has hit $892 billion in merchandise trade, the largest in our nation’s history.
The Buffalo River runs for 153 miles from its start in the Boston Mountains through limestone bluffs and forests before joining the White River. Former President Richard Nixon signed legislation in 1972 putting the Buffalo River in the stewardship of the National Park Service.
Take action to save the river
by RICHARD MASON Special to the Democrat-Gazette | February 24, 2019 at 1:52 a.m.
To The Beautiful Buffalo River Action Committee: Resign!
You are doing more harm to the Buffalo National River by existing than you are by proposing watershed improvements. You are putting up a smokescreen that is hiding the factory hog farm problem.
I know the overall watershed has other issues, but there is one that overshadows all others, so huge that all your suggestions (and suggestions are all you can do) are immaterial if the hog farm continues to exist on the Boone karst limestone.
As an expert witness, I can tell you with certainty that, as I write this column and as you read it, the river is becoming more polluted. So if you really want to do something to save the Buffalo, you will resign en masse.
Consider the effect your committee will have on the river if the hog farm is not moved onto a suitable terrain. 1. The river will almost certainly be polluted. 2. Your suggestions on improving the watershed won't make a hill-of-beans' difference. 3. The amount of hog farm waste---as much as the city of El Dorado disposes of in a year---will eventually overwhelm the river, and all the watershed suggestions you might recommend (if they were put in place) would have such a minimal effect on the tons of hog manure residue that it would be impossible to discern you had done anything. (Nero fiddled while Rome burned, and the Beautiful Buffalo River Action Committee is fiddling while the river is becoming more and more polluted.)
On the other hand, if you resign after issuing a statement that the committee can't in good conscience function unless the hog farm is re-sited on suitable terrain, you will have made significant progress in making the governor and Department of Environmental Quality move the hog farm to a more suitable site. (The state should pay for the move; get out your checkbook, Governor.)
This is not a time to study or fiddle. It is a time to act, and every day of non-action puts more hog manure residue in the river. There are times when radical actions need to be taken to stop an ecological disaster from occurring. This potential pollution problem is not just a small trickle; potentially thousands of gallons of hog manure residue water will carry tremendous quantities of pollutants into Big Creek or into the subsurface, and that polluted water will work its way into the National Buffalo River.
This threat can't be overstated.
When the National Park Service posts the river as "No Swimming" and forbids the eating of fish caught in it, will you have any remorse about fiddling while the river becomes polluted? Since you are just a cog in the process, the blame must be spread around, and there are a lot of folks who are responsible, including our governor and congressional representatives.
The hog farm is the third serious challenge our national river has had, and through a lot of hard work and tremendous activism by the people who love it, the first two challenges have been defeated. The first was the Corps of Engineers plan to dam the river and create another dinosaur lake. Dinosaur lakes can be compared to the fins on a 1968 Cadillac. These oversized lakes have very little purpose except to impound vast amounts of water.
The river-killing Corps of Engineers proposed damming one of the last free-flowing rivers in the mid-South, but thanks to Dr. Neil Compton, who spearheaded the fight, it wasn't dammed.
The second challenge occurred in the summer of 1986 when a company applied for a landfill permit near the Buffalo River. Every conservation group in the state banded together to stop the permit from being issued. I was embroiled in a tough fight in El Dorado to stop a company called Ensco from receiving a permit to incinerate cancer-causing PCBs in a waste disposal incinerator. Although we didn't stop the company from receiving a permit, we managed to get a permit so stringent that the company eventually stopped the incineration. During that fight Gov. Bill Clinton appointed me to fill the environmental seat on the Pollution Control and Ecology Commission.
"An oilman to take the environmental seat on the Commission?" screamed several conservation groups. To say I wasn't well received by the rank and file environmental groups in the state is an understatement. However, I met with them, and all I basically said was to give me a chance. After a couple of years and some classic verbal fights during Commission meetings, I changed some environmental minds. I was awarded a Woody Award by the Sierra Club and named Conservationist of the Year by the Arkansas Wildlife Federation.
In 1986, as soon as I became a Commission member, I became embroiled in a fight to keep the Pindall Landfill from receiving a permit. The reason environmental groups were opposing the permit was because if the landfill leaked, the polluted water from the landfill would flow directly into the Buffalo River. It took a combined effort by dedicated conservationists to rally public opinion against the landfill and to come up with data from around the country from dozens of existing landfills to show that almost every landfill we examined eventually leaked.
When the Commission met in a packed hearing room, we had the hard evidence that if the Pindall Landfill was permitted there was an over 90 percent chance that it would someday leak and a 100 percent certainty that the polluted water would flow into the Buffalo. The Commission turned down the permit application.
Today we have an even more critical situation. While the Pindall Landfill leak would put several thousand gallons of polluting liquids into the Buffalo, the hog farm could put hundreds of thousands of gallons of hog manure residue into the river from runoff into Big Creek or by seeping into the subsurface of karst topography. The result could destroy the recreational use of the river.
I am not a left-wing environmental nut from Vermont telling you the sky is falling. I'm telling you this as a professional geologist with a master's degree from the University of Arkansas, six years as a PC&E commissioner, and as one who has walked the land, explored the caves, and spent hours on the river. If I'm not an expert witness, who is?
If you don't want the Buffalo National River polluted, you will do whatever you can to stop it. If we don't, the river will be lost.
Email Richard Mason at richard@gibraltarenergy.com.
Editorial on 02/24/2019
OPINION
MASTERSON ONLINE: A misleading plan
by Mike Masterson
My Feb. 16 column described how C&H Hog Farms wrongly claimed in its Regulation 6 nutrient management plan that 80 percent of its phosphorus-laden hog waste would not be spread across the Buffalo National River and Big Creek watersheds.
That naturally begged the questions of who, why and when this pig-in-a-poke percentage came to be included in the factory's claim about removing all that contaminating phosphorus.
At least one person involved in securing the permit must have arrived at this number to fit requirements. Remember the adage: "If you find a turtle upside down on a fence post you can bet it had help getting there"?
I believe the "who" involved logically could include one or more of the following: The nutrient management plan was prepared by Nathan Pesta and his firm DeHaan, Grabs & Associates (DGA) of North Dakota and signed off by C&H owner Jason Henson. Others likely included the Arkansas Department of Environmental Quality, the Arkansas Natural Resources Commission, the Arkansas Farm Bureau, the Arkansas Pork Producers, Cargill Inc. and/or the University Of Arkansas Division Of Agriculture Cooperative Extension Service.
The answer to "why" the erroneous loss factor was included, and how so much waste supposedly would be removed, was described in the May 25, 2018, deposition of Andrew Sharpley, Ph.D., distinguished professor at the University of Arkansas and team leader of the state tax-funded Big Creek Research and Extension Team.
Our state retained the team in 2013 under a memorandum of understanding with three objectives involving the factory. One stated the group was to "determine the effectiveness and sustainability of alternative manure management techniques including solid separation that may enhance transport and export of nutrients out of the watershed." In other words, how to profitably remove the environmentally damaging phosphorus from the site.
Pages 65-72 of Sharpley's deposition described the Big Creek team's attempts to develop a profitable method for removing those tons of waste and thereby avoid spraying it widely. Sharpley later in his deposition colorfully said they had been actively seeking a way of "turning s**t into black gold." Were preparers of the factory's nutrient plan told to allow for such an 80 percent storage loss because of this imagined "black gold" idea?
Regardless, in 2014, with C&H spraying full bore for over a year, the Big Creek team determined the unrealistic haul-away plan wasn't profitably feasible. Sharpley explained in the deposition: "It was not going to work. It was not going to provide a mechanism for that farm operation to remove nutrients from the watershed ... ."
So what happened to all that apparently unplanned phosphorus? Answer: It's continued to be applied on approximately 550 to 600 acres of watershed fields. But wait, what about that nutrient management plan for the original permit being based on the assumption--aka, unsound science--which assured 80 percent would never be applied in the watershed? Oops, our bad!
As I've written previously, the amount of such waste sprayed on fields in the Big Creek and Buffalo National River watersheds exceeds 2.5 million gallons each year, or about 4,400 gallons per acre, according to C&H annual reports. Obviously, all this waste contains significantly higher amounts of phosphorus than claimed in the original nutrient management plan.
Asked to describe specific amounts of phosphorus in the soil samples taken by the Big Creek team in the fields receiving waste, Sharpley testified that 32 of the 36 fields showed "above optimum" levels of phosphorus.
Perhaps there's another explanation for the bogus 80 percent claim? I mean, aren't those involved in planning this misplaced factory (and who provided input for C&H's initial stated plan) unquestionably among the smartest in agriculture, as well as knowing all requirements for proper waste disposal for hog factories?
But, as usual, I remain befuddled by the questions that so much seeming expertise raise. For instance, did this group know, or should they have known from the outset, that the factory at Mount Judea didn't have enough acreage to annually absorb 2.5 million gallons of untreated liquid hog waste? That amount times six years of constant application to these fields amounts to ... sorry, I can't count that high.
Shouldn't they also have known the karst topography that permeates this region wouldn't absorb nearly that amount of waste, leaving the over-application to end up flowing through groundwater to pollute the subsurface flow in all directions, logically including the adjoining major Buffalo tributary Big Creek and ultimately the Buffalo National River?
Wonder if their nutrient management plan approval and decisions were based on collective bad judgment, or on knowledge together with the willingness to risk the future of the state's greatest attraction (our precious Buffalo) for one factory's bacon and/or black gold? Finally, did they know, or should they have known, that this "black gold" plan to help gain the permit was never destined to work profitably?
All this raises still another "you've got to be kidding me" issue. C&H is now suing the Department of Environmental Quality and the Arkansas Pollution Control and Ecology Commission, claiming department erred by denying it a Regulation 5 permit last year. Meanwhile, our tax funds are being used to defend the agency for this permit denial that I believe (based on the factory's erroneous nutrient management plan loss factor) likely should have come initially in 2012.
If our Arkansas attorney general's office is going to use taxpayer funds in such litigation, it should include funds to investigate who was responsible for supplying the misinformation to secure the factory's original permit. It's called accountability up here in the Ozarks.
We deserve to know whether taxpayers have been duped into paying for either a big mistake and unsound science, supposedly to produce "black gold," or a deliberate misstatement of material information in the 2012 permit application at the expense of our national river, aka genuine Arkansas gold.
Arkansans will wait right here patiently for some honest answers.
Mike Masterson is a longtime Arkansas journalist. Email him at mmasterson@arkansasonline.com.
Web only on 03/02/2019
by Emily Walkenhorst |
Arkansas' highest court rejected Tuesday environmental regulators' request to review and stay proceedings in a lower court related to a judge's suggestion that the regulators are in contempt of his court.
The Arkansas Department of Environmental Quality should be found in contempt for denying C&H Hog Farms a new operating permit, based on current court filings, Newton County Circuit Judge John Putman stated in a December order asking the department to show why it is not in contempt. Putman has claimed in orders that, because of a case before him, his court has sole jurisdiction over C&H's permit application.
Department officials were scheduled to present their case at 1 p.m. today in Newton County, but Putman canceled that hearing late Tuesday, according to Richard Mays, an attorney for intervening environmental groups and individuals in the case. That is because Mays' clients still have an active petition before the Arkansas Supreme Court asking for the same thing the department did.
The Arkansas Supreme Court on Tuesday denied the department's motions for the Supreme Court to review the case -- a writ of certiorari -- and to find Putman had overstepped his jurisdiction and halt circuit court proceedings until justices can rule.
The department petitioned the Supreme Court on Thursday and requested a decision by today.
The court denied the petitions Tuesday in a one-paragraph order that did not explain the decision. Justice Josephine Linker Hart did not participate in the decision.
Department spokesmen and attorneys for C&H did not respond to requests for comment.
The decision is the latest movement in several legal battles between C&H and environmental regulators over the permit denial. Those legal battles led the Arkansas Pollution Control and Ecology Commission -- after two hours of debate about what commissioners could even legally do -- to dismiss an appeal of C&H's latest permit denial out of concern that Putman had prevented them from being able to act on the appeal, which it was required to do.
The case before Putman that led to the jurisdictional dispute is one in which C&H appealed a commission decision to remand its first permit denial back to the department for reissuance as a proposed decision, rather than a final one. C&H asserted the commission's decision did not go far enough and should have reversed the denial.
Since it opened in 2013, C&H has been targeted by environmental groups and others because of its proximity to the Buffalo National River. Opponents fear the amount of waste from the farm could find its way into the river and pollute the water.
In filings Monday, attorneys for C&H Hog Farms called the department's request "last-minute" and contended the department sat "on the sidelines" for months before making its request Thursday. The department could have intervened in the case but chose not to, attorneys argued.
Putman first ordered the department to "show cause" why it is not in contempt back in December. That was after C&H Hog Farms asked Putman to issue the order, a month after the department denied C&H's permit, and two months after Putman had stayed a lower court decision that remanded the permit application back to the department.
The department had already reopened the permit application process in response to the decision by the lower court -- the Arkansas Pollution Control and Ecology Commission -- and was in the middle of the public comment period when Putman issued his order staying the commission's decision.
The department, later arguing that it was not a party to the case Putman was overseeing, responded to the public comments and issued a final order in November denying the new permit, meaning the farm would have to shut down.
C&H then accused the department of contempt of Putman's stay order. Putman agreed but did not rule, requesting that the department show cause why it should not be found in contempt.
Putman canceled the hearing scheduled for today on the contempt charge, in which department Director Becky Keogh and Caleb Osborne, the associate director of the office of water quality, were ordered to appear. In a letter to parties Friday, Putman said he would favor continuing the hearing for a later date, if the parties agreed, because of Mays' clients' pending motion before the Arkansas Supreme Court. Parties then agreed to continue the hearing scheduled for today.
Mays' clients -- the Buffalo River Watershed Alliance, Arkansas Canoe Club, Gordan Watkins and Marti Oleson -- also petitioned the Supreme Court on Friday for a writ of certiorari or writ of prohibition of Putman's stay, arguing that the case before Putman is based on an order that cannot be appealed because it is not a final decision. Further, the circuit court does not have the jurisdiction Putman claims it does, the parties argue.
On Feb. 1, the parties appealed Putman's stay order to the Supreme Court.
Both cases are pending.
State Desk on 02/27/2019
Baxter Bulletin
Published 9:24 p.m. CT Feb. 25, 2019
The Arkansas Supreme Court has been asked to review and stay all proceedings in a Newton County Circuit Court case involving a hog farm operating near the Buffalo National River.
The Arkansas Department of Environmental Quality filed the request last week, arguing that Newton County Circuit Court Judge John Putman had reached beyond his jurisdiction.
Putman went too far, the department argues, when he issued orders suggesting he had stayed any department actions related to C&H Hog Farms’ permit application and requiring ADEQ to appear in court and explain why it should not be held in contempt of court for denying the hog farm’s permit application in November.
On two occasions last year, ADEQ denied C&H’s application for a new operating permit, which the hog farm needs to remain in business. C&H has continued to operate while it appealed those rulings to first the Arkansas Pollution Control and Ecology Commission, and then to the Newton County Circuit Court.
Putman issued an order in October staying the commission decision that had been appealed to his court. The commission serves as the department’s appellate body and had remanded C&H’s denied permit application back to ADEQ for re-issue as a draft denial, instead of a final decision. C&H appealed that decision to the circuit court because the commission did not reverse the department’s decision to deny the permit.
In January, Putman issued an order arguing that he has total jurisdiction over matters pertaining to C&H’s application due to his stay order.
ADEQ is not a party to the Newton County case in which Putman issued his orders. Because of that, the department argues in its filing, ADEQ “has no adequate remedy” to challenge the circuit court’s orders “except by petition for an extraordinary writ.”
The department asks for a writ of certiorari, which would allow the Supreme Court to review the case and vacate Putman’s orders. In the event the state’s highest court does not grant that writ, ADEQ requests that the Supreme Court issue a writ of prohibition that would order Putman to terminate his order for the department to appear in court on the contempt allegations.
Since the issue C&H appealed to the circuit court was limited to the commission’s decision, the circuit court’s jurisdiction does not extend to control of the hog farm’s permit application or any decisions surrounding it, ADEQ argues in its Supreme Court filing.
The department argues in its filing that it has the “exclusive power and duty to make permitting decisions.” The department is statutorily required to complete its permitting process, it notes, and that process had already advanced to the public comment period before Putman issued his stay.
Attorneys for C&H last week filed their fourth circuit court case related to the permit denial. The hog farm appealed the commission’s dismissal of its appeal of its second denial. The commission dismissed the appeal in late January, arguing that it had no jurisdiction because of Putman's stay order.
In 2013, C&H Hog Farms obtained a five-year permit to operate a large-scale hog farm next to Big Creek, a tributary of the federally protected Buffalo River. The farm houses 6,500 hogs, and the animals’ liquid waste is retained in two ponds and sprayed across 600 acres of adjacent farmland as fertilizer.
Since it started operation, the hog farm has been opposed by conservation groups worried that the hog waste could potentially pollute the Buffalo.
C&H Farms of Vendor is owned by cousins Jason Henson, Phillip Campbell and Richard Campbell.
Take Action to Save the River by RICHARD MASON Special to the Democrat-Gazette | February 24, 2019 at 1:52 a.m.
Justices asked to review hog farm caseIn filing, state regulators say circuit judge reached beyond his jurisdictionby Emily Walkenhorst
Arkansas environmental regulators have asked the state's highest court to review and stay all proceedings in a Newton County Circuit Court case regarding a hog farm within the Buffalo National River watershed.
The Arkansas Department of Environmental Quality said in filing this week that Newton County Circuit Judge John Putman has reached beyond his jurisdiction. Putman went too far, department attorneys argue, when he issued orders suggesting he has stayed any department actions related to C&H Hog Farms' permit application and requiring the department to "show cause" why it should not be found in contempt of court for denying the farm's permit application in November.
The filings address a knotty legal situation that has left regulators and attorneys unsure of how several filed appeals regarding various C&H Hog Farms permitting decisions can proceed.
The department denied the hog farm a new permit on two occasions last year, which would mean the facility must close. C&H's existence has been contested since 2013, when it first opened, because of its proximity to the Buffalo National River.
The department is not a party to the Newton County court case in which Putman issued his orders. Because of that, the department's attorneys contend, the department "has no adequate remedy" to challenge the circuit court's orders "except by petition for an extraordinary writ."
The department filed a petition with the Arkansas Supreme Court for a writ of certiorari, which, if granted, would allow the Supreme Court to review the case and vacate Putman's orders. If the court decides not to grant the writ, the department requests an alternative writ of prohibition. If granted, that would order Putman to terminate his order for the department to show cause on the contempt allegations.
Putman issued an order in October staying the Arkansas Pollution Control and Ecology Commission decision that had been appealed to his court. The commission is the department's appellate body, and its decision had remanded C&H's denied permit application back to the department for re-issuance as a draft denial instead of a final decision. C&H appealed that decision because it did not reverse the department's decision to deny the permit.
In January, Putman issued an order asserting that, because of his stay order, he has total jurisdiction over matters related to C&H Hog Farms' permit application.
The Newton County court hearing on the contempt issue is scheduled for Wednesday.
Because the matter C&H appealed to Putman's court is limited to the commission's decision, the "circuit court's jurisdiction does not extend to control C&H's" permit application or any decisions surrounding it, department attorneys argued in their filing.
Putman argued, after C&H attorneys filed a motion asking him to, that his stay of the commission's decision meant that the department could not proceed with the permitting decision, which prompted him to order the department to appear before him and argue why it should not be found in contempt of court.
The department's attorneys assert in their Supreme Court filing that the department has the "exclusive power and duty to make permitting decisions." Further, the department is statutorily required to complete its permitting process, which had already proceeded to the public comment period before Putman issued his stay.
The department also has filed a motion to stay proceedings in that case while deciding on the petition for extraordinary writ. The motion also requests for the Supreme Court to expedite its consideration of the petition and rule on it before Wednesday's hearing in Newton County Circuit Court.
Earlier this week, C&H attorneys filed their fourth circuit court case related to the permit denial. It appealed the commission's dismissal of its appeal of its second denial. The commission dismissed the appeal, arguing that it had no jurisdiction because of Putman's stay order.
State Desk on 02/23/2019
A Newton County hog farm has filed its fourth case in circuit court in the past six months, this time appealing a dismissal of its appeal of its second operating permit denial.
C&H Hog Farms is asking Newton County Circuit Judge Gordon Webb to order the Arkansas Pollution Control and Ecology Commission to clarify a decision it made last month regarding the hog farm's appeal of its permit denial.
But the decision to remand the commission's decision shouldn't be made until another case has fully been resolved, including any appeals, C&H's attorneys argue. The court should wait for Newton County Circuit Judge John Putman to decide whether the commission, on a separate appeal by C&H, should issue a reversal of the farm's first permit denial.
In that case, Putman has stated in orders that he is the only judge with jurisdiction over matters related to C&H's appeal. C&H had argued that that was the case before Putman issued any orders with that opinion.
The latest appeal provides another layer of litigation in a case that was described as a "mess" by multiple lawyers at a commission hearing last month.
But the appeal isn't a surprise to those involved, who acknowledged that C&H Farms owners were not happy with the commission's decision at that hearing.
Last month, commissioners attempted to reach a delicate balance of trying to decide how to handle the permit appeal and C&H's request for a stay on the permit denial -- on which they were required to make a decision -- while also facing a judge's order stating that only the judge has jurisdiction over permit matters.
After two hours of debate, the commission dismissed the appeal but did not specify whether the dismissal was "with prejudice" or "without prejudice." "With prejudice" means the appeal cannot be refiled.
"There was a great deal of anxiety obviously at the last meeting of us trying to do anything at all," Commissioner Doug Melton said Thursday, but he noted that the decision was unanimous.
"We decided to leave this in the hands of the circuit judge," Melton said.
Not specifying whether the appeal was dismissed with prejudice or without prejudice was insufficient, C&H's attorneys argued in their appeal of the commission's decision, filed Tuesday in Newton County Circuit Court.
"It is up to the Commission to make its decision clear, and support its decision with appropriate findings," the complaint reads. "In the absences of clearly articulate findings, C&H is unable to provide more specific allegations in this matter regarding the errors in Minute Order 19-05."
Minute Order 19-05 is the order that dismissed the appeal.
The commission could pursue only an involuntary dismissal if C&H, the plaintiff, had failed to comply with court rules, a court order or if no court action had been taken in the past 12 months, C&H's attorneys argued. That's established under Arkansas' Rules of Civil Procedure, Section 41, the attorneys note.
Webb should remand the decision back to the commission to specify whether the dismissal was with or without prejudice, and the commission should additionally identify what reasons it had, per the Rules of Civil Procedure, to dismiss the case.
C&H Hog Farms has long been the target of environmental groups concerned about its proximity to the Buffalo National River.
The hog farmers applied for a new operating permit in April 2016, ahead of the existing permit's scheduled expiration on Oct. 31, 2016.
In April 2017, the Arkansas Department of Environmental Quality issued a preliminary decision to issue the permit, and subsequently accepted public comment before making a final decision. In January 2018, the department issued a final decision denying the permit, citing application deficiencies raised in public comments.
Later that year, after C&H argued that the decision should not be final, the commission, which is the department's appellate body, determined that the department needed to issue the denial as a preliminary decision and again accept public comment.
C&H appealed the commission's decision, arguing that the department's denial should have been reversed, as well.
The department subsequently initiated another public comment period, which C&H argued in its appeal -- overseen by Putman -- it should not have been able to do because of the appeal before Putman. Putman agreed, but has not issued an order finding the department, which is not a party in the case, in contempt of court for doing so. A hearing on the matter is scheduled for Wednesday.
In November, the department issued its second final decision denying the farmers a new permit. C&H appealed and requested a stay on the denial, which was granted pending the commission's January meeting, which is when the commission dismissed the appeal for lack of jurisdiction.
Metro on 02/22/2019
Arkansas Democrat Gazette
In the struggle to salvage what relative purity remains of our precious Buffalo National River, legal depositions from last year raise pertinent questions about the nutrient management plan C&H Hog Farms submitted to gain its original Regulation 6 General Permit from our state's Department of Environmental Quality (cough).
For me, such revelations help explain why large amounts of phosphorus have accumulated around that facility since the permit was wrongheadedly issued in 2012. Excess nitrogen and phosphorus in water, fertilizers generated by animal waste, cause algae to grow faster than ecosystems can handle and result in danger to aquatic life from low dissolved oxygen and explosions of algae blooms.
May 2018 depositions reveal that the levels of phosphorus-laden liquid waste being spread from manure and urine lagoons across fields along and near Big Creek, a major tributary of the Buffalo, today far exceed the projected levels claimed in the factory's original nutrient management plan (NMP).
In her deposition, Monica Hancock, a land resource specialist with the Arkansas Natural Resources Commission, explained that the original C&H permit (defunct many months ago but still used by extension as a reason to continue to operate as usual) was based on an erroneous phosphorus storage loss factor. That has allowed waste to be spread for years which far exceeds normal levels. Hancock expressed concerns about those figures and resulting phosphorus overload.
The Arkansas Phosphorus Index (API) was developed to require nutrient management plans to reveal how much animal waste containing phosphorus, potassium and nitrogen can be safely applied to fields, all based on a variety of factors, including time of year, space and terrain.
This index also allows for storage losses for waste that isn't applied to the fields. Normally, zero storage loss is allowed for phosphorus waste. According to Hancock's deposition, the factory's NMP cited a storage loss factor of 80 percent for phosphorus generated at the factory. In essence, that meant 80 percent of the phosphorus waste in its lagoons would not be sprayed on fields, but somehow go away.
The consulting engineering firm hired by C&H to design its barns, waste lagoons and related systems was DeHaan, Grabs & Associates (DGA) of North Dakota. In her deposition Hancock identified Nathan Pesta and his employer DGA as responsible for preparing the factory's NMP.
So why was an 80 percent phosphorus storage loss ever allowed to be used in C&H's original permit without evidence? Perhaps because the original NMP relied upon most of the contaminant being trucked away.
That pig-in-a-poke idea clearly was determined not to be financially feasible, which logically would mean 100 percent of the phosphorus has remained on site. This obviously would result in much more phosphorous-laden waste sprayed on fields or leaking from waste lagoons over six years into the Big Creek and Buffalo River watersheds than what the Department of Environmental Quality approved under the factory's original permit.
C&H's 2018 annual report to the agency shows about 2.5 million gallons of untreated liquid waste was sprayed on about 570 acres of pastureland in the Big Creek and Buffalo River watersheds. This amounts to some 4,300 gallons an acre, with untold amounts of pollutants seeping through prevailing karst subsurface into groundwater, private wells, the tributary Big Creek, and ultimately our Buffalo. A lot of those pollutants (such as phosphorus) may be tied up in the soil and crevasses and steadily released for decades. Sadly, the Department of Environmental Quality last year classified sections of Big Creek and our precious Buffalo as now being impaired.
Such critical misinformation in the C&H nutrient plan raises many questions for me: Whose idea was it to originally claim 80 percent of the phosphorous-laden waste would be removed? On what scientific and economic data did Pesta base that conclusion? Was it deemed necessary to include such a storage loss figure to make the factory seem environmentally feasible? Would the state have rejected the permit had the actual phosphorous loss factor been submitted?
Gordon Watkins, who heads the Buffalo River Watershed Alliance, told me Pesta also was mistaken in his yield estimate of 6.5 tons of hay per watershed acre. "That might work in South Dakota, but it's a way unrealistically high yield for the Ozarks. That figure in part determines how much waste can be applied," he said, adding that an over-estimate of yield invariably results in an over-application of waste. "He [Pesta] also says it requires 56 pounds per acre of phosphorus to produce that 6.5 tons of hay. The most recent soil tests show levels of 130 to 330 pounds an acre, but they continue to apply more."
We know DGA and Nathan Pesta signed the NMP and were the consulting engineers hired to design the farm. Others including C&H's owners, Cargill, Arkansas Farm Bureau, Arkansas Pork Producers and the Department of Environmental Quality also were involved in securing initial approval.
With so many knowledgeable individuals involved, shouldn't someone have asked upfront if it was even feasible to eliminate 80 percent of the phosphorus waste and what happens if it can't be removed? That also would mean the state issued the factory's permit based on an initial material misstatement of critical information, wouldn't it? Pesta didn't respond to two emails sent to DGA asking how he arrived at his NMP calculations.
Financing for C&H was obtained through taxpayer-backed Small Business Administration and Farm Service Agency guaranteed loans. This also leaves me wondering if the permit issued based on one or more material misstatements on the NMP was used to obtain that financing.
Finally, if the permit was based on one or more erroneous points, wouldn't that be grounds for immediate closure? Under such circumstances, should the federally secured financing used to create the farm rightfully be withdrawn since taxpayers are on the hook?
I'm still hoping Pesta and others will fully detail how he arrived at the conclusion that so much of the factory's phosphorus would somehow disappear, as well as addressing Watkins' serious concerns.
Web only on 02/16/2019
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