Buffalo River Watershed Alliance
Baxter Bulletin
SCOTT LILES, Baxter BulletinPublished 8:00 p.m. CT Jan. 29, 2019
Trying to thread a legal and judicial needle, the Arkansas Pollution Control and Ecology Commission on Friday dismissed a Newton County hog farm’s appeal of its permit denial, arguing that the commission’s options were limited by a circuit judge’s order regarding the hog farm.
The dismissal means the Arkansas Department of Environmental Quality's November 2018 order shutting down C&H Hog Farms’ new operating permit stands.
Newton County Circuit Court Judge John Putman has asked the department to appear in court and explain why that order was not in contempt of a stay he placed against the Arkansas Pollution Control and Ecology Commission.
Department attorneys maintain that the permit denial was permissible because the department is not a party in the case in which Putman issued the stay.
In two legal filings in the hog farm’s lawsuit against the commission, Putman asserts that his court holds sole jurisdiction over the fate of the hog farms’ permit.
“At the present time, this court and no other agency or tribunal has jurisdiction over the Plaintiff's application for a Regulation No. 5 permit,” he wrote on Jan. 18. In an earlier filing, Putman noted that the court acquired jurisdiction over the permit on Sept. 6, 2018, when the hog farm filed its first appeal with the court.
That left commissioners Friday wondering what they could do with an active C&H appeal on their agenda without violating Putman’s court order that restrains them from acting.
After discussing their options for two hours, the commission approved a motion to dismiss the appeal arguing that Putman presently had jurisdiction over matter, and not the commission. The commission’s dismissal was not “with prejudice,” meaning that the hog farm may appeal again.
In 2011, 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 on 600 acres of adjacent farmland as fertilizer. Conservation groups have opposed the operation of the hog farm within the Buffalo River’s watershed, arguing that manure in the karst terrain increases the risks that the river could become polluted.
Last year, the farm applied for another permit with ADEQ, but that application was denied. C&H appealed ADEQ’s decision to the state Pollution Control and Ecology Commission, which determined that the department failed provide public notice of the final decision and failed to respond to public comments about that decision.
Citing those errors, the commission remanded the application back to ADEQ for further consideration. The farm then sued the commission, arguing that it should have reversed ADEQ’s original denial of the application and included instructions on how the department should reconsider the application.
In its Nov. 19 letter denying the hog farm its application, ADEQ cited water-quality issues and insufficient geological investigations into the karst terrain underneath the facility.
The hog farm should have conducted a “detailed geological investigation” of the karst topography where manure might be kept or applied as fertilizer, the ADEQ writes in its 10-page “Statement of Basis” for denying the operating permit.
Karst topography is characterized by sinkholes and caves. When water hits karst terrain, it is often funneled into groundwater through cracks in the and rocks, instead of flowing along the surface.
The hog farm also lacked an emergency action plan, the ADEQ wrote. Both the lack of a geological study and an emergency action plan were cited by the department in its January decision to not issue an operating permit to the farm.
Department officials are scheduled to appear in Newton County Circuit Court on Feb. 26 to explain why the department should not held in contemp.
C&H Farms of Vendor is owned by cousins Jason Henson, Phillip Campbell and Richard Campbell.
Arkansas Democrat Gazette
Judge’s orders complicate state panel’s deliberations
Emily Walkenhorst | Today at 2:13 a.m. | Updated January 26, 2019 at 2:13 a.m.
An environmental regulatory commission addressed what one attorney called a "God-awful mess" Friday by dismissing a hog farm's appeal of its permit denial, arguing that the commission's hands were tied by a circuit judge's order that was requested by the hog farm owners.
The dismissal means the Arkansas Department of Environmental Quality's order shutting down C&H Hog Farms' new operating permit stands.
Arkansas Politics Updates
Stay up to date with the latest Arkansas political news.
Sign Up
At the same time, Newton County Circuit Judge John Putman has already asked the department to appear in his court and argue why that order was not in contempt of his court. Putman has issued a stay on an Arkansas Pollution Control and Ecology Commission order that allowed the department to make a second denial of C&H's permit.
C&H appealed the department's second denial to the commission in December. The owners asked the commission to stay the department's decision until legal actions were seen through.
On Jan. 18, Putman issued another order stating, "At the present time, this court and no other agency or tribunal has jurisdiction over the Plaintiff's application for a Regulation No. 5 permit."
That left commissioners wondering what they could do with the active C&H appeal before them without violating Putman's order that restrains them from acting.
Department regulations require the commission to act upon a request for a stay in a permit appeal at the first commission meeting after the request, commission Administrative Law Judge Charles Moulton explained to the members. The commission had no choice but to act, lest they violate state rules, he said. Yet acting could lead Putman to believe the commission was violating his order.
"This is unprecedented, there's no doubt about it," Moulton said.
Sam Ledbetter, an attorney for the intervening Ozark Society, said the problem could be avoided if C&H withdrew its appeal of the permit denial.
"They're trying to drag this thing out," Ledbetter said of C&H, before calling the situation a "God-awful mess" and noting the two C&H attorneys' more than 75 years of legal experience.
"I've never seen anything like this before in my life," he said.
C&H attorney Chuck Nestrud countered that the farm's owners needed to appeal.
"If we did not appeal that decision, we would not have exhausted our administrative remedies," he said.
The commission discussed what to do with the appeal for more than two hours, with the terms "confusing mess," "confusing morass of maneuvering" and "blowing my mind" all used.
Over and over, commissioners questioned whether any of the motions proposed would not be considered in violation of Putman's stay and determination that he had sole jurisdiction.
Court-transfer snag holds up hog farm's suit against Arkansas agency
"I just feel like the horse is on its back and being beaten beyond death at this point," Moulton said nearly an hour and a half into the proceedings.
Other than the one that passed, motions included dismissing the C&H appeal and vacating the department's decision; ceasing to accept new docket filings; tabling the decision until after department officials appear in Newton County Circuit Court to argue why they should not be held in contempt of court (Feb. 27); and adjourning the meeting.
"It seems to me that, if we want to take any action that is consistent with the judge's order," then dismissing the appeal and vacating the decision "is the only way forward to deal with this," Commissioner Chris Gardner said.
Moulton said none of those were legal options, and that vacating the department's decision would still constitute an action on the permitting decision.
An hour and a half into the meeting, Gardner proposed another idea.
"We will dismiss the appeal because of Judge Putman's decision that we don't have subject matter jurisdiction," he said. Then they'd let Putman figure out whether that was OK.
The motion mirrored the first one considered by the commission, proposed by Commissioner Doug Melton, but removed the words "with prejudice." It passed without opposition.
Including the words "with prejudice" would have meant that C&H could not appeal the denial again.
Melton's proposal had been defeated 6 to 5.
Of the 12 men present on the commission Friday, none vocalized opposition to Gardner's motion on a voice vote. Commission Chairman Robert Reynolds votes only in the event of a tie. The commission's 13th member, Bekki White, was absent.
After Friday's hearing, Nestrud said he and others were reviewing the case but "most likely will appeal" the commission's dismissal.
Nestrud had asked the commission to make one of two decisions: take no action except passing an order that would affirm C&H can stay open during the circuit court stay; or stay the department's denial during the appeal process.
Commissioners argued C&H couldn't argue that the commission had no jurisdiction and then ask the commission to act by imposing a stay.
The lawsuit from which the order stems is C&H's appeal of the Arkansas Pollution Control and Ecology Commission's decision to remand the department's original permit denial back to the department for a draft denial and a second round of public comments.
C&H appealed the commission's order because it "remanded" but did not "reverse" the department's original permit denial. Putman issued the stay in October on the department's first permit denial and on the commission's decision to remand the permit issue.
C&H has two other active legal cases related to its permit denial, one of which is also overseen by Putman.
Last summer, C&H appealed a commission decision to uphold an order by Moulton denying motions made by C&H that argue that its original permit was indefinitely active until another type of permit was issued.
The final case, C&H's lawsuit against the department for alleged violations of the Arkansas Freedom of Information Act, still does not appear in a Pulaski County Circuit Court records search more than a week after Newton County Circuit Court officials said they would mail the case to the county.
Putman, who also presided over that case, ordered the case to be transferred to Pulaski County on Nov. 30.
Metro on 01/26/2019
Print Headline: Hog farm's permit appeal is dismissed
KTLO
By: Karen Hopper
January 21, 2019
A hearing canceled earlier this month in the C&H Hog Farms saga due to a paperwork processing snafu is back on the Newton County Circuit Court docket.
The purpose of the hearing is for officials from the Arkansas Department of Environmental Quality to appear and show cause why they should not be held in contempt of court.
However, records in the case did not reflect summonses having been issued for the ADEQ officials, leading to the cancellation. The officials must be served with legal process in order for a hearing to proceed.
But on Friday, Newton County Circuit Judge John Putman issued a second order scheduling a new hearing for Feb. 27th at 1:00 at the courthouse in Jasper.
The show cause hearing is the latest development following the state's effort one year ago this month to stop C&H Hog Farms from operating in Newton County by denying it a permit for disposal of liquid hog waste.
With no public notice of the denial, C&H appealed the decision to the Arkansas Pollution Control and Ecology Commission. APC&E determines the environmental policy for the state, and ADEQ implements the policies.
The state's Pollution Control and Ecology Commission remanded the denial back to ADEQ, but C&H appealed that decision.
Also in January 2018, Judge Putman issued a stay of ADEQ, saying his court gained jurisdiction when C&H appealed.
Then in September, ADEQ issued a public notice of a draft decision that would deny a permit for the large hog farm in the Buffalo River watershed. The notice opened a public comment period.
In October, on the heels of two public hearings regarding the proposed draft decision to deny a Regulation 5 permit application for C&H, Judge Putman issued an order allowing the hog feeding operation to continue despite the state's intent to deny a permit for its operation.
The order issued two stays, one on ADEQ's permit denial to prompt C&H's closure and the other on Pollution Control and Ecology's decision to send the permit application back to ADEQ to be reopened under a new draft decision.
In November 2018, C&H Hog Farms responded to the state's official denial of a new permit by asking the Newton County Circuit Court to hold ADEQ in contempt of court. A hearing followed in December in Baxter County Circuit Court.
Three days later, Judge Putman denied APC&E's motion to dismiss the appeal, allowing C&H to move forward in the appeal of the denied permit. As part of Putman's ruling, his stays issued in October remained in place.
In Judge Putman's December order he noted C&H has filed a motion to show cause alleging ADEQ should be held in contempt of court. C&H alleges on Nov. 19th, with knowledge of Judge Putman's order Oct. 17th allowing operation to continue, ADEQ denied a permit for the hog farm citing pig waste might be contaminating the nearby Buffalo River.
ADEQ's actions in spite of Judge Putman's decision to allow C&H to continue operating led to the orders for the contempt hearings.
Nwaonline
Panel to consider hog farm's request
by Arkansas Democrat-Gazette
The Arkansas Pollution Control and Ecology Commission will meet Friday to hear a petition to stay environmental regulators' denial of a new operating permit to C&H Hog Farms, among other issues.
C&H Hog Farms owners have asked the commission to stay the Arkansas Department of Environmental Quality's denial of the farm's new operating permit and to allow the farm to continue to operate under its expired permit while the farmers appeal the denial.
The commission approved a similar petition about a year ago when the department issued its first denial of the farm's application.
The farm's owners also have proposed as an alternative a stay that states that the commission believes continual operation of the farm is appropriate but ultimately denies the stay because relief has already been granted by Newton County Circuit Judge John Putman when he placed a stay in October on a commission decision allowing the department to reopen the permitting process for the second denial.
NW News on 01/20/2019
MIKE MASTERSON: Watchdogs' biasImpaired Buffaloby Mike Masterson | August 7, 2018 at 2:15 a.m.
It's troubled me for years that our Department of Environmental Quality (cough) relies on the Big Creek Research and Extension Team, with an obvious agricultural bent toward protecting C&H Hog Farms, to authenticate any contamination leaking from that facility into adjacent Big Creek.
Dr. Andrew Sharpley with two team members-to-be, including the extension agent for Newton County, were working with the C&H owners in their capacity with the University of Arkansas extension service before former Gov. Mike Beebe formed that team from within the university's Division of Agriculture.
When the university accepted that watchdog responsibility to document and prevent harmful effects to our Buffalo National River, Sharpley became its chairman. At the time they were called the Big Creek Research Team. The agricultural term "extension" was later added reportedly at the suggestion of a university extension service employee.
For me and others, the team's focus on agriculture rather than environmental sciences represents a conflict of interest that has shaken trust in anything it reports, or doesn't. Sharpley has been grilled about his biases in a deposition where he denied any conflict of interest.
I was especially troubled by his actions in initially failing to readily disclose to the Department of Environmental Quality the results of Dr. Todd Halihan's 2015 electrical resistivity imaging tests, which revealed an apparent subsurface fracture beside one of the factory's waste containment ponds.
I'm also bothered by the failure to acknowledge increasing levels of fertilizer-generated nutrients found in the Buffalo tributary Big Creek until the mess became bad enough to deem the creek impaired.
This and more indicates an unacceptable agenda to assist and protect C&H rather than as an impartial watchdog over the Buffalo, portions of which also are now officially contaminated.
And because of the state agency's politically efficient draft 4(b) category of these impairments, the department is not required to discover why. Being listed 4(b) means it need not determine the source of low dissolved-oxygen levels and the river's massive algae overgrowth containing pathogens, some harmful to humans.
Adding to the politicized aspects of such failure to protect both Ozark streams, the governor has appointed two members to the state's Pollution Control and Ecology Commission who are openly supportive of the mislocated factory with 6,500 waste-generating hogs.
Gov. Asa Hutchinson appointed Commissioner Mike Freeze in February, even after Freeze had sent two letters to the Department of Environmental Quality avidly supporting C&H. He is a fish farmer and a paid member of the Farm Bureau's State Board of Directors that also contributes to C&H's legal team.
Because of his obvious conflict, Freeze was asked last week to recuse from voting in the commission's review of a finding by Administrative Law Judge Charles Moulton. Moulton recommended denying a motion by C&H attorneys seeking to allow the factory's original discontinued operating permit to remain active indefinitely. Freeze said he refused to recuse because he supposedly knows more than when he was appointed in February and therefore could be impartial (cough).
Then commissioners voted 8-3 to approve Moulton's recommended denial.
The other commissioner I believe clearly supports the factory in its present location is Bruce Holland, a former legislator and cattleman, who also directs the Arkansas Natural Resources Commission. His deputy director, Ryan Benefield, was the Department of Environmental Quality's assistant director when that department approved the factory's original 2012 permit.
Holland's position matters because his commission is among the groups supposedly assigned to monitor Big Creek.
Freeze and Holland voted against Moulton's recommendation that determined C&H's coverage under its original Regulation 6 general permit had indeed ended in January when its application for the Regulation 5 permit was denied.
C&H lawyers had argued to commissioners that the factory's original general permit coverage should continue indefinitely anyway until being replaced by a Regulation 6 individual permit.
To swallow that illogical argument, one would have to agree the factory's Regulation 5 permit application (and resulting process requiring almost two years to process before being denied) was an exercise in futility. The judge's recommendation was approved despite Holland's and Freeze's no votes, along with that of retired farmer Rusty Moss of Dermott.
The argument in favor of continuing C&H's general permit coverage until it is replaced by an indefinite individual permit was in this instance ludicrous, as Moulton's opinion more politely pointed out.
And the willingness of Holland, Freeze and Moss (none lawyers) to vote against Moulton's reasoned findings I believe spoke volumes about any self-proclaimed greater knowledge and impartiality.
In light of such obvious bias among some commissioners responsible for policing pollution and enhancing ecology (not assisting agriculture), I'm hoping our governor will embrace fairness and balance by appointing commissioners from the Buffalo River Watershed Alliance and the Sierra Club.
------------v------------
Mike Masterson is a longtime Arkansas journalist. Email him at mmasterson@arkansasonline.com.
NWAonline
Court-transfer snag holds up hog farm's suit against Arkansas agencyby Emily Walkenhorst |
The Pulaski County Circuit Court still has not received the files for a hog farm's lawsuit against state environmental regulators nearly 50 days after a Newton County circuit judge ordered the transfer.
Proceedings in the lawsuit, which alleges that the Arkansas Department of Environmental Quality violated public-records law, cannot go on if the case is not actively filed in a court.
On Wednesday, employees of each circuit court offered different takes to the Arkansas Democrat-Gazette on how court transfers are supposed to occur, and the Newton County Circuit Court eventually said it would mail a paper copy of the case file to the Pulaski County Circuit Court.
Newton County Deputy Clerk Vanessa Moore said the case records were available electronically. She said the order for transfer had been entered into the system and that the Pulaski County Circuit Court was responsible for taking the records online and transferring them to its jurisdiction.
Jason Kennedy, assistant chief deputy clerk for the Pulaski County Circuit Court, said electronic transfers were not possible yet through the electronic system. While he could print off the records from the state court website, Newton County needed to certify they were the complete copy of the case file, he said.
Moore told the Democrat-Gazette later that the clerk's office would print out the case file, certify it and mail it to Pulaski County, even though she believed the process to be "a waste." The Pulaski County Circuit Court will be responsible for obtaining the $50 transfer fee from the Department of Environmental Quality to reopen the case in the new court.
C&H Hog Farms alleges the department violated the Arkansas Freedom of Information Act when it did not fulfill a records request the farmers made Oct. 10 for communications about their permit application and records related to other farms located in karst or areas suspected of being karst.
Instead, the department replied Oct. 14, arguing that the request was for "such a voluminous and broad category of records" that the department "cannot locate and identify potentially responsive records with reasonable effort."
C&H sued in Newton County, but Circuit Judge John Putman ordered the case be transferred to Pulaski County Circuit Court on Nov. 30 after the department petitioned for the transfer.
On Wednesday, C&H attorney Chuck Nestrud said he wanted the case to be transferred by now.
"I'm anxious to get it in Pulaski court so we can have a hearing," he said.
Two department spokesmen did not return an email seeking comment by Wednesday evening.
Metro on 01/17/2019
GREG HARTON: Shhhh! Public doesn't have to know, right?
by Greg Harton | January 13, 2019 at 1:00 a.m.
Here's an idea: In government offices at every level, administrators should make it an assigned duty of a high-ranked employee to interject a single question into every discussion of projects or major policy changes
Which question? "So, shouldn't we be notifying taxpayers and others affected by this and asking for their feedback?"
The most recent example of bureaucratic tone deafness comes from the University of Arkansas, which began cutting down trees for a street project last week. Those trees were near private homes. That anyone would be shocked by a negative reaction in Fayetteville to felling a bunch of trees demonstrates higher education doesn't always equate to common sense.
The UA isn't alone in the practice of asking for forgiveness rather than permission, or even just understanding. Whether it's state or local government, or sometimes public utilities, projects that can go through hundreds of hours of internal discussions get under way without anyone questioning whether the greater public ought to be brought up to speed.
Arkansas' worst-case example is the large-scale hog farm the state licensed to operate near a creek that feeds directly into the Buffalo National River. State agencies ostensibly focused on protecting the environment issued the initial permit for the hog farm without notifying nearby landowners, county residents or their leaders, the Arkansas Department of Health or the National Park Service.
Suggesting that nobody raised the issue of notification is, admittedly, a bit naive. Indeed, it seems possible, if not probable, in a lot of these "Oops, we should have told you" scenarios that a conscious decision to exclude public notification was made, a roll of the dice that increases the likelihood a project will be carried out before any concerned citizens have a chance to get all stirred up.
The Washington County Quorum Court and County Judge Joseph Wood recently created a similar circumstance with Wood's 2019 budget. Despite the Quorum Court's protests to the contrary, its members provided relatively weak oversight of the spending plans developed by full-time elected officials. The 15 members of the Quorum Court are supposed to be the last line of defense to prevent exorbitant spending.
Judge Wood included pay raises well beyond the 3 percent overall raises the Quorum Court favored for county employees. For example, his chief of staff, Carl Gales, saw his pay increase 28 percent, from $71,415 to $91,428. Three employees in Wood's financial management area saw 20 percent increases totalling $12,000, $9,389 and $6,419 a year. Wood's road superintendent realized a 26.4 percent, or $17,420, annual raise. Many others saw double-digit percentage increases. Wood's pay raises for employees totaled $269,797 beyond what would have been covered by the 3 percent raises the Quorum Court favored across the board.
Were they justified? Who knows? The Quorum Court did not question them. Wood's office was content to get them without public scrutiny. Nobody did anything illegal, but nobody can argue the sizable raises were delivered in the full light of day so that the public could understand the reasons Wood felt they were needed.
The admirable approach to public budgeting is fully exposing and explaining big pay increases or projects that will impact the public. If the changes are justified, why shy away from a public explanation? Laying such things out in full view also insulates them from later criticisms.
Public officials can ignore the public as long as the public allows it. We get what we ask for when we re-elect people who prefer to operate secretly when spending public dollars. Bureaucrats can function with impunity until they're called out by higher influences, such as a college board of trustees.
The strongest message to convince public officials they need to operate with transparency is to boot those who operate behind a veil of secrecy to the curb at the next opportunity.
Commentary on 01/13/2019
MASTERSON ONLINE: The incomplete index
by Mike Masterson | Today at 1:50 a.m.
Thanks to some fine enterprise reporting by Emily Walkenhorst of this newspaper, we’ve learned the index created by academics at the University of Arkansas at Fayetteville to measure levels of potentially contaminating phosphorus leaking from the surfaces of agricultural fields during rain has failed to include that which invariably drains through and into underlying karst terrain.
To that revelation I say: Oh, come now. You have to be kidding.
Excess nitrogen and phosphorus in water, both fertilizers generated by animal waste, cause algae to grow faster than ecosystems can handle, and result in danger to aquatic life from explosions of algae blooms and resulting low dissolved oxygen. Did you try canoeing through the mess along some 70 miles of the Buffalo last summer?
Agvise Laboratories reports that many states, out of environmental concerns over excess phosphorus application and runoff, are now regulating animal manure application, focusing first on its phosphorus content, followed by nitrogen.
I’m assured that streams such as our beloved Buffalo National River don’t care whether contaminants originate from runoff or subsurface fissures and cracks.
The excess fertilizer that attaches to soil particles and becomes trapped in the subterranean fractured limestone openings becomes known as legacy phosphorus. Unlike runoff, it can steadily pollute for decades and much longer.
The so-called Arkansas Phosphorus Index, developed in 2010, is primarily used by farmers, although processing plants and municipal wastewater plants have started applying it as well.
The index was established by Andrew Sharpley, a professor in the Agriculture Division’s Department of Crop, Soil and Environmental Sciences at UA, and others. Sharpley also heads the Big Creek Research and Extension Team.
That group, comprised largely of members of the University of Arkansas Agricultural Division, has received hundreds of thousands of taxpayer dollars over the past six years to monitor potential waste discharges, including phosphorus, from C&H Hog Farms.
I wonder, with all that expertise and an obviously inadequate Phosphorus Index, why this monitoring group hasn’t been taking carefully measured accounts of all known ways phosphorus enters natural waters statewide, especially where it is widely known the Buffalo watershed surrounding C&H is riddled with karst.
Walkenhorst quoted Brian Haggard, director of the Arkansas Water Resources Center at the UA’s College of Engineering, saying the variability of karst terrain means it shouldn’t be factored into the index. I suppose that means let’s pretend like it doesn’t exist. I’d sure want karst included in Mikey’s Imaginary Updated and Remarkably Complete Phosphorus Index.
The existence of pervasive karst in our Buffalo watershed is well-documented, including in caves and underground springs that honeycomb the rocky hills and mountains.
Water flow tests voluntarily conducted by emeritus Arkansas geoscientist and noted hydrologist Dr. John Van Brahana—not by our state—showed that dye he injected into property surrounding C&H traveled rapidly, was widespread and emerged as far as 12 miles downstream in the Buffalo.
“The state’s hog farms—and neighboring fields where hog manure is used as fertilizer—are often in karst areas in north and southwest Arkansas,” Walkenhorst wrote. “More often than not, the soil on which the manure has been spread has phosphorous levels that are considered excessive for plant nutrition, according to an Arkansas Democrat-Gazette review of the permits and soil analysis samples of about 100 Arkansas hog farms.”
The index, Walkenhorst wrote, “assigns a phosphorous-runoff risk value to land upon which a farmer wants to spread animal waste. Manure can be applied only on land deemed to have a ‘low’ or ‘medium’ risk of runoff, according to the Arkansas Department of Environmental Quality.”The Department of Environmental Quality (cough), which should never have approved the factory with up to 6,500 swine in this incredibly environmentally sensitive region without extensive testing, last year denied it a new operating permit.
The factory’s initial Regulation 6 permit issued in 2012 was discontinued and expired two years ago. Yet the factory has operated as usual since because of ongoing legal appeals.
In part, the agency, in its final permit denial last fall, was concerned about the presence of karst, the measurably increased phosphorus levels and the now-documented impairment of the nearby Buffalo River, Walkenhorst wrote.
C&H sprays the swine manure as fertilizer on surrounding fields along and near the Buffalo tributary, Big Creek, flowing six miles down into the Buffalo.
Jessie Green, executive director of White River Waterkeeper, told Walkenhorst the phosphorus index should have accounted for subsurface leakage. The fact it doesn’t is “a considerable failing.” Hmmm, ya think?
Sharpley said the index was designed only to measure surface phosphorus runoff in rain and is finally being updated to account for local conditions such as karst.
The original C&H permit application and nutrient management plan failed to account for the acres of karst upon which it has freely operated. Where was the Department of Environmental Quality in 2012?
Unbelievable stuff, eh?
Critics: Arkansas Phosphorus Index faulty; it gauges fertilizer on fields but omits terrain factor, they say
by Emily Walkenhorst | January 6, 2019 at 4:30 a.m.
The calculation used to determine how much fertilizer farmers can apply to their crops in Arkansas doesn't take into account the potential of the fertilizer leaching underground, meaning it doesn't adequately protect the state's waterways, critics say.
The Arkansas Phosphorus Index calculates the potential of phosphorous runoff during a rain. The index is largely used by farmers, but recently processing plants and municipal wastewater plants have been using it.
Where the Buffalo River is located, for example, the index doesn't take into account all of the ways phosphorus can get into waterways, critics say. The area is karst, which often features cracks, fissures and sinkholes that allow substances to trickle down and move underground.
But the variability of karst terrain means karst shouldn't be factored into the index, said Brian Haggard, director of the Arkansas Water Resources Center at the University of Arkansas, Fayetteville, College of Engineering.
The state's hog farms -- and neighboring fields where hog manure is used as fertilizer -- are often in karst areas in north and southwest Arkansas. More often than not, the soil on which the manure has been spread has phosphorous levels that are considered excessive for plant nutrition, according to an Arkansas Democrat-Gazettereview of the permits and soil analysis samples of about 100 Arkansas hog farms.
It's the raw soil samples, not the nutritional needs of crops, that pertain most to the index -- which is designed to address surface-runoff pollution.
The Arkansas Phosphorus Index assigns a phosphorous-runoff risk value to land upon which a farmer wants to spread animal waste. Manure can be applied only on land deemed to have a "low" or "medium" risk of runoff, according to the Arkansas Department of Environmental Quality.
The phosphorous index multiplies three things together: phosphorus source potential (based on soil tests and the phosphorous application rate), transport potential (how easily phosphorus might move, based on the slope of the land and other elements), and best management practices (such as ponds, fencing or buffers on the land).
Each of the three factors has its own factor that determines its value. Factors are assigned numeric values, even when they are not actual measurements, such as the values for how often an area of land floods (0 for "very rare," 0.2 for "rare," 0.5 for "occasional" and 2 for "frequent"). Soil samples help to recalculate the land's risk every year.
The index was put together by Andrew Sharpley, a professor in the Department of Crop, Soil and Environmental Sciences at the University of Arkansas, Fayetteville; Haggard; and others from the University of Arkansas System and employees of the Arkansas Natural Resources Commission and the U.S. Department of Agriculture.
Last fall, the Arkansas Department of Environmental Quality denied a new operating permit for C&H Hog Farms in Newton County in part because of concerns about karst, phosphorous levels and the impairment of the nearby Buffalo River.
The farm, located in the Buffalo River watershed, has become the focus of environmental groups that believe it is a threat to the national river. Phosphorus can contribute to algal growth in water.
Like many farms, C&H Hog Farms uses the manure its animals produce as fertilizer for its land. Often, farmers send the manure to other farmers who want to use the nutrient-rich material.
Farmers should factor in karst within devising their nutrient management plans, Haggard said. Such plans are required for poultry operations in 13 Northwest Arkansas counties (considered to have excessive nutrients) and hog farms. The plans can be more than 100 pages, and they describe how waste will be contained and disposed of.
Not every karst-susceptible area has karst, Haggard said. Farmers can look for visible signs of karst and determine what needs to be written into their plans, he said. Manure cannot be applied within 50 feet of a hole, Sharpley said, as an example.
But karst areas, which have little topsoil, can often include cracks underground that don't appear on the surface, said Gordon Watkins, president of the Buffalo River Watershed Alliance. That means phosphorus could leach into the ground faster and end up falling through cracks and into waters, he said.
Watkins acknowledges that phosphorus is retained in soil better than are some other nutrients. But, he said, that "legacy phosphorus" can leach for decades underground or through surface runoff.
"Legacy phosphorus" has been cited as a continuing contributor of phosphorus in the Illinois River watershed, where land application of poultry litter is now limited. Karst is formed when chemical weathering, such as acid rain, or natural dissolution breaks down limestone, dolostone marble or evaporite deposits -- types of geological formations, according to the Encyclopedia of Arkansas.
Karst terrain can have caves, springs, "disappearing streams" and sinkholes, among other features. "Disappearing streams" are waters that disappear from the surface, travel underground through fractures and show up at a surface level elsewhere.
Karst is widespread in the Ozark Plateaus. A portion of southwest Arkansas has limestone and several springs and caves, and the Boston Mountains region in north Arkansas has limestone and numerous caves and springs.
The Arkansas Geological Survey describes karst-susceptible land as running across north Arkansas, from Washington and Crawford counties in the west to Randolph and Lawrence counties in the east.
In comments submitted to the Arkansas Department of Environmental Quality on its new draft of impaired water bodies list, Jessie Green, executive director of the White River Waterkeeper, said the phosphorus index should account for subsurface leaching. It said the fact that it doesn't is "a considerable failing."
But the index was developed as a way to analyze surface runoff risks, not subsurface risks, Sharpley said. "That is not what this is designed to do," he said. C&H Hog Farms' permit application did not account for karst, which the Department of Environmental Quality decided was ultimately needed, among other things, in order to issue the permit.
The Department of Environmental Quality did not grant an interview request -- sought over the course of several weeks -- for this article.
In its denial of C&H's permit, the department noted that excess phosphorus not absorbed by crops is "vulnerable to removal by surface runoff or leaching." The statement of basis for permit denial also mentions that the phosphorus index "may still allow application of swine waste because of other factors."
After C&H's permit was denied, Watkins said the index is "only as good as what's factored into it."
The index should better account for local conditions, Sharpley said. He and others are updating the index, which was written in 2010, to factor in row-crop conditions of east Arkansas.
"That will probably look quite a bit different than the index for pastures, I would guess," Haggard said.
Metro on 01/06/2019
Arkansasonline
Environmental groups can intervene in C&H Hog Farms' appeal of its permit denial, a judge ruled Friday.
Arkansas Pollution Control and Ecology Commission Administrative Law Judge Charles Moulton issued the order.
The intervenors are the Buffalo River Watershed Alliance, the Arkansas Canoe Club, the Ozark Society, Gordon Watkins, Marti Olesen, Alan Nye, Robert Cross and David Peterson. All are opponents of C&H's operating location in the Buffalo National River's watershed.
The parties have successfully intervened in two circuit court appeals and successfully intervened in C&H's appeal of its first permit denial last year.
Buffalo River Watershed Alliance is a non profit 501(c)(3) organization
Copyright @ 2019
Contact Us