Buffalo River Watershed Alliance
Arkansasonline
OPINION
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.)
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
by Emily Walkenhorst
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
by Mike Masterson
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.
Mike Masterson is a longtime Arkansas journalist. Email him at mmasterson@arkansasonline.com.
Web only on 02/16/2019
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.
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.
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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.
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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
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