New comment period advised for hog farm

By Emily Walkenhorst

Posted: July 11, 2018 at 1:08 a.m.

A judge recommended to environmental regulators Tuesday a permit application for a hog farm within the Buffalo River watershed should go back out for public notice and comment after it was denied earlier this year.

The Pollution Control and Ecology Commission must approve or disapprove of Administrative Law Judge Charles Moulton's recommendation on C&H Hog Farms. A vote is scheduled for Aug. 24.

If approved by the commission, the hog farm's permit application would be reopened for public input more than two years after the farmers' first applied for a new operating permit. C&H is currently operating under an expired permit issued under a different, and now-canceled, regulatory program.

Richard Mays, an attorney for some opponents of C&H Hog Farms who intervened in the farm's appeal of its permit denial, said he had "pretty high" optimism that the department would not reverse its permit denial after another public-comment period.

"It certainly doesn't mean by any means that it's going to make a difference in the decision," said Mays, adding that he believes the department would still find the owners' application insufficient.

A spokesman for the department and an attorney for the owners declined to comment.

Agriculture groups have been dismayed by the department's denial of C&H's new operating permit, and some farmers have expressed concern about the department's ability to shut down a farm.

Conservation groups have supported the denial, asserting that land application of hog manure on the rough karst terrain of the river's watershed poses a risk that the river and its tributaries can become more easily polluted.

In his order, Moulton found that the Arkansas Department of Environmental Quality is not prohibited from having multiple public-comment periods on the same permit application.

In addition, the department's reversal from its preliminary approval of C&H's permit to a final decision denying it was akin to a "substantive change to a permit condition that resulted from public comment," which Moulton said was "generally accepted" as an impetus for another comment period.

The farm's attorneys had argued that a different conclusion by the department necessitated a second public notice and comment period.

The first public notice and comment period came after the department gave preliminary approval to C&H's application for a new operating permit.

Based on public comments, the department denied C&H Hog Farms an operating permit because the application did not contain a study on the flow direction of groundwater or an emergency action plan.

C&H Hog Farms operates on Big Creek, about 6 miles from where the creek drains into the Buffalo National River. The farm is authorized to hold 6,503 pigs and is the only federally classified medium or large hog farm in the area.

The typical hog farm doesn't need to renew its permit or apply for a new one without making major modifications because such operations are permitted under Regulation 5. But C&H is the state's only hog farm permitted under another category, Regulation 6, which is an expired permitting program that issued permits that last only five years before requiring renewal.

Both the hog farm's attorneys and the department's attorneys cited the same statue to make their cases, Ark. Code Ann. 8-4-203(e)(1).

Attorneys for C&H cited subsections (A) and (B) of the statute, which state that the department must provide public notice of its decision to issue or deny a permit and initiate a 30-day public-comment period. The department should have issued public notice after coming to a conclusion other than its preliminary recommendation of permit approval, which is what people commented on, the attorneys argued.

Attorneys for the department cited subsection (C)(i), which states that the department must provide a "final written permitting decision." That's "exactly what" the department did, its attorneys contended.

After reading Moulton's order, Mays said sending the permit back out for public comment may be better in the long run for his clients' case. If the dispute over whether the department followed proper procedure in its decision-making process is resolved now, that issue won't be brought up again if C&H's appeal of its permit denial goes to higher courts, he said.

NW News on 07/11/2018

Back to Buffalo

Regulatory rigmarole

Public Notice Resource Center

Notice Again at Issue in Battle Over 

Arkansas Hog Farm

Associated Press

A federal jury is punishing the world's largest pork producer with a $25 million verdict after jurors decided that two neighbors of a hog farm suffered unreasonable nuisances from flies, buzzards and rumbling trucks tied to an industrial-scale hog grower.

June 29, 2018

Jurors Slap Pork Giant Smithfield With $25M for Nuisances  

By EMERY P. DALESIO, AP Business Writer

RALEIGH, N.C. (AP) — A federal jury on Friday punished the world's largest pork producer, deciding Smithfield Foods should pay two neighbors more than $25 million for unreasonable nuisances they suffered from odors, flies and rumbling trucks after an industrial-scale hog grower expanded near their home.

The case, which was supposed to be one of the most favorable to Smithfield Foods out of dozens of similar pending lawsuits in North Carolina, turned out worse for the company than a previous lawsuit that rocked agribusiness in the country's No. 2 pork-producing state.

That earlier case, selected by lawyers for more than 500 neighbors who are suing industrial-scale hog farms in eastern North Carolina, ended in April with jurors awarding 10 neighbors $51 million for nuisances they'd long tolerated. The fine was cut to about $3 million because North Carolina law limits punitive damages. Friday's damages are also expected to be slashed.

Still, the April verdict led North Carolina legislators to pass a law this week erecting new barriers against nuisance lawsuits that all but eliminate the right of neighbors to sue Smithfield Foods, its contract growers or any other agribusiness. The legislation was needed "to save every farmer in this state from frivolous lawsuits," said bill sponsor Sen. Brent Jackson, an agribusiness founder and Republican who represents three counties in what is the country's heaviest concentration of industrialized hog lots.

Critics billed the legislation as an attack on private property rights in order to protect a well-heeled industry. The law adopted over a veto by Gov. Roy Cooper will be followed by demands for similar protection by other special interests, said Republican Rep. John Blust, an attorney from suburban Greensboro.

"This is like the first domino to fall," he said.

Smithfield declined to comment Friday, citing a judge's gag order meant to limit pre-trial publicity ahead of the next trials. More than a half-dozen lawsuits are scheduled for trial this year attacking Virginia-based Smithfield for its open-pit waste handling methods.

The lawsuits target the hog-production division of Smithfield— not the farm operators — because plaintiffs' lawyers said the company used strict contracts to dictate how farmers raise livestock that Smithfield owns. Smithfield is owned by Hong Kong-headquartered WH Group, which posted profits of about $1 billion last year.

Despite decades of complaints from neighbors and environmentalists, the predominant method of handling hog waste in North Carolina is collecting it in open-air pits that are emptied by spraying liquid excrement on farm fields.

Smithfield has continued using the low-cost method because it helps the company produce pork for less than in China, lawyers for the neighbors said. Smithfield began covering its waste pits on Missouri farms to reduce odors under pressure from that state's attorney general more than a decade ago.

Smithfield and pork trade groups counter that no alternative method — including covering cesspools for odor control or drying and trucking away manure — is economically viable in North Carolina. And anyway, Smithfield hog farms don't smell, the company's lawyers and allies said. The plaintiffs dispute the assertion.

Livestock owners' fears that they could be shut down by nuisance lawsuits were heightened after Smithfield's earlier courtroom loss. The company told farm operator William Kinlaw last month that he breached his contract with the pork giant that required him to control odors and "maintain proper sanitation." The company removed its revenue-producing hogs from the farm.

But "Smithfield has decided to provide him with some temporary financial assistance pending appeal" of its court loss, company spokeswoman Keira Lombardo said in an email this week. She said Smithfield would not discuss how much it is spending or whether it is keeping Kinlaw's business afloat. Kinlaw did not have a listed phone number and could not be reached for comment.

___

Follow Emery P. Dalesio on Twitter at http://twitter.com/emerydalesio . His work can be found at https://apnews.com/search/emery%20dalesio

Copyright 2018 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Arkansasonline

State regulators: Public notice on hog farm permit unneeded 

By  Emily Walkenhorst 

This article was published today at 4:30 a.m. 

Arkansas Times

News » Arkansas Reporter

ADEQ PIO fired

After ex-employee's comment critical of agency posted.

by Benjamin Hardy

June 28, 2018

On May 8, the Arkansas Department of Environmental Quality fired its public information officer, Kelly Robinson. A week earlier, Robinson's personnel file contained no negative evaluations or disciplinary action over the course of her 13 years of employment at ADEQ. But starting May 3, her supervisor, ADEQ Communications Director Donnally Davis, began writing Robinson up for a series of alleged infractions.

Robinson's personnel records, obtained through a Freedom of Information Act request to ADEQ, state that she was terminated for "insubordination and failure to follow policy" and reference "a pattern of withholding important information and sharing that information amongst other ADEQ employees."

However, the records only contain mention of a single incident, on May 2, in which Robinson allegedly withheld information from her supervisor. That day was the deadline for public comment on a new water quality regulation being considered by the Pollution Control and Ecology Commission, the body that oversees the ADEQ.

In the runup to the May 2 deadline, dozens of environmental advocates and organizations submitted comments opposing "Regulation 37," which would establish a credit-based trading program to regulate nitrogen and phosphorus from agricultural runoff and other activities. (Trading programs are a common means of regulating pollutants through economic incentives, with carbon cap-and-trade perhaps the best-known example.) Most of the comments expressed concern that the standards for the proposed nutrient water-quality trading program were too vague and lacked numerical targets.

But one critical comment, submitted May 2 by former ADEQ employee Ellen Carpenter, also marshaled publicly available figures to question whether the agency was capable of establishing a complex new system.

"The proposed draft Regulation No. 37 introduces an entirely new statewide trading program without considering the costs in terms of resources and staff to ADEQ to administer such a program," Carpenter wrote. "ADEQ has undergone significant reorganization in the past two to three years. New management positions have been created in the Director's Office, most of the senior managers who were career employees either are no longer with the agency or are no longer in the program area over which they have extensive experience, and a large number of staff positions occupied by those who perform the agency's work on the ground went unfilled during 2017[.]"

Carpenter cited budget figures, including a 50 percent decline in penalties assessed by ADEQ since Director Becky Keogh assumed leadership in 2015. Penalties declined from $662,000 in FY 2015 to $328,000 in FY 2017, according to the state's budget transparency website. Carpenter attached screenshots to her email illustrating these and other numbers, including an apparent increase in the number of employees earning high salaries between 2015 and 2018.

"In 2015, five employees of ADEQ made more than $85,000/year (the director, chief deputy director, deputy director, and two career employees). In 2018, 13 employees now make over $85,000/year. Of these 13 employees, it appears that only 2 have worked more than 10 years at ADEQ," Carpenter's comment said. As of June 22, the state transparency website shows 14 employees that make over $85,000 annually.

"Although I hope I am wrong, it appears that a significant portion of ADEQ's working staff might have been sacrificed to support the management reinvented at ADEQ since 2015," Carpenter continued. The point of including such information in her comment on Regulation 37, she said, was to raise questions about the agency's capacity to implement a new program. "ADEQ has no experience with any trading program and creating a trading program before understanding the staffing requirements and costs ... places the cart before the horse," she wrote.

Carpenter's comment didn't mention the names of specific employees, but it hinted at a complaint circulating among some ADEQ staffers for years: That veteran employees have been replaced by individuals with personal connections to Governor Hutchinson's office or the Republican Party of Arkansas. For example, Senior Deputy Director Julie Linck, the agency's second-in-command, is married to Kelley Linck, a former Republican state representative now serving as legislative affairs chief for the Department of Human Services. Davis, the ADEQ communications director, is married to J.R. Davis, the governor's communications director. Director Keogh is the sister-in-law of Doyle Webb, the chair of the state GOP.

***

As public information officer, Robinson was responsible for receiving comments and posting them to the ADEQ website. She received Carpenter's in her inbox May 2, along with 30 or so others. All were posted online over the course of the day.

What happened next is a matter of dispute. A narrative by Davis included in Robinson's termination documents concludes that Robinson was aware of the potentially sensitive nature of the comment, yet intentionally withheld that information from her supervisor. Instead, Davis said, Robinson surreptitiously told another ADEQ employee about Carpenter's comment. Davis appears to have learned about the comment only later that afternoon, after which she consulted with her supervisor, Julie Linck.

The next morning, May 3, Davis called Robinson into her office, demanding to know if she'd shared the comment with others. "When asked by her supervisor about the situation, Ms. Robinson lied," Davis' written narrative says. "Ms. Robinson was provided the opportunity to explain her actions, but she chose to keep the truth from her supervisor. ... Her actions were both intentional and insubordinate."

Robinson, who is contesting her termination, said this is false. She maintains she was unaware of the details of Carpenter's comment throughout the day.

"I was doing what was in my job description," she told the Arkansas Times. "As I received comments, I'd post them to the website." Robinson said she would always skim comments for profanity but wouldn't review them closely; her job was to ensure the comments were made public, not to vet them for content. "I did not have the time nor the luxury to read every public comment that came through my email," she said.

Carpenter's May 2 comment did stand out, she said, because it was lengthy — 27 pages including attachments — and because Carpenter herself had been a key player in water-quality regulations. Before her retirement in 2016, Carpenter was the chief of ADEQ's water division. Thus, Robinson said, she contacted the ADEQ's office of water quality to let their director know a potentially significant comment was coming down the pike from Carpenter. Robinson said she also notified Charles Moulton, the administrative law judge for the Pollution Control and Ecology Commission, which is responsible for approving new regulations such as the proposed nutrient trading program.

Robinson said she did not lie when Davis confronted her later. Communicating with Moulton and ADEQ staff about incoming public comments was a routine part of her job, she explained. "When she asked me, 'Who did you tell about Ellen's comments?' ... I thought she must be talking about somebody in the media. And I said, 'Nobody, no one.' " Davis took this as evidence of deception.

On the afternoon of May 2, not long after Davis became aware of the situation, all the public comments on Regulation 37 disappeared from the ADEQ website for several hours. Carpenter said she discovered this when she attempted to print off her comments later that evening. Robinson said Davis, along with Linck and a member of the agency's IT staff, met after reading the comment on the afternoon of May 2. "What they did behind closed doors, I don't know ... but the public comments all came down," Robinson said. The comments reappeared by the next morning.

Asked whether someone at the agency had temporarily removed the comments, ADEQ Chief of Staff Mitch Rouse said their disappearance was due to agency staff's reviewing the timeliness of the comments. "It was also because a lot of our IT staff was out, and so we didn't have the knowledge of how we usually do that operation," Rouse said in an interview. "The next day when our IT staff came in ... all those comments were put back online."

Director Keogh said in an interview that she was not in the office May 2 and did not see any of the Regulation 37 comments until later. However, she downplayed the significance of their temporary absence. "My understanding was comments were back online ... very shortly after the start of business the next day," she said. "Honestly ... that's a fairly new practice of the agency, I believe ... to make sure the comments are posted during the comment period itself, rather than waiting until the end of the comment period."

Carpenter said she printed off a screenshot of the website at 6 p.m. to document the temporary absence of the comments. "I just had a feeling that — they were up, they were down and somebody was going to get in trouble for posting my comments," she told the Arkansas Times.

Over the next several working days, Robinson accumulated a series of disciplinary actions. On May 4, Davis wrote her up for the public comment incident. The following Monday, May 7, Davis wrote her up for speaking again to Moulton after Davis had allegedly told her not to do so. On Tuesday, May 8, Davis wrote her up for sending out responses to two FOIA requests without Davis' approval. (The agency's media protocol explicitly lists responding to FOIA requests as a duty of the public information officer, and Robinson said she responded to 25 or 30 requests per month on average. She said she'd responded to FOIAs for years without seeking approval from her supervisor first. "Never have I been asked to have those reviewed before I send them out, unless an attorney asks me to hold onto it," Robinson said. "Why, all of a sudden, did [Davis] have an interest?")

The consequence on each infraction was the same: recommended termination. The forms were presented to Robinson on May 8, and she was offered the chance to resign. She refused and was fired.

A few days later, Robinson filed a grievance with ADEQ, saying she was unjustly terminated "based on misrepresentations and falsehoods" that could affect her future employment. "I was unfairly targeted as the 'fall guy,' " due to displeasure over Carpenter's comments, Robinson wrote in an attached narrative describing her version of events. "In effect, my supervisor began 'building a case' against me over a short period of time, precipitated by the Regulation 37 public comment made by Ms. Carpenter that was viewed unfavorably by the ADEQ director's office."

Her grievance hearing was in late May and lasted for several hours. On Friday, June 22, she received a letter from Keogh saying she was upholding the termination decision. Robinson said she plans to appeal to the State Employee Grievance Appeal Panel.

Davis and Keogh said the agency was unable to comment on a personnel matter when asked in a June 5 interview why Robinson was fired. Asked in general whether ADEQ has a protocol or policy that requires flagging certain public comments for review, Davis said it was the job of the office of communications to flag important information for agency leadership. "This particular comment addressed the director's office, so it goes without saying that that should definitely be brought to the executive team's attention," Davis said.

Asked whether a comment like Carpenter's would be treated differently from others, though, both Davis and Keogh said no.

"It's just, 'You need to be made aware this is out there, it's going to be made public, definitely look at it.' ... We would make the director aware, but the comment wouldn't be treated — wasn't treated — any differently than the other 20-plus comments we received that day," Davis said.

Keogh agreed. "We had eyes on the comments as they were coming in on the website, and there was some awareness that there was information about the agency operations that ... didn't speak to the elements of the nutrient trading proposal but spoke to the organization as a whole. I have a policy — I don't really want to be surprised, and so I want to make sure that we make sure that that information is shared with me. But it was accepted as a comment on the record and is still available, I think, on the website for public review," she said.

Robinson, in a later interview, said it was not typically part of her job to alert the director's office about comments, but she agreed that Carpenter's merited being flagged. "Had I known what all was in there, I would have," she said. But she again insisted she was unaware of its full contents until later that day.

"Never, ever have I received anything less than a stellar evaluation, whether it was in the private sector or in state government," she noted. "I just find it kind of curious why, all of a sudden, I just seemed to turn into a bad person — enough to warrant termination."

Robinson said she believes the agency has implied that she colluded with Carpenter to publish potentially embarrassing information, which she found especially distressing. "I love my job. I'd planned on retiring from ADEQ in another 10 or 15 years. Why would I shoot myself in the foot like that, especially when I have a passion for what I do? ADEQ was not a stepping stone for me like it is for other people in that agency," she said.

"[Carpenter] submitted FOIAs. I was the FOIA coordinator at the time. I provided her information through the FOI request. She also got information from the [Transparency website]. ... She made her own case. I did not work with Mrs. Carpenter and I'm highly offended they insinuated that," Robinson said. "It's appalling."

***

As for the substance of Carpenter's comment, Keogh defended her reorganization of the agency.

When Hutchinson appointed her to run ADEQ in 2015, she said, "the organization was broken up into siloed programs that were difficult often for other government entities or legislators or the general public to understand. ... [I'm] trying to reduce some of the barriers internally to be able to deliver our programs more effectively, to modernize what we do and to ensure that we're using the best science."

Keogh had worked at ADEQ before becoming director, including a 10-year stint as deputy director under former Gov. Mike Huckabee from 1996 to 2006. At the time of her most recent appointment, she was working in Houston for BHP Billiton, a multinational mining and petroleum company.

Before Keogh took over, ADEQ had 12 divisions, each headed by a "chief" that reported to one of two deputy directors. Keogh oversaw the consolidation of several divisions — solid waste, hazardous waste, mining — into a single Office of Land Management and reorganized the top level of management so that the division chief positions were replaced by "program directors" reporting to her. Such a structure was consistent with changes in other states' environmental regulations and the federal Environmental Protection Agency, she said.

Carpenter, though, said more has changed at ADEQ than the management structure: Many senior employees themselves left. She wrote that out of 11 division chiefs at ADEQ in 2015 (there was one vacancy at the time), eight are no longer employed with the agency.

Asked by email what accounted for such high turnover among senior staff, Davis said, "The division chief vacancies were a result of retirement, relocation, or opportunities at other state agencies and private industries. These vacancies allowed ADEQ to reorganize the structure of the agency to better align programs with statutory and federal funding streams." Davis and Keogh both said ADEQ now has greater flexibility to allocate staff and resources to programs where they're most needed.

Carpenter's comment also said 84 out of about 400 positions appropriated for ADEQ were unfilled as of Jan. 1, 2018, according to an FOIA request. "The unfilled positions included inspectors, engineers, ecologists, enforcement analysts and administrative staff, among others. The positions and numbers changed from 2017 to 2018, but both lists ... included the type of staff one might think of as doing the actual work of the agency," she wrote. Carpenter said the agency saved some $3.5 million by not filling those positions and questioned whether that helped pay for upper management.

Davis said the agency's employment cap, which is set by the governor's office, is actually 365, not the 405 positions formally appropriated by the legislature. Writing June 1, she said ADEQ has 346 employees. "We have approximately 20 positions that are being advertised or have closed that will be hired soon," she added. Turnover at the agency is low, she said — about 14 percent.

Keogh acknowledged the unfilled positions saved the agency money; she placed the figure at "roughly $2.5 million in salary savings over a two-year cycle." But she said it was appropriate for ADEQ to budget conservatively in recent years, given recent talk of declining federal grants from the EPA under the Trump administration. (So far, severe budget cuts haven't materialized.) Keogh also claimed the salary savings allowed ADEQ to increase pay for engineers and other technical staff without greater cost to taxpayers. However, figures provided by Davis show the average employee gross salary declined slightly over the past five years, from $47,106 in FY 2013 to $46,110 in FY 2018.

As for the 50 percent drop in penalties assessed on polluters, Keogh said that shouldn't be interpreted as a reduced commitment to environmental protection. "We do not believe that penalties equate to environmental compliance," she said. "Our ability to communicate what the requirements are and to be helpful to those that are regulated [ensures] that when they get permits, they understand them, [which] leads ultimately to better compliance for the state."

Small Arkansas town yearning to dim the lights; LED shift holds jarring cost

The following article was published in the Arkansas Times on August 15, 2013 and provides an historical perspective on how we got here.

Hog farm near the Buffalo River 

stirs controversy 

Critics say farm was carelessly approved and threatens watershed and community. Farmers say they followed law and permit protects environment.

By David Ramsey

       

The community of Mt. Judea sits on a hill along Arkansas 123, the scenic highway that snakes through the Ozarks in Newton County. This is the country that people have in mind when they think of the "Natural State" — clear rivers and creeks, craggy rocks, colorful cliffs and bluffs, springs, sinkholes, caves.

It is mostly quiet in Mt. Judea, save for when motorcyclists come roaring down 123 to take in the scenery. The people are protective of their small community and suspicious of outsiders and the federal government. "Everybody knows everybody and most everybody's related," they say.

Big Creek, one of the largest tributaries of the Buffalo National River, runs up the valley below Mt. Judea's blink-and-you'll-miss-it town center: a school, a general store, the Eagle Rock Cafe. On a hill across the valley, around a mile away as the crow flies, is C&H Hog Farm, the first facility in the state to get a concentrated animal feeding operation (CAFO) permit. The permit allows C&H to house 6,503 hogs: 2,500 sows, 3 boars, and another 4,000 piglets, which at three weeks old will be trucked off to another facility to be fattened for slaughter. The hogs belong to Cargill, by revenue the largest privately held company in the nation and the sole customer for C&H.

The farm has turned this quiet town into the center of a very noisy fight. Critics say it poses unacceptable risks to the Buffalo River watershed.

"I was alarmed about it for a couple of reasons," said Gordon Watkins, a farmer who lives on the Little Buffalo River, the next valley over from Big Creek, and the president of the Buffalo River Watershed Alliance, a citizens group that formed in reaction to C&H's permit. "One was the size and the scale of this thing and its proximity to Big Creek and the town of Mt. Judea and the school, and of course the Buffalo River."

"What really set me off was the fact that it was a done deal by the time we heard about it," Watkins said. "It had been done very quietly with no fanfare and even some neighbors of the property didn't know about it until after the fact."

Last week, a coalition formed by the Buffalo River Watershed Alliance, the Arkansas Canoe Club, the National Parks Conservation Association and the Ozark Society sued the two federal agencies that backed the loan to build the facility, claiming that the Farm Services Agency and the Small Business Administration failed to do adequate environmental assessments and offer adequate public notice. The coalition has also been sharply critical of the Arkansas Department of Environmental Quality (ADEQ) and the state permitting process that approved the facility, though it hasn't sued the state so far.

The controversy centers on the inevitable byproduct of the farm: pig crap. Based on C&H's nutrient management plan (NMP), the facility will generate more than 2 million gallons of manure and wastewater per year. The waste is first collected in 2-foot-deep concrete pits below the animals. Once the shallow pits, diluted with water, are filled, the waste drains into two large man-made storage ponds. Eventually, as the ponds fill, C&H will remove liquid waste and, in an agreement with local landowners, apply it as fertilizer on more than 600 acres of surrounding fields.

C&H, which began operations in spring, is still gearing up to full capacity. It currently houses around 2,000 hogs — gilts, not yet fully grown into sows — and they have yet to fertilize any fields.

Ten of the fields that will be sprayed with hog waste are adjacent to Big Creek, which flows into the Buffalo River less than six miles away.

Critics of the farm say that the amount of concentrated waste that will be produced is more than the vulnerable terrain of the Buffalo River watershed can take and that it will cause both odor and health problems in Mt. Judea. The farmers counter that the CAFO permit, and the nutrient management plan an engineer developed for them as part of the permit, offer sufficient safeguards and regulations to protect the environment and the town.

C&H is owned by Jason Henson and his cousins, Richard and Philip Campbell. According to Henson, before proceeding with the new facility, the three C&H farmers and Cargill wanted to get local input. They set up a meeting at the Mt. Judea firehouse months before they began the permit process. Henson said that the meeting showed Cargill that the farm would have local support.

An area resident who was in attendance at the meeting remembers it differently. The resident said that after a few tough questions, a Cargill representative shut the meeting down. (Many area residents with concerns about C&H were willing to speak only if their names were withheld.)

"They had no data, they had nothing at that meeting," the resident said. "It was absolutely a fiasco in my opinion. They were not prepared. They thought they were going to come in with a bunch of ignorant hicks and they were going to roll over them."

According to the resident, the meeting was not well publicized in Mt. Judea — the resident said that there were a large group of people from other areas but only a handful of people now impacted by the farm. It was "not a fair representation of the people that are going to be affected by it," the resident said.

In any case, Cargill decided that it wanted to proceed and sent Henson a letter of intent to contract as a buyer for the farm. The next steps for Henson: getting a permit and getting funding. Henson decided to pursue a CAFO permit, becoming the first applicant in Arkansas to do so. The CAFO permit, established by ADEQ in 2011, is a general permit — as the name implies, it's not individualized to the specific applicant, though the CAFO permit does require a nutrient management plan.

In using the general CAFO permit, C&H and ADEQ followed the letter of the law in terms of notice — the letter of intent and the nutrient management plan sat on ADEQ's website for 30 days.

"Obviously the average citizen is not trolling ADEQ's website on a regular basis," said attorney Hanna Chang of EarthJustice, a California-based environmental law firm that is part of the legal team representing the coalition. Key stakeholders and even relevant public agencies, such as the National Parks Service, were, by their own accounts, unaware. The first CAFO permit in the state, which happened to be for a site in the Buffalo River watershed, managed to go through with hardly anyone noticing.

"All that C&H needed to do to get the general permit is to submit certain information," Chang said. "If that information complies with what's required under the general permit, then bingo, they're in. There's a posting on the ADEQ website and they're finished. There was no individual hearing or comment on this facility. In terms of notice and comment, that was a huge flaw. Folks we know who were living within a half mile of the facility didn't know about it until it was built."

ADEQ Director Teresa Marks defended the general permit process. "You have to have some general permits because we deal with thousands of facilities and operations across the state," she said. "If we have to have local notice for every person that wants to proceed under the terms of a general permit, it would be very difficult to manage that."

However, the state is not dealing with thousands of CAFO applications — there has been only one. Marks acknowledged as much, and said that in hindsight, she believes that ADEQ should have gone above and beyond the minimum public notice required by law.

"In retrospect, I wish that we had a public meeting before and explained the nutrient management plan," she said. "I'm not sure it would have changed anything. But I understand the way people feel. They feel like this happened and nobody knew anything about it."

The notice process for a CAFO permit is now under review after a bill passed by Rep. Greg Leding (D-Fayetteville), Rep. Warwick Sabin (D-Little Rock) and Rep. Kelly Linck (R-Yellville) last session. "It's definitely time to look at the notice requirements," Marks said. "That's certainly something that has been of great concern. ... We are more than willing to revise those."

Once it had the permit, C&H secured FSA- and SBA-backed loans totaling more than $3.6 million. The FSA prepared a federally mandated environmental assessment (the SBA did not), but did not publish notice of a public comment period in any local paper in the area of the farm. Critics say that like the ADEQ permit process, the notice for the public was inadequate — but this time, the federal agencies didn't meet their minimum legal requirements.

"On the federal side, it's not a matter of what is common sense or polite or professional," National Parks Service Superintendent Kevin Cheri said. "It's what is required by law. Legally we should have been notified."

Cheri was particularly frustrated because the National Parks Service was listed as a cooperating agency on the cover sheet of the FSA's environmental assessment, when in fact, according to Cheri, it knew nothing about the document. Cheri noted that FSA has offices in the same building in Harrison that headquarters the NPS Buffalo National River office, but no one walked down the hall to tell him about the CAFO or the federal loan guarantee. "There was ample opportunity to communicate this if they intended to do so," he said.

In a February letter to the FSA, Cheri wrote that the inclusion of the NPS as a cooperating agency "gives the public and agencies reviewing the document the unrealistic view that NPS is on-board with the conclusions of the EA. In fact, nothing could be further from the truth." Cheri's letter goes on to articulate 45 flaws with the FSA's environmental assessment and their finding of no significant impact.

The FSA responded to Cheri in late March with 45 counterpoints, and argued that "although a cooperating agency, [NPS] was not required to be contacted." Both Cheri and the coalition that has filed suit believe that FSA's letter failed to address Cheri's key points. FSA state executive director Linda Newkirk declined to comment for this article, citing the pending lawsuit.

***

The coalition believes that in addition to the lack of notice, both the ADEQ permit and the FSA environmental assessment were shoddily completed and essentially rubber-stamped. The complaint filed in the federal case describes multiple errors, omissions and inconsistencies in the FSA's environmental assessment. While the coalition has not taken legal action against the state, Hank Bates — a Little Rock lawyer working with the coalition's legal team — sent a letter on its behalf to ADEQ, arguing that the CAFO permit should be revoked because of deficiencies in their review of the permit and the nutrient management plan. "ADEQ did not review that permit," Bates said. "The Buffalo River is too precious a resource to roll the dice on. When you look at the permit application, it doesn't instill any confidence."

One of the coalition's main concerns is the nutrients, and potentially bacteria, that they believe may seep into the water given the proximity of the spray fields to Big Creek (though the permit requires that C&H maintain a 100-foot buffer from the banks). Seven of the fields are listed as "occasionally flooded" in the NMP's soil maps. "Some people have voiced concerns about catastrophic failures," said Watkins of the Buffalo River Watershed Alliance. "That's a concern, but there's also the danger of this slow, continual creep that's going to occur once this gets into the groundwater and starts showing up in the creek and in the Buffalo. In the Ozarks, we're lucky if we've got 6 or 8 inches of topsoil. Then we hit gravel and then we hit water. ... Anything that's applied in these fields, if it gets through that shallow topsoil layer and hits that gravel, it's only a short way before it's in the water itself."

The coalition is particularly concerned about the 31,000 pounds of phosphorous that, according to the NMP, will be part of the makeup of C&H's annual hog waste produced. The University of Arkansas's soil tests recommended that no further phosphorous be applied to 15 of the 17 application fields included in the NMP. If phosphorous gets in the water, it could lead to nuisance algae, which would threaten the water quality, as well as the ecology of the river and surrounding areas, including plants, birds, and aquatic life.

The potential for problems is magnified because of the unique karst geology of this region in the Ozarks, with its irregular limestone formations. Karst areas are unusually porous and can have caves or sinkholes in unexpected places. Water often disappears underground; it's extremely unpredictable where that water will reappear.

Dr. John Van Brahana, a just-retired University of Arkansas geology professor and a renowned karst expert, believes that this was a possible shortcoming in the permit and the review of the nutrient management plan. ADEQ focused on surface water but "surface water and ground water in these types of settings is intimately related. ADEQ didn't look at ground water; they didn't look at any karst. The karst involves very reactive rock — as water moves through the cracks and fractures it dissolves the rock and enlarges those openings, facilitating movement of water through the system."

In a letter to ADEQ, Brahana wrote, "I know of no active karst consultant who recommends that a CAFO be sited on karstified limestone, particularly upgradient from so sensitive a natural resource as the Buffalo National River, with its direct-contact use by canoeists, fishermen, and swimmers."

Based on what is known about the karst in the Big Creek area where C&H is located, Brahana continued, "The groundwater moves as quickly as water in a stream, except that exact location of pathways is very difficult to predict. The high velocity of the water in conduits is capable of transporting sediment, organic matter, fecal waste, and dissolved solids from the CAFO."

If microbes in the hog waste ended up in springs and surface water after being flushed out by storms, Brahana said, it could lead to a public health disaster. "Those microbes cause more health-related problems than all other groundwater contamination combined," he said.

Brahana is now testing in the Mt. Judea area to establish a water-quality baseline, as well as dye testing to establish water pathways, and identifying and mapping karst features. Numerous area residents have taken up Brahana's offer to do free testing on their property. C&H has declined.

It's not just the sprayfields but the storage ponds themselves that give concern to those worried about risks at C&H. Some amount of seepage through the clay-lined ponds may be inevitable — the permit allows up to 5,000 gallons per acre per day, though C&H says this is dramatically more than what will actually occur. A Newton County-based ADEQ engineer, Marysia Jastrzebski — who was unaware that the permit had been approved until months after the fact — sent an email to ADEQ officials in Little Rock expressing alarm that her team had calculated around 3,400 gallons of seepage per day.

The coalition also expressed fears about a catastrophic failure. Other states have experienced failures in manure ponds and lagoons that led to the flow of massive quantities of waste into surrounding land and water. Michael Dougherty, president of the Buffalo River Chamber of Commerce and one of founders of the Alliance, said he has "every confidence that these farmers are going to do everything they can to make sure that doesn't happen. But the experience of wet hog CAFOs is very checkered. ... We have a national treasure in the Buffalo National River. One failure and this national treasure is compromised."

According to Brahana, the karst terrain gives additional cause for concerns about the clay storage ponds. "In some cases I've seen, relatively thick sequences of clay just get blown out there in the fractures themselves," Brahana said. "The weight of the water will blow those out so it's almost like somebody pulling a plug in a bathtub and it swirls, down it goes. Those are worst-case scenarios. But those are relatively common."

"The general permit doesn't have any requirements that whoever's approving the permit look at the actual geology of the location and take that into account," Chang said. "Just the very location of this facility is a problem."

ADEQ is upfront about the fact that Chang is correct that no special consideration was given to the particular geology of the Ozarks.

"The regulations and the permit were designed to be applicable all through the state, including this area," ADEQ Deputy Director Ryan Benefield said, adding that the permit requires setbacks if karst features such as sinkholes or caves were discovered, keeping the spray of fertilizer away from those features.  

Indeed, the specific location of C&H, including its proximity to the Buffalo, could not have any bearing on approval of the permit at all, Marks said. "The law does not allow us to treat the Buffalo River watershed any differently than it does any other watershed in Arkansas," she said.

Regarding concerns about phosphorous, ADEQ officials said that the permit relies on the phosphorous index (P-Index) developed by the University of Arkansas to evaluate the risk of phosphorous runoff. The soil tests referenced by the coalition — recommending no additional phosphorous — simply refer to optimum conditions for crops on the field, Benefield said. The P-index, he said, actually directly addresses the coalition's concerns: evaluating numerous site-specific factors to ensure that C&H will only be allowed to spray on fields that do not have a high risk of runoff.

As for the storage ponds, the C&H farmers said that they are in fact over-engineered, with the liners and volume both oversized by 50 percent more than was required by the regulation.    

"We wouldn't have issued this permit if we didn't feel like there were enough safeguards in place," Marks said. "Could there be something that happens? Sure. In any permit we issue there are always certain risks that some catastrophe could happen. With the fact that we'll be doing inspections on that farm, we feel like we will be able to know if there's going to be a problem."

If they did find an issue, Marks said, "Depending on the severity of the violation the Department may give the permittee an opportunity to correct the problem, fine the facility, or in a worst case revoke the permit."

For the coalition, the responses from ADEQ simply repeat what they view as the deficiencies and limitations in the permit. They believe that the NMP's safeguards are insufficient, but further point out that the safeguards that do exist are heavily dependent on perfect execution of the plan by C&H and enforcement by ADEQ.

"Their view is 'trust us moving forward,' " Bates said. "We're supposed to trust C&H, who has submitted a faulty permit application, to do the right thing. And we're supposed to trust ADEQ, who never read it, to do the right thing."

***

Jason Henson's argument is straightforward: "I did everything the law required me to do. I feel like I went above and beyond what the law required. If you follow the law, what else can you do?"

He said that the new facility built for C&H is significantly cleaner, less odoriferous, and more environmentally friendly than the smaller hog farms that have long been in operation in Newton County. The CAFO permit, he said, includes strict rules and guidelines regarding which fields C&H can spray and when they can do it, depending on weather factors, manure samples, and soil samples.

"We have so many rules and regulations that we have to follow," he said. "The way I see it, we are actually protecting the Buffalo River more than people that had it before us with no rules and regulations. If you are truly concerned with the river, you ought to be tickled to death."

He said that C&H planned to be "neighbor friendly" about when they were spraying fields (the permit specifically mentions avoiding weekends and holidays "when people in the area are more likely to be outdoors"). He said that he did not believe odor would be a problem but wanted to be proactive about that issue, and was investigating various technologies to mitigate smell. "We want to farm and be good neighbors," he said. "If we are hindering somebody else's lifestyle, we want to make sure we do everything we possibly can to fix that."

Henson said that the intense reaction to his facility caught him off guard, and said the local community supported him.

When I mentioned that a number of Mt. Judea residents told me that they were unaware of the facility until it was already under construction, Henson was incredulous. "We live in a very small community," he said. "For them people to say that they didn't know we was building a hog farm is really hard for me to believe because I had to get 17 fields to apply for this. So you're saying those people kept their mouths shut for two years? It don't make sense." He said the same applies to the National Park Service — as mentioned, NPS has vigorously complained that it had no idea. "That's a bunch of bull," Henson said.

In Newton County, the controversy over C&H is the sort of argument that quickly escalates beyond the simple facts of one particular farm. For many, the National Parks Service remains a bogeyman — there are all sorts of stories of granddaddy losing land when they turned the Buffalo into the nation's first national river.

"There's residual anger over the park being here," said Jack Stewart, a member of the Buffalo River Watershed Alliance. "It very quickly became a land rights issue. Once that happens, people close their minds."

The farm has attracted protests in Newton County, and the Fayetteville City Council passed a resolution opposing the permit given to the farm, both of which have exacerbated the us-against-them mentality that hardens around disputes over environmental concerns.

"We don't stick our nose in Fayetteville business and Fayetteville ought not stick their nose in ours," Henson said. "That's our mentality."

Newton County is also a place where a history of violence, particularly arson, still keeps folks on edge.

"You've got some bad eggs," one Mt. Judea area resident said. "They'll burn houses, kill people and bury them. They'll flat do it."

"They may be exaggerating, or they may not," said a resident of Jasper, the county seat and one of the biggest towns, population 466. "Where a lot of people live, by the time the sheriff gets there it's too late."

To be clear, nobody suggested that any of the C&H farmers would be involved in threats of any kind. Even among those that had concerns about the farm, the most common descriptions of Henson and the Campbells were "good boys," "good old boys," and "good Christian men."

Still for whatever reason, numerous area residents I spoke with mentioned a general fear of getting "burned out" if they stirred trouble. "It may not be so," one said. "But we've had a lot houses burnt down round here for some reason." Henson and the Campbells brushed this off; Philip Campbell said that he is the chief of the volunteer fire department and hasn't heard anything of the kind.

Of course, it doesn't take anything so extreme to make locals hesitant to speak publicly about any problems they might have with C&H. As nearly everyone I spoke with reminded me, Mt. Judea is "a very small community." People said they were reluctant to speak ill of their neighbors; many noted that the Campbells were an influential family in the county. As Henson himself said, "the community that we live in, you mind your own business and keep your mouth shut. That's our community."

Henson and C&H certainly have many strong local backers. The Newton County Quorum Court (of which Richard Campbell is a member) passed its own resolution expressing distaste at any "interference" from Fayetteville, and many residents have been vocal in their support. Barbara Hershey, who lives about a mile from the farm and has given C&H permission to spray fertilizer on her land, said, "These boys are trying to make a decent living. Leave them alone. I trust that they will do their best to keep the environment the way it should be because they were born and raised here. They don't want to screw up everybody's water."

"I don't mind you coming to enjoy my area," Hershey said. "But don't tell me how to do it."

Hershey's feelings of strong loyalty to the local farmers — and hostility to outsiders — are common among Mt. Judea residents. But I also spoke with around a dozen people in the Mt. Judea community who expressed concerns about the facility. These are folks with deep roots in the area, and their worldview is generally on the opposite pole from the people that make up the Buffalo River Watershed Alliance ("I'm not what you would call a nut," as one said).

These residents said that they could already smell the waste, despite the farm not being at full operational capacity and not yet having sprayed any fields. Several people that attend church with Henson said it had been noticeable from the church, though Henson said otherwise. "It's been a little touchy," one said. Said another, "They're claiming it's only Fayetteville people, that nobody local's complaining. That's just not true. A lot of local folks are upset."

"In the beginning, we were all promised you would not smell any smells — well I smell it almost every day," said another area resident. "If it's a calm morning and the fog has settled in, it stinks to high heaven. It's unbelievable ... it just knocks you down. ...There's been afternoons where it would almost gag you. I wouldn't want to put a barbecue grill in my front yard."

Another said that the smell was noticeable but manageable, but had concerns about what would happen if it got worse. "I'd hate for it to get smelling so bad that you couldn't go outside and enjoy," the resident said. "That's the kind of thing I think about because I'm outside 90 percent of the time. ... They're hard working people. I hate to down anybody for trying to work. But it's something that's going to impact everyone around them. It's going to be beneficial to them and nobody else, pretty much."

Several area residents expressed worry about Mt. Judea Elementary School, which sits just above spray fields; a play area behind the school is several hundred feet away from one of the fields as the crow flies. Others said the presence of the farm had severely damaged their property values.

"I don't mind another man doing what he wants to do on his land, as long as it doesn't affect me or my land," said one. "The first big rain is going to wash all that crap down on my [property]. They only looked at themselves. They didn't think about the community. ... I don't like it one bit but I'm just one against Cargill. If enough people get together I'll be right in the middle and run this dadgum Cargill out of the county. It's ruined me and ruined a bunch of other people." The resident said that "all that crap is going to run into the Buffalo" but it was "too late to do anything. The doggone newspaper people didn't do their jobs. Cargill has done bought the legislature."

Another said it was "bullshit" that the controversy came as a surprise. "Them boys should have known that they'd get kickback from the River. I told [Henson]. ... He's a good kid. He got indoctrinated by Cargill."

The coalition suing the FSA and SBA argues that concerns about air quality are about more than just stench — they say that particulate matter and gasses released into the air are a major public health concern. They point to studies showing links between respiratory and other health problems for people in close proximity to CAFOs, particularly vulnerable populations such as the children at the Mt. Judea school.

Henson said he was not concerned about health issues. "My two cousins have worked on a hog farm for over 14 years and they look fat and happy to me," he said.

"As far as saying that they can smell it, it is a farm," Henson said. "We're doing everything we can to keep them from smelling it." Henson said that they got a complaint about smell, passed on by ADEQ, prior to having a single hog at the site (a few residents suggested that there might be a tendency to blame any smell on the farm). In general, he was skeptical of claims about strong odors, and suggested when we were at the diner, "you can walk outside." (I spent part of two days in the town of Mt. Judea and did not notice a smell in the air.)

"It don't matter what it is, people have a fear of the unknown," Henson said. "I can understand that there."

"I'm worried about everything," he said. "You have to be. This is our livelihood. This is our community." He is a ninth-generation Mt. Judean, he said, and he's invested in protecting the area. The creek was where he and his daughter learned to swim, he said, where they were baptized. His daughter is a student at Mt. Judea Elementary School. "If I thought we was going to pollute anything, I wouldn't have done it to start with," he said. "It don't add up that we're going to do something to it. It don't make sense."

Henson said that C&H's impact on the community would be "very positive. We're bringing in tax dollars, we're helping local farmers [with free fertilizer], and we're creating jobs." Henson said they would be hiring between nine and 12 people to work at C&H.

The coalition argues that in fact, due to the impact on property values, the presence of CAFOs in communities tend to hurt the tax base. They also point to the economic impact on tourism, both in and around Mt. Judea, and all along the Buffalo, which generates $38 million per year and more than 500 jobs.

The tourism angle is what first caught the attention of Rep. Linck, who, in addition to the legislature, works as executive director of the Ozark Mountain Region Tourism Association. "Regardless of how well the farm operates, in tourism we're selling a perception," he said. "The perception of Arkansas is the Natural State. Although technology has changed what a hog farm is from years ago to what it is today, the perception of a hog farm is a nasty mess. ... From the perspective of tourism, it's a little frightening because we're selling the Natural State and we're selling the pristine river. ... The other fear is if this thing does have problems with pollution soaking into the karst geology ... my goodness, now you've really got a perception to overcome."

***

The Times arranged to tour C&H, with Beau Bishop of the Farm Bureau as a go-between. Bishop said that Henson and the Campbells would be willing to give a tour inside the facility, and said multiple times that they had "nothing to hide" and were eager to show their operation in action. Two appointments were made to visit and then canceled the day before (both, according to Bishop, because shipments of pigs arrived).

The third time, we met with Bishop and Henson at the cafe in Mt. Judea but were informed that we would not be able to do a tour inside the facility after all. Asked why, Henson said "biosecurity." This seemed to be a change in plans — had Cargill nixed the tour? Henson wouldn't say.

Henson did take us up to see the outside of the facility, past the "DO NOT ENTER" sign with Cargill's name just above C&H, along with the reminder "swine property of Cargill." Walking around the grounds, the smell was significant but not overwhelming. One of the giant waste-storage ponds was still empty, but for some rainwater; the other had begun to accumulate hog waste, a thick dark sludge.

The hogs, more than two thousand of them, were audible, enclosed in the two large barns, with an automated system providing feed and massive fans helping to control temperature and air quality.

Opinions about C&H may vary depending on what one calls a facility like this. The Farm Bureau and the C&H farmers call it a multi-generational family farm. Others view it as a "factory farm."

"It's not like this was the family homestead," Watkins said. "The Hensons and the Campbells, they often talk about how they've been there for eight generations. The fact is, this is land that they bought specifically to do this project. ... They want to couch it as a family farm. It's an industrialized factory farm. And they're sharecropping for Cargill, if you ask me."

Part of the fear expressed by the coalition is that C&H may be just the beginning. "One is bad enough, but once they get a toehold in there, then there will be a desire to put more and more farms in that area because it's more cost effective," said Emily Jones of the National Parks Conservation Association. "Arkansas should get ready, they're coming."

Linck, while careful to state that he respected that the C&H farmers followed the permitting process in place, said that he wished that the farm hadn't been located so close to the river. "Maybe this is a great model farm," he said. "Maybe everything about it is wonderful. I still don't want to see the hilltops of the Buffalo River dotted with these things."

A Cargill representative emailed the Times: "We hope to do business for many more years in Arkansas but we currently do not have any growth plans."

Asked about the controversy and the impact on the watershed and the Mt. Judea community, Cargill wrote, "The family followed the process set up by the state ... The farm has many supporters in the area ... The regulations, and the nutrient management plan that are in place, were designed by professional soil scientists and certified engineers to allow the farm to operate and protect the environment."

The hope of some, that Cargill might make it financially possible for the farmers to relocate, seems unlikely. ("We don't speculate" was the representative's response when asked whether there was any circumstance in which they would do so.)

Meanwhile, even if the coalition's lawsuit is successful, it won't necessarily do anything to slow down the operation of the farm. While the loss of the FSA and SBA loan guarantees would throw the C&H's underlying financing into question, Henson was not particularly worried. It's possible his creditors could proceed without a guarantee, he noted, and also possible that C&H could simply get someone else to guarantee the loan.While coalition members are adamant that they won't back down, it's not clear that they have any avenue to stop C&H now that it's up and running. Henson and his partners have no intention of shutting down. "We're in it for the long haul," he said.

NWAonline

Arkansas hog farm argues agency erred in decision process

By Emily Walkenhorst

Posted: June 7, 2018 at 4:30 a.m.

Attorneys for a hog farm in the Buffalo River watershed have filed a motion for summary judgment in their appeal of environmental regulators' denial of the farm's new permit application.

If the motion is granted by an administrative law judge and subsequently by the Arkansas Pollution Control and Ecology Commission, it would send C&H Hog Farms' permit application and regulators' decision to deny it out for public notice and comment before it could become final.

C&H's attorneys have previously argued that the Arkansas Department of Environmental Quality should have issued a draft decision to deny the permit, which would have been subject to public notice, public comment and a final decision considering those comments.

"ADEQ was required by law, regulation, and constitutional due process to provide public notice of its proposed decision and provide an opportunity for comment upon its proposed decision prior to issuing a final decision," C&H's attorneys wrote in their Feb. 7 amended request for a hearing on their appeal.

But the administrative law judge overseeing the permit appeal noted in an order Monday that, although he agreed with C&H's argument, he could not issue an order recommending sending the denial back to the department for that public review process because C&H had not filed a motion for summary judgment on that argument.

Arkansas Code Annotated 8-4-203(e)(1)(A) and (B) state that the department should give public notice to any decision to grant or deny a permit and that notice should include comments, commission Administrative Law Judge Charles Moulton noted.

C&H's attorneys filed the motion late Wednesday. The motion also asks that proceedings be stayed pending a decision by the Pollution Control and Ecology Commission, the department's appellate body.

The commission's administrative law judge must make a recommended decision on the motion, and the commission would have to approve it, as early as its July 27 meeting. The appeal is scheduled for trial Aug. 6-8.

Originally, in 2017, the Department of Environmental Quality issued a draft decision to approve C&H's permit application and accepted public comments on that proposal. In January, the department denied the permit.

The department denied C&H Hog Farms an operating permit in part because the operation did not conduct a study on the flow direction of groundwater or develop an emergency action plan, according to the department's responses to public comments on the permit application.

C&H Hog Farms sits on Big Creek, about 6 miles from where the creek drains into the Buffalo National River. The farm is authorized to hold 6,503 pigs and is the only federally classified medium or large hog farm in the area.

Richard Mays, an attorney for an intervenor opposed to the hog farm, said he didn't think recommended decisions to grant or deny the permit would have garnered very different comments from each other. His group, the Buffalo River Watershed Alliance, believes the issue of whether the permit should be approved or rejected was already the subject of the comments.

"We felt that was implicit in the previous notice for issuance of the permit, which many many comments were submitted against that," Mays said. "And we felt the denial of the permit was certainly a possibility that could have occurred as a result of that."

A spokesman for the department said officials could not comment on the case because it was an ongoing legal matter.

In two orders issued Monday, Moulton denied and granted several motions to dismiss arguments in C&H Hog Farms' appeal of its permit rejection and contention that it still has an active permit.

The two orders, one of which must be adopted by the Pollution Control and Ecology Commission, leave three arguments made by C&H still standing in its appeal of the department's denial of its permit.

C&H has filed a permit appeal and a separate claim that it still has an active wastewater discharge permit due in part to state rules and procedural errors made by the department.

Moulton denied C&H's claim that it has an active wastewater discharge permit in one order but allowed C&H's permit appeal to partially continue, partially denying the department's motion to dismiss it in a second order. The second order does not need to be approved by the commission.

Moulton granted the department's motion to dismiss C&H's claim that the department did not have the option to deny the farm a Regulation 6 permit.

C&H's original permit was a Reg. 6 permit, but the farmers applied for a Reg. 5 permit and were denied. The department had ended its Reg. 6 permitting program that covered C&H before the farm's permit expired about six months later on Oct. 31, 2016.

Moulton said no records showed that the department denied C&H a Reg. 6 permit and further noted that the department director has statutory authority to deny a permit anyway.

In the same order, Moulton also ruled that C&H's appeal of its permit denial could proceed because the farmers had provided "sufficient facts and law" in their request for the Arkansas Pollution Control and Ecology Commission to review the permit denial.

That order left C&H's three remaining claims against the department.

As it moves forward with its appeal, C&H can continue to contend that the department's denial of its permit was improper, that the department's response to public comments don't reflect the department's reasons for denying the permit, and that the department should have made their permit denial a draft decision requiring public notice and comment.

In a separate order, Moulton ruled that C&H's Reg. 6 permit expired when the department Director Becky Keogh formally denied C&H's application for new Reg. 5 permit. Moulton denied C&H's claim that its permit was still active, effectively dismissing that case but not the permit appeal.

In that order, Moulton granted intervenors' motion for summary judgment that the permit had indeed expired. The intervenors' are the Buffalo River Watershed Alliance and the Ozark Society, both opponents of C&H.

The Pollution Control and Ecology Commission must approve Moulton's decision at its monthly meeting. The next one is scheduled for June 22.

Metro on 06/07/201

Sierra Club Magazine

Fate of Buffalo River CAFO is in Question as Water Impacts Accelerate

BY JONATHAN HAHN | MAY 20 2018

Defenders of Arkansas’ Buffalo River, the first designated “national river” in the United States, fear that soil and water contamination from an industrial-scale hog farm is accelerating as the fight over its fate plays out in court. 

In 2012, after word got out that C&H, a large-scale hog facility, was under construction in the Buffalo River Watershed, a public outcry forced the Arkansas Department of Environmental Quality (ADEQ) to issue a temporary moratorium on any new CAFO’s in the Buffalo. C&H had quietly come into existence thanks to its initial application under a Regulation 6 permit, which did not require the owners to follow the usual standard public notification requirement for a concentrated animal feeding operation (or CAFO). ADEQ eventually discontinued the Regulation 6, which forced C&H to apply for a Regulation 5 Liquid Animal Waste Management Systems permit. On January 10 of this year, ADEQ  issued a decision denying C&H Hog Farms’ application.

If the decision to deny C&H the permit stands, it could effectively shutter the operation. The farm is under contract with Brazilian meat processor JBS, which has made clear that it would void that contract immediately if C&H fails to get the decision overturned. After ADEQ’s denial, C&H filed a motion for a stay so that it could be allowed to continue operating during the appeal process. The company was granted that stay, and then submitted its motion for an appeal. The judge overseeing the appeal has set a hearing date for August 5, 6, and 7.  

“We’re disappointed that the process is dragging out like this, because meanwhile C&H continues to operate, continues to spread waste, and the problem is just being compounded,” Gordon Watkins, the president of the Buffalo River Watershed Alliance, an all-volunteer group of local stakeholders that was formed in response to C&H Farms, said. 

The January denial came after ADEQ received nearly 20,000 comments during a months-long comment period, more than any the department has received on any issue (the Buffalo River Watershed Alliance submitted nearly 100 pages of comments). The decision was a victory for the coalition of local stakeholders that has opposed C&H, albeit a bitter one. C&H is fighting the decision in court, and as the appeal process drags on, residents, farmers, river stewards, and environmental and outdoors advocacy organizations—including the Buffalo River Watershed Alliance, the Ozark Society, and the Arkansas Canoe Club—fear a one-time environmental threat to the Buffalo River Watershed has turned into a full-blown crisis. 

C&H Hog Farms, co-owned by Richard and Phillip Campbell and their cousin Jason Henson (the “C” and “H,” respectively), houses approximately 6,000 hogs in large barns in Big Creek, near Mount Judea in Newton County (see “Buffalo River Hog CAFO Threatens America’s First National River”). The farm stores millions of gallons of hog feces and urine in two large ponds, waste that then gets sprayed onto surrounding fields—a process which poses serious environmental and public health threats. According to C&H’s own annual report for, it spread over 2.5 million total gallons of manure, process water, and litter on its fields in 2017. Soil tests on nearly every one of the fields have concluded that they are oversaturated with phosphorous. Even so, the state is still allowing C&H to apply waste to those fields. 

Phosphorous—the primary component, along with nitrate, in swine waste—tends to bind to the soil and build up, which then gets released over time. This has residents concerned about “legacy phosphorous.” A research farm in the Ozarks demonstrated that phosphorus can leach from the soil for decades even after waste applications have stopped; even if C&H ceased operating tomorrow, the impacts from phosphorus in Big Creek and downstream of the Buffalo National River could continue for years. 

The facility was built six miles from where Big Creek and the Buffalo River intersect, and is less than a mile from Mount Judea School, one of the poorest K-12 schools in the state.  

 

ADEQ’s decision to deny C&H a permit was based in part on a finding that the facility does not comply with the USDA Agricultural Waste Management Field Handbook. State regulations require that applicants must comply with that document, which details how geological investigations on a project like C&H must be done, including impacts on groundwater flows, emergency response plans to waste pond failures, along with a variety of technical requirements. C&H is sited on karst topography, a porous form of limestone made of soluble rocks that is particularly vulnerable to groundwater contamination. The field handbook guidelines make clear that a CAFO farm dumping millions of gallons of waste onto soil should not be sited on karst.  

“Our argument from the beginning has been that this was the wrong place, probably the worst place, that you could possibly locate a facility like this,” said Watkins. “That's now proven by ADEQ’s decision that they do not comply with this waste management field handbook.”

Residents fear a full-blown environmental crisis is already underway. There have been increasing incidents of large algae blooms in the Buffalo River downstream of Big Creek, in some cases 20 miles long. Algae blooms are typically a sign of the kind of nutrient overload, phosphorous in particular, from industrial-scale animal confinement operations. When the algae dies, it uses up dissolved oxygen in the water, creating a dead zone which kills off macro invertebrates and other organisms that can’t swim away. The blooms can cause massive fish kills, impair riparian ecosystems, make it difficult to paddle a canoe, and impossible to fish. 

There’s been no definitive study linking C&H to the algae blooms, but it is a stress indicator, one among a number of developing ecological crises that has residents concerned. Before C&H went into production, there were never such massive algae blooms. The blooms have been alarming enough that the state has now set up an algae bloom reporting app residents can download on their smartphone so that they can report the blooms if they come across one.  

Residents blame ADEQ for creating a potential environmental catastrophe that could take years to undo. “Had we the opportunity to comment when the permit was first being considered, we wouldn't be here today,” Watkins said. “C&H would have been denied a permit, at that location at least, and they wouldn't be stuck in the middle of this fight like they are now.” 

Meanwhile, with much of C&H’s fields oversaturated with phosphorous, the Campbell brothers are now transporting waste to another location known as EC Farms, which is owned by a third brother, Ellis Campbell. EC Farms, located in Newton County, is a former swine operation that long ago closed its doors. Nothing is farmed there and no animals are being raised. The Campbell brothers, however, requested a permit modification that allowed them to spread C&H waste at the EC Farms fields. EC received the modified permit from ADEQ in February, and C&H has been spreading waste to the EC fields since March.  

Carol Bitting is fighting the EC permit in court with two other women, Nancy Holler and Lynn Wellford, who have come to be known as the “Three Grandmothers.” They are awaiting a state circuit court decision on their appeal of the ADEQ decision to grant EC Farms a permit. The decision on the appeal could take months. “My husband and I and our grandkids and family have gotten to where we don’t go down to the Buffalo anymore except when I go to take pictures of algae and water quality,” she said in an interview. “I wouldn’t take my children down there to swim. It’s too risky.” 

Bitting is a biological technician who for over 20 years has lived in the watershed with her husband, an employee of the National Parks Service. She grew up in Arkansas; one of her first memories was swimming in the Buffalo. She’s also an avid caver who has caved the whole area. The couple lives within a mile of the Buffalo River and eight miles from C&H; they can smell the stench of the hog manure from their home.  

“It was devastating,” she said, describing her reaction in 2012 to the news that the state would allow a CAFO in the Buffalo Watershed. “To me and a lot of people, we couldn’t even talk about it for a long time, because it just crushes your chest.” 

Bitting has taken scientists and university students on field visits to take data and other samples, and is friends with others that work at the National Parks Service, as well as at ADEQ. Readings from water samples she’s taken show increasing levels of nitrate and phosphorous. Also, she’s reported very large readings of E-coli after storms, larger than she’s ever seen before. “Sometimes the increases are gradual, but there’s no question the levels are increasing.” 

 

In June, Bitting will take part in an algae study led by Ozark River Stewards and Dr. Bob Allen of the Arkansas Canoe Club. The Park Service and USGS have also conducted recent tests on dissolved oxygen, and residents are waiting to see if Arkansas will list Big Creek as one of the state’s impaired waterways. 

The ongoing effort to defend the Buffalo has taken its toll on many residents who have been in the fight since the beginning. Still, according to Bitting, who recently took a break due to exhaustion, there are signs that the community overall is starting to rally, and become more informed. 

“When I talk with people, I’m finding more and more that folks who live right here are becoming aware of what’s going on, and becoming aware that our water is deteriorating,” she said. “I’m finding that people want to change and make it better. That’s the good thing, in all this battle and all this fight. I’m really hoping that we can heal many of the attitudes and old emotions that people are carrying around over this, and start building a community for the future, and for our waterway.”

Fate of Buffalo River CAFO Is in Question as Water Impacts Accelerate

C&H Hog Farms appeals after permit to operate denied