Buffalo River Watershed Alliance
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.”
C&H Hog Farms appeals after permit to operate denied
Arkansas Times
The current focus of BRWA is the "Save the Buffalo - Again" campaign. In 2012, an industrialized swine concentrated feeding operations (CAFO) was built on the banks of Big Creek, just 5 miles upstream from the Buffalo National River. Government oversight, including lack of public notification, of this swine CAFO’s development was deeply flawed. The now operating CAFO threatens to destroy the fragile ecosystem of our nation's first National River. The Arkansas Department of Environmental Quality (ADEQ) who granted the original permit denied the second permit application. This is currently under appeal. BRWA along with the Arkansas Canoe Club and Ozark Society are intervenors in this appeal which is slated to be heard August 6, 2018 by the Arkansas Pollution Control and Ecology Commission’s Judge Charles Moulton. BRWA will have an information table throughout the event.
By Mike Masterson
Posted: May 5, 2018 at 4:30 a.m.
Perhaps you read last week about a North Carolina jury awarding $50.7 million to long-suffering residents living around an enormous facility known as Kinlaw Farm. It is a large-scale hog factory in Bladen County that contracts with pork producer Murphy-Brown LLC to raise about 15,000 hogs.
Murphy-Brown is a subsidiary of Smithfield Foods Inc., the Chinese-owned global Hogzilla of producing most things pork worldwide.
Here in Arkansas, Brazilian behemoth JBS, the world’s largest meat processor, supports and supplies the controversial C&H Hog Farms at little Mount Judea, located deep in the watershed of our Buffalo National River.
A jury sympathized with those living near the Kinlaw factory who had sued over the company’s questionable waste-management practices, such as storing enormous amounts of raw waste in open-air lagoons behind hog pens, then liquefying and spraying the toxic and foul-smelling stuff onto nearby fields.
A news story by investigative reporter Erica Hellerstein of Indy Week newspaper in Raleigh, N.C., told of the untenable situation for the 10 successful plaintiffs who were awarded more than $5 million each in damages. And this case was just the first of 26 similar lawsuits filed by others against the pork producers.
Among other issues with Kinlaw, Hellerstein reported, the plaintiffs complained of odors and mist from the spray invading their property, “that the hogs attract swarms of flies, buzzards and gnats; that boxes filled with rotting dead hogs produce an especially pungent stink; and that the stench has limited their ability to go outside.”
Michelle Nowlin, a prominent environmental attorney from Duke University, told Hellerstein the verdict was “a significant victory for the community members who live next to these factory feedlots. They have suffered indescribable insults, not just from the immediate impacts of the feedlots themselves, but also from decades of government failure to come to their aid. Litigation was their last chance for justice, and this verdict and award will help them move forward.”
“This verdict proves once and for all that ‘cheap meat’ is a myth,” the lawyer continued. “Someone pays the price of production, and for far too long, that burden has been on the rural communities that are home to North Carolina’s factory farms.”
Nowlin said she hoped the landmark decision would force the industry to modernize its waste treatment “to the benefit of rural communities, the environment, and the farmers themselves.”
The North Carolina Pork Council wasn’t immediately available for comment. A statement from Smithfield said it would appeal the decision adding, “We believe the outcome would have been different if the court had allowed the jury to (1) visit the plaintiffs’ properties and the Kinlaw farm and (2) hear additional vital evidence, especially the results of our expert’s odor-monitoring tests. These lawsuits are an outrageous attack on animal agriculture, rural North Carolina and thousands of independent family farmers who own and operate contract farms. These farmers are apparently not safe from attack even if they fully comply with all federal, state and local laws and regulations. The lawsuits are a serious threat to a major industry, to North Carolina’s entire economy and to the jobs and livelihoods of tens of thousands of North Carolinians.”
We will hide and watch how this all plays out. As round one is complete with so many millions awarded to ordinary people (and 25 cases yet to be heard), the folks at Smithfield Foods have been put on notice in North Carolina.
But there’s also a legal twist. That state’s legislators created a law that limits the maximum payout to $250,000 for punitive damages in such civil cases. Interesting to me that in Arkansas, civil payout limitations on punitive damages also have been proposed as a constitutional amendment to be put before voters in November.
Meanwhile, here at home, attorneys for C&H, and those opposing its location, attended a hearing with the state’s Pollution Control and Ecology Commission’s administrative law judge Charles Moulton last week. There, they wrangled over the denial of that factory’s application for a revised Regulation 5 operating permit.
And wrangle they did, mired in technical jargon and arcane arguments over various aspects of regulations affecting the hog factory and whether permits had expired yet supposedly remain in effect, but not really, but really … I daresay trying to explain all the legalesy yada yada (my term) in comprehensible English would put most readers sound asleep.
Suffice to say my understanding is that the hearing revolved around questions over a permit necessary for the factory to continue operating, which it has been doing on its expired original permit (that particular permit program now canceled) since January, pending an appeal to be heard in August.
And it’s a safe bet that whatever decision is reached even then will be appealed. And so it goes and goes in the national river’s watershed that USA Today readers named our state’s greatest attraction.
Arkansasonline
By Emily Walkenhorst
Arkansas environmental officials did not sufficiently inform C&H Hog Farms' owners or the public about its permitting process or decision-making about the farm, the farmers' attorney argued in a court hearing Monday.
But the state didn't have to do what C&H says it should have, the officials' attorneys contend.
The Arkansas Pollution Control and Ecology Commission's administrative law judge said he will rule in the coming weeks on motions to dismiss arguments made in C&H Hog Farms' appeal over being denied a new operating permit.
The Arkansas Department of Environmental Quality has filed a motion to dismiss the appeal, and C&H has filed a request for a partial summary judgment finding that it still has an active federal permit and that the department improperly failed to seek public comment on its denial of C&H's permit.
The commission serves as the department's appellate body.
Judge Charles Moulton also asked attorneys for C&H to file a motion to split their claims into two cases, and he said he would rule after that.
The case currently concerns claims made about two regulations that control hog farms: Regulation 5 (state no-discharge permits that all hog farms other than C&H are covered under) and Regulation 6 (the state's program for issuing federal discharge permits). "Discharge" refers to whether waste is allowed to leave the property, not including being applied to land as fertilizer elsewhere.
C&H, in Mount Judea on Big Creek, a Buffalo River tributary, had a Reg. 6 general permit, a type of permit the department no longer issues. That permit expired Oct. 31, 2016. Farm owners applied for a Reg. 5 permit in April 2016, before the department decided to discontinue the other permitting program. The department denied that application in January, and the farmers applied for a Reg. 6 individual permit last month.
At Monday's hearing, C&H attorney Chuck Nestrud argued that the department should have sent out a public notice of intent to deny C&H's permit before issuing its final denial decision.
Nestrud said the department is required to issue a notice of its draft decision on a permit and wondered if events would have turned out differently if C&H had been given a draft notice of denial and been able supplement its application with what the department said had been lacking.
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.
Department attorney Stacie Wassell said the department issued a draft permit decision to the public before accepting the public comments that eventually changed the department's mind. She said nothing in the department's regulations state that the department needs to issue a second draft permit decision.
Richard Mays, attorney for intervenor Buffalo River Watershed Alliance, agreed with Wassell.
Moulton said case law submitted by Nestrud examining the issue did not appear to mirror the situation discussed Monday.
Nestrud also contended Monday that the department did not tell C&H when it needed to apply for a permit renewal or give notice that it would discontinue the Reg. 6 general permitting program. So C&H's permit is active until the department issues a new permit, he said.
The department notified C&H that it would discontinue the program in an undated letter.
By Debbie Doss and Elise Bennett Special to the Democrat-Gazette
Posted: May 3, 2018 at 2:51 a.m.
Along the wild waterways of Arkansas, turtles were once so abundant you never knew what kind you'd see around the next bend.
But lately it often feels like there are no turtles at all on some of our biggest and most beloved rivers. And that's a problem, for us and our precious waters.
So it makes no sense that a small number of people are allowed to profit off the unlimited commercial harvest and sale of Arkansas turtles. It's time for state wildlife managers to put an end to this unsustainable practice.
Trapping tens of thousands of turtles each year degrades our natural resources. And the majority of those turtles are then exported overseas to countries in Asia and elsewhere that use them for food or in old-fashioned medicines.
These are usually countries that have already decimated their own freshwater turtle populations, and are now helping do the same to ours.
Arkansas allows turtle harvesting from waters across roughly half the state, including the entirety of the Arkansas and Mississippi rivers. Game and Fish Commission harvest records show more than 1.1 million wild turtles were harvested between 2004 and 2012. More recently, 126,381 freshwater turtles were harvested from 2014 to 2016.
This harvest was geographically concentrated, with two-thirds of those turtles taken from only five counties. Currently turtle trappers can legally collect unrestricted numbers of 14 types of Arkansas turtles.
But scientists have repeatedly documented that freshwater turtles cannot sustain any significant level of wild collection without population-level impacts and declines.
For example, one study of common snapping turtles demonstrated that a modest harvest of 10 percent per year for 15 years could result in a 50 percent reduction in population size.
And an Arkansas study found that turtles from populations in heavily harvested areas were significantly smaller than those from areas where harvesting is not permitted.
That's why the organizations where we work, along with several other Arkansas-based environmental groups, petitioned the Arkansas Game and Fish Commission to end commercial collection of the state's wild turtles.
If Arkansas bans collections, it would join a growing number of states preserving important wildlife and natural resources. Missouri just recently banned destructive commercial turtle harvesting, and Texas proposed a similar rule. Alabama, Florida, Mississippi and North Carolina have all banned commercial collection of native turtles.
Lax regulation on legal turtle harvest like we have in Arkansas also makes it easier to get away with illegal harvesting. When one state allows turtle harvests but surrounding states do not, it's easier for poachers to poach turtles from states where it is illegal and smuggle them into the state that allows harvests to pass them off as legal.
Historically, Arkansas had one of the highest levels of aquatic biodiversity in the nation. But that abundance is rapidly declining because our native species are not protected.
That's especially bad news for one of our state's important economic engines: tourism. The majority of outdoor recreation here involves being on the water. And much of that outdoor tourism depends on opportunities for wildlife viewing in a place that bills itself as "The Natural State."
Freshwater turtles perform critical functions as the principal scavengers of our aquatic ecosystems. Without turtles to consume dead fish and debris, water quality can decline.
But with so many threats, from habitat destruction to pollution, there are fewer turtles around to perform this important job. Just look at the Buffalo River. Multiple major sources of pollution in the form of concentrated animal feeding operations already line the river and its tributaries.
We can't afford to lose any more of the aquatic critters that help clean our rivers and streams. We can't let people exploit these important animals in unlimited numbers.
All research on commercial turtle trapping shows that profitable levels of harvest are unsustainable. Turtles naturally have low levels of reproductive success, and since many trappers target larger adults, commercial harvest has widespread impacts on their populations.
Arkansas' precious turtles shouldn't be sacrificed so a few trappers can make a quick buck. The rest of us deserve the chance to enjoy wild turtles the next time we're boating, fishing or just floating along.
It's time for the state to ban this destructive practice and preserve our natural heritage.
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Debbie Doss is founder and director of the Arkansas Watertrails Partnership. Elise Bennett is the Center for Biological Diversity's reptile and amphibian staff attorney in the Southeast.
Editorial on 05/03/2018
Arkansas environmental officials did not sufficiently inform C&H Hog Farms or the public about its permitting process or decision-making about the farm, the farmers' attorney argued in a court hearing Monday.
The Arkansas Department of Environmental Quality has filed a motion to dismiss the appeal, and C&H has filed a request for partial summary judgment finding that it still has an active federal permit and that the department improperly failed to seek public comment on its denial of C&H's permit.
"I wish there was some law on it, because I can't find any," he said.
The department notified C&H that it would discontinue the program in an undated letter. The department lists that letter on its website as having been delivered May 3, 2016, about two weeks after C&H applied to renew its permit and about four weeks after C&H applied for a Reg. 5 permit.
Nestrud said that was not sufficient because it did not adequately declare that the program was ending.
Attorneys for the department said they complied with all notice procedures.
NW News on 05/02/2018
Print Headline: Hog farm critical of new-permit denial
Posted: April 30, 2018 at 4:30 a.m.
NWAOnline
A hearing this morning will give parties a chance to make their arguments about whether C&H Hog Farms was improperly denied a new operating permit by the Arkansas Department of Environmental Quality.
A full trial on C&H Hog Farms' appeal of its permit denial is set for August, but today's hearing will allow the department and the farm's owners to argue their separate motions for dismissal and partial judgment, respectively, in the case.
C&H Hog Farms sits on Big Creek, about 6 miles from where the creek drains into the Buffalo National River. The farm has more than 6,500 pigs, and is the only federally classified medium or large hog farm in the area.
The Department of Environmental Quality has filed a motion to dismiss the appeal, and C&H Hog Farms has filed a motion for partial summary judgment declaring that the farm still has an active federal permit. C&H Farms also asked the Arkansas Pollution Control and Ecology Commission, which is the Environmental Quality Department's appellate body, to dismiss the department's motion.
C&H's appeal, upon which the rest of the motions are based, asks that the commission find that the department's denial of its permit was improper.
The department filed its motion to dismiss the company's appeal at the end of March, arguing that it has the legal authority to deny a permit and that it went through the proper procedure for public participation and issuance of a decision as set out in state environmental regulations.
C&H contended in its February appeal that the department did not follow procedures because the department did not issue notice that it would terminate the type of permit under which C&H had been operating. The department argued that the permit type had expired and was not terminated.
In its motion for partial summary judgment filed in March, C&H contended that its permit remains active because the department's decision to deny a different type of permit did not end its coverage, and because the department did not properly terminate that type of permit or notify the company of that decision.
C&H responded April 18 to the department's motion to dismiss and repeated its argument that the department had not ended the company's coverage under its current permit because the department did not properly notify the company of its termination of the permit type. The company also argued that the department's motion to dismiss did not identify which "permitting" decision it believed was subject to C&H's appeal.
Administrative Law Judge Charles Moulton ordered April 20 that the groups argue their points at today's hearing, noting that "the parties have filed a number of motions that are presently pending" in the appeal case.
The hearing is at 10 a.m. at the Arkansas Department of Environmental Quality's headquarters at 5301 Northshore Drive in North Little Rock.
by Erica Hellerstein
April 26, 2018
In a landmark decision, the jury ruling on the first of twenty-six nuisance cases against pork-producer Murphy-Brown LLC awarded the plaintiffs damages of more than $50 million. The case, which went to the jury yesterday afternoon, was the first in a series of federal lawsuits filed by neighbors of hog farms against Murphy-Brown LLC, a subsidiary of the Chinese-owned global food giant Smithfield Foods. The plaintiffs argue that the company's waste-management practices, which consist of storing excess hog waste in open-air cesspools behind hog pens and then liquefying and spraying the remains onto nearby fields, has made their lives miserable. Among other things, they say that the odors and mist from the spray drift onto their property; that the hogs attract swarms of flies, buzzards, and gnats; that boxes filled with rotting dead hogs produce an especially pungent stink; and that the stench has limited their ability to go outside. The trial involved ten plaintiffs who live near Kinlaw Farm, a large-scale hog operation in Bladen County that contracts with Murphy-Brown to raise about 15,000 hogs. In an email, Michelle Nowlin, the supervising attorney for the Environmental Law and Policy Clinic at Duke Law and the Nicholas School of the Environment at Duke University, called the verdict “a significant victory for the community members who live next to these factory feedlots. They have suffered indescribable insults, not just from the immediate impacts of the feedlots themselves, but also from decades of government failure to come to their aid. Litigation was their last chance for justice, and this verdict and award will help them move forward. “This verdict proves, once and for all, that ‘cheap meat’ is a myth. Someone pays the price of production, and for far too long, that burden has been on the rural communities that are home to North Carolina’s factory farms. This verdict forces the industry to internalize and reckon with those costs. I’m hopeful this decisive victory will be a game-changer in North Carolina and force the industry to modernize its waste-treatment, to the benefit of rural communities, the environment, and the farmers themselves.” The N.C. Pork Council could not immediately be reached for comment. In a statement attributed to senior vice president Keira Lombardo, Smithfield Foods promised to appeal, writing:
We are extremely disappointed by the verdict. We will appeal to the Fourth Circuit, and we are confident we will prevail. We believe the outcome would have been different if the court had allowed the jury to (1) visit the plaintiffs’ properties and the Kinlaw farm and (2) hear additional vital evidence, especially the results of our expert’s odor-monitoring tests. These lawsuits are an outrageous attack on animal agriculture, rural North Carolina and thousands of independent family farmers who own and operate contract farms. These farmers are apparently not safe from attack even if they fully comply with all federal, state and local laws and regulations. The lawsuits are a serious threat to a major industry, to North Carolina’s entire economy and to the jobs and livelihoods of tens of thousands of North Carolinians. From the beginning, the lawsuits have been nothing more than a money grab by a big litigation machine. Plaintiffs’ original lawyers promised potential plaintiffs a big payday. Those lawyers were condemned by a North Carolina state court for unethical practices. Plaintiffs’ counsel at trial relied heavily on anti-agriculture, anti-corporate rhetoric rather than the real facts in the case. These practices are abuses of our legal system, and we will continue to fight them.
Read the INDY’s investigative series on Big Pork in North Carolina here. Here is the jury”s verdict, for $50.75 million, equally divided among the ten plaintiffs. The verdict orders that each plaintiff receive $75,000 in compensatory damages and $5 million in punitive damages. In a statement citing Smithfield’s attorney, spokeswoman Joyce Fitzpatrick argues that North Carolina law restricts punitive damages to no more than $250,000: “If a trier of fact returns a verdict for punitive damages in excess of the maximum amount … the trial court shall reduce the award and enter judgment for punitive damages in the maximum amount.”
This article was published April 24, 2018 at 4:30 a.m.
After appealing the state's denial of a Regulation 5 permit in the Buffalo National River watershed, owners of C&H Hog Farms are trying to cover their interests by applying for another form of five-year permit.
Meanwhile, the C&H appeal winds on toward an August hearing before an administrative law judge. The factory continues operating on its expired Regulation 6 general permit while regularly spraying untold gallons of raw waste onto fields around Big Creek, a major tributary of the Buffalo.
At the risk of being obtusely technical (and thus boring) today, I'm relaying my understanding of what's happening with all this C&H permittin' and denyin' and reapplyin'.
C&H began operating in 2012 as the state's only holder of a Regulation 6 general permit. There also exists a Regulation 6 individual wastewater discharge permit. Both are issued by the Arkansas Department of Environmental Quality (cough).
In determining compliance, the agency follows the USDA's Agricultural Waste Management Field Handbook. The book contains technical federal environmental requirements that should be met for a concentrated animal feeding operation (CAFO) like C&H to become permitted.
Such demands are especially relevant in a region whose karst-riddled subsurface is highly fractured, cavernous and filled with voids that allow groundwater to travel far and fast. Exercising such caution only reflects due diligence and common sense.
C&H's general permit expired in 2017. The Department of Environmental Quality by then had eliminated that particular permit altogether. C&H then applied for a CAFO-specific Regulation 5 permit which, among other favorable aspects to the factory, would have no expiration date.
While differing in some aspects from the Regulation 6 general permit, the Regulation 5 version was still subject to the field handbook's stringent requirements. Someone at Environmental Quality obviously regained their senses and realized the wastewater requirements exist for a reason and should be followed.
That left C&H owners holding the bag since for the first time they were told they had to conduct the groundwater flow testing and other demands. We are taking about some expensive and extensive (yet necessary) testing being enforced five years after it should have been done.
C&H's request for the new permit was properly denied because these specific requirements were missing from its application. The owners understandably cried foul. It wasn't their fault the agency had inexplicably failed to follow its own guidelines when issuing the permit in 2012.
So with Environmental Quality's general permit expired and discontinued, and the Regulation 5 application denied, C&H was left only with a Regulation 6 individual permit as a hopeful long-shot. However, that permit doesn't fit C&H's situation since its intended focus has been with industrial wastewater facilities rather than CAFOs.
So here we are awaiting results of the C&H appeal of the Regulation 5 denial and watching the CAFO's latest permitting attempt. The way I see it, those necessary requirements cited in the USDA handbook present a formidable hurdle that must be satisfactorily met if this factory is allowed to operate, period.
I do feel for the C&H owner/operators who were recruited and supported by Cargill Inc. and agricultural lobbyists into pioneering their CAFO into the heart of our sacred Buffalo watershed.
The owners did everything the state required. Several highly placed officials in the Department of Environmental Quality are responsible for allowing this fiasco by initially ignoring the USDA's prescribed actions designed to protect sensitive environments and ecosystems.
Because this monumental failure falls squarely on the agency's shoulders, the state should be willing to make these owners financially whole, then insist on a full cleanup and closure.
Even then, geoscientists familiar with the porous watershed fear the fractured ground beneath the factory and its spray fields already contains untold amounts of raw waste that have settled into subterranean voids, which could take a very long time to clear.
The USDA's regulations here are neither arbitrary nor vague. They exist for significant reasons, based on the known effects and science behind permitting any waste-generating factory.
At the same time, I'm pleased to see the Department of Environmental Quality finally step up and acknowledge it should have insisted on all relevant groundwater, geologic and lagoon safety issues being fully resolved when they should have been nearly six years ago.
Posted: April 23, 2018 at 4:30 a.m.
A focus group of six people has begun studying how the Arkansas Department of Environmental Quality should implement its policy to protect the state's waters from degradation.
The department said in a statement that it will take the group's feedback to a stakeholder group on the Continuing Planning Process, a document that outlines how a state will implement its water-quality programs. The department has not updated it since 2000. It's required under the Clean Water Act, passed in 1975.
Also required under the act is an anti-degradation implementation plan. States write an anti-degradation policy and then must write an implementation plan for that policy. According to the U.S. Environmental Protection Agency, Arkansas and New Mexico are the only two states without implementation plans.
Some members expressed in phone interviews interest in participating but didn't offer many specific details about what they would or wouldn't like to see in the plan.
"It's pretty simple why we would want to be on it," said Colene Gaston, attorney for the Beaver Water District in Northwest Arkansas. "To protect Beaver Lake."
Shon Simpson, owner of GMBc & Associates environmental and engineering firm, has worked on anti-degradation analyses for clients with water-discharge permits in other central states.
"My interest is that the policy is very clear," Simpson said.
The department asked Simpson to be on the focus group, along with John Bailey, director of environmental regulatory affairs for the Arkansas Farm Bureau.
Bailey said the Farm Bureau doesn't work with entities that would discharge directly into a body of water, but they work with people who apply animal waste to the ground, which could affect water quality. He said his position in the focus group would be to ensure best management practices for land application of waste remain in place for agricultural use but are also factored in for companies or utilities that might apply non-agricultural waste.
Bailey said the department had already put in a lot of work drafting a new anti-degradation policy and an anti-degradation implementation plan.
"It's a matter of getting into the weeds, making sure everything is thought through," he said.
Department officials presented an outline of a plan, including recommendations from the EPA, to the focus group April 5.
To comply with the Clean Water Act, the state must classify its water bodies by quality and significance in a tiered system.
Tier 3 waters, typically thought of as water bodies with exceptional recreational or ecological roles, aren't supposed to degrade at all.
Tier 2 waters are considered "high quality," with economic, public health or ecological value, according to the EPA. That means that when significant degradation -- more than 10 percent, according to the department's presentation -- is expected for such waters, water discharge permit applicants must offer an analysis of alternative discharge methods that would degrade the water body less or explain why economic or social conditions justify a more degrading discharge method.
Simpson said the state should define what it would consider a cost-effective alternative to the applicant's original proposal.
In Missouri, the permit applicant must use the cleaner alternative even if it costs up to 20 percent more.
The department's presentation also included Tier 2.5 waters -- a designation that is not outlined by the EPA but is used by many states and tribes, according to the EPA. The department's presentation described them as "exceptional high quality" waters -- specifically, domestic water supplies. In the presentation, Tier 2.5 waters, unlike Tier 2 waters, would never be allowed to degrade more than 10 percent.
In many states, Tier 2 waters are classified as such based on whether they are exceeding the water quality standards set for them. If they're not, they are Tier 1 waters. Simpson said he preferred this approach.
Tier 1 waters need only to maintain their designated uses, such as being a fishable or swimmable body of water.
The department has classified Tier 3 waters but not Tier 2 waters.
The department presented the plans of seven other states -- Arkansas' six neighbors and New Mexico, which is in the same EPA region -- to the focus group for study.
The group doesn't have a timeline for finishing its review and feedback on anti-degradation implementation, but members plan to meet next month.
The members are:
• Ellen Carpenter, an interested citizen and retired department water division chief.
• Colene Gaston, an attorney for the Beaver Water District.
• John Bailey, director of environmental regulatory affairs for the Arkansas Farm Bureau.
• Shon Simpson, owner of GMBc & Associates environmental and engineering firm.
• Anna Weeks, environmental policy coordinator at the Arkansas Public Policy Panel.
• Jim Malcolm, vice president and policy advisor at FTN Associates environmental and engineering firm.
Metro on 04/23/2018
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