An application for a hog farm permit will return to the Arkansas Department of Environmental Quality to be reconsidered during a new public-comment period, the agency's appellate body decided Friday in a unanimous vote.
The Arkansas Pollution Control and Ecology Commission's order reopens consideration of the permit for the 6,503-hog operation that sits within the Buffalo River's watershed. The effect of C&H Hog Farms on the country's first national river has been the subject of debate since the farm opened in 2013.
Under the order, the Environmental Quality Department must reissue its final decision to deny C&H Hog Farms' permit as a draft decision. Then it must accept public comments for at least 30 days before reviewing the comments and issuing a final decision.
The agency denied C&H Hog Farms' new operating permit in January, 21 months after the owners applied. The department took nearly a year before the denial to read and respond, as required by law, to the more than 19,000 public comments submitted on the permit application.
After Friday's decision, some in attendance speculated that a new permit decision could take another year and likely would be followed by another appeal process.
The order found that the department erred in not issuing its denial of C&H's new operating permit as a draft decision. The department had issued a preliminary approval in February 2017, a decision that public comments were accepted under.
C&H's attorneys argued that draft decisions are required for new positions taken by the department on whether a permit should be approved.
Administrative Law Judge Charles Moulton agreed, issuing an order in July recommending that the Pollution Control and Ecology Commission approve his finding.
The Arkansas Department of Environmental Quality disputed Moulton's conclusion, contending that Ark. Code Ann. 8-4-203(e)(1), which was cited by both parties as the basis of their arguments, only asks the department to issue a final decision after a comment period, which the department did.
Commissioners approved the recommended order Friday with no vocal dissent and after little discussion. The meeting, which began at 9 a.m., was over by 10:30 a.m.
"It was procedural," said Bekki White, a commissioner who is also director of the Arkansas Geological Survey.
Commissioner Gary Wheeler, chief medical officer at the Arkansas Department of Health, agreed. The order did not require commissioners to decide on the merits of the case but instead asked for a decision on a "straightforward procedural question," he said.
Moulton told commissioners before the vote that he predicted, barring another procedural issue in the C&H permitting process, that "unfortunately, yes, the merits are going to come back to us." The comment drew laughter among some commissioners.
C&H's owners referred questions about Friday's vote to their attorney, Chuck Nestrud.
Nestrud had submitted a request July 30 for an alternative minute order to be adopted instead of the one drafted by Moulton that was approved Friday. Nestrud's proposed order asked Moulton to write that the department's "decision to deny the Regulation No. 5 permit without public notice is reversed, and this matter is remanded to ADEQ."
Ultimately, commissioners decided to incorporate the use of the word "remand" but not "reverse."
Commissioner Chris Gardner, a Jonesboro attorney, said he believed the word "reverse" signified a decision on the merits of the department's decision to deny the permit, rather than a decision on the procedure surrounding the denial.
"It's just different," Nestrud said after the vote, adding that it was not what C&H wanted.
Gordon Watkins, president of the Buffalo River Watershed Alliance, said he was not surprised by the commission's unanimous vote. He said that in his experience, votes tend to align with the recommendations of the administrative law judge.
The group's attorney, Richard Mays, said they had opposed sending the permit back out for comment but said the decision is acceptable. After Moulton issued his recommended decision, Mays said resolving the procedural issue at hand may be best for everyone in the long run so that it doesn't get brought up in future appeals.
Watkins said his group plans to resubmit the more than 100 pages of comments it submitted in 2017 on the department's initial approval of C&H's permit application. The group also plans to submit more comments based on new information, including the department's recent finding that part of the Buffalo River and nearly all of Big Creek are impaired for dissolved oxygen or E. coli.
"I think we've got a lot of good information," he said.
C&H Hog Farms operates on Big Creek, about 6 miles from where the creek drains into the Buffalo River. The farm 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 program that issued permits that last only five years before requiring renewal.
C&H is operating under its Regulation 6 permit, which expired in late 2016, as it awaits a final resolution on its Regulation 5 permit application.
A 14.3-mile segment toward the middle of the 150-mile river, upstream and downstream of the confluence with Big Creek, is impaired. The amount of pathogens exceeds water-quality standards in that area. The rest of the river is not listed as impaired.
About 15 miles of Big Creek also is categorized as impaired, again because of pathogens, and the final 3.7 miles of the creek before it flows into the Buffalo is listed as impaired because of abnormally low dissolved oxygen levels but not for the presence of pathogens.
The source of the pathogens is unknown, according to the department's report.
Nearly 1.5 million people visited the Buffalo River in 2017 and spent $62.6 million supporting 911 jobs, according to the National Park Service.
A Section on 08/25/2018