Harrison Daily Times
Hog farm’s appeal rooted; motion to dismiss denied
Staff Report news@harrisondaily.com
JASPER — Newton County Circuit Judge John Putman on Friday denied the state Pollution Control and Ecology Commission’s (PCE) motion to dismiss C&H Hog Farm’s appeal of denial of its permit to operate and that stays issued in October are still in place.
C&H had applied for renewal of its permit to operate a liquid animal waste management system for a concentrated animal feeding operation at Mt. Judea near Big Creek, a tributary of the Buffalo Nation River.
In January, the Arkansas Department of Environmental Quality denied the permit. C&H appealed that decision to PCE because there had been no public notice of the denial as is required by law.
The PCE remanded the denial back to ADEQ because there had been no public notice. In September, C&H appealed PCE’s decision that just remanded the permit back to ADEQ instead of reversing and remanding the decision for denial.
Judge Putman issued a stay of ADEQ Jan. 10 denial, saying his court gained jurisdiction when C&H appealed. The order said there could be no further action in the case until he issued further rulings.
In the meantime, ADEQ issued public notice of intent to deny the permit and held two public hearings, then issued another denial Nov. 19, ordering closure of the hog farm a month later.
The Buffalo River Watershed Alliance, Inc., Arkansas Canoe Club, Gordon Watkins and Marti Olesen filed a motion to intervene in the suit and supported PCE’s motion to dismiss.
C&H contends PCE was wrong:
• By failing to reverse ADEQ’s Jan. 10 decision when it remanded the permit to ADEQ.
• By not including appropriate instructions to ensure the remand was conducted properly.
PCE moved to dismiss the appeal because:
• C&H didn’t state facts upon which relief can be granted.
• The circuit court lacks jurisdiction.
• PCE’s order to remand wasn’t a final order, or, in the alternative, that C&H can’t appeal a case it won.
• Closure of the PCE docket wasn’t tantamount to considering PCE’s order as final.
• No party is prejudiced by dismissing the appeal.
The intervenors support PCE’s motion to dismiss because:
• The court has no jurisdiction due to PCE order not being ripe for appeal.
• C&H’s statement of facts are actually a mixture of facts and legal theories.
Putman ruled Friday that the commission’s own administrative procedures say the commission’s vote to affirm the administrative law judge’s recommendation to remand “shall constitute final commission action for purposes of appeal.” Thus, PCE’s order is appealable.
Putman’s ruling states that C&H did not win the case before PCE because it did not prevail on the issues it appealed to circuit court, and that the hog farm did indeed state facts upon which relief can be granted.
Finally, Putman wrote that ADEQ’s Nov. 19 denial of the permit does not affect C&H’s appeal because his court gained jurisdiction over the matter when the hog farm filed the appeal and he issued a stay.
That order issues two stays, one on the ADEQ's January permit denial that would prompt the closure of C&H, and the other on PCE’s decision to send the permit application back to the department to be reopened under a new draft decision. Those stays allowed C&H to operate until final orders from the court.