Baxter Bulletin

Arkansas Pollution Control and Ecology Commission dismisses hog farm permit denial appeal

SCOTT LILES, Baxter BulletinPublished 8:00 p.m. CT Jan. 29, 2019

Trying to thread a legal and judicial needle, the Arkansas Pollution Control and Ecology Commission on Friday dismissed a Newton County hog farm’s appeal of its permit denial, arguing that the commission’s options were limited by a circuit judge’s order regarding the hog farm.

The dismissal means the Arkansas Department of Environmental Quality's November 2018 order shutting down C&H Hog Farms’ new operating permit stands.

Newton County Circuit Court Judge John Putman has asked the department to appear in court and explain why that order was not in contempt of a stay he placed against the Arkansas Pollution Control and Ecology Commission.

Department attorneys maintain that the permit denial was permissible because the department is not a party in the case in which Putman issued the stay.

In two legal filings in the hog farm’s lawsuit against the commission, Putman asserts that his court holds sole jurisdiction over the fate of the hog farms’ permit.

“At the present time, this court and no other agency or tribunal has jurisdiction over the Plaintiff's application for a Regulation No. 5 permit,” he wrote on Jan. 18. In an earlier filing, Putman noted that the court acquired jurisdiction over the permit on Sept. 6, 2018, when the hog farm filed its first appeal with the court.

That left commissioners Friday wondering what they could do with an active C&H appeal on their agenda without violating Putman’s court order that restrains them from acting.

After discussing their options for two hours, the commission approved a motion to dismiss the appeal arguing that Putman presently had jurisdiction over matter, and not the commission. The commission’s dismissal was not “with prejudice,” meaning that the hog farm may appeal again.

In 2011, C&H Hog Farms obtained a five-year permit to operate a large-scale hog farm next to Big Creek, a tributary of the federally protected Buffalo River.

The farm houses 6,500 hogs, and the animals’ liquid waste is retained in two ponds and sprayed on 600 acres of adjacent farmland as fertilizer. Conservation groups have opposed the operation of the hog farm within the Buffalo River’s watershed, arguing that manure in the karst terrain increases the risks that the river could become polluted.

Last year, the farm applied for another permit with ADEQ, but that application was denied. C&H appealed ADEQ’s decision to the state Pollution Control and Ecology Commission, which determined that the department failed provide public notice of the final decision and failed to respond to public comments about that decision.

Citing those errors, the commission remanded the application back to ADEQ for further consideration. The farm then sued the commission, arguing that it should have reversed ADEQ’s original denial of the application and included instructions on how the department should reconsider the application.

In its Nov. 19 letter denying the hog farm its application, ADEQ cited water-quality issues and insufficient geological investigations into the karst terrain underneath the facility.

The hog farm should have conducted a “detailed geological investigation” of the karst topography where manure might be kept or applied as fertilizer, the ADEQ writes in its 10-page “Statement of Basis” for denying the operating permit.

Karst topography is characterized by sinkholes and caves. When water hits karst terrain, it is often funneled into groundwater through cracks in the and rocks, instead of flowing along the surface.

The hog farm also lacked an emergency action plan, the ADEQ wrote. Both the lack of a geological study and an emergency action plan were cited by the department in its January decision to not issue an operating permit to the farm.

Department officials are scheduled to appear in Newton County Circuit Court on Feb. 26 to explain why the department should not held in contemp.

C&H Farms of Vendor is owned by cousins Jason Henson, Phillip Campbell and Richard Campbell.