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  • 27 Feb 2019 9:19 AM | Anonymous member (Administrator)

    Arkansasonline



    Justices reject request to stay hog-farm case

    Contempt-of-court warning against regulators allowed

    by Emily Walkenhorst | 


    Arkansas' highest court rejected Tuesday environmental regulators' request to review and stay proceedings in a lower court related to a judge's suggestion that the regulators are in contempt of his court.

    The Arkansas Department of Environmental Quality should be found in contempt for denying C&H Hog Farms a new operating permit, based on current court filings, Newton County Circuit Judge John Putman stated in a December order asking the department to show why it is not in contempt. Putman has claimed in orders that, because of a case before him, his court has sole jurisdiction over C&H's permit application.


    Department officials were scheduled to present their case at 1 p.m. today in Newton County, but Putman canceled that hearing late Tuesday, according to Richard Mays, an attorney for intervening environmental groups and individuals in the case. That is because Mays' clients still have an active petition before the Arkansas Supreme Court asking for the same thing the department did.

    The Arkansas Supreme Court on Tuesday denied the department's motions for the Supreme Court to review the case -- a writ of certiorari -- and to find Putman had overstepped his jurisdiction and halt circuit court proceedings until justices can rule.

    The department petitioned the Supreme Court on Thursday and requested a decision by today.

    The court denied the petitions Tuesday in a one-paragraph order that did not explain the decision. Justice Josephine Linker Hart did not participate in the decision.

    Department spokesmen and attorneys for C&H did not respond to requests for comment.


    The decision is the latest movement in several legal battles between C&H and environmental regulators over the permit denial. Those legal battles led the Arkansas Pollution Control and Ecology Commission -- after two hours of debate about what commissioners could even legally do -- to dismiss an appeal of C&H's latest permit denial out of concern that Putman had prevented them from being able to act on the appeal, which it was required to do.

    The case before Putman that led to the jurisdictional dispute is one in which C&H appealed a commission decision to remand its first permit denial back to the department for reissuance as a proposed decision, rather than a final one. C&H asserted the commission's decision did not go far enough and should have reversed the denial.

    Since it opened in 2013, C&H has been targeted by environmental groups and others because of its proximity to the Buffalo National River. Opponents fear the amount of waste from the farm could find its way into the river and pollute the water.

    In filings Monday, attorneys for C&H Hog Farms called the department's request "last-minute" and contended the department sat "on the sidelines" for months before making its request Thursday. The department could have intervened in the case but chose not to, attorneys argued.

    Putman first ordered the department to "show cause" why it is not in contempt back in December. That was after C&H Hog Farms asked Putman to issue the order, a month after the department denied C&H's permit, and two months after Putman had stayed a lower court decision that remanded the permit application back to the department.

    The department had already reopened the permit application process in response to the decision by the lower court -- the Arkansas Pollution Control and Ecology Commission -- and was in the middle of the public comment period when Putman issued his order staying the commission's decision.

    The department, later arguing that it was not a party to the case Putman was overseeing, responded to the public comments and issued a final order in November denying the new permit, meaning the farm would have to shut down.

    C&H then accused the department of contempt of Putman's stay order. Putman agreed but did not rule, requesting that the department show cause why it should not be found in contempt.


    Putman canceled the hearing scheduled for today on the contempt charge, in which department Director Becky Keogh and Caleb Osborne, the associate director of the office of water quality, were ordered to appear. In a letter to parties Friday, Putman said he would favor continuing the hearing for a later date, if the parties agreed, because of Mays' clients' pending motion before the Arkansas Supreme Court. Parties then agreed to continue the hearing scheduled for today.


    Mays' clients -- the Buffalo River Watershed Alliance, Arkansas Canoe Club, Gordan Watkins and Marti Oleson -- also petitioned the Supreme Court on Friday for a writ of certiorari or writ of prohibition of Putman's stay, arguing that the case before Putman is based on an order that cannot be appealed because it is not a final decision. Further, the circuit court does not have the jurisdiction Putman claims it does, the parties argue.

    On Feb. 1, the parties appealed Putman's stay order to the Supreme Court.

    Both cases are pending.


    State Desk on 02/27/2019

  • 25 Feb 2019 9:09 AM | Anonymous member (Administrator)

    Baxter Bulletin


    State's top court's help sought in hog farm suit

  • 24 Feb 2019 10:56 AM | Anonymous member (Administrator)

    Arkansasonline


    OPINION 

    Take Action to Save the River
    by RICHARD MASON Special to the Democrat-Gazette | February 24, 2019 at 1:52 a.m. 

    To The Beautiful Buffalo River Action Committee: Resign!


    You are doing more harm to the Buffalo National River by existing than you are by proposing watershed improvements. You are putting up a smokescreen that is hiding the factory hog farm problem.

    I know the overall watershed has other issues, but there is one that overshadows all others, so huge that all your suggestions (and suggestions are all you can do) are immaterial if the hog farm continues to exist on the Boone karst limestone.

    As an expert witness, I can tell you with certainty that, as I write this column and as you read it, the river is becoming more polluted. So if you really want to do something to save the Buffalo, you will resign en masse.

    Consider the effect your committee will have on the river if the hog farm is not moved onto a suitable terrain. 1. The river will almost certainly be polluted. 2. Your suggestions on improving the watershed won't make a hill-of-beans' difference. 3. The amount of hog farm waste---as much as the city of El Dorado disposes of in a year---will eventually overwhelm the river, and all the watershed suggestions you might recommend (if they were put in place) would have such a minimal effect on the tons of hog manure residue that it would be impossible to discern you had done anything. (Nero fiddled while Rome burned, and the Beautiful Buffalo River Action Committee is fiddling while the river is becoming more and more polluted.)

    On the other hand, if you resign after issuing a statement that the committee can't in good conscience function unless the hog farm is re-sited on suitable terrain, you will have made significant progress in making the governor and Department of Environmental Quality move the hog farm to a more suitable site. (The state should pay for the move; get out your checkbook, Governor.)

  • 23 Feb 2019 8:13 AM | Anonymous member (Administrator)

    Arkansasonline


    Justices asked to review hog farm caseIn filing, state regulators say circuit judge reached beyond his jurisdictionby Emily Walkenhorst


    Arkansas environmental regulators have asked the state's highest court to review and stay all proceedings in a Newton County Circuit Court case regarding a hog farm within the Buffalo National River watershed.


    The Arkansas Department of Environmental Quality said in filing this week that Newton County Circuit Judge John Putman has reached beyond his jurisdiction. Putman went too far, department attorneys argue, when he issued orders suggesting he has stayed any department actions related to C&H Hog Farms' permit application and requiring the department to "show cause" why it should not be found in contempt of court for denying the farm's permit application in November.


    The filings address a knotty legal situation that has left regulators and attorneys unsure of how several filed appeals regarding various C&H Hog Farms permitting decisions can proceed.


    The department denied the hog farm a new permit on two occasions last year, which would mean the facility must close. C&H's existence has been contested since 2013, when it first opened, because of its proximity to the Buffalo National River.


    The department is not a party to the Newton County court case in which Putman issued his orders. Because of that, the department's attorneys contend, the department "has no adequate remedy" to challenge the circuit court's orders "except by petition for an extraordinary writ."


    The department filed a petition with the Arkansas Supreme Court for a writ of certiorari, which, if granted, would allow the Supreme Court to review the case and vacate Putman's orders. If the court decides not to grant the writ, the department requests an alternative writ of prohibition. If granted, that would order Putman to terminate his order for the department to show cause on the contempt allegations.


    Putman issued an order in October staying the Arkansas Pollution Control and Ecology Commission decision that had been appealed to his court. The commission is the department's appellate body, and its decision had remanded C&H's denied permit application back to the department for re-issuance as a draft denial instead of a final decision. C&H appealed that decision because it did not reverse the department's decision to deny the permit.


    In January, Putman issued an order asserting that, because of his stay order, he has total jurisdiction over matters related to C&H Hog Farms' permit application.


    The Newton County court hearing on the contempt issue is scheduled for Wednesday.


    Because the matter C&H appealed to Putman's court is limited to the commission's decision, the "circuit court's jurisdiction does not extend to control C&H's" permit application or any decisions surrounding it, department attorneys argued in their filing.


    Putman argued, after C&H attorneys filed a motion asking him to, that his stay of the commission's decision meant that the department could not proceed with the permitting decision, which prompted him to order the department to appear before him and argue why it should not be found in contempt of court.


    The department's attorneys assert in their Supreme Court filing that the department has the "exclusive power and duty to make permitting decisions." Further, the department is statutorily required to complete its permitting process, which had already proceeded to the public comment period before Putman issued his stay.


    The department also has filed a motion to stay proceedings in that case while deciding on the petition for extraordinary writ. The motion also requests for the Supreme Court to expedite its consideration of the petition and rule on it before Wednesday's hearing in Newton County Circuit Court.

    Earlier this week, C&H attorneys filed their fourth circuit court case related to the permit denial. It appealed the commission's dismissal of its appeal of its second denial. The commission dismissed the appeal, arguing that it had no jurisdiction because of Putman's stay order.


    State Desk on 02/23/2019

  • 22 Feb 2019 9:36 AM | Anonymous member (Administrator)

    Arkansasonline



    Hog farm files dismissal appeal

    Newton County operating permit denial at heart of case

    by Emily Walkenhorst


    A Newton County hog farm has filed its fourth case in circuit court in the past six months, this time appealing a dismissal of its appeal of its second operating permit denial.


    C&H Hog Farms is asking Newton County Circuit Judge Gordon Webb to order the Arkansas Pollution Control and Ecology Commission to clarify a decision it made last month regarding the hog farm's appeal of its permit denial.


    But the decision to remand the commission's decision shouldn't be made until another case has fully been resolved, including any appeals, C&H's attorneys argue. The court should wait for Newton County Circuit Judge John Putman to decide whether the commission, on a separate appeal by C&H, should issue a reversal of the farm's first permit denial.


    In that case, Putman has stated in orders that he is the only judge with jurisdiction over matters related to C&H's appeal. C&H had argued that that was the case before Putman issued any orders with that opinion.


    The latest appeal provides another layer of litigation in a case that was described as a "mess" by multiple lawyers at a commission hearing last month.

    But the appeal isn't a surprise to those involved, who acknowledged that C&H Farms owners were not happy with the commission's decision at that hearing.

    Last month, commissioners attempted to reach a delicate balance of trying to decide how to handle the permit appeal and C&H's request for a stay on the permit denial -- on which they were required to make a decision -- while also facing a judge's order stating that only the judge has jurisdiction over permit matters.


    After two hours of debate, the commission dismissed the appeal but did not specify whether the dismissal was "with prejudice" or "without prejudice." "With prejudice" means the appeal cannot be refiled.


    "There was a great deal of anxiety obviously at the last meeting of us trying to do anything at all," Commissioner Doug Melton said Thursday, but he noted that the decision was unanimous.


    "We decided to leave this in the hands of the circuit judge," Melton said.

    Not specifying whether the appeal was dismissed with prejudice or without prejudice was insufficient, C&H's attorneys argued in their appeal of the commission's decision, filed Tuesday in Newton County Circuit Court.

    "It is up to the Commission to make its decision clear, and support its decision with appropriate findings," the complaint reads. "In the absences of clearly articulate findings, C&H is unable to provide more specific allegations in this matter regarding the errors in Minute Order 19-05."

    Minute Order 19-05 is the order that dismissed the appeal.


    The commission could pursue only an involuntary dismissal if C&H, the plaintiff, had failed to comply with court rules, a court order or if no court action had been taken in the past 12 months, C&H's attorneys argued. That's established under Arkansas' Rules of Civil Procedure, Section 41, the attorneys note.


    Webb should remand the decision back to the commission to specify whether the dismissal was with or without prejudice, and the commission should additionally identify what reasons it had, per the Rules of Civil Procedure, to dismiss the case.


    C&H Hog Farms has long been the target of environmental groups concerned about its proximity to the Buffalo National River.


    The hog farmers applied for a new operating permit in April 2016, ahead of the existing permit's scheduled expiration on Oct. 31, 2016.


    In April 2017, the Arkansas Department of Environmental Quality issued a preliminary decision to issue the permit, and subsequently accepted public comment before making a final decision. In January 2018, the department issued a final decision denying the permit, citing application deficiencies raised in public comments.


    Later that year, after C&H argued that the decision should not be final, the commission, which is the department's appellate body, determined that the department needed to issue the denial as a preliminary decision and again accept public comment.


    C&H appealed the commission's decision, arguing that the department's denial should have been reversed, as well.


    The department subsequently initiated another public comment period, which C&H argued in its appeal -- overseen by Putman -- it should not have been able to do because of the appeal before Putman. Putman agreed, but has not issued an order finding the department, which is not a party in the case, in contempt of court for doing so. A hearing on the matter is scheduled for Wednesday.


    In November, the department issued its second final decision denying the farmers a new permit. C&H appealed and requested a stay on the denial, which was granted pending the commission's January meeting, which is when the commission dismissed the appeal for lack of jurisdiction.


    Metro on 02/22/2019



  • 16 Feb 2019 8:11 AM | Anonymous member (Administrator)

    Arkansas Democrat Gazette



    MASTERSON ONLINE: Phosphorus remains

    by Mike Masterson 


    In the struggle to salvage what relative purity remains of our precious Buffalo National River, legal depositions from last year raise pertinent questions about the nutrient management plan C&H Hog Farms submitted to gain its original Regulation 6 General Permit from our state's Department of Environmental Quality (cough).


    For me, such revelations help explain why large amounts of phosphorus have accumulated around that facility since the permit was wrongheadedly issued in 2012. Excess nitrogen and phosphorus in water, fertilizers generated by animal waste, cause algae to grow faster than ecosystems can handle and result in danger to aquatic life from low dissolved oxygen and explosions of algae blooms.


    May 2018 depositions reveal that the levels of phosphorus-laden liquid waste being spread from manure and urine lagoons across fields along and near Big Creek, a major tributary of the Buffalo, today far exceed the projected levels claimed in the factory's original nutrient management plan (NMP).

    In her deposition, Monica Hancock, a land resource specialist with the Arkansas Natural Resources Commission, explained that the original C&H permit (defunct many months ago but still used by extension as a reason to continue to operate as usual) was based on an erroneous phosphorus storage loss factor. That has allowed waste to be spread for years which far exceeds normal levels. Hancock expressed concerns about those figures and resulting phosphorus overload.


    The Arkansas Phosphorus Index (API) was developed to require nutrient management plans to reveal how much animal waste containing phosphorus, potassium and nitrogen can be safely applied to fields, all based on a variety of factors, including time of year, space and terrain.


    This index also allows for storage losses for waste that isn't applied to the fields. Normally, zero storage loss is allowed for phosphorus waste. According to Hancock's deposition, the factory's NMP cited a storage loss factor of 80 percent for phosphorus generated at the factory. In essence, that meant 80 percent of the phosphorus waste in its lagoons would not be sprayed on fields, but somehow go away.


    The consulting engineering firm hired by C&H to design its barns, waste lagoons and related systems was DeHaan, Grabs & Associates (DGA) of North Dakota. In her deposition Hancock identified Nathan Pesta and his employer DGA as responsible for preparing the factory's NMP.


    So why was an 80 percent phosphorus storage loss ever allowed to be used in C&H's original permit without evidence? Perhaps because the original NMP relied upon most of the contaminant being trucked away.

    That pig-in-a-poke idea clearly was determined not to be financially feasible, which logically would mean 100 percent of the phosphorus has remained on site. This obviously would result in much more phosphorous-laden waste sprayed on fields or leaking from waste lagoons over six years into the Big Creek and Buffalo River watersheds than what the Department of Environmental Quality approved under the factory's original permit.


    C&H's 2018 annual report to the agency shows about 2.5 million gallons of untreated liquid waste was sprayed on about 570 acres of pastureland in the Big Creek and Buffalo River watersheds. This amounts to some 4,300 gallons an acre, with untold amounts of pollutants seeping through prevailing karst subsurface into groundwater, private wells, the tributary Big Creek, and ultimately our Buffalo. A lot of those pollutants (such as phosphorus) may be tied up in the soil and crevasses and steadily released for decades. Sadly, the Department of Environmental Quality last year classified sections of Big Creek and our precious Buffalo as now being impaired.


    Such critical misinformation in the C&H nutrient plan raises many questions for me: Whose idea was it to originally claim 80 percent of the phosphorous-laden waste would be removed? On what scientific and economic data did Pesta base that conclusion? Was it deemed necessary to include such a storage loss figure to make the factory seem environmentally feasible? Would the state have rejected the permit had the actual phosphorous loss factor been submitted?


    Gordon Watkins, who heads the Buffalo River Watershed Alliance, told me Pesta also was mistaken in his yield estimate of 6.5 tons of hay per watershed acre. "That might work in South Dakota, but it's a way unrealistically high yield for the Ozarks. That figure in part determines how much waste can be applied," he said, adding that an over-estimate of yield invariably results in an over-application of waste. "He [Pesta] also says it requires 56 pounds per acre of phosphorus to produce that 6.5 tons of hay. The most recent soil tests show levels of 130 to 330 pounds an acre, but they continue to apply more."


    We know DGA and Nathan Pesta signed the NMP and were the consulting engineers hired to design the farm. Others including C&H's owners, Cargill, Arkansas Farm Bureau, Arkansas Pork Producers and the Department of Environmental Quality also were involved in securing initial approval.

    With so many knowledgeable individuals involved, shouldn't someone have asked upfront if it was even feasible to eliminate 80 percent of the phosphorus waste and what happens if it can't be removed? That also would mean the state issued the factory's permit based on an initial material misstatement of critical information, wouldn't it? Pesta didn't respond to two emails sent to DGA asking how he arrived at his NMP calculations.


    Financing for C&H was obtained through taxpayer-backed Small Business Administration and Farm Service Agency guaranteed loans. This also leaves me wondering if the permit issued based on one or more material misstatements on the NMP was used to obtain that financing.


    Finally, if the permit was based on one or more erroneous points, wouldn't that be grounds for immediate closure? Under such circumstances, should the federally secured financing used to create the farm rightfully be withdrawn since taxpayers are on the hook?


    I'm still hoping Pesta and others will fully detail how he arrived at the conclusion that so much of the factory's phosphorus would somehow disappear, as well as addressing Watkins' serious concerns.


    Mike Masterson is a longtime Arkansas journalist. Email him at mmasterson@arkansasonline.com.


    Web only on 02/16/2019



  • 29 Jan 2019 8:24 AM | Anonymous member (Administrator)

    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.




  • 26 Jan 2019 9:34 AM | Anonymous member (Administrator)

    Arkansas Democrat Gazette


    Judge’s orders complicate state panel’s deliberations                                               

     Emily Walkenhorst | Today at 2:13 a.m. | Updated January 26, 2019 at 2:13 a.m. 


    An environmental regulatory commission addressed what one attorney called a "God-awful mess" Friday by dismissing a hog farm's appeal of its permit denial, arguing that the commission's hands were tied by a circuit judge's order that was requested by the hog farm owners.


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

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    At the same time, Newton County Circuit Judge John Putman has already asked the department to appear in his court and argue why that order was not in contempt of his court. Putman has issued a stay on an Arkansas Pollution Control and Ecology Commission order that allowed the department to make a second denial of C&H's permit.


    C&H appealed the department's second denial to the commission in December. The owners asked the commission to stay the department's decision until legal actions were seen through.


    On Jan. 18, Putman issued another order stating, "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."


    That left commissioners wondering what they could do with the active C&H appeal before them without violating Putman's order that restrains them from acting.


    Department regulations require the commission to act upon a request for a stay in a permit appeal at the first commission meeting after the request, commission Administrative Law Judge Charles Moulton explained to the members. The commission had no choice but to act, lest they violate state rules, he said. Yet acting could lead Putman to believe the commission was violating his order.


    "This is unprecedented, there's no doubt about it," Moulton said.

    Sam Ledbetter, an attorney for the intervening Ozark Society, said the problem could be avoided if C&H withdrew its appeal of the permit denial.

    "They're trying to drag this thing out," Ledbetter said of C&H, before calling the situation a "God-awful mess" and noting the two C&H attorneys' more than 75 years of legal experience.


    "I've never seen anything like this before in my life," he said.

    C&H attorney Chuck Nestrud countered that the farm's owners needed to appeal.


    "If we did not appeal that decision, we would not have exhausted our administrative remedies," he said.


    The commission discussed what to do with the appeal for more than two hours, with the terms "confusing mess," "confusing morass of maneuvering" and "blowing my mind" all used.


    Over and over, commissioners questioned whether any of the motions proposed would not be considered in violation of Putman's stay and determination that he had sole jurisdiction.


    Court-transfer snag holds up hog farm's suit against Arkansas agency

    "I just feel like the horse is on its back and being beaten beyond death at this point," Moulton said nearly an hour and a half into the proceedings.

    Other than the one that passed, motions included dismissing the C&H appeal and vacating the department's decision; ceasing to accept new docket filings; tabling the decision until after department officials appear in Newton County Circuit Court to argue why they should not be held in contempt of court (Feb. 27); and adjourning the meeting.


    "It seems to me that, if we want to take any action that is consistent with the judge's order," then dismissing the appeal and vacating the decision "is the only way forward to deal with this," Commissioner Chris Gardner said.

    Moulton said none of those were legal options, and that vacating the department's decision would still constitute an action on the permitting decision.


    An hour and a half into the meeting, Gardner proposed another idea.

    "We will dismiss the appeal because of Judge Putman's decision that we don't have subject matter jurisdiction," he said. Then they'd let Putman figure out whether that was OK.


    The motion mirrored the first one considered by the commission, proposed by Commissioner Doug Melton, but removed the words "with prejudice." It passed without opposition.


    Including the words "with prejudice" would have meant that C&H could not appeal the denial again.


    Melton's proposal had been defeated 6 to 5.

    Of the 12 men present on the commission Friday, none vocalized opposition to Gardner's motion on a voice vote. Commission Chairman Robert Reynolds votes only in the event of a tie. The commission's 13th member, Bekki White, was absent.


    After Friday's hearing, Nestrud said he and others were reviewing the case but "most likely will appeal" the commission's dismissal.


    Nestrud had asked the commission to make one of two decisions: take no action except passing an order that would affirm C&H can stay open during the circuit court stay; or stay the department's denial during the appeal process.


    Commissioners argued C&H couldn't argue that the commission had no jurisdiction and then ask the commission to act by imposing a stay.

    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.


    The lawsuit from which the order stems is C&H's appeal of the Arkansas Pollution Control and Ecology Commission's decision to remand the department's original permit denial back to the department for a draft denial and a second round of public comments.


    C&H appealed the commission's order because it "remanded" but did not "reverse" the department's original permit denial. Putman issued the stay in October on the department's first permit denial and on the commission's decision to remand the permit issue.


    C&H has two other active legal cases related to its permit denial, one of which is also overseen by Putman.


    Last summer, C&H appealed a commission decision to uphold an order by Moulton denying motions made by C&H that argue that its original permit was indefinitely active until another type of permit was issued.


    The final case, C&H's lawsuit against the department for alleged violations of the Arkansas Freedom of Information Act, still does not appear in a Pulaski County Circuit Court records search more than a week after Newton County Circuit Court officials said they would mail the case to the county.


    Putman, who also presided over that case, ordered the case to be transferred to Pulaski County on Nov. 30.


    Metro on 01/26/2019

    Print Headline: Hog farm's permit appeal is dismissed

  • 21 Jan 2019 7:02 AM | Anonymous member (Administrator)

    KTLO


    Contempt hearing in hog farm case back on docket

    By: Karen Hopper

     January 21, 2019


    A hearing canceled earlier this month in the C&H Hog Farms saga due to a paperwork processing snafu is back on the Newton County Circuit Court docket.

    The purpose of the hearing is for officials from the Arkansas Department of Environmental Quality to appear and show cause why they should not be held in contempt of court.

    However, records in the case did not reflect summonses having been issued for the ADEQ officials, leading to the cancellation. The officials must be served with legal process in order for a hearing to proceed.

    But on Friday, Newton County Circuit Judge John Putman issued a second order scheduling a new hearing for Feb. 27th at 1:00 at the courthouse in Jasper.

    The show cause hearing is the latest development following the state's effort one year ago this month to stop C&H Hog Farms from operating in Newton County by denying it a permit for disposal of liquid hog waste.

    With no public notice of the denial, C&H appealed the decision to the Arkansas Pollution Control and Ecology Commission. APC&E determines the environmental policy for the state, and ADEQ implements the policies.

    The state's Pollution Control and Ecology Commission remanded the denial back to ADEQ, but C&H appealed that decision.

    Also in January 2018, Judge Putman issued a stay of ADEQ, saying his court gained jurisdiction when C&H appealed.

    Then in September, ADEQ issued a public notice of a draft decision that would deny a permit for the large hog farm in the Buffalo River watershed. The notice opened a public comment period.

    In October, on the heels of two public hearings regarding the proposed draft decision to deny a Regulation 5 permit application for C&H, Judge Putman issued an order allowing the hog feeding operation to continue despite the state's intent to deny a permit for its operation.

    The order issued two stays, one on ADEQ's permit denial to prompt C&H's closure and the other on Pollution Control and Ecology's decision to send the permit application back to ADEQ to be reopened under a new draft decision.

    In November 2018, C&H Hog Farms responded to the state's official denial of a new permit by asking the Newton County Circuit Court to hold ADEQ in contempt of court. A hearing followed in December in Baxter County Circuit Court.

    Three days later, Judge Putman denied APC&E's motion to dismiss the appeal, allowing C&H to move forward in the appeal of the denied permit. As part of Putman's ruling, his stays issued in October remained in place.

    In Judge Putman's December order he noted C&H has filed a motion to show cause alleging ADEQ should be held in contempt of court. C&H alleges on Nov. 19th, with knowledge of Judge Putman's order Oct. 17th allowing operation to continue, ADEQ denied a permit for the hog farm citing pig waste might be contaminating the nearby Buffalo River.

    ADEQ's actions in spite of Judge Putman's decision to allow C&H to continue operating led to the orders for the contempt hearings.

  • 20 Jan 2019 9:31 AM | Anonymous member (Administrator)

    Nwaonline


    Panel to consider hog farm's request

    by Arkansas Democrat-Gazette


    The Arkansas Pollution Control and Ecology Commission will meet Friday to hear a petition to stay environmental regulators' denial of a new operating permit to C&H Hog Farms, among other issues.

    C&H Hog Farms owners have asked the commission to stay the Arkansas Department of Environmental Quality's denial of the farm's new operating permit and to allow the farm to continue to operate under its expired permit while the farmers appeal the denial.

    The commission approved a similar petition about a year ago when the department issued its first denial of the farm's application.

    The farm's owners also have proposed as an alternative a stay that states that the commission believes continual operation of the farm is appropriate but ultimately denies the stay because relief has already been granted by Newton County Circuit Judge John Putman when he placed a stay in October on a commission decision allowing the department to reopen the permitting process for the second denial.

    NW News on 01/20/2019

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