Fayetteville officials, utility object to state’s removal of notification requirements for liquid animal waste permits

October 31, 2024 at 9:48 p.m. | Updated November 1, 2024 at 9:36 a.m.

Environmental organizations, the city of Fayetteville and the Beaver Water District sounded the alarm on the removal of public notification requirements for liquid animal waste permits by the Arkansas Department of Agriculture -- the same requirements that were put in place after the C&H Hog Farms controversy -- without an official explanation for why they were being removed.

The outcry from both local government and environmental advocacy organizations such as the Ozark Society and the Buffalo River Watershed Alliance came as the Arkansas Democrat-Gazette learned, via an Arkansas Freedom of Information Act request, that two unnamed state lawmakers asked both the Department of Agriculture and the Department of Energy and Environment to request that the Arkansas Legislative Council suspend its rules to allow it to hear the changes to the Department of Energy and Environment’s Regulation 6 -- which will make the swine farm moratorium in the Buffalo River watershed permanent -- and to hear the agriculture department’s rule making on liquid animal waste permits, which also contain language relating to the moratorium.

A letter sent by both departments said that the sped-up timeline would be "beneficial" to facilities the permits apply to "because it would provide clarity on pending permitting matters."

The letter did not provide information about what those pending matters were.

A law passed in 2023 enabled the department to exclude notification requirements from the rule by striking language passed into state law in 2017 that required regulators to give notice within 120 days of its proposed actions when it received an application or modification for a liquid animal waste permit.

Act 824 of 2023, which transferred the authority over liquid animal waste permits from the Division of Environmental Quality to the Department of Agriculture, removed that language from state law.

The lead sponsor for the act was Rep. DeAnn Vaught, R-Horatio, who is a hog, dairy and chicken farmer and vice chair of the subcommittee that will consider whether to approve both the Regulation 6 and the liquid animal waste rule makings.

Liquid animal waste permits are required for swine farm operations such as the one that prompted the swine farm moratorium in the Buffalo River watershed, in dairy operations and other agricultural facilities involving animal waste, said Gordon Watkins, the president of the Buffalo River Watershed Alliance.

The Division of Environmental Quality, which previously regulated the liquid animal waste permits prior to the 2023 legislation, required that public notice for new permit applications or permit modifications be provided to local governments, and required permit applicants to "make a reasonable effort to notify all adjacent land owners" of the application at the time that the application was submitted to the division.

Those notice requirements were axed in the Department of Agriculture's version of the liquid animal waste rule. The only notice requirement in the Agriculture Department rule making was that the department must post notices somewhere on its website.

Meanwhile, another act that Vaught was the lead sponsor for in 2023 also made some of the documents required for those permits no longer subject to Arkansas' public records law.

The removal of the notification requirements was met with massive opposition during the public comment period, with hundreds of comments being submitted to the state's agriculture department -- but only after the time to comment was extended. According to Watkins and Thompson, their organizations didn't even know the rule making was in the public comment period until days before it was set to end.

"We didn't find out about it until four days before the end of the comment period," Thompson said.

The Department of Agriculture was well aware of the organizations' interest in the rule making, both presidents said, yet they were not told about the public comment period despite specifically asking to be informed, Watkins said.

"They knew of our interest," Watkins said. "They were not forthcoming with us, knowing that we were interested, knowing that and having told us that they would keep us informed on these. Both ADEQ and (the Arkansas Natural Resources Commission) told us multiple times that they would keep us in the loop and they would let us know if one of these regulations came up for rule making."

A public hearing held prior to the organizations being made aware of the public comment period was attended by agricultural interests such as the Arkansas Farm Bureau and the Arkansas Pork Producers Association, however, said Thompson.

"That tells you something right there," Thompson said. "They knew about it. We were not notified."

The Arkansas Farm Bureau did not respond to a request for comment.

The organizations were able to get the public comment period extended, and according to records obtained by the Democrat-Gazette, at least 570 public comments were ultimately received by the Department of Agriculture, both for and against the liquid animal waste rule.

While comments from the agricultural interests and right-to-farm supporters generally focused on opposition to language mirroring the swine farm moratorium in ADEE's Regulation 6, those in favor of the swine farm moratorium also came out in droves to oppose the removal of notification requirements.

Amongst those who submitted public comments were the mayor of Fayetteville and the Beaver Water District, both of which solely addressed the lack of notification requirements in their comments and conveyed deep concerns about the consequences of removing the notifications.

"One of our city council members, Teresa Turk, brought this to our attention," said Susan Norton, the mayor's chief of staff who was speaking on the city's behalf. "She pointed out to us that, in fact, in order to be made aware of the general permit then we would have to hunt ... on the Department of Agriculture website" rather than notice being distributed to local governments directly.

"That's why we made the comment that we did and we feel that is for the sake of general transparency and public notification," she said.

The "geological sensitivity" of the Northwest Arkansas region as a whole made it even more important that the city of Fayetteville is kept aware of those kind of permit developments, said Norton.

Meanwhile, James McCarty, the Beaver Water District's environmental quality manager, said that the removal of the notification requirements strikes at the heart of the ability for water utilities like it to engage with state regulators on actions that could potentially impact drinking water resources.

They were not aware of the public comment period for the rule making until the Ozark Society informed them, he said.

Despite several hundred comments expressing opposition to the removal of notification requirements, the department did not state why they had been removed in any of its responses, writing in its responses that "The notice process provided within the rule is sufficient."

The responses to comments concerning the notification requirement removal also said that "If it is determined that the operation may result in a discharge into the waters of the state, the operation must obtain" a Regulation 6 NPDES permit through the Division of Environmental Quality, which "includes the increased notice as requested in the comment."

The change to state law was not noted in responses to comments about notification requirements, although it did cite the change in state law regarding Freedom of Information Act applicability when commenters mentioned the public records changes.

A Department of Agriculture spokesperson was contacted with multiple questions regarding the rulemaking and the last-minute request to bring the rule making before the ALC in November. Shaelyn Sowers, the Department of Agriculture's spokesperson, said she would "check into this" in response to the emailed questions. She did not respond with answers to the Democrat-Gazette's questions.

The combination of the records exclusion from the Freedom of Information Act and the removal of public notifications was concerning to both Watkins and Thompson, they said, because of the potential for substantial environmental consequences in Northwest Arkansas specifically if more liquid animal waste facilities set up shop there. They said the region was especially vulnerable to the kinds of pollution liquid animal waste operations can create, regardless of if it discharges to surface water, due to the underlying geology.

While the proposed regulations would safeguard the Buffalo River watershed, Watkins said the state's other watersheds -- including the ones that provide drinking water -- aren't afforded the same protections. The lack of notifications would mean that those impacted may be none the wiser if liquid animal waste operations wanted to open up in their areas, they both said.

"Unless you are monitoring that website on a daily basis, to my knowledge there's no means for signing up for a notification list of any sort," Watkins said. "It really inhibits the public's ability to gain access to that information."

Removing the notification language is critical, Thompson and Watkins said, because if a landowner who would otherwise oppose a liquid animal waste facility near their property didn't submit a public comment, they would not have any "legal recourse," as submitting a comment is how legal standing is established, they said.

"The only way that you have public standing to object is if you comment," Thompson said.

Both agencies submitted letters to the Bureau of Legislative Research requesting the suspension of the rules on Oct. 17, according to records. That is despite changes to Regulation 6 not being adopted until Oct. 25. Neither Thompson nor Watkins were aware that Regulation 6 would potentially be heard in November instead of December.

The documents included in the record for the Regulation 6 adoption stated that the ALC hearing on the changes would take place in December. Michael McAlister, managing attorney for ADEE, who presented the regulation to the Pollution Control and Ecology Commission, did not say that the date on those documents was no longer accurate or had the potential to no longer be accurate.

When contacted with multiple questions regarding the timing of the ALC hearing, department spokesperson Carol Booth provided a copy of the letter sent to the Bureau of Legislative Research requesting the suspension of the rules. Answers to the questions were not provided.

The change to when lawmakers would consider approval for the rules, and the removal of the public notification requirements for liquid animal waste permits, was part of a larger issue with transparency, said Watkins and Thompson.

Both warned that there are large interests that want to expand hog farming in the northwest region -- and that they don't want the eyes of the public on them.

"They're going to let everything sit quietly for maybe three or four years and then all of a sudden we're gonna see these things start popping up (in Northwest Arkansas)," Thompson said. "Our feeling is that there are interests that want to greatly expand hog farming and the best way to do it is to avoid having to deal with the public."

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