Arkansas Democrat Gazette

Panel affirms judge's ruling on hog-manure permit fix
By Emily Walkenhorst

The owner of EC Farms in Newton County will need to pay a permit fee and get a new permit number for spreading hog manure on his hundreds of acres, the Arkansas Pollution Control and Ecology Commission affirmed Friday.
But owner Ellis Campbell will not need to apply for a new permit, according to the ruling. Applying for a permit would allow the entire permit to be open to a 30-day public comment period.
The Pollution Control and Ecology Commission ratified Friday the Jan. 7 decision by Arkansas Department of Environmental Quality Administrative Law Judge Charles Moulton. In that same vote, which was a voice vote with no opposition, the commission also dismissed minute orders by other parties in the case that proposed alternate resolutions.
Moulton found that EC Farms should have applied for a new permit instead of applying to modify its current permit to allow it to apply up to 6.7 million gallons of hog manure for C&H Hog Farms, owned by two of Campbell's cousins and another farmer. But Moulton also found that Campbell and the Department of Environmental Quality -- which had approved the permit modification -- could rectify the issue by creating a new permit number and having Campbell pay a new permit fee.
Moulton had said previously that his decision would go before the commission in February, but commissioners had the authority to ratify the decision Friday.
An attorney for Campbell and an attorney for Carol Bitting -- who appealed the department's decision to allow the permit modification -- presented arguments against Moulton's decision Friday.
Bill Waddell, Campbell's attorney, argued that Moulton had come to the correct conclusion that Campbell did not need to apply for a new permit but disputed Moulton's rationale. Waddell argued that a modification, instead of a new permit, was sufficient according to state regulations. Given that the issue before the commission had never been addressed previously, Waddell requested that the commission adopt his proposed minute order supporting his argument.
Waddell said after the meeting he would not appeal the decision to dismiss his minute order.
Richard Mays, Bitting's attorney, argued that Moulton was correct in determining that a new permit was required under state regulations but wrong to conclude that the issue could be resolved by simply creating a new permit number and paying a permit fee, instead of opening up the permit to public comment. Mays requested that the commission adopt his proposed minute order supporting his conclusions.
After the vote in favor of Moulton's decision, Bitting said she was "disappointed."
Bitting has 30 days to appeal to circuit court but hasn't decided whether she'll do that.
The commission rule cited in the permit dispute is Regulation 5's section 5.601, which states that a "separate permit may be issued for a land application site if the operator submits an application" meeting certain criteria. Moulton had said previously that Regulation 5, titled "Liquid Animal Waste Management Systems," appears to offer two different permits under its umbrella -- one for a hog farm and another for land application.
A department permit that allows, among other things, the application of hog manure on land as fertilizer can be modified to apply only hog manure, according to filings submitted Nov. 29 by the department and a landowner.
Attorneys for the department said nothing in Regulation 5 required EC Farms to void its current permit and apply for a new one. But Mays argued a separate permit is required when someone plans to operate only a hog manure land application site.
During Friday's vote, several commissioners asked questions of Moulton, Mays, Waddell and Department of Environmental Quality attorney Tracy Rothermel.
Commissioner Chris Gardner noted that land application-only permits would still use guidelines contained in the concentrated animal feeding operation portion of Regulation 5. If the guidelines are dictated by the same portion of the permit, Gardner said, he didn't understand why land application-only permits needed to be separate from concentrated animal feeding operations.
Moulton said he couldn't determine any other purpose for the section for land application-only permits.
Gardner said Regulation 5 needed to be revised to address issues of clarity.
Moulton said he had written his decision several different ways before deciding to go with the one ratified Friday.
"This is the most difficult recommended decision I've had in five years," he told the commission.
Metro on 01/28/2017