Arkansasonline
By RICHARD MASON Special to the Democrat-Gazette
This article was published August 5, 2018 at 2:38 a.m.
Members of the present administration in Washington and Little Rock are trying their best to bring back the 1970s--environmentally.
In 1969, a polluted river in Cleveland caught on fire. The Houston ship channel was an oily sewer, New York City's dirty air was almost toxic, and the idea that a person would swim in the Hudson River was considered a joke.
That national environmental nightmare brought about the Clean Water Act of 1972. Later the Clean Air Act and the Endangered Species Act passed in a remarkable bipartisan effort.
Fast forward to 2018 and take a look at the outstanding improvements in air and water quality, our forests and wildlife. In order to achieve this impressive improvement the EPA, Congress, and individual states have had a role in enforcing mandated regulations. Some states have made a lot more progress than others, Arkansas is near the bottom in spite of having the potential to actually be the Natural State.
Yes, you got it, we're moving in reverse with our governor, congressmen, and the Arkansas Department of Environmental Quality making sure we bring up the rear. Our attorney general's lawsuit against the EPA to prevent certain smokestack emissions from coal-fired electrical generating plants is a good example. To reduce the mercury spewing into the atmosphere from coal-fired plants with the potential to harm a mother's fetus is dismissed as being too expensive.
You might be naive enough to think no one in their right mind would want to reverse the outstanding national progress that has been made under Republican and Democratic administrations. If you believe that, you are dead wrong, and are using alternative facts.
Today the EPA and the president, using executive orders, are working to reverse the environmental progress made. They are being assisted by Congress and some individual state agencies. It's is a nationwide rollback, from allowing coal mining in national forests to denying climate change and everything in between.
But let's look closer to home. We have four congressional representatives, two senators, and a governor who can influence and enhance the EPA in its rulemaking, and certainly can have an overall impact on the president's executive directives. What would I give the environmental score for our congressmen, governor, and president?
I'm generous when I give the whole sorry bunch an F without using profanity. Want local examples? Let's start with the Buffalo National River. If you have read the papers lately, you know 14 miles of the river is now polluted. Nothing has appreciably changed on the watershed except for ... oh, you guessed it ... the hog farm. Each year the hog farm spreads hog waste on 11 fields near Big Creek. Oh, by the way, Big Creek has also turned up polluted. What a coincidence!
The last time I checked the science books, water still runs downhill, and downhill from Big Creek is the Buffalo National River. Only 14 miles of the 150-mile Buffalo are polluted according to the latest tests, but what will future years bring? Answer: More and more pollution until swimming will be restricted, and ultimately the river will resemble a hog farm sewer.
I'm a geologist who knows the topography and the karst (Swiss cheese) Boone Limestone rock strata that the hog farm and the fields on which they are sited. They are dumping hog farm waste on land that has a direct subsurface conduit to our national river. The tremendous amount of hog waste dumped makes it virtually impossible for the river not to be polluted.
The governor could stop the pollution source tomorrow, but instead he appointed a Beautiful Buffalo River Action Committee--it's hard to say that without laughing--which has no authority to act on the hog farm. It is just a smokescreen. Anyone who follows political maneuvers knows appointing a committee is a politician's way to not act, but to pretend concern about a problem.
The governor is not alone in failing to come to the river's rescue. Congressman Bruce Westerman, at a Hot Springs Coffee with Your Congressman event, was asked: "Congressman, do you believe C & H Hog Farms will pollute the Buffalo River?" His answer was recorded by several individuals. "I think the folks who canoe on the river and urinate in it will pollute the river more than the hog farm."
The hog farm dumps the waste equivalent of a city of 20,000 onto the Buffalo watershed and the congressman can dismiss it? Well, a pro-hog farm congressman who will let the Buffalo continue to be polluted won't get my vote this fall.
Congressman Westerman doesn't have the backbone to have a town hall meeting to explain his position. He's also a back-to-the-'70s congressman who has proposed the Resilient Federal Forests Act of 2017, a thinly designed bill to make our national forests into timber farms. His bill restricts public comments and allows up to 10,000 acres to be clear-cut without public input.
Next time you see him ask how much money forest products companies have contributed to his campaign. It's north of $100,000. He's in the corporate timber companies' hip pocket--right next to their wallets.
I wish that were all of the rollback to the '70s, but it's not. A bill to gut the Endangered Species Act is on the table. Based on the sorry environmental record of our elected officials, they will pass it, and we can kiss the bald eagle, the grizzly bear, the gray wolf, and a raft of other species goodbye.
There's a bottom line to all of this, rooted in this administration's goal to roll back environmental progress When 194 countries and the pope are committed to fight global warming and our country is backing out of the Paris Accord as the administration tries to deny climate change--all for coal miners--and when the same Congress is trying to gut every environmental act and our congressman are happily going along with the president, you know it's time to do the only thing we can--vote 'em out!
Richard Mason is a registered professional geologist, downtown developer, former chairman of the Department of Environmental Quality Board of Commissioners, past president of the Arkansas Wildlife Federation, and syndicated columnist. Email richard@gibraltarenergy.com.
Editorial on 08/05/2018
Print Headline: Back to the 1970s
KUAF/ Ozark at Large
Hundreds of Arkansas Waterways Draft Listed as Ecologically Impaired
By JACQUELINE FROELICH
Listen to the broadcast here.
A biannual review categorizes more than a thousand Arkansas waterways according to levels of impairment, with the worst cases requiring federal and state intervention. This year, several sections of the Buffalo River Watershed were included on the list for the first time, categorized as lower priority, but the Buffalo River Watershed Alliance says the watershed requires high priority federal attention. A public hearing will be held at 1 p.m. Aug. 17 at Arkansas Department of Environmental Quality headquarters in Little Rock.
Arkansas Times
By Leslie Newell Peacock @eyecandypeacock
click to enlarge
For reasons that will perplex and surely distress the people who come after us, the folks who fight to keep our air and water clean and limit the degradation to our natural world are usually on the losing side of that fight. Developers, the side with the money, usually win, thanks to prevailing philosophies that money is almighty and people have dominion over the earth.
Still people fight for a healthy environment, and when they do, they hire Richard Mays, considered by those who work with him to be unparalleled when it comes to understanding the National Environmental Policy Act and how business interests try to get around it. "He's one of the top [attorneys] by far, in the state if not the region," said Judge David Carruth of Clarendon, who worked with Mays to halt the Grand Prairie Irrigation Project until it could be designed in a way that would not harm the White River. "He's probably one of the most knowledgeable guys on water issues," said Glen Hooks, the director of the Arkansas chapter of the Sierra Club, who worked with Mays to ameliorate the detrimental effects of the Turk coal-fired plant in Southwest Arkansas.
In North Arkansas, it's the monitoring of the pig farm on a creek that feeds the Buffalo National River that keeps Mays busy. In Russellville, he's known as the man who's helped delay for nearly 20 years a slack-water harbor and transportation hub the city hopes to build on the Arkansas River, in a floodplain south of town.
In Little Rock, it is highway widening that has people knocking on Mays' door.
Two weeks ago, Mays filed a request in federal court for a temporary injunction against the Arkansas Department of Transportation's project to widen two-and-a-half miles of Interstate 630 from six lanes to eight. The project will cost $87.3 million and require the demolition and reconstruction of three bridges between University Avenue and Baptist Health. The highway department persuaded the Federal Highway Administration that no environmental study was needed on the project. Mays, attorney for plaintiffs David Pekar, George Wise, Matthew Pekar, Uta Meyer, David Martindale and Robert Walker, argued that the project didn't qualify for such an exclusion. Federal Judge Jay Moody denied the request for an injunction, and the widening project has begun.
You win some; you lose some. In 2004, federal Judge G. Thomas Eisele ruled against Mays and Carruth in their attempt, on behalf of the Arkansas Wildlife Association, the National Wildlife Association and others, to enjoin the Grand Prairie project to pump water from the White River to irrigate 250,000 acres of thirsty rice fields. The 8th Circuit Court of Appeals later denied their appeal of Eisele's ruling.
But in 2006, federal Judge William R. Wilson ruled with Mays and Carruth, ordering the U.S. Army Corps of Engineers to halt construction on a pumping station that was part of the $319 million project until it could better study the impact of pumping on the ivory-billed woodpecker newly discovered on the Bayou DeView.
"You just have to keep fighting, keep pushing back," Mays said in an interview last week. "You don't want to stop development, at least I don't. People have to eat ... [but] that doesn't mean you have to trash the environment."
Carruth said he told Mays at the time that he wished the courts had ruled on the merits of their argument — that pumping water from the White would lower water levels and endanger wetlands, fish and other wildlife downstream "and that it cost too much money." Mays responded, "Instead, you gave them the bird."
***
Gordon Watkins, president of the Buffalo River Watershed Alliance, which hired Mays to represent it before the Arkansas Department of Environmental Quality in cases involving the controversial C&H hog farm near a creek that feeds into the Buffalo, said it's more than Mays' expertise that's important to his group. "Lawyers can do whatever their clients ask, but to find a lawyer who actually believes in your cause is important to us, [someone who believes] we were right and would represent us with that in mind. His mind was in the right place; his heart was in the right place."
Mays, 80, who has been an environmental lawyer for 40 years and worked for the Environmental Protection Agency for eight years in Washington, D.C., said he takes on such cases "because of the desire and the need to protect and help the world, if you like." He said his eight years at the EPA were some of the best years of his life. "I felt like I was really doing something I was philosophically interested in and wanted to do."
Mays attributes his desire to protect the natural world to his childhood in El Dorado. "When I was growing up, my father would rather be hunting or fishing than anything on earth," Mays said. His father owned a grocery store, but on the weekends, "he would be out on the river or in the woods, and I was usually with him." And from his mother, he inherited an appreciation for literature and writing, "so that turned out to be a pretty good background for being an environmental lawyer," Mays said.
Mays works in Little Rock (at least) two days a week, at the Williams and Anderson law firm. He commutes from his home at Eden Isle on Greers Ferry Lake. The case he won there, he says, is the one he's most proud of, since it concerned his backyard — literally.
Mays moved back to Arkansas in 1998 after 20 years in D.C., buying a home on Eden Isle. He chose the area because of Greers Ferry Lake and the Little Red River. Right after he took up residence there, the Corps of Engineers proposed a shoreline management plan that would open up the undeveloped main lake to boat docks. The lake is zoned, with boat docks in the coves only and the main body of water reserved for public recreation. "It's unbroken shoreline," Mays said, "with not a whole lot of boat docks and clear water, clean water."
Mays was thinking it was a bad idea, and so was Carl Garner, the retired resident engineer who had worked at the lake since its construction began in 1959, a man so connected to Greers Ferry Lake that his name appears on the visitor center there. Garner called Mays on the advice of a mutual friend and Mays invited him over. "I expected to see somebody walk in, a whip-cracking authoritarian type, somebody who looked like George Patton with jodhpurs, and there this guy walks in and looks like Ichabod Crane," Mays said of Garner, who died in 2014. They became good friends and with other residents formed Save Greers Ferry Lake, which hired Mays to file a preliminary injunction against the Corps' plan. He won, and the plaintiffs and the Corps eventually settled. Greers Ferry Lake remains mostly undeveloped.
It may seem like such a victory — for aesthetics — isn't as important as, say, keeping the highway department from doubling the size of I-30 through downtown Little Rock or a coal plant from spewing mercury into the air. There were arguments to be made about increased water pollution on the lake. But protecting the lake was "a personal thing," Mays said. It was important to his family and others, "a place where you go to feel refreshed."
"People can get very caught up, and justly so, in a place where they can feel like they are in communication with nature, with God, if that's what you're into. That's what makes environmental law practice so interesting to me. I feel like it's preserving things we need to have."
That kind of emotion and love for place is what saved the Buffalo River from being dammed and what keeps its advocates fighting to keep the beautiful national treasure clean.
Mays said he figures he gets a good outcome in his cases about half the time. Environmental cases are "very difficult" to win, he said, because "courts give considerable deference to agency decisions. If you're trying to overturn ADEQ or EPA or the federal highway administration, you're fighting an uphill battle."
Settlements are hard to get as well, Mays said. But that's what he got when he fought the Southwestern Electric Power Co.'s coal-fired Turk Plant in Fulton. The Sierra Club and the Audubon Society, both national and the state chapter, challenged the plant's water permit from the Corps of Engineers in 2010 and won an injunction. But that was just a portion of the plant; construction continued. Still, with the conservationist's good outcome on the injunction, SWEPCO agreed to a settlement that would allow it to complete the plant. In return, the company fitted the plant with more equipment to reduce emissions and agreed to shutter another coal-fired plant in Texas sooner than planned.
Mays' 50-50 record held true in a hearing last week before the Arkansas Pollution Control and Ecology Commission for ADEQ, when Mays (on behalf of the Buffalo Watershed Alliance) and Sam Ledbetter (representing the Ozark Society) suggested that newly appointed Commissioner Mike Freeze recuse from decisions on C&H. They cited Freeze's emailed comments on C&H's permit application in 2017 in support of the hog farm — in which he wrote "enough is enough" in the permitting process — as evidence the commissioner could not be impartial. The commission, however, voted to support Freeze's refusal to recuse.
But after Mays and Ledbetter argued later in the same meeting that the administrative law judge for the Commission was correct in his finding that the hog farm's extended permit wasn't perpetual, the Commission agreed, voting to support the administrative judge. It was a win for conservationists and a win for Mays. Mays told the Commission that the lawyer for the hog farm had tried to make a silk purse out of a sow's ear. The ADEQ previously denied a second permit for C&H. The hog farm appealed that decision and can continue to operate while an administrative law judge considers the appeal.
So while an outright win may be hard to get, fighting wide roads and coal plants and hog waste on various fronts, including noncompliance with the National Environmental Policy Act, also helps delay the degradation, and "you may be able to wear them [the opponents] out," Mays said, or national policies may change that may hinder the project. That was the case in the Grand Prairie Irrigation Project: When Judge Wilson issued the order requiring study to protect the bird, the federal government had already pulled funding for the project. (The project continues, but with a greater dollar burden on the state and the encouragement of conservation strategies by farmers.)
More often, however, the development side of the equation in litigation has more money and more lasting power.
Many people who haven't previously been wrapped up in environmental cases are now, thanks to the potential impacts of the 30 Crossing project, the highway department's plan to replace the Interstate 30 bridge and widen I-30 for a little over 7 miles at a cost of $630 million. ARDOT wants to double the width of the interstate through downtown Little Rock by building two connector-distributer lanes on either side of the highway to provide exit from and entrance to I-30.
When I-30 was built in the 1950s, neighborhoods east of the interstate fell into decline. That area, buoyed by the Clinton Presidential Center and Heifer International, is now experiencing a renaissance, with a new school, new restaurants, new housing and new businesses. Its progress follows the revitalization of the west side of the interstate, with the old downtown resuscitated by the River Market district and new development attracted to Main Street north and south of Interstate 630.
Opponents of highway widening — including neighborhood associations, downtown residents, a retired Texas transportation executive and a retired economist and natural resource planner — have hired Mays to represent them should the Federal Highway Administration issue Finding of No Significant Impact (FONSI) in its evaluation of the Environmental Assessment on 30 Crossing to green-light the highway project. That finding could come as early as mid-August, according to the highway department.
On July 27, at the end of a 45-day public comment period on ARDOT's draft Environmental Assessment, Mays filed a 16-page comment challenging, among other things, the department's traffic modeling and its ignoring the indirect impact of induced travel on communities outside the project area. It notes the lack of consideration of HOV (high-occupancy lanes) lanes or other routes to handle the rush hour traffic that ARDOT gives as its reason for widening and its failure to "fully address" health effects from air pollution caused by increased traffic.
The comment also suggests that Arkansas — which has the 12th largest highway system in the country, with more highways to maintain than Illinois, California, New York and Florida — struggles to maintain the roads it has now. It points to a column written by state Highway Commissioner Alec Farmer in Arkansas Talk Business in which Farmer says ARDOT needs $400 million in new highway funds simply to maintain what is built now, and that revenues from the gas tax will decline as more electric cars are built.
Mays said that the 30 Crossing project presents "an opportunity to force the agencies involved — state and federal — to take a hard look at updating the thinking toward highway traffic, how to handle highway traffic by means other than simply putting more lanes on the highway. I believe we're on the cusp of a breakthrough on technology that will affect our highway travel dramatically."
The 30 Crossing widening is designed to address traffic in "design year" 2041, when ARDOT says 153,000 vehicles per day will use I-30. The highway department's preferred model, six lanes of through traffic and four collector-distributer lanes, would allow cars traveling south on I-30 during afternoon rush hour to travel at 30 to 50 miles per hour (considered a "somewhat congested" situation). That suggests there will be two decades of smooth sailing through Little Rock, no rush hour traffic at all.
"It's ridiculous to think that you can predict that far," Mays said. "It's a total mistake to do [the widening] at this time. It was the thing to do in the '50s and '60s, but not now," given the technology — like self-driving cars and new safety-features being built into vehicles — that will be available in not too many years from now.
What we don't need, he said, is to spend nearly a billion dollars on highway projects in Central Arkansas in the anticipation of a transportation future we can't predict.
The highway department, using funds from a $1.8 billion bond issue funded with a tax increase approved by voters, is spending nearly $90 million on the widening of I-630 (three times its estimated cost), which has already started; an estimated $80 million on widening Highway 10 (previously estimated at $58 million); $23 million on new ramps at Highway 10 to I-430 northbound; and a figure estimated a couple of years ago at $630.7 million on 30 Crossing.
(Dale Pekar, who is one of Mays' clients, raised the issue of cost in his public comment on ARDOT's draft environmental assessment. ARDOT says if construction — which is being combined with design — costs more than the funds available to the project, contracts will be let "at a future date" to complete the project. Pekar said that provision "makes the entire analysis unreliable," and if ARDOT comes up short, it should take it from low-priority projects — which is what it threatened Metroplan it would do if the planning agency didn't agree to add lanes to the corridor.)
"I'm not opposed to spending money in this area," Mays said, "but I don't know how the people in the rest of the state feel about it. It seems to me we ought to be thinking about how we can get more value [from the $1.8 billion total] for a longer period of time, rather than more lanes that may or may not be used in 20 years."
It's no surprise the highway department wants to build highways rather than think about transportation holistically. (ARDOT used to be the Department of Highway and Transportation, but recently dumped Transportation from its name, perhaps to fend off suggestions it thinks differently.) "It's a matter of mindset. This is what they get paid to do." Figuring into that is what Mays called "bureaucratic inertia."
"Sometimes you have to force their attention by filing lawsuits. I've found that, sometimes, litigation is the best way to bring about change ... or at least, to get their attention."
Letter to Editor Arkansas Democrat Gazette
Agency must do job
The Arkansas Department of Environmental Quality put out a press release last month announcing that long stretches of the Buffalo River and Big Creek, one of the largest tributaries of the Buffalo, are "impaired." For those not fluent in bureaucratic language, "impaired" means polluted. The Buffalo River, Arkansas' best known scenic river and biggest tourist attraction, is polluted. In parts of the river system there is no longer enough dissolved oxygen in the water to support a healthy aquatic ecosystem (no fish) and there are so many pathogenic bacteria in the water that no one should allow their children to swim in it. The Arkansas Department of Health is now reporting that it may not be safe for my dog to swim in some sections of the river.
This information is not news to the people who live and work on the river or to the scientists who monitor its water quality. The news is that the state has finally admitted that the river is polluted, and water quality is getting worse.
Sadly, in the same press release, the agency announced that it plans to do absolutely nothing about the pollution. The excuse for doing nothing to correct this environmental and economic disaster that it allowed to happen is that there is a watershed management plan already in place for the Buffalo River. The plan is a collection of voluntary suggestions put together by a loosely organized group of volunteer landowners and non-government organizations and state and federal agencies. The Buffalo River plan specifically does not provide any way of preventing or reducing pollution of the river other than unenforceable voluntary recommendations. Cleaning up the Buffalo River is the job of the Department of Environmental Quality and so far, it is refusing to do it.
Does the agency not care enough about the Buffalo River to start working on a solution to this situation, or is it hoping the federal government will step in and do the job?
BRAD TAYLOR
Parthenon
The Fern
By Johnny Carrol Sain, August 1, 2018
Photography by Liz Chrisman
Arkansas Highway 155 branches of Arkansas 7 just south of Dardanelle. The flat, two-lane features a couple of curves and long, straight stretches with cattle pasture and cropland on both sides. Just a couple of miles east of the intersection sits Balloun Farms. If the wind is right and your windows are down, you’ll instantly know that Balloun Farms grows hogs, even though you can’t see a hog anywhere. There’s no mistaking the distinct odor of hogs.
Read the this entire article with photos at The Fern
Buffalo Impaired
Story by Mike Masterson
Tuesday, July 31, 2018
We've been warned for years by hydrogeologists, geoscientists and others who understand disease-causing bacteria and contamination of waterways.
Now over 14 miles of our unique Buffalo National River is categorized in a draft list as being impaired. That means one section near the center of the river, which winds through the Ozarks for 150 miles, contains levels of pathogens beyond acceptable water-quality standards.
To that add some 15 miles of similarly impaired Big Creek, a major tributary of the majestic river that flows adjacent to the controversial C&H Hog Farms. Big Creek is said to have abnormally elevated levels of pathogens, except for the final 3.7 miles before its confluence with the Buffalo 6.8 miles from the factory. That section was labeled impaired because of low dissolved oxygen levels, a condition harmful to aquatic life caused by an overload of nutrients, aka fertilizer.
Our Arkansas Department of Environmental Quality (cough) that wrongheadedly allowed this factory with up to 6,500 swine to set up shop in the Buffalo watershed in 2012, issued its impaired streams 303(d) draft list last week, saying the source of the pathogens is unknown.
Though its owners, their lawyers, and the Farm Bureau deny it, many (including geoscience experts such as John Van Brahana, who's conducted subsurface water flow studies in the watershed since 2012) believe the hog factory's ongoing presence is behind much of what's being documented today. The factory continually sprays millions of gallons of raw waste onto fields along Big Creek that lie atop a leaky karst subsurface.
Moreover, because it placed the Buffalo on its category 4b impaired list (under the five 303(d) classifications), the Department of Environmental Quality has no responsibility to track the source. That's flatly unacceptable.
What's at stake economically? In 2017, nearly 1.5 million people visited the Buffalo, spending $62.6 million which supports 911 jobs, according to the National Park Service.
So yet again, our state agency responsible for ensuring "environmental quality" has opted to react politically and shirk its obligation by finally acknowledging we have a growing contamination problem in the Buffalo's watershed, then not aggressively moving to resolve it.
The algae blooms in the Buffalo have become medically serious. Some of the thick green mess contains strains of bacteria that can sicken those who get it into their mouths. It's not a pretty situation any way you maneuver to paddle around the problem.
I asked Gordon Watkins, who heads the Buffalo River Watershed Alliance, what he thinks about the 4b designation. He said he finds it encouraging that the agency "finally recognizes Big Creek and adjacent portions of the Buffalo are now impaired due to low dissolved oxygen (a sign of nutrient overloading) and pathogens, but it's disappointing they placed them in category 4b, which essentially means the state bears no responsibility to investigate or address the source."
Watkins, whose group with a coalition of others is concerned about maintaining quality in the Buffalo, said the reasoning for the draft 4b designation is because other entities who lack authority to rectify it supposedly are addressing the problem and that "alternative plans are in place." Therefore, the agency has no obligation to pinpoint the source and provide enforcement to clean up the growing mess.
"Presumably, that alternative plan includes the recent Buffalo National River Watershed Management Plan, which is ironic," Watkins said, "because the Arkansas Natural Resources Commission (originator of the watershed management plan) went to great lengths earlier this year to avoid including Big Creek on its top six prioritized streams because at that time it wasn't officially considered impaired."
Plus, he added, the management plan specifically excludes point sources or permitted facilities, such as C&H, from consideration as the cause.
Others listed as supposedly "monitoring" Big Creek, Watkins said, include his nonprofit group, the Buffalo National River with a single station, the U.S. Geological Survey with a couple of stations on Big Creek, and the Big Creek Research and Extension Team (which has a questionable record of adequate monitoring).
However fragmented and limited the monitoring, I'm not alone in believing the intent of passing the buck is to shift responsibility and avoid any finding which might involve C&H. "Of course, these monitoring entities have no enforcement authority. So even if evidence is found that C&H is polluting, nothing can be done about it," said Watkins.
Big Creek and impaired segments of the river clearly should be placed in Category 5 of the 303(d) list, which will be finalized after the public comment period ends in September.
Doing so would require establishing total maximum daily loads for contaminants in the streams and provide enforcement authority to specifically identify and correct the source.
"The first step is to recognize the problem exists. That's now been done," said Watkins. "Next is not to say yes, it's impaired, but we're not going to act to rectify that. The whole idea is to find the cause and remove our national river and its tributary from the impaired list."
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Mike Masterson is a longtime Arkansas journalist. Emai
By Emily Walkenhorst
Posted: July 29, 2018 at 3:29 a.m.
The Arkansas Pollution Control and Ecology Commission approved Friday its administrative law judge's recommendations to deny motions made by C&H Hog Farms arguing that its original permit was indefinitely active.
Administrative Law Judge Charles Moulton has made a recommended decision in C&H's favor that would put the Arkansas Department of Environmental Quality's decision to deny its permit application back out for public comment, which will likely be considered by the commission next month. The commission is the department's appellate and regulatory body.
Environmental groups have expressed opposition to the farm's operation within the Buffalo River watershed, citing concerns that manure from the farm could leak into the river and pollute it.
Commissioners adopted an order by Moulton on Friday rejecting claims made by C&H on the extent to which the farm's permit can remain active.
C&H had argued that its Regulation 6 permit remains active until the Environmental Quality Department issues a new one.
Attorney Chuck Nestrud said law dictated that such federal permits can only be discontinued if the owner is found in violation, citing Ark. Code Ann. 8-4-203(m)(5)(D).
In his recommended decision to the commission, Moulton emphasized that that portion of the law states an expired general permit can remain active until "a final decision is reached for an individual permit," not until a new permit is issued.
Commissioners did not debate that decision but spent more time on C&H's argument that the department did not properly inform the farmers that they needed to submit a "timely" application for an individual permit to replace their general permit, which was no longer authorized under state environmental permitting programs. The department never told the farmers when they needed to submit their application.
Department attorney Tracy Rothermel said the department did not give C&H a timeline on when to apply because the farmers had already submitted an application for a Regulation 5 individual permit.
That permit was denied by the department in January after receiving initial approval last year, and in April the farmers applied for a Regulation 6 individual permit, which is still a pending application.
Commissioners discussed whether the issue had been fully argued and whether timeliness was defined enough for them to make a ruling on it before approving Moulton's recommended decision 8-3.
Commissioners Mike Freeze, Bruce Holland and Rusty Moss voted against it.
Metro on 07/29/2018
I did state for the record that I recused myself from and physically left any and all Farm Bureau Board of Directors’ meetings if the C & H Hog Farm issue was going to be discussed.
An Arkansas Pollution Control and Ecology Commission member can continue to participate in hearings about C&H Hog Farms' appeal of its permit denial after writing public comments in support of the farm a year before his appointment to the commission, the commission has decided.
Commissioners approved Mike Freeze's decision not to recuse from appeal proceedings with no opposition Friday.
Environmental groups that oppose C&H's operation within the Buffalo River watershed filed a motion suggesting recusal Thursday. The groups -- the Ozark Society and the Buffalo River Watershed Alliance and other individuals -- are approved intervenors in C&H's appeal but cannot make motions before the commission, only before a judge.
C&H operates on Big Creek, about 6 miles from where the creek drains into the Buffalo River. It is the only federally classified medium or large hog farm in the area and has become a concern among environmental groups that fear manure from the farm could leak into and pollute the river.
Freeze was appointed to the commission in February by Gov. Asa Hutchinson and has been an active member of the Arkansas Farm Bureau for more than 20 years.
On Feb. 22, 2017, he emailed the Arkansas Department of Environmental Quality to support C&H's application for a new permit, arguing that it would increase the number of acres accepting manure for fertilizer from the farm, thereby decreasing the amounts spread per acre.
On March 14, 2017, Freeze sent another email declaring, "Enough is enough! ... I urge ADEQ to use science in issuing the C & H Hog Farm permit and not to allow emotional appeals from various people sway ADEQ from doing what is right."
Commissioner Chris Gardner said Friday that no "bright line" exists in deciding whether someone must recuse. He said bias is inevitable and that the challenge is to set aside the bias and apply the law properly.
"If they can do that, then there is no basis for recusal," he said.
Freeze recounted his experience in farming and serving on the Arkansas Game and Fish Commission.
"I think all of those qualities are hopefully why he [Hutchinson] asked me to serve on this commission," he said, adding that he believes he can compartmentalize his relationships from his appointed task at the commission.
Intervenors contended that recusals are necessitated by appearance of bias and not by actual confirmation of it. They argued that a recusal would avoid future appeals in the case based on a lack of recusal.
"It's not actual bias, because we can never get into someone's heart," said Sam Ledbetter, attorney for the Ozark Society. "It is the appearance."
State Desk on 07/29/2018
Posted: July 28, 2018 at 3:52 a.m.
Visitors to the Buffalo National River should watch out for algae on the river that has the potential to produce cyanotoxins, the National Park Service said in a news release Friday.
Cyanotoxins are naturally occurring toxins produced by bacteria known as cyanobacteria, which is also known as blue-green algae. Cyanotoxins can be harmful to humans and pets, but so far none have been detected during testing on the river, according to the National Park Service.
"The river's still safe," said Shawn Hodges, the ecologist for the Buffalo National River. "We haven't found anything that would link any illnesses with contact with the water."
Eight people have reported illnesses to the Park Service after visiting the river this summer, the Park Service said Friday.
The toxins can cause rashes, coughing, watery eyes and sneezing or, if ingested, nausea and diarrhea, said Hodges and Dr. Dirk Haselow, the state epidemiologist. Hodges said symptoms may take a week or two to show up.
Tests on "less than a handful" of those who have reported illnesses have not indicated toxins so far, Haselow said. Not all of the eight people have returned messages from the Arkansas Department of Health or conducted interviews with the department about their symptoms, he said.
Haselow said that because of the small number of people who have reported illness and the lack of a connection between the illnesses and the river, he could not say in what portion of the Buffalo those people had floated or swum. But they were not on the portion of the river the Arkansas Department of Environmental Quality recommended for impairment declaration, he said.
On Thursday, the Department of Environmental Quality recommended 14 miles of the river be declared impaired because of excessive pathogens, which can cause disease.
"Thousands of people use the Buffalo every day, and what we're hearing about is less than [a] handful of potential illness that at this point we have not linked to the Buffalo," Haselow said.
The Park Service is discouraging people from swimming near the algae, which has been found in the middle and lower portion of the river.
Tests run on four samples of the water taken July 17 haven't shown toxins at levels that are detectable or exceeding U.S. Environmental Protection Agency thresholds, according to the Park Service release.
Water tests done by the Health Department also did not show excessive E. coli, fecal coliform, turbidity or acidity, Haselow said.
Weeks of mid-90s temperatures and little precipitation have aided algal blooms on the slow-moving river, Haselow said, but no weather conditions or other factors can help predict whether the algae will secrete toxins.
Toxins are "rare, brief and unpredictable," Haselow said. The initial toxin release can be prominent, but toxins break down quickly.
Recent rains may get rid of some of the algae by washing it downstream, Haselow said.
Algae is always present on the river, Hodges said, but it has been worse in the past few years for reasons officials can only speculate about.
Nutrients that cause algae have been increasing in the river for decades, and the past few years could have been a tipping point, Hodges said.
Various agencies -- including the U.S. Geological Survey, the Arkansas Department of Environmental Quality, the Arkansas Game and Fish Commission and the National Park Service -- will begin testing and sampling next week to determine the causes of algae and the sources of nutrients in the water.
The testing will look at species of algae and collect nutrient samples, Hodges said. Researchers will examine the isotopes, which could indicate whether a pollutant came from a ground source, such as nutrients embedded in soil over long periods of time, or a surface source -- a short-term source, such as a spill or a leak of manure or septic systems.
In Mill Creek -- a tributary of the Buffalo River -- the U.S. Geological Survey and the Arkansas Department of Environmental Quality are already researching whether a source is humans, livestock or wild animals.
Visitors to the river have complained in recent years of algae in the middle stretch of the Buffalo, near U.S. 65. On Friday, a Newton County resident presented a slideshow of photos of algae on the river to the Arkansas Pollution Control and Ecology Commission, which is the regulatory and appellate body of the Department of Environmental Quality.
Carol Bitting said dozens of miles of the Buffalo had algae. Bitting said she was concerned the cracks in the area's rough karst terrain meant that pollutants traveled easily throughout the river's watershed.
Haselow said the Health Department has not tested people for illness from algae on the Buffalo since he went to work at the department in 2011, but he's not sure whether this is a first for the department, given that the river has had algae issues previously.
"It's certainly a very rare event," he said.
The news release encouraged people who believe they or their pets have become ill from algae exposure to report it to the Department of Health's communicable disease nurse at (501) 537-8969 during the day or the Emergency Communication Center after hours at 1-800-651-3493. They can also email the National Park Service epidemiology branch chief for the Office of Public Health at publichealthprogram@nps.gov.
Metro on 07/28/2018