Threat unchanged
NWAOnline
Lest readers become confused by results coming out of the Arkansas Department of Environmental Quality's (cough) results of the single hole drilled near one of the waste lagoons at C&H Hog Farms in the Buffalo National River watershed, please allow me to remind everyone.
This was but a single hole sunk at a cost to taxpayers of $75,000 specifically to determine if the large plume of suspected waste (detected by an electrical resistivity analysis in 2015) was indeed swine waste that had been leaking into what also appeared to be a fractured area beneath one corner of the lower lagoon.
Like many others, I'm waiting for experts who comprehend the technical jargon in the contractor's findings to determine if the hole was sunk directly into the plume rather than near or above it.
When it comes to ensuring public transparency, I also vastly prefer plain spoken English, as in, "We dug into the questionable plume that started all this and discovered 1. hog waste, 2. wet clay, 3. Skippy's Extra Crunchy Peanut Butter."
Regardless of what the findings of this boring are interpreted to reveal, the potential threat to our sacred Buffalo from the continually spraying of millions of gallons of untreated hog waste onto a limited number of acres close to or adjoining a major tributary of the Buffalo remain more obvious, relevant and significant than ever.
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Mike Masterson's column appears regularly in the Arkansas Democrat-Gazette. Email him at mmasterson@arkansasonline.com.
Editorial on 12/06/2016
Environment notebook
By Emily Walkenhorst
Group wants time with hog-farm data
The Arkansas Department of Environmental Quality should allow the public more time to submit questions regarding the test results on a project to detect whether a hog manure pond is leaking on a farm in Mount Judea, a member of the Buffalo River Watershed Alliance told the Pollution Control and Ecology Commission on Friday.
Brian Thompson told the commission that his group would have to hire outside researchers to go through the data and that the group would need more than a week to be able to ask good questions of the department.
The question-and-answer period ends at noon Friday.
Department Director Becky Keogh told the commission last Friday that the department wanted the period to end Dec. 9 to conduct a more expeditious review of the test results.
The alliance also issued a release lamenting that only one hole was drilled into the ground at C&H Hog Farms in the Buffalo National River watershed during the research process, which involved taking samples at various depths below the farm’s surface. The alliance also expressed continued concerns that C&H poses a pollution risk to the Buffalo River.
State-funded research so far has drawn no conclusions.
The Arkansas Farm Bureau also issued a news release Friday saying its environmental experts had looked at the data and “they say it’s clear the team at C&H Hog Farms is doing the right things and are good stewards of the environment, as well as good neighbors to the Buffalo River watershed.”
Samples taken at C&H were tested for 18 nutrients and minerals, although not every sample was tested for all 18. The results mostly were within the parameters set by the U.S. Geological Survey, except where the Geological Survey did not have comparable data, according to a presentation Thursday by state contractor Harbor Environmental.
Soil leachate samples showed higher concentrations of the nutrients and elements below the ponds but still fit within Geological Survey parameters when applicable. The Geological Survey did not always have comparable data for nitrogen, phosphorus or total organic carbon. No soil samples detected E. coli, and ammonia was found above Geological Survey levels in one of five water samples.
By Mike Masterson
t's taken months for the Arkansas Department of Environmental Quality (cough) to finally announce to the public that the suspicious large plume and suspected fracture cited beneath the corner of a massive hog waste lagoon at C&H Hog Farms apparently contains nothing overly foul.
But as of Thursday evening, no one could even say that for certain because neither the agency nor Harbor Environmental, retained to perform this testing, didn't answer in plain English. Nor did they take questions during their public meeting to release the results.
So much for all that "transparency" the state agency's director, Becky Keogh, promised when announcing in September that the state would contract to bore a single hole into suspected waste leakage beneath a corner of the lower of two lagoons.
Instead of getting simple answers about the specific nature of this plume and the relative location of the single bore hole, the audience got peppered with chemical-ese then promptly ushered off to the agency website with any pesky questions.
Retired engineer Duane Woltjen said describing the test hole's location only in terms of decimal degrees of longitude and latitude rather than Arkansas English amounted to "virtually complete obfuscation."
Many who'd driven hours to finally learn the plume's contents and get answers face-to-face justifiably were upset to get none. Some had serious specific questions about the tax-funded $75,000 study to ask of Harbor's project manager as he delivered a PowerPoint-assisted message. Interestingly, it did reveal suspected signs of fracturing between 28 and 120.5 feet, and a "porous zone" between 100 and 120 feet deep.
Public concerns have run deep over the ecological welfare of our country's first national river ever since the state agency responsible for maintaining environmental quality quickly and quietly permitted the hog factory to raise 6,250 swine about six miles upstream of the Buffalo.
UA Geosciences Professor Emeritus John Van Brahana of Fayetteville has spent two years with other volunteers scientifically testing for harmful effects of the millions of gallons of hog waste continually sprayed across fields in the watershed. He said five people who attended told him they felt "ripped off" because meaningful details of the study "were hidden behind the ongoing manipulation of ADEQ."
"No scientific questions of the presenter were allowed, either during or after the talk," Brahana said. "The promise was made that all questions could be asked from the web page, but most felt this was for appearance only, based on ADEQ's previously documented history of ignoring meaningful environmental queries."
Members of the Buffalo River Watershed Alliance pointed out that the single hole was drilled due to concerns that group and others raised after a Freedom of Information Act request by the alliance uncovered internal emails among members of the UA Division of Agriculture's Big Creek Research and Extension Team.
The alliance cited one email saying, "there was a possibility of a major fracture and movement of waste" near one of two waste lagoons discovered during an electrical resistivity study performed by Dr. Todd Halihan of Oklahoma State University. This bore hole was recommended to confirm the findings.
Alliance president Gordon Watkins left unimpressed after driving hours to attend. "While Harbor apparently intended to leave the impression that there was little or no evidence of contamination, questions from attendees were disallowed and the complete report was unavailable for review, " he said in a news release.
"The information provided by Harbor was not strongly interpretive, and we need to have it reviewed by experts ... . Professional geologists were present who attempted to ask pertinent questions about Harbor's processes," but they weren't allowed.
Watkins said Dr. Joe Nix of Ouachita Baptist University, who performed some data analysis for the study, commented: "When you close the door on questions, that only raises questions. That's not how science is done."
Ah, but it is how politics too often is done, Joe.
Ginny Masullo of the alliance said: "We certainly could just as easily have reviewed the slide presentation online and gotten just as much out of it. Now there will be no opportunity to ask questions directly to the Harbor representative ... . Until we have experts examine all of the Harbor documentation, we currently have more questions than answers."
Alliance member Marti Olesen said, "We strongly suggested to ADEQ at least three holes should have been drilled to achieve the level of credibility that would put the public's mind at ease. ... We urge the governor's office and ADEQ to demonstrate better scientific protocol and share information with the public with the collaboration and transparency that they promised."
Watkins added: "Aside from this less-than-productive presentation, there remains the larger issue of hundreds of acres of karst spreading fields throughout the Buffalo River watershed. Geologists have indicated to us a better than 90 percent chance the CAFO will eventually pollute the Buffalo River."
Editorial on 12/04/2016
NORTH LITTLE ROCK (TALK BUSINESS & POLITICS) — More research will be necessary to determine whether the waste storage ponds at C&H Hog Farms in Newton County have contaminated the groundwater and soil in the Buffalo River watershed.
On Thursday (Dec. 1), Harbor Environmental and Safety of Little Rock presented its report after drilling to see if hog waste-related pollutants are in the soil and groundwater at the hog farm near Mount Judea.
Kelly Robinson, public information officer for Arkansas Department of Environmental Quality, said it was the first time the report was presented to state agencies, including the governor’s office. About 75 people attended the presentation at ADEQ headquarters in North Little Rock, but it was not a question-and-answer session or an opportunity for public comment.
“This was not the venue to talk to the contractor,” Robinson said.
When asked if hog-related contamination was found in the soil and ground water, Robinson said “that’s something that they are going to have to review.”
The Buffalo River watershed is home to more than 300 species of fish, insects, freshwater mussels and aquatic plans, such as the endangered snuffbox mussel, the endangered Gray bat and the endangered Indiana bat. Designated as America’s first national river in 1972, the Buffalo National River travels freely for 135 miles and is one of the few remaining undammed rivers in the lower 48 states. Popular for camping, canoeing and fishing, it attracts more than 1 million visitors a year.
‘TOTALLY UNSATISFACTORY’
Gordon Watkins, president of Buffalo River Watershed Alliance, was surprised the public was not allowed to ask questions. He had multiple questions for Harbor officials; however, he will submit them online when public comments are accepted. He also was not satisfied with Harbor’s presentation.
“It was short and sweet,” Watkins said. “Totally unsatisfactory.”
While Harbor staff “didn’t come out and say there was no evidence of contamination,” that there wasn’t any found “was the gist of it,” he said. “In a way we’re relieved. We don’t want to see contamination.”
But the drilling was not “industry standard,” he added. Harbor should have drilled at multiple sites on the property to test for contamination. Yet, until Watkins and other state agencies have the opportunity to review the full report, the results are unclear.
“We’ll have plenty to say once we read this report,” Watkins said.
ADEQ staff were working to upload the report on its website as of late Thursday afternoon.
The alliance had pushed for the drilling study after receiving 250 pages of documents from the U.S. Geological Survey in January, Watkins said. It previously filed a Freedom of Information Act request. In the documents, an email exchange showed possible waste movement and some reason for concern. In April, the alliance presented this to the Arkansas Pollution Control and Ecology Commission, and it was news to the commission and ADEQ, he said.
In 2015, an electrical resistivity imaging survey by Big Creek Research and Extension Team showed possible leakage from the waste storage ponds and fracturing within the limestone bedrock below the site, according to Harbor’s site investigation work plan. On Aug. 2, Harbor rolled out the C&H drilling project plan.
On Sept. 26, ADEQ announced Harbor had completed field testing. Cascade Drilling drilled to a depth of 120 feet testing for hog waste-related pollutants in the soil and groundwater and filled the hole with cement. Drilling took place between Sept. 21-26, Robinson said. Cost of the study has yet to be determined.
In a Nov. 23 statement, ADEQ director Becky Keogh said she was “pleased that the report has been completed a month ahead of schedule, while conforming to rigorous quality controls and assurances inherit in an independent-scientific review.”
HOG FARM FUTURE
C&H Hog Farms is capable of housing 6,500 swine, and opponents of the farm fear waste runoff will pollute nearby Big Creek, a tributary of the Buffalo River six miles away. As of Oct. 31, the farm’s Reg. 5 permit expired, but the farm can remain in operation while its application for a new permit is being reviewed, Watkins said.
“The department suspended review of C&H Hog Farm’s permit application while the drilling study was being conducted because it was determined this data was necessary when reviewing the permit application,” Robinson said in an email. “As indicated today, the department will review Harbor’s report and issue a determination based on the results. That determination will be considered when review of the draft permit resumes.”
In September, Gov. Asa Hutchinson created the Beautiful Buffalo River Action Committee. The committee recently announced a series of public meetings to receive feedback on the development of a Buffalo River Watershed Management Plan. FTN Associates, a Little Rock-based environmental consulting company, will host the meetings, the first of which will start 9:30 a.m. Dec. 8 at Searcy County Civic Center Gym in Marshall.
Potential pollution from hog farms will be a controversial issue the committee faces. In August 2015, the Pollution Control and Ecology Commission ordered a five-year ban on new permits for large swine factory farms on the watershed. Those affected by the hold on permits includes farms with at least 750 swine weighing over 55 pounds or 3,000 swine weighing less than 55 pounds.
KKUAR Radio
Hog Farm Drilling Study Leaves More Questions Than Answers
http://ualrpublicradio.org/post/hog-farm-drilling-study-presentation-leaves-more-questions-answers#stream/0
A consultant hired by the Arkansas Department of Environmental Quality presented findings at the agency’s headquarters Thursday of subsurface tests made at a controversial swine farm near the Buffalo National River. ADEQ and environmental advocates are still mulling over the study’s details.
A group of some 100 ADEQ officials, concerned citizens and other stakeholders listened to a presentation by Tom Huetter, a geologist and project manager from Harbor Environmental and Safety. The Little Rock-based company was hired by the ADEQ to study underground samples collected from C&H Hog Farms. In operation since 2013, C&H and its 6,000- swine facilities lie near Big Creek near the town of Mount Judea in Newton County. Big Creek is a tributary of the Buffalo National River. For about 20 minutes, Huetter listed off findings using a power point slide show.
The study was to address concerns that contaminants from C&H were seeping into the soil from two waste storage ponds at the site, and spreading into the revered river’s watershed.
Videos posted on the ADEQ’s website show consultants collecting soil samples by drilling a 120 foot borehole at the site. Harbor used these samples for its report, which was made available on the ADEQ's website late Thursday afternoon.
A 2015 electrical resistivity test by a group of University of Arkansas researchers, known as the Big Creek Extension and Research Team, had suggested possible leakage in pathways of limestone bedrock far below the surface. In the presentation, Huetter said most concentrations of sampled minerals and other elements showed up at levels consistent with what is found in surrounding areas.
The Harbor consultants compared some of the samples to those found by the United State Geological Survey in a 2004 soil survey of Newton County. Harbor also tested for E. coli, and found no evidence of it below ground. A couple of audience members volunteered questions during the presentation about the drilling and sampling process, but ADEQ spokeswoman Donnally Davis intervened.
“I’m sorry. This is a presentation. It’s not a public hearing, not a public meeting. Tom is here. He wants to give the report to the public, to ADEQ and the Governor’s office. But for him to do that we can’t keep stopping for questions,” she said.
Davis later directed those with questions to write to the email address drillingstudyquestions@adeq.state.ar.us. Huetter continued to list off findings; at first glance, the study showed little out of the ordinary. Though by presentation’s end many ADEQ officials and other audience members were left guessing as to what Harbor had concluded.
The prohibition on questions during and after the presentation also unnerved Gordon Watkins of the Buffalo River Watershed Alliance. His group has spearheaded efforts to explore the ecological consequences of C&H Hog farms.
“I thought it was a dog and pony show,” he said. “We were led to believe there would be a question and answer period and it’s a little disturbing that they would allow us to ask any questions of Harbor in particular and we have no idea who will be answering questions online.”
Watkins did express some relief that the presentation seemed to indicate relatively little waste appeared to be leaking below ground. But he maintains a skeptical stance.
“There was very little interpretation that was provided today. We have experts that we’ll be depending on to look at this report in detail and see if there’s evidence of leakage or not and I think it’s important to keep in mind this was one single hole that was drilled,” Watkins said.
Additionally, Watkins said the consultant’s presentation “glossed over” mention of a subsurface void encountered at the 25 foot mark of the drilling. Watkins said that even if no evidence turns up that waste from the farm’s ponds is leaking below ground, a bigger concern for him is the three million gallons of swine waste spread on 600 acres of agricultural land along Big Creek on a yearly basis.
After the Harbor presentation, ADEQ Director Becky Keogh answered reporters’ questions. She said it was too early to draw conclusions about the Harbor study.
Keogh also addressed concerns about the prohibition of a question and answer time.
“We felt like answering questions now or putting the consultant in that role to be able to make definitive determinations was not the purpose of today’s presentation. We do want to get back to that point. But I think today it was more about learning for the first time what the data is saying,” she said.
Gov. Asa Hutchinson’s spokesman J.R. Davis, who also attended the presentation, noted ADEQ made an effort to be transparent by releasing Harbor’s findings to the public the same day the agency received them. It’s unclear when or if the ADEQ or the Governor’s office will take action based on the study. The U of A Big Creek Research team is still working on a five-year study of C&H. The Governor’s recently created Beautiful Buffalo River Action Committee is to hold its first meeting in December to discuss ways to improve environmental conditions in the National River’s watershed.
Arkansas Democrat- Gazette
A contractor has turned over to the state the results of its tests to determine whether a hog farm in Mount Judea is leaking manure into the ground, but the Arkansas Department of Environmental Quality said it is not ready to interpret the results, agency officials said Thursday.
Harbor Environmental presented its findings Thursday at the department's North Little Rock headquarters, with project manager Thomas Huetter explaining how the research was conducted and whether the soil and water samples showed normal levels of certain nutrients. Many samples showed normal levels, and some samples taken at neutral sites showed lower levels of some nutrients than samples taken underneath the manure ponds at C&H Hog Farms. The research also detected some fractures in the ground at C&H.
Huetter ended his presentation without drawing a conclusion on the findings, and department officials did not allow any questions.
Department Director Becky Keogh said afterward that the department did not ask Harbor Environmental to draw any conclusions from the results of its tests.
"We wanted to be able to review [the data]," Keogh said.
Thursday's presentation was the first time anyone at the department had seen the results, Keogh said. She said it was too early to say whether anything stood out to her from the presentation.
The department will accept questions from the public until noon Dec. 9, and the department and Harbor will post their answers online, department officials said. The department does not have a timeline for when it will release its conclusion on the research.
Thursday also was the first time Jason Henson, co-owner of C&H, had seen the results. After allowing the department to conduct the testing on his property, Henson said he would like to have seen the research before others.
But, he said, "I'm glad they came out with the results a little early."
He and others will review the research before commenting on the presentation, he said.
Members of the Buffalo River Watershed Alliance had requested the research results through the Arkansas Freedom of Information Act, but they had obtained the results from only one laboratory before Thursday's presentation. Those results were received Wednesday.
Gordon Watkins, president of the alliance, said he was disappointed that the department did not allow questions.
Watkins said the group would enlist the help of hydrogeologists to review and assess the test results.
Even if the research indicates no leaking at manure ponds or only small leaks, he said the alliance would remain concerned about the 3 million gallons of hog manure spread as fertilizer on the hog farms' property in the Buffalo National River's watershed.
"Pond leakage is a concern, but a greater issue is [the 3 million gallons]," Watkins said.
The department hired Harbor Environmental of Little Rock to conduct the drilling at C&H to detect whether one of the manure ponds had been leaking. The drilling project came about after the Buffalo River Watershed Alliance raised concerns about electroresistivity imaging research done at C&H Hog Farms in early 2015, which the group obtained through a Freedom of Information request early this year.
The department paid Harbor Environmental $75,000 for the project, which involved drilling at C&H and taking samples at certain depths to determine what was there. Harbor hired Cascade Drilling of Memphis to do the drilling, while Harbor and independent geologist Tai Hubbard supervised the work.
Drilling samples were sent to Arkansas Analytical, the University of Arkansas Agriculture Division's Soils Testing and Research Laboratory, and the Ouachita Baptist University laboratory directed by Joe Nix.
Nix, who provided his data to the Buffalo River Watershed Alliance on Wednesday, was requested by the alliance to participate in the project.
The testing, conducted Sept. 21-26, involved drilling 120.5 feet into the ground, where researchers took several soil, water and soil leachate samples at different levels and compared the results with samples taken in other parts of Newton County and with U.S. Geological Survey data taken in 2004.
The samples were tested for 18 nutrients and minerals, although not every sample was tested for all 18. The results mostly fit the parameters set by the U.S. Geological Survey except where the Geological Survey did not have comparable data, according to Huetter's presentation. Soil leachate samples showed higher concentrations of the nutrients and elements below the ponds but they still fit Geological Survey parameters when applicable. The Geological Survey did not always have comparable data for nitrogen, phosphorus or total organic carbon. No soil samples detected E. coli, and ammonia was found above Geological Survey levels in one of five water samples.
The drilling samples also gave a picture of the makeup of the ground at C&H. Researchers found what they believed to be mostly clay down to 13.5 feet, limestone and clay from 13.5 feet to 28 feet, and limestone from 28 feet to 120.5 feet. Water loss during drilling suggested fractures in the ground from 25 feet to 38 feet. A drop in neutron counts suggested a porous zone from 100 feet to 120 feet.
Research documents can be found at www.adeq.state.ar.us/water/bbri/c-and-h/drilling.aspx. Questions on the project can be sent to the department by email to drillingstudyquestions@adeq.state.ar.us.
Keogh encouraged people to evaluate the information online, but she cautioned that data should be taken as a whole and not be cherry-picked.
C&H Hog Farms Inc., near Mount Judea in Newton County, sits on Big Creek about 6 miles from where it converges with the Buffalo National River. It is the only federally classified large hog farm in the river's watershed and is permitted to house up to 6,000 piglets and 2,503 sows.
The Buffalo National River had 1.46 million visitors last year, the third-highest total since it became a national river and the highest since a record count of 1.55 million in 2009.
C&H has been accused of posing a pollution risk to the river because of its federally classified "large" size. State-funded researchers separate from Harbor Environmental continue to monitor the farm to see whether it is affecting the river and have so far released no definite finding.
A Section on 12/02/2016
Print Headline: State agency gets hog-farm drilling results
Parties in a case appealing Arkansas Department of Environmental Quality-approved permit changes on a property in the Buffalo River watershed filed briefs this week.
The parties argued over whether Ellis Campbell needed a new permit when he asked the department to allow him to apply on his property up to 6.7 million gallons of hog manure from his cousin's farm.
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, the department and a landowner argued in their respective filings.
"There is nothing in Reg. 5 that requires a facility to void their current Reg. 5 permit and apply for a brand new Reg. 5 permit instead of simply modifying the current permit," attorneys for the department wrote in a brief filed Tuesday.
But Carol Bitting, who appealed a department-approved permit modification that allows a hog manure land application site in the Buffalo River watershed to accept outside waste, argued in a filing that a separate permit is required when a permittee plans to operate only a hog manure land application site.
"It is not for the participants in this proceeding to question the evidence that was before the [Pollution Control and Ecology] Commission when Regulation 5 was written, or to now question the wisdom of the clear wording of the parts of that Regulation relevant to this proceeding that clearly establish two separate permits for two different purposes," Richard Mays, Bitting's attorney, wrote in a filing submitted Tuesday.
The Arkansas Pollution Control and Ecology Commission creates the regulations that the department follows.
The filings argue over a permit that was modified by the department this summer at the request of Campbell, a cousin of Richard and Phillip Campbell of C&H Hog Farms in Mount Judea.
Ellis Campbell, owner of EC Farms, applied to have his environmental permit for a hog farm that applied the hogs' manure to the land as fertilizer modified to just a manure application operation that would allow him to apply up to 6.7 million gallons of waste that comes from C&H onto his land.
The land hadn't been used for hog farming or manure application since 2013, despite the permit remaining active. The department, which received numerous public comments opposed to the permit changes, approved the changes this summer.
C&H has been accused of posing a pollution risk to the Buffalo River because of its federally classified "large" size, although state-funded researchers are still monitoring the farm to see whether it has polluted at all and have so far released no definite finding. Bitting has been a staunch opponent of C&H's operations in the Buffalo River watershed.
A ruling in favor of Bitting would mean Campbell must apply for a new permit. A ruling in favor of Campbell would mean he can move forward with his operation.
After the department approved Campbell's permit change this summer, three women and the National Park Service appealed the decision to the department's administrative law judge, Charles Moulton. The women are Bitting, Nancy Haller and Lin Wellford. Bitting and Haller live in Newton County, and Wellford lives in Carroll County. The National Park Service eventually withdrew after failing to find counsel to represent it.
Moulton held a hearing Nov. 16 on the department's, Campbell's and the women's motions for summary judgment. At the end of the hearing, Moulton asked the parties to file briefs by Wednesday on the single issue of whether Campbell technically needed a new permit for his new venture.
Moulton denied the three women's motion for summary judgment last week and dismissed all other claims lodged by them, leaving only Bitting's claim that Campbell needed a new permit.
The Pollution Control and Ecology Commission rule cited in the 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 said 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.
"The word 'separate' in Reg. 5.601 does not mean a different type or class of permit," department attorney Tracy Rothermel wrote in her filing. Terminating the permit and applying for a new one would be "duplicative and unnecessary when the activities and sites are already permitted," the filing reads.
Further, Rothermel wrote, "Reg. 5.601 states that a 'separate permit may be' obtained for land application sites only, but it does not state that one must be obtained."
Rothermel also noted the department did a similar modification for Tyson Foods in 2004.
Campbell's attorney, Bill Waddell, made a similar argument about the word "may" in his filing. He noted that EC Farms was already permitted to apply hog manure on its land and argued the changes to EC Farms' operations met department requirements for modifications, which are not limited to what is specified in the regulation.
But Mays argued that Regulation 5.102 outlines two types of permits for hog facilities subject to Regulation 5: one for "confined animal operations using liquid animal waste management systems" and one for "land application sites."
That means, Mays wrote, "the most logical reading of Regulation 5 as a whole is that a separate permit is required for land applications sites, and that a permit for a confined animal operation cannot be modified so that it is no longer a CAO permit, but a land application site permit."
Further, Mays argued, the word "may" in Reg. 5.601 doesn't mean the department has discretion over whether to require a separate permit. Mays cited a 1956 Arkansas Supreme Court case, Arkansas State Racing Commission v. Southland Racing Corp., in which the court sided with Southland Racing. In the case, Southland Racing argued that the commission's provision stating that it "may" issue a license when certain requirements were met meant that the commission must issue a license.
Mays cited other cases and argued that it is "well-established law in Arkansas that 'may' may frequently mean 'shall,' depending on the context of the statute or regulation, and the goal to be achieved by them."
Metro on 12/01/2016
KUAF Radio
by Jacqueline Froelich
October 24, 2016
Listen here.
A comprehensive guidebook, titled "The Aquifers of Arkansas" is available at no cost to the public. The manual maps and characterizes all the aquifers around the state. We go to the Kings River in Carroll County, situated on the Ozark Aquifer, to meet the lead author and U.S. Geological Survey water quality scientist Dr. Tim Kresse to discuss the mysteries of underground water.
By Benjamin Hardy
ArkTimes
For over three years now, a fight has raged over C&H Hog Farm, a large concentrated animal feeding operation (CAFO) in Mt. Judea that houses some 6,500 swine near Big Creek, a tributary of the Buffalo National River. Environmentalists have long feared that liquid hog waste — which the farm spreads on its surrounding acreage — would seep into the region's porous geology and find its way into the beloved river. Last August, the Arkansas Pollution Control and Ecology Commission enacted a five-year moratorium on new large-scale factory hog farms in the Buffalo watershed with the backing of Governor Hutchinson and the legislature. The ban did not affect existing permits, such as the one held by C&H.
But a facility near Deer (Newton County) called EC Farms may have found a loophole that will allow it to serve as a disposal site for up to 6.7 million gallons of liquid hog waste annually.
EC Farms is owned by Ellis Campbell, a cousin of C&H owners Richard and Phillip Campbell. Until this year, it held a permit for a relatively small hog-farming operation — about 300 animals — but the farm seems to have been closed since 2013. The permit, however, remained active. This summer, EC Farms applied for a permit modification (rather than a new permit) that would allow it to "land farm" hog waste originating with another facility — specifically, C&H. When the Arkansas Department of Environmental Quality granted the modification in July, the state environmental regulator gave the go-ahead to EC Farms to spread millions of gallons of pig manure on its property each year.
ADEQ's decision to grant the modification attracted critical public comments from defenders of the Buffalo River, and three area residents — Carol Bitting, Lin Wellford and Dr. Nancy Haller, who call themselves "The Three Grandmothers" — petitioned for an appeal. At a Nov. 16 hearing at ADEQ headquarters in North Little Rock, PC&E Commission administrative judge Charlie Moulton heard arguments over whether the permit should stand. The room was packed.
"I can say unequivocally this is the most well-attended motion hearing I've ever had," Moulton said.
Attorney Richard Mays represented the three petitioners. He told Moulton that the modified permit is "a roundabout way for C&H farms to avoid getting a permit to distribute this waste. The amount of this waste is the critical issue. You've got a 6,000-animal operation ... [generating] millions of gallons of waste." After the hearing, Mays said he believed C&H's own on-site waste storage and disposal capacity was nearing its limit and so the farm needed to find a place to dump the excess.
Tracy Rothermel, general counsel for the ADEQ director's office, argued that the appeal should be dismissed, citing problems with how the petitioners worded their appeal and saying they failed to outline their full legal and factual objections. Bill Waddell, an attorney for EC Farms owner Ellis Campbell, agreed with ADEQ.
Lin Wellford said she and the others didn't realize they needed a lawyer when they first petitioned. (Mays only began representing them after the fact.) She told a reporter that the EC Farms permit modification was "choreographed to get around the moratorium" on new CAFOs in the Buffalo watershed. Wellford questioned why ADEQ, the state's environmental regulator, was using taxpayer dollars to defend EC Farms while "the Buffalo River is being allowed to be degraded."
Wellford noted in her appeal that allowing C&H to use other fields for its pig waste will skew the validity of the University of Arkansas's monitoring efforts of pollution on Big Creek. She said the runoff from EC will also impact Shop Creek and the Little Buffalo, adding. "This is seven more miles of this National River being imperiled, all to allow one hog CAFO to operate."
"This [river] is supposed to exist as a resource for my grandchildren and your grandchildren," Wellford said.
Waddell, the counsel for EC Farms, told the judge that his client "has tried to comply with the regulations in asking for a permit. He's not asking for any favoritism."
Moulton found much fault with the petitioners' complaints and agreed with Rothermel. But he also questioned whether ADEQ had the authority to convert EC Farms' hog-farming permit into a new permit.
"You're basically converting one type of facility to another ... a sow facility to a land farming facility," he said. "[Those are] two different types of permits, isn't that what happened?"
Rothermel said the permit simply "evolved." She told Moulton that "it isn't really a new permit. ... Aspects were removed from the permit, and then updated aspects were added." However, Moulton pointed out that ADEQ's regulations identify two different types of permits that operate under two different regulations. "That's not my language. That's the department's language," he said.
Moulton said he needed both parties to deliver briefs on the issue by Tuesday, Nov. 29. If another hearing is necessary, it will be held Dec. 5 or 6 at 9 a.m., the judge said.*
*The print edition of this article mistakenly stated the next hearing date as Nov. 29.