Democrat Gazette
This article was published today at 3:02 a.m.
By Emily Walkenhorst
The federal agencies ordered by a judge to redo environmental assessments of C&H Hog Farms in Mount Judea had their subsequent appeal of the decision dismissed Friday.
The U.S. Department of Justice filed a motion on behalf of the U.S. Department of Agriculture, U.S. Small Business Administration and the Farm Service Agency in the 8th U.S. Circuit Court of Appeals to dismiss the agencies' appeal filed earlier this year, according to court records.
On Friday, environmental groups called the dismissal a victory.
"This is a truly significant victory, but the fight to remove C & H Hog Farms from the Buffalo River watershed goes on," Dane Schumacher, a Buffalo River Watershed Alliance Board member, said in an Earthjustice news release. Earthjustice represents the environmental groups that filed the original lawsuit against the federal agencies.
The Buffalo River Watershed Alliance, the Arkansas Canoe Club, the National Parks Conservation Association and the Ozark Society sued the agencies in August 2013, arguing that the Small Business Administration and the Farm Service Agency failed to properly consult with other agencies, including the National Park Service, in conducting an environmental assessment of the facility while considering loan guarantees to it.
The environmental assessment carried a "finding of no significant impact."
Attorneys for the defendants had asked that the court not specify how the agencies should conduct their reviews, such as requiring an impact statement.
In October, U.S District Judge D. Price Marshall Jr. ruled that the assessment was "too brief," had "no chain of reasoning" and violated the Endangered Species Act and the National Environmental Policy Act.
An Arkansas Farm Bureau representative said after Marshall's decision that the case wouldn't change what happened to C&H Hog Farms but that it might make it harder for new farms to get loans.
The U.S. Small Business Administration and the Farm Service Agency had agreed to back $3.4 million in private loans made to C&H Hog Farms after the company was found to have insufficient collateral, meaning that the agencies would foot the bill for the company's loans if the company defaulted.
Marshall's order stops any payments from being made until the agencies have finished the new environmental assessment. The agencies had not made any payments on the loans previously.
C&H Hog Farms is on Big Creek, 6 miles from where it meets the Buffalo National River. Environmental activists and others have been concerned about the amount of animal waste generated in what they say is an environmentally sensitive area.
Metro on 04/25/2015
This article was published today at 3:26 a.m. Updated April 24, 2015 at 10:03 p.m.
The Arkansas Pollution Control and Ecology Commission approved a third 180-day ban on new medium or large hog farms in the Buffalo National River watershed with no dissent Friday at the commission's monthly meeting.
Officials also announced at the meeting that a permanent ban proposed by environmental groups -- which inspired the temporary ban -- will now be renegotiated with the governor's office.
Last April, the commission, which is the appellate body of the Arkansas Department of Environmental Quality, passed the first 180-day ban after the Ozark Society and the Arkansas Public Policy Panel petitioned to change state regulations to permanently ban new medium or large hog farms in the watershed. A period of 180 days is the longest the commission can impose such a moratorium.
The groups were responding to an uproar after the Arkansas Department of Environmental Quality approved a permit for the first large hog farm in the watershed -- the large drainage area surrounding the river -- in late 2012 for C&H Hog Farms.
C&H Hog Farms is a Mount Judea facility permitted to house about 2,500 sows and as many as 4,000 piglets at a time. The facility, established in 2013, is on Big Creek, about 6 miles upstream from where it meets the Buffalo National River.
C&H Hog Farms would not be affected by the rule-making petition or the temporary ban, but opponents of the facility fear that it will pollute the river's watershed and eventually the river.
The Buffalo National River is a popular tourist spot, with more than 1 million visitors in 2013 who spent about $46 million collectively, according to National Park Service data.
On Wednesday, Gov. Asa Hutchinson announced that he supported extending the temporary ban for five more years until a University of Arkansas System Division of Agriculture study on whether C&H Hog Farms is polluting the Buffalo River is completed.
After that announcement, the governor's office, the Ozark Society and the Arkansas Public Policy Panel agreed to meet to make changes to the rule-making petition to reflect a five-year ban, although whether the renegotiation would take a permanent ban off the table is unclear.
Hutchinson spokesman J.R. Davis said he believed that the negotiation would be restricted to reflecting a five-year ban.
"Presumably the amendment would be on the timing," Ozark Society President Bob Cross said, adding that nothing is known yet given the preliminary nature of the discussions.
Ross Noland, a McMath Woods firm attorney representing the Ozark Society and Arkansas Public Policy Panel, said he and the groups are appreciative of the governor's support for an extended ban on new medium and large hog farms in the watershed.
Any renegotiated rule making for an extended ban would be sent to the public health and agriculture committees of the Arkansas Legislature. Upon approval by the committees, such rules would return to the Pollution Control and Ecology Commission for a final vote.
Before discussion on the temporary ban and rule making Friday, the commission heard public comments from seven people, all of whom supported passage of the 180-day ban.
Most expressed their dismay with C&H Hog Farms, noting the smell, the potential for pollution and existing pollution in the river as they argued that the facility is not following the conditions of its permit by applying waste where it's not allowed.
"This is probably the most inspected facility in Arkansas in the last few years," Environmental Quality Department Deputy Director Ryan Benefield told the commission. "We haven't found them in violation of their permit.
"There are a couple of fields where the line on the map says there's a small area where they can't apply, and they have not applied to those areas," he added.
Others noted the economic impact of the river and argued that more needs to be done to protect it.
"I really encourage the department to look at the whole watershed and try to balance use and protection," said Chuck Bitting of Marble Falls, who works for the National Park Service at the Buffalo National River.
No one spoke against the ban, but some agriculture advocates have called the move overkill, given major hog farm operator Cargill's self-imposed moratorium on new hog farms in the watershed.
It's been five months since the Ozark Society and the Arkansas Public Policy Panel had a hearing on the rule-making effort before the public health and agriculture committees of the Legislature. At that December hearing, the committees declined to vote on the matter, as members slowly trickled out during the hours of questioning, leaving the committees without a quorum.
The groups were originally scheduled to have a hearing before only the public health committee in September, but the committees declined to vote and instead requested that the agriculture committee be included in the discussion of the new rule. Another meeting has not been scheduled.
New Commissioner Wesley Stites, chairman of the University of Arkansas at Fayetteville's chemistry and biochemistry department, asked the commission's administrative law judge, Charles Moulton, about how many extensions the temporary ban could have.
"Is there a reasonable expectation that the rule could be made before 180 days expires?" he asked about the process to implement an extended ban.
"I hope so," Moulton said.
"We hope so," Becky Keogh said in her first commission meeting as director of the Environmental Quality Department. "It's better than continuing hearings for moratoriums."
NORTH LITTLE ROCK — The Arkansas Pollution Control and Ecology Commission voted Friday to approve a third 180-day moratorium on issuing hog farm permits in the Buffalo River watershed.
A motion to approve the moratorium carried in a voice vote with no “no” votes heard. The action came two days after Gov. Asa Hutchinson issued a statement expressing support for a new moratorium.
The previous moratorium expired earlier this week. Hutchinson said Wednesday that putting another 180-day hold on permits would allow time for the rulemaking process to be completed.
The Arkansas Public Policy Panel and the Ozark Society are pursuing a change to Arkansas Department of Environmental Quality rules that would permanently ban permits for medium and large hog farms in the watershed.
Hutchinson also said Wednesday he favors a five-year sunset on the rulemaking, to allow time for the University of Arkansas to complete a study to determine what impact C&H Hog Farms in Mount Judea has had on the watershed.
A permanent ban would not affect C&H but would bar other similarly sized hog farms from being established in the watershed.
Several people spoke in support of the moratorium during Friday’s commission meeting at ADEQ’s North Little Rock headquarters. No one spoke in opposition.
“Over the last 19 days, living 8 miles away, I have smelled C&H Hog Farms at my home,” said Carol Betting. “I live on the Little Buffalo. I live below that emergent layer that traps the odor in the valley. It’s not pleasant.”
Betting said that if she can smell the hog farm from where she lives, “you can’t even imagine what it feels like for those people in Mount Judea.”
Lin Wellford of Green Forest told the commission, “I’ve got grandkids, and I hope to have great-grandkids, and I hope someday they’ll get to enjoy the rivers that I got to enjoy. So that’s why I’m here — I’m standing up for the next generation.”
Commissioner Joseph Bates asked whether ADEQ’s staff had noticed odors in the area.
ADEQ Deputy Director Ryan Benefield answered, “Odor is a tough thing for the department to regulate, because each of us, if we went out there, would have a different odor threshold. But we haven’t found an unacceptable odor in many responses to complaints.”
Posted: Friday, April 24, 2015 4:30 pm |
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LITTLE ROCK — The U.S. Department of Justice has decided to drop its challenge of a federal court ruling that enjoined more than $3 million in loan guarantees to an industrial hog farm in the Buffalo National River Watershed in the Arkansas Ozarks, a press release said.
On Dec. 2, 2014, U.S. District Judge for the Eastern District of Arkansas D. Price Marshall ruled that the guarantees by the Farm Service Agency and Small Business Administration were issued without an adequate environmental assessment and violated both the Endangered Species Act and the National Environmental Policy Act.
On Friday, the federal 8th Circuit Court of Appeals in Arkansas today granted a motion filed by the Department of Justice to withdraw and voluntarily dismiss the department’s appeal of the judgment.
The loan guarantees were made to C&H Hog Farms in Mt. Judea. Now the two federal agencies must go back and conduct new assessments within one year.
“This outcome sends a strong message that federal agencies that are subsidizing and supporting industrial-sized concentrated animal feeding operations through loans and guarantees will have to follow NEPA and the ESA in the future,” said Earthjustice attorney Marianne Engelman Lado, who represents a coalition of the Buffalo River Watershed Alliance, Arkansas Canoe Club, National Parks Conservation Association and the Ozark Society.
“This is a truly significant victory, but the fight to remove C&H Hog Farms from the Buffalo River watershed goes on,” said Dane Schumacher, Buffalo River Watershed Alliance Board member. “We continue to monitor signs for bacterial content that filters into Big Creek and ultimately the Buffalo National River. Much damage could be done if C&H continues to operate in the watershed, and we intend to keep up the pressure to ensure that this ill-placed industrial hog facility never has the chance to foul Arkansas’ crown jewel and America’s first national river.”
4/24/2015 8:00 PM By Associated Press
LITTLE ROCK, Ark. (AP) — Federal agencies will have a year to do a new environmental assessment of a hog farm near the Buffalo National River after a federal appeals court's ruling Friday.
The 8th U.S. Circuit Court of Appeals granted the Department of Justice's motion to withdraw its appeal of a December ruling that said the agencies did not properly assess C&H Hog Farm before guaranteeing $3.4 million in private loans.
The move follows a lawsuit brought by the Buffalo River Watershed Alliance, Arkansas Canoe Club, National Parks Conservation Association and the Ozark Society. They alleged that several federal agencies guaranteed the loans without conducting a sufficient environmental assessment.
"We feel this is a significant victory," said Dane Schumacher, a board member with the Buffalo River Watershed Alliance. "In order to guarantee these loans, there are things these agencies should have done. They should have had a consultation with Fish and Wildlife, which they didn't. They should have given notice to the public, and that wasn't done."
In the December ruling, U.S. District Judge D. Price Marshall Jr. said the Farm Service Agency and the U.S. Small Business Administration violated the National Environmental Policy Act and the Endangered Species Act in guaranteeing Farm Credit Services of Western Arkansas' loans to the C&H Hog Farm.
Under that ruling, the federal agencies have a year to complete appropriate environmental assessments of the operation.
Also Friday, the Arkansas Pollution Control and Ecology Commission reinstated a temporary ban on new permits for large and medium hog farms near the Buffalo National River.
The commission's vote renewing the ban for six months comes two days after Arkansas Gov. Asa Hutchinson's statement supporting the ban.
It's the third moratorium placed on the permits to give the Arkansas Legislature time under new rulemaking processes to review whether to allow future hog-feeding facilities in the watershed.
The U.S. Department of Justice has decided to drop its challenge of a federal court ruling that enjoined more than $3 million in loan guarantees to an industrial hog farm in the Buffalo National River Watershed in the Arkansas Ozarks. On December 2, 2014, U.S. District Judge for the Eastern District of Arkansas D. Price Marshall ruled that the guarantees by the Farm Service Agency and Small Business Administration were issued without an adequate environmental assessment and violated both the Endangered Species Act and the National Environmental Policy Act. Today, the federal 8th Circuit Court of Appeals in Arkansas today granted a motion filed by the Department of Justice to withdraw and voluntarily dismiss the department’s appeal of the judgment. The loan guarantees were made to C & H Hog Farms in Mt. Judea, AR. Now the two federal agencies must now go back and conduct new assessments within one year. “This outcome sends a strong message that federal agencies that are subsidizing and supporting industrial-sized concentrated animal feeding operations through loans and guarantees will have to follow NEPA and the ESA in the future,” said Earthjustice attorney Marianne Engelman Lado, who represents a coalition of the Buffalo River Watershed Alliance, Arkansas Canoe Club, National Parks Conservation Association and the Ozark Society. “This is a truly significant victory, but the fight to remove C & H Hog Farms from the Buffalo River watershed goes on,” said Dane Schumacher, Buffalo River Watershed Alliance Board member. “We continue to monitor signs for bacterial content that filters into Big Creek and ultimately the Buffalo National River. Much damage could be done if C & H continues to operate in the watershed, and we intend to keep up the pressure to ensure that this ill-placed industrial hog facility never has the chance to foul Arkansas’ crown jewel and America’s first national river.”
A 180-day moratorium on new concentrated animal feeding operations – or CAFOs – in the Buffalo River Watershed is now in effect, for the third time.
The Arkansas Pollution and Ecology Commission renewed the temporary ban Friday morning.
David Branscum sits in the state House representing the area. Branscum supports the moratorium and the one existing hog farm already along the watershed.
“If you know the family like I do, and I know they are a really good family and they do it right, then I don’t think this one CAFO is going to ever have a damaging effect on the Buffalo River. That being said, I could be wrong. It could over time,” said Branscum.
“But I can promise you this much. With the extensive study that the University of Arkansas is doing if there’s any pollution and it’s going into the river, we will know it.”
Anna Weeks of the Arkansas Public Policy Panel helped initiate the rule-making process. Weeks said the state could be waiting up to four years for the UA study to be complete.
“As far as any developments in the study in the next 180 days those studies are long-term so there wouldn’t be any new results that come out in the next 180 days,” said Weeks.
However, Weeks said the Arkansas Public Policy Panel is optimistic a more-lasting solution is near.
“We are thankful for the Governor’s support of the moratorium and the commission’s decision. We look forward to working with the Governor’s office to move forward with the rule-making process.”
Speaking after an environmental award event in Little Rock on Friday Hutchinson said he supports extending the moratorium period to five years, to allow for more research on the one existing 6,500 capacity swine operation, C&H Hog Farm, in Mt. Judea.
“We need to pass the rule that’s pending the Legislature right now that extends the moratorium, that puts a sunset clause on it, and by then we should have the final completion of the University of Arkansas study,” said Hutchinson.
Opponents of such operations contend the storage of hog waste at industrial swine operations will result in pollution to America’s first National River. The Public Policy Panel is working toward a permanent ban on medium and large scale swine farms in the Buffalo National River Watershed.
The Arkansas Pollution Control and Ecology Commission on Friday will consider a third 180-day ban on new medium and large hog farms in the Buffalo River watershed, two days after the governor issued a statement in support of it.
The commission has approved the ban twice before with little dissent, but Friday's meeting at the Arkansas Department of Environmental Quality headquarters in North Little Rock will be a first for four of the 13 commissioners: Robert Reynolds of El Dorado, Wesley Stites of Fayetteville, David Chris Gardner of Paragould -- all three governor appointments -- and Ricky Chastain, the new designee from the Game and Fish Commission.
Reynolds is president of Shuler Drilling Co., Stites is the chairman of the University of Arkansas at Fayetteville's chemistry and biochemistry department, and Gardner is a lawyer in Jonesboro, all appointed by Gov. Asa Hutchinson.
Nearly one year ago, the commission -- the Arkansas Department of Environmental Quality's appellate body -- approved a moratorium on new hog farms in the watershed as two groups pursued a change to department rules that would permanently ban medium and large hog farms in the watershed.
The rule-making activity is a response to the establishment of C&H Hog Farms in Mount Judea, a large-scale facility permitted to house about 2,500 sows and as many as 4,000 piglets at a time.
The facility, established in 2013, is on Big Creek, about 6 miles upstream from where it meets the Buffalo National River. C&H Hog Farms would not be affected by the rule making or the temporary ban.
Proponents of the permanent ban say it will help keep the river and its watershed clean by limiting the amount of potential pollution from hog waste in the river.
"The purpose of the rule making is to prevent the cumulative impact of multiple hog farms," said Ross Noland, the attorney for the rule-making process from the McMath Woods firm.
Many proponents also point to problems other states have had with catastrophic failures of hog waste holding ponds in extremely severe weather.
Jerry Masters, executive vice president of the Arkansas Pork Producers Association, said the industry has largely self-imposed a moratorium since contention arose about C&H Hog Farms in early 2013. He said the moratorium and permanent ban were "overkill."
He said the Buffalo River can be polluted by other sources and that his organization is consistently educating hog farmers on best management practices and environmental management.
Hutchinson issued a statement Wednesday in support of the 180-day moratorium and continued extension of it until the five-year, University of Arkansas at Fayetteville study on C&H Hog Farms' effect on the watershed is complete in 2018.
"Science and facts will drive our future decisions," Hutchinson said in the statement. "In the meantime, we'll do everything we can to protect the watershed while the facts are collected."
Former Gov. Mike Beebe gave the UA study $340,000 in rainy-day funds to get started, but no funds have been allocated for it since. Researchers anticipate running out of money before the study's five years are up.
Hutchinson spokesman J.R. Davis said Wednesday that the governor was committed to keeping the study funded.
C&H Hog Farms is the first large-scale, swine-concentrated animal-feeding operation to receive a Regulation 6 waste permit from the Arkansas Department of Environmental Quality. It's still the only one, in part because of the moratorium.
The Buffalo National River had more than 1 million visitors in 2013 who spent about $46 million collectively, according to National Park Service data.
The Ozark Society and the Arkansas Public Policy Panel are still pursuing a permanent ban, but it's been five months since the groups have had a hearing on the rule before the public health and agriculture committees of the Arkansas Legislature.
At that hearing, the committees declined to vote on the rule, as members slowly trickled out during the hours of questioning, leaving the committees without a quorum.
The groups were originally scheduled to have a hearing before only the public health committees in September, but the committees declined to vote and instead requested that the agriculture committees be included in the discussion of the new rule. The joint meeting was held in December, and another has not been scheduled.
“I think the public will understand the need to reinstate a 180-day moratorium on issuing permits for medium to large scale animal-feeding operations in the Buffalo River watershed to allow proposed rulemaking process to be completed. In addition, a five-year sunset clause for rulemaking is appropriate and will provide a needed deadline for action. This way, there is time for the University of Arkansas to complete its independent study to determine any impact of current feeding operations on the watershed. “Science and facts will drive our future decisions. In the meantime, we’ll do everything we can to protect the watershed while the facts are collected.”