Arkansas hog farm argues agency erred in decision process

Posted: June 7, 2018 at 4:30 a.m.

Attorneys for a hog farm in the Buffalo River watershed have filed a motion for summary judgment in their appeal of environmental regulators' denial of the farm's new permit application.

If the motion is granted by an administrative law judge and subsequently by the Arkansas Pollution Control and Ecology Commission, it would send C&H Hog Farms' permit application and regulators' decision to deny it out for public notice and comment before it could become final.

C&H's attorneys have previously argued that the Arkansas Department of Environmental Quality should have issued a draft decision to deny the permit, which would have been subject to public notice, public comment and a final decision considering those comments.

"ADEQ was required by law, regulation, and constitutional due process to provide public notice of its proposed decision and provide an opportunity for comment upon its proposed decision prior to issuing a final decision," C&H's attorneys wrote in their Feb. 7 amended request for a hearing on their appeal.

But the administrative law judge overseeing the permit appeal noted in an order Monday that, although he agreed with C&H's argument, he could not issue an order recommending sending the denial back to the department for that public review process because C&H had not filed a motion for summary judgment on that argument.

Arkansas Code Annotated 8-4-203(e)(1)(A) and (B) state that the department should give public notice to any decision to grant or deny a permit and that notice should include comments, commission Administrative Law Judge Charles Moulton noted.

C&H's attorneys filed the motion late Wednesday. The motion also asks that proceedings be stayed pending a decision by the Pollution Control and Ecology Commission, the department's appellate body.

The commission's administrative law judge must make a recommended decision on the motion, and the commission would have to approve it, as early as its July 27 meeting. The appeal is scheduled for trial Aug. 6-8.

Originally, in 2017, the Department of Environmental Quality issued a draft decision to approve C&H's permit application and accepted public comments on that proposal. In January, the department denied the permit.

The department denied C&H Hog Farms an operating permit in part because the operation did not conduct a study on the flow direction of groundwater or develop an emergency action plan, according to the department's responses to public comments on the permit application.

C&H Hog Farms sits on Big Creek, about 6 miles from where the creek drains into the Buffalo National River. The farm is authorized to hold 6,503 pigs and is the only federally classified medium or large hog farm in the area.

Richard Mays, an attorney for an intervenor opposed to the hog farm, said he didn't think recommended decisions to grant or deny the permit would have garnered very different comments from each other. His group, the Buffalo River Watershed Alliance, believes the issue of whether the permit should be approved or rejected was already the subject of the comments.

"We felt that was implicit in the previous notice for issuance of the permit, which many many comments were submitted against that," Mays said. "And we felt the denial of the permit was certainly a possibility that could have occurred as a result of that."

A spokesman for the department said officials could not comment on the case because it was an ongoing legal matter.

In two orders issued Monday, Moulton denied and granted several motions to dismiss arguments in C&H Hog Farms' appeal of its permit rejection and contention that it still has an active permit.

The two orders, one of which must be adopted by the Pollution Control and Ecology Commission, leave three arguments made by C&H still standing in its appeal of the department's denial of its permit.

C&H has filed a permit appeal and a separate claim that it still has an active wastewater discharge permit due in part to state rules and procedural errors made by the department.

Moulton denied C&H's claim that it has an active wastewater discharge permit in one order but allowed C&H's permit appeal to partially continue, partially denying the department's motion to dismiss it in a second order. The second order does not need to be approved by the commission.

Moulton granted the department's motion to dismiss C&H's claim that the department did not have the option to deny the farm a Regulation 6 permit.

C&H's original permit was a Reg. 6 permit, but the farmers applied for a Reg. 5 permit and were denied. The department had ended its Reg. 6 permitting program that covered C&H before the farm's permit expired about six months later on Oct. 31, 2016.

Moulton said no records showed that the department denied C&H a Reg. 6 permit and further noted that the department director has statutory authority to deny a permit anyway.

In the same order, Moulton also ruled that C&H's appeal of its permit denial could proceed because the farmers had provided "sufficient facts and law" in their request for the Arkansas Pollution Control and Ecology Commission to review the permit denial.

That order left C&H's three remaining claims against the department.

As it moves forward with its appeal, C&H can continue to contend that the department's denial of its permit was improper, that the department's response to public comments don't reflect the department's reasons for denying the permit, and that the department should have made their permit denial a draft decision requiring public notice and comment.

In a separate order, Moulton ruled that C&H's Reg. 6 permit expired when the department Director Becky Keogh formally denied C&H's application for new Reg. 5 permit. Moulton denied C&H's claim that its permit was still active, effectively dismissing that case but not the permit appeal.

In that order, Moulton granted intervenors' motion for summary judgment that the permit had indeed expired. The intervenors' are the Buffalo River Watershed Alliance and the Ozark Society, both opponents of C&H.

The Pollution Control and Ecology Commission must approve Moulton's decision at its monthly meeting. The next one is scheduled for June 22.

Metro on 06/07/2018