Arkansas environmental regulators issued Monday their public notice of a draft decision to deny a new operating permit to a large hog farm in the Buffalo River's watershed.
The draft notice -- issued after a judge determined a final decision on C&H Hog Farms had been issued prematurely -- opens a public comment period on the Arkansas Department of Environmental Quality's decision that will end at 4:30 p.m. Oct. 17. A public hearing will be held at department headquarters at 5 p.m. Oct. 9.
The department accepted public comments in 2017 on its draft decision to grant C&H the permit and took several months to go through more than 19,000 comments, respond to them and ultimately issue the final decision that denied it. A judge and the department's appellate body ruled later that the department needed to issue a draft decision to deny the permit.
C&H is operating under an expired Regulation 6 general permit. That regulatory program itself also expired, which prompted the Newton County facility to apply for a Regulation 5 individual permit, which does not expire and is tailored to the facility's operation.
In its statement of basis denying the permit, the Department of Environmental Quality determined that the hog farm's location on rocky, permeable karst terrain necessitated a geologic investigation to determine groundwater flow on the property and manure pond liner construction quality assurance, among other things.
John Bailey, director of environmental and regulatory affairs at the Arkansas Farm Bureau, said other counties have more karst than Newton County, including heavily populated Washington County.
"Are they not allowed to have permits now because of karst?" Bailey said.
In January, the department's statement of basis totaled three pages. The statement issued Monday was three times as long, expanding on the department's initial argument and addressing new information on surrounding water quality.
C&H Hog Farms sits on Big Creek, about 6 miles from where it meets the Buffalo River. It is permitted to house 6,503 hogs.
The department discussed its recent findings that Big Creek and the Buffalo River are both impaired in parts for pathogens or dissolved oxygen. The pathogen tested is E. coli. C&H may be contributing to that impairment, the department wrote in the statement of basis.
The Big Creek Research and Extension Team, formed in 2013 to assess Big Creek and C&H, has found elevated nitrate near the facility, the department wrote. That includes statistically significant increases of nitrate in the ephemeral stream and the house well since 2014. An ephemeral stream is a stream that flows only during and a little after rainfall.
Bailey said Monday that he had not thoroughly studied issues on the ephemeral stream but said that the house well had previously been measured from a cistern instead. That cistern, which received water pumped from the well, also picked up wash from other farm facilities that led to high nitrates, Bailey said. Measurements from the actual well in recent months have not showed elevated nitrate levels, he said.
Bailey also has argued that most of the high-E. coli tests came from upstream of Big Creek. Opponents of C&H have contended, as well, that groundwater can travel in under karst terrain, and contaminated water can originate farther down a stream than where it may later be found.
Opponents of C&H have said they plan to resubmit their comments and more.
"There is a possibility they could change that decision as they have before," attorney Richard Mays said. "Very few people anticipated that they would deny the granting of the permit as they did back in January of this year."
Mays has represented the Buffalo River Watershed Alliance and the Arkansas Canoe Club as intervenors in C&H's appeal of its permit denial.
Both dockets have closed at the Arkansas Pollution Control and Ecology Commission, which denied one and dismissed the other as moot when they ordered the permit denial be a draft decision.
C&H filed notices of appeal in its two cases in Newton County Circuit Court earlier this month. On Sept. 7, the day the notice was filed in the Regulation 5 case, C&H requested that the judge grant a stay of the commission's order pending appeal. It was unclear Monday whether documents filed with the notice of appeal intended to constitute the actual appeal.
Bailey said he was surprised the department went ahead with its draft permit denial without waiting for a judge to decide on the stay. If the stay were granted, he said, what would that mean for any public comments submitted?
A department spokesman said Monday that officials were aware of the appeal but noted that the department was not a party to it.
Mays said his groups would support the department's draft denial of the permit. Comments from the alliance referred to required guidance documents later used by the department to argue in part what the alliance had -- that the permit application was insufficient in its study of its location and providing an emergency action plan.
"I know there's going to be a major effort on the part of C&H and others to overturn it," Mays said. "Everything that happens in it is going to be highly controversial."
Metro on 09/18/2018