Count me among Arkansans wondering when, after almost four months so far, Circuit Judge John Putman will issue his findings in a case involving the controversial C&H Hog Farms at Mount Judea.
Four weeks is understandable. But four months from a judge known as honorable and expedient seems like a long time.
Attorney Richard H. Mays of Heber Springs argued before Putman on behalf of Carol Bitting and two other Jasper-area women on Sept. 6, 2017. They were disputing the modified “land-application” permit our politicized Department of Environmental Quality (cough) decided to issue the nonoperational Ellis Campbell’s EC Farms on June 29, 2016.
The permit allowed C&H, with some 6,500 swine confined in enormous metal buildings near Big Creek, to begin hauling and spreading some of the tons of raw waste it continuously generates on its own spray fields to some 600 acres several miles away on the former EC Farms swine operation.
The fields C&H has utilized since 2013 along or near Big Creek, a major tributary of the Buffalo National River, have been reported at or nearing capacity for levels of phosphorus and other pollutants allowed by regulations. They needed more space to accommodate all their raw waste.
Conveniently enough, being in the same family with C&H owners (The “C” in C&H), Campbell’s acreage was available to accept the overflow after the Department of Environmental Quality’s 2016 decision allowed EC’s original permit for a confined feeding operation to be altered to allow the application of wastes under provisions of so-called Regulation 5.
Bitting and her fellow plaintiffs immediately disagreed. Soon afterward, Mays came to their aid. “Our main argument was that a separate permit was required for a land-disposal permit rather than a modification of the confined animal feeding permit into a land-disposal permit,” Mays said. Administrative Law Judge Charles Moulton agreed with Mays and Bitting in his January 2017 ruling.
“In his recommended decision (Order 9) made to the Pollution Control and Ecology Commission, Moulton ruled on Jan. 5, 2017, the ‘preponderance of evidence’ showed we were correct about requiring a separate permit,” said Mays. “But at the end of that same decision he determined, rather than going through the process to acquire a new permit, [the department] could simply issue a new permit number and EC Farms should pay the fee required for a new permit.”
So despite the convincing evidence Mays presented, Moulton’s order to simply modify the original permit didn’t require the fullest possible public response necessary for a new permit.
Why does this sounds confusingly hog wild to me?
The commissioners immediately upheld Moulton’s order, which allowed C&H to continue hauling and spreading portions of its waste several miles away to EC Farms. In my Ozark Mountain boy’s interpretation, C&H lost the morning pig wrestlin’ contest but wound up tickled pink by winning Best of Show that afternoon.
Is this a great country or what? Everyone gets a little sumptin-sumptin at the trough of justice — every now and then anyway.
But that’s also when Mays continued his legal efforts to try and stop the tons of additional potential pollutants from being applied on EC Farm’s property.
He appealed the Department of Environmental Quality’s action and Moulton’s and the commission’s decisions to Judge Putman’s Circuit Court in Newton County on Feb. 22, 2017. The case finally was heard before a sizable crowd on Sept. 6.
Mays’ argument was the law was violated under Regulation 5, which says a change in the usage of such property does, in fact, legally require a separate permit (as Moulton also determined). As such, a new permit application would include regulatory requirements, a public notice and public comment on all aspects of a new application.
Lacking those oversights could matter a great deal since C&H’s spray fields drain toward Big Creek and seep into a badly fractured karst limestone subsurface into the national river’s watershed. The EC Farms property drains largely into the nearby Little Buffalo River watershed, which also is riddled with karst beneath the surface.
This is where the matter has wallowed since Putman’s Sept. 6 hearing. Those concerned about further spreading tons of raw waste are waiting for the judge to rule whether a separate department-issued permit is indeed legally necessary in this instance.
While my degree is in journalism (where a laptop and I have practiced for decades in the court of public opinion rather than the legal version), I don’t see this as a particularly complicated issue.
Was Moulton correct when he determined the preponderance of evidence indeed confirmed May’s argument? Politics aside, where does the law, itself, apply?
I suspect this is not the kind of politicized and controversial case involving state agencies that Putman is accustomed to hearing high in the Ozarks.
In that regard, he understandably could find himself in an uncomfortable position. After all, the hog-waste-promoting side of this argument has politically influential special-interest support. The judge also may have made a decision in the final days of 2017, just before this is published. Mays, Bitting, et al., can certainly hope.
Meanwhile, tons of untreated C&H hog waste will continue being spread across EC Farms’ fields while (as many of us believe) invariably seeping into the watersheds of the Little Buffalo, as well as the country’s first national river.
In that regard, one might rightly say the C&H folks, thanks to the state’s official “protectors” of our precious environmental quality, enjoyed an early Christmas gift in the karst-riddled Ozark Mountains and anticipate another no-holds-barred new year.
Mike Masterson is a longtime Arkansas journalist. Email him at mmasterson@arkansasonline.com.