Two environmental groups can intervene in a hog farm's appeal of its permit denial, an administrative law judge has ordered.
C&H Hog Farms has appealed the Arkansas Department of Environmental Quality's denial of its operating permit to the Arkansas Pollution Control and Ecology Commission, with a hearing tentatively scheduled for Aug. 6-8.
The commission's administrative law judge, Charles Moulton, ruled Friday that the Ozark Society and the Buffalo River Watershed Alliance, both of which oppose the farm's permit application, could intervene in the appeal, but he declined to rule on the extent to which they can participate.
C&H Hog Farms is owned by Jason Henson, Philip Campbell and Richard Campbell and operates near Mount Judea in Newton County. It's in the Buffalo National River watershed, along Big Creek, about 6 miles from where the creek feeds into the Buffalo River. The farm has a permit to house 6,503 hogs at any given time and includes two storage ponds for hog manure and fields where hog manure is spread as fertilizer.
Opponents of the farm argue that the rocky terrain makes operation of a large hog farm an unsuitable use for the land, and that it poses a risk to the river and groundwater by way of surface runoff and porous rock underground.
C&H owners applied for a new permit to replace their expiring one in 2016, but the department denied the application in January of this year, which would effectively shut down the farm. It is allowed to remain open during the appeal process.
The Department of Environmental Quality denied C&H Hog Farms an operating permit in part because the company 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.
The study and the plan were both recommended by the Agricultural Waste Management Field Handbook, and the department determined they were necessary because of C&H's location in the recreational river's watershed.
C&H asserts in its appeal that the department never asked for the study or plan. Additionally, C&H contends that the department approved the farm's previous permit under nearly identical conditions, meaning that it previously considered the farm in compliance with the handbook under nearly identical conditions.
In a filing Thursday, attorneys for C&H argued that the environmental groups, per regulations, can only make arguments based on the aspects of the permit application that the groups specifically commented on and thus cannot participate in C&H's claims on "procedural issues" in the department's permitting process. The filing asked Moulton to deny the groups' motions to intervene.
C&H has appealed the department's decision based on "procedural issues" and "substantive grounds," the filing reads.
Moulton ruled that the Ozark Society and Buffalo River Watershed Alliance could intervene under Regulation 8.604, which allows "any person who submitted comments during the public comment period" to petition for intervention, according to his order.
But Moulton declined to rule on the extent to which the groups can participate in the appeal because the groups had not had time to respond to C&H's arguments.
Richard Mays, one of the attorneys for the environmental groups, said they have until Monday to file their response to C&H's arguments.
Mays said that because the department didn't deny the permit over "procedural issues," his clients didn't have the opportunity earlier to comment on those issues. Now that C&H is raising those concerns in its appeal, his clients should be allowed to respond.
"They claim they've raised procedural issues," Mays said in an interview Tuesday. "That's a very vague term that doesn't have a fixed meaning."
Mays argued that the department raised substantial issues, not procedural ones.
Messages left for C&H attorney Bill Waddell were not returned Tuesday afternoon.
Metro on 02/14/2018