A judge recommended to environmental regulators Tuesday a permit application for a hog farm within the Buffalo River watershed should go back out for public notice and comment after it was denied earlier this year.
The Pollution Control and Ecology Commission must approve or disapprove of Administrative Law Judge Charles Moulton's recommendation on C&H Hog Farms. A vote is scheduled for Aug. 24.
If approved by the commission, the hog farm's permit application would be reopened for public input more than two years after the farmers' first applied for a new operating permit. C&H is currently operating under an expired permit issued under a different, and now-canceled, regulatory program.
Richard Mays, an attorney for some opponents of C&H Hog Farms who intervened in the farm's appeal of its permit denial, said he had "pretty high" optimism that the department would not reverse its permit denial after another public-comment period.
"It certainly doesn't mean by any means that it's going to make a difference in the decision," said Mays, adding that he believes the department would still find the owners' application insufficient.
A spokesman for the department and an attorney for the owners declined to comment.
Agriculture groups have been dismayed by the department's denial of C&H's new operating permit, and some farmers have expressed concern about the department's ability to shut down a farm.
Conservation groups have supported the denial, asserting that land application of hog manure on the rough karst terrain of the river's watershed poses a risk that the river and its tributaries can become more easily polluted.
In his order, Moulton found that the Arkansas Department of Environmental Quality is not prohibited from having multiple public-comment periods on the same permit application.
In addition, the department's reversal from its preliminary approval of C&H's permit to a final decision denying it was akin to a "substantive change to a permit condition that resulted from public comment," which Moulton said was "generally accepted" as an impetus for another comment period.
The farm's attorneys had argued that a different conclusion by the department necessitated a second public notice and comment period.
The first public notice and comment period came after the department gave preliminary approval to C&H's application for a new operating permit.
Based on public comments, the department denied C&H Hog Farms an operating permit because the application did not contain a study on the flow direction of groundwater or an emergency action plan.
C&H Hog Farms operates 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.
The typical hog farm doesn't need to renew its permit or apply for a new one without making major modifications because such operations are permitted under Regulation 5. But C&H is the state's only hog farm permitted under another category, Regulation 6, which is an expired permitting program that issued permits that last only five years before requiring renewal.
Both the hog farm's attorneys and the department's attorneys cited the same statue to make their cases, Ark. Code Ann. 8-4-203(e)(1).
Attorneys for C&H cited subsections (A) and (B) of the statute, which state that the department must provide public notice of its decision to issue or deny a permit and initiate a 30-day public-comment period. The department should have issued public notice after coming to a conclusion other than its preliminary recommendation of permit approval, which is what people commented on, the attorneys argued.
Attorneys for the department cited subsection (C)(i), which states that the department must provide a "final written permitting decision." That's "exactly what" the department did, its attorneys contended.
After reading Moulton's order, Mays said sending the permit back out for public comment may be better in the long run for his clients' case. If the dispute over whether the department followed proper procedure in its decision-making process is resolved now, that issue won't be brought up again if C&H's appeal of its permit denial goes to higher courts, he said.
NW News on 07/11/2018