State environmental regulators did not need to issue a proposed decision to deny a new operating permit to a hog farm in the Buffalo River watershed, the regulators argued in a case filing posted Wednesday on the hog farm's appeal of the permit denial.
While the Arkansas Department of Environmental Quality must by law issue public notice of a proposed decision to grant or deny a permit application, the department provides its final decision after the public notice and comment period are over, the department argued.
That means the department didn't need to issue a public notice that officials had changed their minds and determined that C&H Hog Farms should not be granted a new operating permit, the department said in its filing.
C&H Hog Farms said in a motion last month for summary judgment in its favor that the department should have given public notice of its decision to deny the permit because it was different from its original proposed decision to grant the permit. C&H's attorneys cited Ark. Code Ann. 8-4-203(e)(1)(A) and (B).
Intervenors in the case asked that the motion be denied. The Ozark Society, one of two intervening groups, stated that it adopted and supported the department's argument as its own response to C&H's motion. Both intervening groups oppose C&H's operation in the Buffalo River's watershed.
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.
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.
"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.
The case is before the Arkansas Pollution Control and Ecology Commission, which is the department's appellate and rule-making body. The commission's administrative law judge issues orders and recommends decisions that must be approved by the commission's full 13-member body. The commission publishes the filings on its website, usually a day after they are filed.
Commission Administrative Law Judge Charles Moulton had stated in an order before that motion that he believed C&H's interpretation of the law was correct. But Moulton did not order the permit to go back out for public comment because C&H's attorneys had not made a motion for summary judgment.
In their response filed Tuesday, department attorneys cited Subsection (C)(i) of Ark. Code Ann. 8-4-203(e)(1), which states: "At the conclusion of the public comment period, the department shall provide a final written permitting decision regarding the permit application."
The department described C&H's omission of the subsection from its argument as contrary to "principles of statutory interpretation."
"After proposing a draft permit, it [the department] published notice, and it received voluminous public comment on the proposed draft ... ADEQ asserts that subsections (A) and (B) must be read together with subsection (C), which provides that at the end of the comment period, ADEQ shall provide a final permitting decision. Again, this is exactly what ADEQ did," the department's filing reads.
The Buffalo River Watershed Alliance, the Arkansas Canoe Club, Gordon Watkins and Marti Oleson -- who all file together as the "BRWA/ACC Intervenors" -- argued in their filing that C&H's request was unnecessary. They further asked that any remand of the permitting decision back to the department should not vacate or change the department's proposed decision to deny the permit.
Metro on 06/28/2018