Hog farm's appeal claims agency's process lax

Arkansas environmental officials did not sufficiently inform C&H Hog Farms' owners or the public about its permitting process or decision-making about the farm, the farmers' attorney argued in a court hearing Monday.

But the state didn't have to do what C&H says it should have, the officials' attorneys contend.

The Arkansas Pollution Control and Ecology Commission's administrative law judge said he will rule in the coming weeks on motions to dismiss arguments made in C&H Hog Farms' appeal over being denied a new operating permit.

The Arkansas Department of Environmental Quality has filed a motion to dismiss the appeal, and C&H has filed a request for a partial summary judgment finding that it still has an active federal permit and that the department improperly failed to seek public comment on its denial of C&H's permit.

The commission serves as the department's appellate body.

Judge Charles Moulton also asked attorneys for C&H to file a motion to split their claims into two cases, and he said he would rule after that.

The case currently concerns claims made about two regulations that control hog farms: Regulation 5 (state no-discharge permits that all hog farms other than C&H are covered under) and Regulation 6 (the state's program for issuing federal discharge permits). "Discharge" refers to whether waste is allowed to leave the property, not including being applied to land as fertilizer elsewhere.

C&H, in Mount Judea on Big Creek, a Buffalo River tributary, had a Reg. 6 general permit, a type of permit the department no longer issues. That permit expired Oct. 31, 2016. Farm owners applied for a Reg. 5 permit in April 2016, before the department decided to discontinue the other permitting program. The department denied that application in January, and the farmers applied for a Reg. 6 individual permit last month.

At Monday's hearing, C&H attorney Chuck Nestrud argued that the department should have sent out a public notice of intent to deny C&H's permit before issuing its final denial decision.

Nestrud said the department is required to issue a notice of its draft decision on a permit and wondered if events would have turned out differently if C&H had been given a draft notice of denial and been able supplement its application with what the department said had been lacking.

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.

Department attorney Stacie Wassell said the department issued a draft permit decision to the public before accepting the public comments that eventually changed the department's mind. She said nothing in the department's regulations state that the department needs to issue a second draft permit decision.

Richard Mays, attorney for intervenor Buffalo River Watershed Alliance, agreed with Wassell.

Moulton said case law submitted by Nestrud examining the issue did not appear to mirror the situation discussed Monday.

Nestrud also contended Monday that the department did not tell C&H when it needed to apply for a permit renewal or give notice that it would discontinue the Reg. 6 general permitting program. So C&H's permit is active until the department issues a new permit, he said.

The department notified C&H that it would discontinue the program in an undated letter.

Metro on 05/04/2018

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