An administrative law judge will decide on a motion to dismiss or a motion for summary judgment on an appeal of an environmental permit modification that would allow a farmer to spread up to 6.7 million gallons of hog manure on his property in the Buffalo River watershed.
At the hearing on the motions Wednesday, about 50 people watched quietly in what Arkansas Pollution Control and Ecology Commission Administrative Law Judge Charles Moulton called the "most well-attended motion hearing I've ever held" in his more than 30 years of experience.
The hearing touched on a contentious issue in recent years for people who support the Buffalo National River: the balance between large animal agriculture and protection of the river, or whether a balance can be achieved at all.
The farmer in question Wednesday was Ellis Campbell, a cousin of Richard and Phillip Campbell of C&H Hog Farms in Mount Judea. Ellis Campbell, owner of EC Farms, applied to have his environmental permit modified to allow him to apply hog manure that comes from his cousins' farm onto his land. C&H has been accused of posing a pollution risk to the river because of its federally classified "large" size, although state-funded researchers are still monitoring the farm to see if it has polluted at all, and have so far released no definite finding.
At the hearing, Bill Waddell, attorney for Campbell, and Tracy Rothermel and Basil Hicks of the Arkansas Department of Environmental Quality asked Moulton to dismiss the appeal by three Arkansans of a permit modification issued to Campbell by the department that allows him to spread hog manure on his land. They argued the permit had been approved according to regulations and that the petitions of appeal did not clearly state their factual basis for objecting to the permit's modifications or properly reference public comments. Without clearer objections, Waddell argued, further hearings would be challenging for the appellees.
"If they're going to do something more than they list, then that's clearly off limits because we can't guess as to what we're going to be defending here," Waddell said.
Richard Mays, attorney for the three women who appealed the permit modifications, argued that the modifications allowing for manure application were "tantamount" to adding another hog farm in the watershed, which would be prohibited under a 5-year moratorium on medium or large hog farms in the watershed.
"It's a way of getting around the regulation, that's what it is," Mays said.
In a hearing that lasted more than two hours, Moulton told Mays that he wasn't sure that concern or other concerns Mays mentioned had been specifically outlined in the petitions as required by law. But Moulton said one of Mays' clients, Carol Bitting, made a legitimate case that Campbell should have applied for a new permit instead of seeking a modification to his existing permit, which was for the operation of a small hog farm.
Regulation 5, section 5.601 of the Arkansas Pollution Control and Ecology Commission's environmental regulations states that a "separate permit may be issued for a land application site if the operator submits an application" meeting certain criteria. Moulton said the Regulation 5, titled "Liquid Animal Waste Management Systems," appears to offer two different permits under its umbrella: one for a hog farm and another for land application. Land application refers to the applying of substances such as manure to the ground.
Campbell's active permit at the time he requested to have it modified allowed for him to have 300 sows on his property and to apply their manure on his land. But Moulton wondered if Regulation 5, section 5.601 required him to submit a new application if he was no longer operating a farm and was only accepting waste from his cousin's operation in another part of the county.
Rothermel argued that a new permit wasn't required because hog manure was already allowed under the previous version of the permit.
"It's not being permitted for anything new," she said.
Further, Waddell argued, Regulation 5, section 5.601 uses the word "may" rather than "shall," meaning a separate permit wouldn't be required.
Bitting argued in her public comment on the modification that "a separate permit must be obtained for waste application only." Bitting then referenced Regulation 5, section 5.601 in her appeal.
Moulton asked the parties' attorneys to submit briefs by Nov. 29 on whether EC Farms should have applied for a new permit. Moulton said he would try to rule on other aspects of the parties' motions before then.
Ellis Campbell first received a permit for a small hog farm and the application of those hogs' manure on his land in Newton County in 1998, according to Department of Environmental Quality records.
In 2013, he ceased operations at what was then called C&C Hog Barn, but his permit was still active and paid for and had not expired. In 2015, he applied to modify the permit to allow for the application of C&H Farms' hog manure.
This summer, Bitting, Nancy Haller, Lin Wellford and the National Park Service appealed the approval of the permit modification. Bitting and Haller live in Newton County, and Wellford lives in Carroll County. The National Park Service eventually requested to withdraw from its appeal after being unable to obtain legal counsel, according to an Aug. 30 filing.
Metro on 11/17/2016