The Arkansas Department of Environmental Quality erred in not requiring EC Farms to apply for a separate permit to apply up to 6.7 million gallons of hog manure to land located in the Buffalo National River watershed, an administrative law judge ruled this week.
But the existing permit, which was modified rather than canceled and applied for anew, can stand if the department issues a new tracking number to create a new permit and Ellis Campbell, owner of EC Farms, pays a fee for a new permit.
The new permit would not go out for public notice or comment through the traditional permitting channels, although the modification of the existing permit already went through those channels.
Department of Environmental Quality Administrative Law Judge Charles Moulton's ruling and order will go before the Arkansas Pollution Control and Ecology Commission in February for adoption.
"In essence, he agreed with the arguments that the petitioners made," said Richard Mays, a Heber Springs attorney who represents Carol Bitting, a Marble Falls resident who appealed the department's decision to approve the permit modification for EC Farms. "He found that there were separate permits that were required. The problem that I had with it, and I respectfully disagree, is that he said this could be cured simply by issuing a new tracking number and a new permit number and a payment of a fee."
Mays said opening up a new permitting process that would accept public review would help people who wished to comment to make better comments. He said many people who commented on the modification appeared to be confused as to what portions of the permit were up for modification at the time, voicing their opposition to a hog farm on the property instead of a hog manure site on the property.
Ellis Campbell, owner of EC Farms, said Friday that he had not seen the order and was "not interested in commenting yet." Campbell's attorney Bill Waddell said he could not comment Friday because he had yet to discuss the order with Campbell.
Emails sent to department spokesmen were not returned Friday. The department was closed because of inclement weather.
Bitting did not return an email sent to her Friday.
Campbell applied to have his environmental permit for a hog farm that applied the hogs' manure to the land as fertilizer modified to just a manure application operation. It would allow him to apply up to 6.7 million gallons of waste that comes from Mount Judea's C&H Hog Farms onto his land.
The land hadn't been used for hog farming or manure application since 2013, despite the permit remaining active. The department, which received numerous public comments opposed to the permit changes, approved the changes this summer.
C&H, which is co-owned by two of Campbell's cousins and Jason Henson, has been accused of posing a pollution risk to the Buffalo River because of its federally classified "large" size, although state-funded researchers are still monitoring the farm to see whether it has polluted at all and have so far released no definite finding. Bitting has been a staunch opponent of C&H's operations in the Buffalo National River watershed.
EC Farms would be able to apply about 6.654 million gallons of hog manure, based on the calculated Phosphorus Index in the site management plan, Department of Environmental Quality spokesman Kelly Robinson has said, although that figure does not mean EC Farms will or intends to receive that amount of hog manure.
While C&H is federally classified as "large" and is the only medium or large hog farm in the Buffalo River's watershed, there is no such similar designation for manure application sites, Robinson has said.
In the case brought before Moulton, Bitting, the department and EC Farms argued over whether Ellis Campbell needed a new permit when he asked the department to allow him to apply the manure on his property.
The Pollution Control and Ecology Commission rule cited in the dispute is Regulation 5's section 5.601, which states that a "separate permit may be issued for a land application site if the operator submits an application" meeting certain criteria. Moulton had said previously that 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.
A department permit that allows, among other things, the application of hog manure on land as fertilizer can be modified to apply only hog manure, the department and a landowner argued in filings submitted Nov. 29.
Attorneys for the department said nothing in Regulation 5 required EC Farms to void their current permit and apply for a new one.
But Mays, on behalf of Bitting, argued that a separate permit is required when a permittee plans to operate only a hog manure land application site.
When Campbell applied to modify his permit, the department processed it as a major modification subject to public notice and comment, instead of telling Campbell to apply for a new permit, which Moulton called "troubling" in his decision, issued Thursday.
"The Department's claim that permits issued under the umbrella of a particular regulation are somehow fungible -- that a CAFO Regulation 5 permit and a land-application only Regulation 5 permit are both Regulation 5 permits and are interchangeable and therefore capable of being modified -- could potentially jeopardize the public's participation in the permitting process if those changes were deemed minor modifications by future ADEQ management," Moulton wrote. "The mandate of a separate permit in Reg. 5.601 removes all doubt about the necessity of public notice."
Moulton concluded that both the department and EC Farms followed the Regulation 5 requirements during the application and review process.
The Pollution Control and Ecology Commission will hear Moulton's recommended decision in February, and parties will have the chance to comment again, if they request to do so by the end of January.
If approved, the department would issue a new tracking number for the modified permit -- essentially creating a new permit -- and would charge EC Farms a new permit fee.
Metro on 01/07/2017