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Those who appreciate swine factories mislocated in karst-riddled national river watersheds should applaud attorneys for C&H Hog Farms for dotting every legal "i" to keep that facility operating despite an expired permit, allowing it to continue spreading raw swine waste along a major tributary of our already impaired river.

You may recall our state's Department of Environmental Quality (cough) in January denied the factory's request for a new permit under different regulatory requirements after the agency dropped its initial regulatory designation issued in 2012.

No need to squeal, though, since the massive facility with 6,500 swine has continued to function as usual on its lapsed permit while lawyers chip away at that denial.

Ongoing legal maneuvers in my view look like this: After five years the Department of Environmental Quality finally imposed stringent environmental protective requirements in refusing C&H's new application for a Regulation 5 permit, which the department should have insisted upon before ever granting the original Regulation 6 anything-goes general permit in this geologically fragile location.

Meanwhile, knowledgeable folks I know and trust say C&H continues to do everything possible to confuse the legal status and delay. They initially filed the appeal of the permit denial in Newton County Circuit Court. The denial was issued by Administrative Law Judge Charles Moulton's Order No. 1 and the Arkansas Pollution Control and Ecology Commission, which determined coverage of C&H's 2012 Regulation 6 General Permit terminated when the agency chose to deny C&H's Regulation 5 application.

Basically, C&H had argued that denying its Regulation 5 permit didn't matter. The factory was entitled, as a matter of right, to a Regulation 6 permit even though the state had dropped that regulation altogether, citing a non-applicable federal regulation to support their claim. Moulton and the commission weren't buying that. So, of course, C&H appealed. That legal matter remains unresolved.

A month after the commission ruled in the Regulation 6 decision, it was presented with Judge Moulton's recommended decision. That ruling remanded the denial of a Regulation 5 permit to the Department of Environmental Quality because the department failed to issue a notice of intent to deny the application and seek public comment, as C&H argued was required. In other words, insisting upon initial public comment on both the approval and following the denial.

Although factory attorneys got what they wanted, C&H appealed nonetheless because the case was "remanded" instead of being "reversed and remanded." Seems C&H wanted the word "reversed" in the order, without articulating why. The reason, I suspect, is C&H wanted to argue if the decision to deny the permit had also been "reversed," the state could not again deny C&H the permit.

A second matter in the porker appeal marathon remains active. At an Oct. 17 hearing, 14th District Circuit Judge John Putman granted a continued stay pending another hearing on other issues not discussed in the first hearing. It is possible he will find that he doesn't have jurisdiction to hear the appeal for a variety of reasons raised by the commission and others. Should Putman rule in the Department of Environmental Quality's favor, that would eliminate the second case altogether, but leave the first one to be decided.

Still haven't read enough? C&H also filed a Freedom of Information Act case in Newton County against the Department of Environmental Quality for allegedly failing to provide documents pursuant to their FOIA request. At question is whether the agency was justified in telling C&H its request was too broad to be answered.

If nothing else, C&H can stall in the courts long enough for the Legislature to reconvene in January where it might be counted on to somehow bail C&H out of its denied permit.

Still expanding

A nicer aspect for me of living in the Ozarks is nearby Silver Dollar City and Johnny Morris' Wonders of Wildlife National Museum and Aquarium in Springfield, Mo., only 40 minutes up U.S. 65 from the Arkansas border.

As if USA Today hadn't already named this astonishing place the nation's No. 1 new attraction for 2018, the master innovator of all things conservation is adding what promises to be an inspirational exhibit of "Nature's Best Photography." That's thanks to a $15 million donation from FedEx founder Fred Smith in tribute to his late daughter, Windland Smith Rice, a truly accomplished nature photographer.

Windland, who died in 2005, was known for her conservation efforts and skills behind a camera lens when it came to capturing wondrous moments in nature. The exhibit will be moved from the walls of the Smithsonian in Washington, D.C., to Wonders of Wildlife in 2019.

If this addition is anything like Morris has previously achieved from his Bass Pro Shops that began in a small rear section of his father's Brown Derby Liquor Store to his spectacular Top of the Rock golf course and attraction, I expect it too will be completed under his creative and watchful eye.

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Mike Masterson is a longtime Arkansas journalist. Email him at mmasterson@arkansasonline.com.

Editorial on 11/06/2018

Print Headline: MIKE MASTERSON: Stalling for swine

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