Arkansas Gov. Asa Hutchinson said Monday that he hopes state lawmakers don't proceed with a bill that would change how concentrated animal feeding operations, namely hog farms, would be permitted.
Given that he expects a state agency realignment soon and a recent letter from the U.S. Environmental Protection Agency notifying the state of a review of the bill, Hutchinson said he wants lawmakers to "postpone" their efforts.
"Right in the middle of a transformation is not the time to be making dramatic rule changes for large-scale animal feeding operations," he said.
The governor's comments came on the same afternoon that the bill's sponsor in the Arkansas House, Rep. Mary Bentley, R-Perryville, filed another amendment to the legislation. Bentley's amendment would make its provisions, if adopted into state law, null and void in the event federal regulators disapprove of it. The amendment also seeks to maintain existing permitting regulations.
The amendment will run Wednesday morning before the bill is considered. That will be at 10 a.m. in the House Agriculture, Forestry and Economic Development Committee meeting.
"I wish the governor had waited just a little bit longer," said Sen. Gary Stubblefield, R-Branch, the bill's Senate sponsor.
Stubblefield said the bill is designed to make it so hog farmers only have to go to one agency when they seek a permit. He also said the response to his bill has blown it out of proportion.
Senate Bill 550 seeks to change the agency ultimately responsible for issuing permits to farms that have liquid animal manure systems -- typically hog farms -- from the Arkansas Department of Environmental Quality to the Arkansas Natural Resources Commission.
The commission would decide whether to permit farms' liquid waste management systems and would issue permits approved by local conservation districts for liquid waste disposal. The commission also could overturn the disapproval of a disposal permit or a disapproval of part of one.
Currently, the commission reviews liquid waste disposal plans, formally called "nutrient management plans," and determines whether they meet the commission's standards. The plans are then submitted as part of farms' operating permit applications to the Department of Environmental Quality.
Stubblefield and the Arkansas Farm Bureau, which pushed for the legislation, say almost nothing else would change as a result of the bill. Opponents argue that what Stubblefield and the Farm Bureau say the bill does isn't actually written into the bill, which makes those assurances less encouraging.
Stubblefield said Monday that he would support an amendment to his bill that specifically kept current regulations regarding liquid animal manure systems and moved them over to the Natural Resources Commission. He said he has never filed such an amendment because he didn't think it was necessary.
Bentley filed an amendment later in the afternoon that states regulations must "at a minimum, maintain the current standards and requirements of Arkansas Pollution Control and Ecology Commission Regulation No. 5 Liquid Animal Waste Systems."
The Pollution Control and Ecology Commission is the Department of Environmental Quality's regulatory and appellate body. The department follows regulations adopted by the Pollution Control and Ecology Commission.
Stubblefield and the Farm Bureau said they would want the regulations to remain intact, and Natural Resources Commission Executive Director Bruce Holland said his agency would recommend adopting the same regulations. That would need to be approved by the commission's board, lawmakers and Hutchinson.
Bentley said Monday evening she wanted to look over the amendment further before commenting on it but said she and others have tried to look into everyone's concerns regarding the bill.
Bentley's amendment also includes language addressing a letter sent last week from the EPA to state environmental regulators that said the federal agency was reviewing the law to make sure it complies with Clean Water Act requirements. EPA Region 6 Administrator Anne Idsal wrote to Department of Environmental Quality Director Becky Keogh that the bill "merits further evaluation to determine its effect" on federal rules and enforcement.
Hutchinson cited the EPA revoking the state's permitting authority in 2013 as an example of the state previously clashing with the agency. The agency reinstated the state's permitting authority after lawmakers overturned Act 954 of 2013, which changed how water flows were calculated.
"I'd also add that this is not the administration of President Obama. This is the administration of President Trump," Hutchinson said. "President Trump's EPA is who sent that letter, so I think the prudent course is let's keep it as it is."
Bentley's amendment reads: "If Region 6 of the United States Environmental Protection Agency determines that the final rules promulgated by the commission to implement this act either supersede or otherwise adversely impact the delegated authority of the Arkansas Department of Environmental Quality to administer the National Pollution Discharge Elimination System permit program ... the rules and this act, after all legal remedies have been unsuccessful by the Attorney General, will be considered void, and the authority to administer "no discharge permits" associated with the generation, storage, handling, and land application of liquid animal litter will revert back to the department."
Conservation groups also are concerned about any impact the bill might have on public transparency and have cited differences in how the commission is set up versus how the department is set up, as well as a law that appears to exempt from public disclosure certain records at the commission but not at the department.
Many have argued the bill would allow applicants to waive the "notification period requirements" surrounding their permit applications, which they said could mean applicants can waive the public notification period.
Representatives with the Arkansas Farm Bureau said "notification period requirements" refers to the requirements that regulators issue permitting decisions within a certain time frame. Current law says applicants can waive the "timeliness requirement," but that language was stripped and replaced with "notification period requirements," Farm Bureau officials say, because the Bureau of Legislative Research recommended it.
Those statements have not stopped conservation groups concerned that "notification period requirements" could be interpreted in a different way, stripping public notice from the permitting process.
Bentley's amendment, which must be approved by the House committee, would change the language back to "timeliness."
Hutchinson said Monday that he had received more than 200 communications opposing the bill. He said he hadn't been approached by anyone who had expressed concerns for public transparency.
But opponents of the bill say that a current state law, Arkansas Code Annotated 15-20-1006, may mean that if the legislation is adopted into state law, farms' nutrient management plans may no longer be available to public inspection.
The law states: "Any records collected by the Arkansas Natural Resources Commission in furtherance of this subchapter that contain information about a specific nutrient management plan or specific nutrient application shall not be made public record."
Hutchinson said he would have to look over that carefully but that such a law "perhaps" reaffirms his opposition to Senate Bill 550.
The law is not included in the Arkansas Freedom of Information Act state code, which outlines the records that are exempt from public inspection. The act states in its definition of "public records" that "all records maintained in public office or by public employees within the scope of their employment shall be presumed to be public records." The law then lists 23 exemptions, which must be changed by legislation.
The law removing nutrient management plan information was passed in 2003, as Act 1059, to amend state natural resources and economic development statutes. The subchapter amended concerns the certification of people who review nutrient management plans.
One conservation group contacted by the Arkansas Democrat-Gazette said the law has been used to deny public records requests for information in nutrient management plans, and forwarded a copy of a public records request rejection by the commission in 2013 for information related to C&H Hog Farms.
Stubblefield said Monday that he thinks nutrient management plans should be available for public inspection at the commission if they are available at the department.
"I think this ought to be available to the public, no question," Stubblefield said. "That's only right."
Gordon Watkins, president of the Buffalo River Watershed Alliance founded in opposition to C&H's operation within the river's watershed, said he thought that perhaps applications for nutrient management plan certification may be available under the law, but approved ones would not be.
Richard Mays, an environmental attorney who has represented the alliance, said the law's existence provides an argument against the plans' release.
Mays said the 2003 bill likely didn't attract much attention at the time and that exempting records from public disclosure by passing laws outside of the Freedom of Information Act statute was a "sneaky way to do it."
"It just shows you how some people who draft these statutes who pass them are not concerned about the public's right to know what is going on," Mays said.
Since the bill's filing, conservation groups, utilities and former state environmental regulators have issued statements opposing the bill.
On Friday, nine former Pollution Control and Ecology Commission members released a statement, citing the potential for unintended consequences, among other concerns.
The Beaver Water District and Central Arkansas Water have expressed concern for the potential for weaker regulations to expose drinking water sources to excess algae-causing phosphorus.
A spokesman for Entergy Arkansas said Monday in an email that the utility also opposes the bill. As written, the email said, the bill "proposes to alter the permitting and regulation of hog farms in a way that appears inconsistent with the provisions of the federal Clean Water Act and will potentially result in the EPA taking control of Clean Water Act regulations that are currently handled locally by the Arkansas Department of Environmental Quality."
The utility has several wastewater permits issued by the department through its state-delegated authority from the EPA.
Other concerns raised about the bill include a less accessible complaint process before the commission; a lack of a third-party rule-making process at the commission; a history of pollution related to excess poultry waste in the Illinois River watershed; and fear that C&H Hog Farms could apply for another permit from the commission and remain open in spite of an order to close by the Department of Environmental Quality.
Supporters of the bill have said C&H, which is located near the Buffalo National River, must continue its current permit application, which they say would remain under the department's purview until litigation regarding it is resolved.
A Section on 03/26/2019
Print Headline: Arkansas governor calls for postponing hog-farm bill