Thursday, December 1, 2016

Briefs filed in case over hog waste 'land farming' permit in Buffalo watershed

Posted By on Thu, Dec 1, 2016 at 1:01 PM

Briefs were filed earlier this week in a case appealing the Arkansas Department of Environmental Quality's decision to allow a farm in the Buffalo River watershed to spread millions of gallons of pig manure on its property each year.

Charles Moulton, an administrative judge with the Arkansas Pollution Control and Ecology Commission, requested the briefs after a Nov. 16 hearing on the legitimacy of EC Farms' permit, which was approved by ADEQ in July. Update, 2:45 p.m.: There will be an a hearing at ADEQ headquarters in North Little Rock on Monday, Dec. 5 at 9 a.m., at which Moulton will follow up on arguments in the briefs.

EC Farms is owned by Ellis Campbell, a cousin of the owners of C&H Hog Farm, the large concentrated animal feeding operation in Mt. Judea that houses some 6,5000 swine near Big Creek, a Buffalo River tributary. Last year, the Pollution Control and Ecology Commission enacted a five-year moratorium on new large-scale factory hog farms in the Buffalo watershed with the backing of Governor Hutchinson and the legislature. The moratorium didn't effect existing permits, however.

EC Farms already had a permit for a small hog farming operation — around 300 animals — which also allowed it to spread manure on nearby fields, but the facility has not been operational since 2013. This summer, Ellis Campbell applied to modify the farm's permit to allow the "land farming" of up to 6.7 million gallons of hog waste generated by C&H on an annual basis. ADEQ acquiesced.

Three area residents — Carol Bitting, Lin Wellford and Dr. Nancy Haller, who call themselves "The Three Grandmothers" — then petitioned for an appeal of ADEQ's decision. Although Moulton dismissed most of the petitioners' claims on Nov. 16, he did question ADEQ's argument that regulations allow the department to modify an existing permit (for raising hogs) into a different type of permit (for land farming only). An attorney for EC Farms joined ADEQ in arguing that the rules allow such modifications.

At issue is what the commission's "Regulation 5" says regarding permits. Richard Mays, an attorney for the petitioners, argued the following in his brief:
If one thing is clear in 5.102, it is that it provides for a system of dual permits. One is for the issuance of permits for confined animal operations using liquid animal waste management systems; and the other for the issuance of permits for land application sites.
The commission could have easily included in Regulation 5 a provision for the modification of either or both of those permits to convert them to the other type had the Commission believed that was a wise and prudent measure. It did not do so, and ADEQ and EC Farms have not made persuasive arguments that such a provision is either implicitly or explicitly included in the regulation. 
However, ADEQ attorney Tracy Rothermel argued that:
Reg. 5.601 does not create a new type or class of Reg. 5 permits requiring EC Farms to void their current permit and obtain a brand new one. "Separate" does not mean "new" or "different type." "Separate" means independent from the producer's permit. A permit for a concentrated animal operation that allows for the collection, storage and land application of liquid animal waste may be modified to allow only land application pursuant to Reg. 5.305. There is nothing in Reg. 5 that requires a facility to void their current Reg. 5 permit and apply for a brand new Reg. 5 permit instead of simply modifying the current permit.
Here's the brief from Mays, representing the appellants.
Here's ADEQ's brief.
Here's a supplemental brief from EC Farms, backing up ADEQ
And, here's a map created by petitioner Carol Bitting, which she says illustrates the fields which EC Farms proposes to use for land farming. (I can't confirm its accuracy, but I am asking the EC Farms attorney for comment.) Her explanation is below.
The C&C mark is the old hog facility now known as EC Farms. The yellow circles are the fields they propose to spread.

C&H is in brown and its fields are marked with yellow numbers.

If you are not familiar with a topo map, the white areas are fields and the green areas are usually forested. Most fields are near the streams but some are on the slopes and mountain tops.
click to enlarge map.jpg

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