A new front in the war over hog waste in the Buffalo River watershed | Arkansas Blog

Wednesday, November 16, 2016

A new front in the war over hog waste in the Buffalo River watershed

Posted By on Wed, Nov 16, 2016 at 10:29 PM

click to enlarge NOT IN MY WATERSHED: Carol Bitting (left) and Lin Wellford outside the ADEQ headquarters on Wednesday. Bitting and Wellford are two of the three petitioners seeking to reversal approval of the permit modification. - BENJAMIN HARDY
  • BENJAMIN HARDY
  • NOT IN MY WATERSHED: Carol Bitting (left) and Lin Wellford outside the ADEQ headquarters on Wednesday. Bitting and Wellford are two of the three petitioners seeking to reversal approval of the permit modification.

A second farm in the Buffalo River watershed is now seeking to serve as a disposal site for potentially millions of gallons of liquid hog waste and has nearly obtained final legal authority to do so, despite a five-year moratorium on new permits on confined animal feeding operations, or CAFOs, in the watershed.

Previously, the fight over animal waste contamination near the Buffalo has mostly concerned C&H Farms, a large-sized factory hog farm that has the capacity to hold about 6,500 animals and generates millions of gallons in waste annually. Environmentalists fear the waste, stored on site in lagoons, will seep into the region's porous geology and pollute the waters of the Buffalo. After an extended political battle, the Pollution Control and Ecology Commission last year approved a moratorium on any new permits for CAFOs in the watershed, though C&H continues to operate.

This summer, a facility near Deer, Ark. called EC Farms found a loophole: Rather than obtain a new permit, it applied for a modification to its existing hog farm permit, which had once allowed it to run a relatively small operation of about 300 animals. EC Farms is currently not operational as a hog farm. However, the modified permit would allow it to "land farm" hog waste originating with another farm — specifically, with C&H. The modification, which was granted by the Arkansas Department of Environmental Quality over the summer, would allow EC Farms to spread over 6 million up to 6.7 million gallons of liquid hog waste on its property annually. ADEQ's decision to grant the permit modification attracted a long list of critical public comments, which can be seen at the end of this document. Three area residents  — Carol Biting, Lin Wellford and Dr. Nancy Haller, who call themselves "The Three Grandmothers" — petitioned for an appeal.

On Wednesday morning at ADEQ headquarters in North Little Rock, PC&E Commission administrative judge Charlie Moulton heard arguments over whether the permit should stand. The room was packed. "I can say unequivocally this is the most well attended motion hearing I’ve ever had," Moulton said.

Attorney Richard Mays represented the petitioners. He told Moulton that the modified permit is "a roundabout way for C&H farms to avoid getting a permit to distribute this waste. The amount of this waste is the critical issue. You’ve got a 6,000 animal operation …[generating] million of gallons of waste." Mays said after the hearing that he believes C&H's own on-site waste storage and disposal capacity is nearing its limit, so it needs to find a place to dump the excess.

Tracy Rothermel, general counsel for the ADEQ director's office, argued that the appeal should be dismissed, citing a number of issues in how the petitioners worded their appeal and saying they failed to lay out their full legal and factual objections. Bill Waddell, an attorney for EC Farms owner Ellis Campbell, agreed.

But Wellford said she and the others didn't realize they needed a lawyer when they first petitioned. (Mays only began representing them later.) She told a reporter that the EC Farms permit modification was "choreographed to get around the moratorium" on new CAFOs in the Buffalo. Wellford also questioned why ADEQ, the state's environmental regulator paid for with public tax dollars, was actively defending EC Farms "and yet the Buffalo River is being allowed to be degraded. ... This resource is supposed to exist as a resource for my grandchildren and your grandchildren."

Waddell, the counsel for EC Farms, told the judge that his client "has tried to comply with the regulations in asking for a permit. He’s not asking for any favoritism, or anything that he’s not entitled to under the law."

Moulton found plenty of fault with the petitioners' complaints. But in the end, he also questioned whether ADEQ had the authority to convert EC Farms' previous permit — which once allowed it to raise hogs — into a new permit that authorized the spreading of large quantities of manure.

"You’re basically converting one type of facility to another … a sow facility to a land farming facility," he said. "[Those are] two different types of permits, isn’t that what happened?"

Rothermel said the permit simply "evolved." It "isn’t really a new permit. ... Aspects were removed from the permit, and then updated aspects were added," she said. However, Moulton pointed out that ADEQ's regulations identify two different types of permits that operate under two different types of regulations. "That’s not my language. That’s the department’s language," he said.

Moulton said he needed both parties to deliver briefs on the issue by Tuesday, Nov. 29. If another hearing is necessary, it will be held Dec. 5 or 6 at 9 a.m., the judge said.*

This date has been corrected since this article's original publication.

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