Newton Cty Judge Pauses order to permit C & H Hog Farm operation

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| | November 24, 2018

Court order puts Arkansas hog farm's permit application process on hold 
by Emily Walkenhorst 

A circuit judge has paused a state commission's order that had reopened a permit application process for a large-scale hog farm within the Buffalo River watershed.

Newton County Circuit Judge John Putman's order means environmental regulators can't take action on the application for the time being, an attorney for the hog farm said.

C&H Hog Farms, which is permitted to house up to 6,503 hogs on Big Creek, had requested the stay after first petitioning the commission to reopen the permit application. The commission granted the request, but C&H then appealed that decision to Newton County Circuit Court, arguing that the commission did not completely support everything C&H had asked for in the petition.

An attorney for intervening environmental groups called C&H's actions a tactic to delay the process until the Arkansas Legislature or someone else can help the owners keep their farm open. The appeal and a motion from the state to dismiss the appeal are pending in court. A spokesman for the Arkansas Department of Environmental Quality, which had issued a draft decision denying the permit application, said the department was not a party to the case and noted that the public comment period on the draft decision has been extended to 4:30 p.m. Wednesday.

The Arkansas Pollution Control and Ecology Commission ruled Aug. 24 that the Department of Environmental Quality erred in issuing a final decision denying C&H Hog Farms' new operating permit, rather than issuing a preliminary decision. The ruling required environmental regulators to issue a tentative denial of the permit Sept. 17, and the department has been accepting public comments on the proposal before issuing a final decision.

Putman ordered the stay Wednesday, about a month and a half after C&H first requested it. C&H asked for the stay Sept. 6 and appealed the commission's decision because it did not reverse the department's permit denial issued in January.

In February, the commission ordered a stay on the department's denial, allowing C&H to continue operating under its expired permit. On Wednesday, Putman also ordered that stay to continue.  Chuck Nestrud, one of C&H's attorneys, said Putman's decision means the commission's order has "effectively not been issued."  Otherwise, Nestrud said, it doesn't mean much. Stays are common when an issue is in two courts, he said. In this case, the permit was being discussed in circuit court and was subject to a commission order in another legal jurisdiction, he said.  "I don't know that there's any legal significance to what's going on," he said.

Richard Mays, an attorney for intervenors opposed to C&H, said the stay represents another delay in resolving the permit issue. C&H had been the ones to ask the commission to reopen the matter and send the permit back to the department in the first place, he said.
"They got 99 percent of what they wanted," Mays said. The farm's location in rocky karst terrain means it doesn't meet the state's technical requirements for a hog farm site, he said. "It's an unsuitable location for a hog farm, so they're trying their best to obfuscate and delay and hope that somebody will come to their rescue," Mays said.

The order issues two stays: One on the department's January permit denial that would prompt the closure of C&H; and one on the commission's decision to send the permit application back to the department to be reopened under a new draft decision.
In his order, Putman said the Newton County circuit court "obtained jurisdiction over C&H's application" when the farm appealed the commission's decision Sept. 6. 

C&H's attorneys argued in their request for a stay that one was needed "to avoid potential confusion and preserve the status quo of C&H's operating authority pending completion of C & H's appeals to the Court and any other appellate courts to which this matter may be appealed." The C&H farmers are concerned that the department "will not seriously engage in the regular application process," which would include an opportunity for the department to decide whether modifications proposed by the farmers would be adequate before the farmers spend money making the modifications, the stay request reads.

In September, Arkansas Attorney General Leslie Rutledge's office, on behalf of the commission, contended that the commission's review process is complete, ending the stay that the commission had approved in February to allow C&H to keep operating.
Further, the attorney general's office argued, C&H received "the very relief" it had asked for twice. "It is hard to conceive of any rationale for their current request to prevent ADEQ from complying with the law and doing the very thing that the Appellant asserted was required of ADEQ under the law," the attorney general's office wrote. C&H will get a chance to address the merits of the permit denial under the new public comment period, which may raise different issues than the first public comment period on the farm's permit application did, the attorney general's filing reads.

Additionally, the department is not a party to the appeal and can't be bound by the circuit court's judgment, the filing says.
The department denied C&H's permit application in January after first giving it preliminary approval the previous year. Public comments were accepted then under the premise that the department planned to issue the permit. In January, the department changed course and issued a final permit denial, citing a lack of a geological investigation to determine whether the hog farm's site was appropriate and a lack of an emergency action plan.