SWINE BY THE BUFFALO: Hog feeding operation continues to operate despite permit denial and legal battle drags on. KAT WILSON

C&H Hog Farms has responded to the state’s official denial of a new permit by asking the Newton County Circuit Court to hold the Arkansas Department of Environmental Quality in contempt of court.

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We reported last week on the final decision from the ADEQ, denying C&H the needed permit for disposal of liquid hog waste. The denial was based upon the department’s review of evidence of environmental risk — due to the underlying karst geology, which can allow waste to seep through and contaminate groundwater, as well as the impacts of land-applied waste washing into the nearby Big Creek, a tributary of the Buffalo River, and eventually into the Buffalo itself.

While this denial would technically begin a process that would mandate that C&H cease operations, we noted that the decision was likely to be appealed by C&H — and that C&H would likely continue to operate thanks to a recent reprieve from Newton County Circuit Court. Asked last week about what would come next in the wake of its permit denial, an ADEQ spokesperson emailed, “ADEQ’s final permitting decision is subject to review, therefore ADEQ cannot comment at this time.”

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C&H has not yet filed an appeal to that permitting decision, but it did promptly file a motion in Newton County Circuit Court asking that the department be held in contempt of court for proceeding with the comment period and issuing a final decision while C&H’s previous appeal — which involves a separate order issued by the Arkansas Pollution Control and Ecology Commission — is still ongoing.

Here’s the convoluted backstory: In September, the ADEQ proposed a draft decision to deny the permit. State officials then asked for public comments. C&H went to court and asked for a stay, pending appeal. The case is a convoluted legal thicket involving jurisdictional issues, a previous permit denial, and multiple state agencies — but the gist is that Newton County Circuit Court John Putnam issued a stay order that “allow[ed] C&H to continue to operate its facility is continued until further order of this court” and that appeared to halt the ADEQ from processing the public comments it was receiving.

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On November 20, two days after receiving notice that the ADEQ had issued the final permit denial, C&H filed a new motion in Newton County Circuit Court arguing that the permit decision violated Putnam’s stay order and alleging that the ADEQ should therefore be held in contempt of court:

On November 19, 2018, with knowledge of this Court’s stay order, ADEQ issued its permit decision. …  ADEQ did not have jurisdiction to issue the permit decision, and ADEQ’s conduct was in violation of the Court’s stay order regarding Minute Order No. 18-20. In addition, ADEQ’s permit decision provides for a process to shut down C & H’s operations, contrary to the Court’s stay order. 

A hearing on several motions in the case is scheduled for Dec. 4 at Baxter County Courthouse in Mountain Home. The C&H motion to require ADEQ to show cause why it should not be held in contempt of court isn’t on the agenda yet — although it may be if C&H requests it.

Keep in mind: The Newton County Circuit Court case is an appeal of a separate action taken by the Arkansas Pollution Control and Ecology Commission, not ADEQ. Richard H. Mays, attorney for groups attempting to stop operation of the C&H in the  watershed — who filed to intervene in the Newton County Circuit Court case — explained the legal gymnastics that C&H is attempting with this latest motion:

The unusual aspect of it is that C&H is asking that ADEQ be held in contempt of a court order in a case in which it isn’t a party or to which the Order is not directed. The Arkansas Pollution Control & Ecology Commission is a party, and the Order was directed to it, but the Commission is a separate and distinct legal entity from ADEQ.

The intervenors have previously argued that since ADEQ is not a party at all in C&H’s Newton County Circuit Court appeal of the APCEC’s order, the court did not have jurisdiction to issue a stay against a wholly separate substantive action taken by ADEQ.

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The original permit that C&H was awarded was discontinued altogether by the state, but C&H continued to operate for years on an expired permit. The wheels of justice grind slowly; in the mean time, millions of gallons of liquid hog waste will continue to be disposed of by a tributary of the Buffalo National River.