Hearing in hog farm case set in Baxter County Circuit Court


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. The Arkansas Times reports a hearing on several motions in the case is scheduled for Dec. 4th in Baxter County.

Last week the ADEQ denied 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.

The Times reports while this denial would technically begin a process mandating C&H cease operations, it noted the decision was likely to be appealed by C&H — and the hog farm 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."

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 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.

C&H to continue to operate its facility...until further order of this court" and that appeared to halt the ADEQ from processing the public comments it was receiving.

On Nov. 20th, two days after receiving notice the ADEQ had issued the final permit denial, C&H filed a new motion in Newton County Circuit Court arguing the permit decision violated Putman's stay order and alleging the ADEQ should therefore be held in contempt of court saying, "On Nov. 19th, with knowledge of this court’s stay order, ADEQ issued its permit decision. ADEQ did not have jurisdiction to issue the permit decision, and the agency'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."

These developments have led to a hearing on several motions in the case being set for Dec. 4th in Baxter County. 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 C&H is attempting with this latest motion saying,
"The unusual aspect of it is C&H is asking 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 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.

The original permit C&H was awarded was discontinued altogether by the state, but C&H continued to operate for years on an expired permit.

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