Member of panel still on C&H case

Recusal because of earlier remarks unnecessary, commission decides

An Arkansas Pollution Control and Ecology Commission member can continue to participate in hearings about C&H Hog Farms’ appeal of its permit denial after writing public comments in support of the farm a year before his appointment to the commission, the commission has decided.

Commissioners approved Mike Freeze’s decision not to recuse from appeal proceedings with no opposition Friday.

Environmental groups that oppose C&H’s operation within the Buffalo River watershed filed a motion suggesting recusal Thursday. The groups — the Ozark Society and the Buffalo River Watershed Alliance and other individuals — are approved intervenors in C&H’s appeal but cannot make motions before the commission, only before a judge.

C&H operates on Big Creek, about 6 miles from where the creek drains into the Buffalo River. It is the only federally classified medium or large hog farm in the area and has become a concern among environmental groups that fear manure from the farm could leak into and pollute the river.

Freeze was appointed to the commission in February by Gov. Asa Hutchinson and has been an active member of the Arkansas Farm Bureau for more than 20 years.

On Feb. 22, 2017, he emailed the Arkansas Department of Environmental Quality to support C&H’s application for a new permit, arguing that it would increase the number of acres accepting manure for fertilizer from the farm, thereby decreasing the amounts spread per acre.

On March 14, 2017, Freeze sent another email declaring,

Commissioner Chris Gardner said bias is inevitable and that the challenge is to set aside the bias and apply the law properly.

“Enough is enough! … I urge ADEQ to use science in issuing the C & H Hog Farm permit and not to allow emotional appeals from various people sway ADEQ from doing what is right.”

Commissioner Chris Gardner said Friday that no “bright line” exists in deciding whether someone must recuse. He said bias is inevitable and that the challenge is to set aside the bias and apply the law properly.

“If they can do that, then there is no basis for recusal,” he said.

Freeze recounted his experience in farming and serving on the Arkansas Game and Fish Commission.

“I think all of those qualities are hopefully why he [Hutchinson] asked me to serve on this commission,” he said, adding that he believes he can compartmentalize his relationships from his appointed task at the commission.

Intervenors contended that recusals are necessitated by appearance of bias and not by actual confirmation of it. They argued that a recusal would avoid future appeals in the case based on a lack of recusal.

“It’s not actual bias, because we can never get into someone’s heart,” said Sam Ledbetter, attorney for the Ozark Society. “It is the appearance.”