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DATELINE TEXAS Hold the Bacon! BY ROBERT BRYCE For nearly two years, residents of the Texas Panhandle have been squirming under the environmental effects of the giant hog farms that have moved into their region. NOW thanks to a November 25 preliminary ruling by Travis County District Court Judge Margaret Cooper the owners of the hog farms c are starting to squirm a little, too. ooper’s ruling in the case \(AC-CORD vs. Texas Natural Resource invalidates some fifty permits issued by the TNRCC to confined animal feeding opCooper’s ruling has sent shock waves through the Texas swine business, recent actions by Oklahoma Governor Frank Keating to reduce the environmental impact of CAFOs in his state could force more pork producers into Texas. Here in Texas, the pork industry has been able to get permits for huge CAFOs without public hearings. One of the biggest and most controversial recipients of those permits is Texas Farm, Inc., a subsidiary of Osakabased Nippon Meat Packers, which is constructing a million-hog-a-year production operation in Ochiltree County \(see “Making Cooper ruled, in essence, that opponents of the Texas Farm operation in Ochiltree County were denied their due process rights by the state’s environmental agency. The judge said that the TNRCC’s decision to issue permits to the hog farms without allowing citizens to contest the permits in a formal hearing, “lacks a reasoned justification” required under the Administrative Procedure Act. The TNRCC will either have to allow citizens to have a hearing on the CAFOs, or the agency will have to come up with some legal rationale to support its decision to keep citizens out of the process. Cooper added that “all authorizations issued pursuant to the rules adopted by the order are invalid.” Thus, Texas Farm and the other CAFOs which have received permits under the rules known as “Subchapter now operating without permits. Members of ACCORD, the citizen group in Ochiltree County which brought the suit against the TNRCC, are indicating that they will ask Cooper to close the massive hog farms until the TNRCC corrects its permitting system. A shutdown of the hog farms could cost Texas Farm huge amounts of money, but some observers believe the county government could shut down the hog farms if it chose to. Ochiltree County Judge Ken Donahue, who says he supports the hog farms, says “there’s not anything to enforce” until Cooper signs a final order on the ACCORD case. Even after that, Donahue believes he won’t have the authority to close the farms. The TNRCC and Texas Farm are both downplaying the significance of Cooper’s ruling. In a prepared statement, TNRCC general counsel Geoff Connor said his agency was “disappointed” the court “found procedural flaws” in the agency’s permitting regimen. “We are reviewing options available to correct this technical deficiency and make the agency preamble explaining these rules acceptable to the court.” Connor said the agency is working to “prevent a disruption of the state’s current authority and regulation of new and existing” CAFOs. Thomas Graham, a spokesman for Texas Farm, said, “The company’s position is, until an order is issued, nothing is finalized.” Sorting out the implications of Cooper’s ruling could take weeks. And if the TNRCC appeals the ruling, months of litigation could follow. While the legal action could temporarily slow the expansion of the hog industry in Texas, Oklahoma’s recent actions are likely to send more big hog producers southward. On December 1, Governor Keating released the findings of a special CAFO task force, which recommended that individual counties be allowed to vote on permits for CAFOs, that CAFOs be required to pay mandatory fees to fund monitoring programs, and that all CAFOs have odor abatement plans. The task force was convened because of citizen complaints about the CAFOs and because the CAFOs have polluted the lakes and streams that provide drinking water for the city of Tulsa. On December 4, Keating took further action, signing an executive order requiring the state’s Department of Agriculture to begin unannounced inspections of CAFOs, to require odor abatement plans, and to review manure storage and disposal practices. In addition, nearly seventy-five different recommendations from the task force will be considered by the Oklahoma Legislature next year. Oklahoma Attorney General Drew Edmondson also ruled that public hearings must be held when nearby landowners can show a likelihood a proposed CAFO will damage their interests. Carla Smalts, a farmer in Keyes, Oklahoma, who is the president of Safe Oklahoma Resource Development, a citizen group which opposes the hog farms, lauded Keating’ s actions and the recommendations by the task force. “I’m very optimistic about them,” said Smalts. “There’s a lot of good stuff in there, especially the county option.” \(Eighteen of the twenty Kansas counties that have held elections, have voted against CAFOs. Texas residents do Of Cooper’s decision, Smalts said the pork industry was initially looked at as a savior for rural communities and that it would provide economic development. “They came in like gangbusters,” she said. “It’s taken a while longer for judges and legislators to see what those of us in rural Oklahoma and rural Texas saw from the beginning.” And now that people are seeing the damage the CAFOs can do, she says people are finally saying, “Wait. We need to slow this train down.” Robert Bryce is a Contributing Editor for the Austin Chronicle. DECEMBER 19, 1997 THE TEXAS OBSERVER 9