Discharge-permit law draws EPA scrutiny
Rules violate water act, state panel told
Saturday, September 28, 2013
The state Pollution Control and Ecology Commission on Friday asked the Department of Environmental Quality to share with state legislators correspondence from federal regulators over mineral-discharge permits.
The request was made after the department warned that the Environmental Protection Agency might “federalize” 14 mineral-discharge permits issued by the state. Federal officials say a new Arkansas environmental law conflicts with the CleanWater Act.
Department Director Teresa Marks said federal officials are prepared to intervene in February if Arkansas officials do nothing. The permits are required before businesses and municipalities can discharge pollutants into the state’s waterways.
“It’s very much a conundrum for us, too, because even if we wanted to issue these permits the way they would be acceptable under federal law, we can’t because we’re prohibited under state law,” Marks said.
Act 954, which was approved by the Legislature earlier this year, removes the default drinking-water designation for Arkansas waterways and alters how the department monitors mineral discharges. Those changes, the department and EPA have said, put the state’s monitoring out of compliance with the federal Clean Water Act.
Critics of the new law have said it could endanger drinking-water sources by allowing an increase in minerals, including chlorides and sulfates, in state waterways.
Marks said the department has no discretion on whether to follow the law without action by the Legislature.
Charles Moulton, the pollution commission’s administrative law judge, reminded the commission that no action could be taken by the Legislature when it is not in session. The Legislature could take up the issue during a special session or the forthcoming fiscal session, but Moulton said that was unlikely.
If the EPA decides to “federalize” the mineral-discharge permits, federal regulators could do the same with 10-15 permits a year as they come up for renewal. But if the EPA changes stream designations, it could require all permits to be reviewed, said Ryan Benefield, the department’s deputy director.
Commissioner Bill Thompson of Cabot said he wanted to be sure that legislators were aware of the EPA’s findings and “the position the commission is in.” He said he felt litigation was inevitable.
“I don’t want to offend anyone; I don’t want to make them mad. I just want them to be aware of [the findings],” Thompson said.
Several commission members said representatives in the industry would prefer continued state control of the permits instead of having the process turned over to federal regulators.
“I’m sure when it finally hits these permittees that they’re going under federal, instead of state [regulation] … then they’re going to be unhappy,” Thompson said.
Northwest Arkansas, Pages 9 on 09/28/2013