As we reported earlier today, in response to Act 954 — legislation altering permit requirements for discharging minerals into streams — the federal Environmental Protection Agency is terminating the waiver of its right to review certain water discharge permits. In the short term, that means the EPA will be overseeing water permits involving minerals, with the power to overrule permits issued by ADEQ. According to Arkansas Department of Environmental Quality Teresa Marks, it also might mean that the EPA will eventually federalize all water permits, which would mean heightened regulation in Arkansas. 

Marks said that the letter from the EPA was not a surprise. “We were concerned early on when the bill was first introduced that there were going to be problems that it was in violation of the Clean Water Act,” she said. “It’s opening up a whole new segment of our permit to EPA scrutiny that otherwise wouldn’t be subjected to those. It makes it more difficult to get those permits out.”


Marks said that under state law after Act 954, ADEQ couldn’t issue permits under the old rules, in compliance with federal requirements, even if that’s what the permit applicant wanted. “One of the ultimate results of this could be that they’re going to federalize those permits,” Marks said.  “Which means they will take them over, they will issue them. If they do that, it won’t just be the minerals section of the permit, it will be the entire permit, whether it’s metals, minerals, nutrients…And then they will also take over the enforcement and inspection of the permit. They would be here in Arkansas, boots on the ground, dealing with our industries.”

Marks said this would likely slow down the permit process and added that “when they do enforcement actions, historically, their enforcement actions generally have higher penalties than ours do.” 
Rep. Andy Davis, the sponsor of Act 954, told us earlier today that the waiver termination was “somewhat temporary.” He said that the key was for ADEQ to update their regulations to comply with Act 954, and the EPA would then be able to review those changes. Marks responded: 


I respectfully disagree. When the law came into effect on August 16, the law is in effect. The EPA regulations that we pass are designed to implement the laws. But we consider the law to be effect on the effective date and we will comply with state law. There’s not much that needed to be done. The PC&E commission does not need to change anything to implement these laws. The law is pretty self-implementing . It has very specific mandates that we will be following. But he is correct in that we will be changing Reg. 2 [the relevant regulation]. We will be revising it to incorporate the provisions of act 954. That does go to EPA to their approval. But I don’t know why it would be any different — if they object to the provisions now, I don’t know why they would not object to them when they were incorporated into regulations. 

Emphasis mine. I asked whether Marks thought this letter foreshadowed that the EPA believed that Act 954 violated federal law. “Yes,” she said. 

For now, ADEQ will be sending all water permits relating to minerals to the EPA. “If they do object, we cannot issue them over their objection,” Marks said. “What they will do is federalize them. EPA will become the issuing authority. That is certainly within their discretion to do. Ultimately, they can take our delegated authority [and] program away.”


“It’s a dilemma,” she said. “We have not ever been in this dilemma before. We’ve told EPA that we would follow state law. They’ve been very clear that they feel that state law is violative of federal law. So we’re at a standstill. Until the law changes we will be following the state law, we have no choice. I’m not sure what’s going to happen to be quite honest.” 

I asked whether given the federal response, Act 954 might in practice lead to more stringent regulation. “The result could quite possibly take it to a new regulatory level,” Marks said. “It will remove that regulatory oversight from the state and place it with EPA. That could certainly be the ultimate result.”