Legislation has consequences. And these were predicted by environmentalists during the legislative session.
You may remember when Republican Rep. Andy Davis of Little Rock, looking out for industries he works for, passed legislation to alter permit requirements for discharging minerals into streams. The bill effectively removed the presumption that any waterway was a potential source of drinking water and thus needed pollution protection. Environmentalists said the bill would make it easier to pollute waterways. Davis countered that standards were impractical.
Theresa Marks, director of the Department of Environmental Quality, opposed the bill.
The federal Environmental Protection Agency has now reacted, as many expected it would do. The agency’s water protection division in Dallas has written the state to say the EPA is terminating its waiver of a right to review certain water discharge permits in the state because of Act 954, which took effect Aug. 16. The EPA wants all permit applications, draft permits, final permits, fact sheets and other material related to discharging facilities to be sent to the EPA for review. The agency said it looked forward to assuring that Arkansas complies with the Clean Water Act. If the state won’t enforce it properly, the EPA will.
UPDATE: Davis said he hadn’t heard about the letter until we called, and so had just had a chance to quickly read it.
“It looks like they’re not responding so much to Act 954 itself as much as they are the order from the PC&E commission to declare a stay for this permit for Tyson Foods,” he said.
We noted that they mention the law in the letter.
His response: “Well, because the law gives the commission the authority to stay the permit if the new permit is not in accordance with Act 954. That authority is not unusual. There’s a lot of situations where the director or the commission can issue a stay for the permit. That’s not unusual, which brings into question why EPA had an issue with it in this case.”
Davis said that he believed the waiver termination — which presumably means more aggressive regulatory oversight from the EPA— was “somewhat temporary.” The bill required ADEQ to go through a process to update relevant regulations, subject to review by the EPA, Davis said. “If ADEQ will go through the proper process to change the regulations, once they are approved by the EPA, they would no longer have any reason to do this.”
Of course, whether EPA would actually approve the changes in regulations imagined by Act 954 is an open question…for a skeptical take see a letter from Bill Kopsky of the Arkansas Public Policy Panel, which fought the legislation. It notes, too, that the fight is just beginning and a lawsuit remains a possibility.
LETTER FROM BILL KOPSKY OF ARKANSAS PUBLIC POLICY PANEL
Today the EPA removed some of Arkansas’ authority to enact and enforce the Clean Water Act — as we had predicted months ago. I am attaching the letters from the EPA [above] to the Arkansas Department of Environmental Quality as well as a brief explanation from Ross Noland, our attorney working on the issue. Today’s action is a partial step and not the final resolution of the problems with the Arkansas Legislature’s attempt to circumvent the federal Clean Water Act.
As most of you know, our state legislature attempted to weaken water quality standards and permitting requirements in violation of Federal Law in the last legislative session by enacting Act 954. Act 954 purports to remove the drinking water designated use from every water body in the state not currently used as a drinking water source. This would raise the acceptable level of pollutants in water bodies across the state without review.
Our partner coalition Arkansas Citizens First Congress, many of our environmental and conservation allies, and many others such as drinking water districts, etc opposed Act 954 when it was proposed as House Bill 1929 by Rep. Andy Davis (R, Little Rock). We opposed the bill because it guts water quality standards across the state — and we opposed HB1929 because it was in CLEAR violation of the Clean Water Act. We argued that this attempt to weaken federal standards through a state law could provoke the EPA to remove Arkansas’ permission to implement and enforce the Clean Water Act. At the same time we reached out to industry groups pushing this change to try to negotiate a solution to their concerns that would be more targeted, still protect the environment and comply with Federal Law. We were convinced that a solution could be found that would satisfy all parties and be faster than the certain legal challenge to HB1929 but our offer was refused and the Legislature, under intense industry pressure, enacted HB1929 into Act 954.
After Act 954 passed we contracted with Ross Noland of McMath, Woods Law Firm to research the legal basis that could be used to challenge Act 954 and to communicate with both EPA and the Arkansas Department of Environmental Quality about the fatal flaws in Act 954. Several other water related groups joined us in this effort. We requested that EPA review Act 954 and the subsequent actions by ADEQ to implement it, and evidently they took notice.
Today the EPA took the first step, removing the Arkansas Department of Environmental Quality’s ability to issue many water quality permits without first obtaining EPA approval. EPA also denied a permit modification requested by Tyson Foods that would have allowed it to discharge more pollutants from its Waldron facility based on Act 954.
This is not the final word on the matter though, the Department of Environmental Quality and the Arkansas Pollution Control and Ecology Commission are still considering substantial changes that weaken our water quality protections in accordance with Act 954. Additionally, it is still undetermined how EPA will respond to the portions of Act 954 which we believe illegally weaken water quality standards and the drinking water designated use.
We are continuing to advocate against the changes prescribed by Act 954. It should be abandoned as fatally flawed. If not we believe EPA should further remove Arkansas’ authority to permit and enforce water quality issues and we believe Arkansas will find itself trying to defend the indefensible in court. Arkansas can not and should not try to circumvent or weaken the Federal Clean Water Act.
Our thanks to our many partners who believe we should protect Arkansas’ water resources.
From our attorney Ross Noland:
EPA has partially revoked ADEQ’s delegated power to administer the NPDES program.
EPA also specifically rebuked Tyson-Waldron’s ill-advised attempt to stay its permit limits.
I must point out that the water quality standards (and the drinking water designated uses) issue is still outstanding. I will communicate with EPA to determine when we can expect a response to our June letters. If we receive no response by Sept. 11th, we should issue a citizen suit notice.
Similarly, the Act 954 inspired changes to Reg. 6 are due to come before the commission soon. We must still oppose those.