Correction: The Environmental Protection Agency’s Region 6 office is in Dallas. This article misidentified the office’s location.
After a series of losing battles during the 2013 legislative session, Arkansas Department of Environmental Quality staff members have begun the process of trying to bring the state’s wastewater regulations in line with new legislation, while remaining in compliance with federal regulations.
It’s a task Ross Noland, a lawyer with the Arkansas Public Policy Panel, called “impossible” Wednesday. Department Director Teresa Marks said as much herself during a July 26 meeting ofthe Arkansas Pollution Control and Ecology Commission, the regulatory body tasked with implementing changes to the state’s environmental laws.
The department recently released a draft of proposed changes to Regulation 6, which outlines the state’s administration of the National Pollutant Discharge Elimination Act. Over the course of about 30 pages, changes to existing regulatory language and new additions to the law are penned in red ink, bringing the regulation into compliance with Act 954, passed by the Arkansas LegislatureApril 8.
The act removes the default drinking-water designation from Arkansas waterways not already being used as drinking water sources, changes the way stream flows in those waterways are calculated, and will affect the amounts of minerals that can be discharged into streams from municipal wastewater treatment facilities and other sources.
Testifying before a legislative committee in March, Marks warned that aspects of the law - then House Bill 1929 - would conflict withthe Clean Water Act in a number of ways, and that the EPA had already contacted her department with a letter to that effect.
In a Feb. 26 letter addressed to Marks from the EPA’s regional office in Dallas, Water Quality Protection Division Director William Honker outlined 10 concerns related to HB1929, highlighting several problems the state likely will encounter if the legislation is adopted.
“As now written, the draft bill appears to contain language which contradicts statutory and regulatory requirements and precludes public participation,” the letter states in its introduction.
The testimony of Marks, along with representatives of other agencies and public interest groups, did not ultimately affect the bill’s passage. As the state nears the law’s effective date on Friday, the department has released the draft changes to the regulation for public comment.
Katherine Benenati, a department spokesman, said in an email that the department is generally inserting language directly from Act 954 into the existing regulation.
“The department looked at the legislation and rolled the changes that it spelled out into Regulation 6,” Benenati said. “Where we could, we took the language verbatim and plugged it into the Regulation to make the needed changes. The process is one we undertake whenever there’s legislation that necessitates such a change.”
Kate Althoff, treasurer for the Sierra Club’s Central Arkansas Group, said that none of the proposed changes should be adopted.
“None of the red marks are good,” Althoff said. “They all need to go. There is no way to repair that language, other than to remove it.”
Althoff said the Sierra Club’s strategy at this point would likely be to draw out the public comment period as long as possible in hopes that the EPA will step in and interrupt the regulatory process before the changes take effect.
“I think it’s important that we not issue permits that may have to be retroactively addressed,” Althoff said. “There are clear opinions that this is a total violation of the Clean Water Act.”
The formal hearing for the proposed changes is Sept. 23, and the public comment period closes at 4:30 p.m., Oct. 7. At that point, the Environmental Quality Department will review and respond to all submitted comments, Benenati said.
“We don’t have a clear indication on how EPA will act,” Benenati said in an email Wednesday, adding that department staff members expect to send documents that require EPA review to the agency’s Region 6 office in Austin within the next few weeks. “We’re not sure what determination they’ll make.”
In June, Noland mailedletters to both Marks and EPA Region 6 administrator Ross Curry, outlining what he described as “radical departures” from Arkansas clean water regulations, and asked that the EPA initiate a review of the changes proposed in Act 954. Noland said Wednesday that he had not yet received an official reply from the agency.
Altoff said she feared that intervention from the EPA would be too late in coming.
“I fear the result of [Act] 954 is going to open the gateway for clear water degradation, and it may be irreversible and impossible to correct,” Altoff said. “Unfortunately, we’re talking about a federal agency that is overworked and understaffed, so I don’t think we’ll get a response quickly.”
Northwest Arkansas, Pages 11 on 08/15/2013