LITTLE ROCK — By a 7-to-5 vote Friday, the Arkansas Pollution Control and Ecology Commission decided not to hear a North Little Rock woman's appeal of a permit granted to a Prairie County drilling waste storage facility.
Commissioners upheld a hearing officer's decision that the woman submitted her appeal too late but have asked the Arkansas Department of Environmental Quality to make clearon materials and Web sites that the commission and the Department of Environmental Quality are separate entities with different addresses.
The woman, Nancy Felts Dunlap, had delivered her appeal materials to the environmental agency's headquarters in North Little Rock and not the commission's offices in downtown Little Rock. Her package reached the commission offices five days after the 30-day deadline for submitting appeals.
Dunlap argued that if she'd been told she was in the wrong place, she would've taken the materials to the right office. Instead, the receptionist at the Department of Environmental Quality accepted the package, date stamped it and mailed it to the commission.
Dunlap opposes the waste facility because it's three miles from the family farm where her mother lives in Lonoke County.
Land farms use large lined ponds to hold water and rocksediment discarded after drilling for natural gas. Dunlap said she was disappointed that her appeal won't be heard.
"I got very close," she said of the vote. "I'm thankful to the commissioners that voted against it. I feel like they understood the dilemma I was in. Regulation 8 does not in any way, shape, or form say where that address is. I think they erred, but I can't afford to take this on to Pulaski County Circuit Court.[With] something as important as that, the location of the commission secretary should be in Regulation 8."
Regulation 8 refers to Arkansas Code Annotated 8-1-203 the law that sets administrative procedures for the commission. Regulation 8 gives an interested party 30 days in which to file a request for hearing of a final permitting decision. A search of the 60-page law did not find the address of the commission listed.
The commission sets policy for the Arkansas Department of Environmental Quality, which administers and enforces the regulations. The commission also hears appeals of the department's decisions. The commission's decisions can be appealed to the Pulaski County Circuit Court.
Each of the five commissioners who sided with Dunlap said changes were needed to make the relationship between the commission and the department as clear as possible in all published material and on the department's Web site.
The commissioners who voted against Dunlap, said that while they were sympathetic, it is ultimately the petitioner's responsibility to research and make sure materials are delivered on time and to the right location.
John Simpson, chairman of the commission, who didn't cast a vote, could be heard discussing possible changes with Teresa Marks, the environmental agency's director, after the meeting.
"We're going to be looking closely at things we can do to simplify the involvement of people who wish to become participants," Simpson said after chatting with Marks. "The easier we can make it for people the better."
Marks said even though the appeals policy is clear, some changes are needed to help guide residents through the process.
"Regulation 8 makes it clear that you have to file with the commission," she said. "But we will make sure that our form letters make it very clear that the commission is a separate entity from the department. Any letters that do not include the location and phone number for the commission will include that in the future."
Marks said any resident who makes a public comment on a permit is sent a letter detailing his right to appeal, but some language may need to be "tweaked."
"I can see where folks who are not used to dealing with us, whoare not lawyers may not understand the total separate nature of the department and commission," she said. "We'll redraft our form letters. We will go through every one of those form letters to make sure all include the address of the commission. We'll also talk with our information systems person for the Web site and make sure we make that as clear as we possibly can."
Sixteen land farms have been granted permits since drilling began in 2004 in the Fayetteville Shale, a natural-gas formation stretching under north-central Arkansas.
A study conducted by theDepartment of Environmental Quality between Nov. 25, 2008, and Jan. 20, 2009, found that all had violated the terms of their permits in some way. Because of those violations, only six are operating, according to the agency.
Repeated violations of permit conditions led Marks to order the study and place a moratorium on new permits. In July, Marks proposed tougher regulations for the facilities.
The water stored in the ponds can be used to irrigate crops after it has been tested and approved by the department. The water must not be allowed to pool or run off the property. Runoff was one of the most frequent violations.
Two appeals remain for the land-farm permit.
One appeal is from a group of Prairie County residents represented by Sam Ledbetter of McMath Woods law firm and Prairie County which adopted a resolution opposing the facility's permit. The other appeal is from the land farm itself, seeking to negotiate salinity level restrictions suggested by the Department of Environmental Quality.
The land farm cannot open for operation until all appeals are resolved. The appeals will be heard Oct. 28 and 29.
Commissioners voted as follows on hearing Dunlap's appeal:
Against: Darwin Hendrix, Lawrence Bengal, Charles Mc-Grew, Dana Samples, John Shannon, Bekki White and Randy Young.
For: Scott Henderson, John Chamberlin, Lynn Sickel, William Thompson and Ephrain Valdez.
Arkansas, Pages 11, 20 on 08/29/2009