Challenge to chemical permit filed over state variances on wastewater discharges

A former high-ranking Arkansas environmental regulator has filed a petition accusing current officials of not following their own regulations in granting changes to a chemical company's wastewater discharge permit.

Ellen Carpenter, a former water division chief and chief legal counsel at the Arkansas Department of Environmental Quality, filed the petition as an appeal of a consent administrative order the department issued against Great Lakes Chemical for 71 effluent violations.

The order doesn't go far enough, Carpenter contends, because it doesn't acknowledge that the department's decisions to grant temporary variances to Great Lakes Chemical's discharge permit aren't provided by law and aren't protective of the state's waters.

Department attorneys plan to file a response after a preliminary hearing Friday on the petition, a spokesman said. The preliminary hearing will go over procedural matters on the petition.

"The Arkansas Pollution Control and Ecology Commission filing you referenced is part of an administrative process that we are still working to understand," a spokesman for Great Lakes Chemical's parent company, Lanxess, wrote in response to an inquiry for this article. "We are complying with the consent administrative order."

The issue has arisen as the department works with wastewater dischargers on how they can continue to operate under expired but administratively held permits.

Because of mineral standards for the waters below the facilities' wastewater discharge points, a few dozen permittees have struggled to have their permits renewed in a manner that both protects the waters and allows them to operate in a way that they feel is cost-effective. They have expired permits but continue to operate adhering to old provisions under administrative holds declared by the department, with or without the permittees' knowledge.

Great Lakes Chemical's permit expired in 2008. Since 2017, the company has asked for several "temporary variances" in its wastewater discharge permit that allow the company to discharge its wastewater from other locations.

The department's consent administrative order alleges 71 effluent violations in 2018 occurring at both the old and new discharge points. In the order, the department says it "has determined" that Great Lakes "is likely to request additional extensions for these temporary variances, first granted on July 27, 2017, until these provisions can be incorporated or resolved by" the company's permit.

The company requested the temporary variances because it could not modify an expired permit and as a means to address effluent violations that had occurred before 2017. The company also has been unable to use the Ouachita Joint Pipeline, which is designed to connect several major industrial facilities and utilities in El Dorado.

Built in 2013, the pipeline has often malfunctioned, although an engineer told the Arkansas Democrat-Gazette last September that improvements made earlier in 2018 had made the pipe functional before Great Lakes Chemical's last temporary variance request July 2. The department has not responded to that request.

Last fall, Great Lakes Chemical's parent company, Lanxess, said in a statement that its temporary variances were used "on occasion, for example when maintenance is performed."

The 2018 violations include excessive total dissolved solids and chlorides -- two of the three regulated minerals, the other being sulfate -- and wayward pH levels, among other things.

As a part of the order, Great Lakes Chemical must come up with a list of corrective actions to comply with the terms of its temporary variances.

Those variances should never have been granted, Carpenter argues, citing several reasons.

First, the public notice on Department Director Becky Keogh's approval of the temporary variances was not published in a "newspaper of general circulation in the state," but rather in the El Dorado News-Times.

Second, the permit was improperly modified through a previous consent administrative order's provisions without going through the proper permit modification process.

Carpenter also wrote that Keogh cannot make any decisions regarding wastewater discharge permits because she receives a "significant portion" of her income from someone who works for a company with a wastewater discharge permit. That is a conflict of interest, according to Arkansas Code Annotated 8-4-209, she wrote.

Keogh's husband, Pat, works for Alcoa.

Further, the changes are not protective of the state's waters, Carpenter contends.

One of the new outfalls granted by the temporary variance, Outfall 002, is a ditch with no critical water flow. It receives wastewater normally meant for Outfall 010's stream, which has a critical flow of 750 cubic feet per second, Carpenter wrote. Downstream of the facility is Bayou de L'Outre, which is considered an impaired water body and now has stricter mineral requirements for discharges into it.

Bayou de L'Outre is impaired because of its levels of zinc, dissolved oxygen, sulfates and total dissolved solids, according to Carpenter's petition.

Carpenter's petition asks the Arkansas Pollution Control and Ecology Commission to "set aside" the consent administrative order. Further, Carpenter requests that the commission prohibit the department from using temporary variances to modify Great Lakes Chemical's permit, prohibit the department from modifying Great Lakes Chemical's permit unless administrative procedures are followed and order the department to establish effluent limits that would "ensure the water quality standards of the receiving stream are not exceeded whenever Great Lakes diverts wastewater intended to be discharged through Outfall 010 to another permitted outfall."

Metro on 04/08/2019

Upcoming Events