Arkansas environmental regulators have the authority and discretion over how they settle their administrative enforcement actions, and a judge should deny or dismiss a petition accusing the regulators of not following their own rules when they issued an order against a company, attorneys for the regulators and the company have argued in separate filings.
The petition was filed by a former Arkansas Department of Environmental Quality water division chief and chief legal counsel, Ellen Carpenter. Carpenter asked the Arkansas Pollution Control and Ecology Commission to “set aside” the order rather than enforce it. She first submitted a public comment, then filed the petition for the set-aside after the order was final.
The department issued a consent administrative order against Great Lakes Chemical in 2018 to address 71 effluent violations.
The consent administrative order assesses a $106,000 fine against Great Lakes and orders corrective actions to prevent future water-quality violations with the waste it discharges.
The order stipulates that Great Lakes must follow the terms of the temporary variances the department had previously granted to the company.
Carpenter argued the order didn’t go far enough because it doesn’t acknowledge that the department’s decisions to grant temporary variances to Great Lakes’ discharge permit aren’t provided by law and aren’t protective of the state’s waters.
The temporary variances, which began in 2017, allowed Great Lakes to discharge its wastewater effluent from alternative locations. The company also had been unable to use the Ouachita Joint Pipeline, which is designed to connect several major industrial facilities and utilities in El Dorado, as a discharge point because of frequent pipeline malfunctions.
Carpenter argued the temporary variances should never have been granted on a repeat basis, contending that it constituted a permit modification.
The company could not modify its permit because it is on administrative hold at the department as officials work out a way for the company to renew its permit under updated regulatory requirements. Its permit expired in 2008.
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.
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 should be dismissed, Great Lakes’ attorneys argued in a filing this month, because the Pollution Control and Ecology Commission can only adjudicate petitions related to consent administrative orders when the fines are contested. Carpenter’s petition seeks to overturn the order’s required corrective actions, not civil penalties, they noted.
Attorneys cited the statute that establishes the commission’s ability to set aside an order, Ark. Code Ann. 8-4-103(d)
(4). While the references to setting “aside” an order don’t mention civil penalties or correction actions specifically, attorneys argue that a portion of the state code focuses only on civil penalties and not other things that might be contained in a consent administrative order.
Granting Carpenter’s request would be using her “own judgments as to how she would prosecute and resolve a particular case,” department attorneys asserted.
The department has the authority to issue a temporary variance from permit requirements and to settle enforcement actions through a consent administrative order, the department contended in its filing. The commission should only set the order aside if commissioners find it to be “unreasonable and arbitrary,” which it cannot do because the department acted within its authority, department attorneys argued.
Further, permit modifications and temporary variances have different procedural requirements, and a temporary variance does not constitute a permit modification, department attorneys asserted. The same is true with a consent administrative order and a temporary variance, they wrote.
The order cannot be construed as a permit modification because consent administrative orders, by nature, are compliance documents, Great Lakes’ attorneys argued.
Because Great Lakes’ permit already says that the company can discharge from a different location, an order asking the company to comply with a temporary variance that specifically granted that discharge change is merely a restatement of “what is already in the Permit,” company attorneys asserted.
Further, the order requires the company to monitor and report the contents of that discharge, they noted.
“No one, not even Petitioner, could argue that such reporting and monitoring is an unreasonable or inappropriate enforcement response to be added to the compliance plan,” company attorneys wrote.
Carpenter has not shown any evidence that was not presented in her original comment opposing the order, which took place before the department issued its final order against Great Lakes, company attorneys contended.
Additionally, department attorneys asserted, Carpenter’s argument that department Director Becky Keogh receives income from a wastewater discharge permit holder is not accurate, because Keogh only earns income from the department, department attorneys said.
Keogh’s husband, Pat, works for a company, Alcoa, with a wastewater discharge permit.