Federal environmental regulators are reviewing an Arkansas Senate bill that would change how hog farms and other farms are permitted, concerned that it might have implications for the Clean Water Act and the state's implementation of that act.
U.S. Environmental Protection Agency Region 6 Administrator Anne Idsal wrote a letter to Arkansas Department of Environmental Quality Director Becky Keogh, dated Wednesday, stating that an initial review of the bill showed that it "merits further evaluation to determine its effect" on federal rules and enforcement.
Senate Bill 550, sponsored by Sen. Gary Stubblefield, R-Branch, would transfer "concentrated animal feeding operation" permitting authority from the state Department of Environmental Quality to the Arkansas Natural Resources Commission. The commission would decide whether to permit farms' liquid waste management systems and would issue permits approved by local conservation districts for liquid waste disposal. The commission also could overturn the disapproval of a disposal permit or a disapproval of part of one.
Currently, the commission reviews liquid waste disposal plans, formally called "nutrient management plans," and determines whether they meet the commission's standards. The plans are then submitted as part of farms' operating permit applications to the Department of Environmental Quality.
Stubblefield and the Arkansas Farm Bureau, which initiated the bill, said Wednesday that they did not believe the review would find that the bill would violate federal laws.
"The proposed law only pertains to state regulations not federal law, therefore EPA should say this is a state matter," Stubblefield wrote in an email to the Arkansas Democrat-Gazette.
The department stood by its previously raised concerns.
"ADEQ agrees with EPA that SB550 raises concerns regarding potential impacts to state programs and ADEQ's delegated authority to protect water quality," the department said in a statement to the newspaper. "The Arkansas program to protect water quality must remain at least as stringent as federal requirements and this bill does not provide adequate assurances that it will satisfy EPA requirements."
The EPA did not immediately respond to telephone and email requests for comment Wednesday.
Critics of the bill, which include environmental groups and water utilities, have expressed concern that environmental regulations and protections would be weakened under the bill, despite assurances from supporters that all regulations would remain intact. The bill does not state that current regulations must remain in place, but supporters have argued that that is implied.
The bill is necessary, supporters say, because hog farmers must have their nutrient management plans approved by the commission and their operating permits approved by the department, meaning they must go through two agencies. One critic noted Tuesday that if the bill becomes law, the department may still be in charge of construction permits for farms that cover a certain amount of acreage.
In the one-page EPA letter, Idsal wrote that the bill, if adopted, "would receive a review from EPA to determine whether the State program possesses adequate authority to issue permits that ensure compliance with the requirements of the Clean Water Act."
Further, an initial review necessitates that the EPA consider the bill's "potential issues related to transferring authorities to another department in the State.
"Specifically, SB550 may implicate federal requirements addressing discharges from concentrated animal feeding operations (CAFOs) into waters of the US, including permitting and public notice requirements, as well as requirements for unpermitted operations."
The letter refers to the Clean Water Act's National Pollutant Discharge Elimination System program and the state's "delegated authority to protect water quality."
Currently, only one farm has a permit under the state's implementation of the National Pollutant Discharge Elimination System program. That farm, C&H Hog Farms in Newton County, is operating under an expired permit but has applied for a state no-discharge permit and a National Pollutant Discharge Elimination System permit to continue operating.
All other hog farms are permitted under Regulation 5, which concerns no-discharge permits and implements the Arkansas Water and Air Pollution Control Act. Some dairy farms are permitted under Regulation 5. Poultry farms generally do not require permits but have their nutrient management plans reviewed and approved by conservation districts.
John Bailey, environmental and regulatory affairs manager for the Arkansas Farm Bureau, said Wednesday that the Farm Bureau would not support the bill if it also transferred National Pollutant Discharge Elimination System permits to the commission.
"I think it's clear to me in the letter that she hasn't seen Senate Bill 550," Bailey said.
The bill doesn't specifically refer to the National Pollutant Discharge Elimination System. It does mention the Arkansas Water and Air Pollution Control Act in one section that refers to noncompliant activities being subject to regulation under the law. Permitting is referred to in other sections.
The letter refers to "public notice requirements," which can be waived by the applicant under the bill.
Numerous critics of the bill have said that would keep the public in the dark about any farm applications.
Bailey said Wednesday that applicants would be able to waive only the timeliness requirement, which says that regulators must make or notice decisions within a certain time period. That's how current law is written, but it states that applicants can waive the "timeliness requirement," while the proposed bill states that applicants can waive the "notification period requirements."
Many have interpreted the new language to mean any notification period requirements can be waived, including the requirement to notify the public.
When asked why the bill changes that language if it retains the same intent, Bailey said the Farm Bureau was told by the Bureau of Legislative Research that the new phrase was safer legally.
The EPA routinely reviews state policies regarding federal programs, as well as permits and permit modifications classified as "major." The EPA must approve a state's ability to implement federal programs, such as the National Pollutant Discharge Elimination System. Otherwise, the EPA would control the program's operation in the state.
In 2013, a previous Region 6 administration temporarily revoked Arkansas' ability to issue National Pollutant Discharge Elimination System permits after a state law changed how the state calculates water flow affecting utilities and industries. Lawmakers later repealed Act 954 to regain permitting authority.
Staff members explained to commissioners during the Arkansas Natural Resources Commission's meeting Wednesday that the agency would not take a position on the bill.
"We are ready to accept that challenge if it's brought to us," commission Executive Director Bruce Holland told commissioners.
Commissioners would adopt any pertinent regulations, if the bill became law. Holland said he would recommend that commissioners adopt the regulations as they exist at the Department of Environmental Quality.
Bailey said the Farm Bureau would oppose efforts to adopt anything other than the current regulations.
Other concerns raised about the bill include a less accessible complaint process before the commission; a lack of a third-party rule-making process at the commission; the potential for weaker regulations to expose drinking water sources to excess algae-causing phosphorus; a history of pollution related to excess poultry waste in the Illinois River watershed; and fear that C&H Hog Farms could apply for another permit from the commission and remain open in spite of an order to close by the Department of Environmental Quality.
Supporters of the bill have said C&H must continue its current permit application, which they say would remain under the department's purview until litigation regarding it is resolved.
Sen. Gary Stubblefield (right), R-Branch, sponsor of SB550, is shown speaking with Senator Will Bond.
A Section on 03/21/2019
Print Headline: Bill to change how Arkansas farms get permits draws EPA review