Revisions to rule on pollution in limbo

At issue is U.S.’permit program

The Arkansas Department of Energy and Environment has no proposed timeline for revising a regulation needed for the state to maintain control of a Clean Water Act pollution permitting program.

When Arkansas lawmakers in June rejected a proposal from the Energy and Environment Department to permanently ban medium and large hog farms from the Buffalo River watershed, they also inadvertently rejected proposed revisions to a state regulation related to the federal water permitting program known as the National Pollutant Discharge Elimination System.

The program regulates point sources of pollution into waters of the U.S. An entity wishing to discharge pollutants must obtain a permit under the program, either from the U.S. Environmental Protection Agency or a state with EPA-delegated authority to issue permits, such as Arkansas.

Now, the state Division of Environmental Quality will likely have to pursue the rule-making process again and bring the revised regulation back before the Legislature in order to stay in compliance with the federal permitting program, but it's unclear when that time-consuming process will take place, according to a Department of Energy and Environment spokesman.

"The Department is still evaluating the best path forward for adoption of the NPDES program revisions and permanency of the moratorium," Energy and Environment Department spokesman Jacob Harper wrote in an email to the Arkansas Democrat-Gazette.

Department Secretary Becky Keogh, who also serves as director of the Arkansas Division of Environmental Quality, previously told the Democrat-Gazette in July that officials are reviewing "the best path forward" for the proposed permanent moratorium, as well as for their obligations under the law.

The permanent moratorium on medium and large hog farms in the watershed had the support of Gov. Asa Hutchinson and conservation groups, but it faced opposition from the Arkansas Farm Bureau.

The state regulation governing the National Pollutant Discharge Elimination System program in Arkansas is known as Regulation 6 under the current legal framework. If the Energy and Environment Department's proposed revisions are approved sometime in the future, then the name will change from Regulation 6 to Rule 6.

The revisions to the state regulation, which the Legislature rejected earlier this summer, had incorporated changes in line with updated federal regulations.

With regard to potential consequences for failing to update the water permitting regulation in the state, Harper wrote, "While there is a range of potential consequences for failing to comply with NPDES requirements, the most severe would be the revocation of the delegated program to the State."

"At this time, the EPA has not raised the issue," he added.

It's unknown when the delegated authority to administer the permits would revert from Arkansas back to the federal government if changes are not made.

When asked about a deadline to make revisions, Harper wrote, "There is no known deadline."

"Both the Department of Energy and Environment and DEQ maintain a good working relationship with our federal partners," he continued. "We are committed to doing what is necessary to maintain and properly administer all [of] our state-delegated programs."

In an emailed statement Friday, an EPA spokesman from the agency's Region 6 in Dallas, which oversees Arkansas and other nearby states, said the Arkansas Division of Environmental Quality "is responsible for ensuring compliance with State and Federal requirements."

"EPA defers to ADEQ concerning inquiries regarding the state's NPDES program and compliance," the EPA's Joseph Hubbard wrote. "EPA believes states are best suited to run their NPDES programs."

He did not respond to questions about whether the EPA has communicated with the Energy and Environment Department or other state authorities on the issue, and he did not mention the point in time when the EPA might consider revoking Arkansas' delegated authority to issue permits.

It's "highly unlikely" that the EPA would rush to take over the permitting authority in Arkansas, according to Walter Wright, a Little Rock environmental lawyer with the firm Mitchell, Williams, Selig, Gates and Woodyard.

Under this administration, "the feds, I assume, would give the state of Arkansas every break possible because the last thing they want to do is assume delegation of ... a state NPDES permitting program," Wright said in an interview Thursday. "They don't have the staffing or funding to take over that function."

Even if the EPA had those resources, he said, the federal government would be making "fairly sensitive calls" about certain discretionary matters related to pollutant discharges.

From an industry-efficiency standpoint, holders of permits support the state delegation of the program, not only because of local control but also because they can discuss issues with regulators who know the area, Wright said.

As of last year, all the states surrounding Arkansas had fully authorized programs, according to an EPA map listing the system status of the states.

Wright said he did not know of an exact timeline for when Arkansas would have to make the regulatory revisions to stay in compliance with the EPA, or risk losing the delegated permitting authority.

He suggested the state would be highly motivated to make the changes and said legislators who took issue with the Buffalo River permanent hog farm moratorium would "have absolutely no problem" with the updated rule.

"The state's always got the argument, 'Hey, do you want to deal with us or do you want to deal with the feds?'" Wright said.

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