A bill that would strengthen state regulators’ ability to deny and revoke wastewater permits for those who have a demonstrated history of noncompliance with environmental regulations was filed in the Arkansas Senate last week.
Senate Bill 557, sponsored by Sen. Mark Johnson, would also broaden public notice requirements for new permits or major modifications to existing ones by requiring the state to provide a written notice to residents and property owners within the same Zip Code as the proposed or existing facility.
Currently, for wastewater permits, the Arkansas Department of Energy and Environment’s Division of Environmental Quality is only required to place a notice within a “newspaper of general circulation” in the county where the facility will be or is located.
The proposed legislation says DEQ “may deny a permit relating to wastewater if the applicant has a history of noncompliance with environmental regulations, whether at the applicant’s site or at any other permitted or unpermitted facility in this state.”
It goes on to list specific examples of what such noncompliance could look like, such as, “noncompliance that is recorded on inspections or other compliance activities performed by the division,” or “a demonstrated history by the applicant of submitting incomplete or deficient permit application information.”
It also lists consent administrative orders (CAOs) as examples of noncompliance and would apply to companies or entities “whose ownership includes individuals who own at least five percent (5%) of the applicant and who own or have owned at least five percent (5%) of any other entity that has a history of noncompliance with environmental regulations.”
The bill would also add a requirement that DEQ deny permits to applicants with a history of noncompliance if the applicant has had five or more “events of noncompliance with environmental regulations” within the previous five years.
Johnson called the proposal his “bad actor bill,” and said it is specifically targeted toward land developers who install what he described as low-quality sewage treatment equipment called package wastewater treatment systems that would discharge insufficiently treated wastewater into ephemeral streams or across people’s yards.
He compared what his bill would do to what states already do with driver’s licenses.
“You get, you know, 23 speeding tickets, and they take it away from you,” Johnson said. “I don’t think people ought to be able to just thumb their nose at the law and the regulations.”
If enacted as written, the bill also could have ramifications for large industrial dischargers down to small municipal wastewater treatment plants.
For example, the Lanxess Corporation, which operates three facilities for bromine extraction in South Arkansas and has active wastewater permits, has entered into 11 separate CAOs with DEQ over the last five years, with CAOs applying to multiple Lanxess facilities counting as one.
Those CAOs also include air permit violations, and the bill filed by Johnson isn’t clear on whether violations of air or land disposal permits would count toward a history of noncompliance where wastewater permits are concerned.
Johnson didn’t rule out amending the bill if other industries had concerns, saying that he had tried to tailor it to wastewater issues caused by property development in rural areas. He said such concerns are why bills can be amended after they are introduced, that if it wasn’t for the “law of unintended consequences,” the legislative session would not be as long as it is.
“Clean water is probably the most important thing that we can deal with,” Johnson said.
Al Drinkwater, a retired environmental consultant and former employee of the Arkansas Department of Pollution Control and Ecology, one of DEQ’s predecessor agencies, is involved with the Pinnacle Mountain Community Coalition, which has rallied against developments in rural Pulaski County, frequently citing water pollution concerns. One of the developers in the area, he said, has had multiple noncompliance issues with environmental regulators.
“In the process of getting to this point, we’ve had a number of conversations with other involved people, some of the people at the Arkansas Division of Environmental Quality and others, about the problem that we have with people that go out and have violation after violation after violation,” Drinkwater said. “And there’s no rule that the department has to say, ‘Look, you’re a bad actor, we’re not going to continue to play with you.'”
Drinkwater said the bill would make sure DEQ considers the “history” of a permit applicant when making permit issuance or reissuance decisions.
Last year, DEQ saw a significant increase in consent administrative orders – a kind of voluntary enforcement settlement – issued by the Office of Water Quality. The increase was driven by noncompliance with wastewater permits, a DEQ spokesperson said in January.
Many of those CAOs were between DEQ and municipal wastewater systems that consistently were not meeting the discharge quality requirements specified in their permits.
This is the second bill filed in the last month with language that could force an environmental permit revocation. Rep. Brad Hall, R-Alma, filed a bill two weeks ago that would automatically revoke the permits of an entity permitted to land-apply industrial poultry waste as fertilizer, if that facility violated its permits three or more times within a 45 day period.
Hall said in an interview with the Arkansas Democrat-Gazette last month that his bill was specifically targeted at Denali Water Solutions. Denali has been out of compliance with its permits multiple times over the last year due to its land-applying of industrial waste from poultry processors and similar facilities onto fields when the chance of rain is greater than 50%, which is prohibited under state no-discharge permits.
A Denali spokesperson said they were aware of the bill and had no comment other than to say that “we are working with legislators, agency officials and industry partners to satisfy all concerns.”
SB 557 would also require DEQ to create a way that local officials “responding to a sewage or storm water emergency” could get “immediate access to personnel of the division for technical support.”
Lastly, the bill would prohibit discharges into ephemeral or intermittent streams, overflows onto the private property of another, or “any situation in which the normal course of discharge shall result in accumulation of wastewater in areas outside of the stream or waterway.”
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