Arkansas files lawsuit against EPA

D.E. Smoot, Muskogee Phoenix, Okla.
·3 min read

Apr. 30—Environmental regulators in Arkansas filed a lawsuit against the U.S. Environmental Protection Agency, asking a federal court to grant relief from what they describe as "unlawful federal overreach."

The Arkansas Department of Energy and Environment alleges in its complaint that EPA's objections to wastewater permits issued for facilities that discharge into Illinois River tributaries were "untimely" and exceeded the agency's statutory authority. State regulators also allege EPA's objections were "arbitrary and capricious" and an "abuse of discretion."

Arkansas regulators asked the U.S. District Court of Eastern Arkansas to confirm the validity of two disputed permits with a declaratory judgment. They also asked for temporary and permanent injunctions that would require the immediate withdrawal of EPA's objections to permits issued for Northwestern Arkansas Conservation Authority and Springdale Wastewater Treatment facilities.

The Arkansas Department of Energy & Environment, a division of the Arkansas Department of Environmental Quality, approved the disputed permits in December despite objections by Oklahoma agencies and Save the Illinois River Inc. EPA objected to the final permits, subjecting them to further scrutiny.

Charles W. Maguire, director of EPA Region 6 Water Division, based his objections to the permits in part on "anti-backsliding" provisions of the Clean Water Act and the failure of upstream-state regulators to acknowledge objections and recommendations of Oklahoma stakeholders. Maguire also alleged ADEQ "failed to demonstrate" the effluent limits for phosphorus would "achieve or maintain" the water quality standards in either Arkansas or "the downstream state of Oklahoma."

Water quality degradation within the Illinois River watershed has been attributed to nutrient overloading — particularly phosphorus — of streams within the basin. Increased levels of phosphorus triggers algal growth, which depletes dissolved oxygen levels, reduces water quality and threatens aquatic life and habitat.

Ed Brocksmith, a co-founder and treasurer for STIR, said the National Pollutant Discharge Elimination System permits need to be more restrictive. He said water quality standards set for Oklahoma's scenic rivers and streams never will be achieved if the NACA and Springdale permits are allowed to stand.

"What's happening now is not sustainable because they would allow for increased loading of phosphorus," Brocksmith said about the permits. "Reducing phosphorus from these point-source facilities is important not only for the Illinois River, it's critical to the water quality of Lake Tenkiller."

Brocksmith cited a 2006 study of Lake Tenkiller's water quality requested by Oklahoma Department of Environmental Quality. The study, he said, found that 35% of the phosphorus flowing into Lake Tenkiller at the time originated from point-source dischargers like wastewater treatment plants and canneries.

Researchers conducting the study determined "point-source reductions are the key to meeting the 0.037 mg/L total phosphorus criterion" established for Oklahoma scenic rivers. A model developed as part of the study "predicts ... reductions in (poultry) litter application will have little effect upon the measured three-month geometric means."

Arkansas officials, responding earlier this year to inquiries from the Phoenix, said the provisions that address phosphorus levels being discharged by those facilities and monitoring comply with an agreement struck in 2018 with their Oklahoma counterparts.

"The State of Arkansas and the State of Oklahoma formalized a Memorandum of Agreement in November 2018 that clarified the permitting parameters for point-source dischargers in the Illinois River watershed," an ADEE spokesperson said.

Arkansas officials, in a letter written in response to EPA's objection to the NPDES permits, described the 2018 agreement as "a cooperative nutrient reduction strategy. They said that strategy "reflects significant investment and well-considered policy choices" that promote "the states' common goal of 'further improving and protecting water quality in the Illinois River watershed.'"