On Friday, the Arkansas Department of Energy and Environment, Division of Environmental Quality (DEQ) filed a complaint in the Eastern District of Arkansas against the Environmental Protection Agency (EPA) and its Administrator, Michael Regan, for infringing on the DEQ’s authority to implement the National Pollutant Discharge Elimination System (NPDES) under the Clean Water Act.
According to the complaint, the DEQ is the Arkansas state agency responsible for administering and enforcing the Arkansas environmental protection statutes and regulations, including the state’s NPDES permit program. The complaint states that the EPA is the federal agency responsible for the supervision, administration and enforcement of many federal environmental laws including administering the federal NPDES permit program under the Clean Water Act.
The complaint purports that under the Clean Water Act, each state Governor is authorized to seek authority to administer the NPDES permit program within his or her state by applying to the EPA and complying with certain statutory conditions. Further, the complaint states that the EPA “shall” approve any application if the minimum statutory requirements are met, and once approved, the authority to issue NPDES permits transfers exclusively to the state, subject to certain limited oversight responsibilities by the EPA.
In the present case, the DEQ argues that the EPA violated federal law and infringed on the plaintiffs authority to implement NPDES permits by failing to timely exercise its oversight responsibilities and attempting to insert itself into Arkansas’ NPDES permit program.
The plaintiff alleges that the EPA is infringing on the DEQ’s authority by requesting additional information and revisions to NPDES permits and issuing objection letters outside of its statutory deadlines. Specifically, the DEQ alleges that the EPA failed to timely object to two NPDES renewal permits.
The first permit was a five-year NPDES permit issued to the Northwest Arkansas Conservation Authority (NACA) to discharge treated wastewater. The complaint alleges that the EPA submitted a request for additional information 16 days past its statutory deadline and issued an interim objection 245 days after EPA’s deadline for objecting. Further, the DEQ argues that the EPA issued a specific objection letter 360 days after EPA’s deadline for objecting to the draft NACA permit had passed.
Additionally, the complaint states that the EPA sent a general objection letter for a PDES renewal permit for the Springdale Water and Sewer Commision 291 days past the EPA deadline and a specific objection letter 313 days past the deadline. The complaint purports that the DEQ followed its statutory requirements and on April 1, 2022, the EPA sent another letter to the DEQ reiterating that the DEQ must revise the NACA and Springdale permits.
The plaintiff argues that the EPA’s failure to exercise its oversight authority within the statutory timeframe infringes on the sovereign authority of Arkansas and deprives the DEQ of its right to implement its authorized NPDES program. Accordingly, the plaintiff seeks Declaratory and Injunctive Relief alleging that the EPA exceeded its statutory authority, abused its discretion under the Clean Water Act and failed to timely object.
