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ADEQ Regulatory Process

ADEQ Regulatory Process. Lorielle Gutting Stuart Spencer, Attorneys. ADEQ Authority Regulations. Permitting Enforcement. What we’ll cover today. Environmental policy. From EPA to ADEQ. EPA can delegate to states:. Authority Funding Responsibility. From EPA to ADEQ.

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ADEQ Regulatory Process

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  1. ADEQRegulatory Process Lorielle Gutting Stuart Spencer, Attorneys

  2. ADEQ Authority Regulations Permitting Enforcement What we’ll cover today

  3. Environmental policy

  4. From EPA to ADEQ EPA can delegate to states: • Authority • Funding • Responsibility

  5. From EPA to ADEQ Delegated states must: • Enact Regulations • Enforce Regulations • Fund Programs

  6. The Role of the States In Protecting the Environment • State environmental agencies are co-regulators with the U.S. Environmental Protection Agency in a national system of environmental protection. • The state agencies and the US EPA play complementary roles in this national system. • States now implement 96.5% of the federal programs that can be delegated to the states.

  7. State’s Role • State agencies conduct over 90% of the environmental inspections, enforcement, and environmental data collection, and issue a similar amount of all the environmental permits. • States supply most of the funding for the implementation of the delegated federal programs – typically 80% of the actual cost. • States are concerned about the increasing workload that is being asked of the states coming at a time when federal funding support for states is declining.

  8. Local Control

  9. Specific examples of Delegation in Arkansas- Haz Waste • The ADEQ Haz. Waste Division has received delegation of the federal RCRA hazardous waste management program from EPA. State and federal hazardous waste management regulations and requirements are merged into a single reference document, Arkansas Pollution Control and Ecology Commission Regulation 23.

  10. Specific Examples of Delegation in Arkansas- Clean Water Act • The ADEQ Water Division has received delegation for the following programs, among others: • NPDES = National Pollution Discharge Elimination System. An NPDES permit is required for any discharges of pollutants from a point source into navigable waters of the US. EPA or the states must set limits on the amount of pollutants that facilities may discharge into a waterbody. The thresholds are established according to national technology-based standards, and the conditions of the waters that receive the discharge based on state water quality standards. Indirect discharges from non-point sources are not subject to NPDES requirements, but they are regulated by pretreatment standards. • Pretreatment = POTWs (Publicly Owned Treatment Works) are required to develop pretreatment programs and impose pretreatment standards for discharges from non-point sources.

  11. Specific examples of delegation in Arkansas- Air Programs • The Air Division also has received all delegable air programs, including the Title V program for major sources of pollutants, from Region 6 of the US Environmental Protection Agency. These programs include the New Source Performance Standards (NSPS), National Emission Standards for Hazardous Air Pollutants (NESHAPS), Prevention of Significant Deterioration (PSD) and the State Implementation Plan (SIP).

  12. APC&E Commission • Environmental Policy-making Body for Arkansas • 13 Members - 6 from State Agencies & 7 appointed directly by Governor • Approves Regulations • Appellate body for ADEQ decisions

  13. How ADEQ works ADEQ Regulations Permit/Registration Inspection Enforcement

  14. National Legislation/ EPA • State Legislation • Third-party Rulemaking Regulations

  15. Implementing Regulations • Permits/ Registrations/ID Number • Identifying & Monitoring • General vs. Individual

  16. Permitting • Public Notice • Draft Permit • Public Comment • Public Hearings (if requested) • Comments • Response to comments

  17. Inspections • Permit/ Registration • Complaint • Random

  18. Inspections • Discuss compliance • Tour facility • Examine records

  19. No Violations • Inspector writes report • Report routed up chain of command • Report sent to facility

  20. Facility Violations • Inspector writes report • Report routed up chain of command • Referred to Enforcement

  21. Enforcement Enforcement Options • Consent Administrative Order (CAO) • Notice of Violation (NOV) • Direct Action in Civil Court

  22. Powers of ADEQ • Criminal Penalties • Civil Action • Civil Penalties: • $10,000 per day per violation of any rules, regulations, permits or plans.

  23. Emergency Orders • Necessary to meet an emergency or situation of imminent hazard. • Order may be issued verbally or in writing. • Effective upon issuance. • Person may file written request for hearing within 10 business days.

  24. “Informal” Enforcement • Department seeks compliance through cooperation of all regulated parties and tries to afford suspected violators of an opportunity to resolve problems through informal procedures prior to the initiation of any administrative enforcement proceedings.

  25. Administrative Enforcement NOV - received 20 days Don’t Respond Respond

  26. Administrative Enforcement, Cont. • You file an Answer, Now what? • Administrative Hearing Officer (“AHO”) will set a hearing and schedule • Schedule includes: Discovery Deadlines, Motion Deadlines and Briefing Schedules • AHO may issue subpoenas

  27. Administrative Enforcement, Cont. Within 20 days of entry of recommended decision, a party has right to request hearing before the full Commission. Commission’s decision may be appealed to circuit court

  28. Who can Appeal to the Commission? • Permittee or Permit Applicant • Person named in an NOV • Commenter of Record

  29. Appeal to the Commission • Request Adjudicatory Hearing • NOV: within 20 days • Permits: within 30 days • Hearing Officer’s Recommended Decision • Commission Review • Oral Arguments • Additional Evidence • Circuit Court Appeal

  30. Before

  31. After

  32. Administrative Recap NOV Respond Don’t Respond Discovery DAO Hearing - AHO Full Commission Circuit Court Enforcement

  33. Discussion: Supplemental Environmental Project

  34. Clerkships/State Government Work Life ● ADEQ usually has a clerkship offered in the fall and spring semesters. Clerkships are coordinated through the law school’s externship program (Kelly Terry). ● Benefits of clerking – Usually one-on-one mentor with attorney. Included in staff meetings, meetings with the client, diverse assignments, feedback on work product. ● Hours, holidays, rarely “billing”. ● Public Service Loan Forgiveness as part of College Cost Reduction and Access Act of 2007.

  35. Questions? Lorielle Gutting: gutting@adeq.state.ar.us Stuart Spencer: spencer@adeq.state.ar.us ADEQ Web Site www.adeq.state.ar.us

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