Can the head of Arkansas's environmental agency single-handedly freeze or halt animal feeding operation permit applications?

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Plain-English summary

State Representative David Branscum asked whether the Director of the Arkansas Department of Environmental Quality (ADEQ) could impose a moratorium or suspend the processing of permits for concentrated animal feeding operations (CAFOs), the large livestock and poultry operations subject to federal Clean Water Act discharge permitting.

The opinion concluded no. Arkansas law splits environmental permitting authority between two bodies: the Arkansas Pollution Control and Ecology Commission and the ADEQ Director. The opinion found the Commission, not the Director, holds the specific statutory power to declare a moratorium on, or suspend processing of, a type or category of permit, including a 30-day advance notice requirement and an emergency exception for imminent public health threats. Nothing in the statutes gave that same authority to the Director. The Director does have clear authority to revoke, modify, or suspend an individual permit already issued, for cause (like a permit violation or misrepresentation), but that is a distinct power from freezing an entire category of permit applications, and the opinion found no comparable law extending the moratorium/suspension power to the Director.

Background and analysis (as of 2013)

The opinion explained the layered permitting structure: the federal Clean Water Act requires an NPDES permit for any facility discharging pollutants into surface waters, including CAFOs meeting EPA's regulatory definition. EPA delegated NPDES permitting authority to Arkansas, which in turn assigned it to ADEQ, with the Pollution Control and Ecology Commission responsible for adopting the implementing regulations (Regulation No. 6) and the general CAFO permit issued under it.

Distinguishing rulemaking-adjacent authority from case-by-case enforcement authority, the opinion read A.C.A. § 8-4-201(b)(1)(A) as expressly giving the Commission (not the Director) the power to promulgate "moratoriums or suspensions of the processing of types or categories of permits," and found § 8-4-202 layering procedural requirements onto that power, 30 days' advance notice, with an emergency carve-out for imminent threats to public health, safety, or welfare. By contrast, the opinion found the Director's clearly granted power under § 8-4-204, to revoke, modify, or suspend an individual permit for cause such as a violation or misrepresentation, operates on a single, already-issued permit rather than a whole category of pending applications. Because the Legislature could easily have extended the Commission's moratorium/suspension power to the Director if it wanted to, and didn't, the opinion concluded the Director lacks that authority.

Citations and references

Statutes and regulations (as they stood in 2013):

• 33 U.S.C. §§ 1251-1387, the federal Clean Water Act and its NPDES permitting requirement
• 40 C.F.R. § 122.23, EPA's regulatory definition of "concentrated animal feeding operation"
• A.C.A. § 8-4-208(a), (b), ADEQ's delegated authority to administer the NPDES program in Arkansas
• A.C.A. § 8-1-202(b)(2)(A), designating the ADEQ Director as the state's permit issuing authority
• A.C.A. § 8-1-203(b)(1)(A), the Commission's rulemaking authority implementing ADEQ's substantive statutes
• A.C.A. § 8-4-201, the Commission's power to promulgate moratoriums or suspensions of permit categories
• A.C.A. § 8-4-202, procedural notice and emergency-action requirements for Commission moratoriums or suspensions
• A.C.A. § 8-4-203, ADEQ's general permit-issuance authority, including general permits for categories of facilities
• A.C.A. § 8-4-204, the Director's authority to revoke, modify, or suspend an individual permit for cause

Cases:

• Environmental Defense Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003), describing how a general permit regulates a class of similar dischargers under common terms

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2013-102

November 13, 2013

The Honorable David L. Branscum

State Representative
Post Office Box 370
Marshall, Arkansas 72650-0370

Dear Representative Branscum:

You have requested my opinion on the following question concerning permitting for a concentrated animal feeding operation:

Under Arkansas law, may the director of the Arkansas Department of Environmental Quality impose a moratorium or suspension of the processing of a permit for a concentrated animal feeding operation? If the answer is yes, under what circumstances may the director do so?

RESPONSE

The answer to this question is "no," in my opinion. Your second question is consequently moot.

Some explanation of the permitting process at issue will be helpful before further explaining this response.

The Federal Water Pollution Control Act,1 commonly referred to as the Clean Water Act ("CWA"), created a federal permitting program, the National Pollutant Discharge Elimination System ("NPDES"), that requires a permit of any person discharging pollutants into a surface water body.2 Concentrated, confined animal

1 33 U.S.C. §§ 1251 - 1387.
2 Id. at §§ 1251(a)(1), 1311(a), 1342(a)(1).
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INTERNET WEBSITE * http://www.ag.state.ar.us/

The Honorable David L. Branscum
State Representative

Opinion No. 2013-102

Page 2

operations which are covered by Environmental Protection Agency ("EPA") regulations defining "concentrated animal feeding operation" ("CAFO"), are subject to the NPDES program.3 The EPA requires all CAFOs to apply for an individual NPDES permit or submit a notice of intent for coverage under an NPDES general permit.4 An NPDES permit may be issued by the EPA, but states also are authorized to administer their own NPDES programs.6 If a state chooses to operate its own permit program, it must first obtain EPA permission and then ensure that it issues discharge permits in accord with the same federal rules that govern permits issued by the EPA.7

EPA and the Arkansas General Assembly have delegated to the Arkansas Department of Environmental Quality ("ADEQ") the power to issue NPDES permits authorizing pollutant discharges. Pursuant to A.C.A. § 8-4-208(a), "the
[ADEQ] is authorized ... to administer on behalf of the state its own permit program for discharges into navigable waters within its jurisdiction in lieu of that of the [EPA.]" ADEQ was further granted authority under A.C.A. § 8-4-208(b) to "accept a delegation of authority from the [EPA] under the [CWA] and to exercise and enforce the authority delegated."

ADEQ is therefore the NPDES permitting authority in Arkansas.8 The Arkansas Pollution Control and Ecology Commission ("Commission") adopted Regulation No. 69 to govern NPDES permitting.10 Regulation No. 6 incorporates federal

3 40 C.F.R. § 122.23 (emphasis added).

4 CAFOs are defined and categorized depending on the number of animals that they stable or confine. Id. at (b).

5 Id. at (d)(1).

6 33 U.S.C. § 1342(a)-(b).

7 Id. at (a); 40 C.F.R. §§ 123.25; 122.41.

8 See also A.C.A. §§ 8-1-202(b)(2)(A) (Repl. 2011) (including among the duties of the Director of ADEQ "[t]he administration of permitting ... programs deemed necessary to protect the environmental integrity of the state[,]" and designating the Director as "the issuing authority for the state[.]"); 8-4-203(a) (Supp. 2013)(vesting ADEQ with "the power and duty to issue, continue in effect, revoke, modify, or deny

permits, under such conditions as it may prescribe....").

9 Reg. No. 6, Regulations for State Administration of the National Pollutant Discharge Elimination System (as amended Feb. 9, 2013).

The Honorable David L. Branscum
State Representative

Opinion No. 2013-102

Page 3

regulations governing, inter alia, permit requirements for CAFOs.11 The federal regulations for CAFOs provide as follows regarding NPDES permit authorization:

A CAFO must not discharge unless the discharge is authorized by an NPDES permit. In order to obtain authorization under an NPDES permit, the CAFO owner or operator must either apply for an individual NPDES permit or submit a notice of intent for coverage under an NPDES general permit.12

A general permit is issued to categories or classes of dischargers that are susceptible to regulation under common terms and conditions. As explained by one court:

A general permit is a tool by which EPA regulates a large number of similar dischargers. Under the traditional general permitting model, each general permit identifies the output limitations and technology- based requirements necessary to adequately protect water quality from a class of dischargers. Those dischargers may then acquire permission to discharge under the Clean Water Act by filing
[Notices of Intent], which embody each discharger's agreement to abide by the terms of the general permit.13

Pursuant to Regulation No. 6 and its permitting authority, ADEQ developed a general permit covering CAFOs.14

10 See Reg. 6.101, 6.102. The Commission is charged under A.C.A. §§ 8-1-203(b)(1)(A) and 8-4- 201(b)(1)(A) (Repl. 2011) with the power and duty to promulgate rules and regulations "implementing the substantive statutes charged to the [ADEQ] for administration." See also A.C.A. § 8-4-202 (Supp. 2013) (further addressing the Commission's rulemaking authority).

11 Reg. 6.104(A). As noted above, CAFOs are defined in 40 C.F.R. § 122.23(b). 12 40 C.F.R. § 122.23(d)(1).

13 Environmental Defense Ctr., Inc. v. EPA, 344 F.3d 832, 853 (9th Cir. 2003). See also A.C.A. § 8-4- 203(m)(1)(A)(i) (Supp. 2013) (authorizing the issuance of "general permits" by ADEQ, and identifying a "general permit" as "a statewide permit for a category of facilities or sources that ... (a) [i]nvolve the same or substantially similar types of operations or activities; (b) [d]ischarge or release the same type of wastes or engage in the same type of disposal practices; (c) [r]equire the same limitations, operating conditions, or standards; (d) [r]equire the same or similar monitoring requirements....").

14 CAFO General Permit ARG590000 (Nov. 1, 2011) (available at http://www.adeq.state.ar.us/water/branch
_permits/generalpermits/default.htm) (last visited Oct. 24, 2013).

The Honorable David L. Branscum
State Representative

Opinion No. 2013-102

Page 4

With this background in mind, I will turn to your particular question concerning a moratorium or suspension. Because you have referred to a "permit for a
[CAFO]," I assume you are asking about the general permit noted above, and possibly individual NPDES permits that may be issued to CAFO owners or operators.

While the Commission is clearly authorized to either declare a moratorium on, or suspend the processing of, a type or category of permit, it appears the Director of ADEQ has not been vested with such authority. The Commission's authority to this effect is set forth in A.C.A. § 8-4-201, and further reflected in A.C.A. § 8-4-

202. Section 8-4-201 addresses the Commission's powers and duties generally,
     and provides in relevant part:

The Arkansas Pollution Control and Ecology Commission is given and charged with the following powers and duties:

Promulgation of rules and regulations, including water quality standards and the classification of the waters of the state and moratoriums or suspensions of the processing of types or categories of permits, implementing the substantive statutes charged to the department for administration.15

Section 8-4-202 details more specifically the matters that may be addressed by Commission rule or regulation, and includes the following notice requirement and "emergency" authority:

Before the adoption, amendment, or repeal of any rule or regulation or before suspending the processing of a type or category of permits or the declaration of a moratorium on a type or category of permits, the commission shall give at least thirty (30) days' notice of its intended action.

If the commission determines that imminent peril to the public health, safety, or welfare requires immediate change in the rules or

15 A.C.A. § 8-4-201(b)(1)(A) (Repl. 2011) (emphasis added).

The Honorable David L. Branscum
State Representative

Opinion No. 2013-102

Page 5

immediate suspension or moratorium on categories or types of
permits, it may, after documenting the facts and reasons, declare an emergency and implement emergency rules, regulations, suspensions, or moratoria.16

I have found no comparable provision in law or regulation that would authorize the Director of ADEQ to declare a moratorium on, or suspend the processing of, a permit for a CAFO.

I should note that the Director very clearly may revoke or suspend, for cause, a permit under which a CAFO is operating:

The Arkansas Department of Environmental Quality or its successor is given and charged with the power and duty to revoke, modify, or suspend, in whole or in part, for cause any permit issued under this chapter, including, without limitation:

(1) Violation of any condition of the permit;

(2) Obtaining a permit by misrepresentation or failure to
disclose fully all relevant facts; or

(3) A change in any applicable regulation or a change in any
preexisting condition affecting the nature of the discharge that requires either a temporary or permanent reduction or elimination of the permitted discharge.17

This authority is plainly distinct, however, from that noted above respecting moratoria or suspensions. Had the General Assembly intended to extend the latter authority to the Director, it could easily have done so.

In response to your question, therefore, it is my opinion that the Director of ADEQ lacks authority to impose a moratorium on, or suspend the processing of, a permit for a concentrated animal feeding operation.

16 A.C.A. § 8-4-202(d)(1)(A) and (e)(1) (Supp. 2013) (emphasis added).

17 A.C.A. § 8-4-204 (Repl. 2011) (emphasis added).

The Honorable David L. Branscum
State Representative

Opinion No. 2013-102

Page 6

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

DUSTIN McDANIEL
Attorney General

DM:EAW/cyh