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ADEQ Regulatory Process Lorielle Gutting Stuart Spencer, Attorneys.

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Presentation on theme: "ADEQ Regulatory Process Lorielle Gutting Stuart Spencer, Attorneys."— Presentation transcript:

1 ADEQ Regulatory Process Lorielle Gutting Stuart Spencer, Attorneys

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

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 Regulations National Legislation/ EPA State Legislation Third-party Rulemaking

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

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. 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 Don’t RespondRespond 20 days

26 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 Administrative Enforcement, Cont.

27 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 Administrative Enforcement, Cont.

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

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

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: Stuart Spencer: ADEQ Web Site

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