Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 1 of 20
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF ARKANSAS
`CENTRAL DMSION
`
`FILED T
`EAsr'tRN°6fJ.fflfJr1.i~NIAS
`APR! 12022
`
`TAMMY H. DOWNS LERK
`By:---~~+=::~~
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`Case No. ~: Z2-,. CV- 35~ - WJ,M
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`This case assigned to District Judge .M ille.r
`and to Magistrate Judge -..8 ..... A~_~f--------
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`Plaintiff,
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`v.
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`ARKANSAS DEPARTMENT OF ENERGY )
`AND ENVIRONMENT, DMSION OF
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`ENVIRONMENTAL QUALITY,
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`)
`)
`)
`)
`)
`)
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`)
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`)
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`U.S. ENVIRONMENTAL PROTECTION
`AGENCY; MICHAEL REGAN, IN HIS
`OFFICIAL CAPACITY AS
`ADMINISTRATOR OF THE UNITED
`STATES ENVIRONMENTAL
`PROTECTION AGENCY,
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`Defendants.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Plaintiff Arkansas Department of Energy and Environment, Division of Environmental
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`Quality ("DEQ"), by counsel, hereby states the following as its Complaint for Declaratory and
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`Injunctive Relief against the Defendant United States Environmental Protection Agency ("EPA")
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`and Defendant Michael Regan in his official capacity as EPA Administrator:
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`INTRODUCTION
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`l.
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`Plaintiff DEQ seeks declaratory and injunctive relief against Defendants EPA and
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`Administrator Regan for violating federal law and infringing on DEQ's legal authority to
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`implement the National Pollutant Discharge Elimination System ("NPDES") permit program
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`under Section 402(b) of the federal Clean Water Act ("CWA"), 33 U.S.C. § 1342(b).
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`2.
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`As described in more detail herein, Congress authorized States, like Arkansas, to
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`assume responsibility for implementing the NPDES permit program within their borders. Once
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`authorized, the States become the lead regulatory authority for NPDES permitting and EPA
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 2 of 20
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`assumes an oversight role to ensure that the State programs comply with the CW A. When a State
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`with an authorized program is preparing to issue an NPDES permit, the CW A requires the State
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`to provide notice to EPA so that the agency can review and comment on the permit prior to
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`issuance. EPA may also object to the permit, and if the State fails to address EPA's concerns,
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`EPA can assume permitting authority for that permit. That power, however, must be exercised by
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`EPA within a prescribed timeframe to preserve the cooperative federalism framework enshrined
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`intheCWA.
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`3.
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`This case is about EPA' s failure to timely exercise its oversight responsibilities,
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`EPA ignoring those failures, and attempting to insert itself into a completed permitting process
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`for two communities that rely on transparent, fair, and timely administration of federal and state
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`regulatory authority. In doing so, EPA is infringing on the sovereign authority of Arkansas and
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`depriving DEQ of its right to implement its authorized NPDES program.
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`PARTIES
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`4.
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`Plaintiff DEQ is the Arkansas State agency that is responsible for administering
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`and enforcing the State's environmental protection statutes and regulations, including the
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`NPDES permit program.
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`5.
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`Defendant EPA
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`is
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`the
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`federal agency charged with
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`the supervision,
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`administration, and enforcement of many federal environmental laws, pursuant to specific
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`delegations of authority from Congress, including the CW A.
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`6.
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`Defendant Michael Regan is the Administrator of EPA and is sued in his official
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`capacity. Administrator Regan has ultimate responsibility for EPA's actions pursuant to the
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`CWA. The Administrator's office is located within EPA's headquarters in Washington, D.C.
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`2
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 3 of 20
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`JURISDICTION AND VENUE
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`7.
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`This is a case "in law and equity arising under [the] Constitution [and] laws of the
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`United States .... " U.S. Constitution Article III, Section 2. This Court has further jurisdiction
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`under 5 U.S.C. §§ 702 and 705-706 and 28 U.S.C. § 1331, 1346, and 1361.
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`8.
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`The Court is authorized to award the requested declaratory and injunctive relief
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`under 5 U.S.C. § 702 and 705-706, 28 U.S.C. §§ 2201 and 2202, and Federal Rules of Civil
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`Procedure 57 and 65.
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`9.
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`Venue is properly vested in this Court pursuant to 28 U.S.C. § 139l(e) because
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`(1) Plaintiff resides in Arkansas and (2) "a substantial part of the events or omissions giving rise
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`to the claims[ s] occurred" in this District.
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`LEGAL FRAMEWORK
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`10.
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`EPA is charged with administering the federal NPDES permit program pursuant
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`to 33 U.S.C § 1342.
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`11.
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`The Governors of each State are authorized to seek authority to administer the
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`NPDES permit program within their borders by applying to EPA and complying with certain
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`statutory conditions. Id. § 1342(b). EPA "shall" approve such applications if the minimum
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`statutory requirements are met. Id.
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`12.
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`Once authorized, the authority to issue NPDES permits transfers exclusively to
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`the State, subject to certain limited oversight responsibilities retained by EPA. Id.§ 1342(c)(l).
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`13.
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`That oversight is exercised, in part, through EPA's review of NPDES permit
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`applications submitted to the State permitting authority and the State providing notice to EPA of
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`"each permit to be issued by such State." Id.§ 1342(d)(l).
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`3
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 4 of 20
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`14.
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`A State permit may not be issued if EPA objects to the issuance of the permit "as
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`being outside the guidelines and requirements of'' the CW A; that objection must be conveyed in
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`writing within 90 days of EPA receiving a copy of the proposed permit. Id. § 1342( d)(2).
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`15.
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`If a State fails to resubmit a permit that meets the stated objection within 90 days
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`of receiving the objection, EPA ''may issue the permit.. .. " Id.§ 1342(d)(4).
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`16.
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`The notification requirements of 33 U.S.C. § 1342(d) may be waived by EPA at
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`the time it approves a State NPDES program. Id.§ 1342(e).
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`17.
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`In order to approve a State NPDES program application, EPA requires each State
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`to enter into a memorandum of agreement that will facilitate coordination between EPA and the
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`authorized State permitting authority. 40 C.F.R. § 123.24(a).
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`18.
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`That memorandum of agreement must "specify the extent to which EPA will
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`waive its right to review, object to, or comment upon State-issued permits .... " 40 C.F.R. §
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`123.24(d).
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`19.
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`The memorandum of agreement may also specify EPA's agreement to review
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`draft permits instead of proposed permits, in which case a State need not submit a proposed
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`permit to EPA for review in accordance with 33 U.S.C. § 1342(d) unless the State issues a permit
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`that differs from the draft permit reviewed by EPA, EPA has objected to the draft permit, or
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`there is significant public comment. 40 C.F.R. § 123.44(j).
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`20.
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`A "draft permit" is the document prepared by the NPDES permitting authority
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`indicating the authority's tentative permitting decision, and is the version used to convey that
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`tentative decision to the public during the required public comment period. See 40 C.F.R. §
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`122.2.
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`4
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 5 of 20
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`21.
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`A ''proposed permit" is the document prepared by the NPDES permitting
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`authority following the close of the public comment period, taking into account information
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`received during that process, and is the version submitted to EPA for review, unless that
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`procedural step is waived, prior to final issuance. See id.
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`22.
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`"Significant" is not defined in applicable federal law.
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`23.
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`EPA authorized DEQ to administer and enforce Arkansas's NPDES permit
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`program on November 1, 1986.
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`24.
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`DEQ and EPA entered into the required memorandum of agreement for the
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`NPDES permit program on October 31, 1986 ("NPDES MOA''). That agreement was amended
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`on January 30, 1995.
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`25. When approving Arkansas's NPDES permit program, EPA agreed to review draft
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`NPDES permits instead of proposed NPDES permits. NPDES MOA § III.B.7.
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`26.
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`EPA also agreed that DEQ could revise draft permits "as it considers appropriate"
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`following the close of the required public comment period, taking into account comments
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`received from the public ·and EPA on the draft permit. Id. § 111.B. l l.
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`27.
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`EPA also agreed that DEQ may issue a final NPDES permit ''without further
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`review by EPA" if "(a) the proposed final permit is the same as or more stringent than the draft
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`permit submitted to EPA[,] (b) EPA has not objected to such draft permit, and (c) valid and
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`significant public comments have not been made .... " Id.
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`28.
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`Finally, EPA agreed that if the agency "fails to provide a written objection to a
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`draft permit within the initial time period or fails to provide timely written notice of the specific
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`grounds for objection to a draft permit after making a general objection, EPA shall be deemed to
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`have waived its right to object to permit terms and conditions." Id.§ III.B.9.
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`5
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 6 of 20
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`FACTUAL BACKGROUND
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`A.
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`NPDES Permit for Northwest Arkansas Conservation Authority
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`29.
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`On September 1, 2012, DEQ issued NPDES permit number AR0050024 to the
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`Northwest Arkansas Conservation Authority ("NACA") for discharges of treated sanitary
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`wastewater to Osage Creek which flows for approximately 10 miles before its confluence with
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`the Illinois River in Segment 3J of the Arkansas River Basin. The Illinois River flows
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`approximately 14. 7 more miles before entering the State of Oklahoma.
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`30.
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`That permit authorized a discharge of up to 3.6 million gallons per day ("mgd")
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`and established, among other requirements, a phosphorus limit of0.l milligrams/liter ("mg/L").
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`31.
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`Given the standard 5-year NPDES permit term, NACA applied for a permit
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`renewal on March 3, 2017, and provided additional information to DEQ on March 22, 2017,
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`August 4, 2020, and September 24, 2020. The permittee requested a modification to the renewal
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`permit to accommodate additional flows due to an expansion from 3.6 mgd to 7.2 mgd. The
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`permittee also requested that its discharge limitation for total phosphorus be modified from 0.1
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`mg/L to 0.5 mg/L to accommodate the new operational framework for the facility.
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`32.
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`Permit No. AR0050024 expired on August 31, 2018. Consistent with standard
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`CW A permitting practice, Permit No. AR0050024 remained effective through administrative
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`continuance pending processing of the permit renewal application.
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`33.
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`On December 20, 2020, DEQ issued for public notice and comment a draft
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`amended NPDES permit that would maintain the phosphorus limit of 0.1 mg/L for existing
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`discharges at 3.6 mgd (Tier I limits) and authorize NACA to increase its discharge capacity to
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`7.2 mgd and establish a phosphorus discharge limitation of0.5 mg/L (Tier II limits).
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`6
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 7 of 20
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`34.
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`Consistent with the NPDES MOA, DEQ provided EPA with a copy of the draft
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`permit on October 28, 2020, more than 45 days prior to the start of the public comment period.
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`35.
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`The public comment period closed on January 19, 2021. DEQ received some
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`comments from members of the public and comments from two Oklahoma state agencies. DEQ
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`received EPA's comment letter on November 23, 2020. The Oklahoma state agencies requested
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`additional engagement regarding the draft phosphorus limits, while EPA focused its comments
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`on influent monitoring and recommended including a description of sludge practices in the
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`public notice for the draft permit. EPA did not comment on the draft phosphorus discharge
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`limitation. EPA did not object to the issuance of the permit.
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`36.
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`Pursuant to 33 U.S.C. § 1342(d)(2), 40 C.F.R. § 123.44(a), and NPDES MOA §
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`III.B.11, EPA had until January 26, 2021, to object to the issuance of the draft permit.
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`37.
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`On February 11, 2021, after its permit review period closed and after the public
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`comment period closed, EPA submitted to DEQ a letter identifying the comments submitted by
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`the Oklahoma state agencies concerning the phosphorus limit and requesting additional
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`information.
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`38.
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`On September 17, 2021, DEQ provided EPA revised permit language that would
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`require the permittee to certify, before the Tier II limits would go into effect, that any increase in
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`phosphorus discharges due to the 0.5 mg/L discharge limit would be completely offset by
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`phosphorus reductions due to new customer connections to the NACA treatment plant.
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`39.
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`On September 28, 2021, 245 days after EPA's deadline for objecting to the draft
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`NACA permit had passed, EPA issued to DEQ an interim objection letter and requested
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`additional information on the Tier II phosphorus limit in the draft permit.
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`7
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 8 of 20
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`40.
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`Following additional dialogue with NACA, the Oklahoma state agencies, and
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`EPA, and after considering and responding to all timely submitted comments, DEQ finalized and
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`issued Permit No. AR0050024 to NACA on December l, 2021. The final permit was
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`functionally equivalent to the draft permit but established a more stringent Tier II phosphorus
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`limit of0.35 mg/Land included the requirement that any increases in phosphorus discharges due
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`to the changed limit be completely offset before the Tier II limits become effective. DEQ did not
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`consider the comments submitted during the comment period to be significant.
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`41.
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`No judicial review petitions have been filed challenging the final NACA NPDES
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`permit. The time for administrative review of the permit is exhausted. 1
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`42.
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`On December 30, 2021, 338 days after EPA's deadline for objecting to the draft
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`NACA permit had passed, EPA issued a general objection letter for the NACA permit. In this
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`letter, EPA characterizes the final NACA permit as "proposed" because the permit is "materially
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`different" than the draft EPA previously reviewed and because DEQ did not send to EPA the
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`public comments from Oklahoma agencies that EPA asserted are "significant."
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`43.
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`On January 21, 2022, 360 days after EPA's deadline for objecting to the draft
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`NACA permit had passed, EPA issued a specific objection letter for the NACA permit. EPA
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`again characterized the final permit as "proposed" for purposes of EPA's oversight
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`responsibilities under the CW A, reiterated its concerns regarding the Tier II phosphorus
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`discharge limit that had already been established in the final NACA NPDES permit, and
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`demanded that DEQ revise the permit with a 0.1 mg/L Tier II discharge limitation or EPA would
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`assume permitting authority.
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`1 A request for administrative review before the Arkansas Pollution Control and Ecology Commission (APC&EC),
`Docket 22-001-P, was dismissed for lack of standing under Arkansas law, APC&EC Minute Order 22-05, dated
`February 25, 2022.
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 9 of 20
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`44.
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`On April 1, 2022, EPA sent another letter to DEQ further addressing the NACA
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`permit and the Springdale Water and Sewer Commission, Springdale Water Treatment Facilities
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`("Springdale") permit and asserting that DEQ must revise both permits with a 0.1 mg/L
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`discharge limitation or EPA would assume permitting authority for both facilities.
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`B.
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`NPDES Permit for Springdale Water and Sewer Commission
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`45.
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`On April 1, 2004, DEQ issued NPDES permit number AR0022063 to Springdale
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`for discharges of treated sanitary wastewater to Spring Creek which flows to Osage Creek and
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`then flows to the Illinois River in Segment 3J of the Arkansas River Basin. The Springdale
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`discharge is located 29 miles upstream of the State of Oklahoma. That permit authorized a
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`discharge of up to 24 mgd and established, among other requirements, a phosphorus limit of 1.0
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`mg/L.
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`46.
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`Given the standard 5-year NPDES permit term, Springdale applied for a permit
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`renewal on September 22, 2008. The renewal process for this permit was put on hold while the
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`regulatory agencies of Arkansas and Oklahoma negotiated a path forward to reduce phosphorus
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`discharges in the Illinois River Watershed. After the two states entered into the 2018
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`Memorandum of Agreement by and between Oklahoma and Arkansas, DEQ requested an
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`updated renewal application. Springdale submitted updated information on April 30, 2020.
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`47.
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`Permit No. AR0022063 expired on March 31, 2009. Consistent with standard
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`CW A permitting practice, Permit No. AR0022063 remained effective through administrative
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`continuance pending processing of the permit renewal application.
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`48.
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`On February 14, 2021, DEQ issued for public notice and comment a draft NPDES
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`permit that included a phosphorus discharge limit of 1.0 mg/L.
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 10 of 20
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`49.
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`Consistent with the NPDES MOA, DEQ provided EPA with a copy of the draft
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`permit on December 14, 2020, more than 45 days prior to the start of the public comment period.
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`50.
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`The public comment period closed on March 16, 2021. DEQ received some
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`comments from members of the public and from one Oklahoma state agency. DEQ received
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`EPA's comment letter on January 13, 2021. DEQ received some comments from members of the
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`public and from two Oklahoma state agencies. The Oklahoma state agencies commented on
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`several provisions of the draft, including the phosphorus limit. EPA, just as it did for the NACA
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`permit, focused its comments on influent monitoring and recommended including a description
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`of sludge practices in the public notice for the draft permit. EPA did not comment on the draft
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`phosphorus discharge limitation. EPA did not object to the issuance of the permit.
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`51.
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`Pursuant to 33 U.S.C. § 1342(d)(2), 40 C.F.R. § 123.44(a), and NPDES MOA §
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`III.B.11, EPA had until March 14, 2021, to object to the issuance of the draft permit.
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`52.
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`After considering and responding to all timely submitted comments, DEQ
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`finalized and reissued Permit No. AR0022063 to Springdale on December 1, 2021. The final
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`permit was identical to the draft permit that EPA previously reviewed. DEQ did not consider the
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`comments submitted during the comment period to be significant.
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`53.
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`No judicial review petitions have been filed challenging the final Springdale
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`NPDES permit. The time for administrative review of the permit is exhausted.2
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`54.
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`On December 30, 2021, 291 days after EPA's deadline for objecting to the draft
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`Springdale permit had passed, EPA issued a general objection letter for the Springdale permit. In
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`that letter, EPA expressed in writing for the first time its concerns related to the phosphorus
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`2 A request for administrative review before the Arkansas Pollution Control and Ecology Commission (APC&EC),
`Docket 22-002-P, was dismissed because it was not timely tiled under Arkansas law, APC&EC Minute Order 22-06,
`dated February 25, 2022.
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`10
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 11 of 20
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`discharge limit that had already been established in the final NPDES permit for the Springdale
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`facility.
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`55.
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`On January 21, 2022, 313 days after EPA's deadline for objecting to the draft
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`Springdale permit had passed, EPA issued a specific objection letter for the Springdale permit.
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`EPA characterized
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`the final permit as "proposed" for purposes of EPA's oversight
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`responsibilities under the CW A, reiterated its concerns regarding the phosphorus discharge limit
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`that had already been established in the final Springdale NPDES permit, and demanded that
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`DEQ revise the permit with a 0.1 mg/L discharge limitation or EPA would assume permitting
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`authority.
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`56.
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`On April 1, 2022, EPA sent another letter to DEQ further addressing both the
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`NACA and Springdale permits and reiterating that DEQ must revise both permits with a 0.1
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`mg/L discharge limitation or EPA would assume permitting authority for both facilities.
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`CLAIMS FOR RELIEF
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`Count I
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`EPA's Objection to the NACA Permit is Untimely, Exceeds Statutory Authority, and is
`Without Observation of Procedure Required by Law
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`57.
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`The allegations in paragraphs 1 through 56 are hereby re-alleged and incorporated
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`as though fully set forth herein.
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`58.
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`Pursuant to Section 33 U.S.C. § 1342(d)(2), 40 C.F.R. 123.44(a) and (b), and
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`NPDES MOA § III.B. 7, EPA has 90 days to review draft permits developed by DEQ for
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`issuance. If EPA does not object to a draft permit within that time period, DEQ is authorized to
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`issue those permits as "EPA shall be deemed to have waived its rights to object to permit terms
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`and conditions." NPDES MOA § III.B.7.
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 12 of 20
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`59.
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`On October 28, 2020, DEQ provided EPA a draft permit for the NACA facility
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`for review. On November 23, 2020, EPA issued a comment letter on the proposed permit but did
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`not comment on the draft phosphorus effluent limit. EPA did not issue a general or specific
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`objection to the draft NACA permit.
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`60.
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`On January 26, 2020, EPA's review period for the draft NACA permit closed.
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`61.
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`After EPA's review period closes, DEQ may lawfully issue a permit without
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`further EPA review if: (a) the proposed final permit is the same as or more stringent than the
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`draft permit that EPA previously reviewed; (b) EPA has not previously objected to the draft
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`permit, and (c) significant public comments have not been made. 40 C.F.R. § 123.44G); NPDES
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`MOA § III.B.11.
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`62.
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`On September 28, 2021, 245 days after EPA's deadline for objecting to the draft
`
`NACA permit had passed, EPA issued to DEQ an interim objection letter and requested
`
`additional information on the Tier II phosphorus limit in the draft permit.
`
`63.
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`On December 1, 2021, DEQ issued a final NPDES permit to NACA. The final
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`permit includes a phosphorus limit that is more stringent than the draft permit that EPA
`
`previously reviewed; EPA had waived its right to object to the draft permit upon expiration of its
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`review period; and significant public comments had not been made. The final permit for NACA
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`was therefore lawfully issued in accordance with the CW A, EPA regulations, and the NPDES
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`MOA.
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`64.
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`On December 30, 2021, 338 days after EPA's comment period on the NACA
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`permit had closed, EPA issued a general objection letter for the NACA permit.
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`65.
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`On January 21, 2022, 360 days after EPA's comment period on the NACA permit
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`had closed, EPA issued a specific objection letter for the NACA permit.
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`12
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 13 of 20
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`66.
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`EPA's interim objection, general objection, and specific objection letters for the
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`NACA permit were not timely issued and therefore exceed EPA's statutory authority, were
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`issued without observation of procedure required by law, and are ultra vires.
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`67.
`
`EPA's untimely interim, general, and specific objection letters for the NACA
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`permit unlawfully threaten to impose certain requirements on DEQ and assume authority over
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`the duly issued permit.
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`68.
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`EPA's objection letters assert that the final permits that DEQ issued on December
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`1, 2021, are not in fact issued permits, but that EPA considers them to be proposed permits. It is
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`on this basis that EPA claims authority to comment and object to those prior issued permits.
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`69.
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`EPA's objection letters assert that, if DEQ does not modify the NACA permit as
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`EPA' s letters demand, EPA will assume permitting responsibility for the permit, rendering the
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`duly issued permit invalid and effectively displacing DEQ as the permitting authority.
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`70.
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`Any action EPA takes pursuant to those objection letters, including attempting to
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`assume permitting authority over the NACA permit, is unlawful and would be ultra vires.
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`71.
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`Pursuant to 28 U.S.C. §§ 2201 and 2202, this Court has the power to make
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`binding adjudications of right and declare the rights of the parties in regard to EPA' s untimely
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`objection letters and unlawful assertions of authority over the NACA permit.
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`72.
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`This Court also has the power to enjoin EPA from assuming authority over the
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`NACA permit and maintain the status quo ante.
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`73.
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`This Court also has authority to declare and set aside EPA's objection letters as
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`unlawful pursuant to the Administrative Procedure Act, U.S.C. §§ 702, 704, and 706. EPA's
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`determination that the NACA permit is "proposed" instead of final is a final agency
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`determination that immediately harms the legal rights and responsibilities of DEQ and the
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 14 of 20
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`regulated entities that rely on its continued and proper administration of the NPDES permit
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`program within Arkansas.
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`Count II
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`EPA's Objection to the NACA Permit is Arbitrary and Capricious, An Abuse of
`Discretion, and is Otherwise Not in Accordance with Law
`
`74.
`
`The allegations in paragraphs 1 through 73 are hereby re-alleged and incorporated
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`as though fully set forth herein.
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`75.
`
`EPA's claim that the final NACA permit issued by DEQ on December 1, 2021, is
`
`a "proposed pennit" is arbitrary and capricious, an abuse of discretion, and is otherwise not in
`
`accordance with law.
`
`76.
`
`EPA's claim that the final pennit is materially different and less protective than
`
`the draft permit is arbitrary and capricious as the final Tier II discharge limit is 0.35 mg/L less
`
`than the draft pennit that EPA reviewed, and the final pennit includes the requirement that any
`
`increases in phosphorus discharges due to the changed limit be completely offset before the Tier
`
`II limits become effective. EPA's claim is also based on an unlawfully promulgated effluent
`
`limitation. 3
`
`77.
`
`EPA's claim that DEQ received "significant" public comment relies on an EPA
`
`interpretation of a tenn that is not defined in federal law, overrides DEQ's detennination of
`
`significance as the lead permitting authority, and involves an issue that EPA declined to
`
`comment on during its congressionally established statutory review period but is now apparently
`
`so important that EPA is willing to trample on DEQ's rights to wrestle permitting authority from
`
`the State.
`
`3 DEQ is separately challenging EPA's unlawful promulgation of this effluent discharge limitation in the Eighth
`Circuit Court of Appeals pursuant to 33 U.S.C. § 1369(b)(l).
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 15 of 20
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`78.
`
`EPA's reinterpretation of the issue following the close of its statutory review
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`period is arbitrary and capricious and an abuse of discretion, and fundamentally alters the
`
`regulatory scheme developed by Congress while infringing on Arkansas's authority to run its
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`State NPDES program as Congress intended.
`
`79.
`
`This Court has authority to declare and set aside EPA's objection letters as
`
`unlawful pursuant to 5 U.S.C. §§ 702, 704, and 706. EPA's detennination that the NACA pennit
`
`is "proposed" instead of final is a final agency determination that immediately harms the legal
`
`rights and responsibilities of DEQ and the regulated entities that rely on its continued and proper
`
`administration of the NPDES permit program within Arkansas.
`
`Count III
`
`EPA's Objection to the Springdale Permit is Untimely, Exceeds Statutory Authority, and is
`Without Observation of Procedure Required by Law
`
`80.
`
`The allegations in paragraphs 1 through 79 are hereby re-alleged and incorporated
`
`as though fully set forth herein.
`
`81.
`
`On December 14, 2020, DEQ provided EPA a draft permit for the Springdale
`
`facility for review that included a draft phosphorus effluent limit of 1.0 mg/L.
`
`82.
`
`On January 13, 2021, EPA issued a comment letter on the draft permit but did not
`
`comment on the draft phosphorus effluent limit. EPA did not issue a general or specific objection
`
`to the draft Springdale permit.
`
`83.
`
`On March 14, 2021, EPA's review period for the draft Springdale permit closed
`
`pursuant to 33 U.S.C. § 1342(d)(2), 40 C.F.R. 123.44(b), and NPDES MOA § III.B.7. EPA did
`
`not issue a general or specific objection to the draft Springdale permit within that time period.
`
`84.
`
`After EPA's review period closes, DEQ may lawfully issue a permit without
`
`further EPA review if: (a) the proposed final permit is the same as or more stringent than the
`
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 16 of 20
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`draft permit that EPA previously reviewed; (b) EPA has not previously objected to the draft
`
`permit, and (c) significant public comments have not been made. 40 C.F.R. § 123.44G); NPDES
`
`MOA § 111.B.11.
`
`85.
`
`On December 1, 2021, DEQ reissued a final NPDES permit to Springdale. The
`
`final permit, including the phosphorus limit, was identical to the draft permit that EPA
`
`previously reviewed; EPA had not previously objected to the draft permit; and significant public
`
`comments had not been made. The final permit for Springdale was therefore lawfully issued in
`
`accordance with the CW A, EPA regulations, and the NPDES MOA.
`
`86.
`
`On December 30, 2021, 291 days after EPA's comment period on the Springdale
`
`permit had closed, EPA issued a general objection letter for the Springdale permit.
`
`87.
`
`On January 21, 2022, 313 days after EPA's comment period on the Springdale
`
`permit had closed, EPA issued a specific objection letter for the Springdale permit.
`
`88.
`
`EPA's general objection and specific objection letters for the Springdale permit
`
`were not timely issued and therefore exceed EPA's statutory authority, were issued without
`
`observation of procedure required by law, and are ultra vires.
`
`89.
`
`EPA's untimely general and specific objection letters for the Springdale permit
`
`unlawfully threaten to impose certain requirements on DEQ and assume authority over the duly
`
`issued permit.
`
`90.
`
`EPA's objection letters assert that the final permits that DEQ issued on December
`
`1, 2021, are not in fact issued permits, but that EPA considers them to be proposed permits. It is
`
`on this basis that EPA claims authority to comment and object to those prior issued permits.
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 17 of 20
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`91.
`
`EPA's objection letters assert that, ifDEQ does not modify the Springdale permit
`
`as EPA's letters demand, EPA will assume permitting responsibility for the permit, rendering the
`
`duly issued permit invalid and effectively displacing DEQ as the permitting authority.
`
`92.
`
`Any action EPA takes pursuant to those objection letters, including attempting to
`
`assume permitting authority over the Springdale permit, is unlawful and would be ultra vires.
`
`93.
`
`Pursuant to 28 U.S.C. §§ 2201 and 2202, this Court has the power to make
`
`binding adjudications of right and declare the rights of the parties in regard to EPA's untimely
`
`objection letters and unlawful assertions of authority over the Springdale permit.
`
`94.
`
`This Court also has the power to enjoin EPA from assuming authority over the
`
`Springdale permit and maintain the status quo ante.
`
`95.
`
`This Court also has authority to declare and set aside EPA's objection letters as
`
`unlawful pursuant to 5 U.S.C. §§ 702, 704, and 706. EPA's determination that the Springdale
`
`permit is "proposed" instead of final is a final agency determination that immediately harms the
`
`legal rights and responsibilities of DEQ and the regulated entities that rely on its continued and
`
`proper administration of the NPDES permit program within Arkansas.
`
`CountIV
`
`EPA's Objection to the Springdale Permit is Arbitrary and Capricious, An Abuse of
`Discretion, and is Otherwise Not in Accordance with Law
`
`96.
`
`The allegations in paragraphs 1 through 95 are hereby re-alleged and incorporated
`
`as though fully set forth herein.
`
`97.
`
`EPA's claim that the final Springdale permit issued by DEQ on December 1,
`
`2021, is a "proposed permit" is arbitrary and capricious, an abuse of discretion, and is otherwise
`
`not in accordance with law.
`
`17
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`Case 4:22-cv-00359-BSM Document 1 Filed 04/22/22 Page 18 of 20
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`98.
`
`EPA's claim that the final permit is different than the draft permit is arbitrary and
`
`capricious as the final permit is identical to the draft permit that EPA reviewed. EPA's claim is
`
`also based on an unlawfully promulgated effluent limitation.4
`
`99.
`
`EPA's claim that DEQ received "significant" public comment relies on an EPA
`
`interpretation of a term that is not defined in federal law, overrides DEQ's determination of
`
`significance as the lead permitting authority, and involves an issue that EPA declined to
`
`comment on during its congressionally established statutory review