EPA NEARS PHOSPHORUS DECISION

EPA Prepares To Rule On Oklahoma's Phosphorus Limit

Sun, Dec 14, 2003

Arkansas Officials To Skip Settlement Meeting

By Scott F. Davis

The Morning News/NWAonline.net • sdavis@nwaonline.net

FAYETTEVILLE -- A pending settlement over water quality in shared rivers apparently fell apart Friday after Arkansas officials decided not to attend an upcoming meeting with officials from Oklahoma and the Environmental Protection Agency.

After waiting for more than a year for a settlement, EPA officials said Friday the agency will quickly render its decision on Oklahoma's water-quality standards.

Those proposed standards include a controversial phosphorus limit affecting at least five Northwest Arkansas cities and the poultry industry.

Tuesday's meeting date coincides with the end of the 60-day waiting period for Ed Brocksmith of Tahlequah, Okla., to sue the EPA for delays in issuing the standards. Brocksmith was active during the late 1980s and early 1990s when Oklahoma challenged Fayetteville's plans to discharge one-half of its treated wastewater into a tributary of the Illinois River.

The U.S. Supreme Court ruled in 1992 that Fayetteville can discharge treated sewage into the stream but also said upstream states can be required to meet the water-quality standards of a downstream state.

Another possible legal challenge looms. A Dec. 9 letter from Arkansas Attorney General Mike Beebe to EPA regional administrator Richard Greene challenges the way Oklahoma developed the phosphorus rule and reiterated Arkansas' concerns the rule is not based on sound science, is not attainable and does not consider the potential economic impact on cities or the poultry industry.

He claims the standard, if adopted, could have catastrophic consequences for agriculture, industry and cities in Northwest Arkansas.

Beebe wants the EPA to delay issuing standards, saying Arkansas has not seen all the documents presented by Oklahoma, despite requesting this information from the EPA.

Arkansas officials could not be reached for comment late Friday to explain why the planned Tuesday meeting in Dallas was canceled when earlier in the day it appeared a deal was still in the works.

"There is a real interest in getting something that looks like an amicable solution," said Marcus Devine, director of the Arkansas Department of Environmental Quality. "The cities may be moving forward -- to me that makes sense (for the cities)."

Oklahoma's proposed standards include a phosphorus limit of 0.037 parts per million in Oklahoma's six state-designated scenic rivers, which includes the Illinois River.

Northwest Arkansas poultry and city utility officials have been concerned about the limit, since it was first proposed about two years ago. Storm water runoff from farms and wastewater treatment plant discharges into streams are two key sources of phosphorus being targeted for reduction.

Phosphorus at high levels promotes excessive algae bloom, which causes water to appear green, threatens aquatic life and can lead to taste and odor problems in water that is drawn from downstream reservoirs, even after it is treated.

Arkansas officials, including Gov. Mike Huckabee, describe the 0.037 limit as unrealistic and unattainable. Current phosphorus levels in the Illinois River at the state line south of Siloam Springs are about 6 to 8 times higher than the proposed limit.

Oklahoma officials said Arkansas' refusal to attend the meeting and Beebe's "threat to challenge (the) standards" make it more difficult to get an agreement with the cities in Northwest Arkansas.

The mayors of the five big cities in Northwest Arkansas -- Fayetteville, Springdale, Rogers, Bentonville and Siloam Springs -- have already committed to Oklahoma's request for cleaner discharges and caps on total phosphorus levels. Like the EPA, Oklahoma officials believed a deal would be hashed out Tuesday.

"The whole goal of the meeting was to get together to come to an agreement by the end of the day," said J.D. Strong, communication director for the Oklahoma Secretary of the Environment, late Friday afternoon. "We just thought all that we had was a couple of issues to work out."

Earlier in the day, Secretary Miles Tolbert was optimistic about reaching a deal on the cities, but clear that any deal would not address issues involving the poultry industry.

Talks on poultry issues are "not preceding anything like the pace of our other discussions."

Arkansas passed three new laws last year restricting the land-application of phosphorus-laden poultry litter and requiring registration of poultry growers, as well as other measures designed to improve water quality.

Poultry companies have agreed to help fund various programs, including the transportation of poultry litter out of sensitive watersheds, pilot projects for alternative uses of litter and studies for a proposed "litter bank," said Morril Harriman, executive director of the Arkansas Poultry Federation.

Harriman said he is still waiting to find out exactly what Oklahoma wants from the poultry companies his organization represents, but he says they are trying in good faith to strike a fair and reasonable deal.

"We certainly hope that we can reach an agreement and believe that it would be much better to spend money improving water quality than on litigation costs," he said.

Fayetteville Mayor Dan Coody believed the cities were "very close" to reaching a deal with Oklahoma. Fayetteville is the only city currently required in its permit to meet the proposed discharge limit of 1 part per million in treated wastewater it discharges. The state is including in its new regulations the limit of 1 part per million in the discharge permits in sensitive watersheds.

All the cities currently discharge treated wastewater in tributaries of the Illinois River, except for Bentonville, which expects to once it completes plans for a new westside treatment plant.

The latest "draft settlement proposal" from Oklahoma offers Northwest Arkansas cities some protection from lawsuits over phosphorus levels in the Illinois River until 2012. It also includes total limits or "caps" on phosphorus that allow about 20 years of growth for the cities at the limit of 1 part per million discharge.

For Oklahoma, the deal meant cleaner water flowing into the state from Arkansas and an enforceable commitment from the cities to clean up wastewater discharges from treatment plants.

For big-city utility customers, any deal ultimately means higher sewer bills, as utilities pass along the higher cost of further treatment. Some of utilities have already anticipated the changes and have included these new measures in their rate structures.

"It's as cheap as it's going to get right now," said Tom McAlister, manager of the Rogers Water Utility, of sewer service.

McAlister called the draft deal "a good start" but cited concerns it would not provide any protection from private-party lawsuits

"It does not give us a whole lot of impetus to jump on the bandwagon," McAlister said. "What's the point unless it's going to protect us or be a permanent fix."

The cities want assurances reducing the phosphorus levels in their discharges to 1 part per million will be considered as complying with the 0.037 phosphorus rule, he said.

Rogers is already doing better than the 1 part per million level, McAlister said.

Rene Langston, manager of the Springdale Water utility, said the utility has been able to meet the 1 part per million for the past few months, but Langston said the utility cannot consistently meet this limit as required in its permit until an expansion is complete.