Archive for Monday, March 26, 2001

Actions landing Kansas in hot water

Environmental officials warn state’s regulation of wastewater permits in jeopardy

March 26, 2001


— Kansas not only is under fire for its administration of the federal Clean Water Act, but also for its wastewater problems.

And during this legislative session, the two issues have merged.

A bill pushed by agricultural interests upset with Environmental Protection Agency directives on cleaning up Kansas streams and rivers also may affect Kansas' program for issuing wastewater permits to cities and industries, according to state officials.

The dispute is about the National Pollution Discharge Elimination System, or NPDES, a program that allows states to develop and administer wastewater permits sought by cities, industries and large animal feedlots if they meet federal Clean Water standards.

In Kansas, administration of this program already has run afoul of federal rules.

Ron Hammerschmidt, director of the environment division of the Kansas Department of Health and Environment, told lawmakers recently that a bill being considered by the Legislature that diverts from the federal Clean Water Act on rivers and streams would further jeopardize Kansas' ability to administer the wastewater permits.

That could mean the EPA would take over the wastewater permit process, and that is something neither the state nor the EPA says it wants to happen.

Cities such as Lawrence, which claim they are cooperating with KDHE, also would not want that to happen.

Legal win ignored

Recent problems with the state's system of issuing wastewater permits stem from fights over large-scale hog operations.

In one instance, KDHE granted a wastewater permit in 1998 for a hog business in Hodgeman County. A group opposed to the permit filed a lawsuit, but the suit was dismissed because state law does not allow such groups to petition for judicial review of KDHE decisions.

State law, however, runs counter to the federal law, which states citizens should be allowed to sue to challenge these permits.

Last year, the Kansas Supreme Court ruled that the federal law trumps the state and that the group should be allowed to file suit.

In its ruling, the state Supreme Court stated: "As KDHE observes, Kansas has not adopted (the federal law) as the law of this state. It is interesting that KDHE makes this argument. By admitting that there has been no compliance with (the federal law), KDHE admits that its authority to grant NPDES permits is in jeopardy and may be revoked by the EPA."

The court's opinion further states: "KDHE is contesting what the EPA clearly says should be allowed: citizen suits to challenge NPDES permits."

Carrying this opinion from the Kansas Supreme Court, Secretary of Health and Environment Clyde Graeber asked the Legislature last April to adopt a bill that essentially would put the state NPDES program in compliance with federal law.

But corporate agricultural interests killed the bill. The Kansas Farm Bureau said the measure was unnecessary.

In another instance, a group called the Kearny County Alliance opposed a hog permit that was granted by KDHE, but again because state law did not comply with federal law the group was unable to file a lawsuit for timely judicial review.

The group has asked the EPA to start proceedings to take over the program from KDHE.

"There is a defect (in the state law)," said Robert Vincze, an attorney representing the Kearny County Alliance. "Unless they fix it, it is incumbent on EPA to take over the program."

The EPA has told Vincze that it is reviewing the petition from the alliance, but has given no timeline on when it will complete the review.

Water, wastewater tied together

Fast forward one year, and lawmakers representing agricultural interests are at odds with environmentalists over a bill that the latter say will reduce water quality standards for some rivers and streams.

KDHE also opposes the bill. Part of the reason is that if it becomes law a lengthy EPA review would be required. This, according to KDHE's Hammerschmidt, "puts wastewater discharge permits and other aspects of the NPDES program affected by the changes in a state of suspense pending resolution."

Vincze said: "It seems it is getting more and more tangled."

He said that because wastewater permits and the water quality of streams and rivers are interrelated, any bill the Legislature passes that could reduce standards outlined by the Clean Water Act would be problematic.

"If that becomes the state's position, that would be fair game for EPA," he said.

EPA officials familiar with the state's NPDES program were not in the office last week and could not be reached for comment. But on water quality issues, regional EPA officials consistently have said they would rather the state comply with federal regulations than have to come in and take over the functions now performed by KDHE.

City officials agree, saying they would not want anything to jeopardize the NPDES program and the permit process for municipal wastewater treatment plants as it is now administered by KDHE.

"We're certainly satisfied with KDHE in administering the regulatory needs," said Roger Coffey, director of utilities for the city of Lawrence. "It's like family talking to family. I'd hate to see EPA to have to come in and do something."

The city's wastewater treatment plant requires a permit renewal every five years. Currently, the city is expanding the plant on East Eighth Street at a cost of $40 million.

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