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The surprise environmental strike: Arkansas Wildlife Federation uses costly citizens' lawsuits to get industry's attention.

The Arkansas Wildlife Federation made a surprise July strike on the state's business community.

The federation notified six industries and a city that lawsuits would be filed unless they stopped polluting rivers and creeks.

In consort with the non-profit Trial Lawyers for Public Justice of Washington, AWF has followed up by filing three lawsuits.

Since its 1972 adoption, the federal Clean Water Act has allowed citizens to file lawsuits if they think government agencies aren't enforcing pollution-discharge permits.

Sixty-day notices must go to permit holders and the government agencies.

Prior to this summer, only two such lawsuits had been filed in Arkansas.

One was by Clyde Temple. It forced Warren to build a state-of-the-art sewage-treatment plant costing almost $4 million.

Green Forest residents brought the other lawsuit against Tyson Foods Inc. The Springdale-based poultry giant is waiting to hear if the U.S. Supreme Court will review lower-court rulings that went against it.

The usually publicity-minded Wildlife Federation staged no news conferences and issued no releases about the warning notices. That enabled the federation to fly undetected through Arkansas' sensitive political radar network after its board decided in April, four months before activist Richard Mason became president, to go the citizens' lawsuit route.

With more than 5,500 members, AWF is the state's largest private conservation organization. It generally is perceived as a group that takes the middle ground, striving for activism without appearing radical.

Its board often includes employees of major Arkansas corporations such as Arkansas Power & Light Co. and International Paper.

Sam Ledbetter of Little Rock, AWF's attorney on the citizens' lawsuits, says the federation board barred public mention of the notifications to industries and cities until they went to court.

Even then, the three lawsuits, filed separately, were accompanied only by low-key press releases.

Warning Notices

A Freedom of Information Act request to the state Department of Pollution Control and Ecology was required to learn that the warning notices went to:

* Belgium-based Bekaert Corp. Its steel cord plan, at Interstate 40 and Lee Creek Road in Van Buren, discharges wastes into the Arkansas River.

* Medallion Foods Inc. at Newport and the city of Newport. AWF says Medallion, a maker of taco shells, is overloading the city's sewage-treatment plant, which discharges into Village Creek, a tributary of the White River.

* I.C.I. Americas Inc. of North Little Rock, a fertilizer manufacturer. Discharges from its plant, including zinc, go into an unnamed tributary of Dark Hollow Canal, which flows into the Arkansas River.

* Weyerhaeuser Co.'s wood-treatment plant at De Queen. Cancer-causing pentachlorophenol and other chemicals are alleged to be seeping from the plant into Bear Creek.

* BTL Specialty Resin Corp., which bought a facility at Malvern. Its discharges go into Big Creek, a tributary of the Saline River.

* Houston-based Baroid Corp., whose barite-mining sites in Montgomery County are said to be discharging pollutants into the South Fork of the Caddo River.

Lawsuits were filed against Bekaert, Medallion and I.C.I. Americas.

Joe Williford, PC&E's enforcement supervisor for water-discharge permits, says he find it "commendable ... that the only cases the citizen group could find to file suit on were cases where we already had taken enforcement action."

Ledbetter won't comment on contacts he has had with the industries since the notices were sent and the lawsuits filed.

Bekaert apparently had not replied by last week.

A settlement appears to have been reached with Medallion.

If a citizens' lawsuit goes to trial and the industry loses, penalties go to the federal government.

Out-of-court settlements sometimes prove lucrative to third parties. Medallion reportedly has agreed to pay attorneys' fees and give the state Game and Fish Commission almost $200,000 to match federal funds for buying wetlands.

The status of the other cases could not be determined, although no lawsuit is expected against Weyerhaeuser, which has a long-standing cleanup order against its De Queen facility.

The One To Watch

Steve Weaver, who heads PC&E's legal division, calls the I.C.I. Americas lawsuit "the one to watch."

I.C.I.'s attorney is Charles Nestrud of Little Rock, an experienced environmental lawyer for industry. Nestrud filed a motion to dismiss in U.S. District Judge Stephen M. Reasoner's court on the grounds the state took enforcement action against the fertilizer plant in April.

The issue, according to Weaver, is whether a state consent administrative order bars a citizens' lawsuit.

Ledbetter obviously believes it does not, especially if the order is defective because it had no public input.

And the Wildlife Federation's Mason charges that the $1,000 penalty I.C.I. paid as part of the consent order was a "sweetheart deal" between the company and PC&E.

Mason's statement "really hurt the enforcement people's feelings," a PC&E source says.

The department's director, Randall Mathis, says it has been PC&E's policy, since he became director in July 1989, to assess lighter penalties in exchange for violators agreeing to follow a more stringent timetable when complying with PC&E orders.

Mathis claims that is especially true if the pollutant is in runoff, as opposed to a piped discharge from a manufacturing process. Mathis says that is the case with I.C.I.

The director concedes the public has a hard time understanding how a facility can be "in compliance" with its permit when that facility continues to dump pollutants into waterways.

But the federal Environmental Protection Agency considers facilities to be in accordance with the law if they are meeting a compliance schedule.

That is the case with the six firms AWF cited.

After the Wildlife Federation's July 2 warning notices hit their targets, angry plant managers were on the telephone to Charles Martin, executive director of the Arkansas Federation of Water and Air Users Inc., which represents industry.

Martin was furious because he regarded the action as an AWF fund-raising gimmick. Martin immediately contacted the Wildlife Federation's executive director, Terry Horton.

Horton pointed out what AWF subsequently has emphasized in its news releases -- the law does not allow the Wildlife Federation to benefit financially.

The Worst Polluters

The warnings and lawsuits, Horton says, "are directed only at the state's worst water polluters as revealed by EPA and PC&E records ... We want to send a clear message to polluters that violations will cost money. It's not to bring attention to AWF but to get the message out."

Martin says he now believes AWF is sincere because "I trust Terry."

At Horton's invitation, Ledbetter attended AWF's January board meeting to explain citizens' lawsuits. Ledbetter represents the Green Forest area residents in their suit against Tyson.

Ledbetter met James M. Hecker of the Washington group Trial Lawyers for Public Justice while working on the Tyson case.

Ledbetter calls Hecker "one of the few lawyers in the country who really understands citizens' lawsuits."

Hecker now is his co-counsel on the AWF suits.

After the Wildlife Federation board decided to act, Ledbetter checked the EPA's computerized Nationwide Permit Compliance System, which includes monitoring reports on discharges. He came up with 15 to 20 major dischargers in Arkansas as potential defendants.

Then, Ledbetter examined those companies' files at PC&E.

"We were looking for the ones that weren't taking care of their problems," he says.

It was a tense time because the AWF board had told him to go after the worst offenders, even if they were contributors to the organization.

Ledbetter is a graduate of the School of Law of the University of Arkansas at Little Rock. He received a bachelor's degree from the University of Colorado at Boulder in environmental conservation because he "always wanted to be an environmental lawyer."

Ledbetter grew up in the heart of south Arkansas' oil patch. He saw the ruin pollution causes.

Ledbetter also grew up with a dose of industrial thinking. His father, Roy, is president of the Highland Industrial Park at East Camden.

The young attorney says that whether industry realizes it or not, AWF's action is beneficial because "it will put everybody on a level playing field" by wiping out the profits some firms reap by ignoring pollution-control laws while competitors spend money to comply.

"Our economy functions better when everybody has to play by the rules," he says.

Industry Resentment

There is still resentment at AFWAU that the notices came without warning. Martin predicts the citizens' lawsuits will make industries more aggressive in accepting only "realistic, technologically achievable discharge limits in their permits."

Martin expects permit limits and compliance schedules "to be negotiated to their fullest" in the future, making PC&E's job tougher.

Mathis says citizens "have every right to file" such lawsuits. The PC&E director says he is glad Congress gave citizens such power because "no agency can stay on top of all the issues."

But Mathis also believes industry was getting the message that violations would be costly before the Wildlife Federation acted.

In 1986, PC&E brought 47 enforcement actions on air, water and solid-waste permits. The numbers rose to 60 and 64 in 1987 and 1988, respectively.

In the year Mathis became director, enforcement actions soared to 167, but the number of actions dropped to 145 last year.

This year, PC&E already has brought 195 actions. It is estimated almost $1.5 million in penalties will be levied.

Despite the state's increased enforcement efforts, it was the Wildlife Federation that threw the environmental curveball with its lawsuits.

The reverberations will be felt for months.

The Slimy Saline

$4 Million Plant Result Of Clyde Temple's Successful Battle

Clyde Temple was mad about the green slime covering the Saline River in front of his Bradley County home.

The retired Army veteran was determined to do something about it.

But without scientific training, he didn't know what the smelly mess was or what was causing it.

An El Dorado-based inspector for the state Pollution Control and Ecology Department boated with him into the middle of the slime, took a look and pronounced, "It's sewage."

Temple hounded PC&E, but he could not get the inspector to return.

That was the late 1970s when PC&E officials rarely responded to citizen complaints.

Temple learned the closest major pollution source was the city of Warren's sewage-treatment plant. It discharged into Franklin Creek, a Saline River tributary.

Untreated human sewage was found in an adjacent pasture.

Warren officials denied the city was responsible, but records showed the plant routinely violated the pollution limits in its permit.

Temple kept the pressure on. PC&E's chief ecologist, John Giese, eventually performed a field survey that confirmed the Warren treatment plant was turning the lower Saline River into a cesspool.

The biggest obstacle, Temple found, was PC&E's policy against enforcing limits when a city had applied for a federal Environmental Protection Agency grant to build or upgrade its treatment plant. Warren had applied but was 58th in line.

The city had raised no money to correct the problem. Its $2-per-month residential sewer rate was among the lowest in the state.

Temple learned another tenet about modern America. It's hard to be effective without organization. So he and Charles Kinard of Crossett founded Citizens for a Clean Saline.

In 1981, the group filed Arkansas' first citizens' lawsuit under the federal Clean Water Act. Warren's only defense before U.S. District Judge Oren Harris of El Dorado was that it didn't have the money to build a new plant.

After Harris ordered the litigants to work together to obtain funding, the case went into the court's inactive file. It remained there six years.

Warren's Solution

Warren climbed to 45th on the grant list, but nothing happened until the committee told its attorney to resurrect the case.

Harris gave the citizens a summary judgment, a court order that enhanced Warren's grant eligibility. Warren voters approved a rate hike, and the city now has a state-of-the-art system that cost more than $4 million.

Benton and Sheridan also have new treatment plants along the Saline River.

"The river looks great, and they're catching fish like crazy," Temple says.

Temple grew up in Warren and moved back there after retiring from the Army.

He says that "as far as I know, I'm on good terms" with city officials.

Terry Horton, executive director of the Arkansas Wildlife Federation, says Temple is being modest. Horton calls Temple a "hometown hero."

With the problem solved, Temple has taken his crusade statewide. He served two terms as president of the Wildlife Federation and co-chairs its water committee, now speaking with engineers in their own language about matters such as nutrients, algae, fecal coliform, eutrophication -- plain ol' green slime.
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Title Annotation:includes related article
Author:Griffee, Carol
Publication:Arkansas Business
Date:Nov 25, 1991
Previous Article:A technical success: scientific, technical writing fuel 32-employee North Little Rock firm.
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