The Honorable Jim Milum State Representative 607 Skyline Drive Harrison, AR 72601-2309
Dear Representative Milum
You have requested an Attorney General opinion concerning certain procedures before the Arkansas Department of Environmental Quality (formerly, the Arkansas Department of Pollution Control and Ecology).
Your questions are:
Did the Arkansas Department of Environmental Quality and/or the Arkansas state legislature follow correct procedures in promulgating laws rules, and regulations concerning the water quality standards during the transitional period (1984 — 1987) of changing the previous stream classifications to "ecoregion" designations — especially with regard to the revision of the antidegradation policy and its inclusion of watershed authority? Were these procedures in compliance with the Arkansas Constitution? If so, please explain the step-by-step process by which this was accomplished. If not, please explain why not.
Did the Arkansas Department of Environmental Quality satisfy both the letter and the spirit of the law in public notifications of these proceedings? Please explain why or why not.
Response
I am unable to respond to these questions, because they are questions of fact, rather than questions of law. The Attorney General has neither the authority nor the resources to act as a fact-finder.
A response to these questions would require an extensive factual review of the record of the proceedings that were conducted before the Department of Environmental Quality and in the legislature, for the purpose of determining whether such proceedings complied with the applicable law that was in effect at that time. A factual review of this nature is not a function of the Attorney General.
I also note that if there is concern about the legality of a decision of the Department of Environmental Quality that was rendered more than ten years ago, the statute of limitations for levying a challenge to that decision has long since passed. The Department's decisions are conclusive unless appeal is taken in the manner and within the time period provided by law (30 days). A.C.A. § 8-4-213 states:
If no appeal is taken from an order, rule, regulation, or other decision of the Arkansas Pollution Control and Ecology Commission as provided in8-4-222 — 8-4-229, or if the action of the commission is affirmed on appeal, then the action of the commission in the matter shall be deemed conclusive, and the validity and reasonableness thereof shall not be questioned in any other action or proceeding.
Sincerely,
MARK PRYOR Attorney General