The Arkansas Code Revision Commission voted to change wording in Act 706 so that the amount of a corrective-action deductible is established by rule of the Arkansas Pollution Control and Ecology Commission rather than by the Division of Environmental Quality. The commission took the change after staff identified inconsistent references within the act and the Department of Energy and Environment told commissioners the commission, not the division, has rulemaking authority.

Staff told the commission that Act 706 included conflicting references: some provisions said the deductible would be set by the Pollution Control and Ecology Commission while one passage said it would be set "by rule of the division," referring to the Division of Environmental Quality. Michael McAllister, deputy chief counsel for the Department of Energy and Environment, told the commission: "It is the commission that promulgates rules, not the division." He added the department agreed with correcting the language to remove the inconsistency.

Representative Jimmy Gazzaway moved to change the word "division" to "commission" in the relevant subsection; Representative John Sheppard seconded the motion. Commissioners discussed whether the change would exceed the commission's authority but staff said correcting an erroneous reference is within the Commission's traditional authority under Arkansas Code 1-2-303. The motion carried.

The change affects language in the Petroleum Storage Tank Trust Fund provisions created or amended by Act 706; staff said the deductible language in question was newly added in that act. A memo from outside counsel for the act's sponsor recommending no change was placed in the record, but agency counsel and the commission concluded the statutory rulemaking authority rests with the Pollution Control and Ecology Commission. The supplement will reflect the corrected reference.

The commission recorded the change as appearing on page 3 of the exhibit packet (page and line references used at the meeting).