AR Code § 8-4-203 (2020)
2020 Arkansas Code|Title 8 - Environmental Law|Chapter 4 - Arkansas Water and Air Pollution Control Act|Subchapter 2 - Water Pollution|§ 8-4-203. Permits generally — Definitions

 (a) The Division of Environmental Quality or its successor is given and charged with the power and duty to issue, continue in effect, revoke, modify, or deny permits, under such conditions as it may prescribe:  (1) To prevent, control, or abate pollution;  (2) For the discharge of sewage, industrial waste, or other wastes into the waters of the state, including the disposal of pollutants into wells; and  (3) For the installation, modification, or operation of disposal systems or any part of them.    (b)  (1)  (A) The division shall not issue, modify, renew, or transfer a National Pollutant Discharge Elimination System permit or state permit for a nonmunicipal domestic sewage treatment works without the permit applicant first:  (i) Paying the trust fund contribution fee required under subdivision (b)(4) of this section;  (ii) Submitting the assessment required by subdivision (b)(1)(D) of this section; and  (iii) Certifying that the permit applicant has complied with applicable local ordinances and regulations, including without limitation:  (a) Local zoning ordinances;  (b) Local planning authority regulations; and  (c) Local permitting requirements.      (B) As used in this section, “nonmunicipal domestic sewage treatment works” means a device or system operated by an entity other than a city, town, or county that treats, in whole or in part, waste or wastewater from humans or household operations and must continuously operate to protect human health and the environment despite a permittee's failure to maintain or operate the device or system.  (C) The following are specifically exempted from the requirements of this subsection:  (i) State or federal facilities;  (ii) Schools;  (iii) Universities and colleges;  (iv) Entities that continuously operate due to a connection with a city, town, or county; and  (v) A commercial or industrial entity that treats domestic sewage from its operations and does not accept domestic sewage from other entities or residences.    (D) Each application for the initial permit and any subsequent permit renewal, modification, or transfer for a nonmunicipal domestic sewage treatment works submitted under this section shall be accompanied by an assessment developed by a professional engineer licensed by the state that includes:  (i) A cost estimate for a third party to operate and maintain the nonmunicipal domestic sewage treatment works for five (5) years;  (ii) A list of all necessary capital expenditures, system upgrades, or significant repairs and a milestone schedule for completion within five (5) years; and  (iii) A financial plan that demonstrates to the division's satisfaction the permittee's financial ability to operate and maintain the nonmunicipal domestic sewage treatment works each year for five (5) years.    (E)  (i) Except as provided under subdivision (b)(1)(E)(ii) of this section, the division shall not issue, renew, or transfer permit coverage for nonmunicipal domestic sewage treatment works to property owners' associations or homeowners' associations after January 1, 2018.  (ii) A property owners' association or homeowners' association with permit coverage before December 31, 2017, may retain permit coverage if the property owners' association or homeowners' association complies with this section.      (2) Until January 1, 2016, the Arkansas Department of Environmental Quality or the division may reduce or waive the amount of the required financial assurance if the permit applicant can demonstrate to the Arkansas Department of Environmental Quality's or the division's satisfaction that:  (A) For a renewal permit, during the five (5) years preceding the application for a renewal permit, the nonmunicipal domestic sewage treatment works has:  (i) Maintained the nonmunicipal domestic sewage treatment works in continuous operation;  (ii) Maintained the nonmunicipal domestic sewage treatment works in substantial compliance with the existing discharge permit issued by the Arkansas Department of Environmental Quality or the division, which shall be demonstrated by submitting the following:  (a) All discharge monitoring reports;  (b) Evidence that the nonmunicipal domestic sewage treatment works has not exceeded the same permit effluent criteria in any two (2) consecutive monitoring periods during the previous three (3) years;  (c) Evidence that no more than ten percent (10%) of the nonmunicipal domestic sewage treatment works' submitted discharge monitoring reports show effluent violations; and  (d) Evidence that there have not been any administrative or judicial orders entered against the owner or operator for violations of state or federal environmental laws, rules, or regulations or permits issued by the Arkansas Department of Environmental Quality or the division;    (iii) Maintained the services of a certified wastewater treatment operator, where applicable;  (iv)  (a) Remained financially solvent, which shall be demonstrated by either:  (1) The nonmunicipal domestic sewage treatment works' federal tax returns for the five (5) years preceding the application for a renewal permit and a sworn affidavit from a corporate official or other responsible official representing the nonmunicipal domestic sewage treatment works that lists all assets and liabilities for the nonmunicipal domestic sewage treatment works; or  (2) An independent certified public accountant's report on the owner's or operator's independently reviewed financial statements.    (b) The review of financial statements under subdivision (b)(2)(A)(iv)(a)(2) of this section shall be conducted in accordance with the American Institute of Certified Public Accountants' Professional Standards, as they existed on January 1, 2013; and    (v) Operated the nonmunicipal domestic sewage treatment works to prevent the discharge of waterborne pollutants in unacceptable concentrations to the surface waters or groundwater of the state as defined in the permit or as defined in the state's water quality standards; or    (B) For a new permit:  (i) The reduction or waiver is necessary to accommodate important economic or social development in the area of the proposed nonmunicipal domestic sewage treatment works; and  (ii) The applicant has shown a history of financial responsibility and compliance with regulatory requirements.      (3) The division may withdraw a reduction or waiver granted under this subsection at any time if the permittee has a permit violation in three (3) or more consecutive discharge monitoring periods.  (4)  (A) A permittee shall pay the trust fund contribution fee determined by the division under this subdivision (b)(4) to the division.  (B)  (i) The division shall determine the required initial and annual trust fund contribution fees for each nonmunicipal domestic sewage treatment works based on each nonmunicipal domestic sewage treatment works' design treatment capacity according to the National Pollutant Discharge Elimination System permit or the state permit and existing and projected number of residential end users.  (ii)  (a) The division shall require an initial trust fund contribution fee for each construction permit for a new nonmunicipal domestic sewage treatment works or any modification to an existing nonmunicipal domestic sewage treatment works resulting in an increase in design treatment capacity according to the National Pollutant Discharge Elimination System permit or the state permit.  (b) The initial trust fund contribution fee required by the division for a new nonmunicipal domestic sewage treatment works is ten percent (10%) of the estimated cost of construction of the new nonmunicipal domestic sewage treatment works as certified by the engineer of record.  (c) The initial trust fund contribution fee required by the division for modifications to existing nonmunicipal domestic sewage treatment works is ten percent (10%) of the estimated cost of construction for the modification of the nonmunicipal domestic sewage treatment works as certified by the engineer of record.  (d) The division shall reduce the initial trust fund contribution fee if:  (1) The nonmunicipal domestic sewage treatment works is subject to an enforcement action; and  (2) The corrective actions approved by the division would require the nonmunicipal domestic sewage treatment works to make an initial trust fund contribution.    (e) The division shall not require an initial trust fund contribution fee if the design treatment capacity according to the National Pollutant Discharge Elimination System permit or the state permit is not increased.    (iii) The annual trust fund contribution fee required by the division shall not exceed one thousand dollars ($1,000) per year for no-discharge permits or five thousand dollars ($5,000) per year for discharge permits.  (iv)  (a) Except as otherwise provided in this subsection, a nonmunicipal domestic sewage treatment works may apply for reimbursement for a maximum of fifty percent (50%) of the costs for capital expenditures necessary to maintain permit compliance made to the nonmunicipal domestic sewage treatment facility in the previous five (5) years if:  (1) Funding is available and appropriated; and  (2) The division has issued that nonmunicipal domestic sewage treatment facility's third permit renewal following its initial trust fund contribution.    (b) Applications for reimbursement under this subdivision (b)(4)(B) shall include a statement certified by a professional engineer licensed by the State of Arkansas identifying the necessary capital costs expended.    (v) Reimbursements from the Nonmunicipal Domestic Sewage Treatment Works Trust Fund are subject to the following restrictions:  (a) Over the lifetime of a nonmunicipal domestic sewage treatment facility, the reimbursement to a nonmunicipal domestic sewage treatment works shall not exceed seventy-five percent (75%) of that nonmunicipal domestic sewage treatment facility's initial trust fund contribution fee;  (b) If the Director of the Division of Environmental Quality determines that a nonmunicipal domestic sewage treatment works is in a state of chronic noncompliance, that nonmunicipal domestic sewage treatment works shall not receive reimbursement from the fund; and  (c) The division shall reimburse a nonmunicipal domestic sewage treatment works based on a pro rata share of each submitted request compared to the total remaining funding available if there are insufficient moneys available in a fiscal year to make reimbursements for all submitted requests under this subsection after:  (1) Deducting the moneys required to make payments to third-party contractors hired by the division from the fund;  (2) Calculating the total remaining funding available; and  (3) Allocating the moneys available for reimbursement to each applicant for reimbursement.      (vi) The Arkansas Pollution Control and Ecology Commission may promulgate rules to implement this subsection.    (C) The trust fund contribution fee required under this subdivision (b)(4):  (i) May be collected in conjunction with any other permit fees;  (ii) Shall be paid before a permit is issued or renewed; and  (iii) Shall be deposited into the fund.    (D) If the total amount in the fund equals or exceeds two million one hundred thousand dollars ($2,100,000), additional trust fund contribution fees shall not be collected by the division until the total amount of the fund equals or is less than one million five hundred thousand dollars ($1,500,000), at which time the collection of required trust fund contribution fees shall resume.    (5)  (A) A permittee is responsible for ensuring that the required trust fund contribution fee is received by the division by the due date determined by the division.  (B) If the division does not timely receive the required trust fund contribution fees for a nonmunicipal domestic sewage treatment works, the division may initiate procedures to suspend or revoke the permit under which the nonmunicipal domestic sewage treatment works is operated.  (C) A permit applicant's or permit transfer applicant's failure to pay the required trust fund contribution fee assessed by the division under this section is:  (i) Grounds for denying the permit or the permit transfer; and  (ii) A violation of this chapter and subjects the applicant to the penalties described in § 8-4-103.      (6) Sanctions for violating this subsection may include without limitation civil penalties and suspension or revocation of a permit.  (7) The division may seek cost recovery from an owner or operator and reimbursement to the fund of any moneys expended under this section, including without limitation the institution of a civil action against the owner or operator.  (8) The division shall not directly operate or be responsible for the operation of a nonmunicipal domestic sewage treatment works.  (9)  (A) The director or the director's designee may send a signed statement to each water service provider that serves all or a portion of the service area of a nonmunicipal domestic sewage treatment works certifying that the director finds that the nonmunicipal domestic sewage treatment works:  (i) Is the subject of an enforcement action by the division;  (ii) Has not complied with the requirements of this section, including payment of the nonmunicipal domestic sewage treatment works trust fund contribution; or  (iii) Otherwise failed to comply with its permit.    (B) The division shall include a legal description of the service area for the nonmunicipal domestic sewage treatment works with the signed statement under subdivision (b)(9)(A) of this section.  (C) Upon receipt of a signed statement that includes a legal description of the service area for the nonmunicipal domestic sewage treatment works, the water service provider shall not establish new connections or initiate service to existing connections for water service in the service area of the nonmunicipal domestic sewage treatment works as defined by the legal description.  (D) If the director or the director's designated representative finds that the nonmunicipal domestic sewage treatment works is no longer subject to an enforcement action or has remedied the noncompliance that formed the basis for the signed statement under subdivision (b)(9)(A) of this section, the director or the director's designated representative shall send a signed statement of the finding to each water service provider that received the prior statement.  (E) Upon receipt of the signed statement required under subdivision (b)(9)(D) of this section, the water service provider may resume installation of new connections or resume initiation of service to existing connections for water service.      (c)  (1)  (A)  (i) All facilities that engage in land application or storage of fluids generated or utilized during exploration or production phases of oil or gas operations shall be closed in a manner that ensures protection of human health and the environment.  (ii) As used in this subsection, “land application or storage of fluids generated or utilized during exploration or production phases of oil or gas operations” means land farming through the controlled and repeated application of drilling fluids to a soil surface or the practice of receiving and storing said fluids from offsite for waste management.  (iii) Surface facilities associated with Class II injection wells are specifically excluded from the requirements of this subsection.  (iv) Land applications at the drilling or exploration site that are authorized under any general permit issued by the division are excluded from the requirements of this subsection.    (B) By October 1, 2009, each existing permitted facility regulated under this subsection shall submit to the division the following:  (i) A plan to close the permitted facility and make any site restoration deemed necessary by the division;  (ii) A detailed cost estimate to close and restore the permitted facility that meets the requirements of this subsection and is approved by the division; and  (iii) A financial mechanism that demonstrates to the division's satisfaction the permittee's financial ability to ensure adequate closure and any necessary restoration of the permitted facility in accordance with the requirements of this subsection.    (C) The division shall not issue, modify, or renew a permit for facilities regulated under this subsection without the permit applicant first demonstrating to the division's satisfaction the applicant's financial ability to ensure adequate closure and any necessary restoration of the permitted facility in accordance with the requirements of this subsection.  (D)  (i) The amount of any financial assurance required under this subsection shall be equal to or greater than the detailed cost estimate for a third party to close the permitted facility in accordance with closure plans approved by the division.  (ii) The detailed cost estimate shall be prepared by an independent professional consultant.  (iii) On or before August 15 of each year, a permittee shall submit to the division for approval a detailed cost estimate to close and restore the permitted facility in accordance with closure plans that have been approved by the division.    (E)  (i) For new permits, the applicant shall submit to the division for approval a detailed cost estimate to close and restore the facility based on the proposed operation and capacity of the facility from the date the permit is issued through the following October 1.  (ii) For renewal or modification applications, the permittee shall submit to the division for approval a detailed cost estimate to close and restore the permitted facility based on closure plans that have been approved by the division.    (F)  (i) For each permit, the financial assurance mechanism shall be renewed on October 1 of each year.  (ii) For each permit, documentation that the required financial assurance mechanism has been renewed beginning October 1 of that year shall be received by the division by September 15 of each year or the division shall initiate procedures to:  (a) Take possession of the funds guaranteed by the financial assurance mechanism; and  (b)  (1) Suspend or revoke the permit under which the facility is operated.  (2) A permit shall remain suspended until a financial assurance mechanism is provided to the division in accordance with this subsection.  (A) Obtaining insurance that specifically covers closure and restoration costs;  (B) Obtaining a letter of credit;  (C) Obtaining a bond or other surety instrument;  (D) Creating a trust fund or an escrow account;  (E) Combining any of the instruments in subdivisions (c)(2)(A)-(D) of this section; or  (F) Any other financial instrument approved by the director.        (iii) The permittee is responsible for ensuring that documentation of annual renewal is received by the division by its due date.      (2) The permittee or applicant shall demonstrate financial ability to adequately close or restore the land application or storage facility by:  (3) A financial instrument required by this subsection shall:  (A) Be posted to the benefit of the division;  (B) Provide that the financial instrument cannot be canceled without sixty (60) days’ prior written notice addressed to the division's legal division chief as evidenced by a signed, certified mail with a return receipt request; and  (C) Be reviewed by the division upon receipt of the cancellation notice to determine whether to initiate procedures to revoke or suspend the facility's permit and whether to initiate procedures to take possession of the funds guaranteed by the financial assurance mechanism.    (4) Before the division may release a financial assurance mechanism, the division shall receive a certification by a professional engineer that the permitted facility has been closed and restored in accordance with closure plans that have been approved by the division.  (5) The division is not responsible for the operation, closure, or restoration of a facility regulated under this subsection.    (d)  (1) When an application for the issuance of a new permit or a major modification of an existing permit is filed with the division, the division shall cause notice of the application to be published in a newspaper of general circulation in the county in which the proposed facility is to be located.  (2) The notice required by subdivision (d)(1) of this section shall advise that any interested person may request a public hearing on the permit application by giving the division a written request within ten (10) days of the publication of the notice.  (3)  (A) If the division determines that a hearing is necessary or desires such a hearing, the division shall schedule a public hearing.  (B)  (i) If the division schedules a public hearing, the division shall notify the applicant and all persons who have submitted comments of the date, time, and place of the public hearing.  (ii) The notice shall be provided using one (1) of the following methods based on the contact information available for the applicant or the person and the director’s discretion:  (a) First class mail; or  (b) Email.          (e)  (1)  (A) Whenever the division proposes to grant or deny any permit application, it shall cause notice of its proposed action to be published in either:  (i) A newspaper of general circulation in the county in which the facility that is the subject of the application is located; or  (ii) In the case of a statewide permit, in a newspaper of general circulation in the state.    (B) The notice shall afford any interested party thirty (30) calendar days in which to submit comments on the proposed permit action.  (C)  (i) At the conclusion of the public comment period, the division shall provide a final written permitting decision regarding the permit application.  (ii) The final written permitting decision shall be published on the division's website.  (iii) The division shall provide the applicant the final permitting decision using one (1) of the following methods based on the contact information available and the director's discretion:  (a) First class mail; or  (b) Email.    (iv) The division shall provide notice of the final permitting decision to all persons who have submitted comments using one (1) of the following methods based on the contact information available and the director's discretion:  (a) First class mail; or  (b) Email.        (2)  (A)  (i) The division's final decision shall include a response to each issue raised in any public comments received during the public comment period. The response shall manifest reasoned consideration of the issues raised by the public comments and shall be supported by appropriate legal, scientific, or practical reasons for accepting or rejecting the substance of the comment in the division's permitting decision.  (ii) For the purposes of this section, response to comments by the division should serve the roles of both developing the record for possible judicial review of an individual permitting action and as a record for the public's review of the division's technical and legal interpretations on long-range regulatory issues.  (iii) Nothing in this section, however, shall be construed as limiting the division's authority to raise all relevant issues of regulatory concern upon adjudicatory review of the commission of a particular permitting action.    (B)  (i) In the case of any discharge limit, emission limit, environmental standard, analytical method, or monitoring requirements, the record of the proposed action and the response shall include a written explanation of the rationale for the proposal, demonstrating that any technical requirements or standards are based upon generally accepted scientific knowledge and engineering practices.  (ii) For any standard or requirement that is identical to an applicable federal regulation or state rule, this demonstration may be satisfied by reference to the federal regulation or state rule. In all other cases, the division must provide its own justification with appropriate reference to the scientific and engineering literature or written studies conducted by the division.        (f)  (1) All costs of publication of notices of applications and notices of proposals to grant permits under this section shall be the responsibility of the applicant.  (2) All costs of publication of notices of proposals to deny a permit under this section shall be the responsibility of the division.  (3) Any moneys received under this subsection shall be classified as refunds to expenditures.    (g) Only those persons that submit comments on the record during the public comment period and the applicant shall have standing to appeal the decision of the division to the commission.  (h)  (1) Permits for the discharge of pollutants into the waters of the state or for the prevention of pollution of the waters of the state shall remain freely transferable if the applicant for the transfer:  (A) Notifies the director at least thirty (30) days in advance of the proposed transfer date;  (B) Submits a disclosure statement as required under § 8-1-106;  (C) Provides any replacement financial assurance required under this section; and  (D) Ensures that all past and currently due annual permit fees and the trust fund contribution fees for the nonmunicipal domestic sewage treatment works have been paid.    (2) Only the reasons stated in § 8-1-103(4), § 8-1-106(b)(1), § 8-1-106(c), and this section constitute grounds for denial of a transfer.  (3) The permit is automatically transferred to the new permittee unless the director denies the request within thirty (30) days of the receipt of the disclosure statement.    (i) In the event of voluminous comments, including without limitation a petition, the division may require the designation of a representative to accept any notices required by this section.  (j) The notice provisions of subsections (d) and (e) of this section do not apply to permit transfers or minor modifications of existing permits.  (k) This section in no way restricts local and county government entities from enacting more stringent ordinances regulating nonmunicipal domestic treatment sewage systems in Arkansas.  (l) The commission may promulgate rules to establish a permit-by-rule. A permit-by-rule is subject to the public notice requirements and procedural provisions under § 8-4-202 et seq. but is not subject to the public notice requirements and procedural provisions under this section and §§ 8-4-204 and 8-4-205.  (m)  (1)  (A)  (i) The division may issue general permits under subsection (a) of this section.  (ii) A general permit is a statewide permit for a category of facilities or sources that:  (a) Involve the same or substantially similar types of operations or activities;  (b) Discharge or release the same type of wastes or engage in the same type of disposal practices;  (c) Require the same limitations, operating conditions, or standards;  (d) Require the same or similar monitoring requirements; and  (e) In the opinion of the director, may be regulated under a general permit.      (B)  (i) Facilities or sources eligible to construct or operate under a general permit may obtain coverage by submitting a notice of intent to the division.  (ii) The director may require a person who has been granted coverage under a general permit to apply for and obtain an individual permit.      (2)  (A) A general permit is subject to the public notice requirements for statewide permits and the procedures under subsection (e) of this section.  (B) The division shall pay the costs of publication of notice of a draft permitting decision to issue a general permit.  (C) General permit coverage is not transferable unless the general permit provides for transfer.    (3)  (A)  (i) Before the submittal to public comment of a general permit that has not been previously issued, the division shall consider the economic impact and environmental benefit of the general permit and its terms and conditions upon the people of the State of Arkansas, including those entities that may apply for coverage under the general permit.  (ii) This requirement does not apply to general permits or terms or conditions that adopt the language of state laws or rules or federal statutes or regulations without substantive change.    (B) If the terms and conditions of a previously issued general permit are revised upon renewal, the economic impact and environmental benefit of only the proposed changes shall be considered.  (C) A general permit for which costs are specifically prohibited from being considered by state law or rule or federal law or regulation is exempt from the requirements of this subsection.  (D) The division may rely upon readily available information for its consideration of the economic impact and environmental benefit of the general permit and its terms and conditions.    (4)  (A) Only those persons that submit comments on the record during the public comment period shall have standing to appeal the decision of the division to the commission.  (B) The final permitting decision of the division on the general permit is subject to a hearing before the commission under §§ 8-4-205, 8-4-212, 8-4-213, 8-4-214, and the administrative procedures promulgated by the commission.    (5)  (A)  (i) When a general permit includes an expiration date later than July 1, 2012, the Arkansas Department of Environmental Quality or the division shall publish the notice of intent to renew or not renew the general permit at least three hundred sixty-five (365) days before the expiration of the general permit.  (ii) When a general permit includes an expiration date earlier than July 1, 2012, the Arkansas Department of Environmental Quality or the division shall publish the notice of intent to renew or not renew the general permit as soon as reasonably possible.    (B) The Arkansas Department of Environmental Quality or the division shall publish its final permitting decision to renew or not renew the general permit at least one hundred eighty (180) days before the expiration date of the general permit.  (C) If the general permit expires before the final decision to renew or not renew the general permit, the terms and conditions of the general permit shall remain in effect, and all persons who obtained coverage under the general permit before its expiration shall retain coverage under the general permit until there has been a final permit decision on the general permit.  (D) In the event the Arkansas Department of Environmental Quality or the division makes a decision to not renew the general permit, existing coverage under the general permit shall continue under the terms of the expired permit until a final decision is reached for an individual permit.    (6)  (A) If a general permit is appealed and the general permit expires before the final decision by the director or by the commission to renew or not renew the general permit, the terms and conditions of the general permit shall remain in effect.  (B) All persons who obtained coverage under the general permit before its expiration shall retain coverage under the general permit until there has been a final administrative decision on the general permit.  (C) The director shall not approve new coverage under an expired general permit for any facility for which a notice of intent was not filed before expiration of the general permit.      (n)  (1) When an application for the issuance of a new permit for a liquid animal waste system or a modification of an existing permit for a liquid animal waste system is filed, the division shall give notice of its proposed action in accordance with subdivision (e)(1)(A) of this section within one hundred twenty (120) days of receipt of the application.  (2)  (A) At the conclusion of the public comment period, the division shall announce in writing within sixty (60) days its final decision regarding the permit application in accordance with subdivision (e)(2)(A) of this section.  (B) For a modification that the division considers to be minor in nature, the division shall make its final decision regarding the permit application within thirty (30) days after receipt of the application.    (3) An applicant may waive in writing to the division the timeliness requirement under subdivisions (n)(1) and (2) of this section.    (o)  (1) If an application for modification of an existing state permit for a liquid animal waste management system is filed with the division, only those permit conditions subject to the modification are open for review.  (2)  (A) Except as provided in subdivision (o)(2)(B) of this section, an existing state permit for a liquid animal waste management system that is in good standing is not subject to review or third-party appeal for siting or location issues that were not raised during the applicable review or appeal period at the time of permit issuance.  (B) Subdivision (o)(2)(A) of this section does not limit the authority of the division to address or enforce a violation of permit conditions or applicable law.