§ 8-4-203 - Permits generally.
               	 		
8-4-203.    Permits generally.
    (a)  The  Arkansas Department 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)    (i)  The  department shall not issue, modify, or renew a National Pollutant  Discharge Elimination System permit or state permit for a nonmunicipal  domestic sewage treatment works without the permit applicant first  demonstrating to the department its financial ability to cover the  estimated costs of operating and maintaining the nonmunicipal domestic  sewage treatment works for a minimum period of five (5) years.
                  (ii)  For  purposes of this section, "nonmunicipal domestic sewage treatment  works" means a device or system operated by an entity other than a city,  town, borough, county, or sewer improvement district 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  treatment works.
                  (iii)  State  or federal facilities, schools, universities, and colleges are  specifically exempted from the requirements of this section.
                  (iv)  Each  permit application for a nonmunicipal domestic sewage treatment works  submitted under this section shall be accompanied by a cost estimate for  a third party to operate and maintain the nonmunicipal domestic sewage  treatment works each year for a period of five (5) years.
            (B)    (i)  The  department shall not issue or modify a National Pollutant Discharge  Elimination System permit or a state permit for a nonmunicipal domestic  sewage treatment works that proposes to use a new technology that, in  the discretion of the department, cannot be verified to meet permit  requirements without the applicant first demonstrating its financial  ability to replace the new technology with a nonmunicipal domestic  sewage treatment works that uses technology acceptable to the  department.
                  (ii)  Each  permit application for a nonmunicipal domestic sewage treatment works  that proposes to use a new technology that in the discretion of the  department cannot be verified to meet permit requirements shall be  accompanied by a cost estimate to replace the proposed system with a  nonmunicipal domestic sewage treatment works that uses technology  acceptable to the department.
      (2)  The  applicant's financial ability to operate and maintain the nonmunicipal  domestic sewage treatment works for a period of five (5) years shall be  demonstrated to the department by:
            (A)  Obtaining insurance that specifically covers operation and maintenance costs;
            (B)  Obtaining a letter of credit;
            (C)  Obtaining a surety bond;
            (D)  Obtaining a trust fund or an escrow account; or
            (E)  Using a combination of insurance, letter of credit, surety bond, trust fund, or escrow account.
      (3)  The  department may reduce or waive the amount of the required financial  assurance if the permit applicant can demonstrate to the department'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  facility has:
                  (i)  Remained in continuous operation;
                  (ii)  Received no more than three (3) permit violations within a six-month period as set out in the permit issued by the department;
                  (iii)  Maintained the services of a certified wastewater treatment operator, where applicable;
                  (iv)  Remained financially solvent; and
                  (v)  Operated  the facility's 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, that the reduction or waiver is necessary to accommodate  important economic or social development in the area of the proposed  nonmunicipal domestic sewage treatment works facility and that the  applicant has shown a history of financial responsibility and compliance  with regulatory requirements in other relevant ventures.
      (4)  The  department has discretion to withdraw a reduction or waiver granted  under this subsection at any time in order to protect human health or  the environment.
      (5)  A financial  instrument required by this section shall be posted to the benefit of  the department and shall remain in effect for the life of the permit.
      (6)  It  is explicitly understood that the department shall not directly operate  and shall not be responsible for the operation of any nonmunicipal  domestic sewage treatment works.
(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 department 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 department the following:
                  (i)  A plan to close the permitted facility and make any site restoration deemed necessary by the department;
                  (ii)  A  detailed cost estimate to close and restore the permitted facility that  meets the requirements of this subsection and is approved by the  department; and
                  (iii)  A  financial mechanism that demonstrates to the department'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  department shall not issue, modify, or renew a permit for facilities  regulated under this subsection without the permit applicant first  demonstrating to the department'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 department.
                  (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  department for approval a detailed cost estimate to close and restore  the permitted facility in accordance with closure plans that have been  approved by the department.
            (E)    (i)  For  new permits, the applicant shall submit to the department 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  department for approval a detailed cost estimate to close and restore  the permitted facility based on closure plans that have been approved by  the department.
            (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 department by September 15 of each year or the  department 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 department in accordance with this subsection.
                  (iii)  The permittee is responsible for ensuring that documentation of annual renewal is received by the department 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:
            (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 (c)(2)(A)-(D); or
            (F)  Any other financial instrument approved by the director.
      (3)  A financial instrument required by this subsection shall:
            (A)  Be posted to the benefit of the department;
            (B)  Provide  that the financial instrument cannot be cancelled without sixty (60)  days prior written notice addressed to the department's legal division  chief as evidenced by a signed, certified mail with a return receipt  request; and
            (C)  Be reviewed  by the department 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 department may release a financial assurance mechanism, the  department 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 department.
      (5)  The department 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 department, the department  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 department a written request within ten (10) days of the  publication of the notice.
      (3)  If  the department determines that a hearing is necessary or desires such a  hearing, the department shall schedule a public hearing and shall  notify by first class mail the applicant and all persons that have  submitted comments of the date, time, and place of the public hearing.
(e)    (1)    (A)  Whenever  the department 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)  At  the conclusion of the public comment period, the department shall  announce in writing its final decision regarding the permit application.
      (2)    (A)    (i)  The  department'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 department's permitting decision.
                  (ii)  For  the purposes of this section, response to comments by the department  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 department's technical and legal  interpretations on long-range regulatory issues.
                  (iii)  Nothing  in this section, however, shall be construed as limiting the  department'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  regulation, this demonstration may be satisfied by reference to the  regulation. In all other cases, the department must provide its own  justification with appropriate reference to the scientific and  engineering literature or written studies conducted by the department.
(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 department.
      (3)  Any moneys received under subsection (f) of this section 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 department to the Arkansas Pollution Control and Ecology  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, provided the applicant for the transfer notifies the  Director of the Arkansas Department of Environmental Quality at least  thirty (30) days in advance of the proposed transfer date and submits a  disclosure statement as required by    8-1-106.
      (2)  Only those reasons set out in    8-1-106(b)(1) and (c) 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 department 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      8-4-203 --  8-4-205.