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July 19, 2011 Jim McGinty, Project Manager Halliburton Energy
Services, Inc. P.O. Box 42810 Houston, Texas 77072 AFIN: 30-00348
NPDES Permit No.: AR0049794 – Magnet Cove Dear Mr. McGinty: On June
24, 2011, I performed a routine compliance inspection of the above
referenced facility. The inspection was conducted in accordance
with the provisions of the Federal Clean Water Act, the Arkansas
Water and Air Pollution Control Act, and the regulations
promulgated thereunder. This inspection revealed the following
violations:
1. The Stormwater Pollution Prevention Plan (SWPPP) has not been
updated to meet the requirements of the new general industrial
stormwater permit. The SWPPP at the facility was dated 9/9/2003 and
was based on the old general industrial stormwater permit. This is
a violation of Part II.6. of the permit.
2. The Non-stormwater discharge certification in the SWPPP on
file was never signed. This is a violation of Part II.6. of the
permit.
3. There were pollution prevention team members listed in the
SWPPP that are no longer with the
company. This is a violation of Part II.6. of the permit.
4. The sampling tube was dirty and needed to be changed. This
could affect the sampling results. This is a violation of Part
III.B.1.a. of the permit.
The above items require your immediate attention. Please submit
a written response to these findings to the Water Division
Enforcement Branch Manager. This response should be mailed to the
address below, or e-mailed to
[email protected]
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Jim McGinty, Halliburton July 19, 2011 Page 2
NPDES Report Page 2
Sincerely,
Dawn Keller Inspector Water Division cc: Water Division
Enforcement Branch
Water Division Permits Branch
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NPDES Report Page 3
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Washington, D.C.
20460
NPDES Compliance Inspection Report
Form Approved OMB No. 2040-0003
Section A: National Data System Coding
Transaction Code
NPDES Yr/Mo/Day
Inspec. Type Inspector Fac. Type
1 N 2 5 3 A R 0 0 4 9 7 9 4 11 12 1 1 0 6 2 4 17 18 C 19 S 20 2
Remarks
A F I N 3 0 - 0 0 3 4 8 H O T S P R I N G Inspection Work
Days
Facility Evaluation Rating BI QA
-------------------------------Reserved------------------------------
67
69
70 2
71 N 72 N 73 74
75
80
Section B: Facility Data
Name and Location of Facility Inspected (For industrial users
discharging to POTW, also include POTW name and NPDES permit
number) Halliburton Energy Services - Magcobar Mine Site One Mile
NW of Magnet Cove at 2000 Darby Lane.
Entry Time/Date 10:00 a.m. on 06/24/2011
Permit Effective Date 07/01/2008
Exit Time/Date 11:45 a.m. on 06/24/2011
Permit Expiration Date 06/30/2013
Name(s) of On-Site Representative(s)/Title(s)/Phone and Fax
Number(s) Billy McAllister, Operator, 501-467-8355
Other Facility Data
Name, Address of Responsible Official/Title/Phone and Fax Number
Jim McGinty, Project Manager Halliburton Energy Services, Inc. P.O.
Box 42810 Houston, Texas 77072
Contacted
Yes No
Section C: Areas Evaluated During Inspection (S = Satisfactory,
M = Marginal, U = Unsatisfactory, N = Not Evaluated)
S Permit S
Flow Measurement M Operations & Maintenance N
Sampling
U Records/Reports S
Self-Monitoring Program N Sludge Handling/Disposal N
Pollution Prevention
M Facility Site Review N
Compliance Schedules N Pretreatment N
Multimedia
S Effluent/Receiving Waters S
Laboratory N Storm Water N
Other:
Section D: Summary of Findings/Comments (Attach additional
sheets if necessary) 1. The Stormwater Pollution Prevention Plan
(SWPPP) has not been updated to meet the requirements of the new
general industrial
stormwater permit. The SWPPP at the facility was dated 9/9/2003
and was based on the old general industrial stormwater permit. This
is a violation of Part II.6. of the permit.
2. The Non-stormwater discharge certification in the 2003 SWPPP
on file was never signed. This is a violation of Part II.6. of the
permit. 3. There were pollution prevention team members listed in
the 2003 SWPPP that are no longer with the company. This is a
violation of
Part II.6. of the permit. 4. The sampling tube was dirty and
needed to be changed. This is a violation of Part III.B.1.a. of the
permit.
Name(s) and Signature(s) of Inspector(s)
Dawn Keller/
Agency/Office/Telephone/FaxADEQ / Little Rock / 501-682-0658 /
501-682-0910
Date 06/24/2011
Signature of Reviewer
Agency/Office/Phone and Fax Numbers
Date
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NPDES Report Page 4
SECTION A: PERMIT VERIFICATION PERMIT SATISFACTORILY ADDRESSES
OBSERVATIONS S M U NA NEDETAILS: 1. CORRECT NAME AND MAILING
ADDRESS OF PERMITTEE: Y N NA NE 2. NOTIFICATION GIVEN TO EPA/STATE
OF NEW DIFFERENT OR INCREASED DISCHARGES: Y N NA NE 3. NUMBER AND
LOCATION OF DISCHARGE POINTS AS DESCRIBED IN PERMIT: Y N NA NE 4.
ALL DISCHARGES ARE PERMITTED: Y N NA NE
SECTION B: RECORDKEEPING AND REPORTING EVALUATION RECORDS AND
REPORTS MAINTAINED AS REQUIRED BY PERMIT S M U NA NEDETAILS: 1.
ANALYTICAL RESULTS CONSISTENT WITH DATA REPORTED ON DMRS: Y N NA NE
2. SAMPLING AND ANALYSES DATA ADEQUATE AND INCLUDE: S M U NA NE
a. DATES AND TIME(S) OF SAMPLING: Y N NA NE b. EXACT LOCATION(S)
OF SAMPLING: Y N NA NE c. NAME OF INDIVIDUAL PERFORMING SAMPLING: Y
N NA NE d. ANALYTICAL METHODS AND TECHNIQUES: Y N NA NE e. RESULTS
OF CALIBRATIONS: Y N NA NE f. RESULTS OF ANALYSES: Y N NA NE g.
DATES AND TIMES OF ANALYSES: Y N NA NE h. NAME OF PERSON(S)
PERFORMING ANALYSES: Y N NA NE
3. LABORATORY EQUIPMENT CALIBRATION AND MAINTENANCE RECORDS
ADEQUATE: S M U NA NE 4. PLANT RECORDS INCLUDE SCHEDULES, DATES OF
EQUIPMENT MAINTENANCE AND REPAIR: S M U NA NE 5. EFFLUENT LOADINGS
CALCULATED USING DAILY EFFLUENT FLOW AND DAILY ANALYTICAL DATA: Y N
NA NE
SECTION C: OPERATIONS AND MAINTENANCE TREATMENT FACILITY
PROPERLY OPERATED AND MAINTAINED S M U NA NEDETAILS: 1. TREATMENT
UNITS PROPERLY OPERATED: S M U NA NE 2. TREATMENT UNITS PROPERLY
MAINTAINED: Dirty sampling tube S M U NA NE 3. STANDBY POWER OR
OTHER EQUIVALENT PROVIDED: S M U NA NE 4. ADEQUATE ALARM SYSTEM FOR
POWER OR EQUIPMENT FAILURES AVAILABLE: S M U NA NE 5. ALL NEEDED
TREATMENT UNITS IN SERVICE: S M U NA NE 6. ADEQUATE NUMBER OF
QUALIFIED OPERATORS PROVIDED: S M U NA NE 7. SPARE PARTS AND
SUPPLIES INVENTORY MAINTAINED: S M U NA NE 8. OPERATION AND
MAINTENANCE MANUAL AVAILABLE: Y N NA NE 9. STANDARD OPERATING
PROCEDURES AND SCHEDULES ESTABLISHED: Y N NA NE 10. PROCEDURES FOR
EMERGENCY TREATMENT CONTROL ESTABLISHED: Y N NA NE 11. HAVE
BYPASSES/OVERFLOWS OCCURRED AT THE PLANT OR IN THE COLLECTION
SYSTEM IN THE LAST YEAR: Y N NA NE 12. IF SO, HAS THE REGULATORY
AGENCY BEEN NOTIFIED: Y N NA NE 13. HAS CORRECTIVE ACTION BEEN
TAKEN TO PREVENT ADDITIONAL BYPASSES/OVERFLOWS: Y N NA NE 14. HAVE
ANY HYDRAULIC OVERLOADS OCCURRED AT THE TREATMENT PLANT: Y N NA NE
15. IF SO, DID PERMIT VIOLATIONS OCCUR AS A RESULT: Y N NA NE
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NPDES Report Page 5
SECTION D: SAMPLING PERMITTEE SAMPLING MEETS PERMIT REQUIREMENTS
S M U NA NEDETAILS: Sampling tube was dirty 1. SAMPLES TAKEN AT
SITE(S) SPECIFIED IN PERMIT: Y N NA NE 2. LOCATIONS ADEQUATE FOR
REPRESENTATIVE SAMPLES: Y N NA NE 3. FLOW PROPORTIONED SAMPLES
OBTAINED WHEN REQUIRED BY PERMIT: Y N NA NE 4. SAMPLING AND
ANALYSES COMPLETED ON PARAMETERS SPECIFIED IN PERMIT: Y N NA NE 5.
SAMPLING AND ANALYSES PERFORMED AT FREQUENCY SPECIFIED IN PERMIT: Y
N NA NE 6. SAMPLE COLLECTION PROCEDURES ADEQUATE: Y N NA NE
a. SAMPLES REFRIGERATED DURING COMPOSITING: Y N NA NE b. PROPER
PRESERVATION TECHNIQUES USED: Y N NA NE c. CONTAINERS AND SAMPLE
HOLDING TIMES CONFORM TO 40 CFR 136: Y N NA NE
7. IF MONITORING IS PERFORMED MORE OFTEN THAN REQUIRED ARE
RESULTS REPORTED ON THE DMR: Y N NA NE
SECTION E: FLOW MEASUREMENT PERMITTEE FLOW MEASUREMENT MEETS
PERMIT REQUIREMENTS S M U NA NEDETAILS: 1. PRIMARY FLOW MEASUREMENT
DEVICE PROPERLY INSTALLED AND MAINTAINED: TYPE OF DEVICE: Y N NA NE
2. FLOW MEASURED AT EACH OUTFALL AS REQUIRED: Y N NA NE 3.
SECONDARY INSTRUMENTS (TOTALIZERS, RECORDERS, ETC.) PROPERLY
OPERATED AND MAINTAINED: Isco-mag meter Y N NA NE 4. CALIBRATION
FREQUENCY ADEQUATE: Y N NA NE 5. RECORDS MAINTAINED OF CALIBRATION
PROCEDURES: Y N NA NE 6. CALIBRATION CHECKS DONE TO ASSURE
CONTINUED COMPLIANCE: Y N NA NE 7. FLOW ENTERING DEVICE WELL
DISTRIBUTED ACROSS THE CHANNEL AND FREE OF TURBULENCE: Y N NA NE 8.
FLOW MEASUREMENT EQUIPMENT ADEQUATE TO HANDLE EXPECTED RANGE OF
FLOW RATES: Y N NA NE 9. HEAD MEASURED AT PROPER LOCATION: Y N NA
NE
SECTION F: LABORATORY PERMITTEE LABORATORY PROCEDURES MEET
PERMIT REQUIREMENTS S M U NA NEDETAILS: 1. EPA APPROVED ANALYTICAL
PROCEDURES USED (40 CFR 136.3 FOR LIQUIDS, 503.8(B) FOR SLUDGES) :
Y N NA NE 2. IF ALTERNATIVE ANALYTICAL PROCEDURES ARE USED, PROPER
APPROVAL HAS BEEN OBTAINED: Y N NA NE 3. SATISFACTORY CALIBRATION
AND MAINTENANCE OF INSTRUMENTS AND EQUIPMENT: Y N NA NE 4. QUALITY
CONTROL PROCEDURES ADEQUATE: Y N NA NE 5. DUPLICATE SAMPLES ARE
ANALYZED >10% OF THE TIME: Y N NA NE 6. SPIKED SAMPLES ARE
ANALYZED >10% OF THE TIME: Y N NA NE 7. COMMERCIAL LABORATORY
USED: Y N NA NE
a. LAB NAME: Arkansas Analytical, Inc.
b. LAB ADDRESS: 11701 Interstate 30, bldg. 1, ste. 115, Little
Rock, AR 72209
c. PARAMETERS PERFORMED: pH, Cl,SO4, Iron, Selenium, Be, Barium,
B, Cr, Nickel, Silver, Zinc, Al, Cadmium, Lead, Copper, Manganese,
TDS
8. BIOMONITORING PROCEDURES ADEQUATE: Y N NA NE a. PROPER
ORGANISMS USED: Y N NA NE b. PROPER DILUTION SERIES FOLLOWED: Y N
NA NE c. PROPER TEST METHODS AND DURATION: Y N NA NE d. RETESTS
AND/OR TRE PERFORMED AS REQUIRED: Y N NA NE
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NPDES Report Page 6
SECTION G: EFFLUENT/RECEIVING WATERS OBSERVATIONS BASED ON
VISUAL OBSERVATIONS ONLY S M U NA NEDETAILS: OUTFALL #: OIL SHEEN
GREASE TURBIDITY VISIBLE FOAM FLOATING SOLIDS COLOR OTHER
001 None None None None None Clear Grey slime present
SECTION H: SLUDGE DISPOSAL SLUDGE DISPOSAL MEETS PERMIT
REQUIREMENTS S M U NA NEDETAILS: 1. SLUDGE MANAGEMENT ADEQUATE TO
MAINTAIN EFFLUENT QUALITY: S M U NA NE 2. SLUDGE RECORDS MAINTAINED
AS REQUIRED BY 40 CFR 503: S M U NA NE 3. FOR LAND APPLIED SLUDGE,
TYPE OF LAND APPLIED TO: (E.G., FOREST, AGRICULTURAL, PUBLIC
CONTACT SITE):
SECTION I: SAMPLING INSPECTION PROCEDURES SAMPLE RESULTS WITHIN
PERMIT REQUIREMENTS S M U NA NEDETAILS: 1. SAMPLES OBTAINED THIS
INSPECTION: Y N NA NE 2. TYPE OF SAMPLE: GRAB: COMPOSITE: METHOD:
FREQUENCY:
3. SAMPLES PRESERVED: Y N NA NE 4. FLOW PROPORTIONED SAMPLES
OBTAINED: Y N NA NE 5. SAMPLE OBTAINED FROM FACILITY'S SAMPLING
DEVICE: Y N NA NE 6. SAMPLE REPRESENTATIVE OF VOLUME AND NATURE OF
DISCHARGE: Y N NA NE 7. SAMPLE SPLIT WITH PERMITTEE: Y N NA NE 8.
CHAIN-OF-CUSTODY PROCEDURES EMPLOYED: Y N NA NE 9. SAMPLES
COLLECTED IN ACCORDANCE WITH PERMIT: Y N NA NE
SECTION J: STORM WATER POLLUTION PREVENTION PLAN STORM WATER
MANAGEMENT MEETS PERMIT REQUIREMENTS S M U NA NEDETAILS: 1. SWPPP
UPDATED AS NEEDED: DATE OF LAST UPDATE: 9/9/2003 Y N NA NE 2. SITE
MAP INCLUDING ALL DISCHARGES AND SURFACE WATERS: Y N NA NE 3.
POLLUTION PREVENTION TEAM IDENTIFIED: Y N NA NE 4. POLLUTION
PREVENTION TEAM PROPERLY TRAINED: The 2003 SWPPP on file did not
contain any records of employee training
and there were no records of periodic inspections. Y N NA NE
5. LIST OF POTENTIAL POLLUTANT SOURCES: Y N NA NE 6. LIST OF
POTENTIAL SOURCES AND PAST SPILLS AND LEAKS: Y N NA NE 7. ALL
NON-STORM WATER DISCHARGES ARE AUTHORIZED: Y N NA NE 8. LIST OF
STRUCTURAL BMPS: Y N NA NE 9. LIST OF NON-STRUCTURAL BMPS: Y N NA
NE 10. BMPS PROPERLY OPERATED AND MAINTAINED: Y N NA NE 11.
INSPECTIONS CONDUCTED AS REQUIRED: Y N NA NE
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NPDES Report Page 7
FLOW CALCULATION SHEET
Not Evaluated
Date: Time: Head in Inches: Feet: Type & Size of Primary
Flow Measurement Device: Name & Model of Secondary Flow
Measurement Device: Recorded Flow at Date & Time Listed Above:
(Facility Flow Meter) Calculated Flow at Date & Time Listed
Above: (Flow is calculated using flow charts in: ISCO Open Channel
Flow Measurement Handbook-5th Edition)
% Error = Recorded Value - Calculated Value X 100 Calculated
Value
% Error = - X 100
% Error = X 100 % Error = X 100 % Error = % Comments:
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NPDES Report Page 8
DMR Calculation Check
Reporting Period: From 2011 04 01 To 2011 04 30
Year Month Day Year Month Day
Parameter Checked: pH
Loading Concentration Mass Monthly Mo. Avg. - lbs/day Minimum
Maximum
Reported Value: 7.1 7.6 Calculated Value: 7.1 7.6 Permit Value:
6 9
If calculated value does not equal reported value, explain:
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NPDES Report Page 9
Water Division NPDES Photographic Evidence Sheet
Location: Halliburton- Magnet Cove Photographer: Dawn Keller
Witness: None Photo # 1 Of 1 Date: 06/24/2011 Time: 10:38 a.m.
Description: Sampling Tube was dirty.
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EXHIBIT A
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RESPONSE TO COMMENTS FINAL PERMITTING DECISION
Response to comments received on the subject draft permit in
accordance with regulations promulgated at 40 CFR Part 124.17 are
as follows: Permit Nos.: ARR000000 Applicant: Industrial Stormwater
General Permit Prepared by: Amanda Gallagher Public Notice Date:
The draft permits were publicly noticed on April 10, 2009. Date
Prepared: June 18, 2009 The following comments have been received
on the draft permit: Correspondence from Lisa Jacobs, Delta Natural
Kraft, to Amanda Gallagher, ADEQ, dated 05/11/2009. Correspondence
from Randy Thurman, Arkansas Environmental Federation, to Steve
Drown, ADEQ, dated 05/07/2009. Correspondence from Vince Blubaugh,
GBMc and Associates, to Amanda Gallagher, ADEQ, dated 05/08/2009.
Correspondence from Garnett Wise, Safety and Environmental
Associates, to Amanda Gallagher, ADEQ, dated 05/11/2009.
Correspondence from Walter G. Wright Jr., Mitchell, Williams,
Selig, Gates, & Woodyard, to Amanda Gallagher, ADEQ, dated
05/08/2009. Correspondence from Mark Bowles, Entergy, to Amanda
Gallagher, ADEQ, dated 05/11/2009. Correspondence from John D.
Morton, Alcoa, to Amanda Gallagher, ADEQ, dated 05/11/2009.
Correspondence from Donald Watson, Watson Sawmill & Affiliated
Companies, to Amanda Gallagher, ADEQ, dated 05/04/2009.
Correspondence from Pennye Derryberry Bray, ECCI, to Mo Shafii,
ADEQ, dated 05/08/2009. Correspondence from Steven Abrams,
Environmental Services Group, to Amanda Gallagher, ADEQ, dated
05/11/2009. Correspondence from Jason Pence, ACME Brick, to Amanda
Gallagher, ADEQ, dated 05/08/2009. Correspondence from Randy
Wilkinson, Martin Marietta Materials, to Amanda Gallagher, ADEQ,
dated 05/08/2009. Correspondence from Steve Card, Albemarle, to
Amanda Gallagher, ADEQ, dated 04/30/2009. Correspondence from David
Hall, American Electric Power, to Amanda Gallagher, ADEQ, dated
05/01/2009. Correspondence from Norma James, Arkansas Analytical,
Inc, to Amanda Gallagher, ADEQ, dated 04/16/2009. Comments from Mr.
Greg Withrow with El Dorado Chemical and Mr. Jim Phillips with
Deltic Timber Corporation were not considered since they were
received after the close of the comment period for the permit
public notice.
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1
The following is a summary of the comments received during the
public notice period. Some portions of the permit have been revised
and move around. The section of the permit referred to the issues
refer to the sections in the draft permit. ISSUE #1: Has any
economic impact / environmental benefit analysis been performed?
RESPONSE #1:
Reg. 8.812 requires an economic impact and environmental benefit
analysis be prepared when new regulations or changes in regulations
are being considered by the Commission. The Industrial Stormwater
General Permit (IGP) is not a regulation. 40 CFR 122.28 (a)(2)
allows for a general permit to regulate stormwater discharges.
Therefore, an economic impact and environmental benefit analysis is
not required and was not performed for the Industrial Stormwater
General Permit.
ISSUE #2: A commenter questioned why do certain CFR Industries
only have to monitor annually per Part 3.1 as compared to other CFR
Industries listed in Section 1.5 of Part 1, which have to monitor
semi-annually per Part 3.3? RESPONSE #2: Some sectors listed in
Part 1.5 have Effluent Limitations Guidelines (40 CFR 400 Series)
regulating stormwater discharges. The Department chose to include
certain industries that have stormwater-related Effluent
Limitations Guidelines (ELGs) in the IGP (Part 1.6.3) in lieu of
those industries having to obtain an individual NPDES discharge
permit for those ELGs. Consistent with minimum monitoring
requirements for NPDES permit limits established at 40 CFR
122.44(i), monitoring for ELG’s must be conducted at least once
each year for the duration of permit coverage. The Department felt
that annual sampling is adequate to enforce these permit
limitations. The annual monitoring requirements are in-line with
the EPA 2008 Multi-Sector General Permit (MSGP). Also, outfalls
that are subject to the ELGs are not eligible for a reduction in
monitoring frequency under Part 3.8.2 or for use of similar
outfalls in Part 3.7.1. ISSUE #3: Several commenters requested to
have 180 days from the effective date of the permit to submit the
renewal Notice of Intent package and to update the Stormwater
Pollution Prevention Plan. RESPONSE #3: The Department agrees. The
timeframe allowed in the draft permit to submit a renewal Notice of
Intent and to update the SWPPP has been changed to 180 days from
the effective date of the permit. ISSUE #4: Many commenters believe
the submission of the detailed site map (subsequently becoming
public information) as described in Part 4.6.4 could potentially
represent a security risk. The EPA 2008 MSGP does not require
submission of the site map for existing facilities. The provision
to submit the site map should be removed from the “Other Required
Actions”.
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2
RESPONSE #4: The Department does not agree. The Department has
requested a site map to ensure minimum BMP’s are in place and to
provide a quick glimpse into a facility’s Stormwater program. If a
facility feels the inclusion of certain information that has been
submitted to the Department is a security risk or is proprietary,
the facility may request in writing to have the information deemed
confidential in accordance with Reg. 6.105. ISSUE #5: Why have the
monitoring periods been increased to twice per calendar year? This
should only apply to sites that have past sampling issues or
discharges to areas that have in-stream water quality issues. The
added cost and time required for the extra sampling punishes sites
that are meeting current guidelines. Not all sites will be issued
sampling waivers. RESPONSE #5: The annual sampling frequency in the
2004 IGP did not provide representative data for all seasons within
the year. Bi-annual sampling will provide facility’s with better
measure of the effectiveness of their SWPPP and BMP’s and provide
the Department with seasonal data for all industrial types that can
be used at the next permit renewal to adjust the monitoring
requirements and parameter benchmark values as necessary. This is
less stringent than the EPA 2008 MSGP that requires quarterly
sampling. If a facility believes that they should be exempted from
the monitoring requirements, they may submit past sampling results
and a request to have the sampling requirements waived. The intent
of the permit is not to put any extra burden on permittees but to
protect the waters of the state. ISSUE #6: Several commenters
provided the following regarding sample waivers in Part 3.8.2: a.
The sampling waiver procedure in Part 3.8.2 sounds subjective. It
should state that if your last 4
sampling results were below benchmark values you will be granted
a waiver upon request. b. Some new benchmark values have been added
to some sectors in Part 3.3. Will these sectors be
required to sample for the new requirements, or can they be
granted a waiver per Part 3.8.2 based on past sampling results
which may not include all new parameters?
c. Part 3.8.2 states that a facility that conducts a significant
process change must continue monitoring
and may not use previous monitoring to demonstrate consistent
attainment. Please define significant. RESPONSE #6: a. Part 3.8.2
provides sample waivers for a variety of situations (i.e. waivers
for monitoring under the
renewal permit, for facilities with existing data, and for
additional characteristics that may not apply). The sample waivers
provide the Department the ability to prevent unnecessary
monitoring when justification is provided while still protecting
the Waters of the State. The waivers will be implemented as
directed in the permit.
b. Sample waivers can be provided on a parameter by parameter
basis. Existing facilities can only
request a waiver for those parameters that were monitored under
the previous permit.
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3
c. A significant process change is one that would have the
potential to change the characteristics of the stormwater leaving
the site.
ISSUE #7: Why are permittees required to keep records for 5
years in accordance to Part 3.12 when the majority of the CWA
regulations require records be retained for 3 years plus current?
RESPONSE #7: After reviewing the 2004 IGP and the 2008 EPA MSGP,
the Department has made the decision to maintain the requirements
contained in the 2004 IGP. The permit has been changed back to say
that records must be maintained for three years after permit
termination. ISSUE #8: a. Why does ADEQ need an annual report (Part
3.12.3.b) if the permittee is meeting all benchmarks and
guidelines? All data is included in DMR's. Sites that are having
problems should be identified by ADEQ and extra information could
be requested on a case by case basis. An annual comprehensive site
compliance evaluation should include and address the information
required in the annual report and is submitted with discharge
monitoring reports in lieu of adding another report.
b. Does the Department intend to add additional staff to review
and evaluate the additional data? What
provisions has the Department made to address the new work load
(estimated at about three to five times the current data load)?
RESPONSE #8: a. Parameter Benchmark Monitoring is only one
aspect of permit compliance. The annual report
provides the Department means to review what facilities are
doing with their stormwater program and to ensure compliance with
other portions of the permit in a concise manner (i.e. BMP). All
facilities will provide a summary of the inspections and site
compliance evaluation including any findings and actions resulting
from the inspections performed during the year. Those facilities
not meeting parameter benchmark values will also provide additional
information regarding the corrective action plan for the
exceedance. The site compliance evaluation does not cover all
aspects of the annual report requirements. The submission of an
annual report is consistent with the EPA 2008 MSGP. The permit will
remain unchanged.
b. The Department acknowledges the comment but believes staff is
in place to handle the current and future workload.
ISSUE #9: Why are the site inspection requirements in Part
4.6.6.6 increased to four times per year? What regulatory
requirements support this request? The sites currently conduct a
comprehensive site inspection at least once per year (Part 4.6.9).
This should continue to be the minimum. If consistent problems are
found during this inspection, the SWPPP and inspection frequency
should be updated as needed.
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4
RESPONSE #9: Annual inspections are not sufficient. Significant
changes can take place at a facility over a short amount of time in
addition to seasonal changes that may affect stormwater discharges
from the facility. The quarterly site inspections are consistent
with the EPA 2008 MSGP. ISSUE #10: The requirement to certify the
visual site inspections in Part 4.6.6.6 is excessive and
unnecessary since certifications are required for the Annual Report
(Part 3.12.3.b), the SWPPP (Part 4.6.10), and the Comprehensive
Site Compliance Evaluation (Part 4.6.9). RESPONSE #10: The
Department agrees. The certification requirement has been removed
from the permit. ISSUE #11: Several commenters requested
clarification on the required number of dry and wet seasonal site
inspections in Part 4.6.6.6. The language in the permit is unclear
as to what constitutes four visual inspections, one dry season and
three wet season inspections or is one dry season inspection
required in addition to four wet season inspections. Some felt that
it is impracticable and inappropriate to perform such inspections
with extensive recordkeeping and site evaluation activities in Part
4.6.6 during a rain event. Others requested to have the dry season
inspection to be performed anytime of the year, not just during
July, August, and September since those months are not always dry.
RESPONSE #11: Part 4.6.10.1 (previously Part 4.6.6.6 in draft
permit) has been revised to clarify the requirements for visual
site inspections in general, as well as to allow that only one
inspection be performed when stormwater is being discharged, and to
allow that the inspection for non-stormwater discharges can take
place during a dry period anytime of the year. ISSUE #12: “General
Permits" are often characterized as setting a "baseline" for all
permits in an environmental media category (i.e. "stormwater"),
with individual permits required in that category when compliance
issues or environmental impacts occur. As such, general permits
should be considered a regulation rather than an ordinary
individual permit. What measures has ADEQ undertaken to assure
adequate consideration has been given to appropriate public
comment? Since this "General" permit has the effect of Regulation,
is this regulation more or less stringent than the requirements of
the Clean Water Act? RESPONSE #12:
The IGP is not a regulation. 40 CFR 122.28 (a)(2) allows for a
general permit to regulate stormwater discharges. The IGP was
public noticed and comments resulting from the public notice have
been responded to in accordance with procedures contained in the
Arkansas Water and Air Pollution Control Act (Ark. Code Ann.
§8-4-101 et seq.), APCEC Regulation No. 8 and 40 CFR 124.10 (which
has been adopted by APCEC Regulation No. 6).
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5
ISSUE #13: The SWPPP is a working document that will be revised
as changes occur at the site. While a majority of the SWPPP can be
completed 30 days prior to commencing activities at a site, certain
portions may not be finalized since there are many potential
changes that will occur at a new facility. The permit should
require that dischargers develop and implement the SWPPP prior to
discharging at the facility. It was requested that the language
requiring a new discharger to submit the SWPPP along with a Notice
of Intent at least 30 days prior to commencement of stormwater
discharges in Part 2.2 is changed to require that the SWPPP is
developed and available for review onsite at least two weeks prior
to commence of industrial activities. RESPONSE #13: The Department
agrees in part. The Department understands that the SWPPP is a
living document and changes continuously as stated in Part 4 of the
IGP. However, a SWPPP is required to be developed prior to
obtaining the IGP. Submittal of the SWPPP with an NOI will ensure
that the minimum requirements of the IGP are met prior to granting
permit coverage. Language will be added to Part 2.2 to clarify that
the SWPPP is a living document and the Department understands that
some portions of the SWPPP may not be finalized at time the NOI is
filed and will be continually updated as needed after permit
authorization. ISSUE #14: a. The draft IGP now requires all
facilities to monitor for Chemical Oxygen Demand (COD) in Part
3.3.
In many sectors, organic matter is not an issue. COD testing
should not be required where it is redundant since this an
unjustified burden on industry.
b. It is unreasonable to include the effluent characteristic “To
Be Determined” in a general permit.
Permittees should not be subject to such uncertainty in a
permit. RESPONSE #14: a. Chemical Oxygen Demand (COD) is the most
representative measure of oxygen demand for
stormwater from varying types of industry. COD, pH, Total
Suspended Solids (TSS), and Oil and Grease are most common
parameters that can be found in most industrial facilities. The
Department believes that by requiring all facilities to monitor for
these four common parameters, it will be a good indication of
overall quality of stormwater leaving the site. The Department
realizes that some of these parameters may not be present or be a
problem for some industries. Facilities may request monitoring
wavier for any parameters once the results are below bench mark
values for four consecutive monitoring periods.
b. The Department acknowledges the comment. However, the “To Be
Determined” effluent
characteristic is not contained in the public noticed draft IGP.
ISSUE #15: When a permittee files a Notice of Intent for a general
permit they are agreeing to the terms of that permit. Part 3.4
should not be included in a general permit since a permittee will
have to agree to requirements prior to being informed of them.
There appears to be no other General Permits currently written to
give ADEQ the authority to arbitrarily require additional
monitoring requirements after obtaining coverage under the
permit.
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It has been suggested that the language should be replaced with
language that allows ADEQ to require the necessity of alternative
permits if permit compliance or standards cannot be obtained or the
language remains, there should be a well-defined process for the
permittee to appeal the decision if they can provide appropriate
rational. RESPONSE #15: In accordance with 40 CFR Parts 122.62
(a)(2) and 124.5, coverage under the IGP may be reopened to require
additional conditions when new information is available that actual
or potential exceedance of State water quality criteria and/or
narrative criteria are determined to be the result of the
permittee’s discharge(s) to a relevant water body or a Total
Maximum Daily Load (TMDL) is established or revised for the water
body that was not available at the time of the permit issuance that
would have justified the application of different permit conditions
at the time of permit issuance. The EPA 2008 MSGP also contains a
similar condition. The Department will confer with permittees prior
to the inclusion of any additional requirements or requiring an
application for an individual permit. ISSUE #16: The requirement
for toxicity testing in Part 5.2 should be based on specific
criteria and not a case-by-case basis. Putting toxicity testing
into a stormwater program is loaded with difficulties. How will the
dilution percentages be set? How often will toxic material have the
opportunity to get to a receiving stream if it is only from runoff?
What portion of the receiving will be impacted by occasional
stormwater input? It would seem like this would be better handled
with an individual rather than a general permit where it could be
directed at a source that is causing a specific problem. If
toxicity testing is to be within the IGP, the situations that may
trigger toxicity testing should be well defined in the permit.
RESPONSE #16: The Department does not agree. Toxicity testing was
introduced in the 1998 general permit and has been continued
through the 2004 IGP and now the 2009 IGP for facilities that were
unable to fulfill the passing requirements as well as for new
facilities that the Director has deemed to warrant testing based on
available monitoring data. Toxicity testing is a valid tool in
determining if a facility has problems with pollutants discharging
from their property. The toxicity language will remain in the
permit. Part 5.2 specifies that samples shall be tested at 100
percent strength. Toxic material entering the receiving stream and
what part of the receiving stream would be affected is site and
case specific. A facility may always apply for or may be required
by the Director to obtain an individual permit. ISSUE #17: Several
commenters found the following inconsistencies in the permit. a.
Part 1.5 - There are 29 Sectors (Sector A-AD1) listed in the table
in this section instead of 6 as stated
in the paragraph above the table. In addition, Sector G is
identified in the permit as Metal Mining (Ore Mining and Dressing)
and Sector AD1 is “Non-Classified Facilities”. The language in the
same paragraph should be changed to be consistent with the table of
sectors.
b. Part 1.6.2 – Discharges designated by ADEQ as needing a
stormwater permit as provided in Sector G.
The language should be changed to reference Sector AD1.
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c. Part 3.7.2 (e) – Records and Reporting. The permit states, “
For each monitoring event, the permittee shall record and report
the date and duration in hours of the storm event sampled; rainfall
measurements or estimates (in inches) of the storm event which
generated the stormwater runoff; the duration of the event sampled
and the end of the previous measurable (greater than 0.1 inch
rainfall) storm event…….”. The definition of measurable storm event
in Part 3.7.2.b does not contain an actual amount (0.1 inches). Is
a measurable storm event one that is greater than 0.1 inch or
simply any storm event that produces a discharge from the facility
as described in Part 3.7.2.b?
d. Draft Fact Sheet: Page 1, bullet point #10 should be revised
to replace the "May-October and
November-April" monitoring period reference with January-June
and July-December. e. The draft IGP requires permittees to submit a
complete and accurate Notice of Intent (NOI) and a
copy of the SWPPP to obtain authorization. This appears to be in
conflict with Part 2.2 which indicates that submittal of the SWPPP
is only required for new facilities. The language in 2.1.c. should
be revised to be congruent with 2.2.
RESPONSE #17: The Department agrees. All inconsistencies have
been corrected. ISSUE #18: It has been requested that the language
in Part 3.7.1 (Similar Outfalls) requiring submission of the
“substantially similar” documentation to the ADEQ be removed
because it is burdensome for the facility. The language in the
permit should be changed to state that “the documentation must be
maintained in the SWPPP and recordkeeping files and made available
to the ADEQ for review upon request”. RESPONSE #18: The
determination that outfalls are similar is usually made prior to
obtaining permit coverage. Submittal of the justification of
similar outfalls has been removed from the permit. The NOI has been
revised to include a section that allows the permittee to indicate
similar outfalls. ISSUE #19: Part 3.7.1 (Similar Outfalls)
indicates that each outfall must be sampled unless an outfall has
been determined to be similar. The documentation of similar
outfalls is to be submitted with the Discharge Monitoring Reports
which are due following the first year of sampling. The timing is
such that a year of sampling will take place before being given
approval by ADEQ concerning similar outfalls. Does this mean that a
facility must sample all outfalls during the first year? RESPONSE
#19: The facility does not have to sample all similar outfalls the
first year. The determination that outfalls are similar is usually
made prior to obtaining permit coverage. Per Response #18, the
language requiring submittal of justification for similar outfalls
has been removed from the permit. The NOI has been revised to
include a section that allows the permittee to indicate similar
outfalls. ISSUE #20: Part 3.7.1.a lists a requirement to be
considered as “Location of each of the identical outfalls”. No two
outfalls will be identical. The word identical should be replaced
with similar.
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RESPONSE #20: The Department agrees. The permit has been
changed. ISSUE #21: Part 3.7.1.e should be removed since most
facilities subject to the permit are not qualified to determine the
runoff coefficient and it adds no value to the assessment. RESPONSE
#21: The Department agrees. The runoff coefficient requirement has
been removed. ISSUE #22: The last paragraph in Part 3.7.1 does not
appear to be complete. The first sentence of the paragraph ends in
“the facility” which doesn’t appear to be attached to anything else
in the paragraph. RESPONSE #22: The Department agrees. The phrase
“the facility” has been removed from Part 3.7.1. ISSUE #23: The
draft permit should clarify that stormwater discharges that consist
in part of discharges that are regulated by another NPDES permit at
the facility are covered by the definition of “stormwater
associated with industrial activity” and are covered by the permit.
The stormwater permit certification requirements set forth at 40
C.F.R. §122.26(c)(1)(C) do not prohibit the discharge of
non-stormwater through stormwater conveyances if such
non-stormwater discharges are covered by an NPDES permit. Likewise,
the general permit regulations at 40 C.F.R. §122.28 do not require
the isolation of the discharge from an NPDES permitted source from
a stormwater discharge. Accordingly, the general permit should
specify that a stormwater discharge that is partly composed of a
discharge regulated by another NPDES permit at a facility is
eligible for coverage under the permit. RESPONSE #23: Based on
ADEQ’s interpretation of this comment, ADEQ agrees that 40 C.F.R.
§122.26(c)(1)(C) does not prohibit the discharge of non-storm water
(i.e. non-contact cooling water) through stormwater conveyances, if
such non-stormwater discharges are covered by another NPDES permit.
However, Part 3.6 is referring to sampling of stormwater. Part 3.6
stated that sampling of stormwater must be taken before
non-stormwater (i.e. non-contact cooling water) is mixing with
stormwater. Additionally, 40 CFR 122.26(a) refers to discharges
composed entirely of stormwater which no mixing of non-stormwater
is allowed. 40 CFR 122.28 outline requirements for issuance of
general permits which do not refer to the isolation of the
discharge from an NPDES permitted source from a stormwater
discharge. Therefore, any stormwater discharges that are mixing
with non-stormwater other than those sources identified in Part 1.7
must cover under an individual NPDES permit. ISSUE #24: The EPA
2008 MSGP does not require the monitoring or measurement of flow
from stormwater runoff. An estimate of the total volume discharged
during the storm event sampled is a more reasonable approach
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than an actual flow measurement. It was requested that
measurement of flow be removed from the list of Parameter Benchmark
Monitoring requirements in Part 3.3. It was also suggested that
only the estimated volume of the stormwater discharged sampled is
required for reporting purposes. RESPONSE #24: The Department
agrees. Flow has been removed from the parameter benchmark
monitoring table. Facilities must provide an estimated volume of
stormwater as required in the previous permit. ISSUE #25: It has
been requested that the language from the 2004 IGP be used in Part
1.7 j., so that the 2009 IGP will
read: “j. uncontaminated air conditioning or compressor, and
other uncontaminated condensate resulting
from the condensing of atmospheric moisture onto cool or cold
surfaces (such as the discharge of thawed condensate from the
surface of liquid nitrogen tanks stored outdoors) where no
detergents or other cleaners are used;”
RESPONSE #25: The Department agrees. The suggested language has
been incorporated into Part 1.7.j of the permit. ISSUE #26: Part
1.7 of the draft permit specifies that certain types of dewatering
activities are allowable under the permit so long as the activity
is filtered. What is considered filtration? This item needs
additional clarification. RESPONSE #26: The permit has been revised
to offer further clarification on filtration and to be consistent
with the Construction Stormwater General Permit ARR150000. The
following note has been added to Part 1.7.l, m, and n:
“There shall be no turbid discharges to surface waters of the
state resulting from dewatering activities. If trench or ground
waters contain sediment, it must pass through a sediment settling
pond or other equally effective sediment control device, prior to
being discharged. Alternatively, sediment may be removed by
settling in place or by dewatering into a sump pit, filter bag, or
comparable practice. Ground water dewatering which does not contain
sediment or other pollutants is not required to be treated prior to
discharge. However, care must be taken when discharging ground
water to ensure that it does not become pollutant-laden by
traversing over disturbed soils or other pollutant sources.”
ISSUE #27: What is the foundation and justification for sampling
for Total Iron in Sector E2 and for Nitrate plus Nitrite Nitrogen
in sector J1? This adds additional cost and financial burden on
businesses covered under this Sector. RESPONSE #27: The additional
parameters assigned to specific industrial sectors are based on the
EPA 2008 MSGP.
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ISSUE #28: The benchmark parameters found in Part 3.3 in most
cases, are very low without appropriate justification. One such
example is magnesium which at 0.0636 mg/L is in most cases well
below normal background levels in streams in Arkansas. If the
justification for the benchmark is nothing more than the method
detection limit times a factor of 3.18, the benchmark should be
removed from consideration. RESPONSE #28: The parameter benchmark
values have been continued from the previous permit for the
majority of the effluent characteristics. The parameter benchmark
value for magnesium is consistent with the EPA 2008 MSGP and
remains unchanged. If a facility feels that a different benchmark
value is more appropriate for their facility, the option is
available per Part 3.10 of the permit to develop an alternative to
parameter benchmark values. ISSUE #29: Part 3.3 lists the parameter
benchmark monitoring requirements. The benchmark parameter for
aluminum is listed as 0.75 mg/L. In other states, including Texas,
the benchmark value for aluminum is 1.20 mg/L. If the Department
does not eliminate the benchmark monitoring requirements, it has
been requested that the benchmark value for aluminum be increased
to 1.20 mg/L. RESPONSE #29: The Department acknowledges the
comment. The parameter benchmark value for Aluminum is consistent
with the EPA 2008 MSGP. Without a proper study, the Department
cannot determine if the parameter benchmark value for Aluminum for
the State of Texas is appropriate. Until such time as a proper
evaluation has been performed, the parameter benchmark value for
Aluminum will remain unchanged. If a facility feels that a
different benchmark value is more appropriate for their facility,
the option is available per Part 3.10 of the permit to develop an
alternative to parameter benchmark values. ISSUE #31: It should
also be noted that the benchmark value for arsenic for Sector K1 is
0.15 mg/L and 0.16854 mg/L for other Sectors without an explanation
for the difference. It should also be noted that a superscript is
associated with the ammonia for Sector S1 that is not referenced
elsewhere. RESPONSE #30: The 0.15 mg/l value in Sector K1 is a
mistake. It should be 0.16854. The permit has been corrected for
both the arsenic value in Sector K1 and the subscript in Sector S1.
ISSUE #31: Pennsylvania conducted a study of the monitoring
requirements in its general permit for stormwater associated with
industrial activity. The report recommended that some parameters
commonly monitoring for in stormwater discharges, such as BOD5, pH,
and oil and grease, should be eliminated from certain industrial
categories because they are not routinely present. It has been
suggested for ADEQ to evaluate the parameter benchmark values and
their appropriateness for use in stormwater permitting in the State
of Arkansas.
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RESPONSE #31: The Department does not have significant
information on all types of industrial sectors to be able to
determine what effluent characteristics should be applied to those
sectors for the state of Arkansas. The proposed IGP will allow the
Department to gather data for all types of industrial sectors for
multiple points throughout the year. With this additional
information the Department can begin correlating the data to have
the ability to adjust monitoring requirements in future permits.
ISSUE #32: ADEQ should carefully consider the number of decimal
points listed in a benchmark value in Part 3.9. For some
parameters, the use of 4 or more decimal points means a discharger
would need to use a costly test method to determine that level of
accuracy – if it can be achieved at all. RESPONSE #32: The
Department agrees. The Parameter Benchmark Values have been
evaluated for the number of decimal places. The Arsenic, Lead,
Selenium, and Zinc have been adjusted. ISSUE #33: The proposed
Benchmark value for iron is 1 mg/l. Iron is ubiquitous in Arkansas
and is prevalent in Arkansas soils. Iron concentrations in excess
of 1 mg/l occur in waters that are not exposed to industrial
activity. Due to the ubiquitous nature of iron and given that no
water quality standard for iron has been established by EPA or
ADEQ, it has been requested that iron be removed from the list of
Benchmark parameters. RESPONSE #33: The parameter benchmark value
for iron is consistent with the EPA 2008 MSGP and remains
unchanged. If a facility feels that a different benchmark value is
more appropriate for their facility, the option is available per
Part 3.10 of the permit to develop an alternative to parameter
benchmark values. Additionally with the information that the
Department is proposing to gather through the stormwater
monitoring, the Department may in the future be able to eliminate
or change parameters to adequately reflect the conditions of water
within the state. ISSUE #34: Part 3.12.2 requires that the exact
place of the sample be documented; does this mean that a survey is
required? Does the location of the outfall as shown on the Site Map
suffice? If not what is required to comply? RESPONSE #34: A survey
is not required. The exact location could be a description of the
sample point in relation to a particular outfall. If sampling is
performed at the Outfall 001, then the exact place would be Outfall
001 as shown on the facility’s site map and coordinates provided in
the NOI.
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ISSUE #35: Part 4.6.2 discusses the requirements of the SWPPP
associated with the pollution prevention team. Specific individual
or individuals are required to be listed in the SWPPP per Part
4.6.2. It has been requested that the “term or position within the
facility organization” be added to this paragraph. RESPONSE #35:
The Department agrees in part. The permit has been changed to add
“or position within the facility organization”. However, a
statement has also been added that states that common position
names may not be used (i.e. secretary, operator, etc). In that
instance, a more specific position name must be provided or the
specific name of the individual. ISSUE #36: It has been requested
the following be removed from the site map requirements in Part
4.6.4:
• Location of all receiving waters in the immediate vicinity of
the facility; • Indicating if any of the waters are impaired and,
if so, whether the waters have TMDLs established
for them; • Indicating if you are treating one or more outfalls
as “similar”; • Locations and sources of run-on to your facility
from adjacent property that contains significant
quantities of pollutants. RESPONSE #36: The Department agrees in
part. Indicating if any of the waters are impaired and, if so,
whether the waters have TMDLs established for them is discussed in
depth in the SWPPP and should not be required on the site map. This
requirement has been removed. However, the Department feels that
including the location of all receiving waters in the immediate
vicinity of the facility, similar outfalls, and locations and
sources of run-on to your facility from adjacent property that
contains significant quantities of pollutants are necessary. These
requirements will remain as proposed. ISSUE #37: Part 4.6.6.7
includes the requirement that the "employees who may cause, detect,
or respond to a spill or leak must be trained in these procedures.”
The requirement is overly broad and would, by definition, include
nearly everyone at an industrial facility. Is that really what is
intended? RESPONSE #37: This language is consistent with the EPA
2008 MSGP. It is up to the facility to identify the appropriate
personnel. ISSUE #38: A commenter suggested adding language to Part
4.6.6.7 that allows training records to be accessible since records
are often maintained and updated in a central database.
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RESPONSE #38: The Department agrees. The permit has been amended
to state that training records that are tracked electronically do
not need to be maintained with the permit, but must be accessible
upon request. ISSUE #39: The last sentence of Part 4.3 discusses
visual monitoring that identifies the discharge or potential
discharge of a significant amount of any pollutant. In most
instances, it is impossible to determine the discharge of pollutant
amounts from visual monitoring. The term significant amount is not
defined and should be clarified or this requirement should be
removed from the permit. RESPONSE #39: The last sentence that
contained the word significant has been removed. The permit does
not require a facility to perform visual monitoring. ISSUE #40:
Several commenters provided the following regarding Part 4.4. a.
Other Pollution Control Plans made part of the SWPPP should not be
enforceable under this permit.
Other pollution control plans are already enforceable under
other environmental regulations, some of which are due to programs
administered by state and/or federal agencies other than ADEQ.
b. It has also been requested that this condition recognize the
possibility of certain pollution control
plans may be subject to Homeland Security Agency confidentiality
requirements or other legitimate business confidentiality purposes
recognized in both federal and state environmental law and
regulations. The following wording should be added to the end of
the second sentence:
“, subject to availability restrictions imposed by Homeland
Security Administration requirements or other security requirements
imposed upon the permittee, or confidential business information
exclusions in federal or state law and regulations.”
c. Only those portions of these other pollution control plans
that are directly related to the SWPPP
should be made available. It is more likely that the SWPPP will
be incorporated into comprehensive release reporting plans that
incorporate the release reporting of the various environmental
media laws (Clean Air Act, Clean Water Act, RCRA, TSCA, SDWA, and
so forth), which require the development of information not related
to storm water discharges. These sections of an overall plan should
not be covered by a general storm water permit.
RESPONSE #40 a. If the portion of the plan that has been
incorporated into the SWPPP is related to stormwater and not
governed by another program or agency, the section will become
enforceable by the Department. The language has been revised as
follows: “Plans or portions of plans incorporated into a SWPPP
become enforceable requirements of this permit if the other plans
are not regulated through other programs…”
b. The Department does not agree. If a facility feels the
inclusion of certain information that has been
submitted to the Department is a security risk or is
proprietary, the facility may request in writing to have the
information deemed confidential in accordance with Reg. 6.105.
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c. Part 4.4 already states that plans or portions of plans that
have been incorporated must meet the
SWPPP availability requirements.
ISSUE #41: Part 4.6.6.9 requires a certification for the
presence of any non-stormwater discharges; this is a one-time
certification? Does this certification need to be completed a
second time if the required yearly inspections in Part 4.6.6.6
reveal a non-stormwater discharge that is not allowed in this
permit? Why does this certification need to be performed if the
yearly inspections are also required, this is a duplication of work
and is redundant. RESPONSE #41: The certification of non-stormwater
discharges is usually made when the SWPPP is developed. The
inspections are used as a tool to maintain that certification.
ISSUE #42: A commenter requested to remove the definition for
“Section 313 Water Priority Chemical" from the IGP since the
corresponding references were removed from the IGP. RESPONSE #42:
The Department agrees. ISSUE #43: A facility discharging stormwater
into impaired waters should not be prohibited from obtaining the
IGP (Part 1.9) if appropriate BMPs that mitigate the discharge of
the pollutant causing the impairment can be used, since it is rare
that industrial discharges consisting entirely of stormwater are
identified in TMDLs as being a significant source of impairment. It
has been suggested that the wording in Part 1.9.5 be modified to
read: Discharges into Impaired Receiving Waters (303(d) List).
Discharges from a facility into receiving waters listed as impaired
under section 303(d) of the Clean Water Act, unless you comply with
Part 4.6.7, related to best management practices to prevent to the
maximum extent possible exposure contained in your SWPPP. RESPONSE
#43: The Department agrees in part. The language in Part 1.9.5
(Exclusion) has been revised to the following:
“Discharges from a facility into a receiving waters listed as
impaired under Section 303(d) of the Clean Water Act , unless the
permittee: a. document that the pollutant(s) for which the
waterbody is impaired is not present at the facility, and
retain documentation of the finding with the SWPPP; or b.
incorporate into the SWPPP any additional BMPs needed to prevent to
the maximum extent
possible exposure to stormwater of the pollutants for which the
waterbody is impaired and to sufficiently protect water quality.
Please note that the Department will be reviewing this
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information. If it is determined that the facility will
discharge to an impaired water body, then the Department may
require additional requirements.”
The portion of Part 4.6.7 dealing with the 303(d) list has also
been amended to be consistent with the above. ISSUE #44:
Part 1.9.6 disallows permit eligibility for facilities that
discharge to a receiving waters with an approved TMDL, unless the
permittee goes to additional lengths to attain authorization.
Unless there are direct correlations between a specific TMDL
requirements and stormwater discharges, there should not be an
exclusion for coverage under the IGP. This section should be
removed from the draft permit. RESPONSE #44: Part 1.9.6 only
applies when a stormwater discharge from a facility is regulated
under a TMDL. The IGP must consider TMDL’s that have been
developed, as well as those that have the potential to arise in the
future, including ones that may relate directly to stormwater.
Therefore, the condition will remain in the permit. ISSUE #45:
Part 4.6.7 should be revised to apply only to industries that
are specifically named in a TMDL and/or discharge pollutants
identified as the cause of impairment for the receiving stream on
an approved 303(d) list. There is generally no correlation between
303d listing and TMDL requirements and stormwater flows from
industrial facilities. Consequently, the broad application of this
language to all stormwater permittees adds an undue burden to
industrial facilities. RESPONSE #45: A stream listed on the 303(d)
is impaired for a certain pollutant. All sources that have the
potential to contribute to further loading for that pollutant must
be controlled in order to further protect the water quality of the
receiving stream. A TMDL would only apply to those facilities that
may be discharging to a stream that has a TMDL only if the TMDL
regulates stormwater discharges to that stream. ISSUE #46: Since
the determination if a facility discharges to a 303(d) stream is
proposed to be made by the ADEQ after receiving the NOI, this
element of a facility's SWPPP needs allowance for additional time
to update and implement. It is proposed to allow 120-days from
receipt of the 303(d) notification from the ADEQ to update this
element of the SWPPP. RESPONSE #46: The Department agrees in part.
There should be adequate time allowed for a facility to incorporate
any new requirements or conditions as a result of a receiving
stream being on the 303(d) list or have an associated TMDL.
However, this timeframe varies for different permittees. The
Department will not incorporate a set deadline in the permit, but
will work with each permittee on a case-by-case basis on a proper
implementation schedule.
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ISSUE #47: The IGP does not qualify whether or not this applies
to an “approved” 303(d) list. Furthermore, placement of a stream on
the 303d list should not exclude facilities that discharge
stormwater to that water body from being covered under the IGP. The
data used for 303d list is generally ambient water quality data
collected under non-storm conditions and there is no correlation to
stormwater discharges and that data. This section should be removed
from the draft IGP. RESPONSE #47: The section will not be removed
from the permit. A 303(d) list that has not gone through the
review, approval, and issuance process cannot be used. The permit
has been changed to reflect that the most updated 303(d) list will
need to be used. Also, protocol for data collection for the 303(d)
list requires that the data not be skewed but to be representative
of all weather conditions. ISSUE #48: Did ADEQ do any kind of data
analysis to determine the in-stream impacts on water quality vs.
established in-stream standards? Is the basis of this permit based
on a compliance history correlation that indicates more monitoring
and reporting will actually improve water quality? RESPONSE #48:
The Department did not perform any data analysis. Previous permits
only provide the Department with data from a limited number of
industrial types in the State of Arkansas. One of the advantages of
the renewal permit is to allow for the collection of data from a
variety of industrial types across the state. This will allow the
Department to analyze the data and make changes to the monitoring
requirements and/or benchmark values during future permit renewals
in order to improve water quality standards. ISSUE #49: Monitoring
under the terms and conditions of the new general permit (Part 3.5)
should begin no sooner than 180 days following the issuance of the
permit since it is unknown at this time when the permit will be
issued. This will help to prepare facilities for the extensive
monitoring, recordkeeping, and reporting requirements. RESPONSE
#49: NPDES permits are issued on one date and effective on another.
The permit has been changed to allow for monitoring under the
renewal permit to begin 180 days from the effective date (not the
issuance date) of the permit itself. ISSUE #50: A commenter
requested to be able to use data generated either prior to the
permit, or developed after the permit becomes effective but sooner
than the 4 monitoring periods be allowed for the Natural Background
Pollutant Exemption in Part 3.11.3.
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RESPONSE #50: The Department agrees. The permit has been revised
to reflect that previous data can be used. ISSUE #51: The permit
should clarify that if the condition in Part 3.11.3 a is met, i.e.,
that the concentration of the benchmark monitoring results is less
than or equal to the concentration of the pollutant in the natural
background, then the exceedance of the benchmark value is presumed
to be attributable solely to the presence of that pollutant in the
natural background. RESPONSE #51: Part 3.11.3.a has been revised to
the following in order to make the part more clear: “If the
permittee determines that the exceedances of the benchmark values
is attributable solely to the presence of that pollutant in the
natural background, the permittee is not required to perform
corrective actions or additional benchmark monitoring. Provided
that the following are met: a. The concentration of the benchmark
monitoring results is less than or equal to the concentration
of
that pollutant in the natural background (data from previous
monitoring may be used); b. The permittee documents and maintains
with the SWPPP the supporting rationale for concluding that
benchmark exceedances are in fact attributable solely to natural
background pollutant levels. This must include in the supporting
rationale any data previously collected by the facility or others
(including literature studies) that describe the levels of natural
background pollutants in the stormwater discharge; and
c. The Department must be notified on the annual report that the
benchmark exceedances are
attributable solely to natural background pollutant levels.
Natural background pollutants include those substances that are
naturally occurring in soils or groundwater. Natural background
pollutants do not include legacy pollutants from earlier activity
on-site, or pollutants in run-on from neighboring sources which are
not naturally occurring.”
ISSUE #52: The Department should not prescribe how to determine
if exceedance is the result of natural background concentrations
(Part 3.11.3) be done in the IGP. The permittee should be given the
opportunity to demonstrate that the background levels are the
primary cause, and not the “sole” cause of the benchmark
exceedance. It has been requested that the language in Part 3.11.3
should be stricken from the draft IGP entirely and each exemption
related to background levels should be addressed on a
facility-specific basis, after first giving the facility an
opportunity to develop its own specific strategy. RESPONSE #52: The
Department does not agree. This language, with the exception of the
changes made resulting from Issue 51, is consistent with the EPA
2008 MSGP. The Department believes that a certain level of
consistency is needed when documenting the Natural Background
Pollutant Level Exclusion.
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ISSUE #53: a. It has been requested that the description for a
“Measurable Storm Event” in Part 3.7.2.b should
include the phrase “during normal daylight business hours” for
employee safety concerns. b. It has been requested that the
requirements currently proposed in Part 3.7.2.b. for a Measurable
Storm
Event, be removed and the language EPA used in its 2008 MSGP be
inserted.
RESPONSE #53: a. The Department acknowledges and appreciates the
comment. However, safety concerns are
addressed in the Adverse Condition(s) section. b. The definition
for a measurable rain event in the draft permit is consistent for
with the EPA 2008
MSGP. No changes are necessary. ISSUE #54: Part 3.8.1 requires
inactive facilities to submit a signed certification to the ADEQ
“prior to the beginning of the inactive period.” This would not be
possible for facilities that are currently inactive and the
projected startup dates are unknown. A request has been made for
the requirement to submit the notice prior to the inactive period
and providing a projected start and end date be removed from the
permit or in the alternative, all facilities which are inactive
when the permit becomes effective are grandfathered and not
required to provide this notice. RESPONSE #54: The Department
agrees in part. The permit has been changed to allow for
notification at the beginning of the inactive period. Any site that
uses this exemption is required to notify the Department. Existing
dischargers that have inactive or un-staffed sites at the time of
issuance of the renewal IGP must notify ADEQ when submitting the
renewal NOI. ISSUE #55: It has been requested that the wording at
the end of the first sentence of Part 3.8.1, "but may be required
if conditions at the inactive site warrant it", be deleted. The
second sentence provides the criteria for not requiring monitoring,
and includes the requirement that pollutant generating activities
are not occurring at the site. RESPONSE #55: The Department agrees.
The end of the first sentence of Part 3.8.1 has been removed. ISSUE
#56: An exemption from reporting for “Inactive and Un-staffed
Facilities” should be included as was provided for monitoring in
Part 3.8.1.
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RESPONSE #56: Reporting through the use of the Annual Report
provides the Department information on the status of the facility
(if active or inactive). An inactive or unstaffed site must still
comply with other permit requirements (i.e. annual site compliance
evaluations). Inactive or un-staffed sites must still provide
annual reports in order to provide necessary information on the
facility to the Department. However, the exception for inactive or
un-staffed sites has been added to the visual site inspections.
Inactive or un-staffed sites must still perform the annual site
compliance evaluations. ISSUE #57: The language in Part 3.11.2
should be revised to require permittees to commence with a strategy
for source identification and corrective actions within 30 calendar
days, and document the date that the benchmark was first exceeded
and the date of commencement of development of a corrective actions
strategy. RESPONSE #57: The Department agrees. The language in the
permit has been amended to allow the facility to commence with the
corrective action process within 30 calendar days of the
exceedance. ISSUE #58: Pertaining to Part 3.11.12, it has been
suggested to follow the lead of the EPA's MSGP which (paraphrased)
allows 4 periods worth of monitoring to be averaged, then if the
average is above a benchmark parameter, then a review of selection,
design, installation, and implementation of control measures to
determine if modifications are necessary. RESPONSE #58: The
Department does not agree. The EPA 2008 MSGP requires four samples
to be taken in one year versus the IGP permit requiring two samples
a year. The same approach cannot be taken as the EPA 2008 MSGP. A
sample result for a parameter from the first half of the year for a
facility may be below the benchmark value. The sample result for
the same parameter may be significantly above the benchmark value
for the second half of the year. The average of the two samples
could be below the benchmark value but the facility still may have
a significant issue on site. For example: Oil and Grease –
Benchmark Value 15 mg/l Sample Results for January-June – 2 mg/l
Sample Results for July-December – 26 mg/l Average of the two
samples – 14 mg/l (below benchmark value). Therefore, the permit
will remain unchanged. ISSUE #59: A facility should not be held
responsible for any pollutant run-on from neighboring sources. If
benchmark parameters are exceeded at the facility but
concentrations are lower than background concentrations for the
surrounding area or existing local data, then that should be taken
into account and benchmark monitoring should cease. Part 3.11.3
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RESPONSE #59: The facility is responsible for ensuring that
stormwater discharges meet permit requirements. This also includes
controlling sources of pollutants that may cause stormwater
discharges to exceed permit requirements. Run-on could be
considered one of the sources. In the end, it is the responsibility
of the individual facility by using BMP’s to ensure that outside
sources do not introduce additional pollutant to their facility.
ISSUE #60: Several commenters provided the following regarding the
Non-Compliance Notification in Part 3.12.5: a. The term significant
amount in Part 3.12.5 is not defined and should be clarified or the
requirement
should be removed from the permit. b. Also, the term “unable to
comply with any terms and conditions of this permit that could
result in the
discharge of pollutants in a significant amount” in Part 3.12.5
is too subjective. The specific type and magnitude of noncompliance
should be specified. This paragraph should be deleted in its
entirety from the IGP because it is adequately addressed in Part
3.11.2.
c. The submittal of a detailed written report within thirty (30)
days as stated in Part 3.12.5.c is not
adequate time to develop a detailed report. RESPONSE #60: a. A
significant amount is one that would have the potential to change
the characteristics of the
stormwater leaving the site. b. Part 3.11.2 covers exceedances
of benchmark parameter values. Part 3.12.5 in the draft permit
goes
beyond an exceedance of a benchmark parameter. This condition
encompasses a release that would violate water quality standards,
etc. This is a standard condition that could be found in most NPDES
permits. The condition will remain in the permit but has been moved
to the Standards Condition Section, Part 6.23.
c. The Department believes that 30 days is adequate time to
develop the report. The permit will remain
unchanged. ISSUE #61: The Department should develop and publish
forms for the multitude of inspections, reports, and other
recordkeeping requirements that are being proposed in the new
permit and submit those proposed documents along with this permit
to a reasonable public notice and comment period. RESPONSE #61: The
Department acknowledges the comment. The Department may choose to
develop forms or templates that can be used to show compliance with
permit conditions. However, the Department will not require these
forms to be used in order to allow flexibility for facilities.
Since these forms are not required to be used by the permit but as
a guide for permittees, they will not be public noticed. The
Department always will accept comments or suggestions that may
improve these forms or templates.
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ISSUE #62: The No Exposure Certification form used by ADEQ
contains information to help determine if a facility can actually
claim No Exposure Exclusion. The same information should be
included in Part 1.8 of the permit to avoid confusion. RESPONSE
#62: The Department has made the decision to keep guidance out of
the permit and maintain it in a separate document. The No Exposure
Language is consistent with the EPA 2008 MSGP. ISSUE #63: How will
Arkansas handle non-storm water flows which are currently
authorized under the general permit provided the permit conditions
are met, at facilities that opt for the “no exposure” exclusion?
RESPONSE #63: The Department has added the question, “Allowed
non-stormwater discharges go through Outfall?” to the questionnaire
a facility must answer in order to qualify for the “No Exposure
Exclusion”. If the facility answers yes to this question, then the
Department will make a decision based on a case-by-case basis based
on what allowed non-stormwater discharges are occurring at the
facility. ISSUE #64: The no exposure process provides no guidance
as to what constitutes conditions or situations that result in the
facility losing its no exposure status – as well as what to do in
those situations. RESPONSE #64: The No Exposure Exclusion is
implemented in accordance with 40 CFR 122.26(g). In accordance with
40 CFR 122.26(g)(3)(iii), if circumstances change and industrial
materials or activities become exposed to stormwater runoff, the
conditions for the No Exposure Exclusion no longer apply. In such
cases, the discharge becomes subject to enforcement for
un-permitted discharge. Any conditionally exempt discharger who
anticipates changes in circumstances should apply for and obtain
permit authorization prior to the change of circumstances. ISSUE
#65: A request has been made for the Department to develop a
general permit for the allowed non-stormwater discharges or develop
some other permitting opportunity that will allow dischargers
electing the “no exposure” exclusion the ability to ensure the
non-storm water discharges are properly permitted. RESPONSE #65:
The Department has numerous general permits for other types of
discharges besides stormwater. The most recent general permit that
has been issued is the ARG2500000, which regulates the discharge of
Non-contact Cooling Water, Cooling Tower Blowdown, and Boiler
Blowdown. This discharge was one of the allowed non-stormwater
discharges in the 2004 IGP, but has been removed in the 2009 IGP.
The inclusion of the additional question (See Response # 63) that
has been added to the No Exposure questionnaire should address the
issue of non-stormwater flows reaching a receiving stream.
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ISSUE #66:
If a facility opts for “no exposure” exclusion and subsequently
has material or activities exposed to storm water, what does that
do to the exclusion? Under the federal program, such an event
results in the exclusion no longer applying (see 40 CFR
122.26(g)(3)(iii)). The general permit does not give an indication
what happens in this instance. Can the facility that loses the
exclusion because of exposure re-apply for the “no exposure”
exclusion in the future? If so, under what conditions, and what
timeframe? RESPONSE #66: The No Exposure Exclusion is implemented
in accordance with 40 CFR 122.26(g). Thus, a facility with a No
Exposure Exclusion that has materials or activities exposed to
stormwater would loose the No Exposure and be required to change
over to an exposure type of IGP which requires a SWPPP and
monitoring. Any re-application for No Exposure will be evaluated by
the Department on a case-by-case basis. ISSUE #67: Several
commenters provided the following regarding Adverse Weather
Conditions in Part 3.7.2: a. Sampling at night should be considered
dangerous and added to the list of adverse conditions in Part
3.7.2. b. Due to the potential for scheduling conflicts, and
other circumstances, rather than specifying the
substitute sample "must" be taken during "the next" qualifying
storm event, it was suggested to use more flexible wording in Part
3.7.2 such as during "a subsequent" qualifying storm event, or
during "the next practical" storm event.
c. Part 3.7.2 states that when adverse conditions prevent the
collection of samples according to the
relevant monitoring schedule, a facility must take a substitute
sample during the subsequent qualified storm event. Please clarify
the meaning of this statement.
RESPONSE #67: a. This is already covered in general. Sampling at
night could be practical at some facilities and thus
will not be specifically excluded. b. The Department agrees. The
phrase “the next” has been replaced with “subsequent”. c. For
further clarification, if a facility were to attempt to sample a
measurable storm event and found
conditions were not safe, the facility may delay sampling until
a subsequent storm event. ISSUE #68: The last sentence in Part 4.2
states that the Permittee must submit their SWPPP update within 1
week of receiving the request or at a later date if approved by
ADEQ. This sentence is unclear. The submittal of a SWPPP update to
ADEQ within one week of request by ADEQ is not realistic and should
be revised to one month.
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RESPONSE #68: SWPPPs for facilities must be current and
maintained on-site. If the Department requests a copy of the SWPPP
for a facility, one week should provide sufficient time to submit a
copy. The permit will not be changed to 30 days. The section has
been revised for clarification as follows: “…U.S. Fish and Wildlife
Service (USFWS) at the time of an onsite inspection or upon
request. ADEQ may provide access to portions of a facility’s SWPPP
to a member of the public upon request. If requested, the Permittee
must submit their SWPPP to ADEQ within one (1) week of receiving
the request if a date or timeframe was not specified in the
request.”
ISSUE #69: The Industrial Stormwater General Permit addresses
limitations on coverage. However, it does not address those who
have the stormwater pollution prevention language in their current
individual NPDES Permit. Is it ADEQ’s intention for these
Permittees to maintain their stormwater coverage under their
individual permit or will they be required to, again, obtain
coverage under the industrial Stormwater General Permit? If they
are required to obtain this coverage, please provide clarification
as to when this coverage needs to be obtained. RESPONSE #69: The
IGP will not address stormwater language in other permits.
Individual NPDES permits that contains Stormwater language will be
reviewed when the individual NPDES permit applications are
submitted for renewal. The Department will make the decision on a
case-by-case basis whether to remove the Stormwater language from
individual permit. ISSUE #70: In the case where a facility has an
ARG500000 General permit for Aggregate Facilities, the ARG500000
permit has stormwater language; will the facility also be required
to obtain a General Industrial Permit ARR000000? RESPONSE #70:
ARG500000 provides coverage for process water and stormwater not
stormwater only. Facilities that are covered under the current
ARG500000 may be required to obtain the Industrial General Permit
depending on the facility. If a facility has a stormwater only
discharge at the facility, the facility would need to apply for the
Industrial Stormwater General Permit. ISSUE #71: ADEQ should
reconsider its requirement to have each permittee submitting an NOI
to determine the amount of information required in Sections III and
IV, including but not limited to, the accuracy of how the facility
and outfall(s) location latitude and longitude was determined, as
well as determining the stream segment and hydrological basin code.
Most permittees will be making this determination, at best, once
every 5 years, and thus have very limited ability in this area.
Unless the first determination is done accurately, it is most
likely that all subsequent NOIs will use the values on the last
submitted NOI. In addition, those dischargers near a watershed
boundary (hydrologic basin) could have a difficult time determining
accurately which basin their discharge is in.
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RESPONSE #71: Information regarding a facility and it’s
associated outfalls is required for EPA’s tracking system database,
Integrated Compliance Information System (ICIS). Therefore, the
permittee must provide the Department with location details for
their specific facility. The NOI is also signed under penalty of
law that the information submitted to the Department is accurate.
Please note that the Department reviews each NOI for accuracy and
if the Department determines that the submitted information is
incorrect, the facility will be contacted and the issues will be
worked through. The NOI will remain unchanged. ISSUE #72: The
certification of operator statement, currently on page 7 of the
NOI, has the language in the second paragraph regarding endangered
species removed. ADEQ should provide to dischargers another
alternative for making this determination other than contacting the
U.S. Fish and Wildlife Service (as shown in the Instructions, Part
VII, page 9). RESPONSE #72: The most recent and accurate
information regarding endangered species is from the U.S. Fish and
Wildlife. All permittees must comply with the Endangered Species
Act. The Endangered Species language will remain in the
certification of the NOI. However, the certification has been
revised as follows: “I certify that a request has been sent to U.S.
Fish and Wildlife and that the facility will comply with the
Endangered Species Act. (Not applicable for No Exposure
Exclusions)” ISSUE #73: ADEQ may want to move the No Exposure
Exclusion Certification to the end of the NOI package. The
instructions on the first page of the NOI package states clearly,
in all capital letters and bold font, to not leave any blank spaces
in the NOI. That is confusing with the no exposure exclusion
certification being in the middle of the NOI. RESPONSE #73: The No
Exposure section will remain in its current location within the
NOI. However, the instructions on the first page have been updated
to include what sections must be filled out for a No Exposure
Exclusion. ISSUE #74: It was suggested to add a field for "AFIN #
(if known)" to the facility information section of the NOI.
RESPONSE #74: The Department agrees. The AFIN has been added to the
facility information. ISSUE #75: It was suggested to include a
reference to the "endangered or threatened species" item that a
response is only applicable to "new dischargers" in the NOI.
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RESPONSE #75: All permittees must comply with the Endangered
Species Requirements. Existing permittees still must certify on the
NOI that they are still in compliance with the Endangered Species
Act. ISSUE #76: It was suggested to add a yes/no check-off to
Section X for "updated site map included" if that will be a
requirement for all NOI's. RESPONSE #76: The Department agrees. The
NOI has been revised. ISSUE #77: The use of the term “you” does
make the permit more “user friendly”, it is possible the use of
these personal pronouns may confuse individuals into thinking the
IGP requirements apply to them personally or to more than one
facility, rather than applying to the specific facility obtaining
the permit. For clarity, it has been requested that ADEQ utilizes
language similar to EPA's explanation of these terms in the federal
Fact Sheet, in the IGP itself. RESPONSE #77: The Department made
the decision to not use the term “you” in the IGP. All references
have been removed from the permit and have been replaced with
“permittee” or “facility” where applicable. ISSUE #78: It is not
appropriate at this time for the Department to issue a new permit
with extensive (and expensive) monitoring, recordkeeping, and
reporting requirements since there are no federal mandates to do so
and current economic conditions suggest this is a time of fiscal
responsibility. It has been requested that the Department
reconsider the decision to change the existing permit at this time
due to the additional administrative costs and burden created by
this change and the lack of a federal mandate for these changes.
RESPONSE #78: The Department understands and appreciates the
facility’s concern with regard to this issue. The federal
stormwater regulations contained in 40 CFR 122.26 require NPDES
stormwater permit for several industrial activity. This industrial
stormwater general permit is a statewide permit that provides
coverage for these discharges within the State of Arkansas. Also,
all discharges to Water of the State must be permitted and the 2004
IGP has expired. Without a renewal of the general permit,
facilities would be required to get individual permits. EPA has
issued new Multi Sector General Permit (MSGP) for this purpose. The
Department has issued this general permit for most part to be in
line with EPA’s MSGP permit. The Department understands that the
additional requirements may cause economic hardship to some of the
facilities; however, it is Department responsibility to preserve
quality of the Waters of the State.
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ISSUE #79: ADEQ is proposing to promulgate the IGP “in
accordance with the provisions of the Arkansas Water and Air
Pollution Control Act (Act 472 of 1949, as amended, Ark. Code Ann.
§ 8-4-101, et seq.) and Ark. Code Ann. § 8-1-201, et seq. [the
“Act”].” The IGC proposes to apply new requirements that will apply
to the entire State of Arkansas and to all industrial operations in
the State that discharge stormwater. ADEQ, by and through its
Director, is authorized, among other things, to administer
“permitting, licensing, certification, and grants programs deemed
necessary to protect the environmental integrity of the state.”
Ark. Code Ann. § 8-1-202(b)(2). None of the responsibilities
delegated to ADEQ by the General Assembly include the passage of
generally applicable rules concerning industrial operations.
Instead, the General Assembly authorized the APC&EC to
promulgate “rules and regulations implementing the substantive
statutes charged to the Arkansas Department of Environmental
Quality for administration.” Ark. Code Ann. § 8-1-203(b)(1)(A).
According to the plain language of Arkansas’ statutes, the General
Assembly has granted exclusive authority to APC&EC to
promulgate rules and regulations implementing the Act. ADEQ has no
statutory authority to promulgate any substantive rules of general
applicability under the Act. The IGC should follow the procedures
for rulemaking. RESPONSE #79: Pursuant to Ark. Code Ann. §
8-1-202(b)(2), the duties of the director of ADEQ shall include,
“The administration of permitting, licensing, certification, and
grants programs deemed necessary to protect the environmental
integrity of the state.” The department and the commission are also
vested by statute with all the necessary authority and power to
meet the requirements of § 402(b) of the Federal Water Pollution
Control Act Amendments of 1972. Ark. Code Ann. § 8-4-208(a). The
department is also authorized to administer on behalf of the state,
its own permit program for discharges into navigable waters within
its jurisdiction in lieu of that of the U.S. EPA. Id. ADEQ
implemented its delegated program by adopting APC&EC Regulation
No. 6. Regulation No. 6 adopts by reference, 40 C.F.R. § 122.28,
which grants the Director authority to issue a general permit in
accordance with the provisions listed. The federal regulation
states that the Director may issue a general permit by area,
sources, water quality-based limits or other requirements.
Therefore, pursuant to state and federal laws and regulations, it
is ADEQ’s position that it has authority to issue general permits.
ISSUE #80: It has been suggested that it is critical that the
stormwate