Proposed Changes to Regulation 2

APC&E Commission Docket #01-007-R

3rd Party Request Submitted by
Albemarle Corp.

Regulation 2 - Regulation Establishing Water Quality Standards for Surface Waters of the State of Arkansas

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Executive Summary

Albemarle Corporation (“Albemarle”), is requesting a modification of the Arkansas Water Quality Standards (WQS), Regulation No. 2 of the Arkansas Department of Pollution Control and Ecology (ADPC&E) in relation to designated uses and dissolved minerals for Dismukes Branch of Big Creek and from Big Creek.

Through this Petition, Albemarle is requesting that the following amendments be made to Regulation No. 2:

(a) The designated, but not existing, domestic water supply use be removed from Dismukes Branch of Big Creek and from Big Creek from its confluence with Dismukes Branch to its confluence with Dorcheat Bayou.

(b) The water quality criteria (WQC) be increased for total dissolved solids (TDS) for Dismukes Branch of Big Creek from 123 mg/l to 157 mg/l.

(c) The water quality criteria (WQC) be increased for chlorides (Cl) for Dismukes Branch of Big Creek from 14 mg/l to 26 mg/l.

(d) The water quality criteria (WQC) be increased for total dissolved solids (TDS) for Big Creek from 123 mg/l to 200 mg/l.

(c) The water quality criteria (WQC) be increased for chlorides (Cl) for Big Creek from 14 mg/l to 20 mg/l..

Albemarle owns a bromine extraction facility located at 1550 U.S. Highway 371 West, approximately three miles from Magnolia, Arkansas in Columbia County (the “West Plant Facility”). The West Plant Facility discharges into Dismukes Branch of Big Creek from one outfall (001) as authorized under its NPDES Permit No. AR0047635. The West Plant Facility’s treatment system consists of a mixing lagoon (retention basin) and two parallel aquatic plant filters (constructed wetlands). The West Plant Facility discharges storm water, non-contact cooling water, treated sanitary waste water and boiler blow down from the constructed wetlands into Dismukes Branch of Big Creek, a first order tributary of Dorcheat Bayou in southwest Arkansas.

Pursuant to Section 4(G) of the WQS, the modification request is supported by the following:

  1. The requested modifications are needed to bring the WQS into line with historical conditions;
  2. The designated domestic water supply use is not an existing use of Dismukes Branch of Big Creek or Big Creek, as documented by the Arkansas Department of Health (ADH);
  3. The removal of the designated domestic water supply use on Dismukes Branch of Big Creek and from Big Creek will not conflict with the Arkansas Water Plan, as documented by the Arkansas Soil and Water Conservation Commission; and
  4. An aquatic life use exists and can be maintained in the receiving streams, as documented by a comparison of upstream/downstream bioassessments.

Notice of Public Hearing

The Arkansas Pollution Control and Ecology Commission will hold a public hearing at Magnolia November 29, 2001, to receive comments on a third-party proposal by Albemarle Corporation to change the Arkansas Water Quality Standards (PC&E Commission Regulation No. 2) for two streams affected by Albemarle's wastewater discharge. The hearing will begin at 7:00 p.m. in Room 208 of the Business-Agribusiness Building on the campus of Southern Arkansas University at 100 Military Lane.

Sections 3.4.1 through 3.4.4 of PC&E Commission Regulation No. 8 (Administrative Procedures) , and Arkansas Statute 8-4-202(c) provide that outside parties may petition the Commission to initiate the rulemaking process to adopt or amend regulations under the Commission's jurisdiction. Arkansas Statute 8-4-201(3) authorizes the Commission to adopt water quality standards for the State of Arkansas.

The fact that the Commission has agreed to initiate such rulemaking procedures does not constitute an endorsement of the third-party proposal. The Commission will decide whether to adopt the proposed changes after the conclusion of the public comment period for the proposal and after Albemarle and the Arkansas Department of Environmental Quality staff respond to all public comments submitted.

Albemarle operates a bromine extraction facility, commonly referred to as the "West Plant," off U.S. Highway 371 about three miles west of Magnolia. The facility discharges wastewater to Dismukes Branch of Big Creek. The discharge consists of stormwater runoff, non-contact cooling water, treated sanitary wastewater, and boiler blow down from an artificial wetlands constructed as part of the plant's treatment system. Dismukes Branch of Big Creek flows into Big Creek, which, in turn, flows into Dorcheat Bayou.

Regulation No. 2 designates both Dismukes Branch of Big Creek and Big Creek for domestic drinking water supply use, although neither stream currently is being used as a drinking water source. The Albemarle petition seeks to remove the domestic drinking water supply designation from Dismukes Branch of Big Creek, and from Big Creek, beginning with its confluence with Dismukes Branch and continuing to its confluence with Dorcheat Bayou.

In addition, the petition seeks to change the current water quality standards for chlorides and total dissolved solids (TDS) for both streams. Under the proposal, the chloride standard in Dismukes Branch would be increased from 14 milligrams per liter (mg/l) to 26 mg/l, and the chloride standard for Big Creek would increase from 14 mg/l to 20 mg/l. The TDS standard in Dismukes Branch would increase from 123 mg/l to 157 mg/l, and the TDS standard for Big Creek would increase from 123 mg/l to 200 mg/l.

Bioassessments conducted by Albemarle indicate that existing aquatic life conditions in both streams will be maintained if the proposed new standards are adopted.

Detailed copies of the proposed changes, along with support documents, and summary information, are available for public inspection at the ADEQ's Building D, 8101 Interstate 30, in Little Rock, and in ADEQ information depositories located in public libraries at Magnolia, Camden, El Dorado, and Texarkana. In addition, summary information concerning the proposal is available at other ADEQ information depositories located in public libraries at Arkadelphia, Batesville, Blytheville, Clinton, Crossett, Fayetteville, Forrest City, Fort Smith, Harrison, Helena, Hope, Hot Springs, Little Rock, Mena, Monticello, Mountain Home, Russellville, Searcy, Stuttgart, and West Memphis; in campus libraries at the University of Arkansas at Pine Bluff and the University of Central Arkansas at Conway; and in the Arkansas State Library located on the State Capitol grounds at Little Rock. Information concerning the proposed changes also can be viewed on the ADEQ's Internet web site at www.adeq.state.ar.us .

Oral and written comments on the proposed revisions will be accepted at the hearing, but written comments are preferred in the interests of accuracy. In addition, written comments will be accepted if received no later than 4:30 p.m. December 13, 2001. Written comments should be sent to Doug Szenher, public affairs supervisor, Arkansas Department of Environmental Quality, P.O. Box 8913, Little Rock, AR 72219-8913. Also, electronic mail comments will be considered if submitted by the 4:30 p.m. December 13, 2001, deadline to the following address: reg-comment@adeq.state.ar.us .

Dated this 14th day of October, 2001

Richard A. Weiss, Interim Director,
Arkansas Department of Environmental Quality
 

Arkansas Pollution Control and Ecology (APC&EC) Commission Minute Order

On August 30, 2001 Albemarle Corporation (“Albemarle”) filed a Petition to Initiate Third Party Rulemaking to Amend Regulation No. 2, Water Quality Standards (“Petition”). Pursuant to Ark. Code Ann. § 8-4-202(c) (Repl. 1993), the Arkansas Pollution Control and Ecology Commission ( “Commission”) has sixty (60) days in which to either institute rulemaking proceedings or to give written notice denying the petition for rulemaking.

The Commission’s Regulations Committee met in September, 2001 to review Albemarle’s Petition. Having considered the Petition, the Regulations Committee recommends the Commission institute a rulemaking proceeding to consider adopting the proposed revisions to Regulation No. 2. The Regulations Committee also proposes adoption of the following procedural schedule so consideration of this matter may proceed in an efficient and orderly manner.

  1. Albemarle and the Arkansas Department of Environmental Quality (“ADEQ”), shall file an original and two (2) copies of all materials required under this Minute Order. Each party shall serve the other with the materials filed. This requirement does not apply to transcripts.
     
  2. Persons submitting written public comments shall submit their written comments to the ADEQ. Within ten (10) business days following the adoption or denial of the proposed rule, the ADEQ shall deliver the originals of all comments to the Commission Secretary.
     
  3. Albemarle has filed with its Petition a red-lined version of each section of Regulation No. 2 which will be amended by the proposed rule.
     
  4. Albemarle has submitted to the ADEQ’s public affairs office, the following:

    a. A proposed public notice to be used in mailing notice to interested persons, for publishing in newspapers, and for publishing in appropriate industry, trade, or professional publications as the Commission may select. The proposed public notice may, in the ADEQ’s discretion, be approved for use or the ADEQ may choose to prepare its own public notice. The public notice shall conform to the requirements of Regulation No. 8, Part 3, Section 3.1.3. The public notice shall be published not later than 45 days prior to public hearing. By agreement, Albemarle shall pay the costs of the newspaper publications and the costs of the appropriate industry, trade, or professional publications chosen by the Commission. Albemarle shall file only the original proof of publication with the Commission. The ADEQ shall be responsible for mailing the public notice to all persons who have requested advance notice of rulemaking proceedings and the cost of the mailing.

    b. Sixty-five (65) copies of an executive summary of the proposed rulemaking.

    c. Eight (8) bound copies of the Petition and all supporting documentation.
     
  5. A public hearing or hearings shall be conducted between November 26, 2001 and December 7, 2001 in Columbia County, Arkansas. The exact date, time, and location of the public hearing will be determined by the ADEQ’s Public Affairs office.
     
  6. The period for receiving all written comments by the public, Albemarle and the ADEQ shall conclude ten (10) business days after the date of the public hearing pursuant to Regulation No. 8, Part 3, Section 2.2.3, unless an extension of time is granted.
     
  7. Albemarle and the ADEQ shall each file, not later than January 7, 2002 a Statement of Basis and Purpose and Responsiveness Summary as required by Regulation No. 8, Part 3, Section 3.6.2 (1), (2) and (3).
     
  8. Albemarle and the ADEQ shall each file not later than January 7, 2002 a proposed Minute Order deciding the matter.
     
  9. The ADEQ shall seek review of the proposed rule from the Joint Interim Committee on Public Health and Welfare and/or from the Joint Interim Committee on Administrative Rule and Regulations.
     
  10. The Regulations Committee will consider this matter at its January, 2002 meeting. Members of the Regulations Committee may ask questions of any persons that made oral or written comments. The Regulations Committee will make a recommendation to the Commission.
     
  11. At the Commission's regularly scheduled January, 2002 meeting, the presentation of oral statements and legal arguments will be regulated as follows:

    a. The Chair of the Commission will permit members of the public to make a statement to the Commission. No more than three (3) minutes will be allowed for each statement. The period for statements will close at the end of one (1) hour, or sooner if all interested persons have completed their statements. At the discretion of the Chair, the one (1) hour oral statement period may be extended.

    b. At the discretion of the Chair, an attorney representing one or more individuals, a corporation or other legal entity may be permitted five (5) minutes in which to address the Commission.

    c. Legal counsel or other designated persons representing Albermarle and the ADEQ shall be permitted ten (10) minutes in which to address the Commission.

    d. At the conclusion of all statements, the Chair will call on each Commissioner for the purpose of asking the attorneys or persons sponsoring statements who are present, any questions they may have. Attorneys will not be permitted to respond or ask follow-up questions of any person questioned by a Commissioner.

    After each Commissioner has had an opportunity to ask questions, the Chair will entertain a motion on the matter, allow discussion, and call for a vote of the Commission members.
     
  12. If Albemarle desires a transcript of the public hearing, Regulation Committee meeting, and Commission meetings, or if required by the Commission, Albemarle agrees to pay all costs for the preparation of a transcript of the public hearing, Regulation Committee meetings and Commission meetings which concern this docket and occur after the adoption of this Minute Order. If a transcript of the rulemaking proceedings is required, the court reporter will be employed by Albemarle, and the court reporter shall deliver the original transcript to the Commission Secretary.
     
  13. The Commission authorizes the Chair of the Regulations Committee, in consultation with the Chair of the Commission, to revise the procedures and schedules set out above.

The Commission accepts the recommendation of the Regulations Committee and initiates the rulemaking proceeding in this docket. The Commission adopts, without modification, the procedural schedule set forth above.

COMMISSIONERS:

________ S. Varnell, Chairman
________ R. Mathis
________ B. Ackerman
________ T. Shueck
________ G. Black
________ J. Shannon
________ B. Bush
________ L. Sickel
________ H. Durham
________ W. Thompson
________ D. Featherstone
________ R. Young
________ J. Hill

SUBMITTED BY: Charles R. Nestrud, Attorney for Albemarle Corporation

PASSED September 28, 2001: ________________________
Chair