Arkansas Code
Subchapter 2 - Water Pollution
§ 8-4-202. Rules

(a) The Arkansas Pollution Control and Ecology Commission is given and charged with the power and duty to adopt, modify, or repeal, after notice and public hearings, rules implementing or effectuating the powers and duties of the Division of Environmental Quality and the commission under this chapter.
(b) Without limiting the generality of this authority, these rules may, among other things, prescribe:
(1) Effluent standards specifying the maximum amounts or concentrations and the physical, thermal, chemical, biological, and radioactive nature of the contaminants that may be discharged into the waters of this state or into publicly owned treatment facilities;
(2) Requirements and standards for equipment and procedures for monitoring contaminant discharges at their sources, including publicly owned treatment facilities and industrial discharges into such facilities, the collection of samples, and the collection, reporting, and retention of data resulting from such monitoring; and
(3) Water quality standards, performance standards, and pretreatment standards.

(c)
(1) Any person shall have the right to petition the commission for the issuance, amendment, or repeal of any rule. Within sixty (60) days from the date of the submission of a petition, the commission shall either institute rulemaking proceedings or give the petitioner written notice denying the petition, together with a written statement setting out the reasons for denial.
(2) In the event the petition is denied, the decision of the commission will be deemed a final order subject to appeal as provided in subdivision (d)(5) of this section.
(3) The record for appeal in a petition denial shall consist of the petition for rulemaking filed with the commission, the commission's written statement setting out the reasons for denial, and any document referenced therein.

(d)
(1)
(A) Before the adoption, amendment, or repeal of any rule or before suspending the processing of a type or category of permits or the declaration of a moratorium on a type or category of permits, the commission shall give at least thirty (30) days' notice of its intended action.
(B) The notice shall include:
(i) A statement of the substance of the intended action;
(ii) A description of the subjects and issues involved; and
(iii) The time, place, and manner in which interested persons may make comments.

(C) The notice shall be mailed or emailed to all persons who have requested advance notice of rulemaking proceedings.
(D) The notice shall also be published at least two (2) times in newspapers having a general statewide circulation and in the appropriate industry, trade, or professional publications the commission may select.

(2)
(A) All interested parties shall be afforded a reasonable opportunity to:
(i) Submit written data, information, views, opinions, and arguments; and
(ii) Make oral statements concerning the proposed rule, suspension, or moratorium prior to a decision being rendered by the commission.

(B) All written material, photographs, published material, and electronic media received by the commission shall be preserved and, along with a record of all oral comments made at any public hearing, shall become an element of the record of rulemaking.
(C) Any person who considers himself or herself injured in his or her person, business, or property by final agency action under this section shall be entitled to judicial review of the action under this section.

(3)
(A) If, in response to comments, the commission amends a proposed rule to the extent that the rule would have an effect not previously expressed in the notice required by subdivision (d)(1) of this section, the commission shall provide another adequate public notice.
(B) Subdivision (d)(3)(A) of this section shall not, however, require a second public notice if the final rule is a logical outgrowth of the rule proposed in the prior notice.

(4) The commission shall compile and maintain a record of rule-making that shall contain:
(A)
(i) A copy of all notices described in this subsection and a concise general statement of the basis and purpose of the proposed rule, which shall include a written explanation of the necessity of the rule and a demonstration that any technical rule or technical standard is based on generally accepted scientific knowledge and engineering practices.
(ii) For any standard or rule that is identical to a regulation promulgated by the United States Environmental Protection Agency, this portion of the record may be satisfied by reference to the Code of Federal Regulations.
(iii) In all other cases, the division must provide its own justification with appropriate references to the scientific and engineering literature or written studies conducted by the division;

(B) Copies of all written material, photographs, published materials, electronic media, and the record of all oral comments received by the commission during the public comment period and hearings; and
(C) A responsive summary that groups public comments into similar categories and explains why the commission accepted or rejected the rationale of each category.

(5)
(A) The decisions of the commission with regard to this section are final and may be judicially appealed to the appropriate circuit court as provided in § 8-4-222 within thirty (30) days after filing with the office of the Secretary of State by persons that have standing as set out in subdivision (d)(2) of this section.
(B) The record for review shall consist of a copy of the rule and the record of rulemaking described in subdivision (d)(4) of this section.
(C) Rule changes, suspensions, or moratoria on types of categories of permits adopted by the commission shall be stayed and not take effect during the pendency of the appeal, except as specified in subsection (e) of this section.

(e)
(1) If the commission determines that imminent peril to the public health, safety, or welfare requires immediate change in the rules or immediate suspension or moratorium on categories or types of permits, it may, after documenting the facts and reasons, declare an emergency and implement emergency rules, suspensions, or moratoria.
(2) No rule, suspension, or moratorium adopted under an emergency declaration shall be effective for longer than one hundred eighty (180) days.
(3) The imminent loss of federal funding, certification, or authorization for any program administered by the division shall establish a prima facie case of imminent peril to the public health, safety, or welfare.