From: To: Subject: Date: Attachments: Ungerank, Colby Ballew, Lyndsay FW: Allens, Inc. - Siloam Springs - Permit Modification for Irrigation on Existing Land Application Sites - part 1 of 2 Thursday, November 21, 2013 9:48:21 AM Permit Application Form & Attachments - Nov 2013.pdf Allens Inc - Minor Modication or Interim Authority - Cover Letter - Nov 20 2013.pdf Traveling Gun & New Fixed Set Plans - Nov 20 2013.pdf Copy of $200 Check.pdf Colby From: Laura Mushinski [mailto:lmushinski@allens.com] Sent: Wednesday, November 20, 2013 9:36 PM To: Bailey, John; Ungerank, Colby Cc: crnickle@usi-ce.com; Sheri Herron Subject: Allens, Inc. - Siloam Springs - Permit Modification for Irrigation on Existing Land Application Sites - part 1 of 2 Mr. Bailey and Mr. Ungerank Attached please find several documents associated with Allens proposal to convert some existing land application sites for wastewater irrigation use via fixed set nozzles and/or traveling guns. As we have discussed, we are hopeful this will be considered a minor modification so that we can proceed as soon as possible. Because of the urgency, we did also submit (via overnight mail) a concurrent request for interim authority to Ms. Marks attention (3 complete copies). All of the documents submitted to Ms. Marks are also attached here (in part 1 or part 2 of the email due to document size). In addition, this email also includes a Permit Application Form for a modification request and associated unique attachments such as Certificate of Good Standing, land ownership proof, etc. The paper copy of the management plan that will arrive by 10 am Thursday has the Arkansas PE stamp. The check in the amount of $200 is included in the mailed copy to Ms. Marks. Please let us know if you have any questions. We appreciate your assistance with this undertaking. Laura J. Mushinski, CHMM Director Environmental Quality Allens, Inc. PO Box 250, Siloam Springs, AR 72761 Cell: (479) 228-0102 FAX: (479) 524-9591
Request for Interim Authority or Temporary Variance Enclosed. This request is Time Sensitive and Requires a Director's Decision within 10 Days of Receipt. Ms. Teresa Marks, Director Arkansas Department of Environmental Quality 5301 Northshore Drive North Little Rock, AR 72118-5317 Re: Allens, Inc. Permit No. 4438-WR-4 (Country Plant Siloam Springs, Arkansas) Dear Ms. Marks: The purpose of this letter is to respectfully request on behalf of Allens, Inc. ( Allens ) interim authority to expand wastewater irrigation to certain land application sites under Permit No.: 4438-WR-4 ( Permit ) at its vegetable processing plant in Siloam Springs, Arkansas ( Country Plant ) pursuant to Ark. Code Ann. 8-4-230. As will be discussed, this request is being made on a one-time basis. Simultaneously with the submission of this request for interim authority, Allens has submitted to the Arkansas Department of Environmental Quality ( ADEQ ) Water Division a request to treat the proposed activity as a minor modification of the Permit. In the event the ADEQ Water Division agrees that the proposed activity can be undertaken pursuant to a minor modification of the Permit, this request for interim authority will be withdrawn. As will be discussed, proceeding in this expedited manner is being driven by a unique set of circumstances applicable to both the company and this facility (i.e., the Country Plant). I. Background A. Rationale for this Request Allens Permit allows it to apply wastewater for irrigation at certain sites in the vicinity of its Country Plant in Siloam Springs, Arkansas. For the first time in over 40 years, the Country Plant is unable to utilize its wastewater irrigation at various approved sites because of heavy precipitation. The referenced properties are saturated. As a result, the Country Plant, which has 300 employees, has been idled periodically waiting for more favorable conditions. The shut down of a major plant in a company that only operates three canning facilities is obviously a 1
significant event. However, because of additional circumstances, this shut down is especially problematic. First, Allens is a family-owned and operated vegetable processor. The majority of the vegetable raw products are perishable until they are processed. The continuation of the shut down would mean the plant will miss the ability to process perishable products. These vegetables are a core product that provide significant revenues for the company. Even in normal circumstances, this would be a significant economic issue for company revenues. However, unfortunately, the current circumstances for the company are far from normal. Second, because of recent economic setbacks, the inability to obtain and process these vegetables could be devastating for the company. As you may know, Allens filed a Petition for Reorganization in federal Bankruptcy court on October 28, 2013. Allens is working with its creditors to attempt to reorganize and ultimately emerge from Chapter 11 with an ongoing enterprise consisting of three plants. This is obviously an important development for both the region of the state where Allens is headquartered (Siloam Springs) and the Country Plant which employs 420 personnel between the office and plant. As you might imagine, the ability to maintain traditional revenue streams during the pendency of a Chapter 11 bankruptcy proceeding is absolutely critical. As a result, we are not engaging in hyperbole in stating that the loss of the ability to process the perishable vegetable products could materially exacerbate an already difficult financial situation for the company. B. Activity to be Authorized As previously noted, the Allens Country Plant currently holds Permit No. 4438-WR-4 that allows it to apply wastewater irrigation to a variety of specified sites. Because those sites are saturated, wastewater irrigation may not be currently utilized on that acreage. Fortunately, Allens has additional acreage encompassed by the Permit s land management plan that is not saturated. However, such acreage has traditionally been utilized for land application. Allens needs permission to irrigate it utilizing a traveling spray gun or fixed set irrigation nozzles. Allens believes that the terms in the current Permit may allow the utilization of irrigation by spray gun on the land application sites. However, in order to ensure that ADEQ is involved in the decision-making, we have simultaneously with the submission of this letter filed a request for a minor modification of Permit No. 4438-WR-4. We believe that the utilization of the spray gun to irrigate these land application sites can be accomplished through a minor permit modification. However, because timing is so critical in regards to obtaining authorization to move ahead with spray gun irrigation, Allens deemed it prudent to submit this request for interim authority in the event that ADEQ Water Division determined that the proposed activity required a major permit modification. Allens would not be able to access the perishable vegetable products if it has to obtain a major permit modification because of the timing involved in that process. Therefore, we are 2
submitting this request for interim operating authority to ensure we have a mechanism to obtain permission to proceed within a timeframe that enables the company to access the vegetable crop. C. Summary of the Requested Activity The permit allows land application of various by-products including wastewater, sludge, vegetable solid waste, etc. The proposal utilizes acreage that is already approved in the permit for land application for wastewater irrigation via a traveling gun or fixed set irrigation systems. Please note that we are providing you a copy of the plans and specifications for the system as well as an updated Land Management Plan that has been submitted to the ADEQ Water Division in order to provide you additional detail of the proposed activity. II. Rationale for Granting Request for Interim Operating Authorization Allens respectfully submits that its request fits within the scope of the ADEQ Director interim authority found at Ark. Code Ann. 8-4-230. As will be described, and in view of the necessity for expeditious action, Allens believes that its request should be granted. As you know, in 1995 amendments to the Arkansas Water and Air Pollution Act by the General Assembly authorized ADEQ to grant interim authority (to construct and/or operate) or variances during the permit issuance process. 1 In 1999 and 2013, the Arkansas General Assembly provided ADEQ criteria, which considers requests for interim authority or variances. Unless the request is prohibited by federal law, the ADEQ Director may grant temporary variances from the requirement of any permit issued by the Department; or interim authority to construct or operate during the pendency of any applicable public notice, application review and permit issuance process. 2 The ADEQ Director must consider the environmental and public health effects of the temporary variance; and economic advantage obtained by the party requesting the temporary variance over other similarly situated facilities operating in accordance with similar permit conditions which did not request the variance. Further, the ADEQ Director shall consider whether strict compliance would result in the substantial curtailment or closing down an existing or proposed business, plant, or operation. The ADEQ Director may also take into account whether strict compliance with permit terms is inappropriate because of conditions beyond the control of the person requesting the temporary variance; whether the temporary variance request is prompted by recurrent or avoidable compliance problems; whether review of the operational history of the requesting facility reveals relevant information; and whether the public interest will be served by temporary variance. 1 1995 Ark. Act 943 2 Ark. Code Ann. 8-4-230 3
Other factors the ADEQ Director may take into account include whether the applicable permitting application was timely and completely submitted; whether there has been a delay in the final permitting action caused by conditions beyond the control of the person requesting interim authority; whether the contractual other business obligations will become due before a proper permit can be issued; and whether the public interest will be served by construction or operation during the application review and permit issuance process. Allens respectfully submits that it fits squarely within the scope of the interim authority provided by Ark. Code Ann. 8-4-230. The activity for which Allens seeks permission to engage is not prohibited by federal law. The relevant permitting activities are controlled by Arkansas law and regulations. Further, as previously noted, this request will not result in a violation of any environmental or health based standard. Please note that Allens is soliciting interim authority to irrigate properties that are already part of its land management plan. For the following reasons, we do not believe utilizing the spray gun as opposed to traditional land application will be detrimental in any manner. These sites meet the required setbacks, have had annual soil sampling, will have a grass cover crop, etc. We also believe it is fair to say that the neither Allens nor its Country Plant will have an economic advantage over other similarly situated facilities if the temporary variance is granted. Allens is not aware of a similar operation in the state that processes vegetables and/or with which it competes. Even if there was such a facility, Allens will certainly enjoy no economic advantage if this proposed activity is approved. The Country Plant already holds a permit for the sites for which it proposes to spray irrigate. In addition, Allens is expending an enormous amount of money to attempt to utilize these properties in this manner. Therefore, authorizing this activity will not place any other facilities at an economic disadvantage. Allens believes that the requested activities could be accomplished through a minor modification of its Permit. However, in the event ADEQ reaches a different conclusion and fails to grant this interim authority, we respectfully submit that the result would be a substantial curtailment or closing down of an existing plant. As previously discussed, the Country Plant is shut down because it cannot utilize its spray irrigation facilities on the properties that are saturated. The plant will likely have to remain shut down unless it gains authorization to utilize a spray gun on the other properties that are found within its land management plan. The shut down would last at least through the critical sweet potato season and impact the processing of other perishable products. This would seem to be the precise scenario contemplated by Ark. Code Ann. 8-4-230 (b)(1)(c). Equally important, Allens believes that strict compliance with the permit terms is inappropriate because of conditions beyond its control. The unusual amount of precipitation has saturated its traditional spray irrigation fields. Allens is requesting a minor permit modification to utilize the other fields for spray irrigation. However, in the event the agency deems these 4
Cc: John Bailey, Arkansas Department of Environmental Quality Mo Shafii, Arkansas Department of Environmental Quality Ryan Benefield, Arkansas Department of Environmental Quality Laura Mushinski, Allens Walter Wright 6