8 CAR pt. 310 | 8 CAR Part 310 — Policies, Procedures, and Criteria for Acts 1989, No. 870, Certificate of Need Review for Solid Waste Landfill Facilities

Chapter XV

Subchapter A

Subpart 1

8 CAR § 310-101 Definitions {#sec-8-car-310-101 omnilex-key=us-ar-regs-official--title-8-part-310--8 CAR § 310-101}

8 CAR § 310-101. Definitions.

As used in this part:

(1) “Affected persons” includes:

(A) The applicant;

(B) The Division of Environmental Quality;

(C) The regional solid waste management district board, where applicable, for the area in which the proposed solid waste landfill is to be located;

(D) Regional solid waste management districts having jurisdiction in contiguous areas to the location;

(E) Units of general local government within the geographical area served or to be served by the applicant and within the regional solid waste management district; and

(F) Solid waste landfill permittees having a permitted solid waste disposal site in the regional solid waste management district in which the landfill is proposed to be located;

(2)(A)(i) “Certificate of need” means a certificate issued by the Southwest Arkansas Regional Solid Waste Management District Board to an individual or organization proposing to obtain a landfill permit for solid waste disposal.

(ii) The certificate recognizes that such landfill, when available, will be needed by those for whom it is intended.

(B) A “certificate of need” is a condition of application for a solid waste landfill permit under the Solid Waste Management Rules, 8 CAR pt. 60.

(C) The Division of Environmental Quality may deny any permit based upon the denial of a certificate of need by the Southwest Arkansas Regional Solid Waste Management District Board;

(3)(A) “Certificate of need review” means a review of petitions for certificates of need where the landfill, if permitted, will be located in this jurisdictional area.

(B) Under Arkansas Acts 1989, No. 870, regional solid waste management districts, where applicable, are required to have the respective Southwest Arkansas Regional Solid Waste Management District Board administer a certificate of need review program;

(4) “Interested party” means:

(A) The director or his or her designee;

(B) The Southwest Arkansas Regional Solid Waste Management District Board;

(D) Any person submitting written comments on the application within the public comment period;

(5) “Landfill” means a permitted landfill under the Arkansas Solid Waste Management Act, Arkansas Code § 8-6-201 et seq., except those permitted landfills where a private industry bears the expense of operating and maintaining the landfill solely for the disposal of wastes generated by the industry; and

(6) “Solid waste” means all putrescible and nonputrescible waste in solid or semisolid form, including, but not limited to:

(A) Yard or food waste;

(B) Waste glass;

(D) Waste plastics;

(E) Wastepaper;

(F) Waste paperboard; and

(G) All other solid or semisolid wastes resulting from industrial, commercial, agricultural, community, and residential activities.

8 CAR § 310-102 Purpose and applicability {#sec-8-car-310-102 omnilex-key=us-ar-regs-official--title-8-part-310--8 CAR § 310-102}

8 CAR § 310-102. Purpose and applicability.

(a) The Southwest Arkansas Regional Solid Waste Management District Board will administer the certificate of need review program which:

(1) Applies to the offering of new or increased solid waste landfill disposal capacity within its jurisdictional boundaries; and

(2) Is consistent with the laws of the state.

(b) In performing its review functions, the board shall follow procedures and apply criteria developed in accordance with procedures and this part.

8 CAR § 310-103 General {#sec-8-car-310-103 omnilex-key=us-ar-regs-official--title-8-part-310--8 CAR § 310-103}

8 CAR § 310-103. General.

(a) The Southwest Arkansas Regional Solid Waste Management District Board will administer within the Southwest Arkansas Regional Solid Waste Management District service area a certificate of need review program.

(b) Only the board will issue or deny certificates of need for proposed landfill permits within the district service area.

(c) In issuing or denying certificates of need, the board will take into account the findings enumerated in the Regional Needs Assessment Report applicable to the area where the landfill site is proposed, and the criteria enumerated in this subsection, subsections (d) and (e) of this section, and 8 CAR § 310-109.

(d) Each decision of the board to issue a certificate of need must be consistent with the regional needs assessment.

(e)(1) Each decision of the board to issue or deny a certificate of need must be based on documented evidence clearly indicating that the proposed solid waste landfill:

(A) Is consistent with the regional planning strategy adopted by the board in the regional needs assessment;

(B) Does not conflict with existing comprehensive land use plans of any local governmental entities;

(i) An archeological site as recognized by the Arkansas Archeological Survey; or

(ii) A rare and endangered species habitat as recognized by the Arkansas State Game and Fish Commission or the United States Fish and Wildlife Service; and

(D) Will not adversely affect the public use of any local, state, or federal facility, including but not limited to parks and wildlife management areas.

(2) Note. The decision of the board to issue or deny a certificate of need shall not be based on any technical merits related to the proposed or existing solid waste landfills.

8 CAR § 310-104 Scope of certificate of need program {#sec-8-car-310-104 omnilex-key=us-ar-regs-official--title-8-part-310--8 CAR § 310-104}

8 CAR § 310-104. Scope of certificate of need program.

(a) The Southwest Arkansas Regional Solid Waste Management District Board will conduct reviews for new or increased solid waste landfill disposal capacity to be located or proposed to be located in the Southwest Arkansas Regional Solid Waste Management District service area and which are subject to review under the certificate of need program.

(b) Following are the only types of permits that are reviewable under the certificate of need program:

(1) Permits for new solid waste landfill disposal sites;

(2) Transfer of existing solid waste landfill disposal permits; and

(3) Reclassification of existing solid waste landfill disposal permits.

8 CAR § 310-105 Notice of intent {#sec-8-car-310-105 omnilex-key=us-ar-regs-official--title-8-part-310--8 CAR § 310-105}

8 CAR § 310-105. Notice of intent.

(a) Before any person submits a petition for a certificate of need, that person must notify the Southwest Arkansas Regional Solid Waste Management District Board at least thirty (30) days prior to the submission of said petition.

(b) The information required in the notice of intent shall include:

(1) Name of applicant;

(2) Applicant’s address and telephone number;

(3) Contact person, telephone number, and email address;

(4) Whether the applicant is seeking a new, or transfer or reclassification, of an existing landfill permit;

(5) Site of the proposed or existing solid waste landfill, including precise legal description and total acreage;

(6) Description of the geopolitical jurisdictions to be served by the landfill, including population estimates by jurisdiction;

(7) Confirmation from the Division of Environmental Quality that the applicant has requested a statement concerning the current and projected solid waste disposal capacity respective to the area and landfill class being proposed; and

(8) Any other information deemed necessary by the board.

8 CAR § 310-106 Enforcement {#sec-8-car-310-106 omnilex-key=us-ar-regs-official--title-8-part-310--8 CAR § 310-106}

8 CAR § 310-106. Enforcement.

The certificate of need program provides that:

(1) No certificate of need application will be accepted nor will a certificate of need be issued to any applicant where the solid waste landfill disposal capacity for the respective area and class or classes of permit under review exceeds twenty-five (25) years at the time of the notice of intent (8 CAR § 310-105) is submitted;

(2) No certificate of need application will be accepted for review unless a notice of intent has been filed in accordance with 8 CAR § 310-105; and

(3) The Southwest Arkansas Regional Solid Waste Management District Board will only issue a certificate of need for applications which are found to be needed.

8 CAR § 310-107 Adoption and public notice of review procedures and criteria {#sec-8-car-310-107 omnilex-key=us-ar-regs-official--title-8-part-310--8 CAR § 310-107}

8 CAR § 310-107. Adoption and public notice of review procedures and criteria.

(a) Before the Southwest Arkansas Regional Solid Waste Management District Board adopts these proposed review procedures and criteria, or any revisions to the proposed review procedures and criteria, persons will be given the opportunity to offer written comments on the procedures and criteria.

(b) The board will mail a copy of the proposed revisions to the Division of Environmental Quality at the time notice is provided pursuant to subsection (c) of this section.

(c) The board will publish, in one or more newspapers of general circulation in the area of jurisdiction, a notice stating:

(1) That review procedures and criteria, or revisions to them, have been proposed for adoption and are available at the board office for inspection and copying; and

(2) The date of the public hearing referred to below.

(d)(1) Prior to the adoption of this part and any revisions to this part, the board shall conduct a public hearing not less than twenty (20) days before the effective date of adoption.

(2) The public hearing will be held in the county where the administrative office of the board is located.

8 CAR § 310-108 Procedures for certificate of need review {#sec-8-car-310-108 omnilex-key=us-ar-regs-official--title-8-part-310--8 CAR § 310-108}

8 CAR § 310-108. Procedures for certificate of need review.

(a) Notification of the beginning of a review.

(1)(A) Timely written notification will be sent to affected persons, at the beginning of a review of an application for a certificate of need, and to any person who has requested his or her name be on the Southwest Arkansas Regional Solid Waste Management District Board mailing list maintained by the board.

(B) Notification will include the:

(i) Proposed review period (subsection (b) of this section);

(ii) Date or dates of any scheduled or anticipated meetings and the public hearing to be held during the course of review; and

(iii) Location where information related to the request for certificate of need may be reviewed.

(2) For purposes of this subsection, the date of notification is the date on which the notice is sent or the date on which the notice appears in a newspaper of general circulation, whichever is later.

(3) Written notification to affected persons will be made by fax, mail, or email, and notification to members of the public will be provided through a newspaper of general circulation and public information channels in the Southwest Arkansas Regional Solid Waste Management District service area, whichever is applicable.

(b) Review period.

(1) The board will establish a review period, which will include:

(A) The date of the public hearing to be held in the county where the proposed solid waste landfill is to be located; and

(B) The date of final board finding (normally sixty (60) days or fewer from the date of notification).

(2) The review period begins on the date established in subsection (a) of this section.

(c) Public comment period. The board will accept written comments regarding an application for the period from the date of notification (subsection (a) of this section) through the close of business on the date of the public hearing (subsection (f) of this section) regarding the application for which notification was made.

(d) Information requirements.

(1) There is a provision for persons subject to a review to submit to the board information that the board requires relating to 8 CAR § 310-103(e).

(2) The form, manner, and content of the information will be as follows:

(A)(i) The applicant’s petition for a certificate of need shall include:

(a) Applicant name, address, and telephone number;

(b) Contact person and telephone number;

(c) Name of individual/organization having legal ownership of the land where the proposed site and/or existing landfill is located;

(d) Description of geopolitical jurisdictions to be served, including population estimates by jurisdiction;

(e) Documentation that the proposed solid waste landfill complies with each of the criteria enumerated in 8 CAR § 310-103(e);

(f) Amount of disposal capacity being proposed (stated in years) and description of how the capacity was calculated; and

(g) Other information deemed necessary to make determination of need.

(ii) This information will be specified and requested of the applicant within two (2) weeks of receipt of initial application.

(iii) The beginning of review (subsection (a) of this section) will not commence until all information is on file with the board; and

(B) An application for a certificate of need will not be placed under review nor will notification of beginning of review be made until or unless the application contains the information specified herein, and has been determined to be complete.

(e) Written findings and conditions.

(1)(A) Written findings, including specific documentation, which state the basis for any final decision made by the board are required.

(B) When a certificate of need is to be issued, these findings will include the findings of need required by 8 CAR § 310-106.

(2) The board will not make its final decision subject to any condition unless the condition directly relates to criteria established under 8 CAR § 310-103(c) – (e) and 8 CAR § 310-109, and/or criteria prescribed by rule by the board in accordance with an authorization under state law.

(f) Public hearing in the course of review.

(1) The board will provide a public hearing during the course of review on each certificate of need application before the board makes its decision.

(2) The public hearing will be held in the county where the proposed solid waste disposal facility is to be located, and notification of said public hearing will be made in accordance with subdivision (a)(3) of this section.

(g) Ex parte contacts.

(1) After the commencement of a public hearing under subsection (e) of this section, and before a decision is made, there shall be no ex parte contacts between any person:

(A) Acting on behalf of the applicant; and

(B) On the board who exercises any responsibility respecting the application or withdrawal.

(2) Note. An “ex parte contact” means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding.

(h) Withdrawal of a certificate of need.

(1) An applicant for a certificate of need will need to specify the time the applicant will make an application for a solid waste landfill permit to the Division of Environmental Quality, and a time that, if and when a permit is issued by the division, that construction will be completed and operation of the permitted facility is to begin.

(2)(A) After issuance of a certificate of need, the board will periodically review the progress of the holder of the certificate of need in meeting the timetable specified in the approved application and report same to the division and the permit holder.

(B)(i) If on the basis of this review the board determines that the holder of the certificate of need is not meeting the timetable and is not making a good faith effort to meet it, the board may withdraw the certificate of need.

(ii) In withdrawing a certificate of need, the board will follow the procedures in subsection (f) of this section.

(i) Availability of reports — Method of obtaining public access.

(1) The board will provide, upon request:

(A) Notification of the status of the review of proposals;

(B) Findings made in the course of the reviews; and

(2) The board will maintain and keep on file, and will provide access by the general public, to:

(A) All applications reviewed by the board; and

(B) All other written materials essential to any review.

8 CAR § 310-109 Criteria for review of certificate of need applications {#sec-8-car-310-109 omnilex-key=us-ar-regs-official--title-8-part-310--8 CAR § 310-109}

8 CAR § 310-109. Criteria for review of certificate of need applications.

The Southwest Arkansas Regional Solid Waste Management District Board will utilize the following criteria in its review of petitions for certificates of need:

(1) 8 CAR § 310-103(c) – (e);

(2) The information provided by the applicant in the petition;

(3) The requirements and considerations of any needs assessments prepared pursuant to Acts 1989, No. 870, § 8;

(4) The location of the applicant’s proposed solid waste landfill based on the jurisdiction’s needs and its highway and road system;

(5) The need for the solid waste landfill based upon the jurisdiction’s excess projected capacity which is currently permitted for operation;

(6) That the approval of the certificate of need and resulting increase in landfill capacity for the respective class does not cause the jurisdiction’s excess projected capacity for that class to exceed thirty (30) years;

(7) In the case of existing or previously permitted landfills, the quality of operation and compliance by those facilities in the past; and

(8) Any solid waste management system plan, promulgated and approved pursuant to Acts 1971, No. 237, and to the extent these plans conform to an overall regional planning strategy.

8 CAR § 310-110 Continuing effect of a certificate of need {#sec-8-car-310-110 omnilex-key=us-ar-regs-official--title-8-part-310--8 CAR § 310-110}

8 CAR § 310-110. Continuing effect of a certificate of need.

(a)(1) When the Southwest Arkansas Regional Solid Waste Management District Board grants a certificate of need, the obligation for such approval shall be the submission of a preapplication to the Division of Environmental Quality within sixty (60) days of the date of the certificate of need.

(2) If after sixty (60) days a preapplication has not been submitted to the division, then the certificate of need shall be withdrawn as prescribed in 8 CAR § 310-108(h).

(b)(1) Under no conditions or circumstances shall a certificate of need be in effect for more than six (6) months, unless a permit application for which the certificate of need was issued is pending and active with the division.

(2) If in the event a permit application is denied or approved by the division, then the certificate of need for which the permit was requested becomes withdrawn.

(c) Under no conditions or circumstances shall a certificate of need be transferred, assigned, or otherwise provided to any individual or organization other than as originally specified on the certificate of need.

8 CAR § 310-111 The sixty-day application process for certificate of need reviews {#sec-8-car-310-111 omnilex-key=us-ar-regs-official--title-8-part-310--8 CAR § 310-111}

8 CAR § 310-111. The sixty-day application process for certificate of need reviews.

(a) The following is a summary of the process for submitting, and the progression of, an application for certificate of need.

(b) Each step in the process must be completed prior to issuing or denying a certificate of need:

(1)(A) Letter of intent.

(B) A letter of intent is required for every proposal to be reviewed.

(C) A potential applicant must submit a letter of intent to the Southwest Arkansas Regional Solid Waste Management District Board prior to submission of an application (refer to 8 CAR § 310-105);

(2)(A) Submission of application to the Division of Environmental Quality.

(B) The applicant is responsible for submitting all information concerning the proposed acquisition of a certificate of need for the purpose of obtaining a solid waste landfill permit (refer to 8 CAR § 310-108(d));

(3)(A) Determination of completeness.

(B) The board will determine the completeness of an application, and within two (2) weeks of receipt of an application, notify the applicant of any additional information necessary for completion of the application.

(C) If no request for additional information is made by the board within two (2) weeks, the application will be deemed to be complete and affected persons will be notified of the beginning of review (refer to 8 CAR § 310-108(a) and (d));

(4)(A) Beginning of review.

(B) The initiation of the sixty-day review period begins on the date of notification by the board, by letter, to the applicant of the completeness of the application and the beginning of the review or the date that public notice appears in the newspapers, whichever is later (refer to 8 CAR § 310-108(a));

(5)(A) Notification of the beginning of review.

(B) Upon determination of completeness, the board will notify, in writing, the applicant and all other affected persons that the review period for the application has begun (refer to 8 CAR § 310-108(a) and (b));

(6)(A) Public hearing during course of review.

(B) The board will provide a public hearing during the course of review (refer to 8 CAR § 310-108(f)); and

(7)(A) Board findings.

(B) The board will make a final determination on the application based on the established criteria and will provide written findings which state the basis for the final determination (refer to 8 CAR § 310-108(f)).

(i) The applicant;

(ii) The division; and

(iii) Others upon request.

8 CAR § 310-112 Appeals of decision of the board {#sec-8-car-310-112 omnilex-key=us-ar-regs-official--title-8-part-310--8 CAR § 310-112}

8 CAR § 310-112. Appeals of decision of the board.

Any interested party to a certificate of need determination by the Southwest Arkansas Regional Solid Waste Management District Board may appeal the decision to the Director of the Division of Environmental Quality pursuant to procedures adopted by the Arkansas Pollution Control and Ecology Commission.

8 CAR Part 310 — Policies, Procedures, and Criteria for Acts 1989, No. 870, Certificate of Need Review for Solid Waste Landfill Facilities