Current through Register Vol. 49, No. 2, February 2024
CERTIFICATE OF NEED REVIEW FOR SOLID WASTE FACILITIES
Rule 1. Description
The Southeast Arkansas Regional Solid Waste Management Board
(SEARSWMB) is the designated Board to conduct the solid waste planning and
management responsibilities mandated in Section Four (4) of Arkansas Act 870 of
1989. This Board has been duly designated under the terms and conditions
prescribed in Section Three (3) or Section Nine (9), as applicable, of Act 870
of 1989, and its jurisdictional boundaries include: Arkansas, Ashley, Bradley,
Chicot, Cleveland, Desha, Drew, Grant, Jefferson, and Lincoln Counties.
The State law referred to above provides that the SEARSWMB shall
have the following powers and duties:
a. Collect data, study and evaluate the solid
waste management needs of all localities within this jurisdiction, as provided
in Section Five (5) of the law, and to publish findings as a Regional Needs
Assessment;
b. Evaluate on a
continuous basis the solid waste needs of this jurisdiction, and thereby update
the Regional Needs Assessments at least biennially, yearly, or as required by
the Arkansas Department of Energy and Environment, Division of Environmental
Quality (DEQ);
c. Formulate
recommendations to all local governments within this jurisdiction on solid
waste management issues, and to formulate plans for providing adequate solid
waste management;
d. Issue or deny
Certificates of Need to any applicant for a solid waste facility permit within
this jurisdiction;
e. Adopt such
rules or regulations as necessary to assure:
1) consistency of review and decision making
procedures/criteria among the Boards, and
2) public notice and participation in any
findings or rulings of this Board; and
f. Carry out all other powers and duties
conferred by Act 870 of 1989.
Rule
2. Definitions
Affected Persons:
Includes: the applicant; DEQ; the Regional Solid Waste Management
Board (RSWMB) for the area in which the proposed solid waste facility is to be
located; the RSWMB having jurisdiction in contiguous areas to the location;
units of general local government within the geographic area served, or to be
served, by the applicant and within the Regional Solid Waste Management
District (RSWMD); and solid waste facility permittees having a permitted solid
waste facility in the RSWMD in which the solid waste facility is proposed to be
located.
Interested Party:
The Director or his designee, the Board, the person making
application to the Board or any person submitting written comments on the
application within the public comment period.
Certificate of Need:
A certificate issued by the SEARSWMB to an individual or
organization proposing to obtain a solid waste facility permit for solid waste
disposal or transfer. The certificate recognizes that such solid waste
facility, when available, will be needed by those for whom it is intended. A
Certificate of Need is a condition of application for a solid waste facility
permit under the Arkansas Solid Waste Management Code. The Department may deny
any permit based upon the denial of a Certificate of Need by the
SEARSWMB.
Certificate of Need
Review:
Review of petitions for Certificates of Need where the solid
waste facility, if permitted, will be located in this jurisdictional area.
Under Arkansas Act 870 of 1989, RSWMBs are required to have the respective
Board administer a Certificate of Need Review Program.
Solid Waste:
All putrescible and non-putrescible waste in solid or semi-solid
form, including, but not limited to, yard and food waste, waste glass, waste
metals, waste plastics, waste papers, waste paperboard and all other solid or
semi-solid wastes resulting from industrial, commercial, agricultural,
community and residential activities.
Solid Waste
Facility:
A permitted landfill under the Arkansas Solid Waste Act, Ark.
Code Aim. §
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 waste generated by the industry or waste of a
similar kind of character. Facility also includes, except as limited above,
disposal sites, which means any place at which solid waste is dumped,
abandoned, or accepted or disposed of for final disposition by incineration,
landfilling, composting, or any other method; and transfer stations, which
means a facility that is used to manage the removal, compaction, and transfer
of solid waste from collection vehicles and other small vehicles to greater
capacity transport vehicles.
Rule
3. Purpose and Applicability
a.
The SEARSWMB will administer the Certificate of Need Review Program which:
1) applies to the offering of new or
increased solid waste facility disposal capacity or transfer within its
jurisdictional boundaries, and
2) is
consistent with the laws of the State.
b. In performing its review functions, the
SEARSWMB shall follow procedures and apply criteria developed in accordance
with procedures and regulations herein.
Rule 4. General
a. The SEARSWMB will administer a Certificate
of Need Review Program within its jurisdictional boundaries.
b. Only the SEARSWMB will issue or deny
Certificates of Need for proposed solid waste facility permits within its
jurisdictional boundaries.
c. In
issuing or denying Certificates of Need, the SEARSWMB will take into account
the findings enumerated in the Regional Needs Assessment Report applicable to
the area where the solid waste facility site is proposed, and the criteria
enumerated in Rule 4, Paragraphs c, d, e, and Rule 10.
d. Each decision of the SEARSWMB to issue a
Certificate of Need must be consistent with the Regional Needs
Assessment.
e. Each decision of the
SEARSWMB to issue or deny a Certificate of Need must be based on documented
evidence clearly indicating that the proposed solid waste facility;
1) Is consistent with the regional planning
strategy adopted by the SEARSWMB in the Regional Needs Assessment or the
Regional Solid Waste Management Plan;
2) Does not conflict with existing
comprehensive land use plans of any local governmental entities;
3) Does not disturb an archaeological site as
recognized by the Arkansas Archaeological Survey, or a Rare and Endangered
Species habitat as recognized by the Arkansas Game and Fish Commission or the
U.S. Fish and Wildlife Service;
4)
Will not adversely affect the public use of any local, state, or federal
facility, including, but not limited to, parks and wildlife management
areas;
5) Does not conflict with
the requirements of state laws, rules and regulations or federal laws, rules
and regulations on the location of disposal facilities;
6) If located in the hundred-year floodplain,
does not restrict the flow of the hundred-year flood, reduce the temporary
water storage capacity of the floodplain, or result in washout of solid waste
so as to pose a hazard to human health or the environment;
7) If the transfer station proposes to
transfer waste outside of the RSWMD in which it is located, the petition shall
also contain documentation that the district to which the waste will be
transferred has been notified and that the board of that district has approved
the receipt of the waste. This provision shall not apply if the waste is being
transported for disposal outside the geographical limits of this
state;
8) Any other information
deemed necessary by the Board; and
9) Subject to DEQ Rule 22 and any amendment
to DEQ Rule 22.
NOTE: The decision of the SEARSWMB to issue or deny a Certificate
of Need shall not be based on any technical merits related to proposed or
existing solid waste facilities.
Rule 5. Scope of Certificate of Need Program
The SEARSWMB will conduct reviews for new or increased solid
waste facility disposal capacity or transfer to be located, or proposed to be
located, within its jurisdictional boundaries and which are subject to review
under the Certificate of Need Program. Following are the only types of permits
that are reviewable under the Certificate of Need Program:
a. Permits for new solid waste facility
disposal sites,
b. Transfers of
existing solid waste landfill facility permits, and
c. Reclassification of existing solid waste
facility disposal permits.
Rule
6. Notice of Intent
Before any person submits a petition for a Certificate of Need,
that person must notify the SEARSWMB at least thirty (30) days prior to the
submission of said petition. The information required in the "notice of intent"
shall include:
a. Name of
applicant;
b. Applicant's address
and telephone number;
c. Contact
person, telephone number and e-mail address;
d. Whether the applicant is seeking a new, or
transfer or reclassification of an existing solid waste facility
permit;
e. Site map of the proposed
or existing solid waste facility, including precise legal description and total
acreage;
f. Description of the
geo-political jurisdictions to be served by the solid waste facility, including
population estimates by jurisdiction;
g. Confirmation from DEQ that the applicant
has requested a statement concerning the current and projected solid waste
disposal capacity respective to the area and solid waste facility class being
proposed;
h. Type of waste expected
to receive, amount, fees charged, projected income, new jobs created, source of
waste, name of owner and operator if different that applicant; an
i. Any other information deemed necessary by
the Board,
Rule 7.
Enforcement
The Certificate of Need Program provides that:
a. No Certificate of Need Application will be
accepted, nor will a Certificate of Need be issued to any applicant, where the
solid waste facility disposal capacity for the respective area and class(es) of
permit under review exceed twenty-five (25) years at the time the "Notice of
Intent" (Rule 6) is submitted.
b.
No Certificate of Need Application will be accepted for review unless a "Notice
of Intent" has been filed in accordance with Rule 6.
c. The SEARSWMB will only issue a Certificate
of Need for applications which are found to be needed.
Rule 8. Adoption and Public Notice of Review
Procedures and Criteria
Before the SEARSWMB 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. The SEARSWMB will mail a copy of the proposed
revisions to DEQ at the time notice is provided pursuant to the following
paragraph.
The SEARSWMB will publish, in one or more newspapers of general
circulation in the area of jurisdiction, a notice stating that review
procedures and criteria, or revisions to them, have been proposed for adoption
and are available at the SEARSWMB office for inspection and copying, and the
date of the public hearing referred to below.
Prior to the adoption of these rules and any revisions to these
rules, the SEARSWMB shall conduct a public hearing not less than twenty (20)
days before the effective date of adoption. The public hearing will be held in
the county where the administrative office of the SEARSWMB is located.
Rule 9. Procedures for Certificate
of Need Review
a. Notification of the
Beginning of a Review - 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 name on the SEARSWMB mailing list
maintained by the SEARSWMB. Notification will include the proposed review
period (Rule 9, Paragraph b), the date(s) of any scheduled or anticipated
meetings and the public hearing to be held during the course of review, and the
location where information related to the request for a Certificate of Need may
be reviewed.
1) For purposes of this
paragraph, 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; and
2) Written
notification to affected persons will be made by fax, mail, or e-mail; and
notification to members of the public will be provided through newspapers of
general circulation and public information channels in the jurisdictional
boundaries of the SEARSWMB.
b. Review Period - The SEARSWMB will
establish a review period, which will include:
1) the date of the public hearing to be held
in the County where the proposed solid waste facility is to be located;
and
2) the date of final SEARSWMB
finding (normally sixty (60) days or less from the date of notification). The
review period begins on the date established in Rule 9, Paragraph a.
c. Public Comment Period - The
SEARSWMB will accept written comments regarding an application for the period
from the date of notification (Rule 9, Paragraph a) through the close of
business on the date of the public hearing (Rule 9, Paragraph f) regarding the
application for which notification was made.
d. Information Requirements - There is a
provision for persons subject to a review to submit to the SEARSWMB information
that the SEARSWMB requires relating to Rule 4, Paragraph e. Items 1-9. The
form, manner, and content of the information will be as follows:
1. 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 solid waste
facility is located;
d. Description
of geopolitical jurisdictions to be served; including population estimates by
jurisdiction;
e. Documentation that
the proposed solid waste facility complies with each of the criteria enumerated
in Rule 4, Paragraph e, Items 1-9;
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. (This information will be specified
and requested of the applicant within two (2) weeks of receipt of initial
application. The beginning of review (Rule 9, Paragraph a) will not commence
until all information is on file with the SEARSWMB.)
2. 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 - Written
findings, including specific documentation, which states the basis for any
final decision made by the SEARSWMB are required. When a Certificate of Need is
to be issued, these findings will include the findings of need required by Rule
7. The SEARSWMB will not make its final decision subject to any condition
unless the condition directly related to criteria established under Rule 4,
Paragraphs c, d, e, and Rule 10 and/or criteria prescribed by regulation by the
SEARSWMB in accordance with an authorization under State law.
f. Public Hearing in the Course of Review -
The SEARSWMB will provide a public hearing during the course of review on each
Certificate of Need application (before the SEARSWMB makes it decision). The
public hearing will be held in the County where the proposed solid waste
facility is to be located, and notification of said public hearing will be made
in accordance with Rule 9, Paragraph a. Item 2.
g. Ex Parte Contacts - After the commencement
of a public hearing under Paragraph f, of Rule 9, and before a decision is
made, there shall be no "ex parte" contacts between:
(1) any person acting on behalf of the
applicant. and
(2) any person on or
employed by the SEARSWMB who exercises any responsibility respecting the
application or withdrawal.
NOTE: An "Ex Parte Contact" is defined as "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 - An
applicant for a Certificate of Need will specify the time the applicant will
make application for a solid waste facility permit to DEQ, and a time, that if
and when a permit is issued by DEQ, that construction will be completed and
operation of the permitted solid waste facility is to begin. After issuance of
a Certificate of Need, the SEARSWMB will periodically review the progress of
the holder to the Certificate of Need in meeting the timetable specified in the
approved application and report same to the DEQ and the holder of a Certificate
of Need. If on the basis of this review the SEARSWMB 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 SEARSWMB may withdraw the Certificate of
Need. In withdrawing a Certificate of Need, the SEARSWMB will follow the
procedures in Paragraph f of this Rule.
i. Availability of Reports; Method of
Obtaining Public Access - The SEARSWMB will provide upon request, notification
of the status of the review of proposals, findings made in the course of the
reviews, and other appropriate information respecting all reviews. For all
applications resulting in the issuance of a solid waste facility permit by DEQ,
the SEARSWMB will maintain, keep on file, and will provide access to the
general public all applications reviewed by the SEARSWMB and to all other
written materials essential to any review, for as long as the facility remains
permitted by DEQ. All applications that do not result in the issuance of a
solid waste facility permit by DEQ, will be maintained, kept on file, and
access provided to the general public, along with all other written material
essential to any review, for a period of seven (7) years, consistent with the
SEARSWMB's records retention policy.
Rule 10. Criteria for Review of Certificate
of Need Applications
The SEARSWMB will utilize the following criteria in its review of
petitions for Certificates of Need:
a.
Rule 4, Paragraphs c, d, and e;
b.
The information provided by the applicant in the petition;
c. The requirements and considerations of any
Needs Assessments prepared pursuant to Section 8 of Act 870;
d. The location of the applicant's proposed
solid waste facility based on the needs within the jurisdictional boundaries
and its highway and road system;
e.
The need for the solid waste facility based upon the jurisdiction's excess
projected capacity which is currently permitted for operation;
f. That the approval of the Certificate of
Need and resulting increase in solid waste facility capacity for the respective
class does not cause the jurisdiction's excess projected capacity for that
class to exceed thirty (30) years;
g. In the case of existing or previously
permitted solid waste facilities, the quality of operation and compliance by
those facilities in the past; and
h. Any Solid Waste Management System Plan
promulgated and approved pursuant to Arkansas Act 237 of 1971, and to the
extent these plans conform to an overall regional planning strategy.
Rule 11. Continuing Effect of a
Certificate of Need
a. When the SEARSWMB
grants a Certificate of Need, the obligation for such approval shall be the
submission of a pre-application to DEQ within sixty (60) days of the date of
the Certificate of Need. If after sixty (60) days a preapplication has not been
submitted to DEQ then the Certificate of Need shall be withdrawn as prescribed
in Rule 9, Paragraph h.
b. 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 was
issued is pending and active with DEQ. In the event a permit application is
denied or approved by DEQ, 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.
Rule
12 The Sixty (60) Day Application Process for Certificate of Need
Reviews
The following is a summary of the process for submitting and the
progression of an application for a Certificate of Need. Each step in the
process must be completed prior to issuing or denying a Certificate of
Need.
a. Notice of Intent - A notice
of intent is required for every proposal to be reviewed. A potential applicant
must submit a notice of intent to the SEARSWMB prior to submission of an
application. (Refer to Rule 6)
b.
Submission of Application to DEQ - 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 facility permit. (Refer to Rule 9,
Paragraph d)
c. Determination of
Completeness - The SEARSWMB 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. If no
requests for additional information are made by the SEARSWMB 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 Rule 9, Paragraphs a and
d)
d. Beginning of Review - The
initiation of the sixty (60) day review period begins on the date of
notification by the SEARSWMB, by letter, to the applicant of the completeness
of the application and the beginning of the review or the date that the public
notice appears in the newspapers, whichever is later. (Refer to Rule 9,
Paragraph a)
e. Notification of the
Beginning of Review - Upon determination of completeness, the SEARSWMB will
notify, in writing, the applicant and all other affected persons that the
review period for the application has begun. (Refer to Rule 9, Paragraphs a and
b)
f. Public Hearing During the
Course of Review - The SEARSWMB will provide a public hearing during the course
of review. (Refer to Rule 9, Paragraph f)
g. The SEARSWMB Findings - The SEARSWMB 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 Rule 9, Paragraph f) Such findings will be sent to:
1. The applicant,
2. DEQ, and
3. Others upon request.
Rule 13. Appeals of Decision of
the Southeast Arkansas Regional Solid Waste Management Board
a. Any interested party to a Certificate of
Need determination by a Board may appeal the decision to the Director of DEQ,
pursuant to procedures adopted by the DEQ.
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Be it resolved by the Southeast Arkansas Solid Waste Management
Board, a Resolution to be entitled:
A Resolution amending the Policies, Procedures, and Criteria for
Arkansas Act 870 of 1989 Certificate of Need Review for Solid Waste Landfill
&. Transfer Facilities.
WHEREAS, the Southeast Arkansas Regional Solid Waste Management
Board is responsible for the solid waste management of the entire solid waste
system of operation within the District;
WHEREAS, in order to carry out the duties and powers set forth in
Act 870 of 1989, the Board must set forth policies and procedures for a
Certificate of Need Review for the Solid Waste Landfill and Transfer
Facilities;
WHEREAS, the Board has previously developed and adopted a policy
and procedure for a Certificate of Need Review; and
WHEREAS, certain amendments to the current policy and procedure
for Certificate of Need Review are necessary as the current policy and
procedure, as filed with the Arkansas Secretary of State, is missing some
pages, and the amendment will result in a complete policy and procedure being
on file with the Arkansas Secretary of State.
NOW, THEREFORE BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE
SOUTHEAST ARKANSAS REGIONAL SOLID WASTE MANAGEMENT BOARD:
ARTICLE 1: The District Board of Directors
hereby approves and officially adopts the amended "Policies, Procedures, and
Criteria for Arkansas Act 870 of 1989 Certificate of Need Review for Solid
Waste Landfill and Transfer Facilities."
ARTICLE
2: The policy and procedure is renamed "Policies, Procedures, and
Criteria for Arkansas Act 870 of 1989 Certificate of Need Review for Solid
Waste Facilities."
ARTICLE 3: This
rule will become effective ten (10) days after the date of final filing with
the Arkansas Secretary of State.
ARTICLE
4: The Board hereby authorizes its Chair to submit to the Office
of the Arkansas Secretary of State the Policies, Procedure, and Criteria
attached hereto as Attachment 1, to be placed on file in the Arkansas Register.
ADOPTED:_________________
APPROVED:___________________
Jim Hudson, Chair
SEARSWMB
ATTEST: __________________________
Secretary
SEARSWMB
