The Honorable Jim Keet State Senator P.O. Box 23603 Little Rock, Arkansas 72221-3603
Dear Senator Keet:
This is in response to your request for an opinion, on behalf of the Board of Directors of the Pulaski County Regional Solid Waste Management District, as to whether the district's "certificate of need" regulations are applicable to Browning-Ferris Industries' proposed expansion of its landfill in south-central Pulaski County. A summary of the factual basis for the district's inquiry, which is provided in correspondence submitted with your request, is set forth below.
On February 22, 1991, the Arkansas Department of Pollution Control and Ecology (PC E) approved the transfer of a "Model Fill" landfill permit from Worth James Trust to Browning-Ferris Industries (BFI). As evidenced by a letter from PC E to BFI, PC E also approved the transfer from Worth James Trust to BFI of a pre-application for "Phase III." This pre-application for "Phase III" was submitted by Worth James Trust on January 25, 1989, and it was approved by PC E on October 27, 1989. ("Phase III" refers to the expansion of an existing landfill for which a permit already exists.) According to PC E, these transfers placed BFI in the position of Worth James Trust with respect to the pre-application process for "Phase III." These transfers, according to PC E, also make it unnecessary for BFI to obtain a "certificate of need" from the Pulaski County Regional Solid Waste Management District as part of the application process for expansion of the landfill. "Certificates of Need" are required of applicants for a solid waste landfill permit, and applicants must obtain a certificate "from the board with jurisdiction over the proposed site prior to submitting the application to the Department of Pollution Control and Ecology." A.C.A. § 8-6-706(a) (Repl. 1993). However, as enacted, the foregoing statute applies only to those applicants "[f]rom on and after January 31, 1991."See A.C.R.C. Notes to A.C.A. § 8-6-706 and Acts 1989, No. 870, § 8. Thus, applicants for solid waste landfill permits prior to January 31, 1991 are not required to obtain certificates of need. As Worth James Trust began the pre-application process for expansion of the landfill in 1989 and as the pre-application site approval for the expansion was transferred to BFI, it is the position of BFI and PC E that the certificate of need requirements do not apply in this instance. With regard to these matters, the Pulaski County Regional Solid Waste Management District has inquired as to whether BFI was required, pursuant to A.C.A. § 8-6-706(a), to submit its pre-application for expansion of the landfill to the district's certificate of need process.
Based on the correspondence submitted with your request, it is my opinion that BFI was not required to obtain a certificate of need from the Pulaski County Regional Solid Waste Management District for the pre-application for expansion of the landfill located in Pulaski County. As stated above, A.C.A. § 8-6-706(a) requires certificates of need of applicants for a solid waste landfillpermit. As BFI already has a permit for the landfill in question (pursuant to the transfer from Worth James Trust) and as a permit is not necessary for expansion of a landfill, the certificate of need requirements are not, in my opinion, applicable to BFI's expansion. This determination is also compelled by Rule 5 of the district's rules and regulations, which is entitled "Scope of Certificate of Need Program." This rule states that certificates may be issued regarding the following: "(a) Permits for any new solid waste landfill disposal site; or, (b) Transfer of an existing solid waste landfill disposal permit; or, (c) Reclassification of an existing solid waste landfill disposal permit."1 As BFI's current action with regard to the pre-application for expansion does not represent a permit for a new disposal site or a transfer (transfer has already occurred) or reclassification of an existing permit, the district's regulations with respect to certificates of need do not cover the expansion.
Sincerely,
WINSTON BRYANT Attorney General
WB:cyh
1 I assume that, as the transfer of the permit from Worth James Trust to BFI was approved by PC E on February 22, 1991 (after the effective date of A.C.A. § 8-6-706(a)), BFI obtained a certificate of need from the district pursuant to Rule 5(b) of the district's regulations. I was not, however, able to determine this from the correspondence submitted with your request.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Nancy A. Hall.