------------------------------------------------------------------------------------------ ¦ REFERENCE TITLE: waste permits; disparate impact ¦ ------------------------------------------------------------------------------------------ ¦ ¦ ¦ ¦ ¦ ¦ ¦ State of Arizona ¦ ¦ House of Representatives ¦ ¦ Forty-fifth Legislature ¦ ¦ First Regular Session ¦ ¦ 2001 ¦ ¦ ¦ ------------------------------------------------------------------------------------------ ¦ HB 2457 ¦ ------------------------------------------------------------------------------------------ ¦ Introduced by ¦ ¦ Representatives Loredo, Avelar, Cardamone, Lopez L, Norris, Burton Cahill, Brotherton, ¦ ¦ Landrum, Foster, Senator Valadez: Representatives Binder, Camarot, Carruthers, Chase, ¦ ¦ Cheuvront, Clark, Giffords, Hershberger, Laughter, Lugo, Pickens, Sedillo, Soltero, Tom, ¦ ¦ Weason, Senators Aguirre, Jackson, Lopez J ¦ ------------------------------------------------------------------------------------------
AN ACT
AMENDING SECTIONS 49-761 AND 49-922, ARIZONA REVISED STATUTES; RELATING TO THE ENVIRONMENT.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 49-761, Arizona Revised Statutes, is amended to read:
49-761. Rule making authority for solid waste facilities; financial assurance; recycling facilities
A. The department shall adopt rules regarding the storage, processing, treatment
and disposal of solid waste as prescribed by subsections B through M of this section. In
adopting rules, the department shall consider the nature of the waste streams at the
facilities to be regulated. The department shall also consider other applicable federal
and state laws and rules in an effort to avoid practices or requirements that duplicate,
are inconsistent with or will result in dual regulation with other applicable rules and
laws. In adopting rules for solid waste facilities, the director may include
requirements for corrective actions in response to a release, as defined in section 49-
281, from a solid waste facility that violates or results in a violation of any provision
of this chapter, rule promulgated ADOPTED pursuant to this chapter or solid
waste facility plan approved pursuant to this chapter. These rules shall be consistent
with the provisions of section 49-762.08, subsection B, subsection C, paragraphs 1 and 2,
and subsections D and E.
B. For purposes of administering 42 United States Code section 6945, as amended November 8, 1984, 40 C.F.R. part 258 is adopted by reference except as prescribed by paragraph 2 of this subsection. This subsection, as it applies to municipal solid waste landfills, governs if there is any conflict between this subsection and any other statute relating to solid waste. Municipal solid waste landfill facility plans submitted pursuant to section 49-762 shall comply with this subsection. In administering this subsection or in adopting or administering any rules adopted pursuant to this subsection, the department shall ensure that any discretion allowed to a director of an approved state pursuant to the federal regulations is maintained. The following apply to the department's administration of 42 United States Code section 6945 and to the department's adoption of rules for municipal solid waste landfills:
1. The department may adopt rules for municipal solid waste landfills. Rules adopted pursuant to this paragraph shall not be more stringent than or conflict with 40 C.F.R. part 258 for nonprocedural standards, except that the department may adopt aquifer protection standards that are more stringent than 40 C.F.R. part 258 if those standards are consistent with and no more stringent than standards developed pursuant to chapter 2, article 3 of this title, or if the standards are adopted pursuant to article 9 of this chapter. Rules adopted pursuant to this paragraph are effective on the concurrence of the administrator with this state's municipal solid waste landfill program.
2. 40 C.F.R. part 258, table I is not adopted in its entirety. The department shall use aquifer water quality standards that have been adopted by the department pursuant to section 49-223 and shall use those portions of table I that are more restrictive than the standards adopted pursuant to section 49-223.
C. The department shall adopt rules for those solid waste land disposal facilities that are not municipal solid waste landfills. Rules adopted pursuant to this subsection shall not be more stringent than or conflict with 40 C.F.R. part 257 for nonprocedural standards, except that the department may adopt aquifer protection standards that are more stringent than 40 C.F.R. part 257 if these standards are consistent with and no more stringent than standards developed pursuant to chapter 2, article 3 of this title, or if the standards are adopted pursuant to article 9 of this chapter. In administering this subsection, the department shall ensure that any discretion allowed to a director of an approved state pursuant to the federal regulations is maintained in the department's rules. Aquifer protection provisions adopted pursuant to this subsection do not apply to an owner or operator of a solid waste facility if the owner or operator submits an administratively complete application for an aquifer protection permit pursuant to chapter 2, article 3 of this title before the date that the owner or operator is required to submit a solid waste facility plan.
D. The department shall adopt rules to define biohazardous medical waste and to regulate biohazardous medical waste and medical sharps to include all of the following:
1. A definition for biohazardous medical waste that includes wastes that contain material that is likely to transmit etiologic agents that have been shown to cause or contribute to increased human morbidity or mortality of epidemiologic significance. The department shall consult with the department of health services in making this determination.
2. Reasonably necessary rules regarding the storage, collection, transportation, treatment and disposal of biohazardous medical waste and medical sharps, beginning with the placement by the generator of the waste in containers for the purpose of waste collection. In the case of self-hauling of waste by the generator, all storage facilities under the generator's control and all waste handling practices including storage, treatment and transportation shall be in accordance with these rules. The department shall also adopt reasonably necessary rules regarding the tracking of biohazardous medical waste and medical sharps.
E. The department may adopt reasonably necessary rules regarding the storage, collection, transportation, treatment and disposal of nonbiohazardous medical waste beginning with the placement by the generator of the waste in containers for the purpose of waste collection. In the case of self-hauling of the waste by the generator, all storage facilities under the generator's control and all waste handling practices including storage, treatment and transportation shall be in accordance with these rules.
F. The department shall adopt rules for the application of sludge from a wastewater treatment facility to land for use as fertilizer or beneficial soil amendment. For purposes of this subsection, "sludge" has the same meaning as sewage sludge as defined in 40 Code of Federal Regulations section 122.2 in effect on January 1, 1998.
G. The department shall adopt rules regarding the storage, processing, treatment or disposal of solid waste at solid waste facilities that are identified in section 49- 762.01. The rules shall allow the owner or operator to certify compliance with the department's statutes and rules in lieu of obtaining a solid waste facility plan approval. The rules shall provide that the applicant at its option may request approval of a solid waste facility plan rather than certifying compliance.
H. The department shall issue by rule best management practices for the classes of solid waste facilities set forth in section 49-762.02.
I. The department shall adopt reasonably necessary rules establishing minimum standards for storing, collecting, transporting, disposing and reclaiming solid waste, including garbage, trash, rubbish, manure and other objectionable wastes. These rules shall provide for inspecting premises, containers, processes, equipment and vehicles, and for abating as environmental nuisances any premises, containers, processes, equipment or vehicles that do not comply with the minimum standards of these rules. The rules adopted pursuant to this subsection do not apply to sites that are either regulated by section 49-762, 49-762.01 or 49-762.02 or exempted by section 49-701, paragraph 29 or section 49- 701.01. Notwithstanding any other provision of this subsection, rules adopted pursuant to this subsection shall apply to defining environmental nuisances pursuant to section 49- 141.
J. The department shall adopt rules relating to financial assurance requirements. The rules shall indicate the types of financial assurance mechanisms to be required and the content, terms and conditions of each financial mechanism, including circumstances under which the department may take action on the financial assurance mechanism for facility closure, postclosure care if necessary and corrective action for known releases. The financial assurance mechanisms shall include all of the following:
1. Surety bond.
2. Certificate of deposit.
3. Trust fund with pay-in period.
4. Letter of credit.
5. Insurance policy.
6. Certificate of self-insurance.
7. Deposit with the state treasurer.
8. Evidence of ability to meet any of the following:
(a) Corporate financial test.
(b) Local government financial test.
(c) Corporate guarantee test.
(d) Local government guarantee test.
(e) Political subdivision financial test that shall require the department to consider the entity's bond rating, income stream, assets, liabilities and assessed valuation of taxable property.
9. Multiple financial assurance mechanisms.
10. Additional financial assurance mechanisms that may be acceptable to the director.
K. The department shall adopt rules that prescribe standards to be used in determining if a site is a recycling facility.
L. The director may adopt rules that prescribe standards to be used in determining if a solid waste facility includes significant solid waste transfer activities that warrant the facility's regulation as a transfer facility.
M. The department shall adopt facility design, construction, operation, closure and postclosure maintenance rules for biosolids processing facilities and household waste composting facilities that must obtain plan approval pursuant to section 49-762.
N. THE DEPARTMENT SHALL ADOPT RULES FOR THE SITING OF A FACILITY THAT PROVIDE THAT BEFORE ISSUING A PERMIT PURSUANT TO THIS ARTICLE THE DEPARTMENT SHALL CONSIDER WHETHER APPROVAL OF THE PROPOSED PERMIT WILL HAVE A DISPARATE IMPACT OR WILL ADD TO AN EXISTING DISPARATE IMPACT ON A RACIAL OR ETHNIC POPULATION. THE RULES SHALL PROVIDE FOR CONSIDERATION OF DEMOGRAPHIC, GEOGRAPHIC, ECONOMIC, AND HUMAN HEALTH AND RISK FACTORS. THE DEPARTMENT SHALL PROVIDE NOTICE TO THE APPLICANT OF ITS PRELIMINARY FINDINGS OF ANY DISPARATE IMPACT AND SHALL PROVIDE THE APPLICANT AND ANY OTHER INTERESTED PERSONS AT LEAST SIXTY DAYS TO COMMENT IN WRITING TO THE DEPARTMENT REGARDING THE PRELIMINARY FINDINGS. THE DEPARTMENT MAY HOLD A HEARING TO RECEIVE ADDITIONAL COMMENTS FROM THE APPLICANT AND OTHER INTERESTED PERSONS. THE DEPARTMENT SHALL CONSIDER THE SUBMITTED COMMENTS AND THE DIRECTOR SHALL ISSUE A DECISION WITHIN SIXTY DAYS AFTER THE END OF THE COMMENT PERIOD. IF THE DIRECTOR DETERMINES THAT APPROVAL OF THE PROPOSED PERMIT WILL HAVE A DISPARATE IMPACT OR WILL ADD TO AN EXISTING DISPARATE IMPACT ON A RACIAL OR ETHNIC POPULATION, THE DIRECTOR SHALL DENY THE REQUESTED ACTION.
Sec. 2. Section 49-922, Arizona Revised Statutes, is amended to read:
49-922. Department rules and standards; prohibited permittees
A. The director shall adopt rules to establish a hazardous waste management program
equivalent to and consistent with the federal hazardous waste regulations promulgated
pursuant to subtitle C of the federal act. Federal hazardous waste regulations may be
adopted by reference. The director shall not adopt a nonprocedural standard that is more
stringent than or conflicts with those found in 40 Code of Federal Regulations
sections PARTS 260 through 268, 270 through 272, 279 and 124. The director
shall not identify a waste as hazardous, if not so identified in the federal hazardous
waste regulations, unless the director finds, based on all the factors in 40 Code of
Federal Regulations section 261.11(a)(1), (2), or (3), that the waste may cause or
significantly contribute to an increase in serious irreversible, or incapacitating
reversible, illness or pose a substantial present or potential hazard to human health or
the environment when it is improperly treated, stored, transported, disposed OF or
otherwise managed.
B. These rules shall establish criteria and standards for the characteristics, identification, listing, generation, transportation, treatment, storage and disposal of hazardous waste within this state. In establishing the standards the director shall, where appropriate, distinguish between new and existing facilities. The criteria and standards shall include requirements respecting:
1. Maintaining records of hazardous waste identified under this article and the manner in which the waste is generated, transported, treated, stored or disposed.
2. Submission of reports, data, manifests and other information necessary to ensure compliance with such standards.
3. The transportation of hazardous waste, including appropriate packaging, labeling and marking requirements and requirements respecting the use of a manifest system, which are consistent with the regulations of the state and United States departments of transportation governing the transportation of hazardous materials.
4. The operation, maintenance, location, design and construction of hazardous waste treatment, storage or disposal facilities, including such additional qualifications as to ownership, continuity of operation, contingency plans, corrective actions and abatement of continuing releases, monitoring and inspection programs, personnel training, closure and postclosure requirements and financial responsibility as may be necessary and appropriate.
5. Requiring a permit for a hazardous waste treatment, storage or disposal facility including the modification and termination of permits, the authority to continue activities and permits existing on July 27, 1983 consistent with the federal hazardous waste regulations, and the payment of a reasonable application fee. The director shall establish and collect a reasonable fee from the applicant to cover the cost of administrative services and other expenses associated with evaluating the application and issuing or denying the permit.
6. Providing the right of entry for inspection and sampling to ensure compliance with the standards.
7. Providing for appropriate public participation in developing, revising, implementing, amending and enforcing any rule, guideline, information or program under this article consistent with the federal hazardous waste program.
C. The director may refuse to issue a permit for a facility for storage, treatment or disposal of hazardous waste to a person if any of the following applies:
1. The person fails to demonstrate sufficient reliability, expertise, integrity and competence to operate a hazardous waste facility.
2. The person has been convicted of, or pled guilty or no contest to, a felony in any state or federal court during the five years before the date of the permit application.
3. In the case of a corporation or business entity, if any of its officers, directors, partners, key employees or persons or business entities holding ten per cent or more of its equity or debt liability has been convicted of, or pled guilty or no contest to, a felony in any state or federal court during the five years before the date of the permit application.
D. THE DEPARTMENT SHALL ADOPT RULES FOR THE SITING OF A FACILITY THAT PROVIDE THAT BEFORE ISSUING A PERMIT PURSUANT TO THIS ARTICLE THE DEPARTMENT SHALL CONSIDER WHETHER APPROVAL OF THE PROPOSED PERMIT WILL HAVE A DISPARATE IMPACT OR WILL ADD TO AN EXISTING DISPARATE IMPACT ON A RACIAL OR ETHNIC POPULATION. THE RULES SHALL PROVIDE FOR CONSIDERATION OF DEMOGRAPHIC, GEOGRAPHIC, ECONOMIC, AND HUMAN HEALTH AND RISK FACTORS. THE DEPARTMENT SHALL PROVIDE NOTICE TO THE APPLICANT OF ITS PRELIMINARY FINDINGS OF ANY DISPARATE IMPACT AND SHALL PROVIDE THE APPLICANT AND ANY OTHER INTERESTED PERSONS AT LEAST SIXTY DAYS TO COMMENT IN WRITING TO THE DEPARTMENT REGARDING THE PRELIMINARY FINDINGS. THE DEPARTMENT MAY HOLD A HEARING TO RECEIVE ADDITIONAL COMMENTS FROM THE APPLICANT AND OTHER INTERESTED PERSONS. THE DEPARTMENT SHALL CONSIDER THE SUBMITTED COMMENTS AND THE DIRECTOR SHALL ISSUE A DECISION WITHIN SIXTY DAYS AFTER THE END OF THE COMMENT PERIOD. IF THE DIRECTOR DETERMINES THAT APPROVAL OF THE PROPOSED PERMIT WILL HAVE A DISPARATE IMPACT OR WILL ADD TO AN EXISTING DISPARATE IMPACT ON A RACIAL OR ETHNIC POPULATION, THE DIRECTOR SHALL DENY THE REQUESTED ACTION.
D. E. Nothing in this article shall affect the validity of any existing
rules adopted by the director that are equivalent to and consistent with the federal
hazardous waste regulations until new rules for hazardous waste are adopted.
E. F. Nothing in this article shall authorize the regulation of small
quantity generators as defined by 40 Code of Federal Regulations section 261.5 in a
manner inconsistent with the federal hazardous waste regulations. However, the director
may require reports of any small quantity generator or group of small quantity generators
regarding the treatment, storage, transportation, disposal or management of hazardous
waste if the hazardous waste of such generator or generators may pose a substantial
present or potential hazard to human health or the environment when it is improperly
treated, stored, transported, disposed OF or otherwise managed.