Research References

Ark. L. Notes.

Kelley, An Annotated Bibliography of Selected Environmental Law Resources of Interest to Practicing Attorneys, 1995 Ark. L. Notes 111.

Chapter 1 General Provisions

Research References

Ark. L. Notes.

Kelley, An Annotated Bibliography of Selected Environmental Law Resources of Interest to Practicing Attorneys, 1995 Ark. L. Notes 111.

U. Ark. Little Rock L.J.

Legislative Survey, Environmental Law, 16 U. Ark. Little Rock L.J. 111.

Subchapter 1 — General Provisions

Effective Dates. Acts 1991, No. 454, § 6: Mar. 11, 1991. Emergency clause provided: “It is hereby found and determined by the General Assembly that the Director of the Department of Pollution Control and Ecology is in need of additional authority to deny applications for the issuance or transfer of permits if he determines that an applicant, or person with substantial influence over the applicant, has a history of noncompliance with environmental laws or regulations; this act provides such authority and should be given immediate effect in order to grant additional environmental protection as soon as possible. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the protection of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1993, No. 1254, § 9: July 1, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that the provisions of this act are of critical importance to the state's ability to provide efficient and effective programs in the protection of the state's environment as mandated through the activities of the Department of Pollution Control and Ecology. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1993.”

Acts 1995, No. 509, § 7: Mar. 2, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that an adjustment is needed to adjust the collection cap due to additional fees to be generated by the permitting of composting facilities and transfer stations, and to clarify cost recovery authorization for administrative services provided by the Department of Pollution Control and Ecology. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 2007, No. 1281, § 52: July 1, 2007. Emergency clause provided: “It is found and determined by the General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 2007 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 2007 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 2007.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

8-1-101. Purpose.

  1. It is the purpose of this chapter to authorize the Arkansas Pollution Control and Ecology Commission to establish a system of fees for the issuance of permits required by §§ 8-4-101 — 8-4-106, 8-4-201 — 8-4-229, 8-4-301 — 8-4-314, 8-6-201 — 8-6-212, 8-6-214, and 8-9-403, to defray costs of other services provided and to authorize the Division of Environmental Quality to collect and enforce the fees.
  2. The express purpose of these fees shall be to defray the administrative costs of issuance, renewal, inspection, modification, and monitoring associated with these permits and other services provided.

History. Acts 1983, No. 817, § 1; A.S.A. 1947, § 82-1916; Acts 1993, No. 163, § 1; 1993, No. 165, § 1; 1995, No. 509, § 1; 1999, No. 1164, § 3; 2019, No. 693, § 1; 2019, No. 910, § 2417.

A.C.R.C. Notes. Sections 8-6-2158-6-217 have been superseded by § 8-1-106.

Amendments. The 2019 amendment by No. 693 substituted “8-6-214” for “8-6-213 [repealed], 8-6-214, 8-6-215 — 8-6-217 [superseded]” and substituted “the fees” for “these fees” in (a).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Department of Environmental Quality” in (a).

8-1-102. Definitions.

As used in this chapter:

  1. “Annual review fee” means that fee required by this chapter to be submitted upon the anniversary date of issuance of the permits required by the statutes enumerated in subdivision (6) of this section;
  2. “Commission” means the Arkansas Pollution Control and Ecology Commission;
  3. [Repealed.]
  4. [Repealed.]
  5. “Facility” means any activity or operation within a specific geographic location, including property contiguous thereto. A facility may consist of several treatment, storage, or disposal operational units;
  6. “Initial fee” means the fee required by this chapter to be submitted with all applications for water, air, and solid waste permits required by §§ 8-4-101 — 8-4-106, 8-4-201 — 8-4-229, 8-4-301 — 8-4-314, 8-6-201 — 8-6-212, 8-6-214, or 8-9-403; and
  7. “Modification fee” means the fee required to be submitted by this chapter for modification of any existing or future permit required by the statutes enumerated in subdivision (6) of this section, either at the request of the permittee or as required by the laws of the State of Arkansas or the rules of the Division of Environmental Quality.

History. Acts 1983, No. 817, § 2; A.S.A. 1947, § 82-1917; Acts 1993, No. 163, § 2; 1993, No. 165, § 2; 1995, No. 509, § 2; 1999, No. 1164, § 4; 2019, No. 315, § 422; 2019, No. 693, § 2; 2019, No. 910, § 2418.

A.C.R.C. Notes. Sections 8-6-2158-6-217 have been superseded by § 8-1-106.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (7).

The 2019 amendment by No. 693 substituted “the fee” for “that fee” and substituted “8-6-214” for “8-6-213 [repealed], 8-6-214, 8-6-215 — 8-6-217 [superseded]” in (6).

The 2019 amendment by No. 910 repealed (3) and (4).

8-1-103. Powers and duties.

The Division of Environmental Quality and the Arkansas Pollution Control and Ecology Commission shall have the following powers and duties, respectively:

    1. Following a public hearing and based upon a record calculating the reasonable administrative costs of evaluating and taking action on permit applications and of implementing and enforcing the terms and conditions of permits and variances, the commission shall establish, by rule, reasonable fees for initial issuance, annual review, and modification of water, air, or solid waste permits required by §§ 8-4-101 — 8-4-106, 8-4-201 — 8-4-229, 8-4-301 — 8-4-314, 8-6-201 — 8-6-212, 8-6-214, and 8-9-403. These fees shall consist of initial fees, annual review fees, and modification fees, as defined in § 8-1-102.
      1. All fees will be capped at no more than the appropriation. Provided, however, in setting reasonable permit fees, the commission shall:
          1. Set water permit fees calculated to generate revenues in any fiscal year greater than three and twenty-five hundredths (3.25) times the total amount collected from water permit fees in fiscal year 1992-1993.
          2. Provided, water permit fee revenues generated through permits issued for new facilities which are permitted after July 1, 1995, shall not be subject to the overall fee cap specified for water permit fees herein;
          1. Effective July 1, 2000, set water permit fees calculated to generate no revenues in any fiscal year greater than three and five-tenths (3.5) times the total amount collected from water permit fees in fiscal year 1992-1993.
          2. Provided, however, effective July 1, 2001, water permit fee revenues may be increased up to three percent (3%) per year; and
          1. Set solid waste permit fees for Class I and Class III landfills calculated to generate revenues in any fiscal year that exceed four and twenty-five hundredths (4.25) times the total amount of permit fees collected from Class I and Class III solid waste landfills in fiscal year 1992-1993.
          2. Provided, that the total fee revenues cannot exceed one and twenty-five hundredths (1.25) times the total amount collected from solid waste permit fees in fiscal year 1994-1995.
      2. Should the amount of permit fees levied on and received from permits existing prior to June 30, 1995, exceed the amounts specified in subdivision (1)(B)(i) of this section in a fiscal year, the overcollections may be retained by the division to be used to reduce permit fees in subsequent years by relative amounts.
      3. With the exception of major underground injection control wells, fees for no-discharge state permits will be capped at five hundred dollars ($500);
    1. The rules shall provide that the fees shall be assessed on a per-facility basis for the following categories of permits:
      1. Air;
      2. Water; and
      3. Solid waste.
    2. All annual fees for air permits issued under the state implementation plan or the rules promulgated pursuant to the Clean Air Act, 42 U.S.C. § 7401 et seq., shall be assessed in accordance with the Clean Air Act, 42 U.S.C. § 7401 et seq.
    3. The rules may include a provision for appropriate adjustments in the fees to reflect carryover fee collections in excess of the administrative costs of issuance, renewal, inspection, modification, and monitoring associated with these permits.
    4. Notwithstanding other provisions of this subchapter and other applicable laws, the commission is authorized to promulgate and the division is authorized to collect annual fees from facilities electing to operate under the terms and conditions of a pollution prevention plan in lieu of an air permit. The annual pollution prevention plan fee shall be equal to the fee otherwise applicable to facilities operating under an air permit;
  1. The division shall collect the permit fees as established by the commission and shall deny the issuance of an initial permit, a renewal permit, or a modification permit if and when any facility subject to control by the division fails or refuses to pay the fees after reasonable notice as established by the rules promulgated under this chapter;
  2. The division shall require that any fee defined in this chapter shall be paid prior to the issuance of any permit; and
  3. The division is hereby authorized to promulgate such rules necessary to administer the fees, rates, tolls, or charges for services established by this section and is directed to prescribe and collect such fees, rates, tolls, or charges for the services delivered by the division in such manner as may be necessary to support the programs of the division as directed by the Governor and the General Assembly.

History. Acts 1983, No. 817, § 3; A.S.A. 1947, § 82-1918; Acts 1987, No. 629, § 1; 1991, No. 789, § 1; 1993, No. 163, § 3; 1993, No. 165, § 3; 1993, No. 1254, §§ 1, 5; 1995, No. 509, § 3; 1995, No. 1056, § 1; 1997, No. 310, § 1; 1999, No. 1052, § 1; 1999, No. 1164, § 5; 2019, No. 315, §§ 423-426; 2019, No. 693, § 3; 2019, No. 910, §§ 2419-2422.

A.C.R.C. Notes. Sections 8-6-2158-6-217 have been superseded by § 8-1-106.

As amended by Acts 1995, Nos. 509 and 1056, subdivision (1)(B)(i) also provided: “In raising the cap for total fee revenues, fees for solid waste permits shall not increase in fiscal years 1995-96 and 1996-97.”

Publisher's Notes. Acts 1983, No. 817, § 4, provided that the initial fee will not be enforced retroactively against water, solid waste, or air pollution control facilities that hold valid permits as of July 4, 1983.

Acts 1991, No. 609, § 1, provided: “It is the public policy of this state that vigorous efforts be made to protect our fragile environment. Recognizing that duties concerning protection of the environment have been assigned to several agencies of state government, it is found that to enhance efforts to protect the environment, authority for instituting civil suits to protect the environment in the courts of this state and of the United States should be placed in the office of the Attorney General.”

Acts 1991, No. 609, § 3, provided: “This Act shall not be construed as superseding or impairing any legal authority currently vested with the Arkansas Department of Pollution Control and Ecology, nor shall this Act in any way affect programs delegated by federal agencies to the Arkansas Department of Pollution Control and Ecology.”

Acts 1993, No. 1254, § 5, codified as subdivision (5) of this section, is also codified as §§ 8-1-105(c) and 8-7-226(d).

Amendments. The 2019 amendment by No. 315 substituted “rule” for “regulation” in (1)(A); substituted “rules” for “regulations” three times in (2), and once in (3); and deleted “and regulations” following “rules” in (5).

The 2019 amendment by No. 693 substituted “8-6-214” for “8-6-213 [repealed], 8-6-214, 8-6-215 — 8-6-217 [superseded]” in (1)(A).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the introductory language; and substituted “division” for “department” throughout the section.

8-1-104. Existing rules.

All existing rules of the Division of Environmental Quality not inconsistent with the provisions of this chapter relating to subjects embraced within this chapter shall remain in full force and effect until expressly repealed, amended, or superseded if the rules do not conflict with the provisions of this chapter.

History. Acts 1983, No. 817, § 6; A.S.A. 1947, § 82-1921; 2019, No. 315, § 427; 2019, No. 910, § 2423.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “rules” in the section heading and twice in the section.

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality”.

8-1-105. Division of Environmental Quality Fee Trust Fund.

  1. A Division of Environmental Quality Fee Trust Fund is established on the books of the Treasurer of State, the Auditor of State, and the Chief Fiscal Officer of the State.
  2. All interest earnings and fees collected under the provisions of all laws administered by the Division of Environmental Quality shall be deposited into this fund unless otherwise provided by law. The division shall use these funds to defray the costs of operating the division.
  3. The division is hereby authorized to promulgate such rules as are necessary to administer the fees, rates, tolls, or charges for services established by this section and is directed to prescribe and collect such fees, rates, tolls, or charges for the services delivered by the division in such manner as may be necessary to support the programs of the division as directed by the Governor and the General Assembly.

History. Acts 1983, No. 817, § 5; A.S.A. 1947, § 82-1920; Acts 1993, No. 1254, §§ 2, 5; 1999, No. 1164, § 6; 2007, No. 1281, § 36; 2019, No. 315, § 428; 2019, No. 910, § 2424.

Publisher's Notes. Acts 1993, No. 1254, § 5, codified as subsection (c) of this section, is also codified as §§ 8-1-103(5) and 8-7-226(d).

Amendments. The 2007 amendment inserted “Trust” in (a) and “interest earnings and” in (b).

The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (c).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the section heading and throughout the section; and substituted “division” for “department” throughout the section.

Cross References. Arkansas Department of Environmental Quality Fee Trust Fund, § 19-5-1137.

8-1-106. Definitions — Disclosure statements — Denial of application — Appeal — Rules.

  1. As used in this section:
    1. “Affiliated person” means:
      1. Any officer, director, or partner of the applicant;
      2. Any person employed by the applicant in a supervisory capacity over operations of the facility that is the subject of the application that may adversely impact the environment, or with discretionary authority over such operations;
      3. Any person owning or controlling more than five percent (5%) of the applicant's debt or equity; and
      4. Any person who is not now in compliance or has a history of noncompliance with the environmental laws, rules, or regulations of this state or any other jurisdiction and who through relationship by affinity or consanguinity or through any other relationship could be reasonably expected to significantly influence the applicant in a manner that could adversely affect the environment;
    2. “Disclosure statement” means a written statement by the applicant that contains:
      1. The full name and business address of the applicant and all affiliated persons;
      2. The full name and business address of any legal entity in which the applicant holds a debt or equity interest of at least five percent (5%) or that is a parent company or subsidiary of the applicant, and a description of the ongoing organizational relationships as they may impact operations within the state;
      3. A description of the experience and credentials of the applicant, including any past or present permits, licenses, certifications, or operational authorizations relating to environmental regulation;
      4. A listing and explanation of any civil or criminal legal actions by government agencies involving environmental protection laws, rules, or regulations against the applicant and affiliated persons in the ten (10) years immediately preceding the filing of the application, including administrative enforcement actions resulting in the imposition of sanctions, permit or license revocations or denials issued by any state or federal authority, actions that have resulted in a finding or a settlement of a violation, and actions that are pending;
      5. A listing of any federal environmental agency and any other environmental agency outside this state that has or has had regulatory responsibility over the applicant; and
      6. Any other information the Director of the Division of Environmental Quality may require that relates to the competency, reliability, or responsibility of the applicant and affiliated persons; and
    3. “History of noncompliance” means past operations by an applicant that clearly indicate a disregard for environmental regulation or a demonstrated pattern of prohibited conduct that could reasonably be expected to result in adverse environmental impact if a permit were issued.
    1. Except as provided in subdivisions (b)(2) and (4) of this section, all applicants for the issuance or transfer of any permit, license, certification, or operational authority issued by the Division of Environmental Quality shall file a disclosure statement with their applications. Deliberate falsification or omission of relevant information from disclosure statements shall be grounds for civil or criminal enforcement action or administrative denial of a permit, license, certification, or operational authorization.
    2. The following persons or entities are not required to file a disclosure statement pursuant to this section:
        1. Governmental entities, consisting only of subdivisions or agencies of the federal government, agencies of the state government, counties, municipalities, or duly authorized regional solid waste management boards as defined by § 8-6-702.
        2. This exemption shall not extend to improvement districts or any other subdivision of government that is not specifically instituted by an act of the General Assembly; and
      1. Applicants for a general permit to be issued by the division pursuant to its authority to implement the National Pollutant Discharge Elimination System for storm water discharge or any other person or entity the Arkansas Pollution Control and Ecology Commission may by rule exempt from the submissions of a disclosure statement.
    3. Nothing in this subsection, including the exemptions in subdivision (b)(2) of this section, shall be construed as a limitation upon the authority of the director to deny a permit based upon a history of noncompliance to any applicant or for other just cause.
    4. If the applicant is a publicly held company required to file periodic reports under the Securities Exchange Act of 1934 or a wholly owned subsidiary of a publicly held company, the applicant shall not be required to submit a disclosure statement, but shall submit the most recent annual and quarterly reports required by the United States Securities and Exchange Commission that provide information regarding legal proceedings in which the applicant has been involved. The applicant shall submit such other information as the director may require that relates to the competency, reliability, or responsibility of the applicant and affiliated persons.
    5. For a person or an entity seeking a renewal of an expiring permit, license, certification, or operational authorization, the disclosure requirements of this section shall be met if the person or entity:
      1. Discloses any change in previously submitted information or verifies that the previously submitted information remains accurate; and
      2. Submits the information on forms developed by the division.
    6. The Arkansas Pollution Control and Ecology Commission may adopt rules exempting certain permits, licenses, certifications, or operational authorizations from the disclosure requirements and establish reasonable and appropriate disclosure information, if any, required for specific types of permits, licenses, certifications, or operational authorizations based on:
      1. The scope of a permit, license, certification, or operational authorization; and
      2. The person or entity that would receive a permit, license, certification, or operational authorization.
  2. The director may deny the issuance or transfer of any permit, license, certification, or operational authority if he or she finds, based upon the disclosure statement and other investigation which he or she deems appropriate, that:
    1. The applicant has a history of noncompliance with the environmental laws, rules, or regulations of this state or any other jurisdiction;
    2. An applicant that owns or operates other facilities in the state is not in substantial compliance with, or on a legally enforceable schedule that will result in compliance with, the environmental laws or rules of this state; or
    3. A person with a history of noncompliance with the environmental laws, rules, or regulations of this state or any other jurisdiction is affiliated with the applicant to the extent of being capable of significantly influencing the practices or operations of the applicant that could have an impact upon the environment.
  3. In reaching any decision pursuant to the requirements of this section, the director shall consider:
    1. The potential danger to the environment and public health and safety if the applicant's proposed activity is not conducted in a competent and responsible manner;
    2. The degree to which past and present activities in this state and other jurisdictions directly bear upon the reliability, competence, and responsibility of the applicant; and
    3. Any evidence of rehabilitation following past violations or convictions.
  4. Any person or legal entity aggrieved by a decision of the director under this section may appeal to the Arkansas Pollution Control and Ecology Commission through administrative procedures adopted by the Arkansas Pollution Control and Ecology Commission.
  5. The Arkansas Pollution Control and Ecology Commission shall adopt rules necessary to implement this section.

History. Acts 1991, No. 454, § 1; 1993, No. 163, § 4; 1993, No. 165, § 4; 1993, No. 1052, § 1; 1995, No. 384, § 1; 1999, No. 1164, § 7; 2007, No. 1005, § 1; 2007, No. 1019, §§ 1, 2; 2009, No. 1199, §§ 1, 2; 2011, No. 222, § 1; 2019, No. 315, §§ 429-433; 2019, No. 910, §§ 2425-2428.

Publisher's Notes. Acts 1991, No. 454, § 2, provided: “The provisions of this act expressly supersede those set out in Act 531 of 1989. This act does not supersede or affect in any way the Arkansas Surface Coal and Mining Act and implementing regulations as it impacts on the import of past or pending violations upon surface coal mining operators.”

The reference to the Arkansas Surface Coal and Mining Act in Acts 1991, No. 454, § 2, may refer to the Arkansas Surface Coal Mining and Reclamation Act of 1979.

Acts 1989, No. 531 was codified at § 8-6-213(a) [repealed] and §§ 8-6-2158-6-217 [superseded].

Amendments. The 2007 amendment by No. 1005 added “or any other person or entity the commission may by rule exempt from the submission of a disclosure statement” at the end of (b)(2)(B).

The 2007 amendment by No. 1019 substituted “means” for “includes, but is not limited to” in (a)(1)(A); substituted “subdivisions (b)(2) and (b)(4)” for “subdivision (4)” in (b)(1); substituted “subdivision (b)(2) of this section” for “subdivision (2) of this subsection” in (b)(3); added (b)(5) and (b)(6); and made related changes.

The 2009 amendment substituted “management boards as defined by § 8-6-702” for “authorities as defined by § 8-6-707” in (b)(2)(A)(i); consolidated (b)(5)(B) with (b)(5)(A); redesignated the subsequent subdivision as (b)(5)(B); and made related changes.

The 2011 amendment substituted “name and business address” for “name, business address, and social security number” in (a)(2)(A).

The 2019 amendment by No. 315 inserted “rules” in (a)(1)(D), (a)(2)(D), and throughout (c); and substituted “rules” for “regulations” in the introductory language of (b)(6), (c)(2), and (f).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(2)(F) and (b)(1); and substituted “division” for “department” in (b)(2)(B) and (b)(5)(B).

U.S. Code. The Securities Exchange Act of 1934, referred to in this section, is primarily codified as 15 U.S.C. § 78a et seq.

Cross References. State water pollution control agency and permit program for discharges into navigable waters, § 8-4-208.

Research References

U. Ark. Little Rock L.J.

Survey—Environmental Law, 14 U. Ark. Little Rock L.J. 779.

8-1-107. Inspections — Definitions — Investigations — Inspection warrant — Exceptions — Penalties.

  1. General. Whenever it shall be necessary for the purpose of implementing or monitoring the enforcement of any law charged to the authority of the Division of Environmental Quality, any authorized employee or agent of the division may enter upon any public or private property for the purpose of obtaining information or conducting investigations or inspections, subject to the following provisions.
  2. Definitions. As used in this section, the following terms shall have these ascribed meanings:
    1. “Administrative inspections” means investigation by division personnel at facilities operating within the division's apparent regulatory jurisdiction;
    2. “Facility” means the public or private area, premises, curtilage, building, or conveyance described as the subject of administrative inspection;
    3. “Pervasively regulated facility or activity” means the activity or facility that is the location of activity authorized by the division through a permit, license, certification, or operational status approval; and
      1. “Probable cause” means showing that an administrative search limited in scope is necessary to ensure compliance with or enforcement of laws, rules, federal regulations, or orders charged to the division for implementation.
      2. For the purpose of conducting administrative inspections or applying for administrative warrants, probable cause may be provided to the division through complaints or other means that reasonably justify a limited and controlled administrative inspection.
  3. Administrative Inspections.
      1. Whenever the division obtains information that supports reasonable cause to believe that a violation of any law within its regulatory authority is being or has been violated, or that unauthorized regulated conduct is occurring or has occurred, division personnel or its agents may demand entry onto any property, public or private, to inspect any facility.
      2. The division's investigation or inspection shall be limited to that necessary to confirm or deny the cause which prompted the investigation or inspection, and shall be conducted during daylight, during regular business hours, or, under emergency or extraordinary circumstances, at a time necessary to observe the suspected violation or unauthorized conduct.
      3. Except under emergency circumstances, the division shall inform such facility's owner or agent of all information which forms the basis of its probable cause at the time of the inspection.
    1. Nothing in this subsection shall be construed as requiring the division to forfeit the element of surprise in its inspection efforts.
    2. Also, nothing in this section shall be construed as limiting the frequency of the periodic or random inspections of pervasively regulated facilities or activities.
    3. For the purpose of this section, a rebuttable presumption concerning the jurisdiction of the division's regulatory authority is established as it regards the division's authority to inspect any facility.
  4. Administrative Inspection Warrants. If consent to inspect is denied, the division may obtain an administrative inspection warrant from a judicial officer. Issuance and execution of administrative inspection warrants shall be as follows:
    1. Any judicial officer otherwise authorized to issue search warrants within his or her jurisdiction may, upon proper oath or affirmation showing probable cause as defined by this section, issue administrative inspection warrants for the purpose of conducting administrative inspections authorized by any law, rule, or federal regulation administered by the division;
    2. An administrative inspection warrant shall issue only upon an affidavit of a division official, employee, or agent having knowledge of the facts alleged, sworn to before the judge or magistrate and establishing the grounds for issuing the administrative inspection warrant. If the judge or magistrate is satisfied that grounds for the application exist or that there is probable cause to believe they exist, he or she shall issue an administrative inspection warrant identifying the facility to be inspected, and the purpose of the inspection. The administrative inspection warrant shall:
      1. State the grounds for its issuance and the name of each person whose affidavit has been taken in support of the administrative inspection;
      2. Be directed to a division officer or employee;
      3. Command the person to whom it is directed to inspect the area, premises, building, or conveyance identified for the purpose specified;
      4. Specifically identify any documents or samples to be gathered during the administrative inspection;
      5. Direct that it be served during normal business hours unless emergency or extraordinary circumstances compel otherwise; and
      6. Designate the judge or magistrate to whom it shall be returned;
    3. If appropriate, the administrative inspection warrant may authorize the review and copying of documents which may be relevant to the purpose of the administrative inspection. If documents must be seized for the purpose of copying, the person serving the administrative inspection warrant shall prepare an inventory of documents taken. The inventory shall be made in the presence of the person executing the administrative inspection warrant and of the person from whose possession or facility the documents were taken, if present, or in the presence of at least one (1) credible person other than the person executing the administrative inspection warrant. A copy of the inventory shall be delivered to the person from whom or from whose facility the documents were taken. The seized documents shall be copied as soon as feasible under circumstances preserving their authenticity, then returned to the person from whom the documents were taken;
    4. The administrative inspection warrant may authorize the taking of samples of materials generated, stored, or treated at the facility, or of the water, air, or soils within the facility's control or that may have been affected by the facility's operations. The person executing the administrative inspection warrant shall prepare an inventory of all samples taken. In any inspection conducted pursuant to an administrative inspection warrant in which the samples are taken, the division shall make split samples available to the person whose facility is being inspected;
    5. An administrative inspection warrant issued pursuant to this section must be executed and returned within ten (10) days of its date unless, upon a showing of a need for additional time, the court orders otherwise. The return of the administrative inspection warrant shall be made promptly, accompanied by a written inventory of any documents or samples taken;
    6. The judge or magistrate who has issued an administrative inspection warrant shall attach to the administrative inspection warrant a copy of the return and all papers returnable in connection with the administrative inspection warrant and file them with the clerk of the circuit court for the judicial district in which the administrative inspection was made;
    7. This subsection does not prevent the inspection without a warrant of books and records pursuant to an administrative subpoena issued in accordance with duly adopted administrative procedures; and
    8. A copy of the administrative inspection warrant and all supporting affidavits shall be provided to the person served, or left at the entry of the facility inspected.
  5. Administrative Inspection Warrants — Exceptions. Notwithstanding subsection (d) of this section, an administrative inspection warrant shall not be required for any inspection, including the review and copying of documents and taking of samples, under the following circumstances:
    1. For pervasively regulated facilities or activities as defined by this section whose permit, license, certification, or operational approval from the division provides notice that the division may inspect regulated activities to assure compliance. If the division has reason to believe that a violation of any law has or is occurring, the basis for such belief shall be communicated at the time of the inspection;
    2. If the owner, operator, or agent in charge of the facility consents;
    3. In situations presenting imminent danger to public health and safety or the environment;
    4. In situations involving inspection of conveyances, if there is reasonable cause to believe that the mobility of the conveyance makes it impracticable to obtain an administrative inspection warrant;
    5. In any other exception or emergency circumstance when time or opportunity to apply for an administrative inspection warrant is lacking;
    6. In situations involving conditions that may be observed in an open field, from an area practically open to public access, or in plain view; or
    7. In all other situations in which an administrative inspection warrant is not constitutionally required.
  6. Penalties. Any knowing refusal of right of entry and inspection to division personnel as set out in this section is a violation subject to a fine of up to twenty-five thousand dollars ($25,000) or civil penalties up to twenty-five thousand dollars ($25,000).

History. Acts 1991, No. 1076, § 2; 2019, No. 315, §§ 434, 435; 2019, No. 693, § 4; 2019, No. 807, § 1; 2019, No. 910, § 2429.

Publisher's Notes. Acts 1991, No. 1076, § 1, provided: “The General Assembly hereby determines and declares that protection of the environment is of paramount governmental interest in the State of Arkansas, and that standards which will permit administrative inspections consonant with the United States and Arkansas Constitutions must be established which clarify the ADPC&E's inspection authority, and provide for the issuance of administrative inspection warrants when circumstances require. Therefore, the purpose of this act is to clarify and supplement the inspection authority vested with the department. This act shall be given a liberal interpretation so as to implement its remedial intent.”

Amendments. The 2019 amendment by No. 315 inserted “rules, federal” in (b)(4)(A); and substituted “law, rule, or federal regulation” for “law or regulation” in (d)(1).

The 2019 amendment by No. 693 inserted “administrative inspection” throughout (d) and (e); substituted “subsection (d) of this section, an administrative inspection” for “the previous subsection an administrative” in the introductory language of (e); and made stylistic changes.

The 2019 amendment by No. 807, in (f), substituted “knowing” for “willful and unjustified”, and substituted “is a violation” for “shall constitute a misdemeanor”.

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a); and substituted “division” for “department” throughout the section.

Research References

U. Ark. Little Rock L.J.

Survey—Environmental Law, 14 U. Ark. Little Rock L.J. 779.

Subchapter 2 — Powers of the Division and Commission

A.C.R.C. Notes. Acts 1997, No. 1219, § 1, provided: “Legislative intent. With Act 1230 of 1991, the General Assembly sought to delineate the respective responsibilities of the Arkansas Pollution Control and Ecology Commission and the Arkansas Department of Pollution Control & Ecology. Confusion on these issues in the public's perception continues, however, primarily because of the similarity in the names of these entities. The purpose of this Act is to achieve the legislative intent of Act 1230 of 1991 and to definitively assign the executive, adjudicatory, and rulemaking roles for the State's regulatory functions concerning protection of the environment.”

Acts 1997, No. 1219, § 2, provided:

“‘Arkansas Department of Pollution Control & Ecology’ renamed to ‘Arkansas Department of Environmental Quality’.

“(a) Effective March 31, 1999, the ‘Arkansas Department of Pollution Control & Ecology’ or ‘Department,’ as it is referred to or empowered throughout the Arkansas Code Annotated, is hereby renamed. In its place, the ‘Arkansas Department of Environmental Quality’ is hereby established, succeeding to the general powers and responsibilities previously assigned to the Arkansas Department of Pollution Control & Ecology. The Director of the Arkansas Department of Pollution Control & Ecology is directed to identify and revise all inter-agency agreements, financial instruments, funds, and other necessary legal documents in order to effect this change by March 31, 1999.

“(b) Nothing in this Act shall be construed as impairing the powers and authorities of the Arkansas Department of Pollution Control and Ecology prior to the effective date of the name change.”

Publisher's Notes. Acts 1991, No. 1230, § 4, provided: “The provisions of this act shall be in addition and supplemental to all other laws of Arkansas and rules, regulations or policies adopted by the Arkansas Commission on Pollution Control and Ecology now in effect and shall repeal only such laws or parts of laws as may be specifically in conflict with this act.”

Effective Dates. Acts 1993, No. 1264, § 6: Apr. 20, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that consideration of economic impact and environmental benefit should be immediately implemented by the Commission and this act being necessary for the immediate preservation of the environment and the welfare of the state shall be in full force and effect from and after its passage and approval.”

Acts 1995, No. 1191, § 44: July 1, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1995 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1995 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1995.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

8-1-201. Legislative intent.

  1. The General Assembly recognizes that since 1949, when the precursor of the Arkansas Pollution Control and Ecology Commission was first created, significant changes have occurred in the responsibilities charged to the state's environmental agency. This subchapter intends to clarify and supersede prior law that does not comport with this delineation of responsibility between the Division of Environmental Quality and the commission.
  2. Further, in delineating the responsibility between the division and the commission, it is the intent of the General Assembly neither to expand nor to diminish any rights of property owners of this state under Arkansas Constitution, Article 2, § 22.

History. Acts 1991, No. 1230, § 1; 1993, No. 163, § 5; 1993, No. 165, § 5; 1997, No. 1219, § 4; 2019, No. 910, § 2430.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a); and substituted “division” for “department” in (b).

8-1-202. Powers of the Director of the Division of Environmental Quality.

  1. The Director of the Division of Environmental Quality shall be the executive officer and active administrator of all pollution control activities in the state.
  2. As such, the director's duties shall include:
      1. The administration of permitting, licensing, certification, and grants programs deemed necessary to protect the environmental integrity of the state.
      2. The director, or his or her delegatee within his or her staff, shall serve as the issuing authority for the state;
      1. Initiation and settlement of civil or administrative enforcement actions to compel compliance with laws, orders, rules, and federal regulations charged to the responsibility of the Division of Environmental Quality.
      2. In this regard, the director may propose the assessment of civil penalties as provided by law and take all actions necessary to collect such penalties;
    1. Issuance of orders in such circumstances that reasonably require emergency measures to be taken to protect the environment or the public health and safety, except to the extent that the matter involved is reserved to the jurisdiction or orders of the Arkansas Pollution Control and Ecology Commission for rulemaking procedures in § 8-4-202;
    2. Day-to-day administration of all activities that the Division of Environmental Quality is empowered by law to perform, including, but not limited to, the employment and supervision of such technical, legal, and administrative staff, within approved appropriations and with the approval of the Secretary of the Department of Energy and Environment, as is necessary to carry out the responsibilities vested with the Division of Environmental Quality;
    3. Providing technical and legal expertise and assistance in the field of environmental protection to other agencies and subdivisions of the state as appropriate;
    4. Day-to-day administration of environmental programs delegated to the State of Arkansas by the responsible agencies of the United States Government;
    5. The supervision of the Arkansas Energy Office of the Division of Environmental Quality under the Arkansas Energy Reorganization and Policy Act of 1981, § 15-10-201 et seq.;
    6. Any other power or duty specifically vested with the director or the Division of Environmental Quality by the General Assembly or the secretary; and
    7. The supervision of the Division of Environmental Preservation or the successor division, office, or unit responsible for reviewing and making specific ecologically oriented recommendations on all plans, programs, and projects of all other state departments, divisions, agencies, and commissions and on all federal plans, programs, and projects affecting this state.

History. Acts 1991, No. 1230, § 1; 1993, No. 163, § 6; 1993, No. 165, § 6; 1999, No. 1164, § 8; 2017, No. 271, § 2; 2019, No. 315, § 436; 2019, No. 910, § 2431.

Amendments. The 2017 amendment substituted “United States Government” for “federal government” in (b)(2)(F); inserted present (b)(2)(G); and redesignated former (b)(2)(G) as (b)(2)(H).

The 2019 amendment by No. 315 inserted “rules” and “federal” in (b)(2)(B)(i).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the section heading; deleted (a); and rewrote the remaining provisions.

8-1-203. Powers and responsibilities of the Arkansas Pollution Control and Ecology Commission.

  1. The Arkansas Pollution Control and Ecology Commission shall meet regularly in publicly noticed open meetings to discuss and rule upon matters of environmental concern.
  2. The commission's powers and duties shall be as follows:
      1. Promulgation of rules implementing the substantive statutes charged to the Division of Environmental Quality for administration.
      2. In promulgation of such rules, prior to the submittal to public comment and review of any rule or change to any rule that is more stringent than the federal requirements, the commission shall duly consider the economic impact and the environmental benefit of such rule on the people of the State of Arkansas, including those entities that will be subject to the rule.
      3. The commission shall promptly initiate rulemaking proceedings to further implement the analysis required under subdivision (b)(1)(B) of this section.
      4. The extent of the analysis required under subdivision (b)(1)(B) of this section shall be defined in the commission's rulemaking required under subdivision (b)(1)(C) of this section. It will include a written report which shall be available for public review along with the proposed rule in the public comment period.
      5. Upon completion of the public comment period, the commission shall compile a rulemaking record or response to comments demonstrating a reasoned evaluation of the relative impact and benefits of the more stringent rule;
    1. Promulgation of rules and procedures not otherwise governed by applicable law that the commission deems necessary to secure public participation in environmental decision-making processes;
    2. Promulgation of rules governing administrative procedures for challenging or contesting division actions;
    3. In the case of permitting or grants decisions, providing the right to appeal a permitting or grants decision rendered by the Director of the Division of Environmental Quality or his or her delegatee;
    4. In the case of an administrative enforcement or emergency action, providing the right to contest any such action initiated by the director;
    5. Instruct the director to prepare such reports or perform such studies as will advance the cause of environmental protection in the state;
    6. Make recommendations to the director regarding overall policy and administration of the division. However, the director shall always remain within the plenary authority of the Governor; and
    7. Upon a majority vote, initiate review of any director's decision.
      1. In providing for adjudicatory review as contemplated by subdivisions (b)(4) and (5) of this section, the commission may appoint one (1) or more administrative law judges.
      2. An administrative law judge shall at all times serve as an agent of the commission.
    1. In hearings upon appeals of permitting or grants decisions by the director or contested administrative enforcement or emergency actions initiated by the director, the administrative law judge shall administer the hearing in accordance with procedures adopted by the commission and, after due deliberation, submit his or her recommended decision to the commission.
        1. Commission review of any appealed or contested matter shall be upon the record compiled by the administrative law judge and his or her recommended decision.
        2. Commission review shall be de novo. However, no additional evidence need be received unless the commission so decides in accordance with established administrative procedures.
      1. The commission may afford the opportunity for oral argument to all parties of the adjudicatory hearing.
        1. By the majority vote of a quorum, the commission may affirm, reverse and dismiss, or reverse and remand to the director.
        2. If the commission votes to affirm or reverse, such decision shall constitute final agency action for purposes of appeal.
    2. Any party aggrieved by the commission decision may appeal as provided by applicable law.
  3. The Chair of the Arkansas Pollution Control and Ecology Commission may appoint one (1) or more committees composed of commission members to act in an advisory capacity to the full commission.

History. Acts 1991, No. 1230, § 1; 1993, No. 163, § 7; 1993, No. 165, § 7; 1993, No. 1264, § 2; 1995, No. 117, § 1; 2015, No. 838, §§ 1, 2; 2019, No. 315, §§ 437-439; 2019, No. 910, §§ 2432-2434.

Publisher's Notes. Acts 1993, No. 1264, § 1, provided: “The General Assembly desires to provide protection of the human health and the environment for the citizens of the state. In providing for such protection, the General Assembly recognizes that environmental rules and regulations should have a sound scientific and economic basis. Thus, the General Assembly finds that, prior to the promulgation of any environmental rule or regulation by the state that is more stringent than federal requirements, the state must consider the economic impact and environmental benefit such rule or regulation will have on the citizens of the state of Arkansas prior to such promulgation.”

Amendments. The 2015 amendment inserted designations (c)(1)(A) and (c)(1)(B); substituted “law judges” for “hearing officers” in (c)(1)(A); in (c)(1)(B), substituted “An administrative law judge” for “The administrative hearing officers” and “an agent” for “agents”; and substituted “law judge” for “hearing officer” in (c)(2) and (c)(3)(A)(i).

The 2019 amendment by No. 315 deleted “and regulations” following “rules” and made similar changes throughout the section; and substituted “rule” for “regulation” at the end of (b)(1)(B) and (b)(1)(E).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (b)(1)(A) and (b)(4); and substituted “division” for “department” in (b)(7).

Case Notes

Administrative Law Judge.

In a case concerning a permit to operate a steel mill, there was no violation of this section because an administrative hearing officer acting on behalf of the Arkansas Pollution Control & Ecology Commission met the requirements of the law. The hearing officer duly received testimonial and documentary evidence and carried out a de novo review based on that proof. Nucor Steel-Arkansas v. Ark. Pollution Control & Ecology Comm'n, 2015 Ark. App. 703, 478 S.W.3d 232 (2015).

8-1-204. Administrative law judge.

  1. The Arkansas Pollution Control and Ecology Commission shall employ a full-time administrative law judge to perform functions and duties that the commission shall direct and, in particular, to advise the commission on matters of law and procedure that may arise during the conduct of commission duties and responsibilities as outlined in §§ 8-1-203, 8-4-201, 8-4-202, 8-4-311, 8-5-205, and 8-6-207, or as otherwise provided by law.
  2. The administrative law judge shall be selected and hired by the commission and shall be independent of and not an employee of the Division of Environmental Quality.
  3. The expenses of the administrative law judge shall be paid from the Division of Environmental Quality Fee Trust Fund or from other sources as provided by law.
  4. The office space for the administrative law judge shall be at a location other than the offices of the division.
  5. An administrative assistant II shall be supervised by and provide assistance to the administrative law judge authorized in this section.
  6. The disbursing officer of the division shall disburse the funds appropriated for the commission's administrative law judge.

History. Acts 1995, No. 1191, § 36; 1999, No. 1164, § 9; 2003, No. 51, § 1; 2015, No. 838, § 3; 2019, No. 910, § 2435.

Amendments. The 2015 amendment substituted “law judge” for “hearing officer” in the section heading and throughout the section; and substituted “administrative law judge” for “hearing officer” in (d) and (f).

The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (b) and (c); and substituted “division” for “department” in (d) and (f).

Cross References. Arkansas Department of Environmental Quality Fee Trust Fund, §§ 8-1-105 and 19-5-1137.

8-1-205. [Repealed.]

Publisher's Notes. This section, concerning the Mercury Task Force recommendations and implementation was repealed by Acts 2013, No. 1153, § 1. The section was derived from Acts 1995, No. 1191, § 35; 1999, No. 1164, § 10.

8-1-206. Voluntary environmental stewardship program — Definitions.

  1. As used in this section:
    1. “Environmental laws” means this title and any rules, permits, and orders adopted or issued under this title;
    2. “Environmental management system” means a set of documented processes and practices that enable an organization to reduce its environmental impact and increase operating efficiency by continuously improving its environmental performance;
    3. “Environmental performance” means the effect of a facility or activity on air, water, land, natural resources, or human health and the generation of waste by a facility or activity; and
        1. “Organization” means a company, corporation, political subdivision, firm, enterprise, or institution, or any part or combination, whether incorporated or not, public or private, that has its own functions and administration.
        2. For an organization with more than one (1) operating unit, a single operating unit may be treated as an organization.
      1. “Organization” includes persons or entities regulated by the Division of Environmental Quality and those not regulated by the division.
    1. The Director of the Division of Environmental Quality may develop, implement, and administer a voluntary environmental stewardship program.
    2. The voluntary environmental stewardship program shall provide recognition for those organizations that have a history of sustained compliance with environmental law requirements or organizations that go above and beyond environmental law requirements.
    3. At the discretion of the director, the voluntary environmental stewardship program shall provide incentives for organizations that demonstrate sustained compliance with environmental laws or go above and beyond environmental law requirements to include without limitation:
      1. Reduced inspection frequency;
      2. Reduced reporting requirements; or
      3. Advanced notification of inspections and enforcement rulings.
    4. The voluntary environmental stewardship program shall include tiers commensurate with and appropriate to the environmental impacts of an organization's facilities, activities, products, or services, and be based on an organization's level of commitment to the voluntary environmental stewardship program.
    1. Participation in the voluntary environmental stewardship program by any organization is voluntary.
    2. The division shall approve an organization's membership in the voluntary environmental stewardship program and shall review the organization's membership at least one (1) time every three (3) years.
    3. Membership and tier level assignment shall be based on the organization's commitment to:
      1. Sustained compliance with environmental laws and history of compliance with environmental laws;
      2. Develop, implement, and maintain an environmental management system;
      3. Going above and beyond the requirements of environmental laws;
      4. Pollution prevention and improving its environmental performance; and
      5. Reporting to the division on its environmental performance annually.
    1. Membership in the voluntary environmental stewardship program is not a license or permit under this title.
    2. The denial or approval of membership is not an appealable action or an action against the organization under this title.
  2. This section does not permit the violation of state or federal laws.

History. Acts 2017, No. 858, § 1; 2019, No. 315, § 440.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (a)(1).

Subchapter 3 — Environmental Audit Reports

Effective Dates. Acts 1999, No. 871, § 11: Mar. 25, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that immediate implementation of these statutes is necessary in order to ensure that the state meets immediate Environmental Protection Agency requirements for authorization and delegation of federal programs to the State of Arkansas. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

8-1-301. Purpose.

The General Assembly hereby finds and declares that protection of the environment is enhanced by the public's voluntary compliance with environmental laws and that the public will benefit from incentives to identify and remedy environmental compliance issues. It is further declared that limited expansion of the protection against disclosure will encourage such voluntary compliance and improve environmental quality and that the voluntary provisions of this subchapter will not inhibit the exercise of the regulatory authority by those entrusted with protecting our environment.

History. Acts 1995, No. 350, § 1.

Research References

U. Ark. Little Rock L. Rev.

Jones, Wright, Jr., & Ternes, Environmental Compliance Audits: The Arkansas Experience, 21 U. Ark. Little Rock L. Rev. 191.

8-1-302. Definitions.

As used in this subchapter:

  1. “Commission” means the Arkansas Pollution Control and Ecology Commission;
  2. [Repealed.]
    1. “Environmental audit” means a voluntary, internal, and comprehensive evaluation of one (1) or more facilities or an activity at one (1) or more facilities regulated under this chapter, or federal, regional, or local counterparts or extensions thereof, or of management systems related to that facility or activity, that is designed to identify and prevent noncompliance and to improve compliance with statutory or regulatory requirements.
    2. An environmental audit may be conducted by the owner or operator, by the owner's or operator's employees, or by independent contractors; and
  3. “Environmental audit report” means a set of documents prepared as a result of an environmental audit, and labeled “ENVIRONMENTAL AUDIT REPORT: PRIVILEGED DOCUMENT”, that may include:
    1. Field notes, records of observations, findings, opinions, suggestions, conclusions, drafts, memoranda, drawings, photographs, computer-generated or electronically recorded information, maps, charts, graphs, and surveys collected or developed for the primary purpose of preparing an environmental audit;
    2. An audit report prepared by the auditor that includes:
      1. The scope of the audit;
      2. The information gained in the audit;
      3. Conclusions and recommendations; and
      4. Exhibits and appendices;
    3. Memoranda and documents analyzing a portion of or all of the audit report and discussing implementation issues; and
    4. An implementation plan that addresses correcting past compliance, improving current compliance, and preventing future noncompliance.

History. Acts 1995, No. 350, § 1; 1999, No. 1164, § 11; 2019, No. 910, § 2436.

Amendments. The 2019 amendment repealed (2).

8-1-303. Privilege.

  1. In order to encourage owners and operators of facilities and persons conducting other activities regulated under this chapter or its federal counterparts or extensions, both to conduct voluntary internal environmental audits of their compliance programs and management systems and to assess and improve compliance with statutory and regulatory requirements, an environmental audit privilege is created to protect the confidentiality of communications relating to voluntary internal environmental audits.
  2. An environmental audit report shall be privileged and shall not be admissible as evidence in any civil or administrative legal action, including enforcement actions.

History. Acts 1995, No. 350, § 1; 1999, No. 871, § 1.

8-1-304. Waiver.

  1. The privilege described in § 8-1-303 does not apply to the extent that:
    1. It is waived expressly by the owner or operator of the facility that prepared or caused to be prepared the environmental audit report;
    2. The owner or operator of a facility or person conducting an activity seeks to introduce an environmental audit report as evidence; and
    3. The owner or operator of a facility authorizes the disclosure of the environmental audit report to any party, except when:
      1. Disclosure is made under the terms of a confidentiality agreement between the owner or operator of a facility and:
        1. A potential purchaser of the facility; or
        2. A customer, lending institution, or insurance company with an existing or proposed relationship with the facility;
      2. Disclosure is made under the terms of a confidentiality agreement between government officials and the owner or operator of a facility; or
      3. Disclosure is made to an independent contractor retained by the owner or operator of the facility for the purpose of identifying noncompliance with statutory or regulatory requirements and assisting the owner or operator in achieving compliance with reasonable diligence.
  2. The waiver of the privilege described in § 8-1-303 may be for part or all of the environmental audit report, and the waiver of privilege extends only to that part of the environmental audit report expressly waived by the owner or operator of a facility.

History. Acts 1995, No. 350, § 1.

8-1-305. Exceptions.

The privilege described in § 8-1-303 does not apply to the following:

  1. Documents, communications, data, reports, or other information that must be collected, developed, maintained, reported, or otherwise made available to the public or a regulatory agency under:
    1. Federal or state law or extensions thereof;
    2. A rule or standard adopted by the Arkansas Pollution Control and Ecology Commission;
    3. A determination, a permit, or an order made or issued by the commission or the Director of the Division of Environmental Quality; or
    4. Any other federal, state, or local law, permit, or order;
  2. Information obtained by observation, sampling, or monitoring by any regulatory agency; and
  3. Information obtained from a source independent of the environmental audit.

History. Acts 1995, No. 350, § 1; 1999, No. 871, § 2; 2019, No. 910, § 2437.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (1)(C).

8-1-306. Stipulation.

The parties to a legal action may at any time stipulate to the entry of an order that directs that specific information contained in an environmental audit report is or is not subject to the privilege provided under § 8-1-303.

History. Acts 1995, No. 350, § 1.

8-1-307. Disclosure in civil or administrative proceeding.

  1. In a civil or administrative proceeding, a court of record or administrative tribunal, after an in-camera review, shall require disclosure of material for which the privilege described in § 8-1-303 is asserted if the court or administrative tribunal determines one (1) of the following:
    1. The privilege is asserted for a fraudulent purpose;
    2. The material is not subject to the privilege;
    3. The material is subject to the privilege and the material shows evidence of noncompliance with:
      1. Federal or state law or extensions of such statutes;
      2. Any rule adopted by the Arkansas Pollution Control and Ecology Commission; or
      3. A determination, permit, or order issued by the commission or the Director of the Division of Environmental Quality; and
    4. The person claiming the privilege did not promptly initiate and pursue appropriate efforts to achieve compliance with reasonable diligence.
    1. If the noncompliance described in subdivision (a)(3) of this section constitutes a failure to obtain a required permit, the person is deemed to have made appropriate efforts to achieve compliance if the person filed an application for the required permit not later than ninety (90) days after the date the person became aware of the noncompliance.
      1. In the event additional time is required to prepare a permit application, the person shall, within ninety (90) days, submit a schedule to the Division of Environmental Quality that identifies the activities required to complete the application, and, if the schedule is acceptable to the division, the filing of the application pursuant to the submitted schedule shall constitute reasonable diligence to achieve compliance for a failure to obtain a required permit.
      2. Nothing in this section authorizes a facility to operate without the proper permit having been issued.

History. Acts 1995, No. 350, § 1; 1999, No. 871, § 3; 1999, No. 1164, § 12; 2019, No. 315, § 441; 2019, No. 910, §§ 2438, 2439.

Amendments. The 2019 amendment by No. 315 deleted “or regulation” following “rule” in (a)(3)(B).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(3)(C) and (b)(2)(A); and substituted “division” for “department” in (b)(2)(A).

8-1-308. [Repealed.]

A.C.R.C. Notes. Pursuant to §§ 1-2-207 and 1-2-303, the repeal of this section by Acts 1999, No. 871, § 4 is deemed to supersede its amendment by Acts 1999, No. 1164, § 13.

Publisher's Notes. This section, concerning disclosure in a criminal proceeding, was repealed by Acts 1999, No. 871, § 4. The section was derived from Acts 1995, No. 350, § 1; 1999, No. 1164, § 13.

8-1-309. Audit privilege reserved for administrative or civil proceedings.

The privilege created by § 8-1-303 does not apply to criminal investigations or proceedings. When an environmental audit report is obtained, reviewed, or used in a criminal proceeding, the privilege created by § 8-1-303 applicable to administrative or civil proceedings is not waived or eliminated.

History. Acts 1995, No. 350, § 1; 1999, No. 871, § 5.

8-1-310. Burden of proof.

  1. A party asserting the environmental audit privilege under § 8-1-303 has the burden of proving the privilege, including if there is evidence of noncompliance with federal or state law or extensions thereof, and proof that appropriate efforts to achieve compliance were promptly initiated and pursued with reasonable diligence.
  2. A party seeking disclosure under § 8-1-307 has the burden of proving the privilege is asserted for a fraudulent purpose.

History. Acts 1995, No. 350, § 1; 1999, No. 871, § 6.

8-1-311. Partial disclosure.

Upon making a determination under § 8-1-307, the court of record or administrative tribunal may compel disclosure of only those parts of an environmental audit report that are relevant to issues in dispute in the proceeding.

History. Acts 1995, No. 350, § 1; 1999, No. 871, § 7.

8-1-312. Scope.

Nothing in this subchapter may limit, waive, or abrogate:

  1. The scope of any statutory or common law privilege, including the work product doctrine and the attorney-client privilege; or
  2. The rights of the public as provided in the Freedom of Information Act of 1967, § 25-19-101 et seq.

History. Acts 1995, No. 350, § 1; 2009, No. 1199, § 3.

Amendments. The 2009 amendment redesignated the section, and made related and minor stylistic changes.

Chapter 2 Environmental Testing

Subchapter 1 — General Provisions

[Reserved.]

Subchapter 2 — Environmental Laboratory Accreditation Program Act

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

8-2-201. Title.

This subchapter may be called the “Environmental Laboratory Accreditation Program Act”.

History. Acts 1985, No. 876, § 1; A.S.A. 1947, § 82-1993; Acts 2017, No. 244, § 1.

Amendments. The 2017 amendment substituted “Environmental Laboratory Accreditation Program Act” for “State Environmental Laboratory Certification Program Act”.

8-2-202. Purpose.

This subchapter authorizes the Division of Environmental Quality to establish and administer an environmental laboratory accreditation program so that laboratories that submit data and analyses to the division may be accredited by the division as having demonstrated acceptable compliance with laboratory standards so that the validity of scientific data submitted to the division may be further assured.

History. Acts 1985, No. 876, § 2; A.S.A. 1947, § 82-1993.1; Acts 1993, No. 322, § 1; 1993, No. 440, § 1; 1999, No. 1164, § 14; 2017, No. 244, § 1; 2019, No. 910, § 2440.

Amendments. The 2017 amendment substituted “This subchapter authorizes” for “It is the purpose of this subchapter to authorize”, “accreditation” for “certification”, and “accredited by” for “certified by”.

The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” and “division” for “department” three times.

8-2-203. Definitions.

As used in this subchapter:

  1. “Acceptable results” means results within limits determined on the basis of statistical procedures as prescribed by the Division of Environmental Quality;
  2. “Accreditation” means the process by which the division recognizes a laboratory as meeting certain predetermined qualifications or standards, thereby accrediting the laboratory;
  3. “Analyte” means the characteristics of a laboratory sample determined by an analytical laboratory testing procedure;
  4. “Certificate” means a document issued by the division showing the analytes for which a laboratory has received accreditation;
    1. “Consulting laboratory” means a laboratory that performs analyses for any person other than itself.
    2. “Consulting laboratory” does not include a laboratory that is wholly owned by the person for whom the analyses are performed;
  5. “Evaluation” means a review of the quality control and quality assurance procedures, recordkeeping, reporting procedures, methodology, and analytical techniques of a laboratory for measuring or establishing specific analytes;
    1. “Laboratory” means any facility that performs analyses to determine the chemical, physical, or biological properties of air, water, solid waste, hazardous waste, wastewater, or soil or subsoil materials or that performs any other analyses related to environmental quality evaluations required by the division or which will be submitted to the division.
    2. “Laboratory” does not include evaluations to determine the engineering properties related to soil mechanics;
    1. “Matrix” means the components of a sample other than the one (1) or more analyte of interest.
    2. “Matrix” includes without limitation nonpotable water, soil, or oil;
  6. “Method” means procedures and techniques for performing an activity systematically presented in the order in which the procedures and techniques are to be executed;
  7. “Person” means any individual, corporation, company, firm, partnership, association, trust, joint-stock company or trust, venture, municipal, state, or federal government or agency, or any other legal entity, however organized; and
  8. “Proficiency test sample” means a sample of composition that is unknown to the laboratory and is provided to test whether the laboratory can produce analytical results within the specified acceptance criteria.

History. Acts 1985, No. 876, § 3; A.S.A. 1947, § 82-1993.2; Acts 1993, No. 322, § 2; 1993, No. 440, § 2; 1999, No. 1164, § 15; 2017, No. 244, § 1; 2019, No. 910, §§ 2441-2443.

Amendments. The 2017 amendment rewrote the section.

The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (1); and substituted “division” for “department” throughout the section.

8-2-204. Powers and duties of division and commission.

  1. The Division of Environmental Quality shall have the following powers and duties under this subchapter:
    1. To establish and administer the Environmental Laboratory Accreditation Program for laboratories applying for accreditation by the division;
    2. To enforce the provisions of this subchapter and all laws, rules, and federal regulations relating to the program and to environmental testing;
    3. To issue, deny, revoke, or suspend the accreditation of a laboratory for cause; and
    4. To refuse to accept analytical results from a laboratory when the division reasonably determines that the results do not meet reasonable criteria for validation, regardless of whether the laboratory is accredited.
  2. The Arkansas Pollution Control and Ecology Commission shall have the following powers and duties under this subchapter:
    1. To establish by rule reasonable fees for the accreditation procedures under this subchapter and to cover the expenses of administering the program; and
    2. To promulgate necessary rules to effect the purpose and administration of the program, including without limitation, provisions governing accreditation, modification, and renewal of accreditation and reaccreditation after revocation.

History. Acts 1985, No. 876, § 4; A.S.A. 1947, § 82-1993.3; Acts 1993, No. 322, § 3; 1993, No. 440, § 3; 2017, No. 244, § 1; 2019, No. 315, §§ 442, 443; 2019, No. 910, § 2444.

Amendments. The 2017 amendment substituted “accreditation” for “certification” and “accredited” for “certified” throughout; in (a)(1), deleted “State” preceding “Environmental”; substituted “under” for “set forth in” in (b)(1); and, in (b)(2), deleted “as may be” preceding “necessary”, substituted “without limitation, provisions governing” for “but not limited to provisions governing applications for”, substituted “reaccreditation” for “recertification”; and made stylistic changes.

The 2019 amendment by No. 315 inserted “federal” in (a)(2); substituted “rule” for “regulation” in (b)(1); and substituted “rules” for “regulations” in (b)(2).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the introductory language of (a); and substituted “division” for “department” in (a)(1) and (a)(4).

8-2-205. Procedure for issuance of rules, appeals, hearings, etc.

  1. Any person that violates any provision of this subchapter or of any rule or order issued pursuant to this subchapter or that commits an unlawful act under this subchapter shall be subject to the same penalty and enforcement provisions as are contained in the Arkansas Water Air Pollution Control Act, § 8-4-101 et seq.
  2. Except as otherwise provided in this subchapter, the procedure of the Arkansas Pollution Control and Ecology Commission for issuance of any rules, conduct of hearings, notice, review of actions on certificates, right of appeal, presumptions, finality of actions, and related matters shall be as provided in Part I of the Arkansas Water and Air Pollution Control Act, §§ 8-4-101 — 8-4-106, 8-4-201 — 8-4-229, including without limitation, §§ 8-4-202, 8-4-205 — 8-4-210, 8-4-212 — 8-4-214, and 8-4-218 — 8-4-229.

History. Acts 1985, No. 876, § 8; A.S.A. 1947, § 82-1993.7; Acts 1993, No. 322, § 4; 1993, No. 440, § 4; 2019, No. 315, § 444.

A.C.R.C. Notes. Pursuant to § 1-2-207, this section is set out above as amended by identical Acts 1993, Nos. 322 and 440. This section was also amended by identical Acts 1993, Nos. 163 and 165, § 8, to read as follows:

“(a) The procedure of the Arkansas Pollution Control and Ecology Commission for issuance of any rules and regulations, conduct of hearings, notice, review of actions on certificates, right of appeal, presumptions, finality of actions, and related matters shall be as provided in Part I of the Arkansas Water and Air Pollution Control Act, as amended, §§ 8-4-1018-4-106, 8-4-2018-4-229, including, without limitation, §§ 8-4-202, 8-4-210, 8-4-2128-4-214, 8-4-2188-4-229.

“(b) Any permittee or person subject to regulation may petition the commission for a declaratory order as to the applicability of any rule, statute, permit, or order enforced by the department or the commission. Such petitions shall be processed in the same manner as appeals under the procedures prescribed by §§ 8-4-205, 8-4-212, and 8-4-2188-4-229. These declaratory orders shall have the same status as an order of the commission.”

Amendments. The 2019 amendment deleted “or regulations” following “rules” in the section heading; deleted “regulation” following “rule” in (a); and deleted “and regulations” following “rules” in (b).

8-2-206. Accreditation — Criteria and procedure.

        1. All consulting laboratories performing analyses for which results are to be submitted to the Division of Environmental Quality shall obtain a laboratory accreditation under this subchapter.
        2. An analyte, method, or matrix for which the Environmental Laboratory Accreditation Program does not provide accreditation shall be evaluated by the division for acceptance.
      1. The division, in its sole discretion, may refuse to accept results of analyses performed by a consulting laboratory that does not hold a laboratory accreditation under the program for the reason that the laboratory is not accredited.
    1. Accreditation for laboratories other than consulting laboratories shall not be mandatory.
  1. Applications for accreditation shall be made in the form and manner established by the division.
  2. Upon receipt of an application for accreditation, the division shall evaluate and act upon the application in accordance with the following procedures and criteria:
      1. The laboratory must successfully complete an evaluation.
      2. The division shall establish evaluation criteria on proper analytical techniques, quality assurance, recordkeeping, and reporting methods and procedures and facilities, equipment, and personnel requirements; and
    1. The laboratory must submit to the division acceptable results from its analysis of proficiency test samples for the specific analytes, methods, and matrices selected for accreditation.
  3. Upon completion of the laboratory evaluation and the review of the proficiency test sample results, the division shall notify the laboratory of its determination to award or deny accreditation.
    1. If the adequacy of the laboratory's capability and its recordkeeping have been sufficiently established to the satisfaction of the division, a certificate will be issued to the laboratory for the evaluated categories of analytes, methods, and matrices.
    2. If accreditation is denied, the division shall set forth, in writing, the reasons for denial.

History. Acts 1985, No. 876, § 5; A.S.A. 1947, § 82-1993.4; Acts 1993, No. 322, § 5; 1993, No. 440, § 5; 2017, No. 244, § 2; 2019, No. 910, § 2445.

Amendments. The 2017 amendment substituted “Accreditation” for “Certification” in the section heading, (a)(2), and (b) through (e); redesignated former (a)(1)(A) as present (a)(1)(A)(i) and substituted “accreditation” for “certification”; added (a)(1)(A)(ii); in (a)(1)(B), substituted “a laboratory accreditation under the program” for “a certification pursuant to the program” and “accredited” for “certified”; inserted “techniques” in (c)(1)(B); deleted (c)(2)(B) and (c)(2)(C) and redesignated former (c)(2)(A) as (c)(2); in (c)(2), substituted “proficiency test” for “performance audit” and “analytes, methods, and matrices” for “parameters”; substituted “proficiency test” for “audit” in (d); and, in (e)(1), substituted “recordkeeping” for “adequacy” and “analytes, methods, and matrices” for “parameters”; and made stylistic changes.

The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(1)(A)(i); and substituted “division” for “department” throughout the section.

8-2-207. Accreditation — Duration — Renewal.

  1. A certificate of accreditation shall be effective for a period of one (1) year from the date of issuance, after which time the accreditation will lapse.
  2. Accreditation may be renewed for additional periods of one (1) year's duration upon application for renewal made to the Division of Environmental Quality.

History. Acts 1985, No. 876, § 5; A.S.A. 1947, § 82-1993.4; Acts 2017, No. 244, § 2; 2019, No. 910, § 2446.

Amendments. The 2017 amendment substituted “Accreditation” for “Certification” in the section heading; in (a), inserted “of accreditation” and substituted “accreditation” for “certificate”; and substituted “Accreditation” for “Certification” in (b).

The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (b).

8-2-208. Accreditation — Revocation.

  1. After a laboratory is accredited, the laboratory's accreditation may be revoked or suspended by the Division of Environmental Quality for:
    1. Knowingly falsifying any data submitted to the division or any data related to laboratory analysis;
    2. Knowingly making any false statement, representation, or certification in any application, record, report, plan, or other document issued by or sent to the division or related to laboratory analysis;
    3. Knowingly misrepresenting procedures or documentation used in sampling or laboratory analysis;
    4. Failing to comply with any one (1) or more of the following requirements under which the accreditation was issued:
      1. Methods or procedures pertaining to analytical techniques, quality assurance, recordkeeping, or reporting methods; or
      2. Facility, equipment, or personnel requirements; or
    5. Failing to achieve acceptable results for specific analytes, methods, or matrices for which it has been accredited.
  2. It shall be unlawful for any person:
    1. To knowingly falsify any data submitted to the division or any data related to laboratory analysis;
    2. To knowingly make any false statement, representation, or certification in any application, record, report, plan, or other document issued by or sent to the division or related to laboratory analysis;
    3. To knowingly misrepresent sampling procedures or methods used in laboratory analysis;
    4. To knowingly render inaccurate any accreditation issued under this subchapter; or
    5. To knowingly represent that a person is accredited when that person is not accredited.

History. Acts 1985, No. 876, § 6; A.S.A. 1947, § 82-1993.5; Acts 1993, No. 322, § 6; 1993, No. 440, § 6; 2017, No. 244, § 2; 2019, No. 910, §§ 2447, 2448.

Amendments. The 2017 amendment substituted “Accreditation” for “Certification” in the section heading; in the introductory language of (a), substituted “After a laboratory is accredited, the laboratory's accreditation” for “Once certified a laboratory's certification” and added “for”; substituted “Knowingly falsifying” for “For knowing falsification of” in (a)(1); substituted “Knowingly” for “For knowingly” in (a)(2); substituted “Knowingly misrepresenting” for “For knowing misrepresentation of” in (a)(3); rewrote (a)(4) and (a)(5); substituted “accreditation” for “certification” in (b)(4); and rewrote (b)(5).

The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the introductory language of (a); and substituted “division” for “department” in (b)(1) and (b)(2).

8-2-209. Fees.

    1. The Division of Environmental Quality may assess and collect reasonable fees from participating laboratories for the administrative costs of the Environmental Laboratory Accreditation Program.
    2. The costs shall include without limitation, the expense of conducting evaluations.
  1. Fees may be assessed at the time of initial application, renewal application, application for modification, or at the time a certificate is awarded.
  2. Following a public hearing and based upon a record calculating the reasonable administrative costs of conducting accreditation procedures under this subchapter and costs of enforcing the terms and conditions of accreditations, the Arkansas Pollution Control and Ecology Commission may establish reasonable fees for initial issuance, annual review, and modification of accreditations authorized by this subchapter.

History. Acts 1985, No. 876, § 7; A.S.A. 1947, § 82-1993.6; Acts 1993, No. 322, § 7; 1993, No. 440, § 7; 2017, No. 244, § 2; 2019, No. 910, § 2449.

Amendments. The 2017 amendment substituted “Accreditation” for “Certification” in (a)(1) and made similar changes throughout (c); in (a)(1), substituted “may assess and collect reasonable fees from” for “shall be authorized to assess reasonable fees to” and deleted “State” preceding “Environmental”; in (a)(2), substituted “shall include without limitation” for “will include, but are not limited to” and deleted “and the procurement of performance audit samples” following “evaluations” at the end; and substituted “under this subchapter” for “set forth herein” in (c).

The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(1).

Chapter 3 Water and Air Pollution Generally

Subchapter 1 — General Provisions

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

8-3-101. Designation of air quality areas.

No area within Arkansas shall be redesignated by the state for the purposes of permitting under the Prevention of Significant Deterioration (PSD) of air quality requirements except by an act of the General Assembly.

History. Acts 1985, No. 237, § 1; A.S.A. 1947, § 82-1941.1; Acts 1999, No. 114, § 1.

8-3-102. Ambient air quality standards — Hydrogen sulfide.

  1. After review of scientific literature and similar standards in other states, the Arkansas Pollution Control and Ecology Commission shall promulgate, through procedures set out in § 8-4-202, ambient air quality standards or other appropriate regulatory controls that will protect the public health and the environment from the emission of hydrogen sulfide.
    1. Before the commission proposes an ambient standard or regulatory mechanism concerning hydrogen sulfide that will result in more stringent or restrictive control provisions than are currently provided by Division of Environmental Quality permitting practices, the commission shall direct the division to prepare, with the assistance and cooperation of state agencies with appropriate expertise, an economic impact and environmental benefit analysis justifying more stringent or restrictive operating conditions.
    2. The economic impact and environmental benefit analysis shall include without limitation the:
      1. Benefit to the public health;
      2. Preservation of environmental quality; and
      3. Cost to the regulated community and the division.
    3. The conclusions of an economic impact and environmental benefit analysis shall be included in any public notice of the proposed rulemaking and shall be subject to public comment.

History. Acts 1997, No. 856, § 1; 2009, No. 1199, § 4; 2019, No. 910, §§ 2450, 2451.

Amendments. The 2009 amendment subdivided the section; substituted “an economic impact and environmental benefit” for “a cost/benefit” in (b)(1); inserted “economic impact and environmental benefit” in (b)(2); substituted “an economic impact and environmental benefit” for “this” in (b)(3); and made related and minor stylistic changes.

The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (b)(1); and substituted “division” for “department” in (b)(1) and (b)(2)(C).

8-3-103. Hydrogen sulfide emissions — Definition.

  1. Ambient Concentration Standard.
    1. Except as provided in subsection (d) of this section, no person shall cause or permit emissions from any facility that result in predicted ambient hydrogen sulfide concentrations at any place beyond the facility's perimeter property boundary greater than eighty parts per billion (80 ppb) for any eight-hour averaging period for residential areas, or greater than one hundred parts per billion (100 ppb) for any eight-hour averaging period for nonresidential areas.
    2. No person shall cause or permit emissions from any facility that result in actual ambient hydrogen sulfide concentrations at any place beyond the facility's perimeter property boundary greater than twenty parts per million (20 ppm) for any five-minute averaging period.
  2. Method of Prediction. All estimates of ambient concentrations required under this section shall be performed by the Division of Environmental Quality or performed by the facility and approved by the division based on the facility's potential to emit hydrogen sulfide, the applicable air quality models, databases, and other requirements specified in the “Guideline on Air Quality Models (Revised)” (1986), supplement A (1987) and supplement B (1993).
  3. Compliance Plan.
    1. In the event the standard is predicted to be exceeded, the facility or facilities whose emissions are found to contribute to the excess shall be given a reasonable period of time to undertake measures to demonstrate compliance, such as a site-specific risk assessment that demonstrates that the emissions do not pose a risk to human health at the nearest public receptor, ambient monitoring, that demonstrates that the standard is not being exceeded, or undertaking emission reduction measures to reduce emissions of hydrogen sulfide such that the standard will not be exceeded.
    2. The compliance measures and schedule of compliance shall be stated in an enforceable settlement agreement or permit modification or, if the facility does not have an existing permit, an enforcement order.
  4. Control Technology Requirements.
    1. General Requirements. Rather than demonstrate compliance with the ambient limit contained in subsection (a) of this section, a facility may elect to install and operate or continue to operate appropriate control technology that addresses hydrogen sulfide emissions for that source or source category.
    2. Determination of Appropriate Control Technology.
      1. For purposes of this section, “appropriate hydrogen sulfide control technology” means control technology, operational practices, or some combination thereof, which will result in the lowest emissions of hydrogen sulfide that a particular facility is reasonably capable of meeting, considering technological and economic feasibility.
      2. Compliance with all applicable portions of the following technology standards, in accordance with the schedule set forth in such standards, shall be deemed to be compliance with appropriate hydrogen sulfide control technology:
        1. Maximum Achievable Control Technology Standards issued pursuant to § 112 of the Clean Air Act, 42 U.S.C. § 7412, promulgated at 40 C.F.R. Part 63, when compliance with such standards will reduce hydrogen sulfide emissions;
        2. Standards of Performance for New Stationary Sources, promulgated at 40 C.F.R. Part 60:
          1. Standards of Performance for Petroleum Refineries, 40 C.F.R. Part 60, Subpart J;
          2. Standards of Performance for Kraft Pulp Mills, 40 C.F.R. Part 60, Subpart BB;
          3. Standards of Performance for Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry, 40 C.F.R. Part 60, Subpart VV;
          4. Standards of Performance for Equipment Leaks of VOC in Petroleum Refineries, 40 C.F.R. Part 60, Subpart GGG;
          5. Standards of Performance for Equipment Leaks of VOC from Onshore Natural Gas Processing Plants, 40 C.F.R. Part 60, Subpart KKK; or
          6. Standards of Performance for SO2 Emissions from Onshore Natural Gas Processing, 40 C.F.R. Part 60, Subpart LLL; or
        3. National Emission Standards for Hazardous Air Pollutants under Title III of the Clean Air Act, 42 U.S.C. § 7601 et seq., and standards of performance promulgated pursuant to § 111(d) of the Clean Air Act, 42 U.S.C. § 7411(d), when compliance with such standards will reduce hydrogen sulfide emissions.
      3. A facility that is not subject to one (1) of the technology limits listed in subdivision (d)(2)(B) of this section and that wishes to apply appropriate hydrogen sulfide control technology may apply to the division for a determination of appropriateness at any time, but no later than ninety (90) days after a determination that the ambient standard has been exceeded. The application shall be made on such forms and contain such information as the division may require and shall include a reasonable time schedule for implementation. When making a determination of appropriateness, the division shall follow the procedures used for making permitting decisions, including public participation requirements.
      4. The ambient standard shall not apply to the following facilities:
        1. Natural gas pipelines and related facilities that do not transmit gas with a concentration of hydrogen sulfide in excess of four parts per million (4 ppm);
        2. Natural gas gathering and production pipelines and related facilities that do not transmit gas with a concentration of hydrogen sulfide in excess of thirty parts per million (30 ppm);
        3. Brine pipelines that carry natural gas as a byproduct of the brine;
        4. Wastewater treatment facilities; and
        5. Oil and gas drilling and production operations and facilities from the wellhead to the custodial transfer meter as that term is defined by law.
  5. The Oil and Gas Commission is hereby delegated the authority to set hydrogen sulfide standards for oil and gas drilling and production facilities from the wellhead to the custodial transfer meter.

History. Acts 1999, No. 1136, § 1; 2019, No. 910, §§ 2452, 2453.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (b); and substituted “division” for “department” in (b) and three times in (d)(2)(C).

U.S. Code. The most recent version of the “Guideline on Air Quality Models”, referred to in this section, is codified at 40 C.F.R. Part 51, Appendix W.

Subchapter 2 — State Emission Plans — Procedures — Approval

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

8-3-201. Findings — Purpose.

  1. The General Assembly finds that:
    1. The United States Environmental Protection Agency has proposed emission guidelines for the regulation of carbon dioxide emissions from existing fossil-fuel-fired electric generating units under § 111(d) of the Clean Air Act, 42 U.S.C. § 7411(d);
    2. The proposed guidelines will have a major impact on the economy of Arkansas by regulating how electricity is produced, transmitted, distributed, and consumed within the state;
    3. The United States Environmental Protection Agency requires states to take the lead role in the regulation of existing fossil-fuel-fired electric generating units under § 111(d) of the Clean Air Act, 42 U.S.C. § 7411(d), by developing state plans for the establishment and implementation of performance standards for reducing carbon dioxide emissions from fossil-fuel-fired electric generating units;
    4. The role of the United States Environmental Protection Agency is limited to establishing federal emission guidelines that assist the states in the development of their state plans to regulate carbon dioxide emissions from existing fossil-fuel-fired electric generating units and, in establishing federal emission guidelines, the United States Environmental Protection Agency must defer to the states regarding methods for regulating fossil-fuel-fired electric generating units within their jurisdictions; and
    5. This subchapter expresses the intent of the General Assembly to exercise the powers of the General Assembly under Arkansas Constitution, Article 5, § 42, to:
      1. Review and approve state agency rules;
      2. Ensure that rules become effective only after review and approval by the legislative committee charged with review of the rules; and
      3. Review rules during the interim or a regular, special, or fiscal session of the General Assembly.
  2. The purpose of this subchapter is to ensure that:
    1. Before the submission of a state plan to the United States Environmental Protection Agency, the rules of the Arkansas Pollution Control and Ecology Commission that implement the state plan are reviewed and approved by the General Assembly through the Legislative Council consistent with Arkansas Constitution, Article 5, § 42, and any laws promulgated pursuant to Arkansas Constitution, Article 5, § 42; and
    2. The state plan is reviewed through a transparent public process that assesses the full impact of the state plan on rates, reliability, employment, and manufacturing greenhouse gas leakage.
  3. This subchapter does not create a private right of action for enforcement purposes.

History. Acts 2015, No. 382, § 1; 2019, No. 315, § 445.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (b)(1).

8-3-202. Definitions.

As used in this subchapter:

  1. “Covered electric generating unit” means an existing fossil-fuel-fired electric generating unit within the state that is subject to regulation under federal emission guidelines;
  2. “Federal emission guidelines” means a final rule, regulation, guideline, or other requirement that the United States Environmental Protection Agency may adopt for regulating carbon dioxide emissions from covered electric generating units under § 111(d) of the Clean Air Act, 42 U.S.C. § 7411(d); and
  3. “State plan” means a plan to establish and enforce carbon dioxide emission control measures that the Division of Environmental Quality may adopt to implement the obligations of the state under the federal emission guidelines.

History. Acts 2015, No. 382, § 1; 2019, No. 910, § 2454.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (3).

8-3-203. State plan preferred — State plan dependent on federal emission guidelines.

    1. This subchapter does not require the Division of Environmental Quality to develop a state plan to regulate carbon dioxide emissions from existing fossil-fuel-fired electric generating units under § 111(d) of the Clean Air Act, 42 U.S.C. § 7411(d).
    2. However, submission of a state plan is the preferred method of compliance with federal emission guidelines.
    1. Notwithstanding approval by the Legislative Council of submission of a state plan to the United States Environmental Protection Agency or submission by the Governor of a state plan under § 8-3-207, further action by a state agency to implement or enforce a final, approved state plan is dependent upon the final adoption of the federal emission guidelines.
    2. If the federal emission guidelines are not adopted or are adopted and subsequently suspended or held to be contrary to law, a state agency shall suspend or terminate, as appropriate, further action to implement or enforce the state plan.

History. Acts 2015, No. 382, § 1; 2019, No. 910, § 2455.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(1).

8-3-204. Appeal of state plan — Adjudicatory process.

  1. If the Division of Environmental Quality proposes to finalize a state plan submittal for review and approval by the United States Environmental Protection Agency, the division shall comply with the procedural requirements for notice and public comment specified in § 8-4-317.
    1. Only a person or an organization that submits comments on the record during the public comment period has standing to appeal the final decision of the division to the Arkansas Pollution Control and Ecology Commission upon written application made within thirty (30) days after the service of notice made under § 8-4-317(b)(2)(A).
    2. An appeal under subdivision (b)(1) of this section shall be processed as a permit appeal under § 8-4-205.

History. Acts 2015, No. 382, § 1; 2019, No. 910, § 2456.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a); and substituted “division” for “department” in (a) and (b)(1).

8-3-205. Assessing effects of state plan.

  1. Before completing a state plan for regulating carbon dioxide emissions from covered electric generating units, the Division of Environmental Quality shall prepare a report that takes into account the factors specified in § 8-4-312 and the Clean Air Act, 42 U.S.C. § 7401 et seq., as applicable.
    1. In addition to the report specified in subsection (a) of this section, the division shall coordinate with the Arkansas Public Service Commission in the preparation of a report that assesses the effects of the state plan on the electric power sector, including without limitation:
      1. The ability of the state to provide affordable electricity through diversified sources of electricity generation;
      2. The type and amount of electric generating capacity within the state that is likely to withdraw from the state or switch to another fuel;
      3. Stranded investment in electric generating and transmission capacity and other assets and infrastructure;
      4. Potential risks to electric reliability within the state, including without limitation resource adequacy risks, transmission constraints, and natural gas supply and transmission adequacy; and
        1. The amount by which retail electricity and any replacement fuel prices within the state are forecast to increase.
        2. A rate impact assessment shall consider nonfuel costs, including generation, transmission, distribution, surcharges for renewable energy and energy efficiency, capital investment, upgrades to meet environmental requirements, utility profits, financing costs for new investments, unappreciated capital assets retired prematurely, and other nonfuel costs and surcharges, and the amount of funds contributed from all in-state taxpayers to local, state, and federal subsidies, grants, and credits to fund in-state electric generation sources, electric storage, and energy efficiency.
    2. The division shall further coordinate with the Arkansas Economic Development Commission in the preparation of a report that assesses the effects of the state plan on the electricity consumers within the state, including without limitation:
      1. Disproportionate impacts of electricity and other replacement energy price increases on middle-income and lower-income households;
      2. Employment within the state, including without limitation direct and indirect employment effects and jobs potentially lost within affected sectors of the state's economy;
      3. Economic development within the state, including without limitation effects on manufacturing, commercial, and other sectors of the state's economy;
      4. The competitive position of the state in relation to neighboring states and other economic competitors; and
      5. State and local governments, including without limitation potential impacts resulting from changes in tax revenues and higher government outlays for electric service.
  2. The reports required by this section shall be included with any petition filed by the division to initiate rulemaking for rules that implement a state plan for regulating carbon dioxide emissions from covered electric generating units.

History. Acts 2015, No. 382, § 1; 2019, No. 315, §§ 446, 447; 2019, No. 910, §§ 2457-2460; 2019, No. 934, § 2.

A.C.R.C. Notes. Acts 2019, No. 934, § 1, provided: “Legislative purpose. The purpose of this act is to:

“(1) Create a means to waive procedures for legislative review and approval of state plans when final emission guidelines are promulgated by the United States Environmental Protection Agency under § 111(d) of the Clean Air Act, 42 U.S.C. § 7411(d), for electric generating units when those emission guidelines are determined to not require any one (1) or more of the following:

“(A) Shifting electricity generation from one fuel type to another;

“(B) Closing any fossil fuel-fired electric generating unit; or

“(C) Imposing statewide greenhouse gas goals or other statewide greenhouse gas emission limitations; and

“(2) Revise the requirements under § 8-3-201 et seq. pertaining to a state plan to ensure consistency with the Clean Air Act and to avoid the imposition of a federal plan.”

Publisher's Notes. Acts 2019, No. 934, § 2 specifically amended subsection (a) of this section as amended by Acts 2019, No. 315.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” in (a) and (c).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a); and substituted “division” for “department” in (b) and (c).

The 2019 amendment by No. 934 substituted “completing” for “preparing a petition to initiate rulemaking for the development of rules implementing” in (a).

8-3-206. Submission of state plan.

  1. The Division of Environmental Quality shall not submit a state plan to the United States Environmental Protection Agency under § 8-3-207 if the state plan:
    1. Results in a significant rate increase annually for any rate class of the total delivered electricity cost per kilowatt hour or of the total natural gas cost per thousand cubic feet; or
    2. Results in unreasonable reliability risks.
  2. The division shall not submit a state plan to the United States Environmental Protection Agency until:
    1. The Legislative Council has approved the state plan under § 8-3-207(b); or
    2. The Governor directs the submission of a state plan under § 8-3-207(d).

History. Acts 2015, No. 382, § 1; 2019, No. 910, §§ 2461, 2462.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a); and substituted “division” for “department” in (b).

8-3-207. Procedures for approval of state plan.

  1. Before transmitting a state plan to the Governor for submission of the state plan to the United States Environmental Protection Agency, the Division of Environmental Quality shall transmit to the cochairs of the Legislative Council a copy of the state plan and the accompanying report developed under § 8-3-205.
    1. Upon receiving the state plan and the accompanying report transmitted under subsection (a) of this section and after sufficient time has been provided to assess the state plan and the accompanying report, the Legislative Council shall vote on approval of the state plan.
    2. An affirmative majority vote of the Legislative Council is required for approval of the state plan.
  2. If the Legislative Council fails to approve a state plan under subsection (b) of this section, the division may submit a revised version of the state plan, with an accompanying revised report, to the cochairs of the Legislative Council for approval under this section.
  3. Notwithstanding the provisions of this subchapter, in the absence of legislative approval under subsection (b) of this section, the Governor may direct the submission of a state plan to the United States Environmental Protection Agency if, in his or her judgment:
    1. Sufficient time has passed for the Legislative Council to consider a state plan submitted by the division for legislative approval;
    2. Further delay would result in the failure to submit a state plan by the relevant deadline for submission; and
    3. Failure to submit a state plan would likely result in the imposition of a federal implementation plan.
  4. This subchapter does not eliminate the requirement of legislative approval of rules promulgated to implement or enforce the state plan subsequently to gubernatorial action under subsection (d) of this section.

History. Acts 2015, No. 382, § 1; 2019, No. 315, § 448; 2019, No. 910, §§ 2463-2465; 2019, No. 934, §§ 3, 4.

A.C.R.C. Notes. Acts 2019, No. 934, § 1, provided: “Legislative purpose. The purpose of this act is to:

“(1) Create a means to waive procedures for legislative review and approval of state plans when final emission guidelines are promulgated by the United States Environmental Protection Agency under § 111(d) of the Clean Air Act, 42 U.S.C. § 7411(d), for electric generating units when those emission guidelines are determined to not require any one (1) or more of the following:

“(A) Shifting electricity generation from one fuel type to another;

“(B) Closing any fossil fuel-fired electric generating unit; or

“(C) Imposing statewide greenhouse gas goals or other statewide greenhouse gas emission limitations; and

“(2) Revise the requirements under § 8-3-201 et seq. pertaining to a state plan to ensure consistency with the Clean Air Act and to avoid the imposition of a federal plan.”

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (e).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a); and substituted “division” for “department” in (c) and (d)(1).

The 2019 amendment by No. 934 rewrote (a); and inserted “likely” in (d)(1).

8-3-208. Feasibility study.

If a state plan approved under this subchapter would result in a significant increase in the total electric or natural gas bill annually for any customer class as determined by the Arkansas Public Service Commission, the Division of Environmental Quality shall prepare a feasibility study to determine whether:

  1. An alternative approach is consistent with the Clean Air Act, 42 U.S.C. § 7401 et seq.; or
  2. The pursuit of implementing an alternative approach is likely to result in the imposition of a federal plan.

History. Acts 2015, No. 382, § 1; 2019, No. 910, § 2466; 2019, No. 934, § 5.

A.C.R.C. Notes. Acts 2019, No. 934, § 1, provided: “Legislative purpose. The purpose of this act is to:

“(1) Create a means to waive procedures for legislative review and approval of state plans when final emission guidelines are promulgated by the United States Environmental Protection Agency under § 111(d) of the Clean Air Act, 42 U.S.C. § 7411(d), for electric generating units when those emission guidelines are determined to not require any one (1) or more of the following:

“(A) Shifting electricity generation from one fuel type to another;

“(B) Closing any fossil fuel-fired electric generating unit; or

“(C) Imposing statewide greenhouse gas goals or other statewide greenhouse gas emission limitations; and

“(2) Revise the requirements under § 8-3-201 et seq. pertaining to a state plan to ensure consistency with the Clean Air Act and to avoid the imposition of a federal plan.”

Acts 2019, No. 910, § 2466, amended former subsection (b) of this section to replace “department” with “division”. However, Acts 2019, No. 934, § 5, specifically repealed this subsection.

Amendments. The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a); and substituted “division” for “department” in (b)(1) and (b)(2).

The 2019 amendment by No. 934 deleted (b); and rewrote the remaining provisions.

8-3-209. Waiver of review and approval procedures for emissions plans.

  1. The Division of Environmental Quality may seek a waiver of review and approval procedures for emissions plans from the Legislative Council if the division determines that final federal emission guidelines do not require any one (1) or more of the following:
    1. Shifting generation from electric generating units powered by one fuel type to another fuel type;
    2. Closing any fossil fuel-fired electric generating unit; or
    3. Imposing a statewide greenhouse gas goal or other statewide greenhouse gas emissions limitation.
  2. A request to the Legislative Council under subsection (a) of this section shall include an explanation of how the final emission guidelines for the regulation of carbon dioxide emissions from existing fossil fuel-fired electric generating units under § 111(d) of the Clean Air Act, 42 U.S.C. § 7411, do not require any of the factors in subsection (a) of this section.
  3. The division shall not seek a waiver under subsection (a) of this section until the United States Environmental Protection Agency promulgates emission guidelines for the regulation of carbon dioxide emissions from existing fossil fuel-fired electric generating units under § 111(d) of the Clean Air Act, 42 U.S.C. § 7411(d).
  4. An affirmative majority vote of the Legislative Council is required to grant a waiver of review and approval procedures for a state plan.
  5. If the Legislative Council grants a waiver under this section, then all requirements in §§ 8-3-203 and 8-3-205 — 8-3-207 are waived.
  6. If the Legislative Council grants a waiver under this section, the division may submit a state plan to the United States Environmental Protection Agency.

History. Acts 2019, No. 934, § 6.

A.C.R.C. Notes. Acts 2019, No. 934, § 1, provided: “Legislative purpose. The purpose of this act is to:

“(1) Create a means to waive procedures for legislative review and approval of state plans when final emission guidelines are promulgated by the United States Environmental Protection Agency under § 111(d) of the Clean Air Act, 42 U.S.C. § 7411(d), for electric generating units when those emission guidelines are determined to not require any one (1) or more of the following:

“(A) Shifting electricity generation from one fuel type to another;

“(B) Closing any fossil fuel-fired electric generating unit; or

“(C) Imposing statewide greenhouse gas goals or other statewide greenhouse gas emission limitations; and

“(2) Revise the requirements under § 8-3-201 et seq. pertaining to a state plan to ensure consistency with the Clean Air Act and to avoid the imposition of a federal plan.”

Chapter 4 Arkansas Water and Air Pollution Control Act

Publisher's Notes. Acts 1981, No. 523, § 7, provided that this act shall not repeal Acts 1949, No. 472 (§ 8-4-101 et seq.), either in whole or in part.

Research References

Am. Jur. 61B Am. Jur. 2d, Pollution Control, § 1 et seq.

Ark. L. Notes.

Looney, Handling Administrative Proceedings Before the Arkansas Pollution Control and Ecology Department and Commission, 1988 Ark. L. Notes 23.

Ark. L. Rev.

Environmental Law — Third Party Beneficiary Contract as a New Weapon in the Continuing Pollution Fight, 26 Ark. L. Rev. 408.

Lex Aquae Arkansas, 27 Ark. L. Rev. 429.

C.J.S. 39A C.J.S., Health & Env., § 93 et seq.

U. Ark. Little Rock L.J.

Wright, In Storage Tank Funds We Trust: An Analysis of Their Role in Protecting the Environment and Small Business, 13 U. Ark. Little Rock L.J. 417.

Wright, Jr. & Thomas III, The Federal/Arkansas Water Pollution Control Programs: Past, Present, and Future, 23 U. Ark. Little Rock L. Rev. 541 (Spring, 2001).

Case Notes

Causes of Action.

The legislature intended that the State be able to bring claims for natural resource damages under this chapter and under §§ 8-6-201 et seq. and 8-7-201 et seq.Arkansas ex rel. Bryant v. Dow Chem. Co., 981 F. Supp. 1170 (E.D. Ark. 1997).

Statute of Limitations.

The environmental protection provisions found in this chapter and §§ 8-6-201 et seq. and 8-7-201 et seq., are regulatory and protective rather than penal, and therefore the statute of limitations for penal actions, § 16-56-108, does not apply. Arkansas ex rel. Bryant v. Dow Chem. Co., 981 F. Supp. 1170 (E.D. Ark. 1997).

Subchapter 1 — General Provisions

Publisher's Notes. Acts 1965, No. 183, § 6, provided that Acts 1949, No. 472, §§ 1-12 (subchapters 1 and 2 of this chapter) were designated as comprising “Part 1, Water Pollution.”

Cross References. County and municipal financing of pollution control facilities, § 14-267-101 et seq.

Permit fees for air, water, and solid waste pollution control activities, § 8-1-101 et seq.

Effective Dates. Acts 1949, No. 472, § 12: approved Mar. 29, 1949. Emergency clause provided: “Whereas, the pollution of the waters and the streams in the State of Arkansas from sewage, industrial waste, garbage, municipal refuse, and many other sources has created and is creating a hazard and danger to the public health of the people of the State of Arkansas, and is endangering the fish and other wildlife of the State of Arkansas; and, whereas, improper and inadequate sewer systems and disposal plants and treatment works cannot be adequately inspected, checked, and supervised under existing laws; and, whereas, present laws to prevent the pollution of the streams and to protect the health and general welfare of the people are inadequate and there are overlapping authorities as to control and regulations; and whereas, the continuance of such conditions presents an immediate and continuing threat and hazard to the public peace, health, and safety, therefore an emergency is hereby declared to exist and this act shall take effect and be in force from and after its passage.”

Acts 1953, No. 232, § 2: Mar. 6, 1953. Emergency clause provided: “It appearing to the Legislature that the membership of the Water Pollution Control Commission as presently constituted does not adequately give representation to the other state agencies interested and informed in matters of water pollution control, and it appearing that there be an immediate public need for such representation, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health and safety, shall take effect and be in full force from and after its passage and approval.”

Acts 1961, No. 120, § 9: Feb. 21, 1961. Emergency clause provided: “Whereas, operating experience under Act 472 of 1949 has revealed ambiguous and inadequate provisions which the foregoing amendments will eliminate and correct, and whereas a continuation of said ambiguous and inadequate provisions would be inimical to the proper control and abatement of water pollution and to the public peace, health, and safety, an emergency is hereby declared to exist and this act shall be in full force and effect from the date of its approval.”

Acts 1965, No. 183, § 8: Mar. 10, 1965. Emergency clause provided: “Whereas, the pollution of the air resources of the State of Arkansas by air contaminants can create serious hazards to the public health and welfare of the people; and, whereas, it is the public policy of the state to maintain such a reasonable degree of purity of the air to the end that the least possible injury shall be done to human, plant or animal life or to property, and to maintain public enjoyment of the state's natural resources, consistent with the economic and industrial well-being of the state; and, whereas, existing laws to prevent, control, and abate air pollution are inadequate to protect the health and general welfare of the people; now, therefore, an emergency is hereby declared to exist and this act shall be in full force and effect from the date of its approval.”

Acts 1973, No. 262, § 13: Mar. 9, 1973. Emergency clause provided: “It being found that the existing state laws relating to water pollution control do not contain adequate legal authority for the state to continue to administer its own permit program for discharges into navigable waters within the state in lieu of that of the Federal Environmental Protection Agency and it being desirable that such authority be provided, an emergency is, therefore, declared hereby to exist and this act, being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1975, No. 743, § 11: Apr. 3, 1975. Emergency clause provided: “It being found that the existing state laws relating to water pollution control do not contain adequate legal authority for the state to continue to administer its own permit program for discharges into navigable waters within the state in lieu of that of the Federal Environmetal Protection Agency and it being desirable that such authority be provided, an emergency is, therefore, declared hereby to exist and this act, being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1991, No. 1057, § 9: Apr. 9, 1991. Emergency clause provided: “It is hereby found and determined by the 78th General Assembly that the sanctions imposed by current Arkansas law for environmental violations are among the least stringent in the nation. Thus, current law is inadequate to deter environmental violations, and in fact extends an implicit invitation to irresponsible industries. Protection of the environmental integrity of this state is essential to protect the public's health and economic well-being. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1997, No. 250, § 258: Feb. 24, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 1211 of 1995 established the procedure for all state boards and commissions to follow regarding reimbursement of expenses and stipends for board members; that this act amends various sections of the Arkansas Code which are in conflict with the Act 1211 of 1995; and that until this cleanup act becomes effective conflicting laws will exist. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governer, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2005, No. 1824, § 20: July 1, 2005. Emergency clause provided: “The General Assembly of the State of Arkansas hereby finds and determines that the decision of the Arkansas Supreme Court in Arkansas Department of Environmental Quality v. Brighton Corp. 352 Ark. 396, 102 S.W.3d 458 (2003), has raised questions regarding the factual proof required to establish a claim for cost recovery under the Arkansas Remedial Action Trust Fund Act and regarding the retroactivity of the statute. The General Assembly further finds and determines that the doubts raised by the decision in the Brighton case have created substantial uncertainty regarding the enforcement authority of the Arkansas Department of Environmental Quality and the rights and responsibilities of private parties under the Arkansas Remedial Action Trust Fund Act, all of which require urgent resolution. Therefore, an emergency is declared to exist; and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2005, and shall apply retroactively.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Case Notes

Constitutionality.

There is a rational basis for distinguishing between air pollution attributable to commercial incinerators for burning waste materials, on the one hand, and agricultural clearing and residential fireplaces and grills on the other; therefore, the Water and Air Pollution Control Act does not deny equal protection of the law under Ark. Const., Art. 2, § 18 and the Fourteenth Amendment of the United States Constitution. J.W. Black Lumber Co. v. Ark. Dep't of Pollution Control & Ecology, 290 Ark. 170, 717 S.W.2d 807 (1986).

8-4-101. Title.

This chapter may be cited as the “Arkansas Water and Air Pollution Control Act”.

History. Acts 1949, No. 472 [Part 1], § 11; 1965, No. 183, § 5; A.S.A. 1947, § 82-1901.

Research References

Ark. L. Rev.

Wright & Henry, The Arkansas Air Pollution Control Program: Past, Present and Future. 51 Ark. L. Rev. 227.

Case Notes

Cited: Ark. Pollution Control Comm'n v. Coyne, 252 Ark. 792, 481 S.W.2d 322 (1972); Ark. Wildlife Fed'n v. Bekaert Corp., 791 F. Supp. 769 (W.D. Ark. 1992).

8-4-102. Definitions.

As used in this chapter:

  1. “Any wastes” and “pollutants” include sewage, industrial wastes, or other wastes;
  2. “Discharge into the waters of the state” means a discharge of any wastes in any manner that directly or indirectly permits such wastes to reach any of the waters of the state;
  3. “Disposal system” means a system for disposing of sewage, industrial waste, and other wastes and includes sewer systems and treatment works;
  4. “Industrial waste” means any liquid, gaseous, or solid waste substance resulting from any process of industry, mining, manufacturing, trade, or business or from the development of any natural resources;
  5. “Other wastes” means garbage, municipal refuse, decayed wood, sawdust, shavings, bark, lime, sand, ashes, offal, oil, tar chemicals, and all other organic or inorganic substances, not including sewage or industrial waste that may be discharged into the waters of the state;
  6. “Person” means any state agency, municipality, governmental subdivision of the state or the United States, public or private corporation, individual, partnership, association, or other entity;
  7. “Pollution” means such contamination or other alteration of the physical, chemical, or biological properties of any waters of the state, or such discharge of any liquid, gaseous, or solid substance in any waters of the state as will, or is likely to, render the waters harmful, detrimental, or injurious to public health, safety, or welfare, to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish, or other aquatic life;
  8. “Sewage” means the water-carried waste products from residences, public buildings, institutions, or other buildings, including the excrementitious or other discharge from the bodies of humans or animals, together with such groundwater infiltration and surface water as may be present;
  9. “Sewer system” means pipelines or conduits, pumping stations, and force mains, and all other constructions, devices, and appliances appurtenant thereto, which are used for conducting sewage or industrial waste or other wastes to a point of disposal;
  10. “Treatment works” means any plant, disposal field, lagoon, dam, pumping station, constructed drainage ditch or surface water intercepting ditch, incinerator, area devoted to sanitary landfills, or other works not specifically mentioned in this section, which is installed for the purpose of treating, stabilizing, or disposing of sewage, industrial waste, or other wastes; and
  11. “Waters of the state” means all streams, lakes, marshes, ponds, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and all other bodies or accumulations of water, surface and underground, natural or artificial, public or private, which are contained within, flow through, or border upon this state or any portion of the state.

History. Acts 1949, No. 472 [Part 1], § 1; 1961, No. 120, §§ 1, 2; 1975, No. 743, §§ 2, 3; A.S.A. 1947, § 82-1902; Acts 1993, No. 163, § 9; 1993, No. 165, § 9.

Publisher's Notes. Acts 1961, No. 120, § 8, which amended Acts 1949, No. 472, § 10, provided, in part, that it was the purpose of the act to provide additional and cumulative remedies to prevent, abate, and control the pollution of the waters of the state, and that nothing contained in the act should be construed to abridge or alter rights of action or remedies in equity or under the common law or statutory law, criminal or civil, nor should any provision of the act, or any action done by virtue of the act, be construed as estopping the state, or any municipality or person, as riparian owners or otherwise, in the exercise of their rights in equity or under the common law or statutory law, to suppress nuisances or to abate pollution.

In Acts 1975, No. 743, § 1, the General Assembly found and declared that since the Federal Water Pollution Control Act, as amended (33 U.S.C. § 1251 et seq.), provided for a permit system (National Pollutant Discharge Elimination System) to regulate the discharge of pollutants to the waters of the United States and provided that permits may be issued by states which are authorized to implement the provisions of that act, it was in the interest of the people of the State of Arkansas to amend the Arkansas Water and Air Pollution Control Act, as amended (§§ 8-4-1018-4-106, 8-4-2018-4-229, 8-4-3018-4-314), in a manner so as to provide required legal authority to the State of Arkansas, through the Department of Pollution Control and Ecology, to implement the provisions of the Federal Water Pollution Control Act, as amended, and thereby to continue in effect the state permit program for the prevention and elimination of pollution of all waters of the state, including navigable waters.

Research References

U. Ark. Little Rock L.J.

Wright, In Storage Tank Funds We Trust: An Analysis of Their Role in Protecting the Environment and Small Business, 13 U. Ark. Little Rock L.J. 417.

Case Notes

Sewer System.

The lease and service of a toilet does not fit within the definition of a public utility sewer service. Weiss v. Best Enters., 323 Ark. 712, 917 S.W.2d 543 (1996).

Cited: Carson v. Hercules Powder Co., 240 Ark. 887, 402 S.W.2d 640 (1966); Arkansas ex rel. Bryant v. Dow Chem. Co., 981 F. Supp. 1170 (E.D. Ark. 1997).

8-4-103. Criminal, civil, and administrative penalties.

  1. Criminal Penalties.
      1. Any person that violates any provision of this chapter, that commits any unlawful act under it, or that violates any rule or order of the Arkansas Pollution Control and Ecology Commission or the Division of Environmental Quality shall be guilty of a misdemeanor.
        1. Notwithstanding any other provisions of Arkansas law, upon conviction that person shall be subject to:
          1. Imprisonment for not more than one (1) year;
          2. A fine of not more than twenty-five thousand dollars ($25,000); or
          3. Both such fine and imprisonment.
        2. For the purpose of fines only, each day or part of a day during which the violation is continued or repeated shall constitute a separate offense.
      1. It shall be unlawful for a person to:
        1. Violate any provision of this chapter, commit any unlawful act under it, or violate any rule or order of the commission or the Division of Environmental Quality and leave the state or remove his or her person from the jurisdiction of this state;
        2. Purposely, knowingly, or recklessly cause pollution of the waters or air of the state in a manner not otherwise permitted by law and thereby create a substantial likelihood of adversely affecting human health, animal or plant life, or property; or
        3. Purposely or knowingly make any false statement, representation, or certification in any document required to be maintained under this chapter or falsify, tamper with, or render inaccurate any monitoring device, method, or record required to be maintained under this chapter.
        1. A person that violates subdivision (a)(2)(A) of this section shall be guilty of a felony.
          1. Notwithstanding any other provisions of Arkansas law, upon conviction that person shall be subject to:
            1. Imprisonment for not more than five (5) years;
            2. A fine of not more than fifty thousand dollars ($50,000); or
            3. Both such fine and imprisonment.
          2. For the purpose of fines only, each day or part of a day during which the violation is continued or repeated shall constitute a separate offense.
      1. Any person that purposely, knowingly, or recklessly causes pollution of the waters or air of the state in a manner not otherwise permitted by law and thereby places another person in imminent danger of death or serious bodily injury shall be guilty of a felony.
        1. Notwithstanding any other provisions of Arkansas law, upon conviction that person shall be subject to:
          1. Imprisonment for not more than twenty (20) years;
          2. A fine of not more than two hundred fifty thousand dollars ($250,000); or
          3. Both such fine and imprisonment.
        2. For the purpose of fines only, each day or part of a day during which the violation is continued or repeated shall constitute a separate offense.
    1. Notwithstanding the limits on fines set in subdivisions (a)(1)-(3) of this section, if a person convicted under subdivision (a)(1) of this section, subdivision (a)(2) of this section, or subdivision (a)(3) of this section has derived or will derive pecuniary gains from commission of the offenses, then the person may be sentenced to pay a fine not to exceed two (2) times the amount of the pecuniary gain.
  2. Civil Penalties. The Division of Environmental Quality may institute a civil action in any court of competent jurisdiction to accomplish any of the following:
    1. Restrain any violation of or compel compliance with the provisions of this chapter and of any rules, orders, permits, or plans issued pursuant to this chapter;
    2. Affirmatively order that remedial measures be taken as may be necessary or appropriate to implement or effectuate the purposes and intent of this chapter;
    3. Recover all costs, expenses, and damages to the Division of Environmental Quality and any other agency or division of the state in enforcing or effectuating the provisions of this chapter, including, but not limited to, natural resource damages;
    4. Assess civil penalties in an amount not to exceed ten thousand dollars ($10,000) per day for violations of this chapter and of any rules, permits, or plans issued pursuant to this chapter; or
    5. Recover civil penalties assessed pursuant to subsection (c) of this section.
      1. Any person that violates any provision of this chapter and rules, permits, or plans issued pursuant to this chapter may be assessed an administrative civil penalty not to exceed ten thousand dollars ($10,000) per violation.
      2. Each day of a continuing violation may be deemed a separate violation for purposes of penalty assessment.
      1. No civil penalty may be assessed until the person charged with the violation has been given the opportunity for a hearing in accordance with rules adopted by the commission.
      2. All hearings and appeals arising under this chapter shall be conducted in accordance with the procedures prescribed by §§ 8-4-205, 8-4-212, and 8-4-218 — 8-4-229.
      3. These administrative procedures may also be used to recover all costs, expenses, and damages to the Division of Environmental Quality and any other agency or subdivision of the state in enforcing or effectuating the provisions of this chapter, including, but not limited to, natural resource damages.
      1. Before assessing a civil penalty under subsection (c) of this section, the Director of the Division of Environmental Quality shall provide public notice of and a reasonable opportunity to comment on the proposed issuance of the order.
      2. If the civil penalty is being assessed under an order on consent, the order shall not be effective until thirty (30) days after the publication of notice of the order.
      3. Notice shall also be given to each member of the commission.
      4. If a civil penalty is being assessed for a violation that occurs within the corporate limits of any municipality in Arkansas, a copy of the public notice shall be delivered to the chief executive officer of the municipality in which the alleged violation occurred, along with a copy of any proposed order concerning the violation, and the municipality shall be given a reasonable opportunity to comment on the proposed order consistent with the public notice and comment requirements of this chapter and rules promulgated under this chapter.
    1. Notice of any administrative enforcement order shall contain the following:
      1. The identity of the person or facility alleged to be in violation;
      2. The location by city or county of the alleged violation;
      3. A brief description by environmental media, that is, water, air, solid waste, or hazardous waste, impacted by the alleged violation;
      4. The type of administrative action proposed, that is, a consent order, a notice of violation, or an emergency order; and
      5. The amount of penalty to be assessed.
      1. Any person that comments on a proposed assessment of a penalty under this subsection shall be given notice of any hearing held under this subsection.
      2. In any hearing held under this subsection, the person shall have a right to intervene upon timely application.
        1. If no adjudicatory hearing is held on a proposed order, any person that commented on the proposed order may petition the commission to set aside the order and provide an adjudicatory hearing.
        2. A petition to set aside such an order must be filed with the commission within thirty (30) days of service of the order.
      1. If the evidence presented by the petitioner is material and was not considered in the issuance of the order and the commission finds in light of the new evidence that the order is not reasonable and appropriate, it may set aside the order and provide a hearing.
      2. If the commission denies a hearing under this subdivision (d)(4), it shall provide to the petitioner notice of and its reasons for the denial. The denial of such a hearing may be appealed pursuant to § 8-4-222.
    2. On its own initiative, the commission may institute review of any enforcement action taken by the director within thirty (30) days of the effective date of the order.
  3. As an alternative to the limits on civil penalties set in subsections (b) and (c) of this section, if a person found liable in actions brought under subsection (b) of this section or subsection (c) of this section has derived pecuniary gain from commission of the offenses, then he or she may be ordered to pay a civil penalty equal to the amount of the pecuniary gain.
    1. All moneys collected as reimbursement for expenses, costs, and damages to the Division of Environmental Quality shall be deposited into the operating fund of the Division of Environmental Quality.
    2. All moneys collected as civil penalties shall be deposited into the Hazardous Substance Remedial Action Trust Fund as provided by § 8-7-509.
      1. In his or her discretion, the director may authorize in-kind services or cash contributions as partial mitigation of cash penalties for use in projects or programs designed to advance environmental interests.
      2. The violator may provide in-kind services or cash contributions as directed by the Division of Environmental Quality by utilizing the violator's own expertise, by hiring and compensating subcontractors to perform the services, by arranging and providing financing for the services, or by other financial arrangements initiated by the Division of Environmental Quality in which the violator and the Division of Environmental Quality retain no monetary benefit, however remote.
      3. The services shall not duplicate or augment services already provided by the Division of Environmental Quality through appropriations of the General Assembly.
    3. All moneys collected that represent the costs, expenses, or damages of other agencies or subdivisions of the state shall be distributed to the appropriate governmental entity.
    1. Pursuant to duly promulgated ordinances or regulations, any governmental entity permitted to operate a publicly owned treatment works shall have the authority to collect in a court of competent jurisdiction civil or criminal penalties in an amount not to exceed one thousand dollars ($1,000) for each violation by industrial users of pretreatment standards or requirements.
    2. Such a criminal or civil action may be initiated only after a majority vote of the entity's governing body resolves to pursue such an action.
    3. For the purpose of this subsection, each day of a continuing violation may be deemed a separate violation.
  4. The culpable mental states referenced throughout this section shall have the same definitions as set out in § 5-2-202.
  5. Solicitation, as defined by § 5-3-301 et seq., or conspiracy, as defined by § 5-3-401 et seq., to commit any criminal act proscribed by this section and §§ 8-6-204 and 8-7-204 shall be punishable as follows:
    1. Any solicitation or conspiracy to commit an offense under this section that is a misdemeanor shall be a misdemeanor subject to:
      1. Fines not to exceed fifteen thousand dollars ($15,000) per day of violation;
      2. Imprisonment for more than six (6) months; or
      3. Both such fines and imprisonment;
    2. Any solicitation or conspiracy to commit an offense under this section that is a felony subject to fines of fifty thousand dollars ($50,000) per day or imprisonment up to five (5) years shall be a felony subject to:
      1. Fines up to thirty-five thousand dollars ($35,000) per day;
      2. Imprisonment up to two (2) years; or
      3. Both such fines and imprisonment;
    3. Any solicitation or conspiracy to commit an offense under this section that is a felony subject to fines of one hundred thousand dollars ($100,000) per day or imprisonment up to ten (10) years shall be a felony subject to:
      1. Fines up to seventy-five thousand dollars ($75,000) per day;
      2. Imprisonment up to seven (7) years; or
      3. Both such fines and imprisonment; and
    4. Any solicitation or conspiracy to commit an offense under this section that is a felony subject to fines of two hundred fifty thousand dollars ($250,000) per day or imprisonment up to twenty (20) years shall be a felony subject to:
      1. Fines up to one hundred fifty thousand dollars ($150,000) per day;
      2. Imprisonment up to fifteen (15) years; or
      3. Both such fines and imprisonment.
  6. In cases considering suspension of sentence or probation, efforts or commitments by the defendant to remediate any adverse environmental effects caused by the defendant's activities may be considered by the court to be restitution as contemplated by § 5-4-301.
  7. A business organization or its agents or officers may be found liable under this section in accordance with the standards set forth in § 5-2-501 et seq. and sentenced to pay fines in accordance with the provisions of § 5-4-201(d) and (e).
    1. A person that uses a cleaning agent in violation of this chapter upon conviction is guilty of a violation and is subject to a fine not exceeding one hundred dollars ($100).
    2. A person that sells, distributes, or manufactures a cleaning agent in violation of this chapter upon conviction is guilty of a violation and is subject to a fine not exceeding one thousand dollars ($1,000).
      1. The Division of Environmental Quality may seize any cleaning agent held for sale or distribution in violation of this chapter.
      2. The seized cleaning agents are considered forfeited.

History. Acts 1949, No. 472, [Part 1], § 9; 1973, No. 262, § 10; 1975, No. 743, § 8; 1983, No. 733, § 1; A.S.A. 1947, § 82-1909; Acts 1987, No. 529, § 1; 1991, No. 884, § 1; 1991, No. 1057, §§ 3, 5; 1993, No. 163, § 10; 1993, No. 165, § 10; 1993, No. 454, § 2; 1993, No. 461, § 2; 1993, No. 731, § 3; 1995, No. 384, § 5; 1995, No. 895, § 1; 2003, No. 133, § 1; 2005, No. 1824, § 5; 2013, No. 1127, § 1; 2019, No. 315, §§ 449-455; 2019, No. 693, § 5; 2019, No. 910, §§ 2467-2475.

A.C.R.C. Notes. Acts 2005, No. 1824, § 1, provided: “The purpose of this Act is to resolve questions that have arisen regarding the phrase ‘at the time of disposal’ in Arkansas Code § 8-7-512(a)(3) and § 8-7-512(a)(4), as interpreted by the Arkansas Supreme Court in Arkansas Department of Environmental Quality v. Brighton Corporation, et al., 352 Ark. 396, 102 S.W.3d 458 (2003), and to clarify that the Arkansas Remedial Action Trust Fund Act is remedial in nature and should be applied retroactively.”

Publisher's Notes. Acts 1973, No. 262, § 1, provided that it was the purpose of the act to amend the Arkansas Water and Air Pollution Control Act (§ 8-4-101 et seq.), in such manner as to qualify and provide required legal authority to the State of Arkansas, through Department of Pollution Control and Ecology (now the Arkansas Pollution Control and Ecology Commission), for participation in the National Pollutant Discharge Elimination System as provided by the Federal Water Pollution Control Act Amendments of 1972, adopted October 18, 1972 (codified primarily as 33 U.S.C. 1251 et seq.), and to continue in effect the state permit program for the prevention and elimination of pollution of all waters of the state, including navigable waters.

For legislative findings and declarations for Acts 1975, No. 743, see Publisher's Notes to § 8-4-102.

Acts 1991, No. 1057, § 1, provided: “The General Assembly finds and determines that the criminal and civil penalties imposed by current law do not accurately reflect the degree of concern which the state places upon its environmental resources. The current criminal penalties for hazardous waste and other violations are among the lowest in the nation. Civil penalties for violations of the state water, air, solid waste and hazardous waste pollution control statutes are set at the minimum necessary to receive federally delegated programs. In declaring itself ‘The Natural State,’ the State of Arkansas demonstrated its commitment to its environmental resources. This commitment must be reflected in its environmental enforcement program. This act shall be liberally construed so as to achieve remedial intent.”

Acts 1991, No. 1057, § 5, is also codified as §§ 8-6-204 (f)-(i) and 8-7-204 (f)-(i).

Acts 1993, No. 731, § 1, provided: “Purpose. The state of Arkansas has an abundance of environmental concerns which need research and study, as well as concerns which have an immediate remedy but are absent funds to facilitate their implementation. This amendment serves to clarify the existing use of inkind services as penalties, to include cash contributions for use in worthy environmental projects and to advance environmental interests.”

Amendments. The 2013 amendment, in the introductory language of (i), inserted “as defined by § 5-3-301 et seq.” and deleted “§ 5-3-301 et seq. and” following “as defined by”.

The 2019 amendment by No. 315, throughout the section, deleted “regulation” following “rule”, substituted “rules” for “regulations”, and made similar changes.

The 2019 amendment by No. 693, in (l)(1) and (l)(2), substituted “upon conviction is guilty of a violation and is” for “is guilty of a misdemeanor and upon conviction is”.

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(1)(A) and (d)(1)(A); and substituted “Division of Environmental Quality” for “department” throughout the section.

Research References

U. Ark. Little Rock L.J.

Survey—Environmental Law, 14 U. Ark. Little Rock L.J. 779.

Case Notes

Construction.

The provisions in this chapter for assessing administrative penalties are comparable to those in 33 U.S.C. § 1319(g). Ark. Wildlife Fed'n v. ICI Ams. Inc., 842 F. Supp. 1140 (E.D. Ark. 1993), aff'd, 29 F.3d 376 (8th Cir. 1994).

Abatement of Dangerous Condition.

Where the record showed that dioxin was escaping from a plant site in quantities that under an acceptable, but unproved, theory could be considered as teratogenic, mutagenic, fetotoxic, and carcinogenic, there was a reasonable medical concern over the public health, and therefore the escape of dioxin into a creek and bayou from the plant site constituted an imminent and substantial endangerment to the health of persons and was subject to abatement. United States v. Vertac Chem. Corp., 489 F. Supp. 870 (E.D. Ark. 1980), aff'd, 961 F.2d 796 (8th Cir. 1992).

Civil Action Not Filed.

Where, pursuant to § 8-4-207, department of pollution control and ecology sought to obtain assessment of a civil penalty by the circuit court against defendant company without filing any civil action under this section, and there was no current violation at the time the plaintiff sought the penalty, trial court properly dismissed the action on the ground that it had no jurisdiction to consider the matter prior to an administrative hearing. Ark. Dep't of Pollution Control & Ecology v. B.J. McAdams, Inc., 303 Ark. 144, 792 S.W.2d 611 (1990).

Taking of Property.

The lumber company did not show that compliance with the Water and Air Pollution Control Act would be commensurate to a taking of its property where there was no proof of the company's net worth, nor anything to show a before and after value relative to the cost of compliance, and there was no proof that other options were open to the company. J.W. Black Lumber Co. v. Ark. Dep't of Pollution Control & Ecology, 290 Ark. 170, 717 S.W.2d 807 (1986).

Cited: Arkansas ex rel. Bryant v. Dow Chem. Co., 981 F. Supp. 1170 (E.D. Ark. 1997).

8-4-104. Arkansas Pollution Control and Ecology Commission — Members.

  1. There is created and established an Arkansas Pollution Control and Ecology Commission.
  2. The Arkansas Pollution Control and Ecology Commission shall be composed of fifteen (15) members:
      1. The Governor, by and with the advice and consent of the Senate, shall appoint eight (8) members.
      2. Each congressional district shall be represented on the Arkansas Pollution Control and Ecology Commission by at least one (1) member, and no district shall have more than two (2) members of the eight (8) appointees.
        1. The Governor shall not appoint a member to represent any specific or special interest group, organization, or philosophy.
        2. However, in making appointments to the Arkansas Pollution Control and Ecology Commission, the Governor shall appoint individuals who have knowledge or expertise in matters within the jurisdiction of the Arkansas Pollution Control and Ecology Commission, including government, business or industry, agriculture and livestock, forestry, health, ecology, recreation and tourism, and geology.
      3. Each member appointed by the Governor shall be appointed for a term of four (4) years; and
    1. The other seven (7) members of the Arkansas Pollution Control and Ecology Commission shall be:
      1. The Secretary of the Department of Health, or his or her designee;
      2. The Secretary of the Department of Agriculture, or his or her designee;
      3. The Director of the Arkansas State Game and Fish Commission, or his or her designee;
      4. The State Forester, or his or her designee on behalf of the Arkansas Forestry Commission;
      5. The Director of the Oil and Gas Commission, or his or her designee;
      6. The Director of the Arkansas Natural Resources Commission, or his or her designee; and
      7. The State Geologist, or his or her designee, on behalf of the Arkansas Geological Survey.
  3. Elected city, county, and state officials shall not serve on the Arkansas Pollution Control and Ecology Commission after the expiration of any current member's term.
  4. In the event of a vacancy in the membership of the Arkansas Pollution Control and Ecology Commission, the Governor shall appoint a person to fill the vacancy temporarily who shall serve until the next meeting of the Senate, when some person shall be appointed by the Governor, by and with the consent and approval of the Senate, to serve the remainder of the unexpired term.
    1. The chair and vice chair shall be elected annually.
    2. The members of the Arkansas Pollution Control and Ecology Commission representing the state agencies shall not serve as chair or vice chair.
      1. The Arkansas Pollution Control and Ecology Commission shall hold at least four (4) regular meetings in each calendar year at times and places to be fixed by the Arkansas Pollution Control and Ecology Commission and such other meetings as may be necessary.
      2. Special meetings may be called at the discretion of the chair, and they shall be called by him or her upon written request of two (2) members of the Arkansas Pollution Control and Ecology Commission by delivery of written notice to each member of the Arkansas Pollution Control and Ecology Commission.
    1. Nine (9) members of the Arkansas Pollution Control and Ecology Commission shall constitute a quorum to transact business in both regular and special meetings.
    1. Each member of the Arkansas Pollution Control and Ecology Commission representing state agencies shall receive no additional salary or per diem for services as a member of the Arkansas Pollution Control and Ecology Commission but may receive expense reimbursement in accordance with § 25-16-901 et seq.
    2. The other seven (7) members appointed by the Governor may receive expense reimbursement and stipends in accordance with § 25-16-901 et seq.

History. Acts 1949, No. 472 [Part 1], § 2; 1953, No. 232, § 1; 1959, No. 211, § 1; 1965, No. 183, § 2; 1985, No. 930, § 1; A.S.A. 1947, § 82-1903; Acts 1991, No. 744, § 1; 1997, No. 250, § 44; 2001, No. 318, § 1; 2005, No. 2224, § 1; 2019, No. 910, § 2476.

Publisher's Notes. Acts 1949, No. 472, § 2, in part, created and established within the State Board of Health a Water Pollution Control Commission. Acts 1965, No. 183, § 2, in part, amended the section to create and establish the Arkansas Pollution Control Commission.

Acts 1971, No. 38, § 8, in part, transferred the Pollution Control Commission and its functions, powers, and duties to the Department of Pollution Control and Ecology by a type 4 transfer and provided in part, that any reference to the Pollution Control Commission and its director would be deemed to refer to the Department of Pollution Control and Ecology and the director of the department, respectively. However, § 25-2-107 provides that governing bodies such as the Pollution Control Commission shall retain their statutory authority, powers, duties, and functions upon transfer by a type 4 transfer.

Additionally, Acts 1971, No. 38, § 8, referred to the Commission on Pollution Control and Ecology.

Acts 1973, No. 262, § 2, which amended Acts 1949, No. 472, § 2(b), referred to a Commission on Pollution Control and Ecology, which is probably the same commission as the Arkansas Pollution Control Commission created by Acts 1949, No. 472, § 2(a) as amended. However, Acts 1973, No. 262 did not change the name of the commission created in Acts 1949, No. 472, § 2(a) as Acts 1985, No. 930, § 1, in part, amended Acts 1949, No. 472, § 2, to create an Arkansas Pollution Control and Ecology Commission.

Acts 1991, No. 744, § 1, provided, in part, that initial members of the Arkansas Pollution Control and Ecology Commission shall be appointed by the Governor as follows: one (1) member for one (1) year, two (2) members for two (2) years, two (2) members for three (3) years and two (2) members for four (4) years. The section further provided that those members serving on July 1, 1991, would continue to serve for the remainder of their terms.

Amendments. The 2019 amendment substituted “fifteen (15) members” for “thirteen (13) members” in the introductory language of (b); substituted “eight (8) members” for “seven (7) members” in (b)(1)(A); substituted “eight (8) appointees” for “seven (7) appointees” in (b)(1)(B); substituted “seven (7) members” for “six (6) members” in the introductory language of (b)(2); substituted “Secretary” for “Director” in (b)(2)(A); rewrote (b)(2)(B); and added (b)(2)(C) through (b)(2)(G).

8-4-105. [Repealed.]

Publisher's Notes. This section, concerning the Director of the Arkansas Department of Environmental Quality, was repealed by Acts 2019, No. 910, § 2477, effective July 1, 2019. The section was derived from Acts 1949, No. 472 [Part 1], § 2; 1963, No. 503, § 1; 1973, No. 262, § 2; A.S.A. 1947, § 82-1903; Acts 1991, No. 744, § 2; 1999, No. 1164, § 16.

8-4-106. Technical and other services and public assistance.

  1. Technical, scientific, legal, or other services may be performed, insofar as practicable, by personnel of other state agencies and educational institutions and the Attorney General. However, the personnel of these state agencies shall receive no additional salary or wages for their services to the Division of Environmental Quality.
  2. The Director of the Division of Environmental Quality, however, may employ and compensate, within appropriations available, consultants and such assistants and employees as may be necessary to carry out the provisions of this chapter and prescribe their powers and duties.

History. Acts 1949, No. 472 [Part 1], § 2; 1963, No. 503, § 1; 1965, No. 183, § 3; 1973, No. 262, § 3; A.S.A. 1947, § 82-1903; Acts 1991, No. 744, § 3; 1999, No. 1164, § 17; 2019, No. 910, § 2478.

Publisher's Notes. For legislative purpose of Acts 1973, No. 262, see Publisher's Notes to § 8-4-103.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a) and (b).

8-4-107. Prosecution of public nuisance actions.

In any legal action arising from, relating to, or including violations of laws or rules charged to the enforcement authority of the Division of Environmental Quality that also alleges the existence of a public nuisance at common law, the Attorney General or the division may serve as the instrumentality of the state authorized to initiate and prosecute such action.

History. Acts 1991, No. 516, § 4; 1999, No. 1164, § 18; 2019, No. 315, § 456; 2019, No. 910, § 2479.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations”.

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” and “division” for “department”.

Research References

ALR.

Remedies for sewage treatment plant alleged or deemed to be nuisance. 101 A.L.R.5th 287.

Subchapter 2 — Water Pollution

Publisher's Notes. Acts 1961, No. 120, § 8, which amended Acts 1949, No. 472, § 10, provided, in part, that it was the purpose of the act to provide additional and cumulative remedies to prevent, abate, and control the pollution of the waters of the state and that nothing contained in the act should be construed to abridge or alter rights of action or remedies in equity or under the common law or statutory law, criminal or civil, nor should any provision of the act, or any action done by virtue of the act, be construed as estopping the state, or any municipality or person, as riparian owners or otherwise, in the exercise of their rights in equity or under the common law or statutory law, to suppress nuisances or to abate pollution.

Acts 1965, No. 183, § 6, provided that Acts 1949, No. 472, §§ 1-12 (subchapters 1 and 2 of this chapter) were designated as comprising “Part 1, Water Pollution.”

Acts 1973, No. 262, § 1, provided that it was the purpose of this act to amend the Arkansas Water and Air Pollution Control Act (§ 8-4-101 et seq.) in such manner as to qualify and provide required legal authority to the State of Arkansas, through the Department of Pollution Control and Ecology for participation in the National Pollutant Discharge Elimination System as provided by the Federal Water Pollution Control Act Amendments of 1972, adopted October 18, 1972 (codified primarily as 33 U.S.C. 1251 et seq.), and to continue in effect the state permit program for the prevention and elimination of pollution of all waters of the state, including navigable waters.

In Acts 1975, No. 743, § 1, the General Assembly found and declared that since the Federal Water Pollution Control Act, as amended (33 U.S.C. § 1251 et seq.), provides for a permit system (National Pollutant Discharge Elimination System) to regulate the discharge of pollutants to the waters of the United States and provides that permits may be issued by states which are authorized to implement the provisions of that act, it was in the interest of the people of the State of Arkansas to amend the Arkansas Water and Air Pollution Control Act, as amended (§§ 8-4-1018-4-106, 8-4-2018-4-229, 8-4-3018-4-314), in a manner so as to provide required legal authority to the State of Arkansas, through the Department of Pollution Control and Ecology, to implement the provisions of the Federal Water Pollution Control Act, as amended, and thereby to continue in effect the state permit program for the prevention and elimination of pollution of all waters of the state, including navigable waters.

Acts 1997, No. 1219, § 1, provided: “Legislative intent. With Act 1230 of 1991, the General Assembly sought to delineate the respective responsibilities of the Arkansas Pollution Control and Ecology Commission and the Arkansas Department of Pollution Control & Ecology. Confusion on these issues in the public’s perception continues, however, primarily because of the similarity in the names of these entities. The purpose of this Act is to achieve the legislative intent of Act 1230 of 1991 and to definitively assign the executive, adjudicatory, and rulemaking roles for the State’s regulatory functions concerning protection of the environment.”

Effective Dates. Acts 1961, No. 120, § 9: Feb. 21, 1961. Emergency clause provided: “Whereas, operating experience under Act 472 of 1949 has revealed ambiguous and inadequate provisions which the foregoing amendments will eliminate and correct, and whereas a continuation of said ambiguous and inadequate provisions would be inimical to the proper control and abatement of water pollution and to the public peace, health, and safety, an emergency is hereby declared to exist and this act shall be in full force and effect from the date of its approval.”

Acts 1965, No. 183, § 8: Mar. 10, 1965. Emergency clause provided: “Whereas, the pollution of the air resources of the State of Arkansas by air contaminants can create serious hazards to the public health and welfare of the people; and, whereas, it is the public policy of the state to maintain such a reasonable degree of purity of the air to the end that the least possible injury shall be done to human, plant or animal life or to property, and to maintain public enjoyment of the state's natural resources, consistent with the economic and industrial well-being of the state; and, whereas, existing laws to prevent, control, and abate air pollution are inadequate to protect the health and general welfare of the people; now, therefore, an emergency is hereby declared to exist and this act shall be in full force and effect from the date of its approval.”

Acts 1973, No. 262, § 13: Mar. 9, 1973. Emergency clause provided: “It being found that the existing state laws relating to water pollution control do not contain adequate legal authority for the state to continue to administer its own permit program for discharges into navigable waters within the state in lieu of that of the Federal Environmental Protection Agency and it being desirable that such authority be provided, an emergency is, therefore, declared hereby to exist and this act, being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1975, No. 743, § 11: Apr. 3, 1975. Emergency clause provided: “It being found that the existing state laws relating to water pollution control do not contain adequate legal authority for the state to continue to administer its own permit program for discharges into navigable waters within the state in lieu of that of the Federal Environmental Protection Agency and it being desirable that such authority be provided, an emergency is, therefore, declared hereby to exist and this act, being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1995, No. 943, § 6: Apr. 5, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly that, in order to avoid the needless disruption of business in this state, the director of the Department of Pollution Control and Ecology should be given authority to grant temporary variances and interim authority to construct or operate regulated activities. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2009, No. 369, § 2: Mar. 10, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that establishing financial assurance requirements for the closure of commercial facilities that engage in land application or storage of fluids generated or utilized during exploration or production phases of oil or gas operations is necessary to protect human health and the environment and that a delay in the effective date of this Act may result in harm to human health or the environment. Therefore, an emergency is declared to exist and this Act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after the date of its passage or approval. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2013, No. 954, § 3. Emergency clause failed to pass. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that clarification of the methodology for developing, implementing, and assessing state water quality standards for minerals and the procedure for identifying and protecting the use of domestic water supplies is needed to avoid unnecessary regulation and the inefficient use and allocation of scarce resources; and that this act is immediately necessary to ensure that existing regulatory requirements provide demonstrable benefits at reasonable costs and available resources are wisely allocated. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2013 (1st Ex. Sess.), No. 4, § 2: Oct. 21, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that in response to the General Assembly's adoption of Act 954 of 2013, the United States Environmental Protection Agency has taken adverse action with respect to the Arkansas Department of Environmental Quality's ability to issue permits under the National Pollutant Discharge Elimination System Program; and that an immediate repeal of Act 954 of 2013 is necessary to alleviate such adverse action by the agency. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

ALR.

Comment Note: What Constitutes “Point Source” of Pollution Subject to Control by Provisions of Clean Water Act (33 U.S.C. § 1362(14)), 29 A.L.R. Fed. 3d Art. 10 (2018).

Am. Jur. 61C Am. Jur. 2d, Pollution Control, § 675 et seq.

Ark. L. Notes.

Looney, Handling Administrative Proceedings Before the Arkansas Pollution Control and Ecology Department and Commission, 1988 Ark. L. Notes 23.

C.J.S. 39A C.J.S., Waters, § 94 et seq.

39A C.J.S., Health & Env., § 162 et seq.

U. Ark. Little Rock L.J.

Legislative Survey, Civil Procedure, 8 U. Ark. Little Rock L.J. 555.

Note, Environmental Law — The Clean Water Act — Congress has Entrusted the EPA, Not the Courts, with the Final Word on Federal Water Pollution Regulatory Law. Arkansas v. Oklahoma, 112 S. Ct. 1046, 503 U.S. 91, 117 L. Ed. 2d 239 (1992), 15 U. Ark. Little Rock L.J. 117.

Legislative Survey, Environmental Law, 16 U. Ark. Little Rock L.J. 111.

Case Notes

Construction.

This subchapter is comparable to § 309(g) of the Clean Water Act, 33 U.S.C. § 1319(g). Ark. Wildlife Fed'n v. ICI Ams. Inc., 842 F. Supp. 1140 (E.D. Ark. 1993), aff'd, 29 F.3d 376 (8th Cir. 1994).

8-4-201. Powers and duties of division and commission generally.

  1. The Division of Environmental Quality or its successor is given and charged with the following powers and duties:
    1. Enforcement of Laws. To administer and enforce all laws and regulations relating to the pollution of any waters of the state;
    2. Investigations and Surveys.
      1. To investigate the extent, character, and effect of the pollution of the waters of this state; and
      2. To conduct investigations, research, surveys, and studies and gather data and information necessary or desirable in the administration or enforcement of pollution laws;
    3. Program. To prepare a comprehensive program for the elimination or reduction of the pollution of the waters of this state, including application for and delegation of federal regulatory programs; and
    4. Plans of Disposal Systems. To require to be submitted and to approve plans and specifications for disposal systems, or any part of them, and to inspect the construction thereof for compliance with the approved plans thereof.
  2. The Arkansas Pollution Control and Ecology Commission is given and charged with the following powers and duties:
      1. Promulgation of rules, including water quality standards and the classification of the waters of the state and moratoriums or suspensions of the processing of types or categories of permits, implementing the substantive statutes charged to the division for administration.
      2. In promulgation of such rules, prior to the submittal to public comment and review of any rule or change to any rule that is more stringent than federal requirements, the commission shall duly consider the economic impact and the environmental benefit of such rule on the people of the State of Arkansas, including those entities that will be subject to the rule.
      3. The commission shall promptly initiate rulemaking proceedings to further implement the analysis required under subdivision (b)(1)(B) of this section.
      4. The extent of the analysis required under subdivision (b)(1)(B) of this section shall be defined in the commission's rulemaking required under subdivision (b)(1)(C) of this section. It will include a written report that shall be available for public review along with the proposed rule in the public comment period.
      5. Upon completion of the public comment period, the commission shall compile a rulemaking record or response to comments demonstrating a reasoned evaluation of the relative impact and benefits of the more stringent regulation;
    1. Promulgation of rules and procedures not otherwise governed by applicable law that the commission deems necessary to secure public participation in environmental decision-making processes;
    2. Promulgation of rules governing administrative procedures for challenging or contesting division actions;
    3. In the case of permitting or grants decisions, provide the right to appeal a permitting or grants decision rendered by the Director of the Division of Environmental Quality or his or her delegatee;
    4. In the case of an administrative enforcement or emergency action, provide the right to contest any such action initiated by the director;
    5. Instruct the director to prepare such reports or perform such studies or investigations as will advance the cause of environmental protection in the state;
    6. Make recommendations to the director regarding overall policy and administration of the division, provided, however, that the director shall always remain within the plenary authority of the Governor and the Secretary of the Department of Energy and Environment; and
    7. Upon a majority vote, initiate review of any director's decision.

History. Acts 1949, No. 472, [Part 1], § 3; A.S.A. 1947, § 82-1904; Acts 1993, No. 163, § 11; 1993, No. 165, § 11; 1997, No. 1219, § 5; 1999, No. 1164, § 19; 2019, No. 315, §§ 457, 458; 2019, No. 910, §§ 2480-2483.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (b)(1)(A), and made similar changes throughout the section.

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the introductory language of (a) and in (b)(4); substituted “division” for “department” in (b)(1)(A), (b)(3), and (b)(7); and inserted “and the Secretary of the Department of Energy and Environment” in (b)(7).

Case Notes

Environmental Protection Agency.

Environmental Protection Agency (EPA) was entitled to summary judgment, because EPA had authority to look at downstream effects, company failed to adequately demonstrate affected waters would be protected, and EPA's refusal to approve state's proposed water quality criteria on basis of incomplete information was not arbitrary or capricious. El Dorado Chem. Co. v. United States EPA, 763 F.3d 950 (8th Cir. 2014).

Cited: Ark. Comm'n of Pollution Control & Ecology v. Husky Indus., Inc., 293 Ark. 249, 737 S.W.2d 157 (1987).

8-4-202. Rules.

  1. The Arkansas Pollution Control and Ecology Commission is given and charged with the power and duty to adopt, modify, or repeal, after notice and public hearings, rules implementing or effectuating the powers and duties of the Division of Environmental Quality and the commission under this chapter.
  2. Without limiting the generality of this authority, these rules may, among other things, prescribe:
    1. Effluent standards specifying the maximum amounts or concentrations and the physical, thermal, chemical, biological, and radioactive nature of the contaminants that may be discharged into the waters of this state or into publicly owned treatment facilities;
    2. Requirements and standards for equipment and procedures for monitoring contaminant discharges at their sources, including publicly owned treatment facilities and industrial discharges into such facilities, the collection of samples, and the collection, reporting, and retention of data resulting from such monitoring; and
    3. Water quality standards, performance standards, and pretreatment standards.
    1. Any person shall have the right to petition the commission for the issuance, amendment, or repeal of any rule. Within sixty (60) days from the date of the submission of a petition, the commission shall either institute rulemaking proceedings or give the petitioner written notice denying the petition, together with a written statement setting out the reasons for denial.
    2. In the event the petition is denied, the decision of the commission will be deemed a final order subject to appeal as provided in subdivision (d)(5) of this section.
    3. The record for appeal in a petition denial shall consist of the petition for rulemaking filed with the commission, the commission's written statement setting out the reasons for denial, and any document referenced therein.
      1. Before the adoption, amendment, or repeal of any rule or before suspending the processing of a type or category of permits or the declaration of a moratorium on a type or category of permits, the commission shall give at least thirty (30) days' notice of its intended action.
      2. The notice shall include:
        1. A statement of the substance of the intended action;
        2. A description of the subjects and issues involved; and
        3. The time, place, and manner in which interested persons may make comments.
      3. The notice shall be mailed or emailed to all persons who have requested advance notice of rulemaking proceedings.
      4. The notice shall also be published at least two (2) times in newspapers having a general statewide circulation and in the appropriate industry, trade, or professional publications the commission may select.
      1. All interested parties shall be afforded a reasonable opportunity to:
        1. Submit written data, information, views, opinions, and arguments; and
        2. Make oral statements concerning the proposed rule, suspension, or moratorium prior to a decision being rendered by the commission.
      2. All written material, photographs, published material, and electronic media received by the commission shall be preserved and, along with a record of all oral comments made at any public hearing, shall become an element of the record of rulemaking.
      3. Any person who considers himself or herself injured in his or her person, business, or property by final agency action under this section shall be entitled to judicial review of the action under this section.
      1. If, in response to comments, the commission amends a proposed rule to the extent that the rule would have an effect not previously expressed in the notice required by subdivision (d)(1) of this section, the commission shall provide another adequate public notice.
      2. Subdivision (d)(3)(A) of this section shall not, however, require a second public notice if the final rule is a logical outgrowth of the rule proposed in the prior notice.
    1. The commission shall compile and maintain a record of rule-making that shall contain:
        1. A copy of all notices described in this subsection and a concise general statement of the basis and purpose of the proposed rule, which shall include a written explanation of the necessity of the rule and a demonstration that any technical rule or technical standard is based on generally accepted scientific knowledge and engineering practices.
        2. For any standard or rule that is identical to a regulation promulgated by the United States Environmental Protection Agency, this portion of the record may be satisfied by reference to the Code of Federal Regulations.
        3. In all other cases, the division must provide its own justification with appropriate references to the scientific and engineering literature or written studies conducted by the division;
      1. Copies of all written material, photographs, published materials, electronic media, and the record of all oral comments received by the commission during the public comment period and hearings; and
      2. A responsive summary that groups public comments into similar categories and explains why the commission accepted or rejected the rationale of each category.
      1. The decisions of the commission with regard to this section are final and may be judicially appealed to the appropriate circuit court as provided in § 8-4-222 within thirty (30) days after filing with the office of the Secretary of State by persons that have standing as set out in subdivision (d)(2) of this section.
      2. The record for review shall consist of a copy of the rule and the record of rulemaking described in subdivision (d)(4) of this section.
      3. Rule changes, suspensions, or moratoria on types of categories of permits adopted by the commission shall be stayed and not take effect during the pendency of the appeal, except as specified in subsection (e) of this section.
    1. If the commission determines that imminent peril to the public health, safety, or welfare requires immediate change in the rules or immediate suspension or moratorium on categories or types of permits, it may, after documenting the facts and reasons, declare an emergency and implement emergency rules, suspensions, or moratoria.
    2. No rule, suspension, or moratorium adopted under an emergency declaration shall be effective for longer than one hundred eighty (180) days.
    3. The imminent loss of federal funding, certification, or authorization for any program administered by the division shall establish a prima facie case of imminent peril to the public health, safety, or welfare.

History. Acts 1949, No. 472, [Part 1], § 3; 1961, No. 120, § 5; 1973, No. 262, § 4; A.S.A. 1947, § 82-1904; Acts 1993, No. 163, § 12; 1993, No. 165, § 12; 1997, No. 314, § 1; 1997, No. 1219, § 5; 2011, No. 195, § 1; 2013, No. 954, § 2; 2013 (1st Ex. Sess.), No. 4, § 1; 2019, No. 315, §§ 459-466; 2019, No. 910, §§ 2484-2486.

A.C.R.C. Notes. Acts 2013, No. 954, § 1, provided: “Legislative findings and intent.

“(a) The General Assembly finds that:

“(1) Under current interpretations by the United States Environmental Protection Agency, the development, implementation, and assessment of water quality standards required under the Clean Water Act, 33 U.S.C. § 1251 et seq., are to be based on sound scientific and statistical principles, among other things, and should consider readily available data that is consistent with and relevant to the water use to be maintained;

“(2) Federal law requires the consideration of certain relevant factors, including natural variability and statistical variability over periods of time that are relevant to the water use to be maintained;

“(3) After consideration of readily available data, reliance on data that is not significant or meaningful, is incomplete, is not indicative of conditions relevant to the water use to be maintained, is speculative, is inconclusive or reasonably supportive of different conclusions, or is otherwise not well-suited to the purpose for which it is being used, has the potential to lead to unnecessary regulation and the inefficient use and allocation of scarce resources;

“(4) The State of Arkansas has a well-developed and long-standing program of sampling the quality of waters subject to various uses;

“(5) There is a rational basis found in sound scientific and statistical principles for using long-term averages in assessing mineral concentrations in a stream;

“(6) The Arkansas Department of Environmental Quality's analysis of data from Arkansas streams demonstrates that four cubic feet per second (4 ft³/s) is the median flow for small streams, which makes this measure an appropriate indicator for stream flow when long-term flow data is not available, thereby avoiding unnecessary regulation and the inefficient use of state resources;

“(7) It is appropriate and consistent with sound scientific and statistical principles to use the greater of long-term average flows or four cubic feet per second (4 ft³/s) for assessing mineral concentrations in streams; and

“(8) Because of the existing technological and economic limits on treatability of dissolved minerals and the likely localized economic impacts of the treatability requirement, it is an inefficient use of scarce resources to apply domestic water supply uses and criteria to streams, stream segments, or other bodies of water that do not have an existing domestic water supply use or that do not have a demonstrated and reasonable potential to be used as a domestic water supply source.

“(b) The intent of this act is to:

“(1) Provide for the consideration of existing and readily available data and information relevant to the development, implementation, and assessment of water quality standards for minerals;

“(2) Provide standards for determining the data that should be considered and relied on by the State of Arkansas and its agencies for the development, implementation, and assessment of water quality standards for minerals; and

“(3) Direct state agencies to support the development, implementation, and assessment of water quality standards according to the provisions of this act.”

Amendments. The 2011 amendment inserted “or emailed” in (d)(1)(C).

The 2013 amendment rewrote (b)(3).

The 2013 (1st Ex. Sess.) amendment rewrote (b)(3).

The 2019 amendment by No. 315 deleted “and regulations” following “rules” in (a) and (b); deleted “or regulation” following “rule” in (c)(1) and (d)(1)(A); deleted “regulation” following “rule” in (d)(2)(A)(ii) and (e)(2); substituted “rule” for “regulation” throughout (d)(3)-(5); and deleted “regulations” following “rules” in (e)(1).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a); and substituted “division” for “department” in (d)(4)(A)(iii) twice and in (e)(3).

8-4-203. Permits generally — Definitions.

  1. The Division of Environmental Quality or its successor is given and charged with the power and duty to issue, continue in effect, revoke, modify, or deny permits, under such conditions as it may prescribe:
    1. To prevent, control, or abate pollution;
    2. For the discharge of sewage, industrial waste, or other wastes into the waters of the state, including the disposal of pollutants into wells; and
    3. For the installation, modification, or operation of disposal systems or any part of them.
      1. The division shall not issue, modify, renew, or transfer a National Pollutant Discharge Elimination System permit or state permit for a nonmunicipal domestic sewage treatment works without the permit applicant first:
        1. Paying the trust fund contribution fee required under subdivision (b)(4) of this section;
        2. Submitting the assessment required by subdivision (b)(1)(D) of this section; and
        3. Certifying that the permit applicant has complied with applicable local ordinances and regulations, including without limitation:
          1. Local zoning ordinances;
          2. Local planning authority regulations; and
          3. Local permitting requirements.
      2. As used in this section, “nonmunicipal domestic sewage treatment works” means a device or system operated by an entity other than a city, town, or county that treats, in whole or in part, waste or wastewater from humans or household operations and must continuously operate to protect human health and the environment despite a permittee's failure to maintain or operate the device or system.
      3. The following are specifically exempted from the requirements of this subsection:
        1. State or federal facilities;
        2. Schools;
        3. Universities and colleges;
        4. Entities that continuously operate due to a connection with a city, town, or county; and
        5. A commercial or industrial entity that treats domestic sewage from its operations and does not accept domestic sewage from other entities or residences.
      4. Each application for the initial permit and any subsequent permit renewal, modification, or transfer for a nonmunicipal domestic sewage treatment works submitted under this section shall be accompanied by an assessment developed by a professional engineer licensed by the state that includes:
        1. A cost estimate for a third party to operate and maintain the nonmunicipal domestic sewage treatment works for five (5) years;
        2. A list of all necessary capital expenditures, system upgrades, or significant repairs and a milestone schedule for completion within five (5) years; and
        3. A financial plan that demonstrates to the division's satisfaction the permittee's financial ability to operate and maintain the nonmunicipal domestic sewage treatment works each year for five (5) years.
        1. Except as provided under subdivision (b)(1)(E)(ii) of this section, the division shall not issue, renew, or transfer permit coverage for nonmunicipal domestic sewage treatment works to property owners' associations or homeowners' associations after January 1, 2018.
        2. A property owners' association or homeowners' association with permit coverage before December 31, 2017, may retain permit coverage if the property owners' association or homeowners' association complies with this section.
    1. Until January 1, 2016, the Arkansas Department of Environmental Quality or the division may reduce or waive the amount of the required financial assurance if the permit applicant can demonstrate to the Arkansas Department of Environmental Quality's or the division's satisfaction that:
      1. For a renewal permit, during the five (5) years preceding the application for a renewal permit, the nonmunicipal domestic sewage treatment works has:
        1. Maintained the nonmunicipal domestic sewage treatment works in continuous operation;
        2. Maintained the nonmunicipal domestic sewage treatment works in substantial compliance with the existing discharge permit issued by the Arkansas Department of Environmental Quality or the division, which shall be demonstrated by submitting the following:
          1. All discharge monitoring reports;
          2. Evidence that the nonmunicipal domestic sewage treatment works has not exceeded the same permit effluent criteria in any two (2) consecutive monitoring periods during the previous three (3) years;
          3. Evidence that no more than ten percent (10%) of the nonmunicipal domestic sewage treatment works' submitted discharge monitoring reports show effluent violations; and
          4. Evidence that there have not been any administrative or judicial orders entered against the owner or operator for violations of state or federal environmental laws, rules, or regulations or permits issued by the Arkansas Department of Environmental Quality or the division;
        3. Maintained the services of a certified wastewater treatment operator, where applicable;
          1. Remained financially solvent, which shall be demonstrated by either:
            1. The nonmunicipal domestic sewage treatment works' federal tax returns for the five (5) years preceding the application for a renewal permit and a sworn affidavit from a corporate official or other responsible official representing the nonmunicipal domestic sewage treatment works that lists all assets and liabilities for the nonmunicipal domestic sewage treatment works; or
            2. An independent certified public accountant's report on the owner's or operator's independently reviewed financial statements.
          2. The review of financial statements under subdivision (b)(2)(A)(iv)(a)(2) of this section shall be conducted in accordance with the American Institute of Certified Public Accountants' Professional Standards, as they existed on January 1, 2013; and
        4. Operated the nonmunicipal domestic sewage treatment works to prevent the discharge of waterborne pollutants in unacceptable concentrations to the surface waters or groundwater of the state as defined in the permit or as defined in the state's water quality standards; or
      2. For a new permit:
        1. The reduction or waiver is necessary to accommodate important economic or social development in the area of the proposed nonmunicipal domestic sewage treatment works; and
        2. The applicant has shown a history of financial responsibility and compliance with regulatory requirements.
    2. The division may withdraw a reduction or waiver granted under this subsection at any time if the permittee has a permit violation in three (3) or more consecutive discharge monitoring periods.
      1. A permittee shall pay the trust fund contribution fee determined by the division under this subdivision (b)(4) to the division.
        1. The division shall determine the required initial and annual trust fund contribution fees for each nonmunicipal domestic sewage treatment works based on each nonmunicipal domestic sewage treatment works' design treatment capacity according to the National Pollutant Discharge Elimination System permit or the state permit and existing and projected number of residential end users.
          1. The division shall require an initial trust fund contribution fee for each construction permit for a new nonmunicipal domestic sewage treatment works or any modification to an existing nonmunicipal domestic sewage treatment works resulting in an increase in design treatment capacity according to the National Pollutant Discharge Elimination System permit or the state permit.
          2. The initial trust fund contribution fee required by the division for a new nonmunicipal domestic sewage treatment works is ten percent (10%) of the estimated cost of construction of the new nonmunicipal domestic sewage treatment works as certified by the engineer of record.
          3. The initial trust fund contribution fee required by the division for modifications to existing nonmunicipal domestic sewage treatment works is ten percent (10%) of the estimated cost of construction for the modification of the nonmunicipal domestic sewage treatment works as certified by the engineer of record.
          4. The division shall reduce the initial trust fund contribution fee if:
            1. The nonmunicipal domestic sewage treatment works is subject to an enforcement action; and
            2. The corrective actions approved by the division would require the nonmunicipal domestic sewage treatment works to make an initial trust fund contribution.
          5. The division shall not require an initial trust fund contribution fee if the design treatment capacity according to the National Pollutant Discharge Elimination System permit or the state permit is not increased.
        2. The annual trust fund contribution fee required by the division shall not exceed one thousand dollars ($1,000) per year for no-discharge permits or five thousand dollars ($5,000) per year for discharge permits.
          1. Except as otherwise provided in this subsection, a nonmunicipal domestic sewage treatment works may apply for reimbursement for a maximum of fifty percent (50%) of the costs for capital expenditures necessary to maintain permit compliance made to the nonmunicipal domestic sewage treatment facility in the previous five (5) years if:
            1. Funding is available and appropriated; and
            2. The division has issued that nonmunicipal domestic sewage treatment facility's third permit renewal following its initial trust fund contribution.
          2. Applications for reimbursement under this subdivision (b)(4)(B) shall include a statement certified by a professional engineer licensed by the State of Arkansas identifying the necessary capital costs expended.
        3. Reimbursements from the Nonmunicipal Domestic Sewage Treatment Works Trust Fund are subject to the following restrictions:
          1. Over the lifetime of a nonmunicipal domestic sewage treatment facility, the reimbursement to a nonmunicipal domestic sewage treatment works shall not exceed seventy-five percent (75%) of that nonmunicipal domestic sewage treatment facility's initial trust fund contribution fee;
          2. If the Director of the Division of Environmental Quality determines that a nonmunicipal domestic sewage treatment works is in a state of chronic noncompliance, that nonmunicipal domestic sewage treatment works shall not receive reimbursement from the fund; and
          3. The division shall reimburse a nonmunicipal domestic sewage treatment works based on a pro rata share of each submitted request compared to the total remaining funding available if there are insufficient moneys available in a fiscal year to make reimbursements for all submitted requests under this subsection after:
            1. Deducting the moneys required to make payments to third-party contractors hired by the division from the fund;
            2. Calculating the total remaining funding available; and
            3. Allocating the moneys available for reimbursement to each applicant for reimbursement.
        4. The Arkansas Pollution Control and Ecology Commission may promulgate rules to implement this subsection.
      2. The trust fund contribution fee required under this subdivision (b)(4):
        1. May be collected in conjunction with any other permit fees;
        2. Shall be paid before a permit is issued or renewed; and
        3. Shall be deposited into the fund.
      3. If the total amount in the fund equals or exceeds two million one hundred thousand dollars ($2,100,000), additional trust fund contribution fees shall not be collected by the division until the total amount of the fund equals or is less than one million five hundred thousand dollars ($1,500,000), at which time the collection of required trust fund contribution fees shall resume.
      1. A permittee is responsible for ensuring that the required trust fund contribution fee is received by the division by the due date determined by the division.
      2. If the division does not timely receive the required trust fund contribution fees for a nonmunicipal domestic sewage treatment works, the division may initiate procedures to suspend or revoke the permit under which the nonmunicipal domestic sewage treatment works is operated.
      3. A permit applicant's or permit transfer applicant's failure to pay the required trust fund contribution fee assessed by the division under this section is:
        1. Grounds for denying the permit or the permit transfer; and
        2. A violation of this chapter and subjects the applicant to the penalties described in § 8-4-103.
    3. Sanctions for violating this subsection may include without limitation civil penalties and suspension or revocation of a permit.
    4. The division may seek cost recovery from an owner or operator and reimbursement to the fund of any moneys expended under this section, including without limitation the institution of a civil action against the owner or operator.
    5. The division shall not directly operate or be responsible for the operation of a nonmunicipal domestic sewage treatment works.
      1. The director or the director's designee may send a signed statement to each water service provider that serves all or a portion of the service area of a nonmunicipal domestic sewage treatment works certifying that the director finds that the nonmunicipal domestic sewage treatment works:
        1. Is the subject of an enforcement action by the division;
        2. Has not complied with the requirements of this section, including payment of the nonmunicipal domestic sewage treatment works trust fund contribution; or
        3. Otherwise failed to comply with its permit.
      2. The division shall include a legal description of the service area for the nonmunicipal domestic sewage treatment works with the signed statement under subdivision (b)(9)(A) of this section.
      3. Upon receipt of a signed statement that includes a legal description of the service area for the nonmunicipal domestic sewage treatment works, the water service provider shall not establish new connections or initiate service to existing connections for water service in the service area of the nonmunicipal domestic sewage treatment works as defined by the legal description.
      4. If the director or the director's designated representative finds that the nonmunicipal domestic sewage treatment works is no longer subject to an enforcement action or has remedied the noncompliance that formed the basis for the signed statement under subdivision (b)(9)(A) of this section, the director or the director's designated representative shall send a signed statement of the finding to each water service provider that received the prior statement.
      5. Upon receipt of the signed statement required under subdivision (b)(9)(D) of this section, the water service provider may resume installation of new connections or resume initiation of service to existing connections for water service.
        1. All facilities that engage in land application or storage of fluids generated or utilized during exploration or production phases of oil or gas operations shall be closed in a manner that ensures protection of human health and the environment.
        2. As used in this subsection, “land application or storage of fluids generated or utilized during exploration or production phases of oil or gas operations” means land farming through the controlled and repeated application of drilling fluids to a soil surface or the practice of receiving and storing said fluids from offsite for waste management.
        3. Surface facilities associated with Class II injection wells are specifically excluded from the requirements of this subsection.
        4. Land applications at the drilling or exploration site that are authorized under any general permit issued by the division are excluded from the requirements of this subsection.
      1. By October 1, 2009, each existing permitted facility regulated under this subsection shall submit to the division the following:
        1. A plan to close the permitted facility and make any site restoration deemed necessary by the division;
        2. A detailed cost estimate to close and restore the permitted facility that meets the requirements of this subsection and is approved by the division; and
        3. A financial mechanism that demonstrates to the division's satisfaction the permittee's financial ability to ensure adequate closure and any necessary restoration of the permitted facility in accordance with the requirements of this subsection.
      2. The division shall not issue, modify, or renew a permit for facilities regulated under this subsection without the permit applicant first demonstrating to the division's satisfaction the applicant's financial ability to ensure adequate closure and any necessary restoration of the permitted facility in accordance with the requirements of this subsection.
        1. The amount of any financial assurance required under this subsection shall be equal to or greater than the detailed cost estimate for a third party to close the permitted facility in accordance with closure plans approved by the division.
        2. The detailed cost estimate shall be prepared by an independent professional consultant.
        3. On or before August 15 of each year, a permittee shall submit to the division for approval a detailed cost estimate to close and restore the permitted facility in accordance with closure plans that have been approved by the division.
        1. For new permits, the applicant shall submit to the division for approval a detailed cost estimate to close and restore the facility based on the proposed operation and capacity of the facility from the date the permit is issued through the following October 1.
        2. For renewal or modification applications, the permittee shall submit to the division for approval a detailed cost estimate to close and restore the permitted facility based on closure plans that have been approved by the division.
        1. For each permit, the financial assurance mechanism shall be renewed on October 1 of each year.
        2. For each permit, documentation that the required financial assurance mechanism has been renewed beginning October 1 of that year shall be received by the division by September 15 of each year or the division shall initiate procedures to:
          1. Take possession of the funds guaranteed by the financial assurance mechanism; and
            1. Suspend or revoke the permit under which the facility is operated.
            2. A permit shall remain suspended until a financial assurance mechanism is provided to the division in accordance with this subsection.
              1. Obtaining insurance that specifically covers closure and restoration costs;
              2. Obtaining a letter of credit;
              3. Obtaining a bond or other surety instrument;
              4. Creating a trust fund or an escrow account;
              5. Combining any of the instruments in subdivisions (c)(2)(A)-(D) of this section; or
              6. Any other financial instrument approved by the director.
        3. The permittee is responsible for ensuring that documentation of annual renewal is received by the division by its due date.
    1. The permittee or applicant shall demonstrate financial ability to adequately close or restore the land application or storage facility by:
    2. A financial instrument required by this subsection shall:
      1. Be posted to the benefit of the division;
      2. Provide that the financial instrument cannot be canceled without sixty (60) days’ prior written notice addressed to the division's legal division chief as evidenced by a signed, certified mail with a return receipt request; and
      3. Be reviewed by the division upon receipt of the cancellation notice to determine whether to initiate procedures to revoke or suspend the facility's permit and whether to initiate procedures to take possession of the funds guaranteed by the financial assurance mechanism.
    3. Before the division may release a financial assurance mechanism, the division shall receive a certification by a professional engineer that the permitted facility has been closed and restored in accordance with closure plans that have been approved by the division.
    4. The division is not responsible for the operation, closure, or restoration of a facility regulated under this subsection.
    1. When an application for the issuance of a new permit or a major modification of an existing permit is filed with the division, the division shall cause notice of the application to be published in a newspaper of general circulation in the county in which the proposed facility is to be located.
    2. The notice required by subdivision (d)(1) of this section shall advise that any interested person may request a public hearing on the permit application by giving the division a written request within ten (10) days of the publication of the notice.
      1. If the division determines that a hearing is necessary or desires such a hearing, the division shall schedule a public hearing.
        1. If the division schedules a public hearing, the division shall notify the applicant and all persons who have submitted comments of the date, time, and place of the public hearing.
        2. The notice shall be provided using one (1) of the following methods based on the contact information available for the applicant or the person and the director’s discretion:
          1. First class mail; or
          2. Email.
      1. Whenever the division proposes to grant or deny any permit application, it shall cause notice of its proposed action to be published in either:
        1. A newspaper of general circulation in the county in which the facility that is the subject of the application is located; or
        2. In the case of a statewide permit, in a newspaper of general circulation in the state.
      2. The notice shall afford any interested party thirty (30) calendar days in which to submit comments on the proposed permit action.
        1. At the conclusion of the public comment period, the division shall provide a final written permitting decision regarding the permit application.
        2. The final written permitting decision shall be published on the division's website.
        3. The division shall provide the applicant the final permitting decision using one (1) of the following methods based on the contact information available and the director's discretion:
          1. First class mail; or
          2. Email.
        4. The division shall provide notice of the final permitting decision to all persons who have submitted comments using one (1) of the following methods based on the contact information available and the director's discretion:
          1. First class mail; or
          2. Email.
        1. The division's final decision shall include a response to each issue raised in any public comments received during the public comment period. The response shall manifest reasoned consideration of the issues raised by the public comments and shall be supported by appropriate legal, scientific, or practical reasons for accepting or rejecting the substance of the comment in the division's permitting decision.
        2. For the purposes of this section, response to comments by the division should serve the roles of both developing the record for possible judicial review of an individual permitting action and as a record for the public's review of the division's technical and legal interpretations on long-range regulatory issues.
        3. Nothing in this section, however, shall be construed as limiting the division's authority to raise all relevant issues of regulatory concern upon adjudicatory review of the commission of a particular permitting action.
        1. In the case of any discharge limit, emission limit, environmental standard, analytical method, or monitoring requirements, the record of the proposed action and the response shall include a written explanation of the rationale for the proposal, demonstrating that any technical requirements or standards are based upon generally accepted scientific knowledge and engineering practices.
        2. For any standard or requirement that is identical to an applicable federal regulation or state rule, this demonstration may be satisfied by reference to the federal regulation or state rule. In all other cases, the division must provide its own justification with appropriate reference to the scientific and engineering literature or written studies conducted by the division.
    1. All costs of publication of notices of applications and notices of proposals to grant permits under this section shall be the responsibility of the applicant.
    2. All costs of publication of notices of proposals to deny a permit under this section shall be the responsibility of the division.
    3. Any moneys received under this subsection shall be classified as refunds to expenditures.
  2. Only those persons that submit comments on the record during the public comment period and the applicant shall have standing to appeal the decision of the division to the commission.
    1. Permits for the discharge of pollutants into the waters of the state or for the prevention of pollution of the waters of the state shall remain freely transferable if the applicant for the transfer:
      1. Notifies the director at least thirty (30) days in advance of the proposed transfer date;
      2. Submits a disclosure statement as required under § 8-1-106;
      3. Provides any replacement financial assurance required under this section; and
      4. Ensures that all past and currently due annual permit fees and the trust fund contribution fees for the nonmunicipal domestic sewage treatment works have been paid.
    2. Only the reasons stated in § 8-1-103(4), § 8-1-106(b)(1), § 8-1-106(c), and this section constitute grounds for denial of a transfer.
    3. The permit is automatically transferred to the new permittee unless the director denies the request within thirty (30) days of the receipt of the disclosure statement.
  3. In the event of voluminous comments, including without limitation a petition, the division may require the designation of a representative to accept any notices required by this section.
  4. The notice provisions of subsections (d) and (e) of this section do not apply to permit transfers or minor modifications of existing permits.
  5. This section in no way restricts local and county government entities from enacting more stringent ordinances regulating nonmunicipal domestic treatment sewage systems in Arkansas.
  6. The commission may promulgate rules to establish a permit-by-rule. A permit-by-rule is subject to the public notice requirements and procedural provisions under § 8-4-202 et seq. but is not subject to the public notice requirements and procedural provisions under this section and §§ 8-4-204 and 8-4-205.
        1. The division may issue general permits under subsection (a) of this section.
        2. A general permit is a statewide permit for a category of facilities or sources that:
          1. Involve the same or substantially similar types of operations or activities;
          2. Discharge or release the same type of wastes or engage in the same type of disposal practices;
          3. Require the same limitations, operating conditions, or standards;
          4. Require the same or similar monitoring requirements; and
          5. In the opinion of the director, may be regulated under a general permit.
        1. Facilities or sources eligible to construct or operate under a general permit may obtain coverage by submitting a notice of intent to the division.
        2. The director may require a person who has been granted coverage under a general permit to apply for and obtain an individual permit.
      1. A general permit is subject to the public notice requirements for statewide permits and the procedures under subsection (e) of this section.
      2. The division shall pay the costs of publication of notice of a draft permitting decision to issue a general permit.
      3. General permit coverage is not transferable unless the general permit provides for transfer.
        1. Before the submittal to public comment of a general permit that has not been previously issued, the division shall consider the economic impact and environmental benefit of the general permit and its terms and conditions upon the people of the State of Arkansas, including those entities that may apply for coverage under the general permit.
        2. This requirement does not apply to general permits or terms or conditions that adopt the language of state laws or rules or federal statutes or regulations without substantive change.
      1. If the terms and conditions of a previously issued general permit are revised upon renewal, the economic impact and environmental benefit of only the proposed changes shall be considered.
      2. A general permit for which costs are specifically prohibited from being considered by state law or rule or federal law or regulation is exempt from the requirements of this subsection.
      3. The division may rely upon readily available information for its consideration of the economic impact and environmental benefit of the general permit and its terms and conditions.
      1. Only those persons that submit comments on the record during the public comment period shall have standing to appeal the decision of the division to the commission.
      2. The final permitting decision of the division on the general permit is subject to a hearing before the commission under §§ 8-4-205, 8-4-212, 8-4-213, 8-4-214, and the administrative procedures promulgated by the commission.
        1. When a general permit includes an expiration date later than July 1, 2012, the Arkansas Department of Environmental Quality or the division shall publish the notice of intent to renew or not renew the general permit at least three hundred sixty-five (365) days before the expiration of the general permit.
        2. When a general permit includes an expiration date earlier than July 1, 2012, the Arkansas Department of Environmental Quality or the division shall publish the notice of intent to renew or not renew the general permit as soon as reasonably possible.
      1. The Arkansas Department of Environmental Quality or the division shall publish its final permitting decision to renew or not renew the general permit at least one hundred eighty (180) days before the expiration date of the general permit.
      2. If the general permit expires before the final decision to renew or not renew the general permit, the terms and conditions of the general permit shall remain in effect, and all persons who obtained coverage under the general permit before its expiration shall retain coverage under the general permit until there has been a final permit decision on the general permit.
      3. In the event the Arkansas Department of Environmental Quality or the division makes a decision to not renew the general permit, existing coverage under the general permit shall continue under the terms of the expired permit until a final decision is reached for an individual permit.
      1. If a general permit is appealed and the general permit expires before the final decision by the director or by the commission to renew or not renew the general permit, the terms and conditions of the general permit shall remain in effect.
      2. All persons who obtained coverage under the general permit before its expiration shall retain coverage under the general permit until there has been a final administrative decision on the general permit.
      3. The director shall not approve new coverage under an expired general permit for any facility for which a notice of intent was not filed before expiration of the general permit.
    1. When an application for the issuance of a new permit for a liquid animal waste system or a modification of an existing permit for a liquid animal waste system is filed, the division shall give notice of its proposed action in accordance with subdivision (e)(1)(A) of this section within one hundred twenty (120) days of receipt of the application.
      1. At the conclusion of the public comment period, the division shall announce in writing within sixty (60) days its final decision regarding the permit application in accordance with subdivision (e)(2)(A) of this section.
      2. For a modification that the division considers to be minor in nature, the division shall make its final decision regarding the permit application within thirty (30) days after receipt of the application.
    2. An applicant may waive in writing to the division the timeliness requirement under subdivisions (n)(1) and (2) of this section.
    1. If an application for modification of an existing state permit for a liquid animal waste management system is filed with the division, only those permit conditions subject to the modification are open for review.
      1. Except as provided in subdivision (o)(2)(B) of this section, an existing state permit for a liquid animal waste management system that is in good standing is not subject to review or third-party appeal for siting or location issues that were not raised during the applicable review or appeal period at the time of permit issuance.
      2. Subdivision (o)(2)(A) of this section does not limit the authority of the division to address or enforce a violation of permit conditions or applicable law.

History. Acts 1949, No. 472, [Part 1], § 3; 1961, No. 120, § 4; 1975, No. 743, § 4; 1979, No. 680, § 1; 1981, No. 826, § 1; A.S.A. 1947, § 82-1904; Acts 1993, No. 163, § 13; 1993, No. 165, § 13; 1995, No. 384, §§ 2, 3, 6-9; 1995, No. 895, § 2; 1997, No. 1219, § 5; 1997, No. 1312, § 1; 1999, No. 229, § 1; 1999, No. 1164, § 20; 2007, No. 832, § 1; 2007, No. 1005, § 2; 2009, No. 369, § 1; 2009, No. 409, § 1; 2011, No. 731, § 1; 2013, No. 402, §§ 1, 2; 2013, No. 1127, § 2; 2015, No. 94, § 1; 2015, No. 575, §§ 2, 3; 2017, No. 501, § 1; 2017, No. 987, §§ 1-3; 2017, No. 1037, § 1; 2017, No. 1057, §§ 1, 2; 2018 (2nd Ex. Sess.), No. 6, § 1; 2018 (2nd Ex. Sess.), No. 10, § 1; 2019, No. 315, §§ 467-470; 2019, No. 910, § 2487.

A.C.R.C. Notes. Acts 2013, No. 1127, § 7, provided: “The enactment and adoption of this act shall not repeal, expressly or impliedly, the acts passed at the regular session of the Eighty-Ninth General Assembly. All such acts shall have the full force and effect and, so far as those acts intentionally vary from or conflict with any provision contained in this act, those acts shall have the effect of subsequent acts and as amending or repealing the appropriate parts of the Arkansas Code of 1987.”

Pursuant to Acts 2013, No. 1127, § 7, the amendment to this section by Acts 2013, No. 1127, § 2, is superseded by the amendments to this section by Acts 2013, No. 402, § 1.

Acts 2015, No. 575, § 1, provided:

“Legislative findings. The General Assembly finds that:

“(1) The existing financial assurance requirements for nonmunicipal domestic sewage treatment works that are in place to ensure that funding is available to properly operate these sewage treatment systems for the permitted term can create hardships for those facilities that cannot secure readily available and affordable financial assurance mechanisms;

“(2) In lieu of each permit applicant and each owner or operator of a nonmunicipal domestic sewage treatment works providing individual financial assurance to the Arkansas Department of Environmental Quality, the need for financial assurance for nonmunicipal domestic sewage treatment facilities may be met through the creation of a trust fund to be funded jointly by the nonmunicipal domestic wastewater treatment facilities permitted to operate in Arkansas; and

“(3) The total funding for the trust fund is anticipated to be approximately ten percent (10%) of the total amount currently required to be assured by individual permittees.”

Acts 2015, No. 575, § 2, omitted the word “works” at the end of former subdivision (b)(12) of this section.

Acts 2020, No. 89, § 50, provided: “TRUST FUND CONTRIBUTION FEES.

“(a) For purposes of collecting trust fund contribution fees under § 8-4-203(b), the Arkansas Department of Environmental Quality shall treat a public facilities boards and public water authorities as municipal systems.

“(b) This section expires on June 30, 2021”.

Publisher's Notes. Acts 2015, No. 575, § 2 specifically amended subsection (b) of this section as amended by Acts 2015, No. 94.

Amendments. The 2007 amendment by No. 832 inserted present (b), redesignated the remaining subdivisions accordingly, and added present (j); substituted “(c)(1)” for “(b)(1)” in present (c)(2); substituted “(e)” for “(d)” in present (e)(3); and substituted “(c) and (d)” for “(b) and (c)” in present (i).

The 2007 amendment by No. 1005 added (k).

The 2009 amendment by No. 369 inserted (c) and redesignated the remaining subsections accordingly; substituted “(d)(1)” for “(c)(1)” in (d)(2); substituted “subsection (f)” for “subsection (e)” in (f)(3); substituted “(d) and (e)” for “(c) and (d)” in (j); and made minor stylistic changes.

The 2009 amendment by No. 409 rewrote (b).

The 2011 amendment added (m).

The 2013 amendment by No. 402 substituted “renew, or transfer” for “or renew” in (b)(1)(A)(i) and (b)(1)(B)(i); in (b)(1)(A)(ii), substituted “As used in” for “For purposes of,” deleted “borough” following “city, town,” and substituted “device or system” for “treatment works”; added (b)(1)(A)(v); inserted present (b)(3) through (b)(9) and redesignated and rewrote the remaining subdivisions accordingly; and rewrote (h).

The 2013 amendment by No. 1127 inserted “nonmunicipal domestic sewage” in (b)(1)(A)(ii).

The 2015 amendment by No. 94 rewrote (b)(10)(A)(iv) (a) ; substituted “review” for “examination” in (b)(10)(A)(iv) (b) ; transferred designation (b)(10)(B)(i) from the beginning of (b)(10)(B) to its present location; and substituted “works’” for “works’s” in (b)(10)(A)(ii) (c) [subdivision (b)(10) is now (b)(2)].

The 2015 amendment by No. 575 redesignated former (b)(1)(A)(i), (ii), and (iii) as (b)(1)(A), (B), and (C) and deleted former (b)(1)(A)(iv) and (b)(1)(A)(v); substituted “paying the trust fund contribution fee required under subdivision (b)(2) of this section” for “demonstrating to the department its financial ability to cover the estimated costs of operating and maintaining the nonmunicipal domestic sewage treatment works for a minimum period of five (5) years” in present (b)(1)(A); substituted “The following” for “State or federal facilities, schools, universities, and colleges” in present (b)(1)(C) and added present (b)(1)(C)(i), (ii), (iii), and (iv); deleted former (b)(2) through (b)(9) and redesignated former (b)(10) and (b)(11) as (b)(2) and (b)(3); added “Until January 1, 2016” at the beginning of present (b)(2); substituted “if the permittee … monitoring periods” for “in order to protect human health or the environment” in present (b)(3); added (b)(4) through (b)(7); redesignated former (b)(12) as (b)(8); added (h)(1)(D); deleted “subdivision (b)(9) of” preceding “this section” in (h)(2); and updated an internal reference.

The 2017 amendment by No. 501 added (n).

The 2017 amendment by No. 987 redesignated former (b)(1)(A) as present (b)(1)(A) and (b)(1)(A)(i); substituted “subdivision (b)(4)” for “subdivision (b)(2)” in present (b)(1)(A)(i); added (b)(1)(A)(ii); substituted “town, or county” for “town, county, or sewer improvement district” in (b)(1)(B) and (b)(1)(C)(iv); substituted “this subsection” for “this section” in the introductory language of (b)(1)(C); added (b)(1)(C)(v), (b)(1)(D), and (b)(1)(E); substituted “design treatment capacity according to the National Pollutant Discharge Elimination System permit or the state permit” for “actual flow” in (b)(4)(B)(i); inserted present (b)(4)(B)(ii) and redesignated former (b)(4)(B)(ii) accordingly; in present (b)(4)(B)(iii), substituted “The annual” for “However, the”, “one thousand dollars ($1,000)” for “two hundred dollars ($200)”, and “five thousand dollars ($5,000)” for “one thousand dollars ($1,000)”; added (b)(4)(B)(iv)-(vi); added (b)(9); and made stylistic changes.

The 2017 amendment by No. 1037 redesignated a portion of former (b)(1)(A) as present (b)(1)(A)(i); substituted “subdivision (b)(4)” for “subdivision (b)(2)” in present (b)(1)(A)(i); added (b)(1)(A)(iii); and made stylistic changes.

The 2017 amendment by No. 1057 redesignated former (d)(3) as (d)(3)(A) and (d)(3)(B)(i); in present (d)(3)(B)(i), inserted “If the department schedules a public hearing, the department” and deleted “by first class mail” following “notify”; added (d)(3)(B)(ii); redesignated former (e)(1)(C) as present (e)(1)(C)(i); substituted “provide a final written permitting decision” for “announce in writing its final decision” in (e)(1)(C)(i); added (e)(1)(C)(ii)-(e)(1)(C)(iv); and made stylistic changes.

The 2018 (2nd Ex. Sess.) amendment by identical acts Nos. 6 and 10 added (o).

The 2019 amendment by No. 315 substituted “rules” for “regulations” in (b)(4)(B)(vi); inserted “federal” and “or state rule” twice each in the first sentence of (e)(2)(B)(ii); inserted “laws or rules” in (m)(3)(A)(ii); and inserted “law or rule” in (m)(3)(C).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a); substituted “division” for “department” throughout the section; substituted “Arkansas Department of Environmental Quality or the Division of Environmental Quality” for “department” in the introductory language of (b)(2); and made similar changes throughout the section.

Cross References. Permit fees for air, water, and solid waste pollution control activities, § 8-1-101 et seq.

Case Notes

In General.

The Arkansas Pollution Control and Ecology Commission's permit decisions are decisions the Arkansas Pollution Control and Ecology Commission is charged with administering pursuant to the police powers of the state and this section. Enviroclean, Inc. v. Ark. Pollution Control & Ecology Comm'n, 314 Ark. 98, 858 S.W.2d 116 (1993).

As the agency charged with administering the Water and Air Pollution Control Act, the Arkansas Pollution Control and Ecology Commission is given authority to issue, modify, and revoke permits regulating the emission of air pollutants under this section and § 8-4-304. Enviroclean, Inc. v. Ark. Pollution Control & Ecology Comm'n, 314 Ark. 98, 858 S.W.2d 116 (1993).

Environmental Protection Agency.

Environmental Protection Agency (EPA) was entitled to summary judgment, because EPA had authority to look at downstream effects, company failed to adequately demonstrate affected waters would be protected, and EPA's refusal to approve state's proposed water quality criteria on basis of incomplete information was not arbitrary or capricious. El Dorado Chem. Co. v. United States EPA, 763 F.3d 950 (8th Cir. 2014).

Permit Conditions.

Where a corporation with an incinerator permit transferred all of its stock to a second corporation, there was substantial evidence to support the Arkansas Pollution Control and Ecology Commission's conclusion that the first corporation thereby transferred its permitted facility to the second corporation, a transfer prohibited by the permit. Enviroclean, Inc. v. Ark. Pollution Control & Ecology Comm'n, 314 Ark. 98, 858 S.W.2d 116 (1993).

Cited: Ark. Comm'n of Pollution Control & Ecology v. Husky Indus., Inc., 293 Ark. 249, 737 S.W.2d 157 (1987).

8-4-204. Permits — Revocation.

The Division of Environmental Quality or its successor is given and charged with the power and duty to revoke, modify, or suspend, in whole or in part, for cause any permit issued under this chapter, including without limitation:

  1. Violation of any condition of the permit;
  2. Obtaining a permit by misrepresentation or failure to disclose fully all relevant facts; or
  3. A change in any applicable regulation or a change in any preexisting condition affecting the nature of the discharge that requires either a temporary or permanent reduction or elimination of the permitted discharge.

History. Acts 1949, No. 472, [Part 1], § 3; 1975, No. 743, § 4; A.S.A. 1947, § 82-1904; Acts 1993, No. 163, § 14; 1993, No. 165, § 14; 1997, No. 1219, § 5; 1999, No. 1164, § 21; 2019, No. 910, § 2488.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality”.

Case Notes

Violations.

Where a corporation with an incinerator permit transferred all of its stock to a second corporation, there was substantial evidence to support the Arkansas Pollution Control and Ecology Commission's conclusion that the first corporation thereby transferred its permitted facility to the second corporation, a transfer prohibited by the permit. Enviroclean, Inc. v. Ark. Pollution Control & Ecology Comm'n, 314 Ark. 98, 858 S.W.2d 116 (1993).

Cited: Ark. Comm'n of Pollution Control & Ecology v. Husky Indus., Inc., 293 Ark. 249, 737 S.W.2d 157 (1987); Nucor Steel-Arkansas v. Ark. Pollution Control & Ecology Comm'n, 2015 Ark. App. 703, 478 S.W.3d 232 (2015).

8-4-205. Permits — Hearings upon denial, revocation, or modification and other permit actions — Definition.

  1. Any person that is denied a permit by the Director of the Division of Environmental Quality or that has a permit revoked or modified or a request for permit transfer or modification denied shall be afforded an opportunity for a hearing by the Arkansas Pollution Control and Ecology Commission in connection therewith, upon written application made within thirty (30) days after service of notice of the denial, revocation, or modification.
    1. Only those interested persons, other than the applicant, that have submitted comments on the record regarding a proposed permit action during the public comment period shall have standing to request a hearing by the commission in connection therewith, upon written application made within thirty (30) days after the date of the Division of Environmental Quality's final decision regarding the permit action.
    2. No interested party requesting a hearing under this subsection may raise any issue in the hearing that was not raised in the public comments unless the party raising the issue shows good cause why such issue could not, with reasonable diligence, have been discovered and presented during the public comment period. The limitation in this subdivision (b)(2) shall not restrict the issues that may be addressed by the applicant in any appeal.
    3. A request for a hearing shall identify the permit action in question and its date and must include a complete and detailed statement identifying the legal and factual objections to the permit action.
      1. Within thirty (30) days of the date the request for a hearing is filed with the Secretary of the Arkansas Pollution and Ecology Control Commission, a preliminary hearing will be conducted in the name of the commission by the commission's authorized administrative law judge.
      2. Within a reasonable time after the preliminary hearing, the administrative law judge shall enter a written decision determining whether the parties qualify as proper parties under subdivision (b)(1) of this section and whether the request conforms with the requirements under subdivisions (b)(2) and (3) of this section.
      3. A party aggrieved by the decision entered under this subsection may, within ten (10) business days, request review by the commission.
      1. A contested decision and any final recommended decision of the administrative law judge shall be transmitted to the commission.
      2. The commission shall consider the recommended decision of the administrative law judge and shall either affirm the decision in whole or in part or reverse the decision in whole or in part.
    1. At this preliminary hearing, the administrative law judge shall weigh the equities of any request for expedited review and advance the case on the administrative docket as circumstances permit.
    2. The commission shall review the director's decision de novo.
    3. The administrative law judge shall schedule the hearing and other proceedings so that the appeal will be submitted to the commission for final commission action within one hundred twenty (120) days after the preliminary hearing unless the parties mutually agree to a longer period of time or the administrative law judge establishes a longer period of time for just cause.
    4. During the pendency of the appeal to the commission:
      1. The denial of a permit shall stand;
      2. The issuance, modification, or revocation of a permit or that part of a permit that is the subject of the appeal shall be stayed;
        1. Notwithstanding subdivisions (c)(6)(A) and (B) of this section, upon application by a party, the commission may provide for a stay, modify the terms of a stay, or terminate a stay under appropriate circumstances to avoid substantial prejudice to a party.
        2. As used in subdivision (c)(6)(C)(i) of this section, “substantial prejudice” means that the following will occur to the party seeking a stay, a modification of the terms of a stay, or the termination of a stay if the request is denied:
          1. Actual harm to health; or
          2. Adverse economic impact, including without limitation interruption, curtailment, or deferral of business or increased cost of construction or operation;
      3. Upon application by a party for a stay, to modify the terms of a stay, or to terminate a stay, the Chair of the Arkansas Pollution and Ecology Control Commission shall:
        1. Grant a temporary stay, modify the terms of a stay, or terminate a stay effective until the earlier of the next regularly scheduled commission meeting or the next special meeting called for the purpose of considering the application; or
        2. Place the application on the agenda for the next regularly scheduled commission meeting or call a special commission meeting for the purpose of considering the application if more than thirty (30) days will pass between the receipt of the application and the next regularly scheduled commission meeting; and
      4. Notwithstanding subdivision (c)(6)(D) of this section, the commission shall render a final decision on an application to provide for a stay, modify the terms of a stay, or terminate a stay within thirty (30) days of receipt of the application.
    5. The decision of the commission is final, and only those persons that are parties to the administrative appeal under this section shall have standing to appeal a permitting decision to circuit court as provided for in §§ 8-4-222 — 8-4-229.

History. Acts 1949, No. 472, [Part 1], § 5; 1973, No. 262, § 7; A.S.A. 1947, § 82-1906; Acts 1991, No. 744, § 4; 1993, No. 163, § 15; 1993, No. 165, § 15; 1995, No. 384, § 10; 1999, No. 1164, § 22; 2013, No. 1021, § 1; 2015, No. 838, § 4; 2019, No. 910, §§ 2489, 2490.

Amendments. The 2013 amendment added (c)(6)(C)(ii) through (E).

The 2015 amendment substituted “administrative law judge” for “hearing officer” throughout (c); and substituted “under” for “pursuant to” in (c)(1)(C).

The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a) and (b)(1).

Cross References. Administrative procedures and appeals in actions involving hazardous substances, § 8-7-506.

Hazardous substance remedial action trust fund, procedures for appeal, § 8-7-519.

Case Notes

Construction.

The right to public participation in hearings before the Department of Pollution Control and Ecology under Arkansas law is comparable to 33 U.S.C. § 1319(g), especially in view of 40 C.F.R. § 123.27(d). Ark. Wildlife Fed'n v. ICI Ams. Inc., 842 F. Supp. 1140 (E.D. Ark. 1993), aff'd, 29 F.3d 376 (8th Cir. 1994).

Public Comments.

In a case concerning a permit to operate a steel mill, an argument that an air quality analysis incorrectly employed Significant Impact Levels was procedurally barred by not having been raised in the public comments, as required by this section. Nucor Steel-Arkansas v. Ark. Pollution Control & Ecology Comm'n, 2015 Ark. App. 703, 478 S.W.3d 232 (2015).

Statement of Objections.

Because the organizations' objections, that the contractor would not operate and maintain the facility for disposal of chemical weapons in compliance with the air and hazardous-waste permits and applicable law and the emergency response and contingency planning was inadequate, were not specifically mentioned, those claims were not properly raised for appellate review under subdivision (b)(3). Pine Bluff for Safe Disposal v. Ark. Pollution Control & Ecology Comm'n, 354 Ark. 563, 127 S.W.3d 509 (2003).

Cited: Commission on Pollution Control & Ecology v. James, 264 Ark. 144, 568 S.W.2d 27 (1978).

8-4-206. State water pollution control agency — General authority.

  1. In addition to any other powers which it may have under this chapter or any other legislative act, the Division of Environmental Quality is authorized and empowered to act as the “state water pollution control agency” for the State of Arkansas for the purposes of the Federal Water Pollution Control Act Amendments of 1972.
  2. As the state water pollution control agency, the division may, among other things, approve projects for the construction of disposal systems for the purposes of loans and grants from the United States Environmental Protection Agency or any other federal agency and may take any other action necessary or appropriate to secure for the state the benefits of the Federal Water Pollution Control Act, as amended.

History. Acts 1949, No. 472, [Part 1], § 3; Acts 1973, No. 262, § 5; 1975, No. 743, § 5; A.S.A. 1947, § 82-1904; Acts 1999, No. 1164, § 23; 2019, No. 910, § 2491.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a); and substituted “division” for “department” in (b).

U.S. Code. The Federal Water Pollution Control Act Amendments of 1972, and the Federal Water Pollution Control Act, as amended, referred to in this section, are codified primarily as 33 U.S.C. § 1251 et seq.

8-4-207. State water pollution control agency — Powers and duties generally.

Without limiting the generality of the provisions of this chapter or of the powers which the Director of the Division of Environmental Quality and the Arkansas Pollution Control and Ecology Commission may have under this or any other legislative act:

    1. The director is authorized to require conditions in permits issued under this chapter regarding the achievement of effluent limitations based upon the application of such levels of treatment technology and processes as are required under the Federal Water Pollution Control Act, as amended, or any more stringent effluent limitations necessary to meet water quality criteria or toxic standards established pursuant to any state law or rule or federal law or regulation. Such effluent limitations shall be achieved in the shortest reasonable period of time consistent with state law and the Federal Water Pollution Control Act, as amended, and any regulations or guidelines promulgated thereunder.
    2. The director is further authorized to set and revise schedules of compliance and include such schedules within the terms and conditions of the permits and prescribe other terms and conditions for permits issued under this chapter to assure compliance with applicable state and federal effluent limitations and water quality criteria, including requirements concerning recording, reporting, monitoring, entry, inspection, and sampling as provided in this chapter and such other requirements as are consistent with the purposes of this chapter;
  1. The director shall not issue a permit under this chapter if the discharge of any term of the permit would violate the provisions of any federal law or rule or regulation promulgated thereunder, including the duration of such permit;
  2. Permits for publicly owned treatment works shall include as a condition for the permit that the permittee provide information to the director concerning new introductions of pollutants or substantial changes in the volume or character of pollutants, whether sewage, industrial waste, or other wastes are being introduced into such treatment works, and appropriate measures to establish and ensure compliance by industrial users with any system of user charges required under state law or federal law or any federal regulations or guidelines promulgated thereunder;
  3. The director may apply and enforce toxic effluent standards and pretreatment standards against industrial users of publicly owned treatment works for the introduction into the publicly owned treatment works of sewage, industrial wastes, or other wastes which interfere with, pass through, or otherwise are incompatible with the publicly owned treatment works;
  4. The director and the commission shall ensure public notice, public participation, and an opportunity for public hearing in respect to National Pollutant Discharge Elimination System permit applications and actions related to them in accordance with applicable state law and rules and federal law, rules, and regulations; and
      1. Any records, reports, or information obtained under this chapter and any permits, permit applications, and related documentation shall be available to the public for inspection and copying.
      2. However, information submitted to the Division of Environmental Quality may be claimed as confidential if its disclosure would divulge trade secrets.
    1. The division shall deny any claim for confidentiality for the name and address of any permit applicant or permittee or for any National Pollutant Discharge Elimination System permit applications, National Pollutant Discharge Elimination System permits, and effluent data.
    2. Information required by National Pollutant Discharge Elimination System application forms, including any information submitted on the forms themselves and any attachments used to supply information required by the forms, shall not be claimed confidential nor afforded this protection.
    3. Any person adversely affected by a determination by the division on a claim of confidentiality may appeal the determination as provided in §§ 8-4-222 and 8-4-223.

History. Acts 1949, No. 472, [Part 1], § 3; 1973, No. 262, § 5; 1975, No. 743, § 5; A.S.A. 1947, § 82-1904; Acts 1987, No. 617, § 1; 1993, No. 163, § 16; 1993, No. 165, § 16; 1999, No. 1164, § 24; 2019, No. 315, §§ 471-473; 2019, No. 693, § 6; 2019, No. 910, §§ 2492-2495.

Amendments. The 2019 amendment by No. 315 inserted “law or rule” in (1)(A); substituted “state law or federal law or any federal regulations” for “state or federal law or any regulations” in (3); and substituted “state law and rules and federal law, rules, and regulations” for “state and federal law and rules and regulations” in (5).

The 2019 amendment by No. 693, in (4), substituted “may” for “is authorized to”, and “the publicly owned” for “such” twice.

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the introductory language and (6)(A)(ii); and substituted “division” for “department” in (6)(B) and (6)(D).

U.S. Code. The Federal Water Pollution Control Act, as amended, referred to in this section, is codified primarily as 33 U.S.C. § 1251 et seq.

Case Notes

Administrative Hearing.

Where, pursuant to this section, Department of Pollution Control and Ecology sought to obtain assessment of a civil penalty by the circuit court against defendant company without filing any civil action under § 8-4-103(b), and there was no current violation at the time the plaintiff sought the penalty, trial court properly dismissed the action on the ground that it had no jurisdiction to consider the matter prior to an administrative hearing. Ark. Dep't of Pollution Control & Ecology v. B.J. McAdams, Inc., 303 Ark. 144, 792 S.W.2d 611 (1990).

8-4-208. State water pollution control agency — Administration of permit program generally.

  1. The Division of Environmental Quality is authorized, subject to the approval of the Governor, to administer on behalf of the state its own permit program for discharges into navigable waters within its jurisdiction in lieu of that of the United States Environmental Protection Agency. The division is also authorized to submit to the Administrator of the United States Environmental Protection Agency for approval a full and complete description of the program which the division proposes to establish and administer under state law, as provided by § 402(b) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1342(b). To that end, the division and the Arkansas Pollution Control and Ecology Commission are vested with all necessary authority and power to meet the requirements of § 402(b) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1342(b), and the guidelines promulgated by the United States Environmental Protection Agency pursuant to § 304(h)(2) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1314(h), to engage in an approved continuing planning process under § 303(e) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1313(e), and to perform any and all acts necessary to carry out the purposes and requirements of the Federal Water Pollution Control Act Amendments of 1972 relating to this state's participation in the National Pollutant Discharge Elimination System established under the Federal Water Pollution Control Act Amendments of 1972, subject to all restrictions contained in the Federal Water Pollution Control Act Amendments of 1972 and guidelines.
  2. The division shall further have the authority to accept a delegation of authority from the Administrator of the United States Environmental Protection Agency under the Federal Water Pollution Control Act Amendments of 1972 and to exercise and enforce the authority delegated.
  3. Any public hearing that may be held by the Director of the Division of Environmental Quality preliminary to acting on a permit application as required by the Federal Water Pollution Control Act Amendments of 1972 and guidelines, unless otherwise designated in the notice of hearing, shall be for informational purposes only and shall not be deemed a hearing before the commission within the meaning of § 8-4-205. No appeal may be taken therefrom.

History. Acts 1949, No. 472, [Part 1], § 3; 1973, No. 262, § 5; 1975, No. 743, § 5; A.S.A. 1947, § 82-1904; Acts 1993, No. 163, § 17; 1993, No. 165, § 17; 1999, No. 1164, § 25; 2019, No. 910, § 2496.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a) and (c); and substituted “division” for “department” throughout (a) and in (b).

U.S. Code. The Federal Water Pollution Control Act Amendments of 1972, referred to in this section, are codified primarily as 33 U.S.C. § 1251 et seq.

The guidelines promulgated by the United States Environmental Protection Agency pursuant to § 304(h) of the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. § 1314(h)), referred to in this section, appear as 40 C.F.R. § 136.1 et seq.

Cross References. Requirement of disclosure statement from permit applicants, § 8-1-106(b).

8-4-209. State water pollution control agency — Participation of certain persons prohibited in approval of permit applications.

Any provision of state law to the contrary notwithstanding, no member of the Division of Environmental Quality or the Arkansas Pollution Control and Ecology Commission or other state agency who receives or has during the previous two (2) years received a significant portion of his or her income directly or indirectly from permit holders or applicants for a permit shall participate in the approval of the National Pollutant Discharge Elimination System permit applications or portions thereof.

History. Acts 1949, No. 472, [Part 1], § 2; 1975, No. 743, § 5; A.S.A. 1947, § 82-1904; 2019, No. 910, § 2497.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality”.

8-4-210. Investigations and hearings generally.

  1. The Arkansas Pollution Control and Ecology Commission is given and charged with the power and duty to conduct such investigations and hold such hearings as it may deem advisable and necessary for the discharge of its duties under this chapter and to authorize any member, employee, or agent appointed by it to conduct such investigations or hold such hearings.
  2. In any such hearing or investigation, any member of the commission or any employee or agent thereto authorized by the commission may administer oaths, examine witnesses, and issue, in the name of the commission, subpoenas requiring the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in such hearing or investigation.
  3. Witnesses shall receive the same fees and mileage as in civil actions, to be paid out of funds appropriated to the commission.
    1. In case of contumacy or refusal to obey a subpoena issued under this section or refusal to testify, the circuit court of the county where the proceeding is pending or in which the person guilty of the contumacy or refusal to obey is found or resides shall have jurisdiction, upon application of the commission or its authorized member, employee, agent, or administrative law judge, to issue to the person an order requiring him or her to appear and testify or produce evidence, as the case may require.
    2. A failure to obey the order of the court may be punished by the court as contempt.
  4. In accordance with the powers set forth in subsections (a)-(d) of this section, the commission is authorized to conduct adjudicatory hearings providing an aggrieved person with standing a forum for contesting any decision of the Division of Environmental Quality. For the purposes of such hearings, the commission's jurisdiction shall be construed as including all regulatory programs vested with the division.

History. Acts 1949, No. 472, [Part 1], § 3; A.S.A. 1947, § 82-1904; Acts 1997, No. 1219, § 5; 2015, No. 838, § 5; 2019, No. 910, § 2498.

Amendments. The 2015 amendment inserted designations (d)(1) and (d)(2); and substituted “administrative law judge” for “hearing officer” in (d)(1).

The 2019 amendment, in (e), substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the first sentence and substituted “division” for “department” at the end of the second sentence.

Case Notes

Construction.

The right to public participation in hearings before the Department of Pollution Control and Ecology under Arkansas law is comparable to 33 U.S.C. § 1319(g), especially in view of 40 C.F.R. § 123.27(d). Ark. Wildlife Fed'n v. ICI Ams. Inc., 842 F. Supp. 1140 (E.D. Ark. 1993), aff'd, 29 F.3d 376 (8th Cir. 1994).

8-4-211. Declaratory orders.

  1. Any permittee or person subject to regulation may petition the Arkansas Pollution Control and Ecology Commission for a declaratory order as to the application of any rule, statute, permit, or order enforced by the Division of Environmental Quality or the commission.
  2. Such petitions shall be processed for adjudicatory review in the same manner as appeals under the procedures prescribed by §§ 8-1-203, 8-4-205, 8-4-212, and 8-4-218 — 8-4-229.

History. Acts 1949, No. 472, [Part 1], § 3; 1961, No. 120, § 3; A.S.A. 1947, § 82-1904; Acts 1995, No. 384, § 4; 1997, No. 1219, § 5; 2019, No. 910, § 2499.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a).

Case Notes

Cited: Romine v. Ark. Dep't of Envtl. Quality, 342 Ark. 380, 40 S.W.3d 731 (2000).

8-4-212. Adjudicatory hearings and orders.

  1. No final order resolving a contested decision of the Division of Environmental Quality shall be issued until the Arkansas Pollution Control and Ecology Commission has provided aggrieved persons that have standing the opportunity for an adjudicatory hearing upon the matter.
  2. Any person that will be directly affected by the order shall have the right to be heard at the hearing, to submit evidence, and to be represented by counsel.
  3. Written notice specifying the time and place of the hearing shall be served by the commission in the manner provided by § 8-4-214 upon all persons known by it to be directly affected by the order, not less than ten (10) days before the date of the hearing.
  4. A copy of any order issued by the commission after the hearing shall also be served upon the persons.

History. Acts 1949, No. 472, [Part 1], § 5; A.S.A. 1947, § 82-1906; Acts 1997, No. 1219, § 5; 2019, No. 910, § 2500.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a).

Case Notes

Construction.

The right to public participation in hearings before the Department of Pollution Control and Ecology under Arkansas law is comparable to 33 U.S.C. § 1319(g), especially in view of 40 C.F.R. § 123.27(d). Ark. Wildlife Fed'n v. ICI Ams. Inc., 842 F. Supp. 1140 (E.D. Ark. 1993), aff'd, 29 F.3d 376 (8th Cir. 1994).

8-4-213. Conclusiveness of commission actions.

  1. If no appeal is taken from an order, a rule, or other decision of the Arkansas Pollution Control and Ecology Commission as provided in §§ 8-4-222 — 8-4-229, or if the action of the commission is affirmed on appeal, then the action of the commission in the matter shall be deemed conclusive, and the validity and reasonableness thereof shall not be questioned in any other action or proceeding.
  2. However, this section shall not preclude the authority of the commission to modify or rescind its actions.

History. Acts 1949, No. 472, [Part 1], § 5; A.S.A. 1947, § 82-1906; Acts 1993, No. 163, § 18; 1993, No. 165, § 18; 2019, No. 315, § 474.

Amendments. The 2019 amendment deleted “a regulation” following “rule” in (a).

Case Notes

Cited: Hamilton v. Ark. Pollution Control & Ecology Comm'n, 333 Ark. 370, 969 S.W.2d 653 (1998).

8-4-214. Service of notice, orders, etc.

  1. Except as otherwise expressly provided, any notice, order, or other instrument issued by or under authority of the Arkansas Pollution Control and Ecology Commission may be served upon any person affected thereby, personally or by publication. Proof of the service may be made in like manner as in the case of service of a summons in a civil action, with the proof to be filed in the office of the commission.
    1. Service may be had by mailing a copy of the notice, order, or other instrument, by certified mail, directed to the person affected at his or her last known post office address as shown by the files or records of the commission. Proof of the mailing may be made by the affidavit of the person that did the mailing, filed in the office of the commission.
    2. Service by publication shall be accomplished by one (1) insertion in a newspaper of general circulation in the area affected.
  2. Every certificate or affidavit of service made and filed as provided in this section shall be prima facie evidence of the facts therein stated, and a certified copy thereof shall have like force and effect.

History. Acts 1949, No. 472, [Part 1], § 5; A.S.A. 1947, § 82-1906.

8-4-215. Intergovernmental cooperation.

  1. The Division of Environmental Quality or its successor and the Arkansas Pollution Control and Ecology Commission, so far as it is not inconsistent with its duties under the laws of this state, may assist and cooperate with any agency of another state or the United States in any matter relating to water pollution control.
    1. The commission or the division may receive and accept money, property, or services from any person or from any agency described in subsection (a) of this section or from any other source for any water pollution control purpose within the scope of its functions under this chapter.
    2. All moneys so received shall be used for the operation and activities of the commission or division and for no other purposes.
    1. The division or its successor may enter into agreements with the responsible authorities of the United States or other states, subject to approval by the Governor, relative to policies, methods, means, and procedures to be employed to control pollution of any interstate waters and may carry out these agreements by appropriate general and special orders.
      1. This power shall not be deemed to extend to the modification of any agreement with any other state concluded by direct legislative act.
      2. However, unless otherwise provided, the division shall be the agency for the administration and enforcement of any such legislative agreement.

History. Acts 1949, No. 472, [Part 1], § 6; 1973, No. 262, § 8; A.S.A. 1947, § 82-1907; Acts 1997, No. 1219, § 5; 1999, No. 1164, § 26; 2019, No. 910, § 2501.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a); and substituted “division” for “department” throughout (b) and (c).

Research References

Ark. L. Rev.

Nathan R. Finch, Comment: Nutrient Water Quality Trading: A Market-Based Solution to Water Pollution in the Natural State, 69 Ark. L. Rev. 839 (2016).

8-4-216. Information and inspections.

  1. The owner or operator of or any contributor of sewage, industrial wastes, or other wastes to any disposal system or an industrial user of a publicly owned treatment system, when requested by the Director of the Division of Environmental Quality, shall furnish to the Division of Environmental Quality any information that is relevant to the subject of this chapter. The owner or operator shall establish and maintain such records, make such reports, install, use, and maintain such monitoring equipment or methods, including, when appropriate, biological monitoring methods, sample such effluents, and provide such other information as the director may reasonably require.
  2. The division or any authorized employee or agent of the division may examine and copy any book, papers, records, or memoranda pertaining to the operation of a disposal system.
  3. Whenever it shall be necessary for the purpose of this chapter, the division or any authorized member, employee, or agent of the division may enter upon any public or private property for the purpose of obtaining information or conducting surveys or investigations.

History. Acts 1949, No. 472, [Part 1], § 4; 1973, No. 262, § 6; 1975, No. 743, § 6; A.S.A. 1947, § 82-1905; Acts 1999, No. 1164, § 27; 2019, No. 910, § 2502.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” twice in (a); and substituted “division” for “department” twice in (b) and twice in (c).

8-4-217. Unlawful actions.

  1. It shall be unlawful for any person to:
    1. Cause pollution, as defined in § 8-4-102, of any of the waters of this state;
    2. Place or cause to be placed any sewage, industrial waste, or other wastes in a location where it is likely to cause pollution of any waters of this state;
    3. Violate any provisions of this chapter or of any rule or order adopted by the Arkansas Pollution Control and Ecology Commission under this chapter or of a permit issued under this chapter by the Division of Environmental Quality;
    4. Knowingly to make any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this chapter;
    5. Falsify, tamper with, or knowingly render inaccurate any monitoring device or method required to be maintained under this chapter; or
    6. Sell, offer or expose for sale, give, or furnish any synthetic detergent or detergent containing any phosphorus, expressed as elemental phosphorus, including synthetic detergents or detergents manufactured for use as laundry or dishwashing detergents within this state from and after January 1, 1994, except as provided below:
      1. Products that may be used, sold, manufactured, or distributed for use or sale regardless of phosphorus content include:
        1. A detergent:
          1. Used in dairy, beverage, or food processing cleaning equipment;
          2. Used in hospitals, veterinary hospitals, clinics, healthcare facilities, or in agricultural production;
          3. Used by industry for metal cleaning or reconditioning;
          4. Manufactured, stored, or distributed for use or sale outside the state;
          5. Used in any laboratory, including a biological laboratory, research facility, chemical laboratory, and engineering laboratory;
          6. Used in a commercial laundry that provides laundry services for a hospital, healthcare facility, or veterinary hospital; or
          7. Used for surface cleaning, appliance cleaning, or specialty home cleaning, and not for dishwashing or laundry;
        2. A phosphoric acid product, including a sanitizer, brightener, acid cleaner, or metal conditioner; and
        3. A substance the division excludes from the phosphorus limitations of this section based on a finding that compliance with this section would:
          1. Create a significant hardship on the user; or
          2. Be unreasonable because of the lack of an adequate substitute cleaning agent that could be substituted for the subject cleaning agent without significant cost or effect differences;
      2. A person may use, sell, manufacture, or distribute for use or sale a laundry detergent that contains five-tenths percent (.5%) phosphorus or less that is incidental to manufacturing; and
      3. A person may use, sell, manufacture, or distribute for use or sale a dishwashing detergent that contains eight and seven-tenths percent (8.7%) phosphorus or less by weight.
    1. It shall be unlawful for any person to engage in any of the following acts without having first obtained a written permit from the division:
      1. To construct, install, modify, or operate any disposal system or any part thereof, or any extension or addition thereto, that will discharge into any of the waters of this state;
      2. To increase in volume or strength any sewage, industrial waste, or other wastes in excess of the permissive discharges specified under any existing permit;
      3. To construct, install, or operate any building, plant, works, establishment, or facility, or any extension or modification thereof, or addition thereto, the operation of which would result in discharge of any wastes into the waters of this state or would otherwise alter the physical, chemical, or biological properties of any waters of this state in any manner not already lawfully authorized;
      4. To construct or use any new outlet for the discharge of any wastes into the waters of this state; or
      5. To discharge sewage, industrial waste, or other wastes into any of the waters of this state.
    2. The division may require the submission of such plans, specifications, and other information as it deems relevant in connection with the issuance of disposal permits.

History. Acts 1949, No. 472, [Part 1], § 8; 1961, No. 120, § 7; 1973, No. 262, § 9; 1975, No. 743, § 7; A.S.A. 1947, § 82-1908; Acts 1993, No. 454, § 1; 1993, No. 461, § 1; 1997, No. 1219, § 5; 2019, No. 315, § 475; 2019, No. 910, §§ 2503-2506.

A.C.R.C. Notes. As originally amended by identical Acts 1993, Nos. 454 and 461, § 1, subdivisions (a)(6)(B) and (a)(6)(C) began “After January 1, 1994.”

Amendments. The 2019 amendment by No. 315 deleted “regulation” following “rule” in (a)(3).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(3); and substituted “division” for “department” throughout the section.

Research References

Ark. L. Rev.

Noble and Looney, The Emerging Legal Framework for Animal Agricultural Waste Management in Arkansas, 47 Ark. L. Rev. 159.

U. Ark. Little Rock L.J.

Wright, In Storage Tank Funds We Trust: An Analysis of Their Role in Protecting the Environment and Small Business, 13 U. Ark. Little Rock L.J. 417.

Case Notes

Escape of Dioxin.

Where the record showed that dioxin was escaping from a plant site in quantities that under an acceptable, but unproved, theory could be considered as teratogenic, mutagenic, fetotoxic, and carcinogenic, there was a reasonable medical concern over the public health, and therefore the escape of dioxin into a creek and bayou from the plant site constituted an imminent and substantial endangerment to the health of persons and was subject to abatement. United States v. Vertac Chem. Corp., 489 F. Supp. 870 (E.D. Ark. 1980), aff'd, 961 F.2d 796 (8th Cir. 1992).

Violations.

Where a corporation with an incinerator permit transferred all of its stock to a second corporation, there was substantial evidence to support the Arkansas Pollution Control and Ecology Commission's conclusion that the first corporation thereby transferred its permitted facility to the second corporation, a transfer prohibited by the permit. Enviroclean, Inc. v. Ark. Pollution Control & Ecology Comm'n, 314 Ark. 98, 858 S.W.2d 116 (1993).

Cited: Arkansas ex rel. Bryant v. Dow Chem. Co., 981 F. Supp. 1170 (E.D. Ark. 1997).

8-4-218. Violations of chapter, orders, rules, etc. — Hearings — Notice.

  1. Whenever the Division of Environmental Quality or its successor determines that there are reasonable grounds to believe that there has been a violation of any of the provisions of this chapter or any order or rule of the Arkansas Pollution Control and Ecology Commission, it may give written notice to the alleged violator specifying the causes of complaint.
  2. The notice shall require that the matters that are the causes of complaint be corrected or that the alleged violator appear before the commission at a time and place specified in the notice and answer the charges that are the causes of complaint.
  3. The notice shall be served upon the alleged violator in accordance with the provisions of § 8-4-214 not less than ten (10) days before the time set for the hearing.

History. Acts 1949, No. 472, [Part 1], § 5; 1961, No. 120, § 6; A.S.A. 1947, § 82-1906; Acts 1997, No. 1219, § 5; 1999, No. 1164, § 28; 2013, No. 1127, § 3; 2019, No. 315, § 476; 2019, No. 910, § 2507.

Amendments. The 2013 amendment substituted “that are the causes of complaint” for “complained of” twice in (b).

The 2019 amendment by No. 315 substituted “or rule” for “rule or regulation” in (a).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a).

Case Notes

Construction.

The right to public participation in hearings before the Department of Pollution Control and Ecology under Arkansas law is comparable to 33 U.S.C. § 1319(g), especially in view of 40 C.F.R. § 123.27(d). Ark. Wildlife Fed'n v. ICI Ams. Inc., 842 F. Supp. 1140 (E.D. Ark. 1993), aff'd, 29 F.3d 376 (8th Cir. 1994).

8-4-219. Violations of chapter, orders, rules, etc. — Hearings — Conduct.

  1. The Arkansas Pollution Control and Ecology Commission shall afford an opportunity for a fair hearing to the alleged violator at the time and place specified in the notice or any modification of the notice.
  2. A hearing may be conducted by the commission or its administrative law judge, who shall have the power and authority to conduct hearings in the name of the commission at any time and place.
  3. A record or summary of the proceedings of the hearings shall be taken and filed at the office of the commission.

History. Acts 1949, No. 472, [Part 1], § 5; 1961, No. 120, § 6; A.S.A. 1947, § 82-1906; Acts 1997, No. 1219, § 5; 2015, No. 838, § 6.

Amendments. The 2015 amendment substituted “administrative law judge” for “hearing officer” in (b).

8-4-220. Violation of chapter, orders, rules, etc. — Order of division without hearing.

  1. When the Division of Environmental Quality or its successor finds that an emergency exists requiring immediate action to protect the public health or welfare it may, without notice or hearing, issue an order reciting the existence of such emergency and requiring that such action be taken as it deems necessary to meet the emergency.
  2. Notwithstanding the provisions of §§ 8-4-218 and 8-4-219, the order shall be effective immediately.
  3. Any person to which the order is directed shall comply immediately but, on application to the Arkansas Pollution Control and Ecology Commission, shall be afforded a hearing within ten (10) days after receipt of a written request therefor.
  4. On the basis of the hearing, the commission shall continue the order in effect, revoke it, or modify it.

History. Acts 1949, No. 472, [Part 1], § 5; 1961, No. 120, § 6; A.S.A. 1947, § 82-1906; Acts 1997, No. 1219, § 5; 1999, No. 1164, § 29; 2019, No. 910, § 2508.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a).

8-4-221. Violations of chapter, orders, rules, etc. — Hearing — Orders.

On the basis of the evidence produced at the hearing, the Arkansas Pollution Control and Ecology Commission shall enter such order as in its opinion will best further the purposes of this chapter. A copy of the order shall be served upon the alleged violator and on such other persons as shall have appeared at the hearing and made written request for notice of the order, in the manner provided by § 8-4-214. The order of the commission shall become final and binding on all parties unless appealed, as provided in §§ 8-4-2228-4-229, within thirty (30) days after service of the order.

History. Acts 1949, No. 472, [Part 1], § 5; 1961, No. 120, § 6; A.S.A. 1947, § 82-1906; Acts 1993, No. 163, § 19; 1993, No. 165, § 19.

8-4-222. Appeals — Entitlement.

An appeal may be taken from a final order, rule, regulation, or other final determination of the Arkansas Pollution Control and Ecology Commission under §§ 8-4-2238-4-229 by those parties that have standing and have exhausted their administrative appeals.

History. Acts 1949, No. 472, [Part 1], § 5; A.S.A. 1947, § 82-1906; Acts 1993, No. 163, § 20; 1993, No. 165, § 20; 2013, No. 1021, § 2.

Amendments. The 2013 amendment inserted “under §§ 8-4-2238-4-229” and deleted “to the circuit court of the county in which the business, industry, municipality, or thing involved is situated, in the manner provided in §§ 8-4-2238-4-229” at the end.

Case Notes

Construction.

The Arkansas provisions for judicial review are comparable to those found in 33 U.S.C. § 1319(g)(8). Ark. Wildlife Fed'n v. ICI Ams. Inc., 842 F. Supp. 1140 (E.D. Ark. 1993), aff'd, 29 F.3d 376 (8th Cir. 1994).

8-4-223. Appeals — Notice.

    1. Within thirty (30) days after service of a copy of the final order, rule, or other final determination of the Arkansas Pollution Control and Ecology Commission, the appellant may file a notice of appeal with the circuit court of the county in which the business, industry, municipality, or thing involved is situated.
    2. A copy of the notice of appeal shall be served upon the Secretary of the Arkansas Pollution Control and Ecology Commission by personal delivery or by mail with a return receipt requested within ten (10) days of filing with the circuit court.
    1. The notice of appeal:
      1. Shall state the action of the commission appealed from;
      2. Shall specify the grounds of the appeal, including points of both law and fact that are asserted or questioned by the appellant; and
      3. May contain any other allegations or denials of fact pertinent to the appeal.
    2. The notice of appeal shall state an address within the state at which service of a response to the notice of appeal and other papers in the matter may be made upon the appellant.
  1. Upon filing the notice of appeal with the clerk of the circuit court, the circuit court shall have jurisdiction of the appeal.
    1. Within ten (10) business days of service of the notice of appeal required under subdivision (a)(2) of this section, the owner or operator of the business, industry, municipality, or thing involved may file a motion to transfer the appeal from the circuit court to the Court of Appeals.
    2. Upon the filing of a motion under subdivision (d)(1) of this section, the appeal shall be transferred from the circuit court to the Court of Appeals.

History. Acts 1949, No. 472, [Part 1], § 5; A.S.A. 1947, § 82-1906; Acts 1997, No. 896, § 1; 1997, No. 1219, § 5; 2013, No. 1021, § 3; 2019, No. 315, § 477.

Amendments. The 2013 amendment added (d).

The 2019 amendment deleted “regulation” following “rule” in (a)(1).

Case Notes

Jurisdiction.

Service of notice of appeal on a party to the litigation does not give the court jurisdiction; the court has jurisdiction only when the notice is filed with the clerk of the circuit court. Cash v. Ark. Comm'n on Pollution Control & Ecology, 300 Ark. 317, 778 S.W.2d 606 (1989).

Scope of Review.

Subsection (d) of this section is intended simply to expedite the process of bringing an Arkansas Pollution Control & Ecology Commission ruling forward for appellate review, and there is no intent to divest the appellate court of its ordinary function. Therefore, in a case where an administrative decision to affirm the granting of a permit to build and operate a new steel mill was upheld, the appellate court did not have to review a decision from the Commission in the posture of a circuit court. Nucor Steel-Arkansas v. Ark. Pollution Control & Ecology Comm'n, 2015 Ark. App. 703, 478 S.W.3d 232 (2015).

8-4-224. Appeals — Parties.

    1. The appellant, the Arkansas Pollution Control and Ecology Commission, and the owner or operator of the business, industry, municipality, or thing involved, if applicable, shall in all cases be the original parties to an appeal.
    2. The state, through the Attorney General or any other person affected, may become a party by intervention as in a civil action, upon showing cause therefor.
    3. The Attorney General shall represent the commission, if requested, upon all these appeals, unless he or she appeals or intervenes in behalf of the state.
  1. No bond or deposit for costs shall be required of the state or of the commission upon any such appeal or upon any subsequent appeal to the Supreme Court or other court proceedings pertaining to the matter.

History. Acts 1949, No. 472, [Part 1], § 5; A.S.A. 1947, § 82-1906; Acts 2013, No. 1021, § 4.

Amendments. The 2013 amendment inserted “and the owner or operator of the business, industry, municipality, or thing involved, if applicable” in (a)(1).

8-4-225. Appeals — Venue.

Except as provided in § 8-4-223(d), upon written consent of the parties or for cause shown after hearing upon notice to all parties, the venue of an appeal may be changed by order of the circuit court to the circuit court of a county in which the order, rule, or decision appealed from would take effect.

History. Acts 1949, No. 472, [Part 1], § 5; A.S.A. 1947, § 82-1906; Acts 2013, No. 1021, § 5; 2019, No. 315, § 478.

Amendments. The 2013 amendment added the exception and inserted “circuit” preceding the first occurrence of “court”.

The 2019 amendment deleted “regulation” following “rule”.

8-4-226. Appeal — Response by commission and record.

    1. Within thirty (30) days after service of the notice of appeal on the Secretary of the Arkansas Pollution Control and Ecology Commission, the Arkansas Pollution Control and Ecology Commission shall file with the clerk of the circuit court having jurisdiction of the appeal a response to the notice of appeal and the record upon which the final order, rule, or other final determination complained of was entered.
    2. The thirty-day period for filing a response to the notice of appeal and the record by the commission may be extended by the court for cause shown for not more than an additional sixty (60) days.
      1. The record shall consist of:
        1. A copy of any application or petition, all pleadings, or other material paper whereon the action of the commission appealed from was based;
        2. A statement of any findings of fact, rulings, or conclusions of law made by the commission;
        3. A copy of the final order, rule, or other final decision appealed from; and
        4. All testimony, exhibits, and other evidence submitted to the commission in the case.
      2. The parties to the appeal may stipulate that only a specified portion of the record shall be filed with the circuit court.
    3. A response to the notice of appeal filed by the commission shall consist of any statements, admissions, or denials upon the questions of law or fact raised in the notice of appeal as the commission may deem pertinent.
  1. Within the time allowed for making and filing the response, a copy of the response shall be mailed to or served upon the appellant or the appellant's attorney.
    1. The allegations or new matter in the response shall be deemed to be denied by the appellant unless expressly admitted, and no further pleadings shall be interposed.
    2. Otherwise, the allegations of the notice of appeal and response shall have like effect as the pleadings in a civil action and shall be subject to like proceedings, so far as applicable.
  2. With respect to an appeal that is before the Court of Appeals as the result of a motion to transfer an appeal under § 8-4-223(d), the requirements applicable to the commission's response and the record shall be determined under the Rules of Appellate Procedure — Civil.

History. Acts 1949, No. 472, [Part 1], § 5; 1965, No. 183, § 4; A.S.A. 1947, § 82-1906; Acts 1997, No. 896, § 2; 1997, No. 1219, § 5; 2013, No. 1021, § 6; 2019, No. 315, §§ 479, 480.

Amendments. The 2013 amendment added (d).

The 2019 amendment deleted “regulation” following “rule” in (a)(1) and (a)(3)(A)(iii).

Case Notes

Cited: Gurley v. Mathis, 313 Ark. 412, 856 S.W.2d 616 (1993).

8-4-227. Appeal — Review by circuit court.

  1. The appeal shall be heard and determined by the circuit court upon the issues raised by the notice of appeal and response according to the rules relating to the trial of civil actions, so far as applicable.
  2. If, before the date set for the hearing, application is made to the circuit court for leave to present additional evidence and the circuit court finds that the evidence is material and that there were good reasons for failure to present it in the proceeding before the Arkansas Pollution Control and Ecology Commission, then the circuit court may order that the additional evidence be taken before the commission upon such conditions as may be just. The commission may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing circuit court.
      1. The review shall be conducted by the circuit court without a jury and shall be confined to the record.
      2. However, in cases of alleged irregularities in procedure before the commission that are not shown in the record, testimony may be taken before the circuit court.
    1. The circuit court shall, upon request, hear oral argument and receive written briefs.
  3. The circuit court may affirm the decision of the commission or vacate or suspend the decision, in whole or part, and remand the case to the commission for further action in conformity with the decision of the circuit court if the action of the commission is:
    1. In violation of constitutional or statutory provisions;
    2. In excess of the commission's statutory authority;
    3. Made upon unlawful procedure;
    4. Affected by other error of law;
    5. Not supported by substantial evidence of record; or
    6. Arbitrary, capricious, or characterized by abuse of discretion.

History. Acts 1949, No. 472, [Part 1], § 5; 1985, No. 284, § 1; A.S.A. 1947, § 82-1906; Acts 1995, No. 895, § 3; 1997, No. 896, § 3; 1997, No. 1219, § 5; 2013, No. 1021, § 7.

Amendments. The 2013 amendment inserted “circuit” before “court” throughout the section and added the (c)(1)(A) and (B) designations.

Case Notes

Constitutionality.

Former provision of this section was unconstitutional to the extent that it authorized the circuit court to review de novo matters of executive discretion. Ark. Comm'n on Pollution Control & Ecology v. Land Developers, Inc., 284 Ark. 179, 680 S.W.2d 909 (1984) (decision prior to 1985 amendment).

Applicability.

Subdivision (d)(5) of this section addresses appeals from the Arkansas Pollution Control and Ecology Commission to circuit court and not appeals to the Arkansas Supreme Court. Gurley v. Mathis, 313 Ark. 412, 856 S.W.2d 616 (1993).

Evidence.

Subdivision (c)(1)(B) of this section does not grant an appellate court authority to hear additional evidence; therefore, the appellate court did not address a concern over losing the opportunity to present additional evidence in a case relating to the granting of a permit to operate a steel mill. Nucor Steel-Arkansas v. Ark. Pollution Control & Ecology Comm'n, 2015 Ark. App. 703, 478 S.W.3d 232 (2015).

Scope of Review.

Court erred by substituting its judgment for that of the commission and in exceeding the statutory limits upon its authority to review the commission's order. Ark. Comm'n of Pollution Control & Ecology v. Husky Indus., Inc., 293 Ark. 249, 737 S.W.2d 157 (1987).

Finding that the commission “did not give proper consideration” to the threat to the economies of the communities involved posed by “strict compliance” is not a basis upon which review was permitted. Ark. Comm'n of Pollution Control & Ecology v. Husky Indus., Inc., 293 Ark. 249, 737 S.W.2d 157 (1987).

Standard of Review.

Arkansas Pollution Control and Ecology Commission's order approving landfill's application to expand was properly upheld by a trial court pursuant to subsection (d) of this section because the Commission had correctly concluded that the Arkansas Tri-County Solid Waste District Board's denial of a certificate of need due to the geology of the area was improper; there was substantial evidence to support the Commission's decision. Tri-County Solid Waste Dist. v. Ark. Pollution Control & Ecology Comm'n, 365 Ark. 368, 230 S.W.3d 545 (2006).

8-4-228. Appeal — Stay of proceedings.

  1. The taking effect of any action of the Arkansas Pollution Control and Ecology Commission shall not be stayed by an appeal except by order of the court for cause shown by the appellant.
  2. The granting of a stay may be conditioned upon the furnishing by the appellant of such reasonable security for costs as the court may direct.
  3. A stay may be vacated on application of the commission or any other party after hearing upon notice to the appellant and to such other parties as the court may direct.

History. Acts 1949, No. 472, [Part 1], § 5; A.S.A. 1947, § 82-1906.

8-4-229. Appeals, proceedings, etc. — Presumptions.

  1. In any appeal or other proceeding involving any order, rule, or other decision of the Arkansas Pollution Control and Ecology Commission, the action of the commission shall be prima facie evidence reasonable and valid, and it shall be presumed that all requirements of the law pertaining to the taking thereof have been complied with.
  2. All findings of fact made by the commission shall be prima facie evidence of the matters therein stated.
  3. The burden of proving the contrary of any provision of this section shall rest upon the appellant or other party questioning the action of the commission.

History. Acts 1949, No. 472, [Part 1], § 5; A.S.A. 1947, § 82-1906; Acts 2019, No. 315, § 481.

Amendments. The 2019 amendment deleted “regulation” following “rule” in (a).

Case Notes

Permits.

Pursuant to subsection (c), the organizations failed to meet their burden of showing that the Arkansas Pollution Control and Ecology Commission's decision affirming the issuance of air and hazardous-waste permits for the construction of a facility to dispose of chemical weapons was erroneous because they failed to show that the issuance of the permits for the facility would cause air pollution, as defined in § 8-4-303(5); thus, the Commission's decision to issue the permits was supported by substantial evidence and was proper. Pine Bluff for Safe Disposal v. Ark. Pollution Control & Ecology Comm'n, 354 Ark. 563, 127 S.W.3d 509 (2003).

Standard of Review.

In a case concerning a permit to operate a steel mill, the decision was not subject to de novo review because this section unquestionably required a deferential review of Arkansas Pollution Control & Ecology Commission rulings, which was inconsistent with a de novo review. Moreover, a ruling on the issuance of a regulatory permit was an exercise of executive function, hinging on executive discretion, and was not a quasi-judicial ruling. Nucor Steel-Arkansas v. Ark. Pollution Control & Ecology Comm'n, 2015 Ark. App. 703, 478 S.W.3d 232 (2015).

Cited: Tri-County Solid Waste Dist. v. Ark. Pollution Control & Ecology Comm'n, 365 Ark. 368, 230 S.W.3d 545 (2006).

8-4-230. Temporary variances and interim authority.

    1. Unless otherwise expressly prohibited by federal law, the Director of the Division of Environmental Quality may, for compelling reasons and good cause shown, grant:
      1. A temporary variance from the requirements of a permit issued by the Division of Environmental Quality; or
      2. Interim authority to construct or operate during the application review and permit issuance process.
    2. Such temporary variances or interim authority shall not exceed a period of ninety (90) days, except when a longer period is justified by circumstances beyond the applicant's control. The division may grant a request for an extension of a temporary variance or interim authority at any time prior to the expiration date.
    3. The division may require an initial processing fee of two hundred dollars ($200) for a request for a temporary variance or an interim authority request. This fee shall not be required for requests for an extension of any temporary variance or interim authority.
    1. In considering a request for a temporary variance under subdivision (a)(1)(A) of this section, the director shall consider:
      1. The environmental and public health effects of the temporary variance;
      2. Any economic advantage obtained by the party requesting the temporary variance over other similarly situated facilities that are operating in accordance with similar permit conditions and that have not requested a temporary variance; and
      3. Whether strict compliance would result in the substantial curtailment or closing down of an existing or proposed business, plant, or operation.
    2. In addition, the director may take into account the following factors in considering a request under subdivision (a)(1) of this section:
      1. Whether strict compliance with permit terms is inappropriate because of conditions beyond the control of the person requesting the temporary variance;
      2. Whether the temporary variance request is prompted by recurrent or avoidable compliance problems;
      3. Whether a review of the operational history of the requesting facility reveals relevant information; and
      4. Whether the public interest will be served by a temporary variance.
  1. When considering any request for interim authority during the application review and permit issuance process pursuant to subdivision (a)(1)(B) of this section, the director may take into account the following factors in addition to the applicable factors of subsection (b) of this section:
    1. Whether the applicable permitting applications were timely and completely submitted;
    2. Whether there has been a delay in the final permitting action caused by conditions beyond the control of the person requesting the interim authority;
    3. Whether contractual or other business obligations will become due before a proper permit can be issued; and
    4. Whether the public interest will be served by construction or operation during the application review and permit issuance process.
  2. After a review of the applicable factors, the director may:
    1. Grant an unconditional variance or interim authority to the requesting party;
    2. Grant a conditional temporary variance or interim authority to the requesting party. Such conditions shall be designed to be protective of human health and the environment and must be clearly stated or referenced in the temporary variance or interim authority document; or
    3. Deny the request for a temporary variance or interim authority. If a denial is issued, the director shall clearly state the reason or reasons for the denial in a written response to the applicant.
    1. The director's decision to grant or deny a temporary variance or interim authority to construct or operate shall be issued within ten (10) days of receipt of the request for the temporary variance or interim authority and shall be publicly noticed in a newspaper of general circulation in the state within five (5) business days of the director's decision. The applicant shall be responsible for the expense of the publication of a decision to grant a temporary variance or interim authority. The division shall be responsible for the expense of the publication of a decision to deny a temporary variance or interim authority.
    2. A person may object to the director's decision within ten (10) business days of the notice.
    3. A temporary variance or interim authority granted by the director is contingent upon the right of any person to object.
    4. An action taken by the applicant in reliance upon the grant of a temporary variance or interim authority during the application review and permit issuance process is strictly at the applicant's own risk, and an action or expenditure by the applicant during this period does not accrue equities in the applicant's favor.
    5. The public notice requirement under this section shall not apply to the director's decision to grant an extension of a temporary variance or interim authority.
  3. The director may also for compelling reasons or good cause shown revoke or modify the conditions of a temporary variance or interim authority previously granted.
    1. An applicant that is denied a temporary variance or interim authority or that has a temporary variance or interim authority revoked or a third party that submitted timely objections during the application review and permit issuance process described in subsection (e) of this section may appeal the director's final decision to the Arkansas Pollution Control and Ecology Commission upon written request made within ten (10) days after notice of the director's decision.
      1. Unless otherwise agreed to by the party requesting review of the director's decision, an appeal under subdivision (g)(1) of this section shall be considered by the commission at the next regularly scheduled commission meeting following submission of the written request.
      2. However:
        1. The decision of the director shall remain in effect during the appeal;
        2. The commission's review shall be completed as expeditiously as possible; and
        3. A final decision shall be issued by the commission within thirty (30) days unless all parties agree to extend the review time.
        1. The commission may affirm, amend, modify, or revoke the director's final decision.
        2. An affirmation of the director's final decision shall be based on the determination by the commission that the:
          1. Director adequately considered all relevant and applicable factors under subsections (b) and (c) of this section in arriving at the final decision; and
          2. Public interest will be served by the affirmation of the director's final decision.
        3. An amendment, modification, or revocation of the director's final decision shall be based on a determination by the commission that the:
          1. Director's final decision was unduly burdensome, impractical, or unreasonable given the circumstances;
          2. Director failed to adequately consider the applicable factors under subsections (b) and (c) of this section; or
          3. Public interest will be served by the amendment, modification, or revocation of the director's final decision.
  4. A party that submits an objection to the director's decision under subdivision (e)(2) of this section and is aggrieved by a commission decision on a request for a temporary variance or interim authority may appeal as provided by applicable law.

History. Acts 1995, No. 943, § 1; 1999, No. 147, § 1; 2013, No. 1021, §§ 8-10; 2019, No. 910, §§ 2509, 2510.

Amendments. The 2013 amendment substituted “expressly prohibited by federal law” for “prohibited by preemptive federal law” in (a)(1); added (b)(1)(C); added “in considering a request under subdivision (a)(1) of this section” to the end of the introductory paragraph in (b)(2); deleted former (b)(2)(B); in (e)(1), inserted “be issued within ten (10) days of receipt of the request for the temporary variance or interim authority and shall” and substituted “in a newspaper of general circulation in the state within five (5) business days” for “within ten (10) business days”; added the ending to (g)(1), beginning with “to the Arkansas Pollution Control”; rewrote (g)(2)(A); substituted “thirty (30) days” for “sixty (60) days” in (g)(2)(B)(iii); added (g)(2)(C); and inserted “that submits an objection to the director's decision under subdivision (e)(2) of this section and is” in (h).

The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the introductory language of (a)(1) and in (a)(1)(A); and substituted “division” for “department” in (a)(2), (a)(3), and (e)(1).

8-4-231. Effectiveness of regulations, rules, or orders.

This act shall not be construed as impairing the continued effectiveness of any regulations, rules, or orders promulgated or issued by the Arkansas Pollution Control and Ecology Commission prior to March 31, 1999. Nor shall this act be construed as extinguishing or otherwise affecting the unexpired terms of any current members of the commission.

History. Acts 1997, No. 1219, § 10; 2019, No. 315, § 482.

Amendments. The 2019 amendment inserted “rules” in the section heading and in the section.

Meaning of “this act”. Acts 1997, No. 1219, is codified primarily in §§ 8-4-201 et seq., 8-4-301 et seq., and 8-5-201 et seq. For the full disposition of Acts 1997, No. 1219, see Tables Volume B.

8-4-232. Nutrient water quality trading programs — Definition.

  1. As used in this section, “nutrient” means a substance assimilated by an organism that promotes growth and replacement of cellular constituents, including without limitation nitrogen, phosphorus, and carbon.
    1. The Arkansas Pollution Control and Ecology Commission may adopt rules that specify requirements, standards, and procedures governing the establishment and implementation of nutrient water quality trading programs, including without limitation program scope, eligibility, and threshold treatment requirements.
    2. The nutrient water quality trading programs may include without limitation the following:
      1. The establishment and regulation of nutrient water quality trading exchanges;
      2. The establishment and regulation of nutrient water quality compliance associations;
      3. The authorization and regulation of nutrient water quality trading credits;
      4. The authorization and regulation of nutrient water quality offsets; and
        1. The establishment of a schedule of user fees to be collected by the Division of Environmental Quality from persons or entities applying for approval of, generating, or utilizing nutrient water quality trades or offsets to comply with permit limits.
        2. The user fees shall be based on a record calculating the reasonable costs to the division of evaluating, implementing, and enforcing each nutrient water quality trading, credit, or offset program.
  2. Under rules adopted by the commission under subsection (b) of this section, the division may:
    1. Include terms and conditions in any appropriate permit that allow the eligible permit holder to use water quality trading arrangements such as water quality trading credits and water quality offsets as a means for complying with appropriate nutrient effluent limitations or conditions contained in the permit; and
    2. Issue permits to eligible compliance associations as a means for multiple eligible permit holders to collectively satisfy their aggregate permit limits for one (1) or more appropriate nutrient water quality parameters.
  3. A nutrient water quality trading program or arrangement established under this section shall provide that a decision to participate in the nutrient water quality trading program or arrangement is a matter of voluntary choice on the part of each participant in the nutrient water quality trading program or arrangement.

History. Acts 2015, No. 335, § 2; 2019, No. 315, §§ 483, 484; 2019, No. 668, § 1; 2019, No. 910, §§ 2511, 2512.

A.C.R.C. Notes. Acts 2015, No. 335, § 1, provided: “Legislative findings and intent. The General Assembly finds that:

“(1) Water quality trading is a market-based approach to achieving water quality goals that can provide greater efficiency and cost savings by allowing one (1) source to meet its regulatory obligations by using pollutant reductions created by another source that has lower pollution control costs;

“(2) Experience in other states has demonstrated that nutrient water quality trading programs, including the use of credits, offsets, and compliance associations, can result in quicker and more efficient achievement of water quality protection goals; and

“(3) Nutrient water quality trading should be encouraged wherever appropriate and facilitated by the development of applicable regulations and permit terms.”

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” in (b)(1).

The 2019 amendment by No. 668 inserted “applying for approval of, generating, or” in (b)(2)(E)(i); and inserted “evaluating” in (b)(2)(E)(ii).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (b)(2)(E)(i); and substituted “division” for “department” in (b)(2)(E)(ii) and the introductory language of (c).

Research References

Ark. L. Rev.

Nathan R. Finch, Comment: Nutrient Water Quality Trading: A Market-Based Solution to Water Pollution in the Natural State, 69 Ark. L. Rev. 839 (2016).

8-4-233. Nutrient Water Quality Trading Advisory Panel — Creation — Members — Duties.

  1. The Nutrient Water Quality Trading Advisory Panel is created, consisting of nine (9) members as follows:
    1. One (1) member appointed by the President Pro Tempore of the Senate;
    2. One (1) member appointed by the Speaker of the House of Representatives; and
    3. Seven (7) members appointed by the Governor as follows:
      1. One (1) member to represent agricultural interests;
      2. One (1) member to represent forestry interests;
      3. One (1) member to represent municipal wastewater treatment facility interests;
      4. One (1) member to represent public drinking water supply interests;
      5. One (1) member to represent the interests of industries that hold point source wastewater discharge permits; and
      6. Two (2) members to represent the interests of environmental organizations regarding water quality.
    1. A member shall serve a term of two (2) years or until a successor is appointed.
    2. A member may serve successive terms without limitation.
    3. If a vacancy occurs, the officer who made the original appointment for that position shall appoint a person who represents the same constituency as the member being replaced.
    1. A majority of the members shall constitute a quorum for the transaction of business.
    2. Meetings may be conducted with members participating via telephonic or other electronic conferencing methods.
    1. The panel shall elect a chair and vice chair.
    2. The panel may adopt rules relating to the conduct of its meetings.
  2. Members shall serve without compensation but may be reimbursed for expenses in accordance with § 25-16-902, if funds are available.
  3. The Division of Environmental Quality shall provide meeting space and administrative services for the panel.
  4. The panel may:
    1. Advise the division and the Arkansas Natural Resources Commission regarding the desirability, design, and operation of nutrient water quality trading programs; and
    2. Advise the Arkansas Pollution Control and Ecology Commission and the Arkansas Natural Resources Commission regarding the promulgation of rules involving nutrient water quality trading programs.
  5. The Arkansas Pollution Control and Ecology Commission shall not initiate a rulemaking proceeding to adopt a rule that authorizes or governs nutrient water quality trading unless:
    1. The proposed rule has been recommended by the panel; or
    2. A copy of the proposed rule has been delivered to the panel at least sixty (60) calendar days before the date the request to initiate the rulemaking is filed with the Arkansas Pollution Control and Ecology Commission.
  6. Subsection (h) of this section does not limit the authority of the Arkansas Pollution Control and Ecology Commission to:
    1. Alter a proposed rule at any time during the rulemaking proceeding; or
    2. Initiate a rulemaking proceeding if:
      1. The members of the panel have not been appointed; or
      2. The panel lacks an actively serving quorum.

History. Acts 2015, No. 335, § 2; 2019, No. 315, §§ 485, 486; 2019, No. 910, §§ 2513, 2514.

A.C.R.C. Notes. Acts 2015, No. 335, § 1, provided: “Legislative findings and intent. The General Assembly finds that:

“(1) Water quality trading is a market-based approach to achieving water quality goals that can provide greater efficiency and cost savings by allowing one (1) source to meet its regulatory obligations by using pollutant reductions created by another source that has lower pollution control costs;

“(2) Experience in other states has demonstrated that nutrient water quality trading programs, including the use of credits, offsets, and compliance associations, can result in quicker and more efficient achievement of water quality protection goals; and

“(3) Nutrient water quality trading should be encouraged wherever appropriate and facilitated by the development of applicable regulations and permit terms.”

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” in (g)(2); and substituted “rule” for “regulation” throughout (h), and in (i)(1).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (f); and substituted “division” for “department” in (g)(1).

Research References

Ark. L. Rev.

Nathan R. Finch, Comment: Nutrient Water Quality Trading: A Market-Based Solution to Water Pollution in the Natural State, 69 Ark. L. Rev. 839 (2016).

8-4-234. Short-term activity authorization.

    1. The Director of the Division of Environmental Quality may authorize short-term activities that have potential to affect compliance with Arkansas water quality standards if:
      1. The short-term activity is essential to the protection or promotion of the public interest; and
      2. No permanent or long-term impairment of beneficial uses is likely to result from the short-term activity.
    2. Short-term activities eligible for authorization include without limitation:
      1. Wastewater treatment facility maintenance;
      2. Fish eradication projects;
      3. Mosquito abatement projects;
      4. Algae and weed control projects;
      5. Dredge and fill projects;
      6. Construction activities; or
      7. Activities that result in overall enhancement or maintenance of beneficial uses.
    1. The Division of Environmental Quality may collect a short-term activity authorization fee.
    2. The short-term activity authorization fee shall not exceed two hundred dollars ($200) for each stream crossing, in-stream activity, or other eligible activity under subdivision (a)(2) of this section at each site identified in the application.
    3. The Arkansas Pollution Control and Ecology Commission may establish a fee schedule for short-term activity authorization fees imposed on a state agency, board, or commission or municipality, city, or county for a short-term activity not covered under subsection (c) of this section to include without limitation:
      1. Routine maintenance; or
      2. Road construction.
      1. The division shall enter into an agreement with a state agency, board, or commission or municipality, city, or county that creates an alternative payment structure in lieu of short-term activity authorization fees authorized under subdivision (b)(2) of this section.
      2. An agreement entered into under subdivision (b)(4)(A) of this section shall include:
        1. A provision regarding waiver of short-term activity authorization fees under this section; and
        2. A process under which the division provides notice to the state agency, board, or commission or municipality, city, or county of planned actions under this section that affect the state agency, board, or commission or municipality, city, or county.
    4. The division shall waive twenty-five percent (25%) of a short-term activity authorization fee assessed under this section to a state agency, board, or commission or municipality, city, or county in a fiscal year.
    1. At the request of a state agency, board, or commission or municipality, city, or county, the director shall waive the short-term activity authorization fee under subsection (b) of this section to facilitate emergency activity limited to the following:
      1. Storm debris removal necessary to prevent damage to a bridge, road, or other structure;
      2. Emergency bridge maintenance or repair; or
      3. Emergency road maintenance or repair.
    2. A state agency, board, or commission or municipality, city, or county that submits a request for a waiver of the short-term activity authorization fee under subdivision (c)(1) of this section shall provide the division:
      1. Notice by phone or email before commencing any in-stream activity;
      2. A written request for waiver of the short-term activity authorization fee that includes:
        1. A request that the short-term activity fee be waived; and
        2. A statement that describes the emergency conditions that require the short-term activity; and
      3. Written notice of completion, including detailed information concerning all in-stream activity.
  1. The director shall determine the necessary conditions for the authorization under this section.
  2. This section does not supersede existing state or federal permitting processes or requirements.
  3. The Arkansas Pollution Control and Ecology Commission may promulgate rules for the administration of this section.

History. Acts 2017, No. 585, § 1; 2019, No. 315, § 487; 2019, No. 693, § 7; 2019, No. 910, §§ 2515-2520.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” in (f).

The 2019 amendment by No. 693, in (b)(1), deleted “processing fee for a” preceding “short-term” and added “fee”; and inserted “short-term activity authorization” in (4)(A), (4)(B)(i), and (5).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the introductory language of (a) and in (b)(1); and substituted “division” for “department” throughout (b) and in the introductory language of (c)(2).

Subchapter 3 — Air Pollution

Publisher's Notes. Acts 1965, No. 183, § 7, provided in part that Acts 1949, No. 472 was amended by adding a new “Part 2, Air Pollution” (subchapter 3 of this chapter).

Acts 1997, No. 1219, § 1, provided: “Legislative intent. With Act 1230 of 1991, the General Assembly sought to delineate the respective responsibilities of the Arkansas Pollution Control and Ecology Commission and the Arkansas Department of Pollution Control & Ecology. Confusion on these issues in the public's perception continues, however, primarily because of the similarity in the names of these entities. The purpose of this Act is to achieve the legislative intent of Act 1230 of 1991 and to definitively assign the executive, adjudicatory, and rulemaking roles for the State's regulatory functions concerning protection of the environment.”

Cross References. Permit fees for air, water, and solid waste pollution control activities, § 8-1-101 et seq.

Effective Dates. Acts 1949, No. 472, § 12: approved Mar. 29, 1949. Emergency clause provided: “Whereas, the pollution of the waters and the streams in the State of Arkansas from sewage, industrial waste, garbage, municipal refuse, and many other sources has created and is creating a hazard and danger to the public health of the people of the State of Arkansas, and is endangering the fish and other wildlife of the State of Arkansas; and, whereas, improper and inadequate sewer systems and disposal plants and treatment works cannot be adequately inspected, checked, and supervised under existing laws; and, whereas, present laws to prevent the pollution of the streams and to protect the health and general welfare of the people are inadequate and there are overlapping authorities as to control and regulations; and whereas, the continuance of such conditions presents an immediate and continuing threat and hazard to the public peace, health, and safety, therefore an emergency is hereby declared to exist and this act shall take effect and be in force from and after its passage.”

Acts 1965, No. 183, § 8: Mar. 10, 1965. Emergency clause provided: “Whereas, the pollution of the air resources of the State of Arkansas by air contaminants can create serious hazards to the public health and welfare of the people; and, whereas, it is the public policy of the state to maintain such a reasonable degree of purity of the air to the end that the least possible injury shall be done to human, plant, or animal life or to property, and to maintain public enjoyment of the state's natural resources, consistent with the economic and industrial well-being of the state; and, whereas, existing laws to prevent, control, and abate air pollution are inadequate to protect the health and general welfare of the people; now, therefore, an emergency is hereby declared to exist and this act shall be in full force and effect from the date of its approval.”

Acts 1995, No. 943, § 6: Apr. 5, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly that, in order to avoid the needless disruption of business in this state, the director of the Department of Pollution Control and Ecology should be given authority to grant temporary variances and interim authority to construct or operate regulated activities. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1997, No. 179, § 38: Feb. 17, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 10 of the First Extraordinary Session of 1995 abolished the Joint Interim Committee on Public Health, Welfare, and Labor and in its place established the House Interim Committee and Senate Interim Committee on Public Health, Welfare, and Labor; that various sections of the Arkansas Code refer to the Joint Interim Committee on Public Health, Welfare, and Labor and should be corrected to refer to the House and Senate Interim Committees on Public Health, Welfare, and Labor; that this act so provides; and that this act should go into effect immediately in order to make the laws compatible as soon as possible. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1997, No. 250, § 258: Feb. 24, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 1211 of 1995 established the procedure for all state boards and commissions to follow regarding reimbursement of expenses and stipends for board members; that this act amends various sections of the Arkansas Code which are in conflict with the Act 1211 of 1995; and that until this cleanup act becomes effective conflicting laws will exist. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2013, No. 1302, § 6: Apr. 18, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the current policy of the Arkansas Department of Environmental Quality of implementing the National Ambient Air Quality Standards through stationary source permitting is more stringent than the practices of other states in the region, thereby discouraging the expenditure of capital improvement funds for economic development and environmental improvement projects within the State of Arkansas; and that this act is immediately necessary to align the policies for implementation of National Ambient Air Quality Standards and the development of state implementation plans to those of the federal government and other states. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

ALR.

Recovery for injury to land caused by airborne pollutants. 2 A.L.R.4th 1054.

Statute of limitations as to cause of action for nuisance based on air pollution. 19 A.L.R.4th 456.

Am. Jur. 61B Am. Jur. 2d, Pollution Control, § 146 et seq.

C.J.S. 39A C.J.S., Health & Env., §§ 154-155.

8-4-301. Legislative intent.

  1. In the interest of the public health and welfare of the people, it is declared to be the public policy of the State of Arkansas to maintain such a reasonable degree of purity of the air resources of the state to the end that the least possible injury should be done to human, plant, or animal life or to property and to maintain public enjoyment of the state's natural resources, consistent with the economic and industrial well-being of the state.
  2. The program for the control of air pollution under this chapter shall be undertaken in a progressive manner, and each of its successive objectives shall be sought to be accomplished by a maximum of cooperation and conciliation among all the parties concerned.

History. Acts 1949, No. 472, [Part 2], § 1, as added by Acts 1965, No. 183, § 7; A.S.A. 1947, § 82-1931.

Research References

Ark. L. Rev.

Wright & Henry, The Arkansas Air Pollution Control Program: Past, Present and Future. 51 Ark. L. Rev. 227.

Case Notes

Cited: Enviroclean, Inc. v. Ark. Pollution Control & Ecology Comm'n, 314 Ark. 98, 858 S.W.2d 116 (1993).

8-4-302. Purpose.

It is the purpose of this subchapter to safeguard the air resources of the state by controlling or abating air pollution that exists when this subchapter takes effect and preventing new air pollution under a program which shall be consistent with the declaration of policy stated in § 8-4-301 and with this subchapter.

History. Acts 1949, No. 472, [Part 2], § 2, as added by Acts 1965, No. 183, § 7; A.S.A. 1947, § 82-1932.

8-4-303. Definitions.

As used in this subchapter:

  1. “Air-cleaning device” means any method, process, or equipment which removes, reduces, or renders less noxious air contaminants discharged into the atmosphere;
  2. “Air contaminant” means any solid, liquid, gas, or vapor or any combination thereof;
  3. “Air contamination” means the presence in the outdoor atmosphere of one (1) or more air contaminants that contribute to a condition of air pollution;
  4. “Air contamination source” means any source at, from, or by reason of which there is emitted into the atmosphere any air contaminant, regardless of who owns or operates the building, premises, or other property in, at, or on which such source is located or the facility, equipment, or other property by which the emission is caused or from which the emission comes;
  5. “Air pollution” means the presence in the outdoor atmosphere of one (1) or more air contaminants in quantities, of characteristics, and of a duration that are materially injurious or can be reasonably expected to become materially injurious to human, plant, or animal life or to property, or that unreasonably interfere with enjoyment of life or use of property throughout the state or throughout the area of the state as shall be affected thereby;
  6. “Area of the state” means any city or county, or portion thereof, or other substantial geographical area of the state as may be designated by the Arkansas Pollution Control and Ecology Commission;
  7. “Commission” means the Arkansas Pollution Control and Ecology Commission;
  8. [Repealed.]
  9. [Repealed.]
  10. “Major source construction” means the construction of a new major stationary source or a major modification of an existing major stationary source as the terms “major stationary source” and “major modification” are defined in 40 C.F.R. § 51.165, if applicable, or 40 C.F.R. § 51.166, as they existed on July 1, 2012;
  11. “NAAQS state implementation plan” means a state implementation plan that specifies measures to be used in the implementation of the state's duties under 42 U.S.C. § 7410, for the attainment and maintenance of a specified National Ambient Air Quality Standard;
  12. “National Ambient Air Quality Standard” or “NAAQS” means a national primary or secondary ambient air quality standard established under Title I of the Clean Air Act, 42 U.S.C. § 7401 et seq., and 40 C.F.R. Part 50;
  13. “Person” means any individual, partnership, firm, company, public or private corporation, association, joint-stock company, trust, estate, political subdivision, or any agency, board, department, or bureau of the state, or any other legal entity whatever that is recognized by law as the subject of rights and duties; and
  14. “State implementation plan” means a plan that specifies measures to be used in the implementation of the state's duties under the Clean Air Act, 42 U.S.C. § 7401 et seq., and that is developed by the division and submitted to the United States Environmental Protection Agency for review and approval.

History. Acts 1949, No. 472, [Part 2], § 3, as added by Acts 1965, No. 183, § 7; A.S.A. 1947, § 82-1933; Acts 1997, No. 1219, § 6; 1999, No. 1164, § 30; 2013, No. 1302, § 1; 2017, No. 455, § 1; 2019, No. 910, §§ 2521, 2522.

Amendments. The 2013 amendment added present (10) through (12) and (14).

The 2017 amendment substituted “duties under 42 U.S.C. § 7410” for “duties under the Clean Air Act, 42 U.S.C. § 7401 et seq.” in (11).

The 2019 amendment repealed (8) and (9); and substituted “division” for “department” in (14).

Case Notes

Air Pollution.

Pursuant to § 8-4-229(c), the organizations failed to meet their burden of showing that the Arkansas Pollution Control and Ecology Commission's decision affirming the issuance of air and hazardous-waste permits for the construction of a facility to dispose of chemical weapons was erroneous because they failed to show that the issuance of the permits for the facility would cause air pollution, as defined in this section; thus, the Commission's decision to issue the permits was supported by substantial evidence and was proper. Pine Bluff for Safe Disposal v. Ark. Pollution Control & Ecology Comm'n, 354 Ark. 563, 127 S.W.3d 509 (2003).

Cited: Bryant v. Mathis, 310 Ark. 737, 839 S.W.2d 528 (1992).

8-4-304. Applicability of water pollution provisions.

All provisions of §§ 8-4-101 et seq. and 8-4-201 et seq. relating to water pollution shall apply to this subchapter unless manifestly inconsistent therewith, including, but not limited to, the provisions of §§ 8-4-205, 8-4-2128-4-214, and 8-4-2188-4-229 relating to hearings before the Arkansas Pollution Control and Ecology Commission, notice, right to appeal, and procedure, and § 8-4-230 relating to variances and interim authority.

History. Acts 1949, No. 472, [Part 2], § 10, as added by Acts 1965, No. 183, § 7; A.S.A. 1947, § 82-1940; Acts 1995, No. 943, § 2.

Case Notes

In General.

As the agency charged with administering the Water and Air Pollution Control Act, the Arkansas Pollution Control and Ecology Commission is given authority to issue, modify, and revoke permits regulating the emission of air pollutants under § 8-4-203 and this section. Enviroclean, Inc. v. Ark. Pollution Control & Ecology Comm'n, 314 Ark. 98, 858 S.W.2d 116 (1993).

8-4-305. Exceptions.

The provisions of this subchapter do not apply to:

  1. Agricultural operations in the growing or harvesting of crops and the raising of fowl or animals;
  2. Use of equipment in agricultural operations in the growing of crops or the raising of fowl or animals;
  3. Barbecue equipment or outdoor fireplaces used in connection with any residence;
  4. Land clearing operations or land grading;
  5. Road construction operations and the use of mobile and portable equipment and machinery incident thereto;
  6. Incinerators and heating equipment in or used in connection with residences used exclusively as dwellings for not more than four (4) families;
  7. Fires set or permitted by any public officer, board, council, or commission when the fire is set or permission to burn is given in the performance of the duty of the public officer, board, council, or commission for the purpose of weed abatement, the prevention or elimination of a fire hazard, or the instruction of employees in the methods of fire fighting, which is necessary in the opinion of the public officer, board, council, or commission, or from fires set pursuant to permit for the purpose of instruction of employees of private industrial concerns in methods of fire fighting, or for civil defense instruction; or
    1. Unless prohibited by municipal or county ordinance, open fires used at a construction site only for the purpose of warming persons on the site during cold weather.
    2. Such fires:
      1. Shall be fueled only by wood or wood products;
      2. Must be controlled to the extent necessary to prevent a fire hazard or local nuisance; and
        1. Must be confined within a container made of nonflammable material.
        2. The container shall not exceed thirty inches (30") in width and thirty inches (30") in length.

History. Acts 1949, No. 472, [Part 2], § 4, as added by Acts 1965, No. 183, § 7; A.S.A. 1947, § 82-1934; Acts 1997, No. 259, § 1; 2019, No. 693, § 8.

Amendments. The 2019 amendment substituted “public officer, board, council, or commission” for “officer” twice in (7).

Case Notes

Growing or Harvesting of Crops.

The chancellor did not err in not finding the lumber company exempt under this section since the milling operation was not the “growing or harvesting of crops.” J.W. Black Lumber Co. v. Ark. Dep't of Pollution Control & Ecology, 290 Ark. 170, 717 S.W.2d 807 (1986).

8-4-306. Political subdivisions preempted — Exception.

  1. In order to avoid conflicting and overlapping jurisdiction, it is the intention of this chapter to occupy, by preemption, the field of control and abatement of air pollution and contamination and no political subdivision of this state shall enact or enforce laws, ordinances, resolutions, rules, or regulations in this field.
  2. Notwithstanding subsection (a) of this section, any political subdivision of this state may enact and enforce laws, ordinances, resolutions, rules, or regulations for the purpose of prohibiting burning in the open or in a receptacle having no means for significantly controlling the fuel/air ratio.
  3. Nothing in this chapter shall be construed to prevent private actions under existing laws.

History. Acts 1949, No. 472, [Part 2], § 12, as added by Acts 1965, No. 183, § 7; A.S.A. 1947, § 82-1941; Acts 1989, No. 765, § 1.

Research References

ALR.

Preemption by Clean Air Act of State Common-Law Claims, 18 A.L.R.7th Art. 5 (2018).

8-4-307. Private rights unchanged.

  1. Persons other than the state or the Division of Environmental Quality shall not acquire actionable right by virtue of this subchapter. The basis for proceedings that result from violation of any standard or rule promulgated by the Arkansas Pollution Control and Ecology Commission shall inure solely to and shall be for the benefit of the people of the state generally, and it is not intended to create in any way new rights or to enlarge existing rights or to abrogate existing private rights.
  2. A determination by the division that air pollution or air contamination exists or that any standard or rule has been violated, whether or not a proceeding or action is brought by the state, shall not create, by reason thereof, any presumption of law or finding of fact that shall inure to or be for the benefit of any person other than the state.

History. Acts 1949, No. 472, [Part 2], § 14, as added by Acts 1965, No. 183, § 7; A.S.A. 1947, § 82-1943; Acts 1997, No. 1219, § 6; 2019, No. 315, § 488; 2019, No. 910, § 2523.

Amendments. The 2019 amendment by No. 315 substituted “or rule” for “rule or regulation” in (a) and (b).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a); and substituted “division” for “department” in (b).

8-4-308. Industrial secrets confidential.

      1. Any information that constitutes a trade secret under § 4-75-601 et seq. that is obtained by the employees of the Department of Energy and Environment, the Division of Environmental Quality, or the Arkansas Pollution Control and Ecology Commission in the administration of this chapter shall be kept confidential, except for emission data that is submitted to the state, local agency, or the United States Environmental Protection Agency, which is otherwise obtained by any of those agencies pursuant to the Clean Air Act.
      2. Only such emission data is to be publicly available.
      1. The manner and rate of operation of the source, if such information is a trade secret, shall be kept confidential.
      2. Provided, that the identity, amount, frequency, and concentration of the emissions is publicly available.
  1. Any violation of this section is a misdemeanor punishable under § 8-4-103.

History. Acts 1949, No. 472, [Part 2], § 7, as added by Acts 1965, No. 183, § 7; 1983, No. 657, § 1; 1985, No. 763, § 1; A.S.A. 1947, § 82-1937; Acts 1995, No. 907, § 1; 1997, No. 1219, § 6; 2019, No. 693, § 9; 2019, No. 910, § 2524.

Amendments. The 2019 amendment by No. 693 substituted “is a misdemeanor punishable under § 8-4-103” for “shall be unlawful and constitutes a misdemeanor” in (b).

The 2019 amendment by No. 910, in (a)(1)(A), substituted “employees of the Department of Energy and Environment, the Division of Environmental Quality” for “Arkansas Department of Environmental Quality”, and deleted “or its employees” following “Arkansas Pollution Control and Ecology Commission”.

U.S. Code. The Clean Air Act, referred to in this section, is codified primarily as 42 U.S.C. § 7401 et seq.

Cross References. Misdemeanors, § 5-1-107.

Research References

Ark. L. Rev.

Watkins, Access to Public Records under the Arkansas Freedom of Information Act, 37 Ark. L. Rev. 741.

8-4-309. Construction limited — Exception.

  1. Nothing contained in this subchapter shall be construed as amending or repealing § 20-21-201 et seq. concerning the control of radiation or as granting to the Division of Environmental Quality or the Arkansas Pollution Control and Ecology Commission any jurisdiction or authority with respect to air conditions existing solely within the property boundaries of any plant, works, or shop or with respect to employer-employee relationships as to health and safety hazards.
  2. Notwithstanding the preceding limitation, the division and the commission shall have jurisdiction and authority over air conditions associated with the removal, encapsulation, enclosure, transportation, or disposal of asbestos-containing material regardless of whether such removal, encapsulation, enclosure, transportation, or disposal is conducted within the property boundaries of any plant, works, or shop.

History. Acts 1949, No. 472, [Part 2], § 13, as added by Acts 1965, No. 183, § 7; A.S.A. 1947, § 82-1942; Acts 1989, No. 559, § 1; 1997, No. 1219, § 6; 2019, No. 910, § 2525.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a); and substituted “division” for “department” in (b).

8-4-310. Unlawful actions.

  1. It is a misdemeanor punishable under § 8-4-103:
    1. To knowingly cause air pollution as defined in § 8-4-303;
    2. To construct, install, use, or operate any source capable of emitting air contaminants without having first obtained a permit to do so, if required by rule of the Arkansas Pollution Control and Ecology Commission, or to do so contrary to the provisions of any permit issued by the Division of Environmental Quality or after any such permit has been suspended or revoked; or
    3. To violate any rule or order of the commission issued pursuant to this chapter.
  2. The liabilities imposed for violation of subdivisions (a)(1)-(3) of this section or any other provision of this chapter shall not apply with respect to any unintended violation caused by war, strike, riot, or other catastrophe, or accidental breakdown of equipment if promptly repaired.

History. Acts 1949, No. 472, [Part 2], § 8, as added by Acts 1965, No. 183, § 7; A.S.A. 1947, § 82-1938; Acts 1997, No. 1219, § 6; 2019, No. 315, § 489; 2019, No. 693, § 10; 2019, No. 910, § 2526.

Amendments. The 2019 amendment by No. 315 substituted “rule” for “the regulations” in (a)(2); and deleted “regulation” following “rule” in (a)(3).

The 2019 amendment by No. 693 substituted “is a misdemeanor punishable under § 8-4-103” for “shall be unlawful and constitute a misdemeanor” in the introductory language of (a).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(2).

Cross References. Misdemeanors, § 5-1-107.

Case Notes

Violation.

Where a corporation with an incinerator permit transferred all of its stock to a second corporation, there was substantial evidence to support the Arkansas Pollution Control and Ecology Commission's conclusion that the first corporation thereby transferred its permitted facility to the second corporation, a transfer prohibited by the permit. Enviroclean, Inc. v. Ark. Pollution Control & Ecology Comm'n, 314 Ark. 98, 858 S.W.2d 116 (1993).

8-4-311. Powers generally.

  1. The Division of Environmental Quality or its successor shall have the power to:
    1. Develop and effectuate a comprehensive program for the prevention and control of all sources of pollution of the air of this state;
    2. Advise, consult, and cooperate with other agencies of the state, political subdivisions, industries, other states, the United States Government, and with affected groups in the furtherance of the purposes of this subchapter;
    3. Encourage and conduct studies, investigations, and research relating to air pollution and its causes, prevention, control, and abatement as it may deem advisable and necessary;
    4. Collect and disseminate information relative to air pollution and its prevention and control;
    5. Consider complaints and make investigations;
    6. Encourage voluntary cooperation by the people, municipalities, counties, industries, and others in preserving and restoring the purity of the air within the state;
    7. Administer and enforce all laws and rules relating to pollution of the air;
    8. Represent the state in all matters pertaining to plans, procedures, or negotiations for interstate compacts in relation to air pollution control;
      1. Cooperate with and receive moneys from the United States Government or any other source for the study and control of air pollution.
      2. The division is designated as the official state air pollution control agency for such purposes;
    9. Make, issue, modify, revoke, and enforce orders prohibiting, controlling, or abating air pollution, and requiring the adoption of remedial measures to prevent, control, or abate air pollution;
    10. Institute court proceedings to compel compliance with the provisions of this chapter and rules and orders issued pursuant to this chapter;
    11. Exercise all of the powers in the control of air pollution granted to the division for the control of water pollution under §§ 8-4-101 — 8-4-106 and 8-4-201 — 8-4-229; and
    12. Develop and implement state implementation plans provided that the Arkansas Pollution Control and Ecology Commission shall retain all powers and duties regarding promulgation of rules under this chapter.
  2. The commission shall have the power to:
      1. Promulgate rules for implementing the substantive statutes charged to the division for administration.
      2. In promulgation of such rules, prior to the submittal to public comment and review of any rule or change to any rule that is more stringent than federal requirements, the commission shall duly consider the economic impact and the environmental benefit of such rule on the people of the State of Arkansas, including those entities that will be subject to the rule.
      3. The commission shall promptly initiate rulemaking to further implement the analysis required under subdivision (b)(1)(B) of this section.
      4. The extent of the analysis required under subdivision (b)(1)(B) of this section shall be defined in the commission's rulemaking required under subdivision (b)(1)(C) of this section. It will include a written report that shall be available for public review along with the proposed rule in the public comment period.
      5. Upon completion of the public comment period, the commission shall compile a rulemaking record or response to comments demonstrating a reasoned evaluation of the relative impact and benefits of the more stringent rule;
    1. Promulgate rules and procedures not otherwise governed by applicable law that the commission deems necessary to secure public participation in environmental decision-making processes;
    2. Promulgate rules governing administrative procedures for challenging or contesting division actions;
    3. In the case of permitting or grants decisions, provide the right to appeal a permitting or grants decision rendered by the Director of the Division of Environmental Quality or his or her delegatee;
    4. In the case of an administrative enforcement or emergency action, provide the right to contest any such action initiated by the director;
    5. Instruct the director to prepare such reports or perform such studies as will advance the cause of environmental protection in the state;
    6. Make recommendations to the director regarding overall policy and administration of the division, provided, however, that the director shall always remain within the plenary authority of the Governor and the Secretary of the Department of Energy and Environment;
    7. Upon a majority vote, initiate review of any director's decision;
    8. Adopt, after notice and public hearing, reasonable and nondiscriminatory rules requiring the registration of and the filing of reports by persons engaged in operations that may result in air pollution;
      1. Adopt, after notice and public hearing, reasonable and nondiscriminatory rules, including requiring a permit or other regulatory authorization from the division, before any equipment causing the issuance of air contaminants may be built, erected, altered, replaced, used, or operated, except in the case of repairs or maintenance of equipment for which a permit has been previously used, and revoke or modify any permit issued under this chapter or deny any permit when it is necessary, in the opinion of the division, to prevent, control, or abate air pollution.
      2. A permit shall be issued for the operation or use of any equipment or any facility in existence upon the effective date of any rule requiring a permit if proper application is made for the permit.
      3. No such permit shall be modified or revoked without prior notice and hearing as provided in this section.
      4. Any person that is denied a permit by the division or that has such permit revoked or modified shall be afforded an opportunity for a hearing in connection therewith upon written application made within thirty (30) days after service of notice of such denial, revocation, or modification.
      5. The operation of any existing equipment or facility for which a proper permit application has been made shall not be interrupted pending final action thereon.
        1. An applicant or permit holder that has had a complete application for a permit or for a modification of a permit pending longer than the time specified in the state rules promulgated pursuant to Title V of the Clean Air Act Amendments of 1990, 42 U.S.C. § 7661 et seq., or any person that participated in the public participation process, and any other person that could obtain judicial review of such actions under state laws, may petition the commission for relief from division inaction.
        2. The commission will either deny or grant the petition within forty-five (45) days of its submittal.
        3. For the purposes of judicial review, either a commission denial or the failure of the division to render a final decision within thirty (30) days after the commission has granted a petition shall constitute final agency action;
      1. Establish through its rulemaking authority, either alone or in conjunction with the appropriate state or local agencies, a system for the banking and trading of air emissions designed to maintain both the state's attainment status with the national ambient air quality standards mandated by the Clean Air Act and the overall air quality of the state.
      2. The commission may consider differential valuation of emission credits as necessary to achieve primary and secondary national ambient air quality standards, and may consider establishing credits for air pollutants other than those designated as criteria air pollutants by the United States Environmental Protection Agency.
      3. Any rule proposed pursuant to this authorization shall be reported to the House Committee on Public Health, Welfare, and Labor and the Senate Committee on Public Health, Welfare, and Labor or appropriate subcommittees of the House Committee on Public Health, Welfare, and Labor and the Senate Committee on Public Health, Welfare, and Labor prior to its final promulgation; and
    9. In the case of a state implementation plan, provide the right to appeal a final decision rendered by the director or his or her delegate under § 8-4-317.

History. Acts 1949, No. 472, [Part 2], § 5, as added by Acts 1965, No. 183, § 7; A.S.A. 1947, § 82-1935; Acts 1993, No. 994, § 1; 1995, No. 895, § 4; 1997, No. 179, § 1; 1997, No. 1219, § 6; 1999, No. 1164, § 31; 2013, No. 1302, §§ 2, 3; 2019, No. 315, §§ 490-499; 2019, No. 910, §§ 2527-2536.

Amendments. The 2013 amendment added (a)(13) and (b)(12).

The 2019 amendment by No. 315 substituted “rules” for “regulations” in (a)(7); deleted “regulations” following “rules” in (a)(11); and made similar changes throughout the section.

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the introductory language of (a) and in (b)(4); substituted “division” for “department” throughout the section; and added “and the Secretary of the Department of Energy and Environment” in (b)(7).

U.S. Code. The Clean Air Act referred to in this section is codified primarily as 42 U.S.C. § 7401 et seq.

Research References

Ark. L. Rev.

Watkins, Open Meetings Under the Arkansas Freedom of Information Act, 38 Ark. L. Rev. 268.

Case Notes

Cited: United States v. Vertac Chem. Corp., 489 F. Supp. 870 (E.D. Ark. 1980).

8-4-312. Factors in exercise of powers.

In exercising their powers and responsibilities under this chapter, the Division of Environmental Quality and the Arkansas Pollution Control and Ecology Commission shall take into account and give consideration to the following factors:

  1. The quantity and characteristics of air contaminants and the duration of their presence in the atmosphere that may cause air pollution in a particular area of the state;
  2. Existing physical conditions and topography;
  3. Prevailing wind directions and velocities;
  4. Temperatures and temperature-inversion periods, humidity, and other atmospheric conditions;
  5. Possible chemical reactions between air contaminants or between such air contaminants and air gases, moisture, or sunlight;
  6. The predominant character of development of the area of the state such as residential, highly developed industrial, commercial, or other characteristics;
  7. Availability of air-cleaning devices;
  8. Economic feasibility of air-cleaning devices;
  9. Effect on normal human health of particular air contaminants;
  10. Effect on efficiency of industrial operation resulting from use of air-cleaning devices;
  11. The extent of danger to property in the area reasonably to be expected from any particular air contaminant;
  12. Interference with reasonable enjoyment of life by persons in the area and conduct of established enterprises that can reasonably be expected from air contaminants;
  13. The volume of air contaminants emitted from a particular class of air contamination sources;
  14. The economic and industrial development of the state and the social and economic value of the air contamination sources;
  15. The maintenance of public enjoyment of the state's natural resources; and
  16. Other factors that the division or the commission may find applicable.

History. Acts 1949, No. 472, [Part 2], § 6, as added by Acts 1965, No. 183, § 7; A.S.A. 1947, § 82-1936; Acts 1997, No. 1219, § 6; 2019, No. 910, §§ 2537, 2538.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the introductory language; and substituted “division” for “department” in (16).

Case Notes

Applicability.

The Arkansas Pollution Control and Ecology Commission is under a mandate to consider the factors set out in this section in adopting its rules and regulations, but there is nothing in the Water and Air Pollution Control Act suggesting the legislature intended these factors to be applied in each specific instance; instead, these factors were intended to have a general application, to apply to classes, rather than to individual cases. J.W. Black Lumber Co. v. Ark. Dep't of Pollution Control & Ecology, 290 Ark. 170, 717 S.W.2d 807 (1986).

8-4-313. Variance from rules or general orders.

    1. The Arkansas Pollution Control and Ecology Commission may grant specific variances from the particular requirements of any rule or general order to such specific persons or class of persons or such specific air contamination source, upon such conditions as it may deem necessary to protect the public health and welfare, if it finds that strict compliance with the rule or general order is inappropriate because of conditions beyond the control of the person granted the variance or because of special circumstances that would render strict compliance unreasonable, unduly burdensome, or impractical due to special physical conditions or causes or because strict compliance would result in substantial curtailment or closing down of a business, plant, or operation or because no alternative facility or method of handling is yet available.
    2. Variances may be limited in time.
    3. In determining whether or not a variance shall be granted, the commission shall weigh the equities involved and the relative advantages and disadvantages to the residents and the occupation and activity affected.
    1. Any person seeking a variance shall do so by filing a petition for a variance with the Director of the Division of Environmental Quality.
      1. The director shall promptly investigate the petition and make a recommendation to the commission as to the disposition thereof.
        1. If the recommendation is against the granting of the variance, a hearing shall be held thereon after not less than ten (10) days, prior to notice to the petitioner.
        2. If the recommendation of the director is for the granting of a variance, the commission may do so without a hearing. However, upon the petition of any person aggrieved by the granting of a variance, a public hearing shall be held.
    1. A variance granted may be revoked or modified by the commission after a public hearing held upon not less than ten (10) days' prior notice.
    2. The notice shall be served upon all persons known to the commission that will be subjected to greater restrictions if the variance is revoked or modified, that are likely to be affected, or that have filed with the commission a written request for such notification.

History. Acts 1949, No. 472, [Part 2], § 9, as added by Acts 1965, No. 183, § 7; A.S.A. 1947, § 82-1939; Acts 1997, No. 1219, § 6; 2019, No. 315, § 500; 2019, No. 910, § 2539.

Amendments. The 2019 amendment by No. 315 deleted “regulation” following “rule” twice in (a)(1).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (b)(1).

Case Notes

Cited: Ark. Comm'n of Pollution Control & Ecology v. Husky Indus., Inc., 293 Ark. 249, 737 S.W.2d 157 (1987).

8-4-314. Compliance Advisory Panel — Small Business Stationary Source Technical and Environmental Compliance Assistance Program — Marketing Recyclables Program.

  1. There is created a Compliance Advisory Panel composed of nine (9) individuals.
  2. The panel shall consist of:
    1. Two (2) members appointed by the Governor to represent the general public who are not:
      1. Owners or representatives of owners of small business stationary sources; or
      2. Owners or representatives of owners of a recycling company or the marketing and recyclable community;
    2. Three (3) members selected by the Speaker of the House of Representatives:
      1. One (1) member who is an owner or who represents an owner of small business stationary sources; and
      2. Two (2) members who are owners or representatives of a small business recycling company or the marketing and recyclable community;
    3. Three (3) members selected by the President Pro Tempore of the Senate:
      1. One (1) member who is an owner or who represents an owner of small business stationary sources; and
      2. Two (2) members who are owners or representatives of a small business recycling company or the marketing and recyclable community; and
    4. One (1) member selected by the Director of the Division of Environmental Quality who shall serve as a nonvoting member except when his or her vote is needed to break a tie vote.
    1. Each member shall serve a term of four (4) years.
    2. In the event of a vacancy in the membership of the panel concerning a member selected by the General Assembly or the Governor, the Governor shall appoint a person meeting the applicable eligibility requirements of the vacated position to fill the vacancy for the remainder of the unexpired term.
    3. In the event of a vacancy in the membership of the panel concerning the member appointed by the director, the director shall appoint a person to fill the vacancy for the remainder of the unexpired term.
      1. The panel shall hold at least one (1) regular meeting each calendar year quarter at a time and place determined by the panel.
      2. At least one (1) meeting each calendar year shall be dedicated to small business stationary sources, with an emphasis on air quality issues.
    1. Special meetings may be called at the discretion of the chair.
    1. The panel shall select a chair by a majority vote of the membership.
    2. Each chair shall serve a term of one (1) year.
  3. Five (5) members of the panel shall constitute a quorum to transact business.
  4. The members of the panel may receive expense reimbursement in accordance with § 25-16-901 et seq.
    1. If a vacancy occurs in an appointed position for any reason, the vacancy shall be filled by appointment by the official who made the appointment.
    2. The new appointee shall serve for the remainder of the unexpired term.
  5. The panel shall perform the following duties for the Small Business Stationary Source Technical and Environmental Compliance Assistance Program:
    1. Render advisory opinions concerning the effectiveness of the Small Business Stationary Source Technical and Environmental Compliance Assistance Program, difficulties encountered, and degree and severity of enforcement;
    2. Make periodic reports to the Administrator of the United States Environmental Protection Agency concerning the compliance of the Small Business Stationary Source Technical and Environmental Compliance Assistance Program with the requirements of the Paperwork Reduction Act of 1980, the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq., and the Equal Access to Justice Act, 5 U.S.C. § 504, 28 U.S.C. § 2412, and 42 U.S.C. § 1988;
    3. Review information for small business stationary sources to assure such information is understandable by the layperson; and
    4. Have the Small Business Stationary Source Technical and Environmental Compliance Assistance Program serve as the secretariat for the development and dissemination of such reports and advisory opinions.
  6. The panel shall perform the following duties for the Marketing Recyclables Program:
    1. Develop a program for the coordination of all existing marketing programs for recyclables;
    2. Work with existing industry to encourage the use of recyclables in their manufacturing processes;
    3. Recruit new industries that use recyclables in their manufacturing processes;
    4. Maintain current information on market prices and trends; and
    5. Advise and assist state and local officials in all areas of recyclables marketing, including without limitation the implementation, administration, and funding of the collection and recycling or collection and disposal of extra-large tires as defined in § 8-9-402.

History. Acts 1993, No. 242, § 2; 1993, No. 251, § 2; 1997, No. 250, § 45; 1999, No. 1164, §§ 32, 33; 2001, No. 1288, § 2; 2017, No. 1067, § 1; 2019, No. 177, § 1; 2019, No. 910, § 2540.

Publisher's Notes. Acts 1993, Nos. 242 and 251, § 1, provided: “In order to comply with Section 507 of the federal Clean Air Act, this statute is enacted. The program establishes a compliance advisory panel for the Small Business Stationary Source Technical and Environmental Compliance Assistance Program. This program is to be administered by the Arkansas Department of Pollution Control and Ecology and is intended to help eligible small businesses understand and comply with the federal Clean Air Act.”

Amendments. The 2017 amendment added “Marketing Recyclables Program” to the section heading; and rewrote the section.

The 2019 amendment by No. 177 added “including without limitation the implementation, administration, and funding of the collection and recycling or collection and disposal of extra-large tires as defined in § 8-9-402” in (j)(5).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (b)(4).

U.S. Code. The Paperwork Reduction Act of 1980, referred to in this section, is codified primarily as 44 U.S.C. § 3501 et seq.

The Small Business Stationary Source Technical and Environmental Compliance Assistance Program, referred to in this section, was created pursuant to 42 U.S.C. § 7401 et seq.

8-4-315. Permits.

The Arkansas Department of Environmental Quality is authorized to require, issue, and enforce operating permits for major sources in satisfaction of Title V of the Clean Air Act Amendments of 1990, 42 U.S.C. § 7661 et seq.

History. Acts 1995, No. 384, § 11; 1997, No. 310, § 2; 1999, No. 1164, § 34.

A.C.R.C. Notes. Acts 1995, No. 384, § 11, provided: “Permit transfers. To the extent consistent with federal requirements, permits issued pursuant to this subchapter may be transferred in accordance with the procedures set out in § 8-4-203(f).”

Acts 1997, No. 310, § 2 has been deemed to amend Acts 1995, No. 384, § 11.

8-4-316. Purpose — Open burning of vegetative storm debris.

  1. The purpose of this section is to allow a county to seek preauthorization of open burning sites for vegetative storm debris from the Division of Environmental Quality to accelerate the cleanup process in the event of a natural disaster.
  2. Unless otherwise prohibited by federal law, a county may conduct open burning to dispose of vegetative storm debris under the procedures, requirements, and limitations under this section if the county has:
    1. Been declared a disaster area by:
      1. The county under § 12-75-108;
      2. The state under § 12-75-107; or
      3. Federal authorities authorized under federal law to make the declaration; or
    2. Otherwise accumulated substantial vegetative storm debris and provided written notice to the division of the accumulation.
    1. A county shall only burn vegetative storm debris at a site that has been preassessed by the division to determine that the site is consistent with all state and federal laws and regulations.
    2. A county that engages in the open burning of vegetative storm debris at a site that has been preassessed by the division shall comply with this section and the procedures established by the Director of the Division of Environmental Quality.
    3. A county may burn vegetative storm debris at no more than four (4) sites at one (1) time unless the director determines that additional open burning sites are necessary.
  3. At least three (3) days before the commencement of open burning, the county shall provide written notification to the director that certifies the preassessed site satisfies the requirements of all applicable laws and regulations, unless notification is waived by the director.
  4. Open burning under this section shall:
    1. Be performed only during daylight hours on Monday through Friday;
    2. Not occur on a state or federal holiday;
    3. Be completed within one hundred twenty (120) days after the written notice or disaster declaration under subsection (b) of this section unless extended by the director;
    4. Be conducted in a manner so as not to create a nuisance to surrounding communities;
    5. Be conducted only if:
      1. The county is in attainment of the National Ambient Air Quality Standards;
      2. A burn ban is not in effect for the county; and
      3. Adequate firefighting personnel are available to respond to an emergency at a designated open burning site;
    6. Comply with all other applicable state, federal, or local statutes, regulations, rules, ordinances, and orders; and
    7. Be conducted no more than two (2) times per calendar year if the county has not been declared a disaster area under subdivision (b)(1) of this section.
  5. Open burning under this section shall:
    1. Not be conducted within:
      1. Five hundred feet (500') of a residence unless the owner of the residence has given written permission for the open burning; or
      2. One thousand feet (1,000') of a school; and
    2. Exclude any nonvegetative storm debris, including without limitation one (1) or more of the following:
      1. Tires;
      2. Lumber;
      3. Construction debris;
      4. Demolished structures;
      5. Household wastes; and
      6. Trade wastes.
    1. The director may require one (1) or more of the following:
      1. That a designated open burning site be relocated;
      2. That an open burning allowed under this section be prohibited in response to actual or potential violations of state or federal air quality standards in the impacted areas; or
      3. An alternative burn period to assure and maintain air quality compliance with National Ambient Air Quality Standards.
    2. The director may recommend alternative methods of vegetative storm debris disposal, including without limitation the use of air curtain incinerators or composting to the extent allowed under federal law.
    1. A county judge shall not obligate state or federal funds for open burning under this section if the county judge has declared the emergency under § 12-75-108.
    2. However, a county judge may be reimbursed from state or federal funds for the cost of the open burning if the director determines that reimbursement is appropriate.

History. Acts 2005, No. 944, § 1; 2011, No. 10, § 1; 2017, No. 330, § 1; 2019, No. 910, §§ 2541, 2542; 2019, No. 1060, § 1.

A.C.R.C. Notes. Acts 2019, No. 910, §§ 2541-2542, amended former subsections (b) and (f) of this section to change references to “Arkansas Department” to “Division” and “department” to “division”. However, these references were specifically repealed by Acts 2019, No. 1060, § 1.

Amendments. The 2011 amendment added “unless” at the end of the introductory language of (a)(3); and inserted (a)(3)(A) through (C).

The 2017 amendment substituted “Open burning” for “Burning” in the section heading; redesignated and rewrote former (a) as present (a) and (b); redesignated former (b) through (d) as present (c) through (e); substituted “A designated open burning site” for “Designated burning sites” in present (c)(1); inserted “open” in present (c)(2) and (e); added (f) and (g); and made stylistic changes.

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” and “division” for “department” throughout the section; and made a stylistic change.

The 2019 amendment by No. 1060, in the section heading, added “Purpose” and inserted “vegetative”; and rewrote the section.

8-4-317. State implementation plans generally.

  1. In developing and implementing a state implementation plan, the Division of Environmental Quality shall consider and take into account the factors specified in § 8-4-312 and the Clean Air Act, 42 U.S.C. § 7401 et seq., as applicable.
      1. Whenever the division proposes to finalize a state implementation plan submittal for review and approval by the United States Environmental Protection Agency, it shall cause notice of its proposed action to be published in a newspaper of general circulation in the state.
      2. The notice required under subdivision (b)(1)(A) of this section shall afford any interested party at least thirty (30) calendar days in which to submit comments on the proposed state implementation plan submittal in its entirety.
        1. In the case of any emission limit, work practice or operational standard, environmental standard, analytical method, air dispersion modeling requirement, or monitoring requirement that is incorporated as an element of the proposed state implementation plan submittal, the record of the proposed action shall include a written explanation of the rationale for the proposal, demonstrating the reasoned consideration of the factors in § 8-4-312 as applicable, the need for each measure in attaining or maintaining the National Ambient Air Quality Standards as applicable, and that any requirements or standards are based upon generally accepted scientific knowledge and engineering practices.
        2. For any standard or requirement that is identical to the applicable Arkansas Pollution Control and Ecology Commission rule or federal regulation, the demonstration required under subdivision (b)(1)(C)(i) of this section may be satisfied by reference to the rule or federal regulation. In all other cases, the division shall provide its own justification with appropriate reference to the scientific and engineering literature considered or the written studies conducted by the division.
      1. At the conclusion of the public comment period and before transmittal to the Governor for submittal to the United States Environmental Protection Agency, the division shall provide written notice of its final decision regarding the state implementation plan submittal to all persons who submitted public comments.
        1. The division's final decision shall include a response to each issue raised in any public comments received during the public comment period. The response shall manifest reasoned consideration of the issues raised by the public comments and shall be supported by appropriate legal, scientific, or practical reasons for accepting or rejecting the substance of the comment in the division's final decision.
        2. For the purposes of this section, response to comments by the division should serve the roles of both developing the record for possible judicial review of a state implementation plan decision and serving as a record for the public's review of the division's technical and legal interpretations on long-range regulatory issues.
        3. This section does not limit the division's authority to raise all relevant issues of regulatory concern upon adjudicatory review by the commission of a particular state implementation plan decision.
    1. Only those persons that submit comments on the record during the public comment period have standing to appeal the final decision of the division to the commission upon written application made within thirty (30) days after service of the notice under subdivision (b)(2)(A) of this section.
    2. An appeal under subdivision (c)(1) of this section shall be processed as a permit appeal under § 8-4-205. However, the decision of the Director of the Division of Environmental Quality shall remain in effect during the appeal.

History. Acts 2013, No. 1302, § 4; 2017, No. 455, § 2; 2019, No. 315, § 501; 2019, No. 910, §§ 2543-2547.

Amendments. The 2017 amendment inserted “as applicable” near the end of (b)(1)(C)(i); and substituted “the applicable Arkansas Pollution Control and Ecology Commission regulation or federal regulation” for “an applicable federal regulation” in the first sentence of (b)(1)(C)(ii).

The 2019 amendment by No. 315, in the first sentence of (b)(1)(C)(ii), substituted “rule” for “regulation” and inserted “rule or federal” near the end.

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” and “division” for “department” throughout the section.

8-4-318. National Ambient Air Quality Standards implementation.

    1. The Division of Environmental Quality shall develop NAAQS state implementation plans.
    2. Each NAAQS state implementation plan shall include the measures necessary for the attainment and maintenance of the National Ambient Air Quality Standard in each air quality control region or portion of an air quality control region within the state.
    1. Except with regard to permitting decisions for major source construction under Part C or D of Title I of the Clean Air Act, 42 U.S.C. § 7470 et seq. or 42 U.S.C. § 7501 et seq., National Ambient Air Quality Standards are not effective until adopted by the Arkansas Pollution Control and Ecology Commission under § 8-4-311(b).
    2. Except as required for the permitting of major source construction under Part C or D of Title I of the Clean Air Act, 42 U.S.C. § 7470 et seq. or 42 U.S.C. § 7501 et seq., or otherwise voluntarily proposed and agreed to by the owner or operator of a stationary source, the division shall not mandate for any stationary source measures for the attainment and maintenance of a National Ambient Air Quality Standard until such measures are included in the applicable NAAQS state implementation plan and the NAAQS state implementation plan has been submitted to the United States Environmental Protection Agency. However, this subdivision (b)(2) does not limit or delay the effectiveness of any applicable emission limit or standard promulgated by the United States Environmental Protection Agency under §§ 111, 112, or 129 of the Clean Air Act, 42 U.S.C. § 7411, 42 U.S.C. § 7412, or 42 U.S.C. § 7429.
    3. Unless otherwise voluntarily proposed and agreed to by the owner or operator of a stationary source, the division shall not require or consider air dispersion modeling of an air contaminant for which a National Ambient Air Quality Standard has been established in air permitting decisions for stationary sources except:
      1. As required by Part C of Title I of the Clean Air Act, 42 U.S.C. § 7470 et seq., and the federal regulations promulgated thereto, for the permitting of major source construction;
      2. If necessary in the judgment of the division, with respect to permitting of a temporary source under 42 U.S.C. § 7661c(e); or
      3. Pollutant-specific or facility-specific air dispersion modeling explicitly required by an applicable NAAQS state implementation plan submitted to the United States Environmental Protection Agency.
  1. This section does not prohibit the division from conducting and considering air dispersion modeling as necessary for the:
    1. Development of a state implementation plan; or
    2. Development of a general permit under § 8-4-203.

History. Acts 2013, No. 1302, § 5; 2019, No. 910, §§ 2548-2552.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(1); and substituted “division” for “department” throughout (b) and (c).

Subchapter 4 — Lead-Based Paint-Hazard Act

Publisher's Notes. For current law, see the “Arkansas Lead-Based Paint-Hazard Act of 2011”, § 20-27-2501 et seq.

8-4-401 — 8-4-409. [Repealed.]

Publisher's Notes. This subchapter, concerning the Lead-Based Paint-Hazard Act, was repealed by Acts 2011, No. 1011, § 2. The former subchapter was derived from the following sources:

8-4-401. Acts 1997, No. 309, § 1.

8-4-402. Acts 1997, No. 309, § 1; 1999, No. 1164, § 35.

8-4-403. Acts 1997, No. 309, § 1; 1999, No. 1164, §§ 36, 37.

8-4-404. Acts 1997, No. 309, § 1.

8-4-405. Acts 1997, No. 309, § 1.

8-4-406. Acts 1997, No. 309, § 1.

8-4-407. Acts 1997, No. 309, § 1.

8-4-408. Acts 1997, No. 309, § 1; 2009, No. 1199, § 5.

8-4-409. Acts 1997, No. 309, § 1; 1999, No. 53, § 1; 1999, No. 1164, § 38.

Chapter 5 Water Pollution Control Facilities

Subchapter 1 — General Provisions

[Reserved.]

Subchapter 2 — Wastewater Treatment Plants

Publisher's Notes. Acts 1997, No. 1219, § 1, provided: “Legislative intent. With Act 1230 of 1991, the General Assembly sought to delineate the respective responsibilities of the Arkansas Pollution Control and Ecology Commission and the Arkansas Department of Pollution Control & Ecology. Confusion on these issues in the public’s perception continues, however, primarily because of the similarity in the names of these entities. The purpose of this Act is to achieve the legislative intent of Act 1230 of 1991 and to definitively assign the executive, adjudicatory, and rulemaking roles for the State’s regulatory functions concerning protection of the environment.”

Effective Dates. Acts 1997, No. 179, § 38: Feb. 17, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 10 of the First Extraordinary Session of 1995 abolished the Joint Interim Committee on Public Health, Welfare, and Labor and in its place established the House Interim Committee and Senate Interim Committee on Public Health, Welfare, and Labor; that various sections of the Arkansas Code refer to the Joint Interim Committee on Public Health, Welfare, and Labor and should be corrected to refer to the House and Senate Interim Committees on Public Health, Welfare, and Labor; that this act so provides; and that this act should go into effect immediately in order to make the laws compatible as soon as possible. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1997, No. 250, § 258: Feb. 24, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 1211 of 1995 established the procedure for all state boards and commissions to follow regarding reimbursement of expenses and stipends for board members; that this act amends various sections of the Arkansas Code which are in conflict with the Act 1211 of 1995; and that until this cleanup act becomes effective conflicting laws will exist. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governer, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1997, No. 288, § 5: July 1, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that the provisions of this act are of major importance to the state's best interest to have all revenues of the Department of Pollution Control and Ecology deposited into the State Treasury for better accountability of financial resources. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1997.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

8-5-201. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “Commission” means the Arkansas Pollution Control and Ecology Commission or its successor;
  2. [Repealed.]
  3. “License” means a certificate of competency issued by the Division of Environmental Quality to operators who have met the requirements of the licensing program;
  4. “Licensing committee” means the committee of operators and technicians established in this subchapter to assist and advise the division in the examining and licensing of operators;
    1. “Operator” means any person who is in responsible charge of the operation of a wastewater treatment plant, in whole or in part, and who, during the performance of his or her regular duties, exercises individual judgment which directly or indirectly may affect the proper operation of the wastewater treatment plant.
    2. “Operator” shall not be deemed to include an official solely exercising general administrative supervision; and
  5. “Wastewater treatment plant” means any plant, disposal field, lagoon, pumping station, or other works:
    1. That use chemical or biological processes for:
      1. Treating, stabilizing, or disposing of sewage, industrial wastewaters, or other wastewaters; or
      2. The reduction and handling of sludge removed from such wastewater; and
    2. From which:
      1. A discharge to the waters of the state occurs; or
      2. Municipal wastewater is land-applied.

History. Acts 1971, No. 211, § 2; A.S.A. 1947, § 82-1984; Acts 1997, No. 1219, § 7; 1999, No. 719, § 1; 1999, No. 1164, § 39; 2019, No. 910, §§ 2553, 2554.

Amendments. The 2019 amendment repealed (2); substituted “Division of Environmental Quality” for “department” in (3); and substituted “division” for “department” in (4).

8-5-202. Penalty and injunctions.

  1. A violation of any provision of this subchapter or of any rule issued pursuant to this subchapter shall constitute a misdemeanor and upon conviction shall be punishable as such. Each day's continuance of a violation shall constitute a separate offense.
  2. Any violation of this subchapter shall be subject to injunction proceedings brought by the Division of Environmental Quality in a court of competent jurisdiction.
  3. A violation of any provision of this subchapter or of any rule promulgated under this subchapter is grounds for an administrative revocation or suspension of the operator's license by the division.

History. Acts 1971, No. 211, § 9; A.S.A. 1947, § 82-1991; Acts 1997, No. 1219, § 7; 2005, No. 729, § 1; 2019, No. 315, §§ 502, 503; 2019, No. 910, § 2555.

Amendments. The 2019 amendment by No. 315 deleted “or regulation” following “or of any rule” in (a) and (c).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (b); and substituted “division” for “department” in (c).

Cross References. Misdemeanors, § 5-1-107.

8-5-203. Unlawful actions.

It shall be unlawful for any municipality, governmental subdivision, public or private corporation, or other person to operate a public or private wastewater treatment plant unless the competency of the operator is duly licensed by the Division of Environmental Quality under the provisions of this subchapter. It shall further be unlawful for any person to perform the duties of an operator of any such wastewater treatment plant without being duly licensed under this subchapter.

History. Acts 1971, No. 211, § 8; A.S.A. 1947, § 82-1990; Acts 1991, No. 1103, § 1; 1997, No. 1219, § 7; 2019, No. 910, § 2556.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality”.

8-5-204. Licensing committee.

    1. There is created and established a licensing committee to advise and assist the Arkansas Pollution Control and Ecology Commission and the Division of Environmental Quality in the administration of the licensing program.
    2. The committee shall be composed of eight (8) members:
      1. Five (5) members, to be appointed by the commission, of which three (3) members shall be active wastewater treatment plant operators licensed by the commission and two (2) members shall be employed by a private corporation or industry located in Arkansas and nominated at large by the corporations or industries for service on the committee;
      2. One (1) member, to be appointed by the commission, shall be an employee of a municipality operating a wastewater treatment plant who holds the position of chief administrative officer, city engineer, director of public utilities, or other equivalent position;
      3. One (1) member, to be appointed by the commission, shall be a faculty member of an accredited college, university, or professional school in this state whose major field is related to water resources or sanitary engineering; and
      4. One (1) member shall be the Director of the Division of Environmental Quality or a qualified member of his or her staff who shall act as executive secretary of the committee.
    1. In the event of a vacancy, a new member shall be appointed by the commission to serve out the unexpired term.
    2. No member shall serve more than two (2) consecutive three-year terms.
    1. State agency members of the committee shall receive no additional salary or per diem for their services as members of the committee, but they may receive expense reimbursement in accordance with § 25-16-901 et seq.
    2. The members appointed by the commission may receive expense reimbursement and stipends in accordance with § 25-16-901 et seq.

History. Acts 1971, No. 211, § 6; A.S.A. 1947, § 82-1988; Acts 1993, No. 556, § 1; 1997, No. 250, § 46; 1997, No. 697, § 2; 1997, No. 1219, § 7; 1999, No. 719, §§ 2, 3; 1999, No. 1164, § 40; 2019, No. 910, §§ 2557, 2558.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(1) and (a)(2)(D).

8-5-205. Powers and duties generally.

  1. The Division of Environmental Quality or its successor shall be charged with the responsibility of administering and enforcing this subchapter, with the advice and assistance of the licensing committee, and is given and charged with the following powers and duties:
    1. To conduct examinations for licensing, which shall be conducted at least annually and more frequently as the Arkansas Pollution Control and Ecology Commission shall deem necessary;
    2. To issue licenses to qualified wastewater treatment plant operators, to renew those licenses, and to suspend or revoke the licenses for cause, after due notice and hearing;
    3. To institute court proceedings to compel compliance with the provisions of this subchapter and the rules issued pursuant thereto; and
    4. To participate financially in programs sponsored by the Arkansas Water Environment Association, Inc. or its successor, provided that the participation shall not exceed the sum of one thousand dollars ($1,000) per fiscal year.
    1. The commission shall serve as the rulemaking and appointment authority for implementation of this subchapter.
    2. The commission’s powers shall include:
      1. To adopt rules implementing and effectuating this subchapter as may be necessary for the administration and enforcement thereof;
      2. To make appointments to the committee in accordance with this subchapter; and
      3. To set reasonable licensure and examination fees to cover the costs of administration of this subchapter.

History. Acts 1971, No. 211, § 3; A.S.A. 1947, § 82-1985; Acts 1993, No. 556, § 2; 1997, No. 1219, § 7; 1999, No. 1164, § 41; 2019, No. 315, § 504; 2019, No. 910, § 2559.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “To adopt rules” in (b)(2)(A).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the introductory language of (a).

8-5-206. Classification of wastewater treatment plants.

  1. The Arkansas Pollution Control and Ecology Commission shall, through rules, classify all wastewater treatment plants, taking into account:
    1. The size, type, and complexity of the wastewater treatment plant;
    2. The character and volume of wastewater treated;
    3. The population served;
    4. The skill, knowledge, and experience reasonably required to supervise the proper operation of the wastewater treatment plant; and
    5. Such other factors as the commission shall deem appropriate.
  2. The Division of Environmental Quality shall license persons as to their qualifications to supervise successfully the proper operation of wastewater treatment plants within classifications based on the recommendations of the licensing committee.

History. Acts 1971, No. 211, § 5; A.S.A. 1947, § 82-1987; Acts 1997, No. 1219, § 7; 2019, No. 315, § 505; 2019, No. 910, § 2560.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” in the introductory language of (a).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (b).

8-5-207. Operators to be licensed.

In order to safeguard the public health and protect the waters of this state from pollution, all operators in responsible charge of public or private wastewater treatment plants shall be duly licensed and certified as competent by the Division of Environmental Quality under the provisions of this subchapter and under such rules as the Arkansas Pollution Control and Ecology Commission may adopt, with the advice and assistance of the licensing committee, pursuant to the authority of this subchapter. All rules promulgated pursuant to this subchapter shall be reviewed by the House Committee on Public Health, Welfare, and Labor and the Senate Committee on Public Health, Welfare, and Labor or appropriate subcommittees of the House Committee on Public Health, Welfare, and Labor and the Senate Committee on Public Health, Welfare, and Labor.

History. Acts 1971, No. 211, § 1; A.S.A. 1947, § 82-1983; Acts 1991, No. 1103, § 2; 1997, No. 179, § 2; 1997, No. 1219, § 7; 2019, No. 315, § 506; 2019, No. 910, § 2561.

Amendments. The 2019 amendment by No. 315 deleted “and regulations” following “such rules” in the first sentence, and deleted “and regulations” following “All rules” in the second sentence.

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality”.

8-5-208. License requirements.

  1. The Division of Environmental Quality shall license and certify all applicants for licenses under this subchapter who satisfy the requirements of this subchapter and the rules issued pursuant to this subchapter. Licenses shall be granted according to the classification of wastewater treatment plants established under this subchapter. Licenses shall be valid for a period of two (2) years and shall be renewable upon application without examination.
  2. All operators of wastewater treatment plants within the state shall apply to the division for a license.
  3. In its discretion, the division may waive the requirements or any part of the requirements for formal examination of an applicant for license if the applicant holds a valid license or certificate from another state in which the requirements for license in the appropriate classification are at least equal to the requirements set forth in this subchapter and the rules issued pursuant to this subchapter.

History. Acts 1971, No. 211, § 4; A.S.A. 1947, § 82-1986; Acts 1997, No. 1219, § 7; 2005, No. 729, § 2; 2007, No. 544, § 1; 2019, No. 315, §§ 507, 508; 2019, No. 910, § 2562.

Amendments. The 2007 amendment substituted “two (2) years” for “one (1) year” in (a).

The 2019 amendment by No. 315 deleted “and regulations” preceding “issued pursuant” in (a) and (c).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a); and substituted “division” for “department” in (b) and (c).

8-5-209. Fees — Wastewater Licensing Fund.

    1. The Arkansas Pollution Control and Ecology Commission shall have the authority to set fees in an amount to cover the cost of the administration of this subchapter.
      1. Licensing and examination fees shall be set forth by rule.
      2. However, the licensing and examination fees shall not exceed:
        1. A combined examination and license fee of forty dollars ($40.00); and
        2. An annual license renewal fee of twenty dollars ($20.00).
  1. All fees collected under this section shall be deposited into the Wastewater Licensing Fund and may be used only for the administration of this subchapter.

History. Acts 1971, No. 211, § 7; A.S.A. 1947, § 82-1989; Acts 1991, No. 1104, § 1; 1997, No. 288, § 1; 1997, No. 1219, § 7; 1999, No. 777, § 1; 2019, No. 315, § 509; 2019, No. 693, § 11.

Amendments. The 2019 amendment by No. 315 substituted “rule” for “regulation” in (a)(2)(A).

The 2019 amendment by No. 693 substituted “by” for “in the” in (a)(2)(A); inserted “licensing and examination” in the introductory language of (a)(2)(B); and rewrote (b).

Cross References. Wastewater Licensing Fund, § 19-5-1071.

Subchapter 3 — Water Pollution Control Projects — Grants and Bonds

Effective Dates. Acts 2003, No. 548, § 5: July 1, 2003. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that administration of the clean water fund is of critical importance to the citizens of Arkansas, that the fund may be administered more efficiently by an agency that specializes in the administration of numerous other revolving loan programs associated with environmental projects, and that the provisions of this act are necessary to preserve and improve the efficient administration of these programs. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 2003.”

Cross References. Municipal water and sewer revenue bonds issued to refund revenue bonds, § 14-72-101.

8-5-301 — 8-5-319. [Repealed.]

Publisher's Notes. This subchapter was repealed by Acts 2003, No. 548, § 4. The subchapter was derived from the following sources:

8-5-301. Acts 1971, No. 108, § 1; A.S.A. 1947, § 82-1914.

8-5-302. Acts 1971, No. 108, § 2; A.S.A. 1947, § 82-1914.1.

8-5-303. Acts 1971, No. 108, § 3; 1971, No. 544, § 1; A.S.A. 1947, § 82-1914.2.

8-5-304. Acts 1971, No. 108, § 4; A.S.A. 1947, § 82-1914.3.

8-5-305. Acts 1971, No. 108, § 5; 1975, No. 225, § 21; 1981, No. 425, § 20; A.S.A. 1947, § 82-1914.4.

8-5-306. Acts 1971, No. 108, § 6; A.S.A. 1947, § 82-1914.5.

8-5-307. Acts 1971, No. 108, § 7; 1975, No. 225, § 21; 1981, No. 425, § 20; A.S.A. 1947, § 82-1914.6.

8-5-308. Acts 1971, No. 108, § 8; A.S.A. 1947, § 82-1914.7.

8-5-309. Acts 1971, No. 108, § 9; A.S.A. 1947, § 82-1914.8.

8-5-310. Acts 1971, No. 108, § 10; A.S.A. 1947, § 82-1914.9.

8-5-311. Acts 1971, No. 108, § 11; A.S.A. 1947, § 82-1914.10.

8-5-312. Acts 1971, No. 108, § 12; A.S.A. 1947, § 82-1914.11.

8-5-313. Acts 1971, No. 108, § 13; A.S.A. 1947, § 82-1914.12.

8-5-314. Acts 1971, No. 108, § 14; A.S.A. 1947, § 82-1914.13.

8-5-315. Acts 1971, No. 108, § 15; A.S.A. 1947, § 82-1914.14.

8-5-316. Acts 1971, No. 108, § 16; A.S.A. 1947, § 82-1914.15.

8-5-317. Acts 1971, No. 108, § 17; A.S.A. 1947, § 82-1914.16.

8-5-318. Acts 1971, No. 108, § 18; A.S.A. 1947, § 82-1914.17.

8-5-319. Acts 1989, No. 701, § 1; 1993, No. 3, § 1; 1999, No. 1164, § 42.

Subchapter 4 — Water Pollution Control State Grant Act

Effective Dates. Acts 2003, No. 548, § 5: July 1, 2003. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that administration of the clean water fund is of critical importance to the citizens of Arkansas, that the fund may be administered more efficiently by an agency that specializes in the administration of numerous other revolving loan programs associated with environmental projects, and that the provisions of this act are necessary to preserve and improve the efficient administration of these programs. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 2003.”

8-5-401 — 8-5-404. [Repealed.]

Publisher's Notes. This subchapter was repealed by Acts 2003, No. 548, § 4. The subchapter was derived from the following sources:

8-5-401. Acts 1972 (1st Ex. Sess.), No. 64, § 1; A.S.A. 1947, § 82-1915.

8-5-402. Acts 1972 (1st Ex. Sess.), No. 64, § 2; A.S.A. 1947, § 82-1915.1.

8-5-403. Acts 1972 (1st Ex. Sess.), No. 64, § 3; A.S.A. 1947, § 82-1915.2; Acts 1999, No. 1164, § 43.

8-5-404. Acts 1972 (1st Ex. Sess.), No. 64, § 3; A.S.A. 1947, § 82-1915.2; Acts 1999, No. 1164, § 44.

Subchapter 5 — Underground Salt Water Disposal Systems

Effective Dates. Acts 2011, No. 791, § 11: Jan. 1, 2012.

Preambles. Acts 1969, No. 254 contained a preamble which read:

“Whereas, some individuals, partnerships and corporations are operating oil wells and have been purporting to inject salt water back into the ground and claiming tax exemptions as allowed under Acts 57 and 138 of Acts of the General Assembly of the State of Arkansas, of 1959; and

“Whereas, while claiming tax exemptions some have been violating the provisions of said acts and have been discharging salt water and waste oil into streams and at such places that the same have been seeping and going into branches and streams; and

“Whereas, the Pollution Control Commission seems to be unable under the present laws and rules to control pollution; and

“Whereas, its employees cannot properly enforce orders against pollution; and

“Whereas, the 5-year plan entered into in 1957 has failed to stop pollution; and

“Whereas, more definite rules are needed;

“Now, therefore….”

8-5-501. Regulation of systems generally.

    1. The Arkansas Pollution Control and Ecology Commission and the Oil and Gas Commission are empowered to establish reasonable rules and specifications for the establishment and operation of underground salt water disposal systems to be used in disposing of salt water produced in the production of oil.
      1. Any person wishing to establish an approved underground salt water disposal system shall make application to the Arkansas Pollution Control and Ecology Commission and the Oil and Gas Commission for a permit to construct and operate the underground salt water disposal system for the purpose of obtaining the benefits of the provisions of this section, §§ 8-5-502, 26-58-201 — 26-58-204, 26-58-206, 26-58-207 [repealed], 26-58-208 — 26-58-210, and 26-58-211 [repealed].
      2. The application shall include:
        1. A description of the underground salt water disposal system that is to be established;
        2. The plans and specifications thereof;
        3. The location of the underground salt water disposal system and the number and location of the salt water producing oil wells to be served by the underground salt water disposal system;
        4. The name of each oil producer to be served;
        5. A description of the underground level or strata into which the salt water is to be injected; and
        6. Such other information as may be required by rules of the Arkansas Pollution Control and Ecology Commission and the Oil and Gas Commission.
    1. If the Arkansas Pollution Control and Ecology Commission and the Oil and Gas Commission determine that the underground salt water disposal system for which application is made will meet the requirements of this section, §§ 8-5-502, 26-58-201 — 26-58-204, 26-58-206, 26-58-207 [repealed], 26-58-208 — 26-58-210, and 26-58-211 [repealed], and the rules of the Arkansas Pollution Control and Ecology Commission and the Oil and Gas Commission, a permit for the establishment of the underground salt water disposal system shall be issued.
      1. Upon the completion of the underground salt water disposal system, the commission granting the permit provided for in this section shall cause an inspection of the underground salt water disposal system to be made.
        1. If the commission determines that the underground salt water disposal system is in compliance with the requirements of this section, §§ 8-5-502, 26-58-201 — 26-58-204, 26-58-206, 26-58-207 [repealed], 26-58-208 — 26-58-210, and 26-58-211 [repealed], and the rules of the commission, a certificate of approval of the underground salt water disposal system shall be granted.
        2. The certificate of approval shall be signed by the chair and secretary of the commission.
        3. Copies of the certificate of approval shall be furnished, upon application therefor, to each oil producer who disposes of salt water through such approved underground salt water disposal system.
      1. The commission granting the certificate of approval shall, from time to time, inspect the approved underground salt water disposal system.
        1. If a determination is made that the underground salt water disposal system is being operated in a manner contrary to the provisions of this section, §§ 8-5-502, 26-58-201 — 26-58-204, 26-58-206, 26-58-207 [repealed], 26-58-208 — 26-58-210, and 26-58-211 [repealed], or the rules of the commission, the commission may revoke the certificate of approval until such time as a showing may be made that the deficiencies in the underground salt water disposal system have been corrected to the satisfaction of the commission.
        2. No oil producer shall be entitled to the benefits of the provisions of this section, §§ 8-5-502, 26-58-201 — 26-58-204, 26-58-206, 26-58-207 [repealed], 26-58-208 — 26-58-210, and 26-58-211 [repealed], during the period in which the certificate of approval is revoked.

History. Acts 1959, No. 57, § 4; A.S.A. 1947, § 84-2116; Acts 2019, No. 315, §§ 510-514.

Amendments. The 2019 amendment deleted “regulations” following “rules” in (a)(1); and deleted “and regulations” following “rules” in (a)(2)(B)(vi), (b)(1), (b)(2)(B)(i), and (b)(3)(B)(i).

8-5-502. Penalty for violation of § 8-5-501.

Any person violating the provisions of § 8-5-501 shall be guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) or be imprisoned not less than thirty (30) days nor more than one (1) year, or be both so fined and imprisoned.

History. Acts 1959, No. 57, § 8; A.S.A. 1947, § 84-2120.

Publisher's Notes. Acts 1959, No. 57, § 8, is also codified as § 26-58-203.

8-5-503. Denial of tax deductions.

  1. Should any individual, partnership, corporation, or employee knowingly or negligently cause, let, or permit salt water to flow, seep, or otherwise escape from the leased premises, the rights of the party to claim tax deductions or credits under §§ 8-5-501, 8-5-502, 26-58-201 — 26-58-206, 26-58-207 [repealed], and 26-58-208 — 26-58-210, will be denied for a period of twelve (12) months.
    1. Any individual can file a complaint before the Arkansas Pollution Control and Ecology Commission against anyone for violations of this section and secure a hearing.
      1. If the commission should find that the accused has violated this section, then the violator shall be denied any tax exemption for a period of one (1) year.
      2. Any violation of this section during the period of the suspension shall extend the suspension one (1) year from the date of the last violation.

History. Acts 1969, No. 254, §§ 1-3; A.S.A. 1947, §§ 84-2120.1 — 84-2120.3; Acts 2011, No. 791, § 1.

Amendments. The 2011 amendment substituted “§§ 8-5-501, 8-5-502, and 26-58-20126-58-210” for “§§ 8-5-501, 8-5-502, 26-58-20126-58-204, 26-58-20626-58-210, and 26-58-211 [repealed]” in (a).

8-5-504. Chlorides standard.

Should the water of any stream of this state have more than two hundred fifty parts per million (250 ppm) of chlorides as a result of a violation of this subchapter, then the Arkansas Pollution Control and Ecology Commission shall seek to learn of the source of the pollution and take steps to eliminate the source of pollution.

History. Acts 1969, No. 254, § 4; A.S.A. 1947, § 84-2120.4; Acts 2003, No. 1180, § 1.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Environmental Law, 26 U. Ark. Little Rock L. Rev. 405.

8-5-505. [Repealed.]

A.C.R.C. Notes. This section, concerning fees, was derived from Acts 1959, No. 57, § 7. Acts 1959, No. 57, § 7 was also codified as § 26-58-211 [repealed]. Section 26-58-211 was repealed by Acts 1993, No. 344, § 2. The title of Acts 1993, No. 344 was “an act to repeal certain taxes and fees levied by Arkansas Code Annotated which generate minimal revenue and are an administrative burden on the state; and for other purposes.” Accordingly, it appears that this section was impliedly repealed by Acts 1993, No. 344, § 2.

Subchapter 6 — Arkansas Privatization Act

Effective Dates. Acts 1985, No. 690, § 12: Mar. 28, 1985. Emergency clause provided: “It is hereby found and declared by the General Assembly that historically a significant portion of the funding of the cost of construction of wastewater projects has been provided through grants from the United States of America and in recent years funds available to local governments for such grants have been substantially reduced thereby placing an increasingly intolerable burden on local governments to provide the cost of constructing and improving such sewer service and facilities and there is an immediate and pressing need to provide such service, and that alternate means of financing and acquisition are needed. Therefore, an emergency is hereby declared to exist and this act, being immediately necessary for the protection of the public peace, health and safety, shall take effect, and be in full force, immediately on its passage and approval.”

Case Notes

Cited: Get Rid of It, Inc. v. City of Smackover, 59 Ark. App. 93, 952 S.W.2d 192 (1997).

8-5-601. Title.

This subchapter shall be known and cited as the “Arkansas Privatization Act”.

History. Acts 1985, No. 690, § 1; A.S.A. 1947, § 82-1992.

8-5-602. Legislative policy.

The General Assembly declares that the policy of this state is to assure its citizens adequate public services, particularly wastewater projects, and solid waste disposal projects, at reasonable cost, and that such services are essential to the maintenance and general welfare of the citizens of this state and to the continued expansion of the state's economy, job market, and industrial base. However, the cost of constructing, owning, and operating capital facilities to meet the demand for those public services is becoming increasingly burdensome to cities, counties, and improvement districts, and it is desirable that innovative financing mechanisms be made available to assist the communities of this state in developing wastewater projects and solid waste disposal projects at reasonable cost. Private sector ownership and operation of capital facilities providing public services can result in cost savings to communities contracting for those public services. It is, therefore, in the best public interest of the state and its citizens that cities, counties, and improvement districts be authorized to cause such services to be provided by private enterprise and to contract with private owners or operators for providing the services to the public.

History. Acts 1985, No. 690, § 2; A.S.A. 1947, § 82-1992.1; Acts 1991, No. 629, § 1.

8-5-603. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “Chief executive” means the mayor of a municipality, the county judge of a county, or the chair of an improvement district, commission, agency, or similar body;
  2. “Clerk” means the city clerk or town recorder of a municipality, the county clerk of a county, or the secretary of the board of commissioners of an improvement district, commission, agency, or similar body;
  3. “Cost” means the cost of acquiring, constructing, and financing any privatization project and placing the privatization project in service, including without limitation:
    1. The cost of acquisition and construction of any facility or any modification, improvement, or extension of that facility;
    2. Any cost incident to the acquisition of any necessary property, easement, or right-of-way;
    3. Engineering or architectural fees, legal fees, and fiscal agents' and financial advisors' fees;
    4. Any cost incurred for any preliminary planning to determine the economic and engineering feasibility of a proposed privatization project; and
    5. Costs of economic investigations and studies, surveys, preparation of designs, plans, working drawings, specifications, and the inspection and supervision of the construction of any facility and any other cost incurred by the local government;
  4. “Facility” means any structure, building, machinery, system, land, right, permit, or other property necessary or desirable for the ownership and operation of a wastewater project or solid waste disposal project, including without limitation, all related and appurtenant easements and rights-of-way, improvements, utilities, equipment, and furnishings;
  5. “Local government” means a city or incorporated town in the State of Arkansas, any county in the State of Arkansas, an improvement district organized under the law of the State of Arkansas, or any other political subdivision, agency, or instrumentality of the State of Arkansas or any of the foregoing;
  6. “Ordinance” means an ordinance, resolution, or other appropriate legislative enactment of the governing body of a local government;
  7. “Private owner or operator” means a person, firm, corporation, or partnership that is not a public entity and which owns or operates a privatization project;
    1. “Privatization” means any wastewater project or solid waste disposal project, including wastewater projects and solid waste disposal projects acquired from a local government, which is owned or operated by a private owner or operator and provides the related service to the public.
    2. “Privatization” includes, but is not limited to:
      1. The acquisition, construction, reconstruction, repair, alteration, modernization, renovation, improvement, or extension of any such wastewater project or solid waste disposal project, whether or not in existence or under construction, and financing the cost of those activities;
      2. The purchase, installation, or financing of equipment, machinery, and other personal property required by such wastewater project or solid waste disposal project; and
      3. The acquisition, improvement, or financing of real property and the extension or provision of utilities, access roads, and other appurtenant facilities, all of which are to be used or occupied by any person in providing wastewater projects or solid waste disposal projects;
  8. “Solid waste” means all putrescible and nonputrescible wastes in solid or semisolid form, including, but not limited to, yard or food waste, waste glass, waste metals, waste plastics, wastepaper, waste paperboard, and all other solid and semisolid wastes resulting from industrial, commercial, agricultural, community, and residential activities;
  9. “Solid waste disposal project” means any facility designed and operated for the disposition by landfilling, incinerating, composting, or other method of disposing of solid waste; and
  10. “Wastewater project” means sewage collection systems and treatment plants, including without limitation, intercepting sewers, outfall sewers, force mains, pumping stations, instrumentation and control systems, and other appurtenances necessary or useful for the collection, removal, reduction, treatment, purification, disposal, and handling of liquid and solid waste, sewage and industrial waste, and refuse.

History. Acts 1985, No. 690, § 3; A.S.A. 1947, § 82-1992.2; Acts 1991, No. 629, §§ 2-4.

8-5-604. Construction.

  1. This subchapter shall be construed liberally to effect its purposes and neither this subchapter nor anything contained in this subchapter is or shall be construed as a restriction or limitation upon any powers which any local government or private owner or operator might otherwise have under any laws of this state, and the provisions of this subchapter are cumulative to any such powers.
  2. This subchapter does and shall be construed to provide a complete, additional, and alternative method for the doing of the things authorized thereby and shall be regarded as supplemental and additional to other laws.

History. Acts 1985, No. 690, § 9; A.S.A. 1947, § 82-1992.8.

8-5-605. Applicability.

This subchapter does not apply to the disposition of surplus property by a local government, nor to any other action of a local government which is not connected with a privatization contract.

History. Acts 1985, No. 690, § 6; A.S.A. 1947, § 82-1992.5.

8-5-606. Privatization contracts generally.

  1. Any local government may enter into a privatization contract with a private owner or operator to accomplish the transfer of any local government-owned wastewater project or solid waste disposal project or the designing, construction, operation, maintenance, or financing of cost, or any combination thereof, of a wastewater project or solid waste disposal project, pursuant to the provisions of this subchapter.
    1. A local government considering entering into a privatization contract pertaining to its municipally owned wastewater project or solid waste disposal project, or any portion thereof, shall publish notice of its intention to adopt an ordinance to accomplish the privatization.
    2. The notice shall:
      1. Set forth a brief summary of the privatization contract provisions; and
      2. Set a time and place for a public hearing to be conducted by the chief executive.
    3. The notice shall be published in a newspaper having general circulation within the county in which a substantial portion of the wastewater project or solid waste disposal project is located by one (1) publication each week for a period of two (2) weeks. The first publication shall be not less than fourteen (14) days prior to the adoption of the ordinance approving the execution of the privatization contract.
  2. The hearing may be held in conjunction with any hearing on the question of issuing bonds to finance the cost of the privatization project, on the question of adoption of the service agreement, or any other question.
  3. A copy of the proposed privatization contract shall be filed as a public record with the clerk of the local government not less than two (2) weeks prior to the adoption of the ordinance.

History. Acts 1985, No. 690, § 4; A.S.A. 1947, § 82-1992.3; Acts 1991, No. 629, § 5.

8-5-607. Service agreements generally.

    1. In connection with a privatization contract, a local government, if authorized by ordinance of its governing body, may enter into one (1) or more service agreements with a private owner or operator pursuant to which the private owner or operator will provide one (1) or more sewer services or solid waste disposal services to or for the benefit of the local government.
    2. The service agreement may provide for the purchase by the local government of all or any part of the capacity, capability, or output of the facilities used to provide the applicable sewer service or solid waste disposal service and shall contain such other terms and conditions as the local government and the private owner or operator may provide, including without limitation, the charges or rates for the services and a covenant by the local government to maintain rates sufficient to pay debt service incurred in connection with the financing of construction of a wastewater project or solid waste disposal project.
    1. Prior to the execution of a service agreement, the local government shall publish notice of its intention to adopt an ordinance to accomplish the service agreement.
    2. The notice shall:
      1. Set forth a brief summary of the service agreement provisions; and
      2. Set a time and place for a public hearing to be conducted by the chief executive.
    3. The notice shall be published in a newspaper having general circulation within the county in which a substantial portion of the wastewater project or solid waste disposal project is located by one (1) publication each week for a period of two (2) weeks. The first publication shall be not less than fourteen (14) days prior to the adoption of the ordinance approving the execution of the service agreement.
  1. The hearing may be held in conjunction with any hearing on the question of issuing bonds to finance the cost of the privatization project, on the question of adoption of the service agreement, or any other question.
  2. A copy of the proposed service agreement shall be filed as a public record with the clerk of the local government not less than two (2) weeks prior to the adoption of the ordinance.

History. Acts 1985, No. 690, § 5; A.S.A. 1947, § 82-1992.4; Acts 1991, No. 629, § 6.

8-5-608. Privatization contracts and service agreements — Assignment.

The privatization contract or the service agreement may be assigned by either party to secure the performance of any obligation in connection with the financing of the construction or operation of a wastewater project or solid waste disposal project.

History. Acts 1985, No. 690, § 4; A.S.A. 1947, § 82-1992.3; Acts 1991, No. 629, § 7.

8-5-609. Privatization contracts, service agreements, etc. — Exemption from certain laws.

The privatization contract, the service agreement, and any other purchase by the local government in connection with the privatization contract shall not be subject to the provisions of §§ 14-22-10114-22-115, 14-58-20114-58-203, 14-58-30114-58-303, 14-58-305, 14-58-306 [repealed], 14-58-307, and 14-58-308 or any other law, rule, or regulation requiring competitive bids.

History. Acts 1985, No. 690, § 4; A.S.A. 1947, § 82-1992.3; Acts 2019, No. 315, § 515.

Amendments. The 2019 amendment inserted “rule”.

8-5-610. Privatization contracts, service agreements, etc. — Exemption from Arkansas Public Service Commission's jurisdiction.

The service agreement, the privatization contract, the charges and rates for sewer or other service, and private owners or operators shall not be subject to Acts 1935, No. 324, as amended, and § 23-4-201, and shall be exempt from the jurisdiction of the Arkansas Public Service Commission and any other successor regulatory agency.

History. Acts 1985, No. 690, § 5; A.S.A. 1947, § 82-1992.4.

Publisher's Notes. Acts 1935, No. 324 referred to in this section is codified as §§ 14-200-101, 14-200-10314-200-108, 14-200-111, 23-1-10123-1-112, 23-2-301, 23-2-30323-2-308, 23-2-310, 23-2-312, 23-2-31423-2-316, 23-2-402, 23-2-404 [repealed], 23-2-405, 23-2-408, 23-2-41023-2-412, 23-2-41423-2-421, 23-2-426, 23-2-428, 23-2-429, 23-3-10123-3-107, 23-3-11223-3-115, 23-3-118, 23-3-119, 23-3-20123-3-206, 23-4-102, 23-4-103, 23-4-10523-4-109, 23-4-205, 23-4-40223-4-405, 23-4-40723-4-418, 23-4-62023-4-634, 23-18-101.

8-5-611. Tax exemption.

No income, sales, use, ad valorem, or other tax, assessment, or license shall be levied upon or collected with respect to any property which is held by or purchased by a private owner or operator for the public purpose of performing a privatization contract or a service agreement, since the property benefits the public.

History. Acts 1985, No. 690, § 7; A.S.A. 1947, § 82-1992.6.

8-5-612. Wastewater projects and solid waste disposal projects are industrial facilities for other acts.

For purposes of any other law, including without limitation, the Municipalities and Counties Industrial Development Revenue Bond Law, § 14-164-201 et seq., “facilities” or a similar term includes a wastewater project or solid waste disposal project as those terms are defined in this subchapter, so that any law adopted authorizing the issuance of industrial development bonds, industrial development revenue bonds, or similar evidences of indebtedness shall be available for utilization in connection with a privatization project.

History. Acts 1985, No. 690, § 8; A.S.A. 1947, § 82-1992.7; Acts 1991, No. 629, § 8.

Subchapter 7 — Chronic Noncompliance

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

8-5-701. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “Chronic noncompliance” means conditions described in this subchapter that persist at a common sewage system after reasonable efforts by the Division of Environmental Quality to obtain compliance with applicable laws or rules in one (1) of the following:
    1. Failure to obtain a permit as required by law;
    2. Four (4) or more permit violations within a six-month period as set out in the permit issued by the division;
    3. Failure to maintain the services of a certified wastewater treatment operator, where applicable; or
    4. Demonstrable failure to operate the common sewage system so as to prevent the discharge of waterborne pollutants in unacceptable concentrations, as defined in the individual permit or the state's water quality standards, to the surface waters or groundwater of the state; and
    1. “Common sewage system” means any sewage treatment system and its associated sewage collection and pumping facilities, nonmunicipal, publicly or privately owned, serving two (2) or more individually owned, rented, or temporarily occupied lots for the purpose of the collection or disposal of sewage.
    2. “Common sewage system” includes systems owned or operated by:
      1. Property owners' associations;
      2. Nonmunicipal sewage improvement districts; and
      3. Owners or managers of nonmunicipal residential subdivisions.

History. Acts 1995, No. 336, § 1; 1999, No. 1164, § 45; 2019, No. 315, § 516; 2019, No. 910, § 2563.

Amendments. The 2019 amendment by No. 315 substituted “rules” for “regulations” in the introductory language of (1).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the introductory language of (1); and substituted “division” for “department” in (1)(B).

8-5-702. Remedies for chronic violations.

  1. The Division of Environmental Quality may petition a circuit court with competent jurisdiction and proper venue to remedy chronic violations by any common sewage system.
  2. The circuit court may order any relief authorized by applicable laws, including:
    1. The imposition of civil penalties;
    2. The revocation of the entity's permit; and
    3. A court order compelling the entity supplying potable water to the common sewage system to cut off the flow of potable water.
    1. If the circuit court finds that circumstances prevent the owner or operator of a common sewage system from operating and maintaining the system in compliance with the law, the division shall nominate two (2) possible receivers, of which the court may appoint one (1) to operate the common sewage system, subject to the continuing jurisdiction of the circuit court.
    2. Any such receiver appointed by the circuit court may exercise any and all legal powers and rights assigned by law to the original owner or operator of the common sewage system, but is immune to any personal liability associated with the operation of the common sewage system.
    3. Once a receiver is appointed by the circuit court to operate the common sewage system, the circuit court may make available to the receiver funds pledged by the common sewage system under the minimal financial assurance provision of this subchapter, and, in addition, the receiver may assess rates as necessary to operate and maintain the common sewage system. The receiver is explicitly authorized to operate the common sewage system with the proceeds collected from the facilities which are connected to such common sewage system. The receiver shall receive a reasonable professional fee for this service, which shall be determined by the circuit court. The proceeds collected by the receiver shall be maintained in an account at a national bank located within the State of Arkansas. The receiver shall report to the circuit court, from time to time, how the proceeds have been collected and spent by the receiver.
    1. If the circuit court determines that the permitted or registered entity cannot equitably satisfy the provisions of this subchapter or that no feasible alternatives exist, the circuit court shall so certify that determination to the division, which shall terminate the entity's permit, and the circuit court shall request a review by the Secretary of the Department of Health of the public health impact of an order compelling the entity supplying potable water to the common sewage system to cut off the flow of potable water.
      1. If the secretary determines that a greater health hazard exists from the malfunctioning common sewage system than from the discontinuance of potable water service, then the secretary shall so certify this determination to the circuit court.
      2. The circuit court shall then issue an order compelling the receiver to notify all users of such common sewage system, including landowners and tenants, of the secretary's determination.
      3. Upon evidence of reasonable notice, the circuit court shall then issue the order to cut off the flow of potable water.
  3. The division is authorized to institute a civil action in any court of competent jurisdiction to accomplish any or all of the following:
    1. Restrain any violation of or compel compliance with the provisions of this subchapter and of rules, orders, permits, or plans issued pursuant thereto;
    2. Affirmatively order remedial measures be taken as may be necessary or appropriate to implement or effectuate the purposes and intent of this subchapter;
    3. Recover all costs, expenses, and damages to the division and any other agency or subdivision of the state in enforcing or effectuating the provisions of this subchapter, including, but not limited to, natural resource damages;
    4. Assess civil penalties in an amount not to exceed ten thousand dollars ($10,000) per day for violations of this subchapter and of any rules, permits, or plans issued pursuant thereto; or
    5. Recover civil penalties assessed pursuant to § 8-4-103(c).
    1. In addition to the remedies provided in subsections (a)-(e) of this section, the division shall have the authority to prohibit new or additional sewer line connections onto a common sewage system meeting the criteria established by § 8-5-701.
    2. Once the division is satisfied that the common sewage system is in compliance with state and federal law, the division may authorize new or additional sewer line connections onto the common sewage system.

History. Acts 1995, No. 336, § 1; 1997, No. 287, § 1; 1999, No. 1164, §§ 46-49; 2019, No. 315, §§ 517, 518; 2019, No. 910, §§ 2564-2569.

Amendments. The 2019 amendment by No. 315 deleted “regulations” following “rules” in (e)(1) and (e)(4).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” throughout the section; substituted “Secretary” for “Director” in (d)(1); substituted “secretary” for “Director of the Department of Health” twice in (d)(2)(A); and substituted “secretary’s” for “Director of the Department of Health’s” in (d)(2)(B).

8-5-703. Financial assurance requirements for subsequently permitted common sewage systems.

      1. The Division of Environmental Quality may require a permitted common sewage system that is in chronic noncompliance to demonstrate to the division its financial ability to cover the estimated costs of operating and maintaining the common sewage system for a minimum period of five (5) years.
      2. The division may require the permitted common sewage system that is in chronic noncompliance to submit a cost estimate for a third party to operate and maintain the common sewage system each year for a period of five (5) years.
    1. The division shall not modify or renew a National Pollutant Discharge Elimination System permit or state permit for a common sewage system if the common sewage system facility is in chronic noncompliance and the common sewage system facility proposes to use new technology that in the discretion of the division cannot be verified to meet permit requirements.
  1. The applicant's financial ability to operate and maintain the common sewage system for a period of five (5) years shall be demonstrated to the division by:
    1. Obtaining insurance that specifically covers operation and maintenance costs;
    2. Obtaining a letter of credit;
    3. Obtaining a surety bond;
    4. Obtaining a trust fund or an escrow account; or
    5. Using a combination of insurance, letter of credit, surety bond, trust fund, or escrow account.
  2. The division may require an amount of financial assurance that exceeds the cost estimate submitted by the applicant.
  3. A financial instrument required by this section shall be posted to the benefit of the division and shall remain in effect for the life of the permit.
  4. It is explicitly understood that the division shall not directly operate and shall not be responsible for the operation of any sewage system.
  5. This section does not restrict local and county government entities from enacting more stringent ordinances regulating nonmunicipal domestic treatment sewage systems in Arkansas.

History. Acts 1995, No. 336, § 1; 1999, No. 1164, §§ 50, 51; 2007, No. 832, § 2; 2009, No. 409, § 2; 2019, No. 910, § 2570.

A.C.R.C. Notes. As enacted by Acts 1995, No. 336, § 1, subdivision (a)(1) and subsection (b) began:

“After the effective date of this Act.” Acts 1995, No. 336, became effective July 28, 1995.

Amendments. The 2007 amendment rewrote the section.

The 2009 amendment rewrote (a) through (c), and made minor stylistic changes in (d) and (f).

The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(1)(A); and substituted “division” for “department” throughout the section.

Subchapter 8 — Small Business Revolving Loan Fund for Pollution Control and Prevention Technologies Act

Effective Dates. Acts 1997, No. 691, § 6: July 1, 1997. Emergency clause provided: “It is hereby found and determined by the Eighty-First General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1997 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1997 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1997.”

Acts 2019, No. 82, § 23: July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the General Improvement Fund should no longer be utilized; that the Development and Enhancement Fund is necessary to complete unfinished state projects; and that this act is necessary to address infrastructure needs and unanticipated needs of the State of Arkansas. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

8-5-801. Title.

This subchapter may be called the “Small Business Revolving Loan Fund for Pollution Control and Prevention Technologies Act”.

History. Acts 1997, No. 691, § 1.

8-5-802. Purpose.

It is the purpose of this subchapter to authorize the Division of Environmental Quality to establish and administer a revolving loan fund to encourage the investment in pollution control and prevention technologies in Arkansas. The fund will promote sustainable economic development in Arkansas by establishing a publicly capitalized fund to make loans to small businesses for projects to meet regulatory mandates in pollution control, to adopt pollution prevention technologies, or to implement waste reduction practices.

History. Acts 1997, No. 691, § 1; 1999, No. 1164, § 52; 2001, No. 213, § 1; 2019, No. 910, § 2571.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality”.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Environmental Law, 24 U. Ark. Little Rock L. Rev. 475.

8-5-803. Definitions.

As used in this subchapter:

  1. “Applicant” means any business concern operating within the State of Arkansas that meets the criteria of a person, corporation, partnership, or other business organization;
  2. “Commission” means the Arkansas Pollution Control and Ecology Commission;
  3. [Repealed.]
  4. [Repealed.]
    1. “Pollution prevention” means reducing or eliminating the generation of pollutants and waste at the source.
    2. “Pollution prevention” includes:
      1. Process modifications and equipment acquisitions that promote the recovery and reuse of pollutants; and
      2. The acquisition and installation of capital equipment, a process change, or a combination of capital equipment and process change.
    3. “Pollution prevention” does not include investments in waste treatment processes or equipment, unless the waste treatment involves the recovery and reuse of pollutants; and
    1. “Waste reduction” means handling or processing waste materials in a way that ultimately reduces the total quantity of waste disposed.
    2. “Waste reduction” includes process modifications and equipment acquisitions that promote the recovery, reuse, or recycling of pollutants and wastes.

History. Acts 1997, No. 691, § 1; 1999, No. 1164, §§ 53, 54; 2001, No. 213, § 2; 2005, No. 1254, § 1; 2019, No. 315, § 519; 2019, No. 693, § 12; 2019, No. 910, § 2572.

A.C.R.C. Notes. Acts 2019, No. 315, § 519, amended former subdivision (5) of this section concerning the definition of “mandated environmental control” to insert the phrase “environmental law or duly adopted regulation” following “federal” and replace “regulation” with “rule” at the end of the subdivision. However, Acts 2019, No 693, § 12, specifically repealed this subdivision.

Amendments. The 2019 amendment by No. 315, in former (5), inserted “environmental law or duly adopted regulation” and substituted “rule” for “regulation”.

The 2019 amendment by No. 693 deleted former (5); redesignated former (6) as (5); rewrote (5)(B) and (C); and deleted (5)(D).

The 2019 amendment by No. 910 repealed (3) and (4).

8-5-804. Eligible activities.

  1. Moneys deposited into the Small Business Revolving Loan Fund within the Division of Environmental Quality may be:
    1. Loaned to eligible participants to pay the direct costs of projects which are designed to correct or avoid violations of federal environmental regulations or state environmental rules and have received a certificate of need from the division; or
    2. Expended to pay costs incurred by the division to provide management of lending activities.
    1. It is the purpose of this subchapter to authorize the division to establish and administer a revolving loan fund to encourage the investment in pollution control, pollution prevention, and waste reduction practices in Arkansas.
    2. Such a fund will promote sustainable economic development in Arkansas by establishing a publicly capitalized revolving loan fund to make loans to small businesses for projects to meet regulatory mandates in pollution control or to adopt pollution prevention technologies.
    3. Operating expenses associated with proofing a process change or equipment modification would be an eligible loan activity.

History. Acts 1997, No. 691, § 1; 1999, No. 1164, § 55; 2001, No. 213, § 3; 2019, No. 315, § 520; 2019, No. 910, § 2573.

Amendments. The 2019 amendment by No. 315 substituted “federal environmental regulations or state environmental rules” for “federal or state environmental regulations” in (a)(1).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the introductory language of (a); and substituted “division” for “department” in (a)(1), (a)(2), and (b)(1).

8-5-805. Eligible applicants.

  1. An eligible applicant shall:
    1. Employ one hundred (100) or fewer individuals, including both full-time and part-time employees, through direct hiring or contract, including affiliates and subsidiaries, at the time an application for a loan is received by the Division of Environmental Quality;
    2. Provide proof of profitable operations and a demonstrated ability to repay the loan; and
    3. Submit an application supplied by the division including any supporting documents, instruments, or other documents requested by the division for the purposes of recommending approval or disapproval of a loan described in this section.
    1. Until all delinquent fees stated in this subsection or otherwise owed to the division are paid in full and no balance is due, the Director of the Division of Environmental Quality shall not approve any loan application.
    2. The delinquent fees include, but are not limited to:
      1. Permit fees;
      2. Permit modification fees;
      3. License fees;
      4. Certification fees;
      5. Registration fees;
      6. Variance application fees;
      7. Civil penalties;
      8. Emergency response reimbursements;
      9. Loan payments; and
      10. Review fees.

History. Acts 1997, No. 691, § 1; 2005, No. 1254, § 2; 2019, No. 910, §§ 2574-2576.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(1) and (b)(1); and substituted “division” for “department” in (a)(3) twice and in (b)(1).

8-5-806. Terms of the revolving loan.

    1. The maximum loan amount shall be:
      1. Forty-five thousand dollars ($45,000) per mandated pollution control project;
      2. Forty-five thousand dollars ($45,000) per pollution prevention project; and
      3. Forty-five thousand dollars ($45,000) per waste reduction project.
    2. The maximum allowable amount to be loaned shall not exceed sixty-five thousand dollars ($65,000) per individual applicant.
  1. The maximum term of the loan shall be ten (10) years per mandated pollution control project and ten (10) years per pollution prevention or waste reduction project.
  2. The interest rate shall be:
    1. Established by the Division of Environmental Quality at or below market rate; and
    2. Fixed for the term of each loan at the rate that is in effect when the loan application is received or when the loan is closed, whichever is lower.
    1. The borrower shall be required to make level monthly amortizing payments to retire the debt by the end of the loan term.
    2. Loan principal may be repaid in part or in full at any time without penalty.
    1. The division may:
      1. Make secured or unsecured loans with a promissory note;
      2. Collect interest on any loans issued; and
      3. Assess penalties on late loan payments.
    2. Loans issued under this subchapter may contain an acceleration clause.
  3. The division may bring any lawful action to recover any loan that is in default.

History. Acts 1997, No. 691, § 1; 1999, No. 1164, § 56; 2001, No. 213, § 4; 2005, No. 1254, § 3; 2019, No. 910, §§ 2577-2579.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (c)(1); and substituted “division” for “department” in the introductory language of (e)(1), and in (f).

8-5-807. Small Business Revolving Loan Fund.

  1. There is created within the Division of Environmental Quality a revolving loan fund:
    1. Which shall be designated the “Small Business Revolving Loan Fund”;
    2. Into which shall be transferred or deposited the moneys to be provided by law for the Small Business Revolving Loan Fund; and
    3. To be used as a revolving fund by the division for making loans to eligible participants to pay the direct costs of projects that are designed to correct or avoid violations of federal environmental law or regulation or state environmental rules and have received a certificate of need from the division or to pay costs incurred by the division to provide management of lending activities.
    1. There is established on the books of the Treasurer of State, the Auditor of State, and the Chief Fiscal Officer of the State a fund to be known as the “Small Business Revolving Loan Fund”.
    2. The Small Business Revolving Loan Fund shall consist of the following:
      1. All funds transferred from the General Improvement Fund or its successor fund or fund accounts, including the Development and Enhancement Fund, to be otherwise provided by law for the Small Business Revolving Loan Fund;
      2. All moneys received by the division upon repayment of loans made from the furnishing of funds for loans under the program created by this subchapter;
      3. Interest earned upon any money in the Small Business Revolving Loan Fund; and
      4. All sums recovered upon by the Small Business Revolving Loan Fund for losses to the Small Business Revolving Loan Fund or for loan losses under the loan program created in this subchapter and all other moneys received for the Small Business Revolving Loan Fund from any source.
    1. Subject to the provisions of this subchapter, the division is vested with full power, authority, and jurisdiction over the Small Business Revolving Loan Fund, including all moneys and property or securities belonging to the Small Business Revolving Loan Fund.
    2. The division may invest the Small Business Revolving Loan Fund in direct general obligations of the United States, in certificates of deposit or savings accounts in an amount not to exceed the capital funds, represented by capital, surplus, and undivided profits in financial institutions located in Arkansas that are insured by an agency of the United States Government, and in repurchase agreements that are collateralized by direct general obligations of the United States or by bonds, notes, debentures, participation certificates, or other obligations issued by an agency of the United States, the principal and interest of which are guaranteed by the agency or the United States.

History. Acts 1997, No. 691, § 1; 1999, No. 1164, §§ 57, 58; 2005, No. 1254, § 4; 2019, No. 82, § 4; 2019, No. 315, § 521; 2019, No. 910, §§ 2580-2583.

A.C.R.C. Notes. Acts 2019, No. 82, § 1, provided: “Legislative intent.

It is the intent of the General Assembly that the creation of the Development and Enhancement Fund is necessary to provide a mechanism to disburse funds for:

“(1) Various construction and improvement projects;

“(2) Unforeseen needs;

“(3) Funding deficiencies; and

“(4) The completion of projects previously funded by the General Assembly”.

Amendments. The 2019 amendment by No. 82 inserted “or its successor fund or fund accounts, including the Development and Enhancement Fund” in (b)(2)(A).

The 2019 amendment by No. 315 substituted “environmental law or regulations or state environmental rules” for “or state environmental regulations” in (a)(3).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the introductory language of (a); and substituted “division” for “department” throughout the section.

Cross References. Small Business Revolving Loan Fund, § 19-5-1105.

8-5-808. Administration of the program.

The Division of Environmental Quality will manage the program through its Small Business Assistance Program. The program is authorized to delegate the management of the Small Business Revolving Loan Fund. The division shall retain the power to issue certificates of need for eligible projects and shall not delegate such authority.

History. Acts 1997, No. 691, § 1; 1999, No. 1164, § 59; 2019, No. 910, § 2584.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” and “division” for “department”.

Subchapter 9 — Long-Term Environmental Projects

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

8-5-901. Legislative findings and intent.

The General Assembly hereby finds that many areas of the state would benefit from long-term environmental remediation projects that significantly improve the effects caused by industrial or extractive activities. However, commitments by private enterprise to remedy such damages are discouraged by the prospect of civil liability based upon rigid application of state water quality standards to the enterprise's activities. The purpose of this subchapter is to preserve the state's approach to establishing water quality standards, while also encouraging private enterprises to make significant improvements to closed or abandoned sites that are of such magnitude that more than three (3) years would be required to complete the project.

History. Acts 1997, No. 401, § 1.

8-5-902. Definitions and applicability.

As used in this subchapter:

  1. “Commission” means the Arkansas Pollution Control and Ecology Commission;
  2. [Repealed.]
  3. “Long-term improvement project” or “project” means any remediation or reclamation project at closed or abandoned:
    1. Mineral extraction sites;
    2. Solid waste management units as defined pursuant to the Arkansas Hazardous Waste Management Act of 1979, § 8-7-201 et seq.;
    3. Oil and gas extraction sites;
    4. Brownfield sites as defined in Acts 1995, No. 125, or as may be amended; and
    5. Hazardous substance sites listed on the National Priorities List, 42 U.S.C. § 9605, or state priority list, § 8-7-509(f), or as may be amended; and
  4. “Water quality standard” means standards developed through administrative rulemaking by the commission.

History. Acts 1997, No. 401, § 2; 1999, No. 1164, § 60; 2013, No. 1127, § 4; 2019, No. 910, § 2585.

Publisher's Notes. Acts 1995, No. 125, referred to in this section, is codified as §§ 8-7-503, 8-7-520, and 8-7-523 [repealed].

Amendments. The 2013 amendment, in (3)(E), substituted “Priorities” for “Priority” and “§ 8-7-509(f)” for “§ 8-7-509(e)”.

The 2019 amendment repealed (2).

8-5-903. Procedures for approval of environmental projects, contents of applications, and public notice.

  1. A petitioner seeking approval of a change in water quality standards to accommodate a long-term improvement project shall file with the Division of Environmental Quality a notice of intent, which includes as a minimum:
    1. A description of the water body or stream segment affected by the project;
    2. The existing ambient water quality for the use of criteria at issue;
    3. The affected water quality standard;
    4. The modifications sought;
    5. The proposed remediation activities;
    6. A proposed remediation plan, which shall contain:
      1. A description of the existing conditions, including identification of the conditions limiting the attainment of the water quality standards;
      2. A description of the proposed water quality standard modification, both during and post-project;
      3. A description of the proposed remediation plan; and
      4. The anticipated collateral effects, if any, of the remediation plan; and
    7. A schedule for implementing the remediation plan that ensures that the post-project water quality standards are met as soon as reasonably practicable.
  2. The division shall cause notice of the proposed project and associated water quality standard changes described in subsection (a) of this section to be published for public notice and comment in the same manner as provided for permit applications in § 8-4-203(c), and shall notify the public that the details of the proposed project are available for public review.
    1. After considering comments from the public, the division shall notify the petitioner as to whether the proposed project is approved or denied.
    2. The division may deny approval of a project if it reasonably concludes that:
      1. The plan is not complete;
      2. The plan is not technically sound;
      3. The schedule is unrealistic;
      4. The plan will not have an overall beneficial effect for the environment; or
      5. For other appropriate reasons.
    3. Any division determination on the approval or denial of a project is subject to the appeal procedures applicable to permitting decisions set out in § 8-4-205.
  3. Upon approval of the project for further development, the petitioner shall prepare documentation required for third-party rulemaking by § 8-4-202 and established in administrative procedures.

History. Acts 1997, No. 401, § 3; 2009, No. 409, § 3; 2019, No. 910, §§ 2586, 2587.

Amendments. The 2009 amendment, in (b), substituted “8-4-203(c)” for “8-4-203(b)” and made minor stylistic changes.

The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the introductory language of (a); and substituted “division” for “department” in (b) and throughout (c).

8-5-904. Modification of water quality standards.

  1. The Arkansas Pollution Control and Ecology Commission may approve a modification where the water quality standard is not being maintained due to conditions which may, in part or in whole, be corrected through the implementation of long-term measures. The commission shall establish such subcategory of use and modify such general and specific standards as it deems appropriate to reflect such modification while ensuring that the fishable/swimmable use is maintained. In all water quality standard changes associated with long-term improvement projects, the remedial action plan described in § 8-5-903(a) shall be incorporated by reference in the statement of basis and purpose of the rule and shall be considered an essential condition of the modified water quality standard.
    1. Once the commission approves a water quality standard modification, the Division of Environmental Quality shall ensure that conditions and limitations designed to achieve compliance with the plan are established in applicable discharge permits, consent administrative orders, or such other enforcement measures deemed appropriate by the division.
    2. The division may allow modifications by the petitioner to the remediation plan and schedule as is deemed appropriate, provided that any such modifications to the original remedial action plan shall not render the project significantly less protective of the applicable use subcategory.
    3. Should the division find that the petitioner is not acting in good faith to complete the project in accordance with the approved plan, applicable and appropriate enforcement authority may be exercised subject to appeal to the commission.
  2. The division or the petitioner shall report annually to the commission on the progress of the project.

History. Acts 1997, No. 401, § 4; 2019, No. 910, § 2588.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (b)(1); and substituted “division” for “department” throughout (b) and (c).

8-5-905. Project completion.

At the end of the long-term improvement project, the post-project water quality standards shall be in full force and effect.

History. Acts 1997, No. 401, § 5.

Chapter 6 Disposal of Solid Wastes and Other Refuse

Subchapter 1 — General Provisions

[Reserved.]

Subchapter 2 — Arkansas Solid Waste Management Act

Publisher's Notes. Acts 1997, No. 1219, § 1, provided: “Legislative intent. With Act 1230 of 1991, the General Assembly sought to delineate the respective responsibilities of the Arkansas Pollution Control and Ecology Commission and the Arkansas Department of Pollution Control & Ecology. Confusion on these issues in the public's perception continues, however, primarily because of the similarity in the names of these entities. The purpose of this Act is to achieve the legislative intent of Act 1230 of 1991 and to definitively assign the executive, adjudicatory, and rulemaking roles for the State's regulatory functions concerning protection of the environment.”

Cross References. Agricultural operations, § 8-6-509.

Permit fees for air, water, and solid waste pollution control activities, § 8-1-101 et seq.

Effective Dates. Acts 1971, No. 237, § 15: Mar. 9, 1971. Emergency clause provided: “It has been found and it is hereby declared by the General Assembly of the State of Arkansas that it is essential to the health, welfare and safety of the people of the State of Arkansas, and to the conservation of natural resources and the minimizing of environmental damage that adequate sites and facilities be made available promptly for the proper disposal and recycling of solid wastes; that existing practices and laws are inadequate; that this act and the implementation thereof are necessary to the accomplishment of the foregoing purposes and to the welfare of the State of Arkansas and her people. Therefore, an emergency is hereby declared to exist, and this act, being necessary for the preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1991, No. 1007, § 7: Apr. 8, 1991. Emergency clause provided: “It is hereby found and determined by the Seventy-Eighth General Assembly of the State of Arkansas that city and county governments and solid waste authorities are not permitted to collect delinquent solid waste management system fees and service charges under the county property tax collection system which county subordinate service districts are currently authorized to use; that the use of the county property tax collection system will improve fee collection and increase revenues for county solid waste management; and that, at this time, there is an increasingly critical need to collect all necessary revenues to support the operation of city and county solid waste management systems and solid waste authorities. Therefore, in order to promote the effective collection of delinquent solid waste fees or service charges at this critical time, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1991, No. 1057, § 9: Apr. 9, 1991. Emergency clause provided: “It is hereby found and determined by the 78th General Assembly that the sanctions imposed by current Arkansas law for environmental violations are among the least stringent in the nation. Thus, current law is inadequate to deter environmental violations, and in fact extends an implicit invitation to irresponsible industries. Protection of the environmental integrity of this state is essential to protect the public's health and economic well-being. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1993, No. 1280, § 9: Apr. 21, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that some areas of the state are facing critical shortages of solid waste disposal capacity due to the difficulties in citing landfill facilities at the local level. It is found that the authority granted to municipalities and counties to adopt more restrictive standards for the location, design, construction, and maintenance of solid waste disposal sites and facilities than those adopted by the federal, state and regional laws, rules, regulations and orders has exacerbated and attenuated this crises and could thwart or jeopardize the purposes of Arkansas Act 752 of 1991 and its efforts to protect the public health and the state's environmental quality by establishing regional solid waste management and planning. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1997, No. 179, § 38: Feb. 17, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 10 of the First Extraordinary Session of 1995 abolished the Joint Interim Committee on Public Health, Welfare, and Labor and in its place established the House Interim Committee and Senate Interim Committee on Public Health, Welfare, and Labor; that various sections of the Arkansas Code refer to the Joint Interim Committee on Public Health, Welfare, and Labor and should be corrected to refer to the House and Senate Interim Committees on Public Health, Welfare, and Labor; that this act so provides; and that this act should go into effect immediately in order to make the laws compatible as soon as possible. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Act 2005, No. 1824, § 20: July 1, 2005. Emergency clause provided: “The General Assembly of the State of Arkansas hereby finds and determines that the decision of the Arkansas Supreme Court in Arkansas Department of Environmental Quality v. Brighton Corp. 352 Ark. 396, 102 S.W.3d 458 (2003), has raised questions regarding the factual proof required to establish a claim for cost recovery under the Arkansas Remedial Action Trust Fund Act and regarding the retroactivity of the statute. The General Assembly further finds and determines that the doubts raised by the decision in the Brighton case have created substantial uncertainty regarding the enforcement authority of the Arkansas Department of Environmental Quality and the rights and responsibilities of private parties under the Arkansas Remedial Action Trust Fund Act, all of which require urgent resolution. Therefore, an emergency is declared to exist; and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2005, and shall apply retroactively.”

Acts 2011, No. 174, § 2: Mar. 4, 2011. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that counties face a significant risk of nonpayment when a tenant is registered as an occupant for purposes of payment of solid waste management fees and charges; that an increasing number of tenants are not paying county solid waste management fees and charges; and that this act is necessary because counties are losing an increasing amount of revenue as the result of nonpayment of fees and charges by transient tenants. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

ALR.

Private landowner's disposal of solid waste on own property. 37 A.L.R.4th 635.

Am. Jur. 61C Am. Jur. 2d, Pollution Control, § 1036 et seq.

Ark. L. Notes.

Looney, Handling Administrative Proceedings Before the Arkansas Pollution Control and Ecology Department and Commission, 1988 Ark. L. Notes 23.

C.J.S. 39A C.J.S., Health & Env., § 160.

U. Ark. Little Rock L.J.

Survey, Water and Environmental Law, 12 U. Ark. Little Rock L.J. 665.

Case Notes

Purpose.

The Arkansas Solid Waste Management Act, § 8-6-201 et seq., does not expressly grant municipalities the power to grant exclusive solid waste disposal franchises; however, the legislative intent to displace competition can be inferred from the statutory scheme because it is a necessary and reasonable consequence of engaging in the authorized activity. Regulation of solid waste management is one of the traditional public health functions of local government, and the legislative scheme contemplates displacing competition with regulation in the area of solid waste management and disposal. L & H Sanitation, Inc. v. Lake City Sanitation, Inc., 769 F.2d 517 (8th Cir. 1985).

Authority of Local Governments.

Neither the Arkansas Solid Waste Management Act nor the Resource Conservation and Recovery Act have preempted the authority of local governments to adopt additional landfill standards as provided for in this statute. Johnson v. Sunray Servs., Inc., 306 Ark. 497, 816 S.W.2d 582 (1991).

Causes of Action.

The legislature intended that the State be able to bring claims for natural resource damages under this subchapter and under §§ 8-4-101 et seq. and 8-7-201 et seq.Arkansas ex rel. Bryant v. Dow Chem. Co., 981 F. Supp. 1170 (E.D. Ark. 1997).

Statute of Limitations.

The environmental protection provisions found in this subchapter and §§ 8-4-101 et seq. and 8-7-201 et seq., are regulatory and protective rather than penal, and therefore the statute of limitations for penal actions, § 16-56-108, does not apply. Arkansas ex rel. Bryant v. Dow Chem. Co., 981 F. Supp. 1170 (E.D. Ark. 1997).

8-6-201. Title.

This subchapter may be cited as the “Arkansas Solid Waste Management Act”.

History. Acts 1971, No. 237, § 1; A.S.A. 1947, § 82-2701.

Research References

Ark. L. Rev.

Case Note, Johnson v. Sunray Services, Inc.: Possible Solutions to the NIMBY Syndrome, 45 Ark. L. Rev. 657.

Case Notes

Adversely Affected.

Following an initial clean-up of certain soil contamination, although the state issued a letter indicating that no further action was necessary, a reasonable jury could find that the property owners were adversely affected, for purposes of the Arkansas Solid Waste Management Act, § 8-6-201 et seq., by their lessee's violation of the Act where the property owners had to remove contamination to accommodate the needs of their new tenant. Patton v. TPI Petroleum, Inc., 356 F. Supp. 2d 921 (E.D. Ark. 2005).

Construction with Other Laws.

Pursuant to § 8-7-812, where the Arkansas Solid Waste Management Act, § 8-6-201 et seq., provides a remedy, that remedy does not conflict with the Regulated Substance Storage Tank Law, § 8-7-801 et seq., because such a remedy would be in addition to, not in conflict with, the regulations found in the storage tank law; the storage tank law does not provide the exclusive remedy for storage tanks leaks and does not supersede the Solid Waste Management Act absent a conflict. Patton v. TPI Petroleum, Inc., 356 F. Supp. 2d 921 (E.D. Ark. 2005).

Statute of Limitations.

Court denied summary judgment to the oil company, which was one of the defendants in an action by the landowners for damages from defendants' dumping, as the Arkansas Solid Waste Management Act (ASWMA), § 8-6-201 et seq., contained no limitations period; the court believed that it was doubtful that the Arkansas Legislature intended that a limitations period specifically limited to actions founded on contract or liability, as set forth in § 16-56-105(3), should operate to reach out and limit the reach of the ASWMA. Sewell v. Phillips Petro. Co., 197 F. Supp. 2d 1160 (W.D. Ark. 2002).

District court's verdict was reversed on appeal where the applicable statute of limitations, § 16-56-105, began to run at the latest date the plaintiff lessor learned its land had suffered a remediable injury, though it did not yet know the extent of the injury. Highland Indus. Park, Inc. v. BEI Def. Sys. Co., 357 F.3d 794 (8th Cir. 2004).

Cited: Laidlaw Waste Sys. v. City of Ft. Smith, 742 F. Supp. 540 (W.D. Ark. 1990); Southeast Ark. Landfill, Inc. v. State, 313 Ark. 669, 858 S.W.2d 665 (1993).

8-6-202. Purpose.

It is the purpose of this subchapter and it is declared to be the policy of this state to regulate the collection and disposal of solid wastes in a manner that will:

  1. Protect the public health and welfare;
  2. Prevent water or air pollution;
  3. Prevent the spread of disease and the creation of nuisances;
  4. Conserve natural resources; and
  5. Enhance the beauty and quality of the environment.

History. Acts 1971, No. 237, § 2; A.S.A. 1947, § 82-2702.

Case Notes

Cited: Ark. Comm'n on Pollution Control & Ecology v. Land Developers, Inc., 284 Ark. 179, 680 S.W.2d 909 (1984); Arkansas ex rel. Bryant v. Dow Chem. Co., 981 F. Supp. 1170 (E.D. Ark. 1997); Sewell v. Phillips Petro. Co., 197 F. Supp. 2d 1160 (W.D. Ark. 2002).

8-6-203. Definitions.

As used in this subchapter:

  1. “Disposal site” 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;
    1. “Hazardous waste” means any waste or combination of wastes of a solid, liquid, contained gaseous, or semisolid form that, because of its quantity, concentration, or physical, chemical, or infectious characteristics, may in the judgment of the Division of Environmental Quality:
      1. Cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or
      2. Pose a substantial present or potential hazard to human health or the environment if improperly treated, stored, transported, or disposed of, or otherwise improperly managed.
    2. “Hazardous waste” includes without limitation waste that:
      1. Is radioactive;
      2. Is toxic;
      3. Is corrosive;
      4. Is flammable;
      5. Is an irritant or a strong sensitizer; or
      6. Generates pressure through decomposition, heat, or other means;
  2. “Household” means a single or multiple residence, hotel or motel, bunkhouse, ranger station, crew quarters, campground, picnic ground, and day-use recreation area;
    1. “Household hazardous waste” means any hazardous waste derived from a household that is no longer under the control of the household.
    2. “Household hazardous waste” includes without limitation:
      1. Household cleaners;
      2. Gasoline;
      3. Paint, paint strippers, and paint thinners;
      4. Motor oil; and
      5. Herbicides and pesticides, excluding antimicrobial and disinfectant products;
    1. “Household hazardous waste storage or processing center” means a facility that stores, accumulates, or processes household hazardous waste.
    2. “Household hazardous waste storage or processing center” does not include:
      1. Hazardous waste treatment, storage, and disposal facilities permitted by the division under the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq.;
      2. Facilities with an agriculture exemption under § 8-6-2019; or
      3. De minimis amounts of household hazardous waste that have not been removed from the municipal solid waste stream;
  3. “Municipality” means a city of the first class, a city of the second class, or an incorporated town;
  4. “Person” means any individual, corporation, company, firm, partnership, association, trust, state agency, government instrumentality or agency, institution, county, city, town, municipal authority or trust, venture, or other legal entity, however organized;
    1. “Pesticide” means a substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest or for use as a plant regulator, defoliant, or desiccant.
    2. “Pesticide” does not include:
      1. A new animal drug as defined in 21 U.S.C. § 321(v);
      2. An animal drug that has been determined by regulation of the Secretary of the United States Department of Health and Human Services not to be a new animal drug; or
      3. An animal feed as defined in 21 U.S.C. § 321(w);
  5. “Solid waste” means any garbage or refuse, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved materials in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to permit under 33 U.S.C. § 1342, or source, special nuclear, or by-products material as defined by the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq.;
  6. “Solid waste board” or “board” means a regional solid waste management board or a solid waste service area board, or its successor, created under § 8-6-701 et seq.;
  7. “Solid waste management system” means the entire process of source reduction, storage, collection, transportation, processing, waste minimization, recycling, and disposal of solid wastes by any person engaging in the process as a business or by any municipality, authority, trust, county, or by any combination of a municipality, authority, trust, or county; and
  8. “Transfer station” 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.

History. Acts 1971, No. 237, § 3; A.S.A. 1947, § 82-2703; Acts 1991, No. 751, §§ 1, 2; 1995, No. 547, § 1; 1999, No. 1164, § 61; 2011, No. 1153, § 1; 2013, No. 1127, §§ 5, 6; 2019, No. 910, §§ 2589, 2590; 2019, No. 1067, § 2.

A.C.R.C. Notes. Acts 2019, No. 1067, § 11, provided: “(a) The purpose of this act is to have the Environmental Compliance Resource Program operational and to make illegal dump control officers unnecessary on or before May 1, 2020.

“(b) If legislation concerning the transformation of the Arkansas Department of Environmental Quality is enacted during this Regular Session of the General Assembly, the Arkansas Code Revisor and the Arkansas Code Revision Commission shall correct the references to the Arkansas Department of Environmental Quality consistent with those laws”.

Amendments. The 2011 amendment deleted former (1) and (2), inserted present (2) through (5) and (8), and redesignated the remaining subdivisions accordingly.

The 2013 amendment substituted “Is radioactive” for “Radioactive” in (2)(B)(i); substituted “Is toxic” for “Toxic” in (2)(B)(ii); substituted “Is corrosive” for “Corrosive” in (2)(B)(iii); substituted “Is flammable” for “Flammable” in (2)(B)(iv); in (2)(B)(v), substituted “Is an” for “An” and “or” for “and” at the end; substituted “Generates” for “That generate” in (2)(B)(vi); substituted “as defined in” for “under the Federal Food, Drug, and Cosmetic Act” in (8)(B)(i) and (8)(B)(iii); substituted “§ 321(v)” for “301 § 201(w)” in (8)(B)(i); and substituted “§ 321(w)” for “301 § 201(x)” in (8)(B)(iii).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the introductory language of (2)(A); and substituted “division” for “department” in (5)(B)(i).

The 2019 amendment by No. 1067 substituted “Facilities with an agriculture exemption under § 8-6-2019” for “Agricultural operations as defined in § 8-6-509” in (5)(B)(ii).

Research References

Ark. L. Rev.

Case Note, Johnson v. Sunray Services, Inc.: Possible Solutions to the NIMBY Syndrome, 45 Ark. L. Rev. 657.

Case Notes

Authority of Commission.

The legislature intended both the Solid Waste Act and Hazardous Waste Act to allow the Arkansas Department of Pollution Control and Ecology (PC & E), within certain guidelines, to determine what substances are permitted under those acts, and a decision by the PC & E permitting a category of waste not defined in any of the acts was not an abuse of discretion. Bryant v. Mathis, 310 Ark. 737, 839 S.W.2d 528 (1992).

8-6-204. Criminal, civil, and administrative penalties.

  1. Criminal Penalties.
      1. Any person who violates any provision of this subchapter, who commits any unlawful act under this subchapter, or who violates any rule or order of the Arkansas Pollution Control and Ecology Commission or the Division of Environmental Quality shall be guilty of a misdemeanor.
      2. Notwithstanding any other provisions of Arkansas law, upon conviction that person shall be subject to imprisonment for not more than one (1) year or a fine of not more than twenty-five thousand dollars ($25,000), or subject to both such fine and imprisonment. For the purpose of fines only, each day or part of a day during which the violation is continued or repeated shall constitute a separate offense.
      1. It shall be illegal for a person to:
        1. Violate any provision of this subchapter, commit any unlawful act under this subchapter, or violate any rule or order of the commission or division, and leave the state or remove his or her person from the jurisdiction of this state;
        2. Through the course of activities prohibited by this section, purposely, knowingly, or recklessly cause pollution of the waters or air of the state in a manner not otherwise permitted by law and thereby create a substantial likelihood of adversely affecting human health, animal or plant life, or property; or
        3. Purposely or knowingly make any false statement, representation, or certification in any document required to be maintained under this chapter, or falsify, tamper with, or render inaccurate any monitoring device, testing method, or record required to be maintained under this chapter.
        1. A person who violates this subdivision (a)(2) shall be guilty of a felony.
        2. Notwithstanding any other provisions of Arkansas law, upon conviction that person shall be subject to imprisonment for not more than five (5) years or a fine of not more than fifty thousand dollars ($50,000), or subject to both such fine and imprisonment. For the purpose of fines only, each day or part of a day during which the violation is continued or repeated shall constitute a separate offense.
    1. Notwithstanding the limits on fines set in subdivisions (a)(1) and (2) of this section, if a person convicted under subdivision (a)(1) or subdivision (a)(2) of this section has derived or will derive pecuniary gain from commission of the offenses, then he or she may be sentenced to pay a fine not to exceed two (2) times the amount of the pecuniary gain.
  2. Civil Penalties. The division is authorized to institute a civil action in any court of competent jurisdiction to accomplish any or all of the following:
    1. Restrain any violation of or compel compliance with the provisions of this subchapter and of any rules, orders, permits, licenses, or plans issued pursuant to this subchapter;
    2. Affirmatively order that remedial measures be taken as may be necessary or appropriate to implement or effectuate the purposes and intent of this subchapter;
    3. Recover all costs, expenses, and damages to the division and any other agency or subdivision of the state in enforcing or effectuating the provisions of this subchapter, including natural resource damages;
    4. Assess civil penalties in an amount not to exceed ten thousand dollars ($10,000) per day for violations of this subchapter and of any rules, permits, or plans issued pursuant to this subchapter; or
    5. Recover civil penalties assessed pursuant to subsection (c) of this section.
  3. Any person who violates any provision of this subchapter and rules, permits, or plans issued pursuant to this subchapter may be assessed an administrative civil penalty not to exceed ten thousand dollars ($10,000) per violation. Each day of a continuing violation may be deemed a separate violation for purposes of civil penalty assessment. No civil penalty may be assessed until the person charged with the violation has been given the opportunity for a hearing in accordance with rules adopted by the commission. All hearings and appeals arising under this subchapter shall be conducted in accordance with the procedures prescribed by §§ 8-4-205, 8-4-212, and 8-4-218 — 8-4-229. These administrative procedures may also be used to recover all costs, expenses, and damages to the division and any other agency or subdivision of the state in enforcing or effectuating the provisions of this subchapter, including natural resource damages.
  4. As an alternative to the limits on civil penalties set in subsections (b) and (c) of this section, if a person found liable in actions brought under subsection (b) or subsection (c) of this section has derived pecuniary gain from commission of the offenses, then he or she may be ordered to pay a civil penalty equal to the amount of the pecuniary gain.
    1. All moneys collected as reimbursement for expenses, costs, and damages to the division shall be deposited into the operating fund of the division.
    2. All moneys collected as civil penalties pursuant to this section shall be deposited into the Hazardous Substance Remedial Action Trust Fund as provided by § 8-7-509.
      1. The Director of the Division of Environmental Quality, in his or her discretion, may authorize in-kind services or cash contributions as partial mitigation of cash penalties for use in projects or programs designed to advance environmental interests.
      2. The violator may provide in-kind services or cash contributions as directed by the division by utilizing the violator's own expertise, by hiring and compensating subcontractors to perform the in-kind services, by arranging and providing financing for the in-kind services, or by other financial arrangements initiated by the division in which the violator and the division retain no monetary benefit, however remote.
      3. The in-kind services shall not duplicate or augment services already provided by the division through appropriations of the General Assembly.
    3. All moneys collected to cover the costs, expenses, or damages of other agencies or subdivisions of the state, including natural resource damages, shall be distributed to the appropriate governmental entity.
  5. The culpable mental states referenced throughout this section shall have the definitions set out in § 5-2-202.
  6. Solicitation or conspiracy, as defined by the Arkansas Criminal Code at § 5-3-301 et seq. and § 5-3-401 et seq., to commit any criminal act proscribed by this section and §§ 8-4-103 and 8-7-204 shall be punishable as follows:
    1. Any solicitation or conspiracy to commit an offense under this section which is a misdemeanor shall be a misdemeanor subject to fines not to exceed fifteen thousand dollars ($15,000) per day of violation or imprisonment for more than six (6) months, or both such fine and imprisonment;
    2. Any solicitation or conspiracy to commit an offense under this section which is a felony subject to fines of fifty thousand dollars ($50,000) per day or imprisonment up to five (5) years shall be a felony subject to fines up to thirty-five thousand dollars ($35,000) per day or imprisonment up to two (2) years, or both such fine and imprisonment;
    3. Any solicitation or conspiracy to commit an offense under this section which is a felony subject to fines of one hundred thousand dollars ($100,000) per day or imprisonment up to ten (10) years shall be a felony subject to fines up to seventy-five thousand dollars ($75,000) per day or imprisonment up to seven (7) years, or both such fine and imprisonment; and
    4. Any solicitation or conspiracy to commit an offense under this section which is a felony subject to fines of two hundred fifty thousand dollars ($250,000) per day or imprisonment up to twenty (20) years shall be a felony subject to fines up to one hundred fifty thousand dollars ($150,000) per day or imprisonment up to fifteen (15) years, or both such fine and imprisonment.
  7. In cases considering suspension of sentence or probation, efforts or commitments by the defendant to remediate any adverse environmental effects caused by his or her activities may be considered by the court to be restitution as contemplated by § 5-4-301.
  8. A business organization and its agents or officers may be found liable under this section in accordance with the standards set forth in § 5-2-501 et seq. and sentenced to pay fines in accordance with the provisions of § 5-4-201(d) and (e).

History. Acts 1971, No. 237, § 11; 1983, No. 666, § 3; A.S.A. 1947, § 82-2711; Acts 1987, No. 529, § 2; 1991, No. 1057, §§ 4, 5; 1993, No. 731, § 4; 1995, No. 547, § 2; 1995, No. 895, § 5; 1999, No. 582, § 1; 2005, No. 1824, § 6; 2019, No. 315, §§ 522-526; 2019, No. 910, §§ 2591-2597.

A.C.R.C. Notes. Pursuant to § 1-2-207, subdivision (e)(3) of this section is set out above as amended by Acts 1995, No. 895, § 5. This subdivision was also amended by Acts 1995, No. 547, § 2, to read as follows:

“(e)(3)(A) The director, in his discretion, may accept in-kind services as partial mitigation of cash penalties for use in projects or programs designed to advance environmental interests.

“(B) The violator may provide in-kind services as directed by the department by utilizing the violator's own expertise, by hiring and compensating subcontractors to perform the services, or by other financial arrangements in which the violator retains no monetary benefit, however remote.

“(C) The services shall not duplicate or augment services already provided by the department through appropriations of the General Assembly.”

Publisher's Notes. Acts 1991, No. 1057, § 1, provided: “The General Assembly finds and determines that the criminal and civil penalties imposed by current law do not accurately reflect the degree of concern which the state places upon its environmental resources. The current criminal penalties for hazardous waste and other violations are among the lowest in the nation. Civil penalties for violations of the state water, air, solid waste and hazardous waste pollution control statutes are set at the minimum necessary to receive federally delegated programs. In declaring itself “The Natural State,” the State of Arkansas demonstrated its commitment to its environmental resources. This commitment must be reflected in its environmental enforcement program. This act shall be liberally construed so as to achieve remedial intent.”

Acts 1991, No. 1057, § 5, is also codified as §§ 8-4-103(h)-(k) and 8-7-204 (f)-(i).

Acts 1993, No. 731, § 1, provided: “The State of Arkansas has an abundance of environmental concerns which need research and study, as well as concerns which have an immediate remedy but are absent funds to facilitate their implementation. This amendment serves to clarify the existing use of inkind services as penalties, to include cash contributions for use in worthy environmental projects and to advance environmental interests.”

Amendments. The 2019 amendment by No. 315 deleted “regulation” following “rule” in (a)(1)(A) and (a)(2)(A)(i); deleted “regulations” following “rules” in (b)(1) and (b)(4); and in (c), deleted “regulations” preceding “rules” in the first sentence, and substituted “rules” for “regulations” in the third sentence.

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(1)(A) and (e)(3)(A); and substituted “division” for “department” throughout the section.

Cross References. Arkansas Criminal Code, § 5-1-101 et seq.

Penalties and procedures, § 8-6-902.

Case Notes

Liability.

Anyone who disposes of, transports, processes or abandons waste in a manner or place likely to cause water or air pollution, is liable to the state for costs, expenses and damages, including natural resource damages. Arkansas ex rel. Bryant v. Dow Chem. Co., 981 F. Supp. 1170 (E.D. Ark. 1997).

Statute of Limitations.

Court denied summary judgment to the oil company, which was one of the defendants in an action by the landowners for damages from defendants' dumping, as the Arkansas Solid Waste Management Act (ASWMA), § 8-6-201 et seq., contained no limitations period; the court believed that it was doubtful that the Arkansas Legislature intended that a limitations period specifically limited to actions founded on contract or liability, as set forth in § 16-56-105(3), should operate to reach out and limit the reach of the ASWMA. Sewell v. Phillips Petro. Co., 197 F. Supp. 2d 1160 (W.D. Ark. 2002).

8-6-205. Illegal actions — Rebuttable presumption — Acts or omissions by third party.

  1. It shall be illegal for any person:
    1. To violate any provision of this subchapter or any rule or order of the Arkansas Pollution Control and Ecology Commission issued pursuant to this subchapter or of a permit issued under this subchapter by the Division of Environmental Quality;
    2. To construct, install, alter, modify, use, or operate any solid waste processing or disposal facility or disposal site without a permit from the division;
    3. To dispose of solid wastes at any disposal site or facility other than a disposal site or facility for which a permit has been issued by the division. However, no provision of this subchapter shall be construed so as to prevent an individual from disposing of solid wastes resulting from his or her own household activities on his or her own land if the disposal does not create a public or private nuisance or a hazard to health and does not violate a city ordinance or other law and does not involve the open dumping of garbage;
    4. To dump, deposit, throw, or in any manner leave or abandon any solid wastes, including, but not limited to, garbage, tin cans, bottles, rubbish, refuse, or trash upon property owned by another person without the written permission of the owner or occupant of the property or upon any public highway, street, road, public park or recreation area, or any other public property except as designated for disposal of waste; or
    5. To sort, collect, transport, process, or dispose of solid waste contrary to the rules or orders of the division or in such a manner or place as to create or be likely to create a public nuisance or a public health hazard or to cause or be likely to cause water or air pollution within the meaning of the Arkansas Water and Air Pollution Control Act, § 8-4-101 et seq.
  2. There is created a rebuttable presumption that shall arise in any administrative, civil, or criminal action under this subchapter to the effect that, if it can be proved that one (1) or more items of solid waste bear the name or names of one (1) or more persons in such a form as to indicate that the person or persons were the owners of those items and those items were unlawfully disposed of, then the person or persons are presumed to have committed the unlawful act of disposal.
  3. No person shall be liable for any violation of this subchapter or of any rule or order of the commission issued pursuant to this subchapter if the violation results solely from the act or omission of a third party, unless the person has knowingly allowed the violation to occur through acquiescence, acts, or omissions.

History. Acts 1971, No. 237, § 10; 1983, No. 666, § 2; A.S.A. 1947, § 82-2710; Acts 1987, No. 730, § 1; 1989, No. 260, § 2; 1995, No. 547, § 3; 1997, No. 1206, § 1; 2001, No. 1069, § 1; 2009, No. 1199, § 6; 2019, No. 315, §§ 527-529; 2019, No. 910, §§ 2598, 2599.

Amendments. The 2009 amendment substituted “or omissions” for “and/or omissions” at the end of (c).

The 2019 amendment by No. 315 deleted “regulation” following “rule” in (a)(1) and (c); and deleted “regulations” following “rules” in (a)(5).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(1); and substituted “division” for “department” throughout (a).

Cross References. Theft of recyclable materials, § 5-36-121.

Case Notes

Jury Instructions.

The trial court erroneously instructed the jury that the alternative violations in subdivisons (a)(3)-(5) were not separate offenses but alternative means of committing one offense, while the state's charge tracked only the language set out in subdivision (a)(4); thus, there was no way to know whether the jury found defendant guilty of disposal without a permit (subdivision (a)(3)), disposal of waste on another's property (subdivision (a)(4)), or creating a public nuisance, hazard, or polluted condition (subdivision (a)(5)). Renfro v. State, 331 Ark. 253, 962 S.W.2d 745 (1998).

Liability.

Anyone who disposes of, transports, processes or abandons waste in a manner or place likely to cause water or air pollution, is liable to the State for costs, expenses and damages, including natural resource damages. Arkansas ex rel. Bryant v. Dow Chem. Co., 981 F. Supp. 1170 (E.D. Ark. 1997).

Cited: Patton v. TPI Petroleum, Inc., 356 F. Supp. 2d 921 (E.D. Ark. 2005).

8-6-206. Proceedings in circuit court.

  1. Except as provided under subsection (b) of this section, a person adversely affected by a violation of this subchapter or of any rules or orders issued pursuant to this subchapter shall have a private right of action for relief against the violation.
    1. A person may file a verified complaint in a circuit court of competent jurisdiction as described in subdivision (b)(2) of this section against a defendant if facts establish that the defendant engaged in an act or omission that results in any one (1) or more of the following in this state:
      1. The illegal dumping of solid waste;
      2. The creation or participation in the creation or furtherance of an illegal dump site;
      3. The disposal of solid waste that results from the property owner's own household activities on his or her land if the disposal:
        1. Creates a public or private nuisance or a hazard to health; or
        2. Involves the open dumping of garbage; and
      4. Any other environmental violation concerning the illegal dumping of solid waste in violation of this chapter or the Used Tire Recycling and Accountability Act, § 8-9-401 et seq.
    2. The verified complaint shall be filed in the circuit court of the county where the:
      1. Activity described in the verified complaint occurs;
      2. Situation described in the verified complaint exists; or
      3. Defendant resides.
      1. If the plaintiff is seeking a preliminary injunction or temporary restraining order without notice to the defendant, the requirements of Rule 65(b)(1) and (c) of the Arkansas Rules of Civil Procedure shall be met and the procedures in this subdivision (b)(3) apply.
      2. The circuit court shall enter a temporary order that directs the defendant to perform the following within ten (10) days from the date the temporary order is served on the defendant:
        1. Remove the solid waste from the public or private property or otherwise remediate the environmental violation;
        2. Dispose of any solid waste or other material at:
          1. A permitted solid waste transfer station, landfill, composting facility, or incinerator; or
          2. A recycling center; and
        3. File with the circuit court a disposal receipt from the permitted solid waste transfer station, landfill, composting facility, or incinerator where the solid waste was disposed.
      3. The plaintiff shall have the temporary order served on the defendant and file proof of service with the circuit court.
        1. To request relief from the temporary order, the defendant may file a motion with the circuit court within ten (10) days from the date the temporary order is served.
        2. The circuit court shall hold a hearing within fourteen (14) days after the motion is filed and serve notice on all parties subject to the temporary order.
        3. At the hearing, the circuit court shall hear all evidence and testimony and enter an order to either dismiss the original or temporary order or make the temporary order permanent.
      4. The circuit court may grant a continuance for the hearing.
      5. The parties at the hearing may be represented by counsel.
    3. If subdivision (b)(3)(A) of this section does not apply and notice is required, then the plaintiff shall comply with the applicable notice provisions in the Arkansas Rules of Civil Procedure before issuance of a temporary order.
      1. If the temporary order is made permanent by the circuit court after a hearing on the merits or because the defendant failed to timely file a motion requesting a hearing on the served temporary order, the defendant shall within ten (10) days after its filing:
        1. Remove or cause to be removed from the public or private property the solid waste that has been illegally dumped on the public or private property; and
        2. Properly dispose of the solid waste in a permitted landfill or other facility approved for disposal by the Division of Environmental Quality.
        1. If the defendant has not removed the solid waste from the public or private property and properly disposed of it after ten (10) days from the date of the filing of the order, the plaintiff or the owner of the property may cause the solid waste to be removed or otherwise remediated and file a cost statement with the circuit court.
        2. The circuit court shall review the cost statement and determine whether the cost statement is reasonable.
        3. If the circuit court determines the cost statement is reasonable, the circuit court shall enter an order on the judgment docket of the circuit court in the amount of the cost statement as a judgment against the defendant.
  2. A judgment entered under this section may be enforced in the same manner as any other judgment.
  3. A judgment entered under this section is a final decision for purposes of appellate review.
  4. In addition to any judgment ordered under this section, a party against whom a judgment has been entered under this section is subject to any other applicable criminal, civil, or administrative penalties under law or rule, or both.
  5. The limitations and exemptions under §§ 8-6-2018 and 8-6-2019 apply to subsection (b) of this section.

History. Acts 1971, No. 237, § 12; A.S.A. 1947, § 82-2712; Acts 2019, No. 315, § 530; 2019, No. 1067, § 3.

A.C.R.C. Notes. Acts 2019, No. 1067, § 11, provided: “(a) The purpose of this act is to have the Environmental Compliance Resource Program operational and to make illegal dump control officers unnecessary on or before May 1, 2020.

“(b) If legislation concerning the transformation of the Arkansas Department of Environmental Quality is enacted during this Regular Session of the General Assembly, the Arkansas Code Revisor and the Arkansas Code Revision Commission shall correct the references to the Arkansas Department of Environmental Quality consistent with those laws”.

Publisher's Notes. Acts 2019, No. 1067, § 3 specifically amended this section as amended by Acts 2019, No. 315.

Amendments. The 2019 amendment by No. 315 deleted “regulations” following “any rules”.

The 2019 amendment by No. 1067 substituted “Proceedings in circuit court” for “Private right of action” in the section heading; added the designation (a); in (a), substituted “Except as provided under subsection (b) of this section, a” for “Any”, and “to this subchapter” for “thereto”; and added (b) through (f).

Case Notes

Available Relief.

Private rights of action under the Arkansas Solid Waste Management Act, § 8-6-206, are not limited to seeking injunctive relief to the exclusion of damages. Patton v. TPI Petroleum, Inc., 356 F. Supp. 2d 921 (E.D. Ark. 2005).

Statute of Limitations.

Court denied summary judgment to the oil company, which was one of the defendants in an action by the landowners for damages from defendants' dumping, as the Arkansas Solid Waste Management Act (ASWMA), § 8-6-201 et seq., contained no limitations period; the court believed that it was doubtful that the Arkansas Legislature intended that a limitations period specifically limited to actions founded on contract or liability, as set forth in § 16-56-105(3), should operate to reach out and limit the reach of the ASWMA. Sewell v. Phillips Petro. Co., 197 F. Supp. 2d 1160 (W.D. Ark. 2002).

8-6-207. Powers and duties of the division and commission generally.

  1. The Division of Environmental Quality or its successor shall have the following powers and duties:
    1. To administer and enforce all laws and rules relating to solid waste disposal;
    2. To advise, consult, and cooperate with appropriate federal, state, interstate, and local units of government and with affected groups and industries in the formation of plans and the implementation of a solid waste management program pursuant to this subchapter;
    3. To accept and administer loans and grants from the United States Government and from such other sources as may be available to the Arkansas Pollution Control and Ecology Commission for the planning, construction, and operation of solid waste management systems and disposal facilities;
    4. To develop a statewide solid waste management plan in cooperation with municipal and county governments and solid waste boards which gives emphasis to regional planning, where feasible;
    5. To require to be submitted and to approve plans and specifications for the construction and operation of solid waste disposal facilities and sites and to inspect the construction and operation thereof;
    6. To issue, continue in effect, revoke, modify, or deny, under such conditions as the division may prescribe, permits for the establishment, construction, operation, or maintenance of solid waste management systems, disposal sites, and facilities;
    7. To make investigations, inspections, and to hold such hearings, after notice, as the division may deem necessary or advisable for the discharge of duties under this subchapter and to ensure compliance with this subchapter and any orders and rules issued pursuant thereto;
    8. To make, issue, modify, revoke, and enforce orders, after notice and opportunity for adjudicatory review by the commission, prohibiting violation of any of the provisions of this subchapter or of any rules issued pursuant to this subchapter, and to require the taking of such remedial measures for solid waste disposal as may be necessary or appropriate to implement or effectuate the provisions and purposes of this subchapter;
    9. To institute proceedings in the name of the division in any court of competent jurisdiction to compel compliance with and to restrain violation of the provisions of this subchapter or any rules and orders issued pursuant thereto and to require the taking of such remedial measures for solid waste disposal as may be necessary or appropriate to implement or effectuate the provisions and purposes of this subchapter;
    10. To initiate, conduct, and support research, demonstration projects, and investigations and to coordinate with all state agency research programs pertaining to solid waste disposal and management systems;
    11. To make periodic inspections of all solid waste facilities or locations permitted under this subchapter or the Used Tire Recycling and Accountability Act, § 8-9-401 et seq., to ensure compliance with all requirements of this subchapter and the rules promulgated under this subchapter and to make a final inspection of closed or abandoned solid waste disposal sites to determine compliance with rules for proper closure and proper filling and drainage of the site;
    12. To issue, continue in effect, revoke, modify, or deny, under such conditions as the division may prescribe, permits for the establishment, construction, operation, or maintenance of transfer stations;
    13. To regulate and license persons engaged in the business of transporting used and waste tires;
    14. To establish minimum standards for the operation of a solid waste collection system; and
    15. Upon the petition of a solid waste board or upon the division’s own initiative to revoke, modify, or deny a permit for a solid waste disposal facility or a permit for any other element of a solid waste management system based upon noncompliance with an approved regional solid waste management plan of a solid waste board.
  2. The commission shall have the following powers and duties:
      1. Promulgation of rules implementing the substantive statutes charged to the division for administration.
      2. In promulgation of such rules, prior to the submittal to public comment and review of any rule or change to any rule that is more stringent than federal requirements, the commission shall duly consider the economic impact and the environmental benefit of such rule on the people of the State of Arkansas, including those entities that will be subject to the rule.
      3. The commission shall promptly initiate rulemaking proceedings to further implement the analysis required under subdivision (b)(1)(B) of this section.
      4. The extent of the analysis required under subdivision (b)(1)(B) of this section shall be defined in the commission's rulemaking required under subdivision (b)(1)(C) of this section. It will include a written report which shall be available for public review along with the proposed rule in the public comment period.
      5. Upon completion of the public comment period, the commission shall compile a rulemaking record or response to comments demonstrating a reasoned evaluation of the relative impact and benefits of the more stringent rule;
    1. Promulgation of rules and procedures not otherwise governed by applicable law which the commission deems necessary to secure public participation in environmental decision-making processes;
    2. Promulgation of rules governing administrative procedures for challenging or contesting division actions;
    3. In the case of permitting or grants decisions, providing the right to appeal a permitting or grants decision rendered by the Director of the Division of Environmental Quality or his or her delegatee;
    4. In the case of an administrative enforcement or emergency action, providing the right to contest any such action initiated by the director;
    5. Instruct the director to prepare such reports or perform such studies as will advance the cause of environmental protection in the state;
    6. Make recommendations to the director regarding overall policy and administration of the division, provided, however, that the director shall always remain within the plenary authority of the Governor and the Secretary of the Department of Energy and Environment;
    7. Upon a majority vote, initiate review of any director's decision;
    8. To establish policies and standards for effective solid waste disposal and management systems; and
    9. To adopt, after notice and public hearing, and to promulgate, modify, repeal, and enforce rules for the source reduction, minimization, recycling, collection, transportation, processing, storage, and disposal of solid wastes, including, but not limited to, the disposal site location and the construction, operation, and maintenance of the disposal site or disposal process as necessary or appropriate to implement or effectuate the purposes and intent of this subchapter and the powers and duties of the commission under this subchapter.

History. Acts 1971, No. 237, § 7; 1983, No. 667, § 1; A.S.A. 1947, § 82-2707; Acts 1991, No. 751, § 3; 1997, No. 1219, § 8; 1999, No. 1164, § 62; 2019, No. 315, §§ 531-537; 2019, No. 910, §§ 2600-2607; 2019, No. 980, § 1.

A.C.R.C. Notes. Acts 2019, No. 315, § 533, amended subdivision (a)(11) of this section to replace “regulations” with “rules” in the former phrase “not less than quarterly in accordance with regulations promulgated by the commission”. However, Acts 2019, No 980, § 1, specifically repealed this phrase.

Amendments. The 2019 amendment by No. 315 substituted “and rules” for “rules and regulations” in (a)(7); deleted “and regulations” following “rules” in (a)(8), following the last occurrence of “rules” in (a)(11), and in (b)(1)(A), (b)(3), and (b)(10); deleted “regulations” following “rules” in (a)(9) and (b)(2); substituted the first two occurrences of “rules” for “regulations” in (a)(11); rewrote (b)(1)(B); and substituted “rule” for “regulation” in (b)(1)(E).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in the introductory language of (a) and in (b)(4); substituted “division” for “department” throughout the section; and added “and the Secretary of the Department of Energy and Environment” in (b)(7).

The 2019 amendment by No. 980 substituted “inspections of all solid waste facilities or locations permitted under this subchapter or the Used Tire Recycling and Accountability Act, § 8-9-401 et seq.” for “inspections not less than quarterly in accordance with regulations promulgated by the commission of all solid waste disposal facilities or sites permitted under this subchapter” in (a)(11).

Research References

Ark. L. Rev.

Case Note, Johnson v. Sunray Services, Inc.: Possible Solutions to the NIMBY Syndrome, 45 Ark. L. Rev. 657.

Case Notes

Cited: United States v. Vertac Chem. Corp., 489 F. Supp. 870 (E.D. Ark. 1980).

8-6-208. Existing rules, orders, etc.

  1. All existing rules of the Arkansas Pollution Control and Ecology Commission relating to subjects embraced within this subchapter shall remain in full force and effect until expressly repealed, amended, or superseded by the commission.
  2. All orders entered, permits granted, and pending legal proceedings instituted by the commission relating to subjects embraced within this subchapter shall remain unimpaired and in full force and effect until superseded by actions taken by the commission under this subchapter.
  3. No existing civil or criminal remedies, public or private, for any wrongful action shall be excluded or impaired by this subchapter. Nothing in this subchapter shall be construed to limit or supersede the provisions of the Arkansas Water and Air Pollution Control Act, § 8-4-101 et seq., or any action taken by the commission under the Arkansas Water and Air Pollution Control Act, § 8-4-101 et seq.

History. Acts 1971, No. 237, § 12; A.S.A. 1947, § 82-2712; Acts 2019, No. 315, § 538.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in (a).

Case Notes

Cited: Bryant v. Mathis, 310 Ark. 737, 839 S.W.2d 528 (1992); Romine v. Ark. Dep't of Envtl. Quality, 342 Ark. 380, 40 S.W.3d 731 (2000).

8-6-209. Local standards.

    1. No municipality or county may, by ordinance, resolution, order, or otherwise, adopt standards for the location, design, construction, and maintenance of solid waste disposal sites and facilities that are more restrictive than those adopted by, under, or pursuant to this subchapter or any and all applicable laws, rules, regulations, or orders adopted by state law or incorporated by reference from federal law, the Arkansas Pollution Control and Ecology Commission under the provisions of this subchapter, or the regional solid waste management boards or districts, unless there exists a fully implemented comprehensive area-wide zoning plan, and corresponding laws or ordinances, covering the entire municipality or county.
    2. Municipal or county ordinances, resolutions, or orders effective as of the date of the passage of this act and more restrictive than regional or state standards shall remain in full force and effect for a period of six (6) months following the date of the passage of this act.
    3. Provided, also, that if a county or municipality adopts a comprehensive area-wide zoning plan and corresponding laws and ordinances covering the entire county or city as referred to in § 8-6-212(e), the county or city may incorporate existing ordinances, resolutions, or orders in that comprehensive area-wide zoning plan.
    4. Otherwise, any and all such standards adopted by a municipality or county must be consistent with, in accordance with, and not more restrictive than said federal, state, and regional laws, rules, regulations, and orders. Any and all such municipalities or county ordinances, resolutions, orders, or standards contrary to this section shall be null, void, and repealed.
    1. Subsection (a) of this section shall not apply if a municipality or county, by resolution, requests that the regional solid waste management board or regional solid waste management district for the municipality’s or county’s region adopt a more restrictive rule, regulation, order, or standard and such board or district either fails to hold a public hearing on the request within sixty (60) days of the request, or, after such public hearing, fails to take any action on the request within ninety (90) days of receipt of the request.
    2. If the board or district takes action on the request by approving, modifying, or denying the request within ninety (90) days of its receipt, the municipality or county shall be precluded from adopting and enforcing any more restrictive rule, regulation, order, or standard under subsection (a) of this section.

History. Acts 1971, No. 237, § 12; A.S.A. 1947, § 82-2712; Acts 1993, No. 1280, § 2.

Publisher's Notes. Acts 1993, No. 1280, § 1, provided: “The Arkansas General Assembly makes the following findings:

“(1) The present landfill capacity in the State of Arkansas is inadequate and is at or near the critical point;

“(2) As of January 1, 1993, the capacity in Arkansas was about four and one-half (4½) years of landfill life for fifty-seven (57) municipal solid waste landfills;

“(3) By the enactment of Arkansas Act 752 of 1991, the Regional Solid Waste Management Boards were established from the preceding Regional Solid Waste Boards and said Regional Solid Waste Boards were given additional powers and duties.

“(4) The stated purpose for the enactment of Arkansas Act 752 of 1991 was to protect the public health and the state's environmental quality by establishing regional solid waste management and planning. It was found that the preexisting system of relying upon solid waste management by individual counties and municipalities had fostered conditions in which certain areas of the state were facing capacity shortages of crises proportions, while others experienced a surfeit of capacity with individual disposal facilities which could not muster the resources for environmentally responsible operations. Despite the efforts of the Regional Solid Waste Management Boards to date, those conditions remain true at this time.

“(5) Upon enacting Arkansas Act 752 of 1991 establishing the Regional Solid Waste Management Boards and providing for their powers and duties, the Seventy-eighth Arkansas General Assembly authorized the districts to issue rules and regulations which are consistent with and in accordance with, but no more restrictive than, all applicable environmental protection performance standards adopted by state law or incorporated by reference from federal law.

“(6) Despite the limitation that rules and regulations of the districts be consistent with and in accordance with, but no more restrictive than, the applicable state and federal law, pursuant to Arkansas Act 237 of 1971, Arkansas Code Annotated § 8-6-209 (Repl.1991), counties and municipalities retain the authority to adopt standards, by ordinance, resolution, or order, for the location, design, construction and maintenance of solid waste disposal sites and facilities, that are more restrictive than those adopted by state law and by the Arkansas Pollution Control and Ecology Commission.

“(7) This authority vested in counties and municipalities has led in large part to the disparate environmental and economic concerns set out in Arkansas Act 752 of 1991 and summarized above and could thwart and jeopardize the purposes of Arkansas Act 752 of 1991 and its efforts to protect the public health and the state's environmental quality by establishing regional solid waste management and planning.”

In reference to the term “date of passage of this act,” Acts 1993, No. 1280 was signed by the Governor on April 21, 1993, and became effective from and after its passage and approval.

Meaning of “this act”. Acts 1993, No. 1280, codified as §§ 8-6-209, 8-6-211, 8-6-212, and 8-6-222.

Research References

Ark. L. Rev.

Case Note, Johnson v. Sunray Services, Inc.: Possible Solutions to the NIMBY Syndrome, 45 Ark. L. Rev. 657.

Case Notes

Construction.

There was no repeal of this section due to a direct conflict with inconsistent provisions in Act 870 of 1989 and Act 752 of 1991, for this section can be harmonized with the existing Solid Waste Management Act, in that, while regional boards are authorized to issue landfill permits under the Act, this does not preclude local governments from adopting additional landfill standards. Johnson v. Sunray Servs., Inc., 306 Ark. 497, 816 S.W.2d 582 (1991) (decision under prior law).

Adoption of Additional Standards.

Neither Act 870 of 1989 nor Act 752 of 1991, now codified at § 8-6-201 et seq., expressly repealed the counties' authority to adopt more stringent landfill standards under this section. Johnson v. Sunray Servs., Inc., 306 Ark. 497, 816 S.W.2d 582 (1991) (decision under prior law).

Landfill Location.

The Planning Board does have authority to prepare a zoning ordinance for the county, but that is not exclusive authority which divests the quorum court of its power to adopt standards for the location of landfill sites. Johnson v. Sunray Servs., Inc., 306 Ark. 497, 816 S.W.2d 582 (1991) (decision under prior law).

Ordinance Upheld.

Quorum court correctly found that there was a rational relationship between the ordinance which endorsed a two-mile buffer zone and the protection of main water sources and pollution containment. Johnson v. Sunray Servs., Inc., 306 Ark. 497, 816 S.W.2d 582 (1991) (decision under prior law).

8-6-210. Agreements authorized.

  1. Any two (2) or more municipalities, counties, or other public agencies may enter into agreements with one another for joint or cooperative action pursuant to a solid waste management system.
  2. Any agreement shall specify the following:
    1. Its duration;
    2. The precise organization, composition, and nature of any separate legal or administrative entity created by the agreement, together with the powers delegated thereto, provided that the entity may be legally created;
    3. Its purpose;
    4. The manner of financing the joint or cooperative undertaking and of establishing and maintaining a budget, provided that the legal entity may incur indebtedness for the lease or purchase of land, equipment, and other expenses necessary to the operation of a solid waste management system, or any part of it;
    5. The permissible methods to be employed in accomplishing the partial or complete termination of the agreement and for disposing of property upon the partial or complete termination; and
    6. Any other necessary and proper matters.

History. Acts 1971, No. 237, § 4; A.S.A. 1947, § 82-2704.

8-6-211. Municipal solid waste management systems.

  1. All municipalities shall provide a solid waste management system which will adequately provide for the collection and disposal of all solid wastes generated or existing within the incorporated limits of the municipality or in the area to be served and in accordance with the rules and orders of the Arkansas Pollution Control and Ecology Commission. The governing body of the municipality may enter into agreements with one (1) or more other municipalities, counties, a regional solid waste management district, private persons or trusts, or with any combination thereof, to provide a solid waste management system, or any part of a system, for the municipality, but the agreement shall not relieve the parties of their responsibilities under this subchapter.
    1. The governing body of the municipality shall have the authority to levy and collect such fees and charges and require such licenses as may be appropriate to discharge its responsibility under this subchapter, and the fees, charges, and licenses shall be based on a fee schedule as set forth in an ordinance.
      1. Without limitation on otherwise appropriate collection procedures, a municipality may collect its fees and service charges through either its own system of periodic billing or by entering the fees and service charges on the tax records of the county and then collecting the fees and service charges with the personal property taxes on an annual basis.
      2. Further, any fees and service charges billed periodically by the cities which are more than ninety (90) days delinquent on November 1 of each year may be entered on the tax records of the county as a delinquent periodic fee or service charge and may be collected by the county with personal property taxes.
        1. In counties where the fees are entered on the tax records for yearly collection or if the periodic fees and service charges are more than ninety (90) days delinquent as of November 1, the fees and service charges shall be entered on the tax records of the county by the county clerk and shall be collected by the county collector with the personal property taxes.
        2. The fees and service charges to be collected shall be certified to the county clerk by December 1 each year by an appropriate municipal official or the mayor.
        3. No county collector shall accept payment of any property taxes where annual fees and service charges or delinquent periodic fees and service charges appear on the county tax records of a taxpayer unless the fees and service charges due are also receipted.
        4. These funds shall be receipted and deposited into an official account of the county collector, who shall settle the account at least quarterly.
      1. Annual fees and service charges or the delinquent periodic fees and service charges which remain unpaid after the time other property taxes are due shall constitute a lien on the real and personal property of the taxpayer which may be enforced against such property by an action in circuit court.
      2. The amount of any fees and service charges collected shall then be paid to the municipality by the county collector, less four percent (4%) to be retained by the county collector.
      3. In addition, when the county collector maintains a separate tax book for these fees and charges, the county collector may charge an additional two dollars and fifty cents ($2.50) for collection.
  2. Municipalities may accept and disburse funds derived from grants from the United States Government or state governments, from private sources, or from moneys that may be appropriated from any available funds for the installation and operation of a solid waste management system or any part of a solid waste management system.
  3. Municipalities are authorized to contract for the purchase of land, facilities, vehicles, and machinery necessary to the installation and operation of a solid waste management system either individually or as a party to a regional or county solid waste authority.
  4. The governing body of a municipality shall have the right to establish policies for and enact laws concerning all phases of the operation of a solid waste management system, including hours of operation, the character and kinds of wastes accepted at the disposal site, the separation of wastes according to type by those generating them prior to collection, the type of container for storage of wastes, the prohibition of the diverting of recyclable materials by persons other than the generator or collector of the recyclable material, the prohibition of burning of wastes, the pretreatment of wastes, and such other rules as may be necessary or appropriate, so long as the laws, policies, and rules are consistent with, in accordance with, and not more restrictive than those adopted by, under, or pursuant to this subchapter or any laws, rules, or orders adopted by state law or incorporated by reference from federal law, the commission, or the regional solid waste management boards or regional solid waste management districts, unless:
    1. There exists a fully implemented comprehensive area-wide zoning plan and corresponding laws or ordinances covering the entire municipality; or
    2. The municipality has made a request to the board or district to adopt a more restrictive rule, order, or standard and no public hearing has been held within sixty (60) days or the request has not been acted upon within ninety (90) days.

History. Acts 1971, No. 237, § 5; A.S.A. 1947, § 82-2705; Acts 1991, No. 1007, § 1; 1993, No. 1280, § 3; 1995, No. 547, § 4; 2001, No. 1720, § 2; 2019, No. 315, §§ 539, 540.

Publisher's Notes. Acts 1993, No. 1280, § 1, provided: “The Arkansas General Assembly makes the following findings:

“(1) The present landfill capacity in the State of Arkansas is inadequate and is at or near the critical point;

“(2) As of January 1, 1993, the capacity in Arkansas was about four and one-half (4½) years of landfill life for fifty-seven (57) municipal solid waste landfills;

“(3) By the enactment of Arkansas Act 752 of 1991, the Regional Solid Waste Management Boards were established from the preceding Regional Solid Waste Boards and said Regional Solid Waste Boards were given additional powers and duties.

“(4) The stated purpose for the enactment of Arkansas Act 752 of 1991 was to protect the public health and the state's environmental quality by establishing regional solid waste management and planning. It was found that the preexisting system of relying upon solid waste management by individual counties and municipalities had fostered conditions in which certain areas of the state were facing capacity shortages of crises proportions, while others experienced a surfeit of capacity with individual disposal facilities which could not muster the resources for environmentally responsible operations. Despite the efforts of the Regional Solid Waste Management Boards to date, those conditions remain true at this time.

“(5) Upon enacting Arkansas Act 752 of 1991 establishing the Regional Solid Waste Management Boards and providing for their powers and duties, the Seventy-eighth Arkansas General Assembly authorized the districts to issue rules and regulations which are consistent with and in accordance with, but no more restrictive than, all applicable environmental protection performance standards adopted by state law or incorporated by reference from federal law.

“(6) Despite the limitation that rules and regulations of the districts be consistent with and in accordance with, but no more restrictive than, the applicable state and federal law, pursuant to Arkansas Act 237 of 1971, Arkansas Code Annotated § 8-6-209 (Repl.1991), counties and municipalities retain the authority to adopt standards, by ordinance, resolution, or order, for the location, design, construction and maintenance of solid waste disposal sites and facilities, that are more restrictive than those adopted by state law and by the Arkansas Pollution Control and Ecology Commission.

“(7) This authority vested in counties and municipalities has led in large part to the disparate environmental and economic concerns set out in Arkansas Act 752 of 1991 and summarized above and could thwart and jeopardize the purposes of Arkansas Act 752 of 1991 and its efforts to protect the public health and the state's environmental quality by establishing regional solid waste management and planning.”

Amendments. The 2019 amendment deleted “regulations” following “rules” in (a); and deleted “regulations” following “any laws, rules” in the introductory language of (e).

Cross References. Theft of recyclable materials, § 5-36-121.

Research References

U. Ark. Little Rock L.J.

Note, Environmental Law — Conservation — New Jersey Mandatory Statewide Source Separation and Recycling of Solid Waste Act, 11 U. Ark. Little Rock L.J. 733.

Survey—Environmental Law, 14 U. Ark. Little Rock L.J. 779.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

Case Notes

Fees.

The Arkansas County Quorum Court was not authorized by law in 1989 to collect a waste fee by imposing it as a surcharge on the personal property taxes the residents of the county must pay. Ark. County v. Burris, 308 Ark. 490, 825 S.W.2d 590 (1992).

Cited: Laidlaw Waste Sys. v. City of Ft. Smith, 742 F. Supp. 540 (W.D. Ark. 1990); Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986).

8-6-212. County solid waste management systems.

    1. Each county of the state is authorized to provide and shall provide a solid waste management system adequate to collect and dispose of all solid wastes generated or existing within the boundaries of the county and outside the corporate limits of any municipality in the county.
    2. By agreement or contractual arrangement, the county may assume responsibility for solid wastes generated within municipalities whether within its county or other counties.
    3. A county may enter into agreements with other counties, one (1) or more municipalities, a regional solid waste management district, governmental agencies, private persons, trusts, or with any combination thereof, to provide a solid waste management system for the county or any portion thereof, but the agreement shall not relieve the parties to the agreement of their responsibilities under this subchapter.
      1. A county government may levy and collect the fees and charges and require the licenses that are appropriate to discharge the county's responsibility for a solid waste management system or any portion thereof. Each fee, charge, and license shall be based on a fee schedule contained in an ordinance.
        1. A county may provide by ordinance that responsibility for payment of the fees and charges rests on the occupant of the property.
        2. The ordinance shall provide that the owner of the property is the occupant unless, before the fifth day of the month of service, the owner registers with the county the name and address of the tenant occupying the property and either the date that the lease is to expire or that the lease is month-to-month.
        1. A county government may collect its fees and service charges by using its own system of periodic billing or by entering the fees and service charges on the county tax records and then collecting the fees and service charges annually with the personal property taxes.
          1. If a tenant has been registered as an occupant under subdivision (b)(1)(B)(ii) of this section, then the tenant is responsible for paying the fees and charges, and the county may collect the fees and charges annually from the tenant's personal property taxes.
          2. The county may also assess an additional annual fee of ten percent (10%) for invoicing and collecting the delinquent fees and charges from the tenant rather than the owner.
        2. If a tenant has not been registered as an occupant under subdivision (b)(1)(B)(ii) of this section, then the owner is responsible for paying the fees and charges, and the county may collect the fees and charges annually from the owner's personal property taxes or real property taxes.
      1. Further, a fee or service charge billed periodically by the county that is more than ninety (90) days delinquent or is delinquent as of the date set by the quorum court by ordinance may be entered on the tax records of the county as a delinquent periodic fee or service charge and may be collected by the county with personal property taxes or with real property taxes from the owner of the property in accordance with a county ordinance, except as provided in subdivision (b)(1)(B)(ii) of this section.
        1. A county collector shall not accept payment of property taxes if an annual fee or service charge or a delinquent periodic fee or service charge appears on the county tax records of a taxpayer unless the fee or service charge due is also receipted.
        2. These funds shall be receipted and deposited into an official account of the county collector, who shall settle the account at least quarterly.
        3. The amount of the fees and service charges collected shall be paid to the county treasurer by the county collector, less four percent (4%) to be retained by the county collector. In addition, when the county collector maintains a separate tax book for the fees and charges, the county collector may charge an additional two dollars and fifty cents ($2.50) for collection.
      1. In counties in which the fees are entered on the tax records for yearly collection or if the periodic fees and service charges are more than ninety (90) days delinquent or are delinquent as of the date set by the quorum court by ordinance, the fees and service charges shall be entered on the tax records of the county by the county clerk and shall be collected by the county collector with the personal property taxes or with real property taxes from the owner of the property in accordance with a county ordinance, except as provided in subdivision (b)(1)(B)(ii) of this section.
      2. The fees and service charges to be collected shall be certified to the county clerk by December 1 each year by an appropriate municipal official or the mayor.
    1. Annual fees and service charges or the delinquent periodic fees and service charges which remain unpaid after the time other property taxes are due shall constitute a lien on the real and personal property of the taxpayer which may be enforced against such property by an action in circuit court.
  1. A county may accept and disburse funds derived from federal or state grants, from private sources, or from moneys that may be appropriated from any available funds for the installation and operation of a solid waste management system or any part thereof.
  2. A county is authorized to contract for the lease or purchase of land, facilities, and vehicles for the operation of a solid waste management system either for the county or as a party to a regional solid waste authority.
  3. A county shall have the right to issue orders, to establish policies for, and to enact ordinances concerning all phases of the operation of a solid waste management system, including hours of operation, the character and kinds of wastes accepted at the disposal site, the separation of wastes according to type by those generating them prior to collection, the type of container for storage of wastes, the prohibition of the diverting of recyclable materials by persons other than the generator or collector of the recyclable materials, the prohibition of burning of wastes, the pretreatment of wastes, and such other rules as may be necessary or appropriate, so long as such orders, policies, and ordinances are consistent with, in accordance with, and not more restrictive than, those adopted by, under, or pursuant to this subchapter or any other laws, rules, regulations, or orders adopted by state law or incorporated by reference from federal law, the Arkansas Pollution Control and Ecology Commission, or the regional solid waste management boards or regional solid waste management districts, unless:
    1. There exists a fully implemented comprehensive area-wide zoning plan and corresponding laws or ordinances covering the entire county; or
    2. The county has made a request to the board or district to adopt a more restrictive rule, regulation, order, or standard and no public hearing has been held within sixty (60) days or the request has not been acted upon within ninety (90) days.

History. Acts 1971, No. 237, § 6; 1983, No. 612, § 1; 1985, No. 946, § 1; A.S.A. 1947, § 82-2706; Acts 1991, No. 1007, § 2; 1993, No. 1280, § 4; 1995, No. 547, § 5; 2001, No. 1720, § 3; 2005, No. 1272, § 1; 2011, No. 174, § 1.

Publisher's Notes. Acts 1993, No. 1280, § 1, provided: “The Arkansas General Assembly makes the following findings:

“(1) The present landfill capacity in the State of Arkansas is inadequate and is at or near the critical point;

“(2) As of January 1, 1993, the capacity in Arkansas was about four and one-half (4½) years of landfill life for fifty-seven (57) municipal solid waste landfills;

“(3) By the enactment of Arkansas Act 752 of 1991, the Regional Solid Waste Management Boards were established from the preceding Regional Solid Waste Boards and said Regional Solid Waste Boards were given additional powers and duties.

“(4) The stated purpose for the enactment of Arkansas Act 752 of 1991 was to protect the public health and the state's environmental quality by establishing regional solid waste management and planning. It was found that the preexisting system of relying upon solid waste management by individual counties and municipalities had fostered conditions in which certain areas of the state were facing capacity shortages of crises proportions, while others experienced a surfeit of capacity with individual disposal facilities which could not muster the resources for environmentally responsible operations. Despite the efforts of the Regional Solid Waste Management Boards to date, those conditions remain true at this time.

“(5) Upon enacting Arkansas Act 752 of 1991 establishing the Regional Solid Waste Management Boards and providing for their powers and duties, the Seventy-eighth Arkansas General Assembly authorized the districts to issue rules and regulations which are consistent with and in accordance with, but no more restrictive than, all applicable environmental protection performance standards adopted by state law or incorporated by reference from federal law.

“(6) Despite the limitation that rules and regulations of the districts be consistent with and in accordance with, but no more restrictive than, the applicable state and federal law, pursuant to Arkansas Act 237 of 1971, Arkansas Code Annotated § 8-6-209 (Repl.1991), counties and municipalities retain the authority to adopt standards, by ordinance, resolution, or order, for the location, design, construction and maintenance of solid waste disposal sites and facilities, that are more restrictive than those adopted by state law and by the Arkansas Pollution Control and Ecology Commission.

“(7) This authority vested in counties and municipalities has led in large part to the disparate environmental and economic concerns set out in Arkansas Act 752 of 1991 and summarized above and could thwart and jeopardize the purposes of Arkansas Act 752 of 1991 and its efforts to protect the public health and the state's environmental quality by establishing regional solid waste management and planning.”

Amendments. The 2011 amendment rewrote (b)(1) and (2); and substituted “or are delinquent as of the date set by the quorum court by ordinance” for “as of November 1” in (b)(3).

Cross References. Theft of recyclable materials, § 5-36-121.

Research References

Ark. L. Rev.

Case Note, Johnson v. Sunray Services, Inc.: Possible Solutions to the NIMBY Syndrome, 45 Ark. L. Rev. 657.

U. Ark. Little Rock L.J.

Note, Environmental Law — Conservation — New Jersey Mandatory Statewide Source Separation and Recycling of Solid Waste Act, 11 U. Ark. Little Rock L.J. 733.

Survey—Environmental Law, 14 U. Ark. Little Rock L.J. 779.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

Case Notes

Fees.

The Arkansas County Quorum Court was not authorized by law in 1989 to collect a waste fee by imposing it as a surcharge on the personal property taxes the residents of the county must pay. Ark. County v. Burris, 308 Ark. 490, 825 S.W.2d 590 (1992).

Cited: Ark. County v. Burris, 308 Ark. 490, 825 S.W.2d 590 (1992).

8-6-213. [Repealed.]

Publisher's Notes. This section, concerning permit procedure generally, was repealed by Acts 1995, No. 547, § 9. The section was derived from Acts 1971, No. 237, § 8; 1983, No. 916, § 1; 1985, No. 1022, § 1; A.S.A. 1947, § 82-2708; Acts 1989, No. 531, § 2; 1991, No. 454, § 2.

8-6-214. Records and examinations.

  1. The owner or operator of any permitted facility or site shall establish and maintain such records, make such reports, install, use, and maintain such monitoring equipment or methods, take such samples, perform such tests, and provide such other information to the Division of Environmental Quality as the Director of the Division of Environmental Quality may reasonably require.
  2. The division or any authorized employee or agent may examine and copy any books, papers, records, or memoranda pertaining to the operation of the facility or site.
  3. The division or any authorized employee or agent may enter upon any public or private property for the purpose of obtaining information or conducting surveys or investigations necessary or appropriate for the purpose of this subchapter.
      1. Any records, reports, or information obtained under this subchapter and any permits, permit applications, and related documentation shall be available to the public for inspection and copying.
      2. Upon a satisfactory showing to the director that the records, reports, permits, documentation, or information, or any part thereof, if made public, would divulge methods or processes entitled to protection as trade secrets, then the director shall consider, treat, and protect such records, reports, or information as confidential.
      1. As necessary to carry out the provisions of this subchapter, information afforded confidential treatment may be transmitted under a continuing restriction of confidentiality to other officers, employees, or authorized representatives of this state or of the United States if the owner or operator of the facility to which the information pertains is informed at least two (2) weeks prior to the transmittal and if the information has been acquired by the division under the provisions of this subchapter.
      2. The provisions of this subdivision (d)(2) shall not be construed to limit the division's authority to release confidential information during emergency situations.
    1. Any violation of this subsection shall be unlawful and constitute a misdemeanor.

History. Acts 1971, No. 237, § 9; 1983, No. 666, § 1; A.S.A. 1947, § 82-2709; Acts 1999, No. 1164, § 63; 2019, No. 910, § 2608.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” twice in (a); and substituted “division” for “department” in (b) and made similar changes throughout the section.

8-6-215 — 8-6-217. [Superseded.]

A.C.R.C. Notes. These sections, concerning transfer of permits, financial responsibility, and denial of application for issuance, transfer, or modification of permit, are deemed to be superseded by § 8-1-106, derived from Acts 1991, No. 454, § 1. These sections were derived from the following sources:

8-6-215. Acts 1989, No. 531, § 1.

8-6-216. Acts 1989, No. 531, § 1.

8-6-217. Acts 1989, No. 531, § 1.

8-6-218. [Repealed.]

Publisher's Notes. This section, concerning limitations on the issuance of permits for new landfills, was repealed by Acts 1993, No. 1263, § 5. The section was derived from Acts 1991, No. 993, § 1.

For current law, see § 8-6-1501 et seq.

8-6-219. Applicants for permits — Applicability.

  1. An applicant for a new permit under this subchapter or the modification or transfer of a permit shall be a person, partnership, corporation, association, the State of Arkansas, a political subdivision of the state, an improvement district, a sanitation authority, or a solid waste board.
  2. This section shall not apply to permits for landfills where a private industry bears the expense of operating and maintaining the landfill solely for the disposal of wastes generated by the industry or wastes of a similar kind or character.
  3. [Repealed.]

History. Acts 1991, No. 751, § 4; 2019, No. 693, § 13.

Amendments. The 2019 amendment repealed (c).

8-6-220. Yard waste — Definitions.

      1. Except as provided in subdivision (a)(2) of this section, it is illegal for yard waste to be placed in a solid waste management facility solely for the purpose of disposal, except for fugitive amounts of yard waste.
      2. A permitted solid waste landfill may collect landfill gas from the fugitive amounts of yard waste for conversion to energy.
      1. If authorized by the Division of Environmental Quality through a permit modification process including a public notice and comment period, yard waste may be accepted by a permitted solid waste landfill that operates a landfill gas-to-energy system for the recovery and use of landfill gas as a renewable energy fuel source.
      2. The division shall consider, at a minimum, the following before authorizing yard waste to be accepted by a solid waste landfill for disposal:
        1. The number and types of permitted compost facilities accepting yard waste within the service areas of the solid waste landfill;
        2. The environmental impact of the proposed change in disposing of yard waste at a solid waste landfill instead of a permitted compost facility;
        3. The financial impact to each permitted compost facility located within the service area of the solid waste landfill;
        4. Whether the regional solid waste management board hosting the solid waste landfill and hosting a permitted compost facility within the solid waste landfill's service area supports the request;
        5. The amount of yard waste the solid waste landfill intends to accept and the basis for estimating the volume of yard waste to be disposed in the solid waste landfill;
        6. The financial impact to residents and industry within the service area of the solid waste landfill;
        7. The location of the solid waste landfill;
        8. The location within the solid waste landfill for the placement of yard waste;
        9. The plans to offset the effects of disposing of yard waste on the volume reduction for municipal waste disposal;
        10. A description and timeline for the landfill gas collected from the yard waste to become a renewable energy fuel source;
        11. The design and efficiency of the landfill gas collection system;
        12. A list of purchase power agreements that guarantee the collection and use of the landfill gas collected from the yard waste for energy conversion; and
        13. Other information as may be required by the division.
      3. Landfill gas recovered through the landfill gas-to-energy system shall be utilized for the generation of electricity or used as a substitute for conventional fuels.
    1. In addition to composting requirements for regional solid waste management districts set forth in § 8-6-719, each district shall furnish yard waste reduction or usage and/or opportunities to ensure that its residents are provided with the availability to choose, based upon need by population or area, ways and means of usage, reduction, reuse, or composting of yard waste.
    2. Such choices of yard waste reduction or usage shall be submitted to the division for approval and shall become an integral part of the district's solid waste management plan.
  1. As used in this section:
    1. “Fugitive amounts of yard waste” means small quantities that escape the approved methods of usage, reduction, reuse, or composting of yard waste;
    2. “Landfill gas-to-energy system” means the process of collecting, storing, and converting landfill gas to electricity for a direct fuel use or other use as a substitute for conventional fuels, including without limitation flaring for system testing, system maintenance, or proving capacity for an intended energy use; and
    3. “Yard waste” means grass clippings, leaves, and shrubbery trimmings.

History. Acts 1991, No. 751, § 4; 1993, No. 479, § 3; 1995, No. 547, § 6; 2009, No. 1220, § 1; 2019, No. 910, §§ 2609-2612.

Amendments. The 2009 amendment, in (a), inserted (a)(1)(B) and redesignated the existing text accordingly, substituted “Except as provided in subdivision (a)(2) of this section” for “It is established by this section that” in (a)(1)(A), and inserted (a)(2); inserted (c)(2) and redesignated the subsequent subdivision accordingly; and made related and minor stylistic changes.

The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(2)(A); and substituted “division” for “department” throughout the section.

8-6-221. Review of rules.

All rules adopted under this subchapter shall be reviewed by the House Committee on Public Health, Welfare, and Labor and Senate Committee on Public Health, Welfare, and Labor or appropriate subcommittees of the House Committee on Public Health, Welfare, and Labor and the Senate Committee on Public Health, Welfare, and Labor.

History. Acts 1991, No. 751, § 4; 1997, No. 179, § 3; 2019, No. 315, § 541.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in the section heading; and deleted “and regulations” following “All rules”.

8-6-222. Standards for sites and facilities.

Regional solid waste management boards may adopt more restrictive standards for the location, design, construction, and maintenance of solid waste disposal sites and facilities than the state government or the United States Government.

History. Acts 1993, No. 1280, § 5.

Publisher's Notes. Acts 1993, No. 1280, § 1, provided: “The Arkansas General Assembly makes the following findings:

“(1) The present landfill capacity in the State of Arkansas is inadequate and is at or near the critical point;

“(2) As of January 1, 1993, the capacity in Arkansas was about four and one-half (4½) years of landfill life for fifty-seven (57) municipal solid waste landfills;

“(3) By the enactment of Arkansas Act 752 of 1991, the Regional Solid Waste Management Boards were established from the preceding Regional Solid Waste Boards and said Regional Solid Waste Boards were given additional powers and duties.

“(4) The stated purpose for the enactment of Arkansas Act 752 of 1991 was to protect the public health and the state's environmental quality by establishing regional solid waste management and planning. It was found that the preexisting system of relying upon solid waste management by individual counties and municipalities had fostered conditions in which certain areas of the state were facing capacity shortages of crises proportions, while others experienced a surfeit of capacity with individual disposal facilities which could not muster the resources for environmentally responsible operations. Despite the efforts of the Regional Solid Waste Management Boards to date, those conditions remain true at this time.

“(5) Upon enacting Arkansas Act 752 of 1991 establishing the Regional Solid Waste Management Boards and providing for their powers and duties, the Seventy-eighth Arkansas General Assembly authorized the districts to issue rules and regulations which are consistent with and in accordance with, but no more restrictive than, all applicable environmental protection performance standards adopted by state law or incorporated by reference from federal law.

“(6) Despite the limitation that rules and regulations of the districts be consistent with and in accordance with, but no more restrictive than, the applicable state and federal law, pursuant to Arkansas Act 237 of 1971, Arkansas Code Annotated § 8-6-209 (Repl.1991), counties and municipalities retain the authority to adopt standards, by ordinance, resolution, or order, for the location, design, construction and maintenance of solid waste disposal sites and facilities, that are more restrictive than those adopted by state law and by the Arkansas Pollution Control and Ecology Commission.

“(7) This authority vested in counties and municipalities has led in large part to the disparate environmental and economic concerns set out in Arkansas Act 752 of 1991 and summarized above and could thwart and jeopardize the purposes of Arkansas Act 752 of 1991 and its efforts to protect the public health and the state's environmental quality by establishing regional solid waste management and planning.”

8-6-223. Household hazardous waste storage or processing centers — Permit required.

  1. It is unlawful for a person to own or operate a household hazardous waste storage or processing center, as defined in § 8-6-203, without first obtaining from the Division of Environmental Quality a transfer station permit or another permit that the division deems appropriate and that meets the requirements of this section.
    1. The division shall not issue, modify, or renew a permit for a household hazardous waste storage or processing center regulated under this section without the permit applicant's first demonstrating to the division's satisfaction the applicant's financial ability to ensure proper removal and disposal of household hazardous waste located at the household hazardous waste storage or processing center under this section.
    2. The amount of financial assurance required under this section shall be equal to or greater than one hundred fifty percent (150%) of a third party's cost of disposal of the maximum permitted amount of household hazardous waste at a facility permitted under the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq., for the treatment, storage, and disposal of hazardous waste.
    3. A detailed disposal estimate under this section shall be prepared by an independent professional consultant.
  2. The permittee or applicant shall demonstrate financial ability to ensure proper removal and disposal of the household hazardous waste at its household hazardous waste storage or processing center by:
    1. Obtaining insurance that specifically covers the costs of disposal as required by this section;
    2. Obtaining a letter of credit;
    3. Obtaining a bond or other surety instrument;
    4. Creating a trust fund or escrow account;
    5. Combining any of the instruments in subdivisions (c)(1)-(4) of this section; or
    6. Any other financial instrument approved by the Director of the Division of Environmental Quality.
  3. A financial instrument required by this section shall:
    1. Be posted to the benefit of the division;
    2. Provide that the financial instrument cannot be cancelled without sixty (60) days' prior written notice addressed to the division's legal division chief as evidenced by a signed, certified mail with a return receipt request; and
    3. Be reviewed by the division upon receipt of the cancellation notice to determine whether the division should initiate procedures to revoke or suspend the household hazardous waste storage or processing center's permit and whether the division should take possession of the funds guaranteed by the financial assurance mechanism.
  4. Before the division may release a financial assurance mechanism, the division shall inspect the household hazardous waste storage or processing center to determine to the division's satisfaction that no household hazardous waste is located at the household hazardous waste storage or processing center.
  5. The division is not responsible for the removal or disposal of household hazardous waste regulated under this section.
  6. Before an application for a permit is submitted to the division, a household hazardous waste storage or processing center shall apply for a certificate of need from the regional solid waste management board that has jurisdiction over the proposed site and shall follow the procedures and rules established under § 8-6-708.
  7. A household hazardous waste storage or processing center shall submit a permit application to the division within ninety (90) days of the approval of the certificate of need.
  8. If a certificate of need is not approved under subsection (g) of this section or a final determination is made by the division denying the permit application, the household hazardous waste storage or processing center shall cease all collection, storage, or processing activity and properly dispose of or recycle all materials within ninety (90) days.
  9. [Repealed.]
  10. A household hazardous waste storage or processing center that is operating before July 27, 2011, is exempt from obtaining a certificate of need under subsection (g) of this section.
  11. A permit under this section is not required for recyclable materials collection centers or systems that are provided by a city, county, solid waste district, or regional solid waste management district that stores household hazardous waste in quantities of less than one hundred ten gallons (110 gal.) of each household hazardous waste, not to exceed an accumulated waste amount of five thousand gallons (5,000 gal.) of liquid waste or ten thousand pounds (10,000 lbs.) of nonliquid waste.

History. Acts 2011, No. 1153, § 2; 2019, No. 910, §§ 2613-2616.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a) and (c)(6); substituted “division” for “department” throughout the section; and repealed (j).

Subchapter 3 — County Solid Waste Management System Aid Fund

Effective Dates. Acts 1985 (1st Ex. Sess.), No. 5, § 3: July 1, 1985. Emergency clause provided: “It is hereby found and determined by the Seventy-Fifth General Assembly, meeting in Extraordinary Session, that various appropriations enacted by the General Assembly could have the effect of placing the Constitutional and Fiscal Agencies Fund in an unsound financial condition and that the mechanism provided for in this act will help to alleviate such conditions and maintain the financial integrity of the state. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1985.”

Acts 1985, No. 986, § 6: July 1, 1985.

Acts 1987, No. 551, § 4: Apr. 2, 1987. Emergency clause provided: “It is hereby found and determined by the Seventy-Sixth General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that previous General Assemblies have provided appropriations for the projects enumerated in this Act; that certain appropriations will expire before the adjournment of the Regular Session; and that if such appropriations expire, the programs authorized by such appropriations would cease, thereby depriving the citizens of the State of the benefits to be derived from such projects. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

8-6-301. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “County solid waste collection and disposal system” or “county solid waste management system” means and includes either of the following:
    1. A county owned and operated solid waste management and disposal system funded by moneys appropriated by the quorum court;
    2. A municipally owned and operated solid waste management and disposal system located within the county or adjoining counties operated under contract with the county whereby the county is provided access thereto, and the quorum court appropriates funds to defray the county's share of the cost of operating the facility;
    3. A privately owned solid waste management and disposal system located within the county or an adjoining county in which the county has entered into a contract providing access and services of the facilities for the use and benefit of the county under the terms of which the county's share of the operating cost is funded by an appropriation made by the quorum court of the county; or
    4. A solid waste collection and disposal system operated by two (2) or more counties or by one (1) or more counties and one (1) or more municipalities or operated by a private owner under a compact or agreement whereby each of the participating counties and municipalities has access to the facilities of the solid waste collection and disposal system and appropriates, through its governing body, funds to defray their respective shares of the cost of such facility;
  2. “Solid waste management system” means the entire process of storage, collection, transportation, processing, treatment, and disposal of solid waste.

History. Acts 1985, No. 986, § 1; A.S.A. 1947, § 13-564.

8-6-302. County Solid Waste Management System Aid Fund.

There is established in the State Treasury a fund to be known as the “County Solid Waste Management System Aid Fund”, to consist of such special or general revenues or other moneys that may be deposited therein as provided by the General Assembly, to be used for the purpose of providing financial assistance to counties in the manner provided in this subchapter and for the establishment, expansion, maintenance, and operation of county solid waste collection and disposal systems.

History. Acts 1985, No. 986, § 1; A.S.A. 1947, § 13-564.

Cross References. County Solid Waste Management System Aid Fund, § 19-5-1019.

8-6-303. Allocation of funds to counties — Distribution formula.

All of the general revenues and special revenues and other funds deposited into the County Solid Waste Management System Aid Fund during each fiscal year shall be allocated by the Treasurer of State to each of the several counties in the state. The fund shall be distributed to such counties only as provided in this subchapter, on the basis of seventy-five percent (75%) divided equally among the seventy-five (75) counties of the state and twenty-five percent (25%) on the basis of population according to the most recent federal decennial census, with each county to receive an allocation thereof in the proportion that its population bears to the total population of the state.

History. Acts 1985, No. 986, § 2; A.S.A. 1947, § 13-565.

8-6-304. Eligibility to receive funds.

Before any county shall be eligible to receive its portion of the moneys in the County Solid Waste Management System Aid Fund during any fiscal year, the county, on or before the first day of the fiscal year, shall furnish the Treasurer of State the following information on forms to be developed by the Treasurer of State proof that:

  1. The county operates or is in the process of establishing a solid waste management system for that county and that the solid waste management system is available to serve the residents of the county and may be available for service to various cities and towns within the counties through interlocal agreements, compacts, or authorities;
  2. The quorum court of the county has established and approved a budget for the operation of the county solid waste management system for the fiscal year and has appropriated funds therefor in an amount sufficient to support not less than fifty percent (50%) of the costs of operating the solid waste management system. The funds appropriated therefor will be used solely for the cost of establishing, operating, and maintaining the solid waste management system, for the hiring of personnel, and for the acquisition of equipment and land required to operate the solid waste management system and disposal; and
  3. The amount of funds allocated to the county for such year under this subchapter will be used exclusively for establishing, operating, and maintaining the solid waste management system and meeting the requirements of this subchapter, including the acquisition of land and the acquisition, maintenance, repair, and operation of equipment used in connection with the operation of the solid waste management system.

History. Acts 1985, No. 986, § 3; A.S.A. 1947, § 13-566.

8-6-305. Failure to use funds — Misuse of funds.

If any county fails during any fiscal year to expend an amount of county funds equal to at least fifty percent (50%) of the cost of operating its solid waste management system or uses any of the state funds allocated thereof under the provisions of this subchapter for any purpose other than as intended by this subchapter, then the county shall be ineligible to receive moneys during the next following fiscal year from the County Solid Waste Management System Aid Fund, but may make reapplication for state assistance funds during the year next following thereafter, upon offering the appropriate assurances in writing that the county will meet the full requirements of the intent and purposes of this subchapter in the use of the funds.

History. Acts 1985, No. 986, § 3; A.S.A. 1947, § 13-566.

8-6-306. Reapportionment of funds.

If any county fails to qualify for its proportionate share of the moneys in the County Solid Waste Management System Aid Fund during any fiscal year, then the moneys shall be reapportioned among the various counties which qualify to receive their proportionate share of the fund moneys during the fiscal year, in accordance with the distribution formula set forth in § 8-6-303. The Treasurer of State shall monthly distribute moneys to the eligible counties as authorized in this subchapter in the same manner as other county aid funds are distributed. The moneys shall be credited and used solely for the support and operation of the county solid waste management system.

History. Acts 1985, No. 986, § 4; 1985, (1st Ex. Sess.), No. 5, § 1; A.S.A. 1947, § 13-567.

8-6-307. Transfer of funds — Exemption.

  1. The moneys saved from Acts 1985, No. 994, which reduced contributions made by the state for state employees who are employed by a state agency funded, in whole or in part, with general revenues, shall be set aside and implemented by the Chief Fiscal Officer of the State and the Treasurer of State in the amount and in accordance with procedures set forth in this section.
    1. Beginning the month after the month in which such reductions in retirement contributions occur, the Chief Fiscal Officer of the State shall determine the amount of the general revenue savings, by fund or fund account, based upon the previous month's payroll deductions for retirement contributions to the Public Employees' Retirement System.
    2. During each fiscal year, the Chief Fiscal Officer of the State shall cause to be transferred on his or her books and those of the Treasurer of State the amount of the monthly general revenue savings from each affected fund or fund account to the Revenue Holding Fund Account before the close of business on the last day of each month until an aggregate of five million dollars ($5,000,000) of general revenue savings during each fiscal year has been transferred to the Revenue Holding Fund Account from those sources, and monthly transfers of the general revenue savings to the Revenue Holding Fund Account shall cease for the remainder of that fiscal year.
  2. The Treasurer of State shall, after providing for the distribution of general revenues available for distribution, transfer the total amount of such general revenue savings as certified to the Treasurer of State by the Chief Fiscal Officer of the State from the Revenue Holding Fund Account to the County Solid Waste Management System Aid Fund, to be used to make monthly distributions therefrom in the manner provided by law to the respective counties of this state to be used for the support of the county solid waste management system as provided in this subchapter.
  3. The Division of Correction is exempt from the provisions of this section.

History. Acts 1985, No. 986, § 4; 1985 (1st Ex. Sess.), No. 5, § 1; A.S.A. 1947, § 13-567; Acts 1987, No. 551, § 4; 2019, No. 910, § 688.

Publisher's Notes. Acts 1985, No. 994, § 1, in part, reduced by two percent the employer contribution rates for the Arkansas Public Employees Retirement System, State, County, Municipal and School Divisions, thereby making the contribution rate for each of these divisions 10 percent, nine percent, eight percent, and seven percent respectively.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Corrections” in (d).

Meaning of “this act”. Acts 1985, No. 994, codified as §§ 24-3-103 [repealed] and 24-3-201 [repealed].

Subchapter 4 — Litter Control Act

Effective Dates. Acts 1977, No. 883, § 20: Mar. 30, 1977. Emergency clause provided: “It is hereby found and declared by the General Assembly that the present laws pertaining to litter control and junk motor vehicles are inadequate and the immediate passage of this act is necessary to remedy such situation. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, safety and welfare shall be in effect from and after the date of its passage and approval.”

Acts 2005, No. 75, § 4: Feb. 7, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that current resources are limited to enforce the Litter Control Act; that this act authorizes illegal dumps control officers to issue citations for violations of the Litter Control Act; that this act clarifies the proper disposal of solid waste from illegal dumps; and that this act is immediately necessary to provide additional resources for the control of litter and the proper disposal of solid waste. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Acts 2019, No. 1067, § 4: May 1, 2020.

8-6-401. Title.

This subchapter shall be cited and known as the “Litter Control Act”.

History. Acts 1977, No. 883, § 1; A.S.A. 1947, § 82-3901.

8-6-402. Purpose.

The purpose of this subchapter is to accomplish the control of litter, inoperative household appliances, and junk motor vehicles throughout the state by regulating their disposal. The intent of this subchapter is to add to existing litter control, removal, and enforcement efforts and not to terminate or supplant such efforts, as well as the compatible goal of improving the quality of life for all the citizens of Arkansas.

History. Acts 1977, No. 883, § 1; A.S.A. 1947, § 82-3901.

8-6-403. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “Abandoned” means property to which no person claims or exercises right of ownership;
  2. “Automobile repair shop” means any business which engages in the repair or servicing of vehicles;
  3. “Commercial littering” includes, but is not limited to, littering done by commercial businesses and manufacturing companies of every kind and description, including those businesses and persons who illegally dispose of litter or solid waste for other persons in return for money, fees, or other compensation;
  4. “Demolisher” means any person whose business, to any extent or degree, is to convert a motor vehicle or household appliance into processed scrap or scrap metal, into saleable parts, or otherwise to wreck or dismantle vehicles or appliances;
  5. “Disposable package or container” means all items or materials designed or intended to contain another item or product, but not designed or intended for permanent or continued use;
  6. “Enclosed building” means a structure surrounded by walls or one (1) continuous wall and having a roof enclosing the entire structure and includes a permanent appendage to the structure;
  7. “Household appliance” includes, but is not limited to, refrigerators, freezers, ranges, stoves, automatic dishwashers, clothes washers, clothes dryers, trash compacters, television sets, radios, hot water heaters, air conditioning units, commodes and other plumbing fixtures, and bed springs or other furniture;
  8. “Inoperative household appliance” means a discarded household appliance which by reason of mechanical or physical defects can no longer be used for its intended purpose and which is not serving a functional purpose;
  9. “Junk motor vehicle” means any vehicle which is inoperable, dismantled, or damaged and that is unable to start and move under its own power. Vehicles are excluded as long as they are registered and bear a current license permit;
    1. “Litter” means all waste material which has been discarded or otherwise disposed of as prohibited in this subchapter, including, but not limited to, convenience food and beverage packages or containers, trash, garbage, all other product packages or containers, and other postconsumer solid wastes.
    2. “Litter” does not include wastes from the primary processing of mining, logging, sawmilling, or farming, the raising of poultry, manufacturing, or wastes deposited in proper receptacles;
  10. “Old vehicle tire” means a pneumatic tire in which compressed air is designed to support a load, but which because of wear, damage, or defect can no longer safely be used on a vehicle and which is either not serving a functional purpose or use or is not in an enclosed building, a salvage yard, or the actual possession of a demolisher;
  11. “Public place” means any area that is used or held out for use by the public, whether owned or operated by public or private interests;
  12. “Salvage yard” means any business that, in the course of its operation, maintains ten (10) or more vehicles to be used, wholly or in parts, to generate revenue for the operation of the business; and
  13. “Vehicle” includes every device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway, excepting devices moved by human or animal power or used exclusively upon stationary rails or tracks.

History. Acts 1977, No. 883, § 2; A.S.A. 1947, § 82-3902.

8-6-404. Disposition of fines collected.

All fines collected under §§ 8-6-4068-6-408 shall be deposited as follows:

  1. If a municipality or county where the offense occurs is a certified affiliate of Keep Arkansas Beautiful or Keep America Beautiful, Inc., and participates in litter-control programs conducted by these organizations, then the moneys from fines collected for offenses in that jurisdiction shall be deposited, according to accounting procedures prescribed by law, into the city general fund or the county general fund to be used for the purpose of community improvement as determined by the municipal or county governing body; or
  2. If the municipality or county where the offense occurs is not a certified affiliate of Keep Arkansas Beautiful or Keep America Beautiful, Inc., or does not participate in litter-control programs conducted by these organizations, then the moneys from fines collected for offenses in those jurisdictions shall be remitted by the tenth day of each month to the Administration of Justice Funds Section of the Office of Administrative Services of the Department of Finance and Administration, on a form provided by the Office of Administrative Services of the Department of Finance and Administration, for deposit into the Keep Arkansas Beautiful Fund Account to be used by the Keep Arkansas Beautiful Commission, as appropriated by the General Assembly, for the purposes of encouraging litter prevention and anti-litter education and increasing awareness of litter law enforcement statewide.

History. Acts 1977, No. 883, §§ 7, 11; 1981, No. 841, §§ 1, 2; A.S.A. 1947, §§ 82-3907, 82-3911; Acts 1993, No. 727, § 1; 1995, No. 979, § 1; 2001, No. 145, § 1; 2003, No. 1765, § 3; 2005, No. 646, § 1; 2015, No. 1264, § 3.

Amendments. The 2015 amendment rewrote the section heading and the section.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Environmental Law, 24 U. Ark. Little Rock L. Rev. 475.

8-6-405. Injunction.

In addition to all other remedies provided by this subchapter, the Division of Environmental Quality, the Attorney General, the prosecuting attorney of a county where any violation of any provision of this subchapter occurs, or any citizen, resident, or taxpayer of the county where a violation of any provision of this subchapter occurs may apply to the circuit court or the judge in vacation of the county where the alleged violation occurred for an injunction to restrain, prevent, or abate the maintenance and storage of litter, junk motor vehicles, old vehicle tires, or inoperative or discarded household appliances in violation of any provision of this subchapter.

History. Acts 1977, No. 883, § 16; A.S.A. 1947, § 82-3916; Acts 1991, No. 516, § 1; 1999, No. 1164, § 64; 2019, No. 910, § 2617.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality”.

8-6-406. Littering and commercial littering.

  1. It is unlawful to drop, deposit, discard, or otherwise dispose of litter upon any public or private property in this state or upon or into any river, lake, pond, or other stream or body of water within this state, unless:
    1. The property has been designated by the Division of Environmental Quality as a permitted disposal site;
    2. The litter is placed into a receptacle intended by the owner or tenant in lawful possession of that property for the deposit of litter, if it is deposited in such a manner as to prevent the litter from being carried away or deposited by the elements upon any part of the private or public property or waters; or
      1. The person is the owner or tenant in lawful possession of the property and the litter remains upon the property and the act does not create a public health or safety hazard, a public nuisance, or a fire hazard.
      2. However, a property owner shall not be held responsible for the actions of his or her tenant.
      1. A person who violates this section upon conviction is guilty of a violation and shall be fined an amount not less than one hundred dollars ($100) and not more than one thousand dollars ($1,000) and is subject to community service under subdivision (b)(2)(A) of this section.
      2. A person who violates this section for a second or subsequent offense within three (3) years of a prior offense upon conviction is guilty of a violation and shall be fined an amount not less than two hundred dollars ($200) and not more than two thousand dollars ($2,000) and is subject to community service under subdivision (b)(2)(A) of this section.
      1. In addition to any sentence provided for under this subsection, the court upon conviction shall impose the following penalty of community service:
        1. For a first offense, not more than eight (8) hours; or
        2. For a second or subsequent offense, not more than twenty-four (24) hours.
      2. A person may also be required by the court as a part of his or her sentence to remove litter from alongside highways and at other appropriate locations for any prescribed period.
    1. A person convicted of a violation of this section who fails to pay any fines assessed in accordance with the findings and orders of the court shall have his or her driver's license suspended for six (6) months by the Department of Finance and Administration upon receipt by the department of an order of denial of driving privileges from the court under this section.
    1. A person who violates this section and who is found to have committed the violation in furtherance of or as a part of a commercial enterprise, whether or not that commercial enterprise is the disposal of wastes, upon conviction is guilty of commercial littering and is guilty of a Class A misdemeanor.
    2. A person convicted of commercial littering may be required to remove litter disposed of in violation of this subchapter.
  2. All or any portion of the fines, community service, and imprisonment penalties provided by this section may be suspended by the court if the violator agrees to remove litter from alongside highways and at other appropriate locations for a prescribed period.

History. Acts 1977, No. 883, § 4; A.S.A. 1947, § 82-3904; Acts 1999, No. 1164, § 65; 2015, No. 1264, § 4; 2019, No. 910, § 2618.

Amendments. The 2015 amendment rewrote the section heading; designated the existing language as (a); substituted “It is unlawful” for “It shall be unlawful” in (a); and added (b) through (d).

The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(1).

8-6-407. Refuse hauling by uncovered vehicles.

  1. A person engaged in commercial or for-hire hauling who operates a truck or other vehicle within this state shall not transport litter, trash, or garbage unless the truck or other vehicle is covered to prevent its contents from blowing, dropping, falling off, or otherwise departing from the truck or other vehicle.
    1. A person operating his or her own truck or other vehicle to transport litter, trash, or garbage shall take reasonable steps to prevent its contents from blowing, dropping, falling off, or otherwise departing from the truck or other vehicle.
    2. However, a vehicle hauling predominately metallic material is not required to be covered if it is loaded in a manner that will prevent the material from falling or dropping from the vehicle.
      1. A person who violates this section upon conviction is guilty of a violation and shall be fined an amount not less than one hundred dollars ($100) and not more than one thousand dollars ($1,000) and is subject to community service under subdivision (c)(2)(A) of this section.
      2. A person who violates this section for a second or subsequent offense within three (3) years of a prior offense upon conviction is guilty of a violation and shall be fined an amount not less than two hundred dollars ($200) and not more than two thousand dollars ($2,000) and is subject to community service under subdivision (c)(2)(A) of this section.
      1. In addition to any sentence provided for under this subsection, the court upon conviction shall impose the following penalty of community service:
        1. For a first offense, not more than eight (8) hours; or
        2. For a second or subsequent offense, not more than twenty-four (24) hours.
      2. A person may also be required by the court as a part of his or her sentence to remove litter from alongside highways and other appropriate locations for any prescribed period.
    1. A person convicted of a violation of this section who fails to pay any fines assessed in accordance with the findings and orders of the court shall have his or her driver's license suspended for six (6) months by the Department of Finance and Administration upon receipt by the department of an order of denial of driving privileges from the court under this section.
    1. A person who violates this section and who is found to have committed the violation in furtherance of or as a part of a commercial enterprise, whether or not that commercial enterprise is the disposal of wastes, upon conviction is guilty of a Class A misdemeanor.
    2. A person convicted of commercial littering may be required to remove litter disposed of in violation of this subchapter.
  2. All or any portion of the fines, community service, and imprisonment penalties provided by this section may be suspended by the court if the violator agrees to remove litter from alongside highways and at other appropriate locations for a prescribed period.

History. Acts 1977, No. 883, § 6; A.S.A. 1947, § 82-3906; Acts 2015, No. 1264, § 5.

Amendments. The 2015 amendment deleted “Commercial” at the beginning of the section heading; designated the existing language as (a) and (b); and added (c) through (e).

8-6-408. Discarding certain items prohibited.

  1. It is unlawful for a person to place or cause to be placed any junk motor vehicle, old vehicle tire, or inoperative or abandoned household appliance, or part of a junk motor vehicle, old vehicle tire, or inoperative or abandoned household appliance upon the right-of-way of any public highway, upon any other public property, or upon any private property that he or she does not own, lease, rent, or otherwise control, unless it is at a salvage yard, a permitted disposal site, or at the business establishment of a demolisher.
  2. A person who violates this section upon conviction is guilty of:
    1. A violation for a first offense and shall be fined one thousand dollars ($1,000) and sentenced to one hundred (100) hours of community service; and
    2. A Class A misdemeanor for a second or subsequent offense.

History. Acts 1977, No. 883, § 10; A.S.A. 1947, § 82-3910; Acts 2015, No. 1264, § 6.

Amendments. The 2015 amendment designated the existing language as (a); and added (b).

8-6-409. Prima facie evidence against drivers.

If the throwing, dumping, or depositing of litter was done from a vehicle, except a motor bus, it shall be prima facie evidence that the throwing, dumping, or depositing was done by the driver of the vehicle.

History. Acts 1977, No. 883, § 5; A.S.A. 1947, § 82-3905.

8-6-410. Notice to the public required.

The state shall erect signs containing pertinent portions of this subchapter along the public highways of this state and in all campgrounds and trailer parks, forestlands, and recreational areas, at all public beaches, and at other public places where persons are to be informed of the existence and content of this subchapter and the penalties for violating this subchapter’s provisions.

History. Acts 1977, No. 883, § 8; A.S.A. 1947, § 82-3908.

8-6-411. Litter receptacles.

The state shall place litter receptacles along public highways in appropriate numbers to provide motorists with convenient methods of litter disposal.

History. Acts 1977, No. 883, § 9; A.S.A. 1947, § 82-3909.

8-6-412. Enforcement generally. [Effective until May 1, 2020.]

  1. All Arkansas-certified law enforcement officers:
    1. Shall enforce this subchapter;
    2. May issue citations to or arrest persons violating any provision of this subchapter; and
      1. May serve and execute all warrants, citations, and other process issued by the courts in enforcing this subchapter.
      2. In addition, mailing by registered mail of the process to the person's last known place of residence shall be deemed as personal service upon the person charged.
    1. Illegal dumps control officers licensed and certified in accordance with § 8-6-905 and code enforcement officers as defined by municipal ordinance may:
      1. Enforce this subchapter; and
      2. Issue citations to persons violating this subchapter.
    2. However, illegal dumps control officers licensed and certified in accordance with § 8-6-905 and code enforcement officers as defined by municipal ordinance shall not:
      1. Have the powers of arrest;
      2. Carry firearms; or
      3. Take any other official law enforcement actions.
    1. All certified law enforcement officers may serve and execute all warrants, citations, and other process issued by the courts in enforcing this subchapter.
    2. In addition, mailing by registered mail of the process to the person's last known place of residence shall be deemed as personal service upon the person charged.

History. Acts 1977, No. 883, § 3; A.S.A. 1947, § 82-3903; Acts 1999, No. 386, § 1; 2005, No. 75, § 1; 2007, No. 377, § 1.

Publisher's Notes. For text of section effective May 1, 2020, see the following version.

Amendments. The 2007 amendment deleted “the provisions of” following “enforce” in (a)(1), (a)(3)(A) and (c)(1); substituted “May” for “Are empowered to” in (a)(2); added “and code enforcement officers as defined by municipal ordinance may” in (b)(1); substituted “Enforce” for “May enforce the provisions of” in (b)(1)(A); substituted “Issue” for “Are empowered to issue” in (b)(1)(B); and substituted “licensed and certified in accordance with § 8-6-905 and code enforcement officers as defined by municipal ordinance shall” for “may” in (b)(2).

8-6-412. Enforcement generally. [Effective May 1, 2020.]

  1. All Arkansas-certified law enforcement officers:
    1. Shall enforce this subchapter;
    2. May issue citations to or arrest persons violating any provision of this subchapter; and
      1. May serve and execute all warrants, citations, and other process issued by the courts in enforcing this subchapter.
      2. In addition, mailing by registered mail of the process to the person's last known place of residence shall be deemed as personal service upon the person charged.
  2. [Repealed.]
    1. All certified law enforcement officers may serve and execute all warrants, citations, and other process issued by the courts in enforcing this subchapter.
    2. In addition, mailing by registered mail of the process to the person's last known place of residence shall be deemed as personal service upon the person charged.

History. Acts 1977, No. 883, § 3; A.S.A. 1947, § 82-3903; Acts 1999, No. 386, § 1; 2005, No. 75, § 1; 2007, No. 377, § 1; 2019, No. 1067, § 4.

A.C.R.C. Notes. Acts 2019, No. 1067, § 11, provided:

“(a) The purpose of this act is to have the Environmental Compliance Resource Program operational and to make illegal dump control officers unnecessary on or before May 1, 2020.

“(b) If legislation concerning the transformation of the Arkansas Department of Environmental Quality is enacted during this Regular Session of the General Assembly, the Arkansas Code Revisor and the Arkansas Code Revision Commission shall correct the references to the Arkansas Department of Environmental Quality consistent with those laws”.

Publisher's Notes. For text of section effective until May 1, 2020, see the preceding version.

Amendments. The 2007 amendment deleted “the provisions of” following “enforce” in (a)(1), (a)(3)(A) and (c)(1); substituted “May” for “Are empowered to” in (a)(2); added “and code enforcement officers as defined by municipal ordinance may” in (b)(1); substituted “Enforce” for “May enforce the provisions of” in (b)(1)(A); substituted “Issue” for “Are empowered to issue” in (b)(1)(B); and substituted “licensed and certified in accordance with § 8-6-905 and code enforcement officers as defined by municipal ordinance shall” for “may” in (b)(2).

The 2019 amendment repealed (b).

Effective Dates. Acts 2019, No. 1067, § 4: May 1, 2020.

8-6-413. Authority to take possession of discarded items — Notice.

    1. Any enforcement agency described in § 8-6-412 which has knowledge of, discovers, or finds any junk motor vehicle, old vehicle tire, or inoperative or discarded household appliance on either public or private property may take it into custody and possession.
    2. The enforcement agency may employ its own personnel, equipment, and facilities or hire persons, equipment, and facilities for the purpose of removing, preserving, and storing junk motor vehicles, old vehicle tires, or inoperative or abandoned household appliances.
    1. However, before taking any junk motor vehicle into custody and possession from private property, the enforcement agency shall give the private property owner and the owner of the junk motor vehicle, if ascertainable, thirty (30) days' notice by registered or certified mail or seventy-two (72) hours' notice by personal service that such an action will be taken unless the junk motor vehicle is:
      1. Restored to a functional use;
      2. Disposed of by the owner in a manner not prohibited by this subchapter; or
      3. Placed in an enclosed building.
    2. The thirty-days' or seventy-two-hours' notice under subdivision (b)(1) of this section may be waived by the owners of the property.

History. Acts 1977, No. 883, § 12; A.S.A. 1947, § 82-3912; Acts 2005, No. 1222, § 1.

8-6-414. Notification to motor vehicle owner and lienholders — Reclamation.

    1. The enforcement agency which takes into custody and possession any junk motor vehicle, within thirty (30) days after taking custody and possession thereof, shall notify the last known registered owner of the junk motor vehicle and all lienholders of record that the junk motor vehicle has been taken into custody and possession.
    2. The notification shall be by registered or certified mail, return receipt requested.
    3. The notice shall:
      1. Contain a description of the junk motor vehicle, including the year, make, model, manufacturer's serial or identification number, or any other number which may have been assigned to the junk motor vehicle by the Office of Motor Vehicle and shall note any distinguishing marks;
      2. Set forth the location of the facility where the junk motor vehicle is being held and the location where the junk motor vehicle was taken into custody and possession; and
      3. Inform the owner and any lienholders of record of their right to reclaim the junk motor vehicle within ten (10) days after the date notice was received by the owner or lienholders upon payment of all towing, preservation, and storage charges resulting from taking and placing the junk motor vehicle into custody and possession and state that the failure of the owner or lienholders of record to exercise their right to reclaim the junk motor vehicle within the ten-day period shall be deemed a waiver by the owner and all lienholders of record of all right, title, and interest in the junk motor vehicle and of their consent to the sale or disposal of the junk motor vehicle at a public auction or to a salvage yard or demolisher.
    1. If the identity of the last registered owner of the junk motor vehicle cannot be determined, if the certificate of registration or certificate of title contains no address for the owner, or if it is impossible to determine with reasonable certainty the identity and addresses of all lienholders, then notice shall be published in a newspaper of countywide circulation in the county wherein the junk motor vehicle was located at the time the enforcement agency took custody and possession of the junk motor vehicle.
    2. This notice shall be sufficient to meet all requirements of notice pursuant to this section.
    3. Any notice by publication may contain multiple listings of junk motor vehicles.
    4. The notice shall be published within thirty (30) days after the junk motor vehicle is taken into custody and possession.
    5. The notice shall have the same contents required for a notice pursuant to subsection (a) of this section, except that the ten-day period shall run from the date such notice is published as prescribed.
  1. The consequences and effect of failure to reclaim a junk motor vehicle within the ten-day period after notice is received by registered or certified mail or within ten (10) days after the notice is published in a newspaper as prescribed shall be set forth in the notice.

History. Acts 1977, No. 883, § 13; A.S.A. 1947, § 82-3913.

8-6-415. Sale of junk motor vehicles and discarded items.

  1. If a junk motor vehicle is not reclaimed as provided for in § 8-6-414, the enforcement agency in possession of the junk motor vehicle shall sell it either at a public auction or to a salvage yard or demolisher. The purchaser of the junk motor vehicle shall take title to the junk motor vehicle free and clear of all liens and claims of ownership and shall receive a sales receipt from the enforcement agency which disposed of the junk motor vehicle. The sales receipt at the sale shall be sufficient title only for purposes of transferring the junk motor vehicle to a salvage yard or to a demolisher for demolition, wrecking, or dismantling. No further titling of the junk motor vehicle shall be necessary by either the purchaser at the auction, the salvage yard, or the demolisher, who shall be exempt from the payment of any fees and taxes.
  2. When an enforcement agency has in its custody and possession old vehicle tires or inoperative or discarded household appliances collected in accordance with § 8-6-413, it shall sell property, from time to time, at public auction or to a salvage yard or demolisher.

History. Acts 1977, No. 883, § 14; A.S.A. 1947, § 82-3914.

8-6-416. Disposition of sale proceeds.

  1. From the proceeds of any sale, the enforcement agency which sold the junk motor vehicle, old vehicle tire, or inoperative or discarded household appliance shall reimburse itself for any expenses it may have incurred in removing, towing, preserving, and storing the property and for the expenses of conducting any auction and any notice and publication expenses incurred pursuant to this subchapter.
  2. Any remainder from the proceeds of the sale shall be deposited into the State Treasury to be kept and maintained in the Litter Control Account. Any remainder from the proceeds of the sale of a junk motor vehicle after payment of the expenses shall be held for the last registered owner of the junk motor vehicle or any lienholder for ninety (90) days, after which time, if no owner or lienholder claims the remainder, it shall be deposited into the account.
  3. Any moneys so collected and deposited into the account shall be used solely for the payment of auction, towing, removing, preserving, storing, notice, and publication costs which result from taking other junk motor vehicles, old vehicle tires, and inoperative or discarded household appliances into custody and possession.

History. Acts 1977, No. 883, § 15; A.S.A. 1947, § 82-3915.

8-6-417. [Repealed.]

Publisher's Notes. This section, concerning the Advisory Board on the Control of Litter and Junk, was repealed by Acts 1991, No. 786, § 6. The section was derived from Acts 1977, No. 883, § 17; A.S.A. 1947, § 82-3917.

Acts 1989, No. 536, § 8, abolished the Advisory Board on the Control of Litter and Junk.

8-6-418. Possession or use of glass containers on navigable waterways — Definitions.

    1. Except for containers for medicinal substances contained in a first-aid kit or prescribed by a licensed physician, and except as provided under subdivision (a)(2) of this section, no person shall possess or use glass containers within a vessel within the banks of Arkansas's navigable waterways.
    2. A person engaged in removing glass previously discarded by others and found within the banks of an Arkansas navigable waterway may not be charged with a violation of this section on the basis of possession of glass, if while underway and upon a waterway, he or she transports the removed glass securely in a trash container.
    1. A person entering, traveling upon, or otherwise using Arkansas's navigable waterways by canoe, kayak, innertube, or other vessel easily susceptible to swamping, tipping, rolling, or otherwise discharging its contents into a waterway, and transporting foodstuffs or beverages shall:
      1. Transport all foodstuffs and beverages in a sturdy container and ensure that the sturdy container is made to seal or lock in the contents to prevent the contents from spilling into the water;
        1. Carry and affix to the vessel a trash container or bag suitable for containing his or her refuse, waste, and trash materials and capable of being securely closed.
        2. The trash container or bag shall be either a sturdy container, of a construction similar to a sturdy container, or a bag of mesh construction;
        1. Except as provided under subdivision (b)(1)(C)(ii) of this section, transport all his or her refuse, waste, and trash either in a sturdy container or in a trash container to a place where the refuse, waste, and trash may be safely and lawfully disposed of.
        2. A person engaged in removing items of refuse, waste, and trash materials previously discarded by others and found by him or her within the banks of an Arkansas navigable waterway and that are too large to be transported in a trash container or bag, may not be charged with a violation of this section on the basis of possession and transportation of the refuse, waste, and trash; and
      2. At all times other than when a beverage is securely contained in a sturdy container or a trash container as in subdivisions (b)(1)(A)-(C) of this section, keep the beverage attached to or held within a floating holder or other device designed to prevent the beverage from sinking beneath the surface of the waterway.
    2. Neither a sturdy container nor a trash container may be required of a person traveling without foodstuffs or beverages.
    1. A violation of this section is a violation and each violation may be prosecuted as a separate offense.
    2. Each violation of this section is punishable by a fine of not more than five hundred dollars ($500).
  1. As used in this section:
    1. “Navigable waterway” means any navigable river, lake, or other body of water used or susceptible to being used in its natural condition by canoe, kayak, innertube, or other vessel easily susceptible to swamping, tipping, or rolling, and located wholly or partly within this state;
    2. “Sturdy container” does not include a container that is:
      1. Primarily constructed of styrofoam; or
      2. So constructed that it may be easily broken; and
    3. “Vessel” does not include a houseboat, party barge, johnboat, runabout, ski boat, bass boat, or similar craft not easily susceptible to swamping, tipping, or rolling.

History. Acts 2001, No. 803, § 1; 2003, No. 1101, § 1; 2019, No. 693, § 14.

Amendments. The 2019 amendment substituted “is a violation” for “shall be a misdemeanor” in (c)(1); and substituted “of this section is” for “shall be” in (c)(2).

Subchapter 5 — Illegal Dump Eradication and Corrective Action Program Act [Repealed effective May 1, 2020.]

A.C.R.C. Notes. Acts 2019, No. 1067, § 11, provided:

“(a) The purpose of this act is to have the Environmental Compliance Resource Program operational and to make illegal dump control officers unnecessary on or before May 1, 2020.

“(b) If legislation concerning the transformation of the Arkansas Department of Environmental Quality is enacted during this Regular Session of the General Assembly, the Arkansas Code Revisor and the Arkansas Code Revision Commission shall correct the references to the Arkansas Department of Environmental Quality consistent with those laws”.

While Acts 2019, No. 1067, § 5, specifically repealed this subchapter “effective May 1, 2020”, section 11 of that act appears to assume that should the Environmental Compliance Resource Program established in the Environmental Compliance Resource Act, § 8-6-2001 et seq., become operational before May 1, 2020, then this subchapter is superseded at that point in time, and is permanently repealed on May 1, 2020, whether the program is operational or not on that date.

Publisher's Notes. This subchapter is repealed by Acts 2019, No. 1067, § 5, effective May 1, 2020. For current law, see the Environmental Compliance Resource Act, § 8-6-2001 et seq.

Acts 2019, No. 1067, § 5, specifically repealed this subchapter as amended by Acts 2019, No. 315.

Effective Dates. Acts 1997, No. 938, § 9: July 1, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the fiscal year begins on July 1, and that this emergency clause is necessary in order that uniformity can be achieved at the beginning of the 1997-1998 fiscal year for money deposited into the Landfill Post-Closure Trust Fund and the moneys allocated from that fund for the Illegal Dump Eradication and Corrective Action Program. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety, shall be in full force and effect from and after July 1, 1997.”

Acts 2005, No. 75, § 4: Feb. 7, 2005. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that current resources are limited to enforce the Litter Control Act; that this act authorizes illegal dumps control officers to issue citations for violations of the Litter Control Act; that this act clarifies the proper disposal of solid waste from illegal dumps; and that this act is immediately necessary to provide additional resources for the control of litter and the proper disposal of solid waste. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

8-6-501. Title. [Repealed effective May 1, 2020.]

This subchapter shall be known and may be cited as the “Illegal Dump Eradication and Corrective Action Program Act”.

History. Acts 1995, No. 502, § 1; 1997, No. 938, § 1.

Publisher's Notes. Acts 1995, No. 502, renumbered former § 8-6-501 as § 8-6-503.

This section is repealed by Acts 2019, No. 1067, § 5, effective May 1, 2020. For current law, see § 8-6-2001 et seq.

8-6-502. Purpose. [Repealed effective May 1, 2020.]

It is the purpose of this subchapter to set forth the policy of the state to eliminate the illegal dumping of solid waste and to provide a means of funding the Illegal Dump Eradication and Corrective Action Program. This subchapter defines illegal dumps and establishes elimination proceedings and provides a mechanism for funding.

History. Acts 1995, No. 502, § 1; 1997, No. 938, § 1.

Publisher's Notes. Acts 1995, No. 502, and Acts 1997, No. 938, renumbered former § 8-6-502 as § 8-6-504 and § 8-6-505, respectively.

This section is repealed by Acts 2019, No. 1067, § 5, effective May 1, 2020. For current law, see § 8-6-2001 et seq.

8-6-503. Definitions. [Repealed effective May 1, 2020.]

As used in this subchapter:

  1. “Commission” means the Arkansas Pollution Control and Ecology Commission;
  2. [Repealed.]
  3. [Repealed.]
  4. “Illegal dump” means any place at which solid waste is placed, deposited, abandoned, dumped, or otherwise disposed of in a manner that is prohibited by this subchapter or other statutes or rules, and which constitutes one (1) of the following:
    1. An attractive nuisance;
    2. A fire, health, or safety hazard;
    3. A potential source of surface or groundwater contamination; or
    4. Other contamination that is hazardous to the public health or endangers the environment;
  5. “Illegal dumping of solid waste” means the illegal placing, depositing, dumping, or causing to be placed, deposited, or dumped by any person any solid waste that is prohibited by this chapter:
    1. In or upon any public or private highway or road, including any portion of the right-of-way thereof;
    2. In or upon any private property into or upon which the public is admitted by easement or license or any private property;
    3. In or upon any public park or other public property, other than the property designated or set aside for such purpose by the governing board or body having charge thereof; or
    4. Upon any property for which a permit has not been issued by the Division of Environmental Quality;
  6. “Illegal dumps control officer” means an individual employed by a duly authorized regional solid waste management district within this state, a county government within this state, or a pollution control inspector or other authorized representative of the division who is empowered to ensure compliance with the provisions of this subchapter;
  7. “Landfill” means a landfill permitted under the Arkansas Solid Waste Management Act, § 8-6-201 et seq., except a landfill where a private industry bears the expense of operating and maintaining the landfill solely for the disposal of wastes generated by the industry or wastes of a similar kind or character;
  8. “Person” means any individual, corporation, company, firm, partnership, association, trust, state agency, government instrumentality or agency, institution, county, city, town, municipal authority, or trust, venture, or other legal entity, however organized; and
  9. “Solid waste” means any garbage or refuse, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations and from community activities, but does not include solid or dissolved materials in domestic sewage or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to permit under 33 U.S.C. § 1342, or source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954.

History. Acts 1977, No. 380, § 1; A.S.A. 1947, § 82-2729; Acts 1995, No. 502, § 1; 1997, No. 938, § 1; 1997, No. 1207, § 1; 1999, No. 1164, §§ 66, 67; 2009, No. 1199, § 7; 2019, No. 315, § 542; 2019, No. 910, §§ 2619, 2620.

A.C.R.C. Notes. Acts 1997, No. 1207, § 1, purported to add the definition for “illegal dumps control officer” to § 8-6-502. Pursuant to § 1-2-303, the Arkansas Code Revision Commission codified the definition in this section.

Publisher's Notes. Prior to 1995, this section was codified as § 8-6-501.

This section is repealed by Acts 2019, No. 1067, § 5, effective May 1, 2020. For current law, see § 8-6-2001 et seq.

Amendments. The 2009 amendment, in (4), deleted “and/oor any of” following “one (1) of” in the introductory language, and substituted “or” for “and/oor” in (4)(C).

The 2019 amendment by No. 315 substituted “or rules” for “rules or regulations” in the introductory language of (4).

The 2019 amendment by No. 910 repealed (2) and (3); and substituted “Division of Environmental Quality” for “department” in (5)(D).

U.S. Code. The Atomic Energy Act of 1954, referred to in this section, is codified primarily as 42 U.S.C. § 2011 et seq.

8-6-504. Illegal Dump Eradication and Corrective Action Program. [Repealed effective May 1, 2020.]

The Illegal Dump Eradication and Corrective Action Program shall be administered by the Division of Environmental Quality.

History. Acts 1997, No. 938, § 1; 2005, No. 1962, § 17; 2019, No. 910, § 2621.

Publisher's Notes. Acts 1997, No. 938, renumbered former § 8-6-504 as § 8-6-505.

This section is repealed by Acts 2019, No. 1067, § 5, effective May 1, 2020. For current law, see § 8-6-2001 et seq.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality”.

8-6-505. Proceedings generally. [Repealed effective May 1, 2020.]

  1. Any government official or employee or any person who has knowledge of or information on the illegal dumping of solid waste on any public or private property in this state may file a complaint in a court of competent jurisdiction of the county in which the illegal dumping of solid waste has taken place or in the county of residence of the person who is accused of being liable for the illegal dumping of solid waste.
    1. Upon the filing of a verified complaint, noting on the complaint the person against whom the claim is filed, the court shall enter a temporary order directing that the accused person remove from the described public or private property the solid waste that has been illegally dumped on the property and properly dispose of the solid waste in a permitted landfill or other facility within ten (10) days from the date of the order.
    2. The county sheriff shall serve the order.
    3. Upon the order's being served, the accused party shall:
      1. Remove the solid waste in question from the public or private property as described in the order;
      2. Dispose of the solid waste at a properly permitted solid waste transfer station, landfill, recycling center, or incinerator; and
      3. Return to the court a disposal receipt from the facility where the solid waste was disposed.
    4. If the person wishes to challenge the order, the person may file a petition challenging the order with the court within ten (10) days from the date the order is served.
    1. Upon the filing of a petition challenging the order, the court shall hold a hearing on it within fourteen (14) days after the filing of the petition and shall serve notice upon the accusing party and upon the accused.
    2. At the hearing, which may be continued from time to time as determined by the court, the court shall hear all evidence and testimony and after hearing it shall enter an order either dismissing the original or temporary order or making the order permanent.
    3. The parties represented at the hearing may be represented by counsel.
    1. If the order is made permanent, within ten (10) days thereafter the accused party shall cause the solid waste which has been illegally dumped on private or public property to be removed from the property and disposed of properly in a permitted landfill or other facility.
      1. If after ten (10) days from the date of the order the person against whom the order is directed has not removed the solid waste from the public or private property and properly disposed of it as noted in the order, the governmental agency or the owner of the property may cause it to be moved and shall file with a court a verified statement in writing of the cost of removal.
      2. After reviewing the statement, if the court determines it to be reasonable, the court shall enter an order upon the judgment docket of the court of the amount of the statement, which shall be a judgment against the party against whom the judgment was issued and may be enforced as any other judgment.
    1. Any party aggrieved by any order of a court under this subchapter may appeal from the order.
    2. If an aggrieved party appeals to a circuit court of competent jurisdiction, then the circuit court shall try the cause de novo.

History. Acts 1977, No. 380, § 2; A.S.A. 1947, § 82-2730; Acts 1995, No. 502, § 1; 1997, No. 938, § 1; 2005, No. 75, § 2.

Publisher's Notes. Acts 1997, No. 938, renumbered former § 8-6-505 as § 8-6-506.

This section is repealed by Acts 2019, No. 1067, § 5, effective May 1, 2020. For current law, see § 8-6-2001 et seq.

8-6-506. Criminal, civil, and administrative penalties. [Repealed effective May 1, 2020.]

In addition to the proceedings described in § 8-6-505, every person convicted of a violation of this subchapter shall be subject to the criminal, civil, or administrative penalties as specified in § 8-6-204.

History. Acts 1995, No. 502, § 1; 1997, No. 938, § 1.

Publisher's Notes. Acts 1997, No. 938, renumbered former § 8-6-506 as § 8-6-507.

This section is repealed by Acts 2019, No. 1067, § 5, effective May 1, 2020. For current law, see § 8-6-2001 et seq.

8-6-507. Consequences of unpaid fines and costs. [Repealed effective May 1, 2020.]

  1. In all convictions for violations of the provisions of this subchapter when the fine and costs are not paid, the person convicted shall be subject to administrative or civil enforcement action.
  2. Sanctions may include administrative, civil, or criminal penalties as provided in the Arkansas Solid Waste Management Act, § 8-6-201 et seq.

History. Acts 1995, No. 502, § 1; 1997, No. 938, § 1.

Publisher's Notes. This section is repealed by Acts 2019, No. 1067, § 5, effective May 1, 2020. For current law, see § 8-6-2001 et seq.

8-6-508. Enforcement generally. [Repealed effective May 1, 2020.]

    1. Illegal dumps control officers are empowered to ensure compliance with the provisions of this subchapter by having the right and duty to:
      1. Inspect suspected illegal dumps;
      2. Collect evidence of open dumping and littering and present the evidence to the prosecuting attorney or a court of competent jurisdiction where the offense was committed; and
      3. Issue and serve citations for violations of provisions of the Arkansas Solid Waste Management Act, § 8-6-201 et seq., prohibiting illegal dumping, subject to exemptions under § 8-6-205 and the agricultural exemptions under § 8-6-509, and for violations of the Litter Control Act, § 8-6-401 et seq., prohibiting unlawful littering.
    2. Citations issued by illegal dumps control officers shall be filed in any court having jurisdiction in the county where the offense is committed.
      1. Citations may be served in person or by mailing a copy of the citation by certified mail, restricted delivery, to either the address obtained from evidence collected from the illegal dump or to the person's last known address. Persons receiving citations shall appear before the court named within the citation at the time designation in the citation.
      2. Courts having jurisdiction over citations issued by illegal dumps control officers may issue penalties as specified in § 8-6-204(a).
    3. Illegal dumps control officers may require violators to present signed and dated disposal receipts as evidence that the solid waste has been:
      1. Removed from the illegal dump; and
      2. Properly disposed of in one (1) or more of the following facilities:
        1. A permitted landfill;
        2. A solid waste transfer station;
        3. A recycling center;
        4. An incinerator;
        5. A scrap yard that purchases iron, steel, aluminum, or other metals;
        6. A permitted waste tire collection center or waste tire processing facility; or
        7. Any other facility that the illegal dumps control officer finds to be a proper disposal of the solid waste.
  1. All illegal dumps control officers shall be licensed and certified in accordance with § 8-6-901 et seq.
  2. Illegal dumps control officers shall not have powers of arrest.

History. Acts 1997, No. 1207, § 2; 2001, No. 1686, § 1; 2005, No. 75, § 3.

Publisher's Notes. This section is repealed by Acts 2019, No. 1067, § 5, effective May 1, 2020. For current law, see § 8-6-2001 et seq.

8-6-509. Agricultural operations. [Repealed effective May 1, 2020.]

The Arkansas Solid Waste Management Act, § 8-6-201 et seq., this subchapter, and § 8-6-901 et seq. do not apply to:

  1. Any place at which agricultural gleanings and crop residue resulting from operations of farms, grain elevators, cotton gins, and similar industries are being land applied according to current management practices of such industries or the agricultural community and with the consent of the landowner is not an illegal dump; and
  2. Any landowner who disposes of solid waste on the property on which waste results from such agricultural or farming operations or household operations and such disposal does not constitute a fire, health, or safety hazard to the public.

History. Acts 1997, No. 1207, § 5.

Publisher's Notes. This section is repealed by Acts 2019, No. 1067, § 5, effective May 1, 2020. For current law, see § 8-6-2001 et seq.

8-6-510. Effectiveness of regulations and orders. [Repealed effective May 1, 2020.]

None of the provisions of this act are intended to supersede any of the reuse, recycling, or fill provisions of state law of Regulation 22 of the Solid Waste Management Division of the Division of Environmental Quality.

History. Acts 1997, No. 1207, § 6; 1999, No. 1164, § 68; 2019, No. 910, § 2622.

Publisher's Notes. This section is repealed by Acts 2019, No. 1067, § 5, effective May 1, 2020. For current law, see § 8-6-2001 et seq.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality”.

Meaning of “this act”. Acts 1997, No. 1207, codified as §§ 8-6-503, 8-6-5088-6-510, 8-6-901, and 8-6-905.

Subchapter 6 — Solid Waste Management and Recycling Fund Act

Effective Dates. Acts 1993, No. 1127, § 7: Apr. 13, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that some areas of the state are facing critical shortages of solid waste disposal capacity due to the difficulties in siting landfill facilities at the local level. It is found that the authority granted to municipalities and counties to adopt more restrictive standards for the location, design, construction, and maintenance of solid waste disposal sites and facilities than those adopted by the federal, state and regional laws, rules, regulations, and orders, has exacerbated and attenuated this crises and could thwart or jeopardize the purposes of Arkansas Act 752 of 1991 and its efforts to protect the public health and the state's environmental quality by establishing regional solid waste management and planning. Therefore, an emergency is hereby declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1997, No. 179, § 38: Feb. 17, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that Act 10 of the First Extraordinary Session of 1995 abolished the Joint Interim Committee on Public Health, Welfare, and Labor and in its place established the House Interim Committee and Senate Interim Committee on Public Health, Welfare, and Labor; that various sections of the Arkansas Code refer to the Joint Interim Committee on Public Health, Welfare, and Labor and should be corrected to refer to the House and Senate Interim Committees on Public Health, Welfare, and Labor; that this act so provides; and that this act should go into effect immediately in order to make the laws compatible as soon as possible. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2012, No. 283, § 15: July 1, 2012. Emergency clause provided: “It is found and determined by the General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a one (1) year period; that the effectiveness of this Act on July 1, 2012 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the legislative session, the delay in the effective date of this Act beyond July 1, 2012 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 2012.”

Acts 2013, No. 1202, § 49: July 1, 2013. Emergency clause provided: “It is found and determined by the General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a one (1) year period; that the effectiveness of this Act on July 1, 2013 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the legislative session, the delay in the effective date of this Act beyond July 1, 2013 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 2013.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

U. Ark. Little Rock L.J.

Note, Environmental Law — Conservation — New Jersey Mandatory Statewide Source Separation and Recycling of Solid Waste Act, 11 U. Ark. Little Rock L.J. 733.

8-6-601. Title.

This subchapter may be known and cited as the “Solid Waste Management and Recycling Fund Act”.

History. Acts 1989, No. 849, § 1; 1989, No. 934, § 1.

8-6-602. Legislative findings and intent — Duties of division — Construction.

  1. The General Assembly finds that the solid waste needs of the state are not being met in an efficient, cost-efficient, and environmentally sound manner. The current reliance upon localized landfills is threatening to add Arkansas to those states experiencing solid waste management crises.
  2. The General Assembly concludes that, to the extent practicable, regional solid waste management systems should be developed which address solid waste needs in the context of cooperation and shared resources.
    1. The General Assembly finds that recycling glass, plastic, cans, paper, and other materials will reduce the state's reliance upon landfills.
    2. Additionally, other solid waste reduction activities will help reduce the state's dependence on landfills, including:
      1. Using waste items as raw materials in a production process, such as adding shingles to asphalt mix for paving;
      2. Using waste items to produce an end product without recycling, such as returning wood chips to citizens as mulch;
      3. Using waste items as fuel, such as burning wood chips or tire chips in a waste-to-fuel process; or
      4. Other activities as approved by the Division of Environmental Quality.
    3. The waste stream reduction activities described in subdivision (c)(2) of this section also curb littering, illegal dumping, and abate the environmental risks caused by current solid waste practices.
    4. The General Assembly therefore mandates that recycling shall be integrated as a component of any solid waste management plan required under the Arkansas Solid Waste Management Act, § 8-6-201 et seq., and that these recycling plans shall be implemented under the terms of this subchapter.
  3. The division and the Arkansas Pollution Control and Ecology Commission shall promulgate and implement policies, rules, and procedures for administering the terms of this subchapter.
  4. The terms and obligations of this subchapter shall be liberally construed so as to achieve remedial intent.

History. Acts 1989, No. 849, § 2; 1989, No. 934, § 2; 2011, No. 819, § 1; 2013, No. 1333, § 1; 2019, No. 315, § 543; 2019, No. 910, §§ 2623, 2624.

Amendments. The 2011 amendment inserted present (c)(2) and redesignated the remaining subdivisions accordingly; and, in (c)(3), added “The waste stream reduction activities described in subdivision (c)(2) of this section also” and inserted “illegal dumping.”

The 2013 amendment rewrote (d).

The 2019 amendment by No. 315 deleted “regulations” following “rules” in (d).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (c)(2)(D); and substituted “division” for “department” in (d).

8-6-603. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “Commission” means the Arkansas Pollution Control and Ecology Commission;
  2. [Repealed.]
  3. “Landfill” means all landfills permitted under the Arkansas Solid Waste Management Act, § 8-6-201 et seq., except those permitted landfills operated by a regulated public utility for ash generated by the combustion of coal to produce electric energy;
  4. “Permittee” means any individual, corporation, company, firm, partnership, association, trust, local solid waste authority, institution, county, city, town, or municipal authority or trust, venture, or other legal entity holding a solid waste disposal permit as provided in the Arkansas Solid Waste Management Act, § 8-6-201 et seq.;
  5. “Recycling” means the systematic collection, sorting, decontamination, and return of waste materials to commerce as commodities for use or exchange;
  6. “Solid waste” means any garbage or refuse, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved materials in domestic sewage or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to permit under 33 U.S.C. § 1342, or source material, special nuclear material, or by-product material as defined by the Atomic Energy Act of 1954, Pub. L. No. 83-703;
  7. “Solid waste disposal permit” means a permit issued by the State of Arkansas under the provisions of the Arkansas Solid Waste Management Act, § 8-6-201 et seq., for the construction and operation of a landfill waste disposal facility;
  8. “Solid waste management” means the management of, but is not limited to, the storage, collection, transfer, transportation, treatment, utilization, processing, and final disposal of solid waste, including, but not limited to, the prevention, reduction, or recycling of wastes;
  9. “Solid waste management plan” means a plan which is developed according to the provisions of the Arkansas Solid Waste Management Act, § 8-6-201 et seq., and guidelines of the Division of Environmental Quality, and which is subject to approval by the division;
  10. “Solid waste reduction activities” means other activities that divert materials from landfills for reuse, including without limitation:
    1. Using waste items as raw materials in a production process, such as adding shingles to asphalt mix for paving;
    2. Using waste items to produce an end product without recycling, such as returning wood chips to citizens as mulch;
    3. Using waste items as fuel, such as burning wood chips or tire chips in a waste-to-fuel process; or
    4. Other activities as approved by the division; and
  11. “Transporter” or “solid waste transporter” means any individual, corporation, company, firm, partnership, association, trust, local solid waste authority, institution, county, city, town, or municipal authority or trust, venture, or other legal entity transporting solid waste within the state that is to be disposed of outside the state.

History. Acts 1989, No. 849, § 3; 1989, No. 934, § 3; 1991, No. 755, § 1; 1993, No. 1127, § 3; 1995, No. 511, § 1; 1999, No. 1164, § 69; 2011, No. 819, § 2; 2019, No. 910, §§ 2625-2627.

Amendments. The 2011 amendment inserted present (10) and redesignated the remaining subdivision accordingly.

The 2019 amendment repealed (2); in (9), substituted “Division of Environmental Quality” for the first occurrence of “department” and “division” for the second occurrence of “department”; and substituted “division” for “department” in (10)(D).

U.S. Code. The Atomic Energy Act of 1954, referred to in (6), is codified primarily as 42 U.S.C. § 2011 et seq.

8-6-604. Recycling plans and implementation.

  1. Unless otherwise excused by the Arkansas Pollution Control and Ecology Commission pursuant to the Arkansas Solid Waste Management Act, § 8-6-201 et seq., each governmental entity which is required to submit or has submitted a solid waste management plan pursuant to § 8-6-211 shall produce, by July 1, 1991, a solid waste management plan which proposes the establishment of recycling programs and facilities. The plan shall be subject to review and approval by the Division of Environmental Quality.
  2. Pursuant to established procedures, the division may initiate enforcement actions against governmental entities for failure to abide by the requirements of subsection (a) of this section. Enforcement sanctions may include, but are not limited to, denial, discontinuation, or reimbursement of grant funds awarded pursuant to any programs administered by the division.

History. Acts 1989, No. 849, § 4; 1989, No. 934, § 4; 2019, No. 910, § 2628.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a); and substituted “division” for “department” twice in (b).

8-6-605. Solid Waste Management and Recycling Fund.

  1. There is established on the books of the Treasurer of State, the Auditor of State, and the Chief Fiscal Officer of the State a trust fund to be known as the “Solid Waste Management and Recycling Fund”.
  2. The fund shall be administered by the Division of Environmental Quality, which shall authorize distributions and administrative expenditures from the fund under this subchapter for solid waste management and recycling programs.
  3. In addition to all moneys appropriated by the General Assembly to the fund, there shall be deposited into the fund all landfill disposal fees collected pursuant to §§ 8-6-606 and 8-6-607, United States Government moneys designated to enter the fund, any moneys received by the state as a gift or donation to the fund, and all interest earned upon money deposited into the fund.
  4. No more than twenty percent (20%) of the moneys received annually into the fund shall be used by the division for:
    1. The administration of a solid waste management and recycling program;
    2. The administration of a computer and electronic equipment recycling program under § 8-6-613; and
    3. Solid waste management compliance and enforcement activities at landfills and open dumps.

History. Acts 1989, No. 849, § 5; 1989, No. 934, § 5; 2007, No. 512, § 1; 2013, No. 1333, § 2; 2017, No. 624, § 1; 2019, No. 910, §§ 2629, 2630.

A.C.R.C. Notes. Acts 2017, No. 624, § 9, provided: “Distribution of funds from landfill disposal fees.

“(a)(1) The Chief Fiscal Officer of the State shall determine the total moneys available on the day before the effective date of this act [August 1, 2017] at 11:59 p.m. that were collected under § 8-6-612 [repealed] for computer and electronic equipment recycling programs.

“(2) The moneys available under subdivision (a)(1) of this section shall be used to fund computer and electronic equipment recycling programs under Arkansas Code § 8-6-613(c) until all moneys are distributed as provided under this subsection.

“(3)(A) The use of any interest earnings or investment earnings on the moneys available under subdivision (a)(1) of this section shall not be restricted to computer and electronic equipment recycling programs after the effective date of this act [August 1, 2017].

“(B) The interest earnings and investment earnings on the moneys available under this subsection shall be used as provided under § 8-6-605.

“(4)(A) For each fiscal year, two million five hundred thousand dollars ($2,500,000) of the moneys available under subdivision (a)(1) of this section shall be added to the distribution of funding to regional solid waste management districts under Arkansas Code § 8-6-615.

“(B) When the balance of the moneys allocated under subdivision (a)(1) of this section is less than two million five hundred thousand dollars ($2,500,000) for a fiscal year, all of the available moneys remaining in the fund shall be the last moneys used to supplement the distribution to the regional solid waste management districts under § 8-6-615 for that fiscal year.

“(5) For each fiscal year, the Arkansas Department of Environmental Quality shall determine the amount of the moneys allocated under subdivision (a)(4) of this section that are included in each regional solid waste management district's fund distribution under § 8-6-615 and provide that information to the regional solid waste management districts.

“(6)(A) Except as otherwise provided under subdivision (a)(6)(B) of this section, each regional solid waste management district shall use the moneys received under subdivision (a)(5) of this section for computer and electronic equipment recycling programs.

“(B) Moneys received under this section by a regional solid waste management district but not needed for computer and electronic equipment recycling may be used for another recycling project operated by the regional solid waste management district only if the regional solid waste management board that governs a regional solid waste management district certifies that the funds are not needed for the approved computer and electronic equipment recycling program.

“(b) This section expires after the final distribution of the moneys allocated under subdivision (a)(4)(B) of this section to the regional solid waste management districts.”

Amendments. The 2007 amendment added the (a)(1), (a)(2) and (a)(3) designations, and added (b).

The 2013 amendment, in (a)(2), substituted “distributions” for “grants” and “under” for “according to the provisions of”; and substituted “twenty percent (20%)” for “twenty five percent (25%)” in (a)(4).

The 2017 amendment redesignated former (a)(1) through (a)(4) as present (a) through (d); in (a), substituted “There is” for “The Solid Waste Management and Recycling Fund is” and added “a trust fund to be known as the ‘Solid Waste Management and Recycling Fund’”; added “for solid waste management and recycling programs” in (b); deleted “all moneys reimbursed to the department pursuant to § 8-6-610” preceding “federal” in (c); inserted (d)(2); deleted former (b); and made stylistic changes.

The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (b); and substituted “division” for “department” in (d).

Cross References. Solid Waste Management and Recycling Fund, § 19-5-961.

8-6-606. Landfill disposal fees.

    1. Except as provided in subsection (c) or subsection (e) of this section, there is imposed on each landfill permittee a landfill disposal fee of twenty-five cents (25¢) for each uncompacted cubic yard of solid waste and forty-five cents (45¢) for each compacted cubic yard of solid waste received at the landfill.
    2. If a landfill permittee is required or chooses to operate on a weight basis, the landfill disposal fee shall be one dollar and fifty cents ($1.50) for each one (1) ton (2,000 lbs.) of solid waste received at the landfill.
    1. Except as provided in subsections (a) and (c) of this section, for all solid waste generated and transported within the state but to be disposed of outside the state, there is imposed on each such solid waste transporter a solid waste transportation fee of twenty-five cents (25¢) for each uncompacted cubic yard of solid waste and forty-five cents (45¢) for each compacted cubic yard of solid waste transported.
    2. If a solid waste transporter chooses to operate on a weight basis, the solid waste transportation fee shall be one dollar and fifty cents ($1.50) for each ton of solid waste transported in the state.
    1. For 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, there is imposed on each landfill permittee a landfill disposal fee of ten cents (10¢) for each uncompacted cubic yard of solid waste and twenty cents (20¢) for each compacted cubic yard of solid waste received at the landfill.
    2. If the landfill permittee chooses to operate on a weight basis, the landfill disposal fee under this subsection shall be fifty cents (50¢) for each ton of solid waste received at the landfill.
      1. By January 1, 2004, all permitted facilities identified by rule of the Arkansas Pollution Control and Ecology Commission as Class 1 and Class 3C landfills, except those permitted landfills that shall comply with closure requirements before January 1, 2005, shall install scales and commence weighing all solid waste received at the landfill.
      2. This requirement may be satisfied by utilizing an alternative weighing system approved by the Director of the Division of Environmental Quality.
    1. Class 1 and Class 3C landfills shall be required to weigh all loads in excess of one (1) ton (2,000 lbs.), unless otherwise authorized in writing by the Division of Environmental Quality. This provision authorizes Class 1 and Class 3C landfills to estimate weights for residential and other similar loads weighing less than one (1) ton (2,000 lbs.).
    2. Class 1 and Class 3C landfills shall install and operate scales for the purpose of weighing solid waste received at the landfill and shall maintain and operate the scales in accordance with the United States Department of Agriculture standards.
    3. Except as provided in subdivisions (d)(1) and (2) of this section, beginning January 1, 2004:
      1. All quarterly reports required by this subchapter to be submitted by Class 1 and Class 3C landfill permittees to the division shall accurately state the total weight of solid waste received at the landfill, and the total weight of solid waste received at the landfill shall be based upon the recorded weight scale measurements; and
      2. The recorded weight scale measurements of solid waste received at Class 1 and Class 3C landfills shall be used to calculate the solid waste disposal fees payable to the division by Class 1 and Class 3C landfill permittees.
  1. Solid waste collected during the annual Keep Arkansas Beautiful and Keep America Beautiful campaigns that are sponsored by the Keep Arkansas Beautiful Commission is exempt from the landfill disposal fee under this section.

History. Acts 1989, No. 849, § 6; 1989, No. 934, § 6; 1991, No. 754, § 1; 1993, No. 1127, § 3; 2001, No. 217, §§ 1, 2; 2003, No. 1337, § 1; 2009, No. 189, §§ 1, 2; 2019, No. 315, § 544; 2019, No. 910, §§ 2631-2633.

Amendments. The 2009 amendment inserted “or (e)” in (a)(1); and added (e).

The 2019 amendment by No. 315 substituted “rule” for “regulation” in (d)(1)(A).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” throughout (d).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Environmental Law, 24 U. Ark. Little Rock L. Rev. 475.

Survey of Legislation, 2003 Arkansas General Assembly, Environmental Law, 26 U. Ark. Little Rock L. Rev. 405.

8-6-607. Collection of fees.

  1. On or before January 15, April 15, July 15, and October 15 of each year, each landfill permittee and each solid waste transporter shall:
    1. Submit to the Division of Environmental Quality a quarterly report that accurately states the total weight or volume of solid waste received at the landfill or transported out of state during the quarter just completed; and
    2. Pay to the division the full amount of disposal and transportation fees imposed and collected under this subchapter for the preceding quarter.
    1. Except as provided in subdivisions (b)(2) and (3) of this section, the disposal and transportation fees collected under this section shall be special revenues and deposited into the State Treasury to the credit of the Solid Waste Management and Recycling Fund for administrative support of the Compliance Advisory Panel.
    2. Twenty-five percent (25%) of the disposal fees collected under subsection (a) of this section from landfills in which a private industry bears the expense of operating and maintaining the landfill solely for the disposal of wastes generated by the private industry shall be deposited quarterly into the Marketing Recyclables Program Fund.
    3. Except for the disposal fees deposited into the Marketing Recyclables Program Fund under subdivision (b)(2) of this section, before disbursing moneys to the regional solid waste management boards, the division shall deposit the following moneys into the following funds each fiscal year:
      1. One hundred fifty thousand dollars ($150,000) into the Crime Information System Fund to be used exclusively for the scrap metal logbook program; and
      2. Three hundred thousand dollars ($300,000) into the Arkansas Unpaved Roads Program Fund.

History. Acts 1989, No. 849, § 7; 1989, No. 934, § 7; 1991, No. 755, § 2; 1993, No. 1127, § 3; 1995, No. 511, § 2; 2012, No. 283, § 10; 2013, No. 1202, § 45; 2017, No. 1067, § 2; 2019, No. 695, § 1; 2019, No. 910, §§ 2634, 2635.

A.C.R.C. Notes. Acts 2019, No. 695, § 3, provided: “This act applies to annual disbursements under § 8-6-607 beginning in fiscal year 2020.”

Acts 2019, No. 910, § 2635, amended subdivision (4)(B) of this section to replace “department” with “division”. However, Acts 2019, No 695, § 1, specifically repealed this subdivision.

Amendments. The 2012 amendment substituted “under” for “pursuant to” in the introductory language and in (3); substituted “subdivisions (4) and (5)” for “subdivision (4)” in (3); and added (5).

The 2013 amendment rewrote (5).

The 2017 amendment substituted “Compliance Advisory Panel” for “State Marketing Board for Recyclables” at the end of (3); substituted “Marketing Recyclables Program Fund” for “Marketing Board Fund” throughout (4) and (5); and, in (4)(B), substituted “panel” for “board” and “panel's” for “board's”.

The 2019 amendment by No. 695 rewrote the section.

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (1); and substituted “division” for “department” in (2) and (4)(B).

Cross References. Crime Information System Fund, § 19-5-1011.

Marketing Recyclables Program Fund, § 19-6-471.

8-6-608. Penalties.

Failure of the permittee or solid waste transporter to pay the fees assessed by the Division of Environmental Quality provides grounds for administrative or civil enforcement action. Sanctions may include civil penalties as provided in the Arkansas Solid Waste Management Act, § 8-6-201 et seq., or the revocation of the solid waste disposal or solid waste transporter permit.

History. Acts 1989, No. 849, § 8; 1989, No. 934, § 8; 1993, No. 1127, § 3; 2019, No. 910, § 2636.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality”.

8-6-609. [Repealed.]

Publisher's Notes. This section, concerning a grant program for the development of solid waste management plans, was repealed by Acts 2013, No. 1333, § 3. The former section was derived from Acts 1989, No. 849, § 9; 1989, No. 934, § 9; 1991, No. 749, § 5; 1992 (1st Ex. Sess.), No. 8, § 2; 1993, No. 1030, § 1; 1995, No. 463, § 1; 1999, No. 428, § 1; 2001, No. 70, § 1; 2003, No. 1027, § 1; 2005, No. 1325, § 1; 2011, No. 819, §§ 3, 4.

8-6-610. Rules.

  1. The Arkansas Pollution Control and Ecology Commission may adopt reasonable rules necessary to implement this subchapter, including without limitation:
    1. Collecting fees; and
    2. Setting priorities for the administration of this subchapter.
  2. The rules shall be reviewed by the House Committee on Public Health, Welfare, and Labor and the Senate Committee on Public Health, Welfare, and Labor or appropriate subcommittees of the House Committee on Public Health, Welfare, and Labor and the Senate Committee on Public Health, Welfare, and Labor.

History. Acts 1989, No. 849, § 10; 1989, No. 934, § 10; 1991, No. 749, § 6; 1997, No. 179, § 4; 2001, No. 70, § 2; 2011, No. 819, § 5; 2013, No. 1333, § 4; 2019, No. 315, § 545.

Amendments. The 2011 amendment substituted “House Committee on Public Health, Welfare, and Labor and the Senate Committee on Public Health, Welfare, and Labor” for “House and Senate Interim Committees on Public Health, Welfare, and Labor” in present (b)(1)(A); deleted “or incinerators” following “landfills” in (b)(2)(C); deleted “Thirty (30) days prior to submitting a grant application to the department” at the beginning of present (b)(2)(E)(i); inserted (b)(2)(E)(ii); and rewrote (b)(2)(E)(iii).

The 2013 amendment deleted “Conditions imposed upon grant recipients” in the section heading; deleted (a)(2) and (a)(4) and redesignated the remaining subdivisions accordingly; deleted (b)(1)(B), (b)(2) and (c); and inserted “and regulations” in (b).

The 2019 amendment deleted “and regulations” in the section heading; and deleted “and regulations” following “rules” in the introductory language of (a), and in (b).

Research References

U. Ark. Little Rock L.J.

Survey—Environmental Law, 14 U. Ark. Little Rock L.J. 779.

8-6-611. Computation of fees.

For the purpose of determining landfill disposal or transportation fees under this subchapter, the landfill permittees and solid waste transporters shall use the dry weight basis in determining the fee for disposal or transportation of ash.

History. Acts 1991, No. 751, § 5; 1993, No. 1127, § 3.

8-6-612. [Repealed.]

Publisher's Notes. This section, concerning landfill disposal fees to support a computer and electronic equipment recycling program, was repealed by Acts 2017, No. 624, § 2. The section was derived from Acts 2007, No. 512, § 2; 2009, No. 189, §§ 3, 4; 2011, No. 602, § 1.

8-6-613. Computer and electronic equipment recycling program.

  1. A program for the recycling of computer and electronic equipment is created.
  2. The General Assembly finds that:
    1. Computer and electronic equipment solid waste are among the fastest growing and most toxic segments of Arkansas's solid waste stream; and
    2. There are recycling options to address this problem, and Arkansas solid waste districts and local governments and their delegated authorities and agents should develop solid waste management plans, programs, and facilities that integrate computer and electronic equipment recycling as a functional part of the solid waste management system.
  3. Each regional solid waste management board that is required to submit or has submitted a regional solid waste management plan under § 8-6-1904 or a solid waste management plan developed under the Arkansas Solid Waste Management Act, § 8-6-201 et seq., and receives funding under this subchapter shall operate a solid waste management system that includes a computer and electronic equipment recycling program.
  4. The Arkansas Pollution Control and Ecology Commission may adopt rules necessary to implement an effective computer and electronic equipment recycling program.

History. Acts 2007, No. 512, § 2; 2017, No. 624, § 3; 2019, No. 315, § 546.

A.C.R.C. Notes. Acts 2017, No. 624, § 9, provided: “Distribution of funds from landfill disposal fees.

“(a)(1) The Chief Fiscal Officer of the State shall determine the total moneys available on the day before the effective date of this act [August 1, 2017] at 11:59 p.m. that were collected under § 8-6-612 [repealed] for computer and electronic equipment recycling programs.

“(2) The moneys available under subdivision (a)(1) of this section shall be used to fund computer and electronic equipment recycling programs under Arkansas Code § 8-6-613(c) until all moneys are distributed as provided under this subsection.

“(3)(A) The use of any interest earnings or investment earnings on the moneys available under subdivision (a)(1) of this section shall not be restricted to computer and electronic equipment recycling programs after the effective date of this act [August 1, 2017].

“(B) The interest earnings and investment earnings on the moneys available under this subsection shall be used as provided under § 8-6-605.

“(4)(A) For each fiscal year, two million five hundred thousand dollars ($2,500,000) of the moneys available under subdivision (a)(1) of this section shall be added to the distribution of funding to regional solid waste management districts under Arkansas Code § 8-6-615.

“(B) When the balance of the moneys allocated under subdivision (a)(1) of this section is less than two million five hundred thousand dollars ($2,500,000) for a fiscal year, all of the available moneys remaining in the fund shall be the last moneys used to supplement the distribution to the regional solid waste management districts under § 8-6-615 for that fiscal year.

“(5) For each fiscal year, the Arkansas Department of Environmental Quality shall determine the amount of the moneys allocated under subdivision (a)(4) of this section that are included in each regional solid waste management district's fund distribution under § 8-6-615 and provide that information to the regional solid waste management districts.

“(6)(A) Except as otherwise provided under subdivision (a)(6)(B) of this section, each regional solid waste management district shall use the moneys received under subdivision (a)(5) of this section for computer and electronic equipment recycling programs.

“(B) Moneys received under this section by a regional solid waste management district but not needed for computer and electronic equipment recycling may be used for another recycling project operated by the regional solid waste management district only if the regional solid waste management board that governs a regional solid waste management district certifies that the funds are not needed for the approved computer and electronic equipment recycling program.

“(b) This section expires after the final distribution of the moneys allocated under subdivision (a)(4)(B) of this section to the regional solid waste management districts.”

Amendments. The 2017 amendment inserted present (c); redesignated former (c) as (d); and substituted “regulations” for “reasonable rules” in (d).

The 2019 amendment substituted “rules” for “regulations” in (d).

8-6-614. [Repealed.]

Publisher's Notes. This section, concerning disposal fees effective date, was repealed by Acts 2015, No. 1176, § 1. The section was derived from Acts 2007, No. 512, § 2.

8-6-615. Distribution of funds to regional solid waste management districts — Reporting requirements.

    1. Funds collected under this subchapter and deposited into the State Treasury to the credit of the Solid Waste Management and Recycling Fund, less up to twenty percent (20%) for administrative support for the Division of Environmental Quality, shall be allocated annually to each of the approved regional solid waste management districts utilizing a combination of the two (2) methods stated in subsections (b) and (c) of this section.
    2. Fifty percent (50%) of the funds shall be determined using the method provided in subsection (b) of this section, and fifty percent (50%) shall be determined using the method provided in subsection (c) of this section.
    3. The total figures obtained from each method shall be combined to arrive at each regional solid waste management district's fund distribution.
      1. The division shall determine the amount of funds within each planning and development district organized under § 14-166-201 et seq., and recognized by the Governor, based on the same distribution as general revenue support is distributed to the planning and development districts in the current fiscal year.
      2. The division shall adjust the distribution described in subdivision (b)(1)(A) of this section within the planning and development districts to coincide with the boundaries of the regional solid waste management districts by determining each county's share of the funds available within each planning and development district.
      3. Each county's share shall be based on the proportion that each county's population bears to the total population in the planning and development district to which the county is assigned, multiplied by the amount of funds determined to be available within the planning and development district.
      4. The county's proportional share as determined under this subdivision (b)(1) shall be added to all other counties' shares within the same regional solid waste management district.
    1. The formula to be used under this subsection is as follows:
      1. Divide fifty percent (50%) of the total remaining funds equally by the eight (8) regional planning and development districts;
      2. Multiply the quotient obtained under subdivision (b)(2)(A) of this section by the most recent federal decennial census population of each county; and
        1. Divide the product obtained under subdivision (b)(2)(B) of this section by the planning and development district population in which the county is located to determine the portion per county.
        2. Individual county portions are grouped and totaled by each new regional solid waste management district to determine each regional solid waste management district's allocation.
    1. The remaining fifty percent (50%) of the funds shall be based on the ratio of the district's 2010 or current decennial census population divided by the most recent federal decennial census state population.
    2. The formula to be used under this subsection is as follows:
      1. Divide each solid waste management district's total population by the state's most recent federal decennial census population; and
      2. Multiply the quotient obtained under subdivision (c)(2)(A) of this section by the total remaining funds to determine each regional solid waste management district's allocation.
    1. For each fiscal year, each regional solid waste management board that receives funds under this section shall provide a report by November 1 to the division that explains how the board spent the funding received under this section in the previous fiscal year.
    2. The report under this subsection shall include the following information concerning the amount of expenditures in the previous fiscal year from the funds received under this section for:
      1. Equipment and material purchases; and
      2. Operation costs.
    3. The report shall be in a spreadsheet form as prescribed by the division.
    4. The Arkansas Pollution Control and Ecology Commission may promulgate rules necessary for funding and program reporting, accountability, and oversight under this subsection.

History. Acts 2013, No. 1333, § 5; 2017, No. 624, §§ 4, 5; 2019, No. 315, § 547; 2019, No. 693, § 15; 2019, No. 910, §§ 2637-2640.

A.C.R.C. Notes. Acts 2017, No. 624, § 9, provided: “Distribution of funds from landfill disposal fees.

“(a)(1) The Chief Fiscal Officer of the State shall determine the total moneys available on the day before the effective date of this act [August 1, 2017] at 11:59 p.m. that were collected under § 8-6-612 [repealed] for computer and electronic equipment recycling programs.

“(2) The moneys available under subdivision (a)(1) of this section shall be used to fund computer and electronic equipment recycling programs under Arkansas Code § 8-6-613(c) until all moneys are distributed as provided under this subsection.

“(3)(A) The use of any interest earnings or investment earnings on the moneys available under subdivision (a)(1) of this section shall not be restricted to computer and electronic equipment recycling programs after the effective date of this act [August 1, 2017].

“(B) The interest earnings and investment earnings on the moneys available under this subsection shall be used as provided under § 8-6-605.

“(4)(A) For each fiscal year, two million five hundred thousand dollars ($2,500,000) of the moneys available under subdivision (a)(1) of this section shall be added to the distribution of funding to regional solid waste management districts under Arkansas Code § 8-6-615.

“(B) When the balance of the moneys allocated under subdivision (a)(1) of this section is less than two million five hundred thousand dollars ($2,500,000) for a fiscal year, all of the available moneys remaining in the fund shall be the last moneys used to supplement the distribution to the regional solid waste management districts under § 8-6-615 for that fiscal year.

“(5) For each fiscal year, the Arkansas Department of Environmental Quality shall determine the amount of the moneys allocated under subdivision (a)(4) of this section that are included in each regional solid waste management district's fund distribution under § 8-6-615 and provide that information to the regional solid waste management districts.

“(6)(A) Except as otherwise provided under subdivision (a)(6)(B) of this section, each regional solid waste management district shall use the moneys received under subdivision (a)(5) of this section for computer and electronic equipment recycling programs.

“(B) Moneys received under this section by a regional solid waste management district but not needed for computer and electronic equipment recycling may be used for another recycling project operated by the regional solid waste management district only if the regional solid waste management board that governs a regional solid waste management district certifies that the funds are not needed for the approved computer and electronic equipment recycling program.

“(b) This section expires after the final distribution of the moneys allocated under subdivision (a)(4)(B) of this section to the regional solid waste management districts.”

Amendments. The 2017 amendment substituted “this subchapter” for “§ 8-6-607” in (a)(1)(A); and added (d).

The 2019 amendment by No. 315 substituted “rules” for “regulations” in (d)(4).

The 2019 amendment by No. 693 substituted “For each fiscal year” for “After August 1, 2017, and for each subsequent fiscal year” in (d)(1).

The 2019 amendment by No. 910 substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality” in (a)(1); and substituted “division” for “department” throughout the section.

8-6-616. [Repealed.]

Publisher's Notes. This section, concerning distribution of funds to regional solid waste management districts for computer and electronic equipment recycling programs, was repealed by Acts 2017, No. 624, § 6. The section was derived from Acts 2015, No. 1176, § 2.

Subchapter 7 — Regional Solid Waste Management Districts and Boards

A.C.R.C. Notes. Acts 1989, No. 870, § 15, provided: “The provisions of this act shall be in addition and supplemental to all other laws of Arkansas now in effect pertaining to solid waste and solid waste management and regulation, and shall repeal only such laws or parts of laws as may be specifically in conflict with this act.”

Acts 1991, No. 752, § 5, provided: “Any solid waste management system operating under the authority of § 14-233-101 et seq. with five (5) or more counties currently being served by these authorities upon the passage of this act shall, upon notification to the regional board and the Commission, shall be designated a regional solid waste management district. The governing body of the district shall be as determined by the authority by resolution.”

Publisher's Notes. Acts 1989, No. 870 and Acts 1991, No. 319 were held to be unconstitutional as applied to solid wastes originating outside the State of Arkansas in Southeast Ark. Landfill, Inc. v. Arkansas Dep't of Pollution Control and Ecology, 981 F.2d 372 (8th Cir. 1992).

Acts 1991, No. 752, § 1, provided: “The Arkansas General Assembly makes the following findings:

“(1) The present landfill capacity in the State of Arkansas is inadequate and is at or near the critical point;

“(2) As of July 30, 1990, the capacity in Arkansas was about 4.3 years of landfill life for 63 municipal solid waste landfills;

“(3) Adequate solid waste management planning is not possible at the present time because of the lack of accurate statistics on industrial landfill capacity and use; and

“(4) The state has taken important steps to encourage recycling but a much greater effort is necessary to assist in addressing out solid waste management needs.”

Effective Dates. Acts 1989, No. 870, § 16: Mar. 22, 1989. Emergency clause provided: “It is hereby found and determined by the Seventy-Seventh General Assembly of the State of Arkansas that the current system regulating solid waste in Arkansas does not foster long-range planning or efficient allocation of the State's solid waste resources; that some areas are facing serious shortages of capacity to the point of crisis and other areas have excess capacity to the point it wastes resources; and therefore to conserve precious financial resources and to avoid unnecessary land and water pollution, a system of regional solid waste planning should be implemented. Therefore, in order to address this serious environmental problem, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1991, No. 9, § 5: Jan. 31, 1991. Emergency clause provided: “The present moratorium on out-of-state solid waste being received into landfills of this state expires January 31, 1991; this act extends that moratorium until March 2, 1991; that unless this act goes into effect immediately the existing law will expire and this law will not go into effect until after March 2, 1991. Therefore an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1991, No. 752, § 9: Mar. 26, 1991. Emergency clause provided: “It is hereby found and determined by the Seventy-Eighth General Assembly of the State of Arkansas that some areas of the state are facing critical shortages of solid waste disposal capacity due to the difficulties in sitting landfill facilities and the difficulties of financing public waste recovery and disposal facilities at the local level. It is found that regional solid waste authorities are needed to expedite the financing, sitting, and operation of new waste management facilities in order that the health and welfare of the citizens of Arkansas be insured and that the state's environment be protected. Therefore, an emergency is hereby declared to exist, and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1993, No. 619, § 8: Mar. 22, 1993. Emergency clause provided: “It is hereby found and determined by the Seventy-Ninth General Assembly that expediting the transfer of solid waste between solid waste management districts will significantly benefit the districts, the citizens of Arkansas, and the environment; and this act is necessary for the immediate preservation of the public peace, health and safety; therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1999, No. 341, § 5: Mar. 1, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that the law concerning the transfer and receipt of solid waste in the State of Arkansas is inadequate. This bill will expand the ability of Regional Solid Waste Management Districts to seek the effective disposal of solid waste. Providing these agreements will enhance districts' ability to manage solid waste in a more cost-effective manner. Immediate action on this bill is necessary to provide uninterrupted solid waste disposal services throughout the state. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1999, No. 631, § 5: Mar. 16, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that the proper siting of transfer stations is essential to achieve the goals of efficient, effective, and environmentally sound regional solid waste management and planning. It is found that the regional solid waste management districts and boards must have the authority to evaluate, manage and coordinate the siting, location, and operation of transfer stations in order that the health and welfare of the citizens of Arkansas be ensured and the state's environment be protected. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2011, No. 209, § 3: Mar. 8, 2011. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that unintended consequences of court action regarding the wording of Arkansas Code § 8-6-714, have been curtailed or discontinued a main source of funding for many of the programs of the solid waste management districts; that reinstatement of these funding sources and the immediate collection of these fees will put the Solid Waste Management District’s budgets back on track; and that this act is immediately necessary because no other funding source in state government currently exists to continue these programs of the Solid Waste Management Districts to provide services necessary to the health and welfare of Arkansas citizens and to safeguard the state’s fragile ecological health and well being. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

Ark. L. Rev.

Note, In re Southeast Arkansas Landfill and the Commerce Clause: Welcome to the Arkansas Depository for Solid Waste, 46 Ark. L. Rev. 1027.

U. Ark. Little Rock L.J.

Note, Environmental Law — Conservation — New Jersey Mandatory Statewide Source Separation and Recycling of Solid Waste Act, 11 U. Ark. Little Rock L.J. 733.

Survey, Water and Environmental Law, 12 U. Ark. Little Rock L.J. 665.

Survey—Environmental Law, 14 U. Ark. Little Rock L.J. 779.

Legislative Survey, Environmental Law, 16 U. Ark. Little Rock L.J. 111.

Case Notes

Constitutionality.

Those portions of Act 870 of 1989 and Act 319 of 1991 which discriminate on their face against solid waste originating outside the State of Arkansas violate the Commerce Clause (U.S. Const., Art. 1, § 8) and are thus unconstitutional. Southeast Ark. Landfill, Inc. v. Ark. Dep't of Pollution Control & Ecology, 981 F.2d 372 (8th Cir. 1992).

8-6-701. Purpose — Legislative findings — Construction.

The purpose of this subchapter is to protect the public health and the state's environmental quality by establishing regional solid waste management and planning. The current system, relying upon solid waste management by individual counties and municipalities, has fostered present conditions in which certain areas of the state are facing capacity shortages of crisis proportions, while others experience a surfeit of capacity with individual disposal facilities which cannot muster the resources for environmentally responsible operators. Given these disparate environmental and economic concerns, the General Assembly concludes that regional solid waste management and planning, under the oversight of the Division of Environmental Quality and the Arkansas Pollution Control and Ecology Commission, is essential to address the imminent and future needs of the state. The terms and obligations of this subchapter shall be liberally construed so as to achieve remedial intent.

History. Acts 1989, No. 870, § 1; 1991, No. 752, § 2; 1999, No. 1164, § 70; 2019, No. 910, § 2641.

Amendments. The 2019 amendment substituted “Division of Environmental Quality” for “Arkansas Department of Environmental Quality”.

Case Notes

Bankruptcy.

Solid waste district that was established pursuant to § 8-6-701 et seq. was not eligible under 11 U.S.C. § 109 to declare bankruptcy because it was neither “local” nor an “improvement district” that was specifically authorized to file bankruptcy pursuant to § 14-74-102; even assuming arguendo that the district was qualified under state law to seek relief under Chapter 9 of the Bankruptcy Code, its petition had to be dismissed pursuant to 11 U.S.C. § 921 because it did not act in good faith when it borrowed money to conduct operations but decided not to collect a service fee from residents and businesses within the district because board members believed that imposing the fee would have cost them votes. In re Ozark Mt. Solid Waste Dist., No. 3:14-bk-70015, 2014 Bankr. LEXIS 5226 (Bankr. W.D. Ark. Aug. 5, 2014).

8-6-702. Definitions.

As used in this subchapter:

  1. “Board” or “regional board” means a regional solid waste management board established pursuant to this subchapter;
  2. “Commission” means the Arkansas Pollution Control and Ecology Commission;
  3. [Repealed.]
  4. [Repealed.]
  5. “Disposal site” means any place at which solid waste is dumped, accepted, or disposed of for final disposition by landfilling, incinerating, composting, or any other method;
  6. “District” means a regional solid waste management district;
  7. “Interested party” means the Director of the Division of Environmental Quality or his or her designee, the board, the person making application to the board, or any person submitting written comments on an application within the public comment period;
  8. “Landfill” means a permitted landfill under the Arkansas Solid Waste Management Act, § 8-6-201 et seq.;
  9. “Materials in the recycling process” means ferrous and nonferrous metals diverted or removed from the solid waste stream so that they may be reused, as long as such materials are processed or handled using reasonably available processing equipment and control technology as determined by the director, taking cost into account, and a substantial amount of the materials are consistently utilized to manufacture a product which otherwise would have been produced using virgin material;
  10. “Recyclable materials” or “recyclables” means those materials from the solid waste stream that can be recovered for reuse in present or reprocessed form;
  11. “Recyclable materials collection center” or “collection center” means a facility which receives or stores recyclable materials prior to timely transportation to material recovery facilities, markets for recycling, or disposal;
  12. “Recycling” means the systematic collection, sorting, decontaminating, and returning of waste materials to commerce as commodities for use or exchange;
  13. “Solid waste” means all putrescible and nonputrescible wastes in solid, semisolid, or liquid form, including, but not limited to, yard or food waste, waste glass, waste metals, waste plastics, wastepaper, waste paperboard, and all other solid and semisolid wastes resulting from industrial, commercial, agricultural, community, and residential activities, but does not include materials in the recycling process as defined in this section;
  14. “Solid waste management system” means the same as provided in § 8-6-203;
  15. “Source separation” means the act or process of removing a particular type of recyclable material from the solid waste stream at the point of generation or at a point under control of the generator for the purpose of collection and recycling; and
  16. “Yard waste” means grass clippings, leaves, and shrubbery trimmings.

History. Acts 1989, No. 870, § 2; 1991, No. 752, § 2; 1993, No. 479, § 1; 1999, No. 1164, § 71; 2019, No. 910, §§ 2642, 2643.

Amendments. The 2019 amendment repealed (3) and (4); and substituted “Director of the Division of Environmental Quality” for “director” in (9).

8-6-703. Creation of districts and boards — Members of boards.

      1. The eight (8) regional solid waste planning districts created by Acts 1989, No. 870, and each solid waste service area created pursuant to Acts 1989, No. 870, are renamed regional solid waste management districts.
      2. Each regional solid waste management district shall be governed by a regional solid waste management board.
    1. The boundaries of a regional solid waste management district may be modified and new regional solid waste management districts may be created pursuant to § 8-6-707.
    1. Each board shall be composed of representatives of:
      1. The counties within the regional solid waste management district;
      2. All cities of the first class within the regional solid waste management district;
      3. All cities with a population over two thousand (2,000) according to the most recent federal decennial census within the regional solid waste management district;
      4. The largest city of each county within the regional solid waste management district; and
      5. Any city that holds a position on any board on or after January 1, 2010, within the regional solid waste management district.
    2. The county judge of each county within the regional solid waste management district and the mayor of each city entitled to a representative in the regional solid waste management district shall serve on the board, unless the county judge or mayor elects instead to appoint a member as follows:
      1. The county judge, with confirmation by the quorum court of each county within the regional solid waste management district, shall appoint one (1) member to the board; and
      2. The mayor, with confirmation by the governing body of each city entitled to a representative in the regional solid waste management district, shall appoint one (1) member.
    1. Each board shall have a minimum of five (5) members.
    2. If the number of members serving under subsection (b) of this section is less than five (5), additional members necessary to make the total number equal five (5) shall be appointed by mutual agreement of the other board members and shall represent the general public within the regional solid waste management district.
    3. Appointed board members shall serve at the pleasure of the appointing body and a minimum term of one (1) year.
    4. Vacancies shall be filled for any unexpired term of an appointed member in the same manner as provided in subsection (b) of this section and subdivision (c)(2) of this section.
      1. A majority of the membership of the board in person or represented by proxy shall constitute a quorum.
      2. A majority vote of those members present shall be required for any action of the board.
    5. Each board shall annually select a chair.

History. Acts 1989, No. 870, § 3; 1991, No. 752, §§ 2, 3; 2003, No. 215, § 1; 2011, No. 884, § 1; 2013, No. 316, § 1.

Publisher's Notes. Acts 1989, No. 750, § 3, provided, in part: “There are hereby created eight (8) Regional Solid Waste Planning Districts and eight (8) Regional Solid Waste Planning Boards whose respective jurisdictions shall correspond to the boundaries of the Planning and Development Districts established pursuant to Arkansas Code § 14-166-202.”

The terms of the general public members of each regional solid waste management board are arranged so that one (1) term expires every year.

Acts 1991, No. 752, § 2, provided in part, that the initial appointed members of the board would draw lots to determine terms of appointment so that, as nearly as possible, the terms of an equal number of members will expire each year.

Acts 1991, No. 752, § 3 provided, in part:

“(a) A county shall not be included in the boundaries of more than one (1) regional solid waste management district formed from a regional solid waste planning district created pursuant to this act.

“(b) The members of regional solid waste planning boards and solid waste service area boards shall serve as board members of their respective regional solid waste management districts until sixty (60) days after the effective date of this act.

“(c) New members shall be appointed to the regional solid waste management boards pursuant to this act. The terms of the new appointees to the regional solid waste management boards shall begin sixty (60) days after the effective date of this act.

“(d) The first meeting of the new board members shall be held within ninety (90) days after the effective date of this act. At the initial meeting the members shall draw lots to determine their terms of appointment so that, as nearly as possible, the terms of an equal number of members will expire each year.”

Amendments. The 2011 amendment inserted (b)(1)(E).

The 2013 amendment inserted “regional solid waste management” preceding “district” throughout the section; and added “within the regional solid waste management district” at the end of (b)(1)(B), (b)(1)(C) and (b)(1)(D).

8-6-704. Boards — Powers and duties. [Effective until May 1, 2020.]

  1. The regional solid waste management boards have the following powers and duties:
    1. To collect data, study, and initially evaluate the solid waste management needs of all localities within their regional solid waste management districts, as provided in § 8-6-716, and to publish their findings as a regional needs assessment;
    2. To evaluate on a continuous basis the solid waste needs of their districts and thereby update the regional needs assessments at least biennially;
    3. To formulate recommendations to all local governments within their districts on solid waste management issues and to formulate plans for providing adequate solid waste management;
    4. To issue or deny certificates of need to any applicant for a solid waste disposal facility permit within their districts with the exception of permits for landfills when a private industry bears the expense of operating and maintaining the landfill solely for the disposal of waste generated by the industry or wastes of a similar kind or character;
    5. To petition the Director of the Division of Environmental Quality to issue, continue in effect, revoke, modify, or deny any permit for any element of a solid waste management system located within a district based on compliance or noncompliance with the solid waste management plan of the district;
    6. To adopt rules under the Arkansas Administrative Procedure Act, § 25-15-201 et seq., as are reasonably necessary to assure public notice and participation in any findings or rulings of the regional solid waste management boards and to administer the duties of the regional solid waste management boards;
    7. To establish programs to encourage recycling;
    8. To adopt official seals and alter them at pleasure;
    9. To maintain offices at such places as they may determine;
    10. To sue and be sued in their own names and to plead and be impleaded;
    11. To make and execute contracts and other instruments necessary or convenient in the exercise of the powers and functions of a district, including, but not limited to, entering into contracts and agreements with private entities for provision of services;
    12. To carry out all other powers and duties conferred by this subchapter and § 8-6-801 et seq.;
      1. To enter into agreements with another district to allow a district or any person within that district to transfer solid waste into another district.
      2. However, notice of all such authorizations shall be submitted to the Division of Environmental Quality within thirty (30) days and shall be incorporated into the regional needs assessment in its next regular update; and
      1. To authorize a disposal facility within a district to accept the receipt of solid waste from an adjoining district upon request by the generator of that solid waste, provided that the request specifies the disposal facility and the nature and estimated annual volume of solid waste to be received.
      2. However, notice of all such authorizations shall be submitted to the division within thirty (30) days and shall be incorporated into the regional needs assessment in its next regular update.
    1. The regional solid waste management boards may:
      1. Apply for such permits, licenses, certificates, or approvals as may be necessary to construct, maintain, and operate any portion of a solid waste management system and to obtain, hold, and use licenses, permits, certificates, or approvals in the same manner as any other person or operating unit of any other person;
      2. Employ such engineers, architects, attorneys, real estate counselors, appraisers, financial advisors, and other consultants and employees as may be required in the judgment of the district and fix and pay their compensation from funds available to the district therefor;
      3. Purchase all kinds of insurance, including, but not limited to, insurance against tort liability, business interruption, and risks of damage to property; and
      4. Employ an environmental officer who may:
        1. Inspect all landfills;
        2. Inspect other solid waste facilities;
        3. Inspect waste haulers and other vehicles;
        4. Ensure compliance with all district regulations;
        5. Collect evidence of noncompliance and present the evidence to the prosecuting attorney; or
        6. Issue citations for the violation of any district regulation.
      1. If a regional solid waste management board employs an environmental officer under this subsection, then the environmental officer may complete the training course for law enforcement officers at the Arkansas Law Enforcement Training Academy.
      2. After satisfactory completion of the training course, the environmental officer shall be a law enforcement officer.
      3. After satisfactory completion of the training course, the environmental officer may:
        1. Carry firearms;
        2. Execute and serve a warrant or other processes issued under the authority of the district and related to violations of district regulations; and
        3. Make arrests and issue citations for violations of district regulations regarding environmental protection.
  2. The regional solid waste management boards shall adopt and follow county purchasing procedures, as provided in § 14-22-101 et seq., as the approved purchasing procedures for the districts.
    1. Each regional solid waste management board shall procure an annual financial audit of the district. Such audits shall be conducted following each board's fiscal year end. Regional solid waste management funds which are subject to audit in conjunction with a single audit performed consistent with Governmental Auditing and Reporting Standards are not required to have a separate audit.
      1. Each district shall choose and employ accountants in good standing with the Arkansas State Board of Public Accountancy to conduct these audits in accordance with Governmental Auditing and Reporting Standards issued by the United States Comptroller of the Currency.
      2. The district shall pay for such audits from their administrative moneys.
    2. Each audit report and accompanying comments and recommendations shall be reviewed by the appropriate regional solid waste management board.
    3. Copies of each audit report of a district shall be filed with the division and with Arkansas Legislative Audit. In addition, one (1) copy of the audit report shall be kept for public inspection with the books and records of the district.
    4. Failure to provide a full and complete audit report, as required by this subchapter, shall prohibit future distribution of revenue from funding programs that are administered by the division unless otherwise authorized by the director.
      1. Arkansas Legislative Audit shall annually select on a random basis one-third (1/3) of the total number of districts for a review of selected policies, procedures, and transactions.
      2. The review under subdivision (d)(6)(A) of this section shall include without limitation a determination of compliance with applicable criteria.
      3. A report of the reviews under subdivision (d)(6)(A) of this section shall be compiled and presented to:
        1. The Legislative Joint Auditing Committee; and
        2. The division.

History. Acts 1989, No. 870, § 4; 1991, No. 752, § 2; 1993, No. 619, § 1; 1995, No. 163, § 1; 1997, No. 398, § 1; 1999, No. 341, § 1; 2005, No. 1289, § 1; 2007, No. 209, §§ 1, 2; 2009, No. 1199, § 8; 2019, No. 643, § 1; 2019, No. 910, §§ 2644-2647.

Publisher's Notes. For text of section effective May 1, 2020, see the following version.

Amendments. The 2007 amendment substituted “boards have” for “boards