HB328

ENROLLED, An Act,

Relating to the siting of solid waste management facilities; to amend Section 22-27-48, Code of Alabama 1975; to add Section 22-27-48.1 to the Code of Alabama 1975; to alter the approval process by a local governing body for the siting of a new solid waste management facility; to provide that an approval of a new facility by a local governing body would be reviewed by the circuit court; and to remove a requirement that a proposed new solid waste management facility or a modification of a permit for an existing facility be evaluated by a regional planning and development commission.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Section 22-27-48 of the Code of Alabama 1975, is amended to read as follows:

§22-27-48.

"(a) In addition to any regulatory bodies, the governing body of a county or municipality has a responsibility for and the authority to assure the proper management of solid wastes generated within its jurisdiction in accord with its solid waste management plan. A governing body may assign territories and approve or disapprove disposal sites in its jurisdiction in accord with the plan approved for its jurisdiction. Such approval or disapproval of services or activities described in the local plan shall be in addition to any other approvals required from other regulatory authorities and shall be made prior to any other approvals necessary for the provision of such services, the development of a proposed facility or the modification of permits for existing facilities.

"(b) The department may not consider an application for a new or modified permit for a facility unless such the application has received approval pursuant to Section 22-27-48.1 by the affected unit of local government having an approved plan local governing body. The department may not consider an application for a modified permit for a facility unless such application has received approval pursuant to this section by the affected local governing body.

"(c) In determining whether to recommend approval of the proposed issuance of or modification of a new or existing solid waste management site, the governing body shall consider each of the following criteria:

"(1) The consistency of the proposal with the jurisdiction's solid waste management need as identified in its plan;

"(2) The relationship of the proposal to local planned or existing development or the absence thereof, to major transportation arteries and to existing state primary and secondary roads;

"(3) The location of a proposed facility in relationship to existing industries in the state that generate large volumes of solid waste, or the relationship to the areas projected for development of industries that will generate solid waste;

"(4) Costs and availability of public services, facilities and improvements required to support a proposed facility and protect public health, safety, and the environment;

"(5) The impact of a proposed facility on public safety and provisions made to minimize the impact on public health and safety; and

"(6) The social and economic impacts of a proposed facility on the affected community, including changes in property values, and social or community perception.

"(d) The application of the plan for local approval shall be accompanied by an application fee payable to the local governing body in an amount equal to 20 percent of the application or permit fee required by the department, but local approval shall not apply to simple renewals of a permit which is to be otherwise unchanged. Further, there shall be no requirement for local review and approval of permit modifications for the limited purposes of changing liner and leachate collection design, changes in waste streams from within the facility's designated service area, changes in sequence of fill, changes to incorporate new technology, and changes intended to bring a facility into compliance with statutes and regulations. A renewed application for local approval submitted within 18 months of an application being denied or rejected by the local governing body shall be accompanied by an application fee payable to the local governing body in an amount equal to 50 percent of the application or permit fee required by the department.

"(e) Any determination decision by the local governing body of the proposed issuance of or a proposed modification of a permit for a new or an existing solid waste management site or the proposal to contract for any services described in the solid waste management plan, shall be made in a public meeting only after public notice of such application or proposal and an opportunity for public comment is provided.

"(f) In providing public notice of any application or proposal regarding any services described in the solid waste management plan proposed modification, the local government shall at a minimum hold at least one public hearing thereon, notice of the time and place of which shall be given by one publication in a newspaper of general circulation in the municipality and in the official gazette, if any, of the jurisdiction. Furthermore, such the notice shall be given at least 30 days but not more than 45 days prior to the proposed date of the hearing. Each notice published in compliance with this section shall contain at a minimum a description of the proposed action to be considered, its relevance to and consistency with the local solid waste management plan, and shall identify a contact person from whom interested persons can obtain additional information and can review copies of both the local plan and the application or proposal to be considered. All pertinent documents shall be available for inspection during normal business hours at a location readily accessible to the public. Within 90 days of receiving an application or a proposal, the local governing body shall either approve the application or deny the application modification setting forth the reasons therefor. The failure of the local governing body to act on the proposal within 90 days of receiving the application modification shall constitute approval by the local governing body.

"(g) Any decision by the local governing body to approve or disapprove the siting of a new solid waste management facility shall be made in accordance with Section 27-22-48.1.

"(b) Following local review and approval of any proposal regarding services or activities described in the local solid waste management plan, the applicant shall obtain a statement of consistency from the regional planning and development commission. Therein, the commission shall evaluate the proposal using the provisions of the current regional solid waste management needs assessment. In particular, the regional commission shall evaluate the proposal as it relates to available existing capacity within the region and the projected lifetime of such capacity. The evaluation shall also identify any proposed capacity which is in excess of expected regional needs. No statement of consistency shall be required for contracts exclusively for the collection or transportation of solid wastes.

"(c) Plans required by this (h) This section shall not apply to industrial landfills facilities receiving wastes generated on site only or by the permittee."

Section 2. Section 22-27-48.1 is added to the Code of Alabama 1975, to read as follows:

§22-27-48.1.

(a) This section applies to the siting of any new solid waste management facility, as defined in Section 22-27-2.

(b) The governing body of a county or municipality shall make a discretionary decision to approve or disapprove the siting of a new solid waste management facility in accordance with this section.

(c) Any person or entity seeking approval from the governing body of a county or municipality for the siting of a new solid waste management facility shall also submit to the governing body as part of its application, the application fee required under subsection (d) of Section 22-27-48 and all of the following information:

(1) A written document addressing each of the criteria described in subsection (c) of Section 22-27-48.

(2) The applicant's experience of owning or operating other solid waste facilities.

(3) Information relating to the applicant's financial resources, including, but not limited to, any investors or corporate affiliates of the applicant.

(4) Any pending and past civil or criminal actions taken by a governmental entity against the applicant or its owners or operators, investors, or affiliates.

(5) Any other information the applicant deems relevant or that may assist the governing body in making a decision whether to approve or disapprove the application.

(d) After an applicant has submitted a complete application, including the items required in subsection (c), to the governing body of a county or municipality in which the proposed facility is to be located, the local governing body shall formally receive the application at its next regularly scheduled meeting. At this time, the public comment period begins.

(e)(1) Not more than 10 days after the formal receipt of an application, the local governing body, at the expense of the applicant, shall provide the following notice that an application for local approval of a new solid waste management facility has been received:

a. Notice to each owner whose property is adjacent to a proposed site, sent by certified mail.

b. Notice to the general public provided by all of the following means:

1. Publishing a notice in a newspaper having general circulation, if one exists, within the affected community one day per week for a two-week period.

2. Broadcasting public service announcements submitted to a radio station that has general broadcast coverage within the affected community.

3. Displaying a notice on the local governing body's website, if available.

(2) Any printed notice by letter, newspaper, or electronically on a website, shall contain at a minimum the following:

a. A description of the application and approval process as provided in this chapter.

b. A description of the criteria the governing body will consider, as provided in subsection (c) of Section 22-27-48, in determining whether to approve or disapprove the site.

c. A contact person from whom interested persons can obtain additional information and can review copies of both the local solid waste management plan and the application.

d. A description of the location where interested persons can obtain or can review copies of both the local solid waste management plan and the application, and the time frame for public hearings and involvement.

e. A description of how the public may submit written comments to the governing body.

(f)(1) Not more than 45 days after the local governing body formally receives an application, the applicant shall conduct a public awareness session in the county or municipality in which the proposed facility is to be located, during which the applicant shall provide general information on the design and operation of the proposed facility and address questions and concerns voiced by members of the affected community. The time, date, and location of the public awareness session must be approved by the local governing body. The applicant, at its own expense, shall provide notice of the public awareness session by both printed and broadcast media beginning at least 30 days prior to the session. Printed notification shall include publication in at least one newspaper having general circulation within the affected community one day per week for a two-week period. Broadcast notification shall include public service announcements on a radio station that has general broadcast coverage within the affected community. At least one representative of the local governing body shall attend each public awareness session. If any written comment or question germane to the proposed application is submitted to the applicant at the public awareness session, the applicant shall respond if practicable, in writing within 14 days to the member of the public with a copy provided to the local governing body.

(2) The applicant is solely responsible for carrying out the requirements of subdivision (1). A public awareness session is independent of and separate from a public hearing.

(g) Not more than 45 days after the date of the public awareness session, the local governing body shall hold at least one public hearing. Notice of the time and place of any public hearing shall be given by publication in at least one newspaper of general circulation within the affected community at least 30 days, but not more than 45 days, prior to the proposed date of the hearing. Content of the notice shall be consistent with the notice requirements in subsection (e). All pertinent documents shall be available for inspection during normal business hours at a location readily accessible to the public. The public may submit written comments to the local governing body at any time up to the conclusion of the last public hearing.

(h) The local governing body shall have 30 days after the public hearing to hold a meeting for consideration of the application. At the meeting, action on the application shall be on the agenda and, if approved by a majority of the members present and voting, shall be subject to court review as provided in subsection (i). Should the application fail to gain such approval, the applicant may submit a new application under subsection (c). A new application shall be subject to the fees in subsection (d) of Section 22-27-48 such that a renewed application for local approval submitted within 18 months of an application being denied or rejected by the local governing body shall be accompanied by an application fee payable to the local governing body in an amount equal to 50 percent of the application or permit fee required by the department.

(h) The local governing body shall have 30 days after the public hearing to complete its review of the local solid waste management plan and, giving consideration to the criteria provided in subsection (c) of Section 22-27-48, to public input, and to other information gathered from the applicant pursuant to subsection (c), shall make a decision to approve or disapprove the siting of a new solid waste management facility. If disapproved by the governing body, the applicant may submit a new application under subsection (c).

(i) After the local governing body has granted approval of the application, the applicant shall petition the appropriate circuit court pursuant to Rule 57 of the Alabama Rules of Civil Procedure for a determination of each of the following:

(1) Whether the local governing body complied with the public comment requirements and time frames required under this section.

(2) Whether the local governing body's approval of the application is consistent with the local solid waste management plan in place pursuant to Section 22-27-47.

(3) Whether the local governing body considered the criteria provided in subsection (c) of Section 22-27-48 as presented to the body by the applicant in its application pursuant to subdivision (c)(1).

(j) The applicant shall bear all court costs, and his or her own legal expenses, relating to the filing of the petition under subsection (i).

(k) Unless the court with which a petition is filed needs additional information from the local governing body, the court shall issue a ruling not more than 60 days after the initial petition is filed; provided, however, the court may extend this date not more than 30 additional days if the court seeks additional information from the governing body.

(l) If the circuit court issues a declaratory judgment determining that the local governing body met the criteria set out in subsection (i), the applicant may seek approval by other regulatory authorities as required by law. If the circuit court issues a declaratory judgment determining that the criteria set out in subsection (i) has not been met, the matter shall be remanded to the local governing body for further consideration consistent with the requirements of this section. The local governing body or applicant shall be afforded the opportunity to mitigate any discrepancies the court finds, provided the period during which the governing body or applicant must respond may not extend more than 90 days.

(m) This section shall not apply to industrial facilities receiving wastes generated on site only or by the permittee.

Section 3. Section 22-27-48, Code of Alabama 1975, as amended by this act shall not apply to an application received by a local governing body prior to the effective date of this act, for a modification of an existing permitted solid waste management facility, or for a proposed new solid waste management facility.

Section 4. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.

Solid Waste

Landfills

Counties

Municipalities

Environmental Management Department

Code Added

Code Amended