49-761

49-761. Rule making authority for solid waste
facilities; financial assurance; recycling facilities

A. The department shall adopt rules regarding the storage, processing, treatment
and disposal of solid waste as prescribed by subsections B through M of this section. In
adopting rules, the department shall consider the nature of the waste streams at the
facilities to be regulated. The department shall also consider other applicable federal
and state laws and rules in an effort to avoid practices or requirements that duplicate,
are inconsistent with or will result in dual regulation with other applicable rules and
laws. In adopting rules for solid waste facilities, the director may include
requirements for corrective actions in response to a release, as defined in section
49-281, from a solid waste facility that violates or results in a violation of any
provision of this chapter, rule promulgated pursuant to this chapter or solid waste
facility plan approved pursuant to this chapter. These rules shall be consistent with
the provisions of section 49-762.08, subsection B, subsection C, paragraphs 1 and 2, and
subsections D and E.

B. For purposes of administering 42 United States Code section 6945, as amended
November 8, 1984, 40 C.F.R. part 258 is adopted by reference except as prescribed by
paragraph 2 of this subsection. This subsection, as it applies to municipal solid waste
landfills, governs if there is any conflict between this subsection and any other statute
relating to solid waste. Municipal solid waste landfill facility plans submitted
pursuant to section 49-762 shall comply with this subsection. In administering this
subsection or in adopting or administering any rules adopted pursuant to this subsection,
the department shall ensure that any discretion allowed to a director of an approved
state pursuant to the federal regulations is maintained. The following apply to the
department's administration of 42 United States Code section 6945 and to the department's
adoption of rules for municipal solid waste landfills:

1. The department may adopt rules for municipal solid waste landfills. Rules
adopted pursuant to this paragraph shall not be more stringent than or conflict with 40
C.F.R. part 258 for nonprocedural standards, except that the department may adopt aquifer
protection standards that are more stringent than 40 C.F.R. part 258 if those standards
are consistent with and no more stringent than standards developed pursuant to chapter 2,
article 3 of this title, or if the standards are adopted pursuant to article 9 of this
chapter. Rules adopted pursuant to this paragraph are effective on the concurrence of
the administrator with this state's municipal solid waste landfill program.

2. 40 C.F.R. part 258, table I is not adopted in its entirety. The department
shall use aquifer water quality standards that have been adopted by the department
pursuant to section 49-223 and shall use those portions of table I that are more
restrictive than the standards adopted pursuant to section 49-223.

C. The department shall adopt rules for those solid waste land disposal facilities
that are not municipal solid waste landfills. Rules adopted pursuant to this subsection
shall not be more stringent than or conflict with 40 C.F.R. part 257 for nonprocedural
standards, except that the department may adopt aquifer protection standards that are
more stringent than 40 C.F.R. part 257 if these standards are consistent with and no more
stringent than standards developed pursuant to chapter 2, article 3 of this title, or if
the standards are adopted pursuant to article 9 of this chapter. In administering this
subsection, the department shall ensure that any discretion allowed to a director of an
approved state pursuant to the federal regulations is maintained in the department's
rules. Aquifer protection provisions adopted pursuant to this subsection do not apply to
an owner or operator of a solid waste facility if the owner or operator submits an
administratively complete application for an aquifer protection permit pursuant to
chapter 2, article 3 of this title before the date that the owner or operator is required
to submit a solid waste facility plan.

D. The department shall adopt rules to define biohazardous medical waste and to
regulate biohazardous medical waste and medical sharps to include all of the following:

1. A definition for biohazardous medical waste that includes wastes that contain
material that is likely to transmit etiologic agents that have been shown to cause or
contribute to increased human morbidity or mortality of epidemiologic significance. The
department shall consult with the department of health services in making this
determination.

2. Reasonably necessary rules regarding the storage, collection, transportation,
treatment and disposal of biohazardous medical waste and medical sharps, beginning with
the placement by the generator of the waste in containers for the purpose of waste
collection. In the case of self-hauling of waste by the generator, all storage
facilities under the generator's control and all waste handling practices including
storage, treatment and transportation shall be in accordance with these rules. The
department shall also adopt reasonably necessary rules regarding the tracking of
biohazardous medical waste and medical sharps.

E. The department may adopt reasonably necessary rules regarding the storage,
collection, transportation, treatment and disposal of nonbiohazardous medical waste
beginning with the placement by the generator of the waste in containers for the purpose
of waste collection. In the case of self-hauling of the waste by the generator, all
storage facilities under the generator's control and all waste handling practices
including storage, treatment and transportation shall be in accordance with these rules.

F. The department shall adopt rules for the application of sludge from a wastewater
treatment facility to land for use as fertilizer or beneficial soil amendment. For
purposes of this subsection, "sludge" has the same meaning as sewage sludge as defined in
40 Code of Federal Regulations section 122.2 in effect on January 1, 1998.

G. The department shall adopt rules regarding the storage, processing, treatment or
disposal of solid waste at solid waste facilities that are identified in section
49-762.01. The rules shall allow the owner or operator to certify compliance with the
department's statutes and rules in lieu of obtaining a solid waste facility plan
approval. The rules shall provide that the applicant at its option may request approval
of a solid waste facility plan rather than certifying compliance.

H. The department shall issue by rule best management practices for the classes of
solid waste facilities set forth in section 49-762.02.

I. The department shall adopt reasonably necessary rules establishing minimum
standards for storing, collecting, transporting, disposing and reclaiming solid waste,
including garbage, trash, rubbish, manure and other objectionable wastes. These rules
shall provide for inspecting premises, containers, processes, equipment and vehicles, and
for abating as environmental nuisances any premises, containers, processes, equipment or
vehicles that do not comply with the minimum standards of these rules. The rules adopted
pursuant to this subsection do not apply to sites that are either regulated by section
49-762, 49-762.01 or 49-762.02 or exempted by section 49-701, paragraph 29 or section
49-701.01. Notwithstanding any other provision of this subsection, rules adopted
pursuant to this subsection shall apply to defining environmental nuisances pursuant to
section 49-141.

J. The department shall adopt rules relating to financial assurance
requirements. The rules shall indicate the types of financial assurance mechanisms to be
required and the content, terms and conditions of each financial mechanism, including
circumstances under which the department may take action on the financial assurance
mechanism for facility closure, postclosure care if necessary and corrective action for
known releases. The financial assurance mechanisms shall include all of the following:

1. Surety bond.

2. Certificate of deposit.

3. Trust fund with pay-in period.

4. Letter of credit.

5. Insurance policy.

6. Certificate of self-insurance.

7. Deposit with the state treasurer.

8. Evidence of ability to meet any of the following:

(a) Corporate financial test.

(b) Local government financial test.

(d) Local government guarantee test.

(e) Political subdivision financial test that shall require the department to
consider the entity's bond rating, income stream, assets, liabilities and assessed
valuation of taxable property.

9. Multiple financial assurance mechanisms.

10. Additional financial assurance mechanisms that may be acceptable to the
director.

K. The department shall adopt rules that prescribe standards to be used in
determining if a site is a recycling facility.

L. The director may adopt rules that prescribe standards to be used in determining
if a solid waste facility includes significant solid waste transfer activities that
warrant the facility's regulation as a transfer facility.

M. The department shall adopt facility design, construction, operation, closure and
postclosure maintenance rules for biosolids processing facilities and household waste
composting facilities that must obtain plan approval pursuant to section 49-762.