(a) Purpose and intent.

1. (1) Arkansas Code § 8-6-706(a) requires certain applicants for a solid waste landfill permit and transfer station permit to obtain a certificate of need from the solid waste management district board with jurisdiction over the proposed site.

2. (2)

   1. (A) Arkansas Code § 8-6-706(c) provides for an appeal by any interested party of a certificate of need decision to the Director of the Division of Environmental Quality, pursuant to procedures adopted by the Arkansas Pollution Control and Ecology Commission.
   2. (B) It is the intent of the commission by this rulemaking to promulgate the procedures to be used for such an appeal.

(b) Filing an appeal.

1. (1)

   1. (A) Any person with standing to appeal a certificate of need determination by a board may appeal the board's determination to the director by serving the appeal on the director by certified mail.
   2. (B) The appeal must be received by the director no later than thirty (30) days after the date of issuance of the board's written determination.
   3. (C) Persons with standing to appeal the determination shall be only the applicant or permittee and those persons who submitted written or oral public comments for the record during the comment period designated by the district.

2. (2) The appeal may be in the form of a pleading or a letter and shall contain:

   1. (A) A copy of the board's written determination;
   2. (B) The date of the board's determination;
   3. (C) The factual and legal grounds that form the basis for the appeal;
   4. (D) Copies of all exhibits and other supporting documents; and
   5. (E) A certificate of service showing that the appeal has been served upon the board in accordance with subdivision (b)(3) of this section.
3. (3) The party must serve, by certified mail, return receipt requested, a copy of the appeal and all exhibits and other supporting documents upon the board making the determination.

(c) Response by board.

1. (1)

   1. (A) Any board served with an appeal under subsection (b) of this section may file a written response to the appeal with the director.
   2. (B) The response must be received by the director no later than thirty (30) days after the date the board received the appeal.
2. (2) The response shall contain a reply to each of the grounds for appeal and shall contain any supporting evidence.

(d) Hearing by director.

1. (1)

   1. (A) The director may issue a decision after reviewing the submissions by the parties.
   2. (B) If, however, after reviewing the submissions the director determines that a hearing on the matter is necessary, he or she shall issue a notice of hearing to the party filing the appeal and to the board whose determination is being appealed, designating the time and place of the hearing.
   3. (C) No such hearing shall be scheduled until after a response has been filed by the board pursuant to subsection (c) of this section or after the time for filing a response has elapsed, whichever comes first.
2. (2) The director or his or her designee shall preside over any hearing held pursuant to this section.

(e) Director's decision.

1. (1)

   1. (A) After considering all relevant evidence presented in the appeal, the director shall determine whether the decision of the board is supported by substantial evidence.
   2. (B) His or her decision shall be based upon the factors set out in Arkansas Code § 8-6-706 and upon any other relevant factors.

2. (2)

   1. (A) The director shall issue his or her decision in writing and shall serve a copy of the decision upon the party filing the appeal and upon the board.
   2. (B) The parties involved in the appeal of the district board decision may request Arkansas Pollution Control and Ecology Commission review of the director’s decision.
   3. (C) Except that the parties with standing shall be the parties to the appeal of the district board decision, the appeal to the commission shall be conducted in the form and manner in accordance with the requirements of 8 CAR § 11-601 et seq., Practice and Procedure, for adjudicatory hearings before the commission.