2018 -- H 7787

========

LC004846

========

     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2018

____________

A N   A C T

RELATING TO HEALTH AND SAFETY -- REFUSE DISPOSAL

     Introduced By: Representatives Tobon, Barros, Maldonado, Diaz, and Cunha

     Date Introduced: February 28, 2018

     Referred To: House Corporations

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 23-18.9-8 and 23-18.9-9 of the General Laws in Chapter 23-18.9

entitled "Refuse Disposal" are hereby amended to read as follows:

     23-18.9-8. Licenses.

     (a) (1) No person shall operate any solid waste management facility or construction and

demolition (C&D) debris processing facility or expand an existing facility unless a license is

obtained from the director except as authorized by § 23-18.9-8. The director shall have full power

to make all rules and regulations establishing standards to be met for the issuance of the licenses

with those standards affording great weight to the detrimental impact that the placement of such a

facility shall have on its surrounding communities.

     (2) The director shall promulgate rules and regulations governing the uses and content of

materials accepted and generated by a construction and demolition debris processing facility. Any

costs associated with testing these materials by the facility or by the department to verify the

results of the facility's tests shall be borne by the facility. Each facility shall be required to

establish a fund with the department to cover the cost of these tests.

     (b) Any person who desires to construct a solid waste management facility or install any

equipment in a solid waste management facility must first submit to the director for approval

plans and specifications and other related data required by the director.

     (c) No construction and demolition debris processing facility shall be issued a license or

be able to operate unless it has:

     (1) Received a letter of compliance from the host municipality that all applicable zoning

requirements and local ordinances of the host municipality have been complied with.

     (2) Submitted a fire protection plan that has been approved by the local fire chief, or his

or her designee in which the facility is located; and

     (3) For the purposes of this subsection, the letter of compliance from the host

municipality shall issue from either:

     (i) The town or city manager with town or city council approval in a municipality with a

managerial form of government; or

     (ii) The elected mayor with town or city council approval in a municipality with a non-

managerial from of government.

     (4) If, after thirty (30) days of receipt of a written request to the city or town by the

applicant for a license requesting a letter of compliance, the letter of compliance is not issued

because the host municipality finds that the requirements of the applicable zoning requirements or

other ordinances have not been met, a letter of non-compliance must be issued setting forth the

particular requirements that have not been met. If after a license is issued, the host community

finds that all applicable zoning or other applicable ordinances are no longer complied with they

are authorized to issue a non-compliance letter.

     (5) Upon issuance of a letter of non-compliance, the applicant for a license shall have all

rights of appeal under the provisions of chapter 24 of title 45 as to zoning issues and any other

rights to appeal that may be applicable as to the determination of non-compliance with other

ordinances.

     (i) In the case of an application or renewal of an existing license for an increase in the

acceptance and processing of the amount of (C&D) debris per day, the letter of non-compliance

shall stay the issuance of the license allowing said increase until the appeal process provided for

herein is final.

     (ii) In the case of an application or renewal of an existing license that does not request an

increase in the acceptance and/or processing of the amount of (C&D) debris per day where the

applicant for renewal has timely filed an appeal as contained herein, the letter of non-compliance

shall not be used as grounds for denial of the approval of the renewable license; however, if, upon

final determination by a zoning board or court of competent jurisdiction upon appeal, it is found

that the facility is in non-compliance, the license shall be revoked by the director.

     (d) The local fire chief, or his or her designee, is authorized to conduct random,

unannounced inspections of facilities licensed under this section to ensure continued compliance

with the approved fire protection plan. If any facility at the time of inspection is found not to be in

LC004846 - Page 2 of 7

compliance with the approved plan, that facility shall immediately cease operation until the time

that it corrects any deficiency and the local fire chief or his or her designee finds the facility is in

compliance with the approved fire protection plan.

     (e) Any facility that is found to be in violation of the fire protection plan under this

section on three (3) separate inspections, within any three-year (3) time period, shall have its

license to operate under this section revoked.

     (f) A municipality that desires to evaluate available technologies, equipment, or

methodologies for managing solid waste may request approval from the director to perform a

limited demonstration pilot project prior to submission of an application for a license.

Demonstration projects shall not exceed fifty (50) tons per day maximum capacity. The

municipality must first submit to the director, for approval, plans and specifications, including

fire protection plans and other related data as required by the director. The municipality shall also

give public notice of the request and allow a thirty-day (30) period for the director to receive

public comment on the proposed project. After the close of the public comment period, the

director is authorized to approve or deny the request. Approval for a demonstration pilot project

shall be granted for a period not exceeding six (6) months.

     (g) Any facility that is licensed or registered by the department under this chapter as of

July 1, 2006, that accepts greater than three (3) cubic yards of tree waste as defined by § 23-18.9-

7(14) shall be considered an existing tree waste management facility. Existing tree waste

management facilities shall notify the department and the local fire chief of the existence and

scope of their tree waste management activities in writing no later than August 30, 2006, and

shall incorporate tree waste management activities in a revised operating plan as part of the next

renewal of their license or registration.

     (h) Any construction and demolition (C&D) debris processing facility under this section

that is within a one thousand feet (1000') radius of a residential zone district shall conduct all

operations covered under the license inside the confines of an enclosed, permanent building.

     (i) Granting of a license, license renewal, or permission for an equipment addition under

this section shall in no way affect the applicant's responsibility to comply with all zoning and

other local ordinances, nor the applicant's responsibility to obtain any local permits, except as

specifically provided by Rhode Island General Law. When multiple uses are in place on a site

with a licensed solid waste facility, the terms and conditions of the license are only applicable to

the activities and operations subject to the license and not the other uses of the property.

     23-18.9-9. Application, approval and fees for licenses.

     (a) (1) Any person who desires to construct and/or operate a solid waste management

LC004846 - Page 3 of 7

facility or expand an existing facility shall apply to the director for all licenses and/or permits to

do so; provided, however, that the application shall state all licenses and/or permits for which

application is made. Any person who desires to construct and/or operate a private solid waste

disposal facility shall submit to the director simultaneously with the application a certificate of

final determination from the municipality in which it is proposed to site the facility that the site

conforms with all applicable local land use and control ordinances or on appeal a final judgment

of a court that the proposed site for the facility conforms with all applicable land use and control

ordinances of the municipality. The applicant shall also submit simultaneously with the

application a certificate of approval of the proposed site issued by the state planning council,

except for statutorily mandated facilities. The council shall only approve a site after great weight

has been afforded to the detrimental impact that the placement of such a facility shall have on its

surrounding communities and only after evaluation of alternative sites and assessment of

comparative environmental impact at the sites in accordance with law and state planning council

rules, and in the absence of these, the council shall promulgate rules for the evaluation and/or

assessment, and distribution of location of sites for waste facilities among the regions of this

state. The council shall not issue its certificate prior to the publication of public notice and the

expiration of the public comment period regarding the proposed site. The director shall review

and decide all applications.

     (2) (i) Notwithstanding the provisions of § 42-35-14 to the contrary, the director shall

immediately review the application and shall give public notice of the intention to issue a draft

license or the intention to deny the application.

     (ii) The draft license and/or tentative denial, including all supporting documentation,

shall be made available for public comment.

     (3) Within fifteen (15) days of the date of the public notice to issue the draft license, the

director shall hold an informational workshop. The purpose of the informational workshop shall

be to discuss the type of facility or activity which is the subject of the draft license; the type and

quantity of wastes, which are proposed to be managed, processed and/or disposed; a brief

summary for the basis for the draft license; conditions, including references to applicable

statutory or regulatory provisions; reasons why any requested variances or alternatives to required

standards do or do not appear justified; a description of the procedures for reaching a final

decision on the draft license, which shall include the beginning and ending dates for the comment

period hereafter, the address where comments will be received, procedures for requesting a

hearing and the nature of that hearing, any other procedures by which the public may participate

in the final decision; and the name and telephone number of a person to contact for further

LC004846 - Page 4 of 7

information.

     (4) No earlier than sixty (60) days nor later than seventy-five (75) days following the

initial public notice of the issuance of the draft license or tentative denial, a hearing shall be held

for public comment. Comments from the applicant and/or any interested persons shall be

recorded at the public hearing. Written comments, which shall be considered part of the record,

may be submitted for thirty (30) days following the close of the public comment hearing.

     (5) Within ninety (90) days of the close of the public comment period, the director shall

issue the license or the final denial. The license or the final denial shall be in writing and shall

include a response to each substantive public comment. In the event that the director shall fail to

issue the license or final denial within the ninety (90) day period, then the applicant may petition

the superior court to issue its writ of mandamus ordering the director or some suitable person to

immediately issue the license or denial. Any person refusing to obey the writ of mandamus shall

be subject to penalties for contempt of court. The writ of mandamus shall be the exclusive

remedy for failure of the director to comply under this section.

     (6) The applicant and/or any person who provided substantive comment at any time

during the public comment period may appeal the decision of the director; provided, however,

any person who shall demonstrate good cause for failure to so participate and demonstrate that his

or her interests shall be substantially impacted if prohibited from appearance in the appeal, may in

the discretion of the hearing officer be permitted to participate in the appeal process.

     (7) The appeal shall be limited to those issues raised by the parties; provided, however,

that upon good cause shown, the director shall allow additional issues to be raised.

     (8) All appeals shall be pursuant to the rules and regulations established by the director

and the rules and regulations established by the administrative adjudication division of the

department of environmental management; provided, however, that all appeals shall contain

precise statements of the issues presented on appeal and the specific part or parts of the decision

of the director that are challenged.

     (9) All appeals shall be heard before administrative adjudication hearing officers. All

hearings shall be evidentiary hearings. All witnesses shall testify under oath and shall be subject

to cross-examination.

     (10) The hearing officer shall determine and apportion to the applicant the actual costs of

the appeal process, exclusive of attorneys' fees. These costs shall not be considered administrative

penalties.

     (b) The director shall publish a schedule of fees to be paid to file an application for a

license. These fees shall be reasonable and shall account for the size and complexity of the

LC004846 - Page 5 of 7

proposed project and any other criteria as the director may determine; provided, however, that no

application fee shall exceed one hundred thousand dollars ($100,000).

     (c) Licenses shall expire three (3) years from the date of issuance unless sooner

suspended or revoked. The provisions in this section for issuance of a license shall not apply to

the renewal of a license and any facility shall be relicensed if it meets the criteria in effect when

the facility was licensed; provided, however, that any renewal application which substantially

deviates from the use or purpose of the license shall be subject to the provisions of this chapter

and further provided that any facility shall be relicensed if it meets the criteria in effect when the

facility was licensed. The director is authorized to promulgate by regulation procedures for

license renewals. The director shall publish a schedule of fees to be paid to renew a license. These

fees shall be reasonable and shall account for the size and complexity of the project, and costs

incurred to monitor the project, and any other criteria that the director may determine; provided,

however, that no renewal license fees shall exceed one hundred thousand dollars ($100,000). All

licensed solid waste disposal facilities shall be deemed to comply with all local ordinances.

     (d) All application fees and license fees shall be directed to the department of

environmental management and shall be held in a separate account and appropriated for review of

applications, renewals of, and compliance with, licenses.

     (e) Notwithstanding the provisions of this section or any other provision of law to the

contrary, cities and towns which own and operate landfills shall be exempt from any application

fees relative to applications it files to expand its existing landfill.

     SECTION 2. This act shall take effect upon passage.

========

LC004846

========

LC004846 - Page 6 of 7

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY -- REFUSE DISPOSAL

***

     This act would include a facility's potential detrimental impact on the community as a

factor to be considered when approving the construction or operation of a solid waste

management facility.

     This act would take effect upon passage.

========

LC004846

========

LC004846 - Page 7 of 7