Opinion No. ( 1997 )

The Honorable Richard Simmons State Representative Route 3 Rector, Arkansas 72461

Dear Representative Simmons:

This official Attorney General opinion is issued in response to your recent question regarding voluntary solid waste pick-up.

You have asked:

(1) Can Clay County or Green County move to voluntary solid waste pick-up when they currently belong to the Three County Regional Solid Waste District, which requires mandatory pick-up?

(2) If under current law, these counties cannot move to voluntary pick-up, what can be done to allow them to move to voluntary pick-up?

RESPONSE

Question 1 — Can Clay County or Green County move to voluntary solidwaste pick-up when they currently belong to the Three County RegionalSolid Waste District, which requires mandatory pick-up?

It is my opinion that Clay County and Green County cannot move to voluntary solid waste pick-up if the Three County Regional Solid Waste District, of which they are members, requires mandatory pick-up.

The Arkansas Department of Pollution Control and Ecology, pursuant to the authority granted in A.C.A. § 8-6-207(5), has enacted Section 22.202 of Regulation 22 of the Arkansas Solid Waste Management Code, which states:

(a) Compliance With Solid Waste Management Plan-The solid waste management system of each municipality and county shall be in compliance with the solid waste management plan of the regional solid waste management district within which the local government entity is located.

Arkansas Solid Waste Management Code, Regulation 22, Section 22.202(a).

Compliance with the above-quoted regulation is mandatory, given the fact that the Department of Pollution Control and Ecology is statutorily empowered to enforce its regulations, A.C.A. § 8-6-207, and given the fact that failure to comply with the Department's regulations can not only give rise to civil penalties, A.C.A. § 8-6-204(b), but also constitutes a criminal violation. A.C.A. § 8-6-204(a).

In addition, the Arkansas Solid Waste Management Act sets forth two provisions that require that local solid waste management systems (i.e., county and municipal solid waste management systems) be "consistent with" and "in accordance with" the requirements promulgated by the regional boards. See A.C.A. § 8-6-209(4) and A.C.A. § 8-6-212(e).

Upon the basis of these authorities, I must conclude that because mandatory solid waste pick-up is required by the Three County Regional Solid Waste District of which Clay County and Green County are members, they cannot move to voluntary pick-up. This conclusion is consistent with the position that I have previously taken regarding this issue. In Attorney General Opinion No. 96-283, I opined that Benton County was obligated to comply with the mandatory solid waste pick-up that was required by the Four County Regional Solid Waste District of which it was a member. Clay County and Green County are under the same obligation with regard to their Three County Regional Solid Waste District.

Question 2 — If under current law, these counties cannot move tovoluntary pick-up, what can be done to allow them to move to voluntarypick-up?

It is my opinion that because Clay County and Green County cannot move to voluntary solid waste pick-up under the current requirements of their Three County Regional Solid Waste District, they would only be permitted to do so if the District's requirements were changed to allow voluntary pick-up.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Suzanne Antley.

Sincerely,

WINSTON BRYANT Attorney General

WB:SBA/cyh