Opinion No. ( 1997 )

The Honorable Thomas D. Wynne III Prosecuting Attorney Thirteenth Judicial District P.O. Box 748 Fordyce, AR 71742

Dear Mr. Wynne:

This is in response to Deputy Prosecuting Attorney Robert S. Laney's request for an opinion on the following questions concerning the Arkansas Solid Waste Management Act:

1. Is asbestos considered a hazardous waste as defined in the Arkansas Solid Waste Disposal Code (Act 237 of 1971) Section 2(f) for ``solid waste.'

2. If asbestos is considered a hazardous waste, or if asbestos meets any other definition of ``solid waste' under Paragraph (f) of Section 2 of the Arkansas Solid Waste Disposal Code, can the county use solid waste disposal funds to remove the asbestos from the county owned building?

3. If solid waste funds can be used to remove asbestos in a building, can the funds further be used by the county to have the building torn down and removed to an approved landfill?

The act to which you refer in your first question (Act 237 of 1971) is the Arkansas Solid Waste Management Act. See A.C.A. § 8-6-201 (Repl. 1993) (the title provision). This act, as amended, is codified at A.C.A. § 8-6-201 et seq. (Repl. 1993 and Supp. 1995). The term "solid waste" is defined in § 8-6-203(6) (Supp. 1995) as follows:

``Solid waste' means any garbage or refuse, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved materials in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to permit under 33 U.S.C. § 1342, or source, special nuclear, or by-products material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923)

While the inclusion of asbestos as "solid waste" may not be entirely clear from this definition,¹ reference to other Code provisions pertaining, specifically, to removal of asbestos materials makes it clear that the General Assembly views the Solid Waste Management Act as applying to this material. See A.C.A. § 20-27-1001 et seq. (Supp. 1995), as amended by Act 308 of 1997. Section 20-27-1007, as amended, sets forth prohibitions in connection with asbestos response actions, demolition, and renovation (see § 20-27-1001, as amended, for definitions). Subsection (4) of § 20-27-1007, as amended, prohibits participation in "any response action, demolition, or renovation contrary to the . . . provisions of the . . . Arkansas Solid Waste Management Act, § 8-6-201 et seq., and the regulations promulgated thereunder. . . ." See Acts 1997, No. 308, § 1. It is thus clear that the legislature envisions the Solid Waste Management Act as encompassing asbestos containing material. See also Section 22.702 of "Regulation Number 22" of the Arkansas Department of Pollution Control and Ecology, Solid Waste Management Division (April 1995) (regarding regulation of "asbestos material wastes.")

In response to your second question, it must be initially noted that the answer will likely depend upon the precise nature or source of the funds in question. I will assume, however, that your inquiry focuses on the funds addressed under the Solid Waste Management Act (Act 237 of 1971, as amended), as you have specifically referenced that act. Section 8-6-212 states in relevant part that:

[a] county government shall have the authority to levy and collect such fees and charges as may be appropriate to discharge the county's responsibility for a solid waste management system or any portion thereof.

A.C.A. § 8-6-212(b) (Supp. 1995) (emphasis added).

Consideration should also be given to § 8-6-212(c) which states:

A county may accept and disburse funds derived from federal or state grants, from private sources, or from moneys that may be appropriated from any available funds for the installation and operation of a solid waste management system or any part thereof.

A.C.A. § 8-6-212(c) (Supp. 1995) (emphasis added).

The county is thus responsible, pursuant to A.C.A. § 8-6-212,² for providing a "solid waste management system" (§ 8-6-203(7)); and it may impose "fees and charges" or use other available funds therefor. In essence, therefore, your question is whether the use of these solid waste fees and charges (or other available funds) to remove asbestos from a county-owned building is in furtherance of the county's responsibility under § 8-6-212.

It is my opinion, based upon the plain language of § 8-6-212, that a court would in all likelihood answer this question in the negative. My research has yielded no helpful case law on point; and thus a conclusive determination may require judicial review or legislative clarification. It must be initially noted, however, that "solid waste" is defined in §8-6-203 as "any garbage or refuse, sludge . . ., and other discardedmaterial." A.C.A. § 8-6-203(6) (Supp. 1995) (emphasis added). This definition alone may negate the argument that the county's responsibility to provide a "solid waste management system"³ can include the removal of asbestos from a structure.

It seems clear, moreover, that the focus of § 8-6-212 is on the county's responsibility to provide a waste management system. Subsection (c),supra, makes specific reference to the "installation and operation" of a system. And subsection (a)(1), supra at n. 1, requires a system that is "adequate to collect and dispose of all solid wastes" in the county. Some guidance may also be gleaned from A.C.A. § 8-6-301 through -307 (Repl. 1993) (Act 986 of 1985, as amended), which establishes the "County Solid Waste Management System Aid Fund" as a state treasury fund. The General Assembly has expressed its clear intent under this legislation for the county aid funds to be used "for establishing, operating, and maintaining the solid waste management system." A.C.A. § 8-6-304(3). See also §§8-6-306 and -307(c) regarding use of the moneys for the "support and operation" of the system. The definition of "solid waste management system" (§ 8-6-301(1)) is similar to that under § 8-6-203(8), supra at n. 3.

In my opinion, these provisions cannot reasonably be construed, generally, as authorizing the use of the county solid waste funds (or aid funds) to remove asbestos from a county building. The use of such funds for this purpose in connection with a privately-owned structure is presumably not required or authorized. Once removed, the asbestos would, it seems, constitute "discarded material" within the definition of "solid waste." See § 8-6-203(6), supra. But I assume that a property owner cannot expect system fees, charges, or other available funds to be used for actual removal of the asbestos in a private structure. I believe a similar analysis would apply with respect to the county. Moreover, because the focus of § 8-6-212 is on the overall solid waste management system and the county's responsibility to provide such system, I must conclude that the county's use of the solid waste funds for asbestos removal from its property would likely be disapproved as not being in furtherance of the county's responsibility under § 8-6-212.

Because I have opined, in response to your second question, that use of the solid waste funds for removal of asbestos in a building is probably unauthorized, it appears that a response to your third question is unnecessary.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.

Sincerely,

WINSTON BRYANT Attorney General

WB:EAW/cyh

¹ The term "hazardous wastes" was included in the original definition of "solid wastes" in the 1971 act, but was removed in a subsequent amendment. See Acts 1995, No. 547, § 1.

² Section 8-6-212(a)(1) (Supp. 1995) states:

Each county of the state is authorized to provide, and shall provide, a solid waste management system adequate to collect and dispose of all solid waste generated or existing within the boundaries of the county and outside the corporate limits of any municipality in the county.

³ Section 8-6-203(8) defines "solid waste management system" as "the entire process of source reduction, storage, collection, transportation, processing, waste minimization, recycling, and disposal of solid wastes. . . ."