Mississippi Hazardous Waste Facility Siting Act of 1990

Miss. Code Ann. tit. 17, ch. 18
in effect

Miss. Code Ann. § 17-18-1 Short title.

This chapter shall be known and may be cited as the “Mississippi Hazardous Waste Facility Siting Act of 1990.”

Miss. Code Ann. § 17-18-3 Legislative intent.

It is the intent of the Legislature that: The generation of hazardous waste should be reduced or eliminated at the source and hazardous waste that is generated should be recycled, reused or minimized; and This chapter shall describe a process to identify appropriate hazardous waste management technologies and to site a state commercial hazardous waste management facility and if determined necessary design, finance, construct and operate a state commercial hazardous waste management facility.

Miss. Code Ann. § 17-18-5 Definitions.

For purposes of this chapter the following terms shall have the meanings ascribed to them in this section unless the context clearly indicates otherwise: “Advisory committee” means the designated site local advisory committee created under Section 17-18-35. “Authority” means the Hazardous Waste Facility Siting Authority created under Section 17-18-7. “Committee” means the Hazardous Waste Technical Siting Committee created under Section 17-18-11. “Department” means the Department of Finance and Administration. “Hazardous waste” means hazardous waste as defined under Section 17-17-3. “Local governmental unit” means any town, municipality or county. “State commercial hazardous waste management facility” means a facility which receives hazardous wastes directly or indirectly from more than one (1) generator for the storage, processing, treatment, recycling, recovery or disposal of hazardous wastes for a fee and is authorized under this chapter.

Miss. Code Ann. § 17-18-7 Hazardous Waste Facility Siting Authority.

There is hereby created the Hazardous Waste Facility Siting Authority, which shall be located within the Department of Finance and Administration. The authority shall exercise all of its powers independently of the department and, notwithstanding any other provision of law, shall be subject to the direction and supervision of the executive director of the department only with respect to the management functions of administration, coordination and reporting. The authority shall continue in existence until thirty (30) days after the department acquires a site. Upon the termination of the authority all of its rights and properties shall pass to and be vested in the state. The department shall provide such technical, clerical and other support services and personnel as the authority may require in the performance of its functions. The executive director of the department shall be the chief administrative officer of the authority. The Governor shall appoint five (5) members, one (1) from each congressional district as constituted on January 1, 1990, with the advice and consent of the Senate. Members of the authority shall include persons with expertise available in the technical, legal, financial and other aspects of hazardous waste management and shall represent insofar as practicable the diverse interests of the state. Original appointments to this authority shall be made on or before July 1, 1990, and shall be for a term ending thirty (30) days after the state acquires the site. The Governor shall require adequate disclosure of potential conflicts of interest by members of the authority. Vacancies on the authority shall be filled by appointment in the same manner as the original appointments. Members of the authority shall receive per diem as provided by Section 25-3-69 and reimbursement of travel expenses as provided by Section 25-3-41 for each day spent in the actual discharge of their duties when attending a meeting of the authority.

Miss. Code Ann. § 17-18-9 Powers and duties of authority.

The authority shall exercise the following powers and duties in carrying out the purposes of this chapter: It shall adopt rules specifying the criteria and methodology for site selection as submitted by the Hazardous Waste Technical Siting Committee. It shall select one (1) site as the designated site for the state commercial hazardous waste management facility from the three (3) candidate sites submitted by the Hazardous Waste Technical Siting Committee. The site selection shall be made in writing to the Governor and executive director of the department. It may conduct or cause to be conducted any studies, analyses or evaluations. It may apply and contract for and accept any grants or gifts in furtherance of the activities of the authority. It may enter into contracts and perform all acts necessary, convenient or desirable to carry out any power expressly granted to the authority under this chapter. All contracts shall be executed by the Department of Finance and Administration subject to final approval by the authority. It shall conduct such public meetings or hearings as may be necessary or appropriate and make a permanent record thereof, in furtherance of the activities of the authority.

Miss. Code Ann. § 17-18-11 Hazardous Waste Technical Siting Committee.

There is hereby created the Hazardous Waste Technical Siting Committee, which shall be located within the Department of Finance and Administration. The committee shall exercise all of its powers independently of the department and, notwithstanding any other provision of law, shall be subject to the direction and supervision of the executive director of the department only with respect to the management functions of administration, coordination and reporting. The committee shall continue in existence until thirty (30) days after facility operation begins. Upon the termination of the committee all of its rights and properties shall pass to and be vested in the state. The department shall provide such technical, clerical and other support services and personnel as the committee may require in the performance of its functions. The executive director of the department shall be the chief administrative officer of the committee. The committee shall not exceed twelve (12) members: one (1) of whom shall be the director of the emergency management agency, one (1) of whom shall be the state economist, one (1) of whom shall be the Executive Director of the Department of Economic and Community Development, one (1) of whom shall be the Director of the Highway Department, one (1) of whom shall be the State Chemist and not more than seven (7) members to be appointed by the Commissioner of Higher Education from persons with technical expertise in geology, water resources, environmental engineering, environmental biology/ecology, environmental health, sociology, governmental affairs, production agriculture or cultural resources. The Commissioner of Higher Education shall appoint the members on or before July 1, 1990. Members appointed by the Commissioner of Higher Education shall be knowledgeable in aspects of hazardous waste management. Members of the committee may designate substitute or alternate members to act in their stead should they be unable to attend any meeting or perform any function of the committee. Members of the committee shall be reimbursed for expenses in accordance with Section 25-3-41.

Miss. Code Ann. § 17-18-13 Powers and duties of committee.

The committee shall exercise the following powers and duties in carrying out the purposes of this chapter: It shall recommend to the authority, in accordance with the hazardous waste management category determination as provided in Section 49-29-7, the technology and design capacity for each component of the state commercial hazardous waste management facility operated under this chapter. It shall develop criteria and methodology for selecting sites for the state hazardous waste management facility. It shall actively seek volunteer communities interested in hosting the state commercial hazardous waste management facility. It shall implement the site selection criteria and the site selection methodology to determine three (3) candidate sites for the state commercial hazardous waste management facility. The determination shall be made in writing to the Hazardous Waste Facility Siting Authority. Priority shall be given to the evaluation of potential sites located on state-owned property and in communities volunteering to host the state commercial hazardous waste management facility. If the site is to be located on state-owned land, then the site shall consist of a tract of land of not less than three hundred (300) acres owned by the state on March 31, 1990, but it shall not be necessary for the entire tract to be used in the operation of the facility. It may request information and assistance from any state agency which has data or expertise which would assist the committee in the identification of sites, provided that no agency which has authority to issue a license or permit for the construction or operation of the facility shall participate in the site selection process in any way that would result in an actual or apparent conflict of interest. It may conduct, or cause to be conducted, any studies, analyses or evaluations. It may apply and contract for and accept any grants or gifts in furtherance of the activities of the committee. It may enter into contracts and do all acts necessary, convenient or desirable to carry out any power expressly granted to the committee under this chapter. All contracts shall be executed by the Department of Finance and Administration subject to final approval by the committee. It shall conduct such public meetings or hearings as may be necessary or appropriate and make a permanent record thereof, in furtherance of the activities of the committee.

Miss. Code Ann. § 17-18-15 Committee to develop site-selection criteria and methodology; considerations; public hearing.

On or before April 1, 1991, the committee shall develop criteria and methodology for selecting sites for the state commercial hazardous waste management facility. Site-selection criteria and methodology shall be specifically adapted to take into account the technologies and design capacity of the state commercial hazardous waste management facility. Site-selection criteria and methodology shall be developed with and provide for public participation; shall be incorporated into rules; shall include a written justification for each criterion; shall be consistent with all applicable federal and state laws, including statutes, regulations and rules; shall be developed in light of the best available scientific data; shall be applied equally to all counties of the state and shall be based on consideration of at least the following factors: Hydrological and geological factors, including, but not limited to, flood plains, depth to water table, groundwater travel time, soil pH, soil cation exchange capacity, soil composition and permeability, cavernous bedrock, seismic activity, slope and climate; Environmental and public health factors, including, but not limited to, air quality, quality of surface and groundwater and proximity to public water supply/watersheds; Natural and cultural resources, including, but not limited to, wetlands, game lands, endangered species habitats, proximity to parks, forests, wilderness areas, nature preserves and historic sites; Socioeconomic factors, including, but not limited to, impact on local land uses, property values and governmental services; Transportation factors, including, but not limited to, proximity to waste generators, route safety and method of transportation; Aesthetic factors, including, but not limited to, visibility, appearance and noise level of the facility; Availability and reliability of public utilities; Availability of emergency response personnel and equipment. The committee shall hold a public hearing prior to the finalization of the site selection criteria and the site selection methodology.

Miss. Code Ann. § 17-18-17 Volunteer host community for hazardous waste management facility; procedures for volunteering.

Except as provided in subsection (2) of this section, a community desiring to volunteer to host the state commercial hazardous waste management facility to be operated pursuant to this chapter may propose to do so by the adoption of a resolution by a majority vote of the governing body of the local governmental unit. The committee shall determine the adequacy of any proposal to voluntarily host the state commercial hazardous waste management facility. Once a proposal to volunteer to host the state commercial hazardous waste management facility has been accepted in writing by the committee, the resolution making such proposal may not be rescinded by the governing body of the local governmental unit, unless the management category or categories determined under Section 49-29-7 is changed after the date of the submission of such category determination to the Hazardous Waste Technical Siting Committee. The governing body of the local governmental unit shall hold a minimum of two (2) public hearings prior to submission of a resolution regarding any proposal to volunteer to host the state commercial hazardous waste management facility pursuant to this chapter. The governing body of the local governmental unit shall advertise its intent to hold the public hearings. The advertisement shall be in a newspaper of general circulation in the county. The advertisement shall be no less than one-fourth (1/4) page in size and the type used shall be no smaller than eighteen (18) point and surrounded by a one-fourth (1/4) inch solid black border. The advertisement may not be placed in that portion of the newspaper where legal notices and classified advertisements appear. It is legislative intent that, whenever possible, the advertisement appear in a newspaper that is published at least five (5) days a week, unless the only newspaper in the county is published less than five (5) days a week. It is further the intent of the Legislature that the newspaper selected be one of general interest and readership in the community, and not one of limited subject matter. The advertisement shall be run once each week for the two (2) weeks preceding the public hearings. The advertisement shall state that the governing body will meet on a certain day, time and place fixed in the advertisement, which shall be not less than seven (7) days after the day the first advertisement is published, for the purpose of hearing comments regarding the proposed resolution and to explain the reasons for the proposed resolution. Washington County and Issaquena County are hereby designated as volunteer host communities without having to comply with the requirements of subsection (1) of this section. This section shall not be construed to give priority for the evaluation of potential sites to any one (1) volunteer host community over any other volunteer host community, regardless of whether the designation of a governmental unit as a volunteer host community is accomplished under subsection (1) or subsection (2) of this section.

Miss. Code Ann. § 17-18-19 Committee to recommend sites for facility.

On or before October 1, 1991, the committee shall recommend in writing to the authority three (3) candidate sites for the state commercial hazardous waste management facility. The recommendation shall include a comparative evaluation relative to the site selection criteria of each candidate site with other sites and locations that were considered and a description of the implementation of the site selection methodology by which the sites were recommended. Priority shall be given to the recommendation of candidate sites meeting all of the site selection criteria located on state-owned land described in Section 17-18-13(d) and in communities interested in voluntarily hosting the state commercial hazardous waste management facility. The committee shall hold a public hearing in the county of each of the three (3) candidate sites prior to their recommendation to the authority.

Miss. Code Ann. § 17-18-21 Authority to designate site for facility.

On or before January 1, 1992, the authority shall submit in writing to the Governor and the executive director of the department the designated site for the state commercial hazardous waste management facility. The designation shall include a description of the decision process by which the designated site was selected. Priority shall be given to the selection of a designated site meeting all of the site selection criteria located on state-owned land described in Section 17-18-13(d) and in communities interested in voluntarily hosting the state commercial hazardous waste management facility. The authority shall hold a public hearing in the county of each of the three (3) candidate sites prior to their submission of the designated site to the Governor and the executive director of the department. If it is determined that any permit or license necessary for the construction or operation of the state commercial hazardous waste management facility cannot be obtained if the facility is located at the designated site, then the authority shall designate a site from the remaining two (2) candidate sites.

Miss. Code Ann. § 17-18-23 Acquisition of selected site.

On or before October 1, 1992, the executive director of the department shall purchase or, if necessary, otherwise acquire property for the site on behalf of the state. If purchased, fee simple title to real property shall be vested in the State of Mississippi by and through the department.

Miss. Code Ann. § 17-18-25 Contracts for design, construction and operation of facility; failure to execute contracts.

The department shall actively seek a qualified private contractor or contractors to design, construct and operate the state commercial hazardous waste management facility. A single contractor may design, construct and operate the facility. If the department is unable to successfully negotiate and execute a contract or contracts for the design, construction and operation of the state commercial hazardous waste management facility not later than January 1, 1993, the executive director of the department shall certify to the Governor in writing that the department has taken all actions necessary or convenient to secure an executed contract or contracts for the design, construction and operation of the state commercial hazardous waste management facility. After the written certification, the department shall design, construct and operate the state commercial hazardous waste management facility.

Miss. Code Ann. § 17-18-27 Sale of site property.

The department may sell the real property for the site and any improvements thereon to any non-governmental entity that meets all requirements mandated by federal law and regulations and all requirements mandated by state law and regulations for the operation of a commercial hazardous waste management facility. If the department decides to sell the property, then the property shall be offered for sale on the basis of competitive bidding after advertisement therefor and such property shall be sold to the highest and best bidder, but in no event shall the property be sold at less than the appraised value at the time of the sale as determined by three (3) competent appraisers selected by the department. If all bids received by the department are insufficient, the department may reject all bids received and readvertise for bids.

Miss. Code Ann. § 17-18-29 Site closure plan; post-closure monitoring; maintenance and remedial actions.

The department shall enter into an agreement with the operator of the state commercial hazardous waste management facility for the safe and proper closure of the facility. The operator’s site closure plan shall be subject to the approval of the department. The approval of the department under this section is in addition to the approval of the Department of Environmental Quality in accordance with the rules and regulations of the Commission on Environmental Quality. The department may employ an independent contractor to properly close the state commercial hazardous waste management facility and to ensure the site is stabilized. The department shall provide for such post-closure physical surveillance and environmental monitoring of the state commercial hazardous waste management facility as may be required by the Department of Environmental Quality, the U.S. Environmental Protection Agency and by agreement with the host community. The department shall provide through its own personnel, private contractor, cooperative agreement with other governmental agencies or any combination thereof, any active maintenance or remedial actions that may be required. Payment for the costs thereof shall be made from the perpetual care fund established pursuant to this chapter.

Miss. Code Ann. § 17-18-31 Perpetual Care Fund; purposes of fund; funding.

There is hereby created in the State Treasury a fund to be designated as the “Perpetual Care Fund,” hereinafter referred to in this section as “fund,” which may be used for: Administration of the fund; Emergency response and decontamination at the state commercial hazardous waste management facility; Post-closure physical surveillance, environmental monitoring, maintenance, care, custody and remedial action at the state commercial hazardous waste management facility. Expenditures may be made from the fund upon requisition to the Treasurer by the executive director of the department. The fund shall be treated as a special trust fund. Interest earned on the principal therein shall be credited by the Treasurer to the fund. In addition to any money that may be appropriated or otherwise made available to it, the fund shall be maintained by user fees and other charges, including nonregulatory penalties, surcharges or other money paid to or recovered by or on behalf of the department. Fees and other charges shall at all times be sufficient to build and maintain the fund balance at a level determined by the department, in consultation with the Department of Environmental Quality. The establishment of this fund shall in no way be construed to relieve or reduce the liability of any facility operator, contractor or other person for damages resulting from the operation of the state commercial hazardous waste management facility.

Miss. Code Ann. § 17-18-33 Fees generally; contracts for operation of facilities; cost considerations in establishing and revising fee schedules; use of excess funds.

For the state commercial hazardous waste management facility the department, in consultation with the Department of Environmental Quality, shall establish and revise as necessary schedules of user fees and other charges, including nonregulatory penalties and surcharges. For facilities operated by private enterprise pursuant to this chapter, the department, in consultation with the Department of Environmental Quality, shall establish and revise as necessary schedules of franchise fees. The terms and conditions under which facilities are operated by private enterprise pursuant to this chapter shall be governed by appropriate contracts between the department and the private operator. Such contracts shall provide for the payment of franchise fees and for the periodic adjustment thereof. In establishing and revising such schedules of fees, the department shall consider and shall seek to recover, to the maximum extent possible, the following costs: Establishment and operation of the authority and committee; Administrative costs of the department in support of its activities under this chapter; Establishment and administration of the Perpetual Care Fund; Repayment to the state with interest of all funds expended from the State General Fund in the development of the state commercial hazardous waste management facility; Compensation of contractors and consultants employed by the department, authority and committee in furtherance of the purposes of this chapter; Other expenses incurred by the department, the state or its agencies in furtherance of the purposes of this chapter. If revenues exceed all costs set out and all other costs and charges for which the department is liable, such excess funds shall be paid into a special fund hereby created in the State Treasury to fund a portion of the costs of the Mississippi Comprehensive Waste Minimization Program administered by the Department of Environmental Quality, other programs which foster multimedia waste prevention, reduction, reuse and recycling, programs which provide assistance to small quantity generators and other programs for environmental protection purposes.

Miss. Code Ann. § 17-18-35 Designated site local advisory committee; membership; powers; one-time local application fee for permit to operate facility.

Upon site designation for the state commercial hazardous waste management facility, the governing body of the local governmental unit wherein the site is designated may appoint a designated site local advisory committee. The advisory committee shall consist of seven (7) members representing insofar as possible local government, environmental, health, engineering, business and industry, agricultural, academic, public interest and emergency response groups. If the designated site is in a municipality, the governing body of the county in which the municipality is located may appoint two (2) of the seven (7) members of the advisory committee. The advisory committee shall elect a chairman, vice chairman and a secretary. Vacancies shall be filled by the governing body of the local governmental unit using the same criteria employed in the original appointments. The governing body of the local governmental unit shall provide the advisory committee with the necessary support staff. The designated site local advisory committee may: Study the costs and benefits associated with the state commercial hazardous waste management facility; Review all permit and license applications and related documents concerning the proposed facility; Hire program and technical consultants to assist in the review process; Assess the potential local environmental and socioeconomic impacts of the proposed facility; Promote public education, information and participation in the permitting process; Develop and propose agreements between the department, the state commercial hazardous waste management facility operator, local governments and other persons; Develop and present recommendations concerning permit conditions, operational requirements, compensation and incentives related to the proposed facility; Hire a mediator to facilitate negotiations between the department and the governing body of the local governmental unit; Reimburse the advisory committee members for reasonable and necessary expenses. An applicant for a permit to operate the state commercial hazardous waste management facility shall pay a one-time local application fee of One Hundred Thousand Dollars ($100,000.00). If the applicant is a private firm, the local application fee shall be paid to the department, which shall disburse the local application fee to the governing body of the local governmental unit. If the applicant is the department, the department shall pay and disburse the local application fee directly to the governing body of the local governmental unit.

Miss. Code Ann. § 17-18-37 Grant for volunteer host community which is designated site; host community authorized to obtain loan from hazardous waste facility site revolving loan fund; negotiations between governing body of host community and department for percentage of gross receipts from facility.

A volunteer host community which is the designated site shall be paid a grant of One Million Dollars ($1,000,000.00) from the State General Fund after the state commercial hazardous waste management facility is permitted and construction thereof has commenced. A host community which is the designated site for the state commercial hazardous waste management facility may obtain a loan from the Hazardous Waste Facility Site Revolving Loan Fund under Section 17-17-55. The governing body of a host community for the state commercial hazardous waste management facility may negotiate with the department in accordance with Section 17-18-39 for a percentage of annual gross receipts from the facility, emergency response resources and training and public information, education and outreach programs, among other incentives.

Miss. Code Ann. § 17-18-39 Local governmental unit may negotiate with department; issues excluded; arbitration.

The governing body of any local governmental unit wherein the site is designated may negotiate with the department with respect to any issue relating to the facility except: The need for the facility; Any proposal to reduce the powers or duties of the department, the authority or the committee under this chapter or under any permit or license issued for the facility; Any proposal to reduce the powers or duties of the Commission on Environmental Quality or the Environmental Quality Permit Board or to make less stringent any rule of the Commission on Environmental Quality; or Any decision of the committee, the authority, the department or the Environmental Protection Council regarding site selection, contractor selection, selection of waste management category or technology pursuant to this chapter. If the department and the governing body of the local governmental unit have not reached an agreement on all issues by negotiation within six (6) months after site designation, the following issues may be submitted to arbitration: Compensation to the local governmental unit for substantial economic impacts which are a direct result of the siting and operation of the state commercial hazardous waste management facility and for which adequate compensation is not otherwise provided; Reimbursement for reasonable costs incurred by the local governmental unit relating to negotiation, mediation and arbitration activities under this chapter; Matters related to the appearance of the facility; Operational concerns other than design capacity and regulatory issues; Traffic flows and patterns which result from the operation of the facility; Uses of the site where the facility is located after the facility is closed; Emergency response capabilities, including training and resources; and Access to facility records and monitoring data. The Secretary of State shall serve as arbitrator of any issues submitted for arbitration under this section.

Miss. Code Ann. § 17-18-41 Immunity from personal liability; Attorney General as legal representative of authority and committee.

No member, officer or employee of the department, authority or committee while acting within the scope of their authority shall be subject to any personal liability by reason of any act or omission in connection with the exercise of any power or performance of any duty whether expressed or implied pursuant to this chapter. Except as otherwise authorized in Section 7-5-39, the Attorney General shall be the legal representative of the authority and the committee and shall provide legal advice and counsel without cost to the authority and the committee.

Miss. Code Ann. § 17-18-43 Report to Legislature.

The department shall report to the Legislature on January 1 of each year regarding its progress in the activities set out under this chapter. The report shall also include an accounting of the collection and expenditures of all authorized funds and recommendations for any additional legislative authority required in furtherance of the activities under this chapter.

Miss. Code Ann. § 17-18-45 Elected or appointed officials not to derive any pecuniary benefit.

No elected or appointed official shall derive any pecuniary benefit, directly or indirectly, as a result of such elected or appointed official’s duties under this chapter.

Miss. Code Ann. § 17-18-47 Governor authorized to suspend siting process; grounds; rescinding suspension.

The Governor, by executive order, may suspend the process of siting a state commercial hazardous waste management facility under this chapter if the Permit Board created in Section 49-17-28, Mississippi Code of 1972, or the United States Environmental Protection Agency issues a Resource Conservation and Recovery Act permit for the operation of a commercial hazardous waste treatment or disposal facility within the state. The Governor, by executive order, may rescind the suspension of the facility siting process if he deems such action to be necessary to site a state commercial hazardous waste management facility within this state and adjust the timetable for the facility siting process accordingly.

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