8-1-106. Definitions — Disclosure statements — Denial of application — Appeal — Rules.

8-1-106. Definitions — Disclosure statements — Denial of application — Appeal — Rules. (a) As used in this section: (1) “Affiliated person” means: (A) Any officer, director, or partner of the applicant; (B) Any person employed by the applicant in a supervisory capacity over operations of the facility that is the subject of the application that may adversely impact the environment, or with discretionary authority over such operations; (C) Any person owning or controlling more than five percent (5%) of the applicant's debt or equity; and (D) Any person who is not now in compliance or has a history of noncompliance with the environmental laws, rules, or regulations of this state or any other jurisdiction and who through relationship by affinity or consanguinity or through any other relationship could be reasonably expected to significantly influence the applicant in a manner that could adversely affect the environment; (2) “Disclosure statement” means a written statement by the applicant that contains: (A) The full name and business address of the applicant and all affiliated persons; (B) The full name and business address of any legal entity in which the applicant holds a debt or equity interest of at least five percent (5%) or that is a parent company or subsidiary of the applicant, and a description of the ongoing organizational relationships as they may impact operations within the state; (C) A description of the experience and credentials of the applicant, including any past or present permits, licenses, certifications, or operational authorizations relating to environmental regulation; (D) A listing and explanation of any civil or criminal legal actions by government agencies involving environmental protection laws, rules, or regulations against the applicant and affiliated persons in the ten (10) years immediately preceding the filing of the application, including administrative enforcement actions resulting in the imposition of sanctions, permit or license revocations or denials issued by any state or federal authority, actions that have resulted in a finding or a settlement of a violation, and actions that are pending; (E) A listing of any federal environmental agency and any other environmental agency outside this state that has or has had regulatory responsibility over the applicant; and (F) Any other information the Director of the Division of Environmental Quality may require that relates to the competency, reliability, or responsibility of the applicant and affiliated persons; and (3) “History of noncompliance” means past operations by an applicant that clearly indicate a disregard for environmental regulation or a demonstrated pattern of prohibited conduct that could reasonably be expected to result in adverse environmental impact if a permit were issued. (b)(1) Except as provided in subdivisions (b)(2) and (4) of this section, all applicants for the issuance or transfer of any permit, license, certification, or operational authority issued by the Division of Environmental Quality shall file a disclosure statement with their applications. Deliberate falsification or omission of relevant information from disclosure statements shall be grounds for civil or criminal enforcement action or administrative denial of a permit, license, certification, or operational authorization. (2) The following persons or entities are not required to file a disclosure statement pursuant to this section: (A)(i) Governmental entities, consisting only of subdivisions or agencies of the federal government, agencies of the state government, counties, municipalities, or duly authorized regional solid waste management boards as defined by § 8-6-702. (ii) This exemption shall not extend to improvement districts or any other subdivision of government that is not specifically instituted by an act of the General Assembly; and (B) Applicants for a general permit to be issued by the division pursuant to its authority to implement the National Pollutant Discharge Elimination System for storm water discharge or any other person or entity the Arkansas Pollution Control and Ecology Commission may by rule exempt from the submissions of a disclosure statement. (3) Nothing in this subsection, including the exemptions in subdivision (b)(2) of this section, shall be construed as a limitation upon the authority of the director to deny a permit based upon a history of noncompliance to any applicant or for other just cause. (4) If the applicant is a publicly held company required to file periodic reports under the Securities Exchange Act of 1934 or a wholly owned subsidiary of a publicly held company, the applicant shall not be required to submit a disclosure statement, but shall submit the most recent annual and quarterly reports required by the United States Securities and Exchange Commission that provide information regarding legal proceedings in which the applicant has been involved. The applicant shall submit such other information as the director may require that relates to the competency, reliability, or responsibility of the applicant and affiliated persons. (5) For a person or an entity seeking a renewal of an expiring permit, license, certification, or operational authorization, the disclosure requirements of this section shall be met if the person or entity: (A) Discloses any change in previously submitted information or verifies that the previously submitted information remains accurate; and (B) Submits the information on forms developed by the division. (6) The Arkansas Pollution Control and Ecology Commission may adopt rules exempting certain permits, licenses, certifications, or operational authorizations from the disclosure requirements and establish reasonable and appropriate disclosure information, if any, required for specific types of permits, licenses, certifications, or operational authorizations based on: (A) The scope of a permit, license, certification, or operational authorization; and (B) The person or entity that would receive a permit, license, certification, or operational authorization. (c) The director may deny the issuance or transfer of any permit, license, certification, or operational authority if he or she finds, based upon the disclosure statement and other investigation which he or she deems appropriate, that: (1) The applicant has a history of noncompliance with the environmental laws, rules, or regulations of this state or any other jurisdiction; (2) An applicant that owns or operates other facilities in the state is not in substantial compliance with, or on a legally enforceable schedule that will result in compliance with, the environmental laws or rules of this state; or (3) A person with a history of noncompliance with the environmental laws, rules, or regulations of this state or any other jurisdiction is affiliated with the applicant to the extent of being capable of significantly influencing the practices or operations of the applicant that could have an impact upon the environment. (d) In reaching any decision pursuant to the requirements of this section, the director shall consider: (1) The potential danger to the environment and public health and safety if the applicant's proposed activity is not conducted in a competent and responsible manner; (2) The degree to which past and present activities in this state and other jurisdictions directly bear upon the reliability, competence, and responsibility of the applicant; and (3) Any evidence of rehabilitation following past violations or convictions. (e) Any person or legal entity aggrieved by a decision of the director under this section may appeal to the Arkansas Pollution Control and Ecology Commission through administrative procedures adopted by the Arkansas Pollution Control and Ecology Commission. (f) The Arkansas Pollution Control and Ecology Commission shall adopt rules necessary to implement this section.