39-7411. DESIGN REVIEW PROCEDURE. (1) Design of a MSWLF unit shall not be reviewed until site certification has been obtained. After obtaining site certification, an applicant shall produce design plans and specifications which comply with the design standards set forth in sections 39-7409 and 39-7410, Idaho Code. The responsibility for complying with said standards shall rest solely with the applicant of the site.

(2) An applicant may notify the director of its intent to initiate a MSWLF site design and meet with the director to discuss standards, schedule, design process to be used and particular concerns of the director.

(3) The applicant shall conduct aerial and cadastral surveys, relevant studies, and prepare a hydrogeologic report which will satisfy standards and other provisions in accordance with this chapter and applicable state regulations. Specific climatic data and verification of location restrictions shall be included.

(4) The applicant shall submit findings and a tentative design plan, including preliminary schematic design of environmental monitoring systems to the director as a result of the preliminary design investigation. The submittal initiates a twenty-eight (28) day period for department review and comment. Concurrent with the submittal to the director, the applicant shall publish notice in a newspaper of general circulation, as determined by the criteria in section 31-819, Idaho Code, in the county wherein the MSWLF would be located notifying the public that a preliminary design plan has been submitted to the director and is available for public review. The date of publication initiates a twenty-eight (28) day period for department review and public comment. Written public comments concerning the proposed design plan shall be compiled by the director. The compiled public comments received by the director and those generated by the director shall be transmitted to the owner, and the applicant if other than the owner, no more than thirty-five (35) days after the date of publication of the notice or seven (7) days after the end of the public comment period, whichever is later.

(5) When a response is received from the director, the applicant may submit the facility design, ground water monitoring program, and specifications, in a final design report which addresses standards established by this chapter, applicable federal regulations and other relevant provisions of state law. Said submittal shall include a site-specific analysis of hydrogeologic conditions, location restrictions and other factors relevant to long-term site integrity, and shall address comments from the public and the director related to objective standards in the final design report. Said submittal shall be prepared by a qualified professional in a manner consistent with sound professional practices. The submittal of this final design report initiates a fifty-six (56) day period for the director’s review.

(6) Concurrent with submittal to the director, the applicant shall release the final design report, including all supporting reports, plans and documentation, to the extent practicable, for public comment by placing it for inspection at every public library within the county where the proposed MSWLF would be located. Copies of the submittal shall be made available for possession, at the cost of duplication, at a public location in the county seat of the county where the proposed MSWLF unit would be located. The applicant shall publish notice in a newspaper of general circulation, as determined by the criteria in section 31-819, Idaho Code, in the county wherein the MSWLF would be located notifying the public that a final design report has been submitted to the director and is available for public review. Public comments shall be submitted, in writing, to the director within twenty-eight (28) days of the date of publication.

(7) No more than fifty-six (56) days after publication of notice of submittal, or twenty-eight (28) days after the close of an advertised public comment period, whichever is later, the director shall enter a decision either approving or disapproving the final design. The decision shall be in writing and shall make one (1) of the following findings:

(a) Based upon the information submitted, design complies with applicable standards.

(b) Based upon the information submitted, the design does not comply with applicable standards, setting forth with specificity the material standards not met or insufficiently documented.

(c) Failure to comport with professional standards.

Failure of the director to respond to an applicant’s request for approval in the manner provided herein shall constitute approval of the request. Construction shall not be initiated on a MSWLF unit until approval has been granted, except that construction prior to approval may be initiated prior to July 1, 1993, for a MSWLF unit which meets the design standard of section 39-7409(2)(a), Idaho Code. The applicant shall publish notice of approval in a newspaper of general circulation when affirmative or defacto approval is given.

(8) Upon entering a decision of disapproval, an automatic twenty-one (21) day stay of proceedings shall occur unless waived by the applicant. During the twenty-one (21) day stay, the director and the applicant may meet and confer to attempt to reconcile differences. At any point during that twenty-one (21) day period the director and applicant can reach an accord and approval can be granted, with construction authorized at that point. The applicant can tender a written waiver of this twenty-one (21) day reconciliation period which would initiate the requirement provided for in subsection (9) of this section. At any time in the review process or post-decision reconciliation process the applicant and director may mutually agree to extend the timeframes contained herein and may resort to mediation, arbitration, or binding arbitration to resolve differences as they mutually see fit.

(9) If differences are not reconciled in the period set forth in subsection (8) of this section, the director shall notify the owner that the design remains disapproved. Said notice of disapproval shall incorporate the rationale for disapproval contained in the original decision of disapproval, deleting any issues resolved in the post-decision reconciliation period.

(10) Following final action by the director the applicant may file a petition with the district court, with concurrent notice to the director, in the county where the proposed MSWLF would be located for expedited appellate review of the director’s decision. The petition shall set forth the specific basis for the appeal and shall identify the legal and factual basis for contesting the disapproval by the director. The director shall submit a copy of the entire record upon which its disapproval has been based no more than fourteen (14) days after the date the applicant’s petition for review has been filed. Only information which has been available during the design review process may be used in the judicial review process.

(11) All issues claimed as a basis of appeal by the applicant shall be addressed in a memorandum filed with the petition appealing disapproval by the director. The director shall submit a reply memorandum no later than fourteen (14) days after the applicant’s petition for review has been filed.

(12) Upon the record, the applicable law, the memoranda of the respective parties, and such independent technical assistance as the court may find it necessary and appropriate to retain, the court shall evaluate the applicant’s petition and the decision by the director and shall render a decision no more than twenty-one (21) days after the completed record, and accompanying memorandum, if one is filed, are submitted to the court by the director. The court shall sustain the director’s disapproval action if it affirmatively finds that the record contains substantial evidence that the design does not comply with standards as specified pursuant to section 39-7412(7)(b) or (c), Idaho Code. If the court finds the disapproval is not supported by substantial evidence in the record, it shall reverse the director’s action and remand the matter to the director with appropriate instructions.

(13) The procedure set forth in subsections (10) through (12) of this section are effective until January 1, 1994. On and after January 1, 1994, the applicant is entitled to judicial review pursuant to chapter 67, title 52, [title 67, chapter 52] Idaho Code. Upon waiver or expiration of the twenty-one (21) day reconciliation period, the director and the applicant shall stipulate to accelerated judicial review pursuant to court approval where the ordinary review period provided in chapter 67, title 52, [title 67, chapter 52] Idaho Code, may reasonably result in substantial increased costs to the applicant, potential violations of federal or state environmental laws or threats to the public health and environment.

History:

[39-7411, added 1993, ch. 139, sec. 12, p. 358.]