§ 6605d. Provisional certification

(a) Notwithstanding the requirements of sections 6605, 6605a, and 6605b of this title, a provisional certification may be issued under this section for a solid waste landfill. A provisional certification may modify a landfill certification or other authorization. The Secretary shall inform interested persons as to where disposal capacity exists and shall encourage development of provisional certification applications that are logical, considering transportation requirements, the needs of the solid waste management districts and the municipalities that are not district members, and other relevant factors.

(b) The Secretary shall not issue a provisional certification without affirmatively finding that:

(1) The solid waste management facility is an existing unlined landfill and that solid waste has been disposed of at the facility prior to January 1, 1990 in the cell or area for which provisional certification is proposed.

(2) There is a compelling public need for the proposed provisional certification because it will:

(A) provide disposal capacity required by other specified municipalities; and

(B) provide additional funds necessary for proper operation and closure; and

(C) produce contours as specified in an approved closure plan.

(3) Measures will be taken to prevent or reduce any undue adverse impacts on the criteria specified in subdivision (c)(5) of this section.

(c) A provisional certification shall:

(1) Not approve, or otherwise allow, any horizontal expansion into, or use of, unused unlined cells or areas of the landfill.

(2) Contain conditions, requirements, or restrictions as set out in subsection 6605(b) of this title, for any aspect of the management of the facility affected by the provisional certification, except that a provisional certification shall not include the recycling requirements established in subdivision 6605(b)(3)(B) of this title. The hazardous waste requirements established in subdivision 6605(b)(3)(B) shall be satisfied if the certification prohibits disposal of the following: automobile lead-acid batteries, nickel cadmium batteries, waste oil and oil filters, electric fluorescent light ballasts and capacitors containing PCBs, oil-based and latex paint, paint thinner and remover, stains and varnishes, other household hazardous waste, and all regulated and unregulated nonresidential hazardous waste.

(3) Contain a requirement that the facility is operated in a manner that assures adequate compaction rates for the additional waste and a requirement that the facility submit a plan for recycling. The Secretary shall assure that the recycling plan provides for a maximum amount of recycling, as soon as is practical, considering the time constraints inherent in provisional certification.

(4) Contain a requirement, if the facility is purchased by a solid waste management district after July 1, 1990, or is owned by a private entity, that a surcharge of two dollars per ton be imposed on all additional waste allowed by the provisional certification. The surcharge shall be collected by the owner or operator of the facility and remitted quarterly to the city, town, or gore in which the facility is located.

(5) Contain conditions, requirements, or restrictions to prevent or reduce any adverse impacts on the public health or the environment caused by the additional waste, as well as measures regarding water pollution, air pollution, traffic, noise, litter, soil erosion, and visual screening as defined by the relevant criteria in subsection 6086(a) of this title.

(6) Contain such additional conditions, requirements, or restrictions as are necessary to preserve and protect the public health and the air, groundwater, and surface water quality, and which shall include requirements for reporting, record keeping, and inspections, and, where practical, shall include requirements with respect to hazardous waste generated by small quantity generators of hazardous waste.

(7) Contain a reasonable schedule for compliance with the financial responsibility requirements of section 6611 of this title.

(8) Contain a requirement that the unlined landfill cease accepting waste as of July 1, 1992 or earlier, pursuant to an approved closure plan.

(9) Notwithstanding the provisions of subdivision (8) of this subsection, any person operating a facility under a provisional certification may apply to the Secretary for a six month extension of the landfill closure deadline, provided that application is received by July 1, 1991. In order to qualify for an extension, the applicant must demonstrate the inability to contract for sufficient capacity sharing to complete closure by the July 1, 1992 deadline, and good faith efforts to share sufficient capacity to assure closure by July 1, 1992. The Secretary shall evaluate requests for extension on a case by case basis, but in no event shall the Secretary extend the closure deadline for any landfill beyond December 31, 1992.

(10) Notwithstanding the provisions of subdivisions (8) and (9) of this subsection, a provisional certification for an unlined landfill owned and operated by a solid waste district as of April 1, 1990 may be issued for no longer than the time period necessary to complete closure and the siting of a new facility. To qualify under this provision an applicant must provide a plan, including an estimated closure date, that will enable the environmentally sound closure of an existing landfill and the timely siting of a new facility. The applicant shall demonstrate through negotiated contracts that at least 150,000 cubic yards of capacity will be shared with other Vermont communities to complete the closure of the existing landfill by that date. On request of a municipality to participate in the shared capacity to be provided by the applicant, the applicant shall share that capacity on the same terms as those negotiated with other municipalities, provided that the Secretary determines that inclusion of the requesting municipality is a logical result, considering transportation requirements, the needs of solid waste management districts and municipalities that are not district members, and other relevant factors.

(d) The owner and operator of a facility seeking provisional certification shall submit an application on a form provided by the Secretary. Except for applicants receiving certification under subdivision (c)(10) of this section, the Secretary shall require the applicant to submit negotiated contracts which demonstrate sufficient capacity sharing to complete closure by July 1, 1992 or earlier. The Secretary may require an applicant for provisional certification to submit whatever information the Secretary considers necessary to evaluate the application. If the information is not provided as requested, the certification may be denied or it may be delayed until the information is furnished and evaluated.

(e) When an application for a provisional certification is filed under this section, the Secretary shall proceed in accordance with chapter 170 of this title.

(f) Any provisional certification may be issued immediately after the end of the public comment period, but its effective date may not be less than five calendar days after the end of the public comment period.

(g) [Repealed.]

(h) If the Secretary finds that emergency action is required for the disposal of solid waste in Vermont facilities, the Secretary may issue an emergency provisional certification. Notwithstanding any contrary requirement of chapter 170 of this title, notice of a proposed emergency provisional certification shall be published at least seven calendar days prior to the meeting and the public comment period shall end no sooner than three calendar days after the meeting. An emergency provisional certification granted in accordance with this subsection shall be issued no more than once and shall terminate 60 days after issuance, unless the Secretary reissues the certification under this section as a provisional certification. Except as otherwise required by this subsection, an emergency provisional certification shall be subject to requirements that apply to provisional certification.

(i) No person shall substantially alter the operation, use, construction, management, or geographic service area of a solid waste management facility without first obtaining a certification approving that alteration, under this section or section 6605 or 6605b of this title, as appropriate. A service area established in a provisional certification issued under this section, upon request of the operator of the facility, shall be amended to allow the facility to accept solid waste, including construction and demolition debris originating from any source, if necessary to achieve appropriate closure grade by October, 1995.

(j) [Repealed.]  (Added 1989, No. 218 (Adj. Sess.), § 1; amended 1993, No. 208 (Adj. Sess.), § 6; 2015, No. 150 (Adj. Sess.), § 27, eff. Jan. 1, 2018.)