What kind of entity are Arkansas's new used-tire programs and tire accountability boards, and do FOIA, procurement, and interlocal-agreement rules apply to them?

Plain-English summary

Act 713 of 2023 consolidated Arkansas's used-tire collection and disposal system. Multiple regional solid-waste-management districts (RSWMDs) used to manage tires; now there are four state-level Used Tire Programs (UTPs), each governed by a tire accountability board composed of county judges and mayors from within the program's geographic boundary. RSWMDs continue collecting and disposing of tires at the local level under UTP direction.

Senator Payton asked nine questions covering legal status, contracting authority, procurement, FOIA, and what happens to existing contracts. The AG's answers:

1. UTPs and tire accountability boards are political subdivisions for most purposes, meeting the four-part Dermott test (cover an area, organized for public interest, exercise governmental functions, electors committed to that government). For procurement-law purposes specifically, they are also state agencies under A.C.A. § 19-11-203(30) because they are statutorily created, receive state funds, and operate under Division of Environmental Quality (ADEQ), Legislative Council, and Legislative Audit oversight.

2. The boards have implied authority to contract with tire processors and collection sites. Act 713 doesn't say so explicitly, but business plans must be submitted to and approved by ADEQ, and the business plan covers contracting. Once ADEQ approves, the board can execute contracts to follow the plan.

3. An RSWMD can contract with a UTP/board to provide services. A.C.A. § 8-6-704(a)(11) gives RSWMDs broad contracting authority.

4. The Arkansas Procurement Law applies to UTPs and tire accountability boards because they are state agencies under that law's broad definition.

5. RSWMDs are not divested of tire responsibility. Per Act 713, § 7(a), ADEQ continues making payments under previously approved RSWMD business plans until new UTP business plans are approved.

6. Interlocal agreements among the boards would be between the tire accountability board (a separate legal entity) and the participating municipalities, not directly between counties and cities. The Interlocal Cooperation Act (A.C.A. §§ 25-20-101 to -524) governs the structure.

7. If a board's business plan is not approved, the existing RSWMD-level system continues under § 7(a) until a new plan is approved.

8. Pre-Act 713 RSWMD contracts are not vacated by the Act's effective date. Per § 7(b), RSWMDs cannot enter new contracts or extend old ones unless approved by a UTP as part of its business plan.

9. Federal FOIA does not apply (it covers federal agencies only). Arkansas FOIA does apply to UTPs and tire accountability boards because they are public entities, like RSWMDs.

What this means for you

Tire accountability board members (county judges and mayors)

You are part of a political subdivision that operates as a state agency for procurement purposes. Practical implications:

• Submit a business plan to ADEQ. The plan covers your contracting strategy with processors and collection sites. ADEQ approval is required before you can execute on the plan, but once approved, you have implied contracting authority.
• Submit quarterly progress reports to ADEQ (per the ADEQ fact sheet referenced in the opinion).
• Follow the Arkansas Procurement Law for all purchases. This includes formal RFP/bid processes for larger contracts, accounting procedures, and audit requirements.
• Comply with the Arkansas FOIA. All your meetings, records, and communications are subject to FOIA disclosure rules.
• If you want to enter an interlocal agreement, structure it under A.C.A. § 25-20-104(c)–(d). The agreement is between the tire accountability board and the participating municipalities.

Regional Solid Waste Management District administrators

Your RSWMD is not going away. Until ADEQ approves a UTP-level business plan, you continue operating under your previously approved plan, and ADEQ continues reimbursing you. After UTP plans are approved, you can still operate but cannot enter new contracts or extend existing ones without UTP business-plan approval. Coordinate with the UTP/board in your geographic area to make sure your operations align with the new plan.

Tire processors and collection sites

Your contracts predating Act 713 with RSWMDs continue in effect. Watch for the transition: when ADEQ approves a UTP business plan, future contracts will run through the UTP rather than the RSWMD. The relevant procurement law for those future contracts is the Arkansas Procurement Law, which governs RFPs, formal bids, and contract awards. If you are responding to a UTP solicitation, treat it like a state agency procurement.

Records custodians and FOIA requesters

UTPs and tire accountability boards are public entities subject to Arkansas FOIA. Meetings should be open (subject to the standard executive-session exceptions), and records are public records. FOIA requests should be submitted to the board's designated custodian.

Counties and cities considering interlocal agreements with UTPs

Use the Interlocal Cooperation Act framework. The agreement must specify duration, organization, purposes, financing, termination, and (if no separate entity is created) administration. The AG's similar opinions (e.g., Op. 2024-059, where a library agreement was rejected for missing items) show that the checklist is not optional.

Public records and environmental policy researchers

The Used Tire Programs are a useful case study in Arkansas's evolving approach to consolidated environmental governance. The political-subdivision-plus-state-agency-for-procurement classification is unusual but tracks how the legislature has structured similar entities (water districts, fire-protection districts, improvement districts).

Common questions

What is the difference between an "RSWMD" and a "UTP"?
RSWMDs are regional solid-waste-management districts that have existed for decades, handling all kinds of solid waste. They operate under A.C.A. § 8-6-701 et seq. UTPs are new (Act 713 of 2023) and focus specifically on used tires, consolidating what used to be a more fragmented patchwork into four statewide programs.

Why are the boards "political subdivisions" but also "state agencies" for procurement?
The labels track different statutes. Political-subdivision status comes from the four-part Dermott test (jurisdiction, public interest, governmental function, committed electors) and is a general-purpose label. State-agency status under the Arkansas Procurement Law (A.C.A. § 19-11-203(30)) is a more specific definition that brings entities created by statute and supported by appropriated funds within procurement obligations. The two labels are not contradictory; they apply to different domains.

Can a UTP enter contracts without ADEQ approval?
Implied authority kicks in only after ADEQ approves the business plan. Before that, the existing RSWMD-level contracts continue under Act 713, § 7(a). After plan approval, the UTP can contract for processing, transportation, collection, and other services covered in the plan.

Are UTP records public?
Yes, under Arkansas FOIA. The opinion confirms that UTPs and tire accountability boards are public entities, like RSWMDs, and are bound by FOIA's open-records and open-meetings rules. Federal FOIA does not apply because it only covers federal agencies.

What is the role of ADEQ in this system?
ADEQ (the Arkansas Division of Environmental Quality) approves business plans for both RSWMDs (under the existing system) and UTPs (under the new system). ADEQ also distributes funds from the Used Tire Recycling Fund. Per § 7(a) of Act 713, ADEQ continues making payments under previously approved business plans until a new business plan is approved.

What happens to a UTP if ADEQ never approves its business plan?
Per the AG, the existing RSWMD-level system continues to operate under Act 713, § 7(a), and ADEQ continues reimbursing RSWMDs. The UTP exists but does not have an approved operating plan and cannot execute contracts.

Background and statutory framework

Used Tire Recycling and Accountability Act. A.C.A. §§ 8-9-401 to -415, as amended by Act 713 of 2023.

Four UTPs. A.C.A. § 8-9-410(a)(1) consolidates Arkansas into four UTPs. Each is a "used tire program" governed by a tire accountability board composed of county judges and mayors from within the program's geographic boundary (§ 8-9-410(b)(1)).

Political-subdivision test. Dermott Special Sch. Dist. v. Johnson, 343 Ark. 90, 95, 32 S.W.3d 477, 480 (2000) (Arkansas Supreme Court), set the four-part test: (1) covers an area and residents, (2) organized for the public interest, (3) chiefly designed to exercise governmental functions, (4) electors committed, to some extent, to the political subdivision exercising governmental power.

Statutory political-subdivision definitions. Multiple Arkansas statutes define "political subdivision," including A.C.A. § 12-9-102(3) ("any other specific local unit of general government") and § 15-6-103(5) ("any other unit of local government… authorized by law to perform governmental functions").

State-agency definition for procurement. A.C.A. § 19-11-203(30) defines "state agency" as "any [nonexempt]… authority,… board,… or other agency of the state supported by appropriation of state or federal funds."

Implied contracting authority. Hurd v. Arkansas Oil & Gas Commission, 2020 Ark. 210, at 10, 601 S.W.3d 100, 105 (Arkansas Supreme Court): "[S]tate agencies possess such powers as are conferred by statute or are necessarily implied from a statute."

RSWMD contracting authority. A.C.A. § 8-6-704(a)(11) gives RSWMDs authority to enter "contracts and other instruments necessary or convenient in the exercise of the powers and functions" of the RSWMD.

Interlocal Cooperation Act. A.C.A. §§ 25-20-101 to -524, with required contents in § 25-20-104(c) and (d).

FOIA coverage. Arkansas FOIA applies to public entities. RSWMDs were previously held subject to FOIA (Op. 2016-084), and UTPs and tire accountability boards are also public entities.

Transition rules. Act 713 of 2023, § 7(a): ADEQ continues making payments under previously approved RSWMD business plans until new UTP business plans are approved. Section 7(b): RSWMDs cannot enter new contracts or extend old ones unless approved as part of a UTP business plan.

Citations

• A.C.A. §§ 8-9-401 to -415 (Used Tire Recycling and Accountability Act)
• A.C.A. § 8-9-410 (UTP and tire accountability board structure)
• A.C.A. § 8-9-410(d) (interlocal agreements)
• A.C.A. § 8-9-405(a)(1), § 8-9-408, § 8-9-410(c)(1)(C), (e) (state oversight, business plan approval, audit)
• A.C.A. § 8-6-704(a)(11) (RSWMD contracting authority)
• A.C.A. §§ 19-11-201 to -805, § 19-11-203(30) (Arkansas Procurement Law and state-agency definition)
• A.C.A. §§ 25-20-101 to -524 (Interlocal Cooperation Act)
• A.C.A. § 25-20-104(c)–(d) (interlocal agreement contents)
• A.C.A. § 12-9-102(3), § 15-6-103(5) (political-subdivision definitions)
• Act 713 of 2023, § 7(a)–(b) (transition provisions)
• Dermott Special Sch. Dist. v. Johnson, 343 Ark. 90, 32 S.W.3d 477 (2000) (political-subdivision test)
• Hurd v. Ark. Oil & Gas Comm'n, 2020 Ark. 210, 601 S.W.3d 100 (implied agency authority)
• Ark. Att'y Gen. Op. 2016-084 (RSWMDs are public entities subject to FOIA)
• Ark. Att'y Gen. Op. 91-442 (RSWMDs as state agencies under procurement law)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2023-095
April 15, 2024
The Honorable John Payton
State Senator
Post Office Box 181
Wilburn, Arkansas 72179
Dear Senator Payton:
You have requested my opinion regarding Act 713 of 2023, which amended the Used Tire Recycling and Accountability Act. Before Act 713 was enacted, multiple waste-tire districts managed collection and disposal of used tires throughout the state. To increase efficiency in tire processing and transportation, the General Assembly passed Act 713, which consolidated those districts into four used-tire programs (UTPs). Each UTP is governed by a tire accountability board. Regional solid waste management districts (RSWMDs) manage collection and disposal of used tires at the local level under the direction of the UTPs. You have asked the following nine questions:

Question 1: What type of legal entity are the four (4) new UTPs/tire accountability boards from a legal perspective?

While Act 713 does not define the legal status of UTPs and tire accountability boards, most other areas of Arkansas law would define them as political subdivisions. In the limited context of procurement law, however, UTPs and tire accountability boards are state agencies.

In general, UTPs and tire accountability boards are political subdivisions. The Arkansas Supreme Court has held that a political subdivision (1) covers a certain area and residents, (2) is organized for the public interest, (3) is chiefly designed to exercise governmental functions, and (4) has electors residing within its area that are committed, to some extent, to the political subdivision exercising governmental power on behalf of the public.

In my opinion, the UTPs and tire accountability boards are political subdivisions because they meet each of the foregoing four elements: they cover certain areas and residents; are organized for the public interest; are designed to exercise governmental functions; and because recycling and disposing of used tires is an issue that effects citizens on a local level, there are persons living in these areas that support, to some extent, a local government entity managing this issue for the public.

For procurement law, UTPs and tire accountability boards are state agencies, as statutorily defined. The Arkansas Procurement Law defines "state agency" very broadly: "any [nonexempt]… authority,… board,… or other agency of the state supported by appropriation of state or federal funds." This office has previously opined that RSWMDs are "state agencies" subject to procurement because they are (1) created by statute and (2) controlled by the state through funding and oversight. Specifically, this office has noted that RSWMDs receive state funds to recycle and dispose of used tires and that the Arkansas Division of Environmental Quality (ADEQ) sets regulations for operations of the RSWMDs.

Similarly, UTPs and tire accountability boards are "state agencies" under the Arkansas Procurement Law. They are created by statute. They receive state funds to recycle and dispose of used tires, and they operate under the supervision of ADEQ, Legislative Council, and Arkansas Legislative Audit. Thus, they are "state agencies" under the Arkansas Procurement Law.

Question 2: Do the UTP boards have statutory authority to enter into agreements with processors or collection sites?

Yes. Although Act 713 does not explicitly give UTPs and tire accountability boards explicit authority to enter into agreements with processors or collections sites, the act impliedly gives that authority. As part of ADEQ's supervision, UTPs and tire accountability boards must submit business plans to ADEQ for the department's approval. Each business plan must contain the current contractual obligations of the UTPs and tire accountability boards, as well as their future plans for collecting, transporting, and disposing of used tires. Once ADEQ has approved a business plan, the UTP and tire accountability board has authority to follow the approved plan, including entering contracts with processors and collection sites.

Question 3: May an RSWMD legally enter into a contract or agreement with a new UTP/tire accountability board to provide services to the UTP or board?

Nothing in Act 713 limits an RSWMD's authority to enter into a contract or agreement with a new UTP/tire accountability board. And A.C.A. § 8-6-704(a)(11) specifically grants RSWMDs authority to enter into "contracts and other instruments necessary or convenient in the exercise of the powers and functions of" the RSWMD.

Question 4: What procurement laws apply to the UTP/tire accountability board, especially related to requests for proposals/bids, accounting procedures, etc.?

As noted earlier, UTPs and tire accountability boards are state agencies under the Arkansas Procurement Law, so they must follow the procurement procedures set out in that law.

Question 5: Are the solid waste districts divested of the responsibility for the collection and management of used tires since the districts are no longer eligible to receive funding from the state tire program?

Per section 7(a) of Act 713, ADEQ will continue to make payments under previously approved business plans until ADEQ approves new business plans of the new UTPs and tire accountability boards. Thus, RSWMDs are responsible for continuing to provide the services they agreed to provide under the previously approved business plans, and ADEQ will reimburse them for those services.

Question 6: A.C.A. § 8-9-410(d) now states, "The tire accountability board in each of the [new] used tire programs may enter into an interlocal agreement to determine the highest level of efficiency regarding tire processing in the respective used tire program." Since the tire accountability board members are representing their individual counties and cities—rather than solid waste districts—these particular interlocal agreements for the operation of the boards would seem to be between counties and cities. Is that correct?

The interlocal agreements are not between the counties and cities. A tire accountability board is a separate legal entity from (1) the board members and (2) the counties and cities from which the board members originate. So any interlocal agreement would be between the tire accountability board and the municipality or municipalities.

Question 6(a): How should an interlocal agreement be structured to meet the requirements of the new law?

All interlocal agreements are governed by the Interlocal Cooperation Act, which requires an interlocal agreement to include the following information: the duration of the agreement; the purposes of the agreement; the manner of financing the joint or cooperative undertaking and of establishing and maintaining a budget for it; the methods of accomplishing termination of the agreement and for the disposal of property, if any, upon termination; if applicable, the precise organization, composition, nature, and delegated powers of any separate legal or administrative entity created; and any other necessary and proper matters.

If the interlocal agreement does not establish a separate legal entity to conduct the joint or cooperative undertaking, the interlocal agreement must also contain this information: the provision for an administrator or a joint board that will be responsible for administering the joint or cooperative undertaking; and the manner of acquiring, holding, and disposing of real and personal property, if any, used in the joint or cooperative undertaking.

Question 7: If a UTP tire accountability board's business plan is not approved by the Division of Environmental Quality, must either the tire accountability board or Regional Solid Waste Management Board continue to provide tire collection and processing of used tires?

Section 7(a) of Act 713 requires ADEQ to make payments under any previously approved business plan until ADEQ approves a new business plan. Please see my response to Question 5 for additional information.

Question 8: Are the contracts that were established prior to the enactment of Act 713 between RSWMDs and contractors for collection, transportation, processing, or disposal of used tires vacated upon the effective date of Act 713?

The contracts are not vacated upon the effective date of Act 713. Section 7(a) of Act 713 allows any previously approved business plan (including the contracts made under that business plan) to continue until ADEQ approves a new business plan. But, under section 7(b) of the Act, RSWMDs cannot enter into any new contracts or extend old contracts unless those contracts are approved by a UTP as part of the UTP's business plan.

Question 9: Does the federal and/or Arkansas Freedom of Information Act apply to the four (4) new used tire program/tire accountability boards?

The new UTPs and tire accountability boards are not subject to the federal Freedom of Information Act. They are, however, subject to the Arkansas Freedom of Information Act (FOIA). As explained above, UTPs are political subdivisions and state agencies and are similar to RSWMDs. This office has previously opined that RSWMDs are public entities and are subject to the FOIA. Because UTPs and tire accountability boards are also public entities, they are bound by FOIA's requirements.

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General