Summary of Transition Rules/Implementation of the Revised Solid Waste Regulations
Author: John Brusa, P.E.
The NYS Department of Environmental Conservation (the “Department”) has finalized the revisions to the State’s Solid Waste Regulations. The revised Regulations will go into effect November 4, 2017. There are many transition provisions which may affect existing and future operations, permit applications, and construction approvals. Below is a list of frequently asked questions to help summarize the transition rules and implementation guidelines for solid waste facilities. The answers provided herein are based on our understanding of the revised regulations, presentations by the Department, and follow up conversations with the Department. Additional requirements and information may exist. For further information or answers to additional questions, please contact us at (315) 457-5200 or email:
Frequently Asked Questions
What is the status of my facility’s existing permit?
A permitted facility continues under existing permit until expiration, unless a modification is approved or a Department-initiated modification is made. At the time of permit renewal or modification, the provisions of the new solid waste regulations will need to be addressed.
If you have an existing permit which will transition to an exemption or registration, the facility must remain in compliance with the terms and conditions of the permit until the permit is surrendered and a registration is obtained, if necessary.
What is the status of my existing exemption or registration?
Facilities that are currently exempt and that will remain exempt, have 180 days (until May 3, 2018) to comply with any new exemption requirements.
Facilities that are currently registered and that will remain registered, have 180 days (until May 3, 2018) to comply with the new registration notification requirement, except for construction and demolition debris handling and recovery facilities (CDDHRF) which are allowed 545 days. Please note; registrations are now effective for a maximum of 5 years.
Exempt facilities, transporters or collection events which will now require registration must submit a registration notification within 180 days (by May 3, 2018).
Facilities that are currently registered which will now be a permitted facility must have a complete application on file within 365 days of the effective date of the regulations, except for CDDHRFs, which are allowed 545 days.
There are significant transition requirements in the revised regulations. The above is just a summary. Please review the regulations and feel free to contact us with any questions.
What is the status of my pending permit application?
For applications deemed complete by the Department before November 4, 2017, the application will be reviewed for conformance with the Part 360 regulations in effect at time of application. For a permit associated with this type of application where the application is deemed complete prior to November 4, 2017 but is issued after November 4, 2017, the permittee must comply with the new operational, closure, and post-closure requirements of the revised regulations.
Applications that are not deemed complete by the Department prior to November 4, 2017 will be subject to the requirements of the new regulations.
When do I need to install radiation monitors?
The need and location for radiation monitors will vary depending on your facility or system. Per Part-363.7.1 (a)(5)(i), landfills which accept MSW or drilling and production wastes must install and operate a fixed radiation detection device at a location which allows for the monitoring of all incoming waste. Transfer stations which transfer all waste to a landfill(s) within the State will not be required to install monitors. For permitted facilities, a radioactive waste monitoring plan and provisions for the installation of monitors will need to be approved as part of the next permit renewal or upon permit modification.
When do I need to comply with the new design and construction requirements?
Permitted landfill cells for which construction designs have not been approved by the Department prior to November 4, 2017 must comply with the new regulations, i.e. essentially any construction proposed for 2018 will need to comply with new regulations unless the design has been approved. This will include electrical resistivity testing on both the primary and secondary geomembranes, compliance with the new drainage layer calcium carbonate requirement, and other updated design requirements.
For transfer stations, composting/organic facilities and other solid waste facilities, new structural components that have not been approved by the Department prior to November 4, 2017 must comply with the new regulations.
My next landfill lateral expansion is already permitted upgradient of an existing development and will drain into the previous liner system design. Do I need to comply with the new design and construction requirements?
Assuming the construction documents for the lateral expansion are not approved by the Department by November, 4, 2017, in this case, the landfill operator must coordinate with the local Region to determine which design and construction requirements of the new regulations would be required. For instance, electrical resistivity testing can still be performed on both the primary and secondary geomembranes; however, draining a higher flow secondary collection layer into an existing geocomposite will not make sense. Therefore, the Department may waive the new secondary collection layer requirements.
If you have questions concerning a particular development, please contact us. We would be happy to discuss possible scenarios.
When do I need to start installation of the required horizontal gas collectors outlined in Part 363-7.1(e)(1)?
A permitted facility will continue under its current gas management plan until the next permit renewal or upon a permit modification being made. This requirement will need to be included in the renewal or modification application.
When do I need do I need to have a new CQA/CQC Plan and Facility Manual completed for my landfill facility?
The CQA/CQC Plan and Facility Manual update will need to be included in the next permit renewal or upon a permit modification being made.
For landfills undergoing subsequent development (i.e. liner expansion construction) after November 4, 2017, the CQA/CQC Plan will need to be modified to include any new regulatory construction requirements that are included in the development, including the liner system integrity test (electrical resistivity leak location test) for both the primary and secondary geomembranes. The CQA/CQC Plan will need to be updated and included as part of the construction document submittal to the Department.
When do I need to begin complying with the new groundwater and leachate monitoring requirements at my landfill facility?
The revised regulations incorporate the environmental monitoring plan (EMP) into the Facility Manual. New monitoring requirements, including requirements for emerging contaminants, will need to be included in the permit renewal, subsequent EMP revision for operations, or upon a permit modification being made, as part of the Facility Manual.
My landfill facility currently uses leachate storage lagoons. Do I need to upgrade to aboveground storage tanks to comply with the new regulations?
No. Existing leachate storage lagoons can remain in service as long they are maintained and properly operating in accordance with the Department’s approved procedures. Modifications to existing leachate storage lagoons to increase capacity will not be allowed by the Department.
Any leachate storage capacity designs approved after November 4, 2017 must be aboveground or on-ground storage tanks.
When will I need to comply with new Alternate Operating Cover (AOC) requirements and develop a limit for my landfill?
Landfill facilities will continue to operate under currently approved cover material management procedures until the permit is renewed or modified. A landfill facility will need to develop an AOC limit and start tracking AOC as a separate annual tonnage in accordance with Part 363-7.1(b)(4) upon renewal or modification of the existing permit.
What happens with my specific Beneficial Use Determination (BUD)?
Pre-determined BUDs that are no longer included in Part 360.12 will expire on May 3, 2018. All BUDs in effect without a specific expiration date will expire on May 3, 2018 unless a renewal request is submitted prior to that date. If a renewal application is submitted, the BUD will remain in effect until the Department either approves or denies the renewal.
When can my closed landfill transition into custodial care?
A facility that was closed in compliance with the Part 360 regulations in effect on the date of closure remain subject to all the requirements in effect at the date of closure. Therefore, older closed municipal landfills are not included under these revised regulations. However, reductions in monitoring at these closed landfills may be possible based on historic data and the site’s threat to public health and the environment.
A facility’s custodial care period begins when the owner or operator demonstrates to the Department’s satisfaction that the facility poses a significantly reduced threat to the public health and the environment and that the environmental monitoring can be reduced. Besides final cover system inspection and maintenance, environmental monitoring may possibly be reduced to one baseline monitoring round once every 5-years. Financial assurance requirements will also be required per Part 360.22.
I have a Local Solid Waste Management Plan (LSWMP) pending NYSDEC approval. How do the revised regulations affect this?
A LSWMP approved prior to November 4, 2017 remains in effect for the approved planning period, however, the reporting requirements in the new Part 366-2 replace the reporting requirements that existed prior to November 4, 2017. New Part 366-4.2 will also take effect after November 4, 2017. This provision allows the Department to declare a LSWMP to be no longer in effect if the planning unit fails to adhere to its commitments.
For a draft LSWMP submitted to the Department but not approved, the Department has until November 4, 2018 to perform a completeness review in conformance with new Part 366-4.1(a).
When does my facility need to comply with the new financial assurance requirements?
Changes have been made to financial assurance requirements as outlined in Part 360.22, including a scaled contingency factor.
If required under the new regulations, and the permitted or registered facility does not have a valid mechanism in place on the day before November 4, 2017, the facility must comply with Part 360.22 within 3 years.
For registered facilities with valid mechanisms in place prior to November 4, 2017 that are required to obtain additional financial assurance, the facility must comply with Part 360.22 within 5 years.
For permitted facilities with valid mechanisms in place prior to November 4, 2017 that are required to obtain additional financial assurance, the facility must comply with Part 360.22 at the time of permit renewal.
Are the current waiting lists for State Assistance related to Municipal Waste Reduction & Recycling and HHW Capital Projects and Municipal Waste Reduction & Recycling Education, Promotion, Planning and Coordination Projects affected by the revised regulations?
The current waiting lists will expire on November 4, 2017.
For Municipal Waste Reduction & Recycling and HHW Capital Projects: For eligible projects on the current waiting list, municipalities have 60 days from November 4, 2017 (i.e., January 4, 2018) to submit a new application, and if submitted and eligible, will retain their original pre-application date. If new application is not submitted by January 4, 2018, the project will be eliminated from the waiting list.
For Municipal Waste Reduction & Recycling Education, Promotion, Planning and Coordination Projects: If a project is on a current waiting list and is seeking reimbursement for costs already incurred, municipalities have 60 days from November 4, 2017 (i.e., January 4, 2018) to submit a new application, and if submitted and eligible, will retain their original pre-application date. If the project is seeking reimbursement for costs that will occur going forward, they must submit a new application.