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Part 369: Municipal Waste Reduction and Recycling Projects

(Statutory Authority: Environmental Conservation Law Sections 54-0705 and 56-0405)

[Effective September 27, 1997]

[page 1 of 1]

Contents:

Sec.

§369.1 General Provisions

(a) Purpose. The purpose of this Part is to establish a state assistance grant program for municipal waste reduction and recycling projects pursuant to Title 7 of Article 54 and Section 56-0405 of the Environmental Conservation Law. This program provides state assistance payments for the purpose of funding municipal waste reduction and recycling projects. Examples of eligible projects include, but are not limited to, the following:

(1) waste reduction capital, planning, and promotion costs;

(2) recycling equipment; and

(3) recycling structures and materials recycling facilities, including land, buildings, roadways, and other physical improvements;

(b) Applicability. This Part applies to any municipality applying for state assistance under Title 7 of Article 54 and Section 56-0405 of the Environmental Conservation Law except for household hazardous waste.

(c) Regulations for household hazardous waste projects are contained in Section 373-4.6 of this Title (State Assistance for Household Hazardous Waste Collection Programs).

§369.2 Definitions

Except as indicated otherwise, the following terms have the following meanings when used in this Part:

(a) "Commissioner" means the Commissioner of Environmental Conservation, or duly authorized representative.

(b) "Composting" means aerobic, thermophilic decomposition of solid organic constituents of solid waste to produce a stable, humus-like material.

(c) "Cost" means:

(1) the capital cost of a municipal recycling project, including: engineering and architectural services, surveys, plans and specifications; consultant and legal services; lands acquired pursuant to the conditions set forth in Section 369.8 of this Part, and other direct capital expenses incident to such a project, less any federal assistance or other assistance received or to be received; or

(2) the capital, planning and promotional costs associated with waste reduction projects; or

(3) other items specified in Title 7 of Article 54 and Section 56-0405 of the Environmental Conservation Law.

(4) Provided, however, that "cost" excludes any cost incurred prior to the date established in section 54-0701(1) and Section 56-0405(4) of the Environmental Conservation Law.

(d) "Department" means the Department of Environmental Conservation, or representatives thereof.

(e) "Federal assistance" means funds available, other than by loan, from the federal government, either directly or through allocation by the state for construction or program purposes pursuant to any federal law or program.

(f) "First-in-first-out" means the system of chronological ordering of projects to be reviewed based on the date of receipt of project pre-applications or applications as described in Section 369.3 by the department.

(g) "Force account work" means personal services or activities directly associated with a proposed project performed by the applicant's municipal workforce, excluding salaries of municipal chief executive or legislative officials.

(h) "Governing body" means:

(1) in the case of a county outside the City of New York, the county board of supervisors or other elective governing body;

(2) in the case of a city or village, the local legislative body thereof, as the term is defined in the municipal home rule law;

(3) in the case of a town, the town board;

(4) in the case of a public benefit corporation, the board of directors, members, or trustees thereof;

(5) in the case of a public authority, the governing board of directors, members, or trustees thereof;

(6) in the case of a Native American tribe or nation, any governing body recognized by the United States or the State of New York; (7) In the case of a school district or supervisory district, the board of education, or board of directors, members, or trustees thereof.

(i) "Letter of intent" means a written expression of interest in specific recyclable material or compost products generated by a recycling project.

(j) "Market agreement" means a legally binding document between the producer and a qualified buyer of recovered recyclable materials or compost through which each party is assigned specific rights, duties, and obligations.

(k) "Municipality" or "Applicant" means a county, city, town, village, a local public authority or public benefit corporation, or Native American tribe or nation residing within New York State, or school districts, or supervisory districts, or any combination thereof.

(l) "Public Benefit Corporation" means a corporation organized to construct or operate a public improvement, wholly within the State, the profits from which inure to the benefit of New York State or to the people thereof.

(m) "Recyclables" means a component of solid waste which exhibits the potential to be processed for repeated use or composted. Components include paper, glass, metals, plastics, garden and yard waste, food waste, and may include other elements of solid waste.

(n) "Recyclables recovery equipment" means structures, machinery or devices, singly or in combination, designed, constructed and required primarily to separate, process, modify, convert, treat, or prepare collected recyclable solid waste components, which is included as part of a recyclables recovery program so that such component materials or substances or recoverable resources may be used as a raw material for new products or for useful purposes other than for energy recovery.

(o) "Recyclables recovery program" means a program approved by the commissioner, which is undertaken by a municipality consistent with requirements of Section 120-aa of the General Municipal Law and any local solid waste management plan in effect pursuant to Subpart 360-15 of this Title, to provide for the environmentally sound recovery of recyclables, primarily involving the collection, aggregation and processing of recyclable materials for their use as raw materials for new products or for other useful purposes other than for energy recovery, through facilities planned, designed and constructed to ensure environmental protection and to maximize the potential for recyclables recovery.

(p) "Recycling project" means source separation equipment, recyclables recovery equipment, a recyclables recovery program or any combination thereof consistent with a comprehensive recycling analysis approved by the department and any local solid waste management plan in effect pursuant to subpart 360-15 of this Title.

(q) "Solid waste" has the same definition set forth in Title 5 of Article 27 of the Environmental Conservation Law but does not include hazardous waste as defined in Title 9 of Article 27 of the Environmental Conservation Law.

(r) "Source separation equipment" means municipally-owned:

(1) Containers for the source separation and temporary storage of recyclable wastes by commercial, industrial and institutional generators, and for the source separation and temporary storage of recyclable wastes by single family and multiple family dwellings prior to collection;

(2) Add-ons or trailers designed to modify collection vehicles to allow sorting and separation of collected wastes held for the purpose of recycling;

(3) Bins, sheds or other facilities for the temporary storage of materials prior to transport for the purposes of recycling; and

(4) Collection vehicles specifically dedicated to hold and transport source separated recyclables for the useful life of the vehicles.

(s) "State assistance payment" means the payment of monies by the state to municipalities or other eligible entities for undertaking, pursuant to contract, projects authorized under this Part.

(t) "Waste reduction projects" means projects undertaken to reduce the volume or toxicity of materials entering the municipal solid waste stream, by reducing the volume or toxicity of such materials at the point of generation. Waste reduction projects include planning and educational or promotional activities to increase public awareness of:

(1) methods to prevent the generation of waste;

(2) the recovery and reuse of certain materials;

(3) the use of refillable or reusable packaging;

(4) audits of procedures and practices, resulting in the elimination or reduction of materials disposed;

(5) substitution of non-toxic household products; and

(6) the promotion of backyard or on-site composting.

§369.3 Application procedures

(a) Submitting an Application. A municipality, upon the approval of its governing body, may submit a pre-application or application to the commissioner, in such form and containing such information as the commissioner may require, for state assistance toward the cost of a project which is within the State of New York and which is eligible for state assistance pursuant to this Part.

(b) Department receipt and processing of pre- applications.

(1) An applicant has the option of submitting a pre-application to secure a position on the waiting list as described in Section 369.3(b)(4); otherwise a complete final application must be submitted as required in this Part. The pre-application will consist of, at a minimum:

(i) the name and address of the applicant; including the name and telephone number of a designated project manager;

(ii) a brief description of the project;

(iii) a brief description of the goals or desired outcomes of the proposed project.

(iv) an estimated project cost and grant amount to be requested, including an itemized list of equipment, materials or services to be procured; and

(2) The department will institute pre-application procedures to facilitate the application process. These procedures may include meetings and presentations of project aspects in order for the department to gain an understanding of the project and consequently expedite review.

(3) The department will accept pre-applications for qualifying municipal waste reduction and recycling projects from applicants on an ongoing, first-in-first-out (FIFO) basis.

(4) If necessary, because of a lack of available funds, the department will establish and maintain a waiting list comprised of eligible pre-applications received by the department.

(5) A pre-applicant's position on the waiting list is determined by the date on which the department receives the submitted pre-application.

(c) Department processing of applications.

(i) Upon availability of funding, the department will contact pre-applicants in the order they appear on the waiting list, and the department will require that a complete final application be submitted within 60 calendar days.

(ii) Only applicants who submit complete final applications, as determined by the department, will be entitled to remain on the waiting list and be eligible for state assistant payments.

(iii) The department is authorized to require any additional information from an applicant as may be necessary to update a project application and maintain a position on the waiting list.

(iv) Failure to submit additional required information in a timely manner as determined by the department shall result in an applicant being removed from the waiting list and having the application disapproved.

(v) A position on the waiting list is not to be interpreted as a guarantee or promise of future funding from the state.

(d) Department authorization for application review and approval. Project application will be reviewed and may be approved, disapproved or recommended for modifications consistent with the requirements of this Part, relative to such projects.

§369.4 Application contents - All projects

(a) A municipality submitting an application for state assistance under this Part which is determined by the commissioner as having qualified for state assistance pursuant to this Part must include, in a format prescribed by the department, the information described in Sections 369.4, 369.5, 369.6, and 369.7, as applicable, and any other information required by the department.

(b) Mandate Relief Waiver Provision. In cases where certain required informational components of applications are inapplicable or irrelevant to evaluating the project application, the applicant may petition, and the department may confer a waiver of particular individual requirements on a case-by-case basis.

(c) The following application components, unless waived pursuant to Section 369.4(b) of this Part, are required to be included in all applications, regardless of project type:

(1) An application cover page signed by a duly authorized representative of the municipality consistent with Section 369.4(c)(2)(ii) of this Part. The application cover page must also designate a project contact person who is directed to answer technical or administrative questions regarding the project application.

(2) Authorization, by certified resolution or other means acceptable to the department, from the governing body of the municipality for submission of the application. Such authorization must:

(i) set forth the authority of the municipality to make an application for state assistance under this Part;

(ii) name an individual, by official title, in an official capacity who is authorized to sign the application and any subsequent contracts between the state and the municipality for state assistance under this Part;

(iii) in the event that more than one municipality submits an application for a joint municipal waste reduction and recycling project:

(a) a single application for state assistance must be executed by all participating municipalities, which will be individually and jointly responsible for the project; and

(b) such application must be accompanied by a joint resolution setting forth respective responsibilities of each of the municipalities relative to the application, project and costs; and

(iv) the required number of certified copies of the authorization will be determined by the department.

(3) A copy of the municipality's local source separation law or ordinance adopted pursuant to Section 120-aa of the General Municipal Law (GML 120-aa);

(i) if the applicant is a public authority, a public benefit corporation, a school district or a supervisory district, the applicant must provide a copy of the local laws or ordinances adopted pursuant to GML 120-aa within the applicant's service area.

(ii) if the applicant is a Native American tribe or nation, the applicant must describe waste reduction and recycling efforts undertaken within the applicant's service area.

(4) A description of how the proposed project is consistent with the State Solid Waste Management Plan, and any Local Solid Waste Management Plan or Comprehensive Recycling Analysis, completed in accordance with Part 360 of this Title.

(5) A description of efforts undertaken, whether successful, unsuccessful, or pending, to secure state, federal, or other financial assistance, direct or indirect for this project.

(6) Minority/Women's Business Enterprise and Equal Employment Opportunity (M/WBE-EEO) Requirements. In accordance with applicable federal or state law, rule, or regulation, an "affirmative action workplan" and "utilization plan" must be provided in a format prescribed by the department;

(i) "affirmative action workplan" is a document consisting of the designation of an affirmative action representative, a brief project description, and a brief affirmative action policy statement; and

(ii) "utilization plan" is a document outlining how the municipality intends to comply with M/WBE-EEO Requirements.

§369.5 Application contents - Educational projects

(a) The following application components, unless waived pursuant to Section 369.4(b) of this Part, are required in applications for a project consisting of planning, promotional, or educational expenses:

(1) A project description, including, but not limited to, the following:

(i) Overall objectives or goals of the applicant in seeking to complete this project, such as:

(a) new municipal program components to be initiated;

(b) measurable quantitative improvements in existing program components, such as:

(1) decreases in waste generation and collection;

(2) increases in participation rates;

(3) increases in sectors covered;

(c) qualitative improvements in existing program components, such as:

(1) greater program efficiency;

(2)improved services and information provided to target audiences;

(d) other types of goals or objectives.

(ii) Service area of the project, including, but not limited to, the location, population and demographic descriptions, including data on the numbers and types of households, as well as any commercial, industrial and institutional populations to be served, or projected to be served by the project.

(iii) The scope of work, detailing methods, schedules, and services required, including but not limited to:

(a) overview of work to be performed;

(b) individual work tasks defined in sufficient detail to describe the basic methods, procedures, and steps that will be followed;

(c) a listing of work products (brochures, mailers, advertise-ments, promotional items, etc.) to be developed by this project and their projected usage;

(2) A project budget, including,

(i) An itemized list of estimated eligible project costs necessary for completion of the project and acceptable to the department, including:

(a) personal services, limited to the salary of a project coordinator or other integral personnel. Any such personnel must be employees of the applicant and assigned to the project for no less than fifty percent of their full time basis;

(b) fringe benefits for municipal employees assigned to the project for no less than fifty percent of their full time basis. Any such costs must be based on a percent factor multiplied by the amount described in Section 369.5(a)(2)(i)(a) of this Part;

(c) supplies and materials that are not otherwise available at no charge from municipal supplies, requisitions or stores;

(d) plans and specifications;

(e) consultant services, in accordance with Section 369.5(a)(4) of this Part; and

(f) other direct non-capital costs.

(ii) The budget must consist of all eligible costs for the project, including any force account work consistent with Section 369.5(a)(2)(i)(a) provided by municipal employees and which are necessary for completion of the project, and acceptable to the department.

(iii) The state share of the project will be computed as fifty percent of the total eligible amount of the budget.

(iv) For any leased or rented items, an explanation of why leasing is the preferred alternative must be provided by the applicant and acceptable to the department.

(3) An implementation schedule, including:

(i) an estimated date for the start-up of the project;

(ii) the monthly or quarterly milestones outlining project progress and projected accomplishments;

(iii) the estimated duration of the project; and

(4) If the project involves subcontracting for educational, planning, public relations, or other consultant services, the following items must also be submitted:

(i) the reasons why the municipality cannot use municipal employees or volunteers to provide such services;

(ii) a listing of at least three prospective firms qualified to provide such services; and

(iii) if available, the proposed request for proposals (RFP) or solicitation document. If the RFP is not available at the time of project application, a brief scope of work outlining the work tasks to be included in the proposed RFP or other solicitation documents.

(5) Certification that all services for this project are solicited and procured in accordance with the General Municipal Law (GML) and other applicable laws, signed by a duly authorized representative of the municipality consistent with Section 369.4(c)(2)(ii).

(6) Any projects with a capital component or involving an application for state assistance for the purchase of land, equipment, structures, or facilities must also comply with the requirements of Section 369.6 of this Part.

§369.6 Application contents - Capital projects

(a) The following application components, unless waived pursuant to Section 369.4(b) of this Part, are required of applications for a project consisting of capital expenses:

(1) A project description, including, but not limited to, the following:

(i) Overall objectives or goals of the applicant in seeking to complete this project, such as:

(a) new municipal program components to be initiated;

(b) measurable quantitative improvements in existing program components, such as:

(1) increases in tonnages collected;

(2) increases in sectors covered by recyclables recovery programs; and

(3) increases in participation rates;

(c) qualitative improvements in existing waste reduction and recycling program components, such as:

(1) greater collection or processing efficiency; and

(2) improved services provided to target audiences;

(d) other types of goals or objectives.

(ii) Categories or types of recyclables or compost to be generated by the project, including tonnages of recyclable materials to be recovered.

(iii) Service area of the project:

(a) a complete narrative description and map including, if applicable, locations of central aggregation or processing facilities and any satellite stations or equipment; and

(b) location, population and demographic descriptions, including data on the numbers and types of households, as well as any commercial, industrial and institutional facilities to be served, by the project.

(iv) Major components and subsystems of the project, detailing methods, schedules, equipment, and services required for each subsystem, including but not limited to:

(a) source separation methods, including household separation prior to curbside pickup, and separation of commingled recyclables at a materials recovery facility, if any;

(b) collection routes, schedules, equipment and personnel required for recyclable materials or compost collection and aggregation;

(c) processing design, including:

(1) design and operational capacities of the project and component equipment;

(2) number and design of structures;

(3) overview of all existing and planned equipment;

(4) floor plans and equipment layout; and

(5) description of basic processes of all equipment;

(d) methods of preparing collected recyclables for market, such as crushing, baling, chipping, granulating, etc; and

(e) methods to be employed for protecting recyclables from contamination and deterioration, such as protecting newsprint from sun, precipitation and contamination from other recyclable or non-recyclable materials.

(2) A project budget, including:

(i) An itemized list of equipment, materials, spare parts, services, etc. for which state funding is requested, including, for each item on the list:

(a) estimated costs;

(b) brief summaries of use;

(c) projected purchase dates; and

(d) vendor specifications and equipment brochures, or bid specifications issued by the municipality;

(ii) An estimate of other eligible project costs necessary for completion of the project, including:

(a) engineering and architectural services;

(b) surveys;

(c) plans and specifications;

(d) legal and consultant services;

(e) land acquisition;

(f) other direct capital costs; and

(g) force account work consistent with Section 369.6(a)(2)(iii) of this Part and limited to no more than 15 percent of total project cost, as approved by the department prior to the initiation of the project;

(iii) force account work necessary for the project, and acceptable to the department, is limited to the following:

(a) site preparation;

(b) facility construction; and

(c) engineering, architectural, legal, and other professional services;

(iv) for any force account work, an explanation of why using a municipal work force is the preferred alternative must be provided by the applicant and acceptable to the department;

(v) For any leased or rented items, an explanation of why leasing is the preferred alternative must be provided by the applicant and acceptable to the department; and

(vi) The budget must consist of all eligible costs for the project. The state share of the project will be computed as fifty percent of the total eligible amount of the budget.

(3) A description of the marketing procedures to be utilized for sale or distribution of recyclables or compost. Such description must include the elements outlined in Section 369.7 of this Part.

(4) A description of processes and procedures to be utilized for minimizing the generation of non-marketable residues, and a description of processes to be utilized for the handling and disposing of residues.

(5) A brief description of the public education and promotion program to be utilized to facilitate maximum public participation in the project.

(6) An implementation schedule, including:

(i) a timetable for the completion of various phases of the project; and

(ii) the estimated duration of the useful life of the project and components, thereof.

(7) Certification as to title of property site, including a legal description in a format prescribed by the department attesting to the municipality's ownership of all sites to be used in this project.

(i) This requirement applies if the project, or a component thereof, includes buildings or structures, or if a fixed site will be used as a drop-off, collection, or processing point.

(ii) This requirement does not apply to projects consisting only of curbside containers or collection vehicles.

(iii) If the municipality does not own the site(s) to be used, and does not intend to acquire the site(s), documentation must be provided as evidence that the municipality has authorization to utilize and maintain the site(s) for the useful life of the project (i.e. lease agreement or similar document).

(iv) If the project involves a land acquisition component, a valid purchase agreement may be substituted for this requirement. However, no payment will be allowed for any project under this Part until all land acquisition necessary for the project is completed and documented.

(8) A description of efforts undertaken to meet all applicable permit requirements under local, state, or federal laws, rules or regulations, including a description of efforts undertaken to comply with the requirements of the State Environmental Quality Review Act (SEQRA), if applicable.

(9) If the project involves composting, a Compost Quality Management Plan, consisting of all of the following:

(i) if applicable, an approved permit issued by the department in accordance with Subpart 360-5 of this Title, for the project; or a copy of the permit application cover page submitted to the department for the project;

(ii) a brief description of the source, and quantity of solid waste to be processed, including seasonal variations in the waste type and quantity and the type of composting method to be used;

(iii) a brief summary of testing procedures conducted on the input waste components to be composted, and the results of such testing;

(iv) a brief description of the source, quality, and expected quantity of any bulking agent, amendment, ad mixture, or seed material;

(v) a brief description of processes to segregate non-compostable components of the waste stream, such as recyclables, household hazardous waste, and other contaminant materials from the compostable materials;

(vi) a brief description of the processes to reduce pathogenic organism content and vector attraction;

(vii) a brief description of the training to be provided to project operation personnel; and

(viii) a brief description of the expected use, and method for removal of finished compost from the site.

(10) A description of efforts undertaken by the municipality to minimize the adverse impacts of the project, or any components thereof, on racial or ethnic minority, low-income, or disadvantaged persons or communities.

(11) A description of efforts undertaken by the municipality to minimize adverse impacts of the project, or any components thereof, on small businesses.

(12) A demonstration of the extent to which the full avoided costs of proper collection, transportation and disposal of source separated recyclables are, or are projected to be, greater than the cost of collection, transportation and sale of said recyclables, less the amount received from the sale of said recyclables;

(13) Certification that all equipment and construction materials/services are purchased in accordance with General Municipal Law (GML) and other applicable laws, signed by a duly authorized representative of the municipality consistent with section 369.4(c)(2)(ii).

§369.7 Application contents - Marketing component

(a) In accordance with Section 369.6 of this Part, a municipal recycling project application must include a description of marketing procedures. These procedures must address two objectives:

(1) empowering applicants to successfully capture and divert the maximum feasible quantities of recyclables through vigorous recycling programs that conserve precious resources and avoid unnecessary use of disposal facilities; and

(2) ensuring that applicants generate dependable supplies of high quality recyclable materials for use as raw materials by manufacturers, in order to promote a dynamic secondary materials processing and manufacturing industry in the state.

(b) The description of marketing procedures required in Section 369.7(a) must include an estimate and overview of future recyclable product or compost product marketing details, including:

(1) tonnages to be marketed;

(2) delivery schedules;

(3) methods of transportation; and

(4) if applicable, potential expenses or remuneration.

(c) The description of marketing procedures must also include a demonstration, to the satisfaction of the department, of the applicant's proficiency and expertise in marketing recyclable products or compost products. Such demonstration can be made by submitting any one of the following options for each recyclable product or compost product to be generated by the project:

(1) Option 1. An executed market agreement of at least two years' duration:

(i) covering all recyclable material or compost to be generated by the project; and

(ii) directing the recyclable product to the highest value end use practical; or

(2) Option 2. One-year market agreement and six month marketing history

(i) an executed market agreement of at least one year's duration with an option to renew;

(a) covering all recyclable material or compost to be generated by the project; and

(b) directing the recyclable product to the highest value end use practical; and

(ii) a six month marketing history of recyclables documenting, to the satisfaction of the department, evidence that the applicant is marketing high quality recyclables, including:

(a) delivery schedules;

(b) names(s) of market outlets or vendors;

(c) tonnage of recyclables delivered; and

(d) if applicable, cost or remuneration; or

(3) Option 3. Month-to-month market agreement and one year marketing history

(i) an executed market agreement of at least one month's duration with a month-to-month option to renew;

(a) covering all recyclable material or compost to be generated by the project; and

(b) directing the recyclable product to the highest value end use practical; and

(ii) a one-year marketing history of recyclables documenting, to the satisfaction of the department, evidence that the applicant is marketing high quality recyclables, including:

(a) delivery schedules;

(b) names(s) of market outlets or vendors;

(c) tonnage of recyclables delivered; and

(d) if applicable, cost or remuneration; or

(4) Option 4. Letters of intent and two year marketing history

(i) letters of intent from at least two market outlets or vendors indicating their willingness to accept the applicant's recyclables or compost during project duration;

(a) covering all recyclable material or compost to be generated by the project; and

(b) directing the recyclable product to the highest value end use practical; and

(ii) a two-year marketing history of recyclables documenting, to the satisfaction of the department, evidence that the applicant is marketing high quality recyclables, including:

(a) delivery schedules,

(b) names(s) of market outlets or vendors

(c) tonnage of recyclables delivered; and

(d) if applicable, cost or remuneration; or

5) Option 5. Letters of intent and a marketing plan

(i) letters of intent from at least two market outlets or vendors indicating willingness to accept the applicant's recyclables or compost during the project duration;

(a) covering all recyclable material or compost to be generated by the project; and

(b) directing the recyclable product to the highest value end use practical;

(ii) the development of a "target specification" establishing quality assurance criteria, including but not limited to:

(a) acceptable and desirable product form(s);

(b) acceptable and desirable product qualities;

(c) acceptable and desirable product quantities; and

(d) provisions to keep contaminant levels present in the material at or below allowable levels;

(iii) in developing the target specification, the applicant must survey potential market outlets for information regarding quality parameters of market outlets, including the parameters identified in Section 369.7(c)(5)(i) of this Part. The number of potential market outlets to be surveyed is as follows:

(a) for municipalities with populations less than 100,000 - at least two market outlets,

(b) for municipalities with populations greater than 100,000 - at least three market outlets,

(c) for municipalities with populations greater than 500,000 - at least four market outlets, one of which must be a manufacturing establishment, or agent thereof;

(iv) a detailed description of the municipality's actions to be undertaken to meet the recyclable material's established target specification; and

(v) an identification of current and future restrictions to market development and a discussion of how such restrictions might be overcome; or

(6) Option 6. Other information

Other detailed documentation acceptable to the department on an individual, case-by-case basis, including reasons why each of the above options could not be utilized by the applicant.

(d) For projects where the recyclable products or compost products will be marketed to another municipality ("market-municipality"), the applicant must provide the following:

(1) a commitment letter from the "market-municipality" stating the terms by which the "market-municipality" will accept recyclables generated by the applicant's project (i.e. materials description, tonnages, delivery schedules, and methods of transportation, and if applicable, remuneration), and

(2) one of the items from Section 369.7(c) of this Part describing the capability of the "market-municipality" to market or use said recyclables.

(e) For projects where the municipality intends to act as its own market, as in the case of compost, wood chips, or glass cullet (e.g. using compost for municipal parks or distribution to residents), the following information must be provided by the applicant:

(1) a resolution passed by the governing body stating such intentions; and

(2) in cases where a material, such as glass cullet, compost or paper, has a potentially higher value end use market, reasons as to why the higher value end use was not chosen;

(i) in cases, where a municipality plans to undertake a composting project, the following will not be considered an approvable market:

(a) use of finished compost as daily landfill cover;

(b) exclusive use of the finished compost product as landfill final cover; or

(c) landfilling of final compost.

§369.8 Application review criteria

In reviewing applications for state assistance for municipal recycling and waste reduction projects, the commissioner shall consider the following criteria in determining whether the application qualifies for state assistance:

(a) the efforts undertaken to date by the municipality to implement a mandatory source separation law or ordinance required pursuant to Section 120-aa of the General Municipal Law;

(b) the extent to which the project is consistent with the statewide solid waste reduction and recycling goals established under the State Solid Waste Management Plan, pursuant to Section 27-0103 of the Environmental Conservation Law;

(c) the extent to which the project is consistent with the Local Solid Waste Management Plans developed pursuant to Section 27-0107 of the Environmental Conservation Law;

(d) the adequacy of the municipality's waste reduction or recycling program, including education and marketing components;

(e) its relationship to the needs and plans of other municipalities within the applicant's planning unit;

(f) the suitability and feasibility of the project in relation to the recycling program and the area to be served;

(g) the proportion of solid waste for which waste reduction or recyclables recovery is contemplated;

(h) the potential for coordination and consolidation of solid waste management practices among municipalities within specified areas, regions or planning units;

(i) the implementation of the system or components thereof and their expected terms of usefulness, singly or in combination;

(j) the present and projected population of the applicant's service area during the useful life of the project;

(k) rates and composition of solid waste generation within the applicant's service area during the useful life of the project;

(l) the potential or contemplated markets for recovered recyclables from this project and the extent to which the project's full avoided costs of proper collection, transportation and disposal of source separated recyclables are, or are projected to be, greater than the cost of collection, transportation and sale of said recyclables less the amount received from the sale of said recyclables;

(m) the intergovernmental arrangements integral to the project;

(n) the non-governmental arrangements integral to the project; including the extent to which small businesses are affected by this project;

(o) the urgency of the project, in relationship to all recyclables recovery program needs in the state;

(p) the present and projected land use on and around the project site;

(q) the environmental soundness of the project, including assurance that the project will meet all applicable laws, criteria, and rules and regulations; and

(r) the completeness of the application and related documentation.

§369.9 Contracting procedures

(a) Upon approval by the department of a project application, a municipality must enter into a contract with the department in order to obtain state assistance.

(b) The commissioner may enter into contracts with municipalities to provide state assistance toward the cost of qualifying municipal waste reduction and recycling projects.

(c) In connection with each contract, the commissioner will keep adequate records of the amount of the payment by the state and of the amount of federal assistance, if any, received by the municipality. Such records will be retained by the commissioner and will establish the basis for recalculation of the state assistance payment.

§369.10 Contract provisions

Contracts for state assistance between the department and a municipality must include the following provisions:

(a) an estimate of the costs of the project, and the amount of state assistance to be provided, as determined by the commissioner;

(b) a starting date and termination date of the contract;

(c) an agreement by the commissioner to make state assistance payments toward the cost of the project by periodically reimbursing the municipality, during the progress of project development or following completion of the project as may be agreed upon by the parties, in an amount not to exceed the amount established elsewhere in this Part; and

(d) an agreement by the municipality:

(1) to provide for the payment of the municipality's share of the cost of the project;

(2) to proceed expeditiously with and complete the project, as approved by the commissioner;

(3) to operate and maintain the municipal waste reduction or recycling project in accordance with all applicable laws, rules and regulations, including requirements set forth in the contract attachments known as "Appendix A - Standard Clauses for all New York State Contracts" and "Appendix B - Standard Clauses for all New York State Department of Environmental Conservation Contracts";

(4) to continue, upon evaluation of its effectiveness, operation of the project and not to dispose of the project or any portion thereof, or change its use without the written approval of the commissioner;

(5) to assume the full cost of any continued implementation and operation of the project after expiration or completion of the state assistance contract;

(6) to maintain adequate records of the progress and expenditures made pursuant to the project and to make such records available to the department upon request;

(7) to make timely progress reports, and a final report, as required by the department, and in a format prescribed by the department, on the progress and accomplishments of the project, including details of the marketing of recyclable products or compost products;

(8) to complete annual surveys conducted by the department documenting tonnages of recyclable materials collected and amounts of solid waste reduced within the boundaries of the municipality;

(9) to not sell, lease, or otherwise dispose of, or use lands, equipment, or facilities acquired under this Part for any purpose inconsistent with the project under which such land, equipment, or facilities is acquired;

(10) to repay, within one year of notification by the commissioner, any state assistance made toward the cost of the project or an equitable portion of such monies declared appropriate by the commissioner, if the municipality:

(i) fails to complete the project as approved;

(ii) fails to continue timely implementation and operation of the project;

(iii) disposes of the project, or any portion thereof, without the prior written approval of the commissioner; or

(iv) changes the use of the project, or any portion thereof, without the prior written approval of the commissioner.

(v) no repayment will be required where the commissioner determines that such failure, disposition or change of use of the project, or any portion thereof, was immediately necessary to protect public health and safety;

(11) to apply for and make reasonable efforts to secure federal assistance for the project; and

(12) to allow reasonable access to department personnel for inspection and review of the project and all pertinent records.

§369.11 Payment procedures

(a) All permits or registrations required under the Environmental Conservation Law or other state and federal laws, rules, and regulations must be obtained by the municipality before payment of any funds by the department is allowed.

(b) Upon execution and implementation of a contract for state assistance for a municipal waste reduction and recycling project, the municipality may periodically request up to 50 percent reimbursement for the eligible costs of completed portions of such project.

(1) Such payment requests are to be submitted to the department in a format prescribed by the department and must contain all information required by the department; and

(2) The department may require that such requests be accompanied by a summary detailing recyclable materials or compost materials marketing accomplishments.

(c) Payment requests may be submitted periodically for those portions of the waste reduction and recycling project which have been completed in accordance with the terms and conditions of the contract.

(d) Upon receipt of a partial payment request, the department will review the request in a timely manner for conformance with the terms and conditions of the state assistance contract. Department review will include, at a minimum, the following:

(1) compliance with the scope of work and implementation schedule specified in the contract;

(2) progress reports and work actually completed as compared with those tasks for which reimbursement is being requested;

(3) results of on-site inspections and/or audits by the department;

(4) compliance with minority and women's business enterprises and equal employment opportunity requirements; and

(5) compliance with all other terms and conditions of the state assistance contract.

(e) Upon completion of all reviews, the department will approve, disapprove or modify the amount of funds requested for reimbursement.

(f) Upon approval of a partial payment request by the department, the municipality will be reimbursed in a timely manner for all the costs approved. Such payment will not exceed the approved amount.

(g) The department may retain up to 10 percent of every approved non-final state assistance payment amount until final payment approval by the department.

(h) The municipality is required to submit a "certificate of completion," in a format prescribed by the department, accompanying the final payment request for the project. The final payment request will be considered incomplete until the department receives the certificate of completion.

(i) The department will conduct a final inspection of the project before making a determination for final approval. Final payment under the state assistance contract shall be made only after final approval by the department. In no case will the total of all partial payments and the final payment exceed the total state assistance amount specified in the contract.

§369.12 Restrictions on state assistance

(a) Department approval. State assistance toward the cost of municipal recycling or waste reduction projects will be made in accordance with this Part, and with the approval of the commissioner, pursuant to an approved contract or contracts.

(b) State assistance toward the cost of a waste reduction or municipal recycling project:

(1) must not exceed fifty percent of the eligible project cost; and

(2) in the aggregate such payments must not exceed two million dollars; and

(3) costs are subject to final computation and determination by the commissioner upon completion of the project, and must not exceed the maximum eligible cost set forth in the contract.

(c) No monies may be paid to municipalities for projects, or portions of projects, if the recyclables or compost collected or processed by the project are not marketed to the satisfaction of the department.

(d) No monies shall be expended for municipal waste reduction or recycling projects except pursuant to an appropriation.

§369.13 Severability

If any provision of this Part, or its application to any person or circumstance is held invalid, the remainder of this Part, and the application of those provisions to persons or circumstances other than those to which it is held invalid, shall not be affected thereby.

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