NY.gov Portal State Agency Listing Search all of NY.gov
D E C banner
D E C banner

Disclaimer

The New York State Department of Environmental Conservation has added a link to a translation service developed by Microsoft Inc., entitled Bing Translator, as a convenience to visitors to the DEC website who speak languages other than English.

Additional information can be found at DEC's Language Assistance Page.

Subpart 360-9: State Assistance and Loans For Municipal Landfill Closure Projects

(Statutory authority: Environmental Conservation Law, Sections 1-0101, 3-0301, 8-0113,19-0301, 19-0306, 23-2305, 23-2307, 27-0101, 27-0106, 27-0107, 27-0109, 27-0305, 27-0703, 27-0704, 27-0705, 27-0911, 27-1317, 27-1515, 52-0107, 52-0505, and 70-0107)

[Effective Date December 31, 1988]

[Amendment Dates:
Revised Effective March 27, 1990; with promulgation of new Subpart 15: Grants for Comprehensive Solid Waste Management Planning.
Revised Effective May 28, 1991; With repeal of existing Subpart 9 and promulgation of new Subpart 9: State Assistance for Municipal Landfill Closure Projects
Revised Effective January 25, 1992; With repeal of existing Subpart 10 and promulgation of new Subpart10: Regulated Medical Waste Storage, Transfer, and Disposal, and new Subpart 17 Regulated Medical Waste Treatment Facilities.
Revised/Enhanced Effective October 9, 1993; with adoption of amendments to existing Subparts 1 through 17
Revised Effective December 14, 1994; with adoption of amendments to existing Subpart 9: State Assistance for Municipal Landfill Closure Projects
Revised Effective January 14, 1995; With repeal of existing Subpart 14 and promulgation of new Subpart 14: Used Oil.
Revised Effective November 26, 1996; With adoption of amendments to existing Subparts 1, 2, 3, 7, 11, 14, and 17

Revised Effective September 29, 1997; With adoption of amendments to existing Subpart 9
Revised Effective November 21, 1998; With adoption of amendments to existing Subpart 2
Revised Effective November 24, 1999; With adoption of amendments to existing Subparts 2, 3, 4, 5, 9, 11, 14, and 16]

[This is page 1 of 1 of this Subpart. A complete list of Subparts in this regulation appears in the Chapter 4 contents page. A list of sections in this subpart appears below.]

Contents:

Sec.

§360-9.1 Purpose and applicability.

(a) Purpose.

(1) Title 5 of article 54 of the Environmental Conservation Law provides money in the form of State assistance and loans to eligible municipalities to help pay for municipal landfill closures. For a municipality with a population of 3,500 or more, as determined by the most recent Federal decennial census, the maximum total of State assistance payments shall be either 50 percent of the approved project cost or $2,000,000, whichever is less. For a municipality with a population less than 3,500, as determined by the most recent Federal decennial census, the maximum total of State assistance payments shall be either 75 percent of the approved project cost or $2,000,000, whichever is less. A municipality with a population, as determined by the most recent Federal decennial census, of less than 3,500 may also be eligible for an interest-free loan to a maximum of the unfunded eligible cost portion of the project. The purpose of this Subpart is to establish eligibility requirements, application procedures and procedures the department will follow to implement the State assistance and loan programs.

(2) Title 4 of article 56 of the Environmental Conservation Law provides money in the form of State assistance to eligible municipalities to help pay for municipal landfill closure projects. For a municipality with a population of 3,500 or more, as determined by the most recent Federal decennial census, the maximum total of State assistance payments shall be either 50 percent of the approved project cost or $2,000,000, whichever is less. For a municipality with a population less than 3,500, as determined by the most recent Federal decennial census, the maximum total of State assistance payments shall be either 90 percent of the approved project cost or $2,000,000, whichever is less.

(b) Applicability. This Subpart applies to applications for State assistance or loans for municipal landfill closure projects funded by the Environmental Protection Fund and Environmental Quality Bond Act of 1986 as provided for in title 5 of article 54 of the Environmental Conservation Law (ECL) and to applications for State assistance for municipal landfill closure projects funded by the Clean Water/Clean Air Bond Act of 1996 as provided for in title 4 of article 56 of the ECL. Monies available from the Environmental Protection Fund, the Environmental Quality Bond Act of 1986 and the Clean Water/Clean Air Bond Act of 1996 may only fund eligible project costs incurred before the date specified in Environmental Conservation Law, section 54- 0505(2) and Environmental Conservation Law, section 56-0403.

(c) Nothing in this Subpart shall be construed to limit or restrict any powers of the commissioner or any other agency pursuant to any other provision of law.

§360-9.2 Definitions.

(a) Definitions from Environmental Conservation Law. As used in this Subpart, the following terms shall be interpreted with the meanings ascribed to them in sections 54-0101, 54-0501 and 56-0403 of the Environmental Conservation Law.

(1) Cost means the capital cost of an approved municipal landfill closure project including engineering and architectural services, plans and specifications, consultant and legal services, and other direct capital expenses incident to such project, less any federal, State or other assistance for such project received or to be received.

(2) 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.

(3) Governing body means:

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

(ii) in the case of a city or village, the local legislative body thereof, as the term is defined in the Municipal Home Rule Law;

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

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

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

(vi) in the case of a not-for-profit corporation, the board of directors thereof or such other body designated in the certificate of incorporation to manage the corporation;

(vii) in the case of a Native American tribe, any governing body recognized by the United States or the State of New York; and

(viii) in the case of a State agency, the commissioner of the State agency.

(4) Municipality means a local public authority or public benefit corporation, a county, city, town, village, State agency, State public authority, State public benefit corporation, or Native American tribe or nation residing within New York State, or any combination thereof. However, for purposes of expenditures of the Clean Water/Clean Air Bond Act of 1996, a municipality does not include a State agency, a State public authority, or State public benefit corporation.

(5) Municipal landfill closure project means activities undertaken to close, including by reclamation, a landfill owned or operated by a municipality to achieve compliance with regulations promulgated by the department.

(6) Not-for-profit corporation means a corporation formed pursuant to the Not-for-Profit Corporation Law and qualified for tax-exempt status under the Federal Internal Revenue Code.

(7) Solid waste shall have the definition set forth in title 7 of article 27 of the Environmental Conservation Law but shall not include hazardous waste as defined in title 9 of article 27 of the Environmental Conservation Law.

(8) State assistance payment means monies paid by the State to reimburse municipalities for eligible costs incurred for projects authorized by the Environmental Protection Act to preserve, enhance, restore and improve the quality of the State's environment.

(b) Other definitions. These terms have the following meanings when used in this Subpart.

(1) Approval means a formal written department determination of compliance with all applicable portions of this Subpart.

(2) Contiguous means having a common boundary or being hydraulically connected, as determined by the department.

(3) Failure to make a loan payment means failure to make a loan payment on or before the date required in the loan contract described in section 360- 9.11 of this Subpart.

(4) Landfill closure site means a site as defined in section 360-1.2(b)(154) of this Part or a landfill as recognized by the department.

(5) Loan payment means debt service payment on a loan provided by the State in accordance with the Environmental Protection Act.

(6) Reclamation means department-approved landfill reclamation activity as defined in section 360-2.18(a)(1) of this Part.

(7) Reclassification investigation means an investigation of sufficient scope to enable the department to change the registry classification of a Classification 2a landfill site.

(8) Registry means the most recent publication of New York State Department of Environmental Conservation's Inactive Hazardous Waste Disposal Sites in New York State, Annual Report and any subsequent updates.

(9) State assistance means funds available, other than by loan, from the State government for construction or program purposes pursuant to any State law or program.

§360-9.3 Application eligibility.

A municipality may apply for State assistance, a loan, or State assistance and a loan if the landfill closure site meets the following requirements:

(a) Ownership. The site must be municipally owned or operated and the municipality must have full responsibility for all closure and post-closure activities.

(b) The loan applicant must have a population, as determined by the most recent Federal decennial census, of less than 3,500.

(c) Additional requirements. The following conditions must be met:

(1) the landfill closure site is not classified as a Classification 1 or Classification 2 in the Registry;

(2) a municipality with a Classification 2a site in the Registry is eligible to apply for State assistance if the municipality has submitted a complete reclassification investigation report to the department.

(i) A landfill closure site classified as Classification 2a is not eligible for State assistance unless it is reclassified to Classification 3, Classification 4, Classification 5 or delisted.

(ii) If, six months after the date of application, the site is not reclassified to a Classification 3, Classification 4 or Classification 5 or delisted, the application status will be reviewed by the department. If the site remains a Classification 2a due entirely to the department's delay in reclassification, then the applicant will be granted an extension up to an additional six months for reclassification; otherwise the application becomes invalid.

(d) Applicable regulations. The municipal landfill closure project must comply with regulations for new facilities, as set forth in this Part, which are in effect six months prior to the application for State assistance. A variance granted in accordance with section 360-1.7(c) of this Part, will not make a municipal landfill closure project ineligible for State assistance.

(e) Obligation to close. The municipality is obligated to close the landfill by a specific date. The obligation must be in the form of:

(1) an administrative order;

(2) a court order; or

(3) a permit condition.

The municipality must be in substantial compliance with the obligation to close. The obligation to close must include a requirement that the landfill closure site stop receiving solid waste within 18 months following the approval date of the application for State assistance.

(f) Closure investigation report. A closure investigation report must be completed for municipal solid waste landfills. A hydrogeologic report must be completed for municipal construction and demolition debris landfills. This report must comply with regulations for new facilities, as set forth in this Part, that are in effect six months prior to the application for State assistance.

(g) Waiver of assistance. Upon project approval for State assistance, a loan, or State assistance and a loan under this Subpart, the municipality must waive any right to assistance under section 27-1313 of the Environmental Conservation Law.

(h) Phased landfill closure. The department may allow a municipality to close a landfill site in phases. Each phase will be a municipal landfill closure project for construction purposes only. A phased landfill closure project:

(1) does not entitle the municipality to State assistance beyond the $2,000,000 maximum that the municipality can receive for the entire site;

(2) may be approved by the department if the closure project area is noncontiguous to any other landfill waste mass or, if contiguous to another waste mass, such mass has been closed in accordance with regulations that were in effect at the time of its closure; and

(3) must have all subsequent phases closed in accordance with regulations for new facilities, as set forth in this Part, that are in effect six months before the phase becomes inactive.

§360-9.4 Application procedure.

An eligible municipality may apply to the department for State assistance pursuant to Environmental Conservation Law, section 54-0501, et seq. and/or Environmental Conservation Law, section 56-0401, et seq. and an eligible municipality may apply to the department for a loan or State assistance and a loan pursuant to Environmental Conservation Law, section 54-0501 et seq. The application must be submitted according to the following procedure:

(a) Application form. The application must be on forms provided by the department, and must be accompanied by the following:

(1) a copy of the closure investigation report required under section 360- 9.3(f) of this Subpart, and correspondence indicating the approval status of the report;

(2) a copy of the administrative order, court order or permit condition containing the obligation to close the landfill site by a specified date that conforms to section 360-9.3(e) of this Subpart;

(3) a municipal landfill closure project work plan outlining the tasks to be completed and tasks already completed, a timetable for the proposed or actual completion of each task, and estimated or actual costs for each task;

(4) a certified copy of the governing body's authorization for submission of the application which contains the following information:

(i) name of governing body;

(ii) name of individual authorized to sign application; and

(iii) certification by recording officer;

(5) a statement that the landfill site is not currently a Classification 1 or Classification 2 in the Registry. A site classified as Classification 2a in the Registry must verify that a complete reclassification investigation has been submitted to the department;

(6) an affirmative action workplan which details the applicant's commitment to the affirmative action program, to include: designation of an affirmative action representative, a municipal policy statement and a project description;

(7) a statement that the landfill closure project area will not have a landfill constructed on it; and

(8) a statement that post-closure monitoring and maintenance of the landfill site will be implemented in accordance with section 360-2.15(i) of this Subpart.

(b) [Reserved]

(c) Central office submission. The original application package for State assistance must be submitted to:

Director

Division of Solid and Hazardous Materials

New York State Department of Environmental Conservation

625 Broadway

Albany, NY 12233-7250

Attn: Landfill Closure State Assistance/Loan Program Application

(d) Regional office submission. One complete copy of the application package must be submitted to the regional solid waste engineer in the region in which the landfill closure project is located.

§360-9.5 Department review.

The department will use the procedures in this section to determine the order in which it will review and approve applications for State assistance pursuant to Environmental Conservation Law, section 54-0501, et seq. and/or Environmental Conservation Law, section 56-0401, et seq. and loans or State assistance and loans pursuant to Environmental Conservation Law, section 54- 0501 et seq.

(a) Receipt of applications. Date of receipt of approvable applications will be based upon the date received in the Albany, NY office or the date 18 months before the stop accepting waste date set forth in the facility's obligation to close, whichever is later. Applications received on a Saturday, Sunday, a holiday when State offices are closed, or after 4:30 p.m. on any business day will be considered received on the next business day.

(b) Initial review. The department will do an initial review of all applications for completeness.

(c) Award of State assistance and loans. Applications for State assistance and loans will be funded in the following order:

(1) any application for State assistance which was partially funded by the department under the Landfill Closure State Assistance Program that became effective September 1, 1990 which, due to insufficient funds, was not funded up to the maximum total State assistance authorized by section 360-9.9(e) of this Subpart;

(2) an increase in State assistance from 50 percent of eligible costs to 75 percent of eligible costs for applicants for State assistance that have or had contracts under the Landfill Closure State Assistance Program that became effective September 1, 1990, pursuant to Environmental Conservation Law, section 54-0501, et seq. ; and an increase in State assistance from 75 percent of eligible costs to 90 percent of eligible costs for applicants for State assistance that have or had contracts under the Landfill Closure State Assistance Program for only those eligible costs incurred after April 1, 1993, pursuant to Environmental Conservation Law, section 56-0401, et seq., and which have a population, based on the most recent Federal decennial census, of less than 3,500, provided, however, that:

(i) in no event shall the State assistance payments exceed a total of $2,000,000; and

(ii) if available funds are insufficient, the department will provide State assistance in the order that approvable applications were initially received;

(3) applicants for loans that have or had existing contracts under the Landfill Closure State Assistance Program that became effective September 1, 1990;

(i) if available funds are insufficient, the department will provide loans in the order that the approvable applications for State assistance were initially received;

(4) all other applications for State assistance and loans;

(i) if available funds are insufficient, the department will provide State assistance and loans in the order of initial date of receipt of approvable applications.

§360-9.6 Eligible and ineligible costs for State assistance payments and loans.

(a) Eligible costs. Reasonable costs directly related to a municipal landfill closure project will be considered eligible. Eligible cost include the following to the extent that they are necessary for actual project construction:

(1) costs for preparation of a closure investigation report;

(2) costs for preparation of a reclassification investigation - this cost will be considered eligible for sites that were classified in the Registry as Classification 2a and have become eligible for State assistance as a result of the reclassification investigation;

(3) costs for engineering and architectural services;

(4) costs for preparation of plans and specifications;

(5) costs for consultant services;

(6) costs for legal services

(7) costs for closure construction; and

(8) costs for other direct capital expenses incident to the municipal landfill closure project as approved by the department.

(b) Ineligible costs. The following costs incurred in the design and/or implementation of a municipal landfill closure project are not eligible for State assistance:

(1) costs incurred to perform the municipal landfill closure project if it is not fully implemented in accordance with plans and reports approved by the department;

(2) costs incurred in preparing and submitting an application under title 5 of article 54 of the Environmental Conservation Law or Environmental Conservation Law, section 56-0403;

(3) costs for which the commissioner determines funds are not available;

(4) post-closure monitoring and maintenance costs associated with a municipal landfill closure project;

(5) costs for activities associated with development of alternative waste disposal sites or techniques;

(6) costs incurred before the date specified in the Environmental Conservation Law, section 54-0505(2) or Environmental Conservation Law, section 56-0403(2);

(7) costs incurred if the department determines that the landfill closure site is a Classification 1 or Classification 2 in the Registry;

(8) costs incurred to perform the municipal landfill closure project that are inconsistent with or in violation of the procedures and requirements for the State assistance program under title 5 of article 54 of the Environmental Conservation Law, Environmental Conservation Law, section 56-0403, or other applicable laws;

(9) costs associated with a municipal landfill closure project that does not comply with the landfill closure requirements for new facilities as set forth in Part 360 of this Title, that is in effect six months prior to the application for State assistance;

(10) any portion of the cost for which Federal or other specific assistance has been or will be received; and

(11) costs for activities not approved by the department.

§360-9.7 State assistance progress reviews and reimbursement schedule.

(a) Approval process. State assistance will be approved only for municipal landfill closure projects that include plans for closure, post-closure and construction that conform to the requirements for new facilities as set forth in Part 360 of this Title, that are in effect six months prior to the application for State assistance. (b) Requirements for reimbursement. A municipality that has entered into a contract with the commissioner in accordance with section 54-0509 of the Environmental Conservation Law must:

(1) perform closure work according to the schedule(s) included in the contract;

(2) file progress reports at intervals stipulated in the contract;

(3) file, on forms prescribed by the department, for reimbursement at each payment milestone identified in the contract documents; and

(4) document and certify, when filing for reimbursement, that the municipality has paid all costs concerned by submitting necessary copies of the project's management, accounting, procurement and property control records.

(c) Department review. The department will:

(1) review reimbursement requests and either approve or deny payment;

(2) notify the municipality of denial of payment, with an explanation of the reasons for denial; and

(3) process reimbursement requests expeditiously.

(d) Revision of award amount. The amount awarded through State assistance is subject to revision pending a final computation and determination by the commissioner. The approved project cost will be reduced by the amount of any specific grants for the project received by the municipality from any source.

§360-9.8 Loan approvals.

(a) Loan requirements. A municipality eligible for State assistance payments pursuant to section 360-9.7 of this Subpart, and that has a population, as determined by the most recent Federal decennial census, of less than 3,500 is also eligible for an interest-free loan to a maximum of the unfunded eligible cost portion of the project. The loan will not be closed prior to processing of the final reimbursement request as described in section 360-9.9 of this Subpart.

(b) Loan amount. The loan amount will not exceed the eligible cost portion of the project not funded by State assistance payments.

(c) Loan schedule. The loan must be repaid in equal installments, and over a term not to exceed 20 years.

§360-9.9 State assistance contract.

Upon approval of a State assistance application, a municipality must enter into a contract with the commissioner on a timely basis. The contract must include but not be limited to:

(a) provisions for implementation of the approved municipal landfill closure project and any amendments;

(b) provisions for reimbursement including:

(1) a current estimate of the cost of the project;

(2) periodic reimbursement:

(i) for cost incurred during the project; and

(ii) the periodic reimbursement amount will be prorated based upon the estimated total project cost;

(c) an agreement by the municipality to:

(1) proceed expeditiously with the project;

(2) complete the project in accordance with plans and reports approved by the department; and

(3) complete the project in accordance with the conditions of applicable permits, administrative orders or judicial orders;

(d) provisions relating to:

(1) competitive bidding procedures;

(2) protests;

(3) awarding of construction contracts;

(4) change orders;

(5) department on-site inspections;

(6) inspections of records;

(7) audits;

(8) force accounts;

(9) construction schedules;

(10) project management;

(11) progress report submittals;

(12) submittal of requests for reimbursement;

(13) minority and women's business enterprises and equal employment opportunity requirements;

(14) State retainage of up to 10 percent of the State assistance until the completed project is reviewed and approved by the department; and

(15) post-closure monitoring and maintenance;

(e) a current estimate of the cost of the project as determined by the commissioner at the time of the execution of the contract; and

(f) the maximum total State assistance which may be awarded for the project.

§360-9.10 Return of State assistance for nonperformance.

(a) Failure to comply. If the municipality has failed to comply with the State assistance contract, the department will:

(1) notify the municipality of the failure; and

(2) allow the municipality a reasonable time to correct the failure.

(b) Violation of contract. If the failure is not corrected in the time allowed by the department, the municipality will be in violation of the contract and the department will:

(1) withhold any future State assistance under the contract; and

(2) demand immediate repayment of any State assistance received by the municipality.

§360-9.11 Loan contract.

If a loan application is approved, a municipality must enter into a loan contract with the commissioner, or his agent, on a timely basis. The loan contract must include, but not be limited to:

(a) a provision that the loan is interest-free; (b) a provision for loan payment, including the loan term;

(c) a provision for adding a one percent per month surcharge for each month of delinquent loan payment on all loan payments not paid within 60 days after the due date;

(d) a provision for conditions under which the municipality is in violation of the loan contract;

(e) a provision incorporating applicable requirements of the State assistance contract into the loan contract;

(f) provisions as set forth in section 360-9.9 of this Subpart, except for subdivisions (b) and (e) and paragraphs (c)(11), (12) and (14) of this Subpart;

(g) a provision for intercepting any State aid payable to a loan recipient that has a failed loan payment to the exact amount of the recipient's total failed payment, including any surcharge; and

(h) a provision for intercepting any State aid payable to a loan recipient that has defaulted on its loan contract to the exact amount of the recipient's total principal and surcharge due.

§360-9.12 Return of loan for nonperformance.

(a) Failure to make a loan payment. In the event of failure to make a loan payment:

(1) the department will certify to the comptroller that the municipality has failed to make a loan payment; and

(2) the comptroller will upon receipt of such certification, withhold from the municipality any State aid payable to it to the extent necessary to meet the amount due the department, including the recipient's total failed payment and surcharge.

(b) Loan contract default. Failure to make any three loan payments or failure to comply with the terms of the loan contract is a loan contract default. In the event of a loan default, the department may require, upon written notice, prompt payment of the total unpaid principal of the loan and any surcharges. If prompt payment is not made in full, then:

(1) the department will certify to the comptroller that the municipality has defaulted on the loan contract; and

(2) the comptroller will upon receipt of such certification, withhold from the municipality any State aid payable to it to the extent necessary to meet the amount due the department.