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Subpart 360-1: General Provisions

(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
Revised Effective March 10, 2003; With adoption of amendments to existing subparts 360-1, 360-4, and 360-5
Revised Effective May 12, 2006; With adoption of amendments to existing Subpart 1]

[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.

§360-1.1 PURPOSE AND APPLICABILITY.

(a) Purpose.

The purpose of this Part is to regulate solid waste management facilities, other than hazardous waste management facilities that are subject to Parts 372, 373, 376, or Subparts 374-1 and 374-3 of this Title and facilities managing radioactive materials, naturally-occurring and accelerator-produced radioactive (NARM) waste and low-level radioactive waste that are subject to Parts 380, 382 and 383 of this Title and located partially or wholly within the State of New York. Hence, except where the context indicates otherwise, the term solid waste management facility refers to facilities that are not subject to Part 372, 373,376, 380, 382, 383 or Subparts 374-1 and 374-3 of this Title.

(b) Applicability.

All solid waste other than low-level radioactive waste and NARM waste as defined in Part 382 of this Title which is required to be disposed of at a land disposal facility subject to regulation under Parts 382 and 383 of this Title and other than hazardous waste as defined in Part 371 which is required to be managed at a facility subject to regulation under Parts 372, 373, 376, or Subparts 374-1 and 374-3 of this Title must be transferred, processed, recovered, stored, reclaimed or disposed of in a manner consistent with this Part. However, the management of nonhazardous solid waste in a portion of a facility that also handles hazardous waste is subject to the requirements of Part 373 of this Title unless exempted under that Part. Any facility authorized under Part 373, 382, 383, Subpart 374-1, or 374-3 of this Title is not regulated under this Part. Regulations governing collection and transportation of industrial-commercial waste, waste tires, regulated medical waste, septage, and sludges are set forth in Part 364 of this Title; regulations governing collection and transportation of used oil are set forth in Part 364 and Section 374-2.5 of this Title; however, disposal activities involving those wastes are regulated under this Part and Parts 373 and 374 of this Title.

§360-1.2 DEFINITIONS.

The following terms have the following specific meanings when used in this Part:

(a) Solid waste and related terms.

(1) Solid waste means, except as described in paragraph (4) of this subdivision, any garbage, refuse, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility and other discarded materials including solid, liquid, semi-solid, or contained gaseous material, resulting from industrial, commercial, mining and agricultural operations, and from community activities, but does not include solid or dissolved materials in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to permit under 33 USC 1342, as amended (86 Stat. 880), or source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923) except as may be provided by existing agreements between the State of New York and the government of the United States (see section 360-1.3 of this Part).

(2) A material is discarded if it is abandoned by being:

(i) disposed of;

(ii) burned or incinerated, including being burned as a fuel for the purpose of recovering usable energy; or

(iii) accumulated, stored or physically, chemically or biologically treated (other than burned or incinerated) instead of or before being disposed of.

(3) A material is disposed of if it is discharged, deposited, injected, dumped, spilled, leaked or placed into or on any land or water so that such material or any constituent thereof may enter the environment or be emitted into the air or discharged into groundwater or surface water.

(4) The following are not solid waste for the purposes of this Part:

(i) domestic sewage;

(ii) any mixture of domestic sewage and other wastes that pass through a sewer system to a publicly owned treatment works for treatment, except for any material that is introduced into such system in order to avoid the provisions of this Part;

(iii) industrial wastewater discharges that are actual point source discharges subject to permits under ECL article 17. Industrial wastewaters, while they are being collected, stored or treated before discharge, and sludges that are generated by industrial wastewater treatment are solid wastes and are regulated by this Part;

(iv) irrigation return flows;

(v) radioactive materials which are source, special nuclear or byproduct material as defined by the Atomic Energy Act of 1954, as amended (see section 360-1.3 of this Part); (vi) materials subject to in situ mining techniques which are not removed from the ground as part of the extraction process;

(vii) discarded materials that the department has determined are being beneficially used pursuant to section 360-1.15 of this Part;

(viii) materials including source separated recyclables that have been traditionally incorporated as a secondary material in the manufacturing process. In this context, manufacturing processes may include, but not be limited to, the production of: inorganic chemicals; iron, steel and iron and steel products; leather and leather products; nonferrous metals and nonferrous metal products; organic chemicals; plastic products and plastic resins; pulp and paper products; rubber and miscellaneous plastic products; textiles and textile products; household and business products; and, transportation equipment; and

(ix) material dredged or excavated from the waters of the state and placed or disposed in accordance with a permit(s) issued under Articles 15, 24, 25 or 34 of the Environmental Conservation Law or a Water Quality Certification issued under Section 401 of the Federal Water Pollution Control Act to the extent that both the excavation and disposal of the material is regulated by such permit(s) or certification. However, any excavation or disposal not regulated by such permits remains subject to regulation under this Part. Dredge or excavated material generated by manufacturing or industrial processes are industrial waste subject to regulation under this Part.

(b) Other definitions of general applicability.

Unless otherwise noted, all words and terms contained in this Part are defined by their plain meaning. The terms defined in this subdivision appear throughout this Part. Additional terms specific to a Subpart are defined in that Subpart.

(1) Aboveground tank means any stationary tank in which the entire tank volume is above final ground elevation or any tank that can be inspected in a subterranean vault. For the purpose of this Part, the bottom of the aboveground tank can be visually inspected.

(2) Accuracy means a measurement of the bias resulting from the sampling and analytical processes. Accuracy may be assessed, in part, by evaluating the results of field/trip blanks for field sampling and by using known and blind quality control samples and matrix spikes for analytical work.

(3) Active life means that period of time during which solid waste is or will be routinely and regularly received. In the case of landfills, active life ends at the completion of closure activities.

(4) Active portion means that portion of a solid waste management facility where treatment, storage or disposal operations are being or have been conducted and which is not an inactive or, in the case of landfills, a closed portion.

(5) Airport means a public-use airport open to the public without prior permission and without restrictions within the physical capabilities of available facilities; and an active military airfield.

(6) Apparent opening size means the number of the U.S. Bureau of Standards sieve, or its opening size in millimeters or inches, having openings closest in size to the diameter of uniform particles which will allow five percent or less by weight to pass through.

(7) Applicant means the person applying for a permit under this Part and must be the owner or operator of the solid waste management facility.

(8) Approved design capacity means the average daily tonnage to be received at the solid waste management facility during the quarter in which the most waste is anticipated to be received, as approved by the department. For solid waste incinerators or refuse-derived fuel processing facilities, or pyrolysis facilities, approved design capacity means the annual rated throughput capacity of the unit or units for treatment of solid waste as approved by the department.

(9) Approved design volume means the maximum in-place volume of solid waste, including cover material, to be received at the solid waste management facility during its active life, as approved by the department.

(10) Aquifer means a consolidated or unconsolidated geologic formation, group of formations or part of a formation capable of yielding a significant amount of groundwater to wells or springs. Two types of highly productive aquifers in unconsolidated (nonbedrock) formations are defined in subparagraphs (i) and (ii) of this paragraph. The ultimate determination of the presence and extent of these aquifers rests with the department.

(i) Primary water supply aquifer or primary aquifer means a highly productive aquifer which is presently used as a source of public water supply by major municipal water supply systems.

(ii) Principal aquifer means a formation or formations known to be highly productive or deposits whose geology suggests abundant potential water supply, but which is not intensively used as a source of water supply by major municipal systems at the present time. Some water supply development has taken place in some of these areas but it is generally not as intensive as in the primary aquifer areas.

(11) Asbestos waste for the purposes of this Part is friable solid waste that contains more than one percent asbestos by weight and can be crumbled, pulverized or reduced to powder, when dry, by hand pressure. Asbestos waste also includes any asbestos-containing solid waste that is collected in a pollution control device designed to remove asbestos.

(12) As-built means a record copy of all drawings, specifications, addenda, written amendments, change orders, work directive changes, field orders and written interpretations and clarifications in good order and annotated to show all changes made during construction. These record documents, together with all approved samples and shop drawings that show the character and scope of work performed, constitute as-builts.

(13) Ash residue means all the solid residue and any entrained liquids resulting from the combustion of solid waste or solid waste in combination with fossil fuel at a solid waste incinerator, including bottom ash, boiler ash, fly ash and the solid residue of any air pollution control device used at a solid waste incinerator.

(14) Authorized representative means the individual responsible for the overall operation of a solid waste management facility or an operational unit of a facility, such as the plant manager, superintendent or individual of equivalent responsibility who has authority and knowledge to make and implement decisions regarding operating conditions at the facility.

(15) Automobile dismantler means a facility that processes motor vehicles by dismantling or processing their associated component parts after dismantling.

(16) Automobile junk yard means a facility that stores, takes apart and scavenges parts from motor vehicles for subsequent sale or reuse.

(17) Baseline parameters means the list of standard chemical species or other samples listed in the Baseline Parameters Table of the Water Quality Analysis Tables in paragraph 360-2.11(d)(6) of this Part.

(18) Bedrock means cemented or consolidated earth materials exposed on the earth's surface or underlying unconsolidated earth materials, including decomposed and weathered rock and saprolite.

(19) Bird hazard means an increase in the likelihood of bird/aircraft collisions that may cause damage to the aircraft or injury to its occupants, attributable to the solid waste management facility attracting birds.

(20) Bottom ash means the ash residue remaining after combustion of solid waste or solid waste in combination with fossil fuel in a solid waste incinerator that is discharged through and from the grates, combustor or stoker.

(21) By or on behalf of a municipality, in the context of a permit application that entails the construction of a solid waste management facility, means;

(i) a municipality is an applicant or a co-applicant with one or more other applicants;

(ii) the applicant is not a municipality but the applicant's project is partially funded by the 1972 Environmental Quality Bond Act or the Solid Waste Management Act of 1988, or constructed pursuant to and in accordance with a construction contract with a municipality pursuant to Town, Village, County or General Municipal Law; or

(iii) in the case of a proposed facility with a proposed service area that only includes municipalities within a single planning unit, the applicant is not a municipality but has a contractual or other relationship with one or more municipalities within the planning unit, such that the capacity of the proposed facility will be designed, used, or designated primarily (more than two-thirds) for solid waste received from those municipalities; in the case of a proposed facility with a proposed service area that includes municipalities from two or more planning units, the applicant is not a municipality but has a contractual or other relationship with one or more municipalities in any one planning unit, such that the capacity of the proposed facility will be designed, used or designated primarily (more than two-thirds) for solid waste received from those municipalities. Examples of contractual or other relationships include, but are not limited to, put-or-pay contracts, waste supply guarantees, long-term contracts for the delivery of waste, waste processing guarantees, long-term leases and flow control ordinances.

(22) Bypass waste means any solid waste that is either within the control of the operator of a solid waste incinerator or refuse-derived fuel processing facility or pyrolysis facility, or within the control of another person, that is destined for treatment at the facility but cannot be so treated, and includes:

(i) downtime waste, meaning any treatable or burnable solid waste accumulated during a scheduled or unscheduled maintenance period of the facility; or

(ii) excess waste, meaning solid waste which cannot be treated because the facility is operating at the approved design capacity.

For purposes of this definition, control means control exercised by contract, local law or any other means.

(23) Cathodic protection means corrosion protection for a metal tank or pipe caused by a continuous electrical current flowing from one or more electrodes or a sacrificial anode to the protected structure.

(24) Certification means a statement of professional opinion based upon investigation, analysis, knowledge and belief that is stated to be true and accurate.

(25) Closed portion means that portion of a solid waste management facility which has been closed in accordance with the department-approved closure plan for such facility and all applicable closure requirements.

(26) Coal combustion means the combustion of coal or the combustion of coal along with department-approved alternate fuels, such as tires, at an energy generation facility provided that alternate fuels comprise no greater than 30 percent of the fuel burned at the facility.

(27) Coefficient of permeability and hydraulic conductivity mean the rate of laminar flow of water through a unit cross-sectional area of a porous medium under a unit hydraulic gradient at a standard temperature.

(28) Combined ash means the mixture of bottom ash and fly ash.

(29) Combustion means the thermal treatment of solid waste in a device which uses elevated temperatures as the primary means to change the chemical, physical, or biological character or composition of the waste. Examples of combustion processes include incineration, pyrolysis and fluidized bed.

(30) Commercial waste means solid waste generated by stores, offices, restaurants, warehouses and nonmanufacturing activities at industrial facilities.

(31) Commissioner means the Commissioner of Environmental Conservation or his duly designated representative.

(32) Comparability means a qualitative parameter expressing the confidence with which one data set can be correlated with another based upon, among other criteria, the similarities of sample collection and analysis techniques from one sampling event to another.

(33) Completeness means the percentage of measurements made which are judged to be valid measurements and indicate the contaminant level of the medium being sampled.

(34) Composting facility means a solid waste management facility used to provide aerobic, thermophilic decomposition of solid organic constituents of solid waste to produce a stable, humus-like material.

(35) Confined aquifer means an aquifer bound above and below by impermeable beds or by beds of distinctly lower permeability than that of the aquifer itself; or an aquifer containing groundwater whose potentiometric head lies above the top of the aquifer itself.

(36) Construction means any physical modification to the site at which an existing or proposed solid waste management facility is or will be located, including, but not limited to, site preparation (e.g., clearing and grading, excavation of borrow material for daily cover, etc.).

(37) Construction certification report means a report submitted to the department upon completion of the construction of a solid waste management facility which includes the resulting information prepared in accordance with the requirements of this Part.

(38) Construction and demolition (C&D) debris means uncontaminated solid waste resulting from the construction, remodeling, repair and demolition of utilities, structures and roads; and uncontaminated solid waste resulting from land clearing. Such waste includes, but is not limited to bricks, concrete and other masonry materials, soil, rock, wood (including painted, treated and coated wood and wood products), land clearing debris, wall coverings, plaster, drywall, plumbing fixtures, nonasbestos insulation, roofing shingles and other roof coverings, asphaltic pavement, glass, plastics that are not sealed in a manner that conceals other wastes, empty buckets ten gallons or less in size and having no more than one inch of residue remaining on the bottom, electrical wiring and components containing no hazardous liquids, and pipe and metals that are incidental to any of the above. Solid waste that is not C&D debris (even if resulting from the construction, remodeling, repair and demolition of utilities, structures and roads and land clearing) includes, but is not limited to asbestos waste, garbage, corrugated container board, electrical fixtures containing hazardous liquids such as fluorescent light ballasts or transformers, fluorescent lights, carpeting, furniture, appliances, tires, drums, containers greater than ten gallons in size, any containers having more than one inch of residue remaining on the bottom and fuel tanks. Specifically excluded from the definition of construction and demolition debris is solid waste (including what otherwise would be construction and demolition debris) resulting from any processing technique, other than that employed at a department-approved C&D debris processing facility, that renders individual waste components unrecognizable, such as pulverizing or shredding. Also, waste contained in an illegal disposal site may be considered C&D debris if the department determines that such waste is similar in nature and content to C&D debris.

(39) Construction and demolition debris processing facility means a processing facility that receives and processes construction and demolition debris by any means.

(40) Construction quality assurance (CQA) means a planned system of activities that provides assurance that the facility was constructed as specified in the design. CQA includes inspections, verifications, audits, and evaluations of materials and workmanship necessary to determine and document the quality of the constructed facility. CQA refers to measures taken by the CQA organization to assess if the installer or contractor is in compliance with the plans and specifications and permit for the project. This can also include quality control for those actions taken before construction to ensure that the materials chosen and workmanship comply with the department-approved engineering plans, reports and specifications.

(41) Construction quality control (CQC) means a planned system of inspections that are used to directly monitor and control the quality of a construction project. CQC includes those actions normally performed by the installer to achieve the highest quality in the constructed or installed system. CQC refers to measures taken by the installer or contractor to determine compliance with the requirements for materials and workmanship as stated in the plans and specifications for the project.

(42) Container means any portable device in which a material is stored, transported, treated, disposed of or otherwise handled.

(43) Contamination, as applied to surface water and groundwater, means an exceedance of water quality standards specified in Part 701, 702, or 703 of this Title or groundwater protection standards which is attributable to the solid waste management facility; a significant rise in the measured parameters above existing groundwater quality attributable to the solid waste management facility or a statistically significant rise in the concentration of measured parameters attributable to the solid waste management facility using statistical tests specified or approved by the department.

(44) Contingency plan means a document describing organized, planned and technically coordinated and financially feasible courses of action to be followed in case of emergency or other special conditions including, but not limited to, equipment breakdowns, fire, odor, vectors, explosion, spills, receipt or release of hazardous or toxic materials or substances, groundwater, surface water or air contamination attributable to a solid waste management facility and other incidents that could threaten human health or safety or the environment.

(45) Contingency water quality means the chemical composition of ground or surface water when contamination has been detected in environmental monitoring points at a solid waste management facility. (46) Cover material means soil or other suitable material, or a combination of same, acceptable to the department that is used to cover compacted solid waste in a landfill.

(47) Critical stratigraphic section means all stratigraphic units, both unconsolidated deposits and bedrock, including but not limited to the unsaturated zone, uppermost aquifer and first water-bearing unit into which facility derived contaminants that escape from a solid waste management facility might reasonably be expected to enter and cause contamination during the active life or within 30 years following closure of the facility.

(48) Daily cover means a compacted layer of at least six inches of cover material, unless otherwise approved by the department, that is placed on all exposed solid waste at the end of each working day of operation at a landfill.

(49) Department means the New York State Department of Environmental Conservation.

(50) Dike means an embankment or ridge of either natural or synthetic materials used to prevent, control or confine the movement of liquids or solids.

(51) Discharge means the accidental or intentional spilling, leaking, pumping, pouring, emitting, emptying or dumping of any solid waste, or solid waste constituent, including leachate, into or on any air, land or water.

(52) Disposal facility means a solid waste management facility or part of one in or on which solid waste is intentionally placed, including any land or water, and at which solid waste will remain after closure.

(53) Domestic sewage means water-carried human and animal wastes from residences, buildings, industrial establishments or other places, together with such groundwater infiltration and surface waste as may be present.

(54) ECL means chapter 43-B of the Consolidated Laws of the State of New York, entitled the Environmental Conservation Law.

(55) Endangered or threatened species has the meaning given in Part 182 of this Title.

(56) Energy recovery means the treatment by which energy is extracted and marketed from solid waste in excess of that required to operate the facility.

(57) Energy recovery incinerator means an incinerator in which household waste and/or nonhazardous industrial/commercial waste are combusted for energy recovery.

(58) Environmental monitoring points means designated locations, monitoring wells and devices for sampling air, soil, groundwater or surface water outside of the containment system of a solid waste management facility.

(59) Existing water quality means the chemical composition of ground or surface water before deposition of solid waste in a solid waste management facility.

(60) Expanded parameters means the list of standard chemical species or other samples listed in the Expanded Parameters Table of the Water Quality Analysis Tables in paragraph 360-2.11(d)(6) of this Part.

(61) Expansion means, in the case of solid waste incinerators, transfer stations, processing and construction and demolition debris processing facilities, an increase in the approved design capacity beyond the limits approved in the permit; and, in the case of all other solid waste management facilities, except for landfills located in Nassau and Suffolk Counties, means a horizontal or vertical increase in size of a solid waste management facility beyond the limits approved in the permit. The term expansion is also defined in Subpart 360-8 of this Part, for the specific purposes of that Subpart.

(62) Facility monitoring points means designated locations for sampling leachate or other media within the containment system of a solid waste management facility.

(63) Farm means the raising or harvesting of any agricultural or horticultural commodity through the cultivation of the soil, aquacultural product or the raising, shearing, feeding, caring for, training or management of livestock, bees, poultry, furbearing animals, fish, domestic animals or wildlife.

(64) Fault means a fracture or a zone of fractures in any geologic materials or formation along which there has been displacement of the sides relative to one another parallel to the fracture.

(65) First water bearing unit means the first major water bearing geologic unit, group of units or portion of a unit likely to be impacted by contamination from the facility. This includes the migration pathway to that unit and extends to the first demonstrated aquiclude, aquitard or other demonstrable change in groundwater flow which will impede contaminant migration to lower units.

(66) Final cover system means an engineered layer of materials approved by the department that is placed on any surface of a landfill where no additional solid waste will be deposited within one year and serves to restrict infiltration, support vegetation, control landfill gas and promote surface drainage.

(67) Floodplain means the land susceptible to being inundated by a flood that has a one percent or greater chance of recurring in any given year (or 100-year floodplain).

(68) Fly ash means the ash residue from the combustion of solid waste or solid waste in combination with fossil fuel that is entrained in the gas stream of the solid waste incinerator and removed by the air pollution control equipment.

(69) Food chain crops means tobacco, crops grown for human consumption and crops grown for feed for animals whose products are consumed by humans.

(70) Food processing waste means waste resulting solely from the processing of fruits, vegetables, grains, dairy products and related food products. Food processing waste includes, but is not limited to:

(i) vegetative residues that are recognizable as part of a plant, fruit or vegetable (e.g., corn husks, cabbage leaves, grape and apple pomace, bean snips, and carrot, tomato and potato skins); or

(ii) any solid, semisolid or liquid food sludge or residue that is nonrecognizable but identifiable by analysis or is certified as solely a byproduct of plant, fruit, vegetable or dairy processing (e.g., milk and cheese whey, whey permeate or lactose, brewery and winery waste, and byproducts from canned, frozen or preserved fruit and vegetable processing operations).

(71) Freeboard means the vertical distance between the lowest elevation of the top of a tank, surface impoundment, or dike, and the highest level of the surface of the solid waste contained therein.

(72) Free liquids means liquids which readily separate from the solid portion of a solid waste under ambient temperature and pressure.

(73) Garbage means putrescible solid waste including animal and vegetable waste resulting from the handling, storage, sale, preparation, cooking or serving of foods. Garbage originates primarily in home kitchens, stores, markets, restaurants and other places where food is stored, prepared or served.

(74) Generator means any person whose act or process produces a solid waste or whose act first causes solid waste to be subject to regulation under this Title.

(75) Geocomposite means a manufactured material using geotextiles, geogrids, geomembranes or combinations of same in a laminated or composite form.

(76) Geogrid means a deformed or nondeformed netlike polymeric material used with foundation, soil, rock, earth or any other geotechnical engineering-related material as an integral part of the structure or system to provide reinforcement to soil slopes.

(77) Geomembrane means an essentially impermeable membrane used with foundation, soil, rock, earth or any other geotechnical engineering-related material as an integral part of a structure or system designed to limit the movement of liquid or gas in the system.

(78) Geonet means a type of a geogrid that allows planar flow of liquids and serves as a drainage system.

(79) Geosynthetics means the generic classification of all synthetic materials used in geotechnical engineering applications, including geotextiles, geogrids, geomembranes and geocomposites.

(80) Geotextile means any permeable textile used with foundation, soil, rock, earth or any other geotechnical engineering-related material as an integral part of a structure or system designed to act as a filter to prevent the flow of soil fines into drainage systems, to provide planar flow for drainage or to serve as a cushion to protect geomembranes or to provide structural support.

(81) Groundwater means water below the land surface in a saturated zone of soil or rock. This includes perched water separated from the main body of groundwater by an unsaturated zone.

(82) Groundwater table means the surface of a body of unconfined groundwater between the zone of saturation and zone of aeration at which the pressure is equal to that of the atmosphere. Groundwater table does not include the potentiometric head level in a confined aquifer. (83) Hazardous waste means a hazardous waste as defined in Part 371 of this Title.

(84) Household medical waste means household solid waste which, but for its point of generation, would be a regulated medical waste.

(85) Household hazardous waste means household waste which but for its point of generation, would be a hazardous waste under Part 371 of this Title, including pesticides as defined in ECL article 33.

(86) Household waste means solid waste discarded from single or multiple dwellings, hotels, motels, campsites, public and private recreation areas, ranger stations and other residential sources.

(87) Incinerator means an enclosed device using controlled flame combustion to thermally break down solid waste, including refuse-derived fuel, to an ash residue that contains little or no combustible materials.

(88) Industrial waste means solid waste generated by manufacturing or industrial processes. Such processes may include, but are not limited to the following: electric power generation; fertilizer/agricultural chemicals; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals manufacturing/foundries; organic chemicals; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay and concrete products; textile manufacturing; transportation equipment; and water treatment. The forms of such wastes are exemplified by but not limited to: liquids such as acids, alkalis, caustics, leachate, petroleum (and its derivatives), and processes or treatment wastewaters; sludges which are semi-solid substances resulting from process or treatment operations or residues from storage or use of liquids; solidified chemicals, paints or pigments; and dredge spoil generated by manufacturing or industrial processes, foundry sand, and the end or by-products of incineration or other forms of combustion. This term does not include oil or gas drilling, production, and treatment wastes (such as brines, oil, and frac fluids); overburden, spoil, or tailings resulting from mining; or solution mining brine and insoluble component wastes.

(89) Infiltration is water ordinarily derived from precipitation that permeates a soil layer or solid waste.

(90) Installer means the person responsible for the field handling, storing, placing, seaming and other installation aspects of geosynthetic panels.

(91) Intermediate cover means a compacted layer of at least 12 inches of cover material, unless otherwise approved by the department, placed where no additional solid waste has been deposited or will be deposited within a period of 30 days.

(92) Intermediate processor means any person who receives separated recyclables only from registered recyclables handling and recovery facilities within New York State or facilities otherwise acceptable to the department if located outside of New York State, and then markets same to other intermediate processors, brokers or manufacturers.

(93) Land application facility means a site where solid waste is applied to the soil surface or injected into the upper layer of the soil to improve soil quality or provide plant nutrients. Solid waste suitable for this purpose includes, but is not limited to, certain food processing waste, sewage treatment plant sludge and septage.

(94) Land clearing debris means vegetative matter, soil and rock resulting from activities such as land clearing and grubbing, utility line maintenance or seasonal or storm-related cleanup such as trees, stumps, brush and leaves and including wood chips generated from these materials. Land clearing debris does not include yard waste which has been collected at the curbside.

(95) Landfill means land or a disposal facility or part of one where solid waste or its residue after treatment is intentionally placed and which is not a land application facility, surface impoundment, injection well or waste pile.

(96) Landfill gas recovery facility means a facility in which gases produced from the decomposition of solid wastes are collected for the purpose of energy recovery.

(97) Landfill subcell means a discrete portion of a landfill which uses a liner and leachate collection and removal system to provide operational isolation from adjacent subcells or solid waste.

(98) Leachate means any solid waste in the form of a liquid, including any suspended components in the liquid, that results from contact with or passage through solid waste.

(99) Lift means the vertical thickness of compacted solid waste and the cover material immediately above it.

(100) Liner system means a continuous layer of natural and/or synthetic materials, beneath or on the sides of a surface impoundment, landfill, or landfill cell, that restricts the downward or lateral escape of solid waste, any constituents of such waste or leachate and that complies with this Part.

(101) Lower explosive limit means the lowest percentage by volume of a mixture of explosive gases which will propagate a flame in air at 25 C and atmospheric pressure.

(102) Metal salvage facility means a facility that separates for recycling or reuse various types of metals from other types of metals or from equipment, appliances and fixtures.

(103) Mixed solid waste means combinations of putrescible and nonputrescible waste materials.

(104) Monofill means a landfill or landfill cell into which only one type of waste, as recognized by the department, is placed.

(105) Municipality means a county, village, town, city, any designated agency thereof, a solid waste management district, a public benefit corporation having power granted otherwise than under ECL article 51, to construct, operate and maintain a solid waste management facility, including a public corporation created pursuant to agreement or compact with another state; or any combination thereof.

(106) Municipal solid waste means combined household, commercial and institutional waste materials generated in a given area.

(107) Off-site means any property which is not on-site.

(108) On-ground tank is a tank that is situated in such a way that its bottom is on the same elevation as the adjacent land surface. For the purposes of this Part, the entire bottom surface of the tank cannot be visually inspected.

(109) On-site means the same or geographically contiguous property under the control or ownership of the same person. It may be divided by public or private rights-of-way, provided the entrance and exit between the properties is at a crossroads intersection, and access is gained by crossing, as opposed to going along, the right-of-way. Noncontiguous properties owned by the same person, but connected by a right-of-way which that person controls and to which the public does not have access, are also considered on-site property.

(110) Open burning means the combustion of any material or solid waste in the absence of any of the following characteristics:

(i) control of combustion air to maintain adequate temperature for efficient combustion;

(ii) containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; or

(iii) control of emissions of the gaseous combustion products.

(111) Operation means, in the case of a solid waste incinerator or processing facility or composting facility, operation after start-up; and in the case of any other solid waste management facility, operation of the facility after initial receipt of solid waste.

(112) Operational water quality means the chemical quality of ground or surface water once deposition of solid waste has begun at the solid waste management facility.

(113) Operator or facility operator means the person responsible for the overall operation of a solid waste management facility or a part of a facility with the authority and knowledge to make and implement decisions, or whose actions or failure to act may result in noncompliance with the requirements of this Part or the department-approved operating conditions at the facility or on the property on which the facility is located.

(114) Owner means a person who owns a solid waste management facility or part of one.

(115) Partial closure means the closure of a discrete part of a solid waste management facility in accordance with the applicable closure requirements of this Part.

(116) Permittee means the person who has received a permit under this Part.

(117) Person means any individual, public or private corporation, political subdivision, government agency, authority, department or bureau of the State, municipality, industry, partnership, association, firm, trust, estate or any other legal entity whatsoever.

(118) Point source means any discernible, confined and discrete conveyance from which pollutants are or may be discharged. Sources of discharge include, but are not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation or vessel or other floating craft. This term does not include return flow from irrigated lands.

(119) Precision means a quantitative measure of the variability of a set of analytical data compared to their average value. Precision is generally stated in terms of standard deviation, but other estimates such as coefficient of variation (relative standard deviation), range (maximum value minus minimum value) and relative range can be used.

(120) Processing facility means a combination of structures, machinery or devices, other than collection and transfer vehicles, utilized to reduce or alter the volume or the chemical or physical characteristics of solid waste through processes such as, but not limited to, separating, crushing, screening, baling or shredding before its delivery to any solid waste management facility.

(121) Project engineer means the official representative of the permittee who is licensed to practice engineering in the State of New York, who is responsible for observing, documenting, and certifying that activities related to the quality assurance of the construction of the solid waste management facility conform to the engineering design contained in the permit to construct and operate and the regulations specified in this Part. All certifications must bear the seal, signature and the date of certification.

(122) Publicly owned treatment works (POTW) means any device or system used in the treatment (including recycling and reclamation) of municipal sewage or industrial wastes of a liquid nature that is owned by a state or municipality (as defined in section 502(4) of the Federal Water Pollution Control Act, as amended; see section 360-1.3 of this Part). This definition includes sewers, pipes or other conveyances only if they convey wastewater to a publicly owned treatment works providing treatment.

(123) Public water supply means a public water system as defined in the State Sanitary Code (10 NYCRR Part 5).

(124) Public water supply stabilized cone of depression area means the surface and subsurface area between a public water supply well or wellfield and the 99 percent theoretical maximum extent of the stabilized cone of depression of that well or wellfield considering all flow system boundaries and seasonal fluctuations.

(125) Putrescible means the tendency of organic matter to decompose with the formation of malodorous byproducts. For the purpose of this Part, wood is not considered to be putrescible.

(126) Putrescible waste means solid waste that contains organic matter capable of being decomposed by microorganisms and of such a character and proportion as to be capable of attracting or providing food for disease vectors.

(127) Qualified groundwater scientist means a scientist or engineer who has received a baccalaureate or post-graduate degree in the natural sciences or engineering and has sufficient training and experience in groundwater hydrology and related fields to enable that individual to make sound professional judgments regarding hydrogeological investigations, groundwater monitoring, contaminant fate and transport and corrective action.

(128) Recover means any act or process by which recyclables or reusables are separated from the solid waste stream.

(129) Recycle means to use recyclables in manufacturing a product.

(130) Recyclable means solid waste that exhibits the potential to be used repeatedly.

(131) Recyclables handling and recovery facility means a solid waste processing facility, other than collection and transfer vehicles, at which nonputrescible recyclables are separated from the solid waste stream or at which previously separated nonputrescible recyclables are processed.

(132) Refuse means anything putrescible or nonputrescible that is discarded or rejected as useless or worthless.

(133) Refuse-derived fuel means treated solid waste that is used as a fuel. Off-products of pyrolysis are not considered refuse-derived fuel.

(134) Refuse-derived fuel processing facility means the combination of structures, machinery or devices utilized to reduce or alter the volume of mixed solid waste before delivery to a solid waste incinerator or pyrolysis facility.

(135) Regulated wetland means a wetland area regulated pursuant to ECL article 24 (Freshwater Wetlands) or ECL article 25 (Tidal Wetlands).

(136) Remediation means the actions taken to correct or prevent a release or threatened release of a contaminant into the environment.

(137) Representativeness means the degree to which analytical data accurately and precisely represent parameter variations at a sample location or the level of contaminants in the medium being sampled (i.e. groundwater or surface water).

(138) Representative sample means a sample collected from a population or whole that exhibits the average or typical properties of the larger population or whole.

(139) Residuals means sludge, sewage sludge, septage, air pollution control facility waste or any other such waste having similar characteristics or effects and solid waste remaining after the processing of solid waste by composting methods that was not suitable for use.

(140) Residue means all solid waste remaining after treatment and includes, but is not limited to ash residue and other solid waste that is not recovered or combusted.

(141) Resource recovery facility means a combination of structures, machinery or devices utilized to separate, process, modify, convert, treat or prepare collected solid waste so that component materials or substances or recoverable resources may be recovered or used as a raw material or energy source.

(142) Routine parameters means the standard chemical species or other samples listed in the Routine Parameters Table of the Water Quality Analysis Tables in paragraph 360-2.11(d)(6) of this Part.

(143) Run-off means any rainwater, leachate, or other liquid that drains over land from any part of a solid waste management facility.

(144) Run-on means any rainwater, leachate or other liquid that drains over land onto any part of a solid waste management facility.

(145) Salvage area means a controlled, segregated area at a solid waste management facility where the facility owner or operator authorizes salvaging.

(146) Salvaging means the incidental removal of solid waste for reuse under the control of the facility owner or operator.

(147) Saprolite means disintegrated and decomposed rock that lies in its original place.

(148) Saturated zone means that part of the earth's crust in which the interconnected voids are completely filled with water at a pressure equal to or greater than atmospheric pressure. The interface between the saturated zone and the unsaturated zone is the groundwater table.

(149) Scrap metal processor means a facility that processes only scrap metal materials destined for recycling.

(150) Sensitive environment means a site where a solid waste management facility poses a specific threat to the environment or to the public health because a small contaminant release could have a significant impact. This may be due to proximity to other sensitive environments which include but are not limited to: principal or primary water supply aquifers and public water supply wellhead areas; areas requiring special protection (such as regulated wetlands or the critical habitat of an endangered species); areas containing highly permeable soils or bedrock formations (such as karst carbonate formations or bedrock formations that are serving as major public water supply aquifers and which can readily be contaminated from the surface); or other special circumstances.

(151) Septage means the contents of a septic tank, cesspool or other individual sewage treatment facility that receives domestic sewage wastes.

(152) Service area means the geographical area serviced by a solid waste management facility from which solid waste is generated and collected for delivery to that facility.

(153) Sewage sludge means the accumulated semi-solids or solids resulting from treatment of wastewaters from publicly or privately owned or operated sewage treatment plants. Sewage sludge does not include grit or screenings or ash generated during the incineration of sewage sludge.

(154) Site means the geographically contiguous property of a solid waste management facility and includes the land area of that facility and its access roads, appurtenances and land buffer areas.

(155) Sludge means any solid, semi-solid or liquid waste generated from a wastewater treatment plant, water supply treatment plant or air pollution control facility but does not include the treated effluent from a wastewater treatment plant.

(156) Soil moisture holding capacity and field capacity mean the ratio of the total volume of water that a soil retains after gravity drainage to the total volume occupied by the soil.

(157) Solid waste incinerator means an incinerator combusting solid waste or solid waste in combination with fossil fuel with or without energy recovery.

(158) Solid waste management facility means any facility employed beyond the initial solid waste collection process and managing solid waste, including but not limited to: storage areas or facilities; transfer stations; rail-haul or barge-haul facilities; landfills; disposal facilities; solid waste incinerators; refuse-derived fuel processing facilities; pyrolysis facilities; C&D debris processing facilities; land application facilities; composting facilities; surface impoundments; used oil storage, reprocessing, and rerefining facilities; recyclables handling and recovery facilities; waste tire storage facilities; and regulated medical waste treatment facilities. The term includes all structures, appurtenances, and improvements on the land used for the management or disposal of solid waste.

(159) Solid waste incinerator process train means the solid waste incineration chute to stack equipment. This equipment would generally include a feed chute or charging hopper, combustion system, boiler, air pollution control devices and ash residue system.

(160) Source separation means dividing solid waste into some or all of its component parts at the point of generation, including the separation of recyclables from each other or the separation of recyclables from other solid waste. The residue remaining after recyclables are removed from the waste stream is not considered source separated material.

(161) Spare parts means those essential or integral components of machinery or equipment that are kept in reserve as replacements for the original components.

(162) Stabilized sludge means sludge that has been digested or otherwise treated to reduce putrescibility and odor, reduce pathogenic organisms and, except for lime stabilization, reduce the volatile solids content.

(163) Start-up means that period of time (not to exceed 180 days) starting with the initial receipt of solid waste, refuse-derived fuel, or regulated medical waste at the facility, in which a solid waste incinerator, refuse-derived fuel processing facility, pyrolysis unit or regulated medical waste treatment and destruction facility is breaking in and adjusting equipment before long term operation. This period provides for equipment adjustment and owner acceptance testing.

(164) Storage means the containment of any solid waste in a manner which does not constitute disposal under section 360-1.2(a)(3) of this Subpart; provided, however, that any accumulation of solid waste for a period in excess of 18 months shall be deemed to constitute disposal.

(165) Surface impoundment means a solid waste management facility or part of one that is a natural topographical depression, excavation, or diked area formed primarily of earthen materials (although it may be lined with synthetic materials), that is designed to hold solid waste in semisolid or liquid form and that is not an injection well. Examples of surface impoundments are holding, storage, settling, and aeration pits, ponds and lagoons.

(166) Surface water means lakes, bays, sounds, ponds, impounding reservoirs, perennial streams and springs, rivers, creeks, estuaries, marshes, inlets, canals, the Atlantic Ocean within the territorial limits of New York State, and all other perennial bodies of surface water, natural or artificial, inland or coastal, fresh or salt, public or private. Surface impoundments at solid waste management facilities are not surface waters.

(167) Surface waters that are actively used as sources of municipal supply means those waters that are currently used as a source of municipal drinking water supply and all perennial streams tributary to those waters.

(168) Taking of endangered or threatened species means harassing, harming, pursuing, hunting, wounding, killing, trapping, capturing or collecting of endangered or threatened species, or attempting to engage in such conduct.

(169) Tank means a stationary device designed to contain an accumulation of solid waste or leachate which is constructed primarily of nonearthen material (e.g., wood, concrete, steel, plastic) that provides structural support.

(170) Tire retreader means a facility with equipment capable of retreading tires that converts waste tires into usable tires in accordance with a valid registration with the U.S. Department of Transportation as a tire retreader.

(171) Title means Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York.

(172) Transfer station means a solid waste management facility other than a recyclables handling and recovery facility, used oil facility, or a construction and demolition debris processing facility, where solid waste is received for the purpose of subsequent transfer to another solid waste management facility for further processing, treating, transfer or disposal. Transfer of solid waste from vehicle to vehicle for the purpose of consolidating loads, as part of the initial collection process, is not considered a transfer station provided the transfer activity occurs along the collection route where the point of transfer changes from day to day. Transfer of leakproof, closed containers of solid waste from vehicle to vehicle, including truck to train, for the purpose of consolidating loads for shipment to an authorized disposal or treatment facility, is not considered a transfer station provided: the contents of each container remain in their closed container during the transfer between vehicles; storage remains incidental to transport at the location where the containers are consolidated; containers are acceptable to the department and maintained in a safe, nuisance-free (e.g., dust, odor, noise, etc.) manner; and, the transfer location is under the ownership or control of the transporter.

(173) Transporter means a person engaged in the off-site transportation of solid waste by air, rail, highway or water.

(174) Treatment means, except in the case of regulated medical waste, any method, technique or process designed to change the physical, chemical or biological character or composition of any solid waste to recover energy or materials from it, to render it safer to transport, store or dispose of or to make it amenable for reuse, recovery, storage or reduction in volume. Treatment of regulated medical waste is defined in section 360-17.2 of this Part.

(175) Unadulterated wood means wood that is not painted or treated with chemicals such as glues, preservatives or adhesives. Any painted wood or chemically treated wood (e.g., pressure treated wood, treated railroad ties) or wood containing glues or adhesives (e.g., plywood, particle board) is considered adulterated wood.

(176) Underground injection means the subsurface emplacement of semisolid or liquid solid waste through a bored, drilled or driven well or through a dug well, where the depth of the dug well is greater than the largest surface dimensions.

(177) Underground tank means any stationary tank completely or partially covered with earth or other material.

(178) Unsaturated zone means any zone between the land surface and the zone of saturation in which the interconnected void spaces in soil or rock are only partially or intermittently filled with water.

(179) Upgradient water quality means the chemical composition of water in the stream or groundwater that is hydraulically upgradient (in the direction of increasing static head) of the facility and which is representative of the flow system before it has passed by or beneath the facility.

(180) Uppermost aquifer means the geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected with the aquifer within the facility's property boundary.

(181) Vector means a carrier that is capable of transmitting a pathogen from one organism to another including, but not limited to, flies and other insects, rodents, birds and vermin.

(182) Vehicle means any motor vehicle, trailer, water vessel, railroad car, airplane or other device for transporting solid waste.

(183) Waste tire means any solid waste which consists of whole tires or portions of tires. For the purposes of this Part, tire casings separated for retreading and tires with sufficient tread for resale shall be included under this term, however, crumb rubber shall not be considered a solid waste.

(184) Working face means that portion of a landfill where solid waste is discharged and compacted before placement of cover material.

(185) Yard waste means leaves, grass clippings, garden debris, tree branches, limbs and other similar materials, such as aquatic weeds.

(186) Zone of aeration means a subsurface zone which may contain water under pressure lower than that of the atmosphere, including water held by capillarity, and containing air or gases generally under atmospheric pressure.

(187) Zone of saturation means a subsurface zone in which all the interstices are filled with water under pressure greater than that of the atmosphere.

§360-1.3 REFERENCES.

(a) Federal.

The following documents are incorporated by reference and are on file with the New York State Department of State. The documents are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 and for inspection and copying at the department's offices at 50 Wolf Road, Albany, New York 12233-4010 in the office of the Division of Solid Waste.

(1) Federal laws:

(i) Section 11 of the Atomic Energy Act of 1954 (42 USC 2014), as amended through January 20, 1986.

(ii) Section 502(4) of the Federal Water Pollution Control Act (33 USC 1362(4)), as amended through January 20, 1986.

(iii) Sections 110 and 111 of the Clean Air Act (42 USC 7410-7411), as amended through November 15, 1990.

(iv) Sections 300f-300j of the Public Health Service Act (Safe Drinking Water Act, 42 USC 300), as amended through October 31, 1988.

(v) Section 401 of the Federal Water Pollution Control Act as amended by the Clean Water Act (33 USC section 1251 et seq.) through October 1, 1984.

(2) Code of Federal Regulations (CFR):

(i) 29 CFR - title 29 of the Code of Federal Regulations (Labor):

(a) parts 1900 through 1910, revised as of July 1, 1987; and

(b) part 1926, revised as of July 1, 1988.

(ii) 40 CFR - title 40 of the Code of Federal Regulations (Protection of Environment):

(a) parts 53 through 80, revised as of July 1, 1985;

(b) parts 100 through 149, revised as of July 1, 1993;

(c) parts 190 through 259, revised as of July 1, 1993;

(d) parts 260 through 299, revised as of July 1, 2002;

(e) parts 300 through 399, revised as of July 1, 1993; and

(f) parts 700 through end, revised as of July 1, 1987.

(iii) 49 CFR - title 49 of Code of Federal Regulations (Transportation), revised as of October 1, 1987:

(a) parts 100 through 177; and

(b) parts 178 through 199.

(3) United States Environmental Protection Agency:

(i) Test Methods for Evaluating Solid Waste Physical/Chemical Methods, EPA publication SW-846 (Second Edition, 1982 as amended by Update I (April 1984) and Update II (April 1985).

(ii) Methods for Chemical Analysis of Water and Wastes, (EPA-600/4-79-020) March 1979, revised March 1983.

(iii) A Procedure for Estimating Monofilled Solid Waste Leachate Composition, Technical Resource Document, EPA publication SW-924 (Second Edition, January 1986).

(b) Other.

The following documents also are incorporated by reference and are on file with the Department of State.

(1) NFPA-30. It is available from the National Fire Protection Association, Batterymarch Park, Quincy, MA 02269 and for inspection and copying at the department's offices at 625 Broadway, Albany, New York 12233-4010 in the office of the Division of Solid Waste; National Fire Protection Association (NFPA): Flammable and Combustible Liquids Code, NFPA-30, 1990.

(2) NFPA 231D. It is available from the National Fire Protection Association, Batterymarch Park, Quincy, MA 02269 and for inspection and copying at the department's offices at 50 Wolf Road, Albany, New York 12233-4010 in the office of the Division of Solid Waste; National Fire Protection Association (NFPA): Standards for Storage of Rubber Tires, NFPA 231D, 1989 edition.

(3) API Publication 1509. It is available from the American Petroleum Institute, 1220 L Street, NE, Washington, DC, 20005 and for inspection and copying at the department's offices at 50 Wolf Road, Albany, New York, 12233-4010 in the office of the Division of Solid Waste; Engine Service Classification System and Guide to Crankcase Oil Selection (API Publication 1509), Eleventh Edition, July 1988.

(4) Natural Resources Conservation Service (NRCS) - Conservation Practice Standard Waste Management System (number) Code NY313. Available from the NRCS, 1 Clinton Square, Room 333, Albany, New York 12207-2350 and for inspection and copying at the department's offices at 625 Broadway, Albany, New York 12233 in the Division of Water.

§360-1.4 ENFORCEMENT, INSPECTION, AND REPORTING.

(a) Enforcement.

(1) Every solid waste management facility in this State is subject to every applicable requirement identified in this Part pertaining to the type of facility in question, subject to a demonstration to the department by its owner or operator that the facility is clearly exempt from regulation under or from the requirement in question that is contained in this Part.

(i) The department may disapprove a registration or withdraw registered status if the department determines that the activity to which a registration is applicable poses the potential for a significant adverse impact on public health, safety, or welfare, the environment or natural resources or violates a registration condition.

(ii) Owners or operators of registered solid waste management facilities must comply with the applicable operational requirements of a regulated facility of the same type or, if the same type does not exist, a similar type as determined by the department.

(iii) Owners and operators of registered solid waste management facilities shall allow inspection of such facilities by authorized department staff as allowed by law.

(iv) The owner or operator of a registered solid waste management facility shall not violate the conditions for qualification for such registration; violate any condition imposed by the department pursuant to its approval of such registration; violate any applicable operational requirement; or operate the registered activity in a manner which poses a significant adverse impact on public health, safety, or welfare, the environment or natural resources. Violations of applicable operational requirements by the owner or operator shall subject the owner or operator to penalties and other sanctions authorized pursuant to Environmental Conservation Law. In the event that the owner or operator fails to comply with the requirements of this Part, or operates the registered facility in a manner which poses a significant impact on public health safety or welfare, the environment or natural resources, the owner and/or operator is subject to one or more of the following:

(a) withdrawal of registration, in which case the owner or operator shall be required to obtain a permit for the previously registered activity from the department before such activity may be continued;

(b) assessment of penalties for any identified violations, including violations of the qualifications for registration; and

(c) imposition of additional conditions on the registered activity, including, but not limited to imposition of financial assurance requirements.

(v) Section 401 of the Federal Water Pollution Control Act as amended by the Clean Water Act (33 USC section 1251 et seq.) through October 1, 1984.

(2) Any person who violates any provision of or who fails to perform any duty imposed by this Part; or any term or condition of any permit issued pursuant to this Part; or any final determination or order of the commissioner issued pursuant to any statutory authority under which this Part is promulgated is subject to all applicable civil, administrative and criminal sanctions set forth in ECL article 71 and, as appropriate, the Clean Water Act.

(b) Inspection.

The commissioner or authorized department staff may enter and inspect a solid waste management facility, any property, premises, books, papers, documents, or records of that facility, at all reasonable times, locations, and hours, whether announced or unannounced, for the purpose of ascertaining compliance or noncompliance with a permit, the ECL, and this Title. The construction or operation of a solid waste management facility in this State is deemed to constitute consent to such inspection. The refusal to consent to such inspection, established after an opportunity for a hearing, shall result in revocation of any and all permits issued by the department under this Part pertaining to that facility as well as any other penalties the commissioner may impose under the circumstances. With respect to the issue of revocation, the hearing shall be limited to the following issues:

(1) whether the permittee was given sufficient warning in clear or unequivocal language before the refusal, that the refusal could result in revocation of those permits; and

(2) whether the permittee refused to consent to the inspection.

(c) Reporting.

Any person owning or operating a solid waste management facility must submit to the department, within the time period specified by the department, any information which the department requires by regulation, permit, or order to determine whether cause exists to modify, suspend or revoke a permit or order, or to determine compliance with the permit, the ECL and this Title. In the case of a quarterly report, the report must provide information on activities occurring during the quarter in question (January 1st to March 31st, April 1st to June 30th, July 1st to September 30th, October 1st to December 31st) and must be submitted no later than 60 days after the last day in the quarter in question. In the case of an annual report, the report must be submitted no later than 60 days after the first day of January following each year of operation. Reports on forms acceptable to or provided by the department must be kept on the facility's premises and must be submitted at a frequency specified by the department. The department may at any time waive or modify standard reporting requirements under this Part under circumstances it deems appropriate and will notify the facility owner in writing of any such change.

§360-1.5 PROHIBITED DISPOSAL.

(a) Solid waste disposal facilities.

Except as provided for in Subparts 360-10 and 360-17 of this Part, no person shall dispose of solid waste in this State except at:

(1) a disposal facility exempt from the requirements of this Part; or

(2) a disposal facility authorized to accept such waste for disposal pursuant to this Part or to a department-issued or court-issued order.

(b) Hazardous waste disposal facilities.

No hazardous waste that is required to be managed at a facility subject to regulation under Part 373 or 374 of this Title and no radioactive materials, NARM waste or low-level radioactive waste as defined in Parts 380, 382 and 383 of this Title that is required to be managed or disposed of at a land disposal facility subject to regulation under Parts 380, 382 and 383 of this Title shall be treated or disposed of at a solid waste management facility.

§360-1.6 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.

§360-1.7 PERMIT REQUIREMENTS, EXEMPTIONS AND VARIANCES.

(a) Permit requirements.

(1) Except as provided for in subdivisions (b) and (c) of this section, section 360-1.13 of this Subpart or otherwise provided for in the applicable Subpart pertaining to the type of solid waste management facility in question, no person shall:

(i) construct or operate a solid waste management facility, or any phase of it, except in accordance with a valid permit issued pursuant to this Part; or

(ii) modify or expand any aspect of the approved construction or operation of a solid waste management facility except in accordance with the approval of the department.

(2) Prohibited siting.

(i) Agricultural land. The department shall not issue a permit for a new solid waste management facility or a lateral expansion of an existing one if the land upon which that facility or lateral expansion is to be located, was, or is proposed to be, taken through the exercise of eminent domain; consists predominantly of agricultural soil group 1 or 2 (Land Classification System as certified by the New York State Commissioner of Agriculture and Markets); and is within an agricultural district formed pursuant to the Agriculture and Markets Law. The department shall not issue a permit for a new solid waste management facility or a lateral expansion of an existing one within an agricultural district unless compliance with the requirements of section 305 of the Agriculture and Markets Law has been demonstrated.

(ii) Floodplains. New solid waste management facilities and expansions of existing ones, except land application facilities, must not be constructed or operated on floodplains unless provisions have been made to prevent the encroachment of flood waters upon those facilities. Such facilities must not pose a significant hazard to human life, wildlife, fisheries, or land or water resources.

(iii) Endangered species. Solid waste management facilities must not be constructed or operated in a manner that causes or contributes to the taking of any endangered or threatened species or to the destruction or adverse modification of their critical habitat.

(iv) New solid waste management facilities must not be constructed or operated within the boundary of a regulated wetland.

(v) Horizontal separation distances between permitted land application and composting facilities, and permitted landfills, which are located hydraulically upgradient from reservoirs, reservoir stems or controlled lakes, located in watersheds which are managed pursuant to a filtration avoidance determination issued pursuant to the Safe Water Drinking Act (see section 360-1.3 of this Part) must be sufficient to preclude contravention of State surface water quality standards in those surface waters. A determination of the minimum separation distance required must be approved by the department and in no case may be less than 100 feet. For the purposes of this subparagraph, the following terms have the following meanings:

(a) Controlled lakes means a lake from which a purveyor of water supply may withdraw water pursuant to rights acquired by the purveyor of water supply or as a right of ownership.

(b) Reservoir means any natural or artificial impoundment of water owned or controlled by a purveyor of water supply which is tributary to the water supply system.

(c) Reservoir stem means any watercourse segment which is tributary to a reservoir and lies within 500 feet of the reservoir.

(3) Transition. The following transition rules shall not be construed to relieve the owner or operator of a municipal solid waste landfill accepting waste on or after October 9, 1993 from meeting the applicable requirements of 40 CFR Part 258 (see section 360-1.3 of this Part). Except as otherwise provided in this Part, the following constitute the transition rules for this Part.

(i) Existing facilities with permits. This subparagraph applies only to a solid waste management facility having a permit to construct or operate in effect on the day before the effective date of this Part whose expiration date is on or after the effective date of this Part. Nothing in this subparagraph shall be construed to limit or prohibit department-initiated modification of such a permit under the provisions of Part 621 of this Title.

(a) Each solid waste management facility permit to operate in effect on the day before the effective date of this Part is hereby continued until the expiration date set forth on the permit.

(b) Except in the case of landfills, a permit to construct a solid waste management facility in effect on the day before the effective date of this Part authorizes the permittee to construct the facility in accordance with the design approved under the permit to construct issued before the effective date of this Part if construction is completed within the term of the permit to construct. If construction is not completed within the term of the permit to construct, upon renewal the department shall modify the permit to require the design and construction of that part of the facility not yet constructed to satisfy the applicable requirements of this Part. In the case of landfills, a permittee holding a permit to construct that was issued before the effective date of this Part that authorizes the construction of an area must satisfy the appropriate requirements of this Part for those areas not yet constructed but approved for subsequent development.

(c) The permittee of a permit to operate that was issued before the effective date of this Part must comply with the conditions of the permit and the solid waste management facility regulations in effect on the day when such permit was issued for the duration of that permit. In the event of renewal or expansion, the permittee must comply with the operational requirements of this Part.

(d) A solid waste management facility other than a landfill without a department-approved closure plan on the effective date of this Part is subject to the closure and post-closure requirements of this Part pertaining to that type of facility. In the case of landfills, subparagraph 360-1.7(a)(3)(viii) of this Subpart applies.

(e) Retrofitting of facilities (or stages of ones) that were constructed pursuant to a permit issued before the effective date of this Part, in order to comply with the design and construction requirements of this Part, is not required, except for expansions of such facilities.

(f) Upon renewal or modification of an existing permit to construct, the department may consolidate all construction and operation requirements into a single permit. All new solid waste management facility permits issued on or after the effective date of this Part must contain all relevant construction and operation requirements within a single permit.

(ii) Existing facilities subject to an order. Each order in effect on the day before the effective date of this Part pertaining to a solid waste management facility is hereby continued until the order expires, provided that the facility is in full compliance with the terms and conditions of the order. If the respondent fails to comply with any term or condition, the solid waste management facility that is covered by the order must comply with the operational, closure and post-closure requirements of this Part for that type of facility.

(iii) Existing facilities currently in violation. A facility constructed, operated or closed in violation of the solid waste management facility regulations in effect on the day before the effective date of this Part is subject to the requirements of this Part as of its effective date. Each enforcement action pending on the day before the effective date of this Part is hereby continued and the standards for compliance shall be those contained in this Part. In the case of landfills, subparagraph 360-1.7(a) (3)(viii) of this Subpart applies.

(iv) Existing facilities for which permits were not previously required. This subparagraph pertains only to solid waste management facilities existing on the effective date of this Part that require a permit to operate under this Part but, under the solid waste management facility regulations in effect on the day before the effective date of this Part, did not require a permit. For such facilities:

(a) The owner or operator must submit a letter to the department within 60 days after the effective date of this Part that references this subparagraph and describes the location, size and type of solid waste management facility being operated, the characteristics and quantities of solid waste received there, and the facility's waste processing equipment. The letter must be sent by certified mail, return receipt requested, and the following words must be placed on the outside of the envelope: solid waste management facility notification enclosed.

(b) The department will review the information submitted and will acknowledge receipt of the letter in writing to the facility owner or operator.

(c) The owner or operator must submit a complete application for a permit no later than six months after the date of the department's acknowledgment letter or two years after the effective date of this Part, whichever is sooner.

(d) If the information identified in clause (a) of this subparagraph is not submitted within the 60-day period described in that clause, the owner or operator must close the facility in accordance with the provisions of this Part no later than six months after the last day of such 60-day period.

(e) The owner or operator of a facility described in this subparagraph must comply with the operation, closure and post-closure requirements set forth in this Part pertaining to the type of solid waste management facility in question.

(f) In addition, the owner or operator must inform the department at least 30 days in advance if it intends to change any of the reported facility characteristics after the initial submission of information.

(v) Existing facilities for which permits are no longer required. Existing facilities that were previously permitted, but no longer require a permit or registration under this Part, are not required to renew such permits. However, such facilities must comply with all other applicable requirements as indicated in the appropriate Subparts of this Part.

(a) Existing facilities for which permits were required before the effective date of this Part, but which now require registration under this Part, are not required to renew wuch permits, provided the owner or operator registers the facility in accordance with the requirements of subdivision 360-1.8(h) of this Part. All such facilities may submit a completed registration form at any time after the effective date of this Part, but are required to submit a completed registration form not less than 30-days prior to the expiration date of their current Part 360 permit. If the facility owner or operator does not submit a completed registration form acceptable to the department, the owner or operator is subject to the enforcement provisions of subdivision 360-1.4(a) of this Part and other sanctions pursuant to Environmental Conservation Law.

(b) Existing facilities that were wholly or partially exempt from the Part 360 permitting requirements before the effective date of this Part, but that are now required to be registered under this Part, are required to register the facility in accordance with the requirements of subdivision 360-1.8(h) of this Part within 180 calendar days after the effective date of this Part. If the facility owner or operator does not submit a completed registration form acceptable to the department, the owner or operator is subject to the enforcement provisions of subdivision 360-1.4(a) of this Part and other sanctions pursuant to Environmental Conservation Law.

(vi) Complete applications pending on the effective date of this Part. If an application for a permit to construct or operate a solid waste management facility was complete pursuant to Part 621 of this Title on or before the effective date of this Part, the department will review the application for compliance with the solid waste management facility regulations in effect on the day before the effective date of this Part. However, if a permit is issued following the effective date of this Part, the permittee must comply with the operational, closure, and post-closure requirements set forth in this Part pertaining to the type of solid waste management facility in question.

(vii) Applications that were not complete on the effective date of this Part. An application for a permit to construct or to operate a solid waste management facility that was not complete pursuant to Part 621 of this Title on the day before the effective date of this Part must satisfy the completeness requirements identified in this Part. However, any component of a complete application that the department determined in writing before the effective date of this Part as satisfying a particular application requirement identified in the solid waste management facility regulations in effect at the time of acceptance shall be deemed to satisfy the equivalent completeness requirement under this Part, but only if a complete application is submitted to the department no later than one year after the effective date of this Part.

(viii) Landfills shall meet the following closure and post-closure requirements:

(a) unlined landfills operating on or after October 9, 1993 that have underlying soils with a coefficient of permeability of 1 x 10-7 centimeters per second or greater, and lined landfills that are operating on or after October 9, 1993 and have only a soil barrier liner with a coefficient of permeability of 1 x 10-7 centimeters per second or greater, must meet the applicable closure and post-closure requirements set forth in sections 360-2.14, 360-2.15 and Subpart 360-7 of this Part. Those landfills required to meet the closure requirements of section 360-2.15 may conform either to the low permeability barrier soil cover layer, geomembrane, or composite cover requirements of subparagraph 360-2.15(d)(2)(i) of this Part;

(b) all other landfills that are operating on or after October 9, 1993 must meet the applicable closure and post-closure requirements of sections 360-2.14, 360-2.15 and Subpart 360-7 of this Part. Those landfills required to meet the closure requirements of section 360-2.15 must conform to subparagraph 360-2.15(d)(2)(ii) of this Part;

(c) landfills without an approved closure plan that have ceased to accept waste before October 9, 1993 must meet the closure and post-closure requirements of the regulations in effect the day before the effective date of this Part; or (d) landfills with an approved closure plan that have ceased to accept waste before October 9, 1993 must meet the closure and post-closure requirements of the regulations in effect the day the closure plan was approved.

(ix) Existing facilities that closed in compliance with the solid waste management regulations in effect on the day before the effective date of this Part remain subject to all the requirements in effect on the date of closure.

(b) Exemptions.

The solid waste management facilities identified in this subdivision that do not manage used oil are exempt from this Part:

(1) Disposal areas located within the property boundaries of a single family residence or farm for solid waste generated from that residence or farm.

(2) Disposal areas for waste pesticides by the farmer who used them if the farmer complies with sections 325.4 and 325.5 of this Title.

(3) Disposal areas located within the property boundaries of a farm for crop residuals, animal and aquacultural manure, animal and aquacultural carcasses and parts generated from a farm and other similar solid waste generated by farm activities.

(4) Transfer, temporary storage, treatment, incinerator and processing facilities (including mobile processing facilities which are temporarily brought onto the site), located at a single or multiple family residence, school, park, industry, hospital, commercial establishment, correctional facility, government facility, or farm and used exclusively for the management of solid waste generated at a location under the same ownership within a single region of the department, except:

(i) regulated medical waste treatment facilities;

(ii) composting or other Class A processing facilities for sewage sludge, septage, or other sludges; and

(iii) in certain cases where the department determines that these activities pose an adverse impact on public health, safety, or the environment, the department may set time limitations on the activities covered under this exemption. For excavated petroleum contaminated soils, on-site storage is limited to 60 days unless otherwise approved by the department.

(5) Transfer, storage, treatment, incinerator and processing facilities, except composting or other distribution and marketing facilities, located at publicly owned treatment works or other sewage treatment plants, and used exclusively for sewage sludge, septage or leachate. Storage is limited to less than 18 months.

(6) The initial site used for the collection of household hazardous waste and household medical waste for a cleanup day or similar event sponsored or cosponsored by a community or governmental organization on a not-for-profit basis, and designed to assist the public in disposing of unwanted pesticides and other household hazardous and medical waste if:

(i) the sponsoring organization submits a detailed written plan at least 60 days before the date of the event and receives written approval prior to the event from the regional director of the department's region where the cleanup will take place. The plan must contain:

(a) measures to be taken to ensure that all such waste comes from households or farmers, or is a regulated waste exempt from regulation under Part 364 of this Title;

(b) a specific waste determination, segregation and packaging plan, including the identification of qualified individuals who will be present during collection hours to segregate wastes based on their chemical and physical properties and to properly package, label and manifest the waste for shipment. The individual's qualifications to conduct these activities must be included in the written plan;

(c) a spill prevention and control plan; and

(d) a site security plan, including additional precautions to be taken if wastes are to be stored overnight;

(ii) all wastes are removed from the site within three days of collection;

(iii) wastes are packaged, labeled and manifested in accordance with the requirements of section 364.9, or sections 372.2 and 372.3 of this Title;

(iv) all transportation of the wastes from the collection point is done in accordance with a permit issued pursuant to Part 364 of this Title; and

(v) the requirements of Part 617 of this Title are met.

(7) A transporter storing shipments of nonputrescible industrial and nonputrescible commercial waste, other than regulated medical waste, in containers or in vehicles at its own transfer facility for a period of five calendar days or less, if the transporter:

(i) maintains a log of the time and date on which each container or transport vehicle of waste is received or shipped;

(ii) does not open any container or transport vehicle for any purpose, including sampling, transfer, treatment or addition of absorbent;

(iii) stores the waste in a container or transport vehicle that meets the design requirements specified by the United States Department of Transportation for each type of waste stored. During storage and shipment, these containers or transport vehicles must be packaged, labeled and marked in accordance with 49 CFR, parts 171, 173, 178 and 179 (see section 360-1.3 of this Part);

(iv) stores containers or transport vehicles in a manner which will not rupture the container or transport vehicle or cause it to leak;

(v) complies with the standards for hazardous waste discharges from transporters specified in subdivision 372.3(d) of this Title;

(vi) immediately notifies the appropriate regional office of the department in which a spill or leak occurs of that spill or leak; and

(vii) inspects the containers or transport vehicles daily for leaks and deterioration, caused by corrosion or other factors, and keeps a written log of the inspections.

(8) A facility that exclusively treats wastewater that is regulated under Parts 750 through 757 of this Title.

(9) Solid waste from nonhazardous inactive landfills which has been excavated as part of a construction project and is being returned to the same excavation or other excavations containing similar solid waste or otherwise relocated within the landfill's existing footprint, provided the handling, relocation and disposal practices are deemed acceptable to the department in writing in advance.

(10) Disposal areas for road-killed animals on local roads and State and County highways under the jurisdiction of government agencies. Such disposal areas must, however, be located on property owned by the government agency and within the highway right-of-way. Disposal areas must be a minimum of 50 feet from any residence, surface water or any other disposal area for road-killed animals. No more than 10 road-killed animals may be placed in a single disposal area. Road-killed animals placed in disposal areas must be covered with at least three feet of excavated soil material and in no case shall be placed within groundwater. Mass burial of road-killed animals is not exempt from the provisions of this Part. Acceptable alternatives for the disposal of road-killed animals include disposal at a department-approved solid waste landfill, disposal at a rendering facility or other means as approved by the department.

(11) Open burning of solid waste conducted in compliance with a restricted burning permit issued by the department.

(12) Individual graves for burial of animals, including pet cemeteries, provided mass burial of animal carcasses is not practiced.

(c) Variances.

(1) Unless otherwise precluded by law, the department may, upon written application from any person who is subject to this Part, grant a variance from one or more specific provisions of this Part under the conditions set forth in this subdivision. In any event, no variance will be granted which would authorize a municipal solid waste landfill to be designed, constructed or operated at standards less stringent than those defined under 40 CFR Part 258, Criteria For Municipal Solid Waste Landfills.

(2) Every application for a variance must:

(i) identify the specific provisions of this Part from which a variance is sought;

(ii) demonstrate that compliance with the identified provisions would, on the basis of conditions unique to the person's particular situation, tend to impose an unreasonable economic, technological or safety burden on the person or the public; and

(iii) demonstrate that the proposed activity will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources and will be consistent with the provisions of the ECL and the performance expected from application of this Part.

(3) In granting any variance under this subdivision, the department will impose specific conditions necessary to assure that the subject activity will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources.

§360-1.8 PERMIT APPLICATION AND REGISTRATION PROCEDURES, GENERALLY.

(a) Uniform Procedures Act.

(1) An application for a permit under this Part must be submitted on a form prescribed by the department. In order to be determined complete, the application must satisfy the requirements established in Part 621 of this Title and include the plans, reports and other supporting information required by this Part.

(2) The procedures of Part 621 of this Title govern the processing and review of permit applications and variances under this Part and the modification, renewal, suspension and revocation of permits issued pursuant to this Part.

(b) SEQRA review.

The review procedures required pursuant to the State Environmental Quality Review Act (article 8 of the ECL) apply to activities subject to the permit requirements of this Part. With regard to any permit application under this Part, the applicant may be required to submit information necessary for compliance with that Act in addition to information required under this Part or Part 621 of this Title.

(c) Preapplication meetings.

Preapplication meetings between the department and the prospective applicant are encouraged to address, among other things, the development of a complete application pertaining to the prospective applicant's project.

(d) Permits, generally.

(1) Issuance of a permit entitles the permittee to construct the solid waste management facility as identified in the application, subject to any appropriate conditions the department may impose. If the facility is to be constructed in stages, the initial application must contain the conceptual design for the entire facility and the detailed construction plans for the initial stage. In addition, detailed construction plans may be submitted covering all other stages that will be constructed during the first 10 years of facility operation. The permit will identify the extent of each permitted stage and the specific time frames within which construction activities must begin and end for each stage. Construction of a subsequent stage requires department approval of the detailed construction plans for the stage, as specified in the Subpart for the specific type of facility. Those plans and the construction of that stage must comply with all requirements of the ECL and of this Title applicable at the time department approval is granted.

(2) A permitted facility cannot begin operation until the permittee has demonstrated to the department's satisfaction that the facility has been constructed in accordance with the permit issued for that facility and that the criteria for permit issuance provided in section 360-1.10 of this Part have been satisfied. If a facility is to be constructed in stages, the department must determine that each specific stage has been constructed in accordance with the approved plans and permit conditions before operation will be permitted in that specific stage.

(e) Permit modifications.

(1) For the purposes of Part 621 of this Title, an application to modify a permit for a solid waste management facility must be treated as a new application if any of the following thresholds are met or exceeded:

(i) Expansion of operation. Expansion of the disposal operation beyond the limits of the solid waste authorized by the existing permit.

(ii) Increase in quantity of solid waste received. In the event no approved design capacity is set forth in the permit; any increase of the total quantity of solid waste received during any quarter at the facility by 50 percent or more over the total quantity of solid waste received during the comparable quarter of the preceding year. In the event an approved design capacity is set forth in the permit; any increase that results in the exceedance of the approved design capacity by 50 percent.

(iii) Installation of additional equipment. Expansion of the facility by the installation of additional processing or treatment equipment that increases the approved design capacity of the facility or changes in the facility process that may result in a significant adverse environmental impact.

(2) Retrofit of existing solid waste incinerators. For the purposes of this Part, retrofit of air pollution control equipment to comply with Part 219-8 of this Title shall not be considered as a new application for a permit.

(f) Permit renewals.

(1) Filing for renewal. Any permittee intending or required to continue construction or operation beyond the permitted period must file a complete application for renewal of the permit at least 180 days before the existing permit expires. A complete application for renewal of the permit must be made on forms authorized by the department and must include the information identified in subdivision 360-1.9(d) of this Part pertaining to the type of solid waste management facility covered by the permit.

(2) Continued operation. A permittee may continue construction or operation as authorized under the expiring permit under the provisions of section 401.2 of the State Administrative Procedure Act only if the permittee files a timely and complete renewal application as provided for under paragraph (1) of this subdivision. Such authority does not extend to any modification of the terms and conditions of the existing permit.

(g) Local solid waste management plan.

On or after April 1, 1991 a permit application made by or on behalf of a municipality in a planning unit for the construction of a solid waste management facility shall not be complete until a local solid waste management plan that contains all of the elements, including any required plan modifications or updates, set forth in paragraph (b) of subdivision (1) of section 27-0107 of the ECL and Subpart 360-15 of this Part is in effect for such municipality provided, however, that this requirement may be waived by the commissioner for a permit to construct and operate a solid waste management facility designed for the treatment, storage or disposal of sewage sludge and needed to implement a project described in subparagraph (1) of paragraph (c) of subdivision (3) of section 97-m of the State Finance Law that will expedite compliance with the Federal Ocean Dumping Ban Act of 1988.

(h) Registration of facilities.

(1) Certain regulated solid waste management facilities may be eligible for registration rather than the permit requirements of this Part, under prescribed thresholds and conditions specified in this subdivision and under each appropriate Subpart of this Part.

(2) Registrations are ministerial actions for purposes of Part 617 (State Environmental Quality Review) of this Title.

(3) Registrations are not subject to Part 621 (Uniform Procedures) of this Title.

(4) Registration forms must be submitted to the office of the department administering the region in which the facility is to be located, on a form prescribed by or acceptable to the department, at least 30 days prior to undertaking the activity proposed for registration.

(5) The owner or operator may not undertake a registered activity until they have received a validated copy from the department of their registration. If a facility proposed for registration requires other department permits, or otherwise does not meet the conditions and requirements specified in this Part, the department may disapprove a registration and require a permit application rather than a registration.

(6) Registrations for appropriate facilities are generally valid for the life of the registered facility and may be transferred only upon prior written approval by the department.

(7) Registered facilities may not be exempt from other applicable requirements of this Part.

(8) Registered facilities must submit an annual report, on forms prescribed by or acceptable to the department, to the department's central office and the office of the department administering the region in which the facility is located, no later than 60 days after the first day of January following each year of operation. The report must include, but not be limited to: the total annual amount of waste received by weight or volume, compiled by type and quantity received during each calendar quarter; the origin of the waste received; the destination of the waste removed; the weight or volume and type of each material recovered; and, a description of any problems encountered and methods for resolution and any changes in operation that have occurred in the previous year.

(9) Registered facilities remain subject to the operational requirements of subdivisions 360-1.14(b), (d), (e), (i), (j), (k), (l), (m), (p), (r), (s) and (w) of this Part.

§360-1.9 CONTENTS OF APPLICATIONS, GENERALLY.

(a) Initial permits and level of detail.

(1) An application for an initial permit must include all applicable information identified in this Subpart and other Subparts of this Part pertaining to the type of facility for which the permit is being sought.

(2) The information in every application submitted under this Part must be of sufficient detail so as to allow the department to fulfill its responsibilities under the ECL and this Part by:

(i) having detail sufficient to be readily understood by the persons using the documents contained in the application to enable them to determine how the facility will be constructed, operated and closed and how it will be monitored and maintained after closure;

(ii) providing the department with sufficient detail to ascertain the environmental impact of the proposed project; and

(iii) providing sufficient detail to demonstrate that the design, construction, operation, closure and post-closure monitoring and maintenance of the facility will be capable of compliance with the applicable requirements of this Part.

(b) Nonspecific facilities.

(1) Complete applications for initial permits to construct and operate a solid waste management facility not specifically addressed in a Subpart of this Part must include and address the following, in addition to the requirements described elsewhere in this section:

(i) an engineering report, plans and specifications that must comprehensively describe and address the project in its environmental setting and the project's design, construction, operation, closure and post-closure monitoring;

(ii) an operation and maintenance plan; and

(iii) a waste control plan.

(2) Combination facilities. Complete applications for initial permits to construct and operate a solid waste management facility having components of its intended operation addressed in different Subparts of this Part must contain:

(i) a discussion in an engineering report, plans and specifications that comprehensively describes and addresses the project's overall design, construction, operation, closure and post-closure monitoring; and

(ii) all those matters required to be submitted had each component been proposed to be undertaken at a separate facility, independent of the other components.

(c) Modification applications.

An application to modify a permit issued pursuant to this Part must include and address the following:

(1) a description of the proposed modification;

(2) the reasons for the proposed modification;

(3) a description of the impacts from the proposed modification upon the facility as presently permitted; and

(4) a demonstration that, as modified, the facility will be capable of compliance with the applicable requirements of the ECL and this Part.

(d) Renewal applications.

An application to renew a permit issued pursuant to this Part must include and address the following:

(1) unless previously submitted to and accepted by the department, all information required to be contained in an application for the initial permit;

(2) a compliance report that contains:

(i) a statement certifying that the facility's construction and operation have been undertaken in compliance with the terms and conditions of the expiring permit; or

(ii) a compliance report specifying any changes proposed by the applicant to, and detailing any changes in circumstance that may affect the design, construction, operation, closure or post-closure monitoring of the facility and describing how compliance with the applicable requirements of the ECL and this Part will be assured. (This provision is intended to assist the department in determining the proper processing of the application. The application with any such changes will be processed in accordance with Part 621 of this Title); and

(3) a description of how the facility is consistent with the State solid waste management policy identified under subdivision (1) of ECL section 27-0106.

(e) Engineering plans, reports and specifications.

All engineering plans, reports, drawings and specifications must comply with the requirements of section 7209 of the Education Law, other appropriate provisions of this Part and this subdivision. Engineering plans, reports, drawings, specifications, programs and manuals submitted to the department must be prepared and certified by an individual licensed to practice engineering in the State of New York.

(1) Unless otherwise specified in this Part, the plans and drawings for all solid waste management facilities must be submitted using the following format:

(i) The sheet size with title blocks must be 22 by 34 inches or 24 by 36 inches.

(ii) The cover sheet must include the project title, applicant's name, sheet index, legend of symbols, and the engineer's name, address, signature, date of signature and seal.

(iii) The plans relating the project to its environmental setting must include:

(a) a regional plan or map (having a minimum scale of 1:62,500);

(b) a vicinity plan or map (having a minimum scale of 1:24,000); and

(c) an overall site plan (having a minimum scale of 1:2,400 with five-feet minimum contour intervals).

(2) Site plans must contain the location of all property boundaries certified by an individual licensed to practice land surveying in the State of New York.

(3) The engineering reports for all solid waste management facilities must:

(i) contain a cover sheet stating the project title and location, the applicant's name, and the engineer's name, address, signature, date of signature and seal;

(ii) have its text printed on 8 1/2 by 11 inch pages (paginated consecutively);

(iii) contain a table of contents or index describing the body of the report and the appendices;

(iv) include a body of report; and

(v) include all appendices.

(4) The engineering report submitted with a permit application for the construction of a solid waste management facility must:

(i) demonstrate an ability to operate in accordance with the applicable requirements of the ECL, this Subpart and the Subpart of this Part pertaining to such a facility;

(ii) identify the facility's proposed service area;

(iii) for all applications submitted before April 1, 1989, demonstrate that the project is consistent with the applicable goals and objectives of solid waste management plans in the proposed service area of the facility and of the New York State Solid Waste Management Plan in effect at the time of permit application;

(iv) for all applications submitted after April 1, 1989, describe how the proposed facility is consistent with the State solid waste management policy identified in section 27-0106 of the ECL;

(v) for applications submitted by or on behalf of a municipality in a planning unit after April 1, 1991, demonstrate that the proposed facility is consistent with the local solid waste management plan in effect for the municipality; and

(vi) for applications which are not submitted by or on behalf of a municipality in a planning unit, include an assessment of the proposed facility's impact on the local solid waste management plans, if any, of the planning unit in which the facility is located and the planning units from which solid waste is expected to be received.

(5) Appendices submitted as part of an engineering report submitted with an application to construct or expand a solid waste management facility must contain, where required under the applicable Subpart:

(i) appropriate charts and graphs;

(ii) copies of record forms used at the facility;

(iii) test pit logs, soil boring logs and geological information (such as stratigraphic sections, geophysical and geochemical surveys and water quality analyses);

(iv) engineering calculations (including the raw data from which they were made);

(v) where State funds are anticipated, copies of contracts between the municipality and the architect/engineer; and

(vi) other supporting data, including literature citations.

(f) Comprehensive recycling analysis.

In the case of applications that are submitted by or on behalf of a municipality for initial permits to construct and operate, or to renew a permit (unless otherwise determined by the department) for a landfill (other than one exclusively for ash residue, clean fill or construction and demolition debris), a solid waste incinerator (other than one used exclusively to incinerate regulated medical waste), a refuse-derived fuel processing facility, a construction and demolition debris processing facility, a mixed solid waste composting facility or a transfer station, (other than one used exclusively for transfer of regulated medical waste), the applicant must submit as part of a complete application a comprehensive recycling analysis, unless (for the service area for the proposed facility) such an analysis had been previously submitted and approved by the department; or a local solid waste management plan is in effect that addresses all components of such an analysis. The comprehensive recycling analysis must include the following:

(1) Identification of the actual or estimated quantity of recyclables, by type, that could potentially be recovered (whether or not feasible at the time of application), reflecting the State's solid waste management policy identified in section 27-0106 of the ECL and (for applications submitted before April 1, 1989) the goals and objectives of the New York State Solid Waste Management Plan in effect at the time of permit application. This identification must be determined by means of the following:

(i) an analysis of the composition (i.e., quantity and characteristics) of the solid waste presently generated within the facility's service area and projections for future waste generation including data which accounts for seasonal variations. This analysis may be based upon applicable published information. These projections must include a year-by-year evaluation of the solid waste stream generation for the expected life of the project;

(ii) an identification and evaluation of the types of solid waste contained in the overall waste stream (such as newsprint, corrugated and other grades of paper, glass, aluminum, ferrous and nonferrous metals, construction and demolition debris, rubber, tires, batteries, plastics, yard wastes) and, if the application pertains to a solid waste incinerator, (its residue) that could be reused, recovered as recyclables or composted; and

(iii) a description of the various strategies to achieve a reduction in the amount of solid waste destined for disposal including, but not limited to residential source separation and collection, intermediate processing, industrial and commercial recyclables recovery efforts, composting, and public education efforts describing the benefits of reuse and recyclables recovery.

(2) An evaluation of existing efforts to recover recyclables. This evaluation must include the following:

(i) identification of existing municipal, commercial, industrial and private efforts to recover recyclables. Data must include quantity and types of recyclables recovered, and a description of recyclables recovery programs used; and

(ii) an assessment of the impact of the proposed recyclables recovery effort on existing recyclables recovery programs.

(3) Identification of available and potential markets for recovered recyclables. This identification must be determined by means of the following:

(i) a review of available information to identify potential markets;

(ii) a survey of potential markets for recovered recyclables, an identification of all local and regional markets contacted, and the results of the survey. Survey data also must include material quality requirements and market pricing structures, if available; (iii) an identification of the types of processing necessary for separation and upgrading of recovered recyclables to assure market acceptance;

(iv) an identification of market services available for assistance in preparation and transportation of recovered recyclables; and

(v) an identification of current and future restrictions to market development.

(4) Identification of alternative source separation/recyclables recovery programs considered, the proposed program and reasons for selection of the proposed program. This must contain the following:

(i) if a solid waste incinerator is the subject of the application, an engineering analysis of the Btu value of the solid waste before and after recyclables recovery for the proposed life of the project to determine if increases in recyclables recovery activities will necessitate changes in facility size and capacity; and

(ii) full documentation of the relationship between the solid waste incinerator, processing facility, or landfill size and capacity, the size and capacity of the selected recyclables recovery program and the effect of the implementation of that recyclables recovery program over the life of the solid waste management facility in question.

(5) Recyclables recovery program implementation in terms of:

(i) a detailed description of the procedures for implementation of the selected recyclables recovery program, including: plan and scope of operation, equipment to be used, collection arrangements, processing and storage procedures, market agreements, funding sources, the entity responsible for program operation and management, and the availability of staff for program implementation;

(ii) the inclusion of a schedule with specific dates for implementation of the selected program (including dates to attain specified, progressively increasing percentages of the waste stream that will be recovered as recyclables) and a description of the proposed service area to be included in the selected program;

(iii) the inclusion of actions to be taken to maximize, to the extent practicable, the development and enhancement of economic markets for recyclables recovered within the service area under local laws or ordinances adopted or to be adopted under section 120-aa of the General Municipal Law; and

(iv) identification of the specific public relations and education programs to be undertaken for implementation of the recyclables recovery program.

(6) Legal/institutional analysis, including:

(i) an identification of the laws, rules, regulations, or ordinances which could cause potential constraints to the selected recyclables recovery program; and

(ii) the inclusion of a schedule and description of appropriate local laws or ordinances, if any, that must be adopted to facilitate the implementation of the selected recyclables recovery program and to develop and enhance economic markets for recyclables recovered within the service area.

(7) A discussion of possible future actions in the facility's service area to further the objectives of the State's solid waste management policy identified in section 27-0106 of the ECL. This discussion must include:

(i) a discussion pertaining to the scope of existing or new recyclables recovery programs;

(ii) after completing an engineering analysis as required by paragraph (4) of this subdivision, a determination that the facility has been properly sized, taking into account the potential for recyclables recovery and expanding the facility's service area;

(iii) a discussion of other means of program enhancement to promote recyclables recovery; and

(iv) a discussion of procurement practices to encourage the use of products containing recyclables.

(g) Inactive hazardous waste disposal and corrective action sites.

(1) If the facility is proposed to be located at an inactive hazardous waste disposal site classified as Class 1, 2, 3 or 4 in the department's Registry of Inactive Hazardous Waste Disposal Sites; or if it is proposed to be located next to one and less than 150 feet separate the boundary of the facility and the border of the classified site that abuts the facility boundary, the applicant must submit as part of a complete application sufficient information to allow the department to determine whether the proposed activity would interfere significantly with any potential, ongoing or completed inactive hazardous waste disposal site remedial program at the classified site or would expose the environment or public health to a significantly increased threat of harm. This information must be submitted in the form of a report prepared by an individual licensed to practice engineering in the State of New York, in which that individual concludes and substantiates that the proposed activity will neither interfere significantly with any potential, ongoing or completed inactive hazardous waste disposal site remedial program at the classified site, nor expose the environment or public health to a significantly increased threat of harm. That report must include, but is not limited to, the following:

(i) a general description of the hydrogeologic setting, including descriptions of the geology in the vicinity of the inactive hazardous waste disposal site, the occurrence of groundwater in the vicinity of the site, the direction of groundwater flow, and the extent and direction of movement of the contaminant plume, if any;

(ii) descriptions and evaluations of the effectiveness of any remedial actions taken to date at the classified site and/or discussions and preliminary evaluations of appropriate alternative remedial programs or supplemental remedial programs that would provide the required remediation of the classified site;

(iii) a discussion of the effects the proposed activity may have on any completed remediation and a discussion of the constraints the proposed activity may have on the alternative or supplemental remedial programs conceptualized in subparagraph (ii) of this paragraph, including: preclusion of alternatives and the availability of sufficient land to implement, monitor, operate, maintain and modify, if necessary, an alternative remedial program; and

(iv) in the case only of a landfill proposed to be located at a Class 1 or 2 inactive hazardous waste disposal site, or next to one where less than 150 feet separate the boundary of the facility and the border of the classified site that abuts the facility boundary, a detailed and data-supported assessment of the hydrogeological and environmental effects that the landfill will have on the remediation of the inactive hazardous waste disposal site during the landfill's operating life and post-closure period. This assessment must include modeling acceptable to the department and also must include, but not be limited to the following: behavior of the groundwater flow system under anticipated seasonal and long-term fluctuations of groundwater recharge and discharge (including any groundwater withdrawals associated with remediation of the inactive hazardous waste disposal site or construction of the proposed landfill), the transport and fate of contaminants in the subsurface (with particular emphasis on groundwater resources or users), the ongoing monitorability of the proposed landfill and the inactive hazardous waste disposal site, the continued effectiveness of remediation, and any other factors which may bear on the assessment of risk to public health and the environment from any reciprocal effects between the proposed landfill and the inactive hazardous waste disposal site.

(2) If a new facility or an expansion of an existing facility is proposed to be located at an inactive hazardous waste disposal site classified 2a in the department's Registry of Inactive Hazardous Waste Disposal Sites, or is proposed to be located next to such a site where less than 150 feet separate the boundary of the facility and the border of the classified site that abuts the facility boundary, the applicant must submit as part of a complete application, sufficient information to enable the department to classify the site in question as Class 1, 2, 3, 4 or 5 or to delete the site from the Registry. This information must be submitted in a report prepared by an individual licensed to practice engineering in the State of New York in which that person recommends and substantiates the proposed classification of the site or the deletion of the site from the Registry. That report must include, but is not limited to, the following:

(i) preliminary characterizations of hazardous waste present at this site;

(ii) identification of potential pathways of pollutant migration from this site;

(iii) a description of how the disposal area was used or operated at the time hazardous waste was or may have been disposed of;

(iv) identification of the source of the hazardous waste that was, or is suspected to have been, deposited at the site; and

(v) any additional information the department may request, including but not limited to geochemical or soil-gas investigations, geophysical survey using electronic and electromagnetic equipment and remote sensing analysis to study the geology of the site and to identify possible areas with buried drums or tanks or possible paths of contaminated plumes, and a sampling and analysis of samples from groundwater, surface water, sediments, lagoons and remaining wastes.

(3) If, after evaluating the information submitted pursuant to paragraph (2) of this subdivision, the department classifies the site described in that paragraph as Class 1, 2, 3 or 4 in the department's Registry of Inactive Hazardous Waste Disposal Sites, the commissioner shall not issue a decision on whether the permit shall be issued unless the applicant submits sufficient information to allow the department to determine whether the proposed activity would interfere significantly with any potential, ongoing or completed inactive hazardous waste disposal site remedial program at the classified site or would expose the environment or public health to a significantly increased threat of harm. This information must be submitted in the form of the report described in paragraph (1) of this subdivision.

(4) The requirements of paragraphs (1)-(3) of this subdivision do not apply if the classified site is delisted from the department's Registry of Inactive Hazardous Waste Disposal Sites or reclassified as Class 5 on that Registry.

(5) If the facility is or is proposed to be located at a site subject to corrective action under title 9 of ECL, article 27 or if it is or is proposed to be located next to such a corrective action site and less than 150 feet separate the boundary of the facility and the border of the corrective action site that abuts the facility boundary, the applicant must submit as part of a complete application sufficient information to allow the department to determine whether the proposed activity would interfere significantly with any potential, ongoing or completed corrective action or would expose the environment or public health to a significantly increased threat of harm. This information must be submitted in the form of the report described in paragraph (1) of this subdivision.

(h) Contingency plan.

Every application for a permit identified in this Part must include a contingency plan.

(1) This contingency plan must include, but is not limited to:

(i) a description of arrangements between the applicant and local police departments, fire departments, hospitals, contractors, equipment suppliers, and State and local emergency response teams to coordinate emergency services and familiarize them with the layout of the facility, properties of the solid waste handled at the facility and associated hazards, places where facility personnel normally would be working, entrances to and roads inside the facility, and possible evacuation routes, as appropriate;

(ii) a list of names, addresses and telephone numbers (office and home) of all individuals qualified to act as an emergency coordinator. Where more than one individual is listed, the primary coordinator must be listed first and the others listed in the order in which they will assume responsibility as alternates;

(iii) a list of all relevant emergency equipment maintained at the facility (such as, but not limited to, fire extinguishing systems, spill control equipment, and internal and external communications and alarm systems) and the location and a physical description of each item of emergency equipment with a brief outline of its capabilities; and

(iv) an evacuation plan for facility personnel, including a description of signals to be used to begin evacuation and of the primary and alternate evacuation routes.

(2) Additional requirements for such a plan for specific types of solid waste management facilities are found in the Subpart pertaining to the type of facility in question.

(i) Signature and verification of applications.

(1) All applications for permits must be accompanied by evidence of authority to sign the application and must be signed by the applicant as follows:

(i) in the case of corporations, by a duly authorized principal executive officer of at least the level of vice president;

(ii) in the case of a partnership or limited partnership, by a general partner;

(iii) in the case of a sole proprietorship, by the proprietor; or

(iv) in the case of a municipal, State, or other governmental entity, by a duly authorized principal executive officer or elected official.

(2) Applications must be sworn to by, or on behalf of, the applicant, in respect to the veracity of all statements therein; or must bear an executed statement by, or on behalf of, the applicant as provided in section 210.45 of the Penal Law to the effect that false statements made therein are made under penalty of perjury.

§360-1.10 PERMIT ISSUANCE CRITERIA.

(a) Construction.

The department may issue a permit to authorize the construction of a new solid waste management facility or expansion of a facility only if the application's engineering and hydrogeological data and construction plans and specifications required by this Part substantiate that the proposed facility meets the requirements of the ECL and this Part; demonstrate an ability to operate in accordance with the requirements of the ECL and this Part; (for applications submitted before April 1, 1989) demonstrate consistency with the New York State Solid Waste Management Plan in effect at the time of application; describe how the proposed facility is consistent with the State's solid waste management policy identified in section 27-0106 of the ECL, and for applications submitted by or on behalf of a municipality in a planning unit after April 1, 1991, demonstrate that construction of the proposed facility is consistent with the local solid waste management plan in effect for the municipality.

(b) Operation.

A permittee may not operate a solid waste management facility until the permittee demonstrates to the department's satisfaction that the facility's construction is in accordance with the terms of the permit (and plans approved thereunder) issued pursuant to this Part; certification of construction has been submitted in accordance with section 360-1.11 of this Part and the department has inspected the facility and finds it to be in compliance with the permit (and plans approved thereunder); and a form of financial assurance or financial responsibility, if required, has been filed with the department.

§360-1.11 PERMIT PROVISIONS.

(a) Mitigation of adverse impacts.

(1) The provisions of each permit issued pursuant to this Part must assure, to the extent practicable, that the permitted activity will pose no significant adverse impact on public health, safety or welfare, the environment or natural resources, and that the activity will comply with the requirements identified in this Subpart and the applicable Subpart pertaining to such a facility, and with other applicable laws and regulations. To provide such assurance, the department may impose conditions on such a permit, including but not limited to or exemplified by the following: inspection, financial assurance, technical data gathering and reporting, data analysis, quality control, quality assurance, sampling, monitoring (including the imposition of on-site environmental monitors), reporting and verification.

(2) In the case of on-site environmental monitors, funding shall be established with the department as follows:

(i) Within 15 calendar days after receipt of written notice from the department, the initial amount to be paid for environmental monitoring sufficient to pay all costs associated with the department's provisions of environmental compliance monitoring for such facility for the first year, the owner or operator shall submit to the department, the sum of money as determined by the department. This sum will be used toward payment of the first year costs for such monitoring. Costs for which payment must be made include, but are not limited to direct personal service costs and fringe benefits of the on-site environmental monitor(s) and full-time monitor supervisor(s), including the cost of replacement personnel for the monitor position; direct non-personal service costs including purchase or lease of a vehicle and its full operating costs; any appropriate chemical sampling and analysis; inflation and negotiated salary increases; and overhead and support costs at the approved federal indirect cost rate.

(ii) The on-site environmental monitoring payment sum shall be subject to quarterly revision by the department. Quarterly payments shall be made by the owner or operator for as long as the facility is subject to department regulations.

(iii) Within 30 calendar days after receipt of written notice from the department that payment is due, the owner or operator of the facility shall forward the amount due the department indicating which facility this amount is coming from. Payments are to be in advance of the period in which they will be expended.

(iv) In the event that the owner or operator of the facility fails to submit any of the environmental monitoring payments by the required submission dates, such owner or operator shall immediately cease acceptance of any and all solid waste of any kind at the facility and shall commence closure of the facility in accordance with the requirements of this Part and any permit or order to which the owner or operator is subject. Such cessation of waste acceptance shall be automatic, without the necessity of prior hearing or judicial review.

(v) Nothing in this Part shall preclude the department from otherwise requiring funding of on-site environmental monitoring at any solid waste management facility.

(b) Transferability.

(1) All permits issued pursuant to this Part are transferable only upon prior written approval of the department and a demonstration that the prospective transferee will be able to comply with applicable laws and regulations, permit conditions, and other requirements to which the prospective transferor is subject.

(2) Upon transfer of ownership of all or part of a site used as a landfill, a provision must be included in the property deed indicating the period of time during which the property has been used as a landfill, a description of the solid waste contained within, and the fact that the records for the facility have been filed with the department. The deed also must reference a map, which must be filed with the county clerk, showing the limits of the areas in which solid waste is disposed within the property. In addition, inactive sites must meet the requirements of subdivision 360-2.15(k) of this Part.

(c) Duration of construction.

The department must fix the duration of construction for all solid waste management facilities, and construction must be completed pursuant to time frames which may be specified as special conditions in the permit.

(d) Duration of permits.

The department must fix the duration of permits for a period not to exceed 10 years, except that permits issued pursuant to the Clean Water Act for sewage sludge must not be issued for a period exceeding five years. In establishing the permit term, the department will consider the extent of the commitment to implement a recyclables recovery program and to develop and enhance economic markets for recyclables recovered within the proposed service area under local laws or ordinances adopted or to be adopted under section 120-aa of the General Municipal Law.

(e) Supervision and certification of construction.

The construction of a solid waste management facility and each stage of one must be undertaken under the supervision of an individual licensed to practice engineering in the State of New York. Upon completion of construction, that individual must certify in writing that the construction is in accordance with the terms of the applicable permit and tested in accordance with generally accepted engineering practices. Except as specified elsewhere in this Part, this certification must be submitted to the department within three months after completion of construction and must include as-built plans. The operator must notify the department, in writing, of the date when solid waste will be first received at the facility.

(f) Cessation of construction or operation activities.

If construction or operation activities started under a permit issued pursuant to this Part cease for a period of 12 consecutive months, the permit automatically expires on the last day of the 12th month following cessation of activities. There is no automatic expiration when the cessation of construction or operation is caused by factors beyond the reasonable control of the permittee, as determined by the department, or when such cessation is in accordance with the provisions of the permit.

(g) Department inspection of activities.

The permittee must authorize the commissioner or authorized department staff, after presentation of department credentials, to undertake inspections in accordance with subdivision 360-1.4(b) of this Part.

(h) Recyclables recovery.

In the case of a permit relating to a landfill (other than one used exclusively for ash residue, clean fill or construction and demolition debris), a solid waste incinerator (other than one used exclusively to incinerate regulated medical waste), a refuse-derived fuel processing facility, a construction and demolition debris processing facility, a mixed solid waste composting facility or a transfer station (other than one used exclusively for transfer of regulated medical waste), the permit must contain a condition that the permittee must not accept at the facility solid waste which was generated within a municipality that has either not completed a comprehensive recycling analysis or is not included in another municipality's comprehensive recycling analysis satisfying the requirements of subdivision 360-1.9(f) of this Part which has been approved by the department and implemented the recyclables recovery program determined to be feasible by the analysis.

(i) Approved design capacity.

Every permit must set forth the facility's approved design capacity.

§360-1.12 FINANCIAL ASSURANCE.

(a) Applicability.

(1) In addition to any financial assurance requirements specifically addressed in a Subpart of this Part, the department may require a form of financial assurance, acceptable to the department, from a permit holder, and conditioned upon compliance with the terms of the permit issued to such holder pursuant to this Part.

(2) A form of financial assurance, acceptable to the department, will be required to cover the cost of having the facility properly closed for facilities where the operator and the owner are not the same person.

(3) A form of financial assurance, acceptable to the department, may be required from registered facilities.

(b) Liability coverage.

A form of financial assurance for claims arising out of injury to persons or property, relative to either sudden and accidental occurrences or non-sudden and accidental occurrences, may be required for solid waste management facilities. Such financial assurance may be in the form of liability insurance, self-insurance or other form acceptable to the department. The amount of such financial assurance is to be set by the department.

(c) Forms of financial assurance.

Section 373-2.8 of this Title provides guidance on the criteria and wording of financial assurance instruments that the department will consider in assessing the acceptability of financial assurance mechanisms.

§360-1.13 RESEARCH, DEVELOPMENT AND DEMONSTRATION PERMITS.

(a) Permit.

The department may issue a research, development and demonstration permit for any solid waste management facility proposing to utilize an innovative and experimental solid waste management technology or process, including a beneficial use demonstration project. The application for such permit must clearly demonstrate adequate protection of public health and the environment and be consistent with federal and State laws and regulations and this Part. A permit issued under this section must not be for an activity of a continuing nature. The department may, at its discretion, waive or modify some or all of the application requirements for permits issued under this section.

(b) Permit application.

An application for a permit issued under this section must:

(1) describe the proposed activity in detail;

(2) describe how the applicant intends to provide for the receipt and treatment or disposal by the proposed facility of only those types and quantities of solid waste necessary to determine the efficiency and performance capabilities of the technology or process and the effects of such technology or process on human health and the environment; and how the applicant intends to protect human health and the environment in the conduct of the project; and

(3) state that the applicant will provide, on a timely basis, the department with any information obtained as a result of the activity undertaken under the permit. The information must be submitted in accordance with schedules identified in the permit.

(c) Permit restrictions.

The permit must:

(1) provide for the construction of facilities as necessary, and for the operation of the facility for not longer than one year (unless renewed as provided in subdivision (d) of this section);

(2) provide for the receipt and treatment or disposal by the facility of only those types and quantities of solid waste that the department determines necessary to determine, the efficiency and performance capabilities of the technology or process and the effects of such technology or process on human health and the environment; (3) include such requirements as the department determines necessary to protect human health and the environment (including, but not limited to requirements regarding monitoring, operation, financial assurance and closure, and such requirements as the department deems necessary regarding testing and providing of information to the commissioner about the operation of the facility); and

(4) provide that the commissioner, without affording the permittee a prior opportunity for a hearing, may order an immediate termination of all operations at the facility at any time the commissioner determines that termination is necessary to protect human health and the environment, provided that the permittee is provided an opportunity for a hearing on the termination issue no later than 10 days after the issuance of the order and a decision is rendered no more than 20 days after the close of the hearing record. Nothing in this Part shall preclude or affect the commissioner's authority to issue summary abatement orders under section 71-0301 of the ECL or to take emergency actions summarily suspending a permit under section 401.3 of the State Administrative Procedure Act.

(d) Renewal.

Permits issued under this section may be renewed not more than three times, unless the permittee demonstrates to the satisfaction of the department that a longer time period is required to adequately assess the long-term environmental effects of the technology or process being studied under authority of the permit. Each renewal period will not exceed one year and will be conditioned upon compliance with this section.

§360-1.14 OPERATIONAL REQUIREMENTS FOR ALL SOLID WASTE MANAGEMENT FACILITIES.

(a) Applicability.

Except as elsewhere provided in this Part, any person who designs, constructs, maintains or operates any solid waste management facility subject to this Part must do so in conformance with the requirements of this section.

(b) Water.

(1) Solid waste must not be deposited in, and must be prevented from, entering surface waters or groundwaters.

(2) Leachate. All solid waste management facilities must be constructed, operated and closed in a manner that minimizes the generation of leachate that must be disposed of and prevent the migration of leachate into surface and groundwaters. Leachate must not be allowed to drain or discharge into surface water except pursuant to a State Pollutant Discharge Elimination System permit and must not cause or contribute to contravention of groundwater quality standards established by the department pursuant to ECL section 17-0301.

(c) Public access.

Public access to facilities and receipt of solid waste may occur only when an attendant is on duty. This provision does not apply to facilities (such as transfer stations) without permanent operating mechanical equipment.

(d) Control of access.

Access to and use of the facility must be strictly and continuously controlled by fencing, gates, signs, natural barriers or other suitable means.

(e) Control program for unauthorized waste.

(1) The facility owner or operator must institute a control program (including measures such as signs at all maintained access points indicating hours of operation and the types of solid waste accepted and not accepted, monitoring, alternate collection programs, passage of local laws, etc.) to assure that only solid waste authorized by the department to be treated, disposed of or transferred at the facility is being treated, disposed of or transferred at that facility. The facility owner or operator must develop and implement a program to teach the facility's staff to recognize, remove and report receipt of solid waste not authorized by the department to be treated, disposed of or transferred at the facility.

(2) If solid waste not authorized by the department to be treated, disposed of or transferred at the facility is observed in the solid waste at the facility or delivered to the facility, the facility owner or operator may refuse to accept the waste. If the owner or operator accepts the waste, the owner or operator must remove it, segregate it, and provide to the department a record identifying that waste and its final disposition. The department must be notified of each incident in the annual report and records of each incident must be available for department review. Any unauthorized waste accepted by the facility owner or operator must be managed in accordance with applicable federal or State laws and regulations.

(3) Solid waste not authorized by the department to be treated, disposed of or transferred at the facility that is segregated must be adequately secured and contained to prevent leakage or contamination of the environment. The facility owner or operator must cause it to be removed as soon as practicable, but not to exceed 90 days after discovery, by a person authorized to transport such waste to a facility approved to receive it for treatment, disposal or transfer.

(f) Maintenance and operation.

(1) Facility components must be maintained and operated in accordance with the permit and intended use of the facility. Proper site grading must be maintained to prevent depressions, desiccation cracks or soil erosion and minimize ponding.

(2) Adequate numbers, types and sizes of properly maintained equipment must be available at the facility during all hours of operation to prevent curtailment of operations because of equipment failure except under extraordinary conditions beyond the control of the facility's owner or operator.

(3) Self inspection. The facility owner or operator must frequently monitor and inspect the facility for malfunctions, deteriorations, operator errors, and discharges that may cause a release to the environment or a threat to human health. The facility owner or operator must promptly remedy any deterioration or malfunction of equipment or structures or any other problems revealed by the inspections to ensure that no environmental or human health hazard develops. Where a hazard is imminent or has already occurred, remedial action must be taken immediately.

(g) Contingency plan.

Contingency plans approved by the department for emergency situations must be implemented in accordance with the terms of the plan.

(h) Monitoring samples and results.

Samples and measurements taken for the purpose of monitoring must be representative of the monitored activity and must be conducted in a manner approved by the department, including the use of a laboratory and data-reporting format acceptable to the department.

(i) Recordkeeping.

(1) The facility owner or operator must retain records of all unauthorized solid waste accepted identifying the waste and its final disposition. Such records must be summarized in the annual report. They must include the date solid waste was received, the type of solid waste received, the date of disposal, the disposal method and location.

(2) The facility owner or operator must record self inspections as required by paragraph 360-1.14(f)(3) of this Subpart in an inspection log. These records must be retained for at least seven years from the date of inspection. They must include the date and time of the inspection, the name of the inspector, a description of the inspection including the identity of specific equipment and structures inspected, the observations recorded, and the date and nature of any remedial actions implemented or repairs made as a result of the inspection.

(3) Except as otherwise specified in this Part pertaining to a specific type of solid waste management facility, the facility owner or operator must keep records of all data used to develop or support the permit applications and any supplemental information submitted to comply with the requirements of this Part and pertaining to construction of the facility throughout the active life of the facility and the post-closure period. Records pertaining to the operation of the solid waste facility must be kept for a period of no less than seven years from the date they are made or are required to be made, whichever is later.

(4) The facility owner or operator must retain records of all monitoring information (including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation; and copies of all reports required by, or by a permit issued under, this Part) for a period of at least seven years from the date of the sample analysis, measurement, report or application. Existing water quality records must be kept throughout the active life of the facility and the post-closure period. Records for monitoring information must include: the date, exact place, and time of sampling or measurements; the name of the individual who performed the sampling and measurement; the date analyses were performed; the name of the individual who performed the analyses; the analytical techniques or methods used; and the result of such analyses. Additional information relating to the analysis, including records of internal laboratory quality assurance and control, must be made available to the department at its request.

(j) Confinement of solid waste.

Blowing litter must be confined to solid waste holding and operating areas by fencing or other suitable means. Solid waste must be confined to an area that can be effectively maintained, operated and controlled. Solid waste must not be accepted at a solid waste management facility unless the waste is adequately covered or confined in the vehicle transporting the waste to prevent dust, and blowing litter.

(k) Dust control.

Dust must be effectively controlled so that it does not constitute a nuisance or hazard to health, safety, or property. The facility owner or operator must undertake any and all measures as required by the department to maintain and control dust at and emanating from the facility.

(l) Vector control.

The facility must be maintained so as to prevent or control on-site populations of vectors using techniques appropriate for protection of human health and the environment and prevent the facility from being a vector breeding area.

(m) Odor control.

Odors must be effectively controlled so that they do not constitute nuisances or hazards to health, safety or property.

(n) On-site roads. On-site roads and other throughways must be passable and safe at all times.

(o) Equipment shelter.

Shelter for mobile equipment must be provided for routine maintenance and repair, as determined by the department.

(p) Noise levels.

Noise levels resulting from equipment or operations at the facility must be controlled to prevent transmission of sound levels beyond the property line at locations zoned or otherwise authorized for residential purposes to exceed the following Leq energy equivalent sound levels:

Character of Community Leq Energy Equivalent Sound Levels
7 a.m.-10 p.m. 10 p.m.-7 a.m.
Rural 57 decibels (A) 47 decibels (A)
Suburban 62 decibels (A) 52 decibels (A)
Urban 67 decibels (A) 57 decibels (A)

The Leq is the equivalent steady-state sound level which contains the same acoustic energy as the time varying sound level during a one-hour period. It is not necessary that the measurements be taken over a full one-hour time interval, but sufficient measurements must be available to allow a valid extrapolation to a one-hour time interval.

(1) If the background residual sound level (excluding any contributions from the solid waste management facility) exceeds these limits, the facility must not produce an Leq exceeding that background.

(2) The sound level must be the weighted sound pressure level measured with the slow metering characteristic and A-weighted.

(3) Measuring instruments must be Type 1 general purpose sound level meters, Type 2, or corresponding special sound level meters Type S1A or S2A.

(4) Mufflers are required on all internal combustion-powered equipment used at the facility. Sound levels for such equipment must not exceed 80 decibels (A) at a distance of 50 feet from the operating equipment.

(q) Open burning.

Open burning at a solid waste management facility is prohibited, except for the infrequent burning of agricultural wastes, silvicultural wastes, land clearing debris (excluding stumps), diseased trees or debris from emergency cleanup operation, pursuant to a restricted burning permit issued by the department. Measures must be taken immediately to extinguish any non-permitted open burning and the department must be notified that it has occurred.

(r) Department-approved facilities.

Solid waste resulting from industrial or commercial operations, sludge, and septage must be processed, disposed, used or otherwise managed only at facilities that the department has specifically approved for such management of that specific waste.

(s) Emergency numbers.

Telephone numbers to emergency response agencies such as the local police department, fire department, ambulance and hospital must be conspicuously posted in all areas where telephones are available for use at the facility.

(t) Facilities.

Where operating personnel are required, certain facilities must be provided (except in the case of composting facilities using aerated static pile or windrow techniques and land application facilities). These facilities include adequately heated and lighted shelters, a safe drinking water supply, sanitary toilet facilities and radio or telephone communication.

(u) Facility operator requirements.

(1) Except as otherwise specified in a Subpart of this Part pertaining to a specific type of solid waste management facility, the facility operator, during all hours of operation, must have available for use, a copy of the permit issued pursuant to this Part, including conditions, a copy of the operation and maintenance report, the contingency plan and the most recent annual report.

(2) Operation of every landfill, and other solid waste management facilities as directed by the department, must be conducted under the direction of a facility operator. The facility operator must attend and successfully complete within 12 months from their date of employment, a course of instruction in solid waste management procedures relevant to the facility at which the facility operator is employed. The course must be provided or approved by the department. The department will issue a certificate of attendance to each individual successfully completing the course. Attendance at a department-approved course before the effective date of this Part will adequately satisfy these training requirements.

(v) Salvaging.

Salvaging, if permitted by the facility owner or operator, must be controlled by the facility owner or operator within a designated salvage area and must not interfere with facility operations or create hazards or nuisances.

(w) Closure.

The owner or operator of any active or inactive solid waste management facility must, upon termination of use, properly close that facility and must monitor and maintain such closure so as to minimize the need for further maintenance or corrective actions and to prevent or remedy adverse environmental or health impacts such as, but not limited to, contravention of surface water and groundwater quality standards, gas migration, odors and vectors. Termination of use includes those situations where a facility has not received solid waste for more than one year, unless otherwise provided by permit, or if the permit has expired. Termination of use also results from permit denial or order of the commissioner or of a court. Specific closure measures which may also include corrective actions as specified in this Part are subject to approval by the department.

§360-1.15 BENEFICIAL USE.

(a) Applicability.

(1) This section applies to materials that, before being beneficially used (as determined by the department), were solid waste. This section does not apply to solid wastes subject to regulation under Subpart 360-4 of this Part, except in the manner identified in subdivision 360-1.15(b) of this Part.

(2) Beneficial use determinations granted by the department before the effective date of this section shall remain in effect, subject to all conditions contained therein, unless specifically addressed by subsequent department action.

(b) Solid waste cessation.

The following items are not considered solid waste for the purposes of this Part when used as described in this subdivision:

(1) materials identified in subparagraphs 371.1(e)(1)(vi)-(viii) of this Title that cease to be solid waste under the conditions identified in those subparagraphs;

(2) compost and other waste derived soil conditioning products from facilities that are exempt or registered under this Part, and products that satisfy the applicable requirements under Subpart 360-5 of this Part;

(3) unadulterated wood, wood chips, or bark from land clearing, logging operations, utility line clearing and maintenance operations, pulp and paper production, and wood products manufacturing, when these materials are placed in commerce for service as mulch, landscaping, animal bedding, erosion control, wood fuel production, and bulking agent at a compost facility operated in compliance with Subpart 360-5 of this Part;

(4) uncontaminated newspaper or newsprint when used as animal bedding;

(5) uncontaminated glass when used as a substitute for conventional aggregate in asphalt or subgrade applications;

(6) tire chips when used as an aggregate for road base materials or asphalt pavements in accordance with New York State Department of Transportation standard specifications, or whole tires or tire chips when used for energy recovery;

(7) uncontaminated soil which has been excavated as part of a construction project, and which is being used as a fill material, in place of soil native to the site of disposition;

(8) nonhazardous, contaminated soil which has been excavated as part of a construction project, other than a department-approved or undertaken inactive hazardous waste disposal site remediation program, and which is used as backfill for the same excavation or excavations containing similar contaminants at the same site. Excess materials on these projects are subject to the requirements of this Part. (Note: use of in-place and stockpiled soil from a site being converted to a realty subdivision, as defined by the Public Health Law (10 NYCRR 72), must be approved by the local health department.);

(9) nonhazardous petroleum contaminated soil which has been decontaminated to the satisfaction of the department and is being used in a manner acceptable to the department;

(10) solid wastes which are approved in advance, in writing, by the department for use as daily cover material or other landfill liner or final cover system components pursuant to the provisions of subdivision 360-2.13(w) of this Part when these materials are received at the landfill;

(11) recognizable, uncontaminated concrete and concrete products, asphalt pavement, brick, glass, soil and rock placed in commerce for service as a substitute for conventional aggregate;

(12) nonhazardous petroleum contaminated soil when incorporated into asphalt pavement products by a producer authorized by the department;

(13) unadulterated wood combustion bottom ash, fly ash, or combined ash when used as a soil amendment or fertilizer, provided the application rate of the wood ash is limited to the nutrient need of the crop grown on the land on which the wood ash will be applied and does not exceed 16 dry tons per acre per year;

(14) coal combustion bottom ash placed in commerce to serve as a component in the manufacture of roofing shingles or asphalt products; or as a traction agent on roadways, parking lots and other driving surfaces;

(15) coal combustion fly ash or gas scrubbing by-products placed in commerce to serve as an ingredient to produce light weight block, light weight aggregate, low strength backfill material, manufactured gypsum or manufactured calcium chloride; and

(16) coal combustion fly ash or coal combustion bottom ash placed in commerce to serve as a cement or aggregate substitute in concrete or concrete products; as raw feed in the manufacture of cement; or placed in commerce to serve as structural fill within building foundations when placed above the seasonal high groundwater table.

(c) Special reporting requirements.

No later than 60 days after the first day of January following each year of operation, the generator of coal combustion ash must submit a report to the department that identifies the respective quantities of coal combustion bottom ash, fly ash, and gas scrubbing by-products it generated during the calendar year to which it pertains and, with respect to coal combustion bottom ash, how much was sent to a manufacturer of roofing shingles or asphalt products, how much was used as a traction agent on roadways, parking lots, and other driving surfaces, how much was sent to a manufacturer of cement, concrete or concrete products, and how much was used as structural fill; and, with respect to coal combustion fly ash and to gas scrubbing by-products, how much was used to produce light weight block, light weight aggregate, low strength backfill material (flowable fill), manufactured gypsum or manufactured calcium chloride.

(d) Case-specific beneficial use determinations.

(1) The generator or proposed user of a solid waste may petition the department, in writing, for a determination that the solid waste under review in the petition may be beneficially used in a manufacturing process to make a product or as an effective substitute for a commercial product. Unless otherwise directed by the department, the department may not consider any such petition unless it provides the following:

(i) a description of the solid waste under review and its proposed use;

(ii) chemical and physical characteristics of the solid waste under review and of each type of proposed product;

(iii) a demonstration that there is a known or reasonably probable market for the intended use of the solid waste under review and of all proposed products by providing one or more of the following:

(a) a contract to purchase the proposed product or to have the solid waste under review used in the manner proposed;

(b) a description of how the proposed product will be used;

(c) a demonstration that the proposed product complies with industry standards and specifications for that product; or

(d) other documentation that a market for the proposed product or use exists; and

(iv) a demonstration that the management of the solid waste under review will not adversely affect human health and safety, the environment, and natural resources by providing:

(a) a solid waste control plan that describes the following:

(1) the source of the solid waste under review, including contractual arrangements with the supplier;

(2) procedures for periodic testing of the solid waste under review and the proposed product to ensure that the proposed product's composition has not changed significantly;

(3) the disposition of any solid waste which may result from the manufacture of the product into which the solid waste under review is intended to be incorporated;

(4) a description of the type of storage (e.g., tank or pile) and the maximum anticipated inventory of the solid waste under review (not to exceed 90 days) before being used;

(5) procedures for run-on and run-off control of the storage areas for the solid waste under review; and

(6) a program and implementation schedule of best management practices designed to minimize uncontrolled dispersion of the solid waste under review before and during all aspects of its storage as inventory and/or during beneficial use; and

(b) a contingency plan that contains the information and is prepared in accordance with subdivision 360-1.9(h) of this Part.

(2) The department will determine in writing, on a case-by-case basis, whether the proposal constitutes a beneficial use based on a showing that all of the following criteria have been met:

(i) the essential nature of the proposed use of the material constitutes a reuse rather than disposal;

(ii) the proposal is consistent with the solid waste management policy contained in section 27-0106 of the ECL;

(iii) the material under review must be intended to function or serve as an effective substitute for an analogous raw material or fuel. When used as a fuel, the material must meet the requirements of paragraph 360-3.1(c)(4) of this Part and the facility combusting the material must comply with the registration requirements in subdivision 360-3.1(c) of this Part, if appropriate;

(iv) for a material which is proposed for incorporation into a manufacturing process, the material must not be required to be decontaminated or otherwise specially handled or processed before such incorporation, in order to minimize loss of material or to provide adequate protection, as needed, of public health, safety or welfare, the environment or natural resources;

(v) whether a market is existing or is reasonably certain to be developed for the proposed use of the material under review or the product into which the solid waste under review is proposed to be incorporated; and

(vi) other criteria as the department shall determine in its discretion to be appropriate.

(3) The department will either approve the petition, disapprove it, or allow the proposed use of the solid waste under review subject to such conditions as the department may impose. When granting a beneficial use determination, the department shall determine, on a case-by-case basis, the precise point at which the solid waste under review ceases to be solid waste. Unless otherwise determined for the particular solid waste under review, that point occurs when it is used in a manufacturing process to make a product or used as an effective substitute for a commercial product or used as a fuel for energy recovery. As part of its petition, the petitioner may request that such point occur elsewhere. In such a request, the petitioner must include a demonstration that there is little potential for improper disposal of the material or little potential for the handling, transportation, or storage of the solid waste under review to have an adverse impact upon the public health, safety or welfare, the environment or natural resources.

(4) The department may revoke any determination made under this subdivision if it finds that one or more of the matters serving as the basis for the department's determination was incorrect or is no longer valid or the department finds that there has been a violation of any condition that the department attached to such determination.