DEE-8: Closure of Active Solid Waste Landfills Enforcement Policy
The DEC Policy System
Department ID: DEE - 8
Program ID: N/A
Issuing Authority: Thomas C. Jorling, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Thomas C. Jorling
Date: 29 December 1988
Phone: (518) 457-4348
Issuance Date: 17 September 1984
Revised: 29 December 1988
Latest Review Date (Office Use):
Consistent with the Civil Penalty Policy; Order on Consent Enforcement Policy; Record of Compliance; Natural Resource Damages and Small Business Self-Disclosure Policy:
- The policies and procedures set out in this document are intended solely for the use and guidance of DEC personnel. They are not intended to create any substantive or procedural rights, enforceable by any party in administrative and judicial litigation with the State of New York. DEC reserves the right to act at variance with these policies and procedures.
- Any penalty calculations undertaken hereunder by DEC in anticipation of litigation are exempt from disclosure under the Freedom of Information Law.
- Pursuant to §4547 of the Civil Practice Law and Rules of the State of New York, all Evidence or conduct of negotiations or settlement are inadmissible as evidence as proof of liability for or invalidity of the claim which is disputed as to either validity or amount of damages.
- The penalty amounts calculated with the aid of this document in adjudicated cases must, on the average and consistent with consideration of fairness, be significantly higher than the penalty amounts which DEC accepts in consent orders which are entered into voluntarily by respondents.
This document constitutes the policies and procedures by which the Department of Environmental Conservation (DEC) is to insist upon compliance with New York State law and regulations governing closures of active solid waste landfills.
The enactment in 1973 of Article 27, Title 7 ("Solid Waste Management and Resource Recovery facilities") of the Environmental Conservation Law (ECL) reflected the New York State Legislature's determination
to assure that solid waste management is conducted in a safe, sanitary, efficient, economic and environmentally sound manner throughout the State by providing a unified regulatory framework therefor.
The legislation empowers DEC to promulgate rules regulating the operation of solid waste management facilities.
When the regulations controlling the operation of solid waste management facilities went into effect in 1977, DEC's initial Enforcement efforts focused on requiring operators to apply for permits. Although numerous enforcement orders were issued Establishing standards and deadlines for the submission of applications for these permits and although many other operators made oral commitments to seek such authorizations, DEC's success in assuring compliance with the stringent standards of Part 360 of DEC's regulations [6 NYCRR Part 360] by means of the issuance of permits was relatively modest. Accordingly, my predecessor issued Organization and Delegation Memorandum 84-36 on September 17, 1984, and, pursuant to that memorandum, DEC undertook a vigorous landfill enforcement program to develop orders on consent for closure of landfills whose operational violations warranted this action as the most practicable environmentally protective measure. This program has been very successful and has resulted in the closure of many unlawful facilities.
These enforcement efforts have been undertaken at a time when local governments generally have not replaced landfills closed under law with new lawful solid waste management facilities. Hence, while DEC has been successful in its efforts to close landfills having the potential of causing environmental harm, local government failure to provide replacement solid waste management capacity for its citizens has brought about a potential capacity shortfall.
In furtherance of the philosophy embodied in Chapter 70 of the Laws of 1988 addressing the solid waste management issue as a joint State-local government effort, preserving their respective traditional roles, DEC has reviewed its landfill enforcement program to determine whether it could be refined to enhance the use of landfill enforcement proceedings to drive new disposal capacity and encourage comprehensive solid waste management planning.
In accordance with the mandate to protect and enhance the environment, consistent with social and economic considerations, it remains DEC's objective win enforcement proceedings to close existing unlawful landfills that are contaminating the environment and whose continued contamination cannot be stopped, to encourage new, preferably regionalized, long-term comprehensive solid waste management programs, and to enhance implementation of the state's declared policy to promote waste reduction and recycling. DEC will apply its enforcement powers to bring about this result in as expeditious a manner as practicable. Under Guidelines issued herein, DEC may allow continued operations of Contaminating landfills under category 3 below, under authority of a consent order, or a modification thereof, for periods of as short a duration as possible but not to exceed three years in order to provide interim disposal capacity during the time good-faith efforts are being made toward the implementation of a comprehensive solid waste management program providing long-term management to the residents of the locale within which the respondent's facility is located. This is not a significant departure from the strict enforcement posture articulated in Organization and Delegation Memorandum 84-36. Rather, it is a refinement of the provisions of that document relating to DEC cooperation in providing local governments time to develop a long-term solid waste management programs. It also is consistent with DEC's judicially sanctioned discretion in enforcement matters [see, e.g., In the Matter of New York Public Interest Research Group, Inc. et al. v. Town of Islip et al., 71 N.Y.2d 292, 525 N.Y.S.2d 798, 520 N.E.2d 517, 27 ERC 1321 (1988); Bayswater Civic Association et al. v. NYSDEC et al., (Sup. Ct., Queens Co., Index No. 21172/87, 1988)].
III. Enforcement Strategy
The following are the ordered priorities of the active solid Waste landfill closure enforcement program. The object of this prioritization is to continue to target for aggressive enforcement action a population of landfills incapable of being brought into Strict compliance with applicable law and regulation that are found in each region across New York State and to identify those landfills which, although required to close; may continue operations under certain limited circumstances. One of the primary purposes of targeting a group of landfills from different geographical areas has been and continues to be to ensure that municipalities throughout the State recognize DEC's commitment to protecting health and the environment in connection with these facilities. Only through consistent enforcement in each region can DEC's message be transmitted and the deterrent effect on other violators achieved. Accordingly, I hereby establish the following priorities for enforcement against landfills incapable of being brought into strict compliance with applicable law and regulation and guidelines for allowing certain of these landfills to continue operations in limited circumstances:
- To require immediate and proper closure of those landfills where there is evidence of immediate adverse environmental and/or health impacts that are incapable of being mitigated on an interim basis. Any site presenting such an impact should be dealt with immediately either by a consent order which embodies a commitment to close immediately or the issuance of a summary abatement order compelling such relief.
- To require proper and expeditious closure of those landfills where there is evidence of immediate adverse environmental and/or health impacts that are capable of being mitigated on an interim basis (as in the case of contamination of residential water supply wells, the provision of alternate water supplies to affected residents). Any site presenting such an impact also should be dealt with immediately, by the issuance of a summary abatement order; by the execution of a consent order; or by administrative enforcement action, to cease acceptance of additional waste on a date certain (not to exceed three months) and to close on a date certain, with the dates set forth in the consent order or Commissioner's order with the owner, operator, or other responsible party.
- To require proper closure on a date certain of landfills where there is evidence of adverse environmental and/or health impacts that do not pose an immediate threat and that cannot be eliminated. However, those landfills must cease acceptance of additional waste within three months after the execution of the order and close on a date certain unless all of the following are satisfied:
- there is an imminent disposal capacity crisis for the municipalities served by the facility (that is, the area residents depend upon the facility, and there are no other reasonably available alternative disposal facilities (1) in the event of cessation of waste acceptance and closure), or, in the case of a landfill sought to be used in the circumstances described in the ninth and tenth bullets, there is an imminent disposal capacity crisis for the municipalities served by the landfill(s) to be closed and the landfill in question is the reasonably available alternative or the remaining landfill in the county;
- the municipality has been making and continues to make progress acceptable to DEC -- either on its own or through participation in or with the efforts of another municipality (which may be a county) to devise and implement a comprehensive, long-term solid waste management program as the alternative to continued disposal at the landfill in question (in this regard, progress made in comprehensively planning solid waste management under ECL §27-0107 will be favorably considered);
- continued operation will be allowed only for the shortest time practicable (and in no event to exceed three years) in order to provide interim disposal capacity during the period in which the solid waste management program to handle the waste that otherwise would go to the facility in question is being developed and implemented (in this regard, however, any lateral growth in the facility shall be authorized only to better effectuate proper closure but in no event shall this growth exceed the provision of six months' additional capacity);
- in the case of a municipally owned or operated landfill, the municipality must enact any appropriate local laws under GML 120-aa within six months after execution of the consent order and must fully implement a mandatory source separation/recycling program within the sooner of twelve months after execution of the consent order on September 1, 1992, unless within those time periods the planning unit within which it is located enacts such legislation and implements such program and the municipality participates in it;
- in the case of a privately-owned or operated facility, measures are taken to ensure that waste sought to be disposed of at the facility comes only from jurisdictions implementing a comprehensive municipal source separation/recycling program;
- in the case of a privately-owned or operated facility, the respondent will reserve all or part of the remaining capacity for New York State-generated waste;
- the facility is not located in the deep flow recharge area in Nassau or Suffolk County;
- measures are implemented to minimize to the extent practicable Any adverse impact continued operation may have, and to abate to the extent practicable the violation serving as the basis for the order to close and any other adverse environmental impacts resulting from the site;
- in the case of a regional enforcement strategy involving closure of all landfills within a particular county not located in Region 1 or 2,
- all other landfills within the county must be under order to cease acceptance of solid waste within three months of the execution of the consent order allowing continued operation of the landfill in question,
- the operator of that landfill must accept all solid waste generated within that county that otherwise would have gone to the other landfills,
- that landfill is, environmentally, the soundest one in the County that is able to accommodate all such other waste, and
- the operator of that landfill must establish an account or fund into which shall be placed all tipping fees received as a result of disposal of such other waste, in order to finance the closure of the landfill; and
- in the case of a regional enforcement strategy involving closure of the only landfill within a particular county not located in Region 1 or 2, the landfill in question is the one into which will go the solid waste that the landfill to be closed would otherwise have gone and the operator of the landfill in question establishes an account or fund into which shall be placed all tipping fees received as a result of disposal of such other waste, other than those legitimately needed to cover the additional operational costs associated with the disposal of such other waste, in order to finance the closure of the landfill.
- To require closure if the landfill does not have a permit and is incapable of being upgraded, or the respondent will not upgrade, to allow the respondent to obtain a permit and it does not fit into any of the above categories.
- In General
Regional enforcement efforts shall continue to concentrate on a county-by-county basis to implement the enforcement priorities pursuant to the criteria set forth in this policy. DEC should seek either a consent order or an order after hearing in which, to the extent practicable, (a) the landfills will be closed; and (b) such closure action will be consistent with the implementation of a regionalized, comprehensive solid waste management program that will further the State solid waste management priorities (set forth in ECL §27-0106) and the planning unit concept (described in ECL §27-0107).
To ensure that conditions at landfills do not deteriorate during the negotiation period, and to evidence to DEC the operators' good faith, interim consent orders may, in appropriate circumstances, continue to be entered into, pursuant to which mitigative steps will be undertaken. Examples of such activities include the requirements of leachate collection and treatment; implementation of household hazardous waste collection programs; implementation of source separation/recycling programs; etc.
- Inactive Hazardous Waste Disposal Sites
Enforcement against operators of landfills that are class 1 or 2 inactive hazardous waste disposal sites must be immediately referred to the Division of Environmental Enforcement for further action.
Any landfill classified as 2a on the Registry of Inactive Hazardous Waste Disposal Sites that is being considered as a candidate for continued operation under this policy shall have first priority for determination of reclassification or desisting. If the investigation results in the reclassification of the landfill to a Class 1 or 2, operation under a consent order cannot be allowed unless it is clearly demonstrated that continued operation will not interfere with any remediation to be undertaken at the site.
- Civil Penalties and Other Related Sanctions
Imposition of civil penalties against municipalities should continue to be considered by DEC enforcement personnel in carrying out this policy. Further, it is essential that in establishing schedules, DEC staff continue to include milestones for each step to be taken and stipulated penalties for missing any of those milestones, in order to guarantee that progress occurs. If it does not, further enforcement action must ensue. When civil penalties are sought, the appropriate level is to be determined after consideration of such factors as:
- seriousness of the danger, or threat of danger, to public health or the environment;
- the statutory and regulatory violations at issue and the maximum penalty imposable with respect to each;
- the extent of the violation (volume and duration);
- level of knowledge or intent of the violator;
- the prior record of the violator;
- the degree of subsequent cooperation demonstrated by the violator;
- the financial standing of the violator;
- penalty levels established for the violation;
- cost of compliance and/or remedial work;
- the extent of the economic benefit derived from the violation;
- the strength of DEC's case; and
- penalties assessed by DEC and courts for similar violations.
If a facility is allowed to continue in operation, a stipulated civil penalty of no less than $1,000 per day must be provided in the consent order for each day a significant measure necessary for closure called for in a schedule is missed. (Note that this $1,000 per diem civil penalty reflects only violations of Part 360. Violations of other statutory or regulatory standards, as groundwater quality, should be accounted for in the stipulated penalty.) There will be no suspensions of these civil penalties.
- Attorney General's Office
In any situation involving a landfill where administrative enforcement has not been, or is not likely to be, successful; or where administrative enforcement has been taken but the respondent has not complied with the order resulting therefrom, DEC, through its General Counsel, should properly refer the matter to the Attorney General's office. DEC legal and technical personnel should then closely work with the Attorney General's office on the case to ensure that this agency's goals are achieved.
V. Intra-Agency Procedures
The agency's policies and procedures dealing with consent orders, set forth in Organization and Delegation Memorandum #84-32 (July 20, 1984), are to be followed in implementing this landfill enforcement strategy. In addition, all Regional Attorneys are to utilize the attached model consent order to be sent under separate cover for cases involving Category 3 landfills; any material deviations therefrom shall be made only with the approval of the Division of Environmental Enforcement in consultation with the Division of Solid Waste, to ensure consistency of this enforcement effort. Copies of the executed consent order must be sent to Division of Environmental Enforcement and to the Bureau of municipal Waste Permitting of the Division of Solid Waste.
VI. Supersession and Revision
This document supersedes Organization and Delegation Memorandum #84-36 dated September 17, 1984 and Enforcement Guidance Memorandum number 14, dated September 17, 1984.
Organization and Delegation Memoranda #84-46 dated December 12, 1984 and #85-38 dated August 23, 1985 and Enforcement Guidance Memorandum Number 7 dated December 13, 1984 are hereby revised to reflect the policy regarding landfill enforcement embodied in this document.
Dated: Albany, New York
December 29, 1988
Thomas C. Jorling
1. Cost is not a factor in determining reasonably available alternative disposal facilities where the municipalities in question have not been proceeding in good faith in developing a comprehensive, long-term solid waste management program. Nothing in this document, however, is to be construed to preclude the use of methods to secure the availability of moneys to carry out the comprehensive, long-term solid waste management program, as by requiring the municipality to establish a capital reserve fund under General Municipal Law Section 6-c and to pay into that fund (which would be used to help pay some or all of the costs to construct the long-term solid waste management facility) the additional moneys the municipality would have had to have paid to manage the solid waste going to the facility in question had that facility been required to immediately cease acceptance of waste.