DEE-14: Construction & Demolition Debris Landfill Enforcement Policy
The DEC Policy System
Department ID: DEE - 14
Program ID: N/A
Issuing Authority: Thomas C. Jorling, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Thomas C. Jorling
Date: 15 February 1989
Issuance Date: 15 February 1989
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 Enforcement Directive establishes an enforcement strategy based on the new Part 360 regulations to address the threat that illegally operated Construction and Demolition (C&D) debris disposal sites pose to human health and the environment.
Under the new Part 360 Regulations, effective 12/13/88, the Definition of C&D waste has been narrowed, and certain specific types of materials have been expressly excluded. Pursuant to 6 NYCRR 360-1.2 (b)(33), the only wastes now acceptable for deposition in a C&D site Are:
- uncontaminated solid waste resulting from the construction, remodeling, repair and demolition of structures and roads; and
- uncontaminated solid waste consisting of vegetation resulting from land clearing and grubbing, utility line maintenance and seasonal and storm related cleanup.
Such waste includes, but is not limited to bricks, concrete and other masonry fixtures, non-asbestos insulation, roofing shingles, asphaltic pavement, glass, plastics that are not sealed in a manner that conceals other wastes, electrical wiring and components containing no hazardous liquids, and metals that are incidental to any of the above.
Solid wastes which are not Construction and Demolition debris are the following (even if resulting from the construction, remodeling, repair and demolition of structures and roads and land clearing):
- asbestos waste,
- corrugated container board,
- electrical fixtures containing hazardous liquids such as fluorescent light ballasts or transformers,
- drums and containers, 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 Construction and Demolition processing facility, that renders individual waste components unrecognizable, such as pulverizing or shredding.
The Department should therefore regularly inspect all operating C&D sites to ensure that only acceptable materials are being deposited therein.
Generators of waste have a significant incentive to dispose of their non-C&D waste illegally at C&D sites for several reasons, including the following:
- C&D site operators operate relatively inexpensively (compared to other solid waste landfills, incinerators, etc.); therefore, they typically charge less to accept waste than these other disposal facilities; and
- The Department's enforcement efforts against landfills that receive municipal garbage has further restricted the number of available and acceptable waste disposal sites.
Information the Department has obtained from a wide variety of sources confirms that some C&D hauling companies and site operators commonly violate the Department's regulations by accepting non-C&D waste including, but not limited to the following:
- medical waste, and
- industrial waste.
Placing non-C&D waste in a C&D site constitutes a violation of the law by each participant in this process, including the source of the waste (if aware of the unauthorized disposal), the transporter, the operator, and the owner of the landfill.
III. Enforcement Strategy
I am establishing the following enforcement strategy to ensure that these violations of our regulatory scheme do not go unpunished.
High enforcement priority should be given to
- sites at which there is evidence of the disposal of hazardous or industrial waste or asbestos;
- the presence of any medical waste (whether infectious or non-infectious);
- any actual or anticipated contamination of ground or surface water, particularly where municipal water supplies may be impacted;
- "bad actors" with a history of criminal or environmental violations;
- sites in or near residential areas; and
- sites in or affecting environmentally sensitive areas, such as wetlands or other surface waters, flood plains or sensitive aquifers.
- C&D Operators
The Division of Law Enforcement through its ECO's shall investigate C&D sites and issue tickets to any individual operating a C&D site that contains readily observable non-C&D material or other readily observable violations of our regulations. (e.g., deposition into surface or groundwater, failure to control access, failure to control odors, failure to have operator on duty during operating hours, excessive lift heights and improperly steep slopes; see generally, 6 NYCRR 360-1.14 and 360-7.10 for operational Requirements.)
Sites found to be operating without the necessary Department permit should be ticketed to reflect a violation of 360-1.7(a)(1) (the only sites that this approach does not apply to are sites covered by the "transition rules," which are discussed in Section 4, below. The Division of Solid Waste should be consulted before ticketing such facilities). Where appropriate, the ECO should also consider issuing tickets based on violations of Article 24 (wetlands), Article 17 (Water Pollution Control, see §17-0501), or Article 15 (Stream Protection Violations).
In order to improve the likelihood that the Department will prevail if the defendant pleads not guilty to a ticket, the ECOs are directed to take photographs to establish that readily observable non-C&D materials are present. In addition, regional solid waste personnel, and personnel of other programs are to be available, where appropriate and consistent with regional priorities, to take samples of debris believed to be industrial, commercial or hazardous waste. The Regional Director shall assign personnel from the Divisions of Solid Waste, Air, Water or other programs to support investigations by the Division of Law Enforcement as appropriate. Additionally, program support shall be made available to assist in determining whether the site complies with other regulatory requirements (e.g., controlled access, operation in a flood plain, lift heights, appropriate cover, etc.).
Simple violations of operating requirements or acceptance of small amounts of non-C&D waste should be addressed by issuance of criminal tickets by the Division of Law Enforcement. Significant violations, including those requiring complex remediation or closure, should be handled by the commencement of an administrative proceeding or, in the case of persistent and ongoing violations, by referral through the Office of General Counsel to the Attorney General's office to seek injunctive relief, penalties and, if appropriate, remediation and closure.
Appropriate actions against the transporters of waste to C&d sites will depend on the nature of the waste. If the material is a non-exempt quantity of regulated waste (see 6 NYCRR 364.1(e)(3)), tickets should be issued to the truck drivers as well as the owner of the trucking company for violations of Part 364 (see 6 NYCRR 364.2(a)(3)). In addition, the transporter also can be cited for a violation of 6 NYCRR 360-1.5 (disposal at a site not authorized to accept such waste). Note that this provision also will be applicable to wastes whose transportation is not subject to regulation under Part 364, such as garbage. Additionally, where appropriate, a ticket should be written for depositing a noisome or unwholesome substance on or along the highway (ECL 71-3501), or violations of ECL Article 24 (wetlands), Article 17 (Water Pollution Control, see ECL §17-0501) or Article 15 (Stream Protection Violations).
Finally, consideration should be given, in appropriate circumstances, to seeking assistance of local law enforcement in jurisdictions which have antidumping ordinances, or the assistance of the State Police Scales Team to check for relevant vehicle and traffic violations (overweight trucks, etc.).
- Source (Transfer Stations)
It is a violation of 6 NYCRR 364.2(b) to relinquish regulated waste to an unpermitted transporter. When ECO'S inspect C&D sites and truckers, they should attempt to interview the C&D site operator and the truckers to determine the source of non-C&D material in order to link the material to a particular source. Once the ECO's identify a regulated waste, and its source, the ECO should meet with the Regional Attorney and Regional Solid Waste Engineer to Determine whether
- the source should be ticketed under 6 NYCRR 364.2(b);
- the Regional Attorney should initiate an administrative proceeding; or
- the case should be referred to the Attorney General's or local District Attorney's office for filing of a civil complaint or initiation of a criminal prosecution.
- Transition Rules
Although the new Part 360 regulations remove the previously available one-year operating exemption, they nonetheless provide transition rules (6 NYCRR 360-1.7(a)(2)) that are applicable to those C&D sites which were legally operating before December 31, 1988. If a new site began operating after December 31, 1988, the transition rules do Not apply and a permit to operate is required.
If an operator complies with the requirements set forth in the transition rules, (see 6 NYCRR 360-1.7(a)(2)), they allow him to continue operation of the site within the horizontal footprint of the landfill which existed on December 30, 1988, while a permit application is processed.
Before charging an owner or operator for operating without a permit at a site which was legally exempt and operating before December 31, 1988, the status of the site's compliance, or non- compliance with the applicable transition rules must be ascertained by the Division of Solid Waste. Note, however, that the status of a site under the transition rules is not an impediment to the enforcement of the operational requirements discussed in section 1, supra.
- Civil and Administrative Sanctions
The penalties applicable to violations of ECL Article 27, Title 7, or 6 NYCRR Part 360, are contained in ECL 71-2703, which provides that civil and administrative sanctions are up to $2,500 for each violation, with an additional penalty of up to $1,000 for each day during which such violations continue. Note that by Chapter 253 of the Laws of 1988, the Legislature, Responding to the burgeoning C&D crisis, added a new subdivision 3 to ECL 71-2703, which provides for an additional civil penalty of up to $5,000, with each day of illegal deposition constituting a separate violation.
- Criminal Sanctions
The criminal sanctions applicable to any person who commits a violation of ECL Article 27, Title 7, or 6 NYCRR Part 360, and who does so either intentionally, knowingly, recklessly or with criminal negligence (See Penal Law §15.05), is liable for a fine of not less than $1,000 nor more than $2,500 per day of violation.
- Civil and Administrative Sanctions
- Coordination with Localities
It is critical that the Department coordinate with localities to strengthen enforcement efforts against the various participants discussed above. The Regions should send a version of the letter attached as Attachment "A" to the localities within their jurisdictions. This letter:
- highlights the C&D problem and requests the locality to take an active enforcement role to alleviate any problems associated with these sites; and
- recommends that the localities adopt a local ordinance that will give them the authority to regulate C&D sites.
The potential threat to the environment posed by illegally operated C&D sites, as well as the high visibility these sites have received, make it essential that the Department undertake a coordinated enforcement strategy to punish the violators of the C&D regulations and to deter future violations. This Enforcement Guidance Directive is designed to establish such a coordinated strategy against the operators of C&D landfills, as well as the transporters and sources of illegally disposed of waste.
Dated: Albany, New York
February 15, 1989
Thomas C. Jorling
Attachment A - Sample Letter
The environment in many parts of our State is being threatened by the illegal disposal of various types of illegal waste into what the Department of Environmental Conservation refers to as Construction and Demolition (C&D) landfills. While these C&D landfills are only allowed to accept pure Construction and Demolition debris, we are finding illegal operators accepting household garbage, septage and industrial waste.
While the Department continues to take action against illegal C&D sites, our resources are limited, and experience has shown that involvement by local authorities is often the key to the prompt identification and closure of illegal C&D sites. To that end, some communities within our state have adopted ordinances that authorize them to regulate C&D landfills in order to provide protection to residents and the environment. I recommend that you consider adopting such an ordinance.
I am confident that together we can minimize the potentially dangerous illegal disposal of waste within your community and I look forward to working with you toward that end.
Please contact me if you have any questions.