DRAFT - DSHM-SW-08-01 Solid Waste Management Facility Permitting Policy

NYS Department of Environmental Conservation DEC Policy DSHM-SW-08-01

I. Summary

The policy clarifies the Department of Environmental Conservation's (Department's) procedures with regard to solid waste management facility permitting, specifically in the context of Commissioner Grannis' priorities which include Combating Climate Change, Fostering Green & Healthy Communities, and Promoting a Toxic Free Future. (For a complete description of the Commissioner's Priorities, see http://www.dec.ny.gov/about/511.html) The Department views disposal capacity as an important resource that should be conserved and protected and the unnecessary use thereof should be avoided. This policy works toward those ends.

The policy seeks to maximize the Department's use of the permitting process to facilitate comprehensive solid waste management planning and ensure best practices in solid waste management facility operations. It aims to increase materials recovery, reduce the environmental impact of waste management, reduce greenhouse gas generation, extend the useful life of the state's landfill capacity resources, and minimize landfill encroachment on the state's natural resources. It is critical to scrutinize solid waste management facility permit decisions to ensure that the decisions the Department makes today support the state's policy objectives for the long-term.

The policy clarifies the Department's responsibilities to:

• integrate solid waste management facility permitting decisions with local solid waste management planning;
• ensure adequate public discourse and scrutiny of proposed solid waste management facility permits by considering these actions major under the 6 NYCRR Part 621 Uniform Procedures Regulations, where appropriate;
• ensure that State Environmental Quality Reviews (SEQR) consider all of the relevant environmental impacts of a proposed action;
• collect all the information available on greenhouse gas emissions from solid waste management facilities; and
• achieve adequate mitigation of the broad range of impacts of proposed facilities and actions.

This program policy is part of a wider Department initiative to increase materials recovery and reduce solid waste disposalThe initiative includes:
• revisions to 6 NYCRR Part 360 Solid Waste Management Facilities Regulations;
• development and implementation of a new State Solid Waste Management Plan;
• outreach to and education of local government entities in New York State;
• enforcement of the requirements of the Solid Waste Management Act; and
• development of legislative proposals intended to create new or revise existing solid waste management policy and increase the resources dedicated to recovery.

II. Policy

Through the permitting process the Department must ensure compliance with the law and regulations associated with the permitted activity, the statutory and regulatory requirements that must be considered in all permit applications, and that potential adverse environmental impacts are addressed and mitigated. It is critical to scrutinize solid waste facility permit decisions to ensure that the decisions the Department makes today are consistent with the state's policy objectives for the long-term. This policy on solid waste management facility permits provides that permit application review must include the following elements:

1. All proposed permitting actions must be determined to be consistent with local solid waste management plans (LSWMPs); prior to providing a notice of a complete permit application to the applicant LSWMPs must be in effect and modified where necessary.
Local solid waste management planning is a critical tool in fostering responsible solid waste management and to achieve the State's goals of increasing recovery, reducing greenhouse gas generation, and extending the useful life of landfills. As such, the department will increase its attention to local solid waste management planning in a variety of ways, including fully utilizing the regulatory tools and requirements available to encourage local solid waste management planning units to actively engage in solid waste planning. The Department's aim is to ensure that LSWMPs are in place, up to date, and consistent with the State's policy goals.

In accordance with 6 NYCRR § 360-1.9(e)(4)(iv), permit applications shall not be considered complete without a description of the facility's consistency with state solid waste management policy. Section 360-1.9(e)(4)(v) requires applications submitted by or on behalf of a municipality as defined in 6 NYCRR § 360-1.2(b)(21), to demonstrate consistency with the LSWMP and 6 NYCRR § 360-1.9(e)(4)(vi) requires other applicants to assess the impact of the proposed facility on the LSWMP of the local solid waste management planning unit and the planning units from which the waste is to be received. 6 NYCRR § 360-2.12 extends the LSWMP consistency determination requirement to landfill expansions. Furthermore, 6 NYCRR § 360-1.10(a) asserts that the department may issue a facility construction permit only when the applicant has demonstrated consistency with state policy as defined by the ECL § 27-0106.

2. Applications for a solid waste management facility expansion permit, or permit modification, including facility acceptance rate increases, shall be treated as major under the Uniform Procedures Act (UPA) unless specifically designated as minor.
Environmental Conservation Law Article 70 and 6 NYCRR Part 621, establish and regulate Departmental authority to determine whether a permit application is treated as a major or minor action under the UPA. Subdivision 621.4(m)(2) expressly authorized as minor projects: small C&D landfills, yard waste composting facilities, small transfer stations and some pre-approved staged facility construction projects. In the absence of such minor project designation, applications for a new solid waste management facility permit, permit renewals or permit modifications, including facility expansions and acceptance rate increases, should be handled as major projects under the UPA. Further, subdivision 621.3(b)(3) provides that in cases where the department determines that a minor project requires public notice, may have a significant impact on the environment under SEQR or requires a public hearing, the project will thereafter be processed as a major project.

Treating acceptance rate increases and facility expansions as major actions, regardless of the size of the request, is consistent with, and supported by, Part 621 and will trigger greater public notice and review requirements required by ECL § 27-0707(2)(c)(2) and Commissioner's Policy CP-19 Environmental Justice and Permitting Policy and the preliminary screening requirements of CP-19. Treating applications as major also furthers the Commissioner's organizational goals of engaging the public in decision-making and being proactive in meeting the public's needs.
3. The Department will provide guidance to lead agencies on SEQR reviews related to solid waste management projects
The Department will continue its existing lead agency coordination efforts under SEQR with other agencies on solid waste management facility permit applications. However, the Department will, either as lead agency or by request to the designated lead agency for a given case, seek to ensure that the environmental review fully addresses such considerations as landfill life and capacity airspace, State-wide capacity needs, impacts of increased truck traffic, waste reduction and materials recovery incentives and infrastructure impacts and greenhouse gas generation. As steward of the State's natural resources, the Department must consider all these factors as it confronts decisions that irreversibly commit the State's natural resources for use as disposal sites.

In an EIS for a landfill project, proponents should quantify methane emissions by utilizing site specific data in conjunction with the U.S. EPA's Climate Leaders Greenhouse Gas Inventory Protocol, Direct Emissions from Municipal Solid Waste Landfilling module (October 2004) or another model recommended by the department. This protocol employs the current version of the LandGem model to estimate the greenhouse gas (GHG) emissions from the entire landfill operation. Project proponents should use this protocol plus a list of site specific parameters. These specific parameters include: the volume of landfill gas collected; the percentage of methane in the landfill gas; the portion of the site that is served by a collection system and the portion not served by a collection system; the emissions of GHG from flaring or energy recovery systems; and if available, direct measurements of emissions from the landfill surface.

In addition, project proponents should examine discrete actions that can be taken to reduce methane emissions, including (in order of priority): diverting methane generating materials through organics recovery, use of landfill gas for energy production, enhanced landfill gas collection and flaring. Each of these measures would have a positive impact on total GHG emissions in the state though the costs and benefits would vary in a case-by-case evaluation.

In the case where an EIS includes information on waste generation, the GHG emissions resulting from waste generation should also be presented. Project proponents should refer to the U.S. EPA's Waste Reduction Model (WARM) available at
http://www.epa.gov/climatechange/wycd/waste/calculators/Warm_home.html
as a web-based calculator and Excel spreadsheet. This model will enable proponents to derive the greenhouse gas emissions implications of different levels of solid waste generation and differing solid waste management practices.

4. Solid Waste Management Facilities shall be required to collect data on greenhouse gas (GHG) generation.
The Department seeks to collect data to aid in its efforts to inventory, quantify, and compare the relative extent of contributions from solid waste management facilities to overall GHG loadings in the State and beyond. Because the methods for collecting such data are evolving, the Department will reserve for longer-term consideration use of this type of data in a regulatory context. Instead, the data will be used in departmental analyses and deliberations on potential policy approaches.

Pursuant to 6 NYCRR §§ 360-1.4(c) and 360-2.17(t), all solid waste management facilities are required to submit annual reports containing information requested by the Department. Specific requirements for landfill gas recovery facilities are noted in 6 NYCRR § 360-2.16(e)(6). Through these reports the Department currently collects certain information regarding landfill gas generation, including the volume of gas handled in collection systems and its BTU value. To obtain air permits, landfill operators are also required to use the EPA LandGem model for projecting landfill gas generation in a proposed project. To supplement this information, landfill facility permittees shall be required to report the percent methane content of the gas collected, the percentage of the site that is covered by the methane collection system, and the CO2 emissions from landfill gas combustion (whether for flaring or energy generation). Similarly, waste-to-energy facility operators shall be required to report CO2 emissions. The Department shall request this information via the Annual Report Forms provided to permittees.

5. When determining appropriate mitigation for new solid waste management facility permits, modifications or amendments, special conditions on the following specific issues shall be considered, as appropriate.
Solid waste management facilities typically exhibit a host of actual and potential environmental and natural resources impacts that need to be mitigated. The Department is directed by its enabling legislation and mission to protect and preserve the environment and natural resources. The Department is specifically authorized by 6 NYCRR § 617.3(b) to "require substantive conditions upon an action to ensure that the requirements of" Part 617 are met and ECL § 27-0703(2) to adopt rules to mitigate such obvious negative impact factors as water pollution, air pollution, noise pollution, obnoxious odors, unsightly conditions caused by uncontrolled release of litter, infestation of flies and vermin, and other conditions inimical to the public health, safety and welfare.

The Department has traditionally utilized the permitting authority granted by ECL § 27-0704 and incorporated into 6 NYCRR § 360-1.11(a) to impose special permit conditions to mitigate many of the obvious negative impacts, as well as more recently recognized impacts of concern such as wetlands and habitat destruction, generation of greenhouse gases and other air pollutants, traffic impacts, etc. Subdivision 360-1.11(h) also authorizes the Department to require permit conditions limiting the acceptance of solid waste only from communities that have completed a Comprehensive Recycling Analysis and implemented the recyclables recovery program determined to be feasible by the analysis.

On a case-by-case basis it may be appropriate to include special conditions in permits that reflect new concepts in solid waste management planning, and the emerging understanding of additional environmental and natural resource impacts. The following list of potential special conditions should be considered as suggested templates for negotiated special mitigation permit conditions, as authorized by 6 NYCRR § 360-1.11(a), when warranted by the specific circumstances of a permit application.

a. disposal bans

New, renewed, modified or amended permits for solid waste management facilities should exclude the following materials from disposal when alternative infrastructure exists: leaf and yard debris, source separated recyclables, and source separated household hazardous waste and electronic equipment. This is in addition to other currently existing restrictions on certain wastes (e.g. tires, batteries, hazardous wastes). Facility operators should ensure that their waste control plans address these provisions.

b. recovery program performance objectives

New, renewed, modified or amended permits should include provisions that incorporate performance targets related to waste diversion. In the case of municipally-owned facilities, those targets should relate to the local solid waste management plan. In the case of privately-owned facilities, the targets could either relate to the local solid waste management plans for municipalities whose waste is accepted, or to a company business plan that transitions to greater levels of diversion and recovery.

c. collection of landfill gas for energy recovery

New, renewed, modified or amended permits should specify state-of-the-art gas collection systems for any new cell and/or disposal area and should require that landfill gas be collected and used for energy recovery.

d. recycling infrastructure, planning, education and outreach community benefit projects

Permit conditions should require that facility operators provide dedicated financial support for investments in recycling infrastructure, planning, education, and outreach programs, either on-site or in the communities from where accepted solid waste is generated.

e. use of shorter permit terms

In the case of most landfill and waste-to-energy facilities, permit terms should be limited to no more than five (5) years in order to allow the Department to consider the extent of the commitment of the permittees 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 under section 120-aa of the General Municipal Law, or support such programs in the case of non-municipal permittees. This approach also ensures that all permittees address updates in Department regulations, policies, the State Solid Waste Management Plan, and applicable Local Solid Waste Management Plans. The five year term is applicable to facilities regardless of ownership. Five-year terms should also be considered for application to facilities other than landfills and waste-to-energy at the Department's discretion.

III. Purpose and Background

The Department's primary authority with regard to waste management rests in its approval of solid waste management facility permits authorized by ECL § 27-0717. This policy seeks to exercise that authority to move the state towards the goals of reducing waste, increasing materials recovery, extending the life of the state's landfill resources, minimizing the encroachment of disposal facilities on the state's natural resources, and reducing greenhouse gas emissions.

This policy is driven by multiple aims: to conserve the state's remaining landfill resources; to support (and not undermine) the efforts of the state and local governments to increase recovery and reduce waste; and to mitigate the adverse impacts of waste facilities. It is offered in the context of the following facts:
• The Department is issuing a new State Solid Waste Management Plan to assess disposal capacity and needs, and to establish aggressive goals for materials recovery and waste reduction;
• The Department is revising and updating the 6 NYCRR Part 360 Solid Waste Management Facility Regulations;
• Landfill gas has been identified as a significant contributor to global climate change;
• The United States Environmental Protection Agency has documented that recycling and waste prevention can play an important role in combating climate change by reducing carbon emissions from materials production and disposal;
• Recycling rates have remained stagnant for nearly a decade, while the amount of waste landfilled in the state and per-capita waste generation have increased;
• The export of waste from New York State, particularly the City of New York, persists and is threatened by potential federal restriction; consequently retaining in-state disposal capacity is critical to ensuring stability in the event of such restriction; and
• Many landfill operators are requesting permit modifications for expansion and/or capacity rate increases; while such increases may be at odds with policy goals to increase recovery, protect natural resources, and optimize the use of landfill capacity for only non-recoverable materials.

In this context, it is critical to scrutinize solid waste management facility permit decisions to ensure that the decisions the Department makes today will not jeopardize the state's policy objectives for the long-term, as articulated in the State solid waste management policy established in ECL § 27-0106 and Department Policy DSHM-SW-05-01. The law and the policy direct the Department to implement the solid waste management hierarchy which dictates:
• first, to reduce the amount of waste generated;
• second, to reuse material for the purpose for which it was originally intended or to recycle material that cannot be reused (For this purpose, composting is considered a form of recycling.);
• third, to recover, in an environmentally acceptable manner, energy from solid waste that cannot be economically and technically reused or recycled; and
• fourth, to dispose of solid waste that is not being reused, recycled or from which energy is not being recovered, by land burial or other methods approved by the Department

This program policy is part of a larger Department initiative to reduce solid waste disposal and increase recovery. The initiative includes: revisions to 6 NYCRR Part 360 Solid Waste Management Facility Regulations; a new State Solid Waste Management Plan; outreach and education of local government entities in NYS; Enforcement of the requirements of the Solid Waste Management Act and the requirements of GML § 120-aa; and legislative proposals to create new policy and increase the resources dedicated to recovery.

IV. Responsibility

The Division of Solid and Hazardous Materials (DSHM) is the lead program responsible for interpreting and implementing this policy. The Division of Environmental Permits (DEP) will implement the UPA and SEQR elements of the policy with technical support from the DSHM.

V. Procedure

Department staff shall notify all applicants for solid waste management facility (SWMF) permits of this policy as early as possible in the permit process (i.e., at the first pre-proposal meeting or discussion). Specific guidance with regard to the particular policy elements is as follows:

1. Integrating review of Local Solid Waste Management Plans in permit reviews

When reviewing an application for a SWMF permit, Department staff will refer to and determine compliance with the requirements of 6 NYCRR § 360-1.9(e)(4). To comply with this provision, all applicants must describe, as a part of their application, the proposed facility's consistency with state solid waste policy.

To determine the appropriate course of action with regard to integration of LSWMPs, Department staff shall determine whether the application is made by or on behalf of a municipality, as defined in 6 NYCRR § 360-1.2(b)(21). If an application is determined to be by or on behalf of a municipality, the applicant must include in its application a narrative demonstrating consistency with the LSWMP in effect for the affected municipality(ies).

To achieve "consistency with the LSWMP" planning unit(s) in the permit service area must, prior to permit issuance:

a. have submitted complete and up-to-date Compliance Report(s), as required by 6 NYCRR § 360-15.12(a); and

b. have all LSWMP Implementation Schedule(s) on track with no significant changes, deviations or delays which would trigger the need for a modification pursuant to 6 NYCRR § 360-15.11(b).

In order to make reasonable and consistent determinations for LSWMP Consistency tests, Department staff must, at a minimum:

i. review the most recent Compliance Reports for the affected Planning Unit(s); and
ii. review the Implementation Schedule(s) from the affected LSWMP(s) to ensure that the activities planned are being assiduously carried out.

If either item (i) or (ii) above is not up-to-date, Department staff must notify the permit applicant and the affected Planning Units of the deficiencies and require submittal of Compliance Reports or LSWMP Modifications, as needed to meet the consistency test in order for the permit application to be deemed complete.

Pursuant to 6 NYCRR § 360-1.9(e)(4)(vi), if an application is determined not to be made by or on behalf of a municipality, the applicant shall provide an assessment of the impact of the proposed facility on the LSWMPs of the solid waste management planning unit in which the facility is located, as well as those planning units from which solid waste is expected to be received. Among other factors, the assessment shall address the proposed facility's economic and environmental impact on waste prevention and materials recovery efforts of and in the affected local solid waste management planning units.

2. Treating SWMF permit applications as Major under the UPA

Department staff shall notify applicants that new permits, modifications, expansions, and/or rate increases, as more specifically described in section II.2 of this policy, will be treated as major under 6 NYCRR Part 621 - Uniform Procedures, and shall follow all applicable procedures for major actions.

3. SEQR review of SWMF permit actions

Department staff shall notify in writing SEQR lead agencies that environmental reviews for SWMFs shall fully address the implications of the action on landfill life and airspace, encroachment on natural resources, waste reduction and materials recovery incentives and infrastructure, and greenhouse gas generation. Lead agencies shoulduse the models described above to quantify the impact of proposed actions on the generation of greenhouse gasses.

4. SWMF data on GHG generation

Department staff shall incorporate additional greenhouse gas related data requests into the Annual Report forms distributed to permittees.

5. Mitigation for SWMF permit actions

In addition to those special conditions typically utilized in the past, Department staff shall use the list of potential special conditions outlined in Section II.5 of this policy as a template in deliberations regarding mitigation of solid waste management facility permit actions. Specific conditions applied in each case shall be determined based on the impacts to be mitigated, the nature of the request, the nature of the facility, the status of the LSWMP(s), the applicant's performance record, and other relevant factors.

Related References:

Environmental Conservation Law §27-0106
Environmental Conservation Law § 27-0703
Environmental Conservation Law § 27-0704
Environmental Conservation Law § 27-0717
6 NYCRR Part 360
6 NYCRR Part 617
6 NYCRR Part 621