TAGM SW-96-08 Review of Local Solid Waste Management Plans

TAGMs are developed to provide guidance and clarify program issues to facilitate compliance with statutory and regulatory requirements. They also provide assistance to Department staff and the regulated community in interpreting and applying regulations and to Division of Solid & Hazardous Materials (DSHM) staff in achieving program uniformity throughout the state. A TAGM cannot impose new requirements beyond those contained in existing regulations or statutes. Furthermore, a TAGM is not a fixed rule; therefore, it does not create any enforceable right by any party using the TAGM.

The purpose of this TAGM is to provide guidance to local solid waste management planning units, Department staff, and other interested parties on the requirements of 6 NYCRR 360-15 Comprehensive Solid Waste Management Planning. It addresses the relationship between Local Solid Waste Management Plans (LSWMPs) and Part 360 permits, the requirements for plan modifications and updates, and out-of-planning-unit solid waste exportation.

It must be recognized that planning units that serve populations in excess of one million people face unique challenges not experienced by most local solid waste management planning units. Consequently, some of the guidance in this TAGM is not practical for these very large units. Regional Directors should consult with the Director of the DSHM as necessary to develop specific guidance for planning units serving populations in excess of one million people.

II. Background

Solid waste planning at the local level is an essential element in the development of an environmentally sound, integrated Statewide solid waste management program, and forms the basis for identifying the specific facilities required to meet local needs. This is recognized in Environmental Conservation Law (ECL) 27-0707.2(b) which states: "...that on or after April first, nineteen hundred ninety-one an application for a permit to construct a solid waste management facility made by or on behalf of a municipality in a planning unit shall not be complete until a local solid waste management plan which contains all of the elements set forth in paragraph b of subdivision one of section 27-0107 of this article is in effect for such municipality...."

To date, the majority of planning units within New York State have approved LSWMPs. Several LSWMPs previously approved by the Department may require modification as planning units adopt alternative methodologies or organizational changes in their solid waste management programs. Also, many LSWMPs must be updated as a condition of the initial plan approval.

The New York State Solid Waste Management Plan lists self-sufficiency in the management of municipal solid waste as a State objective (with the exceptions of compost and recyclable materials when exported out of State for use as a secondary material in recycling or a manufacturing process). The Department believes achieving self-sufficiency within New York's boundaries is good public policy due to the uncertainties related to out-of-State waste exportation. These uncertainties include: potential bans or limits on interstate waste disposal by the Federal Government or by receiving nations, territories, states, counties or townships; unforeseen closure of receiving facilities; uncontrolled escalation of interstate disposal and transportation costs; and uncertain long-term, out-of-State capacity. Under certain circumstances, however, out-of-State waste exportation can become an acceptable option. For example, the transition of closing older solid waste management facilities and developing new state-of-the-art facilities is often complicated by issues relating to siting of the new facilities. This can result in a temporary capacity shortfall during the siting, design and construction of a new solid waste management facility that may be met through out-of-State exportation, and such a strategy could be incorporated into a LSWMP. Also, out-of-State exportation of a portion of the waste from planning units serving populations in excess of one million people may be the only practical option available.

With respect to intrastate solid waste disposal, the Solid Waste Management Act of 1988 encourages a regional approach to solid waste management by specifically requiring planning units to consider neighboring jurisdictions within their LSWMPs. The Department's role in this situation is to ensure that commitments between planning units are viable and clearly outlined in the LSWMPs of both the exporting and importing planning units. Furthermore, since the May 16, 1994 United States Supreme Court Decision in C&A Carbone, Inc. vs. Town of Clarkstown, New York the ability of planning units to maintain flow control of wastes is questionable. Without flow control, municipalities cannot ensure delivery of sufficient solid waste to satisfy debt payments for capital-intensive facilities designed to meet the needs of the planning unit. Consequently, in some cases, out-of-planning unit disposal agreements with private facilities may be the only feasible option. The Department's role in these situations is to ensure that the agreement with the private facility(ies) is viable and clearly outlined in the LSWMP.

III. Guidance

A. Relationship Between LSWMPs and Permit Applications for the Construction of a Solid Waste Management Facility Made by or on Behalf of a Municipality.

The planning requirements of ECL 27-0707.2(b), as reflected in 6 NYCRR 360-1.8(g), are triggered only when a Part 360 permit application for the construction of a solid waste management facility is made "by or on behalf of a municipality" as defined in 6 NYCRR 360-1.2(b). This applies equally to LSWMPs developed with or without a grant under ECL 27-0109. Department staff must find that the LSWMP, including any required modifications or updates of a Department-approved LSWMP, adequately addresses all the matters identified in 6 NYCRR 360-15.9 before issuing a notice of complete application.
The Department may determine that a permit application is complete when a plan modification or update is pending if the subject facility is described in the approved LSWMP and, in the judgement of the Department, the pending modification or update does not have an impact on the facility.
A planning unit does not need to modify its LSWMP if the facility it proposes does not require a Part 360 permit (e.g., exempt or registered facilities). The planning unit should, however, address such facilities in future modifications, updates, or compliance reports.
The Department can continue to informally review all other technical aspects of a permit application even if a LSWMP or required modification/update has not yet been approved. The decision to proceed with the technical review must be based on consideration of the status of the pending LSWMP, modification or update, and the expected schedule for obtaining an approved LSWMP (or modification/update).
A facility that is the subject of a permit application made by or on behalf of a municipality must be consistent with and satisfy a solid waste management need identified in the approved LSWMP of such municipality. A facility that is the subject of a permit application not made by or on behalf of a municipality does not have to be identified or addressed in any LSWMP. However, 6 NYCRR 360-1.9(e)(4)(vi) requires that such application must include the assessment of the proposed facility's impact, if any, on the local solid waste management plans of its service area.

B. Review of LSWMPs

For the initial plan, Central and Regional Office staff will concurrently review a LSWMP or a Generic Environmental Impact Statement (GEIS) which incorporates a LSWMP. The DSHM Central Office staff will coordinate the review. A LSWMP can be approved only upon the concurrence of both Regional and Central Office Directors' staff that the LSWMP satisfies the requirements of 6 NYCRR 360-15.
Plan modifications or updates will be reviewed and approved by the Regional Office, unless determined otherwise. Central Office assistance will be provided on the modification/update upon request to the Division Director. Regional Offices will notify the Division Director of pending modifications/updates and will send a copy of the modification/update and a copy of the approval letter to Central Office staff. All Regional Office update approvals should be issued by the Regional Director.
The regulations addressing the review of a LSWMP, modification and update are contained in 6 NYCRR 360-15. This Subpart not only establishes standards for obtaining a grant to develop a LSWMP, but also establishes standards for the content of a LSWMP that is acceptable to and approved by the Department under ECL 27-0107. As such, all LSWMPs submitted to the Department must adequately address the LSWMP content requirements of 6 NYCRR 360-15, whether or not the LSWMP is developed under a State assistance grant pursuant to ECL 27-0109.
Compliance reporting requirements can be met by submitting modifications/updates of LSWMPs. If the information provided meets the compliance reporting requirements of 6 NYCRR 360-15.12, a separate compliance report is not necessary. Regional Offices should advise planning units when this is an acceptable option.

C. Out-Of-Planning Unit Solid Waste Exportation/Importation

Described below are the components that should be provided in a LSWMP submitted to the Department in support of proposing out-of-planning unit waste exportation as required by 6 NYCRR 360-15.9(i). This documentation/information must be updated in compliance reports pursuant to 6 NYCRR 360-15.12.

For planning units with transfer facilities operated by or on behalf of a municipality. Section 360-15.9(i) states that a LSWMP must include "certification of disposal capacity when exporting waste out of the planning unit...." The LSWMP should include a copy of a binding agreement with one or more permitted or authorized facilities capable of treating or disposing of the planning unit's solid waste for at least five years. Alternately, the planning unit should identify at least three appropriately authorized solid waste facilities capable of treating and disposing of the planning unit's solid waste for at least five years. The planning unit should state in the LSWMP that they will enter into a binding agreement with one or more of the facilities identified to accept the planning unit's waste for a minimum of five years. In either case, the identified facilities should provide written documentation that they are an authorized facility (in the case of out-of-State facilities) and have the capacity to accept the planning unit's waste for a minimum of five years or, if exportation is proposed for less than five years, certifications for the length of time exportation is proposed.
For planning units relying on private haulers/transfer facilities. The planning unit should identify, to the greatest extent practicable, the major haulers and transfer stations exporting solid waste. If practical, a statement should be obtained from the hauler/transfer station indicating the disposal location and nature and length of commitment with the disposal facility.
NOTE: The LSWMP for planning units described in either Item 1 or Item 2 above should include a discussion of alternatives should the selected facilities fail to accept the planning unit's solid waste for a minimum of five years. This discussion should identify specific alternatives to be implemented if that service is abruptly interrupted or terminated.
For those planning units proposing or relying on out-of-State waste exportation. In consideration of the long-term uncertainties associated with out-of-State waste disposal, the planning time frame should be limited to ten years. In addition, the LSWMP should include a discussion on the strategy and implementation program the planning unit will follow to develop or obtain treatment or disposal capacity within the planning unit or New York State.

D. Relationship Between LSWMPs and Landfill Siting

In accordance with 6 NYCRR 360-2.12(b)(1), inclusion in an approved LSWMP is required for both municipal and private sector applicants if the proposed site of the landfill or landfill expansion does not exhibit all of the characteristics required by 6 NYCRR 360-2.12(a)(1). The proposed landfill or expansion must be specifically identified in the LSWMP as a component of the integrated solid waste management system for the planning units in which the facility is located.

E. LSWMP Modifications and Updates

Implementing regulations. Requirements for LSWMP modifications and updates are contained in subdivisions 360-15.2(c) and (f). Section 360-15.11 establishes criteria under which a planning unit must prepare a LSWMP modification or update, and establishes the standards for the content of the modification or update.
When a modification should be undertaken. A LSWMP modification should be undertaken whenever a significant change in the management of solid waste, in accordance with subdivision 360-15.11(b), is implemented. The plan modification must be submitted and approved before a permit application made by or on behalf of a municipality that involves the construction of a solid waste management facility can be deemed complete.
The following are the procedures for determining when a LSWMP modification is required:
1. Planning Unit: The planning unit should consult with the appropriate Department Regional Solid & Hazardous Materials Engineer (RSHME) to determine if a LSWMP modification is necessary prior to submitting a permit application for constructing new facilities.
2. Regional Office: The RSHME will determine whether the proposed change is significant and if a modification to the LSWMP is necessary. Significant changes include but are not limited to: privatization of solid waste management within the planning unit, a change in the method of managing one-third or more of the planning unit's waste and/or a modification of an implementation schedule that would change the start-up date of any major component of the solid waste management systems by one year or more. The RSHME will notify the planning unit of this determination in writing, and send a copy to the Central Office.
When an update should be undertaken. The mandate to undertake a LSWMP update and the schedule for a LSWMP update are identified at the time of the LSWMP approval either within the approved LSWMP or the approval letter. The due date is the date by which the update should be approved by the Department. Therefore, the planning unit should submit its draft update, in accordance with 6 NYCRR 360-15.10, no later than 90 days prior to the due date or longer depending on the complexity of the update. An update is usually required where the initial LSWMP or Comprehensive Recycling Analysis (CRA) provided for decisions to be made in later years and the Department agreed to approve these LSWMPs (or CRAs) conditioned upon submittal of a LSWMP (or CRA) update. In addition, some planning units established a schedule for updating their plans even though this was not a condition for approval of the LSWMP or a significant factor in the Department's decision to approve the plan. In this case, the planning unit can decide not to update its plan if no additional factors require an update or modification
Format of a modification or update. A LSWMP modification or update should be in accordance with the following suggested methods. The Department may require a specific option or allow other options depending upon the complexity of the plan and significance of the modification or update.
Option 1
- A new stand-alone document that replaces the existing LSWMP and incorporates all existing LSWMP contents and LSWMP modification or update contents. The planning unit would rewrite each chapter under this option.
- This new document must be distributed to all who received official copies of the prior Department-approved LSWMP with instructions to eliminate the previous version.
Option 2
- Insert LSWMP modification or update contents into the existing Department-approved LSWMP. Insert and delete information, as appropriate, to each chapter and provide a summary at the beginning of each chapter that describes all updates and revisions to the narrative, tables, charts, etc. The insert pages should indicate the month and year.
- The existing Implementation Chapter is the actual blueprint of how the planning unit will manage its solid waste and will most likely be significantly impacted by the modification or update. Therefore, the Implementation Chapter, if significantly impacted, will require a complete revision.
- The modification or update inserts and deletions must be incorporated into all official copies of the existing Department-approved LSWMP.
Option 3
- A separate update or modification document which contains the required contents pursuant to 6 NYCRR 360-15.11(e). As with Option 2, the Implementation Chapter, if significantly impacted, will require a complete revision.
- This document must be sent to everyone on the distribution list who received official copies of the previous Department-approved LSWMP with instructions to permanently attach it to or insert into the front of the existing LSWMP.
Review and Approval
1. A LSWMP modification or update will be reviewed and approved by the Regional Office in accordance with 6 NYCRR 360-15.10.
2. The Regional Office will notify the Central Office of pending LSWMP modifications and updates and will send a copy of the modification or update and a copy of the approval letter to the Central Office. Central Office will provide input on the modification or update, if requested, or when determined it is necessary.
  NOTE: If that modification has the effect of decreasing the size of the planning unit, no modification to any LSWMP will be approved without Central Office concurrence. Furthermore, Department approval will be contingent upon certification that each municipality withdrawing from the planning unit will join another existing planning unit or form a separate planning unit, and a Department determination that the former planning unit will not be adversely affected.