It has been over three years since the New York State Department of Environmental Conservation (NYSDEC) released sweeping changes to Part 360 regulations, otherwise known as Solid Waste Management Facilities General Requirements. The changes, which were implemented to safeguard public health and the environment and make it easier for operators within the industry to understand the regulations, profoundly affect solid waste management facilities throughout the state.
These were the first real changes to Part 360 regulations in decades. After two rounds of public comments, hearings and revisions, the new rules went into effect in late 2017. Taken at face value, it is hard to argue with the agency’s motivation to enact new regulations—namely, to ensure the protection of groundwater at or around facilities that manage solid waste and clarify the rules so facility owner/operators could easily understand them.
Certainly, there were many substantive changes to the regulations, which were highlighted by the changes to Beneficial Use Determinations (BUDs) and fill material testing. Arguably, though, the most dramatic impact may be—oddly enough—paperwork. Essentially, if a facility was previously required to hold a registration to operate, the facility would now be required to hold a permit. Under the new rules, many exempt facilities that formerly were allowed to work without a registration will be required to have one to operate. Operators that previously had little to no interaction with NYSDEC would now have to grapple with changes to their facilities’ registration or permit status, resulting in an arduous amount of administrative paperwork.
While this still seems fairly straightforward, many facility owners never had to fulfill regulatory obligations before and find it difficult to understand what is required to obtain their registration or permit. The process can be quite intimidating for individuals who have not had much exposure to regulatory agencies.
Therefore, it is beneficial for facility owners to work with a qualified professional services firm with experience guiding owners through obtaining registrations or permits and maintaining regulatory compliance. That can take the form of a good environmental law firm or an environmental engineering firm.
Operators who choose to work with a consultant should look for organizations with experience evaluating and designing facilities to ensure compliance with local and state regulations. Such a firm should be able to help operators file applications, drawings, develop a new layout (if necessary), and file reports, all of which can be complicated and time-consuming.
Indeed, the new regulations were so convoluted that NYSDEC was hit with a lawsuit almost immediately after the changes went into effect. Members of the New York Construction Materials Association (NYCMA), who had concerns about how the new regulations would impact their business, came together to take legal action and force the state to clarify the rules.
To address some of the problems, NYSDEC issued an Enforcement Discretion Letter (EDL) in which they pledged to exercise discretion when enforcing parts of the new regulation, particularly for fill material. At the same time, the lawsuit is being settled, and modifications to the rules are being written. On Jan. 26, DEC issued a notice that coming in February, they would give another extension to the EDL from May 2021 to May 2022.
So, what does all of this mean for operators?
The state has extended full implementation of the new rules three times. The new target date is early May 2022. But that does not mean that industry participants should wait until then to take any action. The need for proactive measures is because some of the changes will apply to facility operators regardless of what the contours of the final rules end up being, and the state may take months to process applications for a registration or permit.
For example, if a facility processes more than 500 tons of material a day, that site will need a permit. Facilities required to have a permit must submit a detailed engineering report with their application. A state-certified professional engineer must be the individual to create the report.
Additionally, facilities must develop a plan to control stormwater and leachate. Of course, this requirement is aligned with the state’s goal of ensuring that contaminants do not get into groundwater and adversely affect public health.
Furthermore, all material leaving a site must be classified in one of three categories by utilizing the updated BUD. Moreover, fill material that leaves a processing facility must be tested and accompanied by a tracking document that details who generated the waste, who transported the waste, the final destination of the waste, and the material type. The transporter and generator must each sign the tracking document, which must also be provided to NYSDEC.
Adding to the confusion, depending on where a facility is located, the operator may have to also deal with local agencies' requirements. For instance, if an establishment is located in New York City, it will have to adhere to the new NYSDEC rules and those of the New York City Department of Sanitation, which could be more demanding than the state’s.
Therefore, operators must work with organizations that understand and comply with all local and state rules that may affect their operation. While the NYSDEC is not expected to finalize the new Part 360 rules in the foreseeable future, shrewd facility operators understand that they need to take action now to save themselves several months of stress and uncertainty.
Robert LoPinto is the vice president of Oyster Bay, New York-based Walden Associates. He can be reached at rlopinto@walden-associates.com.