The much-anticipated final version of the comprehensive revisions to New York’s Solid Waste Management Program was released on September 20, 2017. Initially proposed in early 2016 after two rounds of public comments, multiple hearings, and a second round of revisions issued over the summer, the New York State Department of Environmental Conservation’s (“NYSDEC’s”) new rules are set to take effect on November 4, 2017. Besides expected changes for solid waste landfills and waste transporters, noteworthy changes include stricter requirements for Beneficial Use Determinations (“BUDs”) and reuse of fill material, as well as new restrictions and prohibitions for wastes generated from oil and gas production. Compliance will generally be required within 180 days of the effective date (May 3, 2018), with some limited exceptions.
The new rules mark the first major revisions to New York’s Solid Waste Program in over 20 years, and are intended to incorporate changes in the law, policy, and technology, as well as streamline the regulatory process. In addition to substantive changes, NYSDEC’s overhaul will physically break up the current Part 360 regulations into groups based on the type of affected facility and create new Parts 360 through 363, 365, and 366 in a way that NYSDEC hopes will be more user-friendly.
Draft regulations for the revamp of the Solid Waste Program were first proposed in March 2016. A second round of revisions was issued in June 2017 in response to an overwhelming number of public comments. However, because the second set of revisions included substantial changes and newly proposed provisions, the timing of the release of the revisions during the summer with a short 30-day comment period raised eyebrows as NYSDEC pushed the regulations through to finalization. Major substantive revisions between the first and second versions included additional revisions to the BUD program, replacement of the proposed historical fill requirement with completely new regulations for reuse of fill materials, updated requirements for landfills, and extension of the transition timeframe, among others. The final version makes no substantive changes from the last release over the summer.
Beneficial Use Determinations (“BUDs”) Rescinded Unless “Renewed”
All existing case-specific BUDs without an express expiration date will be rescinded unless a request for a renewal is filed within 180 days of November 4, 2017, the effective date of the final regulations. Any such “renewal” will require submission of a written petition with a demonstration that the material will not adversely affect public health and the environment, and that a market exists for the material, among other requirements. Existing BUDs with an express expiration date will need to comply with new reporting requirements, but should be prepared to follow the new “renewal” requirements when the existing BUD expires. All categorical predetermined BUDs that were not incorporated into the final rule will be required to now apply for a case-specific BUD using the new process and standards.
In order to show no adverse health or environmental impact, analytical testing will be required to show compliance with the Part 375 Residential Use and Protection of Groundwater soil cleanup objectives (“SCOs”), or otherwise show that that material or use is “unique” in a way that is acceptable to NYSDEC. If a petition for renewal of an existing BUD is filed in a timely manner, the BUD can continue until NYSDEC makes a final determination.
Because BUDs are deemed a “jurisdictional determination” that a material is not a solid waste and, therefore, not a permit, few administrative procedures are available to challenge a denial or revocation. While NYSDEC acknowledged in its general response to comments that revocation of a case-specific BUD would trigger an opportunity to request a hearing on the revocation, under the new regime, many BUDs are at risk of termination with little due process rights or recourse for survival.
Testing Required for Re-Use of Fill
Reuse of fill material will now be classified as a predetermined BUD if the new requirements outlined in Part 360.13 are met. As part of its “enhanced regulatory scheme to address historic fill management and disposal,” NYSDEC abandoned its first proposal to regulate historic fill based on the likely date of deposition. Agreeing with commenters that the concept of characterizing fill based on an unknown historical date would be too difficult to implement, NYSDEC will instead now require analytical and physical characterization of existing material to determine whether and where the fill can be reused.
Compliant reuse of fill material will be based on the extent of contamination, using the Part 375 SCOs as the metric. The characterization and quantity of fill will also require certification by a qualified environmental professional and reporting to NYSDEC in advance of the delivery. Fill material that does meet these requirements will be considered a solid waste and must be disposed of at an appropriate facility.
These new provisions will apply to both off-site and on-site management of fill with limited exemptions, such as for sites remediated under Part 375. For management of on-site fill, the new regulations follow the like-with-like principle. For example, fill used to backfill the same excavation or reused in other areas of the same property with “similar” characteristics will be exempt, although “similar” is not expressly defined. However, if any sign of contamination is noted, including odors, the fill must be covered with a minimum of 12 inches of clean soil or fill that otherwise meets the new requirements of Part 360.13.
Oil and Gas Production Wastes
Going forward, case-specific BUDs for reuse of gas storage brine or production brine on roads will now be available, but only for those brines generated from sources other than Marcellus Shale. Along with following the new process and standards to obtain a BUD, a prospective BUD-holder must disclose the origin of the brine, where and how the brine will be used, and certain chemical analysis of the brine. For drilling fluids and flowback water, not only does the final rule expressly prohibit the reuse of those fluids on roads, the regulations expressly prohibit their disposal in a solid waste landfill, meaning such oil and production wastes may need to be disposed of as hazardous, shipped out of state, or managed through other costly alternative means.
Drill cuttings will continue to be allowed in solid waste landfills as NYSDEC noted that “disposal of drill cuttings does not pose the potential for any adverse environmental impact.” However, any landfills that accept drilling wastes must have radiation detection installed to monitor for Normally Occurring Radioactive Materials (“NORM”).
Highlights of Other Relevant Changes
With illegal dumping of Construction and Demolition (“C&D”) debris tagged as an “emerging threat” by NYSDEC, Part 361 of the final rule will require tracking documentation for C&D transportation, handling, and disposal, much like the manifest system. For the C&D processing facility itself, stricter limitations will govern the height, setbacks, and spacing for storage piles, and the processing threshold to avoid registration will be set at less than 500 tons per day based on a weekly average.
Solid waste landfills will be addressed in the new Part 363. New technical and construction requirements were established to incorporate new technology as well as address “frequently variance conditions.” While the current program exempts disposal of certain materials such as uncontaminated concrete, asphalt pavement, brick, glass, soil, and rock, but with no volume or size restrictions, the final rule imposes a 5,000 cubic yard lifetime limit in order to qualify as an exempt facility.
Other notable changes to the overall program will include radiation detection for landfills, combustors, and thermal treatment facilities that receive municipal solid waste, and for transfer facilities that transport out of state; tighter tracking and registration requirements for waste transporters as well as exemptions for waste “incidentally” transported by a public utility; reorganized rules for medical waste; first-time regulation of mulch-processing facilities; mandatory requirements for local solid waste management planning; and new rules for state assistance projects.
The comprehensive nature of the new rules will have wide-ranging impacts. Generators, waste transporters, and landfills, as well as developers and all BUD-holders, will need to assess how and to what extent they will be affected by the final rule, and comply with any interim filing deadlines to secure continued operations. Overall, while portions of the regulations were in need of an update, because some new requirements may have far-reaching and potentially deep financial and operational impacts, adoption of these new rules is sure to draw litigation.