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DEC’s Release of New Part 360 Regulations Creates Uncertainty

 jacobowitz and gubits, law to move over, move over law, passing garbage trucks, passing sanitary vans, passing waste collection vehicles,

Despite the recent release of much-needed updates to Part 360, the status of New York State’s solid waste regulatory scheme remains anything but solidified.

The last comprehensive revision to the state’s Part 360 solid waste regulations occurred nearly 25 years ago, back when solid waste management consisted mainly of dumping one’s uncategorized waste at a landfill. Today, landfills have transformed into technologically advanced facilities that are specifically engineered to handle only certain types of solid waste. In addition, many facilities—such as recyclables handling and recovery facilities or composting and other organics processing facilities—did not even exist when the regulations were last updated, or at least were significantly different than they are today.

Therefore, in order to bring solid waste management into the twenty-first century, the Department of Environmental Conservation (“DEC”) published the new Part 360 regulations for Solid Waste Management facilities on September 20, 2017. The rule came into effect on November 4, 2017, which means that the regulations’ compliance date was May 3, 2018 (or 180 days later).

A quick run-down of some key tips facility operators should keep in mind about the new regulations:

  • “Applicable” is a key word. If your facility is now teetering on the edge of needing a permit versus a registration, operators should seriously consider reducing their waste capacities to avoid needing a permit. Operators should conduct a cost-benefit analysis between increased Part 360 compliance costs and any revenue lost through a capacity reduction.
  • Facility operators should know how the new Part 360 exemptions apply to their facilities. In order to ease its own regulatory burden, DEC has changed numerous thresholds and exempted many smaller facilities entirely from regulation.
  • Compliance with new design and/or operational requirements was required months ago. If your facility is not completely in compliance with all the applicable requirements of the new Part 360, the next best thing is to be completely engaged and well on your way towards full compliance.
  • Guidance is still being formulated by DEC on how those new regulations will apply. Many gray areas emerged after the adoption of the new regulations, as neither the regulated nor the regulator realized how all the ways that the regulatory changes would affect public and private operations.
  • Facility operators need to update their operational plans to generate compliance documentation. This may detrimentally affect many facilities bottom lines, e.g. by necessitating additional hiring to complete said documentation, and therefore should be factored into yearly budgeting immediately.

This is where environmental and land use lawyers come into play. Lawyers can help bridge this disconnect by translating new legal jargon and plentiful deadlines into a concrete list of issues that need to be addressed before Part 360 compliance can be successfully obtained.

In order to ease some of the confusion, Jacobowitz & Gubits, LLP and Walden Environmental Engineering, PLLC co-hosted a presentation on the new Part 360 regulations on July 18, 2018. Our portion of the presentation focused on the legal nuisances of the new regulations, to help ensure our clients’ compliance and prevent any regulatory and legal hiccups during the transition.

Our presentation highlighted these changes to the registration and permitting process by waste stream type. Generally, DEC regulates solid waste by requiring a solid waste facility to either register or obtain a permit, depending on the amount and type of solid waste stream that the facility handles. The new regulations have changed this regulatory scheme by requiring additional facilities to be registered, as well as requiring previously registered facilities to obtain permits. Examples of more comprehensively regulated facilities under the new Part 360 include construction and debris (“C&D”), mulching, recyclables handling and recovery, waste tire handling and recovery, composting and organics, and metal processing and vehicle dismantling facilities. In addition, there are also new recordkeeping and reporting requirements, which are geared at tracking solid waste streams at every step of the disposal process in order to prevent illegal dumping—especially for waste transporters. By better managing the regulatory divide wherein waste could easily disappear from DEC’s databases, the state hopes to minimize potential impacts to the surrounding community, especially in more impoverished areas where environmental justice is a concern.

Finally, it is important to point out that not all of the regulations escalate existing requirements. Some of the amendments actually ease or eliminate existing requirements that have proven too financially burdensome to the regulated community or drain too much of DEC’s limited resources to justify the meager environmental benefit.

For example, DEC has now increased the regulation thresholds for composting and organics processing facilities and has exempted small-scale facilities entirely if they process less than 1000 lbs/week of food scraps. This relaxation serves to incentivize composting, as DEC works to combat the issue of rampant food waste in New York State.

Some potential future issues surrounding the amendments our legal team has discussed include:

  • “Merger doctrine”: In the world of land use law, abutting land parcels under the same ownership are considered the same parcel in terms of zoning. With regard to the new Part 360 regulations, what happens if one solid waste facility wishes to “compartmentalize” their practice and process different types of waste on the premises under different corporate entities? Are these entities “merged” in DEC’s enforcement eyes? What happens if one entity is out of compliance? Does the entire facility get punished? The regulations do state that if there are more than two registrations for different waste streams at a single facility, DEC is within its discretion to require a permit rather than a registration where the activities have the potential to cause a “significant adverse impact to the environment.” However, does this still apply if there are two (or more) separate corporate entities managing their respective waste streams independently?
  • Part 360 revisions: DEC has stated that Part 360 is not final and will be revised later in the year. What happens if your facility is required to get a permit under the current version of the Part 360 regulations, but that requirement is revised within the next few months? What happens if the opposite occurs? How do you prevent noncompliance fines or even having your facility shut down in the wake of such uncertainty?
  • Timing of old permit expiration: Under the new Part 360 regulations, a preexisting permitted facility’s old permit stays in effect until its expiration date. The new permit must comply with the revised Part 360 regulations. What happens if the “old” permit is actually relatively new and does not expire for years? One can imagine that this is a favorable scenario for facility operators who will have increased requirements once they apply for a new Part 360 permit. However, what about those operators who actually will see relaxed regulations, like food waste facilities? Must they continue to comply with more stringent regulations that are no longer the standard?
  • SEQRA: Only permits are considered SEQRA actions, not registrations. Luckily, DEC has made an exception to the typical May 3, 2018 compliance deadline for any facility that now needs a permit that was previously exempt from Part 360 regulations, or that only required a registration. Such facilities have until November 4, 2018 to obtain the new permit. While this date is still months away, facilities and transporters need to be aware that going through the SEQRA process can be lengthy and not user-friendly. Facilities will need to coordinate with local government boards that may act as lead agency during the SEQRA process to ensure that they will be able to complete SEQRA in time for this November deadline.

It is clear that while these revisions were supposed to provide clarity, the regulatory world of solid waste management is far from settled. In the meantime, our environmental and land use attorneys can help provide guidance during the transition period. Please stay tuned for future Part 360 blog posts as additional compliance issues inevitably arise.

To read the new regulations in their entirety, click here.

To view Jacobowitz & Gubits’ presentation on the new regulations, click here.

 

Marissa WeissMarissa G. Weisis an Associate with the firm and practices Environmental Law, Land Use and Municipal Law.

law.  She can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.[/column]

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