N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 363-5.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 363-5.1 - Siting requirements

In addition to the requirements of section 360.8 of this Title, the following siting requirements apply to all new landfills and expansions of existing landfills regulated under this Part:

(a) Bedrock and Unconsolidated Deposits

(1) Bedrock underlying the site must not be subject to rapid or unpredictable groundwater flow, unless it can be demonstrated to the department that a containment failure of the landfill would not result in contamination entering the bedrock system.

(2) Unconsolidated Deposits: A minimum of ten feet of unconsolidated deposits must exist beneath the proposed landfill site to minimize the migration of contaminants from the facility.

(i) At new landfill sites, these deposits must consist of low permeability soils with silty and clayey characteristics and with the ability to attenuate and absorb contaminants. Large-scale, permeable deposits, which could result in migration of contaminants off-site prior to detection and/or remediation, must not be present.

(ii) At existing landfill sites active on or after November 4, 1992 operating under and in compliance with a current permit or order on consent, there are no soil type restrictions provided the applicant demonstrates that the expansion site will have no significant adverse impact on groundwater.

(b) The site must not be in proximity to any existing mines, caves or other anomalous features that may alter groundwater flow, unless it can be demonstrated to the department that a containment failure of the landfill would not result in contamination entering the features.

(c) Agricultural land.

(1) A new landfill or a lateral expansion of an existing landfill may not be located on property which:

(i) is taken through the exercise of eminent domain;

(ii) consists of more than 50 percent of agricultural soil group 1 or 2 (Land Classification System as certified by the New York State Commissioner of Agriculture and Markets); and

(iii) is within an agricultural district formed pursuant to the Agriculture and Markets Law, article 25-AA, sections 303 and 304.

(2) A new landfill or a lateral expansion of an existing landfill within an agricultural district may not be sited within an agricultural district unless compliance with the requirements of article 25-AA, section 305 of the Agriculture and Markets Law has been demonstrated.

(d) Primary water supply aquifers, principal aquifers, and public water supplies.

(1) No new landfill or lateral or vertical expansion of an existing landfill may be constructed over primary water supply aquifers, principal aquifers, within a public water supply stabilized cone of depression area, or within a minimum distance of 500 feet to surface waters that are actively used as sources of municipal drinking water supply. In Nassau and Suffolk County, no person may construct or operate a new landfill or an expansion of an existing landfill, unless the department has made an affirmative determination that it will not pose a threat to groundwater quality.

(2) The required horizontal separation between deposited waste and primary water supply aquifers, principal aquifers, capture zones of public water supply stabilized cone of depression areas or surface waters that are actively used as sources of municipal drinking water supply must be sufficient to preclude contravention of groundwater standards in the aquifer and surface water standards in waters that are currently used as a source of municipal drinking water supply. In Nassau or Suffolk County, no person may construct or operate a new landfill or an expansion of an existing landfill, unless the department has made an affirmative determination that it will not pose a threat to groundwater quality.

(e) Aircraft safety.

(1) A landfill into which putrescible waste is to be disposed must not be sited closer than 10,000 feet from any area of an airport used or intended to be used for landing, taking off, or surface maneuvering of turbine-powered fixed-wing aircraft or 5,000 feet from any area of an airport used or intended to be used for landing, taking off, or surface maneuvering of piston-powered fixed-wing aircraft.

(2) A landfill into which putrescible waste is to be disposed which is located within five miles of any area of an airport used or intended to be used for landing, taking off, or surface maneuvering of aircraft must not, as determined by the Federal Aviation Administration, pose a potential bird or obstruction hazard to aircraft.

(3) The owner or operator of an existing landfill that is authorized to dispose of putrescible waste and that is located less than 10,000 feet from any area of an airport used or intended to be used for landing, taking off, or surface maneuvering of turbine-powered fixed-wing aircraft or less than 5,000 feet from any area of an airport used or intended to be used for landing, taking off, or surface maneuvering of only piston-powered fixed-wing aircraft must provide in its permit renewal application documentation that the Federal Aviation Administration has determined that the facility does not pose a bird hazard to aircraft.

(4) A landfill containing only nonputrescible waste may be located less than 10,000 feet from any area of an airport used or intended to be used for landing, taking off, or surface maneuvering of turbine-powered fixed-wing aircraft or less than 5,000 feet from any area of an airport used or intended to be used for landing, taking off, or surface maneuvering of only piston-powered fixed-wing aircraft, if the Federal Aviation Administration has determined that the landfill will not present a safety hazard to air traffic.

(5) The final elevation of a new landfill or expansion of an existing landfill must not extend more than 200 feet above the highest elevation of the land surface that existed prior to landfill development, unless the Federal Aviation Administration determines that the proposed fill height in excess of 200 feet will not present a safety hazard to air traffic.

(f) Unstable areas. New landfills or expansions of existing landfills must not be located in unstable areas that are susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components designed to prevent releases from the landfill. These may include:

(1) areas having an active or substantial probability of mass movement where the movement of earth material at, beneath, or adjacent to the landfill may result in downslope transport of soil or rock by means of gravitational influence. Areas of mass movement include, but are not limited to, landslides, avalanches, debris slides or flows, soil fluctuations, block sliding and rockfall; and

(2) areas where karst topography, with its characteristic surface and subterranean features, has developed as a result of dissolution of limestone, dolomite, or other soluble rock. Characteristic physiographic features present in karst terrain include, but are not limited to, sinkholes, sinking streams, caves, large springs, and blind valleys.

(g) Unmonitorable or unremediable areas. New landfills must be located at sites that will allow environmental monitoring and site remediation to be conducted before off-site impacts occur.

(1) Identification of these sites must be based upon the ability to:

(i) sufficiently characterize groundwater and surface water flow to determine upgradient and downgradient directions;

(ii) install environmental monitoring points that will detect releases from the entire landfill;

(iii) characterize and define a release from the landfill; and

(iv) determine what corrective actions may be necessary to respond to a contaminant release, and carry out those corrective actions.

(2) Lateral expansions of existing landfills that are already contaminating groundwater may be allowed by the department if the proposed area can be constructed in compliance with the regulations. This may be demonstrated using remedial actions at the existing site resulting in a demonstrated improvement in groundwater quality, and any additional monitoring requirements needed to demonstrate the integrity of the expansion area such as leak detection lysimeters installed beneath the liner, statistical triggers of groundwater monitoring, tracers, additional monitoring wells surrounding the site, and any other monitoring methods required by the department.

(h) Fault areas. New landfills and lateral expansions of existing landfills must not be located within 200 feet of a fault that has had displacement in Holocene time unless the owner or operator demonstrates to the department that an alternative setback distance of less than 200 feet will not result in damage to the structural integrity of the landfill and will be protective of public health and the environment.

(i) Seismic impact zones. New landfills and lateral expansions of existing landfills must not be located in seismic impact zones, unless the owner or operator demonstrates to the department that long-term containment structures, including liners, leachate collection and removal system, leachate storage system, and surface water control system, are designed pursuant to the requirements of subdivision 363-4.3(d) of this Part.

(j) Wetlands

New landfills and lateral expansions of existing landfills must not be located within the boundary of either state or federally-regulated wetlands, unless the required permits are obtained from the U.S. Army Corps of Engineers and/or the department, and unless the owner or operator can demonstrate the following to the satisfaction of the department.

(1) No practicable alternative to the proposed landfill is available which does not involve state or federally-regulated wetlands.

(2) The construction and operation of the landfill will not:

(i) cause or contribute to violations of any applicable water quality standard;

(ii) violate any applicable toxic effluent standard or prohibition;

(iii) jeopardize the continued existence of endangered or threatened species;

(iv) result in the destruction or adverse modification of a critical habitat of any endangered or threatened species; and

(v) violate any requirement for the protection of a marine sanctuary under the Marine Protection, Research, and Sanctuaries Act of 1972, as incorporated by reference in section 360.3 of this Title.

(3) The landfill will not cause or contribute to significant degradation of federally-regulated wetlands. The owner or operator must demonstrate the integrity of the landfill and its ability to protect ecological resources by addressing the following factors:

(i) erosion, stability and migration potential of native wetland soils, muds, and deposits used to support the landfill;

(ii) erosion, stability and migration potential of dredged and fill materials used to support the landfill;

(iii) the volume and chemical nature of the waste managed in the landfill;

(iv) potential impacts from the release of the solid waste on fish, wildlife, and other aquatic resources and their habitat;

(v) potential effects of a catastrophic release of waste to the federally-regulated wetland and the resulting potential impacts on the environment; and

(vi) any additional factors, as necessary, to demonstrate that ecological resources in the federally-regulated wetland are sufficiently protected.

(4) Steps have been taken to attempt to achieve no net loss of federally-regulated wetlands to the extent required under federal or state law (as defined by acreage and function) by:

(i) first avoiding impacts to federally-regulated wetlands to the maximum extent practicable; then

(ii) minimizing unavoidable impacts to the maximum extent practicable; and then

(iii) by offsetting remaining unavoidable wetland impacts through all appropriate and practicable compensatory mitigation actions (e.g., restoration of existing degraded wetlands or creation of new wetlands).

(5) Sufficient information is available to make a reasonable determination with respect to these demonstrations.

(k) School and residence.

Excluded from the below requirements are residences and schools that are owned by or which have entered into legal agreement with the landfill owner or operator. In terms of residences, the 1,000 feet distance in the below requirements is measured from the closest location on the landfill property where waste will be placed to the residence building and managed landscape. In terms of schools, the 1,000 feet distance in the below requirements is measured from the closest location on the landfill property where waste will be placed to the school building and associated outdoor recreation areas.

(1) A new landfill, which submits an initial permit application after the effective date of this rulemaking, cannot be located within 1,000 feet of a school or residence. Schools or residences constructed after an initial Part 360 permit for a landfill has been deemed complete by the department are excluded from this requirement.

(2) A lateral or vertical expansion of a landfill is prohibited within 1,000 feet of a school or residence. Schools or residences constructed within 1,000 feet of a proposed expanded footprint of a landfill after a Part 360 permit modification application has been submitted are excluded from this requirement.

(3) A Part 360 permit modification application for a landfill expansion that has been deemed complete by the department prior to the effective date of this rulemaking is not subject to this requirement.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 363-5.1

Adopted New York State Register September 20, 2017/Volume XXXIX, Issue 38, eff. 11/4/2017

Amended New York State Register June 7, 2023/Volume XLV, Issue 23, eff. 7/22/2023

Amended New York State Register June 21, 2023/Volume XLV, Issue 25, eff. 7/23/2023