Proposed 2005 Amendments to the Solid Waste Management Act of 1988

Draft May 31, 2005 [1]

(New language is underlined, bold, deleted language struck through, and comments are in footnotes)




§ 27-0106. State solid waste management policy


In the interest of public health, safety and welfare and in order to conserve energy and natural resources, the state of New York, in enacting this section, establishes as its policy that:


1. The following are the solid waste management priorities in this state:


(a) first, to reduce the amount of solid waste generated;


(b) second, to repair, refurbish, and reuse products and packaging material for the purpose for which it was most recently[2] intended,


(c) third, to source separate and recycle or compost, or otherwise find a beneficial use (hereafter referred to as recycle) for material that cannot be reused, or if source separation is not possible, to recover for recycling and/or composting, recyclable or compostable materials from mixed discards;


(c d) fourth, third to recover, in an environmentally acceptable manner, energy from discards that can not be economically and technically reused or recycled or use alternate technology, engineered to protect the environment, that recovers maximum materials and/or energy from discards; and


(d e) fourth, fifth, as a last resort, to store[3] solid waste that is not being reused, recycled, or from which energy is not being recovered, by land burial at sites engineered to protect the environment or other methods approved by the department until such time said material can either be reused or recycled.


(f) Export out of the immediate area in which waste has been generated shall be minimized and should not occur unless all good faith efforts to prevent, reuse, recycle, or store locally have been exhausted.[4]  The local planning unit in such an area where waste is exported, must have a detailed plan to phase-out export as soon as practicable.  The department shall determine a deadline for phase-out of export in localities.


2. The objective of consumed products and solid waste management is to minimize impacts to the environment during the product lifecycle (extraction, manufacturing, transportation, use, discard) and while encouraging methods to reduce waste generation, to strive towards maximum reduction, reuse, and recycling of discards.  By 2015 each locality must achieve 75% diversion from disposal based on a baseline of waste generated in 2005.  By 2025, each locality must achieve 95% diversion from disposal based on a baseline of waste generated in 2005. [5] The definitions of solid waste, recyclables, reusables, and preventables shall be developed by the department and standardized across the state for purposes of this Act.


23.  State government must make an essential contribution to the development and implementation of environmentally, economically and technically viable solid waste management programs through fulfilling its responsibilities to provide programs which promote waste reduction and the expansion of markets for recovered materials, clearly articulated, responsive and consistently applied regulatory structures, and a full range of technical assistance to local governments. A state-local partnership, in which the basic responsibility for the planning and operation of solid waste management facilities remains with local governments and the state provides necessary guidance, assistance, and regulation must be forged. 


34. This policy, after consideration of economic and technical feasibility, shall guide the solid waste management programs and decisions of the department, and other state agencies and authorities, and local solid waste planning units.


§ 7. Such law is amended by adding two new sections 27-0107 and 27-0109 to read as follows


§27-0107. Local solid waste management plans; purpose and scope


1. Purpose and scope.


(a) A planning unit may must undertake and complete a timely process leading to a local solid waste management plan for such unit for at least a ten-year period. For purposes of this section and section 27-0109 of this article,  "planning unit" shall mean a county, two or more counties acting jointly, a local government agency or authority established pursuant to state law for the purposes of managing solid waste, or two or more other municipalities which the department determines to be capable of implementing a regional solid waste management program.


(b) The local solid waste management plan, plan modifications and updates shall:


(i) characterize the solid waste stream to be managed in the planning period, no less frequently than once every five years.  Such characterization shall include categories and subcategories of recyclable and compostable materials, discarded durable products, nondurable products, containers and packaging, shall assess toxic materials contained in products, and shall be performed for all major generating sectors (residential, commercial, institutional, and industrial) and for major political subdivisions within the planning area.  The department shall prepare regulations detailing minimum requirements for waste characterization studies and guidance for conducting such studies;


(v ii) set forth waste prevention, reuse, recycling and composting targets to be accomplished by the end of each 10-year planning timeframe and interim goals, with a sufficient number and array of clearly stated commitments (milestones) for each waste prevention/management method in each year of the plan to accomplish the stated targets, and a timetable for implementing the plan.  The plan’s timetable must be aligned with solid waste management policy and targets in Sec. 106; 


(iii) include and/or change milestones in the plan, plan update or modification to address to the maximum extent practicable the comments and views expressed by concerned governmental, environmental, commercial and industrial interests and the public on the waste reduction, recycling, reuse and disposal alternatives;


(ii iv) characterize and quantify assess the progress (towards State solid waste targets as stipulated in this Act – achieving maximum prevention, reuse, recycling) of existing solid waste management programs, incentives, directives, legislation, operations and facilities since issuance of the previous plan, update or modification;


(v) characterize and quantify expected progress towards prevention and diversion targets stipulated in this Act, and environmental, economic, and social impacts of alternate proposed solid waste management programs, incentives, directives, legislation, operations and facilities. (Such alternate solid waste management measures or plans may be proposed by local legislative bodies or the public.)


(iv vi) identify the parties with responsibility to implement each element of the plan and the steps which must be undertaken by each and a timetable by which they will be accomplished. The State will establish a hierarchy of parties with responsibility among its own agencies or departments, and name a lead agency for assigning responsibilities for planning and enforcement of plan components.  Likewise, Local Planning Units must assign specific responsibilities for planning and enforcement of plan components.


(vi vii) describe the participation in the preparation of the plan of each municipality which has chosen to participate in such preparation; and


(vii viii) describe (A) measures undertaken by the municipalities participating in the planning unit to secure participation of neighboring jurisdictions, (B) the limitations, if any,  imposed by the proposed plan on solid waste management alternatives available to such neighboring jurisdictions, and (C) alternatives which would be available if a local solid waste management plan including such jurisdictions were prepared. Specific written suggestions received from neighboring jurisdictions shall be summarized and reflected in the plan.


(ix) Plans must be updated every two years, and include status reports, detailing accomplishments and difficulties, for all programs, initiatives, proposed legislation, operations, facilities contained in the plan, and report on progress towards goals.  Copies of new research and marketing studies, educational campaign literature, waste characterization studies, and diversion rates and generation rates achieved for all sectors and political subdivisions compiled by the local planning unit, and local budgets specifically committed to the achievement of the plan’s diversion and prevention targets, broken down by allocations to waste prevention, reuse, recycling, must be included in every update.


(x) Plan modifications will be required in the event of a major change in the availability of prevention, processing, transportation, or disposal capacity.


(xi) Plans must include measures to determine where and why (1) participation rates for recycling, composting, and reuse are lowest, and (2) waste generation rates are highest, and to bring these areas into line with State policy objectives of this Act. 


(xii) Plans for (and status reports on) research projects and implementing pilots (including but not limited to reducing waste generation, increasing and improving reuse infrastructure and transportation, improving reuse, recycling, and composting technology, adapting Pay As You Throw, agency environmental procurement practices, improving and targeting education and enforcement in all generating sectors, public space recycling, legislative initiatives and incentives to encourage reuse, recycling, and composting businesses, and municipal and institutional environmental procurement) must be included in all plans, updates, and modifications.


(xiii) Plans must include the costs and benefits (including, but not limited to, avoided costs of disposal, reduced health care costs, transportation costs, value added from reuse, recycling, and composting, revenues from economic development, etc) of each prevention, reuse, recycling, composting, incineration, landfill, collection, and export program, the tonnage diverted to each.


(c) Such plan shall take into account the objectives of the state solid waste management policy, provide for or take into account management of all solid waste within the planning unit, and embody, as may be appropriate to the circumstances, sound principles of solid waste management, natural resources conservation, energy production, and employment creating opportunities.


(d) Such plan is authorized to include and shall utilize, to the extent practicable, prepared resource materials or generic analyses so as to minimize the development and use of original data to degrees of detail not pertinent to the circumstances.


(d) The department shall prepare a bi-annual report on Best Practices and Technologies for maximizing waste prevention, reuse, and recycling, as guidance for localities to use in preparing and implementing plans.[6]  The department shall conduct training sessions for planning units in these State-of-the-Art best practices and technologies. Funding to assist in implementing the requirements of this Act, for review of local solid waste management plans, research studies and pilots, bi-annual report on State-of-the-Art, and enforcement of these provisions by the department, local planning authorities, public advisory bodies and colleges, shall come from a fund earmarked for these purposes and generated by fees levied on each ton of localities’ waste exports and each ton of waste generated. These reports shall be publicly available on the internet. [7]


(e) A plan, plan update, or modification may must be submitted to the department by a planning unit within the required timeframe .  These deadline dates shall be established through regulation. on its own initiative or upon the request of the participating municipalities. If the planning unit misses a deadline for submittal of a plan, State funding for other purposes shall be withheld and an administration, legislative body and/or planning unit shall be penalized.) [8] The department shall review such plan and advise the planning unit that:


(i) the plan contains the elements set forth in paragraph (b) and (c) of this subdivision and meets targets established in § 27-0106. Sec. 2.  Thereafter such plan shall become the local solid waste management plan in effect for such municipalities; or


(ii) the plan as submitted does not contain the elements set forth in paragraph (b) and (c) of this subdivision or does not meet targets established in § 27-0106. Sec. 2. The department shall state the reasons for its determination under this subparagraph.  If the plan is found by the department, local legislative authority, or local or state public waste advisory body, to be deficient in any of the requirements in (b) or (c), or § 27-0106. Sec. 2, the planning unit must correct the deficiencies and resubmit to the department.  The department shall review whether the plan or plan update or modification properly addresses the requirements in sections (b) and (c) of this subsection, as well as State solid waste management policy, irrespective of whether a local legislative authority has approved such plan, plan update or modification.  If the plan, as resubmitted, does not adequately address all deficiencies as identified by the department, State funding for other purposes shall be withheld and the responsible planning unit shall be penalized.  If the plan’s report of past performance demonstrates that the locality has exceeded the diversion targets, or reached them earlier than required, the department or state legislature may provide funding to the local government as a reward.


(iii) If the planning unit makes inadequate progress towards achieving state solid waste management policy objectives and targets or if it does not implement the commitments made in its plan, plan updates, or plan modifications, State funding for other purposes shall be withheld and/or the responsible planning unit shall be penalized. [9]

The only relevant circumstances preventing a city, county, or regional agency from meeting the requirements of this section, including inadequate progress towards achieving State policy objectives / targets / diversion requirements, include, but are not limited to, all of the following:

(1)   Natural disasters or acts of terrorism

(2)   Budgetary conditions within a city, county, or regional agency that could not be remedied by the imposition or adjustment of solid waste fees.

(3)   Work stoppages that directly prevent a city, county, or regional agency from implementing its source reduction and recycling element or household hazardous waste element.

Deadline extensions may be given by the department in such instances.


In addition, the department shall consider all of the following:

(1)   The extent to which a city, county, or regional agency has implemented additional source reduction, reuse, and recycling activities to comply with the diversion requirements.

(2)   The extent to which a city, county, or regional agency is meeting the diversion requirements

(3)   Whether a local jurisdiction has provided information to the department concerning whether construction and demolition waste material is at least a moderately significant portion of the waste stream, and, if so, whether the local jurisdiction has adopted an ordinance for diversion of construction and demolition waste materials from solid waste disposal facilities, has adopted a model ordinance for diversion of construction and demolition waste materials from solid waste disposal facilities, or has implemented another program to encourage or require diversion of construction and demolition waste materials from solid waste disposal facilities. [10]


Any decision to suspend a waste prevention, reuse, or recycling program or substantially reduce its funding by a planning unit or local legislative authority without substitution of superior measures to accomplish the same objectives, shall be penalized by the state.


(iv) All plans and appendices, associated reports, and department reviews of plans, shall be immediately and publicly available on the internet.


(f) For purposes of this subdivision, the department shall not serve as lead agency as defined in subdivision six of section 8-0111 of this chapter. [11] 


(g) For purposes of this section, "solid waste" shall have the same meaning as is found in subdivision one of section 27-0701 of this article, but shall not include source, special nuclear or by-product material as defined in the atomic energy act of 1954,' as amended, or hazardous waste which appears on the list or satisfies the characteristics of hazardous waste promulgated pursuant to section 27-0903 of this article or, low level radioactive waste as defined in section 29-0101 of this chapter.  But it should include products sold for use in households and businesses that contain toxic constituents.


(h) For purposes of this Act, “discards” shall have the meaning of any products, packaging, or materials, capable of being prevented, reused, recycled, or not.


2. The department shall promulgate rules and regulations in accordance with the provisions of the state administrative procedure act for the implementation of this section and section 27-0109 of this article.


1 42 U.S.C.A. § 2011 et seq.

[1] (Legislative Intent of amendments:  The solid waste planning process should be mandatory, done according to statewide standards, designed to accomplish prevention, reuse, recycling and composting targets, and done on a schedule.  Because definition of what is considered to be recyclable is critical to the establishment of targets, definitions of reusable, recyclable, and compostable materials needs to be stated here.  If the definitions are to be liberal, as the state currently uses, including car bodies, C&D, and so forth, the mandated targets need to be considerably higher / sooner than if the City’s definitions of recyclables is used.  The targets and dates should also be included here.  DEC should be required to take on more responsibility both in providing guidance to municipalities to assist in planning and implementation, but also in enforcing the requirements of this Act as regards the sufficiency of local solid waste plans.  Multiple revenue sources to provide a reliable source of funding to assist DEC, Empire State Development, and local planning units in research studies and projects, preparing state guidance for localities, local planning, and implementation of innovative waste prevention, reuse, recycling, and composting measures designed to achieve targets of this Act, are described.  Measures to penalize localities for late or insufficient plans, for not implementing commitments in plans, and for not achieving state mandated targets are described.  Fees designed to discourage waste generation and waste export are described.)


[2] As we continue to use more and more recycled feedstock, “original intended use” is not the most relevant criterion. The emphasis on “reuse” is to avoid, whenever possible, complete remanufacturing of products.


[3] We should move away from perpetuating the myth of disposal. Landfills are storage sites. Unfortunately, there is no guarantee that the systems (both mechanical and financial) we have put in place to protect the environment will last longer than the danger posed by the material we place there.

[4] A good faith effort means a locality has to 1) have a policy encouraging or requiring prevention, reuse, and recycling, 2) have sufficiently funded all components of its prevention, reuse, and recycling plan and 3) have enacted and adhered to its recycling enforcement policy.


[5] The Grassroots Recycling Network and the Zero Waste Campaign’s report have examples of businesses and governments that are planning for, moving towards and achieving close to Zero Waste.  In the 1980s, the Queens College Center for the Biology of Natural Systems conducted enhanced education and instituted wet/dry separation systems in Shelter Island and achieved close to 80% diversion.  Having a high target and striving for it should achieve more than stating a modest target.  As long as municipalities are not penalized for really doing their utmost on all levels to achieve the targets, we believe that these targets should be supported.

[6] Massachusetts produces a State Solid Waste Management Report which is like something we're proposing.  Massachusetts also has a Recycling Industry Reimbursement Credit.  (Is this similar to New York State's Remanufacturing Tax Credit?). 


[7] The preceding can be adapted from California Law for this provision:  41850.5. Any administrative civil penalty imposed by the department shall be deposited in the Local Government Assistance Account, which is hereby created in the Integrated Waste Management Fund. Any funds deposited in that account shall be used solely for the purposes of assisting local governments in complying with the diversion requirements, and shall not be used by the department for administrative purposes. Vermont has a tax on hazardous waste that funds the cost prepping SWMPs, costs of developing markets for recyclable materials, etc. (Of course, we would like to see EPR and phase-out of hazardous materials but a visible tax on goods containing hazardous materials in the interim can be an option.  That way consumers can choose the less hazardous option?  Time constraints limited our ability to report on all the best legislation that we can adapt for use here, but we would like to discuss this more with you.


[8] This would be similar in intent to the withholding of Federal highway funds and the amounts of penalty should be spelled out here.

[9] Adapt the California law that requires each municipality to achieve 50% diversion rate by 2000, or be fined a lot of money by the state.  It has worked.  California's fines for authorities that have not made a 'good faith effort' to reach 50% diversion by 2000 are up to $10,000/day (California's Public Resources Code Section 41850-41850: The good faith effort means a locality has to have 1) some kind of policy encouraging or requiring diversion of C&D (model ordinance: and 2) enacted its enforcement policy.

[10] The foregoing three paragraphs were adapted from California law.  For purposes of this section "good faith effort" may include the evaluation by a city, county, or regional agency of improved technology for the handling and management of solid waste that would reduce costs, improve efficiency in the collection, processing, or marketing of recyclable materials or yard waste, and enhance the ability of the city, county, or regional agency to meet the diversion requirements provided that the city, county, or regional agency has submitted a compliance schedule and has made all other reasonable and feasible efforts to implement the programs identified in its source reduction and recycling element or household hazardous waste element.


[11] WHAT???  Who shall be lead agency?