NJDEP Proposes Rules Under the Legacy Landfill Law with Far-Reaching Implications

Manko Gold Katcher & Fox
Bruce S. Katcher and Brett E. Slensky

September 1, 2016

Originally Published in the MGKF News Flash

On August 15, 2016, the New Jersey Department of Environmental Protection (NJDEP) proposed several amendments to its Solid Waste and Air Pollution Control rules at 48 N.J.R. 1526 to implement the Legacy Landfill Law, N.J.S.A. §§ 13:1E-125.1 – 125.8 (the Law), which established certain requirements triggered by the acceptance of waste at legacy landfills (landfills that ceased operations prior to January 1, 1982 and to which NJDEP’s current closure plan and escrow requirements do not apply) and closed sanitary landfills (landfills that generally ceased operations after January 1, 1982 and where NJDEP closure requirements are complete). These types of landfills have increasingly become candidates for redevelopment potentially involving the acceptance of new wastes to generate revenues to facilitate such redevelopment and/or proper closure. In addition, a number of the proposed amendments will also impact currently operating landfills, post-1982 landfills where closure activities are on-going and other NJDEP programs. The key proposed rule changes are briefly summarized below.

Proposed Changes for Legacy Landfills Undertaking Closure Activities or Accepting Additional Material and Closed Sanitary Landfills Accepting Additional Materials After Closure:

  • New requirements for landfill monitoring systems at N.J.A.C. 7:26-2A.7 that authorize NJDEP to require the owner or operator of the landfill to install a hydrogen sulfide monitoring system based upon NJDEP’s determination that the landfill is the source of a verified odor complaint or an exceedance of the 30 parts per billion by volume (ppbv) hydrogen sulfide emission standard established by the Law.
  • New landfill operational and maintenance requirements at N.J.A.C. 7:26-2A.8 that incorporate additional air emissions control requirements, including an obligation for the owner or operator of a sanitary landfill to notify NJDEP within one hour after becoming aware of an air contaminant concentration that has the potential to cause an odor complaint, air pollution or an exceedance of the hydrogen sulfide standard, and to take reasonable measures to control the emissions. Additional hydrogen sulfide-related reporting requirements are also proposed.
  • Amendments to N.J.A.C. 7:26-2A.8(j) that will require a New Jersey professional engineer to oversee all landfill disruption activities and certify quarterly reports and final reports related to the disruption.
    New requirements at N.J.A.C. 2A-9 for a closure and post-closure care plan (to be submitted to NJDEP prior to undertaking closure activities or accepting any material at a Legacy Landfill and, prior to accepting any material not previously authorized by
  • NJDEP at a closed sanitary landfill). Any such closure and post-closure plan would include: (1) evidence of a municipal site plan approval or a written acknowledgement from a competent local official that such an approval is not required; (2) an assessment of the landfill and its surroundings that will need to address a range of topics, including nearby human and ecological receptors, types and vertical and horizontal extent of waste in the landfill, and the chemical characteristics of all environmental media, including soil, leachate, groundwater and surface water; and (3) an engineering report that will need to address (i) a number of closure items contained in the current regulations, e.g., a soil erosion and sedimentation control plan, final cover and related maintenance plan, etc., and (ii) certain new requirements, e.g., material acceptance protocols.
    • For the landfill assessment, to the extent existing landfill data and information is insufficient to prepare an adequate assessment report, the preamble to the proposed rule indicates that the owner or operator of the landfill must investigate and obtain the necessary information, which could require a landfill disruption permit if the investigation will include activities that disrupt the landfill’s surface, e.g., soil borings, test pits, etc., as required by N.J.A.C. 7:26-2A.8(j).
  • As to the rationale for the new closure/post closure requirements for closed sanitary landfills accepting material not previously approved, the preamble to the proposed rule notes that many of these landfills began their operations before the standards for modern landfills were adopted and NJDEP has little information on the early operations or environmental conditions of some of these landfills. Therefore, NJDEP feels that the assessment report is necessary to help the agency evaluate the sufficiency of the plan’s proposed environmental controls, maintenance, and monitoring measures in connection with the acceptance of the new material.
  • Other new requirements at N.J.A.C. 2A-9 include a requirement for a New Jersey professional engineer to oversee closure and “any other activities” at the landfill and the submission of a post-closure evaluation report to NJDEP at certain specified intervals, as further discussed in the section below.
  • New requirements at N.J.A.C. 2A-9 for a closure and post-closure financial plan, including: detailed cost estimates for closure and post-closure care; documentation that financial assurance for the closure activities (in the form of a surety bond, letter of credit, line of credit or trust agreement) has been established; a demonstration that sufficient funds will be available to pay for the post-closure activities (in the form of a legacy landfill escrow account, which will be subject to detailed regulatory requirements); and certificates of insurance evidencing the required liability insurance for claims resulting from the operation or closure of the legacy landfill. Specific model language for each form of financial assurance and certificate of insurance is included in the proposed regulations.

Proposed Changes for Post-1982 Landfills Where Closure Activities are On-going and Operating Landfills:

  • The new hydrogen sulfide-related requirements and changes to the landfill disruption requirements noted in the first three bullets above will also apply to these landfills.
  • New closure and post-closure care requirements at N.J.A.C. 2A-9, including:
    • A provision that will require a New Jersey professional engineer to oversee closure and “any other activities” at the sanitary landfill;
    • New requirements for the submission of a post-closure evaluation report to NJDEP at certain specified intervals, e.g., every 10 years following the completion of closure, two to three years before the scheduled end of the initial 30-year post-closure care period, etc., to enable NJDEP to evaluate the landfill’s compliance with the applicable closure and post-closure requirements, the need for any changes, and whether an extension or reduction of the post-closure care period is warranted. For sanitary landfills that are within 10 years of the completion of the post-closure care period for the landfill, the first report will be due no later than one year after the effective date of the proposed amendments. Significantly, the proposed regulations do not specifically address the standards for NJDEP’s review of the report or related decision making and do not establish criteria which if met, will qualify the sanitary landfill to terminate post-closure.
    • Expanded content requirements for the closure and post-closure care plan, including the assessment and engineering reports noted above for legacy landfills. When and how these requirements will be applied to landfills that already have an approved closure plan is unclear in the proposed regulations.

Related Proposed Changes to the Air Pollution Rules:

  • A new requirement at N.J.A.C. 7:27-7.3 that extends the prohibition on emissions of hydrogen sulfide in a concentration in excess of the 30 ppbv standard, averaged over any 30-minute period, as established in the Law, to all sanitary landfills.

Other Proposed Solid Waste Rule Changes:

  • The addition of a new term and accompanying definition for “contaminated soil,” the deletion of the term and definition for “clean fill” and companion changes to the definition of solid waste at N.J.A.C. 7:26-1.4 and 1.6. This change will likely have some implications for site remediation projects.

NJDEP will be holding a public hearing on the proposed rules at its office in Trenton, New Jersey on September 23, 2016.

This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Katcher and Mr. Slensky and may not reflect the opinions of Synergy Environmental, Inc., Manko Gold Katcher & Fox or either of those firms’ clients.

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