The New York State Department of Environmental Conservation (“DEC”) recently issued an enforcement discretion letter stating that it will exercise its enforcement authority with respect to certain provisions of the recently revised Solid Waste Management Program. As we previously reported, the final version of the comprehensive revisions, codified in Title 6 of New York Compilation of Codes, Rules and Regulations (“6 NYCRR”), took effect in November 2017.
The enforcement discretion letter, dated March 1, 2018, addresses four areas of the Part 360 regulations and temporarily suspends enforcement of some of the more problematic provisions. DEC will exercise its enforcement discretion over these provisions until the earlier date of May 3, 2019, or when an amendment to the current rule is promulgated.
I. Materials Used in Cement, Concrete and Asphalt Pavement
The Part 360 revisions include stricter requirements for Beneficial Use Determinations (“BUDs”) and reuse of fill material. Part of these revisions modified the requirements for concrete and concrete products, asphalt pavement, brick, glass, soil and rock. DEC is exercising its enforcement discretion with respect to facilities that process or store construction and demolition debris, and for such materials that are destined for, or stored and maintained at, facilities under the control of the generator or person responsible for the generation prior to processing or reuse, in conformance with 6 NYCRR 360.12 (c)(3)(viii), (ix) and (x).
- Materials ((under the control of the generator or person responsible prior to processing or reuse and subject to 6 NYCRR 360.12 (c)(3)(viii), (ix) and (x)) destined for or managed at facilities subject to 6 NYCRR 361-5 may be managed as a commercial product or raw material not subject to Part 360 or Part 361.
- Transporters handling these materials are not subject to the otherwise applicable provisions of 6 NYCRR 360.4, 360.15 and Part 364.
- Recognizable, uncontaminated concrete, asphalt, rock, brick and soil used for reclamation at a facility permitted under the Mined Land Reclamation Law is not subject to otherwise applicable provisions of Parts 360, 361 and 364 if the material has been incorporated and approved into the facility’s permit.
- An operator may not receive any form of consideration for use of this material.
- DEC may monitor material transported to a mine site for reclamation purposes to ensure that no unapproved wastes are accepted or disposed of.
- DEC may disapprove of materials if placement at a mine site may constitute an environmental hazard.
II. Waste Tires Used to Secure Tarpaulins
Subpart 361-6 of 6 NYCRR applies to facilities that store, handle or process waste tires. The revisions required adjustments for these facilities to address the needs of the agricultural industry. DEC will exercise discretion over enforcement of Subpart 361-6 so long as the use of tires to secure tarpaulins is done in conformance with Part 360.12(c)(2)(iv) (a pre-determined beneficial use) or BUD 1137-0-00 (which permits the use of waste tires to anchor plastic film or other cover material if certain conditions are met).
III. Construction and Demolition Facility Material Sampling Requirements
Section 361-5.4(e) requires permitted construction and demolition facilities to sample and analyze any fill material or residue leaving the facility for reuse. Regardless of when a permit was issued to the facility, DEC is exercising its discretion and is delaying enforcement of these sampling requirements.
IV. Storage Requirements for Regulated Medical Waste (“RMW”)
The new Part 360 regulations mandate storage requirements for generators of RMW. Sections 365-1.2(b)(7) and (b)(8) contain requirements for storage and removal of RMW and sharps containers – specifying how long until these containers must be moved from a generation area to a designated storage area. Based on concerns from relatively small generators, DEC is exercising its enforcement discretion with respect to these provisions. Sharps and RMW containers must be removed from patient care or use areas to designated storage areas when material in the container reaches the fill line, when the container is otherwise filled or when the container generates odors or other evidence of putrefaction, whichever occurs first.