For the New York State Department of Environmental Conservation (“NYSDEC” or “Department”), discretion has been the better part of valor when considering enforcement of certain provisions of the Revised Part 360 Solid Waste Regulation Series (“Regulations”).
In September 2017, NYSDEC announced a comprehensive overhaul of the then existing regulations governing Solid Waste Management Facilities. The Regulations became effective on November 4, 2017, and were the first changes to solid waste management regulation in New York in almost 25 years. The Regulations made far-reaching changes, including extending regulatory coverage to previously exempt or unregulated facilities, and imposing strict rules and regulations for beneficial use determinations, construction and demolition debris, transportation of waste, and sampling for fill and other material intended for reuse, among other requirements.
According to NYSDEC the revised Regulations were derived from:
Experience in regulating those facilities has demonstrated that many areas of the regulations would benefit from revision, clarification, or modification to allow for new, technically appropriate alternatives to the design and operation criteria for solid waste management facilities found in the existing regulations, and to streamline the regulatory process.
Application of the Regulations triggered a number of practical, compliance-related issues for the regulated community.
To date, the Department has still not fully implemented the Regulations. NYSDEC has taken a measured approach to enforcement of certain unanticipated effects in application of the Regulations. The Department continues to provide time for the regulated community to adjust and bring their facilities into compliance and has issued multiple enforcement discretion letters outlining certain provisions and/or circumstances in which the Department acknowledges compliance hurdles and the benefits of partial compliance in contrast to penalizing non-compliance.
The most recent enforcement discretion letters were released on March 16, 2022 and April 27, 2022 respectively, and confirm that NYSDEC will utilize enforcement discretion until May 3, 2023 or until an amendment to the current rule is promulgated for certain waste categories and processes contained in 6 NYCRR Part 360, Part 361, Part 362, Part 364 and Part 365. While the letters signal compromise and an effort to instill a balance of enforcement for the benefit of the environment, the letters do warn that except for the specific provisions identified for discretion, all other provisions of the Part 360 Series remain in effect and will be enforced.
What follows is a brief summary of the specific circumstances and provisions that the Department has authorized enforcement discretion and or clarified the compliance obligation in the respective discretion letters.
The March 16, 2022 discretion letter identifies requirements across multiple solid waste management activities and provides discretion:
- To address backlogs of material and larger stockpiles of recyclables at Recyclable Handling and Recovery Facilities (“RHRFs”), DEC will, upon request, waive the 15 percent residue threshold in 6 NYCRR §361-1.3(a)(1) and (2) for registered RHRFs on a case-by-case basis. In addition, with DEC approval, enforcement discretion shall be applied to storage of unprocessed or processed non-putrescible recyclables at locations owned or under control of an owner or operator of a solid waste management facility.
- To encourage metal recycling, DEC will utilize enforcement discretion to exclude metal extracted from a municipal waste combustion facility (“MWC”) after combustion, from the calculation of the MWC’s throughput capacity.
- To address a discrepancy between the regulatory requirements imposed on 10-day permit exempt transfer facilities and hazardous and solid waste transporters in which certain permitting restrictions on permit exempt transfer facilities (6 NYCRR Part 360) were more stringent than those for hazardous waste transporters (6 NYCRR Part 373). NYSDEC is using enforcement discretion to waive the requirements of 6 NYCRR §360.14 provided the management of solid wastes by the transporters is consistent with 6 NYCRR §372.3(a)(6) and §372.3(a)(7)(iii).
- To resolve the inadvertent removal of an exemption that imposed two conflicting sets of requirements on transporters of used oil when storing solid wastes at 10-day transfer facilities. NYSDEC will use enforcement discretion by waiving the requirement of 6 NYCRR §360.14 provided the transporter complies with the applicable provisions of 6 NYCRR §374-2.5 and §374-2.10.
- To address concerns raised by municipalities that permitting and landfill liner requirements imposed on registered land clearing debris landfills would cause their Municipal Solid Waste (“MSW”) landfills to be inundated with land clearing debris, significantly reducing available air space. The Department is using enforcement discretion to allow such previously registered facilities to accept tree debris, concrete, asphalt pavement, brick, rock and soil that meets the definition of General Fill or the requirements of 6 NYCRR §360.12(c)(1)(ii).
- To respond to concerns raised by the agricultural community, NYSDEC is using enforcement discretion related to 6 NYCRR Subpart 361-6 allowing for the use of waste tires to secure tarps and other cover in accordance with the pre-determined beneficial use found at 6 NYCRR §360.12(c)(2)(iv) or BUD 1137-0-00 dated December 4, 2014 which permits the use of waste tires to anchor plastic film or other cover material for corn, hay or other agricultural feeds if certain conditions are met.
- To address concerns raised by small generators of regulated medical waste (“RMW”) (dental offices, etc.). NYSDEC will exercise enforcement discretion with respect to 6 NYCRR § 365-1.2(b)(7) and (8) related to the storage of RMW at such facilities.
- To clarify certain permitting obligations imposed on facilities handling RMW that are registered with the Federal Select Agent Program (“FSAP”) or utilize biosafety protocols evaluated as part of FSAP Approval. NYSDEC will use its enforcement discretion and will not require a permit for a facility that holds a FSAP registration or utilizes biosafety protocols approved as part of a FSAP at another laboratory at the same institutional campus; however, such facilities must register with NYSDEC in accordance with 6 NYCRR §365-2.3(b) and all wastes must be inactivated on-site and disposed of as RMW at a permitted RMW treatment facility.
The April 27, 2022 discretion letter provides enforcement discretion and clarification related to Construction and Demolition Debris and Fill Material. Specifically, the April 27, 2022 letter provides:
- The Department shall use enforcement discretion related to 6 NYCRR §360.12(c)(3)(viii), (ix), and (x) which provisions identify pre-determined beneficial uses (“BUDs”) to deal with reuse of recognizable, uncontaminated concrete and concrete products, asphalt pavement, brick, glass, soil and rock. The Department will allow materials destined for and/or stored at these facilities, under the control of the generator or the person responsible for the generation, but prior to processing or reuse, to be managed as commercial product or raw materials. Similar discretion shall be issued to transporters of such material.
- Department discretion as to the use of recycled aggregate from bricks, concrete pavement and/or asphalt pavement when used in or under asphalt pavement, or other paved surfaces, if separated from other waste prior to processing and subsequently processed and stored in a sperate area as a discrete material stream.
- A stay of enforcement of sampling requirements contained in 6 NYCRR §361-5.4(e) which requires facilities to sample any fill material or residue leaving the facility for reuse.
- Clarification as the definition of the term “similar material” that qualifies as Fill Material as that term is defined in 6 NYCRR §360.13.
- Clarifies the handling and transporting requirements of mixed loads, indicating that facilities holding registration as a Solid Waste Management Facility, issued prior to November 4, 2017, may accept mixed loads of asphalt, asphalt millings, concrete, concrete products (including those embedded with reinforcement), masonry products, brick, rock and soil provided the facility’s registration allows for process of the component materials in the mixed load. A special note indicated that de minimis amounts of wood present in a mixed load does not cause the material to be considered an unauthorized mixed load, or to be unrecognizable or contaminated.
- Exception for use of recognizable, uncontaminated concrete products, asphalt pavement, brick and rock from construction and demolition activities may be used for grade adjustments if certain criteria are met. The exception is not applicable in Nassau or Suffolk Counties or in the New York city Watershed.