NYSDEC Reviews Proposed Part 360 Comments at Solid Waste Conference

Author: John Brusa, P.E.

Summary and revised regulations targeted for April 2017 release

If you have been following the proposed changes to New York’s 6 NYCRR Part 360 solid waste management regulations, you are aware that the public comment period on the draft regulations closed on September 13, 2016.  On October 3rd, 2016 at the New York State Association for Solid Waste Management (NYSASWM) Fall Conference, the NYSDEC Regulatory Team provided a summary of the comments received, some insight on possible revisions, and a possible timeline for issuance of the final regulations. 

The Department was appreciative of the detailed comments received during the public outreach meetings and the public comment period.  Approximately 4,500 comments were received in total. 

A summary of the written comments received includes:

  • Detailed written comments were received from approximately 230 entities, with comments ranging from 1 to 70 pages;

  • 4,200 letters and emails were received that expressed opposition to the use of hydrofracking brine on roads;

  • 60 letters were received that expressed concern about proposed restrictions on the use of waste tires in agricultural applications; and

  • 100’s of letters contained comments on landfill issues including landfill final slope thresholds, and acceptance of ash and mining waste.

The Department’s goal is to have the regulations promulgated in September 2017.  To meet this timeframe, the Department is targeting April 2017 for its completion of revisions to the documents and a responsiveness summary. These revisions could potentially include substantial changes to some parts of the proposed regulations including the C&D and Solid Waste Planning sections.  The Department’s Regulatory Team said that if it makes significant revisions then it might embark on another public review period with the release of a “redlined” version of the proposed regulations, which would show changes made in response to public comments that have been received on the original draft regulations. 

Many of the comments provided detailed suggested changes, which in some cases, the Department is considering adopting. These include changes to the draft definitions, potential changes in transition timeframes, clarification on which document submittals require professional engineer certification, and clarification of Local Solid Waste Management Plan (LSWMP) “consistency” for applications submitted by or on behalf of a private facility. 

Comments were also received on the proposed noise standards for solid waste facilities.  These comments are prompting the Department to consider requiring submittal of a noise assessment to demonstrate compliance with the sound level requirements and to require submittal of a noise monitoring plan if the noise assessment determines that regulatory noise limits cannot be met.

Many comments were received with regard to Beneficial Use Determinations (BUDs). Some of the concerns related to BUDs included the following: 

  • The 5 year expiration date on BUDs is too restrictive. 

  • The BUD for use of tires on farms to secure tarps is too restrictive. 

  • The BUD for concrete and asphalt millings should be in Part 360 (BUDs) rather than Part 361- Material Recovery Facilities, to avoid potential confusion and misinterpretations.  

  • BUDs should not be granted for use of production brine from oil and gas wells and for de-icing or dust control on roads. 

  • For Navigational Dredge BUDs, sampling requirements for BUDs are not consistent with Division of Water TOGS 5.1.9 and the proposed BUD procedure conflicts with the way projects are contracted and bid in the New York Harbor and should be reconsidered. 

Further clarification will be provided on “Historic Fill” including consideration of a new term.  This section of the regulations may be expanded to include soil and soil-like waste that do not meet the exclusion criteria included in the definition of solid waste. The Department may also clarify uses and circumstances in which soils can be reused in off-site projects. 

There were also many other comments received on all of the proposed Parts including radiation detectors, various landfill design aspects,  Solid Waste Planning, Transfer Facilities, Financial Assurance, and Waste Transporters.  Given the broad scope and extent of comments that were submitted on the draft regulations, most of which were received by the Department on the September 13th deadline, specific details on how the Department plans to address the comments were not expanded on during the overview presentation made by the Regulatory Team during the NYSASWM Conference.  

Stay tuned as we will be on the lookout for more information from the Department over the next few months as they work toward their April 2017 target date for possible release of a responsiveness summary and revised regulations.