NYSDEC to use Enforcement Discretion with Certain 6NYCRR Part 360 Series Provisions
Author: John Brusa, P.E.
If you followed our previous posting on the 6NYCRR Part 364 changes (found at this link: 6NYCRR Part 364), you will know that there were significant updates in the new regulations in relation to waste haulers, specifically the new registration and tracking requirements of in Subparts 364-3 and 364-5, respectively. This results in a significant increase in paperwork and tracking required by the transporter as well as the New York State Department of Environmental Conservation (NYSDEC) under the updated Part 364.
Many industry groups challenged the NYSDEC on these new regulations. As a result of negotiations, NYSDEC has formally agreed to exercise "enforcement discretion" with respect to certain provisions of 6 NYCRR Part 360, Part 361, Part 364 and Part 365 of the newly enacted Part 360 Series, until revised regulations are finalized. A summary of the enforcement discretion per a March 1, 2018 letter issued by Thomas S. Berkman, Deputy Commissioner & General Counsel include:
- For materials used in cement, concrete and asphalt pavement, the NYSDEC will utilize its enforcement discretion with respect to facilities subject to the requirements of 6 NYCRR 361-5 and for materials that are destined for and/or stored and maintained at these facilities under the control of the generator or the person responsible for the generation, prior to processing or reuse, in conformance with 6 NYCRR 360.12 (c)(3)(viii), (ix) and (x). These materials destined for and/or managed at facilities subject to the requirements of 6 NYCRR 361-5 may be managed as a commercial product or raw material and are not subject to Part 360 or Part 361. Transporters handling these materials are also not subject to otherwise applicable provisions of 6NYCRR 360.4, 360.15, and Part 364.
- Recognizable, uncontaminated concrete, asphalt, rock, brick and soil used for reclamation at a facility permitted pursuant to the Mined Land Reclamation Law, will not be subject to the otherwise applicable provisions of Parts 360, 361 and 364, if the material has been reviewed, approved and incorporated into the mined land reclamation permit issued to the facility. No fee or any form of consideration may be received by the operator for use of this material. Any material transported to a mine site for such reclamation purposes is subject to monitoring and enforcement by the NYSDEC to ensure no unapproved wastes are accepted or disposed of during mining and reclamation activities. The NYSDEC reserves the right to disapprove use of such materials if placement of these materials at a mine site may constitute an environmental hazard.
- For waste tires used to secure tarpaulins, the NYSDEC will utilize its enforcement discretion with respect to the enforcement of 6 NYCRR Subpart 361-6, as long as the use of waste tires to secure tarpaulins is done in accordance with the pre-determined beneficial use found at Part 360. 12(c)(2)(iv) or BUD 1137-0-00, dated December4, 2014, which permits the use of waste tires to anchor plastic film or other cover material for corn silage, haylage or other agricultural feeds if certain conditions are met.
- The Department will utilize its enforcement discretion with respect to the provision requiring certain sampling on any fill material or residue leaving the facility for reuse to delay the enforcement of the sampling requirement related to all permitted construction & demolition (C&D) facilities regardless of the timing of the permit issuance to the facility.
- Regarding the storage requirements for regulated medical waste (RMW), based on concerns raised by small generators (dental offices, etc.) the NYSDEC will exercise its enforcement discretion with respect to these provisions and will require that sharps and RMW containers be removed from patient care or use areas to a room or area designated for RMW storage when the container has reached the fill line indicated on the container, is otherwise filled, or the container generates odors or other evidence of putrefaction, whichever occurs first.
The full NYSDEC Enforcement Discretion letter is provided at this link: Signed Enforcement Discretion Letter