NY.gov Portal State Agency Listing Search all of NY.gov
D E C banner
D E C banner

Disclaimer

The New York State Department of Environmental Conservation has added a link to a translation service developed by Microsoft Inc., entitled Bing Translator, as a convenience to visitors to the DEC website who speak languages other than English.

Additional information can be found at DEC's Language Assistance Page.

Declaratory Ruling 27-33: Ronald G. Hull, Esq.

State of New York
Department of Environmental Conservation

In the Matter of the Petition of
RONALD G. HULL, ESQ.
for a Declaratory Ruling

Introduction and Petitioner's Questions

Petitioner Ronald G. Hull, Esq. (Petitioner), an attorney associated with the law firm of Underberg & Kessler, LLP, has clients involved in the transfer, transport and disposal of solid Waste and has petitioned for a Declaratory Ruling pursuant to Section 204 of the State Administrative Procedures Act and Part 619 of Title 6 of the New York Codes, Rules and Regulations (NYCRR). Petitioner has asked for a determination on four interrelated questions:

  1. Are rail-haul facilities which are not transfer stations under 6 NYCRR §360-1.2(b)(172) nonetheless still classified as solid Waste management facilities and regulated by other provisions of 6 NYCRR Part 360 (Part 360)?

  2. What constitutes a "rail-haul facility" which is subject to regulation as a solid waste management facility; i.e., what management of solid waste is required to trigger inclusion of the facility as a solid waste management facility?

  3. Is there a distinction between a "rail-haul facility" and a "transfer station" or is a rail-haul facility merely a specific type of transfer station?

  4. If a rail-haul facility is not merely a type of transfer station, how are such facilities characterized for purposes of Obtaining a Part 360 permit and are there specific design criteria and operating standards which are applicable to regulated rail-haul facilities?

This Declaratory Ruling will answer each of these questions in the order in which they are posed.

Summary of Ruling

A rail-haul facility will be regulated in accordance with the nature of the activity occurring at the site. A rail-haul facility which satisfies the criteria stated at 6 NYCRR §360-1.2(b)(172) is not considered a transfer station and will be exempt from the requirements of Part 360, so long as solid waste is not otherwise being managed at the facility.

Discussion

  1. Are rail-haul facilities which are not transfer stations under 6 NYCRR §360-1.2(b)(172) and which, consequently, would Not be regulated under 6 NYCRR Subpart 360-11, Transfer Stations (Subpart 360-11), nonetheless still classified as a solid waste management facility and regulated by other provisions of 6 NYCRr part 360 (Part 360)?

    Transfer stations are regulated by Subpart 360-11. "Transfer station" is defined at 6 NYCRR §360-1.2(b)(172), providing in relevant part:

    • Transfer station means a solid waste management facility other than a recyclables handling and recovery facility, used oil facility, or a construction and demolition debris processing facility, where solid waste is received for the purpose of subsequent transfer to another solid waste management facility for Further processing, treating, transfer or disposal. . . transfer of leakproof, closed containers of solid waste from vehicle to vehicle, including truck to train, for the purpose of Consolidating loads for shipment to an authorized disposal or treatment facility, is not considered a transfer station provided: the contents of each container remain in their closed container During the transfer between vehicles; storage remains incidental to transport at the location where the containers are consolidated; containers are acceptable to the department and maintained in A safe, nuisance-free (e.g., dust, odor, noise, etc.) manner; and, the transfer location is under the ownership or control of the transporter." (Emphasis added).

    In order for an activity to not constitute a transfer facility, and hence be exempt from regulation under Subpart 360-11, seven criteria must therefore be satisfied: (1) the transfer of solid Waste must be in leakproof, closed containers; (2) the transfer must be from vehicle to vehicle(1);(3) the transfer must be for the purpose of Consolidating loads for shipment to an authorized disposal or treatment facility; (4) the contents of each container must remain in their closed container during the vehicle to vehicle transfer; (5) any storage must remain incidental to transport at the Consolidation site; (6) the containers must be acceptable to the Department and must be maintained in a safe, nuisance free manner; and (7) the transfer location must be under the ownership or control of the transporter.

    If a particular vehicle to vehicle transfer of solid waste satisfies each of these requirements, and no other management of solid waste occurs at the facility, then it is exempt from regulation under Subpart 360-11 and is not otherwise regulated by part 360. If, however, solid waste at the site is managed in a manner which does not qualify for the exemption, then the exemption from regulation under Subpart 360-11 is unavailable and regulation under other subparts of Part 360 may also be applicable. For instance, if solid waste were to be removed from containers and processed at the facility to remove recyclables, then the requirements of Subpart 360-11 and 6 NYCRR Subpart 360-12, Recyclables Handling and Recovery Facilities, would both be applicable. It is not feasible in the context of this Ruling to list the universe of possible activities which would subject the facility to the various requirements of Part 360, as whether a Particular activity is subject to the requirements of Part 360 is a fact-specific determination.

  2. What constitutes a "rail-haul facility" which is subject to regulation as a solid waste management facility; i.e., what management of solid waste is required to trigger inclusion of the facility as a solid waste management facility?

    6 NYCRR §360-1.2(b)(158) provides, in relevant part, that "(s)olid waste management facility means any facility employed beyond the initial solid waste collection process and managing solid waste, including but not limited to . . . rail-haul . . . Facilities." Although Part 360 does not define "rail-haul facility," the term is used in Part 360 as meaning a facility at which solid waste is either taken from a vehicle and loaded onto a train, or off-loaded from a train to a vehicle. However, the Definition of "rail-haul facility" is inconsequential with respect to whether Part 360 is applicable to the facility, as it is the nature of the activities taking place at the facility which determines whether it is regulated by Part 360, not the name given to describe the facility. As noted above, if a particular vehicle to vehicle transfer of solid waste satisfies each of the requirements for exemption as set forth in 6 NYCRR §360-1.2(b)(172) and no other management of solid waste takes place at the facility, then it is exempt from regulation as a transfer station and is not otherwise regulated by Part 360 (emphasis added). If, however, solid waste is managed at the site in a manner which does not qualify for the exemption, then the provisions of Subpart 360-11 and, perhaps, other subparts of Part 360 as well, may apply.

  3. Is there a distinction between a "rail-haul facility" and a "transfer station" or is a rail-haul facility merely a specific type of transfer station?

    Whether a particular rail-haul facility is a transfer station or some other type of solid waste management facility is dependent upon the type of solid waste management activities which occur at the site. If, for instance, waste tires are stored at a rail-haul facility for several weeks prior to being hauled away by rail, then the requirements of Subpart 360-11 and 6 NYCRR Subpart 360-13, waste Tire Storage Facilities(Subpart 360-13), would be applicable. If recyclables were to be recovered at the facility in advance of loading onto a train or after off-loading from a train, then the facility would be subject to the requirements of Subparts 360-11 and 360-12. In sum, Part 360 is applicable when solid waste is being managed at a facility in a manner which is regulated by Part 360, regardless of whether the facility is called a rail-haul facility or something else.

  4. If rail-haul facilities are not merely a type of transfer station, how are such facilities characterized for purposes of Obtaining a Part 360 permit and are there specific design criteria and operating standards which are applicable to regulated rail-haul facilities?

    If a rail-haul facility complies with the exemption requirements contained within the definition of "transfer station" at 6 NYCRR §360-1.2(b)(172), and no other management of solid Waste which is regulated by Part 360 occurs at the site, then the facility is exempt from the requirements of Part 360. If, however, there is management of solid waste at the facility which is regulated by other parts of Part 360, then other relevant provisions of Part 360 may apply. Specific design criteria are found in the applicable Part 360 provisions.

Conclusion

Based on the above discussion, it is clear that whether a rail-haul facility is exempt from regulation as a transfer station turns on the nature of the activity occurring at the facility. Where a facility satisfies the criteria stated at 6 NYCRR §360-1.2(b)(172): (1) the transfer of solid waste is in Leakproof, closed containers; (2) the transfer is from vehicle to vehicle, including truck to train; (3) the transfer is for the purpose of consolidating loads for shipment to an authorized Disposal or treatment facility; (4) the contents of each container Remain in their closed container during the vehicle to vehicle transfer; (5) any storage remains incidental to transport at the Consolidation site; (6) the containers are acceptable to the Department and maintained in a safe, nuisance-free manner; (7) the transfer location is under the ownership or control of the transporter; and (8) solid waste is not otherwise managed at the facility, then the facility is not considered a transfer station and is exempt from the requirements of Part 360.

Dated: May 2, 2002
Albany, New York

James H. Ferreira
Deputy Commissioner and General Counsel

1. Note that 6 NYCRR §360-1.2(b)(172) provides in part that the exemption is granted where the transfer is from "vehicle to vehicle, including truck to train." "Vehicle" is defined at 6 NYCRR §360-1.2(b)(182) as "any motor vehicle, trailer, water vessel, railroad car, airplane, or other device for transporting solid waste." Thus, transfer from train to truck qualifies for the exemption provided the other criteria are satisfied. The inclusion of the words "including truck to train" in this definition is descriptive of a type of vehicle to vehicle transfer that might qualify for the exemption, and should not be interpreted as meaning that train to truck transfers do not qualify for the exemption.

  • PDF Help
  • For help with PDFs on this page, please call 518-402-9509.
  • Contact for this Page
  • Office of General Counsel
    625 Broadway, 14th Floor
    Albany, NY 12233-1500
    518-402-9509
    Send us an email
  • This Page Covers
  • Page applies to all NYS regions