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Declaratory Ruling 27-35: Elemental Environmental Strategies, LLC

State of New York
Department of Environmental Conservation
In the Matter of the Petition of

Element Environmental Strategies, LLC

for a Declaratory Ruling

Introduction

Petitioner Element Environmental Strategies, LLC (hereinafter Element or petitioner), an environmental consulting firm which develops cost-effective solutions for addressing their clients' environmental concerns during the construction and redevelopment of properties, 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) to resolve uncertainties regarding subdivision 2-a of section 27-0707 of the New York State Environmental Conservation Law (ECL) and the Beneficial Use Determination (BUD) program regulated under 6 NYCRR 360-1.15.

Background

As stated in the petition, Element's clients are involved in the construction and redevelopment of properties. Both contaminated and uncontaminated soils from the clients' sites need to be disposed of in compliance with applicable laws, rules, and regulations. Element provides technical support, which includes identification and review of disposal options for both contaminated and uncontaminated soils originating from their clients' sites.

Questions Presented

  • Is C&D with contamination that is not associated with any particular spill or industrial waste regulated under ECL §27-0707.2-a.?
  • If only uncontaminated C&D is regulated under ECL §27-0707.2-a, may contaminated C&D materials be deposited at a facility for a fee or other consideration where the facility lacks a Part 360 permit, but such materials are accepted pursuant to a BUD?
  • Does ECL §27-0707.2-a allow the Department to make a determination that deposition of C&D constitutes reuse?
  • Does deposition of C&D as subgrade, fill, or aggregate constitute disposal within the meaning of 6 NYCRR 360-1.2(a)(3)?
  • If so, how is deposition of C&D as subgrade, fill or aggregate considered reuse for the purposes of the BUD program?
  • What is the scope of the prohibition against a fee or other consideration in ECL §27-0707.2-a, and to whom does the prohibition apply?
  • What financial monitoring and reporting is necessary to demonstrate that no fee or other consideration has been charged in accordance with ECL §27-0707.2-a?
  • Does an approved BUD petition constitute approval for all other activities that require Department permits such as stream protection, state pollution discharge, sewerage, air and wetlands permits?
  • Clarification whether facilities that deposit C&D materials from off-site source and require a fee or other consideration for such deposition must have a Part 360 permit, regardless of whether a BUD has been granted that declares the deposition a "reuse" of C&.

Discussion

  1. Is C&D with contamination that is not associated with any particular spill or industrial waste regulated under ECL §27-0707.2-a.?

    Pursuant to 6 NYCRR 360-1.2(b)(38), construction and demolition debris means uncontaminated solid waste resulting from the construction, remodeling, repair and demolition of utilities, structures or roads; and uncontaminated solid waste resulting from land clearing debris. Uncontaminated is defined as C&D debris that is not mixed or commingled with other solid waste at the point of generation, processing or disposal, and that is not contaminated with spills of a petroleum product, hazardous waste or industrial waste. Contamination from spills of a petroleum product does not include asphalt or concrete pavement that has come into contact with petroleum products through normal vehicle use of the roadway. 6 NYCRR 360-7.1( c ). By definition, C&D debris must be uncontaminated. Construction and demolition materials that are contaminated will not fall under the definition of C&D debris; they will fall under the broader definition of solid waste.

  2. If only uncontaminated C&D is regulated under ECL §27-0707.2-a, may contaminated C&D materials be deposited at a facility for a fee or other consideration where the facility lacks a Part 360 permit, but such materials are accepted pursuant to a BUD?

    As stated in response to question 1, C&D debris must be uncontaminated, by definition. C&D debris is regulated under ECL §27-0707.2-a. Construction and demolition materials which are contaminated do not fall under the definition of C&D debris. Nevertheless, contaminated construction and demolition materials are regulated as a solid waste. Depending on the type and amount of contamination, the materials may be regulated as a hazardous waste. To date, there are no pre-determined BUDs for the use of contaminated construction and demolition materials. If an applicant were to apply for a case-specific BUD pursuant to 6 NYCRR 360-1.15( c ), a number of issues would be addressed, including a fee restriction.

  3. Does ECL §27-0707.2-a allow the Department to make a determination that deposition of C&D constitutes reuse?

    Based on a plain reading of the statute, ECL §27-0707.2-a does not contemplate reuse and only refers to disposal. However, since other titles in Article 27 state that reuse is a preferred alternative to disposal, the Department has authority to approve certain reuses of material when done in accordance with applicable statutes and regulations.

  4. Does deposition of C&D as subgrade, fill, or aggregate constitute disposal within the meaning of 6 NYCRR 360-1.2(a)(3)?

    Pursuant to 6 NYCRR §360-1.2(a)(3), a material is disposed of if it is discharged, deposited, injected, dumped, spilled, leaked or placed into or on any land or water so that such material or any constituent thereof may enter the environment or be emitted into the air or discharged into groundwater or surface water. Unless a BUD has been granted for the placement of the material or the material is somehow exempt from regulation, it is considered disposal.

  5. If so, how is deposition of C&D as subgrade, fill or aggregate considered reuse for the purposes of the BUD program?

    Under the BUD Program, a material will cease being a solid waste when properly used in a manner described in 6 NYCRR 360-1.15(b) or pursuant to a case-specific BUD at 6 NYCRR 360-1.15(d). The construction and demolition material is properly being reused and is not being disposed of. If the Department determines that the BUD is not being used properly or that a fee is being charged for the placement of C&D debris, the material again becomes a regulated waste and a Part 360 permit must be obtained.

  6. What is the scope of the prohibition against a fee or other consideration in ECL §27-0707.2-a, and to whom does the prohibition apply?

    ECL §27-0707.2-a applies to any owner or operator of a new solid waste management facility used for the disposal of C&D debris. The owner or operator should not be charging or accepting a fee for disposal. In addition, the generator or an entity seeking to dispose of the material should not be paying a fee for the disposal of such waste.

  7. What financial monitoring and reporting is necessary to demonstrate that no fee or other consideration has been charged in accordance with ECL §27-0707.2-a?

    In most cases, there is no financial monitoring or reporting required. However, if it is discovered that a fee is being charged or received, the Department will take appropriate enforcement action and penalties will be assessed for non-compliance with the law.

  8. Does an approved BUD petition constitute approval for all other activities that require Department permits such as stream protection, state pollution discharge, sewerage, air and wetlands permits?

    No. A BUD relates only to solid waste and the reuse thereof as specified in the Department's regulations. If the project is going to, or may, affect another program area, an appropriate individual from each program within the Department should be contacted.

  9. Clarification whether facilities that deposit C&D materials from off-site source and require a fee or other consideration for such deposition must have a Part 360 permit, regardless of whether a BUD has been granted that declares the deposition a "reuse" of C&D.

    If a facility accepts C&D debris for disposal and charges a fee, they must obtain a Part 360 permit, unless already under a Department closure or remediation order. No exemption from the permit requirements will be allowed, which would include an exemption from regulation or a BUD. If a BUD has been granted, a fee cannot be charged. If the Department discovers that a fee is being charged for the use of C&D debris under a BUD, a Part 360 permit will be required and appropriate enforcement action will be taken.

Conclusion

The relationship between ECL §27-0707.2-a and 6 NYCRR 360-1.15 has been clarified in the responses to the questions presented. The Department encourages the reuse of materials, as opposed to disposal, when it is feasible and done in accordance with applicable laws and regulations. Pursuant to the responses in this ruling, Element should be better able to ensure its clients are complying with applicable laws, rules, and regulations regarding the construction and redevelopment of properties, and the handling of contaminated and uncontaminated soil being generated.

Dated: Albany, New York
September 28, 2006

Alison H. Crocker
Acting Deputy Commissioner and General Counsel

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