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Parts 360-366 and 369, Solid Waste Management

Adoption of Final Rule: 6 NYCRR Parts 360-366 and 369, Solid Waste Management

Part 360 Series Clarifications

The Department has compiled the following Part 360 Series Clarifications in order to explain and clarify the recently revised Part 360 regulations. The Clarifications will be updated as necessary.

February 12, 2021 Enforcement Discretion Letters

Two Enforcement Discretion Letters were signed on February 12, 2021 that address provisions of the Part 360 regulations. These letters replace previous Enforcement Discretion Letters issued on September 19, 2019 and are in effect until either May 3, 2022 or until an amendment to the present rule is promulgated, whichever is earlier. The first letter is related to management and reuse of construction and demolition (C&D) debris and material excavated from construction or demolition sites. The second letter is related to regulatory flexibility for certain solid waste management activities as discussed below.

These enforcement discretion letters do not relieve regulated entities from their responsibility to comply with other applicable local, state or federal requirements, including those enforced by the City of New York or other municipalities which may impose stricter requirements.

Enforcement Discretion Letter - Management and Reuse of C&D Debris and Excavated Materials

The components of the letter (PDF) (644KB) related to management and reuse of C&D debris and excavated materials are discussed here:

The transition deadline for facilities subject to Subpart 361-5 is extended until May 3, 2022. These facilities may continue to operate under their existing permit or registration and associated regulations until that date or until an amendment to the present regulations is promulgated, whichever is earlier.

  1. Materials used in cement, concrete and asphalt pavement: The Department is utilizing its enforcement discretion to maximize the opportunities for recycling of concrete and asphalt by expanding the allowed storage of concrete and asphalt prior to reuse when the materials are under the control of their generator or the person responsible for the generation, such as a contractor. This directive also allows these readily recyclable materials to be transported without the need for a Part 364 waste transporter registration or permit. The utilization of enforcement discretion with respect to these materials will increase the opportunities for recycling and reduce the chance that readily recyclable materials will be disposed of before recycling opportunities are available. In addition, the letter clarifies that de minimis amounts of soil, wood, concrete or asphalt present with the material do not cause it to ineligible for the applicable pre-determined beneficial use.

  2. Recycled aggregate from bricks, concrete pavement and/or asphalt pavement: This enforcement discretion directive allows for the use of recycled aggregate from bricks, concrete and/or asphalt pavement when used in or under asphalt pavement or other paved surface, if separated from other waste prior to processing and then processed and stored in a separate area as a discrete material stream. These materials, when destined for and/or managed prior to reuse at facilities subject to Subpart 361-5, may also be managed as a commercial product or raw material and are not subject to Part 360 and Part 361.

  3. Construction and demolition facility fill material sampling requirements: This stay of enforcement includes the sampling requirement in Section 361-5.4(e). The transition requirements would negatively impact some facilities that renew or modify their permits by requiring sampling of residues and fill material, which other facilities are not required to perform, creating an unbalanced marketplace where facilities that want to modify their permits early will not do so because the increased sampling costs are not borne by their competitors. This directive corrects that potential imbalance by setting a standard implementation point when all facilities must be begin sampling of these materials.

  4. Fill Material: The definition of Fill Material in the Part 360 Series references "similar material." This enforcement discretion letter defines "similar material" as any durable, granular material, and clarifies the types of materials that are acceptable, and not acceptable, in General Fill, Restricted-Use Fill, and Limited-Use Fill in Section 360.13.

  5. Mixed Loads Received at Registered C&D Debris Handling and Recovery Facilities: Facilities that hold a Part 360 registration issued prior to November 4, 2017 are allowed to accept mixed loads of asphalt, asphalt millings, concrete, concrete products, brick, rock and soil as long as the registration allows for the processing of each of the materials in the mixed load. De minimis amounts of wood present in these materials do not cause the material to be considered an unauthorized mixed load.

  6. Grade Adjustment: This enforcement discretion directive allows for the use of recognizable, uncontaminated concrete products, asphalt pavement, brick and rock from construction and demolition debris activities for grade adjustment, though the use is not allowed in Nassau County, Suffolk County or the New York City Watershed. This enforcement discretion does not cover excavated soil or fill material, which must comply with the Section 360.13 criteria, as clarified in subheading IV of this letter. Conditions for this use are identified in the enforcement discretion letter and include the need for an approved local building permit or other municipal authorization, if required, that includes the need for grade adjustment fill; the allowance for night deliveries associated with municipal or state highway projects after notification to the Department; and a clarification that de minimis amounts of soil or wood included in the material are acceptable under this authorization.

Enforcement Discretion Letter - Regulatory Flexibility for Certain Solid Waste Management Activities

The components of the letter (PDF) (573 KB) related to regulatory flexibility for certain solid waste management activities are discussed here:

  1. Due to changes in recycling markets and unacceptable amounts of contaminants found in source-separated recyclables, some recycling facilities have found it increasingly difficult to find outlets for recyclables. In order to provide for extended storage opportunities while facilities arrange for new markets or pursue other alternatives, the Department will utilize enforcement discretion to allow storage of non-putrescible recyclables at other locations owned or under the control of the facility. The Department will also utilize enforcement discretion to waive the 15 percent residue threshold for registered recycling facilities. Requests under these provisions require approval of the appropriate DEC regional office.

  2. Source separation is the best means of keeping recyclable metals out of municipal solid waste (MSW). However, when MSW is combusted at a municipal waste combustion (MWC) facility, a second opportunity is available to collect metals that were not source-separated. Metals are not destroyed in the combustion process and can be recovered at the MWC facility. The Department strongly encourages this second opportunity to collect recyclables and will utilize enforcement discretion to allow for metals extracted at the MWC subsequent to combustion to not be considered part of the facility's throughput capacity.

  3. Under current regulations, the requirements for operating an exempt 10-day solid waste transfer facility are more stringent than those for operating a similar facility which handles hazardous waste. In order to simplify the regulatory oversight for facilities that handle both solid wastes and hazardous wastes at exempt 10-day transfer facilities, the Department will utilize enforcement discretion to match appropriate solid waste management facility requirements with hazardous waste management facility requirements.

  4. Facilities that manage used oil may be regulated by both Part 360 and Subpart 374-2 regulations, creating an unnecessary conflict. To resolve this inconsistency, the Department will utilize enforcement discretion to waive the requirements of Part 360.14 for management of used oil, so long as the activity is in compliance with the applicable provisions of Subpart 374-2.

  5. Current Part 360 regulations do not allow for the continued operation of land clearing debris landfills that were registered with the Department prior to November 4, 2017. However, municipalities and private operators have raised concerns that these facilities provide a low-cost public service to their communities and avoid reduction of airspace at MSW landfills. In recognition of these circumstances, the Department will utilize enforcement discretion to allow the continued operation of land clearing debris landfills that held registrations prior to November 4, 2017.

  6. Waste tires used to secure tarpaulins: This enforcement discretion directive allows more time for the Department to work with the regulated community to find solutions to problems associated with the use of tires at farms without negatively impacting the farms. The directive allows use of tires to secure tarpaulins in accordance with either requirements stated in this letter (PDF) (0.1MB) or the new requirements.

  7. Storage Requirements for Regulated Medical Waste (RMW): Containers for RMW in patient care areas should not be required to be removed for disposal before they are either full or begin to generate odors. The Part 360 Series sets a time limit for these containers in patient care areas that is problematic, especially for small generators such as dental offices. The department will exercise enforcement discretion to allow in most cases the containers to be filled completely before they must be removed for disposal.

  8. Permit Requirements for RMW Facilities with Federal Select Agent Authorization: Current Part 365 regulations require laboratories that decontaminate waste generated from biosafety level (BSL) 3 or animal biosafety level (ABSL) 3 activities to operate under a Part 365 permit. However, many of these laboratories hold registrations with the Federal Select Agency Program (FSAP) and utilize biosafety protocols evaluated as part of that program. This enforcement discretion allows a facility that hold an FSAP registration to register with the Department in compliance with subdivision 365-2.3(b) in lieu of a Part 365 permit.

September 19, 2019 Enforcement Discretion Letters

The September 19, 2019 Enforcement Discretion Letters, have been replaced with the February 12, 2021 Enforcement Discretion Letters.

January 25, 2019 Enforcement Discretion Letter

The January 25, 2018 Enforcement Discretion Letter has been replaced with the February 12, 2021 Enforcement Discretion Letter.

October 12, 2018 Enforcement Discretion Letter

The October 12, 2018 Enforcement Discretion Letter has been replaced with the February 12, 2021 Enforcement Discretion Letter.

March 1, 2018 Enforcement Discretion Letter

The March 1, 2018 Enforcement Discretion Letter has been replaced with the January 25, 2019 Enforcement Discretion Letter.

Comprehensive Revisions, Enhancements and Structure Changes

The New York State Department of Environmental Conservation (DEC) filed a Notice of Adoption for a comprehensive revision to existing 6 NYCRR Part 360 regulations on September 5, 2017. The rulemaking included:

  1. Repeal of existing 6 NYCRR Parts 360, 362, 363, 364, 369 and Subpart 373-4

  2. Adoption of new 6 NYCRR Parts 360, 361, 362, 363, 364, 365, 366, and 369

  3. Renumbering existing 6 NYCRR Part 361 to Part 377; and

  4. Minor amendments to 6 NYCRR Parts 370, 371, 372, 373, 374, and 621

The regulations became effective on November 4, 2017

DEC updated the Regulatory Impact Statement, Regulatory Flexibility Analysis for Small Businesses and Local Governments, Rural Area Flexibility Analysis, and Job Impact Statement associated with this rule after careful consideration of formal and informal public comments received by DEC prior to adoption of the Final Rule. The revised regulations are available on the DEC regulation page.

Other Rulemaking Documents:

Guidance Documents:

Document Repository

The documents may also be inspected at NYSDEC, 625 Broadway, Albany, NY 12233. Please call Melissa Treers for an appointment at (518) 402-8678.

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