A comprehensive revision to New York State’s solid waste regulations took effect on November 4, 2017.

On March 1, 2018, the NYSDEC formally issued an enforcement discretion letter that effectively rolls back the implementation of the new rules in four (4) specifically designated areas. The delay in enforcement will expire on May 3, 2019 or earlier, if amendment to the new rules are promulgated before that date.

The four areas of delayed enforcement involve:

1.   Storage Requirements for Regulated Medical Waste (RMW);

2.   Materials used in cement, concrete and asphalt pavement;

 3.   Waste tires used to secure tarpaulins on farms; and

 4.   Construction and demolition facility fill material sampling requirements

The components of the letter are as follows:

  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.
  2. Waste tires used to secure tarpaulins on farms: 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.
  3. Construction and demolition facility fill material sampling requirements: The transition requirements of the Part 360 Series would negatively impact some facilities that renewed or modified their permits before the deadline of May 3, 2019 by requiring sampling of residues and fill material which other facilities were not required to perform. This creates a situation where facilities that want to modify their permits early will not do so because the increased sampling costs are not borne by their competitors, creating an unbalanced marketplace. This directive corrects that potential imbalance by setting a standard implementation point when all facilities must begin sampling of these materials.
  4. 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 its enforcement discretion to allow in most cases the containers to be filled completely before they must be removed for disposal.

A link to the letter can be found at http://www.dec.ny.gov/regulations/81768.html.

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. If you or your municipality operates a mulch processing facility or any other waste management facilities and have questions or need assistance in complying with new, amended or longstanding solid waste management regulations or any type of environmental compliance, permitting or enforcement issues, including the threat of a potential environmental criminal prosecution, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm. Mr. Murphy previously served as a senior trial attorney with the U. S. Department of Justice Environmental Crimes Section and regularly represents clients in defending against alleged criminal violations of federal, state and local environmental laws.


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Kevin C. Murphy

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.

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