Why were new regulations necessary?
The most substantial and comprehensive changes made to the revised Part 360 regulations revolve around the C&D recycling markets and fill materials. Changes were initiated in response to widespread disposal of contaminated fill materials originating from New York City (NYC) (Region 2) and deposited in Long Island (Region 1) and the Lower Hudson (Region 3). Materials of concern found in these contaminated fill materials consisted of historic fill indicators including ash, slag, coal fragments, and other incineration byproducts associated with refuse disposal/historic filling of NYC wetlands. The contaminated fill material would be irresponsibly disposed of by “cocktailing” in fill material intended for use in a grade adjustment, mixed into top soil, or crushed into an RCA mixture, often containing other wastes including wood, plastic, tile, and other modern C&D constituents.
How do the new regulations address these problems?
The New York State Department of Environmental Conservation (NYSDEC) implemented a two-prong approach to stop this activity by attempting to create more beneficial use opportunities for fill materials exhumed in the New York City limits while simultaneously discouraging the improper reuse of the very same product. This was achieved by the introduction of Pre-BUD fill materials and expanded Part 364 regulations with waste tracking.
In the past, historic fill was to be treated in a similar fashion as municipal solid waste (MSW), with no options for reuse and limited options for ultimate disposal. The NYSDEC’s attempt to remedy this, and to encourage lawful reuse of this material, was to include the new Part 360.13 Pre-BUDs for fill material.
The result was the addition of Restricted-Use and Limited-Use fill materials, which may include inert historic fill indicators like slag, have specified reuse applications. Limited-Use fill may be used under foundations and pavements (outside of Nassau and Suffolk counties) and Restricted-Use fill may be used in highway embankments.
The Part 364 C&D tracking enhancements were put in place to maintain adequate knowledge and oversight over the movement of potentially contaminated materials, and ultimately empower NYSDEC law enforcement officers for those in non-compliance. All C&D, including fill materials, must be hauled by a registered Part 364 hauler. Tracking documents must accompany all C&D loads. If fill materials are emanating from NYC, notifications should be provided the NYSDEC at least 5 days prior to the delivery of more than 10 CY.
What is general fill? How is a material qualified as general fill?
General fill is what regulators would refer to as a “clean fill”. This material should not contain any non-soil constituents and is acceptable for any use. Only general fill may be used on residential properties or be amended with compost at a Part 360 facility for use as top soil. In order to qualify as general fill, materials must be free from any non-soil constituents, pass analytical testing requirements, and be deemed as such by a Qualified Environmental Professional (QEP). The required testing of (1) sample per 1,000 CY is applicable to all fill materials emanating from NYC or from authorized Part 360 facilities.
What is a Qualified Environmental Professional (QEP)?
A QEP is a person who possesses sufficient education, training, and experience necessary to exercise professional judgement to develop opinions and conclusions regarding potential contamination. These professionals must hold a current professional engineer’s or a professional geologist’s license or registration and have 3 years of full-time relevant experience.
A laboratory cannot function as a QEP in the determination of fill material.
Are there exemptions to fill material qualification requirements?
Fill materials excavated outside of NYC, with no detectable contamination (staining/odor), may be transported from “hole to hole” without testing protocols/tracking documents, although the carrying of a tracking document is still advised. Fill materials cannot be used in this manner if staged at a site not identified as the origin or destination.
What are the consequences of non-compliance with these new regulations?
It is important to note that if fill materials are not properly qualified, if notification is necessary and not provided, or if fill material is not used in accordance with Part 360.12(d), the material is considered solid waste and the improper usage will be considered disposal of solid waste. Recent statements by SCDA Tim Sini threatens that stiffer penalties will be incurred against violators, including jail time, higher fines, and restitution for victims.
Stay tuned for a breakdown of the Enforcement Discretion Letters.