ENFORCEMENT DISCRETION LETTERS: What Do These Allow For And When Do They Expire?

December 02, 2019 / Industry News, PWGC News

The New York State Department of Environmental Conservation (NYSDEC) has issued several Enforcement Discretion Letters (EDL) to remedy some of the issues raised by the regulated community since the issuance of the new Part 360 on November 4, 2017. In the context of C&D recyclers and contractors, the most significant was issued on January 25, 2019.

The November 4, 2017 issuance of Part 360 had mandated that all C&D recovery facilities were required to obtain a new registration or permit by May 4, 2019. The September 19, 2019 EDL has pushed back those requirements until May 3, 2021 and allows Part 360 facilities to operate under their existing registrations until said dates. Additionally, those facilities which were authorized to receive/process mixed loads can continue doing so until they acquire a new permit/registration, or until May 3, 2021.

The EDL also alleviates the need for Part 360 facilities to perform chemical testing/analysis on outbound fill materials until May 2021, allowing all facilities to begin the protocol at the same time rather than the time at which they acquired their new authorization.

The NYSDEC also worked to create a home for the old R-2 RCA, whose production was no longer permitted as of May 2018. The Department had only permitted RCA built to a state/municipal specification (R-1 RCA), but the EDL allows previously created R-2, including asphalt, to be lain underneath pavement. The usage of this material on the surface as a workplace roadway is still not permitted. It is believed that NYSDEC may permit the continued production of R-2 RCA under an upcoming standardized BUD application.

Relief has also been granted to contractors/generators of concrete/asphalt by allowing them expanded storage of materials prior to reuse and allows said contractors to haul these materials without a Part 364 registration until May 2021.

Finally, the EDL also offers clarification and slight relief from the General Fill Pre-Beneficial Use Material, or what regulators would refer to as a “clean fill.” This material should not contain any non-soil constituents, however the EDLs issued by DEC now allows “small amounts of non-soil constituents.” In doing so, NYSDEC is attempting to allow the reuse of an engineered soil derived from C&D mixed loads. For example, if a load is screened to the proper size prior to crushing (nearly no visible contaminants, including brick, concrete and asphalt), the fines derived from the screening process may be able to qualify for reuse, as defined in general fill, assuming they pass chemical analysis. 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).

With a slew of professionally licensed geologists and engineers on staff, contact PWGC to act as your QEP today!

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