Couch White Logo

DEC Issues Long Awaited Part 360 Update

Jun 9, 2023

On June 7, 2023, the New York State Department of Environmental Conservation’s notice of adoption of updates to its solid waste regulations, 6 NYCRR Parts 360, 361, 364, and others, was published in the State Register.  This regulatory update, which will go into effect on July 22, 2023, includes several important changes in the management of C&D debris, including asphalt, concrete, rock, brick and soil, as well as updates to a number of other solid waste requirements related to landfills, transport of waste, regulated medical waste and other sectors. 

Couch White has worked extensively with clients in the C&D debris recycling, transport and reuse sectors, as well as those involved in construction and production of concrete, asphalt and other products.  Our work has included assisting them with a legal challenge to, and settlement of, litigation related to the C&D debris regulations issued by DEC in 2017.  The recently adopted regulations include significant improvements in the regulatory process for the C&D debris industry which will make compliance more straightforward and ideally allow for a continuation and growth of the high levels of recycling and reuse of these materials in construction across New York State.  Some of the more significant changes include:

  • The addition of new BUDs for the reuse of RUCARBs, including Grade adjustment, which allows a mix of uncontaminated, recognizable rock, brick, concrete (including embedded materials), asphalt, and certain fill material to be used as a fill material for specified purposes, provided that the conditions of the BUD are met; Recycled aggregate from bricks, concrete or asphalt pavement (or a mix), placed under asphalt or a similar surface, or when provided by a recycling facility, for the same purposes.  RAP and RCA are still express BUDs, however, the “spec” requirement has been removed, and a comparable RCA going to a “concrete plant” BUD has been added to go with the RAP to an asphalt plant BUD.
  • Registration requirements: 500 tons per day is gone, asphalt, brick, concrete and “soil and rock only” are eligible for a registration without quantity limitation.  Most fill material requires a permit application, however.
  • Fill material changes:  the categories and names of fill material have changed.  Fill material is now “excavated material.”  Exempt fill, soil with no evidence of contamination from areas outside of New York City, is now F1.  General Fill is F2, a new category also known as “manufactured fill” is F3 – which is fill resulting from processing at a construction site or recycling facility that meets General Fill (F2) requirements but contains de minimus amounts of brick, asphalt or concrete (only), F4, which was formerly Restricted Use Fill, and F5, which was formerly Limited Use Fill.  The updated regulations have an updated table identifying the permitted uses of the materials, and the sampling requirements for these materials, which have been reduced.
  • Contractor Yards are available for the storage of certain materials.  For New York City, Westchester County, Putnam County, and Long Island, the yard can hold up to 500 cubic yards at one time of F1, F2 , F3, and concrete, brick, rock, asphalt pavement or millings (or mixtures of the non soil items), and materials that are no longer waste (materials determined to be BUD at time of bringing to contractor yard).  For the rest of the state, the yards can have up to 10,000 cubic yards, although more than 2,500 cubic yards would require a DEC notification.  Contractor’s yards are now also recognized for temporary staging areas approved by the City of New York.  There is also a “registration lite” available for yards larger than this for the storage of concrete, brick, rock, asphalt pavement or mixtures, but no processing is allowed.
  • Part 364 registrations (and tracking documents) are no longer required for the transport of materials that qualify as a BUD, and concrete, asphalt, brick and rock, as well as F1, F2 and F3 outside of New York City, Long Island, Westchester and Putnam Counties. 

The new regulations include Transition Rules.  Generally, someone with a permit will have to come into compliance with the new regs once they renew that permit.  Someone with a registration that will need a new registration has to submit a new registration within 180 days from the July 22, 2023 Effective Date, and comply with its existing registration until DEC issues a decision on the new registration.  Someone with a registration that will now need a permit (for most fill material related operations), has one year from July 22, 2023 to get a “complete application” before DEC.  “Complete” will require only that SEQRA has been commenced, not that a negative declaration or Draft EIS be complete for the 1 year completeness deadline to be met.  Facilities managing soil pursuant to 6 NYCRR 360.13 have 240 days from the effective date to come into compliance. 

Couch White is available to discuss the content of these regulations in more detail, their applicability to your operation, and next steps to come into compliance.  Please contact Alita Giuda for more information.