6 CRR-NY 360.12NY-CRR
6 CRR-NY 360.12
6 CRR-NY 360.12
360.12 Beneficial use.
(1) This section applies to the use of certain wastes as effective substitutes for commercial products or raw materials as determined by the department. The materials cease to be solid waste when used according to this section. This section does not apply to materials that are being sent to facilities subject to regulation under Part 361 of this Title. This section also does not apply to waste used in a manner that constitutes disposal. Specific requirements for the beneficial use of navigational dredge material (NDM), brine, and fill material are found in sections 360.12(e)-(f) and 360.13 of this Part.
(2) The department reserves the right to require a permit pursuant to section 360.17 of this Part for land placement, including mine reclamation or subsurface mine filling, in place of a beneficial use determination, if deemed necessary by the department to prevent adverse impacts to public health and the environment.
(3) Materials must not be stored for more than 365 days prior to beneficial use unless otherwise approved through a registration, permit condition or case-specific beneficial use determination.
(b) Unacceptable uses.
Wastes used in the following manner are not eligible for a beneficial use determination:
(1) the use of flowable fill for mined land reclamation;
(2) the encasement of waste tires in concrete;
(3) the use of waste tires as fences or screening.
(c) Pre-determined beneficial uses.
(1) The following cease to be waste when used as described in this paragraph:
(i) materials identified in section 371.1(e)(1)(vi) through (viii) of this Title that cease to be solid waste as defined in section 371.1 of this Title;
(ii) fill material generated outside of New York City with no evidence of historical impacts such as reported spill events, or visual or other indication (odors, etc.) of chemical or physical contamination;
(iii) fill material when used in accordance with section 360.13 of this Part; and
(iv) NDM used outside ecologically sensitive areas, as commercial aggregate in place of sand or gravel if the NDM contains at least 90 percent sand and gravel, as determined by a standard grain size analysis method approved by the department and performed by an independent laboratory, and if the NDM contains less than 0.5 percent total organic carbon.
(2) The following cease to be waste when received at the location of use as described in this paragraph:
(i) uncontaminated newsprint used as animal bedding;
(ii) uncontaminated used wood pallets that are used to produce reconditioned or remanufactured wood pallets;
(iii) street sweepings, car wash grit, and water system catch basin materials that consist of sand and gravel and are free from litter and objectionable odors, when used in the following applications:
(a) as a substitute for commercial aggregate for the construction of roads or parking areas;
(b) as backfill for utilities within transportation corridors other than potable water utility lines;
(c) or in commercial or industrial land use locations as defined by section 375-1.8(g)(2)(iii) and (iv) of this Title;
(iv) waste tires required to secure tarpaulins in common weather protection practices such as agricultural storage covers and salt pile protection, provided the number of passenger tire equivalents used does not exceed 0.25 passenger tire equivalents per square foot of cover or bunker area, and whole tires are cut in half or have sufficient number of holes drilled in them to prevent retention of water;
(v) 150 or fewer waste tires or tire equivalents at a single site for purposes such as retaining walls, decoration, playground components, bumper guards, manufactured products feedstock, and similar purposes; and
(vi) bread and other similar grain products (spent brewery grains, etc.) used for animal feed or pet food, provided all packaging is removed prior to use;
(vii) source-separated recyclables that are typically managed at a recyclables handling and recovery facility but instead are received directly by a manufacturing plant for use as an ingredient in the manufacturing of a product.
(3) The following cease to be waste when the material meets the requirements for the intended use identified in this paragraph:
(i) ground granulated blast-furnace slag for use as a raw feed in the manufacture of cement and in concrete which meets an industry standard acceptable to the department;
(ii) unadulterated wood combustion ash for use as a soil amendment, provided the application rate is limited to the soil pH requirement of the crops grown;
(iii) industrial wastes historically used as an ingredient in a manufacturing process;
(iv) fats, oil, grease, and rendered animal parts, except for use as or in production of fuels;
(v) coal combustion fly ash which meets an industry standard acceptable to the department for use in concrete, concrete products, light-weight block, light-weight aggregate and flowable fill;
(vi) flue gas desulfurization or other gas-scrubbing byproducts when used to replace manufactured gypsum or manufactured calcium chloride, except for land application;
(vii) coal combustion bottom ash for use as an aggregate in portland cement, concrete, asphalt pavement, or roofing materials;
(viii) recycled aggregate or residue which meets a municipal or State specification or standard for use as commercial aggregate if generated from uncontaminated, recognizable concrete and other masonry products, brick, or rock that is separated from other waste prior to processing and subsequently processed and stored in a separate area as a discrete material stream;
(ix) recycled material or residue generated from uncontaminated asphalt pavement and asphalt millings which meets a municipal or State specification or standard for use as an ingredient in asphalt pavement or other paved surface construction and maintenance uses if separated from other waste prior to processing and subsequently processed and stored in a separate area as a discrete material stream;
(x) asphalt pavement and asphalt millings received at an asphalt manufacturing plant for incorporation into an asphalt product;
(xi) clay, till, or rock excavated as part of navigational dredging, which is separated from overlying navigational dredged material and used as fill or aggregate.
(4) The following cease to be waste when the material leaves a facility subject to exemption or regulation under Part 361 or 362 of this Title, provided the material is ultimately recycled or reused. If the material is taken to another facility regulated under this Part or Parts 361, 362, 363, or 365 of this Title, these provisions do not apply:
(i) materials produced by a recyclables handling and recovery facility for use as an ingredient in a manufacturing process or other acceptable end use. For glass, this includes uncontaminated glass-derived aggregate that meets a governmental or industrial organization specification acceptable to the department. The glass aggregate must not exceed the following measure of non-glass material content:
(a) five percent by volume; or
(b) 0.05 percent by mass of paper and 1 percent by mass of other non-glass materials;
(ii) compost and other soil conditioning products produced from facilities regulated under Subpart 361-3 of this Title provided the use restrictions are followed;
(iii) ground tree debris, wood debris, and yard trimmings used for mulch and other common uses;
(iv) tire-derived aggregate for use as:
(a) residential on-site septic system drainage media, provided the tire-derived aggregate meets the specification found in 10 NYCRR Appendix 75-A;
(b) mulch provided the tire-derived aggregate has a nominal size of less than 1 inch in any direction, is at least 99.9 percent wire free, and has no protruding wire; or
(c) playground surface and athletic field material, provided the tire-derived aggregate has a nominal size of less than 3/8 inches in any direction, is at least 99.9 percent wire free, and has no protruding wire;
(v) scrap metal;
(vi) used cooking oil and yellow grease processed in accordance with Subpart 361-8 of this Title, for use in animal feed, soap or other products, provided an applicable industry and/or government standard is met.
(5) By March 1st following each calendar year of operation, any person that distributes 10,000 tons or more of any pre-determined beneficial use material must submit a report to the department on a form acceptable to the department identifying the type and quantity of material beneficially used during the previous calendar year.
(d) Case-specific beneficial use determinations – general.
(1) For a determination that a specific waste may be beneficially used either in a manufacturing process to make a product, or as an effective substitute for a commercial product or raw material, a written petition must be submitted to the department.
(2) A petition must contain the following information:
(i) a detailed description of the waste and the proposed use of the waste;
(ii) a description of the annual quantity, by weight and volume, of the waste proposed for beneficial use;
(iii) a detailed description of the source, process, or treatment systems from which the waste originated, including a list of all chemicals and the quantity of all chemicals added during these processes;
(iv) analytical data concerning the chemical and physical characteristics of the waste and of each type of proposed product, and the chemical and physical characteristics of any analogous raw material or commercial product for which the waste is proposed to be an effective substitute;
(v) justification that the waste functions as an effective substitute for the commercial product or raw material and that the use meets or exceeds governmental or industry standards or specifications;
(vi) demonstration that there is a known or reasonably probable market for the intended use of the quantity and type of waste and of all proposed products by providing one or more of the following:
(a) a contract or agreement to purchase the proposed product or to have the waste used in the manner proposed; or
(b) other documentation that a market for the proposed product or use exists; and
(vii) demonstration that the management of the waste when used in accordance with the beneficial use will not adversely affect public health and the environment by providing, at a minimum:
(a) a waste control plan that describes the following:
(1) procedures for periodic testing of the waste, and as necessary, the product;
(2) the type of storage and the maximum anticipated volume of the waste to be stored before beneficial use. Storage before beneficial use must not exceed 365 days, unless a different time period for storage is approved by the department;
(3) procedures for run-on and run-off control at the storage areas for the waste; and
(4) a program and implementation schedule of best management practices designed to minimize uncontrolled dispersion of the waste before and during all aspects of its storage as inventory and during beneficial use;
(b) a comparison of the chemical and physical characteristics of the waste to applicable or relevant and appropriate criteria for the proposed beneficial use; and
(c) other information as the department determines to be appropriate to demonstrate that the proposed use will not adversely affect public health and the environment.
(3) The department will determine that the use constitutes a beneficial use only if the following criteria are satisfied:
(i) the petition contains all necessary technical information as required under paragraph (2) of this subdivision;
(ii) the essential nature of the proposed use of the waste constitutes use rather than disposal;
(iii) the waste will be managed as a commodity and intended to function or serve as an effective substitute for an analogous commercial product or raw material;
(iv) at the point of beneficial use, the waste will not require decontamination or other processing;
(v) a market exists or is reasonably certain to be developed for the proposed quantity and use of the waste or the product into which the waste is proposed to be incorporated;
(vi) heavy metals or other pollutants present in the waste are present at acceptable concentrations for the proposed product or use as determined by the department. For use of materials on the land as fill or cover, the material must not be used in ecologically sensitive areas and must not contain pollutants above the concentrations indicated in section 375-6.8(b) of this Title, for Residential Use and Protection of Groundwater, unless the petitioner can demonstrate properties or characteristics unique to the material or use that are acceptable to the department. Nothing in this subparagraph will have the effect of modifying any existing Memorandum of Understanding to which the department is a party; and
(vii) the proposed use will not significantly adversely affect public health and the environment.
(4) Approved petitions will be subject to conditions the department deems necessary to prevent adverse environmental impacts. When granting a beneficial use determination, the department will determine the precise point at which the waste ceases to be waste. Unless otherwise determined by the department, that point occurs when it is received for use in a manufacturing process, or for use as an effective substitute for a commercial product or raw material.
(5) The department will modify, suspend, or revoke any determination made under this section, upon notice and an opportunity to be heard, if it finds that one or more of the factors serving as the basis for the department's determination were incorrect or are no longer valid, that there has been noncompliance with any condition attached to the determination, or if necessary to prevent adverse impacts to public health and the environment, or control nuisances.
(6) Processing and review of a petition will be suspended if an enforcement action has been commenced against the petitioner for alleged violations of the ECL or other environmental laws administered by the department at the facility or site that is the subject of the petition.
(7) An approved case-specific beneficial use determination is valid for no more than five years from the date of approval. Case-specific beneficial use determinations may be renewed upon review and approval of the department.
(8) By March 1st following each calendar year of approval, the petitioners of an approved case-specific beneficial use determinations must submit a report to the department, on a form acceptable to the department that includes the quantity of waste beneficially used during the previous calendar year of operation and any analytical data or other information required in the approved case-specific beneficial use determination. The report must also contain a signed statement by a responsible official of the petitioner’s organization that the organization has been in compliance with the terms and conditions of the approved case-specific beneficial use determination during the reporting period.
(e) Case-specific beneficial use determinations - navigational dredged materials (NDM).
(1) Applicability. This subdivision applies to the upland management of NDM in a beneficial manner. This subdivision does not apply to NDM management in surface water, or in the riparian zone, or to the upland management of NDM if it is included under a dredging permit or other applicable permits specified in section 360.2(a)(4)(xi) of this Part.
(2) Case-specific NDM beneficial use determination petition. A written petition must be submitted to the department, containing the following information:
(i) the source of the NDM, estimated quantity for use, and the proposed schedule of use;
(ii) a sampling plan that describes how representative samples of the NDM will be obtained and the analytical methods that will be used to assess the samples;
(iii) analytical results of the untreated, unamended NDM and of the treated or amended NDM in compliance with subdivision (d) of this section;
(iv) a description of known or probable markets for the intended use of the NDM or end product, including one or more of the following:
(a) the location and description of the placement site and a description of the intended end use of the NDM or end product at that site;
(b) a contract to purchase the NDM or end product after processing, or to use the NDM in the manner proposed;
(c) a demonstration that the NDM or end product after processing complies with industry standards and specifications for that product; or
(d) other documentation that a legitimate market for the NDM or end product exists;
(v) a material management plan that describes the following:
(a) the disposition of any waste (e.g., separated debris) which may result from processing of the NDM;
(b) a description of the type of storage and maximum anticipated inventory of NDM before being used;
(c) procedures for run-on and run-off control at the storage areas for the NDM and end product after processing;
(d) a program and implementation schedule of best management practices designed to minimize uncontrolled dispersion of the NDM before and during all aspects of its processing, transportation, and storage as inventory and during beneficial use;
(e) if applicable, a description of how unamended or amended NDM that will be used as structural fill will attain project-specific fill geotechnical or engineering specifications when received at the site of placement; and
(vi) a detailed description of all amendment or treatment that will occur before NDM use. The description must include the type and quantity of amendment or treatment procedures, and location of all processing operations.
(3) General provisions.
(i) The department will determine in writing, on a case-specific basis, whether the proposal constitutes a beneficial use, based on requirements described in this section. For use of NDM as general fill or cover, the requirements of subparagraph (d)(3)(vi) of this section must be met, except where NDM will meet criteria for and will be used in the same manner as restricted-use or limited-use fill material as described in section 360.13 of this Part.
(ii) NDM approved for beneficial use under this section ceases to be a waste when it meets the technical requirements or specifications for the intended end use, provided it is not stored for longer than 365 days after meeting the technical requirements or specifications, unless otherwise approved by the department.
(4) Sampling protocol and analytical methods. In support of a petition for a beneficial use determination, the petitioner may submit analytical results generated for another purpose, including ‘in-situ’ sediment sampling performed in support of a State or Federal permit to dredge, which may not conform to the sampling described in this paragraph.
(i) Untreated, unamended NDM and treated or amended NDM must be analyzed for the following parameters, unless otherwise approved by the department,, using department-approved analytical methods: volatile organic compounds; semivolatile organic compounds; pesticides; polychlorinated biphenyls; metals; sulfides; salt content; grain-size distribution; chlorinated dioxins/furans; carbazole; mirex; hexavalent chromium and cyanides. In addition, the department may require the submission of Synthetic Precipitation Leaching Procedure (EPA SW-846 Method 1312) or Toxicity Characteristic Leaching Procedure (EPA SW-846 Method 1311) results, as incorporated by reference in section 360.3 of this Part, and other data needed to justify the proposed end use (e.g., nutrient content, geotechnical testing, etc.).
(ii) The NDM must be analyzed as prescribed in the following table unless otherwise approved by the department. If the source of the NDM has a history of significant contamination or highly variable contamination, additional sampling will be required. The sampling plan must be submitted and approved by the department prior to sampling the NDM.
|TABLE: Analyses Required for NDM|
|Cubic Yards of NDM||Minimum Number of Analyses|
|Under 5,000||1 for each 1,000 Cubic Yards|
*The department will require a project-specific approved sampling frequency.
(iii) All samples taken must be representative of the NDM that will be used. A written record of all sampling details must be submitted to the department and must include the date, location, and protocol used to obtain representative samples.
(iv) Statistical analysis in accordance with USEPA SW-846, as incorporated by reference in section 360.3 of this Part, may be used to justify compliance of NDM with contaminant limits where results show an exceedance. If the pollutant limit for beneficial use is lower than the required detection limit, an analytical result less than the required detection limit will be considered to comply with the pollutant limit.
(f) Case-specific beneficial use determinations – gas storage brine or production brine (brine).
(1) Applicability. In addition to the criteria outlined in subdivision (d) of this section, this subdivision applies to the use of gas storage brine or production brine on roads to control dust, stabilize unpaved road surfaces, reduce ice, or reduce snow.
(2) Case-specific brine beneficial use determination petition. The department will determine in writing, on a case-specific basis, whether the petition constitutes a beneficial use, based on requirements described in this section and subdivision (d) of this section. A written petition must be submitted to the department, containing the following information:
(i) the name, address and telephone number of the person or entity that is road spreading the brine;
(ii) a map or a listing of roads where brine will be applied;
(iii) an original, signed, and dated brine spreading authorization letter from the government agency or other property owner of the road(s);
(iv) the physical address of the brine storage location(s) or wells from which the brine is transported;
(v) a description of any system used at the well location(s) to separate brine and minimize any oil or gas in brine;
(vi) an analysis of a representative sample of the brine, obtained at a proposed point of use, for the parameters found in subparagraph (3)(iii) of this subdivision. All analyses must be performed by a laboratory certified by the New York State Department of Health using methods specified in this subdivision or otherwise acceptable to the department;
(vii) a road spreading plan that includes a description of the procedures to prevent the brine from flowing or running off into streams, creeks, lakes and other bodies of water. The plan should include, at a minimum:
(a) the type of use: dust control, road stabilization, or ice and snow control;
(b) a description of how the brine will be applied, including the equipment to be used and the method for controlling the rate of application;
(c) the proposed rate and frequency of application; and
(d) if the proposed use is ice or snow control, a description of how the operation complies with Department of Transportation guidelines for snow and ice control.
(3) Conditions for brine use. The conditions set forth below apply to all case specific beneficial use determinations for gas storage brine and production brine on all roads.
(i) Only gas storage brine and production brine from wells producing from formations other than the Marcellus Shale are approvable for road spreading.
(ii) Road spreading of drilling fluids and flowback water is prohibited.
(iii) Brine must comply with the following standards (test methods are incorporated by reference in section 360.3 of this Part):
BUD Criteria for the Use of Oil/Gas Brine for Road Uses
|Parameter||Criteria, mg/L||Test Method|
|Total Dissolved Solids||>170,000*||Method approved by Department|
|Chloride||>80,000*||EPA Method 300.00|
|Sulfate||<2500||EPA Method 300.0|
|Oil/Grease||<15||EPA Method 1664|
* lower levels may be considered when brine is used for dust control
(iv) Methods must be employed at the well site to minimize the amount of hydrocarbons present in the brine.
(v) Brine application within 50 feet of a stream, creek, lake, or other body of water is prohibited.
(vi) Brine application measurement methods must be used to ensure that brine application rates are within limits.
(vii) The vehicle used for brine application must be dedicated for that use or must be cleaned to remove any waste material prior to loading with brine.
(viii) Personnel that will be applying brine must be properly trained and educated on the equipment that will be used for brine application, the allowable application rates, and the use restrictions.
(ix) One representative analysis of the brine prior to use for the constituents in subparagraph (iii) of this paragraph must be submitted annually to the department. All analyses must be performed by a laboratory certified by the New York State Department of Health using methods acceptable to the department.
(x) In lieu of paragraph (d)(8) of this section an annual report must be submitted to the department by March 31st of each year containing data for the previous calendar year. The report must include:
(a) the source of the brine;
(b) analytical data;
(c) total amount of brine applied;
(d) dates of brine application;
(e) name of roads where applied, distance applied, and gallons applied; and
(f) effectiveness of brine application (excellent, good, fair, poor), etc.
(xi) Brine approved for beneficial use under this section ceases to be a waste when it meets the technical requirements or specifications for the intended end use.
(4) The following additional conditions set forth below apply to case specific beneficial use determinations for gas storage brine and production brine on unpaved roads for dust control and road stabilization:
(i) brine application is prohibited between sundown and sunrise;
(ii) brine application is prohibited on sections of road with a grade exceeding 10 percent;
(iii) brine application is prohibited on wet or frozen roads, during rain, or when rain is imminent;
(iv) brine application for dust control must occur only on unpaved roads;
(v) a spreader bar or similar device designed to deliver a uniform application of brine must be used;
(vi) the application vehicle must have brine shut-off controls in the cab;
(vii) brine cannot be applied directly to vegetation near the surface that is being treated;
(viii) application of brine within 12 feet of structures crossing bodies of water or crossing drainage ditches is prohibited;
(ix) when the application vehicle stops, the discharge of brine must stop;
(x) the vehicle must be moving at least five miles per hour when brine is being applied.
(5) The following additional conditions set forth below apply to case specific beneficial use determinations for gas storage brine and production brine on roads for ice and snow reduction:
(i) the brine application must not be used at a rate greater than needed for snow and ice control.
6 CRR-NY 360.12
Current through March 15, 2020
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