Department of Environmental Conservation Proposes New Dumping Regulations

On February 28, 2016, the New York State Department of Environmental Conservation (“DEC”) proposed a comprehensive revision to the Part 360 regulations governing the transportation and disposal of solid waste materials.  These proposed regulations, governing everything from bio-hazardous materials and organic waste to construction debris, makes both substantive changes and reorganizes of the law to provide separate subparts for different types of waste. In particular, the new regulations would impose strict requirements for the transportation, storage, and disposal of construction and demolition debris (“C&D”), which has been involved in high profile illegal dumping cases in recent years. Most regulations would also apply to waste called “historic fill.”

Illegal dumping is a serious problem on Long Island. As a sole-source aquifer region, Long Island’s 3 million residents rely entirely on a single underground source for its drinking water, making groundwater pollution potentially devastating. In addition, illegally dumped material may be hazardous to those who come in contact with it, either because it contains toxic materials such as asbestos or lead, or more mundane dangers such as broken glass. 

The Suffolk County District Attorney is currently investigating four different illegal dumping sites, in areas as diverse as Roberto Clemente Park in Brentwood, state-protected wetlands in Deer Park, and a development with homes for veterans. Though the individuals responsible face a 32-count indictment, unsealed December 2014, cleanup did not begin until the end of last year. All told, removing the illegally dumped material and shipping it to Pennsylvania to prevent groundwater seepage is expected to cost between $1.4 and $3 million. The proposed regulations aim to prevent similar events in the future.  

Though the proposal is comprehensive, the provisions related to C&D are the most noteworthy. C&D, the type of material illegally dumped in the case above, includes concrete and masonry materials (ex: steel, fiberglass reinforcement), brick, soil, and rock. The proposed regulations on C&D processing facilities, codified as Subpart 361-5, also cover asphalt pavement, gypsum wallboard, and non-asbestos containing asphalt roofing shingles.

Under the proposed regulations, facilities receiving C&D materials must register with DEC, with facilities receiving over 250 tons on any day needing a permit. At the facility, C&D or asphalt pavement may be stored uncovered for up to 180 days in piles not exceeding 20 ft. high, 40 ft. wide, and a volume of 20,000 cubic ft. All other material must be covered and stored for no more than 30 days. These piles must be spaced 25 ft. apart (50 ft. if combustible) and 50 ft. from property boundaries, and may not be in excavations. Finally, the floors of these storage areas must be concrete or asphalt paving and equipped with drainage and retention structures for potentially contaminated materials. These are all subject to modification with DEC approval.

Finally, the proposed regulations impose new recordkeeping requirements on both transporters and facilities receiving C&D. All material going to and from a registered or permitted C&D facility must be accompanied by a tracking document. This document must include the name and address of the originating facility, transporter, and destination of the waste, plus detail the type and quantity of waste being moved. These documents, which must be kept for 7 years and made available for inspection, must also be signed at each stage of the process, with the final copies sent back to the generating facility once the material reaches its destination. The regulations would also tighten storage requirements during transport.

The full text of the proposed regulations, along with supporting documents, comment period information, and the scheduled public hearings, can be found on the DEC’s website at:

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