Material Matters - Spring 2018 - 15

Section 360.12 says that any material that

submitting three sets of comments) and found

while leaving the door open to productive

goes to a Part 361 facility cannot be consid-

the meetings to be very productive in making

discussions with DEC to create a work-

ered a BUD material.

DEC aware of industry's concerns with the

able Part 360. We extend our appreciation

This makes the "storage for an unlimited

draft rule. It is unfortunate that DEC's good

to Callanan, Suit-Kote, Hanson, Gernatt,

time provision" in 361-5.4(f)(1)(iv), meaning-

intentions in trying to develop a workable

Peckham and Dolomite, together with Walden

less as it only applies to materials that meet

program were not realized.

Environmental Engineering, Continental

It is our intent in filing this legal chal-

Placer, and Dave and Bruce for working with

The Rule also restricts the storage of RAP/

lenge to vigorously defend Industry's highly

us to prepare supporting affidavits and exhib-

RCA prior to processing to 365 days. [6 NYCRR

successful RAP/RCA recycling program,

its for the lawsuit.

the §360.12 BUD requirements.

§ 361-5.4(f)(1)(i)]. The only thing that processing does to RAP is to break it into ever smaller
pieces. So, under the Part 361 rules, standing
alone, large pieces of RAP can only be stored
for 365 days, but if you crush it into smaller
pieces, it can be stored indefinitely.
However, as discussed above, due to the
interaction of Part 361 with §360.12, this
could never happen because any material that
goes to a 361 facility is categorically excluded
from being considered BUD material.
Finally, DEC's response to comments during the rule-making process demonstrates the
complete lack of consistency in the DEC's own
view of the intent and coverage of the rule.
In the June Response to Comments, the
Department alternately stated:

*

"Receipt of unprocessed concrete or asphalt
pavement from off-site requires a permit or
registration under Part 361-5"

*

"RAP used as an ingredient in producing new asphalt pavement would not
be considered a waste, and the asphalt
plant producing the asphalt pavement
would not be considered a solid waste
management facility."

*

"The predetermined BUD [for RUCARBs]
is only intended to provide waste cessation
for C&D debris products leaving a processing facility..."

*

"The use of material that meets the predetermined beneficial use determination
requirements would not be required to meet
the requirements of Subpart 361-5."
It is important to note that DEC staff was

very open, attentive and cooperative during
the rule-making process. NYMaterials met
with staff at least three times (in addition to
905033_New.indd 1

Material Matters * Spring 2018
15
2/12/18 7:16 PM


http://www.nesl.com

Table of Contents for the Digital Edition of Material Matters - Spring 2018

Chairman’s Message
President’s Report
Legislative Update
Counsel’s Corner
Membership Benefit
Member KUDOS
Work the Problem
2017 Asphalt Pavement Showcase Award Winners
One Company’s Efforts to Set up an Asphalt Plant
An Interview with NYSDOT’s Don Streeter
Residential Concrete
Welcome New Members
Material Matters - Spring 2018 - Intro
Material Matters - Spring 2018 - cover1
Material Matters - Spring 2018 - cover2
Material Matters - Spring 2018 - 3
Material Matters - Spring 2018 - 4
Material Matters - Spring 2018 - 5
Material Matters - Spring 2018 - 6
Material Matters - Spring 2018 - Chairman’s Message
Material Matters - Spring 2018 - 8
Material Matters - Spring 2018 - President’s Report
Material Matters - Spring 2018 - Legislative Update
Material Matters - Spring 2018 - 11
Material Matters - Spring 2018 - Counsel’s Corner
Material Matters - Spring 2018 - 13
Material Matters - Spring 2018 - 14
Material Matters - Spring 2018 - 15
Material Matters - Spring 2018 - 16
Material Matters - Spring 2018 - Membership Benefit
Material Matters - Spring 2018 - 18
Material Matters - Spring 2018 - Member KUDOS
Material Matters - Spring 2018 - 20
Material Matters - Spring 2018 - Work the Problem
Material Matters - Spring 2018 - 22
Material Matters - Spring 2018 - 23
Material Matters - Spring 2018 - 2017 Asphalt Pavement Showcase Award Winners
Material Matters - Spring 2018 - 25
Material Matters - Spring 2018 - One Company’s Efforts to Set up an Asphalt Plant
Material Matters - Spring 2018 - 27
Material Matters - Spring 2018 - An Interview with NYSDOT’s Don Streeter
Material Matters - Spring 2018 - 29
Material Matters - Spring 2018 - 30
Material Matters - Spring 2018 - 31
Material Matters - Spring 2018 - Residential Concrete
Material Matters - Spring 2018 - 33
Material Matters - Spring 2018 - 34
Material Matters - Spring 2018 - Welcome New Members
Material Matters - Spring 2018 - 36
Material Matters - Spring 2018 - 37
Material Matters - Spring 2018 - 38
Material Matters - Spring 2018 - cover3
Material Matters - Spring 2018 - cover4
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