§360-1.15 BENEFICIAL USE.
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(a) Applicability.
(1) This section applies to materials that, before being beneficially used (as determined by the department), were solid waste. This section does not apply to solid wastes subject to regulation under Subpart 360-4 of this Part, except in the manner identified in subdivision 360-1.15(b) of this Part.
(2) Beneficial use determinations granted by the department before the effective date of this section shall remain in effect, subject to all conditions contained therein, unless specifically addressed by subsequent department action.
(b) Solid waste cessation.
The following items are not considered solid waste for the purposes of this Part when used as described in this subdivision:
(1) materials identified in subparagraphs 371.1(e)(1)(vi)-(viii) of this Title that cease to be solid waste under the conditions identified in those subparagraphs;
(2) compost and other waste derived soil conditioning products from facilities that are exempt or registered under this Part, and products that satisfy the applicable requirements under Subpart 360-5 of this Part;
(3) unadulterated wood, wood chips, or bark from land clearing, logging operations, utility line clearing and maintenance operations, pulp and paper production, and wood products manufacturing, when these materials are placed in commerce for service as mulch, landscaping, animal bedding, erosion control, wood fuel production, and bulking agent at a compost facility operated in compliance with Subpart 360-5 of this Part;
(4) uncontaminated newspaper or newsprint when used as animal bedding;
(5) uncontaminated glass when used as a substitute for conventional aggregate in asphalt or subgrade applications;
(6) tire chips when used as an aggregate for road base materials or asphalt pavements in accordance with New York State Department of Transportation standard specifications, or whole tires or tire chips when used for energy recovery;
(7) uncontaminated soil which has been excavated as part of a construction project, and which is being used as a fill material, in place of soil native to the site of disposition;
(8) nonhazardous, contaminated soil which has been excavated as part of a construction project, other than a department-approved or undertaken inactive hazardous waste disposal site remediation program, and which is used as backfill for the same excavation or excavations containing similar contaminants at the same site. Excess materials on these projects are subject to the requirements of this Part. (Note: use of in-place and stockpiled soil from a site being converted to a realty subdivision, as defined by the Public Health Law (10 NYCRR 72), must be approved by the local health department.);
(9) nonhazardous petroleum contaminated soil which has been decontaminated to the satisfaction of the department and is being used in a manner acceptable to the department;
(10) solid wastes which are approved in advance, in writing, by the department for use as daily cover material or other landfill liner or final cover system components pursuant to the provisions of subdivision 360-2.13(w) of this Part when these materials are received at the landfill;
(11) recognizable, uncontaminated concrete and concrete products, asphalt pavement, brick, glass, soil and rock placed in commerce for service as a substitute for conventional aggregate;
(12) nonhazardous petroleum contaminated soil when incorporated into asphalt pavement products by a producer authorized by the department;
(13) unadulterated wood combustion bottom ash, fly ash, or combined ash when used as a soil amendment or fertilizer, provided the application rate of the wood ash is limited to the nutrient need of the crop grown on the land on which the wood ash will be applied and does not exceed 16 dry tons per acre per year;
(14) coal combustion bottom ash placed in commerce to serve as a component in the manufacture of roofing shingles or asphalt products; or as a traction agent on roadways, parking lots and other driving surfaces;
(15) coal combustion fly ash or gas scrubbing by-products placed in commerce to serve as an ingredient to produce light weight block, light weight aggregate, low strength backfill material, manufactured gypsum or manufactured calcium chloride; and
(16) coal combustion fly ash or coal combustion bottom ash placed in commerce to serve as a cement or aggregate substitute in concrete or concrete products; as raw feed in the manufacture of cement; or placed in commerce to serve as structural fill within building foundations when placed above the seasonal high groundwater table.
(c) Special reporting requirements.
No later than 60 days after the first day of January following each year of operation, the generator of coal combustion ash must submit a report to the department that identifies the respective quantities of coal combustion bottom ash, fly ash, and gas scrubbing by-products it generated during the calendar year to which it pertains and, with respect to coal combustion bottom ash, how much was sent to a manufacturer of roofing shingles or asphalt products, how much was used as a traction agent on roadways, parking lots, and other driving surfaces, how much was sent to a manufacturer of cement, concrete or concrete products, and how much was used as structural fill; and, with respect to coal combustion fly ash and to gas scrubbing by-products, how much was used to produce light weight block, light weight aggregate, low strength backfill material (flowable fill), manufactured gypsum or manufactured calcium chloride.
(d) Case-specific beneficial use determinations.
(1) The generator or proposed user of a solid waste may petition the department, in writing, for a determination that the solid waste under review in the petition may be beneficially used in a manufacturing process to make a product or as an effective substitute for a commercial product. Unless otherwise directed by the department, the department may not consider any such petition unless it provides the following:
(i) a description of the solid waste under review and its proposed use;
(ii) chemical and physical characteristics of the solid waste under review and of each type of proposed product;
(iii) a demonstration that there is a known or reasonably probable market for the intended use of the solid waste under review and of all proposed products by providing one or more of the following:
(a) a contract to purchase the proposed product or to have the solid waste under review used in the manner proposed;
(b) a description of how the proposed product will be used;
(c) a demonstration that the proposed product complies with industry standards and specifications for that product; or
(d) other documentation that a market for the proposed product or use exists; and
(iv) a demonstration that the management of the solid waste under review will not adversely affect human health and safety, the environment, and natural resources by providing:
(a) a solid waste control plan that describes the following:
(1) the source of the solid waste under review, including contractual arrangements with the supplier;
(2) procedures for periodic testing of the solid waste under review and the proposed product to ensure that the proposed product's composition has not changed significantly;
(3) the disposition of any solid waste which may result from the manufacture of the product into which the solid waste under review is intended to be incorporated;
(4) a description of the type of storage (e.g., tank or pile) and the maximum anticipated inventory of the solid waste under review (not to exceed 90 days) before being used;
(5) procedures for run-on and run-off control of the storage areas for the solid waste under review; and
(6) a program and implementation schedule of best management practices designed to minimize uncontrolled dispersion of the solid waste under review before and during all aspects of its storage as inventory and/or during beneficial use; and
(b) a contingency plan that contains the information and is prepared in accordance with subdivision 360-1.9(h) of this Part.
(2) The department will determine in writing, on a case-by-case basis, whether the proposal constitutes a beneficial use based on a showing that all of the following criteria have been met:
(i) the essential nature of the proposed use of the material constitutes a reuse rather than disposal;
(ii) the proposal is consistent with the solid waste management policy contained in section 27-0106 of the ECL;
(iii) the material under review must be intended to function or serve as an effective substitute for an analogous raw material or fuel. When used as a fuel, the material must meet the requirements of paragraph 360-3.1(c)(4) of this Part and the facility combusting the material must comply with the registration requirements in subdivision 360-3.1(c) of this Part, if appropriate;
(iv) for a material which is proposed for incorporation into a manufacturing process, the material must not be required to be decontaminated or otherwise specially handled or processed before such incorporation, in order to minimize loss of material or to provide adequate protection, as needed, of public health, safety or welfare, the environment or natural resources;
(v) whether a market is existing or is reasonably certain to be developed for the proposed use of the material under review or the product into which the solid waste under review is proposed to be incorporated; and
(vi) other criteria as the department shall determine in its discretion to be appropriate.
(3) The department will either approve the petition, disapprove it, or allow the proposed use of the solid waste under review subject to such conditions as the department may impose. When granting a beneficial use determination, the department shall determine, on a case-by-case basis, the precise point at which the solid waste under review ceases to be solid waste. Unless otherwise determined for the particular solid waste under review, that point occurs when it is used in a manufacturing process to make a product or used as an effective substitute for a commercial product or used as a fuel for energy recovery. As part of its petition, the petitioner may request that such point occur elsewhere. In such a request, the petitioner must include a demonstration that there is little potential for improper disposal of the material or little potential for the handling, transportation, or storage of the solid waste under review to have an adverse impact upon the public health, safety or welfare, the environment or natural resources.
(4) The department may revoke any determination made under this subdivision if it finds that one or more of the matters serving as the basis for the department's determination was incorrect or is no longer valid or the department finds that there has been a violation of any condition that the department attached to such determination.
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