N.Y. Comp. Codes R. & Regs. tit. 6 § 370.3

Current through Register Vol. 46, No. 45, November 2, 2024

Section 370.3 - Variances

(a)General.

(1) Any person may petition the commissioner to use an equivalent testing or analytical method, to exclude a waste produced at a particular facility from the requirements of Parts 370 through 374, and 376 of this Title, to be granted a variance from classification as a solid waste or to be granted a variance to be classified as a boiler. This subdivision sets forth general requirements which apply to these petitions. Subdivision (b) of this section sets forth additional requirements for petitions to use a testing or analytical method that varies from the methods specified in Part 371 and Subparts 373-2 and 373-3 of this Title. Subdivision (c) of this section sets forth additional requirements for petitions to exclude a waste at a particular facility from sections 371.1(d) and 371.4 of this Title. Subdivisions (d) and (e) of this section set forth additional requirements for petitions to be granted a variance from classification as a solid waste under section 371.1(c) of this Title. Subdivision (f) of this section sets forth additional requirements for petitions to be granted a variance to be classified as a boiler.

(2) Each petition must be submitted to the commissioner and must include:

(i) the petitioner's name and address;

(ii) a statement of the petitioner's interest in the proposed action;

(iii) a description of the proposed action;

(iv) a statement of the need and justification of the proposed action, including any supporting tests, studies or other information; and

(v) the following statement signed by the petitioner or an authorized representative:

"I certify under penalty of law that I have personally examined and am familiar with the information submitted in this demonstration and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate and complete. I am aware that submitting false information is punishable under section 210.45 of the State Penal Law, including the possibility of fine and imprisonment."

(3) The commissioner will determine if sufficient information has been has been submitted in order to grant or deny a petition.

(i) If the commissioner determines that sufficient information has been submitted, a tentative decision will be made to grant or deny a petition. A notice of such tentative decision will be published by the department in the Environmental Notice Bulletin for written public comment. In the case of a petition under subdivisions (d) and (f) of this section, notification of this tentative decision will also be provided by newspaper advertisement and radio broadcast in the locality where the petitioner's facility is located. The public will be provided with a minimum comment period of 30 days.

(ii) If the commissioner determines that additional information is needed, the commissioner will notify the petitioner in writing of the needed information.

(4) Upon the written request of any interested person, the commissioner may then hold a legislative public hearing to consider oral comments on the tentative decision. A person requesting a hearing must state the issues to be raised and explain why written comments would not suffice to communicate the person's views. The commissioner may in any case decide to initiate a motion to hold a legislative public hearing.

(5) After evaluating all public comments, the commissioner will make a final decision and shall publish notice of the decision in the Environmental Notice Bulletin.

(b)Petitions for equivalent testing or analytical methods.

(1) Any person seeking to add a testing or analytical method to Part 371, Subpart 373-2, or Subpart 373-3 of this Title must first petition the EPA administrator for a regulatory amendment under 40 CFR 260.21 and 40 CFR 260.20, as incorporated by reference in section 370.1(e) of this Part. Upon approval by the EPA administrator, the petitioner must then demonstrate to the commissioner that the proposed method is equal to or superior to the corresponding method prescribed in Part 371 and Subparts 373-2 and 373-3 of this Title, in terms of its sensitivity, accuracy and precision (i.e., reproducibility).

(2) Each petition must include, in addition to the information required by paragraph (a)(2) of this section:

(i) a full description of the proposed method, including all steps and equipment used in the method;

(ii) a description of the types of wastes or waste matrices for which the proposed method may be used;

(iii) comparative results obtained from using the relevant or corresponding methods prescribed in Part 371 and Subparts 373-2 and 373-3 of this Title;

(iv) an assessment of any factors which may interfere with or limit the use of the proposed method; and

(v) a description of the quality control procedures necessary to ensure the sensitivity, accuracy and precision of the proposed method.

(c)Petitions to exclude a waste produced at a particular facility.

(1) Any person seeking to exclude a waste from the lists in section 371.4 of this Title at a particular generating facility must first petition the EPA administrator for a regulatory amendment under 40 CFR 260.22 and 40 CFR 260.20, as incorporated by reference in section 370.1(e) of this Part. Upon approval by the EPA administrator, the petitioner may then seek concurrence from the commissioner under this subdivision and subdivision (a) of this section. To be successful:

(i) the petitioner must demonstrate to the commissioner that the waste produced by a particular generating facility does not meet any of the criteria under which the waste was listed as a hazardous or an acutely hazardous waste; and

(ii) based on a complete petition, the commissioner must determine, where there is a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste. A waste which is so excluded, however, is a hazardous waste if it fails one of the characteristic tests of section 371.3 of this Title.

(2) The procedures in this subdivision and subdivision (a) of this section may also be used to petition the commissioner for an exclusion from section 371.1(d)(1)(ii) (b) and (d)(3) of this Title, a waste which is described in those sections and is either a waste listed in section 371.4 or is derived from a waste listed in section 371.4. This exclusion may only be used for a particular generating, storage, treatment or disposal facility. The petitioner must make the same demonstration as required by paragraph (1) of this subdivision. Where the waste is a mixture of solid waste and one or more listed hazardous wastes or is derived from one or more hazardous wastes, the petitioner's demonstration made with respect to the waste mixture as a whole; analysis must be conducted for not only those constituents for which the waste contained in the mixture was listed as hazardous, but also for factors (including additional constituents) that could cause the waste mixture to be a hazardous waste. A waste which is so excluded is still a hazardous waste if it exhibits any of the characteristics identified in section 371.3 of this Title.

(3) If the waste is listed with codes "I," "C," "R" or "E" in section 371.4 of this Title:

(i) the petitioner must show that the waste does not exhibit the relevant characteristic for which the waste was listed as defined in section 371.3(b), (c), (d) or (e) of this Title using any applicable methods prescribed therein. The petitioner also must show that the waste does not exhibit any of the other characteristics defined in section 371.3(b), (c), (d) or (e) of this Title using any applicable methods prescribed therein; and

(4) If the waste is listed with code "t" in section 371.4 of this Title:

(i)

(a) the petitioner must demonstrate that the waste does not contain the constituent or constituents (as defined in Appendix 22, infra) that caused the commissioner to list the waste; or

(b) the waste, although containing one or more of the hazardous constituents (as defined in Appendix 22, infra) that caused the commissioner to list the waste, does not meet the criterion of section 371.2(b)(1)(iii) of this Title when considering the factors in clauses (b)(1)(iii)(a) through (k) of such section under which the waste was listed as hazardous; and

(ii) the petitioner must demonstrate that the waste does not exhibit any of the characteristics defined in section 371.3(b)-(e) of this Title using any applicable methods prescribed therein;

(iii) based on a complete petition, the commissioner must determine, where there is reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste; and

(iv) a waste which is so excluded, however, is a hazardous waste if it fails one of the characteristic tests of section 371.3 of this Title.

(5) If the waste is listed with the code "h" in section 371.4 of this Title:

(i)

(a) the petitioner must demonstrate that the waste does not meet the criterion for listing acute hazardous wastes of section 371.2(b)(1)(ii) of this Title; and

(b) the waste does not exhibit any of the characteristics defined in section 371.3(b)-(e) of this Title using any applicable methods prescribed therein;

(ii) based on a complete petition, the commissioner must determine, where there is reasonable basis to believe, that additional factors (including additional constituents) other than for those which the waste was listed do not warrant retaining the waste as a hazardous waste; and

(iii) a waste which so excluded, however, is a hazardous waste if it fails one of the characteristic tests of section 371.3 of this Title.

(6) Demonstration samples must consist of enough representative samples, but in no case less than four samples, taken over a period of time sufficient to represent the variability or the uniformity of the waste.

(7) Each petition must include, in addition to the information required by paragraph (a)(2) of this section:

(i) the name and address of the laboratory facility performing the sampling or tests of the waste;

(ii) the names and qualifications of the persons sampling and testing the waste;

(iii) the dates of sampling and testing;

(iv) the location of the generating facility;

(v) a description of the manufacturing processes or other operations and feed materials producing the waste and an assessment of whether such processes, operations, or feed materials can or might produce a waste that is not covered by the demonstration;

(vi) a description of the waste and an estimate of the average and maximum monthly and annual quantities of waste covered by the demonstration;

(vii) pertinent data on and discussion of the factors delineated in the respective criteria for listing a hazardous waste, where the demonstration is based on the factors in section 371.2(b)(1)(iii) of this Title;

(viii) a description of the methodologies and equipment used to obtain the representative sample;

(ix) a description of the sample handling and preparation techniques, including techniques used for extraction, containerization and preservation of the samples;

(x) a description of the tests performed (including results);

(xi) the names and model numbers of the instruments used in performing the tests; and

(xii) the following statement signed by the generator of the waste or an authorized representative:

"I certify under penalty of law that I have personally examined and am familiar with the information submitted in this demonstration and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate and complete. I am aware that submitting false information under section 210.45 of the State Penal Law, including the possibility of fine and imprisonment."

(8) After receiving a petition for an exclusion, the commissioner may request any additional information reasonably required to evaluate the petition.

(9) An exclusion will only apply to the waste generated by the individual facility covered by the demonstration and will not apply to waste from any other facility.

(10) The commissioner may exclude only part of the waste for which the demonstration is submitted where there is reason to believe that variability of the waste justifies a partial exclusion.

(d)Variances from classification as a solid waste.

(1) In accordance with the standards and criteria in subdivision (e) and the procedures in subdivision (a) of this section, the commissioner may determine on a case-by-case basis that the following recycled materials are not solid wastes:

(i) materials that are accumulated speculatively without sufficient amounts being recycled (as defined in section 371.1[a][1] of this Title);

(ii) materials that are reclaimed and then reused by the same person within the original production process in which they were generated; and

(iii) materials that have been reclaimed but must be reclaimed further before the materials are completely recovered.

(e)Standards and criteria for variances from classification as a solid waste.

(1) The commissioner may grant requests for a variance from classifying as a solid waste those materials that are accumulated speculatively without sufficient amounts being recycled if the applicant demonstrates that sufficient amounts of the material will be recycled or transferred for recycling in the following year. If a variance is granted, it is valid only for the following year, but can be renewed, on an annual basis, by filing a new application. The commissioner's decision will be based on the following criteria:

(i) the manner in which the material is expected to be recycled, when the material is expected to be recycled, and whether, because of past practices, market factors, the nature of the material, or contractual arrangements, the recycling is likely to occur;

(ii) the reason that the applicant has accumulated the material for one or more years without recycling at least 75 percent of the volume accumulated at the beginning of the year;

(iii) the quantity of material already accumulated and the quantity expected to be generated and accumulated before the material is recycled;

(iv) the extent to which the material is handled to minimize loss; and

(v) other relevant factors.

(2) The department may grant requests for a variance from classifying as a solid waste those materials that are reclaimed and then reused as feedstock within the original production process in which the materials were generated if the reclamation operation is an essential part of the production process. This determination will be based on the following criteria:

(i) how economically viable the production process would be if it were to use virgin materials, rather than reclaimed materials;

(ii) the extent to which the material is handled before reclamation to minimize loss;

(iii) the time periods between generating the material and its reclamation, and between reclamation and return to the original primary production process;

(iv) the location of the reclamation operation in relation to the production process;

(v) whether the reclaimed material is used for the purpose for which it was originally produced when it is returned to the original process, and whether it is returned to the process in substantially its original form;

(vi) whether the person who generates the material also reclaims it; and

(vii) other relevant factors.

(3) The commissioner may grant requests for a variance from classifying as a solid waste those materials that have been reclaimed but must be reclaimed further before recovery is completed if, after initial reclamation, the resulting material is commodity-like (even though it is not yet a commercial product, and has to be reclaimed further). This determination will be based on the following factors:

(i) the degree of processing the material has undergone and the degree of further processing that is required;

(ii) the value of the material after it has been reclaimed;

(iii) the degree to which the reclaimed material is like an analogous raw material;

(iv) the extent to which an end market for the reclaimed material is guaranteed;

(v) the extent to which the reclaimed material is handled to minimize loss; and

(vi) other relevant factors.

(f)Variance to be classified as a boiler.

(1) In accordance with the standards and criteria in section 370.2(b) of this Part (definition of boiler), and the procedures in subdivision (a) of this section, the commissioner may determine on a case-by-case basis that certain enclosed devices using controlled flame combustion are boilers, even though they do not otherwise meet the definition of boiler contained in section 370.2(b), after considering the following criteria:

(i) the extent to which the unit has provisions for recovering and exporting thermal energy in the form of steam, heated fluids or heated gases;

(ii) the extent to which the combustion chamber and energy recovery equipment are of integral design;

(iii) the efficiency of energy recovery, calculated in terms of the recovered energy compared with the thermal value of the fuel;

(iv) the extent to which exported energy is utilized;

(v) the extent to which the device is in common and customary use as a boiler functioning primarily to produce steam, heated fluids or heated gases; and

(vi) other relevant factors.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 370.3

Amended New York State Register March 4, 2020/Volume XLII, Issue 09, eff. 4/18/2020