RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 260--266 AND 270]
Hazardous Waste Management
[27 Pa.B. 237] The Environmental Quality Board (Board) amends Chapters 260--266 and 270, pertaining to hazardous waste, to read as set forth in Annex A.
These amendments incorporate provisions established by the Environmental Protection Agency (EPA) in the Federal hazardous waste program under the Federal Resource Conservation and Recovery Act of 1976 (RCRA) (42 U.S.C.A. §§ 6901--6986) and clarify or amend other hazardous waste requirements.
These amendments were adopted by order of the Board at its meeting of October 15, 1996.
A. Effective Date
These amendments are effective upon publication in the Pennsylvania Bulletin.
B. Contact Persons and Information
For further information, contact Rick Shipman, Division of Hazardous Waste Management, Bureau of Land Recycling and Waste Management, Rachel Carson State Office Building, 14th floor, 400 Market Street, P.O. Box 8471, Harrisburg, PA 17105-8471, (717) 787-6239, or Gail B. Phelps, Assistant Director, Bureau of Regulatory Counsel, Rachel Carson State Office Building, 9th floor, 400 Market Street, P.O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). These amendments are available electronically through the Department of Environmental Protecton's (Department) Web site (http://www.dep.state.pa.us).
C. Statutory Authority
The final rulemaking is being made under the authority of sections 105, 401--403 and 501 of the Solid Waste Management Act (35 P. S. §§ 6018.105, 6018.401--6018.403 and 6018.501); sections 105, 402 and 501 of The Clean Streams Law (35 P. S. §§ 691.105, 691.402 and 691.501); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20). Under sections 105, 401--403 and 501 of the Solid Waste Management Act, the Board has the power and duty to adopt rules and regulations concerning the storage, treatment, disposal and transportation of hazardous waste that are necessary to protect the public's health, safety and welfare, and the environment of this Commonwealth. Sections 105, 402 and 501 of The Clean Streams Law grant the Board the authority to adopt regulations that are necessary to protect the waters of this Commonwealth from pollution. Section 1920-A of The Administrative Code of 1929 grants the Board the authority to promulgate rules and regulations that are necessary for the proper work of the Department.
D. Background and Summary
These regulatory amendments include a number of diverse changes that will facilitate hazardous waste management for industries of all sizes, licensed hazardous waste transporters, and owners and operators of hazardous waste facilities in this Commonwealth. Generators, transporters and treatment, storage and disposal (TSD) facilities are relieved of a number of unnecessary regulatory burdens. This regulatory package also aligns the Department's hazardous waste program more closely to the Federal program by adopting several Federal subchapters, sections and definitions.
As examples, the Federal section listing exclusions from hazardous waste management has been fully adopted in text and will be updated automatically by reference. The Federal rebuttable presumption concerning mixtures of hazardous waste with waste oil has been added. Many more industries will be able to treat their hazardous waste onsite for reclamation, reuse or recycling, or to reduce the toxicity or volume prior to disposal without cumbersome permitting requirements. Industries are authorized to use the Federal ''satellite accumulation'' areas for management of hazardous wastes within the facility.
Generator and facility reporting requirements have been reduced dramatically--from quarterly to biennially--and most records need only be retained for 3 years instead of 20 years. Licensed transporters have been authorized to combine similar wastes during transportation, and in-transit storage times have been increased to the Federal limit of 10 days instead of 5 days. Small businesses that generate very small amounts of hazardous waste will be able to manage these wastes at lower cost and with fewer regulatory burdens, while still protecting the environment. Proposed amendments to Chapters 273 and 283 that would have authorized small amounts of hazardous waste to be disposed of at municipal waste facilities have been deleted in this final rulemaking.
The hazardous waste regulations of the Commonwealth were most recently amended with substantive changes at 23 Pa.B. 363 (January 16, 1993), referred to as PK-4. The basic framework for the Department's hazardous waste program was amended in that rulemaking through the definition of ''waste'' and related terms such as ''coproduct.'' Several provisions in the PK-4 package relating to recycling facilities are more stringent than the corresponding Federal requirements. These provisions also differ in concept from the corresponding Federal hazardous waste regulations.
The Board specifically requested comments from the public on whether the Department's definition of ''waste'' and the regulations on recycling have helped or hindered recycling. Many comments were received and were reviewed carefully.
The Department is reviewing all of the environmental regulations under the Secretary's Regulatory Basics Initiative and Executive Order 1996-1.
The Department intends to address major revisions to the hazardous waste program through future rulemakings after consideration of public input and the recommendations of the Solid Waste Advisory Committee (Committee). The Department is also actively participating with other states in the development of several new EPA RCRA regulations that will address the definition of ''waste,'' exclusions, exemptions and the regulation of recycling.
E. Summary of Comments and Responses on the Proposed Rulemaking
The proposed amendments were published at 25 Pa.B. 4917 (November 11, 1995). The 60-day comment period was extended until January 17, 1996, due to inclement weather. The Department received comments from 185 interested citizens and regulated persons, which included many hundreds of separate comments. The Board appreciates the time and careful thought that the public and the regulated community put into participating in the comment process, and believes that the regulations have been improved as a result of their efforts. A copy of the Comment and Response Document prepared for this regulations may be obtained by contacting Rick Shipman, Division of Hazardous Waste, at the address given in Section B of this Preamble.
The changes contained within these final amendments were reviewed and approved by the Department's Advisory Committee on May 9 and again on September 13, 1996. This Preamble addresses the Committee's concerns with regard to waste oil under that heading.
Substantive changes to the proposed amendments which were made on final adoption are discussed in this section by general topic. Several stylistic or typographical corrections are not discussed. Amendments to the regulations which have not been changed from the proposed rulemaking are discussed in the Preamble published with the proposed regulations at 25 Pa.B. 4917.
Biennial Report
The Board proposed to amend existing §§ 262.41, 264.75 and 265.75 (relating to biennial report) to delete quarterly reporting requirements for generators and facilities and to substitute instead a biennial reporting requirement that is substantially the same as the EPA biennial report. The final-form regulations have been amended for clarification and are consistent with the intent of the proposed amendments.
Under the final amendments, generators and owners/operators of TSDs facilities will be required to submit reports concerning hazardous waste management at the facility biennially, rather than quarterly. The final amendments have been clarified to show that the report need only cover hazardous waste activities during the prior calendar year, not the prior two years. The content of the biennial report has been modified to match applicable Federal biennial reporting requirements, including Federal requirements for waste minimization and pollution prevention.
Small quantity generators, which generate between 100 and 1,000 kilograms of hazardous waste per month, and conditionally exempt small quantity generators, which generate less than 100 kilograms of hazardous waste per month, are not required to submit biennial reports under § 262.41(a).
Section § 266.91 (relating to reporting) has been deleted entirely in the final rulemaking. This section formerly required owners and operators of facilities that reclaim their wastes onsite to submit a quarterly report.
Combining of Similar Wastes by a Licensed Transporter
The proposed amendment to § 263.27 (relating to blending, mixing, treating or storing of hazardous waste by transporters) authorized combining or bulking of similar hazardous wastes by a licensed transporter. The definition of ''in-transit storage'' in § 260.2 (relating to definitions) is amended to conform with this change by deleting the requirement that the waste remain in its original container. Hazardous wastes that are bulked by a licensed transporter must be packaged, labeled, marked and placarded according to §§ 262.30 and 262.33 (relating to packing, labeling and marking; and accumulation).
Conditionally Exempt Small Quantity Generators (CESQGs)
The proposed amendments changed §§ 261.5 and 262.10(a) (relating to special requirements for hazardous waste generated by conditionally exempt small quantity generators; and scope) to conform with the corresponding Federal sections which cover generators of less than 100 kg of hazardous waste per month. These CESQGs typically are small businesses such as automotive repair shops, printers, dry cleaners, retail paint stores, funeral homes or laboratories. Small businesses that generate less than 100 kilograms of hazardous waste per month have been subject to reduced storage, treatment, transportation requirements under the Federal RCRA program since 1986. This category of very small, partially exempt generators has never been recognized in Pennsylvania's regulations until this rulemaking.
Under the Federal program, these very small generators are authorized to store up to 1000 kilograms in excess of 90 days without a storage permit, treat their own waste without a permit and ship waste by common carrier without the use of a manifest. The CESQG hazardous waste remains categorically a hazardous waste, consistent with the generally applicable rules for waste determination. The generator and subsequent handlers are conditionally exempted from certain specified management rules, but the waste itself is still classified as hazardous waste if it meets the normal criteria. These portions of the Federal program have been retained in the final-form regulations.
The Federal program also allows disposal of CESQG hazardous wastes at facilities regulated by a state under the RCRA Subtitle D program, which, in this Commonwealth, includes municipal waste and residual waste facilities. The Board originally proposed to conform with the Federal program and authorize disposal at municipal waste facilities. The proposed amendments also included amendments to §§ 273.201 and 283.201 (relating to municipal waste landfills; and municipal waste processing facilities) to allow municipal waste facilities to accept CESQG hazardous waste. The Department's current municipal waste regulations prohibit acceptance of hazardous waste at municipal waste facilities.
Several commentators objected to allowing CESQG hazardous waste to be disposed of at municipal waste landfills. The General Assembly has recently enacted Legislation which prohibits disposal of hazardous waste at a municipal or residual waste landfill (act of September 12, 1996, P. L. ____ , No. 190). This rulemaking conforms to the new Legislation by deleting the proposed authorization for disposal of CESQG hazardous waste at municipal or residual waste landfill facilities in this Commonwealth. Disposal of CESQG hazardous waste at landfills in other states is authorized if it is consistent with the laws of the receiving state. No municipal or residual waste facilities in this Commonwealth are authorized to accept hazardous waste.
Other changes to § 261.5(c) reflect more recent Federal amendments to 40 CFR 261.5(c), concerning the types of waste which CESQGs must count in determining the amount generated in a month.
Definitions
Two new definitions have been added to the final-form regulations. Both are copied from the Federal text in 40 CFR 260.10. An existing definition has also been clarified. The existing definition of ''in-transit storage'' was clarified to conform with the new amendment to § 263.27 (relating to blending, mixing, treating or storing of hazardous waste by transporters) which allows licensed transporters to combine similar hazardous wastes during transportation.
The definition of ''miscellaneous unit'' has been added to clarify the new subchapter regulating miscellaneous units at §§ 264.600--264.603. The Federal definition of ''Small Quantity Generator'' has also been added to the final amendments. Under both the Federal and State programs, this category of generators includes those that generate no more than 1,000 kilograms of hazardous waste per month.
Empty Containers and Tanks
The proposed amendments to the existing provisions at § 261.33 (relating to waste commercial chemical products, off-specification species, containers, container residues and spill residues thereof) transferred the requirements for identifying and managing RCRA-empty containers to a new section at § 261.7 (relating to empty containers). Amended § 261.33 now identifies requirements for listed hazardous wastes that are EPA P and U listed wastes. These changes are consistent with the Federal program.
Three types of changes have been made on final to these sections. In the proposed § 261.7, the Board proposed to require that the small amounts of hazardous waste residues remaining in a RCRA-empty container be managed as hazardous waste if they meet the normal criteria. This provision has been retained, even though it is more stringent than the Federal program, for the reasons explained in the Preamble to the proposed amendments.
The proposed amendments also declared the person in control of the RCRA-empty tank or container to be the generator of the last residues removed when the tank is cleaned or completely emptied. On final, however, the Board has clarified that the person in control of the tank or container when the last residues are removed has the responsibility to ensure that these are managed in compliance with the solid waste management regulations, as applicable. The person in control of the tank or container is not declared to be the generator.
The owner or operator of the tank or container that is being emptied and removed is the generator of the wastes contained therein. The owner or operator is responsible to perform a waste determination under existing § 262.11 (relating to scope) when the waste is emptied from the tank or container so that it can be removed. Generator knowledge of the contents of the tank or container and of waste determinations for similar wastes can be used.
The person in control of the tank or container is responsible under the final-form regulations for ensuring that the remaining residues are managed in accordance with the solid waste management regulations. If the waste is a hazardous waste, the residue must be managed as a hazardous waste, including storage, treatment, packaging, shipment and disposal requirements. If the waste residue is not hazardous, it must be managed in accordance with the residual waste regulations.
The final changes made to these two sections are primarily editorial, and modify the proposed amendments to conform more closely to the Federal text.
Exclusions From Hazardous Waste
The Board has conformed Pennsylvania's exclusions from hazardous waste in § 261.4 with the Federal exclusions from hazardous waste in 40 CFR 261.4. The final-form regulations, like the proposed, will incorporate newer Federal exclusions from hazardous waste by reference, effective on the date the Federal exclusion becomes effective.
On final, the text of several newer Federal exclusions has been added to the text of this section for clarity and inconsistent existing exclusions have been modified. An existing limited exclusion relating to scrap leather containing chromium in § 261.4(a)(16) has been replaced with the broader corresponding Federal exclusion in 40 CFR 261.4(b)(6). The household waste exclusion in § 261.4(a)(6) has been corrected to more closely match the Federal program.
New Storage Units
The proposed amendments included the Federal standards for drip pads, which are structures designed to convey drippage, precipitation and surface water run-on to collection systems. Commentators correctly pointed out that the proposed §§ 264.503(a)(1)(iii) and 265.503(a)(1)(iii) (relating to design and operating requirements) should have used the term ''hydraulic conductivity'' rather than the term ''permeability.'' This correction has been made to the final amendments.
P and U Listed Wastes
The proposed amendments would have amended § 261.33 (relating to waste commercial chemical products, off-specification species, containers, container residues and spill residues thereof) to delete the EPA specification that a P or U listed waste be the sole active ingredient in a chemical formulation for the waste to be considered hazardous. The proposed amendments to § 261.33 would have been more stringent than the Federal text in 40 CFR 261.33. Commentators pointed out that the proposed deletion of the EPA limitation to sole active ingredients would be confusing, very burdensome and would cover a wide variety of unintended wastes that actually do not pose a significant risk.
The Board has decided to conform § 261.33 to the Federal program and add the requirement that P or U listed wastes is the sole active ingredients for a chemical waste formulation to be determined to be hazardous on this basis.
Permit-by-Rule (PBR)
Three PBR provisions for simplified management of hazardous wastes were proposed to be added or amended. Two have been retained on final. These two allow onsite storage prior to reclamation by PBR, in § 266.90 (relating to applicability and requirements), and allow generators to treat their own waste onsite in containers or tanks during the accumulation period, in § 265.435 (relating to generator treatment). The PBR relating to carbon regeneration facilities has been deleted from the final-form regulations.
The Board had proposed amendments to §§ 261.6 and 266.70 (relating to requirements for hazardous wastes that are recycled; and permit-by-rule) to allow facilities that regenerate carbon that has been used to filter out or treat hazardous waste to do so without a full TSD permit. Numerous commentators objected to this proposed relaxation of the permitting process standards. The Board has therefore deleted this proposal from the final version.
Commentators expressed a concern that a wide range of hazardous constituents may be adsorbed by spent activated carbon, and that a full thermal treatment facility permit was necessary to ensure adequate protection of human health and the environment. Commentators pointed out that not requiring full thermal treatment permits for carbon regeneration units would be less stringent than the EPA's requirements under RCRA. These facilities are subject to requirements for thermal treatment units under the Federal program, 56 FR 7200--7240.
The EPA has defined carbon regeneration units as thermal treatment devices subject to the permit standards of 40 CFR Part 264, Subpart X (56 FR 7200--7201 and 7206). Providing the opportunity for carbon regeneration units to operate under permit-by-rule provisions in this Commonwealth would, therefore, be less stringent than requirements under Federal RCRA regulations. Since, with this rulemaking, the Board is also promulgating a Pennsylvania counterpart to the Federal Subpart X regulations in Chapter 264, Subchapter U (relating to miscellaneous units), carbon regeneration units in this Commonwealth will now be required to obtain a hazardous waste treatment permit under that subchapter.
Retention of Records
The proposed amendments reduced the record retention requirements from 20 years to 3 years. This reduction in required retention times has been retained on final, consistent with the Federal standards. Sections 264.71(d) and 265.71(d) (relating to use of manifest system) have also been modified on final for consistency with the Federal program. The 20-year record retention requirement for copies of manifests by facility owners and operators has been reduced to 3 years.
Source Reduction Strategy
Generators located in this Commonwealth are required to develop and submit a Source Reduction Strategy under existing regulations at § 262.80 (relating to source reduction strategy). A TSD facility shall submit a copy of this Source Reduction Strategy to the Department as part of an application to receive the generator's waste for storage, treatment or disposal. This requirement in § 264.12 (relating to general requirements for hazardous waste management approvals and analysis of a specific waste from a specific waste generator) has been modified to allow a TSD facility to submit other documentation that a generator customer located outside this Commonwealth has complied with Federal waste minimization requirements in lieu of compliance with § 262.80.
Transporter Licenses
Section 401(a) of the Solid Waste Management Act requires that hazardous waste transporters picking up hazardous waste generated in this Commonwealth or received by any TSD in this Commonwealth be licensed by the Department. Section 505(e) of the Solid Waste Management Act mandates that each hazardous waste transporter shall file a penal bond with the Department as a condition of obtaining a license. The bond shall be in an amount determined by the Department, but not less than $10,000. The bond is conditioned upon compliance by the licensee with every requirement of the act, order of the Department or term or condition of the license. Forfeited collateral is used by the Department for payment of fines or civil penalties assessed by the Department for violations of law, or deposited into the Solid Waste Abatement Fund. Insurance to pay liability for spill cleanups is also required by State and Federal law.
In the rulemaking that became effective on January 16, 1993, (PK-4), parts of the then-existing transporter licensing regulations in § 263.13 (relating to licensing) were deleted inadvertently when the license application fees were amended. The Department is now reinserting most of the original text of § 263.13 to clarify the license requirements. An unnecessary recitation of statutory authority was deleted, and the need for additional information was clarified as suggested by the Independent Regulatory Review Commission (IRRC). Hazardous waste bonding requirements continue to be found at § 263.32.
Coincidentally, the United States Department of Transportation (US DOT) issued a preemption determination at approximately that time, which held that state penal bond requirements for transporters are an obstacle to interstate commerce because the bond requirement conflicts with the goal of state uniformity in the Hazardous Materials Transportation Act (HMTA) (49 U.S.C.A. §§ 5101--5127), 58 FR 58848 (December 11, 1992). The Commonwealth has not enforced the transporter bond requirement since that time. Transporter licenses have still been required under the statutory provisions, in a manner consistent with the inadvertently deleted regulations.
The Commonwealth and the Commonwealth of Massachusetts filed an appeal of the US DOT administrative preemption of state bond requirements in Federal court. On August 27, 1996, the United States Court of Appeals for the District of Columbia Circuit issued an opinion overruling US DOT's preemption of the state bonding requirements as an impermissible reading of Federal statutory authority under HMTA. Massachusetts v. United States Department of Transportation, 93 F.3d 890 (D.C. Cir. 1996).
The Department intends to implement the mandatory bond requirement of the Solid Waste Management Act as soon as the US DOT releases its final policy on state bond requirements. This is expected in the near future. Until then, the Department does not intend to enforce the bond requirement. At the time the bond requirement is reimplemented, the Department will notify existing licensees and applicants of the bond requirement and provide a reasonable time period for coming into compliance.
Waste Oil
The Board proposed to amend §§ 261.3 and 266.40 (relating to definition of hazardous waste; and applicability) to provide for a rebuttable presumption that waste oil which exhibits halogenated compounds has been mixed with hazardous waste solvents and therefore should be managed as hazardous waste. The existing regulations required that any waste oil that contains more than 1,000 ppm of halogenated compounds was regulated as a hazardous waste. As discussed in the Preamble to the proposed amendments, some machine oil coolants or other lubricants are manufactured with this level of halogens. It was not the intent of the amendments to include these.
The Board proposed to conform these regulations to the Federal program by allowing this presumption to be rebutted where the halogenated compounds are demonstrated to be from sources that are not wastes, such as original ingredients in the product from which the waste oil was generated. The final-form regulations are consistent with the proposed amendments, except that the nature of the demonstration required is clarified.
The Federal waste oil (used oil) rebuttable presumption is discussed in the Federal preamble for the corresponding Federal section in 40 CFR 261.3, which was published at 50 FR 49178 (November 29, 1985). One approach to demonstrating that waste oil is not mixed with hazardous waste is to show that the waste oil does not contain significant levels of halogenated hazardous constituents. The EPA believes that oil containing less than on the order of 100 ppm of any individual hazardous halogenated compound listed as a hazardous spent solvent (that is, EPA Hazardous Waste Numbers F001 and F002) should not be presumed to be mixed with spent solvent.'' See 50 FR 49178. Small quantities of halogenated compounds, such as no more than 100 ppm of any individual hazardous halogenated compound, are not considered significant levels.
The term ''significant concentrations'' of halogenated compounds has been added to the final amendments in § 261.3(a)(2)(iv). The Board has determined that it is not practicable to define this term numerically for all types of halogenated compounds that may be detected in waste oil. The rebuttable presumption under § 261.3 will be administered by the Department consistent with the discussion in the Federal preamble and EPA policy.
A final comment on waste oil management was received informally from IRRC as this rulemaking was prepared for final-form. IRRC suggested that § 261.5 (relating to conditionally exempt small quantity generators) be amended to allow recycling of waste oil mixed with CESQG waste at facilities that do not have hazardous waste management permits. The final-form regulations allow nonhazardous waste permitted facilities to store, process or treat CESQG hazardous waste with nonhazardous waste when that is authorized by the facility permit.
F. Benefits and Costs
Executive Order 1996-1 requires a cost/benefit analysis of the final regulations.
Benefits
Generators of hazardous waste and owners/operators of TSDs are required to submit biennial reports rather than quarterly reports concerning their hazardous waste management activities. The biennial report required by the amendments is identical to the one already required by the EPA. As a result, there will be a significant reduction in paperwork requirements and costs imposed on generators and owner/operators of TSDs.
Costs imposed on generators for the retention of records are reduced. The time generators and facilities must retain manifests, biennial reports and exception reports is reduced to 3 years instead of 20 years.
Costs associated with complying with the Module I requirements are reduced for TSDs receiving essentially the same hazardous waste from multiple generators. Owners/operators of TSDs are able to use a generic Module I report for multiple generators using essentially the same process to generate essentially the same hazardous waste. Thus, if the owner/operator submits a generic Module I application covering at least 6 generators, there will be a reduction in the application fee associated with submitting a Module I. No additional application fee applies to amending the generic Module I to include additional generators with a consistent hazardous waste.
Costs associated with the transportation of hazardous waste are reduced due to increased efficiencies in operation. First, transporters are able to use larger, more efficient containers because the proposal will allow transporters to combine containers of hazardous wastes with similar US DOT shipping codes into larger, more efficient containers at qualified in-transit storage facilities. Second, transporters will have greater flexibility in maximizing their loads because the in-transit storage period will be increased from 5 to 10 days.
There will be a reduction in the costs imposed on generators relating to the disposal of hazardous waste. The amendments allow generators of hazardous waste to treat their hazardous waste onsite pursuant to a PBR rather than a traditional permit. For generators able to take advantage of the PBR for treatment in tanks, containers or containment buildings, the costs associated with this treatment and possible disposal as a residual waste should be less than the costs associated with arranging for the offsite treatment or disposal of a hazardous waste.
Permitting costs imposed on generators of hazardous waste who reclaim their hazardous waste would be reduced. The amendments allow a generator to store waste for more than 90 days prior to onsite reclamation under a PBR rather than a traditional permit to authorize that storage.
The costs associated with the disposal of containers and tanks used for holding a hazardous waste will be reduced. The amendments allow any tank or container that was used to hold a hazardous waste being transported to a disposal or treatment site to be transported as a residual waste. The tank or container must be emptied and the residual managed in accordance with the Department's regulations.
Compliance Costs
In addition to the reduced costs discussed in this Preamble, there may be increased costs imposed on many small quantity generators of hazardous waste. The special exemptions in § 261.5 (relating to special requirements for hazardous waste generated by conditionally exempt small quantity generators) will be limited to individuals who generate no more than 100 kilograms of hazardous waste in a calendar month (CESQG). As a result, individuals who generate more than 100 but less than 1,000 kgs of hazardous waste in a calendar month (small quantity generators) will now be subject to all the applicable requirements of Chapters 262--265 and 270. This amendment to § 261.5 is necessary to conform with the Federal program at 40 CFR 261.5.
The Department has no data on which to base possible cost increases to these individuals. Many of the small quantity generators may be able to treat their waste on site under the final-form regulations, resulting in a net decrease in their operating costs. The regulations previously required that all hazardous waste be treated or disposed of at a permitted hazardous waste facility; therefore, costs for treatment or disposal will not increase as a result.
Compliance Assistance Plan
The Pennsylvania Chamber of Business and Industry and the Department will sponsor several public meetings in different areas of this Commonwealth to present and explain these new regulations. The Department will develop and provide written information as needed to facilitate the Chamber's efforts.
The Department will also provide individual assistance for regulated facilities through the regular visits of regional inspectors.
A special new program to assist small businesses in management of conditionally exempt small quantities of hazardous waste is designed to promote pollution prevention and proper waste management.
Paperwork Requirements
These final-form regulations require generators and owner and operators of TSDs to submit biennial reports concerning their hazardous waste management activities. Biennial reporting is needed for two reasons. First, having a reporting requirement is necessary for the Department's regulations to match the corresponding Federal requirements. Second, the information contained in the biennial report enables the Department to assess the Commonwealth's need for hazardous waste management facilities. The same biennial reports are currently required by the EPA.
Generators conducting onsite accumulation in tanks or containment buildings are required to have procedures and records for ensuring that the waste is emptied from the tank or containment building at least every 90 days. This enables both the generator and the Department to ensure that the onsite accumulation time limits are being observed. The recordkeeping and certification requirements for containment buildings are mandated by the EPA.
Owners and operators of drip pads in interim status are subject to several paperwork requirements. These requirements include a report (certified by a professional engineer) as to the measures necessary to bring the drip pad up to standards, a plan for bringing the drip pad up to standards and the submission of the final drawings of the drip pad. These requirements are mandated by the Federal program.
There are two new paperwork requirements that will be applicable to owners and operators of TSDs. First, the owner or operator is required to certify annually in the operating record that it has taken all necessary steps to reduce the toxicity and volume of any hazardous waste generated during treatment, storage or disposal. Second, if a TSD receives an unmanifested shipment of hazardous waste, the owner or operator of that facility would be required to submit to the Department an unmanifested waste report (EPA form 8700-13B). Adoption of both of these paperwork requirements conforms with Federal requirements.
Pollution Prevention
Two Federal waste minimization requirements have been added to the Department's regulations in these amendments. Changes to the information required for biennial reports in §§ 262.41, 264.75 and 265.75 (relating to biennial reports) require the same information on waste minimization required for EPA biennial reports. The owner or operator of a permitted TSD is required under § 264.73 (relating to operating record) to certify annually in its operating record that to the extent economically practicable, it has a program in place for reducing the toxicity and volume of wastes generated and that treatment, storage and disposal methods selected minimize threats to human health and the environment.
In addition, amended § 265.435 (relating to generator treatment) will allow generators to treat their wastes by permit-by-rule to reduce the toxicity or volume immediately after generation during the 90-day accumulation period.
G. Sunset Review
These final-form regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the final-form regulations effectively fulfill the goals for which they were intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. §§ 745.5(a)), on October 24, 1995, the Department submitted a copy of the proposed amendments to IRRC and to the Chairpersons of the House and Senate Environmental Resources and Energy Committees. IRRC informally expressed several objections or concerns with the final-form regulations. The Department voluntarily withdrew the rulemaking from consideration by IRRC on August 21, 1996, in order to address these concerns. No comments were received by either of the Standing Committees.
Typographical corrections have been made at §§ 264.193 and 265.193 (relating to secondary containment) as suggested by IRRC. These changes returned the regulations to the existing text. A clarifying change has been made to §§ 264.13 and 265.13 (relating to generic module 1 applications) allowing chemically and physically similar wastes from similar processes to qualify for the generic approval, as suggested by IRRC.
The amendments to the transporter license requirements in § 263.13 suggested by the Commission were made, as explained in Section E of this Preamble (under transporter licenses). A final amendment to § 261.5 suggested by IRRC was included to allow recycling of CESQG wastes within this Commonwealth at municipal and residual waste facilities. This suggested change to § 261.5 is discussed in Section E of this Preamble (under waste oil).
These final-form regulations were deemed approved by the House and Senate Environmental Resources and Energy Committee on Novembeer 4, 1996. IRRC met on November 7, 1996, and approved the final-form regulations in accordance with section 5(c) of the Regulatory Review Act.
I. Findings of the Board
The Board finds that:
(1) Public notice of the proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments received were considered.
(3) The modifications to the amendments do not enlarge the purpose of the proposed amendments published at 25 Pa.B. 4917.
(4) These regulations are necessary and appropriate for the administration and enforcement of the authorizing acts identified in Section C of this Preamble and in the public interest.
J. Order of the Board
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department of Environmental Protection, 25 Pa. Code Chapters 260--266 and 270, are amended by:
(1) Amending §§ 260.2, 261.3--261.6, 261.33, 261.34, 262.10, 262.12, 262.34, 262.40, 262.41, 263.10, 263.11, 263.20, 263.27, 263.30, 263.32, 264.11, 264.13, 264.71, 264.73, 264.75, 264.190, 264.250, 264.341, 264.343, 265.1, 265.11, 265.13, 265.71, 265.75, 265.190, 265.197, 265.310, 265.433, 265.447, 266.24, 266.30, 266.35, 266.40, 266.41, 266.43, 266.90, 266.91, 266.104, 270.11, 270.13, 270.31, 270.33 and 270.41;
(2) By deleting § 266.91; and by
(3) Adding §§ 260.11, 261.7, 263.13, 264.12, 264.76, 264.82, 264.500--264.505, 264.520--264.522, 264.600--264.603, 265.12, 265.76, 265.82, 265.200, 265.201, 265.435, 265.500--265.505, 265.520--265.522 and 270.60 to read as set forth in Annex A with ellipses referring to the existing text of the regulations.
(Editor's Note: The proposal to amend §§ 264.193, 265.193, 266.70, 270.44, 273.201 and 283.201 included at 25 Pa.B. 4917, has been withdrawn by the Board. The amendment of §§ 264.71, 265.71, 266.104, 270.60 and the deletion of § 266.91 was not included in the proposal at 25 Pa.B. 4917.)
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval and review as to legality and form as required by law.
(c) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(d) This order shall take effect immediately upon publication.
JAMES M. SEIF,
Chairperson(Editor's Note: A proposal to amend §§ 261.5, 262.10 and 265.1, amended in this document, remains outstanding at 26 Pa.B. 3801 (August 3, 1996).
(For the text of the order of the Independent Regulatory Review Commission relating to this document, see 26 Pa.B. 5766 (November 23, 1996).)
Fiscal Note: Fiscal Note 7-287 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF
ENVIRONMENTAL PROTECTION
Subpart D. ENVIRONMENTAL HEALTH
AND SAFETY
ARTICLE VII. HAZARDOUS WASTE MANAGEMENT
CHAPTER 260. DEFINITIONS AND
REQUESTS FOR DETERMINATIONS§ 260.2. Definitions.
The following words and terms, when used in this article, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Accumulated speculatively--A material is accumulated speculatively if it is accumulated before being recycled. A material is not accumulated speculatively if the person accumulating it can show that the material is potentially recyclable and has a feasible means of being recycled; and that--during the calendar year (commencing on January 1)--the amount of material that is recycled, or transferred to a different site for recycling, equals at least 75% by weight or volume of the amount of that material accumulated at the beginning of the period. In calculating the percentage of turnover, the 75% requirement is to be applied to each material of the same type (for example, slags from a single smelting process) that is, recycled in the same way (that is, from which the same material is recovered or that is used in the same way). Materials accumulating in units that would be exempt from regulation under § 261.3(e) (relating to definition of hazardous waste) are not to be included in making the calculation. Materials that are already defined as solid wastes also are not to be included in making the calculation. Materials are no longer in this category once they are removed from accumulation for recycling.
* * * * * Containment building--A hazardous waste management unit used to store or treat hazardous waste under Chapter 264, Subchapter T and Chapter 265, Subchapter T (relating to containment buildings).
* * * * * Coproduct--
(i) Material generated by a manufacturing or production process, or an expended material, of a physical character and chemical composition that is consistently equivalent to the physical character and chemical composition of an intentionally manufactured product or produced raw material, provided that the use of the material presents no greater threat of harm to human health or the environment than the use of the product.
(ii) The term only applies to one of the following:
(A) The material is to be transferred in good faith as a commodity in trade, for use in lieu of an intentionally manufactured product or produced raw material, without treatment that would not be required of the product or raw material. Sizing, shaping or sorting of the material will not be considered treatment for the purpose of this definition. The material shall actually be used on a regular basis.
(B) The material is to be used by the manufacturer or producer of the material in lieu of an intentionally manufactured product or produced raw material, without treatment that would not be required of the product or raw material. Sizing, shaping or sorting of the material will not be considered treatment for the purpose of this definition. The material shall actually be used on a regular basis.
* * * * * Drip pad--An engineered structure consisting of a curbed, free-draining base, constructed of nonearthern materials and designed to convey preservative kick-back or drippage from treated wood, precipitation and surface water run-on to an associated collection system at wood preserving plants.
* * * * * EPA manifest document number--The EPA 12 digit identification number assigned to the generator plus a unique five digit document number assigned to the manifest by the generator for recording and reporting purposes.
Elementary neutralization unit--A device which is used for neutralizing wastes which are hazardous wastes only because they exhibit the corrosivity characteristic defined in Chapter 261 (relating to criteria, identification and listing of hazardous waste) or are listed in Chapter 261 only for this reason; and which meets the definition of tank, container, transport vehicle or vessel.
* * * * * Facility--Contiguous land, and structures, other appurtenances and improvements on the land, used for treating, storing or disposing of hazardous waste. A facility may consist of several treatment, storage or disposal operation units; for example, one or more landfills, surface impoundments or combinations of them.
Fact sheet--A document that sets forth the principal facts, and the significant factual, legal, methodological and policy questions considered in preparing a draft permit that the Department finds is subject of widespread public interest or raises major issues, or a draft permit that incorporates a variance or requires an explanation.
* * * * * HWM unit--A contiguous area of land on or in which hazardous waste is placed, or the largest area in which there is a significant likelihood of mixing hazardous waste constituents in the same area. The term includes a containment building, surface impoundment, waste pile, land treatment area, landfill cell, incinerator, tank and associated piping and underlying containment system, and container storage area. A container alone does not constitute a unit; the unit includes containers and the land or pad upon which they are placed.
* * * * * Hazardous waste constituent--A chemical component of a waste or chemical compound which qualifies a waste as hazardous under Chapter 261, or which is listed as a hazardous waste or hazardous compound in Chapter 261.
Hazardous waste fuel--Hazardous wastes burned for energy recovery. The term includes fuel produced from hazardous waste by processing, blending or other treatment. A hazardous waste having less than 8,000 Btu/lb is not a fuel and may be burned only in a permitted hazardous waste incinerator.
* * * * * Hazardous waste number--The number assigned by the Department to each hazardous waste listed and to each hazardous waste characteristic identified in Chapter 261.
Host municipality--A municipality, other than a county, where a qualifying facility is located, either in whole or in part, within its established corporate boundaries.
* * * * * Identification number--The number either assigned by the EPA to each generator, transporter and treatment, storage or disposal facility or provisionally assigned by the Department.
* * * * * In-transit storage--The storage of hazardous waste by the transporter at a transfer facility for no more than 10 days if the hazardous waste is manifested and remains in containers that conform to the requirements of §§ 262.30 and 262.33 (relating to packing, labeling and marking; and placarding).
* * * * * Miscellaneous unit--A hazardous waste management unit where hazardous waste is treated, stored or disposed of and that is not a container, tank, surface impoundment, pile, land treatment unit, landfill, incinerator, boiler, industrial furnace, underground injection well with appropriate technical standards under 40 CFR Part 146 (relating to underground injection control program: criteria and standards), containment building, corrective action management unit or unit eligible for research, development and demonstration permit under § 270.4 (relating to research, development and demonstration permits).
* * * * * Permit-by-rule--A provision of this article whereby a facility or activity is deemed to have a hazardous waste management permit if it meets the applicable requirements of § 265.432, § 265.433, § 265.435 or Chapter 266, Subchapters F, G, H or I.
* * * * * Product--A commodity that is the sole or primary intended result of a manufacturing or production process. The term includes a commodity which is the sole or primary intended result of an intentional change in, or additional steps in, the manufacturing process. A manufacturer may operate more than one manufacturing process at a location. The term does not include materials that do not meet industry or manufacturing quality specifications or are otherwise off-specification, unless those materials are being returned to the producer, manufacturer or distributor for correction or replacement. Off-specification materials that are not products may be coproducts. Materials generated by a manufacturing process that do not meet the intended product specifications may be products if they meet the specifications for another product produced by the same industry.
* * * * * Sludge--Solid, semisolid or liquid waste generated from a municipal, commercial or industrial waste treatment facility or wastewater treatment plant, water supply treatment plant or air pollution control facility, exclusive of the treated effluent from a wastewater treatment plant.
* * * * * Small quantity generator--A generator who generates less than 1,000 kg of hazardous waste in a calendar month.
* * * * * Treatability study--
(i) A study in which a hazardous waste is subjected to a treatment process to determine one or more of the following:
* * * * * (D) The efficiency of a treatment process for a specific waste.
* * * * * Waste oil--Oil refined from crude oil or synthetically produced, used, and as a result of the use, contaminated by physical or chemical impurities.
* * * * * § 260.11. References.
The list of publications promulgated under RCRA at 40 CFR 260.11(a) (relating to references) is incorporated by reference. Additions, revisions or deletions to this list adopted by the EPA are incorporated into this article and are effective on the date established by the Federal regulations, unless otherwise established by this article.
CHAPTER 261. CRITERIA, IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
Subchapter A. GENERAL § 261.3. Definition of hazardous waste.
(a) Except as provided in subsection (h), a solid waste is a hazardous waste if:
(1) It is not excluded from regulation as a hazardous waste under § 261.4 (relating to exclusions).
(2) It meets one or more of the following criteria:
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