RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 271--273, 275, 277, 279, 281,
283, 285 AND 287]
Sewage Sludge; Municipal Waste; and Residual Waste
[27 Pa.B. 521] The Environmental Quality Board (Board) by this order adopts amendments to the Department of Environmental Protection's (Department's) municipal waste regulations in Chapters 271--273, 275, 277, 279, 281 and 283 to implement section 104(18) of the Solid Waste Management Act (SWMA) (35 P. S. § 6018.104(18)). The Board also is adopting amendments to the Department's residual waste regulations in Chapter 287 (relating to residual waste managment--general provisions) to improve and clarify the existing regulations.
This order was adopted by the Board at its meeting of October 15, 1996.
A. Effective Dates
The amendments to the municipal waste regulations will go into effect January 25, 1997, with the following exceptions:
(1) The deletion of §§ 275.101--275.107, 275.301 and 275.401 will go into effect May 27, 1997. The deletion of the surface land disposal requirement, §§ 275.501--275.531 and the sewage sludge distribution program requirements, §§ 275.601--275.614, will go into effect January 25, 1997. The remainder of Chapter 275, as amended by this rulemaking, will remain in effect for the limited purposes of regulating the operation and enforcement of individual solid waste permits issued under Chapter 275.
(2) The deletion of § 271.232 will go into effect May 27, 1997.
(3) The addition of Chapter 271, Subchapter J (relating to beneficial use of sewage sludge by land application) will go into effect May 27, 1997, with the exception of §§ 271.902(e) and (f) and 271.903 (relating to permits and direct enforceability; and operation under existing permits and beneficial use orders), which will go into effect January 25, 1997.
The amendments to the residual waste regulations, Chapter 287, will go into effect January 25, 1997.
B. Contact Persons
For further information contact William F. Pounds, Chief, Division of Municipal and Residual Waste, Bureau of Land Recycling and Waste Management, P.O. Box 8471, Rachel Carson State Office Building, Harrisburg, PA 17105-8471, (717) 787-7381, Stephen Socash, Chief, Permitting Section, Bureau of Land Recycling and Waste Management, P.O. Box 8471, Rachel Carson State Office Building, Harrisburg, PA 17105-8471, (717) 783-7381, or Kristen M. Campfield, Assistant Counsel, Bureau of Regulatory Counsel, P.O. Box 8464, Rachel Carson State Office Building, 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). This document is available electronically through the Department's Web site (http://www.dep.state.pa.us).
C. Statutory Authority
The final rulemaking is being made under the authority of the following:
The SWMA (35 P. S. §§ 6018.101--6018.1003), which in section 105(a) (35 P. S. § 6018.105(a)) grants the Board the power and duty to adopt the rules and regulations of the Department to carry out the provisions of the SWMA; and which in section 104(18), as amended by the act of July 11, 1989 (P. L. 331, No. 55) (Act 55), authorizes general permits for the processing and beneficial use of municipal waste.
Sections 5(b), 304 and 402 of The Clean Streams Law (35 P. S. §§ 691.5(b), 691.304 and 691.402), which in section 5(b) grants the Department the authority to formulate, adopt, promulgate and repeal the rules and regulations as are necessary to implement the provisions of the act; which in section 304 grants the Department the power to adopt, prescribe and enforce the rules and regulations as may be deemed necessary for the protection of the purity of the waters of this Commonwealth, or parts thereof, and to purify those now polluted, and to assure the proper and practical operation and maintenance of treatment works approved by the Department; and which in section 402 grants the Department the authority to require, by rule or regulation, that activities be conducted under a permit or other conditions established by the Department whenever the Department finds that the activity creates a danger of pollution of the waters of this Commonwealth or that regulation is necessary to avoid pollution.
The Municipal Waste Planning, Recycling and Waste Reduction Act (53 P. S. §§ 4000.101--4000.1904), which in section 302 (53 P. S. § 4000.302) gives the Board the power and duty to adopt the regulations of the Department to accomplish the purposes and to carry out the provisions of the act.
The Pennsylvania Used Oil Recycling Act (58 P. S. §§ 471--480), which in section 10 (58 P. S. § 480) grants the Department the authority to institute civil actions under regulations issued under the act.
Section 1917-A of The Administrative Code of 1929 (71 P. S. § 510-17), which authorizes and requires the Department to protect the people of this Commonwealth from unsanitary conditions and other nuisances, including any condition which is declared to be a nuisance by any law administered by the Department; and section 1920-A (71 P. S. § 510-20), which grants the Board the power and duty to formulate, adopt and promulgate rules and regulations.
D. Background and Summary
Municipal Waste Regulations
For 27 years, the Commonwealth has allowed sewage sludge to be land applied in one manner or another. Until 1988, the Department regulated the land application of sewage sludge under individual permits for individual sites. In 1988, § 271.232 (relating to beneficial use) was promulgated. Under that section, the Department may issue an order to a person or municipality allowing the beneficial use of sewage sludge. This process enables a person or municipality that demonstrates that its sewage sludge meets a certain quality to land apply it at sites not specified in the beneficial use order. The process is more time and cost efficient than the issuance of individual permits under Chapter 275, but no longer sufficient in light of the 1989 amendment to the SWMA. That year, the SWMA was amended by Act 55, which amended section 104(18) of the SWMA to require that the Department establish waste regulations to effectuate the beneficial use of municipal and residual waste, including regulations for the issuance of general permits for any category of beneficial use or processing of municipal or residual waste on a regional or Statewide basis.
After Act 55 was passed, the Department began examining alternatives to meet this duty. On July 20, 1993, the Pennsylvania Septage Management Association submitted a petition to the Board requesting that a specific rulemaking be required of the Department in order to streamline the permitting process for land application permits. The Department responded that it agreed in concept to the petitioner's request, but that a better approach existed than that suggested by the petitioner. The Board agreed with the Department and, at its January 18, 1994, meeting, directed the Department to draft proposed regulations addressing this issue. The Department presented the proposed regulations to the Board on July 19, 1994, at which time the Board approved them. The proposed regulations were published in the Pennsylvania Bulletin on October 1, 1994. This rulemaking package contains the final regulations and regulatory amendments.
Proposed Chapter 271, Subchapter I (relating to beneficial use) and Subchapter J implement section 104(18) of the SWMA. Subchapter I authorizes the issuance of general permits for the processing or beneficial use, or both, of municipal waste. It does not, however, authorize the issuance of general permits for the processing or beneficial use of infectious or chemotherapeutic waste. Additionally, it does not authorize general permits for the beneficial use of sewage sludge by land application; these are authorized in Subchapter J.
Subchapter J authorizes individual and general permits for the land application of sewage sludge. Its structure and overall content have been revised to mirror more closely the format and requirements in the EPA Part 503 regulations, whereas the proposed regulations were modeled on the residual waste general permit format. The Federal regulations developed risk based numbers that address sewage sludge quality and cumulative metal loading rates for land applications. The definitions, pollutant limits, management practices, pathogen and vector attraction reduction requirements, monitoring requirements, and recordkeeping requirements in the final regulations are similar, and in some cases identical, to the Part 503 requirements. Instances in which Subchapter J is more stringent than Part 503 are explained in this section of the Preamble. The fee for application for coverage under a Land Application of Sewage Sludge permit will be $500.
Residual Waste Regulations
The Board is revising Chapter 287 of the residual waste regulations, which were promulgated in 1992, to address a few relatively minor issues relating to the general permits program, to clarify obligations for permit-by-rule facilities, to add new categories of activities to the permit-by-rule section and to streamline the procedures for allowing the beneficial use of coal ash. Based on the Department's experience in implementing the programs affected by these changes since 1992, the regulations will improve the overall effectiveness of these programs.
The changes associated with the general permits program will provide consistency in the implementation of general permits between the municipal waste and residual waste programs. In addition, the regulations allow mixtures of residual and municipal wastes to be managed under one general permit. The regulations no longer include a ''me too'' process for persons to request consideration of an application during the public comment period of the original application. Instead, persons may apply for approval to operate under a general permit after the permit is issued. The ''me too'' process was removed because it caused conflicts between applicants with regard to their timeliness for review and approval.
The permit-by-rule section was amended to include container processing and empty drum reconditioning facilities. In addition, the Board clarified its regulatory position on storage impoundments that are associated with processing facilities, on mechanical processing facilities and on transfer facilities that collect used oil. For storage impoundments that are associated with processing facilities, the regulations represent a clarification with regard to the implementation of water quality monitoring plans and the application of the storage requirements of Chapter 299 (relating to storage and transportation of residucal waste). Storage impoundments associated with permits-by-rule are on the same transition schedule for compliance with the regulations as all other storage impoundments. The final-form regulations provide written notification for these impoundments with regard to the submission of water quality monitoring plans. Under the residual waste regulations that became effective on July 4, 1992, all operators of storage impoundments must implement a water quality monitoring plan by no later than July 4, 2002.
The regulations have been extensively revised to simplify and streamline the process for allowing the use of coal ash for beneficial purposes at coal mining activity sites and at abandoned coal and abandoned noncoal surface mine sites. The regulations eliminate many of the design standards and replace them with performance standards. The review of a beneficial use request will be considered as part of the review of a reclamation plan. In addition, a generator of coal ash will have the opportunity to seek certification from the Department for multiple beneficial uses of the ash.
Advisory Committees
This regulatory package has been developed with input from several of the Department's advisory committees.
For the municipal waste portions of the package, the Department worked closely with the biosolids subcommittee of the Solid Waste Advisory Committee (SWAC), as well as the full SWAC. The Department also worked with the Agricultural Advisory Board, the Pennsylvania Water Environment Association and the Pennsylvania Septage Management Association. Each of these groups received drafts of the regulations, provided written or oral comments, or both, to the Department, and met with the Department either at a plenary meeting, through a subcommittee, or in combined meetings, to discuss the regulations.
The Department worked closely with the SWAC on the residual waste portions of this package. Additionally, the coal ash regulations were discussed with the Mining and Reclamation Advisory Board (MRAB). The MRAB recommended these regulations proceed to final rulemaking at its meeting on May 29, 1996.
The Department considered all comments received from these organizations and incorporated many of them into these final regulations. At its July 11, 1996 meeting, SWAC recommended that this final rulemaking be submitted to the Board.
Sewage sludge final-form regulations more stringent than Federal standards
The Federal Environmental Protection Agency (EPA) promulgated Standards for the Use or Disposal of Sewage Sludge (Part 503) at 58 FR 9387 (February 19, 1993). Part 503 is codified at 40 CFR Part 503. The Federal rule applies to land application, surface disposal and incineration of sewage sludge. Subchapter J applies only to land application of sewage sludge.
Part 503 allows a generator of sewage sludge to obtain a permit to land apply sewage sludge through one of several avenues, and does not require a land applier of residential septage to obtain a permit. See 40 CFR 503.3. Subchapter J of these final-form regulations requires that persons generating sewage sludge to be land applied, and land appliers of residential septage, operate under an individual or general Land Application of Sewage Sludge permit issued by the Department. See § 271.902. Alternatively, persons may operate under individual permits issued under Chapter 275 (relating to land application of sewage sludge) for a limited period of time. The SWMA requires a permit prior to processing or disposing of municipal waste. The SWMA directs the Department to develop regulations to implement a program for the beneficial use of municipal waste, including general permits. This includes general permits for the land application of sewage sludge, including residential septage.
Part 503 allows a person to sell or give away sewage sludge in bags or other containers regardless of the quality of the sewage sludge, as long as it meets the EPA's minimum quality criteria for land application. See 40 CFR 503.11(j) and 503.13(a)(1). The EPA assumed that a homeowner would calculate and keep track of the lifetime metal loading rate and follow restrictions on the bag or other container for home garden use. Some problems, such as odors, have occurred with the bagging of this variable quality sewage sludge; therefore the EPA is considering changes to this portion of the regulations. Subchapter J is more stringent in that it only authorizes exceptional quality (EQ) sewage sludge to be distributed in this manner. See § 271.911(b)(3) (relating to special requirements). The EQ sewage sludge is fertilizer-like. It can be marketed or used without restrictions. Requiring this sewage sludge to be EQ diminishes the potential for adverse effects upon human health and the environment.
Part 503 describes an EQ sewage sludge that is exempt from general requirements and management practices if it meets certain pollutant concentration requirements, pathogen reduction standards and vector attraction reduction standards. See 40 CFR 503.10(b)(1). Subchapter J adds additional requirements. First, the sewage sludge must, prior to use, continuously meet the pollutant concentrations identified in Part 503 as well as a concentration limit for PCBs added in the regulations. See § 271.911(b)(1). Second, the sewage sludge must be nonliquid. Id. The municipal waste regulations already contain a definition of ''liquid waste,'' which will be used to determine if sewage sludge is nonliquid. Third, the sewage sludge must be nonrecognizable as human waste. Id. Additionally, the sewage sludge must be applied at the agronomic application rate. See § 271.911(b)(2).
There are several explanations for these differences. EPA assumed in the risk assessment for Part 503 that EQ sewage sludge will not vary in quality and is a valuable product which is sold and for which over-application will not occur. The EPA concluded that no site or other restrictions are necessary. The Department's experience demonstrates that these assumptions are not always true.
Liquid sewage sludge has the potential to be much more variable than a nonliquid sludge, particularly with respect to pathogen and vector attraction reduction. Limiting the EQ sewage sludge to nonliquid products will reduce the potential for adverse effects to human health, which are caused by using sewage sludge that may not continuously meet the required pathogen and vector reduction standards. In addition, contrary to the EPA assumptions, liquid sewage sludge is not fertilizer-like and due to its variability is not always marketed. Because of the low nitrogen and high water content, it may be necessary to bring 40 times more liquid sludge to a site to get the same amount of nutrients supplied by one load of liquid commercial fertilizer. This intense traffic and the management practices associated with land applying the huge volumes of liquid require the more intensive management techniques that are necessary for non-EQ sewage sludges.
The requirement that the EQ sewage sludge be nonrecognizable as human waste is necessary to prevent adverse aesthetic impacts. There are no site restrictions required for the land application of EQ sewage sludge, but experience has shown that offensive odors can evoke with some nonliquid sludges meeting the EQ standards. By treating the waste as nonrecognizable, the EQ sewage sludge can be marketed and safely used as a fertilizer.
The requirement that the EQ sewage sludge be applied at the agronomic rate is necessary to prevent the over-application of nutrients and to prevent the land application operations from becoming a disposal facility, especially if the sludge is not purchased by the farmer. The EQ sewage sludge contains nitrogen that could cause surface and groundwater pollution problems if over applied. The final-form regulations allow the agronomic rate requirement to be altered for land reclamation activities.
Subchapter J adds the requirement for land application of all qualities of sewage sludge that they must not be applied at a rate greater than the agronomic rate, unless approved by the Department for land reclamation activities. See § 271.911(b)(2) and § 271.915(f) (relating to management practices). Part 503 has no such requirement. As explained above, this requirement prevents over application of nutrients and prevents a land application site from becoming a disposal facility.
Part 503, 503.12, contains general requirements for land application of sewage sludge. These apply to all land application activities except those involving the EQ sewage sludge. The counterpart to this section is found in § 271.913 (relating to general requirements), which contains several additional requirements not found in the Federal regulations.
The first of these is § 271.913(d), which requires that a reclamation activity be permitted or otherwise approved by the Department in order for a person to land apply sewage sludge to a reclamation site.
The second is found in § 271.913(e), which requires that a person operating under a Land Application of Sewage Sludge permit issued under Subchapter J obtain written consent of the owner of the land upon which the sewage sludge will be land applied prior to land applying it. This is a common sense requirement that derives from existing regulations requiring landowner consent for municipal waste processing or disposal activities.
The third is found in § 271.913(f), which requires that a person provide the current occupant of the land upon which sewage sludge application will occur with a user instruction sheet at least 7 days prior to land applying sewage sludge for the first time. This also is a common sense requirement which will help educate the occupant as to the nature of the land application activity. It is also consistent with the requirement in Part 503, 503.12(h), that the person applying sewage sludge give the owner or lease holder notice and necessary information to comply with Part 503. Certain land application practices, for instance, could require the occupant to post signs restricting access to the site.
The fourth is found in § 271.913(g), which requires that a person who prepares sewage sludge, or a land applier of residential septage, give appropriate notice to the adjacent landowners, the county conservation district and the Department prior to the first application of sewage sludge at a particular location. Notice may be performed by personal delivery or first class mail and, for adjacent landowners, by posting at the site.
The adjacent landowner requirement was added, in part, to address concerns expressed by members of the general public who live near land application sites. Notification will familiarize adjacent landowners with any access restrictions that may apply to the operation and to provide them with information on whom they should contact if questions arise or problems occur at the site. This is the only ''public notice'' provided prior to the land application of sewage sludge.
County conservation district notification will benefit the Commonwealth because the districts are expected to play an increasingly important role in working with the Department to implement the land application program. It is anticipated that the districts will assist permittees in locating acceptable sites, and that all sites that receive sewage sludge will be covered by a soil conservation plan that the districts usually prepare. It is also projected that the districts will assist the Department in increasing public acceptance of the program at a local level.
Notification to the Department is necessary in order for the regional office to maintain a database of site users. This database is to provide future land appliers with information on who previously used the site so they can determine the cumulative pollutant loading that has occurred.
The fifth is found in § 271.913(h), which requires the person who prepares the first sewage sludge that is applied at a particular location, or the first septage hauler, to obtain a background soil chemical analysis for pH and for the constituents listed in the tables in § 271.914(b)(relating to pollutant limits), unless the sewage sludge is EQ. This analysis provides the landowner or farmer, or both, with baseline information at the site, in the event that questions on the site operation occur in the future. No other soil analyses are required and it is anticipated that many sites will have this type of information available because annual soil analyses are required under the current regulations.
The final difference in this section is found in § 271.913(m), which adds ''equitable owner'' to the list of persons (legal owner or lease holder) to whom the person who applies sewage sludge must give necessary information to comply with Subchapter J. This was added in order to make the requirement comprehensive.
Part 503.13 addresses pollutant limits. It contains four tables which are central to determining the quality of sewage sludge, the uses of sewage sludge and the amounts of sewage sludge that may be land applied. The counterpart to this section is § 271.914. This section is no more stringent than the Federal regulation except as follows:
Section 271.914 requires that the cumulative pollutant loading information (that is, the cumulative levels of pollutants applied to the land over time) be tracked for all sewage sludge except the EQ sewage sludge, whereas Part 503 exempts sewage sludge that falls below the Table 3 levels regardless of whether the EQ pathogen reduction requirements and vector attraction reduction requirements are met. The EPA assumed that it would take 100 years for the cumulative pollutant loading rates to be reached at a site if the sewage sludge pollutant concentrations were below the levels in Table 3. The Department's calculations indicated that the number of years is 20, not including sewage sludge that may already have been applied to a site under the current land application program. To prevent the overloading of farmland with metals, this simple recordkeeping requirement is necessary.
Additionally, § 271.914 reflects the Pennsylvania requirement that sewage sludge sold or given away in a bag or other container must be EQ sewage sludge, that is, it must not exceed the pollutant concentrations of Table 3. Accordingly, Table 4 of the EPA's Part 503 is unnecessary and has been eliminated from this rulemaking.
Finally, Table 1 in § 271.914(b) states a ceiling concentration level (the level above which no sewage sludge can be land applied) for PCBs, and Table 3 states a pollutant concentration level (the level not to be exceeded for EQ sewage sludge) for PCBs. The PCBs are not restricted in Part 503. The 8.6 mg/kg level established for Table 1 and the 4 mg/kg level established for Table 3 are based on risk assessment analyses. In the near future, the EPA is expected to publish similar PCB pollutant concentrations.
Part 503, 503.14, contains management practices for land application of non-EQ sewage sludge. The counterpart to this section is found in § 271.915, which contains several requirements not found in the Federal regulations.
To begin with, § 271.915(a) prohibits sewage sludge from being land applied if it is likely to adversely affect a Federal or Pennsylvania endangered species or its listed critical habitat. The Federal regulation only concerns the Federal protections. This was added to protect Pennsylvania's threatened and endangered species and their habitat.
Section 271.915(c) contains the following isolation distances not contained in the Federal regulation:
Section 271.915(c) prohibits sewage sludge from being applied within 100 feet of a perennial stream, an exceptional value wetland, or the edge of a sinkhole. This distance is necessary to prevent direct runoff of sewage sludge into surface waters of this Commonwealth. This distance is taken from recommendations in the Department's Manure Management Manual to prevent physical runoff of waste into surface water. This distance is especially important considering the final-form regulations allow land application to occur on slopes up to 25% for agricultural activities and 35% for land reclamation activities.
Section 271.915(c) prohibits sewage sludge from being applied within 300 feet of a water source (such as, drinking water well), or within 300 feet of an occupied dwelling unless landowner consent is obtained. The distance from the water source is necessary to protect drinking water supplies. No hydrogeologic or soil information is required in the final-form regulations, so the setback provides a buffer or mixing zone in the event that excessive drainage, fractures or other features that exist at the site may provide a direct conduit to groundwater. The 300 foot distance from occupied dwellings is necessary to prevent noise, fugitive dust, excessive traffic and odors from affecting the surrounding community. The Part 503 implementing guidance indicates that buffer zones should be established based on the conditions at the particular site. Since these regulations do not require site-specific permits, these minimum distances, which have been successfully used for the past 8 years, will provide the necessary protection.
At the request of the Department's Agricultural Advisory Board, § 271.915(c) also contains language protecting a land application operation from future changes in distances to occupied dwellings and water sources that occur after adjacent landowner notification is given.
Section 271.915(c) also prohibits sewage sludge from being land applied within 11 inches of the seasonal high water table. Soils with less than 11 inches between ground level and the seasonal high water table are classified as hydraulic or wetland soils, and the management practices would need to be intensified significantly for them. This distance was also recommended by the Agricultural Advisory Board.
Section 271.915(d), (e) and (g) contain slope, pH and nitrogen restrictions not mentioned in the Federal regulations. The regulation includes maximum slopes of 25% for agricultural utilization and 35% for land reclamation unless otherwise approved by the Department. It is necessary to limit slopes to prevent the physical runoff of sewage sludge into surface water. The soil pH is required to be at least 6.0, unless otherwise approved by the Department. The pH is necessary to make sure that the crop to be grown can meet the expected yield that is used in the annual nitrogen application rate calculations. The regulation indicates that if the volume of manure at the farm is adequate to supply crop needs, then sewage sludge should not be applied. This is necessary to prevent the over application of nutrients and to be in compliance with other nutrient management activities at the site.
Section 271.915(h) contains requirements for sampling and analyses procedures and for calculating the agronomic rate, the cumulative pollutant loading rate and the annual whole sludge application rate. These were added to clarify the procedures.
Section 271.915(j) requires that persons land applying sewage sludge satisfactorily complete a training course. This was written to add an extra element of quality assurance. Since a site specific permit is not required, this training is necessary to help all persons understand the regulations. It is anticipated that this will significantly reduce the number of violations and compliance actions taken by the Department, which may result in more local acceptance of the program. This concept was recommended by the Department's Solid Waste Advisory Committee.
Section 271.915(k) requires the person land applying sewage sludge to display the permit number on the vehicle used in the operation. This will allow the Department and the public to identify rapidly the sewage sludge generator or residential septage land applier, and will allow people questioning the operation to check the permit without involving the Department.
Finally, § 271.915(l) requires that nonorganic objects be removed prior to spreading residential septage. Part 503 merely includes ''screening'' in the definition of sewage sludge, but does not directly require removal of non-organic materials from residential septage. The requirement in § 271.915 responds to public complaints and concerns about foreign objects being left on the land after septage land application. These objects may blow off the site and cause a hazard to children and wildlife.
Section 271.919 (relating to reporting) contains reporting requirements. Subchapter J is less stringent than the Federal rule in that reports need only be submitted if requested, but it includes a requirement not found in the Federal rule, that a person shall notify the Department of when and where it is land applying sewage sludge if so requested by the Department. This requirement was added to buttress the Department's monitoring capabilities.
Section 271.920 (relating to inspection) has no counterpart in the Federal rule. It is also added to buttress the Department's monitoring capabilities. It provides that Department representatives shall have access to areas in which activities covered by the Land Application of Sewage Sludge permit are occurring, and shall have the right to take samples. This requirement derives from section 608 of the SWMA.
Section 271.933 (relating to pathogens) describes the various options for reducing pathogens in sewage sludge before it is land applied. This section differs only slightly from the Federal regulation by requiring residential septage to be stabilized before land application, whereas the Federal regulation allows raw, unstabilized septage to be applied. This will help ensure prevention of odors, pathogens and vector problems associated with the disposal of raw human waste.
Section 285.225 (relating to transportation of residential septage) requires that all septage haulers register with the Department and include an identification number on the transporting vehicle. This was a recommendation of the Pennsylvania Septage Management Association to reduce illegal disposal which is significantly undercutting haulers operating in compliance with the regulations. The registration and identification number will assist the Department with compliance monitoring activities and will increase accountability of the haulers.
E. Summary of Comments and Responses on the Proposed Rulemaking
Municipal Waste Regulations
Notice of proposed rulemaking was published at 24 Pa.B. 4975 (October 1, 1994). The proposal set forth a 90-day public comment period which was extended because of the Legislative sine die period and concluded on January 23, 1995.
During the public comment period, the Department held three public informational meetings (Pittsburgh, King of Prussia, Harrisburg) and six public informational workshops (Monroeville, Meadville, Williamsport, Wilkes-Barre, Conshohocken and Harrisburg). The Board held three public hearings (Pittsburgh, King of Prussia, Harrisburg).
The public meetings were well attended, averaging about 30 people at each. The workshops, which were held in the evenings, were well attended in Pittsburgh, Williamsport and Harrisburg, with poor attendance in the other three regions. The workshops were held in an effort to gain more input from the public, but the attendees were primarily sewage sludge haulers, consultants and municipal authorities.
The Board and Department received written comments from 174 individuals or groups, and 29 individuals presented testimony at the public hearings. The issue of most interest was the proposed changes to allow for the land application of sewage sludge under a general permit.
The Board and the Department considered the comments received at the public hearings, meetings and workshops and the written comments in formulating the final amendments to these regulations. The Department has completed an intensive review of the comments, and has prepared a comment and response document that addresses each comment on the proposed regulations.
The following is a summary of major comments received and changes which have been made to the proposed rulemaking as a result. The summary is listed in the same order as the proposed regulations found at 24 Pa.B. 4975.
1. Definitions--Transfer facility--§ 271.1 (relating to definitions)
The Board received several comments about the revisions to the definition of ''transfer facility.''
The Board revised the definition of ''transfer facility'' to be identical to that in the SWMA and in the residual waste regulations. In so doing, the Board eliminated the proposed language that specified that a facility at which municipal waste is stored on a parked municipal waste transportation or collection vehicle for less than 24 hours was not a transfer facility. Too many variables exist to codify this exception, but the intent of the proposed language will be carried over into the implementation of the regulations. Generally, when waste is stored for less than 24 hours on a parked transportation or collection vehicle, the facility will not be deemed to be a transfer facility. For instance, the Department does not intend to treat a motel parking lot at which one waste truck parks overnight as a transfer facility. Similarly, a vehicle used by a septage hauler parked at his place of business overnight may not require a transfer facility permit. However, there are exceptions. One example is an area at which numerous vehicles storing municipal waste park continuously, each for less than 24 hours. This may well be considered a transfer facility.
2. Permit-By-Rule--§ 271.103 (relating to permit-by-rule for municipal waste processing facilities other than for infectious or chemotherapeutic waste; qualifying facilities; general requirements)
a. Septage treatment facilities
The Board received comments suggesting clarification of the discharge requirements.
The Board revised this permit-by-rule, subsection (e), slightly to clarify that the facility must have a permit issued by the Department under The Clean Streams Law for the facility's wastewater treatment process or a permit issued by the Department's waste management program, or the discharge must be connected to a public sewer.
b. Mechanical processing facility
The Board received several comments about the weight limitations as they would apply to the processing of sewage sludge.
The Board revised the regulation, subsection (g), to specify the materials for which this permit-by-rule is available. They are uncontaminated rock, stone, gravel, brick, block and concrete from construction activities.
c. Yard Waste Composting Permit-By-Rule
The Board received various comments on the incorporation of the Department's guidelines for yard waste composting into the proposed permit-by-rule for yard waste composting.
The specific requirements of the guidelines that were included in the proposed language have been eliminated and replaced in § 271.103(h) with a cross reference to the Department's guidelines in order to be less prescriptive. In addition, a size limit of 5 acres has been placed on activities that may qualify for this permit-by-rule because operation of a larger facility creates the potential for impact on surrounding areas. The National Compost Council indicates that areas greater than 5 acres require more intensive management practices. These larger sites are better managed under an individual or general permit.
d. Bagged sewage sludge, horticultural and turf grass production; and distribution programs
The Board received various comments on these proposed permit-by-rule provisions.
These regulations, proposed § 271.103(h)--(j), have been eliminated because the activities are covered in the revised Subchapter J.
3. Minimum Penalties--§ 271.413 (relating to assessment of penalties--minimum penalties)
The Board received conflicting comments about civil penalties. Some reflected that the Department should be strict about enforcing its penalty provisions; others indicated that mandatory civil penalties were excessive in some instances.
The mandatory civil penalties specifically relating to the land application of sewage sludge, proposed in § 271.413(e), (f) and (j), have been modified into discretionary civil penalties in order to allow flexibility for the Department to prioritize enforcement actions based on the human health and environmental impacts of land application activities in the context of activities and facilities regulated under the water quality management regulatory program. The civil penalty proposed in subsection (g), for failure to submit a sewage sludge biennial report, has been eliminated because the report requirement in § 271.901 (relating to purpose and applicability) has been eliminated.
4. Mixing Municipal and Residual Wastes--§§ 271.811(e) and 287.601 (relating to authorization for general permit; and scope)
The Board received comments asking for clarification of the proposed regulations concerning the mixing of municipal and residual wastes under general permits.
In the municipal waste regulations, the Board has amended § 271.811(e) authorizing the beneficial use of mixtures of municipal and residual wastes, and has deleted the provisions concerning on-farm composting of mixtures of certain materials with food processing waste or agricultural waste. The new subsection covers these mixtures. Corresponding changes have been made to the residual waste regulations in § 287.601.
5. Land Application of Sewage Sludge--Subchapter J--§§ 271.901--271.934
a. Adopt the Federal regulations verbatim
The Pennsylvania Water Environment Association and their members, along with several sewage treatment facilities, commented that they would like to see the Part 503 regulations adopted with no additional standards.
The final-form regulations closely mirror Part 503 regulations. The Board has included the Federal sewage sludge quality requirements for metals and pathogen and vector attraction reduction as part of the final-form regulations. The final-form regulations for the most part have adopted the Federal definitions.
While the final-form regulations mirror the technical requirements of the Part 503 regulations, the Board has determined that certain management practices are necessary to address compelling social and aesthetic concerns that were not considered in the risk assessment used to develop Part 503. These practices are common sense practices that should apply to all land applications of sewage sludge.
In addition, the final-form regulations delete the permit application sections of Chapter 275, because sewage sludge land application permits will now be issued under Chapter 271, Subchapter J which authorizes individual and general Land Application of Sewage Sludge permits to be issued by the Department. Sewage treatment facilities and septage haulers can obtain an individual permit, or apply for coverage under the general permit under Subchapter J, when the permit is completed by the Department and notification of availability of its issuance is published in the Pennsylvania Bulletin. Due to the fact that the general permit is initiated and issued by the Department, the application requirements are no longer identified in the regulations but will be identified in the general permit, which will be made available for public comment in draft form soon after Subchapter J becomes effective.
Except for §§ 271.902(e) and (f), and 271.903, which become effective immediately, Subchapter J will become effective May 27, 1997. In the interim, Chapter 275 will remain available for issuance of individual permits. When Subchapter J becomes effective, new applicants will apply for coverage under a Land Application of Sewage Sludge permit. Operators with Chapter 275 permits or beneficial use orders will be required to transition into the new permit system over time, in § 271.903.
A person operating under a Land Application of Sewage Sludge permit may, of course, operate under more stringent requirements (such as, more stringent setback distances from features such as water supplies and occupied dwellings) than required under the permit if the person so chooses. This would include a person not yet covered under a permit, as well as a person currently operating under an individual permit who wishes to maintain certain practices.
b. Uniform implementation of the regulations
Several commentators expressed concern about uniform implementation of the regulations.
The Board and Department have addressed this concern in the final-form regulations. The general permit will be developed by the Department's Central Office and be available Statewide. Central Office staff will train regional staff on the substance and implementation of the regulations.
c. Site-specific requirements and permits
A number of commentators expressed concern that if the Department issued general permits without site specific requirements, there would be no control over how sewage sludge was applied. Many commentators expressed concern that sewage sludge should not be applied to the land, and that the existing regulations were not protective of the environment. Some commented that if sewage sludge were applied, individual permits should be required for all sites.
The final-form regulations continue to endorse the general permit concept for land application of those sewage sludges that meet the quality standards established under the Part 503 regulations. The risk assessments conducted by the EPA considered 14 potential pathways. The maximum concentration for each metal is based on the most limiting pathway. The Department feels that if sewage sludge quality is carefully monitored, as required under the final-form regulations, the land application of these high quality materials can be safely addressed through a general permit.
The draft general permit will be developed by the Department and published in the Pennsylvania Bulletin with an extended public comment period. The Department will then, after consideration of all timely comments, publish notice of the issuance and availability of the Land Application of Sewage Sludge general permit in the Pennsylvania Bulletin.
Once a general permit is issued for high quality sewage sludges, generators wishing to operate under the permit will have to file a notice of intent (application), which may provide an additional opportunity to comment. The Department has issued beneficial use approvals, which were not site specific, since 1988. While the process of approving beneficial use applications has proven burdensome, the program has been successful. The SWMA was amended in 1989 to provide for the issuance of general permits for beneficial use of municipal and residual waste. This rulemaking package has provided the first opportunity for the Department to include regulations for a general permitting process for municipal waste. The final-form regulations also provide for individual permits for land application which will be particularly useful in high quality watersheds.
d. Provide incentive to improve sewage sludge quality
While many commentators agreed that the proposed regulations provided significant regulatory relief, concern was expressed that the proposed regulations did not provide an incentive for treatment plants to improve sewage sludge quality.
In the October 1, 1994, proposed rulemaking, this EQ sewage sludge was limited to bagged sewage sludge and sewage sludge used for horticultural and turfgrass production. The final-form regulations allow for the land application or distribution of this EQ sewage sludge under a Land Application of Sewage Sludge permit without site restrictions or significant management practices. This will provide a needed incentive to improve sewage sludge quality. EQ sewage sludge, in addition to meeting the Federal pathogen and vector attraction reduction requirements and the pollutant limits, will have to be nonrecognizable and nonliquid. In addition, for agricultural use the EQ sewage sludge will have to be applied at the agronomic rate.
In addition, in the final-form regulations the management practices and isolation distances will apply to the land application of sewage sludge that is not considered EQ. See §§ 271.913 and 271.915. The final-form regulations differ from the proposed regulations in that the isolation distances in the final-form regulations only apply when non-EQ sewage sludge is applied to agricultural land, forests or land reclamation sites. See § 271.915.
e. Transition scheme--§ 271.903
The Board received several comments requesting a 5-year transition period for holders of beneficial use approvals instead of the 2 years proposed.
The Board has revised this regulation to reflect a 5-year transition period and has expanded it to cover individual and general Land Application of Sewage Sludge permits, and to add a 5-year expiration date for permits that do not contain an expiration date.
f. EQ sewage sludge--§ 271.911(a) and (c)
Several commentators suggested that the Department should not consider high quality sewage sludge to be a waste, but should consider it to be a fertilizer or soil amendment. They expressed concern that the general permit concept, even with limited operational requirements, was burdensome for high quality sludges.
The Board believes that EQ sewage sludge should be treated as a fertilizer or soil amendment. While the final-form regulations fall short of actually ''de-wasting'' these materials, they allow for the development of a general permit for the EQ sewage sludge. This is a change from the proposed regulations, which authorized the Department to exclude a sewage sludge from being regulated as a waste if it met certain requirements. Under the final-form regulations, the EQ sewage sludge is sewage sludge that meets the metal concentration and pathogen reduction requirements of a Class A sewage sludge under Part 503 and are nonliquid and nonrecognizable as human waste. This differs from the proposed regulations in several ways, including the requirements to be nonliquid and nonrecognizable. See justification, under the heading: ''Sewage sludge final-form regulations more stringent than Federal standards,'' in this Preamble. These materials, when applied at an agronomic rate, will not be required to meet the additional requirements set forth for other general permits. In essence, these materials are similar to fertilizer both chemically and physically and, provided they meet the regulatory pollutant requirements, need not be further restricted.
g. Reduce requirements further for EQ sewage sludge
Some commentators recommended that reporting, recordkeeping and source reduction requirements were unnecessary for high quality sludges.
The final-form regulations have significantly reduced the reporting requirements and are, for the most part, consistent with the reporting requirements under Part 503. However, the Board continues to stress the need for generators to look at ways to improve sewage sludge quality. A sewage sludge quality enhancement plan, formerly labelled ''source reduction strategy'' in proposed regulation, is required in the final-form regulations for any generator of sewage sludge that is land applied.
h. Landowner notification requirements--§ 271.913
Several commentators expressed concerns about the landowner and adjacent landowner notification requirements in the proposed regulations. Many commentators felt that the notification requirements were burdensome, while others felt that the comment period was not long enough to provide for meaningful public comments. Some felt that the general permit process left them out of the loop on having any input on the permitting process.
The final-form regulations have attempted to address these concerns. In developing the general permit for land application, the Department will publish the notice of availability of the draft and final general permit in the Pennsylvania Bulletin, and over the Department's World Wide Web site. The Department will make every effort to obtain as much input on the permit as possible. The meaningful input on general permits will occur during that time period. There may be additional opportunity to comment when a person submits a notice of intent to operate under the general permit.
The final-form regulations have expanded the adjacent landowner notification, county conservation district notification, and Department notification to 30 days,from 7 days, prior to land application. The notice shall provide a brief description of the operations, any additional site restrictions, the name of the person or company land applying the sewage sludge, and the permit number. In addition, 7 days prior to operation, the generator must provide the occupant of the land with a user instruction sheet that describes acceptable uses and limitations of the general permit.
In an effort to address additional concerns on notification, the final-form regulations provide for assistance from the county conservation districts as part of an overall process to provide additional information and a general knowledge of what is involved in sludge utilization to the landowner, adjacent landowners and the community in general on the value and potential concerns that are addressed as part of an overall land application program.
i. Background soil analysis--§ 271.913(h)
The Board received several comments on the background soil analysis requirement, some requesting more stringency and some requesting more leniency.
The Board has revised the soil analysis requirement in § 271.913(h) so that an analysis is only required to be performed prior to the first land application at a particular location, and not at all for land application of EQ sewage sludge. In the proposed regulations, the soil analysis was also required when half of the lifetime metal loading limit established in the guidelines was met, or every 5 years for residential septage.
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