[29 Pa.B. 2367]
[Continued from previous Web Page] § 264a.15. General inspection and construction inspection requirements.
In addition to the requirements incorporated by reference, an owner or operator shall submit a schedule for construction of a hazardous waste management facility to the Department for approval. At a minimum, the schedule shall provide for inspection and approval by the Department of each phase of construction.
§ 264a.18. Location standards.
In addition to the requirements incorporated by reference, Chapter 269a (relating to siting) applies to hazardous waste treatment and disposal facilities.
Subchapter D. CONTINGENCY PLAN AND EMERGENCY PROCEDURES Sec.
264a.56. Emergency procedures. § 264a.56. Emergency procedures.
In addition to the requirements incorporated by reference, the emergency coordinator shall immediately notify the appropriate regional office of the Department or the Department's Central Office by telephone at (717) 787-4343.
Subchapter E. MANIFEST SYSTEM, RECORDKEEPING AND REPORTING Sec.
264a.71. Use of the manifest system. 264a.75. Biennial report. 264a.78. Hazardous waste management fee. 264a.79. Documentation of hazardous waste management fee submission. 264a.80. Civil penalties for failure to submit hazardous waste management fees. 264a.81. Assessment of penalties; minimum penalties. 264a.82. Administration fees. 264a.83. Administration fees during closure. § 264a.71. Use of the manifest system.
In addition to the requirements incorporated by reference:
(1) An owner or operator, or the agent of the owner or operator, may not accept hazardous waste for treatment, storage or disposal unless it is accompanied by a manifest approved by the Department, unless a manifest is not required by 40 CFR 262.20(e) (relating to the manifest general requirements).
(2) Within 30 days of the delivery, the owner or operator or the agent of the owner or operator shall send the specified copies of the manifest to the Department and generator state, as required.
§ 264a.75. Biennial report.
Relative to the requirements incorporated by reference, the owner or operator must submit to the Department its biennial report on EPA Form 8700-13B, as modified by the Department.
§ 264a.78. Hazardous waste management fee.
(a) The owner or operator of a hazardous waste management facility shall remit to the Department a hazardous waste management fee based on the total number of tons, or portion thereof, treated, stored or disposed at that facility.
(b) A hazardous waste management fee will not be assessed for:
(1) Storage or treatment of hazardous waste at the site at which it was generated.
(2) Storage or treatment at a captive facility.
(3) Storage of hazardous waste prior to recycling at a commercial recycling facility which meets the requirements of this article.
(4) Hazardous waste derived from the cleanup of a site under the Hazardous Sites Cleanup Act, the Federal Superfund Act, Title II of the Solid Waste Disposal Act (42 U.S.C.A. §§ 6901--6987) or the act.
(c) The owner or operator shall remit hazardous waste management fees quarterly along with the forms required by § 264a.79 (relating to documentation of hazardous waste management fee submission) postmarked or delivered to the Department by the 20th day of the month following the quarter ending the last day of March, June, September and December of each year. If the submission date falls on a weekend or State holiday, the report shall be postmarked or received by the Department on or before the next business day after the 20th.
(d) Payment shall be by check or money order, payable to ''The Hazardous Sites Cleanup Fund,'' and shall be forwarded along with the required forms to the Department at the address specified on the form. Alternative payment methods may be accepted with prior written approval of the Department.
(e) For purposes of assessing fees incineration is considered to be treatment. A fee will not be assessed for the incineration of hazardous waste at an onsite or captive incineration facility.
(f) Fees shall be calculated based on standard tons.
(1) For purposes of this section:
(i) A standard ton equals 2,000 pounds.
(ii) A metric ton shall be converted to a standard ton by dividing the metric ton by a factor of 0.91.
(2) Liquid wastes shall be converted to tons as follows:
(i) Standard measure gallons shall be converted to tons using a factor of 8.0 pounds per gallon.
(ii) Liters shall be converted to tons using a factor of 2.1 pounds per liter.
(3) Cubic yards and cubic meters shall be converted to standard tons using a factor of 1 ton per each of these units, or part thereof.
(g) Quantities reported shall be as indicated on the manifest by the treatment, storage or disposal facility designated on the manifest or, if not indicated by that facility, as specified on the manifest by the generator.
(h) Except as provided in subsection (i), if more than one hazardous waste management activity occurs at the same commercial hazardous waste management facility, the owner or operator shall pay a single fee per ton, or fraction thereof, which shall be the highest rate of the management activities involving each individual waste stream at that facility.
(i) When treatment or incineration prior to disposal results in a reduction in the tonnage of waste requiring disposal, the operator will be assessed the disposal management fee for the waste requiring disposal after treatment or incineration, and the treatment management fee for the remainder of the waste which underwent treatment.
§ 264a.79. Documentation of hazardous waste management fee submission.
(a) The owner or operator of a hazardous waste management facility required to submit hazardous waste management fees under § 264a.78 (relating to hazardous waste management fee) shall submit specific information to the Department to document that the amount of fees submitted under § 264a.78 is accurate. This information shall be submitted on forms provided or approved by the Department and completed in conformance with instructions provided.
(1) The owner or operator of a commercial facility, including onsite facilities which accept hazardous waste generated offsite, shall submit Forms ER-WM-55D, ER-WM-55E and ER-WM-55F, or successor documents. If no hazardous waste management activities subject to the fees have occurred during a quarter, documentation to that effect shall be submitted only on Form ER-WM-55D.
(2) The owner or operator of an offsite captive disposal facility shall submit Forms ER-WM-55I, ER-WM-55L, ER-WM-55M and ER-WM-55N, or successor documents. If no hazardous waste management activities subject to the fees have occurred during a quarter, documentation to that effect shall be submitted only on Form ER-WM-55I.
(3) The owner or operator of an onsite captive disposal facility which does not accept wastes generated offsite shall submit Forms ER-WM-55I, ER-WM-55J and ER-WM-55K, or successor documents. If no hazardous waste management activities subject to the fees have occurred during a quarter, documentation to that effect shall be submitted only on Form ER-WM-55I.
(b) The owner or operator of a hazardous waste management facility shall, upon request from the Department, provide additional information or documentation regarding its hazardous waste management activities necessary for the Department to assess the accuracy of the information contained on the required forms and the amount of fees due.
§ 264a.80. Civil penalties for failure to submit hazardous waste management fees.
(a) The Department may assess a civil penalty for:
(1) Failure to submit hazardous waste management fees as required by § 264a.78(a) (relating to hazardous waste management fee), failure to submit properly completed documents required by § 264a.79 (relating to documentation of hazardous waste management fee submission) or failure to meet the time schedule for submission established by § 264a.78(c).
(2) Intentional submission of falsified information relating to hazardous waste management fees required by this chapter and section 903 of the Hazardous Sites Cleanup Act (35 P. S. § 6020.903).
(3) Failure of a hazardous waste management facility to submit documentation confirming that no fee was due for the preceding quarter.
(b) This section does not preclude the Department from assessing a civil penalty for a violation of the act, or the Hazardous Sites Cleanup Act, this chapter or other chapters of this article.
(c) Failure of the owner or operator of a hazardous waste management facility to comply with the fee payment and documentation requirements of this chapter violates the act, the Hazardous Sites Cleanup Act and the regulations promulgated thereunder, and constitutes grounds for suspension or revocation of its hazardous waste permit, denial of issuance or renewal of a hazardous waste permit, and forfeiture of the facility's bond.
§ 264a.81. Assessment of penalties; minimum penalties.
(a) Consistent with section 605 of the act (35 P. S. § 6018.605) and section 1104 of the Hazardous Sites Cleanup Act (35 P. S. § 6020.1104) and regulations thereunder, this section sets forth minimum civil penalties for certain violations. This section does not limit the Department's authority to assess a higher penalty for the violations identified in this section, or limit the Department's authority to proceed with appropriate criminal penalties.
(b) If a person or municipality fails to submit hazardous waste management fees as required by § 264a.78(c) (relating to hazardous waste management fee), fails to submit properly completed documents required by § 264a.79 (relating to documentation of hazardous waste management fee submission) or fails to meet the time schedule for submission established by § 264a.78(c), the Department will assess a minimum civil penalty of $500 for submissions which are less than 15 days late, and $500 per day for each day thereafter.
(c) If a person or municipality falsifies information relating to hazardous waste management fees required by this chapter and the Hazardous Sites Cleanup Act, the Department will assess a minimum civil penalty of $1,000.
§ 264a.82. Administration fees.
(a) The owner or operator of a hazardous waste management facility shall annually pay an administration fee to the Department according to the following schedule:
(1) Land disposal facilities--$2,500.
(2) Surface impoundments--$2,500.
(3) Commercial treatment--$2,000.
(4) Captive treatment--$700.
(5) Storage--$550.
(6) Incinerators--$1,300.
(b) The administration fee shall be in the form of a check made payable to the ''Commonwealth of Pennsylvania'' and be paid on or before the first of March to cover the preceding year.
(c) If more than one permitted activity is located at a site, or more than one activity occurs, the fee shall be cumulative.
§ 264a.83. Administration fees during closure.
(a) The owner or operator shall complete closure activities in accordance with the approved closure plan and within 180 days after receiving the final volume of wastes. The Department may approve a longer closure period if the owner or operator demonstrates that:
(1) The closure activities will, of necessity, take longer than 180 days to complete or the following:
(i) The facility has the capacity to receive additional wastes.
(ii) There is reasonable likelihood that a person other than the owner or operator will recommence operation of the site.
(iii) Closure of the facility would be incompatible with continued operation of the site.
(2) He has taken and will continue to take all steps to prevent threats to human health and the environment from the unclosed but inactive facility. Under § 264a.112(d) (relating to closure plan; amendment of plan) and paragraph (1)(i), if operation of the site is recommenced, the Department may defer completion of closure activities until the new operation is terminated. The deferral shall be in writing.
(3) The demonstrations referred to in § 264a.112(d) and this section shall be made as follows:
(i) The demonstrations in § 264a.112(d) shall be made at least 30 days prior to the expiration of the 60-day period.
(ii) The demonstrations in this section shall be made at least 30 days prior to the expiration of the 180-day period.
(b) A nonrefundable administration fee in the form of a check payable to the ''Commonwealth of Pennsylvania'' shall be forwarded to the Department within 30 days after receiving the final volumes of waste, and on or before January 20th of each succeeding year until the requirements of § 264a.115 (relating to certification of closure) are met. The fee shall be:
(1) Land disposal facilities--$100.
(2) Impoundments--$100.
(3) All other facilities--$50.
Subchapter F. RELEASES FROM SOLID WASTE MANAGEMENT UNITS Sec.
264a.97. General groundwater monitoring requirements. 264a.101. Corrective action for solid waste management units. § 264a.97. General groundwater monitoring requirements.
In addition to the requirements incorporated by reference:
(1) The owner or operator shall keep records of analyses and evaluations of groundwater quality, surface elevations and flow rate and direction determinations required under 40 CFR Part 264, Subpart F (relating to releases from solid waste management units).
(2) The owner or operator shall report the following information in writing to the Department:
(i) During the first year when initial background concentrations are being established for the facility: concentrations or values of the parameters listed in 40 CFR 264.98(a) (relating to detection monitoring program) for an upgradient groundwater monitoring well within 15 days after completing a quarterly analysis and no later than 30 days after the end of a quarter.
(ii) Quarterly after the first year: concentrations or values of the parameters in 40 CFR 264.98(a) and required under 40 CFR 264.97(g) (relating to detection monitoring program), for each groundwater monitoring well, along with the required evaluations for these parameters under 40 CFR 264.97(h), within 15 days after completing a quarterly analysis and no later than 30 days after the end of a quarter.
(iii) Annually: concentrations or values of those parameters for each well which are specified by the facility's permit within 15 days of completing the annual analysis.
(iv) Annually: those determinations for the groundwater flow rate and direction specified in 40 CFR 264.99(e) (relating to compliance monitoring).
(3) The owner or operator shall report the groundwater quality required by paragraph (2) and 40 CFR 264.97 at a monitoring point established under 40 CFR 264.95 (relating to point of compliance) in a form necessary for the determination of statistically significant increases under 40 CFR 264.98 (relating to detection monitoring program).
§ 264a.101. Corrective action for solid waste management units.
In 40 CFR 264.101(b) (relating to corrective action for solid waste management units), the reference to Subpart S does not apply until 40 CFR Part 264, Subpart S is effective in this Commonwealth.
Subchapter G. CLOSURE AND POSTCLOSURE Sec.
264a.115. Certification of closure. 264a.120. Certification of completion of postclosure care. § 264a.115. Certification of closure.
The owner or operator shall satisfy § 264a.166 (relating to closure and postclosure certification) instead of the reference to 40 CFR 264.143(i) (relating to financial assurance for closure).
§ 264a.120. Certification of completion of postclosure care.
The owner or operator shall satisfy § 264a.166 (relating to closure and postclosure certification) instead of the reference to 40 CFR 264.145(i) (relating to financial assurance for postclosure care).
Subchapter H. FINANCIAL REQUIREMENTS Sec.
264a.141. Definitions. 264a.143. Financial assurance for closure. 264a.145. Financial assurance for postclosure care. 264a.147. Liability requirements. 264a.148. Incapacity of owners or operators, guarantors or financial institutions. 264a.149. Use of state-required mechanisms. 264a.150. State assumption of responsibility. 264a.151. Wording of the instruments. 264a.153. Requirement to file a bond. 264a.154. Form, terms and conditions of bond. 264a.155. Special terms and conditions for surety bonds. 264a.156. Special terms and conditions for collateral bonds and bonds pledging corporate guarantee for closure. 264a.157. Phased deposits of collateral. 264a.158. Replacement of bond. 264a.159. Reissuance of permits. 264a.160. Bond amount determination. 264a.162. Bond amount adjustments. 264a.163. Failure to maintain adequate bond. 264a.164. Separate bonding for a portion of a facility. 264a.165. Bond release. 264a.166. Closure and postclosure certification. 264a.167. Public notice and comment. 264a.168. Bond forfeiture. 264a.169. Preservation of remedies. § 264a.141. Definitions.
In addition to the terms defined in 40 CFR 264.141 (relating to definitions of terms as used in this subpart), which are incorporated by reference, the definitions in section 103 of the act (35 P. S. § 6018.103) and Chapter 260a (relating to hazardous waste management system: general) apply to this subchapter. The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Applicant--An owner or operator of a hazardous waste treatment, storage or disposal facility which is attempting to demonstrate the capability to self-insure all or part of its liabilities to third persons for personal injury and property damage from sudden or nonsudden pollution occurrences, or both.
Collateral bond--A penal bond agreement in a sum certain, payable to the Department, executed by the facility owner or operator and is supported by the deposit with the Department of cash, negotiable bonds of the United States, the Commonwealth, the Turnpike Commission, the General State Authority, the State Public School Building Authority, or a Commonwealth municipality, Pennsylvania Bank Certificates of Deposit, or irrevocable letters of credit of a bank organized or authorized to transact business in the United States.
Final closure--Successful completion of requirements for closure and postclosure care as required by 40 CFR Part 264, Subpart G (relating to closure and postclosure).
Financial institutions--Banks and other similar establishments organized or authorized to transact business in this Commonwealth or the United States, and insurance companies or associations licensed and authorized to transact business in this Commonwealth or designated by the Insurance Commissioner as an eligible surplus lines insurer.
Surety bond--A penal bond agreement in a sum certain, payable to the Department, executed by the facility owner or operator, and is supported by the guarantee of payment on the bond by a corporation licensed to do business as a surety in this Commonwealth.
Surety company--A corporation licensed to do business as a surety in this Commonwealth.
§ 264a.143. Financial assurance for closure.
40 CFR 264.143 (relating to financial assurance for closure) is not incorporated by reference except for 40 CFR 264.143(f) as referenced in § 264a.156 (relating to special terms and conditions for collateral bonds and bonds pledging corporate guarantee for closure).
§ 264a.145. Financial assurance for postclosure care.
40 CFR 264.145 (relating to financial assurance for post-closure care) is not incorporated by reference except for 40 CFR 264.145(f) as referenced in § 264a.156 (relating to special terms and conditions for collateral bonds and bonds pledging corporate guarantee for closure).
§ 264a.147. Liability requirements.
The substitition of terms as specified in § 260a.3(a)(5) (relating to citations related to Federal regulations) does not apply to 40 CFR 264.147(g)(2) and (i)(4) (relating to liability requirements).
§ 264a.148. Incapacity of owners or operators, guarantors or financial institutions.
In addition to the requirements incorporated by reference, an owner or operator or guarantor of a corporate guarantee shall also notify the Department by certified mail in accordance with the provisions applicable to notifying the Regional Administrator of the EPA.
§ 264a.149. Use of state-required mechanisms.
40 CFR 264.149 (relating to use of state-required mechanisms) is not incorporated by reference.
§ 264a.150. State assumption of responsibility.
40 CFR 264.150 (relating to state assumption of responsibility) is not incorporated by reference.
§ 264a.151. Wording of instruments.
40 CFR 264.151 (relating to wording of the instruments) is not incorporated by reference.
§ 264a.153. Requirement to file a bond.
(a) Hazardous waste storage, treatment and disposal facilities permitted under the act, or being treated as having a permit under the act, shall file a bond in accordance with this subchapter and in the amount determined by § 264a.160 (relating to bond amount determination), payable to the Department.
(b) The Department will not issue a new, revised, amended, modified or renewed permit for the storage, treatment or disposal of hazardous waste unless the applicant files with the Department a bond under this subchapter, payable to the Department, on a form prepared and provided by or approved by the Department, and the bond is approved by the Department.
(c) An applicant for a new, revised, amended, modified or renewed permit may not disturb surface acreage, start construction of facilities for the storage, treatment or disposal of hazardous waste, or accept hazardous waste prior to receipt from the Department of approval of bond and issuance of a permit to conduct a hazardous waste storage, treatment or disposal operation.
(d) A hazardous waste storage, treatment or disposal facility permitted or treated as having a permit, shall cease accepting hazardous waste unless the owner or operator submits a bond under this subchapter. The Department will review and determine whether or not to approve the bond within 1 year of the submittal. If, on review, the Department determines the owner or operator submitted an insufficient bond amount, the Department will require the owner or operator to deposit additional bond amounts under § 264a.162 (relating to bond amount adjustments).
§ 264a.154. Form, terms and conditions of bond.
(a) The Department accepts the following types of bond:
(1) A surety bond.
(2) A collateral bond.
(3) A bond pledging a corporate guarantee.
(4) A phased deposit collateral bond as provided in § 264a.157 (relating to phased deposits of collateral).
(b) The Department prescribes and furnishes the forms for bond instruments.
(c) Bonds are payable to the Department and conditioned upon the faithful performance of the requirements of the act, The Clean Streams Law (35 P. S. §§ 691.1--691.1001), the Surface Mining Conservation and Reclamation Act (52 P. S. §§ 1396.1--1396.4c, 1396.4e and 1396.15c--1396.25), the Air Pollution Control Act (35 P. S. §§ 4001--4015), the Dam Safety and Encroachments Act (32 P. S. §§ 693.1--693.27), the regulations adopted thereunder, the terms and conditions of any permit issued thereunder, orders of the Department and amendments, revisions and changes to the acts, the regulations and the terms and conditions of the hazardous waste storage, treatment and disposal facility permit as may be lawfully made in the future.
(d) The bond shall cover the hazardous waste storage, treatment or disposal operations from the initiation of the operations until the bond is released as provided in this chapter. The bond shall cover all operations and activities conducted within the permitted area and all effects caused by the hazardous waste activities within or without the permit area. An owner or operator of a new facility shall submit the bond to the Department at least 60 days before the date that hazardous waste is first received for treatment, storage or disposal.
(e) Bonds will be reviewed for legality and form according to established Commonwealth procedures.
§ 264a.155. Special terms and conditions for surety bonds.
(a) The Department does not accept the bond of a surety company that failed or unduly delayed in making payment on a forfeited surety bond.
(b) The Department accepts only the bond of a surety authorized to do business in this Commonwealth and which is listed in Circular 570 of the United States Department of Treasury.
(c) The surety may cancel the bond by sending written notice of cancellation by certified mail to the owner or operator and the Department. Cancellation may not take effect until 120 days after receipt of the notice of cancellation by the principal and the Department, as evidenced by the return receipts. Within 60 days of receipt of the notice of cancellation, the owner or operator shall provide the Department with a replacement bond under § 264a.158 (relating to replacement of bond). Failure of the owner or operator to provide a replacement bond within the 60-day period constitutes grounds for forfeiture of the existing bond under § 264a.168 (relating to bond forfeiture).
(d) The Department does not accept surety bonds from a surety company for a owner or operator, on all facilities owned or operated by the owner or operator, in excess of the company's single risk limit as provided by The Insurance Company Law of 1921 (40 P. S. §§ 341--991), unless the surety has complied with the provisions of The Insurance Company Act of 1921 (40 P. S. §§ 1--297.4) for accepting risk above its single risk limit.
(e) The bond shall provide that full payment will be made on the bond within 30 days of receipt of a notice of forfeiture by the surety, notwithstanding judicial or administrative appeal of the forfeiture, and that the amount is confessed to judgment upon forfeiture.
(f) The bond shall provide that the surety and the owner or operator are joint and severally liable for payment of the bond amount.
§ 264a.156. Special terms and conditions for collateral bonds and bonds pledging corporate guarantee for closure.
(a) The Department obtains possession and keeps custody of collateral deposited by the owner or operator until authorized for release or replacement as provided in this subchapter.
(b) The Department values governmental securities for both current market value and face value. For the purpose of establishing the value of the securities for bond deposit, the Department uses the lesser of current market value or face value. Government securities shall be rated at least BBB by Standard and Poor's or Baa by Moody's.
(c) Collateral bonds pledging Pennsylvania bank certificates of deposit are subject to the following conditions:
(1) The Department requires that certificates of deposit are assigned to the Department, in writing, and the assignment recorded upon the books of the issuing institution.
(2) The Department may accept an individual certificate of deposit for the maximum insurable amount as determined by the Federal Deposit Insurance Corporation (FDIC) and which is otherwise secured under Pennsylvania law.
(3) The Department requires the issuing institution to waive all rights of setoff or liens it has or might have against the certificates.
(4) The Department only accepts automatically-renewable certificates of deposit.
(5) The Department requires that the certificates of deposit be assigned to the Department to assure that the Department can liquidate the certificates prior to maturity, upon forfeiture, for the amount of the bond determined under this subchapter.
(6) The Department only accepts certificates of deposit from banks or banking institutions licensed, chartered or otherwise authorized to do business in the United States.
(7) The Department does not accept certificates of deposit from banks that failed or delayed in making payment on defaulted certificates of deposit.
(d) Collateral bonds pledging a bank letter of credit are subject to the following conditions:
(1) The letter of credit is a standby letter of credit issued only by a bank organized or authorized to do business in the United States, examined by a State or Federal agency and Federally insured or equivalently protected.
(2) The letter of credit may not be issued without a credit analysis substantially equivalent to that of a potential borrower in an ordinary loan situation. A letter of credit so issued shall be supported by the owner's or operator's unqualified obligation to reimburse the issuer for moneys paid under the letter of credit.
(3) The letter of credit may not be issued when the amount of the letter of credit, aggregated with other loans and credits extended to the owner or operator, exceeds the issuer legal lending limits for that owner or operator as defined in the United States Banking Code (12 U.S.C.A. §§ 21--220).
(4) The letter of credit is irrevocable and is so designated. The Department may accept a letter of credit for at least a 1 year period if the following conditions are met and stated in the credit:
(i) The letter of credit is automatically renewable for additional time periods of at least 1 year, unless the bank gives at least 120 days prior written notice by certified mail to the Department and the customer of its intent to terminate the credit at the end of the current time period.
(ii) The Department has the right to draw upon the credit before the end of the time period, if the customer fails to replace the letter of credit with other acceptable bond guarantee within 30 days of the bank's notice to terminate the credit.
(5) Letters of credit shall name the Department as the beneficiary and be payable to the Department, upon demand, in part or in full, upon presentation of the Department's drafts at sight. The Department's right to draw upon the letter of credit will not require documentary or other proof by the Department that the customer has violated the conditions of the bond, the permit or another requirement of this subchapter.
(6) Letters of credit are subject to 13 Pa.C.S. (relating to the Uniform Commercial Code) and the latest revision of the Uniform Customs and Practice for Documentary Credits, published by the International Chamber of Commerce. The Department may accept 13 Pa.C.S. Division 5 (relating to letters of credit) in effect in the state of the issuer.
(7) The issuing bank waives the rights to setoff or liens it has or might have against the letter of credit.
(8) The Department will not accept letters of credit from a bank that failed or delayed in making payment on a letter of credit previously submitted as collateral to the Department.
(e) Bonds pledging a corporate guarantee for closure shall be subject to the requirements of 40 CFR 264.143(f) (relating to financial test and corporate guarantee for closure) and 40 CFR 264.145(f) (relating to financial assurance for post-closure care). Instead of the provisions of 40 CFR 264.143(f)(10)(i) (relating to financial assurance for closure) and 40 CFR 264.145(f)(11)(i), the procedures of § 264a.168 (relating to bond forfeiture), apply to bond forfeiture.
§ 264a.157. Phased deposits of collateral.
(a) An owner or operator may post a collateral bond in phased deposits for a hazardous waste storage, treatment or disposal facility that will be continuously operated or used for at least 10 years from the date of issuance of the permit or permit amendment, according to all of the following requirements:
(1) The owner or operator submits a collateral bond form to the Department.
(2) The owner or operator deposits $10,000 or 25%, whichever is greater, of the total amount of bond determined in this chapter in approved collateral with the Department.
(3) The owner or operator submits a schedule agreeing to deposit 10% of the remaining amount of bond, in approved collateral in each of the next 10 years.
(b) The owner or operator deposits the full amount of bond required for the hazardous waste storage, treatment or disposal facility within 30 days of receipt of a written demand by the Department to accelerate deposit of the bond. The Department makes the demand when one of the following occurs:
(1) The owner or operator fails to make a deposit of bond amount when required by the schedule for the deposits.
(2) The owner or operator violates the requirements of the act, this article, the terms and conditions of the permit or orders of the Department and has failed to correct the violations within the time required for the correction.
(c) Interest earned by collateral on deposit accumulates and becomes part of the bond amount until the owner or operator completes deposit of the requisite bond amount in accordance with the schedule of deposit. Interest so accumulated may not offset or diminish the amount required to be deposited in each of the succeeding years set forth in the schedule of deposit, except that in the last year in which a deposit is due, the amount to be deposited is adjusted by applying the total accumulated interest to the amount to be deposited as established by the schedule of deposit.
§ 264a.158. Replacement of bond.
(a) The Department may allow an owner or operator to replace existing surety or collateral bonds with other surety or collateral bonds if the liability accrued against the owner or operator of the hazardous waste storage, treatment or disposal facility is transferred to the replacement bonds. The bond amount for the replacement bond is determined under this chapter, but in no case may it be less than the amount on deposit with the Department.
(b) The Department will not release existing bonds until the owner or operator submits and the Department approves acceptable replacement bonds. A replacement of bonds under this section may not constitute a release of bond under this subchapter.
(c) Within 60 days of approval of acceptable replacement bonds, the Department will take appropriate action to initiate the release of existing surety or collateral bonds being replaced by the owner or operator.
§ 264a.159. Reissuance of permits.
Before a permit is reissued to a new owner or operator, the new owner or operator shall post a new bond in an appropriate amount determined by the Department under this subchapter, but in no case less than the amount of bond on deposit with the Department, in the new owner's or operator's name and assume all accrued liability for the hazardous waste storage, treatment or disposal facility.
§ 264a.160. Bond amount determination.
(a) The Department determines bond amount requirements for each hazardous waste storage, treatment and disposal facility based upon the total estimated cost to the Commonwealth to complete final closure of the facility. This is done in accordance with the requirements of applicable statutes, this article, the terms and conditions of the permit and orders issued thereunder by the Department and to take measures that are necessary to prevent adverse effects upon the environment during the life of the facility and after closure until released as provided by this subchapter.
(b) This amount is based on the permit applicant's written estimate submitted under 40 CFR 264.142 and 264.144 (relating to cost estimate for closure; and cost estimate for post-closure care).
§ 264a.162. Bond amount adjustments.
The owner or operator shall deposit additional amounts of bond within 60 days of any of the following:
(1) The permit is amended to increase acreage, to change the kind of waste handled or for another reason that requires an additional amount of bond determined under 40 CFR 264.142 and 264.144 (relating to cost estimate for closure; and cost estimate for post-closure care).
(2) Inflationary cost factors exceed the estimate used for the original bond amount determination under 40 CFR 264.142 and 264.144.
(3) The permit is to be renewed or reissued, or the bond on deposit is to be replaced, requiring an additional amount of bond determined under 40 CFR 264.142 and 264.144.
(4) An additional amount of bond is required as determined by 40 CFR 264.142 and 264.144 to meet the requirements of applicable statutes, this subchapter and the terms and conditions of the permit or orders of the Department.
§ 264a.163. Failure to maintain adequate bond.
If an owner or operator fails to post additional bond within 60 days after receipt of a request by the Department for additional bond amounts under § 264a.162 (relating to bond amount adjustments), or fails to make timely deposits of bond in accordance with the schedule submitted under § 264a.157 (relating to phased deposits of collateral), the Department will issue a notice of violation to the owner or operator, and if the owner or operator fails to deposit the required bond amount within 15 days of the notice, the Department will issue a cessation order for all of the hazardous waste storage, treatment and disposal facilities operated by the owner or operator and take additional actions that may be appropriate, including suspending or revoking permits.
§ 264a.164. Separate bonding for a portion of a facility.
(a) The Department may require a separate bond to be posted for a part of a hazardous waste storage, treatment or disposal facility if that part of the facility can be separated and identified from the remainder of the facility and the bond liability for that part will continue beyond the time provided for the remainder of the facility, or the Department determines that separate bonding of the facility is necessary to administer and apply applicable statutes, this article, the terms and conditions of the permit or orders of the Department.
(b) If the Department requires a separate bond for part of a facility, the original bond amount for the facility may be adjusted under § 264a.162 (relating to bond amount adjustments).
§ 264a.165. Bond release.
(a) The owner or operator may file a written application with the Department requesting release of all or part of the bond amount posted for a hazardous waste storage, treatment or disposal facility. The bond release may be requested during the operation of the facility as part of a request for bond adjustment under § 264a.162 (relating to bond amount adjustments); upon completion of closure for a storage or treatment facility and upon expiration of the postclosure care period of liability, for a disposal facility as specified in 40 CFR Part 264, Subpart G (relating to closure and postclosure care).
(b) The application for bond release shall contain all of the following:
(1) The name of the owner or operator and identify the hazardous waste storage, treatment or disposal facility for which bond release is sought.
(2) The total amount of bond in effect for the facility and the amount for which release is sought.
(3) The reasons why, in specific detail, bond release is requested including, but not limited to, the closure, postclosure care and abatement measures taken, the permit amendments authorized or the change in facts or assumptions made during the bond amount determination which demonstrate and would authorize a release of part or all of the bond deposited for the facility.
(4) A revised cost estimate for closure and postclosure care in accordance with 40 CFR 264.142 and 264.144 (relating to cost estimate for closure; and postclosure care).
(5) Closure or postclosure certification for full bond release requests.
(6) Other information required by the Department.
(c) The Department will evaluate the bond release request as if it were a request for a new bond amount determination under 40 CFR 264.142 and 264.144. If the new bond amount determination would require less bond for the facility than the amount already on deposit, the Department will release the portion of the bond amount which is not required for the facility. If the new bond amount determination would require an additional amount of bond for the facility, the Department will require the additional amount to be deposited for the facility.
(d) The Department will not release a bond amount deposited for a facility if the release would reduce the total remaining amount of bond to an amount which would be insufficient for the Department to complete closure and postclosure care and to take measures that may be necessary to prevent adverse effects upon the environment or public health, safety or welfare in accordance with applicable statutes, this chapter, the terms and conditions of the permits and orders of the Department.
(e) The Department will make a decision on a bond release application within 6 months of receipt unless additional time is authorized by the owner or operator.
(f) The Department will not release a bond amount for a facility causing adverse effects on the public health, safety or welfare or the environment, creating a public nuisance, or in violation of this chapter, the act or the statutes in section 505(a) of the act (35 P. S. § 6018.505(a)).
§ 264a.166. Closure and postclosure certification.
(a) The owner or operator shall submit a request for closure or postclosure certification upon completion of closure or postclosure of the facility in accordance with 40 CFR 264.115 or 264.120 (relating to certification of closure; and certification of completion of postclosure care).
(b) Within 60 days after receipt of a written request for closure or postclosure certification, the Department will initiate an inspection of the facility to verify that closure or postclosure was effected in accordance with the approved facility closure or postclosure care plan and this article.
(c) If the Department determines that the facility closed in accordance with this article, and that there is no reasonable expectation of adverse effects upon the environment or the public health, safety and welfare, the Department will certify in writing to the owner or operator that closure or postclosure was effected in accordance with this subchapter. Closure or postclosure certification may not take effect until 1 year after receipt of the Department's determination.
(d) The closure or postclosure certification does not constitute a waiver or release of bond liability or other liability existing in law for adverse environmental conditions or conditions of noncompliance existing at the time of the notice or which might occur at a future time, for which the owner or operator shall remain liable.
(e) The Department will not issue a closure or postclosure certification for a facility causing adverse effects on the public health, safety or welfare or the environment, creating a public nuisance, or in violation of this article, the act or the statutes in section 505(a) of the act (35 P. S. § 6018.505(a)).
(f) At any time after issuance of a certification of closure or postclosure, if inspection by the Department indicates that additional postclosure care measures are required to abate or prevent any adverse effects upon the environment or the public health, safety and welfare, the Department will issue a written notice to the owner or operator setting forth the schedule of measures the owner or operator shall take in order to bring the facility into compliance.
(g) At least 6 months prior to expiration of the 1 year liability period following closure and postclosure care, the Department will conduct an inspection of the facility. If the Department determines that the facility will continue to cause adverse effects upon the environment or the public health, safety and welfare after expiration of the 1-year liability period, the Department will require the owner or operator to deposit a separate bond under § 264a.164 (relating to separate bonding for a portion of a facility), or forfeit the bond under § 264a.168 (relating to bond forfeiture) on deposit with the Department.
§ 264a.167. Public notice and comment.
The original bond amount determination, a decision by the Department to release bond, a request to reduce bond amount after permit issuance and a request for closure or postclosure certification shall be, for the purpose of providing public notice and comment, considered a permit modification and shall be subject to the public notice and comment requirements for Class 3 permit modifications.
§ 264a.168. Bond forfeiture.
(a) The Department will forfeit the bond for a hazardous waste storage, treatment or disposal facility if the Department determines that any of the following occur:
(1) The owner or operator fails and continues to fail to conduct the hazardous waste storage, treatment or disposal activities in accordance with this article, the act, the statutes in section 505(a) of the act (35 P. S. § 6018.505(a)), the terms and conditions of the permit or orders of the Department.
(2) The owner or operator abandons the facility without providing closure or postclosure care, or otherwise fails to properly close the facility in accordance with the requirements of this article, the act, section 505(a) of the act (35 P. S. § 6018.505(a)), the terms and conditions of the permit or orders of the Department.
(3) The owner or operator fails, and continues to fail to take those measures determined necessary by the Department to prevent effects upon the environment before, during and after closure and postclosure care.
(4) The owner or operator or financial institution becomes insolvent, fails in business, is adjudicated bankrupt, a delinquency proceeding is initiated under Article V of The Insurance Department Act of 1921 (40 P. S. §§ 221.1--221.63), files a petition in bankruptcy, in liquidation, for dissolution or for a receiver, or has a receiver appointed by the court, or has action initiated to suspend, revoke or refuse to renew the license or certificate of authority of the financial institution, or a creditor of the owner or operator attaches or executes a judgment against the owner's or operator's equipment, materials or facilities at the permit area or on the collateral pledged to the Department; and the owner or operator or financial institution cannot demonstrate or prove the ability to continue to operate in compliance with this article, the act, the statutes in section 505(a) of the act, the terms and conditions of the permit and orders of the Department.
(b) If the Department determines that bond forfeiture is appropriate, the Department will do the following:
(1) Send written notification by mail to the owner or operator, the host municipality and the surety on the bond, if any, of the Department's determination to forfeit the bond and the reasons for the forfeiture.
(2) Advise the owner or operator and surety, if any, of their right to appeal to the EHB under section 1921-A of The Administrative Code of 1929 (71 P. S. § 510-21).
(3) Proceed to collect on the bond as provided by applicable statutes for the collection of defaulted bonds or other debts.
(4) Deposit all money collected from defaulted bonds into the Solid Waste Abatement Fund.
(5) Forfeit all bond deposited for the facility, including all additional amounts of bond posted for the facility.
§ 264a.169. Preservation of remedies.
Remedies provided or authorized by law for violation of statutes, including but not limited to, the act, The Clean Streams Law (35 P. S. §§ 691.1--691.1001), the Surface Mining Conservation and Reclamation Act (52 P. S. §§ 1396.1--1396.19a), the Air Pollution Control Act (35 P. S. §§ 4001--4015), the Dam Safety and Encroachments Act (32 P. S. §§ 693.1--693.27), this article and the terms and conditions of permits and orders of the Department, are expressly preserved. Nothing in this chapter may be construed as an exclusive penalty or remedy for the violations. An action taken under this subchapter may not waive or impair another remedy or penalty provided in law.
Subchapter I. USE AND MANAGEMENT
OF CONTAINERSSec.
264a.173. Management of containers. 264a.180. Weighing or measuring facilities. § 264a.173. Management of containers.
In addition to the requirements incorporated by reference:
(1) For indoor storage of reactive or ignitable hazardous waste, the container height, width and depth of a group of containers shall provide a configuration and aisle spacing which insures safe management and access for purposes of inspection, containment and remedial action with emergency vehicles. The configuration shall be specified in the permit application.
(2) For outdoor storage of reactive or ignitable hazardous waste, the container height, width and depth of a group of containers shall provide a configuration and aisle spacing which insures safe management and access for purposes of inspection, containment and remedial action with emergency vehicles. The configuration shall be specified in the permit application. In addition, a 40-foot setback from a building shall be maintained for all outdoor container storage of reactive or ignitable hazardous waste.
(3) For indoor or outdoor storage of nonreactive or nonignitable hazardous waste, the container height, width and depth of a group of containers shall provide a configuration and aisle spacing which insures safe management and access for purposes of inspection, containment and remedial action with emergency vehicles. The configuration shall be specified in the permit application.
§ 264a.180. Weighing or measuring facilities.
Weighing or measuring facilities, if necessary or when required by the Department, shall weigh hazardous wastes brought to the treatment, storage or disposal facility, except for captive facilities that handle liquids or flowable wastes--less than 20% solids--amenable to accurate flow measurements, or captive facilities that possess other waste inventory controls-volume controls. Weighing facilities shall be capable of weighing the maximum anticipated load plus the weight of the transport vehicle. The precision of weighing devices shall be certified by the Department of Agriculture. For offsite facilities or onsite facilities receiving waste from offsite sources, the hours of operation for the facility shall be prominently displayed on a sign at the entrance. The lettering shall be a minimum of 4 inches in height and of a color contrasting with its background.
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