RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA CODE CHS. 250, 287--289, 291, 293, 295, 297 AND 299]
Residual Waste
[31 Pa.B. 235] The Environmental Quality Board (Board) by this order amends § 250.9 and Chapters 287--299 (relating to interaction with other environmental statutes; and residual waste management). The amendments are the result of the Department of Environmental Protection's (Department) evaluation of the residual waste regulations in accordance with the Regulatory Basics Initiative (RBI) and Executive Order 1996-1.
This order was adopted by the Board at its meeting of September 19, 2000.
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final-form rulemaking.
B. Contact Persons
For further information contact William F. Pounds, Chief, Division of Municipal and Residual Waste Management, Bureau of Land Recycling and Waste Management, Rachel Carson State Office Building, 14th floor, 400 Market Street, P. O. Box 8471, Harrisburg, PA 17105-8491, (717) 787-7564, or Michelle M. Moses, Assistant Counsel, Bureau of Regulatory Counsel, Rachel Carson State Office Building, 9th floor, 400 Market Street, P. O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposal is available electronically through the Department's website http://www.dep.state.pa.us.
C. Statutory Authority
The final-form rulemaking is being made under the authority of the following:
The Solid Waste Management Act (SWMA) (35 P. S. §§ 6018.101--6018.1003), which in section 105(a) of the SWMA grants the Board the power and duty to adopt the rules and regulations of the Department to carry out the provisions of the SWMA.
The Clean Streams Law (CSL) (35 P. S. §§ 691.1--691.1001), which in section 5(b) of the CSL grants the Department the authority to formulate, adopt, promulgate and repeal the rules and regulations as are necessary to implement the provisions of the CSL and which in section 402 of the CSL grants the Department the authority to adopt rules and regulations requiring permits or establishing conditions under which an activity shall be conducted for any activity that creates a danger of pollution of the waters of this Commonwealth or that regulation of the activity is necessary to avoid pollution.
The Municipal Waste Planning, Recycling and Waste Reduction Act (Act 101) (53 P. S. §§ 4000.101--4000.1904), which in section 302 of Act 101 gives the Board the power and duty to adopt the regulations of the Department to accomplish the purposes and carry out the provisions of this act.
The Pennsylvania Used Oil Recycling Act (PUORA) (58 P. S. §§ 471--480), which in section 480(e) of PUORA grants the Department the authority to issue any rules or regulations under this act.
The Administrative Code of 1929 (Administrative Code) (71 P. S. §§ 510-5, 510-17 and 510-20), which in section 1905-A of the Administrative Code authorizes the Department to require applicants for permits and permit revisions to provide written notice to municipalities, in section 1917-A of the Administrative Code 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 in section 1920-A of the Administrative Code grants the Board the power and the duty to formulate, adopt and promulgate rules and regulations as may be determined by the Board for the proper performance of the work of the Department.
The Land Recycling and Environmental Remediation Standards Act (Act 2) (35 P. S. §§ 6026.101--6026.909), which in section 104(a) of Act 2 (35 P. S. § 6026.104(a)) authorizes the Board to adopt Statewide health standards, appropriate mathematically valid statistical tests to define compliance with Act 2 and other regulations that may be needed to implement the provisions of Act 2. Section 301(c) of Act 2 (35 P. S. § 6026.301(c)) authorizes the Department to establish by regulation procedures for determining attainment of remediation standards when practical quantitation limits set by the United States Environmental Protection Agency (EPA) have a health risk that is greater than the risk levels established in Act 2. Section 303(a) of Act 2 (35 P. S. § 6026.303(a)) authorizes the Board to promulgate Statewide health standards for regulated substances for each environmental medium and the methods used to calculate the Statewide health standards.
The Waste Tire Recycling Act (Act 190) (35 P. S. §§ 6029.101--6029.113), which in section 105(4) of Act 190 (35 P. S. § 105(4)) authorizes the Department to regulate the disposal of waste tires.
The Radiation Protection Act (35 P. S. §§ 7110.101--7110.703), which, in sections 7110.301 and 7110.302 of the Radiation Protection Act grants the Department the authority to propose regulations and the Board the authority to adopt the Department's regulations to accomplish the purposes and carry out the provisions of the Radiation Protection Act.
Section 4909(e) (relating to transporting foodstuff in vehicles used to transport waste) of the Vehicle Code (75 Pa.C.S.A. §§ 101--9805), which grants the Board the power and duty to adopt regulations, if necessary, to carry out the requirements of section 4909.
D. Background of the Amendments
The residual waste program in this Commonwealth was predominantly developed under the SWMA (Act 97). Currently, there are no comprehensive Federal regulations governing the management of nonhazardous industrial, mining and agricultural wastes (residual waste), with the exception of Federal regulations for the management of used oil. Act 97 authorized the Department to develop and promulgate regulations to manage residual waste. Under Act 97, residual waste generally consists of waste from industrial, mining and agricultural operations, and includes non hazardous sludge from an industrial, mining, or agricultural waste treatment or pollution control facility. On July 4, 1992, the Department promulgated a comprehensive set of regulations for the management of residual waste. The regulations were developed over a long period of time to allow extensive input from the public and the regulated community.
With the passage of Act 2 in 1995 and the promulgation in 1997 of regulations to implement that law, the Department has taken the opportunity to further consider the interaction between Act 2 and the SWMA, with respect to waste management facilities, during this rulemaking process. Changes proposed in this rulemaking were intended to properly place relevant performance standards identified by Act 2 into the operational sections of permitted facilities.
This rulemaking was developed in response to the Secretary of the Department's RBI and the Governor's Executive Order 1996-1 that required all Departments to reevaluate existing regulations. The RBI requires evaluation of regulations based on the following criteria: agency requirements are no more stringent than standards imposed by Federal law unless justified by a compelling and articulable Pennsylvania interest or authorized by State law; requirements are eliminated which are no longer necessary or redundant; performance-based requirements are encouraged; new green technologies are encouraged; a pollution prevention approach is supported; and information is prepared in plain, simple, clear and concise language.
The RBI review process invited the regulated community, local governments, environmental interests and the general public to help the Department identify specific regulations that should be changed based on the RBI criteria. Input was solicited from the Solid Waste Advisory Committee (SWAC), the Pennsylvania Chamber of Business and Industry, the Pennsylvania Waste Industries Association, the Pennsylvania Electric Association, and numerous other groups, individual companies and the public. The opportunity for involvement in this process was noticed in the Pennsylvania Bulletin with a 90-day comment period. Evaluation of the residual waste regulations under the RBI criteria resulted in the Department's preparation of eight separate reports. These reports were made available to the general public, the regulated community, local governments and environmental interest groups. In addition, the Department prepared a Comment and Response Document to address the comments received during the RBI evaluation and to identify which regulations would be revised in response to the comments.
In addition to the process outlined in this Preamble for the RBI evaluation, the Board held three public hearings and provided a 60-day period of public comment on the proposed regulations. Notice of the proposed rulemaking was published at 28 Pa.B. 4073 (August 15, 1998). During the public comment period of this rulemaking, the Department received written comments from 40 individuals or groups, and 3 individuals or groups presented testimony at the public hearings.
The final-form regulatory amendments reflect recommendations identified as a result of the RBI process, necessary changes identified as a result of 5 years of experience in implementing the regulations and recommendations identified during the public comment period for this rulemaking. The Department met with SWAC to review and discuss comments received during the public comment period on this rulemaking on March 11, 1999, and July 8, 1999. In addition, the Department met with a residual waste subcommittee of SWAC on November 4, 1999, to discuss issues relating to the ''waste'' definition in more detail. On June 8, 2000, SWAC reviewed and approved the draft final-form residual waste regulations.
The final-form regulations include various provisions for protecting the public health from radioactive materials that occasionally arrive at residual waste facilities. Language was included in the proposed regulations that would have required the facilities to screen waste for radioactive materials. Public comments were received on the proposal and concerns of the waste industry were shared with the Department. The Department met a number of times with representatives of several components of the waste industry, and on several occasions with SWAC to discuss its proposed approach. The Department also proposed a ''Guidance Document on Radioactivity Monitoring at Solid Waste Processing and Disposal Facilities,'' Document No. 250-3100-001, which received extensive public comment. The Department has prepared a Comment and Response Document for the guidance document. Based on the input the Department received from the commentators on the proposed regulations and the guidance document, the Department has revised the residual waste regulations and guidance concerning radioactive materials and monitoring. Provisions were placed in various sections throughout the regulations to specify the prohibitions and restrictions on acceptance of this type of material. Implementation of the regulations will be assisted by the detailed guidance document.
The Department returned to SWAC on July 13, 2000, to address two specific concerns raised by a SWAC member at the June 8th meeting. The SWAC member had expressed concern that short-lived radioactive material from a patient having undergone a medical procedure would unnecessarily cause alarms to trigger frequently. The final-form regulations authorize such material to be disposed in waste facilities upon case-by-case permission from the Department or upon advance authorization in the facility's approved radiation protection action plan, using the general concepts provided in the Department's guidance document to protect the facility's workers, the public health and safety and the environment.
E. Summary of Comments and Responses on the Proposed Rulemaking and Summary of Changes to the Proposed Rulemaking
Following the public comment periods, the Board and the Department considered the comments received at the public hearings and the written comments in formulating the final-form regulations. The Department has prepared a comment and response document that addresses each comment on the proposed regulations.
The proposed rulemaking specifically requested comments on whether water supply treatment plant sludge should be managed under the residual waste regulations or the municipal waste regulations. One commentator strongly supported the regulations of water supply treatment sludge under the municipal waste regulations rather than the residual waste regulations. After careful consideration the Board decided that there was more flexibility for beneficial use and disposal landfill design in the residual waste regulations. The Department will review the bonding calculation for water supply treatment plant sludges based on the consistent characteristics of this type of waste and revise the bonding worksheets to better reflect the potential impacts of disposal of this waste in a monofill.
The Department proposed new language in § 287.1, regarding the definition of ''clean fill,'' and proposed a deletion in § 287.101, regarding the management of clean fill. Several commentators offered opinions and recommendations concerning these changes. The Department decided not to make changes to the final-form rulemaking on issues relating to ''clean fill.'' Based on the recent release of the safe fill package for public comment, and the development of an alternative proposal by the Cleanup Standards Scientific Advisory Board, the Department intends to continue its evaluation of recommendations received. The Department intends to propose a new rulemaking to address issues relating to clean fill.
The following is a summary of major comments received and changes which have been made to the proposed rulemaking. The summary is listed in the same order as the final-form regulations.
Chapter 250. Administration of the Land
Recycling ProgramSection 250.9. Interaction with other environmental statutes.
In the proposed amendments, the references to abatement and remediation standards were removed for permitted waste management facilities and properly placed in Articles VIII--IX.
Commentators suggested that the proposed regulations should encompass more than numeric values--the nonsuse aquifer standards, the remediation process, the liability release of Act 2 and compliance points should be incorporated.
The Board decided to maintain the process requirements under the SWMA with respect to the abatement and remediation of groundwater at permitted solid waste facilities. The extension of compliance points, beyond the property boundary, has been incorporated for secondary contaminants at the time of closure. It is the Board's intention to minimize the offsite migration of contamination at a permitted facility. A facility that is operating in accordance with the design and performance standards of these regulations is subject to early warning monitoring requirements that should prevent contamination from leaving the facility's property. The Board does not intend to incorporate the nonuse aquifer Statewide health standards, therefore, since contamination should largely be contained on the property where the facility is located.
On final-form rulemaking, no changes were made to this section.
Chapter 287. Residual Waste
Management--General Provisions
Subchapter A. General Provisions Section 287.1. Definitions.
The Board received a significant number of comments on this section.
''Abatement standard''
A commentator indicated that the term ''abatement standards'' should not be redefined for these regulations, but should refer to the standards developed under Act 2. The Board continues to find it appropriate to identify standards for cleanups relating to a facility that continues to receive waste that are different from standards for cleanups of discrete spills or releases. Limitations on the use of Act 2 standards for permitted, operating facilities were incorporated to preserve the integrity of the design, operating and performance standards of the processing or disposal unit.
''Accumulated speculatively''
Several commentators raised concerns about the adoption of the term ''accumulated speculatively.'' Commentators suggested that the regulations should reflect market dynamics, that the removal rate should not apply to existing piles from historical production, and that accumulation of residual wastes does not pose a threat of harm to human health and the environment. In addition, with respect to coproducts, a commentator indicated that the existing performance standard, ''actually used on a regular basis,'' is more understandable, practical and effective than the actual calculation of material recycled. The Board decided that the term ''accumulated speculatively'' is necessary to assist in determining when a material is a waste, when waste is used or reused and when ''storage'' ends and ''disposal'' begins. The improper storage or continued storage of residual waste for a lengthy time period has the potential to pose threats to human health and the environment. The Board believes that calculation of material that is actually recycled or transferred for recycling is a clear, measurable goal. With respect to historical piles, the residual waste regulations adopted in 1992 required all waste piles to close under a closure plan or become permitted. These final-form regulations include an exemption from the term ''accumulated speculatively'' if waste is being mined and if the mining is being done pursuant to a waste closure plan or, for waste disposed prior to September 7, 1980, the mining is being done under an approved mining permit.
''Aquifer''
Commentators suggested that the definition for ''aquifer'' should be revised to conform with Federal regulations that refer to being ''capable of yielding significant quantities of groundwater to wells or springs.'' The Federal definition has not been incorporated due to variations in the actual or potential use of the groundwater. The existing regulations provided a more objective test by referring to the capability of yielding sufficient groundwater for monitoring purposes.
''Background standard''
One commentator indicated that the regulations should not include a definition for the term ''background standard'' since the term is used in the land recycling regulations. The Board decided that the term is necessary in the waste regulations for the purpose of referring to acceptable abatement and remediation standards for waste facilities.
''Clean fill''
An effort was made to address the clean fill issue by including an additional public comment period on the draft regulatory revisions, a draft Safe Fill Policy and a draft general permit. As a result of comments received on the regulations and during the additional public comment period, the Department will remove this portion from the regulatory package and prepare a separate regulatory package that addresses these issues. Parts of the expanded public comment period not directly related to clean fill have been included in this rulemaking, including the permit waiver language for waste encountered as part of a remediation, and a revision to the general permitting regulations to allow for the issuance of a general permit for fill.
''Container''
One commentator recommended that the regulations include a definition for the term ''container,'' referring to a stationary vessel which is used for the onsite storage of produced residual waste materials. The Board decided that the term does not need to be defined. It is difficult to craft a definition for the term that is suitable for the management of all residual wastes; therefore, it is necessary to maintain some flexibility in the application of the term.
''Contaminated water''
One commentator indicated that the use of the phrase ''contaminated water'' in the definition of ''waste'' is problematic because it creates a duplicate regulatory structure for wastewaters discharged under an NPDES permit. The definition of ''residual waste'' in the SWMA includes liquid materials resulting from industrial operations. The residual waste regulations avoid duplicative regulation of wastewaters where necessary. For example, a person processing wastewater may be eligible for a permit-by-rule under the residual waste regulations, which prevents duplicative permitting.
''Coproduct''
Several commentators raised concerns about the proposed amendments to the ''coproduct'' definition. Commentators indicated that the current definition should be retained without change, that the proposed definition expands greatly the class of materials that will now be deemed a ''solid waste,'' and that the definition should be modified to allow coproducts to be compared to wastes or other coproducts. Some commentators did not understand why the materials that may qualify as coproducts are limited to those used for energy recovery or land application.
Several commentators raised concerns about the proposed regulation concerning the Btu value associated with energy recovery. Commentators indicated that a ''bright-line'' test based on a minimum Btu value would remove the Department's flexibility to decide, on a case-by-case basis, what constitutes energy recovery. Other commentators supported a Btu/lb. limit at 5,000, identical to the hazardous waste program requirements. Commentators also recommended that the Btu rating be expressed on a per pound basis.
The Board supports the adoption of modifications to the definition of ''waste'' and related terms to be consistent with the approach used in the RCRA program and the state hazardous waste program. Based on this support, the Board recognizes the need to preserve opportunities for the land application and energy recovery of materials generated from industry, without regulation, as long as sufficient safeguards exist to prohibit sham recycling. The final-form regulations expand the exemptions in the definition of ''waste'' to exclude, upfront, material reused offsite as an ingredient in manufacturing. This expansion eliminates the need for certain materials to qualify as coproducts, since they are not regulated. For purposes of clarity, the final-form rulemaking includes language that prohibits materials from being compared to materials that undergo a determination under § 287.7 (relating to determination that a material is no longer a waste) since such a determination is often conditional. With respect to energy recovery, based on comments received, the Board is adopting a minimum standard of 5,000 Btus/lb. for coproducts burned for energy recovery, except for material that is oil. This minimum standard is based on EPA's longstanding sham recycling policy that wastes with a Btu value of 5,000/lb. or more are considered to be fuels. If the proposed coproduct is oil, the oil must not be contaminated by physical or chemical impurities and its Btu value must be comparable to the petroleum fuel it is replacing.
''Dredged material''
One commentator recommended that ''dredged material'' not be regulated under the residual waste regulations. The proposed amendments placed the management of dredged materials under the scope of Article IX, instead of Article VIII. The Board decided on final-form rulemaking that the residual waste regulations provide more opportunities for reuse of this material than the municipal waste regulations. In addition, on final-form rulemaking, the Board added language to the definition to clarify that material removed or dredged from an impoundment that received solid waste does not fall within the meaning of ''dredged material.'' Dredged material typically refers to material excavated from waterways and ponds.
''Groundwater degradation''
Commentators indicated that the regulations should define ''groundwater degradation'' as a measurable increase over background, Statewide health standards or risk-based standards (as those terms are used in Act 2). The Board decided to retain the existing definition because the Statewide health standards and risk-based standards only measure a level of degradation that triggers abatement. At those levels, groundwater may still be degraded.
''Leachate''
Commentators suggested that a Federal definition for ''leachate'' be substituted for the existing definition. The Board rejected this recommendation because the Federal language does not add any clarity to the term.
''Municipal-like residual waste''
Commentators have indicated that there is confusion surrounding the use of the term ''municipal-like residual waste.'' While the proposed regulations included a definition for this term, it appears that the defined term has not added clarity. Commentators have stated that this waste represents a ''fourth waste class'' which is not mentioned in the SWMA or Act 101. Commentators have suggested that the term is not used consistently--the Department sometimes considers this waste to be municipal waste and at other times considers it to be residual waste. Concerns have been raised that the regulations would allow residual wastes having the same characteristics as household hazardous wastes to be managed as residual wastes. In response to these comments, the Board decided to delete the term ''municipal-like residual waste'' from the definitions and elsewhere in the final-form regulations. The final-form regulations continue to allow the Department to waive the detailed chemical analysis required for disposal of residual waste if certain performance standards are met under § 287.134 (relating to waste analysis plan).
''Perennial stream''
One commentator recommended clarification of the definition of the term ''perennial stream'' to include the concept that the stream must flow continuously in all seasons of the year. The Board continues to support the current definition which is science-based and has been successfully used in this program as well as other programs administered by the Department.
''Product''
Commentators suggested that the definition of the term ''product'' be conformed to the definition for the same term in the hazardous waste regulations and that the definition be amended to provide that the commodity is one of the primary intended results (instead of the sole or primary result) of a production process. The hazardous waste program no longer defines the term ''product.'' The Board decided that the existing language, referencing the sole or primary result, is appropriate.
''Reclaim''
One commentator recommended that ''reclamation,'' itself, is a form of use or reuse and that reclamation should not be treated differently than any other form of use or reuse. The Board supports the proposed definition for ''reclamation,'' a material processed to recover a usable product or regenerated, which is consistent with the Federal definition for the same term. It is necessary to retain this term to make the final definition of ''waste'' and related terms work.
''Regional water table''
One commentator indicated that the definition of the term ''regional water table'' does not include perched water table. The definition for ''regional water table'' intentionally excludes perched water tables because the perched water tables are smaller-scale, distinctly isolated units from the regional water table. As such, the regulations address isolation distances from these bodies of water differently.
''Related party''
One commentator suggested that the term ''related party'' should be limited to persons with the responsibility or ability to direct or control activities relating to the processing or disposal of solid waste at a facility. The Board does not agree with this recommendation because even a party without the ability to direct or control activities can still significantly affect them.
''Remediation standards''
Commentators suggested that definitions of the terms referred to in the definition of ''remediation standards'' should not be included in this rulemaking because they add confusion rather than clarity. The Board retained the terms and their definitions on final-form rulemaking. Differences in the terminology are necessary since the standards apply differently in Chapter 250 and these regulations.
''Scrap metal''
One commentator recommended that the definition of ''scrap metal'' be amended to refer to material that can be recycled, not merely reused. The Board decided to maintain the definition as proposed since a waste permit for processing is required before the material can be reused and because it is consistent with the federal definition and the state hazardous waste definition.
''Seasonal high water table''
Two commentators recommended that the term ''seasonal high water table'' be defined as the uppermost aquifer seasonally present. The seasonal high water table is evidence for a saturated condition that may result from slowly permeable layers in the soil profile. It may exist and fluctuate in response to seasonal trends in precipitation and may be above the regional groundwater flow system. The seasonal high water table and the regional groundwater table require different isolation distances in relation to the liner system. The Board adopted changes to this term on final-form rulemaking to be consistent with the municipal waste regulations.
''Special handling waste''
One commentator recommended that the definition of the term ''special handling waste'' should only refer to the wastes specifically listed. To date, the Board added materials to the list only through rulemakings, based on experiences that necessitated special handling procedures for certain waste types. Due to the wide range of wastes generated, however, it is not always possible to anticipate when special handling procedures are necessary for a waste type. Therefore, the Department maintains some discretion on deciding when to identify a new waste as one requiring special handling. On final-form rulemaking, the definition of dredged material has been added to the list of special handling wastes due to the physical and chemical characteristic of the material.
''Statewide health standard''
Two commentators indicated that the term ''Statewide health standard'' should include the nonuse aquifer standards and that waste facilities should be subject to all of the Act 2 standards. The Board disagrees since the intention of the solid waste program is to minimize offsite migration of contamination at regulated facilities.
''Steel slag''
Commentators recommended that the definition of ''steel slag'' be amended to include material generated in the making of steel in a basic oxygen furnace, that the exemption of steel slag from the ''waste'' definition be expanded to uses offsite, that the words ''uncontaminated, nonwater soluble'' and ''inert'' be deleted from the definition, and that the term include slags from iron furnaces. The Board does not believe that an expansion of the slag exemption is warranted. The chemical characteristics of steel slag (such as, metal content) vary considerably depending on the steelmaking process. The restriction for use onsite is appropriate because there is more control over the proper management of the material. The Board decided that the term ''inert'' should be deleted from the definition, and the final language reflects the change.
''Waste''
Several commentators offered input on the definition of ''waste.'' Commentators indicated that implementation of the proposed language will cause recycling to be more expensive. In addition, commentators suggested that language should be added to provide for more exclusions from ''waste'' for materials such as clean fill, scrap metal, steel slag, materials for reclamation, metals, clean glass, paper, cardboard, and NPDES discharges. One commentator stated that the definition of ''waste'' regulates non-hazardous reclaimed secondary materials more stringently than the federal hazardous waste regulations. Some commentators indicated support for the definition since it would exclude from regulation materials that are recycled by being used or reused as an ingredient in an industrial process.
The Board decided not to adopt suggested revisions. Many of the materials recommended for exclusion already are excluded if used in an industrial process to make a product or used as an effective substitute for a commercial product. There is no need to exempt NPDES discharges from the definition of ''waste'' since they are not regulated under the SWMA. Only the collection, storage and processing of wastewaters, prior to discharge, are regulated under the SWMA. A total exemption for steel slag was rejected because the degree of variation in the chemical constituents of steel slag continues to mandate implementation of requirements for the proper handling of the material when used offsite. With respect to reclaimed materials, the reference to reclamation in the definition will not affect materials that are being directly recycled, on or offsite, as an ingredient in an industrial process. The regulations will only apply if the material must be processed, through reclamation, prior to use. Most reclamation processes are performed at the site of waste generation and may be eligible for coverage under a permit-by-rule for captive processing. On final-form rulemaking, a typographical error to a cross Section and numbering within the definition was corrected.
On final-form rulemaking, definitions for the following terms were added for further clarification of the regulations: ''airport,'' ''association,'' ''autofluff,'' ''byproduct material,'' ''FAA,'' ''NARM,'' ''NORM,'' ''radioactive material,'' ''source material,'' ''special nuclear material,'' ''TENORM'' and ''transuranic radioactive material.'' The term ''airport'' was added to clarify the types of landing areas that are implicated in the siting restrictions and environmental assessment. A definition for ''association'' was added for clarification in the permit application requirements relating to the identification of interests and compliance history. The definition is taken from section 102 of the Corporations Code (15 Pa.C.S. § 102) (relating to definitions). A definition for ''autofluff'' was added to clarify the use of the term in the scope section, § 287.2. The term ''FAA,'' which refers to the Federal Aviation Administration of the United States Department of Transportation, was added because the new restrictions on the construction and operation of landfills near airports involve the FAA. Definitions for the other terms mentioned here were added to clarify their usage throughout the final-form regulations in the monitoring requirements for radioactive material.
Section 287.2. Scope.
A commentator suggested that ''municipal-like residual waste'' be managed under the municipal waste program rather than the residual waste program to eliminate confusion. A commentator raised concern over the use of the term ''small quantity'' to describe the quantity of residual waste that may be mixed with sewage sludge for management under the municipal waste regulations.
On final-form rulemaking, the Board deleted the term ''municipal-like residual waste'' and its use in the regulations. With respect to sewage sludge, the Board decided to delete subsection (b)(3) entirely and manage any mixtures of residual waste, regardless of quantity, with sewage sludge under Subchapter I (relating to beneficial use) of the municipal waste regulations. In the final-form rulemaking, a new category of waste-waste from land clearing, grubbing and excavation, including trees, brush, stumps and vegetative material-has been added to the list of wastes that are subject to the municipal waste regulations. This waste primarily has characteristics that are generally found in the municipal waste stream. Also, subsection (i) was amended to include the word ''permitted'' when referring to a hazardous waste unit at a facility. This change makes it clear that residual waste may be managed at a hazardous waste facility, without a residual waste permit, as long as the hazardous waste facility is permitted.
Section 287.4. Computerized data submission.
A new subsection (a) has been added in the final-form rulemaking to allow data submissions electronically or on magnetic or optic storage media if the Department is capable of receiving it in that manner for review. A new subsection (c) was added to authorize the Department specifically to require a different scale on maps, reports and plans that are submitted electronically or on magnetic or optic storage media. Maps, reports and plans submitted in this format are capable of showing much more detail than paper maps, reports and plans, and the more detailed information can be accessed and used in many useful, new ways when submitted in this format.
Section 287.8. Coproduct determinations.
Commentators recommended that the final-form regulations ''grandfather'' coproduct determinations recognized by the Department. One commentator recommended that a permit-by-rule be developed to clarify the Department's administrative role. Commentators suggested that a more flexible approach to evaluating risks be incorporated. One commentator suggested that subsection (b)(3) be reorganized into several sentences for clarity. One commentator recommended that the term ''consistently equivalent'' be defined.
On final-form rulemaking, the Board decided not to ''grandfather'' coproduct determinations, but to incorporate a transition time for compliance with this rulemaking (see § 287.10). Since many persons who perform coproduct determinations do not ask and have not been required to ask for Department concurrence, it would not be fair to ''grandfather'' a subset of the determinations made to date. The Board believes that the use of a permit-by-rule would be counterproductive to the reuse of materials. As written, the final-form regulations are flexible with regard to risk assessments. The final-form regulations, with respect to subsection (b)(3), have been reorganized for clarity. In addition, language has been added to subsection (c), requiring a risk evaluation, that was inadvertently excluded from the proposed amendments. A definition of the term ''consistently equivalent'' has not been included in the final-form rulemaking. There is a certain range in the physical characteristics and chemical composition of any substance. Thus, for a proposed material to be a coproduct, the range in the physical characteristics and chemical composition of the proposed coproduct must fall within an acceptable range in the physical characteristics and chemical composition of the intentionally manufactured product or produced raw material to be replaced.
Section 287.9. Industry-wide coproduct determinations.
One commentator recommended that the language ''do not vary over time'' (in subsection (a)) be modified to allow a certain degree of variation in the chemical and physical characteristics of the material generated. One commentator indicated that the ''reopening'' provisions in subsection (c) create a stigma by causing an association with regulations.
The Board believes that the proposed language provides adequate flexibility for determining the degree of variation in chemical and physical characteristics. In addition, the Board does not believe that a ''stigma'' is caused by indicating that a discovery of misinformation or misuse will jeopardize the coproduct status.
Section 287.10. Coproduct determination transition.
A new section has been added on final-form rulemaking that provides a transition scheme for existing coproducts to become compliant with the final-form regulations. This Section was added in response to the comments received regarding the ''grandfathering'' of existing coproducts. Since the regulations never required persons to request concurrence from the Department on coproduct determinations, the Board does not believe it is appropriate to ''grandfather'' one subset of coproduct determination. In order to maintain a ''level playing field,'' the transition scheme has been developed. Under the transition, new coproduct determinations must be made in accordance with the final-form regulations. Persons may continue to operate under previously made coproduct determinations provided documentation is maintained demonstrating continuing compliance with those determinations. Finally, all persons operating under coproduct determinations must be in compliance with these final-form regulations within 2 years of the effective date of the regulations.
Subchapter B. Duties of Generators Section 287.51. Scope.
One commentator suggested that the word ''requirements'' be inserted after the phrase ''biennial report and source reduction strategy'' in subsection (a). The final-form rulemaking incorporates this change. In addition, subsection (c) has been modified to indicate that the biennial report, source reduction strategy and chemical analysis of waste are not required for persons who meet the requirements of paragraphs (1) or (2); however, records must be created and retained in accordance with § 287.55 (relating to retained recordkeeping).
Section 287.52. Biennial report.
One commentator suggested that the biennial report requirement be eliminated for facilities filing annual 26R reports. The requirement has been retained on final-form rulemaking because the two reports ask for different information regarding the waste streams. For example, a detailed chemical analysis of waste is required for the 26R report, while the biennial report is more focused categories of waste and their volumes. On final-form rulemaking, the Board amended subsection (c) to authorize a manager (the parallel to an officer of a corporation) to sign on behalf of a limited liability company.
Section 287.53. Source reduction strategy.
Two commentators requested that the regulations include a waiver of the source reduction strategy requirements for small waste streams generated by large quantity generators. One commentator suggested that it is wasteful to require the submission of source reduction strategies to landfills.
The requirements pertaining to source reduction strategies have been in place since 1992. The Department temporarily relieved industry from performing the evaluation on small waste streams for a long period of time, until the larger waste streams were reviewed. Sufficient time has passed to progress to the next level of waste stream evaluation. With regard to the submission of the strategies to the landfills, the Department is in the process of modifying the source reduction strategy forms to reduce the information that must be submitted to the landfill with the Form U. On final-form rulemaking, the Board amended subsection (e) to authorize a manager (the parallel to an officer of a corporation) to sign on behalf of a limited liability company.
Section 287.54. Chemical analysis of waste.
Commentators suggested that the threshold for requiring a chemical analysis should be the generation of 2,200 pounds per month for each waste stream. Also, the commentators recommended that generator knowledge be an acceptable substitute for chemical analysis. In addition, commentators indicated that the proposed regulation requiring the determination of the leaching potential of residual wastes should be eliminated because a waste characterization is required to be performed under Form 26R and the test is not applicable to waste that is not landfilled. One commentator asked for clarification of the types of modifications the Department may make to the requirements, when requested, for special handling waste.
The existing threshold for the chemical analysis requirement takes into account many smaller waste streams that accumulate into large quantities of waste. The regulations currently allow for the use of material safety data sheets or similar sources of information to help characterize the waste. With respect to modifications of the requirements, one example of when a chemical analysis would not be necessary is in the case of waste tires.
On final-form rulemaking, the proposed language requiring the performance of a leach test has been deleted. In addition, a new subsection has been added requiring a person to perform a chemical analysis every 5 years. This requirement was added to verify the initial analysis to make sure that the waste characteristics have not changed and to assist with the evaluation of the source reduction requirements.
Section 287.55. Retained recordkeeping.
One commentator indicated that the records retention requirement should not apply to captive disposal facilities because it is not practical for continuously produced wastes. The commentator suggested that regulations should allow the use of daily landfill operational reports to meet this requirement. The operational reports may be used to meet this recordkeeping requirement if all the waste generated is disposed in the captive facility.
On final-form rulemaking, language has been added to clarify that the generation of any quantity of residual waste triggers the records retention requirements.
Subchapter C. General Requirements for Permits and Permit Applications
General Section 287.101. General requirements for permit.
One commentator suggested that R&D operations should be exempt from permitting requirements. The requirements for demonstration permits have been modified in the final-form regulations to allow greater flexibility for these operations.
One commentator suggested that all beneficial uses should be exempt from permitting requirements. The SWMA requires that beneficial use of waste be performed pursuant to a general permit.
A commentator suggested that a new requirement should be created that authorizes the issuance of a single permit that integrates two or more separate authorizations. Provisions in § 287.2 currently authorize this practice in certain programs, such as the collection, storage and processing of residual waste at a permitted hazardous waste facility.
On final-form rulemaking, new language has been added to subsection (c) that clarifies circumstances when the Department may require a person or municipality to obtain a permit, regardless of the exemptions outlined in (b), based on harmful conduct. In addition, a new subsection (e) has been added on final-form rulemaking that would allow the movement of waste, encountered during a site remediation under Act 2, from one location of the site to another as long as the waste remains onsite, is moved in accordance with a Department-approved remedial investigation report under the site-specific standard, and is moved in accordance with this subsection. No permit is required for the movement of waste in accordance with this subsection.
Section 287.102. Permit-by-rule.
On final-form rulemaking, the Board decided to modify subsection (f), relating to beneficial use, by adding an expiration date of July 4, 2002, unless a specific permit term is written as a condition of the prior written approval, for activities conducted under this permit. Many of the uses approved prior to 1992 may be outdated and may be in conflict with present beneficial use requirements. After 2002, these operations would be eligible to apply for general permits. In addition, the Board decided to include a new permit-by-rule, subsection (k), which allows the temporary storage of residual waste at a hazardous waste transfer facility. Many operations transport both hazardous and residual wastes from industries. This permit will facilitate the transportation or transfer of the wastes as long as all waste is stored in accordance with hazardous waste requirements for hazardous waste transfer facilities and the conditions of this permit are met.
Transition System for Existing Facilities Section 287.112. Storage impoundments and storage facilities.
Commentators indicated that the use of the property boundary as the point for measuring containment of contaminants, to determine whether a liner and leachate treatment system may be waived or modified, is inconsistent with Act 2 standards. The commentators stated that facility operators would be prevented from taking advantage of Act 2 provisions that allow movement of the point of compliance further down gradient for secondary contaminants. The Board does not agree with this recommendation because these regulations apply to facilities that utilize old technology and the intentions are to minimize impacts from these waste facilities and to only allow permit issuance of technology if it does not result in uncontrolled pollution.
A commentator indicated that the waiver provisions for storage impoundments are stricter than the waiver provisions for disposal impoundments, with respect to the management of groundwater degradation. The commentator suggested that this section be revised to incorporate the same flexibility as is afforded to disposal impoundments. The Board disagrees with this recommendation because storage impoundments can be taken out of operation and readily repaired since the waste does not remain in place permanently.
No changes were made to this section on final-form rulemaking.
Section 287.115. Filing by permitted facilities.
The proposed regulations included language that did not allow waiver or modification of a liner or leachate treatment system for areas identified in an application for a new permit or permit modification submitted after July 4, 1997. Several commentators suggested that the language be revised to ensure the waiver provisions are maintained for facilities originally permitted prior to July 4, 1992, since sites currently operating under the waivers in an environmentally responsible manner should be allowed to expand using the same design. The Board disagrees with this recommendation. The 1992 regulations allowed for an extended transition and allowed industries to continue to operate utilizing old technologies. At this point in time, it is appropriate to encourage the use of state-of-the-art technologies in areas where facilities intend to expand.
On final-form rulemaking, subsection (c)(4) has been modified to allow consideration of waivers for areas identified in an application submitted prior to the effective date of these regulations--rather than prior to July 4, 1997.
Section 287.117. Closure plan.
Subsection (j)(1) has been modified to clarify what was meant in the proposed regulations by the word ''prior'' when used to describe a point in time. The final-form regulations clearly state that the remediation standards referred to are those identified in agreements entered into prior to the effective date of these regulations.
Section 287.122. Form of application.
The Board amended subsection (d) on final-form rulemaking to clarify that the design section of a permit application must bear the seal of a Pennsylvania registered professional engineer. Also, the Board clarified that the geologist who supervises the completion of the geology and groundwater Sections of an application must be licensed in this Commonwealth
Section 287.123. Right of entry.
A commentator recommended that the final-form regulations remove the requirement for written consent of a landowner to conduct waste processing or disposal activities if the permit applicant owns the land. The landowner consent requirement is important for the purpose of informing future landowners of the activities, since the form is required to be recorded with the deed.
Because the Department currently requests information required by subsections (b) and (c) on one form, the Board amended subsection (d) to require that all of the information on that form--landowner consent to waste activities and landowner consent to the Commonwealth's right to enter the permit area--be recorded. A new subsection (e) has been added to indicate that subsequent landowners are deemed to have constructive knowledge of the Commonwealth's right of entry and the consent of solid waste activities on the land if the forms required by this section are properly filed at the office of the recorder of deeds in the county in which the proposed solid waste activity is situated.
Section 287.124. Identification of interests.
A commentator suggested that contractors, limited partners, or principal shareholders, except those with the responsibility or ability to direct or control waste activities, should not be included as interests to be identified. The Board declined to make these changes because all contractors that perform work at these environmentally sensitive facilities should be identified and reliable. With regard to limited partners and principal shareholders, these persons may have the ability to direct or control activities, whether officially or not.
Subsection (b) was amended on final-form rulemaking to include limited liability companies, a type of association recognized in the Pennsylvania Corporations Code since 1994. A correlating change was made to subsection (c) to include members or managers of limited liability companies, who are the parallels of owners and officers in corporations.
Section 287.125. Compliance information.
One commentator suggested reducing information that must be reported concerning legal proceedings. The Board declined to make this change because relevant information, which might otherwise not come to the Department's attention, is often brought to light in the types of actions proposed for deletion by the commentator.
The Board updated subsection (a)(7) in the final-form regulations to include requirements for limited liability companies and partnerships.
Section 287.127. Environmental assessment.
Several commentators suggested eliminating the balancing of interests and one commentator specified that the test should simply be one of mitigation. The final-form regulations retain the balancing test for many reasons. The test is reasonable, takes into account input from and dialogue with interested parties, including the applicant, and involves close scrutiny of all factors by the Department. The environmental assessment, including the balancing test, carries out the Department's obligation under the SWMA to implement PA. CONST art. I, § 27, which mandates that the Commonwealth protect public resources. The test is designed to take into account the site-specific impacts the waste management facility may have on the specific location of the facility and other affected areas. Under PA. CONST. art. I, § Article I, § 27, the Department has been balancing harms and benefits for many years. Balancing harms and benefits finds support in case law.
One commentator thought the word ''clearly'' should be eliminated from subsections (c) and (d), and that social and economic benefits should not be reduced by social and economic harms. The Board retained both concepts because the balancing test is not a simple mathematical computation so benefits must ''clearly'' outweigh harms in order to ensure that public resources are protected; and social and economic harms should be considered because they help to create a true picture of the social and economic impacts of the facility. To complete the picture, environmental benefits are also considered.
Two commentators stated that the Board should not allow private parties to determine specific ''known and potential harms.'' The response is that the applicant must identify all known and potential harms and must evaluate all harms identified by itself, potentially affected persons, the Department and other agencies. Section 287.127 is designed to elicit information from affected parties as to their perceptions of the known and potential harms to ensure a comprehensive environmental assessment. Ultimately, upon review of the application and all other input received, the Department determines what the specific ''known and potential harms'' are.
A commentator expressed concern that subsection (f) would result in litigation if not every potentially affected person were consulted by the Department. The response is that this section describes the timing of the Department's evaluation of the environmental assessment. The timing is not new and should not create a new right since the same timing was described in subsection (b) before this section was revised by this rulemaking.
One commentator suggested that this section should only apply to applications filed after the effective date of the final-form regulations. A decision will be made on an application, however, based on the law that is in effect at the time the decision is made.
Several changes were made to the final-form regulations. The Board added ''local parks'' to the list of features in subsection (a) that an applicant must consider in determining the potential impacts of a proposed facility or modification to fill in the gap left by only listing state and Federal parks.
The Board added ''airports'' to the list of features in subsection (a) to clarify that if a proposed facility will have the potential of causing harm to aircraft arriving at or departing from an airport, the application will have to include a plan to mitigate the harm or potential harm.
The Board added a requirement to subsection (a) that an application contain correspondence from any agencies to the applicant in regard to the environmental assessment to facilitate the Department's review of the environmental assessment.
The Board amended subsection (c) to clarify that harms and mitigation measures described in subsection (b) will be taken into consideration when the benefits and harms of the proposed facility are weighed. The Board similarly amended subsection (d).
Section 287.131. Scope.
On final-form rulemaking, the Board modified subsection (a)(1) to refer only to ''captive'' transfer facilities. The effect of this change is to apply the waste analysis requirements to noncaptive transfer facilities--not captive transfer facilities. Captive facilities are exempt because the waste streams received at these facilities are generated by one generator. The waste types, therefore, do not change and the waste stream is predictable.
Section 287.132. Chemical analysis of waste.
A commentator suggested that the availability of a waiver for chemical analysis should be eliminated for municipal-like residual waste. The proposed term ''municipal-like residual waste'' has been deleted from the final-form rulemaking in response to comments that it was too confusing. The final-form regulations include new language that is intended to clarify that the evaluation required by subsection (a) may be waived or modified if the applicant demonstrates that additional analysis is not necessary to determine that the waste can be received without adversely affecting the effectiveness of waste processing or disposal operations, established emission and wastewater discharge limits, liner or leachate treatment systems or, at Class III landfills, attenuating soil.
Section 287.135. Transition period for radiation monitoring.
All materials on earth have some level of radioactivity, but not all endanger the public health or safety or the environment. The final-form regulations establish a system for protecting the public (including residual waste facility employes) and the environment from the improper disposal and processing of radioactive materials that could endanger the health and safety of the public or the environment. These requirements appear in each chapter of the regulations and are the result of public comments received on proposed §§ 288.214, 289.224, 293.215 and 297.214. Section 287.135 has been added to establish a transition period for coming into compliance with the requirement to have the permit designate an area for vehicles in the event of the detection of waste containing radioactive material and the requirement to have the permit include an action plan specifying, among other things, procedures for monitoring and responding to radioactive material entering the facility. The Department's Guidance Document on Radioactivity Monitoring at Solid Waste Processing and Disposal Facilities, document number 250-3100-001, gives direction for developing action plans, monitoring for radioactive material in waste and preparing records and reports. A facility operator may adopt the standards and procedures in the guidance document even before the regulatory requirements that are transitioned under § 287.135 become applicable. An operator may also seek approval of an action plan and a designated area before the deadline established in this section. Since the requirement for radioactive monitoring is limited to noncaptive landfills, disposal impoundments, and incinerators, the Board has provided a 1-year transition for all facilities.
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