[31 Pa.B. 235]
[Continued from previous Web Page] Section 287.141. Permit application fee.
The final-form regulation moves the fee for a minor permit modification from subsection (b) to subsection (c). Now, the fees in subsection (b) only apply to major permit modifications. Subsection (c) addresses the fee for minor permit modifications. All minor modifications, including onsite modifications authorized under § 287.222(c) (relating to permit modification), will be subject to this fee.
Section 287.151. Public notice by applicant.
Commentators indicated that the requirement to list contaminants in public notices is unnecessary because most of the public is unfamiliar with an understanding of chemicals and their effects on the environment and the notification will raise unnecessary public concern. A commentator recommended that the notice include only concentrations of groundwater degradation that exceed the background standard or the Statewide health standard at the applicable point of compliance. The Board declined to make the change suggested. An applicant is not limited to listing chemicals in a notice and may choose to provide an explanation of the chemicals that the public will understand. The proposed language is intended to parallel the Act 2 process, which requires notice by publishing a Notice of Intent to Remediate.
Section 287.153. Public comments.
One commentator recommended that the regulations be clarified to state that comments may be submitted to the Department by any person affected by a project at any time and may be considered by the Department, but that the Department is not required to consider comments not submitted in a reasonably prompt and timely manner. The Board decided that no change is necessary to this section. The Department provides for a formal comment period whenever it publishes notice of a permit application received. The Department will consider the comments it receives on a facility at any time during the permit review or during operation of the facility if it is issued a permit.
Section 287.154. Public notice and public hearings for permit modifications.
One commentator recommended that changes in average daily volume be considered a minor permit modification, rather than a major permit modification, because the changes only affect phase-in bonding and do not impact upon traffic, noise, dust or other environmental or public safety issues. The Board supports the proposed language because increasing the daily volume may significantly change day-to-day operations at the facility and may impact the surrounding area.
A commentator suggested that changes in contours and elevations which increase capacity by less than 6 months should be exempt from being considered major permit modifications. The Board supports the proposed language because depending on the size of the facility, this increase could be substantial. An increase in capacity (air space or size) is a major permit modification because it changes the facility's design and operating plans which can potentially impact the public in the vicinity of the facility.
New subsection (a)(12) and (13) relate to change of owner or operator. The Board added this language on final-form rulemaking to ensure that a change in the owner or operator of a landfill will require a major permit modification if the party that is changing is not the permittee. If the party that is changing is the permittee, the change will require permit reissuance under § 287.221 (relating to permit reissuance).
The Board added subsection (a)(14), which requires a major permit modification to dispose of waste in areas that have reached final permitted elevations because reopening areas that have reached final permitted elevations may significantly affect the closure and post closure construction activities that have been undertaken. In addition, the structural stability of the landfill must be reevaluated to account for the additional waste.
The Board added subsection (a)(15) to clarify that submission of a radiation protection action plan for Department approval will be considered an application for a major permit modification.
The Board added subsection (b)(9), which requires a major permit modification for a change in the maximum daily waste volume at a processing facility, because major components of the previously approved permit application are likely to change, including procedures for minimization and control of traffic, dust, noise and odor. On final-form rulemaking, new requirements in §§ 297.112 and 297.222 (relating to daily volume; and daily volume) establish the requirement for an approved maximum daily average in permit applications.
The Board added identical provisions to the provisions it added in subsection (a) regarding change in owner or operator in new subsection (b)(7) and (8) and regarding radiation protection action plans in new subsection (b)(9), relating to processing facilities, and new subsection (c)(4) and (5), relating to land application operations. The effect will be the same.
Subchapter D. Permit Review Procedures and Standards Section 287.201. Criteria for permit issuance of denial.
On final-form rulemaking the Board added a new subsection (a)(4) to require that mitigation plans required by § 287.127 be implemented prior to obtaining a permit if required by the Department. This requirement is designed to help ensure proper and effective mitigation of harms and potential harms that can and should be mitigated prior to permitting.
Section 287.202. Receipt of application and completeness review.
One commentator suggested that a project approval or disapproval timeline should be established for all applications, if requested by the applicant. The Department's ''Money-Back Guarantee Permit Review Program Expansion,'' published in 26 Pa.B. 3038 (June 29, 1996), establishes timelines for Department approval or denial of all permit applications. The Board declined to make this change in the final-form regulations.
On final-form rulemaking the Board added language relating to the procedures for receiving an application and performing a completeness review. These changes are consistent with the approach used in the municipal waste program. In general, the new procedures afford a greater opportunity for concerned parties to participate in the application review process for new facilities and for certain permit modifications to existing facilities.
In subsection (b), a permit application for a new facility or a permit modification that would result in an increased average or maximum daily volume, increased disposal capacity or expansion of the permit area will not be considered to be ''received'' by the Department until the Department, applicant and municipal officials have met to discuss the proposed application. For purposes of this section, the term ''municipal officials'' includes representatives of local municipalities, including the host municipality and county, municipalities adjacent to the host municipality, municipalities located within 1 mile of the permitted or proposed area, other municipalities that demonstrate that they may be adversely affected by the proposed project and municipalities along the approach routes (subsection (f)).
Subsection (b)(2) requires an alternative project timeline to be developed for a noncaptive residual waste landfill, disposal impoundment or incinerator permit application. The Department's money-back guarantee permit review program will be updated to reflect these new regulatory requirements. The final-form regulations require an alternative timeline for these three types of facilities because these facilities tend to invoke the most public concern and are therefore the best candidates in the residual waste program for an alternative project timeline.
New subsection (f) includes definitions of the terms ''local municipalities,'' ''approach routes'' and ''municipal officials,'' as those terms are used in this section.
Section 287.203. Review period.
The Board has amended subsection (a) to identify the timelines for review of permit applications for captive landfills and disposal impoundments and for noncaptive residual waste landfills, disposal impoundments and incinerators.
Section 287.211. Term of permits.
A commentator recommended that subsection (e) be amended to allow the measurement of the 5-year period from the date of the ultimate resolution of any litigation challenging the validity of the permit. Also, the same commentator recommended that a new subsection be added to allow activities at permitted sites to be suspended pursuant to a temporary shutdown plan approved by the Department. The Board declined to make the changes because the project initially approved may require upgrading to meet current technology and management practices.
On final-form rulemaking, the Board added language to subsection (d) to require an operator to provide a summary of changes to the operations since approval of the initial permit or latest major permit modification when the Department conducts its 5-year review of the facility. This requirement was added because it provides the Department with the information in a format that will facilitate the review of the existing permit.
Section 287.212. Conditions of permits--general and right of entry.
One commentator indicated that in this era of corporate mergers and acquisitions, providing the compliance history information regarding the entity acquiring the controlling interest may be difficult within the time tables specified in the proposed regulations. The identification of interests and compliance information are important components of a permit application review. The 45-day allowance will not prohibit mergers or acquisitions but will require the operator to clearly indicate the track record of persons who have an influence on the day to day operations of the facility.
The proposed regulations in paragraph (4) required the permittee to notify the Department after the transfer of a controlling interest in the permittee. The final-form regulations clarify that this notification should occur when there is a transfer of a controlling interest in the owner or operator of the facility, regardless of whether that party is a permittee. The final-form regulations also clarify that if the transfer of controlling interest triggers a major permit modification or permit reissuance, notification under this Section is not required. Paragraph (4) is not intended to apply to changes in managers or directors, which will be described in the permittee's annual report.
Section 287.221. Permit reissuance.
One commentator stated that requiring permit reissuance for persons who sell or buy facilities with waste permits places these waste industries at a competitive disadvantage. The transfer, assignment or sale of rights may necessitate the processing of new bonding, insurance and compliance history information for the person assuming liability.
Section 287.222. Permit modification.
One commentator recommended that the regulations should include administrative permit modifications that may be made upon notification to the Department without prior approval. The final-form rulemaking includes activities that may be approved through onsite minor permit modifications and that only require follow-up written notice to the Department. (Modified subsection (c) and new subsection (d).) This tool is limited to modifications made during the construction phase only. It should not be used as a substitute for poor design plans submitted in the permit application.
Section 287.223. Permit renewal.
On final-form rulemaking, the Board amended the regulation to require earlier submission of permit renewal applications so that there will be adequate opportunity for timely review by the Department. The final-form regulation has been amended to require a processing facility or land application operation to submit a permit renewal application 270 days prior to the expiration date of the permit term and a disposal facility to submit a permit renewal application at least one year before the expiration date. To address applications received near the effective date of the final-form regulations that could not meet the new requirements, the final-form regulation provides that renewal applications for permits that will expire within 270 days and 1 year, respectively, of the effective date of the final-form rulemaking need only be submitted within 180 days of their expiration date.
Subchapter E. Bonding and Insurance Requirements Section 287.301. Scope.
One commentator suggested that the requirement to bond and the bonding rates should be reconsidered for composting since these facilities are ''recycling'' wastes and do not accept a wide variety of wastes. The bonding requirements are based upon the total estimated cost to the Commonwealth to complete closure and to take measures necessary to prevent adverse effects upon public health and the environment. Under the SWMA, the minimum bond amount mandated for a processing facility individual permit is $10,000. For composting facilities, the vast majority of the costs are associated with the cost to dispose of the compost in the event that material cannot be sold. The bond amount is based on the volume of waste approved to be received at the facility. If a person applies for a general permit for processing that results in beneficial use of waste, it may be possible to obtain a waiver of the bond requirement if the waste managed is not potentially harmful and large quantities of waste are not stored.
Section 287.313. Form, term and conditions of the bond.
One commentator suggested that the regulations should provide additional mechanisms for securing a bond for a residual waste facility, such as the use of a financial test to demonstrate the ability of a company to satisfy the obligations. The financial test option, like the one identified in the federal regulations for municipal waste landfills at 40 CFR Part 258 Subpart G, is not available under section 505 of the SWMA.
Section 287.321. Special terms and conditions for surety bonds.
Subsection (b) has been modified on final-form rulemaking. First, language has been deleted to be consistent with a repealer in the laws relating to casualty insurance. 40 P. S. § 730, which provided for foreign companies, associations and exchanges to do business through resident agents, was repealed December 21, 1998 (P. L. 1108, No. 150).
Secondly, language has been added that requires surety bonds for facilities permitted after the effective date of these regulations and permit modifications issued after the effective date of these regulations to be listed in Circular 570 of the United States Department of Treasury. If the surety is removed from the Circular, the bond issued by such surety must be replaced. The Federal government uses different, more comprehensive standards to qualify a surety than the State Insurance Commission. The listing and bond replacement requirements are consistent with federal requirements for both municipal waste landfills and hazardous waste facilities.
Section 287.332. Bond amount adjustments.
On final-form rulemaking, the Board added language to subsection (b)(2) that allows the Department to require additional bonding at the time of a bond replacement if the bond being replaced is inadequate to protect human health and the environment.
Section 287.341. Release of bonds.
One commentator indicated that the duration a bond must be maintained creates hardship for business. The hardship relates to the time after completion of closure activities that the bond must be maintained and the burden of proof that must be provided for bond release. The Board continues to support the existing regulations that provide for partial bond releases based upon completion of bonded activities. The new language does not change the conditions for bond release but indicates that long-term maintenance of remediation measures, such as groundwater pumping and treating to maintain the remediation standard, need to be considered in the postclosure portion of the bond amount.
On final-form rulemaking, the Board changed the phrase ''completion of a stage of closure'' in subsection (b)(3) to ''completion of a measure carried out in preparation for closure'' to avoid confusion, as ''closure'' is the point at which the entire facility permanently ceases to accept waste. Areas of the facility may not be used for further waste disposal during operations, but these areas are integrated together for the purpose of closure.
Section 287.342. Final closure certification.
One commentator suggested that the regulations should be modified to allow for pathway elimination where there is no current or projected future use of groundwater at the property boundary and where modeling demonstrates that there is no risk to the public (that is, incorporate the concept of nonuse aquifer). The nonuse aquifer option is not included in the final-form rulemaking because the Board decided that permitted facilities should minimize offsite migration of contamination. A facility that is operating in accordance with state-of-the-art performance and design standards is subject to early warning monitoring requirements that should prevent contamination from leaving the facility's property.
One commentator indicated that the proposed language in subsection (i) adds burden to the business that has completed remediation and is eligible for a bond release. Subsection (i) requires additional remediation if changes in land use or chemical exposure data cause an increase in the level of risk beyond the acceptable range at a facility. If the remediation standards identified for final closure certification are attained and maintained, the Department will release a bond no later than 10 years after the certification. The Board continues to maintain support, however, for requiring additional remediation if the risks to the community change while the permittee is in control of the facility.
One commentator recommended the adoption of the standards in Act 2 and the reference in section 501 of Act 2 to release from liability upon completion of remediation activities. The final-form regulations incorporate the numerical remediation standards of Act 2 for groundwater, with the exception of the nonused aquifer standards (as discussed above). The SWMA does not authorize relief from liability prior to bond release. Bond liability, alone, under section 505 of the SWMA remains in place for the duration of the waste management operation and for a period of up to 10 full years after the final closure of the permit site.
On final-form rulemaking, the Board added a definition for ''property boundary'' in new subsection (j) to clarify a point in time when the point of compliance cannot be extended by purchasing additional property to avoid remediation.
Subchapter F. Civil Penalties and Enforcement Section 287.413. Assessment of penalties; minimum penalties.
One commentator recommended that the regulations should be changed to allow the Department to reduce or eliminate penalties for violations discovered by the applicant under a voluntary system of audits and inspections conducted by the applicant, provided the violation is promptly reported to the Department and voluntarily and promptly corrected by the applicant. The Department has a policy, titled ''Policy to Encourage Voluntary Compliance by Means of Environmental Compliance Audits and Implementation of Compliance Management Systems,'' (technical guidance document number 012-0840-001) that addresses the reduction or elimination of penalties for violations discovered by the applicant pursuant to a voluntary audit system.
On final-form rulemaking, the Board added a provision to subsection (c) that clarifies the minimum penalty for a person that applies residual waste to an area that is not permitted. The penalty is $500 per acre, or portion thereof.
Section 287.421. Administrative inspections.
One commentator indicated that beneficial use approvals should not be classified as permits. Under the residual waste program, there are no beneficial use approvals. Beneficial uses are covered under either permits-by-rule or general permits-both of which are types of permits.
Subchapter G. Demonstration Facilities Section 287.501. Scope.
One commentator indicated that the proposed changes to the regulations didn't go far enough to reduce the permitting burden for R&D operations. Another commentator supported the changes made to this section. The Board declined to make further revisions to this section. Adequate flexibility in permitting was expressed in the proposed amendments.
Section 287.502. Relationship to other requirements.
The Board added a requirement that the public notice requirements of § 287.151 (relating to public notice by applicant) may not be waived or modified.
Subchapter H. Beneficial Use Section 287.611. Authorization for general permit
One commentator was concerned that the Department eliminated the opportunity to beneficially use residual waste at disposal facilities (that is, as daily cover). The use of residual waste as alternative daily cover continues to be encouraged; however, the mechanism for approving the use of the waste is an equivalency review, not a general permit.
The Board amended subsection (d) to clarify that a general permit for processing or beneficial use of combinations of sewage sludge and residual waste shall be issued under Chapter 271, Subchapter I (relating to beneficial use) of the municipal waste regulations.
Section 287.621. Application for general permit.
On final-form rulemaking, the Board added in subsection (b)(5)(vi) a criterion for demonstrating the use of waste as a construction material. The criterion requires that a description of the construction activities and detailed timelines for the prompt completion of construction activities be included in the demonstration. This language addresses problems encountered by the Department where persons placed waste on land with no subsequent beneficial use.
Section 287.623. Public notice and review period.
One commentator suggested that the regulations be amended to require the publication of a list that is codified of approved general permits. The Department publishes notice in the Pennsylvania Bulletin of each general permit issued. In addition, the Department maintains a complete list of each general permit issued on its website.
Section 287.632. Waiver and modification requirements.
On final-form rulemaking the Board added language that clarifies the Department's intention not to waive the permit application requirements in § 287.123 pertaining to the Commonwealth's right of entry and the landowner's consent to solid waste activities. Although the requirements of this section cannot be waived, the Department may modify the requirements. Circumstances relating to imminent sale of property present an example of when the Department has modified the requirements in an effort to work with the existing and future landowners to meet the regulatory obligations of a landowner.
Section 287.662. Use of coal ash as a soil substitute or soil additive.
One commentator recommended that the regulations be revised to be consistent with the changes proposed in § 287.661. On final-form rulemaking, the Board modified the distance limitation from a water source, to be consistent with § 287.661. This change was made because the buffer requirement in the final-form regulations provides that adequate protection and other controls, such as erosion and sedimentation requirements, must be met at these sites to protect water. In addition, when coal ash is mixed with soil for use as a soil additive or soil substitute, there is less concern about the potential for contaminants to leach into groundwater. The Board declined to make changes to the exceptional wetland provision in this Section because the existing buffers are necessary to protect these sensitive areas from coal ash runoff.
Chapter 288. Residual Waste Landfills
Subchapter B. Application Requirements Section 288.112. Facility plan.
The Board added language in paragraph (2) to require the permit application for a residual waste landfill to include a description of the method by which the soil necessary for construction and operation will be delivered. If soil is not located on-site, the traffic, access roads, and other impacts need to be evaluated when performing the environmental assessment process.
One commentator questioned whether the proposed language indicates that only soil may be used for construction. This restriction is not indicated; § 288.232 allows the permit applicant to propose other materials for daily cover if they meet the performance standards through an equivalency review.
One commentator suggested that replacement language for the deleted soil cover provision contain a requirement for the permit applicant to indicate how the estimated soil quantities will be provided. The Board agrees and added language that requires the applicant to identify how the estimated soil quantities will be provided. This may be important when considering traffic and other factors evaluated in the environmental assessment.
One commentator requested that the requirement for the facility plan to predict the origin of wastes to be received at the facility be deleted. The Board declined to delete this requirement since information on waste location origins will help determine access routes to the facility, which need to be evaluated during the environmental assessment.
Section 288.113. Maps and related information.
One commentator suggested that the requirement in § 288.113 (a)(3) and (5) to identify offsite borrow areas be deleted; and to either delete the requirement to identify and map all wetlands within one quarter mile, or modify the requirement to apply only to wetlands located within 300 feet or within the ''adjacent area.'' The Board declined to make these changes since the requirement to identify borrow areas or describe how soil will be obtained from off-site sources if specific borrow areas are not used is an important factor in evaluating impacts from the facility. Similarly, the existing requirement to identify all wetlands within 1/4 mile of the proposed facility is used to help characterize the surface and groundwater conditions in the adjacent areas, which may be impacted by the facility.
Section 288.122. Geology and groundwater description.
The Board added language in subsection (a)(9) to allow the Department to require more frequent water level measurements after significant precipitation events. This information is necessary if the monthly measurements required by the regulations do not adequately represent the highest possible water levels which are needed to design the site.
Two commentators suggested that the duration and frequency of water level measurements was unreasonable as a preapplication obligation. One of these commentators also indicated that the required groundwater contour map should be made from measurements obtained during the same month, not the highest measurement obtained from a particular well. The Board declined to make changes to address the first issue, since water level measurements obtained over the course of a year, and after significant precipitation events, are the only way to determine the inherent periodic and seasonal groundwater fluctuations that occur at most sites. The Board agrees with the second issue but no changes to the Annex are necessary because the error was in the preamble explanation of how the contour map would be used. The contour map is only used to determine appropriate liner system isolation distances from the regional water table, and cannot be used to depict groundwater flow patterns.
One commentator requested clarification on the purpose, construction and duration of the borings used to measure water levels. The Board declined to modify the regulations to address this issue, as the specifics of borehole construction and maintenance may be tied to conditions unique to each facility. These details are routinely decided based upon discussions with the Department during the background groundwater characterization and monitoring process.
Section 288.127. Mineral deposits information.
The Board amended the language in subsection (b) to remove the ambiguity of the term mineable mineral deposits and instead apply the restrictions to mineable coals, which is the mineral most likely to be mined. An exception to the restrictions is provided for surface mining activities approved in the permit for purposes of facility construction.
Two commentators suggested that owners of captive residual waste facilities not be exempt from the requirements of this subsection. The Board agrees and has deleted the exception for expansions of captive facilities.
One commentator suggested that the evaluation of potential mine subsidence risks and the preparation of a mineral support plan be limited only to areas of actual disposal and leachate storage. The Board declined to make this change since mine subsidence adjacent to the disposal area could affect the liner and groundwater monitoring systems.
Section 288.128. Notification of proximity to airport.
The Board has amended this section to require that the applicant notify the Bureau of Aviation of the Department of Transportation, the Federal Aviation Administration and the airport if a proposed landfill that accepts putrescible waste or lateral expansion is within 6 miles of an airport runway. This was added to be consistent with the municipal waste regulations and will assist the Department in determining whether construction of the facility or modification thereof would be safe. If any of the respondents expresses safety concerns, the applicant will generally be required to submit a mitigation plan under § 287.127 (relating to environmental assessment), at a minimum.
Section 288.132. Operation Plan.
One commentator suggested that the operation plan not be required to identify proposed hours for construction and other activities unrelated to the actual acceptance of waste for disposal. The Board declined to make this change since the term ''operate'' includes the construction phase and activities relating to the receipt and disposal of waste. It is necessary to consider hours for construction and other activities when developing nuisance control plans and when performing the environmental assessment analysis. On final-form rulemaking, minor clarifying language has been added to indicate that procedures for inspection and monitoring of incoming waste must be included in the operation plan of a permit application.
Section 288.133. Map and grid requirements.
The Board has added a requirement in new subsection (a)(14) that an application for a noncaptive residual waste landfill indicate on the topographic map a designated area for vehicles for use in the event of the detection of waste containing radioactive material. As with other requirements in this subchapter, this requirement applies to all permit applications, not just applications for new facilities. A transition schedule has been developed in § 287.135 (relating to transition period for radiation monitoring) for existing facilities to come into compliance with this regulation. The designated area must protect the environment, facility staff and public from radiation originating in the vehicle. The Department's ''Guidance Document on Radioactivity Monitoring at Solid Waste Processing and Disposal Facilities,'' Document Number 250-3100-001, describes various factors to consider in determining an appropriate designated area.
One commentator suggested eliminating the requirement for a permanent benchmark for horizontal and vertical control of the grid coordinate system. The Board declined to make this change since it is needed for proper construction and final elevation contours. Design requirements, such as subbase elevation, rely upon the map and grid requirements as baseline measurements.
Section 288.134. Plan for access roads.
One commentator suggested the term ''adequately handle'' was vague as a requirement for the ability of an access road to handle truck traffic. The Board agrees and deleted this provision from the application requirements.
One commentator questioned if the plans for access roads should comply with a Department of Transportation standard. The Board declined to address this issue since a Department of Transportation standard is not necessary. All plans submitted to the Department are certified by a professional engineer and are designed based upon expected use.
Section 288.136. Nuisance minimization and control.
One commentator suggested deleting the requirement for prior approval of installation of meteorological data collection equipment. The Board declined to make this change since input prior to the installation and collection of data prevents the operator from conducting preapplication monitoring that may prove to be incomplete.
One commentator requested clarification on what constitutes a ''professional'' in regard to nuisance minimization and control, and if certification is required. Certification is not required for plan development, but persons preparing a nuisance and control plan should be familiar with the technical standards of the activities addressed by the plan.
Section 288.138. Daily volume.
One commentator suggested establishing separate volume limits for alternative cover materials and waste received for recycling. The Board declined to change this since any waste received at a disposal facility must be factored into measured volumes for environmental assessment considerations, such as traffic.
One commentator requested allowing daily volume limits to be exceeded in emergencies or unusual weather conditions. Section 287.103 (relating to emergency disposal or processing) does provide for emergency disposal to address this issue, however.
Section 288.139. Radiation protection action plan.
The Board has added a new Section in the final-form rulemaking requiring that an application for a noncaptive residual waste landfill contain an action plan specifying procedures for monitoring for and responding to radioactive material entering the facility, as well as related procedures for training, notification, record keeping and reporting. As with the other requirements of this subchapter, this requirement applies to all permit applications, not just applications for new facilities. A transition schedule has been developed in § 287.135 (relating to transition period for radiation monitoring) for existing facilities to come into compliance with this regulation. The action plan must be incorporated into the landfill's approved waste analysis plan, under § 287.134 (relating to waste analysis plan). The permit modification will be a major modification. The action plan must be prepared in accordance with the Department's ''Guidance Document on Radioactivity Monitoring at Solid Waste Processing and Disposal Facilities,'' Document Number 250-3100-001 or in a manner at least as protective of the environment, facility staff and public health and safety and which meets all statutory and regulatory requirements.
An approved action plan will specify the radiation exposure rate, in accordance with these regulations and the foregoing guidance document, at which the facility's radiation detection monitors will indicate the presence of radioactive material in waste in accordance with § 288.222 (relating to radiation monitoring and response). A waste load that does not trigger a radiation monitor will need no further action regarding radioactive materials screening. A waste load that does trigger a radiation monitor may only be accepted at the landfill if it is within the acceptable range approved in the action plan in accordance with these final-form regulations and the operator obtains additional written approval of the Department for that particular waste load. The Department's written approvals will be decided for that particular waste load. The Department's written approvals will be decided situation by situation or in advance in the facility's approved action plan. The Department will not authorize any waste containing radioactive material to be accepted at a landfill if it is above regulatory limits or if its disposal would endanger the health and safety of the public or the environment.
Section 288.142. Revegetation plan.
One commentator suggested that any required revegetation not be inconsistent with the postclosure land use plan. The Board declined to amend the existing requirement, since postclosure land use may not be realized for many years after the facility operates. Therefore, a revegetation plan is necessary in the event that the land use plan cannot be implemented immediately upon construction of the cap and final cover.
Section 288.152. Water quality monitoring plan.
One commentator suggested modifying the plan to be consistent with federal Subtitle D regulations (40 CFR Part 258, Subpart E). The Board declined to modify this Section since 40 CFR Part 258 Subpart E provides for less stringent monitoring frequency than that provided in § 288.152. Additionally, adopting 40 CFR Part 258 Subpart E would incorporate definitions found in other sections of 40 CFR which are not consistent with analogous terms in the final-form rulemaking.
Section 288.182. Closure plan.
Two commentators suggested revising the term ''toward and after closure'' and allowing the definition of ''closure'' to allow for temporary closure. To provide clarification, the Board replaced the phrase ''toward and after closure'' with ''in preparation for closure and after closure.'' The Board decided not to allow, however, the definition of ''closure'' to include temporary closure. ''Closure'' is the point at which the entire facility permanently ceases to accept waste. It happens only once at a landfill. Under the final-form regulations, the application shall contain a plan describing the activities that are proposed to occur in preparation for closure and after closure and a narrative description of the measures that are proposed to be carried out.
Section 288.191. Plan for disposal of PCB's.
The Board added language to § 288.191(b) to clarify that the disposal of certain PCB-containing wastes, as described in the disposal plan, is only applicable to Class I or Class II residual waste landfills. Disposal at Class III, or unlined residual waste landfills, would not be permitted.
Subchapter C. Operating Requirements Section 288.201. Basic limitations.
This Section has been revised in the final-form rulemaking to specify clearly the types of radioactive materials that might be found in the residual waste stream that may not be accepted at a residual waste landfill.
Subsection (g) lists six types of radioactive materials that are controlled under specific or general license or order. These may not be accepted unless they are specifically exempted from disposal restrictions by an applicable Pennsylvania or Federal statute or regulation.
The first type, in paragraph (1), is NARM, which includes naturally occurring and accelerator produced radioactive material. Examples of NARM are radium, potassium-40, various isotopes produced in accelerators, such as cobalt-57, and members of the uranium-238 and thorium-232 decay chains when they don't meet the requirements for source material or special nuclear material.
Paragraph (2) prohibits disposal of by-product materials. These are produced by nuclear fission, or otherwise, in the nuclear energy cycle. Prominent examples are cesium-137 and strontium-90.
Paragraph (3) prohibits disposal of source material which, by definition, is uranium and/or thorium present at a combined concentration, by weight, of 0.05% or more. Examples are uranium ores and slags produced by smelting rare metal earth ores containing uranium and thorium.
Paragraph (4) prohibits disposal of special nuclear material, which includes those isotopes of uranium and plutonium that will split, or fission, when struck by neutrons. Examples of special nuclear material include uranium-233, uranium-235, and plutonium-239.
Paragraph (5) prohibits disposal of transuranic radioactive materials, which include all elements with an atomic number greater than 92 (92 = uranium). Examples include neptunium, plutonium, americium, curium, californium, berkelium, einsteinium, fermium, mendelevium, and others. Transuranic elements do not occur naturally and are produced in high energy accelerators.
Paragraph (6) prohibits disposal of low-level radioactive waste. A definition of low-level radioactive waste is contained in section 130 of the Low Level Radioactive Waste Disposal Act (35 P. S. § 7130.130).
Subsection (h) lists three categories of radioactive materials that are prohibited from being accepted at a residual waste landfill unless approved in writing by the Department and the disposal does not endanger the environment, facility staff or public health and safety.
The first radioactive material, in paragraph (1), is short-lived radioactive material from a patient having undergone a medical procedure. Certain short-lived radioactive materials are administered to medical patients for diagnosing or treating some illnesses. Once these materials are administered to the patient, they no longer fall under NRC or Pennsylvania licensing. Some of the material is retained in the patient and some is excreted in urine, feces, sweat, saliva or mucous and may get into solid waste through disposal of personal care items. The Department's intent is to authorize such material to be disposed in waste facilities upon case-by-case permission from the Department's Area Health Physicists or Director of the Bureau of Radiation Protection, or advance authorization in the landfill's approved action plan, using the general concepts provided in the Department's Guidance Document on Radioactivity Monitoring at Solid Waste Processing and Disposal Facilities, Document Number 250-3100-001.
Paragraph (2) addresses TENORM, which is naturally occurring radioactive material which has been altered by human activity in a manner that results in increased radiation exposure to people. The alteration could be a chemical or physical change in form, relocation of the norm, or removal of barriers that isolated the norm. The Department's intent is to authorize disposal of TENORM in landfills only in amounts and concentrations that will not result in concentrations of the NORM isotopes significantly above local background. Authorization will be given as case-by-case permission from the Area Health Physicists or Director of the Bureau of Radiation Protection, or advance authorization in the landfill's approved action plan.
Paragraph (3) addresses consumer products containing radioactive material. Some consumer products, such as smoke detectors, luminous dial clocks and watches, or some ceramics will wind up in the waste stream. The Department intends to allow disposal of small quantities of these under conditions specified in the facility's approved action plan or on a case-by-case basis with permission from the Area Health Physicist or Director of the Bureau of Radiation Protection.
Subsection (i) provides that the limitations set forth in this Section will not apply to radioactive material as found in the undisturbed natural environment of this Commonwealth. The original soil and rock in many parts of this Commonwealth contain sufficient uranium, thorium, radium and potassium-40 to cause monitors to alarm even at quite high settings. This provision ensures that facilities may use soil and rock from undisturbed sites for cover, regardless of the content of radioactive material.
One commentator requested not to restrict the authority of the Department to allow mitigation activities to be conducted at the same time as waste acceptance only for ''technical reasons'' (subsection (f)). The Board declined to make changes in this subsection since allowing mitigation for technical reasons are the only items which can be resolved through proper design and operation. Mitigation measures are part of an approved application. Information provided in the application is incorporated into a permit issuance. Because mitigation is used to balance an environmental harm, it must be implemented immediately unless a technical design or operating reason is identified.
Section 288.211. Signs and markers.
One commentator requested that the name, address and telephone number of the operator of the facility be retained on the facility sign. The Board agrees and retains the name, business address and telephone number of the person or municipality that operates the facility, the operating hours and the permit identification number.
Section 288.212. Access control.
The requirement in subsection (a)(2) to ''construct'' a fence or other suitable barrier around the areas of operation has been deleted on final-form rulemaking because no ''construction'' is necessary in instances where a natural barrier is sufficient to prevent unauthorized access.
Section 288.214. Measurement and inspection of waste.
Subsection (a) has been amended to reflect the repeal of the Weights and Measures Act of 1965 and the Public Weighmasters Act of 1961. Both acts were replaced with the Consolidated Weights and Measures Act of 1996, 3 Pa.C.S. §§ 4101--4194.
Subsection (c) has been amended to delete the requirement to monitor and inspect incoming waste for radioactive isotopes. This requirement was refined and moved to §§ 288.133, 288.139, 288.222, 288.281 and 288.283. Similar provisions appear in Chapters 289, 293, 295 and 297 and a transition schedule appears in § 287.135.
Section 288.217. Air resources protection.
The Board clarified in subsection (b) that an air quality plan approval and air quality operating permit are issued under Chapter 127 (relating to construction, modification, reactivation and operation of sources).
One commentator suggested that the Board clarify and better define air resources protection by requiring a plan in the waste management regulations which addresses odors, fugitive particulates, emissions from biological decomposition, etc. The Board declined to make changes in this regard since the current air quality plan (required before a landfill can accept waste), approved through the Department's Bureau of Air Quality Control, provides controls for odor, fugitive emissions, non-methane organic carbons and any other pollutants as required.
Section 288.218. Nuisance minimization and control.
The Board amended subsection (b) to require the operator to minimize and control ''public nuisances'' from odors. The proposed subsection had only referenced ''nuisances''. Subsection (b) is now consistent with subsection (c). Similarly, to harmonize subsection (b) with (c), the requirement was added that the operator implement the plan approved under § 288.136 (relating to nuisance minimization and control plan). The Board did not revert to the ''prevent and eliminate'' language of the prior regulation as suggested by several commentators because field experience shows that nuisances cannot always be prevented. Finally, the Board reversed the order of subsections (b) and (c) for clarity.
One commentator suggested the term ''odors'' be replaced with ''malodors''. The Board declined to make this change since all odors need to be reduced to the greatest degree possible under the nuisance minimization and control plan as they have the potential to impact the surrounding receptors.
Section 288.221. Daily volume.
One commentator suggested that average daily volume not be the subject of a compliance obligation. Limits subject to enforcement should only include maximum daily volume and annual volume. The Board declined to make this change, since many of the operating details to address nuisances are based upon the volume of waste that would normally be received on a daily basis. The average daily volume is based on the total volume of waste received over the year.
Section 288.222. Radiation monitoring and response for noncaptive landfills.
A new § 288.222 has been added to this final-form rulemaking to address monitoring for and responding to radioactive materials in residual waste in noncaptive landfills. Subsection (a) requires the facility operator to implement the action plan approved under § 288.139 (relating to radiation protection action plan). Subsection (b) requires the operator to monitor in accordance with the Department's ''Guidance Document on Radioactivity Monitoring at Solid Waste Processing and Disposal Facilities,'' Document Number 250-3100-001 (or in an equally protective manner) the facility's approved radiation protection action plan and this section. Subsection (c) describes the required sensitivity of the monitors and establishes the maximum level of radiation at which they must be set to alarm. In addition to the monitors described in subsections (b) and (c), portable radiation monitors that can determine the radiation dose and the presence of contamination on a vehicle that has caused an alarm are required by subsection (d). When radiation is detected at a landfill and the alarm exceedance is confirmed, the operator must perform a radiological survey of the vehicle. If a dose rate specified in subsection (e) is detected, the operator must notify the Department immediately and isolate the vehicle. Once notified, the Department staff, and possible staff from federal agencies, will assist the facility and its consultants in identifying, localizing and quantifying the radioactive material in the load. This is a stepwise investigative process that will ultimately determine what corrective action is needed.
To ensure that the monitoring equipment continues to function properly, subsection (f) requires that it be calibrated at least once a year--and more often if so specified by the manufacturer.
Subsection (g) notes the Federal requirement that, once the presence of radioactivity is detected (that is, above Action Level I, as described in the guidance document), the vehicle is not permitted to leave the facility with the material on board without written Department approval and an authorized United States Department of Transportation exemption form issued by the Department. The exemption forms will usually be issued by telephone or FAX communication for levels between Action Level I and the Action Level II limits specified in subsection (e).
Section 288.231. Topsoil storage.
While this section was proposed to be deleted, one commentator suggested that it may be more appropriate to modify this section to address topsoil used as part of a cap. The Board decided to delete this section as proposed since the design and performance standards for the final layer of soil placed over a cap are found in § 288.234 (relating to final cover and grading).
Section 288.232. Daily cover.
One commentator suggested that the term ''noncombustible'' be retained, as opposed to the proposed ''capable of controlling fires'', as a performance standard for daily cover material. The Board decided not to revert to the original language. Technically, no material is truly ''noncombustible''. ''Capable of controlling fires'' is just one of several performance standards that daily cover must meet or exceed. Also, the Department is unaware of any problems with approved alternate daily cover requests.
Section 288.233. Intermediate cover and slopes.
One commentator questioned a seemingly contradictory requirement of a material supporting vegetation and controlling infiltration. The Board declined to make any changes in this regard. Infiltration can be controlled by the cover material. The moisture holding capacity retains moisture that is then used by the vegetation that is established.
Section 288.234. Final cover and grading.
The Board amended subsection (b) to clarify the demonstration provisions for waiving the cap and drainage layer requirements. This includes a demonstration that leachate production without a cap will be equivalent to leachate production with a cap, and that waiver of a cap will not cause or contribute to groundwater degradation as a result of leachate production. These provisions will help address the most important environmental impacts considered when evaluating a waiver of the cap and drainage system requirements.
Two commentators questioned the proposed requirement that the cap should limit the migration of precipitation into the landfill to the greatest degree technologically possible. The Board agrees and deleted the requirement.
One commentator suggested that the minimum and maximum slopes be revised to match engineering capabilities. The Board declined to change the regulations, however, since § 288.234(h) allows the permit applicant to design with any slope, as long as the applicant demonstrates that the performance standards will be met. Steeper slopes are, however, not routinely constructed at residual waste landfills.
Section 288.252. Number, location and depth of monitoring points.
One commentator suggested retaining the requirement for well drillers to be licensed under the Water Well Drillers License Act (32 P. S. §§ 645.1--645.13). The Board agreed and retains the requirement for well drillers to be licensed.
Section 288.253. Standards for wells and casing of wells.
The Board amended subsection (a) to allow for alternative well casing designs in stable formations, if approved by the Department. This provides some design flexibility based upon certain lithologic characteristics (stability and ''tightness'') of the formations under the site.
The Board also amended subsection (b) to clarify a concern raised by one commentator regarding well casing. The requirements in this subsection are applicable to the outer protective casing of the monitoring well, not the well casing itself.
Section 288.254. Sampling and analysis.
The Board amended this section to change magnesium from an annual testing parameter to a quarterly parameter. This places magnesium among the more frequently measured metals which are effective early indicators of liner leakage or failure, and removes it from the generally more dissimilar metals included in the annual testing list.
Section 288.257. Abatement plan.
Several commentators expressed a general concern that the groundwater abatement requirements do not fully parallel those provisions available in Act 2. The Board declined to change the abatement language from the proposed revisions. The residual waste abatement standards apply to operating facilities, which by design and practice are engineered to prevent contamination of groundwater. Conditions at the landfill are not static: waste continues to be received and the area of disposal may expand. More stringent standards than those available under Act 2 are needed to address the operational dynamics of such a waste management facility. This contrasts with an Act 2 site, typically an abandoned facility, not designed to properly contain waste or manage groundwater, where the property boundaries have been established for years. At final closure, when the dynamics of the operating landfill are static and the property boundaries established, Act 2 remediation standards and the points of compliance are available.
Two commentators expressed concern regarding establishing points of compliance for abatement standards at 150 meters from the perimeter of the disposal area, or the property boundary (whichever is closer), citing a conflict with Act 2. The Board declined to adjust the points of compliance where abatement standards are to be met. The abatement standards are similar to both Act 2 and RCRA Subtitle D corrective action requirements. Meeting abatement standards at the closer point (150 meters from the perimeter of the disposal area or at the property boundary) reflects the performance and design standards of the operational facility designed to detect, assess, and abate groundwater contamination as appropriate. The remediation points of compliance, at closure, are consistent with Act 2.
Two commentators questioned conditions defining the availability of a risk-based standard, citing a conflict with Act 2. The Board declined to change the conditions when use of a risk-based standard is available. Act 2 allows a more unrestricted use of the risk-based standard since many remediation sites are closed/abandoned and the adjacent property use is well known. These conditions, which are factored into the risk assessment, are less predictable during the operational lifetime of a residual waste management facility. At final closure, when these conditions have become more clearly established, use of the Act 2 site-specific standard is available. In addition, use of a risk-based standard is available for certain constituents (where no MCL exists), which include certain assumptions designed to prevent unacceptable risks off the site of the landfill.
One commentator suggested that Act 2-like flexibility should be included to extend the point of compliance beyond the property boundary. The Board declined to adopt the Act 2 provisions (§ 250.302(a)) to extend the point of compliance for a residual waste landfill. Unlike an Act 2 site, a residual waste landfill is designed, constructed, operated and closed in a manner which restricts groundwater contamination, and exposure pathways are less known while the facility continues to accept waste. These conditions are not conducive to allowing the point of compliance to be extended for the primary constituents. There is some flexibility to extend the point of compliance for secondary contaminants during an abatement process, as long as it is on land owned by the owner of the disposal area. After closure, when conditions are more predictable, the Department may approve a compliance point for secondary contaminants beyond the property boundary, up to a water source.
Section 288.262. Gas control and monitoring.
Subsection (f) has been modified on final-form rulemaking to indicate that active forced ventilation is necessary to reduce the migration of combustible gas or prevent offsite odors.
Section 288.271. Hazard prevention.
One commentator recommended that subsection (b) be retained and the term ''facilities'' be changed to ''equipment and supplies.'' The Board declined to retain this subsection. Part of the Pollution Prevention Compliance (PPC) plan submitted by the applicant identifies first aid equipment and procedures.
Section 288.281. Daily operational records.
Subsection (b)(8)(iv) has been added on final to require information to be kept in the daily record describing radioactive materials detected in waste loads. This information will be helpful to the operator, the municipality and the Department. If the origin of the material is known, it will be stated in the daily record, along with the identity of the supplier or handler of the radioactive material and the driver. Identifying these parties will enable the operator and the Department to take steps to prevent inappropriate distribution of radioactive material in the future. The final disposition of the material is also required to be stated in the daily record. This will help the operator, the municipality and the Department know that the material will be properly disposed.
Subsection (b)(8)(v) has been added on final to require a landfill operator to identify vehicles that have arrived at the landfill over the maximum gross weight allowed on Pennsylvania's roadways under, section 4941 of the Vehicle Code (relating to maximum gross weight of vehicles). This requirement is designed to help reduce the number of overweight waste vehicles travelling on roadways of this Commonwealth. While the Department will not use this part of the daily operational record to institute a direct enforcement action against a waste hauler for exceeding a roadway weight limit or against a waste facility for accepting an overweight vehicle, the Department may use the information in enforcing the daily volume limits at the facility, in selecting locations for routine vehicle inspections and in taking other steps toward reducing the number of overweight waste vehicles.
Section 288.283. Annual operation report.
The Board amended subsection (b)(4) to delete the requirement to identify areas that are closed in the annual report because there is only one closure at the facility, i.e. that time at which the facility permanently ceases to accept waste. Instead, subsection (b)(4) has been amended to require the operator to describe the acreage used for disposal, areas revegetated, and a narrative describing the operator's progress in implementing its closure plan.
To provide a summary of the daily operational recordkeeping regarding radioactive waste, subsection (b)(12) was added to require the annual report to include a record of detected radioactive materials.
Section 288.292. Closure.
The Board deleted the proposed requirement that requires acceptance of the operators selection of the remediation standards because the decision may be impacted by other closure considerations.
One commentator indicated that groundwater degradation should not dictate implementation of abatement or submittal of a closure plan modification regarding selection of remediation standards. The Board declined to amend this section. Although active groundwater remediation may not be necessary at the time of closure, if groundwater degradation exists, a closure plan must identify the remediation standards that will be met and maintained to meet the final closure certification.
Section 288.301. PCB's.
The Board has amended subsection (a) to clarify that PCB-containing waste material is prohibited from disposal at a residual waste landfill, if the waste material is prohibited from disposal at a municipal waste landfill by the Toxic Substances Control Act (15 U.S.C.A. §§ 2601--2629).
Section 288.302. Disposal of friable asbestos-containing waste.
The Board amended this Section to allow a distinction in timing and depth of covering between nonfriable asbestos-containing waste and friable asbestos-containing waste. The final-form rulemaking indicates that nonfriable asbestos-containing waste must be covered within 24 hours of placement with at least six inches of nonasbestos containing cover material. This requirement contrasts with friable asbestos-containing waste, which must be covered immediately after disposition and covered with at least 12 inches of nonasbestos containing cover material.
[Continued on next Web Page]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
