RULES AND REGULATIONS
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 260a AND 269a]
Host Municipalities Fund Allocation
[31 Pa.B. 5075] The Environmental Quality Board (Board) by this order amends Chapters 260a and 269a (relating to hazardous waste management system: general; and siting) to address concerns raised regarding the allocation of the Host Municipalities Fund (Fund). These concerns include clarification of the definition of a ''qualifying facility'' and simplification of the formula used to allocate funds if there is more than one ''qualifying facility'' in this Commonwealth in a single year. The final-form amendments are set forth in Annex A.
This order was adopted by the Board at its meeting of June 19, 2001.
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 Rick Shipman, Division of Hazardous Waste, P. O. Box 8471, Rachel Carson State Office Building, Harrisburg, PA 17105-8471, (717) 787-6239; or Kurt Klapkowski, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-form rulemaking is available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state.pa.us).
C. Statutory Authority
The final-form rulemaking is being made under the authority of sections 105, 402 and 501 of the Solid Waste Management Act (SWMA) (35 P. S. §§ 6018.105, 6018.402 and 6018.501); sections 303 and 305(e)(2) of the Hazardous Sites Cleanup Act (HSCA) (35 P. S. §§ 6020.303 and 6020.305(e)(2)); sections 5, 402 and 501 of The Clean Streams Law (35 P. S. §§ 691.5, 691.402 and 691.501); and section 1920-A of The Administrative Code of 1929 (71 P. S. §§ 510-20). Under sections 105, 402 and 501 of the SWMA, the Board has the power and duty to adopt rules and regulations concerning the storage, treatment, disposal and transportation of hazardous waste that are necessary to protect the public's health, safety, welfare and property, and the air, water and other natural resources of this Commonwealth. Sections 303 and 305(e)(2) of the HSCA grant the Board the power and duty to promulgate regulations to carry out the provisions of the HSCA and establish an allocation formula for one-time payments to host municipalities, respectively. Sections 5, 402 and 501 of The Clean Streams Law grant the Board the authority to adopt regulations that are necessary to protect the waters of this Commonwealth from pollution. Section 1920-A of The Administrative Code of 1929 grants the Board the authority to promulgate rules and regulations that are necessary for the proper work of the Department.
D. Background of the Amendments
The Board is amending Chapters 260a and 269a to simplify and clarify the regulations governing the allocation of the Fund. Section 305 of the HSCA establishes the Fund. The purpose of the Fund is to provide financial assistance to municipalities that host certain categories of commercial hazardous waste treatment, storage or disposal facilities. Section 305 of the HSCA contemplates two distinct types of financial assistance. The first is reimbursement to a host municipality for, among other things, the costs of training and employing host municipality inspectors and the cost for a municipality to conduct an independent review of an application for a commercial hazardous waste permit.
The second type of financial assistance is the focus of this final-form rulemaking. This assistance consists of a one-time payment to municipalities for each new or expanded commercial hazardous waste treatment or disposal facility permitted after December 18, 1988 (the effective date of the HSCA). The facility must fulfill hazardous waste treatment or disposal capacity needs as identified in the Pennsylvania Hazardous Waste Facilities Plan. Only those municipalities that host a facility that meets the definition of a ''qualifying facility'' are eligible for this financial assistance.
There has been some confusion and contention over the interpretation of the term ''qualifying facility.'' The term is currently defined in § 260a.10 (relating to definitions). The Department is modifying the definition to clarify the term. The final-form rulemaking breaks the definition into new and existing facilities. The definition of new facility is intended to clarify that the facility is newly permitted and not newly regulated; that is, not an existing facility that now requires a permit because of a regulatory change or a facility that operated under interim status. The Department has consistently interpreted the one-time payment program this way since passage of the HSCA in 1988, but there has been confusion in some host communities that the issuance of a permit to a facility that operated prior to 1988 caused that facility to be a newly permitted facility. The Department believes that this interpretation is consistent with the intent of the General Assembly in creating the Fund in the HSCA.
The amended definition of qualifying facility clarifies that an existing facility may be a qualifying facility if a larger volume of hazardous waste is allowed through a permit modification. In addition, the final-form rulemaking moves the definition to Chapter 269a, since it is only used in that chapter and not generally in the hazardous waste regulations.
The final-form rulemaking modifies the allocation formula for distribution of the one-time payment to remove the Hazardous Waste Site Ranking System (HRS) established by the United States Environmental Protection Agency (EPA) in 40 CFR Part 300, Appendix A (relating to the hazard ranking system) as a factor in determining the proper allocation when there is more than one qualifying facility in a year. This will result in a less costly determination, since an HRS report is expensive to prepare. It will also result in a more appropriate determination, since the HRS is designed to rank impacts from uncontrolled releases under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and not permitted facilities, which should have control of hazardous wastes.
The Solid Waste Advisory Committee (SWAC) reviewed the final-form rulemaking at its March 8, 2001, meeting and recommended that the Board approve the final-form rulemaking as written. A listing of the members of SWAC may be obtained from the contact persons listed in section B of this Preamble.
E. Summary of Changes to the Proposed Rulemaking
Section 269a.1. Definitions.
Section 305(e)(2) of the HSCA refers to new or expanded commercial hazardous waste treatment and disposal facilities as ''qualifying facilities.'' The final-form rulemaking adds a new clause (D) to help clearly define when a facility is considered ''new'' and therefore a ''qualifying facility.'' This addition explicitly states that a facility operated under interim status prior to December 18, 1988, cannot be considered to be a ''qualifying facility'' unless it meets the requirements in the definition to be considered an ''expanded'' facility. This change clarifies that a facility operating under interim status prior to the HSCA's effective date but that later received a formal written hazardous waste permit would not be considered a ''new'' facility for the purposes of the Fund.
Section 269a.221. Allocation of the Fund.
The proposed rulemaking modified the allocation formula for the distribution of the one-time payment to replace the HRS established by the EPA in 40 CFR Part 300, Appendix A with a simpler, less costly and more appropriate method. Section 269a.221(d)(1) was deleted to make that change. Section 269a.221(d)(1)(i) and (ii) stated two criteria for Fund allocation that are established by section 305(e)(2)(ii)(A) and (B) of the HSCA. Because of public comment, the Department is reinserting the two criteria contained in the HSCA but deleted by the proposed rulemaking.
F. Summary of Comments and Responses on the Proposed Rulemaking
This rulemaking was published as proposed at 30 Pa.B. 4816 (September 16, 2000) with a 30-day comment period. One public comment was submitted during the public comment period. The commentator expressed concern regarding the removal of existing language in the regulations relating to the proximity of the facility to persons or natural resources that would be endangered by the escape of hazardous waste from the facility. The Independent Regulatory Review Commission (IRRC) also submitted written comments to the Department. IRRC's comments related to the deletion of the two statutory criteria mandated by section 305(e) of the HSCA. As noted in section E of this order, these criteria were contained in § 269a.221(d)(1)(i) and (ii) (the toxicity, mobility and other characteristics of hazardous waste; and the proximity of the facility to persons or natural resources which would be endangered by the escape of hazardous waste from the facility). IRRC also requested that the Board restore these criteria in the final-form rulemaking.
The Department believes that the statutory provisions control regardless of their inclusion in or deletion from § 269a.221, and that the permitting and siting requirements of the hazardous waste regulations provide additional oversight for these concerns. In the interest of completeness and clarity, however, these criteria have been reinserted as § 269a.221(d)(1) and (2) and will be administered taking into account the permitting and siting information when required.
G. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form rulemaking.
Benefits
The final-form rulemaking will clarify the eligibility requirements for a host municipality to receive a one-time payment from the Fund. This will reduce confusion and contention over the eligibility issue. In addition, it will modify the allocation formula on the distribution of the one-time payment to replace EPA's HRS, with a simpler, less costly and more appropriate method.
Compliance Costs
The final-form rulemaking is not expected to impose any additional costs on the regulated community, nor will it result in increased costs of implementation for the Commonwealth or local governments.
Compliance Assistance Plan
Because of the limited applicability of this final-form rulemaking, the Department will be able to specifically target compliance assistance and outreach efforts regarding one-time payments under the Fund.
Paperwork Requirements
There will be no additional paperwork requirements as a result of the final-form rulemaking.
H. Sunset Review
This final-form rulemaking will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the rulemaking effectively fulfills the goals for which it was intended.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 5, 2000, the Department submitted a copy of the notice of proposed rulemaking, published at 30 Pa.B. 4816, to IRRC and the Chairpersons of the House and Senate Environmental Resources and Energy Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing this final-form rulemaking, the Department has considered all comments from IRRC, the Committees and the public.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), on July 17, 2001, this final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on July 26, 2001, and approved the final-form rulemaking.
J. Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law, and all comments were considered.
(3) This final-form rulemaking does not enlarge the purpose of the proposal published at 30 Pa.B. 4816.
(4) This final-form rulemaking is necessary and appropriate for administration and enforcement of the authorizing acts identified in section C of this order.
K. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapters 260a and 269a, are amended by amending §§ 260a.10, 269a.1 and 269a.221 to read as set forth in Annex A.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Chairperson of the Board shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect immediately.
DAVID E. HESS,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 31 Pa.B. 4503 (August 11, 2001).)
Fiscal Note: Fiscal Note 7-354 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart D. ENVIRONMENTAL HEALTH AND SAFETY
ARTICLE VII. HAZARDOUS WASTE MANAGEMENT
CHAPTER 260a. HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
Subchapter B. DEFINITIONS § 260a.10. Definitions.
A term defined in this section replaces the definition of the term in 40 CFR 260.10, or, in situations for which no term exists in 40 CFR 260.10, the term shall be defined in accordance with this section. The substitution of terms in § 260a.3 (relating to terminology and citations related to Federal regulations) does not apply to the incorporated definition of ''EPA region,'' ''State,'' ''United States,'' ''Administrator'' and ''Regional Administrator.''
Act--The Solid Waste Management Act (35 P. S. §§ 6018.101--6018.1003).
Disposal--The incineration, deposition, injection, dumping, spilling, leaking or placing of solid waste into or on the land or water in a manner that the solid waste or a constituent of the solid waste enters the environment, is emitted into the air or is discharged to the waters of this Commonwealth.
Existing tank system or existing component--The Federal definition for ''existing tank system or existing component'' in 40 CFR 260.10 is incorporated by reference except that the date referenced is January 16, 1993, instead of July 14, 1986.
Facility--The land, structures and other appurtenances or improvements where municipal or residual waste disposal or processing is permitted or takes place, or where hazardous waste is treated, stored or disposed.
Fund--The Host Municipalities Fund.
Hazardous Sites Cleanup Act--The Hazardous Sites Cleanup Act (35 P. S. §§ 6020.101--6020.1305).
Hazardous Sites Cleanup Fund--The fund established by section 901 of the Hazardous Sites Cleanup Act (35 P. S. § 6020.901).
Host municipality--A municipality, other than a county, where a qualifying facility is located, either in whole or in part, within its established corporate boundaries.
Management or hazardous waste management--The entire process, or a part thereof, of storage, collection, transportation, processing, treatment and disposal of solid wastes by a person engaging in the process. The term ''hazardous waste management'' refers to management of hazardous waste.
New hazardous waste management facility or new facility--The Federal definition for ''new hazardous waste management facility or new facility'' in 40 CFR 260.10 is incorporated by reference except that the date referenced is November 19, 1980, instead of October 21, 1976.
New tank system or new tank component--The Federal definition for ''new tank system or new tank component'' in 40 CFR 260.10 is incorporated by reference except that the date referenced is January 16, 1993, instead of July 14, 1986.
Pennsylvania hazardous waste facilities plan--A plan required by sections 104(14) and 105(f) of the act (35 P. S. §§ 6018.104(14) and 6018.105(f)) and adopted by the EQB which identifies current and future hazardous waste treatment and disposal facilities necessary for the proper management of hazardous waste in this Commonwealth.
Person--An individual, partnership, corporation, association, institution, cooperative enterprise, municipal authority, Federal government or agency, State institution and agency (including, but not limited to, the Department of General Services and the State Public School Buildings Authority), or other legal entity which is recognized by law as the subject of rights and duties. In any provision of the act prescribing a fine, imprisonment or penalty, or a combination of the foregoing, the term includes the officers and directors of a corporation or other legal entity having officers and directors.
RCRA--The Federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (42 U.S.C.A. §§ 6901--6986).
Registered professional engineer or professional engineer--An engineer registered to practice engineering in this Commonwealth.
Registered professional geologist or professional geologist--A geologist registered to practice geology in this Commonwealth.
Responsible official--For corporations, a corporate officer; for limited partnerships, a general partner; for all other partnerships, a partner; for a sole proprietorship, the proprietor; for a municipal, state or Federal authority or agency, an executive officer or ranking elected official responsible for compliance of the hazardous waste activities and facilities of the authority or agency with all applicable rules and regulations.
Source reduction--The reduction or elimination of the quantity or toxicity of hazardous waste generated. Source reduction may be achieved through changes within the production process, including process modifications, feedstock substitutions, improvements in feedstock purity, shipping and packing modifications, housekeeping and management practices, increases in the efficiency of machinery and recycling within a process. The term does not include dewatering, compaction, reclamation, treatment, or the use or reuse of waste.
State manifest document number--The state abbreviation, the letter and the unique number assigned to the manifest, usually preprinted on the form, for recording and reporting purposes.
Storage--The containment of a waste on a temporary basis that does not constitute disposal of the waste. It will be presumed that the containment of waste in excess of 1 year constitutes disposal. This presumption can be overcome by clear and convincing evidence to the contrary.
Transportation--The offsite removal of solid waste at any time after generation.
CHAPTER 269a. SITING
Subchapter A. SITING HAZARDOUS WASTE TREATMENT AND DISPOSAL FACILITIES
GENERAL PROVISIONS § 269a.1. Definitions.
(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Active water supply--A water supply in use prior to both the receipt of a permit application and the establishment of a public participation program for a hazardous waste management facility.
Facility site--All contiguous land owned or under the control of an owner or operator of a hazardous waste facility and identified in a permit or permit application.
Qualifying facility--Is one of the following:
(i) A new commercial hazardous waste treatment or disposal facility, which did not exist as a solid waste or recycling facility prior to December 18, 1988, that:
(A) Has been issued a written permit after December 18, 1988.
(B) Fulfills the hazardous waste treatment or disposal capacity needs identified in the Pennsylvania hazardous waste facilities plan.
(C) Accepts hazardous waste under the conditions of the permit.
(D) Did not operate under 40 CFR Part 270 Subpart G (relating to interim status), as incorporated by reference in § 270a.1 (relating to incorporation by reference, scope and applicability), prior to the issuance of the written permit.
(ii) An existing permitted commercial hazardous waste treatment or disposal facility which was permitted before December 18, 1988, that:
(A) Has been issued a written permit modification to expand the facility after December 18, 1988.
(B) Fulfills the hazardous waste treatment or disposal capacity needs identified in the hazardous waste facilities plan.
(C) Accepts a larger volume of hazardous waste than was authorized in the permit prior to modification to expand the facility.
Wetland--An area inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, including swamps, marshes, bogs and similar areas. The term includes, but is not limited to, wetland areas listed in the State Water Plan, the United States Forest Service Wetlands Inventory of Pennsylvania, the Pennsylvania Coastal Zone Management Plan, the United States Fish and Wildlife National Wetland Inventory and wetland areas designated by a river basin commission.
(b) All other words and terms not defined in this subchapter have the meanings ascribed to them in § 260a.10 (relating to definitions).
Subchapter C. HOST MUNICIPALITY FUND ALLOCATION
ALLOCATION § 269a.221. Allocation of the Fund.
(a) The Department will identify qualifying facilities at the end of each calendar year. A municipality will become eligible for payment in the first calendar year that a qualifying facility is permitted and operating. Host municipalities are not required to submit an application or request to be eligible.
(b) A host municipality shall be eligible for a one time payment from the Fund if a qualifying facility is identified by the Department in whole, or in part, within the host municipality's corporate boundaries, and moneys remain in the Fund after requests for reimbursement under section 305(d)(1) of the act (35 P. S. § 6020.305(d)(1)) have been satisfied for the calendar year.
(c) When only one qualifying facility is identified, the host municipality shall receive the balance of the fund for that year, subject to subsection (b).
(d) When more than one qualifying facility is identified, the Department will allocate the available moneys using the following criteria:
(1) The toxicity, mobility and other characteristics of the hazardous waste.
(2) The proximity of the facility to persons or natural resources which would be endangered by the escape of the hazardous waste from the facility.
(3) The total weight or volume of hazardous waste, whichever the Department determines is most readily calculated and most appropriate, treated or disposed of annually at the facility shall be calculated as a percentage of the total amount of hazardous waste treated or disposed of annually within this Commonwealth.
(4) The total weight or volume of hazardous waste, whichever the Department determines is most readily calculated and most appropriate, generated in this Commonwealth, shall be calculated as a percentage of the hazardous waste treated or disposed of annually at the facility.
(5) The Department may require executed contracts or the facility's first year of manifest data from the owner or operator to determine the information required by this section.
(6) If the total facility is not designated as needed by the Pennsylvania Hazardous Waste Facilities Plan, the percentage of the facility meeting the needs of the Pennsylvania Hazardous Waste Facilities Plan will be estimated by the Department.
(7) Numerical values shall be derived based on the factors in paragraphs (1)--(4). Those values shall be added together to obtain a score for each qualifying facility.
(8) The scores will then be compared and a pro rata share of the available Fund moneys will be allocated to each host municipality based on these scores.
(9) If a qualifying facility is located in more than one host municipality, the allocation for that facility shall be distributed among the municipalities based on the percentage of the permitted facility within each municipality.
[Pa.B. Doc. No. 01-1637. Filed for public inspection September 7, 2001, 9:00 a.m.]
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