[32 Pa.B. 564]
[Continued from previous Web Page] Compliance Costs
The proposed amendments will increase the cost of sampling and analysis to meet numeric standards. The number of samples required is based on the volumes of excavated material. Under current management practices, sampling is left to the discretion of the person managing the excavated materials. The proposed amendments include sampling and analysis procedures to be applied when a person decides to evaluate the excavated material. Under this proposal, a person has the option of using discrete or composite samples when analyzing material. By choosing composite samples, the cost of sampling and analysis will be a less expensive option. The current estimated sampling and analysis cost for a sample is estimated at $1,000. The proposed sampling will require 48 discrete samples or 12 composite samples for 10,000 cubic yards of excavated material. Based on the analysis option selected, cost of analysis will be $12,000 for composite samples or $48,000 for discrete samples. It should be recognized, however, that the person managing safe fill has three options to determine the extent of sampling and analysis necessary for characterizing the material. This should actually lower the cost of offsite movement and use of excavated material as safe fill.
The net cost to the regulated community as a result of the proposed increase in sampling/analysis requirements is expected to be approximately $8.8 million the first year and in subsequent years. The cost estimate is based on the estimate of 20 million cubic yards of soil excavated annually in this Commonwealth. It is assumed that 20% may qualify under the safe fill exclusions, and another 40% may not require sampling and analysis as a result of the three options provided for determining if sampling and analysis is necessary. It is assumed that the remaining 40% of the excavated material may require sampling and analysis and incur the cost, estimated in this paragraph as $8.8 million. This is offset by the projected savings of $500 million realized by avoiding landfill disposal.
It is projected that there will be no increase in costs or savings to local governments associated with these proposed amendments.
Compliance Assistance Plan
The Department will assist the regulated community by developing a series of fact sheets explaining changes to the definitions of waste and related terms. In addition, the Department will continue to work with the Pennsylvania Chamber of Business and Industry and other industry groups to develop workshops to explain how to apply the new regulations.
Paperwork Requirements
For PBR activity, no application process is required. A permittee shall only provide written notice to the Department that he is operating under a specific PBR. In addition, minimal recordkeeping requirements are imposed by this proposed rulemaking for persons who operate under a permit.
G. Sunset Review
These proposed amendments will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on January 18, 2002, the Department submitted a copy of the proposed rulemaking to the Independent Regulatory Review Commission (IRRC), and the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In addition to submitting the proposed amendments, the Department has provided IRRC and the Committees with a copy of a detailed regulatory analysis form prepared by the Department. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed amendments, it will notify the Department within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria that have not been met by that portion of the proposed amendments to which an objection is raised. The Regulatory Review Act specifies detailed procedures for the Department, the Governor and the General Assembly to review these objections before final publication of the final-form regulations.
I. Public Comments
Written Comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed amendments to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477 (express mail: Rachel Carson State Office Building, 15th Floor, 400 Market Street, Harrisburg, PA 17101-2301). Comments submitted by facsimile will not be accepted. Comments, suggestions or objections must be received by April 3, 2002. Interested persons may also submit a summary of their comments to the Board. The summary shall not exceed one page in length and shall also be received by April 3, 2002. The one-page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final regulations will be considered.
Electronic Comments--Comments may be submitted electronically to the Board at RegComments@state.pa.us must also be received by April 3, 2002. A subject heading of the proposal and a return name and address must be included in each transmission.
J. Public Meetings and Hearings
The Department will hold three public meetings to explain the proposed amendments and to respond to questions from participants. The meetings will be held at 7 p.m. as follows:
February 13, 2002 Four Points Sheraton--Pittsburgh
North
910 Sheraton Drive
Mars, PAFebruary 19, 2002 Department of Environmental
Protection
Auditorium, Rachel Carson State
Office Building
400 Market Street
Harrisburg, PAFebruary 25, 2002 Upper Merion Township Building
Freedom Hall
175 West Valley Forge Road
King of Prussia, PAThe Board will hold three public hearings for the purpose of accepting comments on this proposal. The hearings will be held at 7 p.m. on the following dates:
March 6, 2002 Four Points Sheraton--Pittsburgh
North
910 Sheraton Drive
Mars, PAMarch 11, 2002 Upper Merion Township Building
Freedom Hall
175 West Valley Forge Road
King of Prussia, PAMarch 19, 2002 Department of Environmental
Protection
Auditorium, Rachel Carson State
Office Building
400 Market Street
Harrisburg, PAPersons wishing to present testimony at a hearing are requested to contact Debra Failor at the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477, (717) 787-4526, at least 1 week in advance of the hearing to reserve a time to present testimony. Oral testimony is limited to 10 minutes for each witness. Witnesses are requested to submit three written copies of their oral testimony to the hearing chairperson at the hearing. Organizations are limited to designating one witness to present testimony on their behalf at each hearing.
Persons in need of accommodations as provided for in the Americans with Disabilities Act of 1990 should contact Debra Failor directly at (717) 787-4526 or through the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD) to discuss how the Department may accommodate their needs.
DAVID E. HESS,
ChairpersonFiscal Note: 7-372. (1) General Fund.
Environmental Program Management
(dollars in thousands) (2) Implementing Year 2001-02 is $10,000 (3) 1st Succeeding Year 2001-03 is $0 2nd Succeeding Year 2003-04 is $0 3rd Succeeding Year 2004-05 is $0 4th Succeeding Year 2005-06 is $0 5th Succeeding Year 2006-07 is $0 (d) Three-year history of program costs:
Environmental Program Management
(dollars in thousands) (4) 2000-01 Program-- $41,471 1999-00 Program-- $40,200 1998-99 Program-- $33,123 (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart D. ENVIRONMENTAL HEALTH AND SAFETY
ARTICLE VIII. MUNICIPAL WASTE
CHAPTER 271. MUNICIPAL WASTE MANAGEMENT--GENERAL PROVISIONS
Subchapter A. GENERAL § 271.1. Definitions.
The following words and terms, when used in this article, have the following meanings, unless the context clearly indicates otherwise:
* * * * * [Clean fill--Uncontaminated, nonwater-soluble, nondecomposable inert solid material used to level an area or bring the area to grade. The term does not include material placed into or on waters of this Commonwealth.]
* * * * * Construction/demolition waste--Solid waste resulting from the construction or demolition of buildings and other structures, including, but not limited to[, wood, plaster, metals, asphaltic substances, bricks, block and unsegregated concrete.]:
(i) Wood.
(ii) Plaster.
(iii) Metals.
(iv) Asphaltic substances.
(v) Bricks, block and concrete.
[The term does not include the following if they are separate from other waste and are used as clean fill:
(i) Uncontaminated soil, rock, stone, gravel, brick and block, concrete and used asphalt.
(ii) Waste from land clearing, grubbing and excavation, including trees, brush, stumps and vegetative material.]
* * * * * Historic fill--
(i) Historically contaminated material (excluding landfills, waste piles and impoundments) used to bring an area to grade prior to 1988 that is a conglomeration of soil and residuals, such as ashes from the residential burning of wood and coal, incinerator ash, coal ash, slag, dredged material and construction and demolition waste.
(ii) The term does not include historically contaminated material in quantities of less than or equal to 125 cubic yards per excavation location if the following conditions are met:
(A) There is no indication that the material has been subject to a release of regulated substances.
(B) There is no visible staining, odor or other sensory nuisance associated with the material.
* * * * * Safe fill--Safe fill as defined in § 287.1 (relating to definitions).
* * * * * § 271.2. Scope.
* * * * * (c) Management of the following types of waste is subject to Article IX instead of this article, and shall be regulated as if the waste is residual waste, regardless of whether the waste is municipal waste or residual waste:
* * * * * (7) Historic fill.
* * * * *
Subchapter B. GENERAL REQUIREMENTS FOR PERMITS AND PERMIT APPLICATIONS
REQUIREMENT § 271.101. Permit requirement.
* * * * * (b) A person or municipality is not required to obtain a permit:
* * * * * [(3) For the use as clean fill of the following materials if they are separate from other waste:
(i) Uncontaminated soil, rock, stone, gravel, unused brick and block and concrete.
(ii) Waste from land clearing, grubbing and excavation, including trees, brush, stumps and vegetative material.
(4)] (3) * * *
[(5)] (4) * * *
* * * * * § 271.103. Permit-by-rule for municipal waste processing facilities other than for infectious or chemotherapeutic waste; qualifying facilities; general requirements.
* * * * * (g) Mechanical processing facility. A facility for the processing of [uncontaminated] rock, stone, gravel, brick, block and concrete from construction/demolition activities, individually or in combination, by mechanical or manual sizing or by mechanical or manual separation for prompt reuse shall be deemed to have a municipal waste processing permit-by-rule if it meets the requirements of subsections (a)--(c), the rock, stone, gravel, brick, block and concrete are separate from other waste and contaminants and the operator submits a written notice to the Department that includes the name, address and telephone number of the facility, the individual responsible for operating the facility and a brief description of the waste and the facility. The facility [shall be onsite or process less than 50 tons or 45 metric tons per day, and] may not operate in violation of any State, county or municipal waste management plan. If the facility is offsite and processes more than 50 tons or 45 metric tons per day, the following additional requirements shall be met:
(1) The facility may not receive more than 350 tons or 315 metric tons per day.
(2) The facility shall and maintain a 300-foot isolation distance from an occupied dwelling, unless the owner of the dwelling has provided a written waiver consenting to the facility being closer than 300 feet.
(3) The facility shall process the incoming waste within 30 days.
(4) Processed waste shall be removed from the facility within 60 days of processing for reuse.
(5) The operator shall maintain records that indicate compliance with the waste processing and removal limits identified in paragraphs (3) and (4).
(6) Residue from the operation shall be removed and disposed within 1 week of being generated. For purposes of this paragraph, the term ''residue'' includes material that is unable to be processed and processed material that is unusable.
* * * * * (i) Brick, block or concrete. The placement of segregated brick, block or concrete resulting from construction or demolition activities at industrial properties or placement of contaminated and segregated brick, block or concrete resulting from construction or demolition activities at commercial or residential properties shall be deemed to have a municipal waste permit when used to bring an area to grade, as construction material or in reclamation of an active or abandoned mine or abandoned quarry, if in addition to subsections (a)--(c), the following conditions are met:
(1) The waste material does not exceed the lower of the following:
(i) The residential generic value of the soil-to- groundwater pathway numeric value calculated in accordance with the methodology in § 250.308 (a)(2)(i), (3), (4)(i) and (5) (relating to soil to groundwater pathway numeric values). The numeric standards to be met are listed in Appendix A, Tables 5 and 6.
(ii) The lowest residential direct contact numeric values calculated in accordance with the methodologies in §§ 250.306 and 250.307 (relating to ingestion numeric values; and inhalation numeric values). The numeric standards to be met are listed in Appendix A, Tables 5 and 6.
(2) When calculating numeric standards under paragraph (1), the following additional requirements apply:
(i) Formulae identified in § 250.305(b) (relating to MSCs in soil) shall apply as limits to the physical capacity of the soil to contain a substance.
(ii) When calculating the residential soil-to-groundwater pathway numeric value, the calculation shall be based on groundwater in aquifers used or currently planned for use with naturally occurring background total dissolved solids concentrations less than or equal to 2,500 milligrams per liter.
(3) To determine whether waste material meets the standards in paragraphs (1) and (2), the waste material shall be sampled and analyzed in accordance with § 287.11(b) and (c) or (d) (relating to safe fill numeric standards).
(4) Waste material may not be placed into or along surface waters of this Commonwealth unless prior Department approval has been obtained associated with active or abandoned mine or abandoned quarry reclamation activities or under Chapter 105 (relating to dam safety and waterway management), and the following conditions are met:
(i) Waste material placed into or along surface waters as approved by the Department under Chapter 105 may not exceed 10% of the numeric standards calculated in paragraphs (1) and (2), and placement of the waste may not cause an exceedance of the water quality standards in Chapters 16 and 93 (relating to water quality toxics management strategy--statement of policy; and water quality standards).
(ii) Waste material placed into or along waters as part of an active or abandoned mine or abandoned quarry reclamation may not cause an exceedance of the water quality standards in Chapters 16 and 93 and, based on an approved sampling and analysis plan, shall meet the following:
(A) The waste material received shall meet 10% of the numeric standards calculated in paragraphs (1) and (2).
(B) For metals only, in lieu of clause (A), the material may not produce a leachate in excess of the residential medium-specific concentration for groundwater in aquifers used or currently planned for use with naturally occurring background total dissolved solids concentrations less than or equal to 2,500 milligrams per liter, when subject to the Synthetic Precipitation Leaching Procedure (SPLP) (Method 1312 of SW-846, Test Methods for Evaluating Solid Waste, promulgated by the EPA). The numeric standards to be met for metals by SPLP are listed in Appendix A, Table 6. The SPLP may only be used when groundwater monitoring is being conducted at the location where waste is placed.
(5) The waste material may only be placed under this permit on properties that are zoned and exclusively used for commercial and industrial uses. For unzoned properties, waste material shall be reused in an area where the background is equal to or greater than the concentration of contamination in waste material being brought to the site and the property shall be used for commercial or industrial purposes only.
(6) At locations where waste material is placed, an erosion and sedimentation control plan is implemented that is consistent with the applicable requirements of Chapter 102 (relating to erosion and sediment control).
(7) At locations where waste material is placed, the materials may not be placed within 100 feet of surface waters of this Commonwealth except as provided in paragraph (4).
(8) At locations where waste material is placed, the materials may not be placed within 100 feet of the edge of a sinkhole.
(9) At locations where waste material is placed, the materials may not be placed within 300 feet of a water source unless the owner has provided a written waiver consenting to the placement of the material closer than 300 feet.
(10) Waste material that is hazardous waste under Chapter 261a (relating to identification and listing of hazardous waste) may not be used under this permit.
(11) Waste material when placed may not contain free liquids, based on visual inspection, and may not create an odor or other public nuisance.
(12) A person who receives and uses waste material shall submit a written notice to the Department that includes the following:
(i) The name, address and phone number of the person receiving and using the waste material.
(ii) The quantity of waste material used at the receiving location.
(iii) The locations where waste material was removed for use and locations where the waste material is placed for use.
(iv) An identification of whether the area from which the waste material is removed is the subject of a corrective action or remediation activity.
(v) A description of engineering practices and construction activities used to assure that site excavation and placement of waste material does not cause onsite or offsite contamination.
(13) Records of analytical evaluations conducted on the waste material shall be maintained by the person using and distributing the waste material and shall be made available to the Department for inspection. The records shall include the following:
(i) The dates of testing.
(ii) Each parameter tested.
(iii) The test results.
(iv) The laboratory where testing was conducted.
(v) The sampling procedures and analytical methodologies used.
(vi) The name of the person who collected the sample.
(14) This permit does not authorize and may not be construed as an approval to discharge waste, wastewater or runoff from the site where waste material originated, or the site where waste material is beneficially used, to the land or waters of this Commonwealth.
(15) Waste placed in accordance with this permit shall cease to be waste as long as the material remains in place.
ARTICLE IX. RESIDUAL WASTE MANAGEMENT
CHAPTER 287. RESIDUAL WASTE MANAGEMENT--GENERAL PROVISIONS
Subchapter A. General § 287.1. Definitions.
The following words and terms, when used in this article, have the following meanings, unless the context clearly indicates otherwise:
* * * * * [Clean fill--Uncontaminated, nonwater-soluble, inert solid material used to level an area or bring the area to grade. The term does not include materials placed in or on the waters of this Commonwealth.]
* * * * * Historic fill--
(i) Historically contaminated material (excluding landfills, waste piles and impoundments) used to bring an area to grade prior to 1988 that is a conglomeration of soil and residuals, such as ashes from the residential burning of wood and coal, incinerator ash, coal ash, slag, dredged material and construction/demolition waste.
(ii) The term does not include historically contaminated material in quantities of less than or equal to 125 cubic yards per excavation location if the following conditions are met:
(A) There is no indication that the material has been subject to a release of regulated substances.
(B) There is no visible staining, odor or other sensory nuisance associated with the material.
* * * * * Safe fill--
(i) Material that is uncontaminated soil, including rock and stone, uncontaminated dredged material, uncontaminated used asphalt or uncontaminated and segregated brick, block or concrete resulting from construction or demolition activities from residential and commercial properties and that meets one of the following requirements:
(A) The material meets the numeric standards referenced in § 287.11 (relating to safe fill numeric standards) and listed in Appendix A, Tables 1 and 2, and meets the following requirements:
(I) Based on an appropriate level of due diligence, there is no knowledge or past activity that indicates the material has been subject to a release.
(II) There is no visible staining, odor or other sensory nuisance resulting from chemical contaminants associated with the material.
(B) Based on an appropriate level of due diligence, the historical data on the excavation site indicates that past activity had the potential to result in a release, but there is no knowledge of a release and the material meets the numeric standards referenced in § 287.11 and listed in Appendix A, Tables 1 and 3, and meets the requirements of clause (A).
(C) Based on an appropriate level of due diligence and knowledge of the site, the material meets the safe fill numeric standards without sampling and analysis and meets the requirements of clause (A).
(ii) The term includes the material in subparagraph (i) that exceed the numeric limits in Appendix A, Table 1 or either Table 2 or 3, if it meets the criteria in subparagraph (i)(A)(I) and (II) and meets one of the following requirements:
(A) The material is moved within a right-of-way.
(B) The material is moved offsite from a residential property currently developed as a residential property or zoned residential and never used for nonresidential purposes.
(C) The material is moved within a property, except for soil moved in accordance with subparagraph (iii).
(iii) The term includes soil moved from a fruit orchard under development where pesticides were used in an authorized manner in conjunction with standard horticultural practices. If the soil exceeds the numeric limits in Appendix A, Table 1 or either Table 2 or 3, and meets one of the following requirements, it is considered ''safe fill'':
(A) The soil is used for commercial or industrial purposes.
(B) The soil is blended with other soil to meet the limits in Appendix A, Table 1 and either Tables 2 or 3, and used for residential purposes.
(iv) The term includes dredged material placed directly on land adjacent to the dredging operation for beach nourishment or as a soil additive or soil substitute. If dredged material exceeds the numeric limits in Appendix A, Table 1 and either Table 2 or 3, it shall meet the criteria in subparagraph (i)(A)(I) and (II) and meet one of the following conditions, it is considered ''safe fill'':
(A) The dredged material is placed on land at a location used for commercial or industrial purposes.
(B) The dredged material is blended with other soil or other dredged material to meet the numeric limits in Appendix A, Tables 1 and 2, and used for residential purposes.
(v) The term includes historic fill in quantities of less than or equal to 125 cubic yards per excavation location if the conditions of subparagraph (i)(A)(I) and (II) are met.
(vi) The term does not include material placed into or along surface waters of this Commonwealth unless prior Department approval has been obtained associated with active or abandoned mine or abandoned quarry reclamation activities or under Chapter 105 (relating to dam safety and waterway management), and the material meets the following conditions:
(A) Material placed into or along surface waters as approved by the Department under Chapter 105 and does not exceed 10% of the numeric standards calculated in § 287.11(a)(1) and (2), and placement of the material does not cause an exceedance of the water quality standards in Chapters 16 and 93 (relating to water quality toxics management strategy--statement of policy; and water quality standards).
(B) Material placed into or along waters as part of an active or abandoned mine or abandoned quarry reclamation does not cause an exceedance of the water quality standards in Chapters 16 and 93 and, based on an approved sampling and analysis plan, meets the following:
(I) The material received meets 10% of the numeric standards calculated in § 287.11(a)(1) and (2).
(II) For metals only, in lieu of subclause (I), the material does not produce a leachate in excess of the residential medium-specific concentration for groundwater in aquifers used or currently planned for use with naturally occurring background total dissolved solids concentrations less than or equal to 2,500 milligrams per liter, when subject to the Synthetic Precipitation Leaching Procedure (SPLP) (Method 1312 of SW-846, Test Methods for Evaluating Solid Waste, promulgated by the EPA). The numeric standards to be met for metals by SPLP are listed in Appendix A, Table 1. The SPLP may only be used when groundwater monitoring is being conducted at the location where waste is placed.
(vii) The person using the material has the burden of proof to demonstrate that the material is safe fill.
(viii) If, based on a determination made under subparagraph (i), the material exceeds the numeric standards under subparagraphs (ii), (iii) or (iv), the exceedance may be no greater than the lower of the nonresidential direct contact numeric value (using §§ 250.306 and 250.307 (relating to ingestion numeric values; and inhalation numeric values)) or nonresidential soil-to-groundwater pathway numeric value (using § 250.308(a)(2)(i), (3), (4)(i) and (5) (relating to soil to groundwater pathway numeric values)) established for aquifers used or currently planned for use containing less than 2,500 mg/l total dissolved solids. Formulae identified in § 250.305(b) (relating to MSCs in soil) apply as a limit to the physical capacity of the soil to contain a substance.
(ix) Materials that meet the requirements under this term are not regulated as waste when used as fill.
* * * * * Sediment--Materials deposited or overlain by water in rivers, lakes, ponds or tidal streams that consist of heterogeneous mixtures of sand, silt, clay, gravel and organic material deposited through erosion or by lake or river currents.
* * * * * Site undergoing remediation activities--The extent of contamination originating within the property boundaries and all areas in close proximity to the contamination necessary for the implementation of remediation activities to be conducted under the Land Recycling and Environmental Remediation Standards Act (Act 2) (35 P. S. §§ 6026.101--6026.909).
* * * * * § 287.2. Scope.
* * * * * (c) Management of the following types of waste is subject to this article instead of Article VIII (relating to municipal waste), and shall be regulated as if the waste is residual waste, regardless of whether the waste is municipal waste or residual waste:
* * * * * (7) Historic fill.
* * * * * § 287.11. Safe fill numeric standards.
(a) When conducting sampling and analysis, safe fill numeric standards listed in Appendix A, Tables 1, 2 and 3 shall be calculated as follows:
(1) For safe fill containing substances other than copper and zinc, the lower of the following:
(i) The residential generic value of the soil-to-groundwater pathway numeric value calculated in accordance with the methodology in § 250.308 (a)(2)(i), (3), (4)(i) and (5) (relating to soil-to-groundwater pathway numeric values).
(ii) The lowest residential direct contact numeric values calculated in accordance with the methodologies in §§ 250.306 and 250.307 (relating to ingestion numeric values; and relating to inhalation numeric values).
(2) In addition to paragraph (1), for safe fill containing copper and zinc, numeric limits which take plant toxicity into consideration and that do not exceed concentrations in § 271.914(b)(3) (relating to pollutant limits).
(3) When calculating numeric standards under paragraph (1), the following additional requirements apply:
(i) Formulae identified in § 250.305(b) (relating to MSCs in soil) shall apply as limits to the physical capacity of the safe fill to contain a substance.
(ii) When calculating the residential soil-to-groundwater pathway numeric value, the calculation shall be based on groundwater in aquifers used or currently planned for use with naturally occurring background total dissolved solids concentrations less than or equal to 2,500 milligrams per liter.
(4) Dredged material shall be drained prior to placement on land as safe fill. In addition, dredged material shall meet the requirements of subparagraphs (i) and (iii) or the requirements of subparagraphs (ii) and (iii).
(i) A Toxicity Characteristic Leaching Procedure (TCLP) that demonstrates that the dredged material meets the requirements in § 288.623(a) (relating to minimum requirements for acceptable waste).
(ii) The dredged material may not produce a leachate in excess of the residential medium-specific concentration for groundwater, in aquifers used or currently planned for use with naturally occurring background total dissolved solids concentrations less than or equal to 2,500 milligrams per liter, when subject to the Synthetic Precipitation Leaching Procedure (SPLP) (Method 1312 of SW-846, Test Methods for Evaluating Solid Waste, promulgated by the EPA). The numeric standards to be met by SPLP are listed in Appendix A, Tables 1 and 2.
(iii) Dredged material and sediments from tidal streams shall meet the numeric criteria for chlorides as listed in Appendix A, Table 1.
(b) To determine whether material meets the safe fill numeric standards, one of the sampling and analysis procedures identified in paragraph (1) or (2) shall apply:
(1) Sampling based on composite sampling procedures shall include the following:
(i) For volumes of material equal to or less than 125 cubic yards, a total of eight samples shall be collected and analyzed as follows:
(A) For analysis of all substances other than volatile organic compounds (VOCs), the samples shall be analyzed in two composites of four samples each, in accordance with the most current version of the USEPA Manual, SW-846 (Test Methods for Evaluating Solid Waste, Physical/Chemical Methods. Office of Solid Waste and Emergency Response).
(B) Two samples shall be selected from the 8 samples for analysis of VOCs. The samples shall be based on field screening of the eight samples to select those samples that are most likely to contain the highest concentrations of VOCs.
(C) Two grab samples shall be taken from the same areas in the material from which the two samples used for field screening of VOCs were taken, in accordance with Method 5035 from the most current version of the USEPA Manual, SW-846 (Test Methods for Evaluating Solid Waste, Physical/Chemical Methods. Office of Solid Waste and Emergency Response).
(ii) For volumes of material greater than 125 cubic yards and less than or equal to 3,000 cubic yards, a total of 12 samples shall be collected and analyzed as follows:
(A) For analysis of all substances other than VOCs, the samples shall be analyzed in three composites of four samples each.
(B) Three samples shall be selected from the 12 samples for analysis of VOCs. The samples shall be based on field screening of the 12 samples to select those samples that are most likely to contain the highest concentrations of VOCs.
(C) Three grab samples shall be taken from the same areas in the material from which the three samples used for field screening of VOCs were taken, in accordance with EPA, Method 5035, referenced in subparagraph (i)(C).
(iii) For each additional 3,000 cubic yards of material or part thereof over the initial 3,000 cubic yards, 12 additional samples shall be collected and analyzed as follows:
(A) For analysis of all substances other than VOCs, the samples shall be analyzed in three composites of four samples each.
(B) Three samples for analysis of VOCs shall be selected from the 12 samples for analysis of VOCs. The samples shall be based on field screening of the 12 samples to select those samples that are most likely to contain the highest concentrations of VOCs.
(C) Three grab samples shall be taken from the same areas in material from which the three samples used for field screening of VOCs were taken, in accordance with EPA Method 5035, referenced in subparagraph (i)(C).
(2) Sampling based on discrete sampling procedures shall include the following:
(i) For analysis of substances, sampling shall be random and representative of the safe fill being sampled.
(ii) Sampling shall be in accordance with the most current version of the EPA RCRA Manual, SW-846 (Test Methods for Evaluating Solid Waste, Physical/Chemical Methods. Office of Solid Waste and Emergency Response).
(iii) For volumes of material equal to or less than 125 cubic yards, a minimum of eight samples shall be collected and analyzed. For volumes of material greater than 125 cubic yards and less than or equal to 3,000 cubic yards, a minimum of 12 samples shall be collected and analyzed. For each additional 3,000 cubic yards of material or part thereof over the initial 3,000 cubic yards, a minimum of 12 additional samples shall be collected and analyzed.
(iv) For VOCs analysis, grab sampling procedures shall be the procedures described in paragraph (1), for the equivalent volumes of material sampled.
(c) The analysis of composite samples required in subsection (b)(1) shall meet the following:
(1) For a composite sample, the measured numeric value for a substance is equal to or less than half the safe fill numeric standard in § 287.11 (relating to numeric standards) for that substance and as listed in Appendix A, Tables 1, 2 and 3.
(2) For a grab sample, taken in accordance with subsection (b)(1)(i)(C), (ii)(C) and (iii)(C), the measured numeric value for a substance is less than or equal to the safe fill numeric standard in § 287.11 for that substance and as listed in Appendix A, Tables 1, 2 and 3.
(d) For discrete samples required in subsection (b)(2), the measured numeric values for a substance in 75% of the discrete samples shall be equal to or less than the safe fill numeric standard in this section for that substance with no single sample exceeding more than twice the safe fill numeric standard for a substance.
(e) To determine whether sediments meet the safe fill numeric standards, sampling and analyses shall be conducted in accordance with guidance developed by the Department.
Subchapter C. GENERAL REQUIREMENTS FOR PERMITS AND PERMIT APPLICATIONS § 287.101. General requirements for permit.
* * * * * (b) A person or municipality is not required to obtain a permit under this article, comply with the bonding or insurance requirements of Subchapter E (relating to bonding and insurance requirements) or comply with Subchapter B (relating to duties of generators) for one or more of the following:
* * * * * [(6) The use as clean fill of the materials in subparagraphs (i) and (ii) if they are separate from other waste. The person using the material as clean fill has the burden of proof to demonstrate that the material is clean fill.
(i) The following materials, if they are uncontaminated: soil, rock, stone, gravel, brick and block, concrete and used asphalt.
(ii) Waste from land clearing, grubbing and excavation, including trees, brush, stumps and vegetative material.]
* * * * * § 287.102. Permit-by-rule.
* * * * * (j) Contaminated soil resulting from agricultural practices. The placement of soil from known areas of contamination shall be deemed to have a residual waste permit when used to bring an area to grade, as construction material, for control of fire and subsidence events or in reclamation of active or abandoned mines, if the reclamation work is approved by the Department or is performed under contract with the Department, and if in addition to subsection (a), the following conditions are met:
(1) The soil from known areas of contamination is analyzed for lead and arsenic. If the soil comes from a location where an orchard once existed, the soil may be analyzed for pesticides including aldrin, dieldrin, DDD, DDE and DDT. Contamination in soil may not exceed the nonresidential soil-to-groundwater pathway numeric values based on the following:
(i) The highest value between the nonresidential generic value and a value which is 100 times the nonresidential medium-specific concentration (MSC) for groundwater, as calculated in § 250.308 (relating to soil to groundwater pathway numeric values) and listed in Appendix A, Table 4.
(ii) When calculating the nonresidential soil-to-groundwater pathway numeric value, the calculation shall be based on groundwater in aquifers used or currently planned for use with naturally occurring background total dissolved solids concentrations less than or equal to 2,500 milligrams per liter.
(iii) Formulae identified in § 250.305(b) (relating to MSCs in soil) shall apply as limits to the physical capacity of the soil to contain a substance.
(2) To determine whether soil meets the standards in paragraph (1), the soil shall be sampled and analyzed in accordance with § 287.11(b) and either (c) or (d) (relating to safe fill numeric standards).
(3) At locations where soil from known areas of contamination is placed, direct contact pathways are promptly and permanently eliminated by the placement of uncontaminated soil or through other engineering controls.
(4) At locations where soil from known areas of contamination is placed, an erosion and sedimentation control plan is implemented that is consistent with the applicable requirements of Chapter 102 (relating to erosion and sediment control).
(5) Soil is not placed into or on waters of this Commonwealth.
(6) At locations where soil from known areas of contamination is placed, soil may not be placed within 100 feet of surface waters of this Commonwealth.
(7) At locations where soil from known areas of contamination is placed, soil may not be placed within 100 feet of the edge of a sinkhole.
(8) At locations where soil from known areas of contamination is placed, soil may not be placed within 300 feet of a water source unless the owner has provided a written waiver consenting to the placement of the soil closer than 300 feet.
(9) At locations where soil from known areas of contamination is placed, soil shall only be used under this permit on properties that are zoned and exclusively used for commercial and industrial uses. For unzoned properties, soil from known areas of contamination shall be used in an area where the background is equal to or greater than the concentration of contamination in soil being brought to the site and the property shall be used for commercial or industrial purposes only.
(10) Soil from known areas of contamination that is hazardous waste under Chapter 261a (relating to identification and listing of hazardous waste) may not be used under this permit.
(11) Soil from known areas of contamination when placed may not contain free liquids, based on visual inspection, and may not create odor or other public nuisance resulting from chemical contaminants in the soil.
(12) A person who receives and uses soil from known areas of contamination shall submit a written notice to the Department that includes the following:
(i) The names, addresses and phone numbers of the persons receiving and using the soil from known areas of contamination.
(ii) The quantity of soil used from known areas of contamination at the receiving location.
(iii) The locations of the known areas of contamination where soil was removed for use and where the soil is placed for use.
(iv) An identification of whether the known areas of contamination is the subject of a corrective action or remediation activity.
(v) A description of engineering practices and construction activities used to eliminate direct contact pathways and to assure that site excavation and placement of soil does not cause onsite or offsite contamination.
(vi) If soil is used for control of fire and subsidence events or in reclamation at abandoned mines, include a reference to the Department's separate authorization of the use in those projects.
(13) Records of analytical evaluations conducted on the soil from known areas of contamination shall be maintained by the person using and distributing the soil and shall be made available to the Department for inspection. The records shall include the following:
(i) The dates of testing.
(ii) Each parameter tested.
(iii) The test results.
(iv) The laboratory where testing was conducted.
(v) The sampling procedures and analytical methodologies used.
(vi) The name of the person who collected the sample.
(14) This permit does not authorize and may not be construed as an approval to discharge waste, wastewater or runoff from the site where contaminated soil originated, or the site where contaminated soil is beneficially used, to the land or waters of this Commonwealth.
(15) Soil from known areas of contamination placed in accordance with this permit shall cease to be waste as long as the soil remains in place.
(16) For purposes of this subsection, the term ''known areas of contamination'' means known areas of soil impacted by authorized agricultural practices resulting in lead, arsenic and pesticide contamination.
(l) Contaminated soil, dredged material or used asphalt impacted by a release or contaminated soil, dredged material or used asphalt that exceeds safe fill numeric standards as a result of urbanization. The placement of contaminated soil, dredged material or used asphalt impacted by a release or contaminated soil, dredged material or used asphalt that exceeds safe fill numeric standards as a result of urbanization shall be deemed to have a residual waste permit when used to bring an area to grade, as construction material, for control of fire and subsidence events or in reclamation of active or abandoned mines if the reclamation work is approved by the Department or is performed under contract with the Department and, if in addition to subsection (a), the following conditions are met:
(1) The contaminated soil, dredged material or used asphalt impacted by a release or contaminated soil, dredged material or used asphalt that exceeds safe fill numeric standards may not exceed the lowest residential direct contact numeric values calculated in accordance with the methodologies in §§ 250.306 and 250.307 (relating to ingestion numeric values; and inhalation numeric values). The numeric standards are listed in Appendix A, Tables 5 and 6.
(i) When calculating the residential direct contact numeric value, the calculation shall be based on groundwater in aquifers used or currently planned for use with naturally occurring background total dissolved solids concentrations less than or equal to 2,500 milligrams per liter.
(ii) Formulae identified in § 250.305(b) shall apply as limits to the physical capacity of the soil to contain a substance.
(2) Contamination in soil, dredged material or used asphalt may not exceed groundwater protection standards based on either of the following:
(i) A Toxicity Characteristic Leaching Procedure (TCLP) that demonstrates that the contaminated soil, dredged material or used asphalt meets the requirements in § 288.623(a) (relating to minimum requirements for acceptable waste).
(ii) Contaminated soil, dredged material or used asphalt do not produce a leachate in excess of the residential MSC for groundwater, in aquifers used or currently planned for use with naturally occurring background total dissolved solids concentrations less than or equal to 2,500 milligrams per liter, when subject to the Synthetic Precipitation Leaching Procedure (SPLP) (Method 1312 of SW-846, Test Methods for Evaluating Solid Waste, promulgated by the EPA). The numeric standards are listed in Appendix A, Tables 5 and 6.
(3) To determine whether contaminated soil, dredged material or used asphalt meets the standards in paragraph (1), the soil, dredged material or used asphalt shall be sampled and analyzed in accordance with § 287.11(b) and either (c) or (d).
(4) At locations where contaminated soil, dredged material or used asphalt is placed, an erosion and sedimentation control plan is implemented that is consistent with the applicable requirements of Chapter 102.
(5) Contaminated soil, dredged material or used asphalt is not placed into or on waters of this Commonwealth.
(6) At locations where contaminated soil, dredged material or used asphalt is placed, soil, dredged material or used asphalt may not be placed within 100 feet of surface waters of this Commonwealth.
(7) At locations where contaminated soil, dredged material or used asphalt is placed, the soil, dredged material or used asphalt may not be placed within 100 feet of the edge of a sinkhole.
(8) At locations where contaminated soil, dredged material or used asphalt is placed, the soil, dredged material or used asphalt may not be placed within 300 feet of a water source unless the owner has provided a written waiver consenting to the placement of the contaminated soil, dredged material or used asphalt closer than 300 feet.
(9) At locations where contaminated soil, dredged material or used asphalt is placed, the soil, dredged material or used asphalt shall only be used under this permit on properties that are zoned and exclusively used for commercial and industrial uses. For unzoned properties, contaminated soil, dredged material or used asphalt shall be reused in an area where the background is equal to or greater than the concentration of contamination in the soil, dredged material or used asphalt being brought to the site, and the property shall be used for commercial or industrial purposes only.
(10) Contaminated soil, dredged material or used asphalt that is hazardous waste under Chapter 261a may not be used under this permit.
(11) Contaminated soil, dredged material or used asphalt when placed may not contain free liquids, based on visual inspection, and may not create odor or other public nuisance resulting from chemical contaminants in the soil, dredged material or used asphalt.
(12) A person who receives and uses contaminated soil, dredged material or used asphalt shall submit a written notice to the Department that includes the following:
(i) The names, addresses and phone numbers of the persons receiving and using the contaminated soil, dredged material or used asphalt.
(ii) The quantity of contaminated soil, dredged material or used asphalt used at the receiving location.
(iii) The locations of contaminated soil, dredged material or used asphalt where the contaminated soil, dredged material or used asphalt were removed for use and where the contaminated soil, dredged material or used asphalt are placed for use.
(iv) An identification of whether the area of contamination where the contaminated soil, dredged material or used asphalt originated is the subject of a corrective action or remediation activity.
(v) A description of engineering practices and construction activities used to assure that site excavation and placement of contaminated soil, dredged material or used asphalt does not cause onsite or offsite contamination.
(vi) If contaminated soil, dredged material or used asphalt is used for control of fire and subsidence events or in reclamation at abandoned mines, include a reference to the Department's separate authorization of the use in those projects.
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