RULES AND REGULATIONS
Title 25—ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[ 25 PA. CODE CHS. 261a, 262a,
263a, 264a AND 265a ]
Hazardous Waste Generator Improvements Rule
[50 Pa.B. 3581]
[Saturday, July 18, 2020]The Environmental Quality Board (Board) amends Chapters 261a, 262a, 263a, 264a and 265a to update the regulations to be consistent with the Federal regulations amended under the Hazardous Waste Generator Improvements Rule (HWGIR) regulatory amendments adopted by the United States Environmental Protection Agency (EPA) in 2016, effective May 30, 2017. See 81 FR 85732 (November 28, 2016). The Federal amendments were automatically incorporated by reference into 25 Pa. Code § 260a.3(e) (relating to terminology and citations related to Federal regulations), which provides that ''[t]he incorporation by reference includes any subsequent modifications and additions to the CFR incorporated in this article.'' The amendments to Chapters 261a, 262a, 263a, 264a and 265a are set forth in Annex A.
This final-omitted rulemaking was adopted by the Board at its meeting of January 21, 2020.
A. Effective Date
This final-omitted rulemaking will be effective upon publication in the Pennsylvania Bulletin.
B. Contact Persons
For further information, contact Thomas Mellott, Chief, Division of Hazardous Waste Management, P.O. Box 69170, Rachel Carson State Office Building, Harrisburg, PA 17106-9170, (717) 787-6239; or Nikolina Smith, Assistant Counsel, Bureau of Regulatory Counsel, P.O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 783-8501. Persons with a disability may use the Pennsylvania AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-omitted rulemaking is available on the Department of Environmental Protection's (Department) web site at www.dep.pa.gov (select ''Public Participation,'' then ''Environmental Quality Board'').
C. Statutory Authority
This final-omitted rulemaking is being made under the following statutory authorities: sections 105, 402 and 501 of the Solid Waste Management Act (35 P.S. §§ 6018.105, 6018.402 and 6018.501), which grant the Board the authority to adopt rules and regulations concerning the storage, treatment, disposal and transportation of hazardous waste; sections 303 and 305(e)(2) of the Hazard- ous Sites Cleanup Act (35 P.S. §§ 6020.303 and 6020.305(e)(2)), which grant the Board the authority to promulgate regulations to carry out the provisions of that Act; and section 1920-A of the Administrative Code of 1929 (71 P.S. § 510-20), which grants the Board the authority to adopt rules and regulations for the proper performance of the work of the Department.
D. Background and Purpose
Consistency of Pennsylvania's Hazardous Waste Program with Federal Law
The Pennsylvania hazardous waste program regulations under Chapters 260a—268a and 270a, incorporate by reference the Federal hazardous waste regulations under 40 CFR Parts 260—273. See 25 Pa. Code § 260a.3(e). See also 29 Pa.B. 2369 (May 1, 1999). On November 28, 2016, the EPA finalized the HWGIR, which substantially revised provisions in 40 CFR Parts 260—268 and 270 and became effective on May 30, 2017. See 81 FR 85732.
The revisions to the Federal rules are automatically incorporated into the Pennsylvania Code by reference. However, certain nonsubstantive revisions are needed to some sections of the Pennsylvania regulations to reflect the Federal changes under the HWGIR.
These changes will ensure the consistency of Chapters 261a—265a with the revised Federal regulations, provide the correct cross-references to the applicable Federal regulations and provide clarity to the public and the regulated community with respect to the references to the Federal provisions incorporated by reference.
Notice of proposed rulemaking is omitted under section 204 of the Commonwealth Documents Law (CDL), the act of July 31, 1968 (P.L. 769, No. 240) (45 P.S. § 1204). Section 204(3) of the CDL provides that an agency may omit the notice of proposed rulemaking if ''the agency for good cause finds. . .that the procedures specified in sections 201 and 202 are in the circumstances impracticable, unnecessary, or contrary to the public interest.'' See 45 P.S. § 1204(3).
Public comment is omitted because the substantive changes in the HWGIR were automatically incorporated by reference in Pennsylvania's regulations and the amendments in this final-omitted rulemaking are not substantive. The HWGIR was subject to a notice and comment process when it was proposed at the Federal level. See 80 FR 57918 (September 25, 2015). The amendments to Chapters 261a—265a set forth in Annex A are not substantive changes but rather are minor corrections to ensure consistency with the provisions of the Federal regulations already incorporated by reference.
Additionally, a notice and comment process is unnecessary for the renumbering changes that are unrelated to the HWGIR. These changes comprise a simple deletion and transferring of § 261a.8 (relating to requirements for universal waste) to new § 261a.9 (relating to requirements for universal waste) to be consistent with the numbering structure under 40 CFR Part 261 (relating to identification and listing of hazardous waste). No change in the heading or text of the regulation is being made. Two erroneous cross-references §§ 264a.11 and 265a.11 (relating to identification number and transporter license) are also corrected in this final-omitted rulemaking.
The amendments included in this final-omitted rulemaking provide clarity to the public and the regulated community with respect to the Federal provisions incorporated by reference and the numbering structure of 40 CFR Part 261. As a result, the Board for good cause finds that public comment in this case is not necessary.
E. Summary of the Final-Omitted Rulemaking
This final-omitted rulemaking includes changes to Pennsylvania's regulations to address the relocation of certain Federal provisions in 40 CFR Parts 260—265 as a result of the HWGIR; a change in the terminology used in the Federal rule from ''conditionally exempt small quantity generator'' to ''very small quantity generator;'' and the deletion of a reference in Subpart J of 40 CFR Part 262 (relating to standards applicable to generators of hazardous waste) in the HWGIR. These changes are further explained as follows.
Relocation of Federal provisions
To be consistent with the numbering structure of the Federal regulations and the change in terminology relating to very small quantity generators, § 261a.5 is being deleted and reserved and the provisions of the section transferred to two new sections. Specifically, the waste oil provision of subsection (a) is being transferred to new § 262a.13 (relating to generator category determination). The provision in subsection (b) regarding prohibition of hazardous waste in a municipal or residual waste landfill and the provision in subsection (c) regarding deemed transporter license are being transferred to new § 262a.14 (relating to conditions for exemption for a very small quantity generator). These changes reflect changes in the Federal regulations.
In particular, § 261a.5 paralleled former 40 CFR 261.5 which, under the HWGIR, was deleted and its provisions transferred to other sections of 40 CFR Part 262. See 81 FR 85732, 85736, 85737 and 85806 (November 28, 2016). Under the HWGIR, the EPA deleted 40 CFR 261.5(c)(4) and (j) and transferred their provisions to 40 CFR 262.13(c)(4) and (f)(1)(iii) (relating to generator category determination). See 81 FR 85737 and 85809 (November 28, 2016). New § 262a.14 includes the provisions that were in § 261a.5(b) and (c), as previously described. These provisions pertain to prohibiting hazardous waste in a municipal or residual waste landfill and to deemed transporter licenses.
Section 262a.34 is deleted and reserved in this final-omitted rulemaking. This section set forth additional requirements for accumulation time for accumulated hazardous waste. It provided that a generator who accumulated hazardous waste onsite under 40 CFR 262.34(a)(1)(i) (formerly relating to accumulation time) (removed and relocated in the HWGIR) must also comply with Chapter 265a, Subchapter I (relating to use and management of containers). The cited Federal provision, 40 CFR 262.34, has been deleted and reserved. See 81 FR 85818 (November 28, 2016). More specifically, the language of 40 CFR 262.34(a)(1)(i) was transferred to 40 CFR 262.17(a)(1) (relating to conditions for exemption for a large quantity generator that accumulates hazardous waste). See 81 FR at 85739 and 85814 (November 28, 2016).
To maintain consistency with the numbering structure of the Federal regulation, the provisions of § 262a.34 are transferred in this final-omitted rulemaking to two new §§ 262a.16 (relating to conditions for exemption for a small quantity generator that accumulates hazardous waste) and 262a.17 (relating to conditions for exemption for a large quantity generator that accumulates hazardous waste). The requirements for the new sections are identical to each other, except that § 262a.16 applies to small quantity generators and § 262a.17 applies to large quantity generators.
Terminology changes
The EPA replaced the term ''conditionally exempt small quantity generator'' in 40 CFR 261.5 with ''very small quantity generator'' in 40 CFR 262.14 (relating to conditions for exemption for a very small quantity generator). See 81 FR 85733, 85734 and 85809 (November 28, 2016).
Similarly, in §§ 264a.11 and 265a.11, references to ''conditionally exempt small quantity generators'' in these sections are changed to ''very small quantity generators'' to match the change in terminology in the HWGIR. ''Very small quantity generator'' is defined at 40 CFR 260.10 (relating to definitions).
Reference deletions
Existing § 262a.10 (relating to incorporation by reference, purpose, scope and applicability) incorporated by reference 40 CFR Part 262 but specified that § 262.10(j) and Part 262 Subpart J were not incorporated by reference. The EPA deleted these two portions of Part 262 under the HWGIR. Consequently, the Board is amending § 262a.10 by removing citations to § 262.10(j) and Subpart J.
Renumbering for consistency
Section 261a.8, which is deleted and reserved in this final-omitted rulemaking, is comparable to the Federal regulation in 40 CFR 261.9 (relating to requirements for universal waste). In this final-omitted rulemaking, § 261a.8 is being transferred to new § 261a.9 to be consistent with the numbering structure for the Federal regulation. See 60 FR 25492 (May 11, 1995).
Section 262a.12 (relating to EPA identification numbers), which is deleted and reserved in this final-omitted rulemaking, provided additional Pennsylvania-specific requirements for hazardous waste generators applicable to EPA identification numbers. It was a parallel provision to 40 CFR 262.12 (formerly relating to EPA identification numbers), which was reserved and renumbered as 40 CFR 262.18 under the HWGIR. See 81 FR 85737, 85740, 85808 and 85818 (November 28, 2016). Section 262a.12 is being renumbered as § 262a.18 (relating to EPA identification numbers) to be consistent with the Federal numbering structure and contains provisions relating to EPA identification numbers that had previously existed in § 261a.12.
In § 263a.13(a) (relating to licensing), a reference to § 261a.5(c) is being changed to § 262a.14(b) because of the transfer of the content of part of § 261a.5(c) to § 262a.14(b).
The Board is correcting an error in §§ 264a.11 and 265a.11. The references in these two sections to § 261a.5(d) are to a nonexistent subsection. The references should have been to § 261a.5(c). Because the language of § 261a.5(c) is being transferred to § 262a.14(b), these references in §§ 264a.11 and 265a.11 are accordingly being changed to § 262a.14(b).
F. Benefits, Costs and Compliance
Benefits
The fundamental benefit of this final-omitted rulemaking is that these changes will ensure the consistency of Chapters 261a, 262a, 263a, 264a and 265a with the revised Federal regulations, provide the correct cross-references in the Pennsylvania regulations to the applicable Federal regulations, and provide clarity to the public and the regulated community with respect to the Federal provisions Pennsylvania incorporates by reference.
Compliance costs
The amendments will create no additional compliance costs. No additional financial, economic or social impact will result from these amendments.
Compliance assistance plan
No formal compliance assistance is necessary for implementation of this final-omitted rulemaking, because the amendments are not substantive and do not have an impact on the regulated community. The HWGIR became effective at the Federal level on May 30, 2017. In accordance with 25 Pa. Code § 260a.3(e), the HWGIR was incorporated into the Pennsylvania regulations by reference and became effective on the same date. Further, the Hazardous Waste Management Division of the Department has made appropriate changes to the Department's Hazardous Waste Management Compliance Guide (available through the Department's eLibrary) and to the Hazardous Waste Frequently Asked Questions (available online) to reflect the HWGIR.
Paperwork requirements
This final-omitted regulation will not revise paperwork requirements.
G. Pollution Prevention
This final-omitted regulation will not impact pollution prevention efforts of the Department.
H. Sunset Review
The Board is not establishing a sunset date for these amended regulations because the amendments are necessary for the regulations to accurately reflect the Department's legal authority and for the Department to meet its obligations under State and Federal law.
I. Regulatory Review
Under section 5.1(c) of the Regulatory Review Act (71 P.S. § 745.5a(c)), on February 14, 2020, the Department submitted a copy of this final-omitted rulemaking and a copy of the Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House and Senate Committees on Environmental Resources. On the same date, the regulations were submitted to the Office of Attorney General for review and approval under the Commonwealth Attorneys Act (71 P.S. §§ 732.101—732.506).
Under section 5.1(j.2) of the Regulatory Review Act, on June 17, 2020, this final-omitted rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on June 18, 2020 and approved this final-omitted rulemaking.
J. Findings
The Board finds that:
(1) The amendments as set forth in Annex A are appropriate to ensure consistency with the Federal HWGIR and among the Commonwealth's hazardous waste regulations.
(2) Use of the omission of notice of proposed rulemaking procedure is appropriate because the proposed rulemaking procedures specified in sections 201 and 202 of the Commonwealth Documents Law (45 P.S. §§ 1201 and 1202) are, in this instance, ''impractical, unnecessary, or contrary to the public interest.''
(3) No hazardous waste permits are affected by this final-omitted rulemaking.
(4) These amendments are necessary and appropriate for the administration and enforcement of the authorizing acts identified in Section C of this order and are in the public interest.
K. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapters 261a, 262a, 263a, 264a and 265a are amended by adding §§ 261a.9, 262a.13, 262a.14, 262a.16, 262a.17 and 262a.18; deleting §§ 261a.5, 261a.8, 262a.12 and 262a.34; and amending §§ 262a.10, 263a.13, 264a.11 and 265a.11 as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(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 (71 P.S. §§ 745.1—745.14).
(d) The Chairperson of the Board shall certify this order and Annex A, as approved to legality and form, and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
PATRICK McDONNELL,
Chairperson(Editor's Note: See 50 Pa.B. 3355 (July 4, 2020) for IRRC's approval order.)
Fiscal Note: 7-543. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart D. ENVIRONMENTAL HEALTH AND SAFETY
ARTICLE VII. HAZARDOUS WASTE MANAGEMENT
CHAPTER 261a. IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
Subchapter A. General § 261a.5. (Reserved).
§ 261a.8. (Reserved).
§ 261a.9. Requirements for universal waste.
In addition to the requirements incorporated by reference, oil-based finishes and photographic solutions as defined in § 266b.3 (relating to definitions) are included as wastes subject to regulation under Chapter 266b (relating to universal waste management).
CHAPTER 262a. STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
Subchapter A. GENERAL § 262a.10. Incorporation by reference, purpose, scope and applicability.
Except as expressly provided in this chapter, 40 CFR Part 262 and its appendices (relating to standards applicable to generators of hazardous waste) are incorporated by reference. In 40 CFR 262.10(g) (relating to purpose, scope and applicability), the term ''section 3008 of the act'' is replaced with ''Article VI of the Solid Waste Management Act (35 P.S. §§ 6018.601—6018.617).'' 40 CFR 262.10(k) (relating to purpose, scope and applicability) is not incorporated by reference.
§ 262a.12. (Reserved).
§ 262a.13. Generator category determination.
The reference to 40 CFR Part 279 in 40 CFR 262.13(c)(4) and (f)(1)(iii) (relating to generator category determination) is replaced with Chapter 298 (relating to management of waste oil).
§ 262a.14. Conditions for exemption for a very small quantity generator.
(a) In addition to the requirements incorporated by reference, a very small quantity generator may not dispose of hazardous waste in a municipal or residual waste landfill in this Commonwealth.
(b) A very small quantity generator complying with this subchapter and 40 CFR 262.14 (relating to conditions for exemption for a very small quantity generator) is deemed to have a license for the transportation of those very small quantities of waste generated by the generator's own operation.
§ 262a.16. Conditions for exemption for a small quantity generator that accumulates hazardous waste.
In addition to the requirements incorporated by reference, a small quantity generator who accumulates hazardous waste onsite as specified in 40 CFR 262.16 (relating to conditions for exemption for a small quantity generator that accumulates hazardous waste) shall also comply with Chapter 265a, Subchapter I (relating to use and management of containers).
§ 262a.17. Conditions for exemption for a large quantity generator that accumulates hazardous waste.
In addition to the requirements incorporated by reference, a large quantity generator who accumulates hazardous waste onsite as specified in 40 CFR 262.17(a)(1)(i) (relating to conditions for exemption for a large quantity generator that accumulates hazardous waste) shall also comply with Chapter 265a, Subchapter I (relating to use and management of containers).
§ 262a.18. EPA identification numbers.
In addition to the requirements incorporated by reference:
(1) A generator shall submit a subsequent notification to the Department if:
(i) The generator activity moves to another location.
(ii) The generator facility's designated contact person changes.
(iii) The ownership of the generator facility changes.
(iv) The type of regulated activity that takes place at the generator facility changes.
(v) The generator's generator status changes, except when the generator status change is temporary.
(vi) The name of the facility changes.
(2) A generator shall offer a shipment of hazardous waste only to a transporter with a valid license issued by the Department.
Subchapter C. PRETRANSPORT REQUIREMENTS § 262a.34. (Reserved).
CHAPTER 263a. TRANSPORTERS OF
HAZARDOUS WASTE
Subchapter A. GENERAL § 263a.13. Licensing.
(a) Except as otherwise provided in subsection (b), § 262a.14(b), § 266a.70(1) or § 266b.50 (relating to conditions for exemption for a very small quantity generator; applicability and requirements; and applicability), a person or municipality may not transport hazardous waste within this Commonwealth without first obtaining a license from the Department.
(b) A person or municipality desiring to obtain a license to transport hazardous waste within this Commonwealth shall:
* * * * *
CHAPTER 264a. OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE
AND DISPOSAL FACILITIES
Subchapter B. GENERAL FACILITY STANDARDS § 264a.11. Identification number and transporter license.
In addition to the requirements incorporated by reference, a person or municipality who owns or operates a hazardous waste management facility may not accept hazardous waste for treatment, storage or disposal from a transporter who has not received an EPA identification number and a license from the Department, except as otherwise provided. The licensing requirement does not apply to very small quantity generators transporting their own hazardous waste provided that the very small quantity generator is in compliance with § 262a.14(b) (relating to conditions for exemption for a very small quantity generator), transporters transporting recyclable materials utilized for precious metal recovery in compliance with § 266a.70(1) (relating to applicability and requirements) or universal waste transporters in compliance with § 266b.50 (relating to applicability).
CHAPTER 265a. INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE AND
DISPOSAL FACILITIES
Subchapter B. GENERAL FACILITY STANDARDS § 265a.11. Identification number and transporter license.
In addition to the requirements incorporated by reference, a person or municipality who owns or operates a hazardous waste management facility may not accept hazardous waste for treatment, storage or disposal from a transporter without an EPA identification number and a license from the Department, except as otherwise provided. The licensing requirement does not apply to very small quantity generators transporting their own hazardous waste if the very small quantity generator is in compliance with § 262a.14(b) (relating to conditions for exemption for a very small quantity generator), transporters transporting recyclable materials utilized for precious metal recovery in compliance with § 266a.70(1) (relating to applicability and requirements) or universal waste transporters in compliance with § 266b.50 (relating to applicability).
[Pa.B. Doc. No. 20-936. Filed for public inspection July 17, 2020, 9:00 a.m.]
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