PROPOSED RULEMAKING
ENVIRONMENTAL
QUALITY BOARD
[25 PA. CODE CHS. 260--265, 267, 269--270, 260a--266a, 266b AND 268a--270a]
Hazardous Waste Management
[27 Pa.B. 6407] The Environmental Quality Board (Board) proposes to delete Chapters 260--265, 266--267 and 269--270 and add or renumber existing new hazardous waste regulations in Chapters 260a--266a, 266b and 268a--270a. The changes are the result of the Department of Environmental Protection's (Department) Regulatory Basics Initiative and Executive Order 1996-1. Under the Regulatory Basics Initiative and Executive Order 1996-1, the Department reviewed the Department's existing hazardous waste regulations to identify where the regulations could be improved.
This proposal was adopted by the Board at its meeting of September 16, 1997.
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information contact Rick Shipman, Chief, Division of Hazardous Waste, P. O. Box 8471, Rachel Carson State Office Building, Harrisburg, PA 17105-8471, (717) 787-6239, or Leigh B. Cohen, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Information regarding submitting comments on this proposal appears in Section J of this Preamble. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposal is available electronically through the Department's Web site (http://www.dep.state.pa.us).
C. Statutory Authority
The proposed rulemaking is being made under the authority of sections 105, 401--403 and 501 of the Solid Waste Management Act (SWMA) (35 P. S. §§ 6018.105, 6018.401--6018.403 and 6018.501); sections 105, 402 and 501 of The Clean Streams Law (35 P. S. §§ 691.105, 691.402 and 691.501); and section 1920-A of The Administrative Code of 1929 (71 P. S. §§ 510-20). Under sections 105, 401--403 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 and welfare, and the environment of this Commonwealth. Sections 105, 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 and Purpose
The Department administers the hazardous waste program under numerous State laws, including the SWMA (35 P. S. §§ 6018.101--6018.1003), the Hazardous Sites Cleanup Act (HSCA) (35 P. S. §§ 6020.101--6020.1304), The Clean Streams Law (35 P. S. §§ 691.1--691.1001), the Small Business and Household Pollution Prevention Program Act (35 P. S. §§ 6029.201--6029.209); the Air Pollution Control Act (35 P. S. §§ 4001--4015) and sections 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. §§ 510-17 and 510-20).
Numerous Federal statutes applicable to hazardous waste management activities are administered by Federal agencies, including the Environmental Protection Agency (EPA). The EPA administers the Resource Conservation and Recovery Act (RCRA) (42 U.S.C.A. §§ 6901--6992) and Federal regulations at 40 CFR Parts 260--272 which contain the basic Federal hazardous waste program requirements. RCRA provides that no state ''may impose any requirements less stringent than [EPA's RCRA regulations] respecting the same matter governed by such regulations.'' 42 U.S.C.A. § 6929. A state standard less stringent than the RCRA standard respecting the same matter therefore would be superseded by Federal law.
In addition, RCRA provides that states may apply for and receive authorization from the EPA for all or parts of the state hazardous waste management program, under 42 U.S.C.A. § 6926 and 40 CFR Part 271. The EPA authorization essentially eliminates the dual Federal and state permitting requirements for the hazardous waste management activities that are covered entirely within the scope of the state program authorized by the EPA, and thereby allows the regulated community to comply with state law in lieu of the affected parts of Federal law. RCRA provides that an action taken by a state under an authorized hazardous waste program ''shall have the same force and effect'' as an action by the EPA under RCRA. 42 U.S.C.A. § 6926(d). The EPA retains enforcement authority over authorized state provisions and Federal law.
RCRA was amended in 1984 to add the Hazardous and Solid Waste Amendments of 1984 (HSWA) which directly impose certain more stringent requirements immediately effective in all states and administered by the EPA unless the state has been expressly authorized to administer the HSWA. The HSWA requirements are listed in tables appearing in 40 CFR Part 271. State law may cover the same subject areas and impose standards that are at least as stringent as the HSWA and may be broader in scope than the HSWA.
The Commonwealth received authorization for the State hazardous waste program, effective January 30, 1986, 51 FR 1791 (January 15, 1986). This authorization relieves the regulated community of the burden of obtaining EPA permits for treatment, storage or disposal facilities (TSDs). However, the regulated community must still comply with all EPA requirements under the HSWA, in addition to all applicable Commonwealth requirements. One purpose of this rulemaking is to adopt the HSWA requirements. The Department intends to seek authorization for the HSWA requirements, so that the regulated community will only need to comply with the Pennsylvania hazardous waste requirements to be in compliance with RCRA.
Since the Commonwealth received its authorization in 1986, the Board has adopted several hazardous waste rules. Pennsylvania's hazardous waste regulations were most recently significantly amended with substantive changes at 23 Pa.B. 363 (January 16, 1993). This regulatory amendment is referred to as PK-4. The basic framework for the Department's hazardous waste program was amended in that rulemaking through the definition of ''waste'' and related terms such as ''coproduct.'' These provisions, which differ significantly from the Federal hazardous waste regulations, are currently contained in the Department's regulations. This proposal deletes these requirements and replaces them with the Federal regulations.
The Department has reviewed all of its hazardous waste regulations pursuant to Executive Order 1996-1. As a consequence of its review, the Department has determined that continuing to regulate hazardous waste in this Commonwealth under a regulatory scheme that differs from the schemes found in the Federal regulations and in other states' regulations creates confusion for the regulated community. In addition, the Department has determined that adopting the Federal regulations with some modification that is justified by an identified compelling State interest will protect human health and the environment. The regulatory amendments that are proposed in this rulemaking are intended to align the Department's hazardous waste program with the Federal program by incorporating by reference the applicable Federal hazardous waste regulations and to maintain this consistency in the future as the Federal program evolves. It is expected that the Commonwealth will seek authorization for this proposal after this rulemaking becomes final.
E. Summary of Regulatory Requirements
The proposed amendments delete the current text of the Pennsylvania hazardous waste regulations and add new chapters that incorporate by reference the Federal hazardous waste regulations. The purpose of incorporating by reference is to ensure that Pennsylvania's hazardous waste regulations are consistent with the Federal regulations. For cases in which the Board has determined that this Commonwealth has a compelling State interest to promulgate regulations that are more stringent than the Federal regulations, the Board has promulgated regulations that are more stringent than the Federal regulations.
The proposed regulations are formatted so that the first section of each Pennsylvania chapter contains language to incorporate by reference each corresponding Federal part that the Commonwealth is proposing to incorporate by reference. Individual Pennsylvania sections are identified by a small letter ''a'' that is included in the section number. These sections contain the Commonwealth's additions to, deletions from or modifications of the Federal regulations that have been incorporated. In most instances, the the Commonwealth's chapter numbers should correspond to the parallel Federal part numbers; the Commonwealth's subchapter numbers should correspond to the parallel Federal subpart numbers; and the Commonwealth's section numbers should correspond to the parallel Federal section numbers. In instances in which no Commonwealth's section number exists for a Federal counterpart section, Pennsylvania has decided to incorporate the Federal section without modification.
Although the proposed amendments appear to make major changes to all of the Commonwealth's hazardous waste regulations, most of the amendments to the Commonwealth's hazardous waste regulations are textual changes rather than conceptual changes. Many of the Commonwealth's current hazardous waste regulations intend to accomplish the same result as the Federal hazardous waste regulations, and therefore, many of the requirements currently found in the Commonwealth's hazardous waste regulations are also found in the Federal hazardous waste regulations.
The proposal was reviewed and approved by the Solid Waste Advisory Committee (SWAC). The Department met with a SWAC subcommittee on January 30, 1997, and February 25, 1997, to identify significant issues that should be raised to the attention of the entire SWAC. The Department met with SWAC on March 13, 1997, and May 8, 1997, to discuss the proposed revisions.
The following is a summary of the proposed amendments that will have a significant impact on the regulated community. Changes in text that do not have a significant impact on the regulated community are not discussed. In addition, the summary includes an explanation of any Commonwealth hazardous waste requirements that the Board intends to retain and that are more stringent than the Federal hazardous waste regulations. Regulations that have been relocated appear as new language in Annex A. The chapter and section headings include both the Federal citation, if the Federal provision was incorporated, and the proposed Commonwealth citation. If no parallel Federal citation is proposed to be incorporated, only a Commonwealth citation appears in the caption. A Federal citation without a parallel Commonwealth citation indicates that the Board is not proposing to modify the Federal provision to be incorporated. Finally, any HSWA requirements that are being added to the Commonwealth's program and that have been in effect in this Commonwealth are not summarized in this Preamble.
25 Pa. Code Chapter 260a and 40 CFR Part 260 25 Pa. Code § 260a.10 and 40 CFR 260.10 Definitions
The Board is proposing to incorporate by reference the Federal definition section found in 40 CFR 260.10 with the exception of those Federal definitions that conflict with the SWMA definition section. In addition, the Board proposes to relocate definitions currently found in § 260.2 to this section. The Board believes that the relocated definitions are necessary to ensure that the proposed regulations are in conformance with SWMA and the HSCA.
25 Pa. Code § 260a.20 and 40 CFR 260.20 General: Rulemaking Petitions
The Board is proposing to incorporate by reference the Federal regulation regarding the general provisions for rulemaking petitions found in 40 CFR 260.20(a). The proposal does not incorporate 40 CFR 260.20(b)--(e) since these provisions set forth the procedural requirements that must be followed by petitioners submitting petitions to the EPA. Since the petitions submitted in this Commonwealth will be submitted to the Board, the Board is proposing to substitute for the Federal procedures the Board's rulemaking petition procedures found in Chapter 23 (relating to Environmental Quality Board policy for processing petitions--statement of policy).
40 CFR 260.21 Petitions for Equivalent Testing or Analytical Methods
40 CFR 260.22 Petitions to Amend Chapter 261 to Exclude a Waste Produced at a Particular Facility
The Board is proposing to incorporate by reference 40 CFR 260.21, the Federal regulation regarding petitions for equivalent testing or analytical methods. In addition, the Board is proposing to incorporate 40 CFR 260.22, the Federal regulation regarding petitions to exclude a waste produced at a particular facility. The difference between the Commonwealth's existing regulations and the proposed regulations is that the existing regulations do not require a rulemaking procedure for approvals for equivalent testing or analytical methods or for amendments to existing Chapter 261 to exclude a waste produced at a particular facility. The Board is proposing to adopt the rulemaking procedure to facilitate authorization of the Commonwealth's hazardous waste program.
40 CFR 260.23 Petitions to Amend the Universal Waste Rule to Include Additional Hazardous Wastes
The Board is proposing to incorporate by reference 40 CFR 260.23, the Federal regulation regarding petitions to amend the universal waste rule to include additional hazardous wastes. The proposed regulation does not change the Department's substantive requirements currently found in §§ 266.280--266.282 and proposed to be relocated to Chapter 266b. The proposal merely moves the universal waste petition procedure to Chapter 260 so that the Commonwealth's regulatory provisions have the same numbering scheme as the Federal regulations.
40 CFR 260.30 Variances from Classification as a Solid Waste
40 CFR 260.31 Standards and Criteria for Variances from Classification as a Solid Waste
40 CFR 260.32 Variance to be Classified as a Boiler
40 CFR 260.33 Procedures for Variances from Classification as a Solid Waste or to be Classified as a Boiler
The Board is proposing to incorporate by reference 40 CFR 260.30--260.33, the Federal regulations regarding variances. The Commonwealth's existing hazardous waste regulations do not contain analogous variance provisions. The proposed regulations allow the Department to grant variances on a case-by-case basis using criteria listed in 40 CFR 260.31 or 260.32. As proposed, the incorporated provisions of 40 CFR 260.30 authorize the Department to grant a variance from classification as a solid waste for certain recycled materials or materials that are reclaimed and then reused or that have been reclaimed but that must be reclaimed further. The proposed incorporation of 40 CFR 260.32 authorizes the Department to grant variances so that certain enclosed devices using controlled flame combustion are boilers, even though they do not otherwise meet the definition of boiler contained in proposed § 260a.10 or 40 CFR 260.10. The incorporated provisions of proposed 40 CFR 260.33 set forth the variance application procedure.
40 CFR 260.40 Additional Regulation of Certain Hazardous Waste Recycling Activities on a Case-by-Case Basis
40 CFR 260.41 Procedures for Case-by-Case Regulation of Hazardous Waste Recycling Activities
The Board is proposing to incorporate by reference the Federal provisions regarding additional regulation of certain hazardous waste recycling activities and the procedures used for the regulation of these hazardous waste recycling activities. The Federal provisions are found in 40 CFR 260.40 and 260.41. The incorporated provisions authorize additional regulation of persons who accumulate or store lead acid batteries in a manner that does not protect human health and the environment because the materials or their toxic constituents have not been adequately contained, or because the materials being accumulated or stored together are incompatible. A similar provision is currently found in § 266.80.
25 Pa. Code Chapter 261a and 40 CFR Part 261 25 Pa. Code § 261a.2 and 40 CFR 261.2 Definition of ''Solid Waste''
The Board is proposing to amend the definition of ''solid waste'' for the hazardous waste program, which now includes the definitions of ''byproduct,'' ''coproduct'' and ''waste.'' The Board is proposing to delete from its current hazardous waste regulations the definitions of ''byproduct,'' ''coproduct,'' ''solid waste'' and ''waste'' and replace these definitions with the Federal regulation found in 40 CFR 261.2. The most significant difference between the current Commonwealth hazardous waste definition of ''solid waste'' and the Federal definition of ''solid waste'' is that the Commonwealth's regulations rely upon coproduct determinations to exempt materials from the definition of solid waste, and the Federal regulations rely upon several variances and a narrow definition of ''discarded materials'' to exempt materials from the definition of ''solid waste.''
In the Department's experience, applying different regulatory definitions of ''solid waste'' creates confusion. In addition, under the existing definition of ''waste,'' the Department may be required to regulate as hazardous wastes materials that industries could reuse and that the Federal government does not regulate. The continued regulation of these materials could encourage industries to dispose of these materials rather than to reuse them. Therefore, the Board has decided to adopt the Federal definition of ''solid waste'' so that the Commonwealth's hazardous waste definition of ''solid waste'' is consistent with the Federal definition. The Board expects that the use of one definition for both Federal and State hazardous waste regulations will result in a simpler hazardous waste regulatory scheme for the regulated community and for the Department.
25 Pa. Code § 261a.3 and 40 CFR 261.3 Definition of Hazardous Waste
The Board is proposing to incorporate by reference 40 CFR 261.3, with two exceptions. The Board is proposing to continue to regulate as a hazardous waste the waste streams exempted in 40 CFR 261.3(c)(2)(ii)(C) and 261.3(c)(2)(ii)(D). Since the Department has no experience with these waste streams, the Board has determined that these waste streams should not at this time be excepted from hazardous waste regulation in this Commonwealth. The new exceptions contained in the proposed incorporated language are: mixtures of wastes from the extraction beneficiation and processing of ores and minerals that are excluded under section 40 CFR 261.3(a)(2)(I); mixtures of solid waste and listed hazardous wastes that are listed only because they exhibit a characteristic but the resultant mixture does not exhibit any characteristic, 40 CFR 261.3(a)(2)(iii); wastewaters that contain de minimis amounts of certain listed hazardous constituents and are subject to regulation under the Clean Water Act (NPDES), 40 CFR 261.3(a)(2)(iv); waste from burning hazardous waste fuels produced from petroleum coke and oil-bearing hazardous wastes from petroleum refining exempted from regulation by section, 40 CFR 261.3(c)(2)(ii)(B); and hazardous waste debris as defined in the land disposal requirements (40 CFR Part 268) that has been treated or determined by the Department to no longer be contaminated with hazardous waste, 40 CFR 261.3(f).
In addition, the Board is proposing to remove from the existing regulations the State specific hazardous waste designation PA01 for waste oil that contains greater than 1,000 ppm total halogens and use the Federal approach that such oil be designated by the listed halogenated solvent which has been mixed with the oil to cause it to exceed 1,000 ppm total halogen. The proposal retains the rebuttable presumption for used oil at 40 CFR 261.3(a)(2)(v).
25 Pa. Code § 261a.5 and 40 CFR 261.5 Special Requirements for Hazardous Waste Generated by Conditionally Exempt Small Quantity Generators
The Federal language that the Board is proposing to adopt is contained in the existing Commonwealth hazardous waste regulations in § 261.5. However, the proposed regulation is more stringent than the Federal requirement, because it retains the existing State prohibition against the disposal of conditionally exempt small quantity generator hazardous waste in municipal or residual waste facilities. This is required by State law under section 207(b) of the Small Business and Household Pollution Prevention Act.
25 Pa. Code § 261a.6 and 40 CFR 261.6 Recyclable Materials
The Board is proposing to delete the existing text found in § 261.6 and replace it with language that will incorporate by reference the provisions of 40 CFR 261.6 with one exception. The proposed amendment is more stringent than the Federal requirement, because it requires a recycling permit for owners and operators of facilities that manage recyclable materials. The Federal analog only requires a permit for the storage of recyclable materials before the materials are recycled. Since section 401(a) of the SWMA (35 P. S. § 6018.401(a)), requires operators to obtain a permit for treating hazardous waste, and since recycling hazardous waste falls within the SWMA definition of ''treatment,'' the Commonwealth must require recycling permits for recycling of hazardous wastes.
25 Pa. Code § 261a.7 Residues of Hazardous Waste in Empty Containers
This regulation clarifies that the residues of hazardous waste in empty containers is treated as a residual waste in this Commonwealth. The Federal law has no waste classification equivalent to the Commonwealth's residual waste classification.
40 CFR 261.8 PCB Wastes Regulated under Toxic Substance Control Act
The Board is proposing to incorporate by reference 40 CFR 261.8. The provision clarifies that PCB wastes regulated under TSCA that could also be construed to be regulated under RCRA will be regulated under TSCA.
25 Pa. Code Chapter 262a and 40 CFR Part 262 25 Pa. Code § 262a.22 and 40 CFR 262.22 Number of Copies of Manifest
The Board is proposing to incorporate by reference the Federal regulation regarding number of copies of the manifest. In addition, the Board is proposing to require the use of a six part manifest rather than the four part manifest required by the Federal regulations. The Board has determined that the Commonwealth should require two more copies than the Federal regulation requires, because the two additional copies are sent from the TSD facility to the generator state and from the TSD to the disposal state. The Board believes that hazardous waste cannot be properly monitored unless the generator state and the disposal state can track the waste, and the manifest contains all of the necessary information once it gets to the TSD facility. The existing Commonwealth regulation requires the use of an eight part manifest. The two copies that the proposed rule will no longer require are copies that the generator sends to the generator state and the copy that the generator sends to the disposal state.
25 Pa. Code Chapter 263a and 40 CFR Part 263 25 Pa. Code § 263a.12 and 40 CFR 263.12 Transfer Facility Requirements
The Board is proposing to incorporate by reference the Federal regulation regarding transfer facility requirements found in 40 CFR 263.12. In addition, the Board is proposing to retain the existing State requirement that requires the use of an in-transit storage preparedness, prevention and contingency plan. This requirement is currently found in § 263.30(g) and (h). The Board considers in-transit storage preparedness, prevention and contingency plans to be necessary to ensure that transfer facilities are able to deal with emergency situations resulting from spills or other accidents since these facilities are not subject to siting requirements.
25 Pa. Code § 263a.13 Licensing
The Board intends to relocate the hazardous waste transporter licensing requirement that is currently found in § 263.13 to § 263a.13. There is no Federal equivalent for this requirement since it is a requirement of section 501 of the SWMA (35 P. S. § 6018.501), and not RCRA.
25 Pa. Code § 263a.23 Hazardous Waste Transportation Fee
The Board intends to relocate the existing hazardous waste transportation fee, without revision, that is currently found in § 263.23 to § 263a.23. This provision requires the submission of fees for the transportation of hazardous wastes which are picked up or delivered in this Commonwealth. There is no Federal equivalent to this requirement since it is a requirement of section 903 of HSCA (35 P. S. § 6020.903).
25 Pa. Code § 263a.24 Documentation of Hazardous Waste Transporter Fee Submission
The Board intends to relocate the hazardous waste transportation fee submission requirement currently found in § 263.24 to § 263a.24 This provision requires that hazardous waste transporters document the submission of hazardous waste transportation fees. There is no Federal equivalent to this provision since the fees are required by the HSCA, and the Department cannot verify the amount of fees submitted without proper documentation.
25 Pa. Code § 263a.26 Assessment of Penalties
The Board intends to relocate the assessment of penalties provision that is currently found in § 263.26 to § 263a.26. There is no Federal equivalent since the Federal law does not require payment of hazardous waste transporter fees. The Department cannot effectively enforce the payment of fees provisions unless it is able to assess penalties against transporters that fail to submit their fees in a timely manner.
25 Pa. Code § 263a.32 Bonding
The Board intends to relocate the bonding requirements for hazardous waste transporters that are currently found in § 263.32 to § 263a.32. This provision requires hazardous waste transporters to retain a minimum $10,000 bond, with a larger bond proposed for transporters who transport larger amounts of waste. This proposal does not alter the current bonding requirements for hazardous waste transporters. There is no Federal equivalent to this requirement since it is a requirement of section 505(e) of the SWMA (35 P. S. § 6018.505(e)).
25 Pa. Code Chapters 264a and 265a and
40 CFR Parts 264 and 265Chapters 264a and 265a provide standards for owners and operators of hazardous waste treatment, storage and disposal facilities. Chapter 265a differs from Chapter 264a, because it contains interim status standards that only apply to facilities that are classified as interim status facilities. However, the requirements of the two chapters are often the same. Consequently, any proposed changes to regulatory requirements that are contained in both Chapters 264a and 265a are explained in this Preamble under one heading.
25 Pa. Code §§ 264a.13 and 265a.13 and 40 CFR 264.13 and 265.13 General and Generic Waste Analysis
The Board intends to retain the waste analysis requirements currently found in §§ 264.12, 265.12, 264.13, and 265.13. The Board is proposing to relocate these Commonwealth requirements to §§ 264a.13 and 265a.13 so that the Commonwealth's waste analysis citation parallels the Federal waste analysis requirements found in 40 CFR 264.13 and 265.13. The proposed regulations are more stringent than the Federal regulation because they require Department approval before a facility can accept hazardous waste for treatment, storage or disposal (TSD). This approval is done through a Module I application. The Federal regulation only requires an operator to obtain waste stream analyses and keep the analyses onsite but it does not require prior agency approval before the waste stream can be accepted by the operator of the TSD facility. The Board has determined that the Department must approve of waste streams before a facility can accept them in order to ensure that the facility is able to manage the hazardous waste properly. However, to expedite an operator's ability to receive new waste streams, the existing regulations allow operators of TSD's to submit a Generic Module I application that allows operators to accept additional hazardous wastes that are similar to the type of waste for which they have received approval. At least 15 days prior to accepting a waste from a new generator, the operator of the TSD must submit to the Department specific information about the generator and the waste to document that the new generator meets the criteria of the approved Generic Module I. The Board is requesting comments on the proposal to retain the Module I application.
25 Pa. Code §§ 264a.15 and 265a.15 and 40 CFR 264.15 and 265.15 General Inspection and Construction Inspection Requirements
The Board is proposing to incorporate by reference 40 CFR 264.15 and 265.15, the Federal regulations regarding general inspection requirements. In addition, the Board is proposing to retain a Commonwealth inspection requirement. The added provision requires operators to submit to the Department for approval schedules for the construction of hazardous waste management facilities. The Federal regulations do not require inspection of facilities during construction or approval of schedules for construction. The Board is requesting comments on the proposal to retain the requirement for Department construction inspections and approval of construction schedules.
25 Pa. Code §§ 264a.52 and 265a.52 and 40 CFR 264.52 and 265.52 Content of Contingency Plan
The Board is proposing to incorporate by reference 40 CFR 264.52 and 265.52, the Federal provisions for contents of contingency plans. In addition, the Department proposes to relocate to §§ 264a.52 and 265a.52 the existing Commonwealth requirement that operators prepare contingency plans in accordance with Department guidelines rather than in accordance with EPA guidelines. The Department guidelines provide guidance to operators and assure the Department that the contingency plans will adequately address emergency situations that may arise at hazardous waste facilities. The Federal regulation together with the additional State requirement is essentially the same as the current Commonwealth regulation.
25 Pa. Code §§ 264a.71 and 265a.71 and 40 CFR 264.71 and 265.71 Use of the Manifest System
The Board is proposing to incorporate by reference the Federal regulations found in 40 CFR 264.71 and 265.71 regarding use of the manifest system. In addition, the Board proposes to relocate the current Commonwealth requirement that TSD facilities submit copies of manifests to the generator State and to the TSD disposal State to §§ 264a.71 and 265a.71. The Federal regulations do not require submission of any copies of manifests from the TSD facility to the generator State or from the TSD to the disposal State. The Board is proposing a regulation that will be more stringent than the Federal analog. The Board's proposed regulation also requires two fewer manifest copies than the current State regulation. The current Commonwealth regulation requires the use of an eight part manifest. The proposed regulation requires the use of a six part manifest. The proposed regulation has two fewer parts than the existing regulation because it does not require generators to submit manifest forms to the generator State or to the disposal State. To ensure the proper management of hazardous waste, the Board believes that the Department must receive copies of manifests so that it can track the movement of the waste.
25 Pa. Code §§ 264a.78--264a.83 and 25 Pa. Code § 265a.78--265a.83 Hazardous Waste Management Fees and Administrative Fees
The Board intends to retain these State requirements that have no Federal analog. Section 903 of HSCA (35 P. S. § 6020.903) requires that the Department collect hazardous waste management fees. As stated in the introductory paragraphs of this Preamble, the Board is specifically seeking comment on the Board's proposal to retain the administrative fees contained in §§ 264a.82, 264a.83, 265a.82 and 265a.83.
40 CFR 264.94 Concentration Limits
The Board is proposing to incorporate by reference 40 CFR 264.94, the Federal regulation regarding concentration limits. This regulation has no existing State analog. The proposed regulation establishes alternate concentration limits (ACL) for constituents in groundwater if leakage of hazardous constituents to the groundwater is detected at the facility. The ACL is a standard that the Department will determine to be protective of human health and the environment. Historically, the Commonwealth has required operators of facilities with leakage of hazardous constituents to the groundwater to remediate the groundwater to a background standard. In its experience, however, this standard was often unattainable and the Department had no mechanism for approving ACLs in these situations. The proposed regulation provides the Department with this flexibility.
25 Pa. Code § 264a.96 and 40 CFR 264.96 and Compliance Period, Recordkeeping and Reporting
The Board is proposing to incorporate by reference 40 CFR 264.96, the Federal regulation regarding the compliance period. In addition, the Board is proposing to relocate the current recordkeeping and reporting requirements to § 264a.96. This will result in a regulation that is more stringent than the corresponding Federal analog. The Board has determined that the recordkeeping and reporting requirements are essential to ensuring that the data is received in a timely and consistent manner so that it can be analyzed quickly.
25 Pa. Code § 264a.97 and 40 CFR 264.97 General Groundwater Monitoring Requirements
The Board is proposing to incorporate by reference 40 CFR 264.97, the Federal regulation regarding general groundwater monitoring requirements. The existing Commonwealth regulation that regulates groundwater monitoring is found in § 264.97. The difference between the existing regulation and the proposed regulation is that the proposed regulation is less prescriptive than the existing regulation, because it provides operators with flexibility to allow for innovation in monitoring well design and construction.
25 Pa. Code Chapters 264a and 265a, Subchapter H, §§ 264a.141--264a.169 and §§ 265a.141--265a.169 The Board is proposing to move the financial requirements sections currently found in Chapter 267 to Chapter 264a, Subchapter H and Chapter 265a, Subchapter H to align the Commonwealth's numbering system with the Federal hazardous waste regulatory numbering system. The Federal hazardous waste financial requirements are found in 40 CFR Parts 264, Subpart H and 265, Subpart H. Proposed §§ 264.a162--264a.169 and 265a.162--265a.169 have been relocated without change from Chapter 267 of the existing regulations.
25 Pa. Code §§ 264a.141 and 265a.141 Definitions of terms
The Board is proposing to incorporate by reference the Federal definitions for ''financial requirements'' in 40 CFR Part 264, Subpart H and 40 CFR Part 265, Subpart H. The Commonwealth's definitions that are contained in the existing § 267.1 and that are necessary to interpret the Commonwealth's financial requirements provisions are proposed to be relocated to §§ 264a.141 and 265a.141.
25 Pa. Code §§ 264a.147 and 265a.147 Liability Requirements
The Board is proposing to move the liability requirements sections from their current location at §§ 267.41--267.46 to §§ 264a.147 and 265a.147. The Federal analog to these requirements are found in 40 CFR 264.147 and 265.147. The proposed amendments will incorporate by reference the Federal liability requirements section to replace the current Commonwealth insurance coverage requirement for sudden and nonsudden accidental pollution occurrences. However, the Federal regulation that the Board proposes to incorporate reduces the required insurance coverage amount to $1 million per occurrence for sudden accidental pollution occurrences with an annual aggregate of $2 million and to $3 million per occurrence for nonsudden accidental pollution occurrences with an annual aggregate of $6 million. Currently, the Pennsylvania hazardous waste regulations require $2 million per occurrence for sudden accidental pollution occurrences with an annual aggregate of $4 million and $6 million per occurrence for nonsudden accidental pollution occurrences with an annual aggregate of $12 million. The proposed regulation will retain the SWMA requirement that all permittees have in effect an ordinary public liability insurance policy (35 P. S. § 6018.502(e)). Ordinary public liability insurance is not required by Federal law.
25 Pa. Code §§ 264a.148 and 265a.148 Incapacity of Owners or Operators, Guarantors, or Financial Institutions
The Board is proposing to move the incapacity section from its current location at § 267.29 to §§ 264a.148 and 265a.148. The proposed amendment will incorporate by reference the Federal definition section found in 40 CFR 264.148 and 265.148. The incorporated provisions are essentially the same as the current provisions found in § 267.29.
25 Pa. Code § 264a.151 Wording of Instruments
The Board proposes to incorporate the text of the Federal financial responsibility forms found in 40 CFR 264.151 to the extent these are consistent with Commonwealth law. In general, the differences between the Federal and State forms arise because there is no Federal insurance law, and the terms and conditions of an insurance policy are generally matters of State law.
25 Pa. Code §§ 264a.153--264a.169 and 265a.153--265.169 Bonding requirements
The Board is proposing to move the bonding requirements from §§ 267.11--267.30 to §§ 264a.153--264a.169 and §§ 265a.153--265a.169. Minor changes are proposed to the current requirements as noted in this Preamble. The bonding requirements for hazardous waste are governed by sections 505 and 506 of the SWMA (35 P. S. §§ 6018.505 and 6018.506) which differ from the bonding requirements found in RCRA.
25 Pa. Code §§ 264a.156 and 265a.156 Special Terms and Conditions for Collateral Bonds
The Board is proposing to add another type of bonding option to the existing bonding options available to hazardous waste facility permittees. Self-bonding will be added to the Pennsylvania regulations by incorporating into the Commonwealth's regulations the Federal financial test and corporate guarantee provisions found in 40 CFR 264.143(f) and 265.143(e). Permittees interested in using this form of bonding must qualify by demonstrating that they meet the financial test contained in 40 CFR 264.143(f) and 265.143(e). This financial test has been a part of the Department's hazardous waste regulations since August 2, 1986, but the Department has used it only for self-insurance determinations.
25 Pa. Code §§ 264a.161 and 265a.161 Cost Estimate for Closure and Post-Closure Care
The Board is proposing to move the cost estimate sections from their current location at § 267.19 to §§ 264a.161 and, for interim status to §§ 265a.161. The corresponding Federal regulations are found in 40 CFR 264.142 and 264.144 and for interim status, the Federal regulations are found in 40 CFR 265.142 and 265.144. The proposed amendments will incorporate by reference the Federal cost estimate sections which are essentially the same as the current cost estimate provisions found in § 267.19.
40 CFR 264.173 and 265.163 Management of Containers
The Board is proposing to incorporate by reference 40 CFR 264.173 and 265.173, the Federal regulations regarding the use and management of containers. In addition, the Board is proposing to retain the existing labeling requirements found in §§ 264.173 and 265.173 and to relocate these requirements to §§ 264a.173 and 265a.173. The Federal regulations do not require operators to label their containers that contain hazardous waste. Labels are required by section 403(b)(2) of SWMA (35 P. S. § 6018.403(b)(2)). The Board has determined that labeling containers with their contents is essential to the proper management of the containers.
25 Pa. Code §§ 264a.175 and 265a.175 and 40 CFR 264.175 and 265.179 Containment
The Board is proposing to retain the current requirements for height, width and depth of containers used to store waste as well as aisle distances between groups of storage containers. These requirements are currently found in §§ 264.179 and 265.178. These regulations have no Federal analog. The Board has determined that these requirements will ensure uniformity in storage practices and are essential to the safe management of containers that store hazardous waste.
25 Pa. Code § 264a.180 Weighing or Measuring Facilities
The Board is proposing to retain the existing requirements for weighing and measuring facilities currently found at § 264.180. These requirements are necessary to calculate the fees owed under sections 305, 306 and 903 of HSCA (35 P. S. §§ 6020.305, 6020.306 and 6020.903. In addition, the weights and measurements obtained from the requirements in proposed § 264a.180 provide the Department with information that it uses to verify the manifest information that is submitted to the Department.
25 Pa. Code §§ 264a.191 and 265a.191 and 40 CFR 264.191 and 265.191 Tanks: Assessment of Existing Tank System's Integrity
The proposed regulations amend the effective dates of the requirements of 40 CFR 264.191 and 265.191 to match the dates on which these requirements became effective in this Commonwealth under the existing hazardous waste regulations.
25 Pa. Code §§ 264a.193 and 265a.193 and 40 CFR 264.193 and 265.193 Tanks: Containment and Detection of Releases
The proposed regulations amend the effective dates of the requirements of 40 CFR 264.193 and 265.193 to match the dates on which these requirements became effective in this Commonwealth under the existing hazardous waste regulations.
25 Pa. Code §§ 264a.194 and 265a.194 and 40 CFR 264.194 and 265.194 Tanks: General Operating Requirements
The Board is proposing to incorporate by reference 40 CFR 264.194 and 265.194, the Federal regulations regarding general operating requirements for tanks. In addition, the Board is proposing to retain the existing labeling requirements currently found in §§ 264.194 and 265.194 and to relocate these requirements to §§ 264a.194 and 265a.194. The Federal regulation does not require operators to label tanks. The Board has determined that labeling tanks with their contents is essential to the proper management of tanks that contain hazardous wastes.
25 Pa. Code §§ 264a.195 and 265a.195 and 40 CFR 264.195 and 265.195 Tanks: Inspections
The Board is proposing to incorporate by reference 40 CFR 264.195 and 265.195, the Federal regulation regarding tank inspections. In addition, the Board is proposing to relocate the existing Commonwealth requirement to inspect tanks every 72 hours when the facility is not operating, if the tank waste remains in the tank or tank system components. This Commonwealth requirement is currently found in §§ 264.195 and 265.195, but the Board is proposing to move it to §§ 264a.195 and 265a.195. The Federal regulation requires only that operators inspect tanks once each operating day. The Board has determined that all tanks and tank systems containing hazardous waste must be inspected, regardless of whether or not the facility is operating since all tanks could leak.
25 Pa. Code § 264a.221 and 40 CFR 264.221 Surface Impoundments: Design and Operating Requirements
The Board is proposing to adopt 40 CFR 264.221, the Federal regulation for surface impoundment design and operating requirements. In addition, the Board proposes to retain the minimum groundwater separation distance requirements found in the current regulations at § 264.222. This requirement is proposed to be relocated to § 264a.221. Separation distances provide a layer of soil material that will allow some attenuation of any waste passing through the liner system. In addition, the separation distance reduces the threat of upward hydraulic pressures which could threaten the integrity of the liner system. The Board has determined that since the Commonwealth has a high water table and receives a lot of precipitation, it is a compelling State interest to protect groundwater from contamination that results from leakage from surface impoundment liners. Generally, the proposed regulation is not as prescriptive as the existing Commonwealth design and operating requirements found in §§ 264.221, 264.223 and 264.224 so that owners and operators of facilities are given more flexibility in designing and operating their facilities in an environmentally protective manner. The significant differences between the proposed regulation and the existing State regulations are:
1) The proposed regulation requires double composite liner requirements for new surface impoundments. The current regulation requires a double noncomposite liner system for all surface impoundments. A composite liner system contains two different components that keep the waste from traveling through the liner.
2) The proposed regulation allows for alternative design and operating practices if the alternate design and operating practice is as effective as the design and operating practice prescribed in the regulations. The current regulation does not provide any flexibility in design and operating practices
3) The proposed regulation requires that the Department specify in the permit all design and operating practices. The current regulation does not require this.
4) The current regulation sets forth specific conveyance, storage and treatment requirements for leachate. The proposed regulation does not provide prescriptive requirements. The proposed regulation addresses leachate detection collection but allows the specific storage and treatment design issues to be addressed on a case by case basis.
5) The current regulation sets forth specific operating requirements regarding standby equipment, equipment maintenance, loading areas, and waste tracking. The proposed regulation does not provide prescriptive requirements. The proposed regulation allows permit applicants to address these issues in their permit applications on a case by case basis.
6) The current regulation contains prescriptive capping requirements. The proposed regulation does not contain prescriptive capping requirements, but it does contain performance requirements so that operators must minimize migration of wastes; minimize maintenance of cap; and utilize a cap that has a permeability that is less than or equal to the permeability of the liner. The proposed regulation also requires the use of a final cover.
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