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PA Bulletin, Doc. No. 99-744

RULES AND REGULATIONS

Title 25--ENVIRONMENTAL PROTECTION

ENVIRONMENTAL QUALITY BOARD

[25 PA. CODE CHS. 260--267, 269, 270, 260a--266a, 266b AND 268a--270a]

Hazardous Waste

[29 Pa.B. 2367]

   The Environmental Quality Board (Board) by this order deletes Chapters 260--267, 269 and 270 and renumbers existing or adds 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 Commonwealth's existing hazardous waste regulations to identify where the regulations could be improved.

   This order was adopted by the Board at its meeting of February 16, 1999.

A.  Effective Date

   With the exception of Chapter 264a, Subchapter S, these amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking. The provisions of Chapter 264a, Subchapter S will become effective upon delegation of the corrective action program to the Department by the Environmental Protection Agency (EPA).

B.  Contact Persons

   For further information contact Rick Shipman, Division of Hazardous Waste Management, 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. 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 rulemaking is available electronically through the Department's Web site (http://www.dep.state.pa.us).

C.  Statutory Authority

   The final 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 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 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 necessary for the proper work of the Department.

D.  Background and Summary

   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 in 40 CFR Parts 124, 260--270, 273 and 279, 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. Therefore, a state standard less stringent than the RCRA standard respecting the same matter 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 (relating to requirements for authorization of state hazardous waste programs). 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 authorized the EPA to impose and administer directly certain more stringent requirements in all states 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 this Commonwealth hazardous waste requirements in order to be in compliance with RCRA.

   Since the Commonwealth received its authorization in 1986, the Board has adopted several hazardous waste rules. The Commonwealth's hazardous waste regulations were most recently significantly amended with substantive changes at 23 Pa.B. 363 (January 15, 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 final rulemaking deletes these requirements and replaces them with the Federal regulations.

   The Department has reviewed all of its hazardous waste regulations under 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 finalized 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 an authorization update from EPA for its hazardous waste program based on this final rulemaking.

E.  Summary of Comments and Responses on the Proposed Rulemaking

   The proposed amendments were published at 27 Pa.B. 6407 (December 6, 1997). The 60-day public comment period ended on February 4, 1998. The Department received comments from 30 citizens and regulated persons. Comments were also received from the Independent Regulatory Review Commission (IRRC) and the EPA. All comments received were given due consideration and review, and changes were made to the amendments in response to comments received. The Board believes that the regulations have been improved as a result of the efforts of the commentators. A copy of the Comment and Response Document prepared for this rulemaking may be obtained by contacting Rick Shipman, Division of Hazardous Waste Management, at the address given in Section B of this Preamble.

   The changes contained within these final amendments were reviewed and approved with certain recommendations by the Department's Solid Waste Advisory Committee (SWAC) on July 9, 1998. SWAC suggested the following: 1) include the coproduct transition scheme in the preamble; 2) clarify the provisions of § 261a.7 (relating to residues of hazardous waste in empty containers) to indicate that the material in an empty container means a material that, if disposed, would be a hazardous or solid waste in accordance with the SWMA; 3) clarify that the definition of ''financial institutions'' could be broader than ''banks''; 4) reexamine whether or not an 8,000 Btu/lb. minimum heating value is justified when the Federal regulations set a 5,000 Btu/lb. minimum heating value for small quantity onsite burners, § 266a.108 (relating to small quantity onsite burners); and 5) clarify that the exemption from application and administration fees applies only to the recycling related activities prior to reclamation at a facility permitted for treatment of hazardous waste. The Department revised the final form rulemaking to conform to SWAC's suggestions except for SWAC's suggested changes to § 261a.7 and to the financial assurance provisions. Regarding § 261a.7, the Department determined that until a material is actually disposed, the Department does not have jurisdiction over a material that, if disposed, would be a hazardous or solid waste. Therefore, the regulation cannot be amended to regulate these materials. With regard to the suggestion that the term ''financial institution'' could be broadened to include more than banks, the Department agrees that the term ''financial institution'' should be broadened. However, for purposes of letters of credit, the Department found that it should only accept letters of credit issued by banks since banks are the only institutions for which the Department can be assured that the institution will issue a letter of credit that is regulated by Commonwealth law. Finally, the Department reexamined whether or not an 8,000 Btu/lb. minimum heating value for small quantity onsite burners in § 266a.108 is justified. The Department determined that a 5,000 Btu/lb. minimum heating value is adequate to ensure safe operation of small quantity onsite burners subject to § 266.108.

   Substantive changes to the proposed amendments which are made in this rulemaking are discussed in this Preamble by general topic. Several stylistic or typographical corrections are not discussed. Amendments to the regulations which have not been changed from the proposed rulemaking are discussed in the Preamble published with the proposed amendments at 27 Pa.B. 6407.

Format and Interface with 40 CFR

   The Board's proposed amendments to the hazardous waste regulations deleted the current text of the Commonwealth's hazardous waste regulations and added new chapters that incorporate by reference the Federal hazardous waste regulations. The purpose of incorporating by reference is to ensure that the Commonwealth's hazardous waste regulations are consistent with the Federal regulations. In cases for which the Board has determined that The 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 amendments were formatted so that the first section of each Commonwealth chapter contained language to incorporate by reference each corresponding Federal part that the Commonwealth proposed to incorporate by reference. Individual Commonwealth sections were identified by a small letter ''a'' that was included in the section number. The sections with an ''a'' contained Commonwealth additions to, deletions from or modifications of the Federal regulations that had been incorporated. In most instances, the Commonwealth chapter numbers corresponded to the parallel Federal part numbers; the Commonwealth subchapter numbers corresponded to the parallel Federal subpart numbers; and the Commonwealth section numbers corresponded to the parallel Federal section numbers. In instances for which no Commonwealth section number existed for a Federal counterpart section, the Commonwealth decided to incorporate the Federal section without modification. The final-form regulations retain this format.

   The EPA was concerned with the Board's use of the word ''notwithstanding'' in sections that contained modifications to the Federally incorporated language and the phrase ''in addition to'' in sections that contained additions to the Federal language. The EPA felt that the resulting provisions were confusing since they did not identify specifically the Federal language that was being modified. The Board has removed all of the ''notwithstanding'' language and replaced it with language that identifies more clearly the Federal language that is being modified by the Commonwealth provisions. The Board has decided that the phrase ''in addition to'' clearly indicates that the Commonwealth intends to add to the Federally incorporated provisions, and therefore, the Board has decided to continue to use the phrase ''in addition to'' to indicate additions to Federally incorporated language.

   The EPA was also concerned about the Board's blanket substitution of terms found in proposed § 260a.3(a) (relating to terminology and citations related to Federal regulations). The EPA was particularly concerned about individual Commonwealth sections for which the substitution of terms should not apply because the EPA retains certain authorities or responsibilities, or because the EPA cannot delegate certain incorporated provisions of 40 CFR in the state authorization process. Based on the EPA's identification of these individual sections, the Board has made specific exceptions from the substitution of terms found in § 260a.3(a). In situations in which a blanket substitution does not apply to a particular provision, but for which the Department inadvertently may have applied a blanket substitution, the regulatory provision should be read in a manner that is consistent with the law. For example, Federal law prohibits states from enforcing certain RCRA provisions and gives the enforcement authority for these provisions to the EPA exclusively. These provisions should be read to be unenforceable by the Commonwealth, regardless of whether or not the Commonwealth regulations include an inappropriate substitution of terms.

   The EPA pointed out that dates contained in the Federally incorporated language or in the Commonwealth's proposed language could be confusing. The Board has reviewed all of the dates contained in the Federally incorporated language and has modified those dates when necessary to reflect accurately the Commonwealth's authority to regulate. For example, proposed § 264a.570 (relating to applicability) modified the Federal date for compliance for certain drip pad operations from December 6, 1990, to a Commonwealth date of January 11, 1997. Drip pads have been subject to Federal regulation since December 6, 1990, but were not subject to Commonwealth regulatory requirements until January 11, 1997. The EPA suggested that the Commonwealth should retain the Federal date for HSWA units in its regulations since the regulated community has been subject to Federal regulation for HSWA units beginning on the date that EPA promulgated HSWA regulations. The Board has reviewed the EPA's suggestions on date modification and has concluded that the Commonwealth does not have the authority to enforce regulatory provisions prior to the date on which the regulatory provisions were promulgated in this Commonwealth. Therefore, the Board has retained the Commonwealth's effective dates.

Coproduct

   The proposed rulemaking deleted from the definitions section of the hazardous waste regulations the terms ''coproduct,'' ''byproduct,'' ''solid waste'' and ''waste'' and replaced them with the Federal definition for ''solid waste'' in 40 CFR 261.2 (relating to definition of solid waste). Several commentators were concerned that certain facilities that produced coproducts under the Commonwealth's existing system would suddenly find themselves regulated under the Federally incorporated language. The commentators suggested that the Board include a transition period for these facilities. The Board believes that most facilities currently producing a coproduct will find that their coproduct does not fall within the Federally incorporated definition of solid waste in 40 CFR 261.2. However, the Board recognizes that it may not be aware of all of the facilities that may be handling materials as coproducts, and therefore, the final form regulation includes a transition period for these facilities in § 260a.30 (relating to variances from classification as a solid waste). The transition period is intended to allow the operators of these facilities to determine if their coproducts do not fall within the Federally incorporated definition of solid waste or if the operators of these facilities will have to apply to the Department for a variance from classification as a solid waste under the Federally incorporated variance provisions found in 40 CFR Part 260, Subpart C (relating to rulemaking petitions) and § 260a.20 (relating to rulemaking petitions). The final-form regulation also includes a 90-day notification period during which time any person producing, selling, transferring, possessing or using a material as a coproduct that is not exempt from regulation in other parts of these final-form regulations shall notify the Department so that the person can qualify for the transition period.

Definitions--§ 260a.10

   In response to the concerns of several commentators, the Board has modified § 260a.10 (relating to definitions), of the final-form regulations so that all of the definitions are contained within one section rather than in several subsections. The definition section is now in alphabetical order and includes every term that modifies a Federal definition, adds to a Federal definition or is excluded from the incorporation by reference of the Federal definitions. The Board received several comments suggesting that the final-form regulation would be easier to follow if it included definitions found in SWMA. The final-form regulations do include SWMA definitions for those terms that are replacing Federal regulatory terms, as well as, for other terms, the inclusion of which is intended to clarify the SWMA definitions. For example, the term ''disposal'' is defined using the SWMA definition rather than the Federal regulatory definition.

Definition of ''Hazardous Waste''--§ 261a.3

   The proposed rulemaking did not incorporate by reference the Federal exclusion for high temperature metals reclamation (HTMR) slags derived from listed hazardous wastes that meet health-based criteria. The Federal regulation in 40 CFR 261.3(c)(2)(ii)(C) provides an exemption for HTMR slags that meet certain criteria and that are disposed of in Subtitle D units. The purpose of the Federal exemption is to allow operators to dispose of hazardous HTMR slag in Subtitle D landfills rather than requiring them to dispose of the slags in Subtitle C facilities. The Federal exclusion does not affect any other aspect of the management of hazardous HTMR slags. The Department has determined that these HTMR slags should be disposed of as hazardous wastes and should not be permitted to go to Subtitle D landfills for the following reasons as follows.

   Several commentators felt that the Federal provision should be incorporated by reference so that these slags would be excluded from regulation. The commentators believe that if the Board does not incorporate the exclusion and eliminates the definition of ''coproduct,'' beneficial uses of HTMR slag would be eliminated and recycling of HTMR slag would be discouraged.

   The Department reviewed this provision and found that even if the Board did adopt the Federal exclusion for these HTMR slags, HTMR slags that are being recycled would nonetheless continue to be subject to all of the Commonwealth regulations that apply to the storage or treatment of hazardous wastes. Furthermore, the Department believes that this requirement will encourage recycling of these slags, since recycling may be a more economical alternative than disposal of these slags in accordance with hazardous waste disposal requirements.

   The Board also bases its decision to prohibit these slags from going to Subtitle D landfills, because in past rulemakings, the Department received many comments from the public opposing a proposal to allow conditionally exempt small quantity generator (CESQG) hazardous waste to go to hazardous waste landfills. Like HTMR slags, the EPA was not concerned about CESQG wastes going to Subtitle D landfills but the public was concerned. Since the EPA exempts HTMR slags from the definition of ''hazardous waste'' only to allow for its disposal in Subtitle D landfills, the Board believes that the public would not approve of this exemption any more than it approved of the exemption to allow CESQG waste to go to Subtitle D landfills.

   The beneficial uses of HTMR slag will not be affected by the Board's decision not to incorporate the Federal exemption. Beneficial uses do not involve ''disposal in Subtitle D units,'' which is the specific exemption in 40 CFR 261.3(c)(2)(ii)(C), and therefore, to the extent that beneficial uses are authorized by the current hazardous waste regulations, beneficial uses are authorized by the final-form regulations. Since the final-form regulations do not amend the existing hazardous waste regulations with regard to this exemption, the regulated community will experience no additional costs as a result of the final-form regulations. In addition, HTMR slags that have been determined to be coproducts or that are beneficially used are HTMR slags that are residual wastes. The beneficial use or coproduct status of residual waste HTMR slags is unaffected by these hazardous waste regulations.

   Based on comments received, the Board has decided to incorporate by reference the Federal exemption for biological treatment sludge generated from the treatment of organic waste from the production of carbamates and carbamoyl oximes as well as wastewaters from the production of carbamates and carbamoyl oximes. The commentators felt that the Department's lack of experience with these wastes was not a sufficiently compelling reason to continue to regulate them as hazardous wastes.

   The exemption in 40 CFR 261.3(c)(2)(ii)(D) for certain listed wastes from the production of carbamates and carbamoyl oximes (EPA Hazardous Waste No. K156 and K157) was not included as an exclusion in the proposal because the Federal listings and the exclusion were relatively new, controversial and had been challenged in a lawsuit (Dithiocarbamate Task Force v. EPA, 98 F.3d 1394). In addition, the Department was unable to verify if any hazardous waste handlers for EPA hazardous waste numbers K156 and K157 exist in this Commonwealth at the time that the proposed rulemaking was being developed, because the waste listing was very recent. This lack of information prompted concern for automatically adopting by reference the exemption and its effect in this Commonwealth. The Department has researched whether any entities exist in this Commonwealth that have been affected by this exemption and determined that no entities within this Commonwealth would be affected by this exemption at this time. The Department has also conducted a detailed review of the EPA preamble of the carbamate rule. The Department has reviewed the extensive research and analysis conducted by the EPA on the carbamate rule and believes that the exemption would be protective of human health and the environment if such a facility began to operate in this Commonwealth.

Exclusions--§ 261a.4

   Several commentators suggested that the Board should incorporate without modification the Federal exclusions found in 40 CFR 261.4 (relating to exclusions) and exclude the materials listed in 40 CFR 261.4(a) from the definition of ''solid waste,'' rather than from the definition of ''hazardous waste.'' The Department has reevaluated the proposed manner of adopting 40 CFR 261.4. After closer examination of the materials excluded from classification as solid wastes under 40 CFR 261.4(a), the Department agrees that there are no compelling environmental or human health needs justifying further regulation of these materials as solid wastes in the Commonwealth's hazardous waste regulations. The final-form regulations will adopt by reference and without modification 40 CFR 261.4 so that the regulation excludes from classification as solid wastes the materials identified in 40 CFR 261.4(a).

Special Requirements for Hazardous Waste Generated by Small Quantity Generators--§ 261a.5

   One commentator pointed out that the PK-5 amendments to the hazardous waste regulations allowed CESQG hazardous wastes to be mixed with waste oil and transported, stored or processed as municipal or residual waste, as long as the mixture was to be recycled or reused. The commentator noted that the proposed rulemaking did not include this provision and would require these mixtures to be regulated as hazardous wastes, unless the wastes were destined to be burned for energy recovery. In accordance with the proposed rulemaking, if a mixture of CESQG hazardous waste and waste oil is destined to be burned for energy recovery, the mixture would be regulated as a residual or municipal waste. The commentator believes that if the proposed rule is finalized, waste oil burning will be encouraged rather than waste oil recycling.

   The Board has incorporated by reference 40 CFR 261.5(j) (relating to special requirements for hazardous waste generated by conditionally exempt small quantity generators). This Federal provision, as incorporated into the Commonwealth program, applies the Commonwealth's waste oil regulations found in Chapter 266a, Subchapter E (relating to waste oil burned for energy recovery) to mixtures of CESQG hazardous waste and waste oil only if the mixture is destined to be burned for energy recovery. This is the same as the Federal equivalent waste oil provision found in 40 CFR Part 279 (relating to standards for the management of used oil), although the EPA has proposed to broaden the class of mixtures subject to Part 279 to include CESQG waste mixed with waste oil that is not destined to be burned for energy recovery. Mixtures of CESQG waste and waste oil should be regulated in the same manner as any other conditionally exempt small quantity generator hazardous waste if the mixtures are not destined to be burned for energy recovery. The Department has developed a proposed chapter of waste oil regulations published at 29 Pa.B. 1975 (April 10, 1999). The issue regarding mixtures of waste oil and CESQG generator waste has been addressed in that proposed rulemaking, which will also consider the final outcome of the May 6, 1998, the EPA proposed/direct final-form regulations regarding recycling of these mixtures.

Transporter Requirements for Conditionally Exempt Small Quantity Generators--§ 261.a5

   The Board has added a provision to § 261a.5 (relating to special requirements for hazardous waste generated by conditionally exempt small quantity generators) that allows CESQG facilities to transport their hazardous waste without using a hazardous waste transporter as long as the CESQG facility complies with § 261a.5 and 40 CFR 261.5. A CESQG facility is deemed to have a transporter license if the CESQG complies with § 261a.5(b) and 40 CFR 261.5.

Requirements for Recyclable Materials Except Waste Oil--§§ 261a.2, 261a.4, 261a.6, 270a.60 and Chapter 266a

   In the proposed rulemaking, the Board intended to require operators to obtain permits for treatment activities related to recycling of hazardous wastes. The proposed rulemaking included this requirement in § 261a.6 (relating to recyclable materials). Several commentators found the language of proposed § 261a.6 (relating to hazardous waste materials) to be confusing and unclear about the scope of the Commonwealth's recycling permit requirements and felt that provisions in the proposed regulations conflicted with each other. Other commentators requested that the Board exclude any regulation of recycling that is more stringent than the Federal recycling requirements.

   The Board did not intend to require permits for all recycling and reclamation activities in its proposed rulemaking. The proposed rulemaking incorporated most of the Federal regulations that exempt from permitting most recycling and reclamation activities that occur within this Commonwealth. Specifically, the proposed regulation incorporated the Federal definition of ''solid waste'' in 40 CFR 261.2 the Federal exclusions in 40 CFR 261.4; the Federal provisions on recyclable materials in 40 CFR 261.6 and the Federal provisions for reduced management standards for certain recycling activities contained in 40 CFR Part 266 (relating to standards for the management of specific hazardous wastes and specific types of hazardous waste management facilities). The final-form regulations clarify the Board's intent to regulate certain activities associated with recyclable materials.

   After the proposed rulemaking was published, the Department reviewed all of the hazardous waste recycling activities that occur in this Commonwealth to determine how many facilities are impacted by its recycling regulations and whether the recycling regulations are essential to assuring proper management of hazardous waste that is destined for recycling or reclamation. As a result of this review, the Department identified approximately 60 hazardous waste recycling facilities in this Commonwealth that are currently subject to recycling requirements that are more stringent than the Federal requirements. Of these, six are required to receive individual permits--the remainder operate under a permit by rule. Onsite solvent recovery accounts for the greatest number of the activities subject to a permit by rule.

   Regarding the individually permitted facilities, the six facilities are subject to the Federal storage permit requirements in 40 CFR 261.6(c). In addition to the storage permit requirement, the Department found that the following processes occur at these facilities prior to reclamation: physical treatment, chemical/physical treatment and thermal treatment. The Board has determined that the SWMA requires these facilities to obtain permits for these activities, because these activities make the waste suitable for recovery. Furthermore, the activities at these facilities are identical to activities that are regulated as permitted treatment activities at hazardous waste facilities where the treatment process neutralizes the waste; renders the waste nonhazardous or less hazardous; or makes the waste safer for transport, storage or disposal.

   Regarding the facilities regulated by permit by rule, the Department determined that permits by rule ensure adequate protection of human health and the environment without being overly burdensome on the facilities' operations. Permit by rule is a self implementing process where the facility is deemed to have a permit as long as the facility complies with the requirements specified in the applicable permit by rule that is contained in the regulation. A permit by rule does not require the operator to submit a permit application or financial assurance information; and recordkeeping and reporting are minimal. The Department uses the permit by rule approach for those activities for which the statute mandates regulation but for which the technical complexity of the operation does not justify a full written permit. The permit by rule provisions for hazardous waste recycling facilities are available for: 1) battery manufacturing facilities that treat spent, lead acid batteries prior to reclaiming them; 2) facilities that treat recyclable materials to make the materials suitable for reclamation of economically significant amounts of precious metals; and 3) facilities that treat hazardous waste onsite prior to reclaiming the hazardous waste. The permit by rule for petroleum refining facilities refining hazardous waste along with normal process streams to produce petroleum products (proposed § 270a.60(b)(4)) has been deleted in the final-form regulations. Since the refinery is the actual reclamation unit, there is no need for a permit or permit by rule; any treatment conducted on the hazardous waste prior to introduction into the refinery could be covered under the permit by rule for treatment prior to onsite reclamation.

   Examples of activities conducted at battery manufacturing facilities reclaiming spent lead acid batteries that are covered by a permit by rule include: 1) breaking battery cases to remove acid, 2) physical separation of the lead components from the plastic cases, and 3) physical mixing of the lead component with flux materials, limestone, coke or other additives to prepare the materials for charging to the secondary lead smelter. The smelter is the reclamation unit and is not subject to a permit; the other activities described above meet the SWMA definition of ''treatment.''

   Examples of activities conducted at facilities that reclaim economically significant amounts of precious metals that are covered by a permit by rule include: 1) various physical, chemical or electrochemical methods used to extract silver metal from X-ray or photographic film fixers; and 2) drying silver recovery media prior to charging to the secondary smelter. The smelter is the reclamation unit not subject to a permit. The other activities described meet the definition of ''treatment.''

   Examples of activities conducted at facilities that reclaim hazardous waste onsite can be extremely varied. The most common onsite reclamation is solvent recovery. Physical separation of the spent solvent and water or sludge would constitute an activity subject to permit by rule. In some cases, the spent solvent can be placed directly into a distillation unit, in which case there is no treatment prior to reclamation and the permit by rule would not be applicable. The distillation unit is the reclamation unit not subject to a permit. Other onsite reclamation activities that require a physical, chemical or thermal process prior to placing the recyclable materials in any of the various reclamation units for onsite recovery would be subject to permit by rule rather than a full hazardous waste treatment permit.

   In the final-form regulations, the only Federal provision regarding recycling exemptions that the Board has not incorporated by reference is 40 CFR 261.6(c). This Federal provision includes a parenthetical phrase that states that the recycling process is exempt from regulation. In retaining the exclusion of 40 CFR 261.6(c) from the Commonwealth's regulations, the Commonwealth does not intend to regulate all recycling activities. Specifically, reclamation and recovery processes tend to resemble or replace a manufacturing process, and therefore, the permit requirement is not intended to apply to the reclamation or recovery process itself. Operation of the recovery process such as feed rates, temperature, residence time and the construction of the recovery unit are dictated by the specific process and should not be regulated in the same manner as a waste management unit. The Department intends to regulate only those activities that utilize a method, technique or process to change the physical, chemical or biological character of a hazardous waste to make the waste suitable for recovery. Consequently, the Department does not intend to regulate the actual reclamation or recovery process.

   The Department does intend to regulate more extensively than the Federal government certain hazardous waste activities that occur prior to the actual reclamation or recycling process, such as those processes described in the previously cited examples. The Department believes that it is responsible for ensuring that hazardous waste is properly managed before it enters the recycling process so that it poses a minimal risk to human health and the environment. The Board believes that including 40 CFR 261.6(c) in the Commonwealth's regulations adds confusion since the Department has been presented with an argument that 40 CFR 261.6(c) exempts all nonstorage related recycling activities, including nonstorage activities that occur prior to the actual recycling or reclamation process. Therefore, the Board is not incorporating by reference 40 CFR 261.6(c). This is not a substantive change from the proposed rulemaking, but it simply clarifies a point which the commentators found confusing.

   In addition to the Board's decision not to incorporate 40 CFR 261.6(c), the Board is promulgating regulations in Chapter 266a (relating to standards for the management of specific hazardous wastes and specific types of hazardous waste management facilities) that are more stringent than the Federal requirements for battery manufacturers and precious metals recovery operations. 40 CFR 266.70 (relating to precious metals reclamation) requires precious metals reclaimers to comply with minimal requirements. The Board has added to the Federal requirements the requirement for precious metal reclaimers to obtain an individual permit under § 261a.6(c) (relating to recyclable materials) or to comply with a permit by rule established by § 270a.60(b)(6) (relating to permits by rule). The permit by rule allows the precious metals reclaimers to operate in a manner that is protective of human health and the environment but that is less burdensome than operating under an individual permit. The Board does not intend to regulate the recovery process itself, only those activities that occur prior to the recovery process to make the material suitable for recovery such as chemical or electrochemical precipitation and hydrometallurgical processes. In addition, § 266a.70(a)(1) (relating to applicability and requirements) grants to transporters of recyclable materials used for precious metals recovery a license for the transportation of those materials if certain requirements are met. This transporter license by rule is intended to encourage precious metals recovery by easing the burden and cost of transporting the recyclable materials.

   Battery reclaimers are subject to 40 CFR 266.80 (relating to lead acid battery reclamation). As with the precious metals reclaimers, the Board's regulation in § 266a.80 (relating to applicability of regulations) requires battery reclaimers to obtain an individual permit under the requirements of § 261a.6(c), unless the operator is eligible for the permit by rule established by § 270a.60(b)(3). The Federal regulations require operators of spent lead acid battery reclamation facilities to obtain a storage permit only. The permit by rule in § 270a.60(b)(3) applies to battery manufacturing facilities that reclaim spent lead acid batteries. Again, the Board's intent in promulgating the permit by rule is to encourage battery manufacturers to reclaim spent lead acid batteries in a manner that is protective of human health and the environment but that is less burdensome than operating under to an individual permit.

   Consequently, all Commonwealth recycling activity regulation that is more extensive than the Federal requirements is found in §§ 261a.6, 266a.70, 266a.80 and 270a.60. The Commonwealth does not intend to regulate the recycling process itself, but it does intend to regulate certain activities that occur prior to the recycling process. In making this decision, the Board has promulgated several permits by rule so that most facilities will not be subject to all of the burdensome requirements associated with securing an individual permit.

   The Board supports the hierarchy of preferred waste management practices to promote more effective methods of hazardous waste management. To promote the improved operation of existing hazardous waste recycling facilities and to encourage the development of new improved technologies for hazardous waste reclamation, the final-form regulations eliminate the requirement for permit application, modification and administration fees for hazardous waste recycling permits, and for research, development and demonstration permits (40 CFR 270.65 (relating to development and demonstration permits)) that employ new improved technologies for hazardous waste reclamation. The elimination of the fee requirements applies only to those activities directly involved in a recycling activity. If a facility conducts other treatment, storage or disposal activities in addition to the recycling activity, the fees are applicable to those other activities.

Residues of Hazardous Waste in Empty Containers--§ 261a.7

   The proposed rulemaking retained the Commonwealth's requirement to manage as hazardous wastes residues from empty containers and inner liners removed from empty containers if the residues meet the criteria used to identify hazardous waste. The Board did not intend the proposed rulemaking to change the existing practices for the management of hazardous waste in empty containers or inner liners removed from empty containers. Two commentators felt that the proposed rulemaking classified as a residual waste all containers or container liners being transported to a facility for processing or disposal, regardless of whether the containers could be reused or otherwise qualify as coproducts under the residual waste program. In addition, the commentators found the proposed rulemaking to be unclear as to whether the residual waste classification of the containers and container liners applies only during transportation or during other stages of container and container liner management. Finally, the commentators did not think that the proposed rulemaking provided the regulated community with clear guidance on how to manage residues from empty containers.

   The proposed rulemaking was initially written to classify as residual waste empty containers and inner liners removed from empty containers to allow operators to transport these items for processing or disposal without using a hazardous waste transporter. The residual waste classification was intended to apply to these items for transportation purposes only. In addition, the regulations were intended to regulate as hazardous wastes those residues that may remain in containers or inner liners if those residues are ever removed from the empty containers or inner liners. The proposed rulemaking did not intend to regulate the residues while they remain in the empty containers or inner liners.

   The Board agrees that the proposed rulemaking is confusing. Therefore, the final-form regulations clarify the intent of the proposed rulemaking. The final-form regulations specifically state that the residues in empty tanks, containers and inner liners removed from empty containers become subject to hazardous waste regulation only after the residues are removed from the empty containers, tanks or inner liners. The final-form regulations focus on the residues rather than on the containers that hold the residues. As intended by the proposed rulemaking, the containers, tanks and inner liners will not be subject to hazardous waste regulation unless the containers, tanks or inner liners satisfy the criteria used to determine whether or not a solid waste is a hazardous waste. Therefore, if a tank, container or inner liner is determined to be a residual waste under the SWMA, the tank, container or inner liner will be eligible for residual waste coproduct status if it meets all of the residual waste coproduct criteria.

   SWAC was presented with a proposal that included the term ''hazardous material.'' SWAC specifically requested that the Department clarify § 261a.7 (relating to residues of hazardous waste in empty containers) to indicate that the material in the empty containers that is subject to these regulations is a material that, if disposed, would be a hazardous or solid waste under the SWMA. After further review, the Department found that it is unnecessary to use the terminology ''material that, if disposed, would be a solid or hazardous waste'' since the regulation can only apply to hazardous wastes in accordance with the applicability provisions of the hazardous waste regulations and the SWMA. As written in its final form, the regulation only applies to hazardous wastes.

Manifest--Chapter 262a, Subchapter B

   In addition to the Federal manifest requirements, the Board proposed to require the use of a manifest that may have up to six parts rather than the four part manifest required by the Federal regulations. The two additional copies are sent from a Commonwealth TSD facility to the generator state and disposal state. If the Commonwealth is both the generator and disposal state, only one manifest copy must be sent to the Commonwealth to satisfy this requirement. The Board believes that hazardous waste cannot be properly monitored unless the generator state and the disposal state can track the waste. Since the manifest contains all of the necessary information once it gets to the TSD facility, the regulation requires the TSD facility to send the manifest copies to the generator and disposal states. The existing Commonwealth regulation requires the use of a manifest that may have up to eight parts. The two copies that the final-form regulations will no longer require are the copy that the generator sends to the generator state and the copy that the generator sends to the disposal state.

   Several commentators pointed out that the EPA is considering revising the manifest system to streamline it. The commentators were concerned that Commonwealth facilities will receive no benefit if the EPA does streamline the manifest system. In addition, the commentators felt that sending the additional copies to the generator and TSD states does not serve any health, safety or environmental protection purpose.

   In addition to providing the generator with a mechanism for tracking hazardous waste, the Federal manifest system was designed as a paperwork reduction effort so that the EPA would not receive a copy of each manifest from each shipment in each of the 50 states. However, the Board has determined that if the regulatory agency does not receive a manifest copy, it cannot track the movement of the waste to determine whether operators are in compliance with the hazardous waste regulatory requirements. The Department's manifest copy is also used to verify payment of fees required by the HSCA. The biennial report does not provide the Department with enough information to determine compliance with fee payment requirements since the report provides data from the year prior to the year in which the report is compiled. Finally, the manifest data is also used in developing the hazardous waste facilities plan.

   The EPA and Department are considering the application of electronic data interchange for manifest submission. This will not take the place of manifest requirements, but it will provide an additional option to satisfy the reporting requirements that will result in less paperwork and faster more accurate data transmission. The Department is currently exploring this option with several companies.

Transfer Facility Requirements--§ 263a.12

   The proposed rulemaking retained a Commonwealth requirement for all transporters to submit for approval a preparedness, prevention and contingency (PPC) plan if they utilize in-transit storage of hazardous waste for more than 3 days but no more than 10 days or if they transfer hazardous waste from one vehicle to another. Several commentators pointed out that the proposed rulemaking does not provide a deadline for Department review and approval of PPC plans. One commentator suggested that the Department should be allowed 30 days to complete the review, and if the review is not approved in that time frame, the plan should be considered approved.

   The Board agrees that the time frame for the review of an administratively complete plan should be limited. Review of transfer facility PPC plans will be added to the Department's Money Back Guarantee Program, which requires the Department to review listed submissions within a set time frame.

Transporter Compliance with the Manifest System--§§ 263a.20 and 263a.21

   The transporter manifest requirements have been clarified to require transporters to print or type their names on the manifest forms and to prohibit a transporter from accepting or transporting hazardous waste that does not accurately correspond with the information contained on the manifest form.

Bonding--§ 263a.32

   The provision that requires hazardous waste transporters to post bonds was included in the Commonwealth's hazardous waste regulations prior to this rulemaking. The proposed rulemaking did not include a change to this provision. One commentator felt that transporter bonds are unnecessary and that the requirement is unenforceable due to a United States Department of Transportation (USDOT) ruling which preempts it. The commentator also felt that the financial cost of possible environmental harm resulting from the transportation of hazardous waste is covered by the liability insurance requirements of the regulations.

   The Board has retained the bonding requirements for transporters based on a DC Circuit Court decision, Massachusetts v. US DOT, 93 F.3rd 890. In that case, the DC Circuit Court found that the Massachusetts bonding requirements for hazardous waste transporters were not preempted by Federal law. The Commonwealth's bonding requirements are similar to Massachusetts's, and therefore, the Board believes that Pennsylvania's bonding requirements are not preempted by Federal law.

   The bond is required by the SWMA, regardless of whether or not the environmental impairment risk is covered by liability insurance. In addition, the bond requirement has helped the Department receive timely and accurate paperwork and fee submission from the regulated community. Finally, the Department's ability to hold and forfeit a collateral bond provides incentives to transporters who owe money to the Department for civil penalties to pay those penalties.

Standards for Owners and Operators of Hazardous Waste Treatment, Storage and Disposal Facilities: Purpose and Scope--§§ 264a.1 and 265a.1

   The final-form regulations are intended to have the same scope as the proposed rulemaking, but the final-form regulations have fewer subsections than the proposed rulemaking. The final-form regulations have condensed the same information that was contained in the proposed rulemaking into fewer subsections. The final-form regulations also relocated §§ 264a.1(b)(6) and 265a.1(b)(6) (relating to incorporation by reference, purpose, scope and reference) to the specific provisions that deal with surface impoundments and landfills.

Module I Requirements--§§ 264a.13 and 265a.13

   The Board's proposed rulemaking retained the requirement for operators of TSD facilities to seek preapproval from the Department before accepting new waste streams. This requirement is known as the Module I or Mod I requirement. Several commentators opposed this requirement. The commentators stated that the requirement to obtain Department approval before accepting new waste streams exceeds Federal requirements, adds unnecessary costs and delays their ability to accept new wastes and customers. The commentators felt that the Mod I is unnecessary since it duplicates approvals granted through the permitting process. One commentator also expressed concern about the safety of confidential business information which the operator may be required to submit as part of the Source Reduction Strategy. One commentator requested that the Board retain the Generic Module I process or an equivalent process to expedite an owner and operator's ability to receive new waste streams and to reduce burdens on the owner and operator who receives consistent waste from various generators.

   In the final-form regulations, the Board has replaced the Mod I requirement with case specific individual permit conditions for TSD facilities operating under a permit issued under Chapter 264a. In place of the Mod I, § 264a.13 (relating to general and generic waste analysis) requires an operator to notify the Department before it accepts a new waste stream. The notification requirements will be contained in individual permits rather than in a regulation. Existing permitted facilities will be required to continue to use the Generic Mod I and the Mod I system unless they obtain a permit modification. The requirement for generators to submit their Source Reduction Strategy to the Department as part of this approval process has also been eliminated.

   The final-form regulations retain the Generic Mod I and Mod I requirements of § 265a.13 for interim status facilities. These facilities do not have permits or approved waste analysis plans in place, so the Mod I and Generic Mod I requirements in this section are necessary to ensure that the facilities are operating in a manner that is protective of human health and the environment. When these facilities apply for and receive operating permits, the Mod I and Generic Mod I requirements will no longer apply to them, if an alternative to the Mod I requirement has been included in the permit.

General inspection and construction inspection--§§ 264a.15 and 265a.15

   The Board proposed retaining the Commonwealth requirement for an operator to obtain prior Department approval before beginning construction on a new facility. One commentator felt that general inspection authority is well provided for elsewhere in law and regulation and that the regulation micro-manages the construction schedule. The commentator also felt that waiting for approvals will extend the time and cost of construction without commensurate benefit. The Board does not intend to manage the construction schedule for any facility, but the Board does believe that the Department should be fully aware of the proposed schedule. This permits the Department to be onsite for critical phases of construction (for example, installation of the liner and drilling of monitoring wells) that are essential to ensuring adequate protection of human health and the environment. Therefore, the Board has decided to retain this requirement.

Content of contingency plan--§§ 264a.52 and 265a.52

   The proposed rulemaking required operators to submit contingency plans under §§ 264a.52 and 265a.52. These provisions required that the operators write contingency plans that comply with Department guidance for contingency plans. Several commentators stated that requiring contingency plans to be submitted in accordance with Department guidance for contingency plans is unclear since it does not identify the Department guidance for contingency plans. The commentator suggested that the Board include guidance as part of the final-form regulations. The commentators also believed that this provision is vague since it requires the plan to be submitted ''at the time in the application process the Department prescribes.'' In addition, commentators stated that the Federal ''Integrated Contingency Plans'' are adequate and the commentators requested that the Department explain the insufficiency of the Federal requirements. Finally, one commentator asked the Department to include an estimate of the economic impact that the Department contingency plan will have on the regulated community.

   The Board has removed from the final-form regulations the requirement to comply with the Department's guidelines. The Department's guidelines were prepared as a guidance document to assist the regulated facilities by consolidating all emergency response plan information into one document. These guidelines are updated periodically with input from the various Department programs that require emergency response plans. The guidance document is not included in the final-form regulations, because it is not intended to be a regulation.

   The EPA, as the chair of the National Response Team (NRT), published the Integrated Contingency Plan Guidance in the June 5, 1996 Federal Register. The EPA's Guidance is intended to provide a mechanism for consolidating multiple plans that one facility may have prepared to comply with various regulations into one functional emergency response plan or integrated contingency plan (ICP). Emergency response plans prepared from either guidance would contain very similar information but with different formats, therefore, the Board has decided to allow operators to use either guidance document--the Department's or the EPA's--in preparing their contingency plans. Since the requirements for submitting contingency plans with permit applications are clearly defined in other areas of the regulations, the Board has deleted from the final-form regulations §§ 264a.52(2) and 265a.52(2).

Emergency procedures--§§ 264a.56 and 265a.56

   Several commentators stated that the emergency procedure requirements in §§ 264a.56 and 265a.56 (relating to emergency procedures) are unauthorized by State law, to the extent that they require an emergency coordinator to notify a Federal agency. In addition, several commentators noted that the Federal law requires notice to either a designated government official or the National Response Center, while the state provision requires notification to both the Department and the National Response Center. The commentators believe that notification should be given to the Department's regional offices rather than the Department's Central Office in Harrisburg, as the proposed rulemaking required. Other commentators suggested that it is more efficient to notify the Department's Central Office rather than requiring emergency coordinators to figure out which regional office to call. The commentators suggested reviewing the selection of the phone numbers to assure that Department is not duplicating the services and equipment of other Commonwealth entities. Finally, one commentator stated that the proposed rulemaking duplicated Federal language and that the duplicative language should be eliminated.

   The Department has reviewed the emergency notification requirements proposed in §§ 264a.56 and 265a.56 and 40 CFR 264.56 and 265.56 and agrees that it is unnecessary to include the requirement to notify the National Response Center given the incorporation by reference of that requirement in 40 CFR 264.56(d)(2) and 265.56(d)(2). The Board has changed the final-form regulations so that the emergency coordinator will continue to notify the Department by telephone, but the emergency coordinator may contact either the Department's regional office or Central office The Board has also deleted §§ 264a.56(2) and (3) and 265a.56(2) and (3) since they are duplicative of requirements incorporated by reference.

TSD Use of the Manifest System--§§ 264a.71 and 265a.71

   One commentator noted that the Board should not use the term ''six part manifest'' in its regulations since the maximum number of manifest copies required is six. Depending on the number of parties involved in handling hazardous wastes, the number of manifest copies could be less than six. Therefore, the Board has deleted this language from the final-form regulations and has clarified that the manifest used by TSD facilities should be either a Commonwealth manifest form or another form approved by the Department.

Biennial Reports--§§ 264a.75 and 265a.75

   Several commentators stated that the proposed rulemaking required operators to retain biennial reports for the life of the facility. They felt that this requirement created unnecessary paperwork without serving any practical purpose. The Board agrees and has changed the final-form regulations to conform to the Federal requirement that operators retain biennial reports for 3 years.

Groundwater Monitoring--§ 264a.97

   Several commentators stated that compliance and monitoring reports required by proposed § 264a.96 (relating to compliance period) exceed Federal requirements and add unnecessary costs to the regulated community. In addition, it was noted that there are no exemptions from these requirements; and therefore, the proposed rulemaking, unlike the Federal regulations, lacks flexibility that is necessary to deal with different conditions that exist at different sites.

   The monitoring and reporting requirements that the Board proposed in § 264a.96 (relating to compliance period) have been relocated to § 264a.97. These provisions are authorized in the Federal program by the incorporated Federal regulations found in 40 CFR 264.91, 264.97--264.99 However, the Federal regulations authorize these requirements through permit conditions rather than through a specific regulatory requirement. In addition, the provisions only apply to certain facilities that have releases to groundwater.

   The Board has determined that permit conditions are appropriate for requirements that are determined on a case-by-case basis rather than for requirements that are applicable to an entire class of facilities. This Commonwealth's seasonal, climatological and hydrological features, including a high water table, make it necessary to require all surface impoundments, land treatment units, landfills and, in some cases, waste piles operating in this Commonwealth to conduct the same type of groundwater monitoring and reporting. Consequently, the Board's final-form regulations continue to require certain monitoring and reporting requirements, by regulation rather than by permit condition. Specifically, the Board found that the proposed monitoring and reporting requirements found in proposed § 264a.96 are necessary for the protection of human health and the environment for the following reasons:

   1.  A quarterly interval between sampling events would allow for early detection of a potential problem and for the operator to respond to and correct a problem before significant wide-spread contamination would occur.

   2.  The frequency established provides a basis for valid statistical evaluation of groundwater data.

   3.  Quarterly data generated considers this Commonwealth's seasonal, temporal and spatial variability and climatological variations which are not adequately taken into account with less frequent monitoring.

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