PROPOSED RULEMAKING
ENVIRONMENTAL
QUALITY BOARD
[25 PA. CODE CHS. 260a AND 269a]
Host Municipality Fund Allocation
[30 Pa.B. 4816] The Environmental Quality Board (Board) proposes to amend Chapters 260a and 269a (relating to hazardous waste management system: general; and siting) to address concerns raised regarding the Host Municipality Fund Allocation. These concerns include clarification of the definition of a ''qualifying facility'' and simplification of the formula used to allocate funds if there is more than one ''qualifying facility'' in the Commonwealth in a single year. These amendments are set forth in Annex A.
This proposal was adopted by the Board at its meeting of June 20, 2000.
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 Management, P. O. Box 8471, Rachel Carson State Office Building, Harrisburg, PA 17105-8471, (717) 787-6239, or Kurt Klapkowski, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Information regarding submitting comments on this proposal appears in Section I 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 of Environmental Protection's (Department) website (http://www.dep.state.pa.us).
C. Statutory Authority
The proposed rulemaking is being made under the authority of sections 105, 402 and 501 of the Solid Waste Management Act (SWMA) (35 P. S. §§ 6018.105, 6018.402 and 6018.501); sections 303 and 305(e)(2) of the Hazardous Sites Cleanup Act (HSCA) (35 P. S. §§ 6020.303 and 6020.305(e)(2)); sections 5, 402 and 501 of The Clean Streams Law (35 P. S. §§ 691.5, 691.402 and 691.501); and section 1920-A of The Administrative Code of 1929 (71 P. S. §§ 510-20). Under sections 105, 402 and 501 of the SWMA, the Board has the power and duty to adopt rules and regulations concerning the storage, treatment, disposal and transportation of hazardous waste that are necessary to protect the public's health, safety, welfare and property, and the air, water and other natural resources of this Commonwealth. Sections 303 and 305(e)(2) of HSCA grant the Board the power and duty to promulgate regulations to carry out the provisions of that act and establish an allocation formula for one-time payments to host municipalities, respectively. Sections 5, 402 and 501 of The Clean Streams Law grant the Board the authority to adopt regulations that are necessary to protect the waters of this Commonwealth from pollution. Section 1920-A of The Administrative Code of 1929 grants the Board the authority to promulgate rules and regulations that are necessary for the proper work of the Department.
D. Background and Purpose
The Department is proposing to amend Chapters 260a and 269a to simplify and clarify the Host Municipality Fund Allocation. Section 305 of HSCA establishes a Host Municipalities Fund. The purpose of this Fund is to provide financial assistance to municipalities that host certain categories of commercial hazardous waste treatment, storage or disposal facilities. Section 305 of HSCA contemplates two distinct types of financial assistance. The first is reimbursement to a host municipality for, among other things, the costs of training and employing host municipality inspectors.
The second type of financial assistance is the focus of this proposed rulemaking. This assistance consists of a one-time payment to municipalities for each new or expanded commercial facility permitted after December 18, 1988 (the effective date of HSCA) which fulfills hazardous waste treatment or disposal capacity needs as identified in the Pennsylvania Hazardous Waste Facilities Plan. Only those municipalities that host a facility that meets the definition of a ''qualifying facility'' are eligible for this financial assistance.
There has been some confusion and contention over the interpretation of the term ''qualifying facility.'' The term is currently defined in § 260a.10 (relating to definitions). The Department is proposing to modify the definition to clarify the term. The proposal breaks the definition into new and existing facilities. The definition of new facility is intended to clarify that the facility is newly permitted and not newly regulated. Examples of facilities that would not meet the proposed ''qualifying facility'' definition include an existing facility that now requires a permit because of a regulatory change or a facility that operated under interim status. The Department has consistently implemented the one-time payment program in this way since passage of HSCA in 1988, but there has been confusion in some host municipalities that the issuance of a permit to a facility that operated prior to 1988 caused that facility to be a newly permitted facility. The Department believes that this is consistent with the intent of the General Assembly in creating the Host Municipalities Fund in HSCA.
The definition of existing facility clarifies that an existing facility may qualify if a larger volume of hazardous waste is allowed through a permit modification. In addition, the proposal moves the definition to Chapter 269a since it is only used in that chapter and not generally in the hazardous waste regulations.
The proposal will modify the allocation formula for distribution of the one-time payment to remove the Hazardous Waste Site Ranking System (HRS) established by the United States Environmental Protection Agency (EPA) in Appendix A of 40 CFR 300 (relating to uncontrolled hazardous waste site ranking system; a users manual) as a factor in determining the proper allocation when there is more than one qualifying facility in a year. This will result in a less costly determination, since an HRS report is expensive to prepare. It will also result in a more appropriate determination, since the HRS is designed to rank impacts from uncontrolled releases under CERCLA and not permitted facilities, which should have control of hazardous wastes.
The Solid Waste Advisory Committee (SWAC) reviewed the proposal at its March 9, 2000, meeting and recommended that the Board approve the proposed rulemaking as written. A listing of the members of SWAC may be obtained from the contact persons listed in Section B of this Preamble.
E. Summary of Regulatory Requirements
Sections 260a.10 and 269a.1. Definitions.
The Board is proposing to move the definition of ''qualifying facility'' from § 260a.10 to the definitions section found in § 269a.1. The definition is expanded to address new and existing facilities in separate subsections. For existing facilities, the definition is clarified to apply to facilities that are authorized to accept a larger volume of hazardous waste through permit modification after December 18, 1988.
Section 269a.221. Allocation of the Fund.
The proposal modifies the allocation formula for the distribution of the one-time payment to replace the Hazardous Waste Ranking System established by EPA in Appendix A of 40 CFR 300 with a simpler, less costly and more appropriate method.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the proposed rulemaking.
Benefits
The proposed rulemaking will clarify the eligibility requirements for a host municipality to receive a one-time payment from the Host Municipalities Fund. This will reduce confusion and contention over the eligibility issue. In addition, it will modify the allocation formula on the distribution of the one-time payment to replace the EPA's HRS with a simpler, less costly and more appropriate method.
Compliance Costs
The proposed rulemaking is not expected to impose any additional costs on the regulated community, nor will it result in increased costs of implementation for the Commonwealth or local governments.
Compliance Assistance Plan
Because of the limited applicability of this proposed rulemaking, the Department will be able to specifically target compliance assistance and outreach efforts regarding one-time payments under the Host Municipalities Fund.
Paperwork Requirements
There will be no additional paperwork requirements as a result of the proposed amendment.
G. Sunset Review
These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 5, 2000, the Department submitted a copy of the proposed amendments to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In addition to submitting the proposed amendments, the Department has provided IRRC and the Committees with a copy of a detailed regulatory analysis form prepared by the Department in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has any objections to any portion of the proposed amendments, it will notify the Department within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria which have not been met by that portion of the proposed amendments to which an objection is made. The Regulatory Review Act specifies detailed procedures for review by the General Assembly and the Governor of objections raised by IRRC prior to final publication of the amendments by the Department.
I. Public Comments
Written Comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed amendments to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477 (express mail: Rachel Carson State Office Building, 15th Floor, 400 Market Street, Harrisburg, PA 17105-2301). Comments received by facsimile will not be accepted. Comments, suggestions or objections must be received by October 16, 2000 (within 30 days of publication in the Pennsylvania Bulletin). Interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by October 16, 2000 (within 30 days following publication in the Pennsylvania Bulletin). The one-page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final regulations will be considered.
Electronic Comments--Comments may be submitted electronically to the Board at RegComments@dep.state.pa.us and must also be received by the Board by October 16, 2000. A subject heading of the proposal and a return name and address must be included in each transmission. If an acknowledgement of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.
JAMES M. SEIF,
ChairpersonFiscal Note: 7-354. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart D. ENVIRONMENTAL HEALTH AND SAFETY
ARTICLE VII. HAZARDOUS WASTE MANAGEMENT
CHAPTER 260a. HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
Subchapter B. DEFINITIONS § 260a.10. Definitions.
A term defined in this section replaces the definition of the term in 40 CFR 260.10, or, in situations for which no term exists in 40 CFR 260.10, the term shall be defined in accordance with this section. The substitution of terms in § 260a.3 (relating to terminology and citations related to Federal regulations) does not apply to the incorporated definition of ''EPA region,'' ''State,'' ''United States,'' ''Administrator'' and ''Regional Administrator.''
* * * * * [Qualifying facility--A commercial hazardous waste treatment or disposal facility, or expansion to an existing hazardous waste treatment or disposal facility, which was permitted after December 18, 1988, is operating, and fulfills the commercial hazardous waste treatment or disposal needs identified in the Pennsylvania Hazardous Waste Facilities Plan.]
* * * * *
CHAPTER 269a. SITING
Subchapter A. SITING HAZARDOUS WASTE TREATMENT AND DISPOSAL FACILITIES
GENERAL PROVISIONS § 269a.1. Definitions.
(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Qualifying facility--Is either:
(i) A new commercial hazardous waste treatment or disposal facility, which did not exist as a solid waste or recycling facility prior to December 18, 1988, that:
(A) Has been issued a written permit after December 18, 1988.
(B) Fulfills the hazardous waste treatment or disposal capacity needs identified in the hazardous waste facilities plan.
(C) Accepts hazardous waste under the conditions of the permit.
(ii) An existing permitted commercial hazardous waste treatment or disposal facility which was permitted before December 18, 1988, that:
(A) Has been issued a written modification to its permit to expand the facility after December 18, 1988.
(B) Fulfills the hazardous waste treatment or disposal capacity needs identified in the hazardous waste facilities plan.
(C) Accepts a larger volume of hazardous waste than was authorized in the permit prior to modification to expand the facility.
* * * * *
Subchapter C. HOST MUNICIPALITY
FUND ALLOCATION
ALLOCATION § 269a.221. Allocation of the Fund.
* * * * * (d) When more than one qualifying facility is identified, the Department will allocate the available moneys using the following [formula and method of calculation] criteria:
[(1) The Hazardous Waste Site Ranking System established by the EPA, under Appendix A of 40 CFR 300 (relating to uncontrolled hazardous waste site ranking system; a users manual) will be used to assign a numerical value to each qualifying facility ranging from 1 to 100, considering:
(i) The toxicity, mobility and other characteristics of the hazardous waste.
(ii) The proximity of the facility to persons or natural resources which would be endangered by the escape of the hazardous waste from the facility.
(2) For scoring purposes, an assigned value of 1 will be used for the observed release and containment factors in the hazard ranking system calculation.]
[(3)] (1) * * *
[(4)] (2) * * *
[(5)] (3) * * *
[(6)] (4) The numerical values derived in paragraphs (1)--[(5)] (3) will be [multiplied] added together to obtain a [rating] score for the qualifying facility.
[(7)] (5) The [rating] scores will then be compared and a pro rata share of the available Fund moneys will be allocated to the host [municipiality] municipality based on these scores.
[(8)] (6) * * *
[Pa.B. Doc. No. 00-1589. Filed for public inspection September 15, 2000, 9:00 a.m.]
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