RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 271--273, 277, 279, 281 AND 283--285]
Municipal Waste
[30 Pa.B. 6685] The Environmental Quality Board (Board) by this order amends Chapters 271--273 and 277--285. The amendments are the result of the Department of Environmental Protection (Department) evaluating the municipal waste regulations promulgated in 1988, 1991 and 1992 in accordance with the Secretary of the Department's Regulatory Basics Initiative (RBI) and the Governor's Executive Order 1996-1 (relating to regulatory review and promulgation), which required all departments to reevaluate existing regulations based on specific criteria.
This order was adopted by the Board at its meeting of September 19, 2000.
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final-form rulemaking.
B. Contact Persons
For further information contact William F. Pounds, Chief of the Division of Municipal and Residual Waste, P. O. Box 8472, Rachel Carson State Office Building, Harrisburg, PA 17105-8472, (717) 787-7381; or Kristen M. Campfield, 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 proposal is available electronically through the Department's website (http://www.dep.state.pa.us).
C. Statutory Authority
The final-form rulemaking is being made under the authority of the following:
The Solid Waste Management Act (SWMA) (35 P. S. §§ 6018.101--6018.1003), which in section 105(a) of the SWMA (35 P. S. § 6018.105(a)) grants the Board the power and the duty to adopt the rules and regulations of the Department to carry out the provisions of the SWMA.
The Clean Streams Law (CSL) (35 P. S. §§ 691.1--691.1001), which in section 5(b) of the CSL (35 P. S. § 691.5(b)) grants the Board the authority to formulate, adopt, promulgate and repeal the rules and regulations as are necessary to implement the provisions of the CSL and which in section 402 of the CSL (35 P. S. § 691.402) grants the Board the authority to adopt rules and regulations requiring permits or establishing conditions under which an activity shall be conducted for any activity that creates a danger of pollution of the waters of this Commonwealth or that regulation of the activity is necessary to avoid such pollution.
The Municipal Waste Planning, Recycling and Waste Reduction Act (Act 101) (53 P. S. §§ 4000.101--4000.1904), which in section 302 of Act 101 (53 P. S. § 4000.302) gives the Board the power and duty to adopt the regulations of the Department to accomplish the purposes and carry out the provisions of Act 101.
The Land Recycling and Environmental Remediation Standards Act (Act 2) (35 P. S. §§ 6026.101--6026.909), which in section 104(a) of Act 2 (35 P. S. § 6026.104(a)) authorizes the Board to adopt Statewide health standards, appropriate mathematically valid statistical tests to define compliance with Act 2 and other regulations that may be needed to implement the provisions of Act 2. Section 301(c) of Act 2 (35 P. S. § 6026.301(c)) authorizes the Department to establish by regulation procedures for determining attainment of remediation standards when practical quantification limits set by the United States Environmental Protection Agency (EPA) have a health risk that is greater than the risk levels established in Act 2. Section 303(a) of Act 2 (35 P. S. § 6026.303(a)) authorizes the Board to promulgate Statewide health standards for regulated substances for each environmental medium and the methods used to calculate the Statewide health standards.
The Infectious and Chemotherapeutic Wastes Law (ICWL) (35 P. S. §§ 6019.1--6019.6), which in sections 2(b) and 4(b) of the ICWL (35 P. S. §§ 6019.2(b) and 6019.4(b)) grants the Department the authority to propose regulations as may be necessary or appropriate to accomplish the purposes of the ICWL and grants the Board the authority to adopt rules and regulations of the Department to accomplish the purposes and to carry out the provisions of the ICWL.
The Administrative Code of 1929 (Administrative Code) (71 P. S. §§ 510-5, 510-17 and 510-20), which in section 1905-A of the Administrative Code authorizes the Department to require applicants for permits and permit revisions to provide written notice to municipalities, in section 1917-A of the Administrative Code authorizes and requires the Department to protect the people of this Commonwealth from unsanitary conditions and other nuisances, including any condition which is declared to be a nuisance by any law administered by the Department, in section 1920-A of the Administrative Code grants the Board the power and the duty to formulate, adopt and promulgate the rules and regulations as may be determined by the Board for the proper performance of the work of the Department and in section 1937-A of the Administrative Code (71 P. S. § 510-37) revises the requirements for grant applications for development and implementation of municipal recycling programs.
The Small Business and Household Pollution Prevention Program Act (SBHPPP) (35 P. S. §§ 6029.201--6029.209), which in section 207 grants the Board the power to promulgate regulations as needed to implement the SBHPPP.
Section 15(a) of the act of November 26, 1997 (P. L. 530, No. 57) (Act 57), repeals section 512(b) of Act 101 pertaining to permit review periods.
The revisions to § 285.219 (relating to transporting foodstuffs and feedstuffs in vehicles used to transport waste) are made under the previously cited authorities and also under the authority of 75 Pa.C.S. (relating to Vehicle Code) (Vehicle Code), which in section 4909(e) of the Vehicle Code (relating to transporting foodstuff in vehicles used to transport waste) grants the Board the power and duty to adopt regulations, if necessary, to carry out the requirements of section 4909 of the Vehicle Code.
The provisions of 27 Pa.C.S. §§ 6101--6133 (relating to Environmental Stewardship and Watershed Protection Act) (ESWPA), which in section 6105(g) of the ESWPA (relating to agencies), grants the Board the authority to promulgate regulations necessary to carry out the purposes of the ESWPA.
The Radiation Protection Act (RPA) (35 P. S. §§ 7110.101--7110.703), which, in sections 301 and 302 of the RPA (35 P. S. §§ 7110.301 and 7110.302), grants the Department the authority to propose regulations and the Board the authority to adopt the Department's regulations to accomplish the purposes and carry out the provisions of the Radiation Protection Act.
D. Background and Summary
The municipal waste program in this Commnwealth was developed under the SWMA and Act 101. The SWMA authorizes the Department to develop and promulgate regulations to manage municipal waste. Act 101 authorizes the Department to regulate municipal waste planning, which includes the development and implementation of county municipal waste management plans, and to administer the planning, recycling and waste reduction programs under Act 101 and the regulations promulgated under it. Under these acts, municipal waste generally consists of waste resulting from operation of residential, municipal, commercial or institutional establishments and from community activities, and includes non-residual and nonhazardous waste sludge from a municipal, commercial or institutional water supply treatment plant, wastewater treatment plant or air pollution control facility. Municipal waste does not include source-separated recyclable materials. The municipal waste program also includes the management of infectious and chemotherapeutic waste.
At 18 Pa.B. 1681 (April 8, 1988), the Department promulgated a comprehensive set of regulations for the management of municipal waste. At 22 Pa.B. 4185 (August 7, 1992), the Department promulgated revisions to these regulations to address infectious and chemotherapeutic waste management. At 21 Pa.B. 4179 (September 14, 1991), the Department promulgated revisions concerning financial assurances for municipal waste management. Regulations for municipal waste planning, recycling and waste reduction were promulgated at 22 Pa.B. 5101 (October 10, 1992). Regulations concerning general permits for the beneficial use of municipal waste and the land application of sewage sludge, as well as other regulatory changes, were promulgated at 27 Pa.B. 521 (January 25, 1997). This comprehensive final-form rulemaking includes revisions to regulations promulgated under each of these rulemakings.
The Commonwealth's municipal waste landfill program is a Federally-approved program under the EPA ''Subtitle D'' Criteria for Municipal Solid Waste Landfills (40 CFR Part 258) (Subtitle D criteria), which became effective October 9, 1993. The EPA Subtitle D criteria contain minimum National criteria for the location, design, operation, cleanup and closure of municipal waste landfills. The Subtitle D criteria give a State flexibility in implementing the criteria if the State has an EPA-approved program, as the Commonwealth does. The Commonwealth's regulations are at least as stringent as the Subtitle D criteria. In several instances in the final-form rulemaking, revisions were made to regulations that are more stringent than the Subtitle standards. Where this occurred, a justification for the regulation's stringency was provided in the ''Summary of Regulatory Requirements.'' A list of the regulatory revisions that include requirements that are more stringent than the Subtitle D criteria is as follows:
§ 271.342 (relating to final closure certification).
Chapter 273, Subchapter B (relating to municipal waste landfills-application requirements):
§ 273.202 (relating to areas where municipal waste landfills are prohibited).
§ 273.203 (relating to certification).
§ 273.211 (relating to signs and markers).
§ 273.214 (relating to measurement and inspection of waste).
§ 273.218 (relating to nuisance minimization and control).
§ 273.221 (relating to daily volume).
§ 273.232 (relating to daily cover).
§ 273.233 (relating to intermediate cover and slopes).
§ 273.234 (relating to final cover and grading).
§ 273.251 (relating to scope and requirements).
§ 273.252 (relating to general limitations).
§ 273.253 (relating to subbase).
§ 273.255 (relating to leachate detection zone).
§ 273.258 (relating to leachate collection system within protective cover).
§ 273.275 (relating to leachate collection and storage).
§ 273.276 (relating to leachate analysis and sludge handling).
§ 273.283 (relating to standards for wells and casing of wells).
§ 273.284 (relating to sampling and analysis).
§ 273.286 (relating to groundwater assessment plan).
§ 273.287 (relating to abatement plan).
§ 273.291 (relating to mineral resources).
§ 273.292 (relating to gas control and monitoring).
§ 273.302 (relating to emergency equipment).
§ 273.311 (relating to daily operational records).
For a detailed description and justification of the standards more stringent than EPA Subtitle D, please refer to these sections in the Preamble to the proposed rulemaking, 28 Pa. B. 4319 (August 29, 1998) and in Section E of this Preamble.
This rulemaking was developed in response to the Department Secretary's RBI and the Governor's Executive Order 1996-1, which required all departments to reevaluate existing regulations. The RBI requires evaluation of regulations based on the following criteria: agency requirements are no more stringent than standards imposed by Federal law unless justified by a compelling and articulable Pennsylvania interest or authorized by state law; requirements are eliminated which are no longer necessary or redundant; performance-based requirements are encouraged; new green technologies are encouraged; a pollution prevention approach is supported; and information is prepared in plain, simple, clear and concise language.
The RBI review process invited the regulated community, local governments, environmental interests and the general public to help the Department identify specific regulations which should be changed based on the RBI criteria. Input was solicited from the Solid Waste Advisory Committee (SWAC), the Pennsylvania Chamber of Business and Industry, the Pennsylvania Waste Industries Association, the Solid Waste Association of North America, and numerous other groups, individual companies and the public. The opportunity for involvement in this process was noticed in the Pennsylvania Bulletin with a 90-day comment period. Evaluation of the municipal waste regulations under the RBI criteria resulted in the Department's preparation of eight separate reports. These reports were made available to the general public, the regulated community, local governments and environmental interest groups. In addition, the Department prepared a Comment and Response Document to address the comments received during the RBI evaluation and to identify which regulations would be revised in response to the comments.
In addition to the process previously outlined for the RBI evaluation, the Board held three public hearings and provided a 60-day period of public comment on the proposed regulations. Notice of the proposed rulemaking was published at 28 Pa. B. 4319 (August 29, 1998). During the public comment period of this rulemaking, the Department received 341 comments from 45 commentators. As a result of the comments, the Department made well over 100 changes to the final-form rulemaking.
The final-form regulations also reflect several of the recommendations made in 1996 by the Municipal Waste Stakeholders Group, a 28-member group of recyclers, haulers, landfill operators, county waste authorities, municipal and county government representatives, and environmental and public interest groups, formed to discuss municipal waste issues and cosponsored by the Department and the County Commissioners Association of Pennsylvania. In addition, the final-form regulations clarify the application of the Act 2 remediation standards, which became effective on August 16, 1997, to municipal waste facilities that ceased accepting waste prior to the effective date of the Federal Subtitle D criteria and the application of the Subtitle D standards for facilities that ceased or cease accepting waste after that date.
The final-form regulations include various provisions for protecting the public health and safety from radioactive materials that occasionally arrive at municipal waste facilities. Language was included in the proposed rulemaking that would have required the facilities to screen and monitor waste for radioactive materials. Public comments were received on the proposal. The Department also proposed a Guidance Document on Radioactivity Monitoring at Solid Waste Processing and Disposal Facilities, document no. 250-3100-001, which received extensive public comment. The Department has prepared a comment/response document for the guidance document. The Department met a number of times with representatives of several components of the waste industry, and on several occasions with SWAC, to discuss its proposed approach. The Department discussed the guidance document with SWAC at its September 9, 1999, and June 8, 2000, meetings. Based on the input the Department received from SWAC and the commentators on the proposed rulemaking and the guidance document, the Department revised the municipal waste regulations and guidance concerning radioactive materials and monitoring. Provisions were placed in various sections throughout the rulemaking to specify the prohibitions and restrictions on acceptance of this type of material. Implementation of the rulemaking will be assisted by the detailed guidance document.
The Department returned to SWAC on July 13, 2000, to address two specific concerns raised by a SWAC member at the June 8th meeting. The SWAC member had expressed concern that short-lived radioactive material from a patient having undergone a medical procedure would unnecessarily cause alarms to trigger frequently. The final-form regulations authorize such material to be disposed in waste facilities upon case-by-case permission from the Department or upon advance authorization in the facility's approved radiation protection action plan, using the general concepts provided in the Department's guidance document to protect the facility workers, the public health and safety and the environment. The same SWAC member expressed concern that grass clippings may cause an alarm to trigger as the result of fertilizer uptake. Some fertilizers may contain naturally occurring radioactive material. The Department feels that it is unlikely that the uptake of and constituents in fertilizer would cause a monitor to alarm. If this should occur, however, the material would be considered naturally occurring radioactive material (NORM), and as such could be approved for disposal or processing at the facility.
On March 11, 1999, and July 8, 1999, the Department briefed SWAC on the comments that were received on the entire municipal waste proposed rulemaking. The Department met with SWAC to present final changes to the regulations on June 8, 2000, at which time SWAC voted unanimously to approve the regulations.
E. Summary of Comments and Responses on the Proposed Rulemaking and Changes Made in the Final Rulemaking
CHAPTER 271. MUNICIPAL WASTE MANAGEMENT
GENERAL PROVISIONS
Subchapter A. GENERAL § 271.1. Definitions.
''Airport.''
A definition of ''airport'' was added to the final-form regulations to clarify the types of landing areas that are implicated in the siting restrictions, environmental assessment, permit issuance or denial criteria and notice requirements that are included in the final regulations. The definition cross references the Department of Transportation's regulations.
''Aquifer.''
One commentator suggested that the definition of ''aquifer'' be amended to be based upon the ability of a geological formation to yield ''significant quantities of ground water to wells or springs.'' The Board declined to make this amendment because the current definition of ''aquifer'' was constructed to reflect a need to prevent groundwater degradation in water-bearing zones that are capable of yielding sufficient water for monitoring purposes, not just areas that have the ability to yield ''significant'' quantities. A water-bearing zone that is capable of being monitored has the potential to degrade a resource that may be used as an aquifer by an end user. Even formations that yield small volumes of groundwater to a well (monitoring or otherwise) have the potential to discharge to surface water and impact its receptors. Also, lateral variations in permeability of a formation may allow groundwater contamination to migrate into higher producing water-bearing zones that are used for well production.
''Association.''
A definition of ''association'' was added to the final-form regulations to clarify the meaning of that term as used in these regulations, particularly with regard to the identification of interests and compliance history requirements associated with permit applications. The definition is taken from 15 Pa.C.S. § 102 (relating to definitions).
''Autoclave.''
One commentator, who had no specific changes for the proposed definition of autoclave, suggested that the Department develop technical guidance that clarifies the phrases ''specified temperatures'' and ''retention times'' as used in the definition. The commentator stated that other states, such as Ohio and New York, have adopted detailed regulatory operating requirements for autoclaves that include specific temperatures and retention times necessary to render the waste safe, unusable and unrecognizable. The Board does not believe comprehensive operating standards are necessary for the operation of autoclaves. The current regulations are performance oriented and focus on the use of biological indicators to ensure adequate disinfecting of autoclaves and other types of infectious waste processing facilities. The Board believes that a performance-based scheme is still the best approach.
''Autofluff.''
The Board added a definition of ''autofluff'' to the final-from regulations in response to a commentator's request for a definition to support the use of the term in § 271.2 (relating to scope).
''Byproduct material,'' ''NARM,'' ''NORM,'' ''radioactive material,'' ''source material,'' ''special nuclear material,'' ''TENORM'' and ''transuranic radioactive material.''
All chapters of this final-form rulemaking, except Chapter 285 (relating to storage, collection and transportation of municipal waste), contain provisions designed to protect facility workers, the general public and the environment from the dangers associated with radioactive materials if these materials are unlawfully brought to a municipal waste processing or disposal facility. To facilitate understanding of these provisions, the final rulemaking contains definitions of eight terms relating to radioactive materials that appear in these provisions.
The terms ''byproduct material'' and ''source material'' are defined by incorporating by reference their Federal definitions from the Code of Federal Regulations. The term ''special nuclear material'' is also defined by incorporating by reference its Federal definition, but an explanation of several terms in the Federal definition was necessary to relate them to the Commonwealth's regulations.
The term ''NARM'' is defined as naturally occurring or accelerator-produced radioactive material. The term does not include byproduct, source or special nuclear material. The definition of ''NARM'' is taken from 25 Pa. Code § 215.2 (relating to definitions).
The term ''NORM'' is defined as naturally occurring radioactive material. NORM is a nuclide which is radioactive in its natural physical state--that is, not man-made--but does not include source or special nuclear material. The definition of NORM is taken from § 215.2 (relating to definitions).
The term ''radioactive material'' is defined as a substance, which spontaneously emits alpha or beta particles or photons (gamma radiation) in the process of decay or transformation of the atom's nucleus. This definition is taken from Document 250-3100-001 and taken from § 215.2.
The term ''TENORM'' is defined as technologically enhanced naturally occurring radioactive materials. TENORM is NORM which has been altered by human activity in a manner that results in increased radiation exposure to people. The alteration could be a chemical or physical change in form, relocation of the NORM or removal of barriers that isolated the NORM.
The term ''transuranic radioactive material'' is defined as material contaminated with elements that have an atomic number greater than 92, including neptunium, plutonium, americium and curium.
''Clean fill.''
While revisions to the definition of ''clean fill'' were included in the proposed rulemaking, the Department decided not to make changes to the final-form rulemaking on issues relating to clean fill. Hence, the definition of ''clean fill'' appears in this final-form rulemaking unchanged from the current Pennsylvania Code version. Based on the recent release of the safe fill package for public comment, and an alternative proposal submitted by the Cleanup Standards Scientific Advisory Board, the Department intends to continue its evaluation of recommendations received. The Department will propose a new rulemaking package to address issues relating to clean fill.
''Dredged material.''
On final-form rulemaking, the Board added language to clarify that material removed or dredged from an impoundment that received solid waste does not fall within the meaning of ''dredged material''. Dredged material typically refers to material excavated from waterways and ponds.
''Environmental Stewardship and Watershed Protection Act.''
The Board included the citation for 27 Pa.C.S. §§ 6101--6113 (relating to the Environmental Stewardship and Watershed Protection Act) in this section, as this new law is referenced in a number of places in the final-form regulations.
''FAA.''
The final-form regulations include a definition of ''FAA,'' which is the Federal Aviation Administration of the United States Department of Transportation. This definition was added because new restrictions on the construction and operation of landfills near airports involve the FAA.
''Facility.''
Two commentators suggested that the definition of ''facility'' should not include the term ''beneficial use.'' The Board disagreed and left the definition as proposed. Materials being beneficially used are still considered waste and the area where the use occurs needs to be considered a facility for inspection purposes.
''Home self-care.''
Two commentators objected to the definition of ''home self-care.'' The objection is that, because of the growth in home healthcare, an exemption from the definition of infectious waste for wastes generated in the home would allow used sharps and other potentially infectious waste items to be disposed in the regular trash stream. The Board added this definition for clarification purposes only. The definition of infectious waste has included an exemption for in-home generated infectious waste since 1988. However, the Department still recommends and encourages home healthcare providers to collect these wastes they generate through in-home care and transport the waste to their hospital or home-base for proper disposal. The Board declined to make additional changes to the definition of ''home self-care.''
''Leachate.''
Two commentators suggested that the definition of ''leachate'' be amended to conform to the Federal definition, but the Board declined this suggestion because the current definition has been in effect since 1988 and provides an accurate description.
''Mobile infectious waste processing facility.''
The Board added this definition of a ''mobile processing facility'' to clarify that the Department may issue general permits for both mobile and stationary infectious waste processing facilities.
''Municipal-like residual waste.''
The Board deleted the proposed definition of ''municipal-like residual waste'' in the final-form rulemaking because commentators objected that the term was confusing and raised concerns about unacceptable wastes becoming authorized at municipal waste facilities. The term was likewise deleted from § 271.611 (relating to chemical analysis of waste).
''Perennial stream.''
Three commentators suggested that a flow-based definition of ''perennial stream'' should replace the biological-based definition. The Board declined to make this change because the current definition is based on technical criteria, is less arbitrary in determining if a stream is perennial and has successfully been used in other Department programs. The definition now conforms to the definition for perennial stream in the residual waste regulations.
''Regional water table.''
One commentator suggested a change to the definition of ''regional water table.'' The Board did not make this change because the current definition adequately defines the term.
''Related party.''
Two commentators suggested that the definition of ''related party'' be limited to persons with the responsibility or ability to direct or control activities relating to the processing or disposal of solid waste at a facility. The Board declined to make this change because even a party without the ability to direct or control activities can still significantly affect them.
''Risk-based standard.''
On final-form rulemaking, the Board deleted the reference to ''primary'' MCLs to be consistent with the use of this term in the groundwater abatement sections of these regulations.
''Seasonal high water table.''
Two commentators suggested that the definition of ''seasonal high water table'' be changed to conform to the Federal regulations. The Board declined to make this change because it would create unnecessary inconsistencies in the State program.
''Secondary contaminants.''
On final-form rulemaking, the Board added a definition for ''secondary contaminants,'' which refers to a substance for which a secondary MCL exists, and no lifetime health advisory level exists. This definition was added to define contaminants that may qualify, at closure, for an alternative point of compliance beyond the property boundary.
''Special handling waste.''
Dredged material is being added to the definition of ''special handling waste'' because the variability of the physical and chemical characteristics may necessitate additional management considerations.
''Thermal processing.''
The Board added the definition to clarify that the term ''thermal processing'' does not include incineration and autoclaving type facilities. This needed to be clarified, particularly for biological indicator spore monitoring found in the former § 283.402 (relating to infectious waste monitoring requirements), which is now § 284.321 of the final-form regulations.
''Unrecognizable infectious waste.''
One commentator suggested that the size limitation for processed infectious waste under the definition of ''unrecognizable infectious waste'' be changed from a maximum size of 3/4 inch to an average size of 3/4 inch. The Board declined to make a change to this requirement because using an average size of 3/4 inch, as opposed to a maximum size of 3/4 inch, may result in recognizable waste satisfying this definition. The Board believes the maximum size specification is the best approach to ensure that the processed waste is unrecognizable.
''Waste.''
The Board amended the definition of ''waste'' in the final-form rulemaking to clarify that as a general rule a material whose original purpose has been completed and which is directed to a beneficial use facility or is otherwise beneficially used is a waste. This amendment corrects an oversight by which the regulation had excluded materials that were beneficially used in certain circumstances from the definition of ''waste'' without having expressly included them. The final language makes clear the original intention of the definition. The exclusions remain in the definition.
''Wetlands.''
The Board amended the definition of ''wetlands'' in the final-form rulemaking to make it consistent with the definition in § 105.1 (relating to definitions).
§ 271.2. Scope.
The Board updated subsection (a) by adding new Chapter 284 (relating to infectious and chemotherapeutic waste) to the list of chapters.
Subsection (b) lists wastes that are to be managed under Article VIII (relating to municipal waste) and regulated as if the wastes are municipal waste, regardless of whether the waste is a municipal waste or residual waste. The proposed revision to subsection (b)(3) had revised the phrase: ''Sewage sludge, including sewage sludge that is mixed with other residual waste'' to ''Sewage sludge, including sewage sludge that is mixed with a small quantity of residual waste.'' This change was designed in part to remove the connotation that sewage sludge was residual waste, because it is not. Sewage sludge is, by definition, municipal waste. In mixtures of sewage sludge and residual waste, the sewage sludge retains its character as municipal waste and the residual waste retains its character as residual waste. Two commentators objected to allowing sewage sludge mixed with ''a small quantity of residual waste'' to be managed as municipal waste because of concerns over toxicity and volume of the residual waste. To address these concerns, the Board deleted subsection (b)(3) entirely and addressed mixtures of sewage sludge and residual waste in greater detail in Subchapter I (relating to beneficial use). Under the final-from regulations, mixtures of sewage sludge and residual waste will only be permitted under Subchapter I, which now incorporates the relevant safeguards of Subchapter J (relating to beneficial use of sewage sludge by land application) and provisions concerning residual waste.
A new category of waste--waste from land clearing, grubbing and excavation, including trees, brush, stumps and vegetative material--has been added in subsection (b)(4) to the list of wastes that are subject to the municipal waste regulations. This waste primarily has characteristics that are generally found in the municipal waste stream.
One commentator asked for an expanded description of the term ''autofluff'' or a definition in § 271.1. In response, the Board defined the term in § 271.1.
§ 271.4. Computerized data submission.
A new subsection (b) has been added in the final-form rulemaking to authorize the Department to require data submissions electronically or on magnetic or optic storage media in a format specified by the Department. The language of subsection (b) was taken from § 287.4 (relating to computerized data submission) of the residual waste regulations and the title of this section was changed to read the same as the title to § 287.4.
A new subsection (c) was added to authorize the Department specifically to require a different scale on maps, reports and plans that are submitted electronically or on magnetic or optic storage media. Maps, reports and plans submitted in this format are capable of showing much more detail than paper maps, reports and plans, and the more detailed information can be accessed and used in many useful new ways when submitted in this format.
Subchapter B. GENERAL REQUIREMENTS FOR PERMITS AND PERMIT APPLICATIONS
REQUIREMENT § 271.101. Permit requirement.
While the proposed rulemaking proposed deletion of subsection (b)(3) concerning clean fill, the Department decided not to make changes to the final-form rulemaking on issues relating to clean fill. Hence, subsection (b)(3) appears in this final-form rulemaking unchanged from the current Pennsylvania Code version. Based on the recent release of the safe fill package for public comment, and an alternative proposal submitted by the Cleanup Standards Scientific Advisory Board, the Department intends to continue its evaluation of recommendations received. The Department will propose a new rulemaking package to address issues relating to clean fill.
On final-form rulemaking, the Board retained the permit exemption for activities relating to the use of waste from land clearing, grubbing and excavation, including trees, brush, stumps and vegetative material if the waste is not hazardous. Due to problems associated with mismanagement of these materials, however, the final regulations include mandatory implementation of best management practices. To assist persons who use this material, the Department will prepare a manual describing best management practices. A person may identify for Departmental approval best management practices, on a case-by-case basis, other than those identified in the manual.
On final-form rulemaking, new language has been added to subsection (c) that clarifies circumstances when the Department may require a person or municipality to obtain a permit, regardless of the exemptions outlined in subsection (b), based on harmful conduct.
§ 271.102. (Reserved).
This section has been relocated to § 284.2.
§ 271.103. Permit-by-rule for municipal waste processing facilities other than for infectious or chemotherapeutic waste; qualifying facilities; general requirements.
The written notice requirements that already existed for permits by rule for septage treatment facilities and mechanical processing facilities have proven helpful to the Department, so the Board added the same notice requirements to subsections (d), (f) and (h) for the processing of special handling waste at a captive processing facility, for on-site incinerators and for yard waste composting facilities. The captive processing facility notice requirement was limited to facilities processing special handling waste in order to avoid unnecessary notification by owners of processors that have little or no impact on the environment, such as home trash compactors.
EXISTING FACILITIES § 271.113. Closure plan.
Subsections (b) and (c) have been modified to delete references to § 271.111, which is now obsolete, and add a reference to this section. Relevant requirements pertaining to a closure plan for these older operations are now consolidated into this section.
The Board has modified proposed subsections (g) and (h) to clarify the remediation standards for older facilities that are subject to closure plan requirements under this section. Rather than repeating the standards in this section, subsection (g)(2) cross references final closure remediation standards in § 271.342. In addition, language has been added to subsection (h) that gives a person who completes closure plan requirements the opportunity to obtain final closure certification.
§ 271.114. Transition period.
Almost everything on earth is naturally radioactive to some degree, but most materials do not endanger the public health or safety or the environment. The final-form regulations establish a system for protecting the public (including municipal waste facility employees) and the environment from the improper disposal and processing of radioactive materials that could endanger the health and safety of the public or the environment. These requirements appear in each chapter of the regulations and are the result of public comments received on proposed § 273.214(c) (relating to measurement and inspection of waste). Section 271.114 has been added to establish a transition period for coming into compliance with the requirement to have the permit designate an area for vehicles in the event of the detection of waste containing radioactive material and the requirement to have the permit include an action plan specifying, among other things, procedures for monitoring for and responding to radioactive material entering the facility. The Department's Guidance Document on Radioactivity Monitoring at Solid Waste Processing and Disposal Facilities, document number 250-3100-001, gives direction for developing action plans, monitoring for radioactive material in waste and preparing records and reports. A facility operator may adopt the standards and procedures in the guidance document even before the regulatory requirements that are transitioned under § 271.114 become applicable. An operator may also seek approval of an action plan and a designated area before the deadline established in this section.
GENERAL APPLICATION REQUIREMENTS § 271.122. Form of application.
The Board amended subsection (d) on final to conform it to the corresponding residual waste regulation, which requires that a Pennsylvania registered professional engineer supervise the preparation of a permit application and provide his seal to the design section of the application. The Board also clarified that the geologist who supervises the geology and groundwater sections of an application must be licensed in this Commonwealth.
§ 271.123. Right of entry.
Because the Department currently requests information required by subsections (b) and (c) on one form, the Board amended subsection (d) to require that all of the information on that form--landowner consent to waste activities and landowner consent to the Commonwealth's right to enter the permit area--be recorded.
A new subsection (e) has been added to indicate that subsequent landowners are deemed to have constructive knowledge of this Commonwealth's right of entry and the consent of solid waste activities on the land if the forms required by this section are properly filed at the office of the recorder of deeds in the county in which the proposed solid waste activity is situated.
§ 271.124. Identification of interests.
Subsection (b) was amended to include limited liability companies, a type of association recognized in the Pennsylvania Corporations Code since 1994. A correlating change was made to subsection (c) to include the members and managers of limited liability companies, who are the parallels of owners and officers in corporations.
Two commentators suggested that contractors should not have to be identified unless they have responsibility or ability to direct or control activities relating to the processing or disposal of solid waste. The Board declined to make this change because all contractors performing work at a facility should be identified and reliable. The same commentators suggested that limited partners and, sometimes, principal shareholders, should not have to be identified. The Board declined to make these changes because these persons may have the ability to control or direct activities at a facility, whether officially or not.
§ 271.125. Compliance information.
The Board updated subsection (a)(7) in the final-form regulations to include requirements for limited liability companies and partnerships. Now, any cross-ownership will be relevant, not just cross-ownership between corporate shareholders.
Two commentators suggested reducing the information that must be reported concerning legal proceedings and other jurisdictions' environmental laws. The Board declined to make this change because relevant information, which might otherwise not come to the Department's attention, is often brought to light in the types of actions proposed for deletion by the commentators. Requiring applicants to describe applicable laws in other jurisdictions encourages thorough analysis by the applicant in advance of submitting a permit application and provides further useful information to the Department in its permit review.
§ 271.127. Environmental assessment.
A number of comments were received on the proposed changes to this section.
One commentator suggested that public and private facilities should be viewed differently in an environmental assessment. The Board did not make this change because the ownership of a facility does not automatically dictate any particular harms or benefits.
One commentator objected that the proposed ''benefits and harms'' test is vague and ambiguous and could be used to justify any result. Another commentator thought that the test should simply be one of mitigation, with no reference to benefits or balancing. The final-form regulation retains the balancing test for many reasons. The test is reasonable, takes into account input from and dialogue with interested parties, including the applicant, and involves close scrutiny of all factors by the Department. The environmental assessment, including the balancing test, carries out the Department's obligation under the Act SWMA to implement Article I, § 27 of the Pennsylvania Constitution, which mandates that the Commonwealth protect public resources. The test is designed to take into account the site-specific impacts the waste management facility may have on the specific location of the facility and other affected areas. Under Article I, § 27, the Department has been balancing harms and benefits for many years. Balancing harms and benefits finds support in case law.
One commentator thought the word ''clearly'' should be eliminated from subsections (c) and (d), and that social and economic benefits should not be reduced by social and economic harms. The Board retained both concepts because the balancing test is not a simple mathematical computation, so benefits must ''clearly'' outweigh harms in order to ensure that public resources are protected; and social and economic harms should be considered because they help to create a true picture of the social and economic impacts of the facility. To complete the picture, environmental benefits are also considered.
Several commentators suggested that the environmental assessment evaluation should be performed following Phase I of permit review and during technical review. The Board has retained the requirement that the assessment be performed in Phase I so that an applicant does not have to submit detailed design plans if the application will be denied based upon the environmental assessment. Subsection (h) provides an opportunity for further assessment under this section during Phase II if additional harms or potential harms are discovered at that point.
A commentator asked the Board to explain why the word ''prime'' has been deleted from the term ''prime farmland.'' There are many categories of farmland that may be impacted by the location of a waste management facility. Some are more sensitive than prime farmland and others are not. This information is necessary for the Department of Agriculture and other agencies to evaluate the potential harms the facility may present to agricultural land.
A commentator stated that if subsection (c) is retained, the Board should not allow private parties to determine specific ''known and potential harms.'' The response is that the applicant must identify all known and potential harms and must evaluate all harms identified by itself, potentially affected persons, the Department and other agencies. Section 271.127 is designed to elicit information from affected parties as to their perceptions of the known and potential harms in order to ensure a comprehensive environmental assessment. Ultimately, upon review of the application and all other input received, the Department determines what the specific ''known and potential harms'' are.
The same commentator expressed concern that subsection (f), which is subsection (g) in the final-form regulations, would result in litigation if not every potentially affected person were consulted by the Department. The response is that this section describes the timing of the Department's evaluation of the environmental assessment. The timing is not new and should not create a new right since the same timing was described in subsection (b) before this section was revised by this rulemaking.
Several changes were made to the final-form regulations. The Board added ''local parks'' to the list of features in subsection (a) that an applicant must consider in determining the potential impacts of a proposed facility or modification to fill in the gap left by only listing state and Federal parks.
The Board added ''airports'' to the list of features in subsection (a) to clarify that if a proposed facility will have the potential of causing harm to aircraft arriving at or departing from an airport, the application will have to include a plan to mitigate the harm or potential harm.
The Board added a requirement to subsection (a) that an application contain all correspondence from any agencies to the applicant in regard to the environmental assessment in order to facilitate the Department's review of the environmental assessment.
The Board amended subsection (c) to clarify that harms and mitigation measures described in subsection (b) will be taken into consideration when the benefits and harms of the proposed facility are weighed. The Board similarly amended subsection (d).
The Board amended the language in subsection (f) regarding ''need'' for a facility. Under the previous structure, ''need'' had to be demonstrated as part of an applicant's demonstration of social and economic benefits. Under the final-form regulation, need may be considered as one kind of benefit, but is not necessary. It may be demonstrated in the sense that the proposed facility or expansion is needed by the public by showing, for example, a scarcity in disposal capacity which threatens the public health, safety or welfare. Simply increasing total capacity will not be a sufficient demonstration of need. Likewise, being provided for in a municipal waste plan does not mean that a proposed facility or expansion is actually needed, even if the applicant demonstrates that it will actually receive waste under the plan.
§ 271.128. Permit application fee.
The final-form regulations moves the fee for a minor permit modification from subsection (b) to subsection (c). Now, subsection (b) exclusively lists fees for modifications under § 271.144 (relating to public notice and public hearings for permit modifications), which are all major modifications, and subsection (c) addresses minor modifications. Subsection (c) also cross references § 271.222 (relating to permit modification) for clarity. All minor modifications, including onsite modifications authorized under § 271.222(c), will be subject to this fee.
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