[30 Pa.B. 6685]
[Continued from previous Web Page]
Subchapter C. MUNICIPAL WASTE PLANNING
PLAN CONTENT § 272.221. Scope of plan.
The cross reference to § 272.211(b) has been deleted from subsection (a) because it no longer exists.
§ 272.223. Description of waste.
The proposed rulemaking added construction/demolition waste (other than waste from demolition of an industrial site) to the list of wastes described in subsection (b) that a county must specifically address in describing the waste generated in the county. One commentator questioned adding construction/demolition waste to this list and asked why other wastes, like tires and appliances containing CFCs, are not also added. Construction/demolition waste is added to the list because generation and recycling opportunities for it are increasing, so counties should become aware of the magnitude of this component of the waste stream within their borders and its recycling potential. Furthermore, the EPA is considering adding construction/demolition waste to the list of materials it uses to compare recycling progress from state to state, so county generation and recycling data will become even more important. The other wastes suggested by the commentator are not included because they are included in existing subsection (e), which encourages counties to address them, at the counties' discretion.
Another commentator believed that adding construction/demolition waste to a county plan would require a substantial plan revision. This will only be true if the county intends to provide capacity assurance for construction/demolition waste and did not do so in its previous plan. Of course, even if a plan revision is not required to be substantial, a county may choose to follow the substantial revision process.
A new paragraph was added to subsection (c) to clarify the planning requirements for construction/demolition waste. That paragraph requires an estimate of the amount of construction/demolition waste currently generated in the county, that will be generated in the county within the next 10 years, that is currently recycled and that could be recycled during the next 10 years.
The recycling rate in subsection (d)(3) was changed from 25% to 35% to reflect the Commonwealth's goal established by proclamation of the Governor in 1998.
§ 272.224. Description of facilities.
A new paragraph (4) was added to subsection (a) to require counties' plans to identify and describe the recycling capabilities of the facilities at which the county's municipal waste is currently being disposed or processed. This requirement is intended to provide a more complete understanding of the recycling capabilities of the facilities and the potential for recycling the waste generated within each county.
§ 272.227. Selection and justification of municipal waste management program.
The proposed rulemaking confirmed that the regulations do not require a county to select the lowest bid when selecting facilities for the county's municipal waste management plan. One commentator suggested a clarification, which the Board adopted. The final-form regulations explain that the county does not have to select the alternative with the lowest cost.
The Board added a new subsection (d), which explains that a landfill or resource recovery facility selected by a county for capacity assurance shall be considered ''provided for'' in that county's plan under section 507 of Act 101. This change was made in response to a commentator's suggestion that § 273.139(b)(1) (relating to relationship to county plans) be incorporated into this section.
§ 272.228. Location.
One commentator suggested that this section should apply to transfer facilities so that they are regarded equally with landfills and resource recovery facilities. The Board declined to modify this section because the section already applies to processing facilities, which include transfer facilities. However, since a county is required to assure capacity for the ultimate disposal (that is, landfilling) or processing (that is, resource recovery) of the waste, if a county designates transfer facilities it must also designate a facility for the ultimate disposition of the waste.
PLAN REVIEW PROCEDURES § 272.244. Departmental review of plans.
The provision stating that a nonsubstantial plan revision will be deemed approved within 30 days of receipt by the Department, unless the Department responds in writing, was moved to subsection (a) from § 272.252 (relating to development of plan revisions), because it applies to the Department's review of a plan, not a county's development of a plan.
PLAN REVISIONS § 272.251. Submission of revisions.
A commentator noted that the brackets in the proposed rulemaking inadvertently eliminated paragraph (2). Reformatting on final corrects that error.
§ 272.252. Development of plan revisions.
Subsection (f) was deleted in the final-form rulemaking because this provision already appears in § 272.244 (relating to Departmental review of plans). Subsection (g) was deleted and moved to § 272.244. A new subsection (f) was added to explain that even if the Department does not determine a plan revision to be substantial, a county may still treat it as though it is substantial.
Subchapter D. GRANTS
GENERAL PROVISIONS FOR AWARDING GRANTS § 272.314. Limits on Department's authority to award grants.
A minor amendment to subsection (b)(3) is intended to clarify that prior reimbursements are related to the expenses being requested, not other expenses that might have been requested at other times.
Subsection (e) was amended to allow a grant offering to lapse if the offeree or the Department determines that the grant funds will not be utilized. This flexibility will enable others to obtain grant moneys that otherwise could be unnecessarily tied up.
§ 272.316. Performance audit.
The Board deleted the proposed language authorizing the Department's review of a disbursement request to serve as a performance audit because the scope of review required in a performance audit exceeds that performed by the Department in reviewing a disbursement request. The Board also deleted the sentence that prohibited a grant under this subchapter from being used to pay for a performance audit. Specifically, if a county recycling coordinator is qualified to perform a performance audit of a municipality's use of grant money given under this subchapter, the performance of that audit may be a reimbursable expense under § 272.341 (relating to scope of grant).
PLANNING GRANTS § 272.322. Eligible costs.
The proposed revision stated that indirect costs, as defined in Office of Management and Budget Circular A-87, as amended, will not be approved for a grant under § 272.321 (relating to scope of grant). This restriction is intended to reduce or eliminate requests for duplicate reimbursements for costs and implements a recommendation of the Department's Comptroller's Office based on past audits. A number of commentators expressed concern that this provision would exclude legitimately incurred costs and asked the Board to justify relying on OMB Circular A-87.
This provision has been retained and further clarified on final. Compliance with the provision may in fact lead to greater, not lower, reimbursements for counties, because it requires greater specificity in accounting by the counties and their consultants, which can lead to greater reimbursement. OMB A-87 has been used by Federal, State and local governments and their subcontractors for over 20 years in determining eligible payment under their grant programs, such as the Federal Community Development Block Grant program. Circular A-87 defines ''indirect costs'' as: ''. . . those (a) incurred for a common or joint purpose benefiting more than one cost objective and (b) not readily assignable to the cost objectives specifically benefited without effort disproportionate to the results achieved.'' Cost Principles for State, Local and Indian Tribal Governments, 60 FR 26, 484, at 26, 292 (1995). Consequently, if a cost that otherwise would be considered an indirect cost is properly assigned to a specific cost objective, the Department will reimburse it as a direct cost. The ''double billing'' associated with fees expressed only as bulk fees, such as a consultant's ''contingency fee'' listed after itemized costs, will no longer occur. In order for these generalized costs to be reimbursed under this section, the bill simply needs to attribute them to a specific task. They will then be considered ''direct costs.''
GRANTS FOR DEVELOPMENT AND IMPLEMENTATION OF MUNICIPAL RECYCLING PROGRAMS § 272.332. Eligible costs.
Subsection (d) was amended on final to allow equipment purchased with funds from a grant to be owned by a municipal authority or an organization of municipal governments, and to allow such equipment to be used by or leased to another municipality, a not-for-profit agency, an organization of municipal governments or a municipal authority. The equipment may not be used by or leased to private entities, in order to prevent grantees from giving a competitive advantage to a particular business through a public-private partnership. This codifies the Department's policy position that has been in place for several years.
Language was added to new subsection (g) to enable a grantee who purchased property with grant money to trade the property in toward recycling equipment, in order to facilitate the improvement of recycling in this Commonwealth.
§ 272.333. Grant application.
Subsection (c)(1)(v) was amended to authorize the public notice to be in the form of a legal notice or public notice, as opposed to only in the form of a display advertisement. This amendment was made to enable municipalities to select the most economical approach to meeting their statutory notice requirement.
GRANTS FOR COUNTY RECYCLING COORDINATORS § 272.341. Scope of grant.
The Board made several changes to this section on final. The Board added ''litter control'' to the list of activities for which a county recycling coordinator grant may be used. The Board specified that data collected about municipal recycling programs, commercial, institutional and municipal establishment recycling, and recycling at community activities should be submitted to the Department by April 1 of each year. The Board replaced the term ''used oil'' with ''automotive waste oil,'' to cover programs to recycle waste oil from vehicles. The Board expanded the list of special materials that recycling coordinators may develop programs for and be reimbursed for to include batteries, electronic equipment, computers and devices that contain cathode ray tubes. Finally, the Board added a new paragraph (15) to the list of reimbursable activities. Paragraph (15) allows county coordinators to be reimbursed for completing a performance audit of a municipality recycling program for a municipality within the county. This correlates to the deletion in § 272.316 (relating to performance audit) of the previously existing text that prohibited grant moneys under this subchapter from being used as reimbursement for a performance audit.
GRANTS FOR HOST MUNICIPALITY INSPECTORS § 272.362. Eligible costs.
Subsection (b)(7) has been amended to reflect the new ''inactive status'' that is described in § 272.364 (relating to maintaining certification; inactive status; decertification; recertification).
§ 272.364. Maintaining certification; inactive status; decertification; recertification.
Commentators objected that decertification was too strident of a consequence for failing to perform at least one inspection per calendar year, as was proposed under subsection (a)(2). In response, the Board amended subsection (a) to state that failure to conduct one inspection a year will result in automatic ''inactive status'' (instead of decertification) 6 months later (July 1 of following year), unless the inspector takes the Department sponsored advanced training course and performs satisfactorily on the written examination in the meantime. A written examination is necessary to ensure that the inspector stays current with important operational, environmental, health and safety developments. Similarly, the Board added the requirement that, to maintain active status, an inspector must complete the advanced training course once every 3 years and perform satisfactorily on the written examination.
One commentator asked why subsection (a) requires testing every 3 years to maintain certification. The Board retained this requirement to ensure that the host municipality inspectors remain current and understand developments regarding health and safety, regulations and policies for waste facilities and environmental issues. Testing will confirm for the Department that the inspector has mastered the material. In addition, a majority of the host municipality inspectors are not environmental practitioners by trade or vocation; therefore, they do not receive pertinent environmental information as part of their job functions on a daily basis.
Subsection (b) is new on final. It describes the restrictions applicable to an inspector whose status is ''inactive.''
The decertification provisions in subsection (c) have been modified in response to public comment. Proposed paragraphs (1) and (7) were deleted because their commission now leads to ''inactive status'' instead of decertification. Paragraphs (2), (4)--(6) have been revised to require that the activity occur ''knowingly.'' The Board also amended subsection (c)(4) to clarify that knowingly distributing information to an employe of the Department, the EPA, the Office of the Attorney General or the United States Department of Justice would not be a reason for decertification.
Subsection (d) sets forth the notification procedures that will be followed if a host municipality inspector violates subsection (c). Commentators suggested that a more detailed process be established, that the regulation specify that decertification actions are subject to appeal before the hearing board, that the Department should not issue a decertification order until proceedings before the Environmental Hearing Board (EHB) are concluded and that a special hearing board be established. Concern about procedural due process was expressed. It was not necessary to include these changes in the final-form regulations because all Department actions, including decertification, are subject to appeal before the EHB. Case law has established that this appeal procedure satisfies due process considerations. Information regarding the appeal process will be disseminated to host municipality inspectors through the advanced training course, education seminars and host inspector meetings conducted by the Department. The Department will not send out a notice of decertification unless and until an investigation has taken place and the Department has made an informed decision to decertify. The Department will provide the inspector and host municipality with notice of the pending investigation. Procedures involving possible decertification and appeal will be explained in the notice of the pending investigation. The notice will not be sent to the facility, but if decertification is warranted, a notice of decertification will be sent to the facility, as well as the host municipality and host municipality inspector, because the facility and host municipality need to know if an inspector is currently authorized to perform his duties. At that point, the inspector would have a right to appeal the decertification. As with all appealable actions of the Department, the order would be effective unless and until the appellant obtained a supersedeas.
An inspector who is decertified may be eligible for recertification. Subsection (c) requires the Department to state in its notification of decertification whether an inspector will be eligible for recertification. The Department will consider the nature and gravity of the misconduct in making this determination. This decision may be part of an appeal, as will be a decision to decertify. An eligible decertified inspector may become recertified after 2 years by meeting the statutory requirements for becoming a host municipality inspector in section 1102 of Act 101 (53 P. S. § 1102) (relating to joint inspections with host municipalities).
Subchapter E. MUNICIPAL RECYCLING PROGRAMS
REQUIRED RECYCLING PROGRAMS § 272.411. Affected municipalities.
The proposed amendment of subsection (d) had included the date of July 15, 2003, as the date by which a municipality meeting the conditions of this subsection would have to conduct a recycling program. The date has been deleted on final because the date on which the 2000 census data will become official is uncertain. The 2-year deadline contained in this subsection will apply.
Subchapter F. HOUSEHOLD HAZARDOUS WASTE COLLECTION
REGISTRATION AND APPROVAL OF PROGRAMS § 272.513. Contract.
A typographical error in the numbering of paragraph (3) is corrected in this final-form rulemaking.
CHAPTER 273. MUNICIPAL WASTE LANDFILLS
Subchapter B. APPLICATION REQUIREMENTS
PHASE I APPLICATION REQUIREMENTS § 273.112. Facility plan.
One commentator suggested that language be added to indicate how the soil quantities would be provided. The Board agrees and added language in paragraph (2) to require the permit application for a municipal waste landfill to include a description of the method by which the soil necessary for construction and operation will be delivered. If soil is not located onsite, the traffic, access roads and other impacts need to be evaluated when performing the environmental assessment process.
§ 273.115. Geology and groundwater description.
Subsection (a)(3) was amended to allow alternative techniques for characterizing groundwater to be employed when the standard multiple well aquifer tests are not feasible. This allows the applicant to use alternative methods if unique hydrogeologic conditions are not conducive to standard testing techniques.
The Board also added language in subsection (a)(9) to allow the Department to require more frequent water level measurements after significant precipitation events. This information is necessary if the monthly measurements required by the regulations do not adequately represent the highest possible water levels which are needed to design the site.
Two commentators suggested that the duration and frequency of water level measurements were unreasonable as a preapplication obligation. One of these commentators also indicated that the required groundwater contour map should be made from measurements obtained during the same month, not the highest measurement obtained from a particular well. The Board declined to make changes to address the first issue, since water level measurements obtained over the course of a year, and after significant precipitation events, are the only way to determine the inherent periodic and seasonal groundwater fluctuations that occur at most sites. The Board agrees with the second issue, but no changes to the Annex are necessary because the error was in the preamble explanation of how the contour map would be used. The contour map is only used to determine appropriate liner system isolation distances from the regional water table, and cannot be used to depict groundwater flow patterns.
One commentator requested clarification on the purpose, construction and duration of the borings used to measure water levels. The Board declined to modify the regulations to address this issue, as the specifics of borehole construction and maintenance may be tied to conditions unique to each facility. These details are routinely decided based upon discussions with the Department during the background groundwater characterization and monitoring process.
§ 273.120. Mineral deposits information.
The Board amended the language in subsection (b) to require that the applicant either own the underlying mineable coal, or own the land or enter into an enforceable option contract to purchase land on which an expansion would operate and have an agreement with the owner of the coal to maintain support as long as waste remains on the site. These requirements are necessary to prevent failure of the landfill liner system should settlement occur into voids created by coal mining. Under the previous structure, the applicant was required to demonstrate that the owner of underlying mineable minerals would not mine the minerals as long as municipal waste remained on the site. The amendments remove the ambiguity of the term mineable mineral deposits and instead apply the restrictions to mineable coals, which is the mineral most likely to be mined and is consistent with the mineral deposits information in the residual waste regulations. The amendments also provide some opportunity for existing facilities to expand onto areas where the applicant does not own the underlying coal.
§ 273.121. Notification of proximity to airport.
This section has been revised on final to reflect the new Federal legislation restricting construction of landfills within 6 miles of certain airports. (Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, Pub. L. No. 106-181, § 503, 114 Stat. 61 (2000), amending 49 U.S.C.A. §§ 44718(d) and 46301(a)(3).) Under the revisions, an applicant will have to notify and include copies of the notifications to the FAA, the airport and the Department of Transportation's Bureau of Aviation as well as any responses received from those entities. This information will assist the Department in determining whether construction of the facility or modification thereof would be safe. If any of the respondents expresses safety concerns, the applicant will generally be required to submit a mitigation plan under § 271.127 (relating to environmental assessment), at a minimum. If § 271.201(9) (relating to criteria for permit issuance or denial) is triggered and the Administrator of the FAA is not asked to or does not exempt the proposed facility from 49 U.S.C.A. § 44718(d) (relating to limitation on construction of landfills), the application will be denied. The section has also been revised to apply to all applications for new landfills or expansions, not just to new landfills and lateral expansions, because the phrase ''lateral expansions'' was unnecessarily restrictive.
PHASE II APPLICATION REQUIREMENTS
GENERAL PROVISIONS § 273.132. Operation plan.
Two commentators suggested that paragraph (6) be changed to require the applicant to differentiate between waste acceptance, construction and other activities. The Board declined to make this change as the applicant may differentiate between the various activities when describing the proposed operating hours.
One commentator opposed the proposed addition to paragraph (6), which clarifies that operating hours include those hours related to construction and other activities related to the operation of the facility. The Board is retaining this language because the hours when construction and other activities take place can cause considerable nuisances to the surrounding community, and this should be identified for comment and consideration during the application phase of the proposed facility.
§ 273.133. Map and grid requirements.
The Board has added a requirement in new subsection (a)(14) that an application for a municipal waste landfill indicate on the topographic map a designated area for vehicles for use in the event of the detection of waste containing radioactive material. As with the other requirements in this subchapter, this requirement applies to all permit applications, not just applications for new facilities. A transition schedule has been developed in § 271.114 (relating to transition period) for existing facilities to come into compliance with this regulation. The designated area must protect the environment, facility staff and public from radiation originating in the vehicle. The Department's Guidance Document on Radioactivity Monitoring at Municipal and Residual Waste Processing and Disposal Facilities, document number 250-3100-001, describes various factors to consider in determining an appropriate designated area.
§ 273.134. Plan for access roads.
A commentator suggested that the proposed requirement that access roads be designed and constructed to adequately handle the truck traffic was not clear. The Board agreed and removed the proposed changes to this section.
One commentator indicated that access roads should comply with a Department of Transportation standard. The Board declined to make this change because the access roads are designed based upon the expected use, and one standard could not adequately address all possible uses.
§ 273.136. Nuisance minimization and control plan.
One commentator requested clarification as to whether certification was required for professionals under contract to provide extermination or other nuisance minimization and control services. The Board declined to make changes to this section. The exterminator or other professional used to minimize nuisances does not need to be certified but should be familiar with and able to conform to the technical standards of the activity.
§ 273.139. Relationship to county plans.
One commentator suggested that subsection (b)(1) be incorporated into Chapter 272. In response, the Board incorporated the concept of being ''provided for'' in § 272.227 (relating to selection and justification of municipal waste management program). The same commentator questioned whether being ''provided for'' in relation to providing capacity assurance applied to processing facilities in addition to disposal facilities. The use of this phrase in Chapter 273 only refers to municipal waste landfills. Two commentators asked the Board to clarify that modifications and expansions of facilities provided for in host county plans need not be separately provided for in county plans. The Department generally considers expansions to be ''provided for'' if the facility is provided for in a county's plan; however, the terms and conditions of the county's plan may specifically address the inclusion of a facility's future modifications and expansions. The Board did not change the regulation in this regard.
§ 273.140a. Radiation protection action plan.
The Board has added a new section in the final-form rulemaking requiring that an application for a municipal waste landfill contain an action plan specifying procedures for monitoring for and responding to radioactive material entering the facility, as well as related procedures for training, notification, recordkeeping and reporting. As with the other requirements in this subchapter, this requirement applies to all permit applications, not just applications for new facilities. A transition schedule has been developed in § 271.114 (relating to transition period) for existing facilities to come into compliance with this regulation. The action plan must be incorporated into the landfill's approved waste analysis plan, under § 271.613 (relating to waste analysis plan). The permit modification will be a major modification. The action plan must be prepared in accordance with the Department's Guidance Document on Radioactivity Monitoring at Municipal and Residual Waste Processing and Disposal Facilities, document number 250-3100-001, or in a manner at least as protective of the environment, facility staff and public health and safety and which meets all statutory and regulatory requirements.
An approved action plan will specify the radiation exposure rate, in accordance with these regulations and the foregoing guidance document, at which the facility's radiation detection monitors will indicate the presence of radioactive material in waste in accordance with § 273.223 (relating to radiation monitoring and response). A waste load that does not trigger a radiation monitor will need no further action regarding radioactive materials screening. A waste load that does trigger a radiation monitor may only be accepted at the landfill if it is within the acceptable range approved in the action plan in accordance with these final regulations and the operator obtains additional written approval of the Department for that particular waste load. The Department's written approvals will be decided situation by situation or in advance in the facility's approved action plan. The Department will not authorize any waste containing radioactive material to be accepted at a municipal waste landfill if it is above regulatory limits or if its disposal would endanger the health and safety of the public or the environment.
PHASE II APPLICATION REQUIREMENTS
COVER AND REVEGETATION § 273.141. Compaction and cover plan.
The Board amended the language in paragraph (4) to require that the application identify procedures to establish intermediate cover, in addition to the procedures already required for final cover. The design and procedures to place intermediate cover are important as the intermediate cover may be in place for extended periods of time.
One commentator suggested that language in paragraph (1) be changed to reference ''cover soil'' instead of ''waste''. The Board declined to make the change. This section includes requirements for waste, daily, intermediate, and final cover. Paragraph (1) refers to waste compaction.
A commentator suggested that paragraph (4) be reworded to reference the procedures to establish intermediate and final elevations for the landfill cap. The Board declined to make the suggested change because the plan does not solely apply to the cap.
PHASE II APPLICATION REQUIREMENTS
LINERS AND LEACHATE MANAGEMENT § 273.161. Liner system and leachate control plan.
Several changes were made to the final-form regulations in this section.
The Board amended the existing liner testing properties to reflect current liner compatibility testing procedures. The following properties were added: density, carbon black content, carbon black dispersion, stress crack resistance and oxidative induction time. The following properties were deleted: the modulus of elasticity, impact resistance, operating temperature range, ozone resistance, water vapor transmission, coefficient of linear thermal expansion, and low temperature/brittleness.
Several commentators questioned why the proposed rulemaking required percent recycled material as a testing property and suggested that it be deleted unless this information is relevant. The Board declined to make the change. The percent recycled material can significantly vary during the manufacturing of liners and can change the performance of the liner.
A number of commentators suggested changes to the liner testing properties. The Board made changes based upon the suggestions of the commentators and based upon current liner testing procedures.
One commentator suggested that liner friction is not by itself an adequate determination of engineering acceptance and that a stability analysis using actual liner friction values should be required. The Board declined to make a change in this section, but agrees that the liner friction angle is one of many factors considered during the stability analysis required as part of the permit application process.
PHASE II APPLICATION REQUIREMENTS
CLOSURE PROVISIONS § 273.192. Closure plan.
Several commentators found the phrase ''toward and after closure'' to lack clarity. The Board replaced this phrase with ''in preparation for closure and after closure.'' ''Closure'' is the point at which the entire facility permanently ceases to accept waste. It happens only once at a landfill. Under the final-form regulations, the application shall contain a plan describing the activities that are proposed to occur in preparation for closure and after closure and a narrative description of the measures that are proposed to be carried out.
§ 273.196. Recycling plan.
A commentator suggested that the Board clarify that salvaging allow for materials recovery during landfill mining. The Board did not make a change to this section. Landfill mining is a municipal waste processing operation that can be approved as a major modification to the landfill disposal permit or can be approved under an individual or general processing permit.
Subchapter C. OPERATING REQUIREMENTS.
GENERAL PROVISIONS § 273.201. Basic limitations.
Subsection (g) has been revised to prohibit the practice of landfill operators accepting bulk or noncontainerized liquid but provides for the acceptance of containers holding free liquids for the purpose of disposal on site if approved in the permit.
This section has been revised in the final rulemaking to specify clearly the types of radioactive materials that might be found in the municipal waste stream that may not be accepted at a municipal waste landfill.
Subsection (l) lists six types of radioactive materials that are controlled under specific or general license or order. These are prohibited from disposal at a municipal waste landfill unless they are specifically exempted from disposal restrictions by an applicable Pennsylvania or Federal statute or regulation.
The first type, in paragraph (1), is NARM, which includes naturally occurring and accelerator produced radioactive material. Examples of NARM are radium, potassium-40, various isotopes produced in accelerators, such as cobalt-57, and members of the uranium-238 and thorium-232 decay chains when they don't meet the requirements for source material or special nuclear material.
Paragraph (2) prohibits disposal of byproduct materials. These are produced by nuclear fission, or otherwise, in the nuclear energy cycle. Prominent examples are cesium-137 and strontium-90.
Paragraph (3) prohibits disposal of source material which, by definition, is uranium and/or thorium present at a combined concentration, by weight, of 0.05% or more. Examples are uranium ores and slags produced by smelting rare earth ores containing uranium and thorium.
Paragraph (4) prohibits disposal of special nuclear material, which includes those isotopes of uranium and plutonium that will split, or fission, when struck by neutrons. Examples of special nuclear material include uranium-233, uranium-235, and plutonium-239.
Paragraph (5) prohibits disposal of transuranic radioactive materials, which include all elements with an atomic number greater than 92 (92 = uranium). Examples include neptunium, plutonium, americium, curium, californium, berkelium, einsteinium, fermium, mendelevium, and others. Transuranic elements do not occur naturally and are produced in high energy accelerators.
Paragraph (6) prohibits disposal of low-level radioactive waste. A definition of low-level radioactive waste is contained in section 130 of the Low-Level Radioactive Waste Disposal Act (35 P. S. § 7130.130).
Subsection (m) lists three categories of radioactive materials that are prohibited from being accepted at a municipal waste landfill unless approved in writing by the Department, and the disposal does not endanger the environment, facility staff or public health and safety.
The first radioactive material, in paragraph (1), is short-lived radioactive material from a patient having undergone a medical procedure. Certain short-lived radioactive materials are administered to medical patients for diagnosing or treating some illnesses. Once these materials are administered to the patient, they no longer fall under Nuclear Regulatory Commission (NRC) or Pennsylvania licensing. Some of the material is retained in the patient and some is excreted in urine, feces, sweat, saliva or mucous and may get into solid waste through disposal of personal care items. The Department's intent is to authorize this material to be disposed in waste facilities upon case-by-case permission from the Area Health Physicists or Director of the Bureau of Radiation Protection, or advance authorization in the landfill's approved action plan, using the general concepts provided in the Department's Guidance Document on Radioactivity Monitoring at Solid Waste Processing and Disposal Facilities, document number 250-3100-001.
Paragraph (2) addresses TENORM, which is naturally occurring radioactive material which has been altered by human activity in a manner that results in increased radiation exposure to people. The alteration could be chemical or physical change in form, relocation of the norm, or removal of barriers that isolated the norm. The Department's intent is to authorize disposal of TENORM in municipal waste landfills only in amounts and concentrations that will not result in concentrations of the NORM isotopes significantly above local background. Authorization will be given as case-by-case permission from the Area Health Physicists or Director of the Bureau of Radiation Protection, or advance authorization in the landfill's approved action plan.
Paragraph (3) addresses consumer products containing radioactive material. Some consumer products, such as smoke detectors, luminous dial clocks and watches, or some ceramics will wind up in the waste stream. The Department intends to allow disposal of small quantities of these under conditions specified in the facility's approved action plan or on a case-by-case basis with permission from the Area Health Physicist or Director of the Bureau of Radiation Protection.
Subsection (n) provides that the limitations set forth in this section will not apply to radioactive material as found in the undisturbed natural environment of the Commonwealth. The original soil and rock in many parts of this Commonwealth contain sufficient uranium, thorium, radium and potassium-40 to cause monitors to alarm even at quite high settings. This provision ensures that facilities may use soil and rock from undisturbed sites for cover, regardless of the content of radioactive material.
§ 273.202. Areas where municipal waste landfills are prohibited.
The Board changed the lead-in language in subsection (a) to be more specific and limited. The lead-in no longer contains the ''grandfathering'' language, but cross references new subsections (b) and (c), in which it is now located. Areas that had been grandfathered under the 1988 regulations but not repermitted under 1988 regulations will no longer be grandfathered. See explanation of subsection (b) below.
Several commentators suggested that the word ''land'' be inserted into the lead-in language to subsection (a), as: ''Except for land areas that were permitted . . . .'' This change is not warranted because the definition of ''municipal waste landfill'' in § 271.1 (relating to definitions) already includes land affected by the operations and includes support facilities, sheds, storage facilities and more.
Several commentators suggested that a new isolation distance be created limiting the acceptable distance for a landfill from a freeway interchange ramp, because of the impacts of trucks traveling greater distances along secondary roads. The Board declined to include this provision because locating a facility within 10 miles of a freeway interchange may prohibit areas where the siting of landfills may be ideal. A detailed traffic analysis is done during the application review and considered during the environmental assessment process.
Two commentators suggested that all setbacks be measured from areas used for disposal, processing, recycling or storage of solid waste, including the storage and treatment of leachate. The Board declined to make this change. All setback distances are measured from the permit boundary, in accordance with the statutory definition of ''municipal waste landfill.''
Two commentators suggested that subsection (a)(2)(ii) be made clearer so there is no doubt that it applies to new permitted municipal waste landfills. The Board amended the rulemaking to make this clearer. The final-form rulemaking applies the 100 foot isolation distance from wetlands other than exceptional value wetlands only to new facilities.
Two commentators asked that permit applications on file with the Department prior to the effective date of these regulations be grandfathered from the new limitations in subsection (a)(3)(i) relating to underlying minerals and asked that this subparagraph indicate clearly that it applies to existing facilities and expansions thereof. The same commentators asked that the old rule be retained, which allowed the operator either to own the minerals or to enter into an agreement with the owner to provide support. Another commentator suggested that the proposed requirement that an operator own the subsurface rights to all minerals is overly broad, ambiguous and required definition. The final-form rulemaking does not grandfather permit applications, but does clarify which facilities are subject to which rules. Portions of the old rule were retained, but new provisions were also added. The clarifications appear in subsections (a)(3) to (a)(5), all of which relate to coal now.
Under subsection (a)(3), an area that was permitted as a municipal waste landfill between April 9, 1988, and the effective date of this final-form rulemaking remains subject to the rule in place during that time period and may not be operated in areas underlain by recoverable or mineable coals unless the operator of the facility demonstrates and the Department finds that the operator owns the underlying coal or has entered an agreement with the owner of the coal to provide support. The Board deleted the proposed language in subparagraph (ii) that would have required the operator of a facility permitted on or after publication of the final-form regulations to own the underlying mineable minerals.
Under subsection (a)(4), a later expansion of a municipal waste landfill that was permitted between April 9, 1988, and the effective date of this final-form rulemaking may not be operated in coal bearing areas underlain by recoverable or mineable coals unless the applicant satisfies one of two conditions. The first condition is that the applicant own the underlying coal. The second condition is that the applicant owned or entered into an enforceable option contract to purchase land on which the expansion would operate on or before the effective date of this final-form rulemaking and still holds the options rights, owns the land or owns the land under the option rights contract when the permit expansion is issued. In order to meet the second condition, the applicant must demonstrate in its application that coal providing support for the expansion area will not be mined as long as waste remains on the site.
Under subsection (a)(5), a new municipal waste landfill permitted on or after the effective date of this final-form rulemaking may not be operated in coal bearing areas underlain by recoverable or mineable coal, unless the permittee owns the underlying coal.
One commentator suggested that the prohibition against operating a landfill over limestone or carbonate formations (former subsection (a)(5)) should be modified to allow mitigation. This change was not made because a landfill, including the liner system, cannot be safely designed to adequately address unknown future stresses or areas of instability that could result from siting the landfill over limestone or carbonate formations. Karst topography in this Commonwealth is predominantly associated with limestone or carbonate formations.
Regarding subsection (a)(8), (former subsection (a)(6)), three commentators asked that the old 300-foot isolation distance from occupied dwellings apply to existing facilities and expansions of existing facilities. Three commentators asked that the new 300-yard isolation distance apply to expansions and also to major modifications. One commentator objected to the new 300-yard isolation distance applying in any situation. The Board made a number of changes to this provision, breaking it into four subsections, numbered (a)(8)--(11). The new provisions allow some flexibility for currently operating facilities and facilities expanding onto land already owned or under option rights on the effective date of these final-form regulations, but impose the new isolation distance on new and reopened landfills.
Subsection (a)(8) addresses operations at existing municipal waste landfills and at permitted non-captive (Class I) residual waste landfills that were operating under their residual waste permit and not closed as of the effective date of this final-form rulemaking and that convert to a municipal waste landfill after the effective date. Under the final-form regulation, these are subject to the old 300-foot setback. Disposal areas may not be closer than 500 feet except upon waiver by the owner of the dwelling.
Subsection (a)(9) addresses expansions of municipal waste landfills where the landfill was permitted before the effective date of this final rulemaking. The subsection also addresses expansions of residual waste landfills that were operating under their residual waste permit and not closed as of the effective date of this final rulemaking and that converts to a municipal waste landfill after the effective date of this final rulemaking. Expansions must be 900 feet from an occupied dwelling unless the owner provides a written waiver that meets the requirements of this subparagraph (i) or the expansion will be on land owned by the applicant on the effective date of the final-form regulations, subject to an enforceable option contract for purchase of the land on that date or purchased after the effective date of the final-form regulations under an option contract entered into prior to the effective date. (Subparagraph (ii).) If the contract/option provision applies, the expansion may not be operated closer than 300 feet and the disposal area may not be within 500 feet of an occupied dwelling unless the applicant obtains a waiver as described in subparagraph (i).
New municipal waste landfills will be subject to the 900-foot isolation distance, unless they obtain a waiver in accordance with subsection (a)(10). A closed landfill that submits an application to reopen and expand shall also be subject to this paragraph.
Access roads are not subject to the 900-foot isolation distance. Under subsection (a)(11), access roads are subject to a 300-foot setback. While an increase in the setback to 900 feet from landfill activity is necessary to address issues such as noise, dust and odors, these issues can continue to be adequately addressed for access roads with a 300-foot setback.
One commentator suggested that the isolation distance from a perennial stream should be the same as in the residual waste regulations. The Board agrees and has amended subsection (a)(12) accordingly. A municipal waste landfill cannot be located within 100 feet of a perennial stream unless storage, processing and disposal will not occur within that distance and no adverse hydrologic or water quality impacts will occur.
The proposed rulemaking had proposed to revise the airport isolation distances so that an exception would be available to an operator who could demonstrate that the landfill was designed and operated so that it would not pose a bird hazard to aircraft. On final, the Board deleted the exception and returned the regulatory language to its original form as it existed in subsection (a)(9) and (10). These provisions are found in new subsection (a)(14). The Board inserted date restrictions in this subsection, so that it applies to the areas to which it had already applied, namely those permitted on or after April 9, 1988, and before January 25, 1997. The proposed language, that would have transformed this paragraph into a copy of the EPA regulation that allows operations if the facility has provided a bird hazard mitigation plan, was discarded in favor of greater protection of the public health, safety and welfare and the environment by outright restrictions.
Subsection (a)(15) carries over language from the 1997 regulatory amendment that eliminated the modifier ''FAA certified.'' All landfill areas permitted on or after January 25, 1997 are still subject to the isolation distance in this paragraph. The word ''airport'' used in paragraph (15) is defined in § 271.1 to comport with the Department of Transportation's definition of ''public airport,'' except that the definition in § 271.1 does not include heliports.
The prohibition in paragraph (16)(i) against operating within the ''conical airspace'' was retained, although its deletion had been proposed. This prohibition offers important protection against air traffic accidents by protecting against construction at heights that would interfere with an airport's flight path. A new subparagraph (ii) was added to paragraph (16), to include all of the ''imaginary surfaces'' which the Federal Aviation Administration protects in 14 CFR 77.23(a)(5) (relating to standards for determining obstructions), not just the conical airspace. This will offer greater protection against intrusion into the airport's flight paths.
Several commentators wanted the Board to apply the isolation distance from schools, parks and playgrounds to expansions of existing facilities as well as to new facilities. These commentators also wanted this isolation distance to apply to places of worship and their grounds. The Board retained the proposed language because it is consistent with section 511 of Act 101. Impacts on places of worship can be evaluated during the balancing of harms and benefits in the environmental assessment.
A new subsection (b) has been added to § 273.202 to explain which areas are grandfathered. This regulation no longer grandfathers all areas permitted prior to April 9, 1988. Instead, it grandfathers those areas only if they were later included in a municipal waste landfill permit issued between April 9, 1988, and the effective date of these regulations. Those areas are not subject to the isolation distances cross referenced in subsection (b) as long as the permit did not become void. Hence, an area permitted as a municipal waste landfill prior to April 9, 1988, that has not been permitted under the 1988 regulations no longer receives protection from isolation distances. Areas are not grandfathered from the prohibition in subsection (a)(1) against operating in a 100-year floodplain because this prohibition existed before 1988. Areas are not grandfathered from the underlying coal restrictions in subsection (a)(4) and (5) because those paragraphs contain their own dates of applicability. The same is true of subsection (a)(9) and (10), relating to occupied dwellings, (a)(15) relating to airports, (a)(16)(ii) relating to obstructions to air navigation and (a)(18) relating to schools, parks and playgrounds.
New subsection (c) establishes that none of the isolation distances applies for purposes of conducting postclosure activities for areas permitted as a municipal waste landfill prior to the effective date of these final-form regulations. This subsection is designed to allow postclosure activities to continue despite isolation distances in order to achieve proper and effective final closure.
§ 273.203. Certification.
Two commentators asked the Board to combine paragraphs (2)--(6) to allow certification of all liner construction activities at the same time. The Board did not make the change. The certification of each major construction activity is necessary because the incorrect construction of one component may compromise the integrity of the entire liner system.
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