RULES AND REGULATIONS
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 260a--265a AND 270a]
Hazardous Waste Management
[32 Pa.B. 6102] The Environmental Quality Board (Board) by this order amends Chapters 260a--265a and 270a to update the hazardous waste management program to read as set forth in Annex A.
This order was adopted by the Board at its meeting of September 17, 2002.
A. Effective Date
The final-form rulemaking will go into effect upon final-form publication in the Pennsylvania Bulletin.
B. Contact Persons
For further information, contact Rick Shipman, Division of Hazardous Waste Management, P. O. Box 8471, Rachel Carson State Office Building, Harrisburg, PA 17105-8471, (717) 787-6239; or Kurt Klapkowski, 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, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-form rulemaking is available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state.pa.us).
C. Statutory Authority
The final-form rulemaking is being made under the authority of sections 105, 401--403 and 501 of the Solid Waste Management Act (SWMA) (35 P. S. §§ 6018.105, 6018.401--6018.403 and 6018.501); sections 105, 402 and 501 of The Clean Streams Law (35 P. S. §§ 691.105, 691.402 and 691.501); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20). Under sections 105, 401--403 and 501 of the SWMA, the Board has the power and duty to adopt rules and regulations concerning the storage, treatment, disposal and transportation of hazardous waste that are necessary to protect the public's health, safety and welfare, and the environment of this Commonwealth. Sections 105, 402 and 501 of The Clean Streams Law grant the Board the authority to adopt regulations that are necessary to protect the waters of this Commonwealth from pollution. Section 1920-A of The Administrative Code of 1929 grants the Board the authority to promulgate rules and regulations that are necessary for the proper work of the Department.
D. Background and Summary
The hazardous waste management regulations were amended at 29 Pa.B. 2367 (May 1, 1999) in accordance with the Regulatory Basics Initiative (RBI) and Executive Order 1996-1, ''Regulatory Review and Promulgation.'' Since that time, the Commonwealth's hazardous waste management program received final authorization for changes made to its hazardous waste program under the Resource Conservation and Recovery Act from the Environmental Protection Agency (65 FR 57734). This final-form rulemaking provides the opportunity to make the changes necessary to update that program authorization.
In addition, the Department now has over 3 years experience implementing these regulations. Several of the changes contained in this final-form rulemaking were developed to address issues raised since the RBI rulemaking and correct problems identified over the past 3 years.
On May 9, 2002, the Solid Waste Advisory Committee (SWAC) reviewed the draft final-form rulemaking and voted to submit it to the Board for consideration as a final-form rulemaking pending resolution of three issues. Two of the issues were resolved with minor wording changes to the final-form rulemaking. The third issue involves reporting of spills and discharges of hazardous waste by generators. The Department compared the final-form rulemaking with reporting requirements for discharges under the Federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Department of Transportation release reporting requirements and reporting requirements of other states. This review resulted in modification of the final-form rulemaking to ensure consistency with these other requirements.
A list of members of the SWAC may be obtained from the agency contacts identified in Section B of this order.
The final-form rulemaking generally falls into one of five categories: codification of SWMA requirements that differ from or are broader than the Federal requirements incorporated by reference; restoration of regulatory provisions that were inadvertently deleted in the RBI rulemaking; clarification of ambiguous requirements; clarification of manifesting requirements; and correction of typographical errors. The specific changes in these categories are summarized.
1. Codification of statutory requirements
The Department has a general policy not to duplicate statutory definitions or provisions in regulations unless a compelling reason exists to do so. The hazardous waste regulations contain provisions that incorporate by reference large portions of the Federal hazardous waste regulations. The controlling statutory authority in the Commonwealth is the SWMA. However, where the SWMA and the Federal regulations touch on the same subject, the SWMA governs that subject in this Commonwealth. As a result, the Commonwealth hazardous waste regulations contain some provisions that duplicate SWMA requirements where the Federal regulations vary from the commands of the SWMA. In addition, there are some subjects that the SWMA explicitly regulates, and on which the Federal regulations are silent. The final-form rulemaking duplicates the SWMA provisions in two instances. This duplication is necessary to eliminate confusion over the incorporation by reference of contradictory Federal regulations and to establish requirements where the Federal regulations are silent. The first instance is in § 260a.10 (relating to definitions) where the rulemaking adds the definition of ''treatment.'' The term is defined differently in section 103 of the SWMA (35 P. S. § 6018.103) and 40 CFR 260.10. The definition follows the SWMA language.
The second instance is in § 263a.13(b)(4) and (j) (relating to licensing). In accordance with section 403(b) of the SWMA, the final-form rulemaking adds the requirement that a transporter of hazardous waste prepare and carry a preparedness, prevention and contingency plan (PPC plan) to address potential discharges or spills of hazardous waste. The incorporated Federal regulations do not contain this requirement.
2. Restoration of provisions that were deleted in the May 1999 RBI rulemaking
Several of the amendments reinstate requirements that were part of the Commonwealth hazardous waste program prior to the May 1999 RBI rulemaking. Because of the general approach of broadly incorporating the Federal hazardous waste regulations by reference, some existing regulations that helped to clarify how the program operates were inadvertently deleted. Generally speaking, these requirements remain in effect based on the requirements of the SWMA and the Department's interpretation of the hazardous waste regulations. Having them reinstated in the rulemaking serves to clarify the Department's approach to the hazardous waste program and inform the regulated community of proper compliance methods. In several cases the regulated community and regional Department staff have noted the problems caused by the absence of these long-standing provisions.
An excellent example of this category of changes is in § 261a.3 (relating to definition of ''hazardous waste''). The final-form rulemaking reinstates the requirement to manage waste as hazardous until a waste determination is completed. Under 40 CFR 262.11 (relating to hazardous waste generation), generators of solid waste must make a determination as to whether or not the waste is hazardous. It is silent, however, on the issues of when the determination must be complete and management of the waste until the determination is complete. Reinstating this requirement in the regulation establishes a firm position to what would otherwise be an ambiguous provision in the regulations.
Another good example concerns when spills and discharges of hazardous waste must be reported. Section 403(b)(12) of the SWMA requires ''any person or municipality who generates, transports, stores, treats or disposes of hazardous waste to . . . immediately notify the Department and the affected municipality or municipalities of any spill or accidental discharge'' of hazardous waste. Section 262a.43 (relating to additional reporting) re-establishes the conditions, amounts, standards and procedures for reporting spills and discharges of hazardous waste. This section also restores the provision that a Department official may authorize immediate removal of spilled hazardous wastes or materials if necessary to protect the health and safety of the public and the environment.
Reinstating the following provisions accomplishes similar goals: § 262a.11 (relating to hazardous waste determination) clarifies that the Department retains the independent authority to make a waste determination; § 262a.12(b)(1)(iv) (relating to EPA Identification numbers) requires subsequent notification when a generator's facility class changes; § 262a.12(b)(2) explicitly states that a generator is only allowed to offer hazardous waste to a Department-licensed transporter; § 263a.13(j) requires a copy of the contingency plan to be on a hazardous waste transport vehicle; § 263a.26(c) (relating to assessment of penalties) notes that the penalty for falsification is a minimum of $1,000 (rather than a flat $1,000); § 265a.13 (relating to general and generic waste analysis) clarifies that the report that must be submitted is a ''Module I'' report; and § 270a.60(a) (relating to permits-by-rule) notes that an owner or operator must give notice to the Department prior to operating under a permit-by-rule.
3. Clarification of ambiguous requirements
The third broad category of changes addresses ambiguous requirements identified during the implementation of the RBI regulations over the past 2 years. These changes do not, however, have pre-RBI counterparts that the Department can reinstate.
Several of the changes in this category relate to containment and contingency plans. Section 403(b) of the SWMA states:
(b) It shall be unlawful for any person or municipality who generates, transports, stores, treats or disposes of hazardous waste to fail to:* * * * * (10) Develop and implement contingency plans for effective action to minimize and abate hazards from any treatment, storage, transportation or disposal of any hazardous waste.(11) Maintain such operation, train personnel, and assure financial responsibility for such storage, treatment or disposal operations to prevent adverse effects to the public health, safety and welfare and to the environment and to prevent public nuisances.(12) Immediately notify the department and the affected municipality or municipalities of any spill or accidental discharge of such waste in accordance with a contingency plan approved by the department and take immediate steps to contain and clean up the spill or discharge.The Department has received several inquiries from regulated entities regarding compliance with these requirements. Therefore, this final-form rulemaking contains new language that clarifies how a person can comply with the containment and contingency plan requirements of the SWMA.
First, § 262a.34 (relating to accumulation time) is added to require secondary containment for generator storage of hazardous waste in containers. Second, § 263a.12 (relating to transfer facility requirements) adds requirements for PPC plan preparation for hazardous waste transfer facilities. The amendment accomplishes this through reference to § 263a.13(b)(4).
The amendment to § 264a.97 (relating to general groundwater monitoring requirements) specifies the frequency of the analyses required by that section. This final-form rulemaking eliminates setback requirements contained in § 264a.173(2) (relating to management of containers) for reactive or ignitable waste. This provision, which is not mandated, created an arbitrary distance requirement where safe management could allow a closer storage distance and duplicated certain fire safety requirements (see, for example, 37 Pa. Code § 13.1 (relating to relative location to property)).
The final-form rulemaking deletes § 265a.175 (relating to containment and collection system). This section is redundant since containment and collection system requirements are already incorporated by reference for interim status facilities in § 265a.179 (relating to containment).
The final-form rulemaking adjusts the fee schedule for permit modifications by amending § 270a.3 (relating to payment of fees). The section is amended because Class 2 permit modifications are generally much less complex than Class 3 modifications and therefore demand less time and resources from the Department for review. Appendix I to 40 CFR 270.42 (relating to permit modification at the request of the permittee) contains tables classifying the various types of permit modifications as Class 1, 2 or 3. These tables are incorporated by reference in § 270a.1(a) (relating to incorporation by reference, scope and applicability).
New language is added to § 270a.51 (relating to continuation of existing permits) to clarify when an expired permit continues in effect. This language is needed since the Federal counterpart in 40 CFR 270.51 (relating to continuation of expired permits) explicitly applies only to permits issued by the EPA. The language added matches the Federal regulation and clarifies this issue with regard to Department-issued permits.
Section 270a.60 is amended to eliminate the application of siting criteria for permit-by-rule facilities. These changes are contained in § 270a.60(b)(2)(ii), (3)(ii), (4)(ii) and (5)(ii). Permits-by-rule are generally intended to assure proper management of hazardous waste without causing overly burdensome regulation. If an issue arises regarding siting of a particular permit-by-rule facility, the Department retains the authority in § 270a.60(a) to require an owner or operator to obtain an individual permit for the facility. Under § 264a.18 (relating to location standards), the siting criteria would apply to that permit.
Finally, the incorporation by reference of 40 CFR Part 262, Subpart E (relating to exports of hazardous waste) in § 262a.10 (relating to incorporation by reference, purpose, scope and applicability) is simplified. The final-form rulemaking eliminates the separate exceptions to the ''blanket substitution of terms'' contained in §§ 262a.55--262a.57 (relating to exception report; annual reports; and recordkeeping) by deleting those sections and replacing them with a new § 262a.50 (relating to applicability) that contains the blanket exclusion of terms.
4. Manifest completion requirements or clarifications
The fourth category of changes in this final-form rulemaking addresses the administration of the manifest program for tracking the movement of hazardous waste in this Commonwealth. This is a series of changes designed to clarify ambiguous requirements for all parties involved, streamline the manifesting process and ensure that the Department receives proper notification in a timely fashion.
First, the amendment to § 262a.20(1) (relating to general requirements) clarifies that a generator does not need to send a generator copy of the manifest to the Department unless specifically required to do so. Section 262a.21 (relating to acquisition of manifests) requires Commonwealth generators of hazardous waste to use a Commonwealth manifest if the destination state for the hazardous waste does not require use of a manifest. This change is important for tracking the waste while it remains within this Commonwealth. Several changes are made to § 262a.23 (relating to use of the manifest). These changes require legible information on the manifest, clarify submission requirements for Commonwealth generators when the destination facility is out-of-State and prohibit alteration of the Manifest Tracking Number.
The amendment to § 263a.12(3) (relating to transfer facility requirements) clarifies the responsibilities of hazardous waste transporters when a shipment is transferred from one transporter to another at a transfer facility. This is another change identified as necessary through field implementation of the hazardous waste program.
The final-form rulemaking amends § 263a.20 (relating to manifest system) to give specific manifest handling guidance to subsequent transporters of hazardous waste. Section 263a.21 (relating to compliance with the manifest) is amended to require a transporter to accept only complete manifests from a hazardous waste generator and prohibits alteration of the Manifest Tracking Number. Finally, § 264a.71 (relating to use of the manifest system) requires use of a Commonwealth manifest, accounts for bulk shipment discrepancies and requires legible information by a permitted facility; the final-form rulemaking amends § 265a.71 (relating to use of the manifest system) to add the same requirements for an interim status facility.
5. Typographical errors
Finally, several sections of the 1999 RBI rulemaking contained minor typographical errors and omissions. Rather than submit a separate rulemaking for minor corrections, the Department decided to wait to make these minor changes until a broader rulemaking package was developed to update the hazardous waste program. These errors and omissions are corrected by this final-form rulemaking. The final-form rulemaking contains corrections in §§ 263a.24(b), 264a.83(a)(2) and (3), 270a.3(3), 270a.42, 270a.60(b)(1)(iv) and (5), 270a.62, 270a.66, 270a.81 and 270a.83.
E. Summary of Comments and Responses on the Proposed Rulemaking and Changes to the Proposed Rulemaking
This rulemaking was published as proposed 31 Pa.B. 6814 (December 15, 2001) with a 30-day comment period. The Department received 23 public comments from 6 commentators. The Department also received written comments from the Independent Regulatory Review Commission (IRRC). The major comments and responses, as well as any changes to the proposed rulemaking, are discussed in the following section.
1. Section 261a.3
Several public commentators requested deletion of the proposed rulemaking's requirement in § 261a.3 that solid waste be managed as hazardous waste until a proper waste determination is made. IRRC also questioned the necessity for this amendment. Among the concerns raised were that the requirement was overly prescriptive and unnecessary, imposed costs that do not result in any significant environmental benefits, was impractical because it would invoke other requirements such as requiring a hazardous waste label and code for an as yet unknown material and require materials such as contaminated soils from remedial activities to be managed as hazardous waste while the results of laboratory analyses are being performed.
The Department believes that the proposed rulemaking does not add new requirements to the regulations; it merely clarifies the existing requirement for a waste to be properly managed. ''Properly managed'' in this case means that if a waste is hazardous, it must be managed as a hazardous waste. Determining if a material is a hazardous waste does not always require laboratory analysis of the material. The existing regulation, 40 CFR 262.11, as incorporated in § 262a.10, allows a generator to apply ''generator knowledge'' to the waste or provides the option to test the waste to determine whether or not it is hazardous. Application of generator knowledge adds no new costs or time to a hazardous waste determination. Additionally, the environmental benefits associated with management of an ''undetermined'' waste as a hazardous waste are substantial. To improperly manage a hazardous waste stream can cause substantial harm to human health and the environment and add substantial costs to the generator if the waste must later be removed. The amendment is intended to affect newly generated waste and not waste in place subject to remediation activities; language was added to this subsection to clarify that intent.
2. Section 262a.12(b)(1)(iv)
Several commentators and IRRC raised concerns about the proposed rulemaking requiring notice to the Department when the generator's status changes. The existing State and Federal regulations provide for small quantity generators (SQG), conditionally exempt small quantity generators and large quantity generators (LQG). Generator status is based on the volume of waste produced by a generator during a single month, and the requirements placed on each category of generator vary accordingly. Primarily, the commentators were concerned about the clarity of this requirement and whether a temporary change in status would require notification to the Department.
The proposed rulemaking contained this provision to clarify that when a generator changes status (for example, SQG to LQG), they must submit a subsequent notification. This was not intended to require notification based on an ''episodic'' change. Examples of situations where notification was not intended to be required include where a SQG cleans out a tank once every several years and becomes a LQG for a single month, or where an LQG generates less than the LQG amount in a month. A subsequent notification is required, however, when a generator's status changes permanently. The final-form rulemaking clarifies this point in new subsection (b)(v).
3. Section 262a.43
The proposal to reinstate reporting requirements for spills and discharges of hazardous materials garnered the most comments during the public comment period. The commentators primarily focused on the proposed rulemaking's requirement that spills and discharges of hazardous materials be reported to the Department. The intent of the Department was to require reporting only of spills or discharges of hazardous wastes or of hazardous materials that become hazardous wastes when spilled or discharged. The final-form rulemaking clarifies that intent throughout the section.
Several commentators also commented on this provision from the standpoint of the relationship between State and Federal law on this issue. The commentators noted that the reporting provision was deleted as part of the changes made to implement the RBI and argued that nothing has occurred since those changes were made in 1999 that would warrant reversing those results. They further noted that the Federal hazardous waste program does not include the same type of reporting requirements as the proposed rulemaking. Instead, generators of hazardous waste are generally required to have in place emergency contingency plans that describe the steps that will be followed to minimize hazards from releases of hazardous wastes. In addition, the facility must maintain equipment to respond to emergencies involving releases of hazardous wastes.
As previously noted, section 403(b)(12) of the SWMA states that it ''shall be unlawful for any person or municipality who generates, transports, stores, treats or disposes of hazardous waste to fail to immediately notify the department and the affected municipality or municipalities of any spill or accidental discharge'' of hazardous waste. There have been many inquiries from the regulated community and Department regional staff regarding the absence of spill reporting requirements in the hazardous waste regulations. The Department agrees, in part, with the commentators' position that spill reporting requirements exist outside of the State hazardous waste regulations; however, those requirements are broader statutory provisions that have prompted uncertainty with respect to hazardous waste releases. To simplify the spill reporting requirements, several changes were made to § 262a.43 in the final-form rulemaking. Table 1 (Reporting Requirements and Hazard Codes) has been removed and the requirements for solids and liquids have been standardized. In addition, the final-form rulemaking establishes CERCLA reportable quantities as the notification limits, with the modification of including caps. The caps have been established to ensure that the Department receives notification of large spills or discharges of hazardous wastes, which might go unreported because of higher CERCLA requirements for reportable quantities. The Department believes that this notification is important for proper oversight of hazardous waste management in this Commonwealth. The notification provides the Department with basic information to determine whether the appropriate field office should follow up with a site visit. One of the reasons that the Federal regulations do not include this reporting requirement is because of an insufficient availability of Federal field investigators. Because of these factors, the Department believes that reinstatement of the provisions within the scope of the hazardous waste regulations, as modified, is warranted.
Finally, for clarity and consistency across program lines, the phrase ''surface or groundwater'' in § 262a.43(1) and (3) has been changed to ''waters of this Commonwealth.''
4. Section 263a.12(3)
The proposed requirement to add secondary containment at in-transit storage facilities where the hazardous waste would be moved off of the original vehicle to another vehicle or a loading area for temporary storage generated several comments. Generally, the commentators felt that this provision was redundant, unnecessary and beyond the scope of the Federal program given the other protective measures that are in place at in-transit storage facilities (for example, container requirements and PPC plans for both the transporter and the facility).
After consideration of these comments and recognizing the additional cost for in-transit storage facility owners to install secondary containment, the Department has deleted the secondary containment requirement from § 263a.12 in the final-form rulemaking.
5. Section 264a.97(1)
One commentator questioned the necessity of requiring groundwater monitoring at particular frequencies in the hazardous waste regulations as limiting flexibility to design an appropriate groundwater monitoring program.
The incorporated provisions in 40 CFR 264.97 authorize the monitoring and reporting requirements that were proposed in § 264a.97. The Federal regulations authorize these requirements through permit conditions rather than through a specific regulatory requirement. The Department believes that permit conditions are appropriate for requirements that are determined on a case-by-case basis rather than for requirements that are applicable to an entire class of facilities. In this case, the Commonwealth's seasonal, climatological and hydrological features, including a high water table, make it necessary to require all surface impoundments, land treatment units, landfills and in some cases waste piles operating in this Commonwealth to conduct the same type of groundwater monitoring and reporting. As a result, the Department believes that these requirements should be included in regulations rather than in permit conditions.
6. Section 270a.60(a)(1)
A commentator and IRRC raised concerns about those regulated entities who are operating under permits-by-rule on the effective date of the final-form rulemaking. While not opposing the concept of notification, they noted that it was unclear whether notification would be required for the facilities. If notification was required, the commentator recommended that the final-form rulemaking provide a transition period following the effective date of the amendments so that regulated entities are not faced with the need to submit notifications to the Department simultaneously with the publication of the final-form rulemaking in the Pennsylvania Bulletin.
The Department's intent was to receive notifications from existing facilities operating under permits-by-rule as well as from facilities that will operate under permits-by-rule in the future. The Department concedes the commentator's point regarding the need for a phase-in period for existing permit-by-rule facilities. The final rule establishes a 1-year phase-in period after the effective date of the final-form rulemaking for notification by existing permit-by-rule facilities.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the proposed regulation.
Benefits
The final-form rulemaking clarifies ambiguous provisions and eliminates redundant provisions and typographical errors. The final-form rulemaking should help to minimize confusing aspects of a complex program, enabling regulated entities to understand and meet their regulatory obligations regarding hazardous waste management. The final-form rulemaking concerning release reporting will provide the Department with timely and accurate information regarding spills and releases of hazardous wastes, which will allow the Department to properly manage staff resources for release response. The clarification that certain manifest copies do not need to be submitted to the Department should also result in cost savings to the regulated community. Finally, the Department believes that the provision that materials must be managed as hazardous waste until a proper determination is made will provide the benefit of avoiding improper management of waste.
Compliance Costs
Since the final-form rulemaking primarily clarifies and corrects the existing regulations, the Department believes that there should be no additional costs imposed on the regulated community. For example, the final-form rulemaking concerning release reporting merely clarifies an existing requirement in section 403(b)(12) of the SWMA to ''immediately notify the department and the affected municipality or municipalities of any spill or accidental discharge'' of hazardous waste.
Compliance Assistance Plan
As with previous hazardous waste management regulations, the Department's compliance assistance efforts will take three forms. Following promulgation as final-form rulemaking, the Department will prepare fact sheets specifically addressing certain changes made by this final-form rulemaking. The Department will also continue to work with the regulated community to explain impacts from the final-form rulemaking and any necessary operational changes to remain in compliance. Information concerning the final-form rulemaking and any necessary technical guidance documents will also be available on the Department's website.
Paperwork Requirements
This final-form rulemaking will result in a net reduction of paperwork requirements because of the clarifying provision that a hazardous waste generator is no longer required to submit generator copies of manifests to the Department. Section 262.93 does require additional reporting to the Department in response to certain releases; however, the Department feels that the situation of the spill or discharge of hazardous waste warrants the additional paperwork. The requirement in § 262a.12(b)(1)(iv) to notify the Department when generator status changes permanently and the requirement for notification to the Department when a facility seeks to operate under a permit-by-rule under § 270a.60(a)(1) also require minor amounts of paperwork to be submitted to the Department. Because of the importance of those issues in determining the proper regulatory requirements that apply to a facility, the Department believes that notification is necessary for it to fulfill its obligations under the SWMA. Other changes do not affect paperwork requirements.
G. Sunset Review
This final-form rulemaking will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the final-form rulemaking effectively fulfills the goals for which it was intended.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on November 29, 2001, the Board submitted a copy of the notice of proposed rulemaking, published at 31 Pa.B. 6814, to IRRC and to the Chairpersons of the House and Senate Environmental Resources and Energy Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing this final-form rulemaking, the Board has considered the comments received from IRRC, the Committees and the public.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), on October 28, 2002, this final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 7, 2002, and approved the final-form rulemaking.
I. Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law, and all comments were considered.
(3) The final-form rulemaking does not enlarge the purpose of the proposal published at 31 Pa.B. 6814.
(4) The final-form rulemaking is necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
J. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapters 260a--265a and 270a, are amended by amending §§ 260a.10, 261a.3, 261a.5, 262a.12, 262a.20, 262a.21, 262a.23, 263a.12, 263a.13, 263a.20, 263a.21, 263a.24, 263a.26, 264a.71, 264a.83, 264a.97, 264a.173, 265a.13, 265a.71, 265a.173, 270a.3, 270a.42, 270a.51, 270a.60, 270a.62, 270a.66, 270a.81 and 270a.83; by adding §§ 262a.11, 262a.34, 262a.43, 262a.50; and by deleting §§ 262a.55--262a.57 and 265a.175 to read as set forth in Annex A with ellipses referring to the existing text of the regulations.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(d) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
DAVID E. HESS,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 32 Pa.B. 5817 (November 23, 2002).)
Fiscal Note: Fiscal Note 7-364 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart D. ENVIRONMENTAL HEALTH AND SAFETY
ARTICLE VII. HAZARDOUS WASTE MANAGEMENT
CHAPTER 260a. HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
Subchapter B. DEFINITIONS § 260a.10. Definitions.
A term defined in this section replaces the definition of the term in 40 CFR 260.10, or, in situations for which no term exists in 40 CFR 260.10, the term shall be defined in accordance with this section. The substitution of terms in § 260a.3 (relating to terminology and citations related to Federal regulations) does not apply to the incorporated definition of ''EPA region,'' ''State,'' ''United States,'' ''Administrator'' and ''Regional Administrator.''
* * * * * Treatment--
(i) A method, technique or process, including neutralization, designed to change the physical, chemical or biological character or composition of waste to neutralize the waste or to render the waste nonhazardous, safer for transport, suitable for recovery, suitable for storage, or reduced in volume.
(ii) The term includes an activity or processing designed to change the physical form or chemical composition of waste to render it neutral or nonhazardous.
CHAPTER 261a. IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
Subchapter A. GENERAL § 261a.3. Definition of ''hazardous waste.''
(a) 40 CFR 261.3(c)(2)(ii)(C) (relating to certain non-wastewater residues such as slag resulting from HTMR processing of K061, K062 or F006 waste) is not incorporated by reference.
(b) In addition to the requirements incorporated by reference, except when the waste is contaminated media subject to remediation, when it is not promptly possible to determine if a material will be a hazardous waste, the material shall be managed as a hazardous waste until the determination is made that indicates it is not a hazardous waste.
§ 261a.5. Special requirements for hazardous waste generated by conditionally exempt small quantity generators.
(a) The reference to 40 CFR Part 279 in 40 CFR 261.5(c)(4) and (j) (relating to special requirements for hazardous waste generated by conditionally exempt small quantity generators) is replaced with Chapter 298 (relating to management of waste oil).
(b) In addition to the requirements incorporated by reference, a conditionally exempt small quantity generator may not dispose of hazardous waste in a municipal or residual waste landfill in this Commonwealth.
(c) A conditionally exempt small quantity generator complying with this subchapter and 40 CFR 261.5 is deemed to have a license for the transportation of those conditionally exempt small quantity generator wastes generated by the generator's own operation.
CHAPTER 262a. STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
Subchapter A. GENERAL § 262a.11. Hazardous waste determination.
In addition to the requirements incorporated by reference, a determination that a waste is not hazardous under 40 CFR 262.11 (relating to hazardous waste determination) does not preclude the Department from determining the waste to be hazardous, using the characteristics and testing methods set forth in 40 CFR Part 261 (relating to identification and listing of hazardous waste).
§ 262a.12. EPA identification numbers.
(a) Regarding the requirements incorporated by reference, the substitution of terms in § 260a.3 (relating to terminology and citations related to Federal regulations) does not apply to the incorporation by reference of 40 CFR 262.12 (relating to EPA identification numbers).
(b) In addition to the requirements incorporated by reference:
(1) A generator shall submit a subsequent notification to the Department if:
(i) The generator activity moves to another location.
(ii) The generator facility's designated contact person changes.
(iii) The ownership of the generator facility changes.
(iv) The type of regulated activity that takes place at the generator facility changes.
(v) The generator's facility class changes, except when the facility class change is temporary.
(2) A generator shall offer a shipment of hazardous waste only to a transporter with a valid license issued by the Department.
Subchapter B. MANIFEST § 262a.20. General requirements.
40 CFR 262.20 (b) and (c) (relating to general requirements) is not incorporated by reference. In addition to the requirements incorporated by reference, a generator shall:
(1) Complete the manifest form in its entirety and distribute manifest copies in accordance with the instructions for the manifest, except that generators need not submit copies of manifests to the Department unless required by § 262a.23(a)(2) (relating to use of the manifest).
(2) List no more than four waste streams on one manifest. If the generator is transporting or offering for transportation more than four different hazardous waste streams for offsite treatment, storage or disposal, the generator shall complete additional manifest forms for the remaining waste streams in the shipment, unless the waste stream is a lab pack.
(3) Complete a continuation sheet, EPA Form 8700-22a, when there are more than two transporters, or for lab packs with more than four different waste streams in one shipment.
(4) Ensure that the required information on all copies, including photocopies, of the manifest is legible to the Department, transporter and designated facility.
(5) A generator shall designate only one permitted facility to handle the waste described on the manifest.
§ 262a.21. Acquisition of manifests.
(a) The substitution of terms in § 260a.3(a)(5) (relating to terminology and citations related to Federal regulations) does not apply to 40 CFR 262.21 (relating to acquisition of manifests).
(b) In addition to the requirements incorporated by reference, a generator shipping hazardous waste to a facility in a state that does not require use of its own state manifest shall use the Department's manifest.
§ 262a.23. Use of the manifest.
(a) In addition to the requirements incorporated by reference:
(1) The generator shall print or type the generator's name and enter the date of shipment in the designated space on the manifest.
(2) If the out-of-State manifest does not include a generator-state copy to be submitted to the Department by the out-of-State designated facility, the generator shall submit a complete, legible copy, such as a photocopy, of the manifest as signed by the generator, all transporters and the designated facility. This copy shall be sent within 10 days of the generator's receipt of its signed copy from the designated facility.
(3) The generator shall obtain the printed or typed name of the transporter on the manifest.
(4) A generator may not use a hazardous waste manifest which has either a preprinted Manifest Document Number or preprinted Manifest Tracking Number that has been altered by anyone other than the printer of the manifest.
(b) The substitution of terms in § 260a.3(a)(5) (relating to terminology and citations related to Federal regulations) does not apply to 40 CFR 262.23(e) (relating to notification of shipments of hazardous waste to a facility in an authorized state which has not yet received authorization to regulate a newly designated hazardous waste).
Subchapter C. PRETRANSPORT REQUIREMENTS § 262a.34. Accumulation time.
In addition to the requirements incorporated by reference, a generator who accumulates hazardous waste onsite as specified in 40 CFR 262.34(a)(1)(i) (relating to accumulation time) shall also comply with Chapter 265a, Subchapter I (relating to use and management of containers).
Subchapter D. RECORDKEEPING AND REPORTING § 262a.43. Additional reporting.
In addition to the requirements incorporated by reference:
(1) Spills and discharges which are in amounts less than the reportable quantities, which do not result in discharges into waters of this Commonwealth, and which are managed according to an approved contingency plan, need not be reported.
(2) The reportable quantities are:
(i) Liquid hazardous waste or liquids that become hazardous waste when spilled or discharged shall be reported to the Department when the quantity spilled or discharged equals or exceeds the reportable quantity for the waste contained in 40 CFR 302.4 (relating to designation of hazardous substances) or 10 gallons, whichever is more stringent. Liquids are flowable substances which contain less than 20% solids by dry weight. Flowable refers to flow in the sense of pourable as a liquid.
(ii) Solid hazardous waste or solids that become hazardous wastes when spilled or discharged shall be reported to the Department when the quantity spilled or discharged equals or exceeds the reportable quantity for the waste contained in 40 CFR 302.4 or 500 pounds, whichever is more stringent.
(3) A discharge or spill into waters of this Commonwealth shall be reported regardless of quantity spilled or discharged.
(4) In the event of a discharge or spill equal to or greater than the reportable quantity of hazardous waste or material that becomes a hazardous waste when spilled or discharged, the generator shall take appropriate immediate action to protect the health and safety of the public and the environment and immediately notify the Department by telephone at (800) 541-2050 with the following information:
(i) The name of the person reporting the spill.
(ii) The name and identification number of the generator.
(iii) The phone number where the person reporting the spill can be reached.
(iv) The date, time and location of the spill.
(v) A brief description of the incident.
(vi) For each material involved in the spill:
(A) The shipping name, hazard class and U.N. Number.
(B) The estimated quantity of material spilled.
(vii) The extent of contamination of land, water or air, if known.
(5) If a discharge or spill of hazardous waste, or hazardous material that becomes a hazardous waste when spilled or discharged, occurs during onsite unloading, loading, storage or plan operation, and a Departmental official acting within the scope of his official responsibilities determines that immediate removal of the material is necessary to protect the health and safety of the public and the environment, that official may authorize in writing the removal of the material by transporters who do not have identification numbers or license and without the preparation of a manifest.
(6) A generator shall clean up a spill or discharge of hazardous waste, or material that becomes a hazardous waste when spilled or discharged, that occurs during onsite unloading, loading, storage or plan operation, and take actions that may be required or approved by the Department so that the discharge or spill no longer presents a hazard to the health and safety of the public or environment.
(7) In addition, the generator shall file a written report on a spill or discharge of a reportable hazardous waste or material that becomes a hazardous waste when spilled or discharged, with the Department within 15 days after the incident, and supply the Department with other information it may require or request that pertains to the discharge. The report on the spill or discharge shall be entitled ''Hazardous Waste Spill Report'' and shall contain the following information:
(i) The name, address and identification number of the generator and the date, time and location of the incident.
(ii) A brief description of the circumstances causing the incident.
(iii) A description of each of the hazardous wastes or materials that become hazardous wastes when spilled or discharged involved in the incident, including the estimated quantity spilled by weight or volume.
(iv) A legible copy of the manifest document, if applicable.
(v) A description of a contamination of land, water or air that has occurred due to the incident.
(vi) A description of the actions the generator intends to take to prevent a similar occurrence in the future.
Subchapter E. EXPORTS OF HAZARDOUS WASTE § 262a.50. Applicability.
Relative to the requirements incorporated by reference, the substitution of terms in § 260a.3 (relating to terminology and citations related to Federal regulations) does not apply to the incorporation by reference of 40 CFR Part 262, Subpart E (relating to exports of hazardous waste).
§ 262a.55--262a.57. (Reserved).
[Continued on next Web Page]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
