Subchapter B. CERTIFICATES OF PUBLIC NECESSITY
GENERAL PROVISIONS Sec.
269a.101. Definitions.
269a.102. Scope and applicability.
269a.103. CPN.
CONFLICT OF INTEREST
269a.111. Conflict of interest.
APPLICATION REQUIREMENTS
269a.121. Eligible applicants.
269a.122. Application.
269a.123. Application fee.
269a.124. Public notice of application submitted to the EQB.
EQB PROCEDURE
269a.131. Complete application.
269a.132. Local government representatives.
PUBLIC REVIEW AND COMMENT
269a.141. Initial public notice.
269a.142. Local docket and mailing list.
269a.143. Public hearing.
CRITERIA FOR ISSUING CPNs
269a.151. General criterion.
269a.152. Conformance with the Hazardous Waste Facilities Plan.
269a.153. Impact on adjacent populated areas.
269a.154. Local health, safety, economic impact and planning.
269a.155. Public participation.
EQB DECISION
269a.161. Deadline for decision.
269a.162. Record of decision.
269a.163. Public notice of decision.
GENERAL PROVISIONS
§ 269a.101. Definitions.
(a) The following words and terms when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
CPN—Certificate of public necessity.
Chairperson—Chairperson of the EQB.
Impact assessment—A report, analysis or module previously prepared by or on behalf of the applicant to comply with existing Federal or State permitting or regulatory requirements. The term includes solid waste management permit modules and analyses submitted to meet the requirements of Subchapter A (relating to siting hazardous waste treatment and disposal facilities) and established State and Federal permitting requirements.(b) Words and terms not otherwise defined in this section have the meanings in § § 260a.10 and 269a.1 (relating to definitions; and definitions).
§ 269a.102. Scope and applicability.
This subchapter establishes application requirements and procedures governing the review and consideration of an application for a CPN from the EQB under section 105 of the act (35 P. S. § 6018.105). A permittee of a hazardous waste treatment or disposal facility may apply for a CPN under this subchapter.
§ 269a.103. CPN.
(a) The EQB has the power and its duty is to assist in the implementation of the Pennsylvania Hazardous Waste Facilities Plan through the issuance of CPNs for the establishment of hazardous waste treatment and disposal facilities.
(b) Issuance of a CPN by the EQB shall suspend and supersede local laws, including zoning ordinances, which would preclude or prohibit the establishment of a hazardous waste treatment or disposal facility.
(c) The suspension and supersession granted by the CPN is explicitly extended to a person to whom the CPNs are issued for the purpose of hazardous waste treatment or disposal, and to the successors and assigns of the person.
CONFLICT OF INTEREST
§ 269a.111. Conflict of interest.
A member or alternate of the EQB or staff designated to review any aspect of an application for a CPN who may have a potential conflict of interest as described in the act of October 4, 1978 (P. L. 883, No. 170) (65 P. S. § § 401—413), the State Adverse Interest Act (71 P. S. § § 776.1—776.7a) and 4 Pa. Code Chapter 7, Subchapter K (relating to code of conduct for appointed officials and State employes) or other applicable codes of conduct shall immediately notify the Chairperson of the potential conflict. The Chairperson will advise the EQB of the potential conflict. The EQB may recommend that the member, alternate or staff abstain from participation in the proceedings or may seek a ruling regarding the conflict under the applicable ethics law or code of conduct.
APPLICATION REQUIREMENTS
§ 269a.121. Eligible applicants.
An applicant for a CPN shall have:
(1) Permits necessary for construction and operation of a new or modified facility from the Department or the Federal agency authorized to issue permits in this Commonwealth.
(2) Implemented impact assessments and public participation programs related to obtaining those permits.
§ 269a.122. Application.
The applicant shall submit eight copies of the following items in an application for a CPN to the Chairperson by certified mail:
(1) The hazardous waste permit issued for the treatment or disposal facility by the Department or the Federal agency, or both, authorized to issue permits in this Commonwealth.
(2) Documentation of the applicant’s receipt of other State and Federal permits necessary for construction and operation of the facility.
(3) Impact assessments related to the facility.
(4) Local laws and ordinances, if any, which the applicant believes may preclude or prohibit the establishment of a hazardous waste treatment or disposal facility on the proposed site.
(5) A narrative description, including supporting documentation and appropriate references, demonstrating the extent to which the applicant has complied with § § 269a.151—269a.155 (relating to criteria for issuing CPNs).
(6) Other information the applicant feels will help the EQB determine if a CPN is warranted based upon the criteria in § § 269a.151—269a.155.
(7) A summary of the application which describes the type of facility for which this CPN is requested and includes a summary of paragraphs (1)—(6). The summary shall be five pages or less in length.
§ 269a.123. Application fee.
(a) An application shall be accompanied by a one-time minimum nonrefundable application fee of $1,500.
(b) The applicant shall reimburse the Board for actual expenses incurred for reviewing and acting on the application beyond the expenses covered by the minimum fee.
(c) An applicant resubmitting a CPN application for the same facility is exempt from the minimum fee but is responsible for the expenses incurred by the Board for reviewing and acting upon the application.
Cross References This section cited in 25 Pa. Code § 269a.132 (relating to local government representatives); and 25 Pa. Code § 269a.142 (relating to local docket and mailing list).
§ 269a.124. Public notice of application submitted to the EQB.
(a) The applicant shall provide written notice by certified mail of its submission of an application for a CPN to the EQB within 10 days of the submittal to:
(1) The host municipality and host county.
(2) Other counties within 10 miles and other municipalities within 1 mile of the proposed facility.
(3) The landowners adjacent to the proposed site.
(b) The applicant shall publish a notice of the submission of the CPN application in a display advertisement in two newspapers of general circulation in the county of the proposed site once a week for 2 successive weeks and send proof of publication of this notice to the EQB.
(c) The notices required by this section shall also include the name, address and telephone number of the applicant, including the name and location—municipality and county—of the facility, a brief description of the business conducted or activity described in the application, and a contact person in the applicant’s office from whom interested citizens may obtain further information.
(d) Acceptable proof of notice required by this section will include certified mail receipts and proof of publication from newspaper publishers.
EQB PROCEDURE
§ 269a.131. Complete application.
(a) Upon receipt of an application for a CPN by the Board, the application shall be reviewed for completeness.
(b) The Chairperson will notify the EQB that an application has been received at the first EQB meeting following its receipt. The EQB will determine whether an application for a CPN is complete within 60 days of the Chairperson’s notification to the EQB.
(c) Upon a determination by the EQB that the application is complete, the Chairperson will initiate the public review and comment procedures outlined in § § 269a.132 and 269a.141 (relating to local government representatives; and initial public notice) and notify the applicant. The Chairperson will provide a copy of the complete application to the host county and host municipality.
(d) An application determined to be incomplete shall be returned to the applicant with an explanation of why the application is incomplete.
(e) After the application is determined to be complete, the EQB reserves the right to request additional information relevant to its decision under section 105(f) and (g) of the act (35 P. S. § 6018.105(f) and (g)).
§ 269a.132. Local government representatives.
(a) When the EQB has accepted a complete CPN application for consideration, the EQB will ask the governing body of the host county and the governing body of the host municipality—township, borough, town, home rule municipality or city—to each name one representative who will be invited to be present during EQB deliberations and hearings on the application and receive copies of materials given EQB members during the consideration of an application accepted for review.
(b) The role of the local government representative shall be to participate in the deliberations of the EQB as it considers the application. The representatives will not have voting rights on the EQB.
(c) A local government representative will be reimbursed for expenses incurred in participating with the EQB as outlined in Management Directive 230.10 (Travel and Subsistence Allowances), issued by the Governor’s Office through the Directives Management System. See 4 Pa. Code Chapter 1, Subchapter A (relating to directives management system). This cost will be recovered as part of the cost of review of the application in the application fee under § 269a.123 (relating to application fee).
Cross References This section cited in 25 Pa. Code § 269a.131 (relating to complete application).
PUBLIC REVIEW AND COMMENT
§ 269a.141. Initial public notice.
The EQB will issue a press release and publish a notice in the Pennsylvania Bulletin and two newspapers of general circulation in the county of the proposed facility once a week for 2 successive weeks. The notices and press release shall state that the EQB is considering a complete application for a CPN, and shall include the following items:
(1) The name, address and telephone number of the applicant.
(2) The location and description of the proposed facility.
(3) A description of the process followed by the EQB to consider an application for a CPN.
(4) The location of a local docket where application materials can be reviewed by interested persons in the host municipality or county.
(5) An invitation to interested persons to include their name on a mailing list established by the EQB to receive future notices concerning the CPN application.
Cross References This section cited in 25 Pa. Code § 269a.131 (relating to complete application); 25 Pa. Code § 269a.143 (relating to public hearing); and 25 Pa. Code § 269a.163 (relating to public notice of decision).
§ 269a.142. Local docket and mailing list.
(a) The EQB will establish a docket in a publicly accessible location in the host municipality or county as near as practical to the proposed facility where materials related to the EQB’s consideration of the CPN application can be made available to the public for review.
(b) The EQB will establish and maintain a mailing list of persons interested in receiving notices concerning the CPN application.
(c) If the docket is located in a publicly-owned or operated building, the EQB will compensate the building owner or operator for the cost of maintaining the docket for public review. This cost will be recovered as part of the cost of review of the application in the application fee under § 269a.123 (relating to application fee).
Cross References This section cited in 25 Pa. Code § 269a.143 (relating to public hearing); and 25 Pa. Code § 269a.163 (relating to public notice of decision).
§ 269a.143. Public hearing.
(a) The EQB will schedule at least one public hearing on the application in the host municipality or county within 90 days of the acceptance of a complete application for consideration.
(b) Notice of the hearing will be given 30 days before the hearing by the EQB as outlined in § 269a.141 (relating to initial public notice) and to those on the mailing list in § 269a.142 (relating to local docket and mailing list).
(c) A minimum of three members of the EQB will be present at a hearing scheduled on the application. The hearing shall be transcribed and the transcript shall be available to the EQB for review.
(d) The public comment period will remain open for comments for at least 30 days after the last public hearing on the application.
(e) The public comment period may be extended up to 60 days by the EQB if significant new information is forthcoming that warrants the extension.
Cross References This section cited in 25 Pa. Code § 269a.161 (relating to deadline for decision).
CRITERIA FOR ISSUING CPNs
§ 269a.151. General criterion.
The EQB will evaluate the information received from the applicant, the comments received on the application during the comment period and other relevant information in reaching its decision on the application.
Cross References This section cited in 25 Pa. Code § 269a.122 (relating to application); and 25 Pa. Code § 269a.162 (relating to record of decision).
§ 269a.152. Conformance with the Hazardous Waste Facilities Plan.
(a) The EQB will determine the extent to which the facility is in conformance with the Hazardous Waste Facilities Plan (Plan) as adopted and amended by the EQB.
(b) The EQB will determine whether the facility is needed as defined by the Plan and whether the facility is consistent with the waste management hierarchy outlined in the Plan.
Cross References This section cited in 25 Pa. Code § 269a.122 (relating to application); and 25 Pa. Code § 269a.162 (relating to record of decision).
§ 269a.153. Impact on adjacent populated areas.
(a) The EQB will determine the impact of the proposed facility on adjacent populated areas and areas through which wastes are transported to the facility.
(b) In making this determination the EQB may consider how the facility has complied with siting criteria under § § 269a.46 and 269a.48 (relating to transportation standards; and proximity of facilities and structures).
Cross References This section cited in 25 Pa. Code § 269a.122 (relating to application); and 25 Pa. Code § 269a.162 (relating to record of decision).
§ 269a.154. Local health, safety, economic impact and planning.
(a) The EQB will determine the impact of the facility on the borough, township, town, home rule municipality or city in which the facility is located in terms of health, safety, cost and consistency with local planning.
(b) In making this determination the EQB may consider how the facility has complied with siting criteria in § § 269a.45, 269a.47 and 269a.49 (relating to land use; safety services; and economic criteria).
Cross References This section cited in 25 Pa. Code § 269a.122 (relating to application); and 25 Pa. Code § 269a.162 (relating to record of decision).
§ 269a.155. Public participation.
(a) The EQB will consider the extent to which the applicant has implemented guidelines developed by the EQB at Chapter 24 (relating to model procedure for meaningful public participation—statement of policy) relating to public participation in the location of a hazardous waste treatment and disposal facility as significant evidence of the applicant’s willingness to provide the public with a meaningful opportunity to participate in the evaluation of alternate sites or technologies, development of siting criteria, socioeconomic assessment and other phases of the site selection process.
(b) The EQB will also consider cooperative agreements developed between the applicant and host county and host municipality as further evidence of meaningful public participation.
(c) The EQB will determine the extent to which the proposed facility has been the subject of a public participation program in which citizens have had a meaningful opportunity to participate in the evaluation of alternative sites or technologies, development of siting criteria, socioeconomic assessment and other phases of the site selection process.
Cross References This section cited in 25 Pa. Code § 269a.122 (relating to application); and 25 Pa. Code § 269a.162 (relating to record of decision).
EQB DECISION
§ 269a.161. Deadline for decision.
(a) The EQB will issue its decision on the application within 180 calendar days of its determination that the application is complete.
(b) The EQB may consider extending the deadline for decision if one of the following occurs:
(1) The applicant and host county and host municipality make a written recommendation to the Board for an extension because they are close to agreement on cooperative agreements that would resolve key issues.
(2) The EQB extends the public comment period under § 269a.143 (relating to public hearing).
(c) The extension will be for 60 days or less.
(d) The EQB will have 60 days after an extension to issue its decision.
§ 269a.162. Record of decision.
(a) A written record of decision outlining the findings of the EQB under each of the criteria established in § § 269a.151—269a.155 (relating to criteria for issuing CPNs) will be issued by the EQB.
(b) The record of decision will include a summary of comments received by the EQB on the CPN application and a response indicating how the comments were considered by the EQB.
§ 269a.163. Public notice of decision.
(a) The Chairperson will notify the applicant in writing of the EQB decision on the application for a CPN within 10 days.
(b) The Chairperson will also notify in writing the host municipality, the host county and persons identified on the mailing list established under § 269a.142 (relating to local docket and mailing list) of the EQB decision within 10 days.
(c) The Department will provide additional notice of the decision of the EQB as described in § 269a.141 (relating to initial public notice).
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