§ 289.422. Areas where Class I residual waste disposal impoundments are prohibited.
(a) Except for areas that were permitted prior to July 4, 1992, Class I residual waste disposal impoundments may not be operated:
(1) In the 100-year floodplain of waters of this Commonwealth.
(2) In or within 300 feet of an exceptional value wetland.
(3) In or within 100 feet of a wetland other than an exceptional value wetland, unless storage, processing and disposal will not occur within that distance and one of the following is true:
(i) If the operation is in or along the wetland, the operator has received a permit from the Department under Chapter 105 (relating to dam safety and waterway management).
(ii) If the operation is not in or along the wetland, no adverse hydrologic or water quality impacts will result.
(4) In coal bearing areas underlain by recoverable or mineable coals unless the permittee owns the underlying coal.
(5) In a valley, ravine or head of hollow where the operation would result in the elimination, pollution or destruction of a portion of a perennial stream, except that rechanneling may be allowed as provided in Chapter 105.
(6) In areas underlain by limestone or carbonate formations where the formations are greater than 5 feet thick and present at the topmost geologic unit. These areas include areas mapped by the Pennsylvania Geological Survey as underlain by the formations, unless competent geologic studies demonstrate the absence of limestone and carbonate formations.
(7) If occupied dwellings are nearby, the following apply:
(i) Except as provided in subparagraphs (ii) and (iii), a residual waste disposal impoundment may not be operated within 300 feet measured horizontally from an occupied dwelling, unless the owner thereof has provided a written waiver consenting to the facility being closer than 300 feet. Except as provided in subparagraphs (ii) and (iii), the disposal area of a residual waste landfill may not be within 500 feet measured horizontally from an occupied dwelling, unless the owner thereof has provided a written waiver consenting to the disposal area being closer than 500 feet. A waiver shall be knowingly made and separate from a lease or deed unless the lease or deed contains an explicit waiver from the owner.
(ii) For a permitted noncaptive residual waste disposal impoundment that was operating and not closed as of January 13, 2001, an expansion permitted on or after January 13, 2001, may not be operated within 900 feet measured horizontally from an occupied dwelling, unless one or both of the following conditions are met:
(A) The owner of the dwelling has provided a written waiver consenting to the facility or disposal area being closer than 900 feet. A waiver shall be knowingly made and separate from a lease or deed unless the lease or deed contains an explicit waiver from the owner.
(B) The applicant owned or entered into an enforceable option contract to purchase the land on which the expansion would operate on or before January 13, 2001, and still holds the option rights, still owns the land or owns the land pursuant to the option rights contract when the permit expansion is issued. Even if the requirement of this subparagraph is met, the expansion may not be operated within 300 feet measured horizontally from an occupied dwelling and the disposal area may not be within 500 feet measured horizontally from an occupied dwelling.
(iii) A new, noncaptive residual waste disposal impoundment, permitted on or after January 13, 2001, may not be operated within 900 feet measured horizontally from an occupied dwelling, unless the owner of the dwelling has provided a written waiver consenting to the facility being closer than 900 feet. A waiver shall be knowingly made and separate from a lease or deed unless the lease or deed contains an explicit waiver from the owner. A closed, noncaptive disposal impoundment that submits an application to reopen and expand shall also be subject to this paragraph.
(iv) Notwithstanding the prohibitions in subparagraphs (ii) and (iii), an access road to a residual waste disposal impoundment may not be operated within 300 feet measured horizontally from an occupied dwelling, unless the owner of the dwelling has provided a written waiver consenting to the access road being closer than 300 feet. A waiver shall be knowingly made and separate from a lease or deed unless the lease or deed contains an explicit waiver from the owner.
(8) 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 result.
(9) Within 100 feet of a property line, unless one of the following applies:
(i) Actual disposal will not occur within that distance.
(ii) The owner has provided a written consent to the facility being closer than 100 feet. The waiver shall be knowingly made and separate from a lease or deed unless the lease or deed contains an explicit waiver from the owner.
(10) For disposal, processing and storage areas, within 1/4 mile upgradient, and within 300 feet downgradient, of a private or public water source, except that the Department may waive or modify these isolation distances if the operator demonstrates and the Department finds, in writing, that the following conditions have been met:
(i) The owners of the public and private water sources in the isolation area have consented, in writing, to the location of the proposed facility.
(ii) The operator and each water source owner have agreed, in writing, that the applicant will construct and maintain at the operator’s expense a permanent alternative water supply of like quantity and quality at no additional cost to the water source owner if the existing source is adversely affected by the facility.
(iii) The applicant has demonstrated that a replacement water source is technically and economically feasible and readily available for every public or private water source in the isolation area.
(11) If the facility receives or proposes to receive putrescible waste:
(i) Within 10,000 feet—or 3,048 meters—of an airport runway that is or will be used by turbine-powered aircraft during the life of disposal operations under the permit.
(ii) Within 5,000 feet—or 1,524 meters—of an airport runway that is or will be used by piston-type aircraft during the life of disposal operations under the permit.
(iii) For areas permitted on or after January 13, 2001, in a manner in which any portion of the impoundment would be an obstruction to air navigation under 14 CFR 77.23(a)(5) (relating to standards for determining obstructions).
(12) If a school, park or playground is nearby, the following apply:
(i) Except for an expansion of a noncaptive residual waste disposal impoundment permit issued prior to January 13, 2001, for a noncaptive residual waste disposal impoundment permit issued on or after January 13, 2001, within 300 yards of the following:
(A) A building which is owned by a school district or school and used for instructional purposes.
(B) A park.
(C) A playground.
(ii) The current property owner of a school building, park or playground may waive the 300-yard prohibition by signing a written waiver. Upon receipt of the waiver, the Department will waive the 300-yard prohibition and will not use the prohibition as the basis for the denial of a new permit.
(b) The Department may waive or modify one or more of the isolation distances in subsection (a)(1), (5), (7), (8) and (10) for expansions of captive facilities if the operator of the captive facility demonstrates all of the following to the Department’s satisfaction:
(1) The captive facility was permitted prior to July 4, 1992, or was permitted after July 4, 1992, if the Department determined the permit application for the facility to be administratively complete prior to July 4, 1992.
(2) The captive facility routinely and regularly disposed of residual waste on and after July 4, 1992.
(3) The expansion of the captive facility solely includes land which is contiguous to the captive facility.
(4) The expansion of the captive facility solely includes land which is owned by the applicant on July 4, 1992.
(5) No other site is available on contiguous land for the expansion of the captive facility.
(6) The expansion of the captive facility will be designed and operated to ensure that the facility does not harm public health, safety, welfare or the environment.
(c) Subsection (b) does not authorize the expansion of a captive facility onto land which is located closer to any occupied dwelling than the facility is located prior to the expansion.
(d) Except as provided in subsection (e), this section does not apply to features that may come into existence after the date of the first newspaper notice of the filing of a permit application under § 287.151 (relating to public notice by applicant).
(e) This section does not apply to features that may come into existence after the date of the first newspaper notice under this subsection if the following apply:
(1) The person or municipality publishes a notice of intent to file an application for a residual waste disposal impoundment permit. The notice, which is separate from the newspaper notice required by § 287.151, shall be published once a week for 3 consecutive weeks in a newspaper of general circulation in the area where the facility is proposed to be located. The notice shall include a brief description of the location and proposed operation of the facility.
(2) The person or municipality files an administratively complete application under § 287.202 (relating to completeness review) with the Department within 1 year from the date of the first newspaper notice under this subsection.
(f) The Department may waive the isolation distances in this section for areas that were included in the permit area of a permit application that was determined by the Department to be administratively complete before July 4, 1992.
Source The provisions of this § 289.422 amended January 12, 2001, effective January 13, 2001, 31 Pa.B. 235. Immediately preceding text appears at serial pages (226754) to (226756).
Cross References This section cited in 25 Pa. Code § 287.111 (relating to notice by impoundments and unpermitted processing or disposal facilities); 25 Pa. Code § 289.113 (relating to maps and related information); and 25 Pa. Code § 289.421 (relating to basic limitations).
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