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).
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[Continued from previous Web Page] CHAPTER 263a. TRANSPORTERS OF HAZARDOUS WASTE Subchapter A. GENERAL § 263a.12. Transfer facility requirements.
In addition to the requirements incorporated by reference:
(1) A transporter storing hazardous waste at a transfer facility for periods of not more than 10 days but greater than 3 days shall prepare an in-transit storage preparedness, prevention and contingency plan in addition to the transporter contingency plan as required by § 263a.13(b)(4) (relating to licensing). This plan shall be submitted under section 403(b)(10) of the act (35 P. S. § 6018.403(b)(10)) and approved in writing by the Department prior to the initiation of the storage.
(2) A transporter transferring hazardous waste from one vehicle to another at a transfer facility shall prepare an in-transit storage preparedness, prevention and contingency plan in addition to the transporter contingency plan as required by § 263a.13(b)(4). This plan shall be submitted under section 403(b)(10) of the act and shall be approved in writing by the Department.
(3) A transporter delivering hazardous waste to another transporter at a transfer facility shall do the following:
(i) Obtain the printed or typed name and signature of the subsequent transporter and the date of the transfer in the designated location on the manifest.
(ii) If the subsequent transporter is not present at the transfer facility while the delivering transporter is at the transfer facility, obtain the location address of the transfer facility, the printed or typed name and signature of the transfer facility operator, and the date of delivery to the transfer facility, assuring the information is entered in Item 15 of the manifest.
(iii) If neither the subsequent transporter nor a representative of the transfer facility is present, enter the location address of the transfer facility, the subsequent transporter's printed or typed name and signature, and the date of delivery to the transfer facility in Item 15 of the manifest.
(iv) Assure all the information required by subparagraphs (i)--(iii) is legible on remaining copies of the manifest.
§ 263a.13. Licensing.
(a) Except as otherwise provided in subsection (b), § 263a.30, § 261a.5(c), § 266a.70(1) or § 266b.50, a person or municipality may not transport hazardous waste within this Commonwealth without first obtaining a license from the Department.
(b) A person or municipality desiring to obtain a license to transport hazardous waste within this Commonwealth shall:
(1) Comply with 40 CFR 263.11 (relating to EPA identification number).
(2) File a hazardous waste transporter license application with the Department. The application shall be on a form provided by the Department and completed as required by the instructions supplied with the form.
(3) Deposit with the Department a collateral bond conditional upon compliance by the licensee with the act, this article, the terms and conditions of the license and a Department order issued to the licensee. The amount, duration, form, conditions and terms of the bond shall conform to § 263a.32 (relating to bonding).
(4) In accordance with the Department's guidelines for contingency plans, submit a transporter contingency plan for effective action to minimize and abate discharges or spills of hazardous waste from an incident while transporting hazardous waste.
(5) Supply the Department with relevant additional information it may require.
(c) Upon receiving the application and the information required in subsection (b), the Department evaluates the application for a license and other relevant information and issues or denies the license. If a license is denied, the Department will advise the applicant in writing of the reasons for denial.
(d) A license granted or renewed under this chapter is valid for 2 years unless the Department determines that circumstances justify issuing a license for less than 2 years. The expiration date will be set forth on the license.
(e) A license to transport hazardous wastes is nontransferable and nonassignable and usable only by the licensee and employees of the licensee.
(f) The Department may revoke or suspend a license in whole or in part for one or more of the following reasons:
(1) Violation of an applicable requirement of the act or a regulation promulgated under the act.
(2) Aiding or abetting the violation of the act or a regulation promulgated under the act.
(3) Misrepresentation of a fact either in the application for the license or renewal or in information required or requested by the Department.
(4) Failure to comply with the terms or conditions placed upon the license or renewal.
(5) Failure to comply with an order issued by the Department.
(6) Failure to maintain the required bond amount.
(g) The application for a license shall be accompanied by a check for $500 payable to the ''Commonwealth of Pennsylvania.'' The application for license renewal shall be accompanied by a check for $250 payable to the ''Commonwealth of Pennsylvania.''
(h) In addition to the fees required by subsection (g), the transporter shall submit a fee of $5 for each license card requested in excess of ten cards.
(i) The licensee shall notify the Department within 30 days of any change in the information contained in the license application.
(j) A copy of the transporter contingency plan approved at licensure or approved as amended shall be carried on the transport vehicle while transporting hazardous waste.
Subchapter B. COMPLIANCE WITH THE MANIFEST SYSTEM AND RECORDKEEPING § 263a.20. Manifest system.
(a) 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 in 40 CFR 263.20 (relating to manifest system), as incorporated by reference into this chapter.
(b) In addition to the requirements incorporated by reference:
(1) A transporter shall print or type the transporter's name.
(2) The second and any subsequent highway transporter shall print or type their name, and sign and date the manifest or continuation sheet in the designated location.
(3) A transporter shall obtain the printed or typed name of the subsequent transporter or representative of the designated facility.
§ 263a.21. Compliance with the manifest.
In addition to the requirements incorporated by reference:
(1) A transporter may not accept or transport hazardous waste if the number or type of containers or quantity of waste to be transported does not correspond with the number, type or quantity stated on the manifest.
(2) A transporter may not accept a manifest from a generator unless it is completed in accordance with 40 CFR 262.20 and § 262a.20 (relating to general requirements).
(3) A transporter may not accept 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.
§ 263a.24. Documentation of hazardous waste transporter fee submission.
(a) A transporter receiving or delivering hazardous waste to or from a site in this Commonwealth shall submit specific information to the Department to document that the amount of fees submitted under § 263a.23 (relating to hazardous waste transportation fee) is accurate. This information shall be provided on forms provided or approved by the Department.
(1) A transporter who has transported hazardous waste during a quarter shall submit completed forms ER-WM-55G and ER-WM-55H, or their successor documents, with the appropriate fees.
(2) A transporter who has not transported hazardous waste during a quarter shall submit only form ER-WM-55G.
(b) The required forms shall be completed by the transporter in conformance with instructions provided.
(c) A transporter shall, upon request from the Department, provide additional information or documentation regarding its hazardous waste transportation activities necessary for the Department to assess the accuracy of the information contained on the required forms and the amount of fees due.
§ 263a.26. Assessment of penalties.
(a) Consistent with section 605 of the act (35 P. S. § 6018.605) and section 1104 of the Hazardous Sites Cleanup Act (35 P. S. § 6020.1104) and the regulations thereunder, this section sets forth civil penalties for certain violations. This section does not limit the Department's authority to assess a higher penalty for the violations identified in this section, or limit the Department's authority to proceed with appropriate criminal penalties.
(b) If a person or municipality fails to submit the hazardous waste transportation fees as required by § 263a.23(d) (relating to hazardous waste transportation fee), fails to submit properly completed documents required by § 263a.24 (relating to documentation of hazardous waste transporter fee submission) or fails to meet the time schedule for submission established by § 263a.23(e), the Department may assess a minimum civil penalty of $500 for submissions which are less than 15 days late, and $500 per day for each day thereafter.
(c) If a person or municipality falsifies information relating to hazardous waste transportation fees required by this chapter and the Hazardous Sites Cleanup Act (35 P. S. §§ 6020.101--6020.1305), the Department may assess a minimum civil penalty of $1,000.
(d) Failure to comply with the fee payment and documentation requirements of this chapter constitutes grounds for suspension or revocation of a hazardous waste transporter license, denial of issuance or renewal of a license, and for forfeiture of the hazardous waste transporter's collateral bond, in addition to civil penalties set forth in this section.
CHAPTER 264a. OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE AND DISPOSAL FACILITIES Subchapter E. MANIFEST SYSTEM, RECORDKEEPING AND REPORTING § 264a.71. Use of the manifest system.
In addition to the requirements incorporated by reference:
(1) An owner or operator, or the agent of the owner or operator, may not accept hazardous waste for treatment, storage or disposal unless it is accompanied by the Department's manifest, unless a manifest is not required by 40 CFR 262.20(e) (relating to the manifest general requirements).
(2) Within 30 days of the delivery, the owner or operator or the agent of the owner or operator shall send the specified copies of the manifest to the Department and generator state, as required.
(3) The owner or operator or other agent of the designated facility shall state in the Discrepancy Indication Space on the respective manifest and continuation sheet the actual quantity received in bulk shipment.
(4) The name of the designated facility representative signing the manifest shall be printed or typed on the manifest.
§ 264a.83. Administration fees during closure.
(a) The owner or operator shall complete closure activities in accordance with the approved closure plan and within 180 days after receiving the final volume of wastes. The Department may approve a longer closure period if the owner or operator demonstrates that:
(1) The closure activities will, of necessity, take longer than 180 days to complete or the following:
(i) The facility has the capacity to receive additional wastes.
(ii) There is reasonable likelihood that a person other than the owner or operator will recommence operation of the site.
(iii) Closure of the facility would be incompatible with continued operation of the site.
(2) The owner or operator has taken and will continue to take all steps to prevent threats to human health and the environment from the unclosed but inactive facility. Under 40 CFR 264.112(d) (relating to closure plan; amendment of plan) and paragraph (1)(i), if operation of the site is recommenced, the Department may defer completion of closure activities until the new operation is terminated. The deferral shall be in writing.
(3) The demonstrations referred to in 40 CFR 264.112(d) and this section shall be made as follows:
(i) The demonstrations in 40 CFR 264.112(d) shall be made at least 30 days prior to the expiration of the 60-day period.
(ii) The demonstrations in this section shall be made at least 30 days prior to the expiration of the 180-day period.
(b) A nonrefundable administration fee in the form of a check payable to the ''Commonwealth of Pennsylvania'' shall be forwarded to the Department within 30 days after receiving the final volumes of waste, and on or before January 20th of each succeeding year until the requirements of § 264a.115 (relating to certification of closure) are met. The fee shall be:
(1) Land disposal facilities--$100.
(2) Impoundments--$100.
(3) All other facilities--$50.
Subchapter F. RELEASES FROM SOLID WASTE MANAGEMENT UNITS § 264a.97. General groundwater monitoring requirements.
In addition to the requirements incorporated by reference:
(1) The owner or operator shall keep records of analyses and evaluations of groundwater quality and surface elevations, which shall be conducted quarterly, and flow rate and direction determinations, which shall be conducted annually. These evaluations and determinations shall be conducted as required under 40 CFR Part 264, Subpart F (relating to releases from solid waste management units).
(2) The owner or operator shall report the following information in writing to the Department:
(i) During the first year when initial background concentrations are being established for the facility: concentrations or values of the parameters listed in 40 CFR 264.98(a) (relating to detection monitoring program) for an upgradient groundwater monitoring well within 15 days after completing a quarterly analysis and no later than 30 days after the end of a quarter.
(ii) Quarterly after the first year: concentrations or values of the parameters in 40 CFR 264.98(a) and required under 40 CFR 264.97(g) (relating to detection monitoring program), for each groundwater monitoring well, along with the required evaluations for these parameters under 40 CFR 264.97(h), within 15 days after completing a quarterly analysis and no later than 30 days after the end of a quarter.
(iii) Annually: concentrations or values of those parameters for each well which are specified by the facility's permit within 15 days of completing the annual analysis.
(iv) Annually: those determinations for the groundwater flow rate and direction specified in 40 CFR 264.99(e) (relating to compliance monitoring).
(3) The owner or operator shall report the groundwater quality required by paragraph (2) and 40 CFR 264.97 at a monitoring point established under 40 CFR 264.95 (relating to point of compliance) in a form necessary for the determination of statistically significant increases under 40 CFR 264.98 (relating to detection monitoring program).
Subchapter I. USE AND MANAGEMENT OF CONTAINERS § 264a.173. Management of containers.
In addition to the requirements incorporated by reference:
(1) For indoor storage of reactive or ignitable hazardous waste, the container height, width and depth of a group of containers shall provide a configuration and aisle spacing which insures safe management and access for purposes of inspection, containment and remedial action with emergency vehicles. The configuration shall be specified in the permit application.
(2) For outdoor storage of reactive or ignitable hazardous waste, the container height, width and depth of a group of containers shall provide a configuration and aisle spacing which insures safe management and access for purposes of inspection, containment and remedial action with emergency vehicles. The configuration shall be specified in the permit application.
(3) For indoor or outdoor storage of nonreactive or nonignitable hazardous waste, the container height, width and depth of a group of containers shall provide a configuration and aisle spacing which insures safe management and access for purposes of inspection, containment and remedial action with emergency vehicles. The configuration shall be specified in the permit application.
CHAPTER 265a. INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE AND DISPOSAL FACILITIES Subchapter B. GENERAL FACILITY STANDARDS § 265a.13. General and generic waste analysis.
In addition to the requirements incorporated by reference:
(1) Except as provided in paragraphs (4) and (5), before an owner or operator treats, stores or disposes of a specific hazardous waste from a specific generator for the first time, the owner or operator shall submit to the Department for approval, on a form provided by the Department, or on a form approved by the Department, a Module 1 report which the owner or operator shall retain for 3 years. The report shall include the following information:
(i) A detailed chemical and physical analysis of the waste.
(ii) A description of the waste and the process generating the waste.
(iii) The name and address of the hazardous waste management facility.
(iv) A description of the hazardous waste management facility's treatment, storage and disposal methods.
(v) Results of liner compatibility testing.
(vi) An assessment of the impact of the waste on the hazardous waste management facility.
(vii) Other information which the Department may prescribe for the Department to determine whether the waste will be treated, stored or disposed of in accordance with this chapter. The chemical and physical analysis of the waste shall be repeated under one or more of the following circumstances:
(A) When necessary to ensure that it is accurate and up-to-date.
(B) When the owner or operator is notified, or has reason to believe, that the process or operation that generates the hazardous waste has changed.
(C) For offsite facilities or onsite facilities receiving waste from offsite sources, when the results of the inspection or analysis, or both, of each hazardous waste indicates that the waste received at the facility does not match the description of the waste on the accompanying manifest or shipping paper.
(2) The owner or operator shall develop and follow a written waste analysis plan in compliance with 40 CFR 265.13 (relating to general waste analysis) which shall be submitted to the Department for approval at a time in the application process as the Department may prescribe. The plan shall be retained at the facility.
(3) The owner or operator of a facility utilizing a liner shall conduct an evaluation of the liner compatibility with the hazardous waste before accepting the waste for emplacement in a waste pile, surface impoundment or landfill unless the approval to accept the waste is granted in the facility's permit. The evaluation procedure shall meet the approval of the Department prior to its commencement. The evaluation of the liner shall consist of testing the liner in the presence of the waste for a minimum of 30 days or as otherwise approved by the Department. In lieu of actual testing, existing published or documented data on the hazardous waste or waste generated from similar processes proving the liner compatibility may be substituted if approved by the Department. The results of the evaluation of the liner compatibility shall be furnished to the Department for approval of the waste before acceptance by the facility.
(4) The Department may waive prior approval of the report specified in paragraph (1) for wastes that are in containers that are only to be stored at the facility. The Department may waive prior approval of the report only if:
(i) The Department determines that the waiver does not pose a potential threat to human health or the environment.
(ii) The management of the wastes is allowed in the permit for the facility and properly addressed in the approved waste analysis plan for the facility.
(iii) The report is submitted to the Department within 1 week of the arrival of the wastes at the facility and a copy of the report is maintained in the operating record onsite for 20 years.
(5) Prior Department approval of the report specified in paragraph (1) is not required for offsite reclamation facilities that, under a contractual agreement, supply raw material to a generator and accept the expended material from the generator for storage prior to reclamation.
(6) In lieu of the waste and generator specific report required by paragraphs (1)--(3), the Department may accept from the operator of a treatment, storage or disposal facility a Generic Module I application for similar wastes containing similar hazardous constituents from multiple generators.
(7) An application for a Generic Module I shall include:
(i) The information required by paragraph (1). Generator specific information shall be included for each generator identified in the application.
(ii) Criteria for determining whether the wastes have similar physical and chemical characteristics and contain similar hazardous constituents.
(8) Additional generators may be added to an approved Generic Module I if the operator of the treatment, storage or disposal facility demonstrates that the waste from the new generator is consistent with the waste already approved in the Generic Module I. At least 15 days prior to accepting a waste from a new generator, the operator of the treatment, storage or disposal facility shall submit to the Department in writing, the generator specific information required by paragraph (1). The Department will not add an additional generator to the Generic Module I if the Department finds that the operator of the treatment, storage or disposal facility has not demonstrated that the waste from the new generator is consistent with that approved under the Generic Module I.
(9) A permit modification and Generic Module I requested under this section shall be accompanied by a fee, as specified in § 270a.3 (relating to payment of fees).
Subchapter E. MANIFEST SYSTEM, RECORDKEEPING AND REPORTING § 265a.71. Use of the manifest system.
In addition to the requirements incorporated by reference:
(1) An owner or operator, or the agent of the owner or operator, may not accept hazardous waste for treatment, storage or disposal unless it is accompanied by the Department's manifest, unless a manifest is not required by 40 CFR 262.20(e) (relating to general requirements).
(2) Within 30 days of the delivery, the owner or operator or the agent of the owner or operator shall send the specified copies of the manifest to the Department and generator state, as required.
(3) The owner or operator or other agent of the designated facility shall state in the Discrepancy Indication Space on the respective manifest and continuation sheet the actual quantity received in bulk shipment.
(4) The name of the designated facility representative signing the manifest shall be printed or typed on the manifest.
Subchapter I. USE AND MANAGEMENT OF CONTAINERS § 265a.173. Management of containers.
In addition to the requirements incorporated by reference:
(1) For indoor storage of reactive or ignitable hazardous waste, the container height width and depth of a group of containers shall provide a configuration and aisle spacing which insures safe management and access for purposes of inspection, containment and remedial action with emergency vehicles.
(2) For outdoor storage of reactive or ignitable hazardous waste, the container height, width and depth of a group of containers shall provide a configuration and aisle spacing which insures safe management and access for purposes of inspection, containment and remedial action with emergency vehicles.
(3) For indoor or outdoor storage of nonreactive or nonignitable hazardous waste, the container height, width and depth of a group of containers shall provide a configuration and aisle spacing which insures safe management and access for purposes of inspection, containment and remedial action with emergency vehicles.
§ 265a.175. (Reserved).
CHAPTER 270a. HAZARDOUS WASTE PERMIT PROGRAM Subchapter A. GENERAL INFORMATION § 270a.3. Payment of fees.
40 CFR 270.3 is not incorporated by reference, and the following fees are established:
(1) Applications for a permit for hazardous waste storage, treatment and disposal facilities shall be accompanied by a nonrefundable permit application fee in the form of a check payable to the ''Commonwealth of Pennsylvania'' according to the following schedule:
(i) Land disposal facilities--commercial--$125,000.
(ii) Land disposal facility--captive--$71,400.
(iii) Surface impoundments:
(A) Commercial--$36,000.
(B) Captive--$14,000.
(iv) Postclosure permits--$25,000.
(v) Treatment facilities:
(A) Commercial--$36,000.
(B) Captive--$14,000.
(vi) Storage facilities:
(A) Commercial--$36,000.
(B) Captive--$14,000.
(vii) Incinerators:
(A) Commercial--$93,000.
(B) Captive--$54,000.
(2) If more than one permitted activity is located at a site, or more than one activity occurs, the fees are cumulative.
(3) Module I applications and permit modification applications for a permit for hazardous waste storage, treatment and disposal facilities shall be accompanied by a nonrefundable permit application fee in the form of a check payable to the ''Commonwealth of Pennsylvania'' according to the following schedule:
(i) Module I and Generic Module I applications:
(A) Module I--$300.
(B) Generic Module I--$1,500.
(ii) Class 3 permit modifications--50% of fees listed in paragraph (1).
(iii) Class 1 and Class 2 permit modifications--$700.
Subchapter D. CHANGES TO PERMITS § 270a.42. Permit modification at the request of the permittee.
(a) Instead of complying with 40 CFR Part 124.10(c)(ix) (relating to public notice of permit actions and public comment period) the permittee shall send a notice to those persons in § 270a.80(d)(iv) (relating to public notice and comment requirements).
(b) Instead of the appeal procedure in 40 CFR 124.19 (relating to appeal of RCRA, UIC, NPDES, PSD permits), the Department's decision to grant or deny permit modifications may be appealed to the EHB under section 4 of the Environmental Hearing Board Act (35 P. S. § 7514).
(c) Applicants seeking a Class 3 permit modification shall comply with § 270a.83 (relating to preapplication public meeting and notice).
Subchapter E. EXPIRATION AND CONTINUATION OF PERMITS § 270a.51. Continuation of existing permits.
(a) 40 CFR 270.51 (relating to continuance of expiring permits) is not incorporated by reference.
(b) The conditions of an expired permit continue in force until the effective date of a new permit if the following conditions are met:
(1) The permittee has submitted a timely application which is a complete application for a new permit.
(2) The Department, through no fault of the permittee, does not issue a new permit with an effective date on or before the expiration date of the previous permit (for example, when issuance is impracticable due to time or resource constraints).
(c) Permits continued under this section remain fully effective and enforceable.
(d) When the permittee is not in compliance with the conditions of the expiring or expired permit, the Department may choose to do one or more of the following:
(1) Initiate enforcement action based upon the permit which has been continued.
(2) Issue a notice of intent to deny the new permit. If the permit is denied, the owner or operator would be required to cease activities authorized by the continued permit or be subject to enforcement action for operating without a permit.
(3) Issue a new permit with appropriate conditions.
(4) Take other actions authorized by these regulations.
Subchapter F. SPECIAL FORMS OF PERMITS § 270a.60. Permits-by-rule.
(a) Relative to the requirements incorporated by reference, the following are substituted for the introductory paragraph in 40 CFR 270.60 (relating to permits by rule):
(1) In addition to other provisions of this chapter, the activities listed in this section are deemed to have a hazardous waste management permit if the owner or operator gives prior notification to the Department on a form provided by the Department and the conditions listed are met. Existing permit-by-rule facilities shall comply with the notification requirements by December 8, 2003.
(2) The Department may require an owner or operator with a permit-by-rule under this section to apply for, and obtain, an individual permit when the facility is not in compliance with the applicable requirements or is engaged in an activity that harms or presents a threat of harm to the health, safety or welfare of the people or the environment of this Commonwealth.
(b) In addition to the requirements incorporated by reference, the following requirements apply:
(1) The owner or operator of an elementary neutralization unit or a wastewater treatment unit is deemed to have a permit-by-rule, if the owner or operator complies with the following requirements:
(i) The facility treats hazardous waste generated onsite.
(ii) The facility has an NPDES permit, if required, and complies with the conditions of that permit.
(iii) Section 264a.11 (relating to identification number and transporter license) and 40 CFR 264.11 (relating to identification number).
(iv) Chapter 264a, Subchapter D and 40 CFR Part 264 Subparts C and D (relating to preparedness and prevention; and contingency plan and emergency procedures).
(v) 40 CFR Part 265, Subpart Q (relating to chemical, physical and biological treatment), except for 40 CFR 265.400 (relating to applicability).
(vi) For the purposes of this subsection, the owner or operator of an elementary neutralization unit or wastewater treatment unit permit-by-rule facility may treat wastes generated at other facilities operated or owned by the same generator, if the generator provides prior written notice to the Department and the wastes are shipped under a manifest in compliance with § 262a.20 and 40 CFR 262.20 (relating to general requirements; and general requirements).
(vii) The Department may, under special circumstances, approve on a case-by-case basis the receipt and treatment of wastes generated offsite by a different generator for treatment at a facility regulated under this subsection without the treatment of the wastes resulting in the loss of permit-by-rule status under this subsection.
(2) A generator that treats its own hazardous waste in containers, tanks or containment buildings is deemed to have a permit-by-rule, if the owner or operator complies with the following requirements:
(i) The facility is a captive facility and the only waste treated is generated onsite.
(ii) The notification requirements of 40 CFR 264.11 (relating to notification of hazardous waste activities) and the applicable requirements of 40 CFR Part 264, Subparts A--D, I, J and DD and Chapter 264a, Subchapters A, B, D, I, J and DD, except for § 264a.18 (relating to location standards).
(iii) The applicable requirements of 40 CFR 262.34 (relating to accumulation).
(iv) Except for the characteristic of ignitability, the hazardous waste is not being rendered nonhazardous by means of dilution.
(v) A generator may mix waste oil with a waste which is hazardous solely because it exhibits the toxicity characteristic for benzene, arsenic, cadmium, chromium, lead or ignitability, provided that the resultant mixture does not exhibit any characteristic of hazardous waste under 40 CFR Part 261, Subpart C (relating to characteristics of hazardous waste) incorporated by reference in § 260a.1 (relating to incorporation by reference, purpose, scope and applicability) and that the mixture is managed in accordance with Chapter 298, Subchapter C (relating to waste oil generators).
(3) The owner or operator of a battery manufacturing facility reclaiming spent, lead-acid batteries is deemed to have a permit-by-rule for treatment prior to the reclamation of the spent, lead-acid batteries, if the owner or operator complies with the following requirements:
(i) The notification requirements of 40 CFR 264.11.
(ii) The applicable requirements of 40 CFR Part 264, Subparts A--E, I--L and DD and Chapter 264a, Subchapters A, B, D, E, I--L and DD, except for § 264a.18.
(4) The owner or operator of a facility that reclaims hazardous waste onsite, at the site where it is generated is deemed to have a permit-by-rule for treatment prior to the reclamation, if the owner or operator complies with the following requirements:
(i) The notification requirements of 40 CFR 264.11.
(ii) The applicable requirements of Chapter 262a and Chapter 264a, Subchapters A, B, D, E, I, J and DD, except for § 264a.18, and 40 CFR Parts 262 and 264, Subparts A--E and I, J and DD.
(iii) For the purposes of this subsection, onsite reclamation includes reclamation of materials generated at other facilities operated or owned by the same generator, if the generator provides prior written notice to the Department and the wastes are shipped under a manifest in compliance with § 262a.20 (relating to general requirements) and 40 CFR Part 262.20 (relating to general requirements).
(iv) The Department may, under special circumstances, approve on a case-by-case basis the receipt and reclamation of wastes generated offsite by a different generator for reclamation at a facility regulated under this subsection without the reclamation of the wastes resulting in the loss of onsite reclamation status under this subsection.
(5) The owner or operator of a facility that treats recyclable materials to make the materials suitable for reclamation of economically significant amounts of the precious metals identified in 40 CFR Part 266, Subpart F (relating to recyclable materials utilized for precious metal recovery) is deemed to have a permit-by-rule if the owner or operator complies with the following:
(i) The notification requirements of 40 CFR 264.11 (relating to identification number).
(ii) The applicable requirements of Chapter 264a, Subchapters A, B, D, E, I, J and DD, except for § 264a.18, and 40 CFR Part 264, Subparts A--D, I, J and DD.
(c) In addition to the requirements incorporated by reference:
(1) With respect to any permit-by-rule facility under subsection (b)(3)--(6), the Department may, upon written application from a person subject to these paragraphs, grant a variance from one or more specific provision of those paragraphs in accordance with this subsection.
(2) In granting a variance, the Department may impose specific conditions reasonably necessary to assure that the subject activity results in a level of protection of the environment and public health equivalent to that which would have resulted from compliance with the suspended provisions. Any variance granted under this section will be at least as stringent as the requirements of section 3010 of the RCRA (42 U.S.C.A. § 6930) and regulations adopted thereunder.
§ 270a.62. Hazardous waste incinerator permits.
Instead of the notification required by 40 CFR 124.10 (relating to public notice of permit actions and public comment period), the Department sends notice to all persons listed in § 270a.80 (d)(1) (relating to public notice and comment requirements).
§ 270a.66. Permits for boilers and industrial furnaces burning hazardous waste.
Instead of the notification required by 40 CFR 124.10 (relating to public notice of permit actions and public comment period), the Department sends notice to all persons listed in § 270a.80(d)(1) (relating to public notice and comment requirements).
Subchapter H. PUBLIC NOTICE AND HEARINGS § 270a.81. Public hearings.
(a) During the public comment period provided under § 270a.80 (relating to public notice and comment requirements), an interested person may submit written comments on the draft permit and may request a public hearing, if a hearing is not already scheduled. A request for a public hearing shall be in writing and state the nature of the issues proposed to be raised in the hearing. The Department considers comments in making its final decision and answers these comments as provided in § 270a.10(c) (relating to general application requirements and permit issuance procedures).
(b) The Department follows the following procedures in a public hearing held under this subchapter:
(1) The Department holds a public hearing whenever, on the basis of requests received under subsection (a), it determines that a significant degree of public interest in a draft permit exists.
(2) The Department may hold a public hearing whenever a hearing might clarify issues involved in the permit decision.
(3) The Department holds a public hearing whenever it receives written notice of opposition to a draft permit and a request for a hearing within 45 days of public notice, under § 270a.80.
(4) The Department schedules, when possible, a hearing under this section at a location convenient to the nearest population center to the proposed facility.
(5) The Department gives public notice of the hearing under § 270a.80 (relating to public notice and comment requirements).
(6) A person may submit oral or written statements and data concerning the draft permit before, during or after the public hearing, as long as the Department receives the statements and data during the public comment period. The Department may set reasonable limits upon the time allowed for oral statements and may require the submission of statements in writing. The public comment period under § 270a.80 is automatically extended to the close of a public hearing under this section. The Department's hearing officer may also extend the comment period by so stating at the hearing.
(7) The Department makes a tape recording or written transcript of the hearing available to the public.
§ 270a.83. Preapplication public meeting and notice.
(a) Applicability.
(1) This section applies to RCRA Part B applications seeking initial permits for hazardous waste management units over which the Department has permit issuance authority.
(2) This section also applies to RCRA Part B applications seeking renewal of permits for the units, if the renewal application is proposing a significant change in facility operations.
(3) For the purposes of this section, a ''significant change'' is a change that would qualify as a Class 2 or Class 3 permit modification under 40 CFR 270.42 (relating to permit modification at the request of the permittee) and § 270a.42 (relating to permit modification at the request of the permittee).
(4) This section does not apply to Class 1 or Class 2 permit modifications under 40 CFR 270.42 and § 270a.42 or to applications that are submitted for the sole purpose of conducting postclosure activities or postclosure activities and corrective action at a facility.
(b) Prior to the submission of a Part B RCRA permit application for a facility, the applicant shall hold at least one meeting with the public to solicit questions from the community and inform the community of proposed hazardous waste management activities. The applicant shall post a sign-in sheet or otherwise provide a voluntary opportunity for attendees to provide their names and addresses.
(c) The applicant shall submit a summary of the meeting, along with the list of attendees and their addresses developed under subsection (b), and copies of any written comments or materials submitted at the meeting, to the Department as a part of the Part B application, under 40 CFR 270.14(b) (relating to contents of Part B: general requirements).
(d) The applicant shall provide public notice of the preapplication meeting at least 30 days prior to the meeting. The applicant shall maintain, and provide to the Department upon request, documentation of the notice.
(1) The applicant shall provide public notice in the following forms:
(i) Newspaper advertisement. The applicant shall publish a notice, fulfilling the requirements in paragraph (2), in a newspaper of general circulation in the county or equivalent jurisdiction that hosts the proposed location of the facility. In addition, the Department will instruct the applicant to publish the notice in newspapers of general circulation in adjacent counties or equivalent jurisdictions, if the Department determines that the publication is necessary to inform the affected public. The notice shall be published as a display advertisement.
(ii) Visible and accessible sign. The applicant shall post a notice on a clearly marked sign at or near the facility, fulfilling the requirements in paragraph (2). If the applicant places the sign on the facility property, the sign shall be large enough to be readable from the nearest point where the public would pass by the site.
(iii) Broadcast media announcement. The applicant shall broadcast a notice, fulfilling the requirements in paragraph (2), at least once on at least one local radio station or television station. The applicant may employ another medium with prior approval of the Department.
(iv) Notice to the Department. The applicant shall send a copy of the newspaper notice to the Department and to the appropriate units of State and local government.
(2) The notices required under paragraph (1) shall include the following:
(i) The date, time and location of the meeting.
(ii) A brief description of the purpose of the meeting.
(iii) A brief description of the facility and proposed operations, including the address or a map--for example, a sketched or copied street map--of the facility location.
(iv) A statement encouraging people to contact the facility at least 72 hours before the meeting if they need special access to participate in the meeting.
(v) The name, address and telephone number of a contact person for the applicant.
[Pa.B. Doc. No. 02-2222. Filed for public inspection December 13, 2002, 9:00 a.m.]
