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PA Bulletin, Doc. No. 02-354



Notice of Comments Issued

[32 Pa.B. 1271]

   Section 5(d) of the Regulatory Review Act (71 P. S. § 745.5(d)) provides that the designated standing Committees may issue comments within 20 days of the close of the public comment period, and the Commission may issue comments within 10 days of the close of the Committees' comment period. The Commission's comments are based upon the criteria contained in section 5.1(h) and (i) of the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)).

   The Commission issued comments on the following proposed regulations. The agencies must consider these comments in preparing the final-form regulations. The final-form regulations must be submitted by the dates indicated.

No. Agency/Title Issued Deadline
7-364 Environmental Quality Board 2/14/02 1/14/04
   Hazardous Waste Management
(31 Pa.B. 6814 (December 15, 2001))
7-369 Environmental Quality Board 2/15/02 1/16/04
   Portable Fuel Containers
(31 Pa.B. 6185 (December 15, 2001))
7-370 Environmental Quality Board 2/15/02 1/16/04
   Consumer Products
(31 Pa.B. 6163 (November 10, 2001))

Environmental Quality Board Regulation No. 7-364

Hazardous Waste Management

February 14, 2002

   We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Environmental Quality Board (EQB) must respond to these comments when it submits the final-form regulation. If the final-form regulation is not delivered by January 14, 2004, the regulation will be deemed withdrawn.

1.  Section 261a.3. Definition of ''hazardous waste.''--Economic impact; Need; Reasonableness; Feasibility.

   Subsection (b) states, ''. . . the material shall be managed as a hazardous waste until the determination is made that indicates it is not a hazardous waste.'' The Preamble states this requirement was inadvertently deleted in May 1999 and is being reinstated to establish ''a firm position to what would otherwise be an ambiguous provision in the regulations.'' In response to Question 17 in the Regulatory Analysis Form the EQB states, ''The proposed changes are clarifications and corrections, and there are no new requirements being proposed. Because of this, there are no additional costs imposed.''

   A commentator believes the current obligation to properly manage wastes is sufficient. It believes proposed subsection (b):

   *  Is overly prescriptive and unnecessary;

   *  Imposes costs without environmental benefit; and

   *  Is impractical because it would invoke other requirements such as requiring a hazardous waste label and code for an as yet unknown material.

   We have three specific concerns.

   First, is this provision needed in light of existing requirements to properly manage waste? Has waste been mismanaged as a result of the 1999 deletion of the provisions in subsection (b)?

   Second, will reinstating this provision impose new requirements and costs on the regulated community? If so, what are the requirements and their estimated costs?

   Third, is a label required before the composition of the waste is determined? If so, what requirements would a label have to meet?

2.  Section 262a.12. EPA Identification numbers.--Reasonableness; Need.

   Subsection (b)(1)(iv) requires Department notification if the generator's facility class changes. The distinction between facility classes is based on the amount of hazardous waste generated in a month. If a generator experiences a temporary fluctuation in the amount of hazardous waste generated in a single month, two notices would be required: one notice when the quantity of waste falls under a different classification and a second notice when operations return to normal levels. Would notices of a temporary fluctuation in the amount of hazardous waste generated serve a useful purpose?

3.  Section 262a.23. Use of the manifest; Section 263a.12. Transfer facility requirements.--Clarity.

   Amendments to §§ 263a.20(a)(1) and 264a.83(a)(2) use gender-neutral language. However, we note that § 262a.23(a)(1) and § 263a.12(4)(iii) use the word ''his.'' Gender-neutral language should be used consistently throughout the regulation.

4.  Section 262a.34. Accumulation time.--Need; Economic impact.

   The addition of this section requires generators to comply with Chapter 265a, Subchapter I (relating to use and management of containers). As stated in Issue #1, the EQB states in the Regulatory Analysis Form that there are no additional costs imposed by this regulation.

   A commentator believes the existing requirements are adequate and there is no justification to add new requirements. It believes many Large Quantity Generators may incur extensive capitol costs to comply with the secondary containment requirements.

   We have two specific concerns.

   First, is this provision needed in light of existing requirements?

   Second, how did the EQB conclude there are no additional costs imposed by this provision?

5.  Section 262a.43. Additional reporting.--Consistency with statute; Need; Economic impact; Protection of the public health, safety and welfare.

Hazardous material

   The term ''hazardous material'' is used in this section. Commentators believe use of the term ''hazardous material'' rather than ''hazardous waste'' raises statutory concerns. We have not found a definition of the term ''hazardous material'' in § 260a.10, Pennsylvania's Solid Waste Management Act (act) or 40 CFR 260.10. Whereas, the term ''hazardous waste'' is defined in the act, 40 CFR 260.10 and used in other sections of this regulation.

   We have two concerns.

   First, What is the statutory basis for using the term ''hazardous material''?

   Second, how will the regulated community know what materials are considered ''hazardous material''?

Reinstatement of spill reporting requirements deleted in 1999

   Commentators state that there have been no incidents since the spill reporting requirements were deleted in 1999 that would justify restoring them. They believe the existing regulatory framework provides sufficient protections. However, the Preamble states this section is being reinstated due to ''many inquiries from the regulated community and questions from Department personnel about when spills must be reported.'' The EQB should further explain the need for this provision and the additional costs it will impose.

Paragraph (3)

   This paragraph allows waiver of identification numbers, licenses and manifests in the event of an emergency. However, this paragraph does not specify any follow up after the emergency. After the immediate threat to safety is over, how is the hazardous waste that was moved during the emergency accounted for?

6.  Section 263a.12. Transfer facility requirements.--Need; Economic impact; Clarity.

   Commentators state that paragraph (3) exceeds Federal requirements, is not needed and would be financially burdensome. They advocate deleting this paragraph. Why is this subsection needed and what is the economic impact of these requirements on transfer facilities?

   Assuming paragraph (3) is needed, other commentators have indicated that the requirement for secondary containment in paragraph (3) is confusing. Do the storage trailers, impervious surfaces on the docks and pavement qualify as secondary containment? The regulation should specify the ''secondary containment'' requirements a transfer facility must meet either by reference to Federal regulations or by putting them in Pennsylvania's regulation.

7.  Section 263a.21. Compliance with the manifest.--Clarity.

   The language in paragraph (3) is confusing because it could be read to prohibit ''preprinted Manifest Document Numbers.'' Is the intent to prohibit a manifest if an alteration was made by anyone other than the printer of the manifest to a preprinted Manifest Document Number or Manifest Tracking Number? Also, who is the ''printer of the manifest''?

8.  Section 264a.71. Use of the manifest system.--Feasibility; Reasonableness.

   Paragraph (3) requires the facility to state the ''actual quantity received in bulk shipment'' in the ''Discrepancy Indication Space . . . on the manifest.'' This requirement is inconsistent with the instructions for the EQB's Official Pennsylvania Manifest Form (Form 2500-FM-LRWM0051 Rev 7/99 also titled ''Uniform Hazardous Waste Manifest'').

   Item 19 of the manifest is designated as the Discrepancy Indication Space. The instructions for completion of Item 19 state ''The Designated Facility's authorized representative must note in this space any significant discrepancy between the waste types or quantities described on the Manifest and those actually received. If waste is rejected, so indicate in this space.''

   The concern is the actual quantity received would not be a discrepancy in most instances. Hence, entering the actual quantity received in the Discrepancy Indication Space is contrary to the form's instructions. The regulation should be amended to make the requirements consistent with the manifest.

9.  264a.97. General groundwater monitoring requirements.--Need; Reasonableness.

   A commentator indicates that paragraph (1) will limit flexibility in designing appropriate groundwater monitoring programs. They claim that there are instances where a longer time period between each monitoring is more appropriate. Are strictly defined monitoring periods needed for all locations where groundwater is monitored? Should the regulation allow different periods to be specified in the permit?

10.  270a.60. Permits-by-rule.--Implementation; Clarity; Reasonableness.

   The EQB is adding a requirement to subsection (a)(1) for the owner or operator using a permit-by-rule to give ''prior notification to the Department. . . .'' Does the EQB intend to grandfather current permit-by-rule operators or will current operators be required to submit notice? If notice is required, will current permit-by-rule operators be given time to comply with this requirement after the regulation becomes effective?

Environmental Quality Board Regulation No. 7-369

Portable Fuel Containers

February 15, 2002

   We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Environmental Quality Board (EQB) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by January 16, 2004, the regulation will be deemed withdrawn.

1.  Section 130.102. Definitions.--Clarity.

   The following terms are defined in the California Air Resources Board's (CARB) rules relating to portable fuel containers: ''consumer;'' ''distributor;'' ''fuel;'' ''retailer;'' ''retail outlet;'' ''manufacturer;'' and ''VOC.'' These terms are not defined in the proposed regulation.

   The terms ''retailer'' and ''retail outlet'' are defined in the EQB's existing regulations in § 121.1. The definition of ''retailer'' is identical to the definition in CARB's rules. However, the definition of ''retail outlet'' in § 121.1 relates to the sale of gasoline, not portable fuel containers and spouts. For clarity and consistency with CARB's rules, the EQB should add definitions for the previously-referenced terms to the final-form regulation.

2.  Section 130.105. Innovative products.--Clarity.

   Paragraph (1) requires an applicant for an innovative product exemption to ''apply in writing to the Commonwealth . . . .'' However, the regulation does not include a time frame within which the Department of Environmental Protection (Department) will review the application and render a decision. The EQB should include a time frame for Department review in the final-form regulation.

3.  Sections 130.105. Innovative products. and 130.107. Variances.--Clarity.

   Section 130.105(4) provides that the Department may revoke or modify an innovative product exemption. Section 130.107(c) addresses variances from the performance standards for portable fuel containers. It states that ''the Department may review and modify or revoke a variance . . . .'' However, neither section contains or references the process for a party to appeal the Department's decision.

   It is our understanding that the Department's decision would constitute a final agency action that a party could appeal to the Environmental Hearing Board (EHB). Clarity would be improved if §§ 130.105(4) and 130.107(c) of the final-form regulation contained a cross-reference to the EHB appeal procedures in §§ 1021.51--1021.54.

4.  Section 130.108. Test Procedures.--Clarity.

   Section 2467.7 of CARB's rules relating to ''test procedures'' notes that the section numbers for the July 6, 2000, version of CARB's rules were corrected on September 13, 2000. This notation should be included in subsections (a) and (b).

Environmental Quality Board Regulation No. 7-370

Consumer Products

February 15, 2002

   We submit for consideration the following objections and recommendations regarding this regulation. Each objection or recommendation includes a reference to the criteria in the Regulatory Review Act (71 P. S. § 745.5a(h) and (i)) which have not been met. The Environmental Quality Board (EQB) must respond to these Comments when it submits the final-form regulation. If the final-form regulation is not delivered by January 16, 2004, the regulation will be deemed withdrawn.

1.  General.--Consistency with other regulations; Clarity.

   We have two general concerns with this regulation.

   First, different parts of the proposed regulation are inconsistent with the Ozone Transport Commission (OTC) Model Rule for Consumer Products (OTC Model Rule).

   *  Numerical errors or omissions in § 130.211, Table of Standards.

   *  Current provisions in the proposed regulation are out-of-date with or different from the current OTC Model Rule. Some of these provisions are addressed in Issues #8--12.

   The EQB indicated that its goal is to be consistent with the OTC. Hence, it should use the most recent regulatory language from the OTC Model Rule when the final-form regulation is submitted.

   Second, various sections of the proposed regulation contain vague references to ''applicable Commonwealth laws and regulations'' and ''applicable Commonwealth regulations.'' The following are examples:

*  Section 130.412. Variance orders.

*  Section 130.414. Modification of variance.

*  Section 130.461(b). Modification of an ACP by the Department.

*  Section 130.463. Treatment of information.

   Open references to ''Commonwealth laws and regulations'' should be changed to specific references to the pertinent statutes or regulations in the final-form regulation.

2.  Confidentiality procedures.--Consistency with the statute; Clarity.

   Section 130.392 states that specific information submitted by a responsible party will be ''handled in accordance with the procedures specified in applicable Pennsylvania confidentiality requirements upon request by the responsible party.'' Rather than a general reference to these requirements, this section of the regulation should reference section 13.2 of the Air Pollution Control Act (act) (35 P. S. § 4013.2). Section 13.2 of the act establishes procedures for protecting the confidentiality of certain types of information.

   In its comments on §§ 130.458(a)(2) and 130.463, the Consumer Specialty Products Association (CSPA) expresses concerns related to confidentiality. The concerns of CSPA could be resolved by also including a reference to section 13.2 of the act in these sections of the proposed regulation.

3.  Section 130.202. Definitions.--Clarity.


   The last sentence of this definition reads: ''The term does not include equipment used for the application of pesticides when sold separately therefrom.'' The word ''therefrom'' is unnecessary and should be deleted.

Floor polish or wax

   Paragraph (v) of this definition states that this term does not include: ''Coatings subject to architectural coatings regulations.'' Paragraph (v) should be amended to specifically identify references to the applicable ''architectural coatings regulations.''

4.  Section 130.331. Products for shipment and use outside this Commonwealth.--Clarity.

   The last sentence of subsection (b) reads: ''This subsection does not apply to consumer products that are sold, supplied or offered for sale by a person to retail outlets in this Commonwealth.'' The purpose of this sentence is unclear. This subsection should be explained or deleted.

5.  Section 130.334. Insecticides, fungicides and rodenticides.--Clarity.

   There is an inconsistency between the title and text of this section. The title refers to three consumer products registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) while the text refers to all the products regulated by FIFRA. If it is the intent of the EQB that this section applies to all products regulated by FIFRA, the title should reflect this.

6.  Section 130.352. Request for exemption.--Clarity.

   Paragraph (2) in this section requires manufacturers to apply in writing for an exemption claimed under § 130.331(b). It is our understanding that this reference may be unnecessary since the application requirements in this section apply to innovative products and do not pertain to the exemption established by § 130.331. The EQB needs to either clarify the purpose of the reference to § 130.331(b) in paragraph (2) or delete it.

7.  Section 130.371. Code-dating.--Clarity.

   Subsection (b) states that if a manufacturer uses a code indicating the date of manufacture for a product subject to this regulation, then ''an explanation of the code shall be filed with the Department no later than 12 months prior to the effective date of the applicable standard specified in § 130.211.''

   Section 130.211 establishes January 1, 2005, as the effective date for the applicable standards. Rather than use the words ''12 months,'' § 130.371(b) should state that explanations of the codes for manufacture dates must be filed with the Department by January 1, 2004.

8.  Section 130.411. Application for variance; Section 130.412. Variance orders.--Consistency with other regulations; Reasonableness; Clarity.

   These two sections and §§ 130.413 and 130.414 set forth the requirements and procedures for applying for and granting variances. There are two concerns.

   First, § 130.411 closely mirrors a provision of the OTC Model Rule but other portions of the OTC Model Rule are not included. One commentator questioned the intent of the following sentence in § 130.411: ''A person who cannot comply with §§ 130.211--130.216 (relating to standards), because of extraordinary reasons beyond the person's control, may apply in writing to the Department for a variance.'' Clarity would be improved if the regulation included guidance as to what the Department may consider ''extraordinary.'' The final-form regulation should also include the required findings for variances established in the OTC Model Rule.

   Section 8(c) of the OTC Model Rule establishes three specific findings that a state agency needs to make before it grants a variance. For example, the first finding is that due to ''reasons beyond the reasonable control of the applicant, requiring compliance with section 3 (VOC standards) would result in extraordinary economic hardship.'' Neither this finding nor the other two appear in this proposed regulation.

   The second area of difference with the OTC Model Rule is that the proposed regulation does not contain standards for public review of a variance application. The OTC Model Rule contains specific time frames for public notification and public inspection of the variance application. In addition, it establishes a time frame for holding a hearing. The proposed § 130.412 refers to a hearing butdoes not set forth any time frames or procedures concerning proper notice or inspection of the application by the public.

9.  Section 130.453. Request for exemption.-- Consistency with other regulations; Reasonableness; Clarity.

   Subsection (a) states that manufacturers ''may seek an ACP (Alternative Control Plan) Agreement with the Department.'' However, neither this subsection nor other parts of the proposed regulation establish the procedures or application content requirements for ''seeking'' this type of agreement. Section 11(c) of the OTC Model Rule establishes procedures and requirements for an ACP application. Will the ACP application requirements and procedures of the OTC Model Rule be incorporated into the proposed regulation?

10.  Section 130.454. Recordkeeping and availability of requested information.--Consistency with other regulations; Reasonableness; Clarity.

   Subsection (a) requires that ''information specified in the ACP agreement approving an ACP shall be maintained by the responsible ACP party for at least 3 years after the records are generated.'' However, there is nothing in the regulation that indicates the contents of the ACP agreement. Section 11(c)(1) of the OTC Model Rule sets forth the content requirement for an application for a proposed ACP. In addition, section 11(d) establishes time frames for the review of an ACP application by the state agency. The proposed regulation should contain similar language.

11.  Section 130.460. Other modifications.--Consistency with other regulations; Clarity.

   There are two concerns.

   This section begins with the phrase: ''Except as otherwise provided in this section,  . . . .'' The purpose of this phrase is unclear since the section contains only one provision. In the OTC Model Rule, the comparable language is found in paragraph (3) of a larger section, section 11(i). This subsection in the OTC Model Rule uses the same phrase but specifically references the pertinent subsections. The phrase should be deleted or it should use the example provided by the OTC Model Rule and specifically reference the appropriate provisions.

   Second, § 130.460 states: ''. . . the responsible ACP party shall notify the Department in writing, of information that the responsible ACP party may have which may alter the information submitted.'' This requirement is vague. Section 11(i)(3) of the OTC Model Rule requires the responsible ACP party to notify the state agency of any information ''. . . which may alter any of the information submitted pursuant to the requirements of section 11(c) (related to requirements and process for approval of an ACP including application content requirements).'' The final-form regulation should specifically identify the types of information covered by this requirement.

12.  Section 130.461. Modification of an ACP by the Department.--Consistency with other regulations; Clarity.

   Subsection (a) is one long sentence. In the OTC Model Rule, similar language is found in section 11(j)(1). The OTC Model Rules enumerate separate clauses of the sentence. This enumeration could be used (see Chapter 7 of the Pennsylvania Code & Bulletin Style Manual) to clarify § 130.461(a) and make it easier to read.


[Pa.B. Doc. No. 02-354. Filed for public inspection March 1, 2002, 9:00 a.m.]

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