[30 Pa.B. 6685]
[Continued from previous Web Page]
PUBLIC NOTICE AND COMMENTS § 271.141. Public notice by applicant.
A commentator suggested that the public must be directly involved in all water issues and alternatives and options for remediation in both major and minor permit modification applications. The Board declined to amend this section in response because not all modifications pertaining to water issues need to go through the public notice requirements. Minor modifications would not be changes to the overall plan, but may involve such things as detailed changes in well design that do not affect the alternative chosen for remediation and will have no impact on public health or safety.
Another commentator noted that the requirement for display advertisements in subsection (a)(5) is frequently ''met'' through the use of legal notices. The commentator suggested specific regulatory requirements on the size of the advertisements and of the typeface that would result in more public access. The Board declined to regulate the advertisements in this manner, because the regulation as written does not authorize legal notices.
§ 271.144. Public notice and public hearings for permit modifications.
The Board received numerous comments on the proposed clarification to subsections (a)(2) and (b)(7) regarding average and maximum daily waste volumes. In response, the Board retained the proposed language in subsection (a)(2) but deleted ''average or'' from subsection (b)(7).
Several commentators requested the Board to explain the need to classify a change in average daily waste volume as a major permit modification and objected that these revisions will make permitting more time consuming, expensive and uncertain. The current regulation is written to require that a change in daily volume requires a major modification. The Department has applied this as requiring a major modification for changes in average and maximum daily volumes. The changes in the final-form regulation were included in order to address questions that had arisen in implementing this section. In addition to modifying the phased-in bonding for a facility, increasing the average daily volume may significantly change day-to-day operations at the facility and may impact the surrounding area. It is necessary to notify the public regarding this modification to determine if problems exist that were not identified or anticipated in the original application.
Several commentators urged the Board to delete the words ''average or'' from subsection (a)(2) because all potential ''impacts'' are based on the maximum daily tonnage. Significant operational changes may occur with increased trash flow on a daily basis, however. There is a need to provide the public opportunity to identify the actual problems that may be occurring or can be expected to occur that were not identified or anticipated in the original application.
One commentator specifically recommended only requiring a major modification under subsection (a)(2) if the average or maximum daily volume would increase by 10% or more. The Board declined this suggestion because a facility's size and operating procedures are often more determinative of the impacts from a change than is the amount of the volume increase.
One commentator suggested that only an increase in average daily volume (averaged over a week) should be considered a major modification. The commentator explained that waste receipts peak early in the week and a focus on weekly receipts would allow a facility to operate in accordance with the needs of its customers and allow waste-to-energy facilities to continue operating on a continuous basis. The Board deleted average daily volumes entirely from subsection (b)(7) because processing facilities will not be required to have an average daily volume, but the Board retained the need for a major modification for a change in the maximum daily volume.
Two similar comments were received concerning subsection (a)(3). The proposed amendment limits the instances in which a major permit modification will be required for changes in excavation contours or final contours, including final elevations and slopes, to those changes that result in increased disposal capacity or that impact groundwater isolation distances or groundwater quality. The commentators suggested that a major modification be required only if the change results in 6 months or more of increase in disposal capacity. In the final regulations, the Board retained the provision as amended in the proposed rulemaking because an increase in airspace or size could trigger operational changes at the facility.
Two comments were received concerning the proposed amendment to subsection (b)(1). The proposed amendment limits the instances in which a major permit modification will be required for changes in specifications or dimensions of waste storage or residue storage areas at municipal waste processing facilities to those changes that result in increased processing or storage capacity. One commentator objected that the provision is not necessary to promote a legitimate environmental or public health/safety goal and will make permitting more time consuming, expensive and uncertain. The other commentator suggested that the requirement should only apply when the increase is 10% or more. In the final-form regulations, the Board retained the provision as amended in the proposed rulemaking because any increase in specifications or dimensions of waste storage or residue storage areas could have a number of effects which the public should be able to comment on, including effects on day-to-day operations, impacts on the surrounding area, changes required to the erosion and sedimentation control plan or increases in the potential for offsite odors and other nuisances.
Subsection (a)(10) and (14) relate to change of owner or operator. The Board amended subsection (a)(10) and added subsection (a)(14) to ensure that a change in the owner or operator of a landfill will require a major permit modification if the party that is changing is not the permittee. If the party that is changing is the permittee, the change will require permit reissuance under § 271.221 (relating to permit reissuance).
The Board added subsection (a)(13), which requires a major modification to dispose of waste in areas that have reached final permitted elevations because reopening areas that have reached final permitted elevations may significantly affect the closure and postclosure construction activities that have been undertaken. In addition, the structural stability of the landfill must be reevaluated to account for the additional waste.
The Board added subsection (a)(15) to clarify that submission of a radiation protection action plan for Department approval will be considered an application for a major permit modification.
The Board deleted the proposed language ''average or'' from subsection (b)(7) because municipal waste processing facilities do not have average daily volumes.
The Board added identical provisions to the provisions it added in subsection (a) regarding change in owner or operator in new subsection (b)(8) and (9), relating to municipal waste processing facilities. The effect will be the same.
The Board added an identical provision to subsection (a)(15) regarding radiation protection action plans in subsection (b)(10).
PERMIT REVIEW § 271.201. Criteria for permit issuance or denial.
Several commentators suggested that the lead-in language in this section be revised to prohibit a permit application from being approved unless the ''Department has determined'' that the conditions in this section have been met. The Board declined to make this change because the current statement that a permit application will not be approved unless the ''applicant affirmatively demonstrates'' that the conditions are met means the same thing.
The same commentators suggested adding a paragraph that requires that the expected benefits from the facility clearly outweigh the anticipated harms or potential for harms. The Board included language like this in § 271.127 (relating to environmental assessment) rather than in this section.
A new paragraph (9) was added to prohibit a new landfill from operating if the landfill is within 6 miles from an airport covered by the April 5, 2000, Federal legislative amendment to 49 U.S.C.A. § 44718(d) (relating to limitation on construction of landfills), unless the Administrator of the Federal Aviation Administration has determined that exemption of the landfill from application of § 44718(d) would have no adverse impact on aviation safety. (Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, Pub. L. No. 106-181, § 503, 114 Stat. 61 (2000), amending 49 U.S.C.A. §§ 44718(d) and 46301(a)(3).) Section 44718(d) expressly prohibits the construction of a new landfill within 6 miles of a public airport that has received grants under 49 U.S.C.A. Chapter 471 and is primarily served by general aviation aircraft and regularly scheduled flights of aircraft designed for 60 passengers or less. The Board's regulation is designed so that the states' aviation agencies and the FAA--not the Department--will determine which airports are covered by the legislation. Under the Federal legislation and the final-form regulations, the FAA exemption is only available if the aviation agency in the state in which the airport is located requested the FAA to exempt the landfill from the construction prohibition in the new Federal provision. The Board has added this provision to the municipal waste regulations to ensure that no new landfill is built if the state aviation agency is unwilling to seek an exemption and FAA is unwilling to provide an exemption from the construction prohibition of the Federal statute.
§ 271.202. Receipt of application and completeness review.
The Board amended the title of this section to reflect changes in the section.
One commentator recommended that the Board clarify subsection (a)(2) of the proposed rulemaking to allow either party to request that the Department impose a timeline if an agreement is not reached, rather than using the proposed language that allows the Department to determine an appropriate timeline ''if the parties are unable to reach agreement.'' The commentator felt that the proposed rulemaking is unclear as to who makes the decision that the parties are unable to reach agreement and that parameters for making the decision would be helpful. The Board retained its proposed language on this point because it is not possible to set specific parameters for making the decision until the reasons why the parties are unable to reach an agreement are known. The procedure in the final-form regulations represents current Department practice as set forth in the ''Money-Back Guarantee Permit Review Program Expansion,'' published in 26 Pa. B. 3038 (June 29, 1996) and is also incorporated in technical guidance developed in response to the Governor's Executive Order 1996-5 (relating to municipal waste facilities review program).
Under the final version of this section, a permit application for a new facility or a modification that would result in an increased average or maximum daily waste volume, increased disposal capacity or expansion of the permit area will not be considered to be ''received'' by the Department until the Department, applicant and municipal officials have met to discuss the proposed application. (Subsection (b)(1).) For purposes of this section, the term ''municipal officials'' includes representatives of local municipalities, including the host municipality and county, municipalities adjacent to the host municipality, municipalities located within 1 mile of the permitted or proposed area, other municipalities that demonstrate that they may be adversely impacted by the proposed project and municipalities located along the approach routes. (Subsection (g).) This paragraph builds on procedures already in place under the Department's guidance document entitled ''Local Municipality Involvement Process,'' document no. 254-2100-100, which was developed under the Governor's Executive Order No. 1996-5 to increase public involvement in the permitting process.
Subsection (b)(2) remains much as it looked on proposal, except that resource recovery facilities have been added. This subsection requires an alternative project timeline to be developed for a municipal waste landfill, construction/demolition waste landfill or resource recovery facility permit application, regardless of whether requested under Act 57 of 1997 (section 1935-A of the Administrative Code (71 P. S. § 510-35), added by the act of November 26, 1997 (P. L. 530, No. 57)). Act 57 mandated an alternative project timeline for municipal waste landfill and resource recovery facility permit application reviews, if an applicant so requested. The legislation was silent as to construction/demolition waste landfills, but the Department's practice for many years under the money-back guarantee permit review program has been to require an alternative timeline for these facilities, as well as for municipal waste landfills. The Department's money-back guarantee permit review program will be updated to reflect these new regulatory requirements. The final-form regulations require an alternative timeline for these three types of facilities because these facilities tend to invoke the most public concern and are therefore the best candidates in the municipal waste program for an alternative project timeline.
Subsection (b)(2) contains two additional amendments in the final rulemaking. First, the term ''host community'' has been changed to ''host county and host municipality.'' This amendment clarifies the necessary parties to the negotiation and is consistent with Act 57. Second, the last sentence has been amended to clarify that the announcement referred to is that required by § 271.142 (relating to public notice by Department).
Reference to alternative timelines was deleted from subsection (c) because alternative timelines are now addressed in subsection (b).
Proposed subsection (f) indicated that the Department would not accept a permit application for an expansion if more than 5 years of disposal capacity remained at the landfill at the time of submission of the permit application. On final, this subsection has been revised to clarify that it applies to municipal waste landfills and construction/demolition waste landfills. It has also been clarified to indicate that it only applies to permit applications for expansions that will result in an increase in capacity. This would allow an application to be submitted that would shift the remaining capacity from one part of the site to another. This subsection was also amended to clarify how remaining disposal capacity will be calculated. Under the final regulation, the calculation of remaining disposal capacity will be based upon information submitted in the facility's most recent annual report or equivalent information.
Several commentators objected that a 5-year limitation on expansion applications was unnecessarily restrictive. The Board disagrees because this time period is necessary to avoid permitting facilities that are technologically obsolete by the time they are utilized. The 5-year limitation also enables the more efficient use of Department staff who review permits. These commentators also suggested that disposal capacity should be measured utilizing the maximum daily tonnage in the facility's permit. This would not be appropriate because most landfills do not accept their maximum daily tonnage on a daily basis. Instead, the remaining capacity will be based upon the data submitted by the operator as part of the annual report. By using the annual report information, the calculation will be based upon factual data and updated on an annual basis.
New subsection (g) includes definitions of the terms ''local municipalities,'' ''approach routes'' and ''municipal officials,'' as those terms are used in this section.
§ 271.203. Review period.
Two commentators suggested that an alternative project timeline be applied to resource recovery facilities as it is to municipal waste landfills and construction/demolition waste landfills. The Board has amended subsection (a) in this fashion to include resource recovery facilities because these facilities will now have alternative project timelines, under the amendments to § 271.202 (relating to receipt of application and completeness review).
GENERAL PERMIT RESTRICTIONS § 271.211. Term of permits.
In response to public comment, the Board corrected an error it made in the proposed rulemaking when it inadvertently deleted the word ''no'' at the beginning of subsection (c). The word ''no'' appears in the final-form rulemaking.
The Board amended subsection (d) to require an operator to provide a summary of changes to the operations since approval of the initial permit or latest major permit modification when the Department conducts its 5-year review of the facility. This requirement was added because it provides the Department with the information in a format that will facilitate the review of the existing permit.
One commentator suggested that the public should be informed of applications for new municipal waste facilities through a newspaper notice that sets out the applicant's compliance history, sets a 30-day comment period and announces the opportunity to request a hearing. The regulations were not changed in response to this comment because newspaper notice of a permit application is already required to be published by the applicant under § 271.141 (relating to public notice by applicant). That notice must include a 60-day comment period and state that the Department will accept comments from the public. The applicant's compliance history must be submitted with the application. The compliance history is a lengthy document and is available for review by anyone during the public comment period. Under § 271.143 (relating to public comments), the Department may schedule a hearing if there is significant public interest, so the opportunity already exists to request a hearing.
§ 271.212. Conditions of permits.
The proposed provisions in paragraph (4) required the permittee to notify the Department after the transfer of a controlling interest in the permittee. The final-form regulations clarify that this notification should occur when there is a transfer of a controlling interest in the owner or operator of the facility, regardless of whether that party is the permittee. The final-form regulations also clarify that if the transfer of controlling interest triggers a major permit modification or permit reissuance, notification under this section is not required. Paragraph (4) is not intended to apply to changes in managers or directors, which will be described in the permittee's annual report.
PERMIT REISSUANCE, MODIFICATION AND RENEWAL § 271.221. Permit reissuance.
One commentator opposed the revision to subsection (a), stating that existing permits should be grandfathered. The Board retained the revision because it merely clarifies existing Department practice.
§ 271.222. Permit modification.
In the proposed rulemaking, subsection (c) had been added to authorize the Department to approve onsite a minor modification for the construction of liner systems or of erosion and sedimentation control devices if impracticable to comply with the standard procedures for minor modifications and if the modification would improve the permitted design. The Board received several comments on this proposal.
One commentator recommended that the regulation require an onsite modification to be followed up in writing within a short time period to avoid later disagreements over what specific modification was approved or the extent of the modification. The Board agrees with this comment and has revised the regulation to authorize the Department to issue a conditional approval onsite. The approval will be conditioned on the applicant submitting the supporting design modifications and fee within 5 working days.
Two commentators requested the Board to amend this regulation to allow onsite approvals for other systems too, including final cover, gas management and leachate management systems. The Board declined to make this change. The onsite conditional approvals are limited to liner system and erosion and sedimentation control systems because minor field changes have historically been necessary during construction of these systems and there is not always sufficient time available to use the existing minor permit modification process. The onsite minor permit modification process cannot be used in instances where background design or other information is necessary for review by the Department prior to approval or when sufficient time exists for the modification to be done through the existing minor permit modification process.
§ 271.223. Permit renewal.
The proposed rulemaking did not contain a change to this section but two comments were received that requested that resource recovery facility permit terms should be automatically extended if the permit renewal application was filed timely.
The Board did not include an automatic extension in this regulation, but amended the regulation to require earlier submission of permit renewal applications so that there will be adequate opportunity for timely review by the Department. The final-form regulations have been amended to require a processing facility to submit a permit renewal application 270 days prior to the expiration date and a disposal facility to submit a permit renewal application at least 1 year before the expiration date. To address applications received near the effective date of the final-form regulations that could not meet the new requirements, the final regulation provides that renewal applications for permits that will expire within 270 days and 1 year, respectively, of the effective date of the final rulemaking need only be submitted within 180 days of their expiration date.
Subchapter D. FINANCIAL ASSURANCES REQUIREMENTS
GENERAL § 271.301. Scope.
The Board deleted subsection (e) in the final-form rulemaking because the Environmental Stewardship and Watershed Protection Act repealed the statutory requirement in Act 101 upon which it had been based.
BOND AND TRUST REQUIREMENTS--TYPES § 271.321. Special terms and conditions for surety bonds.
Subsection (b) has been modified on final-form rulemaking. First, language has been deleted to be consistent with a repealer in the laws relating to casualty insurance. See 40 P. S. § 730, which provided for foreign companies, associations and exchanges to do business through resident agents, and which was repealed December 21, 1998 (P. L. 1108, No. 150).
Secondly, language has been added that requires surety bonds for facilities permitted after the effective date of these regulations and permit modifications issued after the effective date of these regulations to be listed in Circular 570 of the United States Department of Treasury. If the surety is removed from the circular, the bond issued by the surety must be replaced. The Federal government uses different, more comprehensive standards to qualify a surety than the Insurance Department. The listing and bond replacement requirements are consistent with Federal requirements for both municipal waste landfills and hazardous waste landfills.
BOND AND TRUST REQUIREMENTS--AMOUNT § 271.331. Bond and trust amount determination.
Three commentators suggested that the bond amount should be determined based upon the net amount placed in the site-specific postclosure trusts because the funds in the trusts are intended for conducting identical activities as those in the bond amount determination. The Board did not make this change because the bond amount is calculated according to the requirements of the SWMA and does not allow for diminution by amounts in a trust fund.
§ 271.332. Bond and trust amount adjustments.
On final-form rulemaking, the Board added language to subsection (b)(2) that allows the Department to require additional bonding at the time of a bond replacement if the bond being replaced is inadequate to protect human health and the environment.
BOND AND TRUST REQUIREMENTS--RELEASE § 271.341. Release of bonds.
The Board changed the phrase ''completion of a stage of closure'' in subsection (b)(3) to ''completion of a measure carried out in preparation for closure'' in order to avoid confusion, as ''closure'' is the point at which the entire facility permanently ceases to accept waste. Areas of the facility may reach permitted final elevations and may not be used for further waste disposal during the operation, but these areas are ultimately integrated together when the entire facility closes.
In subsection (g)(2), a misprint has been corrected. The words ''or monitoring'' were inadvertently printed instead of the proper language, ''and to maintain.''
Two commentators questioned why any money has to remain in a site-specific post closure trust if the bond amount is adequate to cover the cost of long-term remediation. The question has largely been mooted by the passage of the Environmental Stewardship and Watershed Protection Act in 1999, which authorized the host county to spend the money in a site-specific postclosure trust for ''growing greener'' purposes consistent with that act. As before, the landfill may only have access to the money--while it remains in the trust--for emergency measures and remedial actions for which the Department has authorized release of the money in writing.
§ 271.342. Final closure certification.
For final closure certification, the Board consolidated all remediation standards for facilities. With the introduction of 40 CFR Part 258 (relating to criteria for municipal solid waste landfills) in 1993 and Act 2 in 1995, it was necessary to clarify which remediation standards apply to landfills and other facilities at the time of final closure certification. Subsection (b)(2) identifies the remediation standards that apply to municipal waste landfills permitted on or after the effective date of these regulations. With the exception of MCLs (discussed in § 273.287 (relating to abatement plan)), the standards for municipal waste landfills mirror the Federal requirements. Paragraph (3) identifies the remediation standards that apply to municipal waste landfills that received waste between October 9, 1993, and the date these regulations become effective. The regulations for these landfills continue to include any remediation standards previously identified in a closure plan. If none was identified, the remediation standards in subparagraph (b)(2) will apply. Paragraph (4) applies to all other facilities, including facilities other than municipal waste landfills. Remediation standards relating to Act 2 will apply.
On final-form rulemaking, the cross reference in subsection (b)(2)(iv)(A) to a Federal Register cite has been deleted. Although, the Department may consider the documents cited on proposed in its guidelines, the reference to Federal guidelines here was inadvertent.
On final-form rulemaking, the Board added a new subsection (c) for facilities other than municipal waste landfills that allows the movement of the point of compliance for secondary contaminants beyond the property boundary up to a water source with approval by the Department. This language has been added to provide some relief for the remediation of contaminants that do not pose a public health threat.
The Board added a new subsection (i) on final-form rulemaking that defines the term ''property boundary'' as it is used in this section. The definition clarifies a point in time when the point of compliance cannot be extended by purchasing additional property to avoid remediation.
§ 271.343. Withdrawals from municipal trust.
A numerical cross reference has been updated to reflect changes in the numbering within the section cross referenced.
Subchapter E. CIVIL PENALTIES AND ENFORCEMENT
CIVIL PENALTIES § 271.413. Assessment of penalties--minimum penalties.
On final-form rulemaking, the Board added language to subsection (d) to clarify an ambiguity regarding the minimum penalty for a person that applies sewage sludge to an area that is not permitted. The new language makes it clear that the $1,000 fine is applied to a portion of land up to an acre.
Several commentators suggested that the first sentence of proposed subsection (j) lacked clarity because it is not clear whether an ''administrative order'' or ''another abatement order'' would provide the ''abatement period set in the order.'' Two of these commentators also asked that subsection (j) be deleted because it is confusing as to which solid waste activities it would cover and the commentators expressed concern about whether the time frame the Department would set for compliance would be reasonable or practical. These two commentators suggested a replacement provision allowing the Department to reduce or eliminate penalties for violations discovered by the operator under a voluntary system of audits and inspections conducted by the operator, provided the violation is promptly reported to the Department and voluntarily and promptly corrected by the operator.
The Board did not amend or delete this provision in response to these comments. This provision was in place for many years before it was inadvertently deleted in 1997, and it is simply being reinstated here. As the provision is structured, the word ''order'' in the phrase ''abatement period set in the order'' refers to either an administrative order or other abatement order, so amendment for clarification is not necessary. A majority of the orders issued by the Department are cessation orders, but this section includes all orders. The $1,000/day penalty provides economic incentives for compliance with orders. If the regulated entity does not agree with the Department's assessment and decision, the entity may appeal the decision and apply for a supersedeas. The final-form regulations do not include authorization for the Department to reduce or eliminate penalties for self-reported violations because the regulatory economic disincentive is important in compelling compliance. With regard to the penalty established in subsection (j), a violator should not be excused for continuing to cause violations that were already the basis of a cessation or abatement order against the violator.
ENFORCEMENT § 271.421. Administrative inspections.
The Board decided to retain the original language in subsection (b)(1)(iv) which requires the Department to inspect sewage sludge land reclamation facilities at least twice a year. While the proposed modifications to subsection (b) did not prohibit the Department or its agents from inspecting facilities on a more frequent basis, maintaining the current twice a year minimum is useful to address increased public concerns regarding the use of sewage sludge for land reclamation activities.
Subchapter F. DEMONSTRATION FACILITIES § 271.501. Scope.
One commentator stated that the proposed amendment to this section is not clear as to the permit requirement. Two commentators stated that demonstration projects need more public scrutiny and more regulation. The Board has retained the proposed language, which allows the demonstration of new or unique technology at permitted facilities through a modification to the permit, where significant controls exist. The demonstration of new or unique technology will be able to be accomplished through a permit for a demonstration facility, which will require public notice under § 271.141 (relating to public notice by applicant) or through a modification to an existing disposal or processing facility permit. The latter may be accomplished through a major or minor modification, which receive differing degrees of public notice. Regardless of whether the demonstration is reviewed as a major or minor modification, operation of the facility may not impact public health or the environment.
§ 271.502. Relationship to other requirements.
One commentator insisted there should be no waiving of rules applicable to permit applications. The Board retained the proposed language, however, because flexibility in the approval process is necessary to allow new technology to be tested adequately. The sites are carefully monitored and evaluated. The Board added a requirement that the public notice requirements of § 271.141 (relating to public notice by applicant) may not be waived or modified.
Subchapter G. RESIDUAL WASTE
ADDITIONAL APPLICATION REQUIREMENTS § 271.611. Chemical analysis of waste.
In the final-form rulemaking, the Board added a new subsection (a)(1)(v). This subparagraph requires an application for disposal of residual waste or special handling waste at a municipal waste landfill or construction/demolition waste landfill to include a demonstration that the waste meets the requirements for disposal at the facility. Some wastes may not be accepted at the facility due to restrictions in the regulations, the permitted waste acceptance plan or the permitted operating plan. It is necessary for the operator to demonstrate that the disposal of the waste is consistent with the disposal restrictions in the regulations and approved permit.
One commentator suggested that subsection (a)(4) should be amended to apply to processing and disposal facilities, not just disposal facilities. The Board made this change by deleting the word ''disposal.''
The proposed reference to ''municipal-like-residual waste'' in subsection (a)(4)(ii) was deleted in the final-form rulemaking in response to public comments that it was too confusing. New language is intended to clarify that the evaluation required by this subsection may be waived or modified if the applicant demonstrates that additional analysis is not necessary to determine that the waste can be received without adversely affecting the effectiveness of waste processing or disposal operations, established emission and wastewater discharge limits, liner systems, leachate systems or, at an unlined construction/demolition waste landfill, the attenuating soil base.
§ 271.612. Source reduction strategy.
The Board received two public comments on the proposed revision to this section. One commentator suggested that the regulations should not require a processing or disposal facility to obtain and submit to the Department copies of source reduction strategies because the generators already submit this information to the Department. That is not the case, however: the residual waste regulations do not require generators to submit these reports routinely. The other commentator objected to § 271.612 requiring submission of the generator's source reduction strategy if the waste is to be used as daily cover. The Board retained the provision as proposed, however, because the goal of the source reduction strategy is to reduce the volume of waste generated. Using the waste as landfill cover does not reduce the volume of waste generated nor of waste disposed.
Subchapter H. (Reserved) This subchapter has been deleted and moved to Chapter 284, Subchapter B (relating to general permits).
GENERAL PROVISIONS §§ 271.711--271.712. (Reserved).
These sections have been relocated to §§ 284.101 and 284.102.
ISSUANCE OF A GENERAL PERMIT §§ 271.721--271.725. (Reserved).
These sections have been relocated to §§ 284.111--284.115.
CONTENT OF GENERAL PERMITS AND WAIVERS §§ 271.731--271.732. (Reserved).
These sections have been relocated to §§ 284.121--284.122.
REGISTRATION AND DETERMINATION OF APPLICABILITY §§ 271.741--271.744. (Reserved).
These sections have been relocated to §§ 284.131--284.133, except for § 271.744, which has been deleted.
Subchapter I. BENEFICIAL USE
SCOPE § 271.801. Scope.
Subsection (a)(2) has been amended on final to create an exception to this subchapter's permitting restriction on the land application of sewage sludge. This change is made in concert with the deletion of § 271.2(b)(3) (relating to scope), described above. Under the amendment to § 271.801(a)(2), sewage sludge mixed with residual waste may not be permitted under Subchapter I except as provided in § 271.821(b)(6) (relating to application for general permit). As before, a general or individual permit for the beneficial use of sewage sludge not mixed with residual waste will be issued only under Subchapter J (relating to beneficial use of sewage sludge by land application).
GENERAL PERMIT FOR PROCESSING OR BENEFICIAL USE, OR BOTH, OF MUNICIPAL WASTE AUTHORIZATION AND LIMITATIONS § 271.811. Authorization for general permit.
Subsection (a)(1) was amended on final rulemaking to correct an oversight in the existing regulations. The language is taken from § 287.611 (relating to authorization for general permit) of the residual waste regulations, which is the counterpart to this municipal waste section, and should have been included in this subchapter originally.
The Board amended subsection (e) to clarify that a general permit for processing or beneficial use of combinations of sewage sludge and residual waste shall be issued only under this subchapter. This clarifies which regulations apply to applicants proposing the beneficial use of mixtures of sewage sludge and residual waste.
The Board amended subsection (g) to state that a general permit for the beneficial use of sewage sludge by land application will not be issued under Subchapter I except for general permits in which sewage sludge is mixed with residual waste.
One commentator offered the opinion that the proposed revision to subsection (g)(5) required a complete rewrite because it was difficult to comprehend. Another suggested that the provision should allow for mitigating circumstances. The Board does not agree with either suggestion. This provision has been added to clarify that a general permit for beneficial use will not be issued for the use of materials at permitted resource recovery or disposal facilities. Materials used during construction or operation at those facilities need to be identified and evaluated as part of the permit application. It is necessary to modify the permit at a waste management facility to ensure the wastes proposed for use will not affect the design or operation of the facility. The final-form regulations maintain the existing requirement for an equivalency review for such an approval.
ISSUANCE OF GENERAL PERMITS § 271.821. Application for general permit.
The Board changed the phrase ''municipal waste'' to ''waste'' in subsection (b)(1) because the analysis required in this subsection is needed for residual wastes as well as municipal wastes when residual waste is blended with municipal waste.
Subsection (b)(5) has been added on final to address mixtures of municipal and residual waste. This provision was taken from § 287.621 (relating to application for general permit). An applicant for a general permit or for coverage under a general permit under Subchapter I must now demonstrate that all of the components of the mixture have a beneficial use. This applies to processing permits as well as beneficial use permits.
The Board added subsection (b)(6) in the final-form rulemaking to regulate more closely the land application of sewage sludge mixed with residual waste. In order to obtain a general permit for land application of sewage sludge mixed with residual waste, an applicant will have to meet all of the requirements of this subchapter, including the applicable requirements for the residual waste component, and will also have to meet relevant requirements of Subchapter J (relating to beneficial use of sewage sludge by land application) to ensure the quality and safe application of the wastes to be land applied. The requirements in subparagraph (i) are taken from § 271.902 (relating to permits and direct enforceability), which is in Subchapter J; they are modified slightly to include a reference to residual waste. The requirements in subparagraph (ii) are taken directly from other specific sections in Subchapter J.
Subsections (c) and (d) were amended on final to identify a permit application fee of $2,000 for issuance of a general permit that involves the mixture of residual waste and municipal waste.
§ 271.832. Waiver and modification of requirements.
The Board added language on final-form rulemaking to subsection (b) that clarifies the Department's intention not to waive the permit application requirements in § 271.123 pertaining to the Commonwealth's right of entry and the landowner's consent to solid waste activities. Although the requirements of this section cannot be waived, the Department may modify the requirements. Circumstances relating to the imminent sale of property present an example of when the Department has modified the requirements in an effort to work with the existing and future landowners to meet the regulatory obligations of a landowner.
The Board also amended subsection (b) on final rulemaking by deleting reference to Subchapter H, because Subchapter H has been relocated to Chapter 284, Subchapter B.
CHAPTER 272. MUNICIPAL WASTE PLANNING, RECYCLING AND WASTE REDUCTION
Subchapter A. GENERAL § 272.1. Scope.
The Board deleted the phrase ''host municipalities'' from the scope section because this subchapter no longer involves rights or responsibilities of host municipalities, in light of the passage of the Environmental Stewardship and Watershed Protection Act in 1999. Most of the other changes made to this subchapter on final are the result of that act.
Subchapter B. HOST COUNTIES § 272.101. County withdrawals from trust fund.
The Board has deleted the requirement to establish new trust funds in subsection (a) since the site-specific post closure fee that funds these trusts has been eliminated by the Environmental Stewardship and Watershed Protection Act. Language has been added to allow host counties to withdraw funds from the trusts for purposes consistent with that act. Similarly, subsections (b) and (c) have been deleted to comply with the Act.
§ 272.102. Trust requirements.
Language has been added in subsection (a) to clarify the section in response to the Environmental Stewardship and Watershed Protection Act. The lead-in to subsection (a) has been changed because this section no longer requires trust funds to be established. Subsection (a)(1) has been deleted because under the ESWPA the requirement for establishment of these trusts has been eliminated and the potential utilization of the trusts has been expanded. Two provisions in subsection (a)(3) (now subsection (a)(2)) have been deleted because counties are no longer required to establish the trusts and the language regarding spendthrift trusts is duplicative of existing language. Language in subsection (a)(4) (now subsection (a)(3)) has been deleted because it is duplicative of existing language in the trust agreements. Language has been added to subsection (a)(5) (now subsection (a)(4)) to clarify that payments that were due under Act 101, but have not yet been made belong in the trust, and were required for waste received until January 1, 2000. Language has been deleted from paragraph (5) since payments are no longer required to be paid into the trust quarterly, but the requirement for a quarterly statement of trust account transactions remains since the trusts are still in place.
The Board deleted subsection (f) because the trusts are no longer being established as a result of the ESWPA.
§ 272.103. Failure to make payment.
As with § 272.102, the Board revised this section to reflect the fact that regular payments are no longer expected to be made to the trusts, but that delinquent payments are still owed.
§ 272.104. Operator withdrawals from trust fund.
The Board added the word operator to the title of this section to clarify what withdrawals from the trust were covered in this section.
The Board deleted language in subsection (a) which is no longer relevant because of the ESWPA.
The Board amended subsection (b) to clarify that this subsection addresses money paid over to the operator. The Board added the qualification that was previously found in § 272.102(a)(1), that such payment may only be made for remedial measures and emergency actions required by the Department for prevention or abatement of adverse effects on the environment. This language previously existed in Act 101, under which these regulations were first drafted, and now exists in the ESWPA.
Subsection (c)(4) has been modified because the trusts are no longer available only to the facility, but also to the host county. An additional requirement has been added in subsection (c)(6) to assure that the operator does not have the financial ability to perform remedial measures or emergency actions before a withdrawal from a trust is approved. This includes the exhaustion of the bond that has been posted for the closure and post closure care of the facility. For certain old, closed dumps that had no bond or a bond less than $10,000 and which have not been abandoned, special provision is made in subsection (f).
A modification has been made to subsection (d) to clarify who is making the withdrawal.
Modifications have been made to subsection (f) to clarify that the trustee shall make moneys available for those sites that closed shortly after April 8, 1988, for the purposes designated in the proposed regulations. It clarifies that a facility with a bond of less than $10,000 may qualify for moneys and the facility must not have been abandoned. (Abandonment of trust is addressed in § 272.107.)
Subsection (g) has been amended to clarify who is making the withdrawal.
§ 272.105. County withdrawals from the trust fund for administering the trust fund.
This section has been retitled to clarify the purpose of these withdrawals from the trust fund.
Subsection (a) has been amended to reflect the fact that establishment of site-specific postclosure trusts is no longer required.
Text of subsection (b) has been deleted due to the new authority for a county to withdraw moneys from a trust upon request of a trustee for purposes authorized by the ESWPA.
Proposed subsection (c), which is labeled subsection (b) in the final-form regulations, has been amended to delete the requirement for establishment of new trusts as in subsection (a). In addition, this subsection in the final-form rulemaking restates and embodies the revision that was proposed to subsection (d), which allowed the county's administrative fee to be based on all of the moneys in the trust. The final sentence has been deleted because it now appears in the new subsection (c).
Subsection (d) has been deleted because the payments to the county are governed by language retained in subsection (b). The second sentence has been deleted because it conflicts with the definition of deposits which now includes earnings and profits of the trust.
New subsection (c) has been added to clarify the requirement, as on proposed, that, after the trustee receives certification of closure, a county may not be reimbursed more than the lowest of its actual costs, 0.5% of the moneys in the trust fund or the earnings and profits from the trust during the billing period. This section seeks to protect the corpus of these trusts from being depleted by administrative charges.
§ 272.106. Termination of trust.
The section has been retitled to be consistent with its content.
Subsection (a) remains unchanged from the proposed rulemaking.
Subsection (b) remains unchanged from the proposed rulemaking with the exception of the deletion of the last sentence. Termination of the trust fund other than after final closure certification is now addressed in new subsection (d).
Subsection (c) has been amended to conform with the ESWPA which allows the county to receive the remainder of the trust for use as authorized by that act.
Subsection (d) has been added to allow termination of the trust when all moneys have been withdrawn and paid out.
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