A lert ENVIRONMENTAL JANUARY 2001 Pennsylvania Environmental Quality Board Publishes Final Regulations Comprehensively Revising Residual Waste Regulations By Raymond P. Pepe* On January 12, 2001, the Environmental Quality Board published final regulations in the Pennsylvania Bulletin extensively amending Pennsylvania’s rules governing the generation, storage, transportation, treatment, processing and disposal of “residual waste,” i.e., non-hazardous industrial waste. The adoption of the new rules by the Environmental Quality Board culminated a six-year effort to revise the regulations as part of a “Regulatory Basics Initiative” originally intended to simplify and streamline all of the Department of Environmental Protection’s regulatory requirements. Unfortunately, as adopted by the Board, the final residual waste regulations are a mixed bag of old-style, yet expanded, ‘command and control’ requirements, somewhat offset by some enhanced regulatory flexibility. The new regulations: 1. add comprehensive new environmental assessment requirements; 2. lengthen the permit review process; 3. limit the long-term storage of industrial byproducts being recycled or reused; 4. adopt extensive new waste-storage requirements; 5. require prior approval for various types of recycling and reuse of residual waste; 6. limit the areas in which industrial waste landfills and disposal impoundments may be operated; 7. require radiation monitoring at all disposal facilities; 8. expand recordkeeping requirements; and 9. modify groundwater protection standards. The regulations also contain limited provisions which promote the recycling and reuse of materials not applied to the land and simplify several facility design and management standards. All businesses engaged in the generation, storage, transportation, processing or disposal of residual waste should carefully evaluate the impact of the new regulations upon their activities. ENVIRONMENTAL ASSESSMENT REQUIREMENTS A feature of the new regulations that will likely have important long-term consequences for Pennsylvania businesses is a requirement that permit applicants must conduct an “environmental assessment” and demonstrate that the “public benefits” associated with proposed facilities “clearly outweigh” the actual and potential environmental “harms” created by operation of the facilities. In evaluating public benefits, permit applicants may consider only “social and economic benefits that remain after taking into consideration the known and potential social, economic and environmental harms of projects.” These new environmental assessment requirements apply to all * Mr. Pepe is a partner in Kirkpatrick & Lockhart’s Harrisburg Office. His environmental practice includes the representation of businesses engaged in the transportation, processing and disposal of municipal, residual and hazardous waste. He is a member of the Environmental Affairs Committee of the Pennsylvania Chamber of Business and Industry and the Technical Advisory Committee to the Pennsylvania Waste Industries Association. Kirkpatrick & Lockhart LLP non-captive residual waste landfills and all other types of residual waste facilities if any known or potential environmental harm may result from the development of the facilities, notwithstanding the implementation of mitigation measures. Depending upon how the regulations are interpreted by the Department of Environmental Protection, the benefits-versus-harms test could apply to any facilities with air or water emissions, including non-point source discharges and emissions in compliance with all applicable regulatory requirements. Prior to the adoption of these regulations, by policy the Department of Environmental Protection applied a benefits-versus-harms balancing test to municipal waste landfills. Earlier this year, however, in the matter of Dauphin Meadows, Inc. v. Department of Environmental Protection, EHB Docket No. 990190-L (April 27, 2000), a proceeding in which Kirkpatrick & Lockhart represented the successful appellant, the Department was enjoined from applying the benefitsversus-harms test to municipal waste landfills. The Environmental Hearing Board ruled that the Department’s policy constituted an unlawful unpublished regulation. The new municipal waste and residual waste regulations replace the policy found to be unlawful by the Board. The regulations (and current policies) do not define or identify acceptable social and economic benefits or harms. In addition, no specific standards for the comparison or quantification of benefits or harms exist. Moreover, there are no criteria for use in determining whether benefits “clearly outweigh” known and potential harms. Instead, agency officials (acting outside of their competence as engineers, biologists and geologists) are given nearly complete discretion to determine whether a proposed development is in the public interest based upon economic, social and aesthetic considerations. Accordingly, extensive litigation appears inevitable regarding the legality and application of the benefits-versus-harms test, including matters initiated both by permit applicants and third-party appellants. applications. Under the new regulations, the 60 day deadline for a “completeness” review of most disposal permits does not begin to run until after meetings are scheduled to discuss the permit applications with representatives of all affected “host communities” and until after the parties conduct “negotiations” regarding the actual timeline for review of the permit application. The new regulations also increase the deadline for the submission of permit renewal applications from at least 180 days prior to the expiration of the term of a permit, to at least 365 days for disposal facilities, and at least 270 days for other types of permitted activities. STORAGE OF RESIDUAL WASTE The new regulations impose stringent limitations upon the storage of materials which are not the primary intended product of a manufacturing or production process and which are recycled or reused. The storage of these materials requires an industrial waste permit if the materials are “speculatively accumulated.” The definition of speculative accumulation, which is based upon EPA requirements for the storage of hazardous waste, requires at least 75% of each type of material stored to be actually recycled or reused annually or to be shipped off-site for actual recycling or reuse. The prior regulations included a presumption that storage in excess of one year constitutes “disposal,” but allowed the presumption to be overcome by clear and convincing evidence. The new prohibitions upon speculative accumulation do not contain a similar exemption. The storage of non-hazardous industrial waste is further regulated by the new regulations. All storage tanks, for example, must be equipped with overfill, spill prevention, containment, leak detection, corrosion control and monitoring equipment. All monitoring points and wells must be appropriately labeled and identified. In addition, any storage of non-hazardous industrial waste at a permitted hazardous waste facility requires a separate waste-processing permit, unless the material is handled and bonded in the same manner as hazardous waste. ADDITIONAL DELAYS IN PERMIT REVIEW Under prior regulations, the Department of Environment Protection was required to determine if applications for solid waste permits were administratively complete within 60 days of submission and, thereafter, commence the review of the 2 EXPANDED DEFINITION OF RESIDUAL WASTE Expanding the definition of residual waste, the new regulations require prior review and approval for any recycling or reuse of industrial “by-products” which involves application to the land or use in the production KIRKPATRICK & LOCKHART LLP ENVIRONMENTAL ALERT of materials applied to the land. Under prior regulations, materials classified as “co-products” could be used for such purposes, if a business maintained adequate records and documentation to demonstrate that the materials were chemically and physically comparable to intentionally produced products or raw materials for which the wastes were substituted and posed no greater threat to human health or the environment. While maintaining the same standard, the new regulations treat all such materials as residual wastes and require all persons to obtain the prior review and approval by the Department of Environmental Protection for the use of residual wastes as co-products. Although Pennsylvania regulators are, for the most part, following the EPA lead in waste regulations, their overall approach attempts to increase the state’s regulatory jurisdiction by expanding the definition of what is “waste.” Pennsylvania business and industry, on the other hand, have made progress in reducing the flow of waste to disposal sites by looking more creatively for ways to minimize waste generation. The two approaches are likely to clash in specific cases. A recent federal court decision suggests that there are limits to how far the agencies can stretch the definition of “waste.” In Association of Battery Recyclers, Inc. et al. v. U.S. EPA, the U.S. Court of Appeals for the District of Columbia overturned an EPA regulation that treated as “waste” material that had not been discarded, but that was stored in a manner disfavored by the agency. See 208 F.3d 1047 (April 21, 2000). FACILITY DESIGN AND OPERATION REQUIREMENTS Under the new regulations, more stringent requirements are established for the location of residual waste landfills and disposal impoundments. Prior regulations generally prohibited these facilities within 300 feet of occupied dwellings and prohibited actual waste disposal within 500 feet of occupied dwellings without the consent of the owners. The new regulations increase the setback requirement to 900 feet and establish a new 300 feet setback requirement between all access roads located at disposal facilities and occupied dwellings (except as waived by owners of the dwellings). which mineable coal is located, unless the coal is owned by the permittee. Unlike prior regulations, an agreement with the owner surrendering mining privileges so long as waste is present on the site is not acceptable. The Environmental Quality Board seems to be dabbling again in the complex area of Pennsylvania real property law affecting mineral estates, surface estates and support estates. The board’s last venture into this thicket resulted in a declaration by Commonwealth Court that its “areas unsuitable for mining” regulations constituted a taking of property. See Machipongo Land & Coal Co. v. DER, in which Kirkpatrick & Lockhart represented an appellant that successfully challenged those regulations. The new regulations also require all non-captive industrial waste landfills and disposal impoundments to implement radiation monitoring and protection measures. These requirements include a plan for monitoring waste received for radioactivity; training, notification, recordkeeping and reporting procedures and an action plan for the protection of facility staff and public health and safety. The new radiation protection requirements must be implemented within two years of the publication of the new rules. RECORDKEEPING REQUIREMENTS Prior regulations required large quantity generators of residual waste (those producing more than 2,200 pounds per-year per-location) to prepare and submit to the Department of Environmental Protection biennial reports and source reduction and waste analysis plans. Small quantity generators were not required to submit biennial reports, but instead were required to maintain daily records regarding waste generation, on-site disposal and shipments of waste off-site for processing, disposal or reuse. Large quantity generators were not required to maintain daily records because waste transporters and disposal facilities were required to maintain equivalent documentation. The revised regulations expand the daily recordkeeping requirements to apply to all generators of non-hazardous industrial waste. GROUNDWATER PROTECTION STANDARDS A curious twist in the new regulations prohibits the development and operation of landfills and disposal impoundments above or adjacent to any areas in The regulations adopt standards for the assessment and abatement of groundwater degradation inconsistent with Pennsylvania’s Land Recycling JANUARY 2001 Kirkpatrick & Lockhart LLP 3 and Environmental Remediation Standards Act. The new rules also require notification of groundwater degradation in a manner likely to generate public controversy and possible citizen suits; and limit the use of previously permitted unlined landfills and impoundments. The Land Recycling and Environmental Remediation Standards Act allows the remediation of all groundwater contamination based upon either a background standard, a statewide health standard or site-specific risk-based standard. The new residual waste regulations, however, mandate assessment and abatement of any contamination at operating facilities which exceeds the background or statewide health standard. The risk-based standard is limited to closed facilities. In addition, the statewide health standard is revised to eliminate nonuse aquifer standards. Secondary drinking water standards (aimed at aesthetic and welfare concerns) are also incorporated into the health-based standards, and compliance with groundwater protection standards is required at property boundaries, even if a facility operator owns downgradient property. In a manner more likely to generate public controversy and possible citizen suits than enhanced environmental compliance, the regulations require public notification for any groundwater degradation, even where facilities comply with the regulation’s more stringent statewide health standards. The affect of the notification requirements may be to create public concern, even in situations where no remediation activities are required or appropriate. RECYCLING AND REUSE OF RESIDUAL WASTE The regulations attempt to promote the recycling and reuse of industrial waste, by eliminating “co-product” requirements for the recycling and reuse of by-products not applied to the land. As noted above, the prior regulations only allowed the recycling or reuse of byproducts if the materials qualify as co-products, i.e. if the materials could be shown to be chemically and physically equivalent to intentionally produced products or raw materials and did not pose any greater risk to human health or the environment. Except for materials “reclaimed” or applied to the land, the new regulations eliminate the necessity of co-product determinations. The Department estimates the elimination of these requirements will save affected businesses $7 million annually. The final regulations also simplify and promote more flexibility in facility management in several areas. For example, the regulations allow more types of materials to be used as landfill cover; eliminate design requirements for access roads not leading to disposal areas; provide greater flexibility in developing plans to control and minimize nuisances; allow the use of alternative well casing designs; and modernize landfill liner specifications. EFFECTIVE DATE The new regulations took effect immediately upon publication and will apply to both existing permitted facilities and to currently pending permit applications. Since 1992, many unlined residual waste landfills and impoundments have been operating in Pennsylvania pursuant to grandfather requirements applicable to facilities which do not cause groundwater contamination. In addition, Pennsylvania has allowed Class III residual waste landfills to use attenuating soil liners. The adoption of more stringent groundwater assessment and abatement standards may limit further repermitting of these facilities. In addition, the new regulations require attenuating soil for Class III landfills to prevent the migration of contaminants to the “greatest degree technologically possible,” a problematic standard which may be unachievable. FOR FURTHER INFORMATION about Kirkpatrick & Lockhart’s environmental practice, please consult the author or one of the Kirkpatrick & Lockhart LLP office contacts listed below. You may also visit our webpage at www.kl.com. Raymond Pepe Rick Hosking Roger Zehntner Harrisburg Pittsburgh Boston 717.231.5988 412.355.8612 617.261.3149 [email protected] [email protected] [email protected] Kirkpatrick & Lockhart LLP Challenge us. BOSTON n DALLAS n HARRISBURG n LOS ANGELES n MIAMI n NEWARK n NEW YORK n PITTSBURGH n SAN FRANCISCO n WASHINGTON ......................................................................................................................................................... This publication/newsletter is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with a lawyer. © 2001 KIRKPATRICK & LOCKHART LLP. ALL RIGHTS RESERVED.