A lert
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.
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
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.
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
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.
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
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
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).
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.
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
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
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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
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.
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
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
Kirkpatrick & Lockhart LLP
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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.