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PA Chamber of Business and Industry Meeting Harrisburg, PA December 4, 2008

2. Hazardous Waste RegulationsMunicipal

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PA Chamber of Business and Industry Meeting Harrisburg, PA December 4, 2008

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    1. PA Chamber of Business and Industry Meeting Harrisburg, PA December 4, 2008 Thomas K. Fidler Deputy Secretary for Waste, Air and Radiation Management PA Department of Environmental Protection 400 Market Street Harrisburg, PA 17105-8468 717-772-2724

    2. 2 Hazardous Waste Regulations Municipal & Residual Waste Regulations Storage Tank Operator Training Regulations Draft General Permit WMGM037 for the Conversion of Waste to Fuel New Federal Definition of Solid Waste

    3. 3 Hazardous Waste Rulemaking Purpose: Incorporate Federal Hazardous Waste Program by reference Remove obsolete provisions (e.g. co-product transition provisions) Establish uniform manifest system Expand and clarify Universal Waste provisions Add provisions for Standardized Permits

    4. 4 Summary of Changes Two New Universal Wastes Added: Used photographic solutions containing silver Discarded oil-based finishes Benefits of Management as Universal Waste: Easier to collect and recycle No manifest or licensed transporter required Not counted in generator status determination Encourages management to avoid disposal in municipal waste facilities

    5. 5 Manifest reporting provisions deleted Closure and post closure certification provisions deleted (requirements are incorporated by reference) Financial test and corporate guarantee provisions retained Application and Annual Fees waived for Standardized Permits Other minor corrections to regulatory citations and clarifications Summary of Changes Cont’d

    6. 6 Regulation Final On September 16, 2008 EQB approved the Final Rulemaking to be effective upon publication in the Pa. Bulletin On November 20, 2008 IRRC certified the Rulemaking

    7. 7 Municipal & Residual Waste Regulatory Revisions Under Development Examples of Proposed Substantive Changes: Revise regulatory definitions Expand universe of permits-by-rule Revise general permitting program Bans on landfill disposal of certain types of materials Improve public participation in permitting process for landfills, transfer facilities and resource recovery facilities Revise generator reporting requirements Draft regulatory language has been developed to address the issue of flexibility for speculative accumulation. Currently, if 75% or more a material is not reused on an annual basis, the material cannot fall out of the definition of waste. The draft regulatory language will allow flexibility similar to the federal regulation, which allows a demonstration that the material is being recycled in a manner that will achieve the 75% use on a regular basis. Additional regulatory language has been developed that will delete portions of the definition of waste that do not enhance or clarify the definition. Draft regulatory language has been developed to address the issue of flexibility for speculative accumulation. Currently, if 75% or more a material is not reused on an annual basis, the material cannot fall out of the definition of waste. The draft regulatory language will allow flexibility similar to the federal regulation, which allows a demonstration that the material is being recycled in a manner that will achieve the 75% use on a regular basis. Additional regulatory language has been developed that will delete portions of the definition of waste that do not enhance or clarify the definition.

    8. 8 Permit Hierarchy Definition of waste Permit-by-rule (PBR; simplified standards) General permit (DEP-generated) Basic individual permit (including beneficial use) Full individual permit (landfills; resource recovery facilities)

    9. 9 Exemptions to Waste Definition Co-products, clean fill, materials used or reused as ingredients to make a product or as effective substitute Materials that require further processing prior to use as ingredient or as an effective substitute If processing is performed at the generation site or at a facility owned by the generator Source-separated recyclable materials Certain materials used for energy recovery (e.g.) untreated wood waste tires Encourages recycling by eliminating these materials from the definition of “waste” Draft regulatory language has been developed to address the issue of flexibility for speculative accumulation. Currently, if 75% or more a material is not reused on an annual basis, the material cannot fall out of the definition of waste. The draft regulatory language will allow flexibility similar to the federal regulation, which allows a demonstration that the material is being recycled in a manner that will achieve the 75% use on a regular basis. Additional regulatory language has been developed that will delete portions of the definition of waste that do not enhance or clarify the definition. Draft regulatory language has been developed to address the issue of flexibility for speculative accumulation. Currently, if 75% or more a material is not reused on an annual basis, the material cannot fall out of the definition of waste. The draft regulatory language will allow flexibility similar to the federal regulation, which allows a demonstration that the material is being recycled in a manner that will achieve the 75% use on a regular basis. Additional regulatory language has been developed that will delete portions of the definition of waste that do not enhance or clarify the definition.

    10. 10 Bans on the landfill disposal of certain recyclable commodities Developed protocol to evaluate recyclable commodities based on the following: Market maturity/economic factors Environmental, health and safety factors Management factors Implementation factors Disposal Bans

    11. 11 aluminum, steel and bimetallic cans recyclable grades of paper (high-grade office paper, newsprint, corrugated paper, magazines) #1 and #2 plastic bottles and jugs glass bottles and jars yard waste mercury-containing devices and bulbs electronic waste Potential Bans

    12. 12 Permit By Rule - Existing PBRs temporary storage at HW facility septage treatment facility wastewater treatment facility captive RW burning for energy recovery captive processing mechanical processing incinerator yard waste composting container processing facility empty drum processing

    13. 13 electronics recycling rural transfer station C/D transfer station MW in-transit storage foundry sand

    14. 14 Upcoming Input Opportunities 12/11/08 - DEP will meet with Chamber Waste Subcommittee and PWIA 1/15/09 – SWAC meeting to present Chs. 271 (Gen. Provisions), 283 (RRFs) and 284 (ICW) PADEP is now finalizing the draft regulatory package Anticipated posting date of SWAC materials is 1/2/09 3/19/09 – Anticipated SWAC consideration of draft proposed rulemaking Summer 2009 – Anticipated timeframe for EQB consideration of proposed rulemaking; comment period to commence in Fall 2009

    15. 15 Storage Tanks Operator Training Regulations Rulemaking (to be proposed to the EQB on December 16, 2008) contains comprehensive Underground Storage Tank (UST) Operator Training requirements as mandated by the federal Energy Policy Act of 2005 Affects approximately 3,500 tank owners and 8,700 UST facilities August 8, 2012 deadline to have all operators designated and trained

    16. 16 Three Distinct Classes of UST Operators Class A Operator – Primary responsibility for UST facility, includes managing resources and assigning personnel Class B Operator – Daily on-site responsibility for UST operations, monitoring equipment, maintenance and recordkeeping Class C Operator – Daily on-site responsibility for addressing emergencies, such as spills or releases. Routinely monitors retail sale and dispensing of product (regulated substance)

    17. 17 One person may be designated for more than one class of operator with no limit on how many operators a facility owner may designate Formal (DEP approved) training required for Class A and Class B Operators. Class C Operator trained (in-house) by owner, or Class A or Class B Operator Three Distinct Classes of UST Operators Cont’d

    18. 18 Draft General Permit WMGM037 for the Conversion of Waste to Fuel DEP published (PA Bulletin, 11/22/08) proposed General Permit WMGM037 (GP) for the processing and conversion of municipal waste to produce a fuel product.   Comments on the proposed general permit must be submitted to the Department by January 21, 2009

    19. 19 Fuel manufactured under this GP would not be a waste when marketed as a commodity in trade for use in an air contamination source approved through an Air Quality authorization issued by the Department under 25 Pa. Code Chapter 127 (relating to construction, modification, reactivation and operation of sources)

    20. 20 New Federal Definition of Solid Waste The federal Definition of Solid Waste rule was published on October 30, 2008 as a final rule in 40 Code of Federal Regulations (CFR) The intention of the new rule is to encourage recycling of hazardous secondary materials by reducing existing regulatory requirements for materials reclamation

    21. 21 The rule excludes materials from the federal hazardous waste system that are: Generated and legitimately reclaimed under control of the generator; Generated and transferred to another company for legitimate reclamation under specific conditions; or Determined by USEPA or an authorized state to be non-wastes on a case-by-case basis via a petition process New Federal Definition of Solid Waste Cont’d

    22. 22 Metals and solvent recycling activities are the most affected by the rule Pennsylvania hazardous waste regulations prospectively incorporate the federal 40 CFR hazardous waste regulations The revised definition will be incorporated in DEP’s hazardous waste regulations when they are final and effective at the federal level The final rule did incorporate a provision to determine which recycling activities are legitimate under the new exclusions and non-waste determinations

    23. 23 Air Quality Topics Diesel Vehicle Idling Update Clean Air Interstate Rule (CAIR) PM2.5 New Source Review (NSR) Permitting Rules Maximum Achievable Control Technology (MACT) Update Philadelphia Ozone Attainment Demonstration

    24. 24 Diesel Vehicle Idling Update Governor Rendell signed Act 124 (Senate Bill 295) on October 9, 2008. Act 124, which is effective on February 9, 2008: Applies to diesel-powered highway vehicles 10,001 pounds or more gross vehicle weight rating -- most diesel commercial trucks, buses and most school buses. Restricts idling to 5 minutes in a 60-minute period Provides for exemptions and longer idling periods if idling is necessary. Fines (summary offenses) are set between $150 and $300 plus court costs and civil penalties are capped at $1,000 per day for each violation of the Act. Preempts local governments (except Philadelphia and Allegheny Counties that have existing rules) from developing their own ordinances.

    25. 25 Diesel Vehicle Idling Update Cont’d The Environmental Quality Board adopted an idling restriction final rulemaking on September 16, 2008. Because the new law is similar to the final rulemaking, on November 15, 2008, the Department announced its withdrawal of the rulemaking from review by the Independent Regulatory Review Commission and the Standing Environmental Resources and Energy Committees.

    26. 26 Diesel Vehicle Idling Update Cont’d The Department will be conducting outreach on the idling law. Emphasis will be placed on education and communication with the regulated public. The Department received an EPA outreach grant to inform the regulated public and to train law enforcement. The Department will work with its partners on additional outreach, such as Turnpike tollbooth posters and variable message signs. The signage requirement will assist in compliance. The Department is working with PennDOT to authorize official permanent signs.

    27. 27 Federal Clean Air Interstate Rule The U. S. Environmental Protection Agency (EPA) found that 28 states and the District of Columbia contribute significantly to downwind PM2.5 and 8-hour ozone nonattainment areas. On May 12, 2005, EPA promulgated the final Clean Air Interstate Rule (CAIR) to mitigate the transport of sulfur dioxide (SO2) and nitrogen oxide (NOx) emissions recommending cost-effective controls on electric generating units (EGUs) of 25 megawatts or greater. Pennsylvania’s CAIR rulemaking was published as final in the Pennsylvania Bulletin on April 12, 2008.

    28. 28 Court Vacates Federal CAIR Rule On July 11, 2008, the Court of Appeals for the District of Columbia Circuit ruled that CAIR was “fundamentally flawed,” and vacated the regulation. The court stated that the NOx SIP Call continues in CAIR’s absence. Pennsylvania’s NOx Budget Trading Program is an approved part of the SIP.

    29. 29 Court Vacates Federal CAIR Rule September 24, 2008, DOJ filed a petition for rehearing on behalf of EPA; petitions were also filed by industry and environmental organizations. October 20, 2008, the D.C. Circuit issued an order directing petitioners to respond to the following within 15 days: (1) whether any party is seeking vacatur of the Clean Air Interstate Rule; and (2) whether the court should stay its mandate until Respondent promulgates a revised rule. On November 17, 2008, EPA/DOJ filed a response brief requesting that the Court grant the petition for rehearing in full, remand the CAIR to EPA for justification or modification and reverse its holding on Title IV allowances. The Court’s ruling is expected within the next few weeks.

    30. 30 PA CAIR Final-Omitted Rulemaking On September 16, 2008, the Environmental Quality Board approved a final-omitted rulemaking to repeal the PA CAIR provisions to ensure continuity in implementing the NOx SIP Call regulations. The NOx SIP Call regulations in Pennsylvania consist mainly of the NOx Budget Trading Program and emission limitations on Portland cement kilns and large stationary internal combustion engines. Other Pennsylvania regulations affected by the CAIR repeal are those that allow small sources of NOx in the five-county Philadelphia area to surrender CAIR allowances as a compliance option.

    31. 31 PA CAIR Repeal Final-Omitted Rulemaking November 19, 2008, the Environmental Quality Board (EQB) withdrew the final-omitted Clean Air Interstate Rule (CAIR) - Repeal rulemaking from review by the Independent Regulatory Review Commission and the standing Environmental Resources and Energy Committees. The Department is working with EPA’s Clean Air Markets Division to ensure that the 2009 NOx allowances are posted to the accounts if the Court issues the mandate vacating the CAIR.

    32. 32 Implications of CAIR Vacatur Significant emission reductions were anticipated from the electric generating units (EGUs). The attainment demonstration for the Philadelphia Area relied on CAIR reductions PM2.5 attainment demonstrations relied on CAIR reductions; completion of SIP revisions delayed. Completion of the Regional Haze SIP revision delayed; CAIR accepted as Best Achievable Retrofit Technology (BART) for the electric generating sector. DEP sent letters to the owners of BART-eligible EGUs requesting a BART analysis for SO2 and NOx. EPA expected to issue a “failure to submit” finding in December 2008.

    33. 33 EPA’s PM2.5 New Source Review Rule On May 16, 2008, EPA published a final rule entitled “Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5).” 73 FR 28321. The final PM2.5 NSR rule includes major source thresholds, significant emission rates, and offset ratios for PM2.5, interpollutant trading for offsets and the applicability of NSR to PM2.5 precursors.

    34. 34 EPA’s PM2.5 New Source Review Rule Cont’d Applicability to PM2.5 Precursors: SO2 in for NSR and PSD. NOx presumed in for NSR and PSD. VOC presumed out for NSR and PSD. NH3 presumed out for NSR; out for PSD. The state or EPA may rebut the presumption or demonstrate the need to include a precursor for specific nonattainment areas.

    35. 35 EPA’s PM2.5 New Source Review Rule Cont’d Transition Period for Condensable PM2.5 Emissions – Now until January 1, 2011. Condensables are not required to be included for applicability determinations. Permits are not required to establish limits on condensable emissions. Impact Analyses and Offsets do not need to consider condensables. Permitting Authorities May Consider Condensables Now.

    36. 36 EPA’s PM2.5 New Source Review Rule Cont’d Nonattainment NSR Offsets Applies for direct PM2.5 emissions and included precursors at a minimum 1:1 ratio. Interpollutant Offset Trading Preferred Trading Ratios (i.e. automatic approval) 200 Tons NOx = 1 Ton PM2.5 40 Tons SOx = 1 Ton PM2.5

    37. 37 EPA’s PM2.5 New Source Review Rule Cont’d Interpollutant Offset Trading – Cont’d Different ratios for specific nonattainment areas may be included in SIP if supported by adequate modeling/technical demonstrations. No Case-by-Case Demonstrations on an Individual Permit Basis will be Allowed. No Interpollutant Trading Allowed in “Netting”.

    38. 38 Pennsylvania PSD/NSR Transition Federal PSD Reform regulations in 40 CFR 52.21 are adopted and incorporated by reference in their entirety in the Pennsylvania Code. Title 25, Chapter 127, Subchapter D. The effective date for PA – July 15, 2008. PA is complying with the provisions of Appendix S for PM2.5 until a rulemaking amending the NSR provisions is adopted. A draft rulemaking to revise the NSR provisions will be available in Spring 2009. NSR SIP revisions are due to EPA by May 16, 2011.

    39. 39 Boiler MACT Update June 8, 2007 – The U.S. Court of Appeals for the D.C. Circuit issued a opinion vacating and remanding the National Emission Standard for Hazardous Air Pollutants (NESHAP) for Industrial, Commercial and Institutional Boilers and Process Heaters (40 CFR 63 Subpart DDDDD) a/k/a “Boiler MACT.” July 30, 2007 – The Court issued the mandate vacating the Boiler MACT rule in its entirety. The “vacatur” voids the September 13, 2007, compliance date and triggers the applicability of the “MACT Hammer” provision, Section 112(j) of the Clean Air Act (CAA).

    40. 40 Boiler MACT Update Cont’d Implementation of Section 112(j) has been delayed pending EPA’s release of guidance for Boiler MACT sources. The Department will provide notice of the applicable submission date. In August 2008, EPA mailed an Information Collection Request (ICR) to more than 2,500 boiler owners requiring their completion of an Internet survey on emissions, controls, and work practices for various boiler types in preparation for a revised Boiler MACT.  The surveys were to be completed and submitted to the agency within 45 days of the ICR letter date. 

    41. 41 Boiler MACT Update Cont’d In June 2008, the National Association of Clean Air Agencies (NACAA) published Reducing Hazardous Air Pollutants from Industrial Boilers: Model Permit Guidance. PA DEP will consider this guidance as one of the resources for the Section 112(j) MACT determinations. U.S. EPA is planning to issue a proposed new rule in August 2009 and final rule in August 2010. 

    42. 42 Philadelphia Area Eight-Hour Ozone Attainment Demonstration On August 29, 2007, the Department submitted a demonstration to the EPA that the Philadelphia ozone nonattainment area will achieve the ozone National Ambient Air Quality Standard by June 2010. In November 2007, EPA questioned the demonstration based largely on the ambient ozone levels in 2007. Pennsylvania, Delaware, Maryland, and New Jersey met during 2007 and 2008 with EPA to discuss the demonstrations and identify approximately 100 tons/day of additional ozone precursors emission reductions.

    43. 43 Philadelphia Ozone Attainment Demonstration On November 18, 2008, EPA Region III Administrator Donald Welsh sent a letter to Acting Secretary John Hanger requesting that the Commonwealth consider making a request to reclassify the Philadelphia nonattainment area to a higher classification by December 8, 2008. EPA stated that “attainment will not be achieved by the required moderate area deadline based on air quality measurements from the summers of 2007 and 2008.” If such a request in not received, EPA intends to propose disapproval of the existing attainment demonstration by no later than January 9, 2009. The Department believes that it is premature to request a reclassification of the area at this time and will reconsider EPA’s recommendation following the end of the 2009 ozone season.

    44. Thank you! On behalf of the Honorable John Hanger Acting Secretary PA Department of Environmental Protection

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