The Pennsylvania Department of Environmental Protection (DEP) has recently delivered to the Environmental Quality Board (EQB) an extensive package of revisions to the Residual Waste Regulations found at 25 Pa. Code § 287, et seq. DEP expects that these proposed regulations will be reviewed by the EQB at its Tuesday, June 16, meeting and thereafter placed in the Pennsylvania Bulletin as proposed regulations with a comment period to follow. The package is on the DEP website at http://www.dep.state.pa.us/dep/subject/advcoun/swac.htm under Annex A Title 25 Environmental Resources Residual Waste Regulations.

The proposed revisions require your careful review. There are many changes in the package which are not discussed here but will be of specific interest depending on the nature of your operations.

The key definitions which determine whether a material is a "waste," is a "coproduct" or can be "dewasted" have been significantly altered and every prior determination of the regulatory status of a material must be carefully revisited.

The determinative definitions are:

waste – the current definition is dropped and is replaced as follows:

a waste is a discarded material which is

• recycled or

• abandoned

but certain "wastes" are not wastes "when they can be
shown to be recycled by being"

However, certain materials are (or remain as) "wastes" even if the recycling involves (I)-(III) above IF,

Within the "waste" definition itself, there are enforcement action defenses and burden of proof requirements which the person asserting the material is not a waste must satisfy.

Finally, a "waste" may be "dewasted" following the procedures in 25 Pa. Code § 287.7.

recycled – a material is "recycled" if it is reused or reclaimed.

used or reused – a material is "used or reused" if it is either:

(i) an ingredient in an industrial process to make a product, . . . or

(ii) employed in a particular function as an effective substituted for a commercial product.

HOWEVER, a material will not satisfy condition (i) if distinct components of the material are recovered as separate end products (as when metals are recovered from metal-containing secondary metals).

reclaimed – a material is "reclaimed" if it is processed to recover a useable product, or if it is regenerated.

coproduct – the core definition remains the same but there are SIGNIFICANT LIMITS ON ITS USE and an addition making it possible to meet the coproduct definition where no chemical or physical comparison can be made.

Many coproduct determinations have been made under the current regulations which would not qualify under the proposed revisions to "coproduct." DEP recognizes this but believes that the problem raised by the limited use of "coproduct" will be greatly, if not totally, alleviated by the complete revamping of the definition of "waste" so that certain materials "are not wastes when they can be shown to be recycled by" one of three ways set forth in the definition. Anyone having a coproduct determination which does not fit the proposed delimiting criteria should be studying their situation very carefully.

Among other definitions ADDED are those for:

Two new sections, 25 Pa. Code § 287.8 "Coproduct Determinations" and § 287.9, "Industry-wide Coproduct Determinations" ARE ADDED.

The former provides that "In addition to meeting . . . the ’coproduct’ definition, a person performing a coproduct determination shall evaluate chemical composition and threat of harm to the environment and public health in accordance with this section." The proposed coproduct shall not present a "greater threat of harm" than the use of an intentionally manufactured product or produced raw material. "Greater threat of harm" is defined in several contexts. Additional required evaluations are then identified. These provisions require careful analysis to determine how they may apply to any coproduct determination you may propose.

Once a company has made its coproduct determination it must provide documentation supporting the determination to persons:

Section 287.9 lets the DEP make an industry-wide coproduct determination if specified criteria are met and

Further changes are proposed in Chapter 287 and Chapters 288 (Residual Waste Landfills), 289 (Residual Waste Disposal Impoundments), 291 (Land Application of Residual Waste), 293 (Transfer Facilities for Residual Waste), 295 (Composting Facilities for Residual Waste), 297 (Incinerators and Other Processing Facilities) and 299 (Storage and Transportation of Residual Waste).

Among the other changes, the following are of particular interest.

The "small quantity" generation record keeping requirement now applies to any person who generates residual waste. § 287.55 Apparently DEP did not feel any of the current regulations relating to a biennual report clearly specified the record keeping duties of larger generators.

General Requirements for permits and permit applications, 25 Pa. Code §§ 287.101-154.

The permit requirement exemption provision now provides an exemption for "processing that results in the beneficial use of scrap metal." § 287.101(b)(6)

The "statewide health standard" as well as the "background standard" can now be used in determining whether there is groundwater degradation. § 287.115(c)(1)(ii)(A)(B)

General Application Requirements, 25 Pa. Code §§ 287.121 – 128.

Section 287.127 which requires an environmental assessment in permit applications for a "major modification" (defined at § 287.154) is extensively rewritten.

Of particular note is § 287.127(b): "Harms" – The assessment shall describe the known and potential environmental harms of the proposed project, provide a mitigation plan for the harms the applicant will mitigate and identify the harms it will not mitigate. DEP will determine if there are additional harms not identified.

Applicants for noncaptive landfills, disposal impoundments and incinerators must make a benefit/harms demonstration and applicants for "other facilities" must do so if harm remains despite their mitigation plan. What constitutes a "benefit" in both is defined as:

These revisions to the environmental assessment requirements demand careful review by permit applicants.