MAX Environmental Technologies, Inc. – Proposed Delisting Rulemaking for Yukon and Bulger facilities
Delisting (or removing) a waste from the list of hazardous wastes is a multi-year, multi-part process that requires thorough review at each step to ensure appropriate management of a waste stream and continued protection of public health and the environment. A delisting does not exclude a hazardous waste from hazardous waste regulation. More accurately, a delisting excludes a waste that is not hazardous from being managed as a hazardous waste.
As a first step in the delisting process, a regulated entity submits a delisting petition to exclude waste from a particular facility from the list of hazardous wastes as defined by federal and state statutes. The Pennsylvania Department of Environmental Protection (DEP) then conducts an independent analysis of the waste requested to be delisted to verify that it does not meet the criteria for which the waste was originally considered hazardous and does not exhibit any characteristics of hazardous waste (i.e. ignitability, corrosivity, reactivity and toxicity). Following this review, DEP’s
Environmental Quality Board (EQB) decides whether to accept or reject the petition for rulemaking.
If the petition is accepted by the EQB, the at least two-year long regulatory process to formally delist the waste begins. This process includes: engagement with DEP advisory committees, a public comment period, thorough review of the regulatory language and potential impacts by DEP and other state government entities, two EQB meetings for members to vote on whether to proceed with the proposed and final rulemakings, and presentation to the
Independent Regulatory Review Commission (IRRC) for final approval or disapproval to delist the requested waste.
Only after the full regulatory process has been completed and approved can the waste be managed as non-hazardous under the conditions of the delisting and instead be managed under the requirements of another category of Pennsylvania’s solid waste management regulations.
MAX Environmental Technologies, Inc. (MAX) Yukon facility is a waste facility located in South Huntingdon Township, Westmoreland County. MAX Yukon operates as a RCRA Subtitle C permitted treatment facility (PAD004835146) and as an on-site commercial residual waste landfill (Solid Waste Permit No. 301071). The residual waste landfill at MAX Yukon is used for disposal of a wide range of materials from the energy, construction, and manufacturing industries, as well as metal-impacted materials (e.g., soil) from site remediation projects.
MAX Environmental Technologies, Inc. (MAX) Bulger facility is a waste facility located in Smith Township, Washington County. MAX Bulger (Solid Waste Disposal/Processing Facility Permit - 301359). The facility is currently used for placement of a wide range of materials from the energy, construction, and manufacturing industries, as well as metal-impacted materials (e.g., soil, dredging wastes) from site remediation projects.
Step 1: Delisting Petitions (pre-rulemaking)
What is a delisting petition?
A delisting petition is a request to exclude waste from a particular facility from the list of hazardous wastes under the federal Resource Conservation and Recovery Act of 1976 (RCRA) (42 U.S.C.A. §§ 6901—6986) and Pennsylvania's
Solid Waste Management Act. For a hazardous waste to be delisted, the petitioner must demonstrate that:
- Waste generated at a particular facility does not meet any of the criteria for which the waste was originally listed as a hazardous waste in
40 CFR § 261.11 (federal criteria for listing hazardous waste).
- The waste does not exhibit any of the hazardous waste characteristics (i.e. ignitability, corrosivity, reactivity and toxicity).
The petitioner must also provide sufficient information for the DEP to decide whether factors other than those for which the waste was originally listed as hazardous warrant retaining it as a hazardous waste.
Only after the DEP’s analysis has shown that the waste does not meet the criteria for being listed as a hazardous waste, nor does it exhibit any of hazardous waste characteristics, may amendments be pursued to exclude the waste from 40 CFR §§
261.32 (relating to hazardous wastes from non-specific sources and hazardous wastes from specific sources, respectively).
More information on this process can be found on the U.S. Environmental Protection Agency’s (EPA) website.
MAX Delisting Petitions
In May 2019, MAX Environmental Technologies, Inc. (MAX) submitted two petitions to the EQB requesting that the Board promulgate a rule that the sludge generated from the leachate treatment system at the Yukon and Bulger facilities be delisted as an F039 hazardous waste.
For both delisting petitions, MAX requested a specific conditional delisting of the wastewater treatment sludge filter cake at MAX Bulger and MAX Yukon. A conditional delisting means MAX would be required to test samples of the sludge filter cake on a volume basis and verify that the samples do not exhibit any hazardous waste characteristics prior to waste disposal at the Yukon or Bulger facility or another residual waste landfill. MAX would continue to manage the sludge material as a hazardous waste until waste samples are tested. Only after sample testing verifies that the sludge filter cake is not hazardous could the sludge be managed as non-hazardous waste.
Upon receipt of the delisting petitions, the DEP reviewed each in accordance with the EQB’s Petition Policy. The EQB Policy for Processing Petitions can be found in the
Pennsylvania Code, Title 25 Chapter 23. In accordance with the petition process, DEP conducted an independent review of the delisting petitions and found that the sludge filter cake from both MAX Bulger and MAX Yukon did not meet the criteria for being listed as an F039 hazardous waste nor did it exhibit any of the hazardous waste characteristics. For more details on this review, please see the following reports:
On June 16, 2020, the EQB unanimously approved the delisting petitions for rulemaking. Regulation development from this point forward typically takes two years.
Step 2: Proposed Rulemaking
What does this proposed rulemaking do?
This proposed rulemaking would amend
Chapter 261a Appendix IXa, Table 1a (relating to wastes excluded from nonspecific sources) to remove (delist) the wastewater treatment sludge filter cake at the MAX Bulger and Yukon facilities from the list of hazardous wastes as long as specific conditions are met. Under the proposed rulemaking, MAX would be required to test samples of the sludge filter cake on a volume basis and verify that the samples do not exhibit any hazardous waste characteristics prior to waste disposal at the Yukon or Bulger facility or another residual waste landfill. Management of the sludge material prior to sample verification would continue to be as a hazardous waste, and only after sample verification could the sludge be managed as non-hazardous waste.
What’s next for the proposed rulemaking?
DEP’s Policy on the Development and Review of Regulations contains a helpful graphic illustrating the flow of the regulatory review process on page 13 (Appendix A).
Advisory Committee Review
On September 10, 2020, the draft Annex A (actual proposed regulatory language) was presented to DEP’s
Solid Waste Advisory Committee (SWAC) for discussion in advance of the whole rulemaking package going to the EQB for consideration. The SWAC meeting also offered time for public comment. At this meeting, the SWAC concurred with the DEP’s recommendation to proceed with the proposed rulemaking.
Environmental Quality Board Consideration
In keeping with the regulatory review process, the draft Annex A and associated rulemaking documents will be presented to the EQB for consideration at its
September 21, 2021 public meeting.
If the proposed rule is adopted by the EQB, it would be published as a proposed rulemaking in the
Pennsylvania Bulletin and open a public comment period to allow members of the public to provide feedback on the proposed regulatory language.
Announcements regarding DEP opportunities for public participation, including public comment period information, upcoming public meetings and/or hearings, will be posted here.
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