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 were adopted by the EQB at its
September 21, 2021 public meeting.
Once a proposed rule is adopted by the EQB, it is published as a proposed rulemaking in the
Pennsylvania Bulletin and opens 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.
Public Comment Period
The proposed rulemaking was published in the Pennsylvania Bulletin on January 8, 2022. The public comment period will be open from January 8, 2022, through February 22, 2022.
How to Submit Comments
There are four convenient methods for submitting comments to the EQB on this rulemaking, formally titled “Proposed Rulemaking: Exclusion for Identification and Listing Hazardous Waste at MAX Environmental Technologies, Inc. Bulger & Yukon Facilities (#7-566)”:
Online Comments (preferred)
Comments may be submitted to the EQB by accessing eComment.
Note regarding eComment: If an acknowledgement of comments submitted online is not received by the sender within two business days, the comments should be re-sent to the EQB to ensure receipt.
Comments may be submitted to the EQB by sending comments to RegComments@pa.gov. A subject heading of the proposed rulemaking and a name and address must be included with each transmission.
Note regarding emailed comments: If an acknowledgement of comments submitted via email is not received by the sender within two business days, the comments should be re-sent to the EQB to ensure receipt.
Written comments can also be mailed to Environmental Quality Board, P.O. Box 8477, Harrisburg, PA 17105-8477.
All comments must be received by the EQB on or before the close of the public comment period.
The EQB will hold three virtual public hearings to accept public comment on this proposed rulemaking on the following dates and times:
January 19, 2022 at 6 pm
January 20, 2022 at 6 pm
January 26, 2022 at 6 pm
Sign up to Provide Testimony at a Public Hearing
To register to present testimony at a hearing, contact Jennifer Swan for the Department and the EQB, (717) 783-8727 or RA-EPEQB@pa.gov, at least one full business day before the hearing.
Addresses and phone numbers for all persons wishing to provide virtual testimony are required, as well as the name of the organization for which they will be testifying (if applicable).
- Witnesses may provide testimony by means of telephone or internet connection.
- Verbal testimony is limited to 5 minutes for each witness.
- Organizations are limited to designating one witness to present testimony on their behalf at the hearing.
- Video demonstrations and screen sharing by witnesses will not be permitted.
Witnesses are requested to submit written copy of their verbal testimony by e-mail to RegComments@pa.gov after providing testimony at the hearing.
Persons in need of accommodations as provided for in the Americans with Disabilities Act of 1990 should contact the Board at (717) 783-8727 or through the Pennsylvania Hamilton Relay Service at (800) 654-5984 (TDD) or (800) 654-5988 (voice users) to discuss how the Board may accommodate their needs.
Language interpretation services are available upon request. Persons in need of language interpretation services must contact Jennifer Swan by 5 p.m. on January 14, 2022.
Listen to a Public Hearing without Providing Testimony
Members of the public wishing to listen to a public hearing without providing testimony can do so via internet access by registering through Webex at the following links or via telephone by calling (415) 655-0003 and entering the access code next to the link:
January 19, 2022, at 6 p.m., Access Code 2631 741 6240
January 20, 2022, at 6 p.m., Access Code 2634 553 9204
January 26, 2022, at 6 p.m., Access Code 2633 385 9549
Please note, only those who have registered with Jennifer Swan, as described above, will provide testimony. All others will remain muted for the duration of the hearing.
For additional information regarding the Department’s hosting of virtual public hearings, please click here.
Frequently Asked Questions (FAQ)