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Preliminary Rulemaking Proposal for Public Comment

Proposal: Amend 6 NYCRR Part 370 Series Hazardous Waste Management Regulations To Adopt: Certain Federal Changes from January 2002 through December 2008; Federal MACT Rules from 1999 to present; and State Initiated Changes


The Department is beginning the rulemaking process to update the Part 370 Series hazardous waste management regulations to incorporate most federal changes made from January 22, 2002 through December 19, 2008, not already adopted; changes related to Standards for Hazardous Air Pollutants for Hazardous Waste Combustors (MACT Rules) from September 30, 1999 to present; and State initiated changes, including clarifying language and correction of errors found in the regulations. Some State initiated changes will lessen the stringency in State regulation, but will still be more stringent than federal regulations.

Public comment on these proposed changes is requested by November 1, 2009. In particular, public input on the potential environmental or economic costs or benefits of any of these changes is requested.

Comments should be sent by COB November 1, 2009 to:

Antionette Norfleet
NYSDEC
Division of Solid & Hazardous Materials
625 Broadway, 9th Floor
Albany, NY 12233-7252

Comments can also be sent by e-mail to: hwregs@gw.dec.state.ny.us

Discussion:

Twenty-nine (29) federal rules are proposed to be included in this rulemaking. They are listed, with a brief description of each, in Attachment 1.

In addition, since the last major rulemaking to incorporate federal changes was completed in 2005, a number of issues have been discovered in the State regulations. These State initiated changes and correction of errors are proposed to be corrected in this rulemaking and are listed in Attachment 2. This list may grow as reviewers of these proposals bring other needs to light. At this point, the list includes 50 items.

The State is mandated by ECL 27-0900 to adopt regulations at least as stringent as USEPA's hazardous waste regulations. Also, as an authorized state for the management of the hazardous waste management program in lieu of the United States Environmental Protection Agency (USEPA), the State must adopt regulations at least as stringent as USEPA's hazardous waste regulations.

The State is more stringent than federal RCRA-C in that we regulate PCBs as a hazardous waste while federal regulations address PCBs under a separate regulatory framework. The more stringent changes in this rulemaking will affect the regulation of PCBs in the State to the same extent that they affect all other regulated hazardous wastes.

A number of federal rules have major components which decrease regulatory stringency. The State is not mandated to adopt these changes and a number of rules will not be adopted in their entirety. In general, the federal changes proposed to be adopted which decrease regulatory stringency work to improve the management of hazardous waste while still being protective of human health and the environment.

Following are some highlights from this list and areas where we are proposing to not adopt all of the federal changes verbatim.

Included in Attachment 1 (Item 2) is the adoption of a federal change from the May 26, 1998 and October 20, 1999 Federal Registers. In the May 26, 1998 Federal Register preamble, USEPA delisted five wastes streams (K064, K065, K066, K090, and K091) stating that many of these wastes were either no longer generated, or managed in a fashion not warranting listing. USEPA stated they would rely on the RCRA hazardous waste characteristics to identify those portions of these smelting wastes requiring management as hazardous wastes. The State had concerns as the State hazardous waste listing was used not only for management of active waste generation, but also for defining inactive hazardous waste sites in the State. Since that time, State law was changed and now provides a mechanism to identify hazardous waste sites based on the presence of hazardous constituents in addition to hazardous waste, and therefore, it is no longer necessary to maintain these wastes on the listing of hazardous wastes for remedial purposes. Therefore, the deletion of the five waste streams (K064, K065, K066, K090, and K091) is now proposed to be adopted into State regulation.

The 12 MACT rules, changes related to Standards for Hazardous Air Pollutants for Hazardous Waste Combustors, will result in formally shifting the responsibility for permitting of these facilities to the Division of Air. The Division of Solid & Hazardous Materials will continue to participate in the technical review, maintaining responsibility for review of waste analysis plans; however, the hazardous waste Part 373 permit will not cover emission control equipment and the emission limits covered by the MACT rule unless a unit specific human health or environmental risk assessment determines that limits lower than the MACT standards are required. The MACT rules are noted in Attachment 1 with an asterisk.

The March 13, 2002 Federal Register (Item 9) disallows the use of the TCLP to determine whether manufactured gas plant waste is hazardous. The Division of Environmental Remediation presently follows more stringent criteria laid out in DER TAGM-4016, issued January 11, 2002. The proposed regulation will not incorporate the federal change, but rather continue to utilize the DER TAGM to address this issue.

The rule to regulate mercury containing equipment as a universal waste (Item 20) is already implemented in the State, using enforcement discretion pursuant to Commissioner Policy.

The federal RCRA burden reduction incentive rule (Item 24) will not be adopted in its entirety as we maintain a need for greater stringency in certain areas.

USEPA's September 8, 2005 rule regarding standardized permit requirements is not going to be adopted into State regulation. These requirements are in conflict with the existing State standardized permit requirements in the State Uniform Procedures Act.

The federal revisions to the definition of solid waste, published in the October 30, 2008 Federal Register, is not proposed for adoption at this time. The federal rule has been legally challenged and federal changes to this rule may occur.

The December 19, 2008 federal expansion of the RCRA comparable fuel exclusion will not be adopted as USEPA plans to withdraw this rule.

As listed in Attachment 2, the State-initiated changes will clarify language, in some cases simplify regulation, or address errors found in the regulations.

Item 27 proposes language to specifically address federal Class 2 permit modifications in relation to the State major/minor categories for permit modifications. The federal permit modifications are divided into three classes, however State permit modifications are divided into two classes. This has resulted in confusion over requirements for federal Class 2 modifications. Procedurally, the difference between a federal Class 2 modification and a minor modification is that federal Class 2 modifications require additional public outreach. A Class 2 modification will be considered a major modification unless the State determines it can be treated as a minor modification. While most Class 2 modifications are major modifications, there are some that would be considered minor in the State. To allow this option as a minor modification and continue to be at least as stringent as federal requirements, language is proposed to state that, if a federal Class 2 modification is deemed a minor modification for the State permit, then all requirements listed in the federal regulations for Class 2 modifications must be met.

Items 2 and 21 address tank systems, clarifying that loading and unloading areas are part of a tank system. Specific requirements for such areas which are spelled out in the Chemical Bulk Storage regulations will now specifically apply to hazardous waste tank system loading and unloading areas as well, including secondary containment.

In the past, the Department has discussed amending the regulation of PCB hazardous wastes to bring the federal TSCA regulations and State regulations into closer alignment. It was decided not to include this topic in this rulemaking as USEPA is now working to transfer the regulation of PCB TSCA wastes to the federal RCRA program. Once this process is complete, the State regulations for PCB hazardous wastes will need to be reviewed for consistency with the federal program and potential revisions to these regulations will be considered at that time.

Please review Attachments 1 and 2 in the right hand column to evaluate the proposed areas of change in their entirety.