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PADEP Expected to Raise the Bar for Residual Waste Coproduct Determinations
In the coming year, the Pennsylvania Department of Environmental Protection (PADEP or the Department) plans to tighten the requirements for materials that would otherwise be regulated as residual waste to qualify as unregulated “coproducts.” Under the residual waste regulations in Pennsylvania Code Title 25, Chapter 287, a coproduct is a secondary material generated by a manufacturing or production process, or a spent material, that is (1) consistently equivalent physically and chemically to an intentionally manufactured product or produced raw material; (2) transferred as a commodity, or used by the generator, as a substitute for the product or raw material either for application to the land (or to produce products applied to the land) or as a fuel; and (3) no more harmful to human health and the environment for such use than the use of the product or raw material. The coproduct provisions include several specific conditions that the proponent must evaluate to demonstrate that its proposed use of a secondary material satisfies these three criteria. Materials that qualify as coproducts are not regulated as a waste when used for the proposed application.
A key difference between the coproduct concept and seeking a permit from PADEP for beneficial use of a residual waste is that qualifying a material as a coproduct is a self-implementing process. In other words, it is up to the proponent to satisfy itself that its proposed use of a material satisfies the coproduct criteria, unlike a permit where a party submits an application to PADEP for review and approval. This self-implementing process carries some risk of enforcement action should PADEP become aware of a coproduct use and question whether the proponent adequately demonstrated that the use satisfies the criteria.
PADEP’s interest in tightening the coproduct requirements has been motivated by several instances over the past few years where produced water (known as “brine”) from oil and gas wells was spread on roads as a purported dust suppressant. In investigating this activity, PADEP determined that none of the oil and gas operators had performed valid coproduct determinations to authorize this land application of brine. The Department has expressed concerns that the effectiveness of brine as a dust suppressant is limited, and that runoff of contaminants in brine following precipitation events can threaten waterbodies and drinking water supplies.
As a result, in its December 2024 Regulatory Update PADEP indicated its intent to propose amendments to the coproduct regulations to ensure that coproduct determinations adequately demonstrate that the material is effective for the proposed coproduct use and is produced from a consistent process. PADEP is currently developing the new regulatory language, which will likely be reviewed by the Department’s Solid Waste Advisory Committee prior to publication in the Pennsylvania Bulletin for public notice and comment.
For more information on this topic, please contact MGKF’s Rodd Bender at 484-430-5700.
