ENERGY AND ENVIRONMENT CABINET

Department for Environmental Protection

Division of Waste Management

(Amendment)

 

††††† 401 KAR 39:080. Hazardous waste handlers[Recycling and universal waste fees].

 

††††† RELATES TO: KRS 224.10, 224.46, 224.99, 40 C.F.R. Parts 260 through 267, 270, 273, 279

††††† STATUTORY AUTHORITY: KRS 224.10-100, 224.46-510, 224.50-545[, 224.46-550]

††††† NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.46-510 requires the Energy and Environment Cabinet to promulgate administrative regulations establishing standards applicable to transporters of hazardous waste regarding recordkeeping and compliance with the manifest system. KRS 224.46-510(1) requires the cabinet to promulgate administrative regulations to establish requirements relating to generators of hazardous waste and establish standards for generators of hazardous waste by amount of waste generated. KRS 224.46-510(3) requires that the cabinet establish classes or categories of hazardous waste reflecting the relative degree of hazard. KRS 224.50-545 requires that used automotive and industrial oil shall be recycled or disposed of properly[KRS 224.10-100(20) states that the cabinet may provide by administrative regulation for a reasonable schedule of fees for the cost of processing applications for permits, exemptions, and partial exemptions. KRS 224.46-550 requires the cabinet to promulgate administrative regulations requiring the payment of reasonable fees for hazardous waste registration certificates and permits. The purpose of this chapter is to establish a fee schedule for hazardous waste management]. This administrative regulation establishes the standards for hazardous waste handlers[fee schedule for permits for recyclers of hazardous waste and petitions to include additional wastes under 401 KAR Chapter 43].

 

††††† Section 1. Generators of Hazardous Waste.[Applicability.] (1) Except as established in subsections (2) through (11) of this section and Section 5 of this administrative regulation, the requirements for standards applicable to generators of hazardous waste shall be as established in 40 C.F.R. Part 262, except 40 C.F.R. 262.10(k)[applies to all persons considered to be recyclers in accordance with the criteria contained in Section 1 of 401 KAR 35:010 and 401 KAR Chapter 36].

††††† (2) Generators shall register with the cabinet by completing and submitting:

††††† (a) EPA form 8700-12 as referenced in 40 C.F.R. Parts 260 through 267, 270, 273, and 279; and

††††† (b) Registration of Hazardous Waste Activity Addendum, DWM 7037A.

††††† (3) The registration established in subsection (2) of this section shall be submitted annually to the cabinet at least forty-five (45) days prior to the expiration date shown on the certificate of registration.

††††† (4)(a) A generator who has not received an EPA identification number may obtain one by registering with the cabinet as established in subsection (2) of this section.

††††† (b) Upon receiving the request and reviewing the information, the cabinet shall assign an EPA identification number to the generator.

††††† (5)(a) Hazardous waste generation and on-site management of hazardous waste shall be consistent with the registration submitted pursuant to subsection (2) of this section.

††††† (b) If any information submitted in accordance with subsection (2) of this section changes, the generator shall modify and resubmit the form that includes the changes to the cabinet no later than thirty (30) days following the change.

††††† (6) A hazardous waste generator that no longer generates hazardous waste on site, closes its facility, or goes out of business, shall complete and submit to the cabinet the Request to be Removed from the Hazardous Waste Handler List, DWM 7086, within ninety (90) days after the last date of hazardous waste generation.

††††† (7)(a) A hazardous waste generator may only treat on-site in tanks, containers, containment buildings, and on drip pads, if:

††††† 1. A generator complies with the hazardous waste accumulation provisions of this section;

††††† 2. The generator notifies the cabinet of the intent to treat hazardous waste as required by subsection (2) of this section; and

††††† 3. The cabinet issues written approval to the generator.

††††† (b)1. The cabinet shall not approve any treatment process that is not demonstrated to provide adequate protection to human health, safety, or the environment in a manner consistent with the purpose of the waste management administrative regulations and KRS Chapter 224.

††††† 2. If the cabinet determines that the approved treatment is not protective of human health, safety, or the environment, the cabinet shall issue a written revocation of the approval and all treatment activities shall cease.

††††† (8)(a) Generators, except for very small quantity generators, shall prepare a Hazardous Waste Annual Report for the cabinet annually by completing and submitting:

††††† 1. EPA form 8700-13 A/B as referenced in 40 C.F.R. 262.41(a), 264.75, 265.75, and 267.75; and

††††† 2. Hazardous Waste Annual Report Addendum, DWM 7072A.

††††† (b) Each generator, except for very small quantity generators, shall submit a copy of the Hazardous Waste Annual Report established in paragraph (a) of this subsection as established in KRS 224.46-510(1)(h).

††††† (9) A generator, except for very small quantity generators, shall not offer hazardous waste to a transporter or to a treatment, storage, or disposal facility that has not received an EPA identification number.

††††† (10)(a) A large quantity generator or small quantity generator shall not treat, store, dispose of, transport, or offer for transportation, hazardous waste until the generator has:

††††† 1. Registered with the cabinet as established in subsection (2) of this section; and

††††† 2. Received an EPA identification number.

††††† (b) A very small quantity generator shall not treat hazardous waste until the generator has registered with the cabinet as established in subsection (2) of this section.

††††† (11) The requirement for the container marking wording to state "Federal Law Prohibits" referenced in 40 C.F.R. 262.32(b), shall be replaced with "Federal and State Law Prohibit"[This administrative regulation applies to all persons who petition the cabinet to include additional wastes as a universal waste under 401 KAR Chapter 43].

 

††††† Section 2. Transporters of Hazardous Waste.[Schedule of Fees for Recycling.] (1) Except as established in subsections (2) and (3) of this section and Section 5 of this administrative regulation, the requirements for standards applicable to transporters of hazardous waste shall be as established in 40 C.F.R. Part 263[An annual fee shall be required in order to register as a recycler of hazardous wastes. The fee to register as a hazardous waste recycler is $300. Generators who generate less than 100 kg of hazardous waste in a calendar month (that is, conditionally exempt small quantity generators) shall be exempt from the registration fee for recycling activities].

††††† (2)(a) A transporter shall not transport hazardous wastes or used oil within the Commonwealth of Kentucky without having received an EPA identification number from the cabinet, any other RCRA authorized state, or from the Federal Environmental Protection Agency.

††††† (b) To obtain an EPA identification number from the cabinet, a transporter shall:

††††† 1. For a transporter who is also a hazardous waste generator or used oil transporter, register with the cabinet as established in Section 1(2) and (3) of this administrative regulation; or

††††† 2. For a transporter that is not also a hazardous waste generator or used oil transporter, complete and submit the Registration of Hazardous Waste Transportation Activity, DWM 7053.

††††† (3) In addition to 40 C.F.R. 263.30(c), an air, rail, highway, or water transporter that has any knowledge of a release or threatened release of a hazardous substance or pollutant or contaminant shall notify and report to the cabinet as established in Section 5(1) of this administrative regulation[No fee is charged if a registrant modifies his registration by making a name change. If a registrant submits a registration to modify any other information, a fee of fifty (50) dollars shall apply].

 

††††† Section 3. Universal Waste. (1) Except as established in subsections (2) through (4) of this section and Section 5 of this administrative regulation, the requirements for standards for universal waste management shall be as established in 40 Part C.F.R. 273.

††††† (2)(a) Prior to conducting on-site treatment of their own accumulated universal waste, a large or small quantity handler shall be subject to the requirements of Section 1 of this administrative regulation, including the requirement for on-site treatment by generators.

††††† (b) Prior to conducting on-site treatment of accumulated universal waste received from off-site, a large or small quantity handler shall be subject to the requirements of 401 KAR 39:060 and 401 KAR 39:090.

††††† (3) Breaking, disassembling, crushing, or otherwise damaging, intentionally or unintentionally, universal waste lamps shall render them a hazardous waste.

††††† (4) A large quantity handler of universal waste shall register and report as established in Section 1 of this administrative regulation[Fees for Universal Waste Petitions. Any person seeking to add a hazardous waste or a category of hazardous waste to 401 KAR Chapter 43 shall submit a $2,500 fee with the petition required in 401 KAR 43:070].

 

††††† Section 4. Used Oil. (1) Except as established in subsections (2) through (9) of this section and Section 5 of this administrative regulation, the requirements for standards for the management of used oil shall be as established in 40 C.F.R. Part 279, except 40 C.F.R. 279.82.

††††† (2) In addition to 40 C.F.R. 279.22 and 40 C.F.R. 279.52, KRS 224.1-400(11) and (12) and KRS 224.1-405 shall apply.

††††† (3) An owner or operator of each used oil collection center shall:

††††† (a) Register initially with the cabinet as established in Section 1(2) of this administrative regulation; and

††††† (b) Complete and submit a Hazardous Waste Annual Report annually as established in Section 1(8) of this administrative regulation.

††††† (4) A used oil processor, recycler, re-refiner, burner, or marketer that has not received an EPA identification number shall register with the cabinet as established in Section 1(2) of this administrative regulation.

††††† (5) In addition to 40 C.F.R. 279.54, upon detection of a release of used oil to the environment, not subject to the requirements established in 401 KAR 42:060, an owner or operator shall notify and report to the cabinet pursuant to Section 5(1) of this administrative regulation.

††††† (6) In addition to 40 C.F.R. 279.43, 601 KAR 1:025 and Section 5(1) of this administrative regulation shall apply.

††††† (7) Used oil shall not be used as a dust suppressant within the Commonwealth of Kentucky.

††††† (8) In addition to 40 C.F.R. Part 280, 401 KAR Chapter 42 shall apply.

††††† (9) The citations to Sections 307(b) and 402 of the Clean Water Act referenced in 40 C.F.R. Part 279 shall also include 401 KAR Chapter 5[Submittal of Fees. The required fees shall be submitted to the cabinet with the permit application. All checks shall be made payable to the Kentucky State Treasurer].

 

††††† Section 5. Exceptions and Additions. (1) In the event of a release or threatened release of a hazardous substance, pollutant or contaminant, or petroleum to the environment in a quantity that may present an imminent or substantial danger to human health or the environment as established in KRS 224.1-400, the facility authorized representative shall immediately notify the cabinetís twenty-four (24) hour emergency response line and provide a written report of the incident or accident within seven (7) days of the release, pursuant to KRS 224.1-400.

††††† (2) In addition to Section 3008 of RCRA, KRS 224.10-420 through 224.10-470, 224.46-530, and 224.99-010 shall apply.

††††† (3) In addition to Subtitle C of RCRA, KRS 224.46 shall apply.

††††† (4)(a) As referenced in 401 KAR Chapter 39, the requirements in Section 3010 of RCRA shall be replaced with the requirement that any person generating or transporting a substance, or owning or operating a facility for treatment, storage, disposal, or recycling of the substance to register with the cabinet after promulgation of an administrative regulation identifying a substance by its characteristics or listing as hazardous waste subject to 401 KAR Chapter 39.

††††† (b) The registration shall be filed as established in Section 1(2) of this administrative regulation and within ninety (90) days after promulgation or revision of the administrative regulation unless another registration date is established in the administrative regulations.

††††† (5) In addition to 40 C.F.R. Part 257 and 40 C.F.R. Part 258, 401 KAR Chapters 45, 47, and 48 shall apply.

 

††††† Section 6. Incorporated by Reference. (1) The following material is incorporated by reference:

††††† (a) "Hazardous Waste Annual Report Addendum", DWM 7072A, June 2017;

††††† (b) "Registration of Hazardous Waste Activity Addendum", DWM 7037A, June 2017;

††††† (c) "Registration of Hazardous Waste Transportation Activity", DWM 7053, June 2017; and

††††† (d) "Request to be Removed from the Hazardous Waste Handler List", DWM 7086, June 2017.

††††† (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Waste Management, 300 Sower Boulevard, 2nd Floor, Frankfort, Kentucky 40601, Monday through Friday, 8:00 a.m. until 4:30 p.m.

††††† (3) This material may also be obtained on the divisionís Web site at waste.ky.gov.

 

CHARLES G. SNAVELY, Secretary

††††† APPROVED BY AGENCY: July 12, 2017

††††† FILED WITH LRC: July 13, 2017 at 4 p.m.

††††† PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall be held on August 24, 2017, at 6:00 p.m., at 300 Sower Blvd., 1st Floor, Training Room C. Individuals interested in being heard at this hearing shall notify this agency in writing by five workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing was received by that date, the hearing may be cancelled. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to be heard at the public hearing, you may submit written comments on the proposed administrative regulation. Written comments shall be accepted through August 31, 2017. Send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person.

††††† CONTACT PERSON: Louanna Aldridge, Environmental Control Supervisor, 300 Sower Blvd., 2nd Floor, phone (502)782-6538, fax (502) 564-4245, email Louanna.Aldridge@ky.gov.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Person: Louanna Aldridge

††††† (1) Provide a brief summary of:

††††† (a) What this administrative regulation does: This administrative regulation establishes the standards for hazardous waste handlers.

††††† (b) The necessity of this administrative regulation: This administrative regulation is necessary to establish the standards for hazardous waste handlers. As a part of the authorization process for delegated authority from the Environmental Protection Agency, this administrative regulation will adopt required federal regulation updates for management of hazardous waste.

††††† (c) How this administrative regulation conforms to the content of the authorizing statutes: KRS 224.10-100 and the waste management provisions of KRS Chapter 224 require the Environmental and Public Protection Cabinet to promulgate administrative regulations for the generation, treatment, storage, transportation, recycling, and disposal of hazardous wastes. KRS 224.46-510 requires the Energy and Environment Cabinet to promulgate administrative regulations establishing standards applicable to transporters of hazardous waste regarding recordkeeping and compliance with the manifest system. KRS 224.46-510(1) requires the cabinet to promulgate administrative regulations to establish requirements relating to generators of hazardous waste and establish standards for generators of hazardous waste by amount of waste generated. KRS 224.46-510(3) requires that the cabinet establish classes or categories of hazardous waste reflecting the relative degree of hazard. KRS 224.50-545 provides that used automotive and industrial oil shall be recycled or disposed of properly.

††††† (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation establishes standards for hazardous waste handlers, as required by KRS 224.10-100, 224.46-510, and 224.50-545, for the generation, treatment, storage, recycling, transportation, and disposal of hazardous waste.

††††† (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

††††† (a) How the amendment will change this existing administrative regulation: The amendment will change this existing administrative regulation by establishing the standards for hazardous waste handlers rather than only establishing recycling and universal waste fees as it was previously established to do. This is a part of consolidating and streamlining the number of regulations for the hazardous waste program. In addition, this amendment will adopt the new federal generator improvement rule. The generator improvement rule will allow a hazardous waste generator to avoid increased burden of a higher generator when generating episodic waste if the waste is managed properly, and allow very small quantity generators to send their hazardous waste to a large quantity generator under the control of the same person.

††††† (b) The necessity of the amendment to this administrative regulation: This amendment is necessary to establish the standards for hazardous waste handlers. As a part of the authorization process for delegated authority from the Environmental Protection Agency, this administrative regulation will adopt required federal regulation updates for hazardous waste.

††††† (c) How the amendment conforms to the content of the authorizing statutes: KRS 224.10-100 and the waste management provisions of KRS Chapter 224 require the Environmental and Public Protection Cabinet to promulgate administrative regulations for the generation, treatment, storage, transportation, recycling, and disposal of hazardous wastes. KRS 224.46-510 requires the Energy and Environment Cabinet to promulgate administrative regulations establishing standards applicable to transporters of hazardous waste regarding recordkeeping and compliance with the manifest system. KRS 224.46-510(1) requires the cabinet to promulgate administrative regulations to establish requirements relating to generators of hazardous waste and establish standards for generators of hazardous waste by amount of waste generated. KRS 224.46-510(3) requires that the cabinet establish classes or categories of hazardous waste reflecting the relative degree of hazard. KRS 224.50-545 provides that used automotive and industrial oil shall be recycled or disposed of properly.

††††† (d) How the amendment will assist in the effective administration of the statutes: This administrative regulation establishes standards for hazardous waste handlers, as required by KRS 224.10-100, 224.46-510, and 224.50-545, for the generation, treatment, storage, recycling, transportation, and disposal of hazardous waste.

††††† (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: This administrative regulation will affect owners and operators of facilities that generate, transport, treat, store, and dispose of hazardous waste. There are approximately 16 treatment, storage, and disposal facilities, 384 large quantity generators, 412 small quantity generators, 2,853 very small quantity generators, 131 large quantity universal waste handlers, 142 used oil facilities, and 132 transporters in the Commonwealth of Kentucky.

††††† (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

††††† (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: Each facility is required to make a hazardous waste determination. Based on the new federal definition of solid waste, some waste that has been determined as hazardous waste in the past may now be nonhazardous waste, requiring a new waste determination. Therefore, facilities that might have been small quantity generators may now be considered very small quantity generators. In addition, small quantity generators would be required to report annually.

††††† (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): There will be no increase in cost for complying with this administrative regulation. There is a potential for a decrease in compliance costs if: (a) A previously considered hazardous waste is determined to be nonhazardous under the new federal definition of solid waste and exemptions; (b) A very small quantity generator or small quantity generator generated episodic hazardous waste and would not be required to modify into a more stringent regulatory category under the new federal generator improvement rule; and (c) A very small quantity generator would be allowed to consolidate hazardous waste with a large quantity generator under the control of the same person under the new federal generator improvement rule.

††††† (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): The benefits to owners and operators include compliance with both the federal and state regulations, and in those cases where a hazardous waste is now determined to be nonhazardous or exempt under the new federal definition of solid waste, an owner or operator would have decreased costs for transport and disposal. In addition, a very small quantity generator and small quantity generator who generate episodic hazardous waste would not be required to modify into a more stringent regulatory category under the new federal generator improvement rule. Lastly, very small quantity generators would have the ability to consolidate hazardous waste with a large quantity generator under the control of the same person.

††††† (5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:

††††† (a) Initially: $2.9M annually, for this program, as a whole.

††††† (b) On a continuing basis: $2.9M annually, for this program, as a whole.

††††† (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: Implementation and enforcement of this administrative regulation would be achieved by a combination of restricted funds, general funds and grants from the U.S. Environmental Protection Agency.

††††† (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: There is no need for an increase in funding or fees to implement this amendment.

††††† (8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: This administrative regulation does not establish any fees directly or indirectly.

††††† (9) TIERING: Is tiering applied? Tiering is not applied. This administrative regulation applies to all entities who generate, transport, store, or dispose of hazardous waste. To apply tiering to the regulation would unduly regulate some entities while not regulating others.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

††††† (1) What units, parts, or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? This administrative regulation will impact any units of state or local government that generate, transport, store, or dispose of hazardous waste, as well as the Division of Waste Management.

††††† (2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. 40 C.F.R. Parts 262, 263, 273, and 279 and KRS 224.10 and 224.46.

††††† (3) Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect. This administrative regulation will not affect the expenditures and revenues of a state or local government agency as the hazardous waste program is already in effect.

††††† (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? This administrative regulation will not generate revenue for state or local government as the hazardous waste program is already in effect. Currently the division receives $1.5M in federal grant funding to administer this program, as a whole.

††††† (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? This administrative regulation will not generate additional revenue for state or local government as the hazardous waste program is already in effect. Currently the division receives $1.5M in federal grant funding to administer this program, as a whole.

††††† (c) How much will it cost to administer this program for the first year? $2.9M, as a whole.

††††† (d) How much will it cost to administer this program for subsequent years? $2.9M, as a whole.

††††† Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

††††† Revenues (+/-): $1.5M in federal grant funding, as a whole.

††††† Expenditures (+/-): $2.9M, as a whole.

††††† Other Explanation:

 

FEDERAL MANDATE ANALYSIS COMPARISON

 

††††† 1. Federal statute or regulation constituting the federal mandate. 40 C.F.R. Parts 262, 263, 273, and 279.

††††† 2. State compliance standards. KRS 224.10-100, 224.46-510, 224.50-545.

††††† 3. Minimum or uniform standards contained in the federal mandate. 40 C.F.R. Parts 262, 263, 273, and 279.

††††† 4. Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate? Yes. This administrative regulation does impose stricter, additional, or different requirements than those required by the federal regulation. Section 1 requires generators, including treatment on-site, to register with the cabinet annually rather than biennially or every four years for small quantity generators, and to include anticipated types, potential sources, general characteristics, and weights or volumes of hazardous wastes on an addendum. In addition, it establishes procedures for generators to obtain an EPA identification number from the cabinet, establishes procedures for hazardous waste generators to be removed from the handler list, requires an annual report on hazardous waste instead of biennial reporting, and requires the annual report to be sent to local county governments. Section 2 establishes procedures for transporters to obtain an EPA identification number and register with the cabinet. Section 3 exempts on-site treatment of accumulated universal waste from being considered a universal waste and establishes requirements for on-site treatment as a hazardous waste. In addition, Section 3 establishes universal waste lamps as a hazardous waste if broken. Section 4 requires used oil collection centers to register with the cabinet, establishes procedures for registration and obtaining an EPA identification number, and prohibits used oil from being used as a dust suppressant. Section 5 requires cabinet notification for releases, establishes hearing procedures and penalties to be implemented by the cabinet, and replaces the federal requirement with a state requirement to register once a hazardous waste is listed.

††††† 5. Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements. The differences in this administrative regulation are statutory requirements, except for universal waste lamps. Breakage or damage to universal waste lamps, requires a hazardous waste determination and based on the composition of the lamps no longer allows them to be considered a universal waste.