ENERGY AND ENVIRONMENT CABINET

Department for Environmental Protection

Division of Waste Management

(Amendment)

 

      401 KAR 39:120. Permit review, determination timetables, and[Application] fees.

 

      RELATES TO: KRS 224.1, 224.10, 224.40, 224.46, 224.50, 224.99, 40 C.F.R. Part 270

      STATUTORY AUTHORITY: KRS 224.10-100, 224.10-220, 224.46-550

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(20) authorizes[states] that the Energy and Environment[Environmental and Public Protection] 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. KRS 224.10-220 requires the cabinet to establish timetables for the review and determination of permit applications.[The purpose of] This administrative regulation establishes timetables for the review and determination of hazardous waste permit applications and the [chapter is to establish a] fee schedule for hazardous waste management. [This administrative regulation establishes the fee schedule for storage, treatment or disposal facility permits.]

 

      Section 1. Applicability. (1) This administrative regulation shall apply[applies] to:

      (a) An owner or operator of a hazardous waste site or facility in Kentucky that submits an application for:

      1. A[All] treatment, storage, or disposal facility permit;

      2. A post-closure permit;

      3. A permit that contains exposure information reports for treatment, storage, or disposal of hazardous waste in a surface impoundment or landfill;

      4. An emergency permit;

      5. A land treatment demonstration permit; or

      6. An emergency identification number;

      (b) A person who:

      1. Is a recycler of hazardous waste; or

      2. Petitions the cabinet to include additional wastes as a universal waste;

      (c) A marketer or burner of hazardous waste fuel or used oil burned for energy recovery;

      (d) A large quantity handler of universal waste;

      (e) A used oil processor, refiner, burner, or marketer;

      (f) A hazardous waste transporter;

      (g) A hazardous waste generator; and

      (h) A generator who treats hazardous waste on-site[facilities required by 401 KAR Chapter 38 to submit an application for a hazardous waste site or facility permit].

      (2)[The provisions of] This administrative regulation shall apply to all applications for hazardous waste site or facility permits submitted, including those applications that[on or after the effective date of this administrative regulation, and to such applications which] are not complete[, as determined by the cabinet, by the effective date of this administrative regulation].

 

      Section 2. Filing Fees. (1) Any owner or operator who submits a Part A Permit Application, incorporated by reference in 401 KAR 39:060, for a treatment, storage, or disposal facility shall submit[with the application] a filing fee in the amount of $1,000.

      (2)(a) Any owner or operator that submits an application for a post-closure permit or permit renewal for a hazardous waste site or facility shall submit a filing fee in the amount of $4,000.

      (b) The filing fee established in paragraph (a) of this subsection shall not apply to owners and operators of hazardous waste sites or facilities that submit a post-closure plan as part of an application for an operation permit for a landfill required in 401 KAR 39:060, Section 5.

 

      Section 3. Review Fees. (1)[Permitting Fees.] In addition to those fees established by[identified in] KRS 224.46-016, any owner or operator who submits a permit application for a treatment, storage, or disposal facility shall submit[with the application] the following unit fees:

      (a) Containment buildings - $7,400;

      (b) Drip pads - $3,700;

      (c) Miscellaneous units:

      1. Treatment unit - $15,800;

      2. Storage unit - $3,700; and

      3. Disposal unit - $12,200; and

      (d) Boilers and industrial furnaces - $19,400.

      (2)[Closure Fees.] Any owner or operator that[who] submits a closure plan for a treatment, storage, or disposal facility shall submit [with the application] the following fees:

      (a) A closure plan fee of $3,600;

      (b) A [RCRA] facility assessment fee in accordance with KRS 224.46-016; and

      (c) A review fee for each type of hazardous waste management unit being closed.

      1. The fee for incinerators shall be submitted one (1) time for each different type of incinerator.

      2. The fees for tanks and containers shall be submitted one (1) time for each different tank design or container type.

      3. Tank design criteria shall include[includes] differences in materials of construction, pressure vessels, nonpressure vessels, shape, and ancillary equipment.

      4. Container types shall include drums, tote bins, bottles, and roll-off boxes.

      5. The fees shall be:

      a.[1.] Incinerator - $2,000;

      b.[2.] Waste piles - $1,000;

      c.[3.] Surface impoundments - $1,500;

      d.[4.] Tanks - $660;

      e.[5.] Containers - $460;

      f.[6.] Land treatment - $2,000;

      g.[7.] Landfill - $2,000;

      h.[8.] Containment buildings - $660;

      i.[9.] Drip pads - $660;

      j.[10.] Miscellaneous units:

      (i)[a.] Treatment unit - $2,000;

      (ii)[b.] Storage unit - $660; and

      (iii)[c.] Disposal unit - $1,000; and

      k.[11.] Boilers and industrial furnaces - $2,000.

      (3)[Corrective action fees.] Any owner or operator that[who] is required to submit to the cabinet a[RCRA] facility investigation plan or a corrective action plan shall submit with the plans the applicable review fee upon the request of the cabinet. These fees shall be the cost of review, but shall not exceed the following amounts:

      (a)[RCRA] Facility investigation plan - the fee as established in KRS 224.46-016;

      (b) Corrective action plan - the fee as established in KRS 224.46-016;

      (c) Corrective action management unit - $3,700; and

      (d) Temporary unit:

      1. Temporary containers - $3,000; and

      2. Temporary tanks - $3,700.

      (4)[Modification fees.] In addition to those fees established by[specified in] KRS 224.46-018, any owner or[of] operator that[who] modifies a permit shall submit [with the modification] the [following] fees established in this subsection.[:]

      (a) An owner or operator that[who] modifies an existing hazardous waste treatment, storage, or disposal facility permit to add one (1) or more waste streams, or a waste stream with the same characteristic that is already permitted, shall submit the following fees along with the modification:

      1. Containment buildings - $3,400;

      2. Drip pads - $3,400;

      3. Miscellaneous units:

      a. Treatment unit - $5,500;

      b. Storage unit - $3,400; and

      c. Disposal unit - $4,500; and

      4. Boilers and industrial furnaces - $6,500.

      (b) An owner or operator that[who] modifies an existing hazardous waste treatment, storage, or disposal facility permit by constructing or operating an additional hazardous waste treatment, storage, or disposal unit, or by substantially modifying an existing hazardous waste treatment, storage, or disposal unit, shall submit the following fees along with the modification:

      1. Containment buildings - $7,400;

      2. Drip pads - $3,700;

      3. Miscellaneous units:

      a. Treatment unit - $15,800;

      b. Storage unit - $3,700; and

      c. Disposal unit - $12,200; and

      4. Boilers and industrial furnaces - $19,400.

      (c)1. An owner or operator that modifies a registration in accordance with 401 KAR 39:080, Section 1(5)(b) shall submit a registration modification fee in the amount of fifty (50) dollars.

      2. The registration modification fee established in subparagraph 1. of this paragraph shall not apply to a registrant who modifies his registration by only making a name change.

      (5)(a) Any owner or operator that submits an application for a post-closure permit or permit renewal for a hazardous waste site or facility, but has not received a permit, shall submit a review fee in the amount of $9,000.

      (b) This fee shall not apply to owners and operators of hazardous waste sites or facilities that submit a post-closure plan as part of an application for an operation permit for a landfill required in 401 KAR 39:060, Section 5 and pay the fees required by this administrative regulation.

      (6) Any owner or operator that submits an application for an emergency permit shall submit a review fee in the amount of $750.

      (7) Any owner or operator that submits an application for land treatment disposal shall submit a review fee in the amount of $5,500.

      (8) In addition to any other required registration fees, any owner or operator that submits an application for an emergency identification number shall also submit a review fee in the amount of $100.

      (9) A person petitioning to change the classification of a hazardous waste or a category of hazardous waste to a universal waste shall submit a review fee in the amount of $2,500.

      (10) A person who submits a permit application containing an exposure information report for treatment, storage, or disposal of hazardous waste in a surface impoundment or landfill shall submit a review fee in the amount of $5,000.

 

      Section 4. Registration and Fees. (1) In addition to those fees established by KRS 224.46-012 for generators of hazardous waste, an annual registration fee in the amount of $300 shall be submitted:

      (a) Per process for a hazardous waste generator who treats hazardous waste on site;

      (b) Per process for a recycler of hazardous waste;

      (c) By a marketer or burner of hazardous waste fuel burned for energy;

      (d) By a used oil processor, refiner, burner, or marketer;

      (e) By a Kentucky based hazardous waste transporter; and

      (f) By a very small quantity generator

      (2) In addition to those fees established by KRS 224.46-012 for generators of hazardous waste, an initial registration fee in the amount of $300 shall be submitted for:

      (a) Nonhazardous used oil activities;

      (b) A large quantity handler of universal waste; and

      (c) A non-Kentucky based hazardous waste transporter.

 

      Section 5. Submittal of Fees. (1) The fees required in Sections 2 through 4 of this administrative regulation shall be submitted to the cabinet with the application, registration, petition, or other required documentation related to the request.

      (2) Fees shall not be refunded if an application, registration, petition, or other request is withdrawn.

      (3)[(2)] All checks or money orders shall be made payable to the Kentucky State Treasurer and note that the fee is for hazardous waste branch.

      (4) The cabinet shall refund any fees paid in accordance with Section 1(1)(g) of this administrative regulation, if the cabinet fails to provide a written determination within sixty (60) days of receipt of a generator's request to treat hazardous waste on-site.

 

      Section 6. Permit Review and Determination Timetables. (1) The official date of receipt for documents associated with a hazardous waste permit shall be the date the document is stamped received by the Division of Waste Management.

      (2) The applicant for a hazardous waste permit shall have the burden of establishing that the application is in compliance with all applicable requirements of KRS Chapter 224 and 401 KAR Chapter 39.

      (3)(a) If a Part A Permit Application, incorporated by reference in 401 KAR 39:060, is required by KRS Chapter 224 and 401 KAR Chapter 39, the applicant shall submit that application at least forty-five (45) days prior to submitting any of the applications set forth in paragraph (b) of this subsection.

      (b) The cabinet shall review all hazardous waste permit applications and make a determination to issue or deny a permit within the following timetables:

      1. Part B Permit Applications, as referenced in 40 C.F.R. Part 270, for hazardous waste permits for storage in containers or tanks only within 180 calendar days;

      2. Part B Permit Applications, as referenced in 40 C.F.R. Part 270, for hazardous waste permits for treatment and storage in containers or tanks within 365 calendar days;

      3. Part B Permit Applications, as referenced in 40 C.F.R. Part 270, for hazardous waste incinerators within 365 calendar days;

      4. Part B Permit Applications, as referenced in 40 C.F.R. Part 270, for facilities with land-based units, including surface impoundments, waste piles, land treatment units, and landfills, and other miscellaneous units within 365 calendar days;

      5. Class 3 modifications to a hazardous waste permit within 365 calendar days;

      6. Class 1 and Class 2 modifications to a hazardous waste permit requiring approval within ninety (90) calendar days;

      7. Closure plan with groundwater monitoring within 365 calendar days;

      8. Closure plan without groundwater monitoring within 180 calendar days; and

      9. Renewal of permits shall follow the same timetables as established in subparagraphs 1. through 4. of this paragraph for the applicable type of unit.

      (c) The timetables established in paragraphs (a) and (b) of this subsection may be extended to a mutually agreed upon timetable, at the initiative of either the cabinet or the applicant.

      1. The purpose and period of the extension shall be in writing and, if agreed to, shall be signed by both the cabinet and the applicant.

      2. The agreement to extend the timetable shall become part of the cabinet's administrative record.

      (d) If a hazardous waste permit application requires more than one (1) type of permit action as established in paragraph (b) of this subsection, the review time for each permit action shall apply and run consecutively when computing the total review time for the issuance or denial of the permit.

      (4) The time periods established in subsection (3) of this section shall not run during the following intervals:

      (a) From the date the cabinet mails or hand delivers a notice of deficiency to an applicant until the date the Division of Waste Management stamps as received a complete response to the deficiencies;

      (b) Sixty (60) days from the date of any public hearing or meeting on the application to allow the cabinet time to consider public comments;

      (c) From the date the cabinet submits an application to U.S. EPA for overview until the date the cabinet receives U.S. EPA's comments;

      (d) From the date a permit application is subject to any adjudicatory process that prevents the cabinet from making a determination to the date all administrative or judicial hearings are final and all parties are in compliance with all final orders resulting from those hearings; and

      (e) If a governing body holds a public hearing pursuant to KRS 224.40-310(7), sixty (60) days from the date of publication of the public notice on the hearing.

      (5) If two (2) or more permits for a facility, site, source, construction project, or other entity are required from the cabinet, the cabinet may coordinate the issuance of the permits, establishing different review and action times that shall be accomplished by the cabinet or the applicant.

      (a) If the permits are coordinated, the cabinet shall notify the applicant and indicate the time frames for which the intermediate actions and final permit actions shall be accomplished.

      (b) The established time frame for final action shall not exceed the last date for action required by KRS Chapter 224 and 401 KAR Chapter 39, based on all applications being considered and their filing dates.

      (6)(a)1. If a notice of deficiency is sent to an applicant, the applicant shall have forty-five (45) calendar days to respond to the notice of deficiency.

      2. The forty-five (45) day time period may be extended by agreement between the cabinet and the applicant.

      (b) Failure to respond to a notice of deficiency within the specified time shall be grounds for denial of the permit.

 

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 timetables for the review and determination of hazardous waste permit applications and the fee schedule for hazardous waste management.

      (b) The necessity of this administrative regulation: This administrative regulation is necessary to establish timetables for the review and determination of hazardous waste permit applications and the fee schedule for hazardous waste management as required by KRS 224.46-550, KRS 224.10-100(20) and KRS 224.10-220.

      (c) How this administrative regulation conforms to the content of the authorizing statutes: KRS 224.10-100(20) states that the Energy and Environment 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. KRS 224.10-220 requires the cabinet to establish timetables for the review and determination of permit applications.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation establishes timetables for the review and determination of hazardous waste permit applications and the fee schedule for hazardous waste management as required by KRS 224.46-550, KRS 224.10-100(20), and KRS 224.10-220.

      (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 a fee schedule and timetables for the review and determination of hazardous waste permit applications instead of only establishing the fee schedule as it was previously established to do. This is a part of consolidating and streamlining the number of regulations for the hazardous waste program.

      (b) The necessity of the amendment to this administrative regulation: This amendment is necessary to establish timetables for the review and determination of hazardous waste permit applications and the fee schedule for hazardous waste management as required by KRS 224.46-550, KRS 224.10-100(20), and KRS 224.10-220.

      (c) How the amendment conforms to the content of the authorizing statutes: KRS 224.10-100(20) states that the Energy and Environment 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. KRS 224.10-220 requires the cabinet to establish timetables for the review and determination of permit applications.

      (d) How the amendment will assist in the effective administration of the statutes: This amendment establishes timetables for the review and determination of hazardous waste permit applications and the fee schedule for hazardous waste management as required by KRS 224.46-550, KRS 224.10-100(20), and KRS 224.10-220.

      (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: The regulated entities will not be required to take any additional actions as a result of this administrative regulation. The schedule of fees and timetables established in this consolidated administrative regulation are consistent with the current schedule of fees and timetables established in an already effective administrative regulation.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): The cost to comply with the administrative regulation will increase for transporters of hazardous waste due to their inclusion to the $300 annual registration fee for Kentucky based entities and a $300 initial registration fee for non-Kentucky based entities. The cost to comply will also increase by $300 per year for very small quantity generators as they will no longer be exempt from registration fees. There are no other increases in cost for complying with this administrative regulation as the remainder of the schedule of fees is consistent with the current effective administrative regulation.

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): There will be no benefit to compliance as there is no substantive change being made in this amendment.

      (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: This amendment imposes new registration fees for hazardous waste transporters and very small quantity generators. These new fees will provide the agency with necessary receipts to cover the costs of administering this program, as a whole.

      (8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: This administrative regulation establishes hazardous waste fees for registration, filing, review, closure, and assessment. It also imposes new registration fees for hazardous waste transporters and very small quantity generators.

      (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 decrease costs for some entities while not for 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 wastes 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. This administrative regulation is not required by federal statute or federal regulation.

      (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.

      (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 generate approximately $1,356,000 in hazardous waste fees the first year for the Division of Waste Management. In addition, the division receives $1.5M in federal grant funding to administer the 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 generate approximately $1,356,000 in hazardous waste fees in subsequent years for the Division of Waste Management. In addition, the division receives $1.5M in federal grant funding to administer the 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 (+/-):$1,356,000 + $1.5M in federal grant funding for this program, as a whole.

      Expenditures (+/-): $2.9M for this program, as a whole.

      Other Explanation: