ENERGY AND ENVIRONMENT CABINET

Department for Environmental Protection

Division of Waste Management

(Amendment)

 

      401 KAR 45:060. Special waste permit-by-rule.

 

      RELATES TO: KRS 224.1, 224.10, 224.40, 224.46, 224.50, 224.99

      STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.50-760

      NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to promulgate administrative regulations for the management, processing, and disposal of wastes. KRS 224.40-305 requires persons who establish, conduct, operate, maintain, or permit the use of a waste site or facility to obtain a permit. This administrative regulation establishes[sets forth] the requirements for a special waste permit-by-rule.

 

      Section 1. Permit-by-rule. Notwithstanding any other provision of this chapter, the following special waste sites or facilities shall be deemed to have a permit without the owner or operator having made application or registration with the cabinet, if the operation is a practice common to the industry, if the site or facility is not in violation of 401 KAR 30:031, and if the operation does not present a threat or potential threat to human health or the environment:

      (1) Pits[Oil production brine pits and gas and oil drilling mud pits, during the active life of the pit, if the pit is] subject to 401 KAR 5:090;

      (2) Temporary storage of special waste in piles;

      (3) Injection wells:

      (a) Used[used] for disposal of special waste subject to 805 KAR 1:110;[401 KAR 5:090] or

      (b) In[in] compliance with an underground injection control permit issued by the U.S. EPA;

      (4) Special waste surface impoundments with a KPDES permit;

      (5) Surface impoundments:

      (a) That[that] treat domestic sewage and that do not contain any industrial wastewater;

      (b)[, or] are publicly owned treatment works for the treatment of domestic sewage, if the facility is in compliance with the KPDES or NPDES permit; and

      (6) Beneficial reuse of coal combustion by-products for placement at active or abandoned underground or surface coal mines, including structural fill, backfill, material for contouring, mine stabilization, and reclamation material, if:

      (a) The utilization of coal combustion by-products does not result in the creation of a nuisance condition;

      (b) Erosion and sediment control measures consistent with sound engineering practices shall be[are] undertaken;

      (c) Unless permission has been obtained from the appropriate regulatory agency, the use is not within 100 feet of existing streams or 300 feet of existing drinking water wells, floodplains, or wetlands;

      (d) The generator characterizes the nonhazardous nature of the coal combustion by-products; and

      (e) The generator submits to the cabinet an annual report that identifies the type and amount of coal combustion by-products released for reuse; the name and address of each recipient of coal combustion by-products; and the specific use, if known, of each recipient made of the coal combustion by-products.

 

      Section 2. Noncompliances. (1) A special waste permit-by-rule site or facility that is not operating in compliance with Section 1 of this administrative regulation shall be subject to appropriate enforcement action, including corrective action or revocation.

      (2) The cabinet may require the owner or operator of a special waste permit-by-rule site or facility to upgrade the permit to a registered permit-by-rule if doing so will ensure that the requirements of this chapter and the environmental performance standards of 401 KAR 30:031 are met.

 

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 22, 2017, at 6:00 p.m. in Training Room B of the Energy and Environment Cabinet at 300 Sower Boulevard, Frankfort, Kentucky. 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 attend the public hearing or written comments on the proposed administrative regulation to the contact person.

      CONTACT PERSON: Louanna Aldridge, Environmental Control Supervisor, Department for Environmental Protection, Division of Waste Management, 300 Sower Boulevard, Second Floor, Frankfort, Kentucky 40601, 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 sets forth the requirements for a special waste permit-by-rule.

      (b) The necessity of this administrative regulation: This administrative regulation is necessary in order to establish the requirements for special waste sites or facilities to obtain a permit compliant with KRS 224.40-305. During the 2016 Regular Legislative Session, the General Assembly passed HB 563 directing the Energy and Environment Cabinet and the Cabinet for Health and Family Services to revise existing regulations to ensure the proper management of oil and gas-related wastes containing naturally occurring radioactive material (NORM).

      (c) How this administrative regulation conforms to the content of the authorizing statutes: KRS 224.40-305 requires that no person shall establish, construct, operate, maintain, or permit the use of a waste site or facility without first having obtained a permit from the cabinet. This administrative regulation establishes the requirements for special waste sites or facilities in order to have a permit under the statute.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation assists in the administration of the statutes by providing the requirements for special waste sites and facilities to be properly permitted under the statute.

      (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 changes the language and clarifies that all pits subject to 401 KAR 5:090 are deemed to have a special waste permit-by-rule. The amended administrative regulation also now references 805 KAR 1:110 rather than 401 KAR 5:090, to which injection wells are subject to for the disposal of special waste.

      (b) The necessity of the amendment to this administrative regulation: This amendment ensures that other administrative regulations, which separately regulate special waste sites and facilities, are cited appropriately.

      (c) How the amendment conforms to the content of the authorizing statutes: This amendment ensure that the administrative regulation continues to conform to KRS 224.40:305 as it establishes the requirements for special waste sites or facilities to obtain a permit as required by the statute.

      (d) How the amendment will assist in the effective administration of the statutes: This amendment clarifies the permit requirements for special waste sites and facilities related to the oil and gas industries.

      (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 all counties, cities, urban-county governments and solid waste management areas in Kentucky. This administrative regulation will also affect all special waste sites and facilities relating to waste generated by the oil and gas industries.

      (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: Entities in question (3) should not be substantially impacted by the amendment of this administrative regulation.

      (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: Entities in question (3) should not be substantially impacted by the amendment of this administrative regulation.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): There will not be any additional costs to the entities identified in question (3) as a result of the amendment of this administrative regulation.

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): Entities identified in question (3) will continue to possess a special waste permit-by-rule as long as they stay in compliance with this amended administrative regulation.

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

      (a) Initially: There will be no cost associated with the implementation of the amendment to this administrative regulation.

      (b) On a continuing basis: There will be no cost associated with the implementation of the amendment to this administrative regulation.

      (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: This administrative regulation will not require a funding source.

      (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 will be no increase in fees or funding associated with the implementation of the amendment to this administrative regulation.

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

      (9) TIERING: Is tiering applied? Tiering is not applied; this administrative regulation establishes requirements for special waste sites and facilities to hold a permit-by-rule under KRS 224.40-305.

 

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 all counties, cities, urban-county governments and solid waste management areas responsible for solid waste management in the Commonwealth of Kentucky by establishing requirements for special waste sites and facilities to hold a permit-by-rule required under KRS 224.40:305.

      (2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by this administrative regulation. KRS 224.10-100, 224.40-305, 224.50-760, and 40 C.F.R. Part 258.

      (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 not generate revenue for the state or for local governments for the first year revenue.

      (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 revenue for the state or for local governments for the first year revenue.

      (c) How much will it cost to administer this program for the first year? It will cost approximately $2.9 million to operate the entire solid and special waste programs in the first year.

      (d) How much will it cost to administer this program for subsequent years? It will cost approximately $2.9 million to operate the entire solid and special waste programs in subsequent years.

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

      Revenues (+/-):

      Expenditures (+/-):

      Other Explanation: The amendment to this administrative regulation will not have a fiscal impact on state or local government agencies.