Current through Register Vol. 43, No. 52, December 26, 2024
Each reference in this regulation to a federal regulation shall
mean that federal regulation as adopted by reference in
K.A.R.
28-31-124 through
28-31-279.
(a) Financial assurance.
(1) For the purposes of this subsection, the
following definitions shall apply:
(A)
"Captive insurance company" shall mean an insurance company that is established
with the specific objective of financing risks emanating from its parent group
or groups and that could or could not also insure risks of the parent groups'
customers.
(B) "Financial
institution" shall mean a bank, an insurance company, a surety company, or a
trust company.
(C) "Purchased
financial instrument" shall mean a trust fund, a letter of credit, a surety
bond, or an insurance policy.
(D)
"Unrelated" shall mean that neither party has any ownership of the other party,
or any controlling interest in the other party.
(2) Each financial institution that provides
financial assurance for a hazardous waste facility in Kansas shall meet the
following requirements, in addition to meeting the requirements of 40 CFR part
264, subpart H:
(A) Each bank and each trust
company shall have the authority to issue letters of credit in Kansas or to act
as trustee for the facility in Kansas, or both.
(B) Each insurance company shall meet the
following criteria:
(i) Have a current minimum
rating in the secure or investment grade category by the A.M. Best insurance
rating agency; and
(ii) not be a
captive insurance company.
(C) Each surety company shall meet the
following criteria:
(i) Have a current
minimum rating in the secure or investment grade category by the A.M. Best
insurance rating agency; and
(ii)
be licensed in Kansas.
(3) If the financial assurance required by 40
CFR part 264, 265, or 267 is a purchased financial instrument, the financial
institution that provides the purchased financial instrument shall be unrelated
to both the owner and the operator of the facility.
(4) Each person that is required to submit
the information listed in one or more of the following regulations shall also
submit a copy of the most recent corporate annual report:
(A)
40 CFR
264.143(f)(3);
(B)
40 CFR
264.145(f)(3);
(C)
40 CFR
265.143(e)(3);
(D)
40 CFR
265.145(e)(3); or
(E)
40 CFR
267.143(f)(2).
(5) The corporate annual report
required by paragraph (a)(4) shall be submitted for both publicly and privately
owned facilities and shall contain the following items:
(A) Financial statements;
(B) notes to financial statements;
and
(C) a copy of the independent
certified public accountant's report, including an unqualified
opinion.
(b)
Notice in deed to property. Each owner of property on which a hazardous waste
treatment, storage, or disposal facility is located shall record, in accordance
with Kansas law, a notice with the register of deeds in the county where the
property is located. The notice shall include the following information:
(1) The land has been used to manage
hazardous waste.
(2) All records
regarding permits, closure, or both are available for review at the
department.
(c)
Restrictive covenant and easement. Any owner of property on which a hazardous
waste treatment, storage, or disposal facility is or has been located may be
required by the secretary to execute a restrictive covenant or easement, or
both, according to the following requirements:
(1) The restrictive covenant shall be filed
with the county register of deeds, shall specify the uses that may be made of
the property after closure, and shall include the following requirements:
(A) All future uses of the property after
closure shall be conducted in a manner that preserves the integrity of waste
containment systems designed, installed, and used during operation of the
disposal areas, or installed or used during the postclosure maintenance
period.
(B) The owner or tenant and
all subsequent owners or tenants shall preserve and protect all permanent
survey markers and benchmarks installed at the facility.
(C) The owner or tenant and all subsequent
owners or tenants shall preserve and protect all environmental monitoring
stations installed at the facility.
(D) The owner or tenant, all subsequent
property owners or tenants, and any person granted easement to the property
shall provide written notice to the secretary during the planning of any
improvement to the site and shall commence any of the following activities only
after receiving approval from the secretary:
(i) Excavating or constructing any permanent
structures or drainage ditches;
(ii) altering the contours;
(iii) removing any waste materials stored on
the site;
(iv) changing the
vegetation grown on areas used for waste disposal;
(v) growing food chain crops on land used for
waste disposal; or
(vi) removing
any security fencing, signs, or other devices installed to restrict public
access to waste storage or disposal areas.
(2) The easement shall state that the
department, its duly authorized agents, or contractors employed by or on behalf
of the department may enter the premises to accomplish any of the following
tasks:
(A) Complete items of work specified
in the site closure plan;
(B)
perform any item of work necessary to maintain or monitor the area during the
postclosure period; or
(C) sample,
repair, or reconstruct environmental monitoring stations constructed as part of
the site operating or postclosure requirements.
(3) Each offer or contract for the conveyance
of easement, title, or other interest to real estate used for treatment,
storage, or disposal of hazardous waste shall disclose all terms, conditions,
and provisions for care and subsequent land uses that are imposed by these
regulations or the site permit authorized and issued under
K.S.A.
65-3431, and amendments thereto. Conveyance
of title, easement, or other interest in the property shall contain provisions
for the continued maintenance of waste containment and monitoring
systems.
(4) All covenants,
easements, and other documents related to this regulation shall be permanent,
unless extinguished by agreement between the property owner and the
secretary.
(5) The owner of the
property shall pay all recording fees.
(d) Marking requirements. Each operator of a
hazardous waste container storage facility or a tank storage facility shall
mark all containers and tanks in accordance with
40 CFR
262.34(a)(2) and
(3).
(e) Environmental monitoring. All samples
analyzed in accordance with 40 CFR part 264, subpart F or G or 40 CFR part 265,
subpart F or G shall be conducted by a laboratory certified for these analyses
by the secretary, except that analyses of time-sensitive parameters, including
pH, temperature, and specific conductivity, shall be conducted at the time of
sampling if possible.
(f)
Laboratory certification. For hazardous waste received at a treatment, storage,
or disposal facility with the intent of burning for destruction or energy
recovery, all quantification analyses performed for the purpose of complying
with permit conditions shall be performed by a laboratory certified for these
analyses by the secretary, if this certification is available.
(g) Hazardous waste injection wells. The
owner or operator of each hazardous waste injection well shall comply with the
requirements of article 46 of these regulations.