Current through Register Vol. 51, No. 6, December 1, 2024
RELATES TO:
KRS
39E.020,
39E.030,
39E.040,
39E.050,
39E.110,
39E.120,
39E.130,
39E.140,
39E.150,
39E.160,
39E.170,
39E.190,
39E.220,
39E.230,
29 C.F.R.
1910.1200, 40 C.F.R. Part 355 , Appendix A,
Appendix B, Part 370,
42
U.S.C. 11001-11050
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
39E.040(3) requires the KERC
to develop reporting requirements and procedures for individuals, businesses,
and governmental agencies that manufacture, use, store, or transport hazardous
substances.
KRS
39E.040(6) requires the
commission to recommend administrative regulations to the director for issuance
by the Division of Emergency Management to implement KRS Chapter 39E. This
administrative regulation establishes the Tier II reporting and facility
planning participation requirements for facilities subject to
42
U.S.C. 11001 through
42 U.S.C.
11050.
Section
1. Definitions.
(1) "Category"
means the five (5) types of facilities and applicable category numbers, defined
by paragraphs (a) through (e) of this subsection, describing individuals,
businesses, and governmental agencies that manufacture, use, store, or
transport hazardous substances.
(a) "Category
One Facility" means any facility owned or operated by local, state, or federal
government that is:
1. Exempted from paying
any fee in accordance with
KRS
39E.050; and
2. Not exempt from reporting requirements
pursuant to
KRS
39E.020,
39E.030,
39E.040,
39E.050,
39E.110,
39E.120,
39E.190,
39E.220,
and
39E.230.
(b) "Category Two Facility" means any
facility that has not less than 10,000 pounds and not more than 499,999 pounds
of each of ten (10) or fewer hazardous substances, with the combined total of
all hazardous substances not exceeding 499,999 pounds.
(c) "Category Three Facility" means any
facility that has 10,000 pounds or more of each of eleven (11) or more
hazardous substances, with the combined total of all hazardous substances not
exceeding 499,999 pounds.
(d)
Category Four Facility" means any facility that has a total inventory of over
499,999 pounds of hazardous substances.
(e) "Category Five Facility" means any
facility that has an Extremely Hazardous Substance (EHS) as defined by
subsection (4) of this section.
(2) "EHS Facility Emergency Response Plan"
means an emergency response plan for a facility subject to SARA Title III
(Superfund Amendments and Reauthorization Act of 1986),
42
U.S.C. 11001 et seq., that:
(a) Has in its inventory an EHS above
Threshold Planning Quantity (TPQ); and
(b) Meets all required planning elements of
SARA Title III,
42 U.S.C.
11003;
KRS 39E.110,
39E.130,
39E.140,
39E.150,
39E.160,
39E.170 and
39E.220,
and the KERC's planning requirements found in the Responsibilities of the LEPC
Course Manual (KERC Document 715-RL).
(3) "EPCRA How to Comply Packet" or "KERC
Document: 700-CP" means the packet published by Kentucky Emergency Management
(KYEM) that describes the steps required to be compliant with all Emergency
Planning and Community Right-to-Know (EPCRA), KRS, and the requirements
established in
106
KAR 1:091.
(4) "Extremely Hazardous Substance" or "EHS"
means any chemical listed on the EHS List and their TPQs, codified as 40 C.F.R.
Part 355 , Appendix A and Appendix B.
(5) "Facility Annual Certification Letter" or
"FACL" means the annual letter provided to the Local Emergency Planning
Committee (LEPC) by any facility that has an EHS in excess of the TPQ to
certify that the current EHS Facility Emergency Response Plan has been reviewed
and:
(a) Is correct without changes;
or
(b) Has been revised and the
revisions are included with the FACL.
(6) "Facility Emergency Coordinator" or "FEC"
means the EHS facility representative, assigned by the owner or operator of the
EHS facility and designated on the annual Tier II report.
(7) "Hazardous Chemical" means:
(a) Any chemical that is classified by
29 C.F.R.
1910.1200(d), as a physical
hazard or a health hazard;
(b) A
simple asphyxiant, combustible dust, or pyrophoric gas; or
(c) A hazard not otherwise
classified.
(8)
"Hazardous Substance" is defined by
KRS
39E.020(5).
(9) "KERC" means the Kentucky Emergency
Response Commission.
(10) "Safety
Data Sheet" or "SDS" means the Safety Data Sheets required by the Hazard
Communication Standard (HCS) to be generated by chemical manufacturers,
distributors, or importers in order to communicate the hazards of hazardous
chemical products.
Section
2. Filing Requirements.
(1) A
facility shall file a Tier II report and pay all associated fees electronically
as established in the EPCRA How to Comply Packet (KERC Document 700-CP). A
paper report or check shall not be accepted.
(2)
(a) The
owner or operator of a facility that is required to prepare or have available a
safety data sheet for a hazardous chemical present at the facility shall submit
a Tier II Report prepared in accordance with the KERC's Tier II submitting
process.
(b) The SDS requirements
shall be as established in
29 C.F.R.
1910.1200, Hazard communication
Standard.
(c) A facility subject to
the annual chemical inventory reporting requirements established in
KRS
39E.210 and
42 U.S.C.
11022 shall submit the completed Tier II
Report:
1. No later than March 1 each year;
and
2. To each of the following
organizations:
c. The fire department with jurisdiction over
the facility.
(3) A facility shall report hazardous
chemicals that were present at the facility at any time during the previous
calendar year at a level equal to or in exceedance of the reporting threshold.
(a) The minimum reporting thresholds shall be
as established at 40 C.F.R. Part 370 .
(b) The EPCRA chemical exemptions shall be
those exemptions established in 40 C.F.R. Part 370.
(c) The exemptions established in
29 C.F.R. 1910.1200(b)(5) and
(6) shall govern the preparation and
availability of a Safety Data Sheet.
Section 3. Fees.
(1) Except as established in subsection (2)
of this section, a facility that is not exempt shall pay the applicable fee
established in this subsection.
(a) There
shall not be a fee for a Category One Facility.
(b) The fee for a Category Two Facility shall
be forty (40) dollars.
(c) The fee
for a Category Three Facility shall be $250.
(d) The fee for a Category Four Facility
shall be $250.
(e) The fee for a
Category Five Facility shall be $250.
(f) Maintenance and access fees, late fees,
and fines shall be utilized for the administration of the KERC
program.
(2) If the same
owner or owners have two (2) or more facilities in a single county subject to
paying a fee, the owner or owners shall pay the fees as established in
subsection (1) of this section, not to exceed a total of $250 for all those
facilities in that county.
(3) An
owner or operator who violates this administrative regulation shall be subject
to the penalties established in
KRS
39E.990.
Section 4. EHS Facility Planning
Participation Requirements.
(1) In accordance
with the planning requirements of
KRS
39E.120 and
KRS
39E.130,
42 U.S.C.
11002(c) and
11003(c)(d),
no later than sixty (60) days after a facility notifies the KERC that it is
subject to the requirements of this section, the facility shall:
(a) Provide emergency response planning
information to the LEPC; and
(b)
Assist the LEPC in developing an EHS Facility Emergency Response Plan for all
EHS in accordance with the Responsibilities of the LEPC Course
Manual.
(2) After initial
submission and approval of the EHS Facility Emergency Response Plan in
accordance with subsection (1) of this section, each March 1 any facility that
has an EHS in excess of the TPQ shall review the EHS Facility Emergency
Response Plan and send a FACL to the LEPC.
Section 5. Incorporation by Reference.
(1) The following material is incorporated by
reference:
(a) "Responsibilities of the LEPC:
Course Manual (KERC Document 715-RL), 2018 edition;
(b) "EPCRA How to Comply Packet", KERC
Document; 700-CP, 2017; and
(c)
"The EPA's Tier II Submit 20xx Self-Study Manual", 720A-T2SSS Course Manual,
2016.
(2) This material
may be inspected, copied, or obtained, subject to applicable copyright law, at
the Kentucky Department of Military Affairs, 100 Minuteman Parkway, Frankfort,
Kentucky 40601-6168, Monday through Friday, 8:00 a.m. to 4:30
p.m.
STATUTORY AUTHORITY:
KRS
39E.010,
39E.040,
39E.050,
39E.120,
39E.130,
39E.210,
42 U.S.C.
11002(c),
11003(c),
(d)