Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS 224.01-400,
224.01-405,
224.01-450-224.01-465, 224.01-510-224.01-532,
224.40-100
NECESSITY, FUNCTION AND CONFORMITY:
KRS
224.01-530(2) requires the
cabinet to promulgate administrative regulations establishing standards under
KRS 224.01-400 and
224.01-405 with
respect to hazardous substances, pollutants, contaminants, petroleum, or
petroleum products, that are protective of human health, safety, and the
environment.
KRS 224.01-532
authorizes the cabinet to promulgate administrative regulations to implement
KRS 224.01-510 to
224.01-532. This
administrative regulation governs remediation under
KRS 224.01-400 and
224.01-405,
224.01-510 through
224.01-532, and
224.01-450 to
224.01-465.
Section 1. Definitions.
(1) "Ambient background" means the
concentrations of naturally-occurring inorganic substances and ubiquitous
anthropogenic inorganic substances in the environment that are representative
of the region surrounding the site and not attributable to an identifiable
release.
(2) "Applicant" means a
person who has applied to participate in the Voluntary Environmental
Remediation Program in accordance with
KRS
224.01-514.
(3) "Application" means Application to Enter
the Voluntary Environmental Remediation Program, DEP Form 6059 (October 22,
2003), including any additions, revisions, or modifications and any narrative
and drawings.
(4) "Contaminant of
concern" means a hazardous substance or petroleum that is sufficiently present
in frequency and concentration in the environment to require further evaluation
of human and ecological health effects.
(5) "Industrial" means a type of property not
used for residential purposes or for other purposes with a similar potential
for human exposure.
(6) "Notice of
completion" means a letter from the cabinet to the person indicating that the
person has satisfactorily completed the requirements of
KRS
224.01-400(18) and
224.01-405(1)
and Sections 6 through 9 of this administrative regulation.
(7) "Party" means a person as defined in
KRS
224.01-010(17) who is:
(a) Conducting remediation in accordance with
KRS
224.01-400(18) or
224.01-405(1),
who is seeking a notice of completion from the cabinet; or
(b) Conducting remediation in accordance with
KRS
224.01-400(18) or
224.01-405(1),
and seeking a no further remediation letter in accordance with
KRS 224.01-450 to
224.01-465.
(8) "Region 9 PRGs" means the U.S. EPA Region
9 Preliminary Remediation Goals, (October 1, 2002) used in accordance with the
U.S. EPA Region 9 Preliminary Remediation Goals Table User's Guide/Technical
Background Document (October 1, 2002).
(9) "Residential" means a type of property
used:
(a) As a residence or dwelling,
including a house, apartment, or condominium; or
(b) For other purposes with a similar
potential for human exposure.
(10) "Target risk" means an excess cancer
risk of one in one million for carcinogenic end-points and a hazard index of
1.0 for noncancer endpoints.
(11)
"Voluntary Environmental Remediation Program" (VERP) means the process for site
remediation established in this administrative regulation and
KRS 224.01-510 to
224.01-532.
Section 2. Applicability. This administrative
regulation shall govern remediation pursuant to
KRS
224.01-400(18)-(21),
224.01-405(1), 224.01-450 to 224.01.465, and 224.01-510 to
224.01-532.
Section 3. Eligibility
(1) A notice of completion, a no further
remediation letter, or a covenant not to sue shall be issued by the cabinet
only for those sites at which remediation is conducted under cabinet oversight
or is otherwise approved by the cabinet.
(2) Upon approval of a remediation done in
accordance with
KRS 224.01-400 or
224.01-405 and
Sections 6 through 9 of this administrative regulation, the cabinet shall issue
a notice of completion to the person.
(3) Upon approval of a remediation done in
accordance with
KRS 224.01-450 to 465
and Sections 6 through 9 of this administrative regulation, the cabinet shall
issue a no further remediation letter to the eligible public entity.
(4) Eligible participants seeking a covenant
not to sue from the cabinet shall apply to enter the Voluntary Environmental
Remediation Program. Upon approval of a remediation done in accordance with
KRS 224.01-510 to
224.01-532 and
Sections 5 through 9 of this administrative regulation, the cabinet shall issue
a covenant not to sue to the applicant.
(5) A person conducting characterization and
remediation, with or without cabinet oversight as provided by
KRS
224.01-400(19), shall have
all the options of
KRS 224.01-400 and of
this administrative regulation.
Section 4. Initial Property Screening.
(1)
KRS 224.01-530
establishes the Region 9 PRGs as screening values. Contamination on a property
that does not exceed the residential value in the Region 9 PRGs and does not
otherwise require action under
KRS 224.01-400 or
224.01-405, shall not
rise to a level of concern under
KRS
224.01-530.
(2) Contamination on a property which exceeds
the residential value but does not exceed the industrial value in the Region 9
PRGs and does not otherwise require action under
KRS 224.01-400 or
224.01-405, shall not
rise to a level of concern under
KRS 224.01-530 if the
property is restricted in use to industrial use by a deed instrument in the
property's chain of title that industrial exposures have been assumed at the
site and is recorded with the county clerk for the county in which the property
exists.
(3) The cabinet shall not
issue a covenant not to sue for sites described by subsections (1) and (2) of
this section unless the owner of the property applies to the Voluntary
Environmental Remediation Program and complies with Sections 5 through 9 of
this administrative regulation.
(4)
The cabinet may require further characterization and remediation of any release
pursuant to and in compliance with all applicable statutes and regulations
regardless of the application of subsections (1) and (2) of this
section.
Section 5.
Application. In order to enter into the Voluntary Environmental Remediation
Program an applicant shall submit to the cabinet:
(1) A completed "Application to Enter
Voluntary Environmental Remediation Program," DEP Form 6059, October 22,
2003;
(2) The tear sheet for the
public notice required by
KRS
224.01-514(3)(d);
(3) A site characterization plan prepared in
accordance with Section 6 of this administrative regulation; and
(4) A nonrefundable application fee, if
required by
KRS
224.01-514(3).
Section 6. Site Characterization Plan. The
party or applicant shall submit to the cabinet a site characterization plan
that complies with
KRS 224.01-400(18) to
(21) or
224.01-405(1)
and Section 7(2) of this administrative regulation, and shall include:
(1) To the extent known or reasonably
obtained, the location and ownership of the property and site; the history of
the use of the property and site, surrounding land use and ownership;
information regarding the circumstances surrounding known or suspected releases
at the property and site, including the types of hazardous substances or
petroleum released, approximate volumes or amounts of releases, and actions
taken in response to known or suspected releases to date;
(2) The site conditions and physical setting
including soils, groundwater, geology, and other pertinent features; a 7.5
minute USGS topographic quadrangle map or the appropriate part of this map
indicating the location of the property, a 7.5 minute USGS geological
quadrangle map or the appropriate part of such a map indicating the location of
the property; and a base map, at an appropriate scale, accuracy, and detail
depicting property lines, surrounding land ownership and uses, significant
structures and infrastructure; and significant environmental or geological
features;
(3) A soil sampling plan
to identify and characterize the horizontal and vertical extent of
contamination and the variation in types and concentrations of hazardous
substances and petroleum sufficient to support selection of remediation options
for the site;
(4) A plan to
determine whether a groundwater assessment is necessary;
(5) A plan to determine whether air quality,
surface water and its associated sediments, or terrestrial or aquatic habitat
have been affected by a release;
(6) A plan to determine whether an ecological
risk assessment is necessary;
(7) A
statement specifying that sample collection and analysis requirements, quality
assurance, and quality control will be met in accordance with "Test Methods for
Evaluating Solid Wastes: Physical Chemical Methods (EPA Publication No. SW-846)
Third Edition"; and
(8) A proposed
schedule for implementation of the characterization plan and submittal of a
site characterization report.
Section
7. Site Characterization and Site Characterization Report.
(1) The party or applicant shall conduct a
site characterization that complies with the site characterization plan, as
required in Section 6 of this administrative regulation.
(2) The party or applicant shall submit a
site characterization report that includes:
(a) A list of the contaminants of concern at
the site that complies with the following requirements:
1. The party or applicant shall identify
contaminants of concern at the site using the Region 9 PRGs;
2. In identifying contaminants of concern the
party or applicant shall consider the following:
a. The frequency of detection of the
contaminants;
b. The effects on
human health due to the interaction between contaminants, including additivity.
Additivity of contaminants of concern shall be evaluated using the screening
index described in the "U.S. EPA Region 9 Preliminary Remediation Goals Table
User's Guide/Technical Background Document (October 1, 2002)";
c. Ambient background conditions, including
ambient background based on generic statewide ambient background levels as
presented in Table 2 of the Kentucky Guidance for Ambient Background
Assessment, or site-specific ambient background conditions determined in
accordance with the Kentucky Guidance for Ambient Background Assessment;
and
d. Any other applicable
requirements; and
3. A
person conducting characterization and screening with or without cabinet
oversight as provided by
KRS
224.01-400(19), may use
Region 9 PRGs to screen sites and identify contaminants of concern, as
described in
KRS
224.01-530(1). However, the
cabinet shall not approve the adequacy of the Region 9 PRGs without review of
site-specific conditions;
(b) A determination of the extent of the
contamination in all media impacted by contaminants of concern including:
1. The horizontal and vertical extent of
contamination in soils;
2. The
results of the determination of whether a groundwater assessment is necessary,
conducted in accordance with the "Kentucky Guidance for Groundwater Assessment
Screening", or other method selected by the party or applicant and approved by
the cabinet;
3. The results of the
determination of whether air quality, surface water and its associated
sediments, or terrestrial or aquatic habitat have been affected by a release,
and the extent of the effect of the release on these media; and
(c) A determination by way of
screening or risk assessment, as appropriate, of the human health and
ecological risks posed by contamination at the site or resulting from the site:
1. Human health risk assessments shall comply
with the "Risk Assessment Guidance for Superfund: Volume 1, Human Health
Evaluation Manual, Part A, Part B, and Part C"; and
2. Ecological risk assessments shall be
conducted in accordance with "Ecological Risk Assessment Guidance for
Superfund: Process for Designing and Conducting Ecological Risk Assessments
(1997)", and "Guidelines for Ecological Risk Assessment (1998)".
Section 8.
Corrective Action Plan.
(1) The party or
applicant shall submit a corrective action plan to the cabinet that addresses
contaminants of concern in impacted media, and unacceptable ecological risks.
The corrective action plan shall contain a proposed schedule for implementation
of the corrective action.
(2) A
person conducting corrective action pursuant to
KRS
224.01-400(19) may use the
Region 9 PRGs in order to identify final remediation goals. However, the
cabinet shall not approve the adequacy of the Region 9 PRGs as final
remediation goals without review of site-specific conditions.
(3) The corrective action plan shall employ
one (1) of the following options:
(a) No
action necessary.
1. No action is necessary in
accordance with
KRS
224.01-400(18)(a) if the
party or applicant:
a. Demonstrates to the
cabinet that the risk posed by contaminants of concern does not exceed target
risk levels for unrestricted land use and does not exceed ecological risk
endpoints in accordance with "Ecological Risk Assessment Guidance for
Superfund: Process for Designing and Conducting Ecological Risk Assessments
(1997)" and "Guidelines for Ecological Risk Assessment (1998)"; or
b. Demonstrates to the cabinet that organic
contaminants of concern do not exceed target risk levels for unrestricted land
use and inorganic contaminants of concern do not exceed ambient background
levels for the respective media. Contaminants of concern shall not exceed
ecological risk endpoints in accordance with "Ecological Risk Assessment
Guidance for Super-fund: Process for Designing and Conducting Ecological Risk
Assessments (1997)" and "Guidelines for Ecological Risk Assessment
(1998)".
2. The party's
or applicant's attempt to demonstrate that no action is necessary to protect
human health, safety and the environment may include demonstrations by the
party or applicant that the remaining organic constituents in soil are
naturally occurring or are not attributable to an identifiable
release.
3. The party's or
applicant shall consider any applicable requirements when demonstrating no
action is necessary.
4. Region 9
PRGs may be used as the final remediation goals for human health at sites:
a. That do not have multiple contaminants of
concern that result in an additive risk above the target risk level. Additivity
of contaminants of concern shall be evaluated using the screening index
described in the "U.S. EPA Region 9 Preliminary Remediation Goals Table User's
Guide/Technical Background Document (October 1, 2002)"; and
b. For which the assumptions used in
developing the Region 9 PRGs are applicable.
(b) Management in place.
KRS
224.01-400(18)(b) shall
apply to sites where the party or applicant will manage releases in place. The
goal of management in place shall be to attain target risk levels at the point
of exposure, and be protective of ecological health.
1. Management of the release shall include
engineering and institutional controls amounting to containment of the release,
and either elimination of exposure pathways, or reduction of
exposure.
2. The party or applicant
shall consider current and proposed land use in selecting the remedy. Proposed
land use shall not be in conflict with local zoning codes and other applicable
ordinances.
3. The party or
applicant shall describe to the cabinet the method for maintenance of
engineering and institutional controls, including:
a. Annual (or other approved frequency)
inspections of the engineering and institutional controls, as approved by the
cabinet in the corrective action plan;
b. Annual (or other approved frequency)
certification to the cabinet that the engineering and institutional controls
remain protective of human health, safety and the environment; and
c. A deed instrument containing an
enforceable restrictive covenant which is transferable and is binding on
current and subsequent property and recorded with the county clerk for the
county in which the property exists. A copy of the restrictive covenant shall
be filed with the cabinet.
4. If the target risk levels at the point of
exposure will not be achieved by the proposed remedy, the party or applicant
shall demonstrate to the cabinet the protectiveness of the remedy using the
criteria listed in clauses a through h of this subparagraph. The cabinet shall
place emphasis on criteria listed in clauses a through d of this subparagraph
when evaluating the remedy selected.
a. The
overall protection of human health and the environment;
b. The compliance with any other applicable
requirements;
c. The long-term
effectiveness and permanence of the remedial option;
d. The reduction of toxicity, mobility, or
volume through the use of treatment;
e. The short-term effectiveness of the
remedy;
f. The ability to implement
the remedy;
g. The cost of the
remedy; and
h. Community acceptance
of the remedy.
5. If the
proposed remedy will not achieve target risk levels at the point of exposure
the party or applicant shall provide a public notice of the remedy, including a
summary of the contamination at the site, the remedial actions taken, and the
residual risks associated with the site. The cabinet shall receive public
comments on the proposed remedy for at least thirty (30) days following
publication of the notice. For VERP participants, the public notice and comment
period required by
KRS 224.01-524 shall
serve as the required public notice.
(c) Restoration.
KRS
224.01-400(18)(c) shall
apply to sites where the party or applicant restores the environment through
removal of the contaminants of concern to ambient background levels, target
risk levels at the point of exposure, or levels derived from a site-specific
risk assessment approved by the cabinet, that do not require engineering or
institutional controls.
(d)
Combination of options. The party or applicant shall have the option to employ
a combination of the remedial options described in this
section.
(4) The cabinet
shall review and approve or disapprove the corrective action plan pursuant to
KRS 224.01-522 or
224.01-400(22),
as applicable.
Section 9.
Corrective Action Completion Report.
(1) The
party or applicant shall submit to the cabinet a corrective action completion
report.
(2) The corrective action
completion report shall include:
(a)
Documentation that the corrective actions implemented comply with the
corrective action plan approved by the cabinet;
(b) Documentation of the completion of all
the activities specified in the corrective action plan required in Section 7 of
this administrative regulation, including documentation of any modification
from the approved corrective action plan, documentation of the weight, volume,
and classification of any material removed as part of the corrective action,
copies of signed manifests and any other pertinent waste disposal forms,
sampling procedures used for waste profile determination and restoration
conformation, results from any confirmatory sampling and copies of all
laboratory analytical reports, and information regarding backfill material,
where it was obtained, and any attendant analytical results;
(c) Documentation of all engineering and
institutional controls implemented to contain the release, eliminate pathways
of exposure, reduce exposure, or achieve a combination thereof; and
(d) A statement signed by the party or
applicant certifying that the document and all attachments were prepared under
the party or applicant's direction or supervision, and the information
submitted is, to the best knowledge of the party or applicant, true, accurate,
and complete.
(3) The
cabinet shall review and approve or disapprove the corrective action completion
report pursuant to
KRS 224.01-522 or
224.01-400(22),
as applicable.
Section
10. Incorporation by Reference.
(1) The following material is incorporated by
reference:
(a) "Application to Enter Voluntary
Environmental Remediation Program", DEP Form 6059, November 2016;
(b) "U.S. EPA Region 9 Preliminary
Remediation Goals, and the Region 9 PRGs Table User's Guide/Technical
Background Document", October 1, 2002;
(c) "Kentucky Guidance for Ambient Background
Assessment", January 8, 2004;
(d)
"Kentucky Guidance for Groundwater Assessment Screening", January 15,
2004;
(e) "Ecological Risk
Assessment Guidance for Superfund: Process for Designing and Conducting
Ecological Risk Assessments Interim Final", U.S. EPA Environmental Response
Team, Edison, NJ, 1997;
(f)
"Guidelines for Ecological Risk Assessment", U.S. EPA Risk Assessment Forum,
Washington, DC. EPA/630/R-95/002F, 1998;
(g) "SW-846 Test Methods for the Evaluation
of Solid Waste, Physical/Chemical: Methods, Third Edition, Integrated Version",
June 1997;
(h) "Risk Assessment
Guidance for Superfund: Volume 1, Human Health Evaluation Manual, Part A,
Interim Final Version", December 1989;
(i) "Risk Assessment Guidance for Superfund:
Volume 1, Human Health Evaluation Manual, Part B, Development of Risk-based
Preliminary Remediation Goals, Interim Version", December 1991; and
(j) "Risk Assessment Guidance for Superfund:
Volume 1, Human Health Evaluation Manual, Part C, Risk Evaluation of Remedial
Alternatives, Interim Version", October 1991.
(2) This material may be inspected, copied,
or obtained, subject to applicable copyright law, at the Division of Waste
Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716,
Monday through Friday, 8 a.m. to 4:30 p.m., Eastern time, excluding state
holidays, or from the Web site at eec.ky.gov/environmental-protection/waste.
STATUTORY AUTHORITY:
KRS
224.10-100(30),
224.40-100,
224.01-400(2),
224.01-405(2),
224.01-530(2),
224.01-532