Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
224.1-010,
224.1-400,
224.1-405,
224.1-415,
KRS Chapter 322, KRS Chapter 322A, 40 C.F.R. Part 312
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
224.1-415 authorizes the Brownfield
Redevelopment Program and authorizes the cabinet to implement the program. This
administrative regulation establishes application procedures for a person who
owns or intends to acquire property as defined in
401 KAR
102:005, Section 1(8). This administrative regulation
also establishes the process and procedures for obtaining the cabinet's
determination for the applicability of
KRS
224.1-415 for a person who owns or intends to
acquire property as defined in
401 KAR
102:005, Section 1(8).
Section 1. Application Procedures. An
applicant shall submit to the cabinet a complete application that consists of
the following:
(1) A notarized Brownfield
Liability Relief Eligibility Form, DEP 6056. This form shall be signed by the
applicant and include a certification of the requirements in
KRS
224.1-415(2)(a);
(2) A copy of the most recently recorded deed
for the property;
(3) A property
management plan as established in
401
KAR 102:020;
(4) A check or money order for $2,500 made
payable to the Kentucky State Treasurer; and
(5) Documentation that the applicant made an
all appropriate inquiry into previous ownership and uses of the property prior
to the acquisition of the property.
(a) For
property acquired after February 1, 2014, documentation that an all appropriate
inquiry was conducted in accordance with 40 C.F.R. Part 312 within 180 days
prior to submission of the application; or
(b) For property acquired prior to February
1, 2014, documentation that:
1. An all
appropriate inquiry was conducted in accordance with generally accepted
practices when the property was acquired; and
2. An all appropriate inquiry was conducted
in accordance with 40 C.F.R. Part 312 within 180 days prior to submission of
the application.
Section 2. Cabinet Review and Notification.
Within thirty (30) days of receipt of an application, the cabinet shall issue
in writing to the applicant:
(1) A Notice of
Eligibility, in accordance with Section 3 of this administrative
regulation;
(2) A Notification of
Concurrence, in accordance with Section 4 of this administrative regulation and
as provided by
KRS
224.1-415(2)(b);
or
(3) A notice from the cabinet
that:
(a) The application is administratively
incomplete; or
(b) A final
determination has been made that the application does not meet the provisions
of
KRS
224.1-415.
Section 3. Notice of Eligibility.
(1) An applicant who has met the requirements
for the Notification of Concurrence in Section 4(1) of this administrative
regulation with the exception of holding legal title to the property shall
receive a Notice of Eligibility. The Notice of Eligibility shall serve as
documentation that the applicant has met the requirements for the Notification
of Concurrence with the exception of holding legal title to the
property.
(2) The Notice of
Eligibility shall remain in effect for a period of 180 days from the date the
all appropriate inquiry, submitted pursuant to Section 1(5)(a) of this
administrative regulation, was conducted.
(3) The cabinet may extend the Notice of
Eligibility's expiration date. Upon receipt of an updated all appropriate
inquiry conducted pursuant to 40 C.F.R. Part 312 that does not alter the
cabinet's finding or concurrence, the cabinet shall establish a new expiration
date. The new expiration date shall not be greater than one (1) year from the
date the all appropriate inquiry, submitted pursuant to Section 1(5)(a) of this
administrative regulation, was conducted.
(4) The Notice of Eligibility that has not
expired shall have the effect of a Notification of Concurrence letter upon the
applicant obtaining legal title to the property until the applicant receives
from the cabinet a Notification of Concurrence letter or denial of a
Notification of Concurrence letter in accordance with subsection (6) of this
section.
(5) The applicant who has
a Notice of Eligibility that has not expired shall, upon obtaining legal title
to the property, submit to the cabinet a copy of the recorded deed for the
property, identifying the applicant as the owner of the property within sixty
(60) business days of the deed being filed in the county clerk's
office.
(6) The cabinet shall,
within fourteen (14) business days of the cabinet's receipt of the
documentation required in subsection (5) of this section, issue or deny a
Notification of Concurrence as provided in Section 2(2) or (3) of this
administrative regulation to an applicant previously issued a Notice of
Eligibility letter.
Section
4. Notification of Concurrence.
(1) The Notification of Concurrence shall be
issued to an applicant who has met the conditions in Section 1 of this
administrative regulation and
KRS
224.1-415.
(2) The Notification of Concurrence shall
state:
(a) The cabinet concurs that the
intended future use of the property will not interfere with the remediation of
the release of petroleum, a hazardous substance, or pollutant or contaminant as
required by the cabinet, increase the impacts of the release of petroleum, a
hazardous substance, or pollutant or contaminant on human health or the
environment, or expose the public and environment to unacceptable harm;
and
(b) The cabinet finds that the
applicant shall not be liable for performing characterization, correcting the
effects of the release of petroleum, a hazardous substance, or pollutant or
contaminant on the environment, or performing corrective action pursuant to
KRS
224.1-400 or
224.1-405.
(3) An applicant who has received a
Notification of Concurrence shall:
(a) Comply
with the provisions of
KRS
224.1-415; and
(b) Manage the property in accordance with
the cabinet approved property management plan and the most recent amendments to
the property management plan approved by the cabinet.
Section 5. Discovered Releases.
(1) The Notification of Concurrence shall
apply to all releases of petroleum, a hazardous substance, or pollutant or
contaminant certified by the applicant in the application and in future
notifications submitted pursuant to subsection (2) of this section.
(2) If a release or evidence of a previously
suspected release of petroleum, a hazardous substance, or pollutant or
contaminant is discovered subsequent to acquisition of the property by an
applicant who has been issued a Notice of Eligibility or a Notification of
Concurrence, the applicant shall:
(a) Notify
the Division of Waste Management in writing of the presence of the release
within fourteen (14) business days of the release discovery; and
(b) If the release was not certified in the
application and was not caused by the applicant, notify the Division of Waste
Management in writing that the information submitted as part of the application
in Section 1(1) of this administrative regulation is also applicable to the
discovered release.
(3)
If the applicant who was previously issued a Notice of Eligibility receives a
letter denying a Notification of Concurrence in accordance with Section 3(6) of
this administrative regulation, then the notification requirements in
subsection (2) of this section shall no longer be applicable.
(4) All releases of petroleum, hazardous
substances, or pollutants or contaminants caused by the applicant shall be
addressed by the applicant in accordance with the applicable local, state, or
federal law.
Section 6.
Change in Property Use. Subsequent to a Notification of Concurrence, the
applicant shall provide written notice to the Division of Waste Management if a
change in property use is proposed that is different from the property use
identified in the approved property management plan.
Section 7. Rescission of Notification. The
director of the Division of Waste Management may rescind or modify in writing
the Notice of Eligibility and the Notification of Concurrence if the applicant
is not in compliance with Section 4(3) of this administrative regulation. The
director of the Division of Waste Management shall rescind in writing the
Notice of Eligibility and the Notification of Concurrence if the cabinet
determines that the applicant submitted a false certification as part of its
application package.
Section 8.
Compliance with Other Laws. Nothing in this administrative regulation alters in
any way any other legal obligations the applicant would be subject to pursuant
to any local, state, or federal law.
Section
9. Incorporation by Reference.
(1) "Brownfield Liability Relief Eligibility
Form", DEP 6056, November 2016, is incorporated by reference.
(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, Monday through
Friday, 8:00 a.m. to 4:30p.m. This material may also be obtained on the
division's Web site at eec.ky.gov/environmental-protection/waste.
STATUTORY AUTHORITY:
KRS
224.1-415