Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO: KRS 146.200-146.990, 224.01, 224.10, 224.40,
224.50, 224.70, 224.99,
16 U.S.C.
661 et seq., 1273 et seq., 1531 et seq., 50
C.F.R. Part 402
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires
the cabinet to adopt administrative regulations for the management, processing,
and disposal of special wastes.
KRS
224.40-305 requires persons who establish,
construct, operate, maintain or permit the use of a waste site or facility to
obtain a permit. This chapter establishes the permitting standards for special
waste sites or facilities, and the operating standards applicable to all
special waste sites or facilities. This administrative regulation establishes
the procedures for obtaining a permit for a special waste site or
facility.
Section 1. The Objective and
Requirements of the Application for a Special Waste Formal Permit. All
applicants for a special waste formal permit shall submit an application, on
the designated application form, that contains all of the information specified
in this administrative regulation. The applicant shall submit the application
on a form approved by the cabinet and signed in accordance with Section 10 of
this administrative regulation. Engineering drawings, specifications and
studies shall be certified by a professional engineer registered in Kentucky.
The contents of the application shall be accurate and complete before the
cabinet makes a preliminary determination to issue a special waste formal
permit.
Section 2. Scope of the
Permit Requirements.
(1) Except as otherwise
provided in this section, any person managing special waste shall maintain a
special waste site or facility permit as specified in Section 2 of
401 KAR
45:020.
(2) Specific exclusions.
(a) The disposal of mining overburden, coal
mining wastes, refuse, and coal mining by-products returned to the mine site of
generation, including any nonhazardous waste generated directly as a result of
the mining operation, shall not require a special waste site or facility
permit. Owners or operators disposing of the materials in this subsection shall
obtain and be regulated by the appropriate permit issued pursuant to KRS
Chapter 350.
(b) Persons managing
special waste during emergency situations such as:
1. A spill of a special waste;
2. An imminent and substantial threat of a
spill of special waste; or
3. A
spill of a material which, when spilled, becomes a special waste.
(3) Specific inclusions.
(a) Owners and operators of sites or
facilities with permits under other programs for certain aspects of the
facility operation shall also obtain the required special waste site or
facility permit.
(b) Any person who
initiates or continues special waste containment or disposal activities after
emergency situations are taken shall be subject to all applicable requirements
of this chapter for those activities.
(4) Permits for less than an entire facility.
The cabinet may issue or deny a permit for one (1) or more units at a facility
without simultaneously issuing or denying a permit to all of the units at the
facility. A permit-by-rule for any unit for which a permit has not been issued
or denied shall not be affected by the issuance or denial of a permit to any
other unit at the facility.
Section
3. Considerations of State and Federal Law. Permits shall be
issued in a manner and shall contain conditions consistent with requirements of
applicable state and federal laws. These laws include but are not limited to:
(1)
16 USC
661 et seq. (the Fish and Wildlife
Coordination Act of 1958, as amended);
(2)
16 USC
1273 et seq. (the National Wild and Scenic
Rivers System);
(3)
16
USC 1531 et seq. (the Endangered Species Act
of 1983, as amended) and 50 CFR Part 402 ;
(4)
KRS 146.200 to
146.360 and 401 KAR
Chapters 4 and 5 (the Wild Rivers System); and
(5)
KRS
146.410 to
146.990 and KAR Title
400 (the Nature Preserves System).
Section 4. Limitations of a Permit.
(1) A permit may be modified or revoked
during its term for cause as set forth in
401
KAR 45:040 and in 401 KAR Chapter 40.
(2) The issuance of a permit shall not convey
any property rights or any exclusive privilege.
(3) The issuance of a permit shall not
authorize any injury to persons or property or invasion of other private
property rights, or any infringement of state or local laws or administrative
regulations.
Section 5.
Prohibition of Use of Unpermitted Facilities. No person shall deliver, or cause
to be delivered, special waste to a site or facility unless the owner or
operator has:
(1) Submitted a notice to the
cabinet in accordance with Section 4(1) of
401 KAR
45:020 as an existing waste site or facility in
operation on or before June 24, 1992;
(2) Qualified for a permit-by-rule in
accordance with
401 KAR
45:060;
(3) Qualified for a registered permit-by-rule
in accordance with
401 KAR
45:070 or
401 KAR
45:100;
(4) Obtained a solid waste facility permit
providing for the disposal of special waste in accordance with 401 KAR Chapters
47 and 48; or
(5) Obtained a
special waste formal permit in accordance with this
chapter.
Section 6.
Permit Required.
(1) No person shall engage in
the management, processing, or disposal of special waste at a waste site or
facility without first obtaining a permit from the cabinet as specified in this
chapter.
(2) No person shall engage
in the management, processing, or disposal of special waste and solid waste
without first obtaining a permit from the cabinet as specified in 401 KAR
Chapters 47 and 48.
(3) No person
shall engage in the management, processing, or disposal of special waste and
hazardous waste without first obtaining a permit from the cabinet as specified
in 401 KAR Chapters 31 to 39.
(4)
An owner or operator shall maintain a valid permit during the active life of
the special waste site or facility, including the closure and postclosure
periods required under
401 KAR
45:100 and
401
KAR 45:110.
Section 7. New Special Waste Sites or
Facilities.
(1) No person shall begin
physical construction of a new special waste site or facility without having
received a special or solid waste permit.
(2) An applicant for a special waste formal
permit shall submit to the cabinet an application that contains the information
specified in Section 8 of this administrative regulation.
(3) The site shall be designed in accordance
with the applicable requirements of this chapter.
(4) If the cabinet determines during the
review of the application that the proposed site cannot meet the requirements
of this chapter, the cabinet shall deny the permit.
(5) The cabinet shall make a preliminary
determination to issue or deny an application for a special waste formal permit
within 180 calendar days from initial receipt of the application.
(6) If the application is incomplete, the
cabinet shall notify the applicant in writing of the deficiencies. Failure to
submit any required information noted by the cabinet within ninety (90)
calendar days of receipt of the deficiencies may be grounds for denial of the
application. Periods of deficiency correction shall not be counted against the
review time frame specified in subsection (5) of this
section.
Section 8.
Application for a Special Waste Formal Permit.
(1) Any person who is required to have a
special waste site or facility permit under this chapter shall sign and submit
a complete application to the cabinet. The application forms are:
(a) Persons applying for a special waste
landfill permit shall use form DEP 7094A entitled "Application For A Special
Waste Landfill Permit" (November 2016). The requirements contained in the
special waste landfill permit application are incorporated in this
administrative regulation by reference. The cabinet may require that additional
information be included in the application to ensure that a draft permit
conforms with the requirements of this chapter. The permit application form may
be obtained from the Division of Waste Management, 300 Sower Boulevard,
Frankfort, Kentucky 40601, (502) 564-6716, between the hours of 8 a.m. to 4:30
p.m., Eastern Time, Monday through Friday, or from the Web site at
eec.ky.gov/environmental-protection/waste;
(b) Persons applying for a special waste
landfarming facility permit shall use form DEP 7021A entitled "Notice of Intent
to Apply for a Special Waste Landfarming or Composting Permit" (November 2016),
and form DEP 7021B entitled "Application for a Special Waste Landfarming
Facility Permit" (November 2016). The requirements contained in forms DEP 7021A
and DEP 7021B are incorporated in this administrative regulation by reference.
Additional information may be required by the cabinet to ensure that a draft
permit conforms to the requirements of this chapter. The permit application
forms may be obtained from the Division of Waste Management, 300 Sower
Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, between the hours of 8
a.m. to 4:30 p.m., Eastern Time, Monday through Friday, or from the Web site at
eec.ky.gov/environmental-protection/waste; and
(c) Persons applying for a special waste
composting facility permit shall use form DEP 7021A entitled "Notice of Intent
to Apply for a Special Waste Landfarming or Composting Permit" (November 2016),
and form DEP 7094D entitled "Application for a Special Waste Composting
Facility Permit" (November 2016). The requirements contained in forms DEP 7021A
and DEP 7094D are incorporated in this administrative regulation by reference.
Additional information may be required by the cabinet to ensure that a draft
permit conforms to the requirements of this chapter. The permit application
forms may be obtained from the Division of Waste Management, 300 Sower
Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, between the hours of 8
a.m. to 4:30 p.m., Eastern Time, Monday through Friday, or from the Web site at
eec.ky.gov/environmental-protection/waste.
(2) Alternative application information may
be used only after approval by the cabinet upon a demonstration by a qualified
registered professional engineer in accordance with
401 KAR 30:020
that the alternative information results in information equal to or better than
that in this administrative regulation to determine that the site and design
comply with
401 KAR
30:031 and this chapter.
(3) Persons applying for a special waste
formal permit shall submit to the cabinet, as part of the application, form DEP
7094J entitled "Past Performance Information" (November 2016). The requirements
contained in form DEP 7094J are incorporated in this administrative regulation
by reference. The past performance information is collected in accordance with
the requirements of
KRS
224.40-330(1) and (3). The
information form may be obtained from the Division of Waste Management, 300
Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, between the hours
of 8 a.m. to 4:30 p.m., Eastern Time, Monday through Friday, or from the Web
site at eec.ky.gov/environmental-protection/waste.
(4) The cabinet shall not begin the
processing of a formal permit application until the applicant has fully
complied with the application requirements for a permit pursuant to this
administrative regulation,
401 KAR
45:100 or
401
KAR 45:110, and
401
KAR 45:160.
(5) Upon completing the review, the cabinet
shall notify the applicant in writing whether the application is complete or
incomplete. If the application is incomplete, the cabinet shall list the
information necessary to make the application complete. If the application is
for an existing waste site or facility, the cabinet shall specify in the notice
of deficiency a date for submitting the necessary information. The cabinet
shall notify the applicant in writing when the application is deemed complete
after receiving any required additional information. The notification of
completeness shall also contain any public notice required under Section 4 of
401
KAR 45:050.
(6) If an applicant fails or refuses to
correct deficiencies in the application or submit additional information, the
permit shall be denied and, if applicable, enforcement actions taken under the
appropriate statutory regulatory provisions.
(7) If the cabinet determines that a site
investigation or visit is necessary for any reason in conjunction with the
processing of an application, the applicant or an authorized representative of
the applicant shall accompany the cabinet representative on a site
investigation or visit if requested by the cabinet.
(8) The cabinet may require such additional
information as it deems necessary in order to make a final determination to
issue a permit or deny the permit application.
Section 9. Formal Permit Issuance.
(1) The cabinet shall make a preliminary
determination to issue or deny the permit application after review of the
complete application. In making this preliminary determination, the cabinet
shall consider the requirements specified in this chapter and KRS Chapter
224.
(2) If the cabinet makes a
preliminary decision to deny the permit application, it shall issue a notice of
intent to deny. A notice of intent to deny the permit application shall be
subject to the public information process as specified in
401
KAR 45:050. If the cabinet's final decision reverses
the preliminary decision to deny the permit application, the cabinet shall
withdraw the notice of intent to deny and proceed to prepare a draft permit
under subsection (3) of this section.
(3) If the cabinet makes a preliminary
determination to issue the permit, a draft construction permit shall be
prepared containing the following information:
(a) The proposed design and specifications;
and
(b) Any conditions in
accordance with Section 2 of
401 KAR
45:140.
(4) The draft construction permit shall be
based on the administrative record outlined in Section 3 of
401
KAR 45:050.
(5) All draft construction permits prepared
by the cabinet under this section, including those applications for horizontal
expansions under Section 1 of
401
KAR 45:040, shall be subject to the public information
process as specified in
401
KAR 45:050.
(6) After the close of the public comment
period, the cabinet shall issue a final permit decision to issue or deny the
construction permit.
(7) A final
permit decision shall become effective on the date of issuance of the
construction permit by the cabinet.
(8) The cabinet shall document the
disposition of significant comments received, and, within thirty (30) days of a
final permit decision, make this documentation available to the public by
supplying it to the repository established in the county in which the facility
is proposed.
(9) The cabinet shall
issue a construction permit if it finds that the applicant for the permit has
met all the requirements for application and the requirements of this chapter
and KRS Chapter 224.
(10) The
applicant shall maintain a construction permit in full force and effect until
the construction/operation permit is issued by the cabinet.
(11) A construction/operation permit shall be
issued by the cabinet when:
(a) The applicant
has notified the cabinet, in writing, that the liner system, if required, has
been constructed; and
(b) A
representative of the cabinet has inspected the site and verified in writing,
within thirty (30) days of the inspection, that the site has been developed in
accordance with plans approved by the cabinet;
(c) The required financial responsibility in
401
KAR 45:080 for closure has been established using any
of the mechanisms required by
401
KAR 45:080 in an amount determined by an approved
closure plan and cost estimate; and
(d) The applicant has submitted a
certification by an engineer registered in Kentucky that the liner system, if
required, and other features have been constructed in accordance with the
approved plans and specifications.
(12) The cabinet may issue a permit subject
to specific conditions which include, but are not limited to, types of wastes
which may be accepted or disposed, special operating conditions, schedules for
compliance for corrective action, and the issuance of other applicable permits
of the cabinet.
Section
10. Signatures to Permit Applications and Reports.
(1) Applications. All permit applications and
modifications shall be signed as follows:
(a)
For a corporation, by a responsible corporate officer. For the purpose of this
section, a responsible corporate officer means:
1. A president, secretary, treasurer, or
vice-president of the corporation in charge of a principal business function,
or any other person who performs similar policy or decision-making functions
for the corporation;
2. The manager
of one (1) or more manufacturing, production, or operating facilities employing
more than 250 persons or having gross annual sales or expenditures exceeding
$25 million; or
3. A person who,
pursuant to a corporation resolution, is designated to act on behalf and bind
the corporation on all matters relating to permit applications and
modifications. A copy of the corporation resolution shall be submitted to the
cabinet attached to the permit application or modification.
(b) For a partnership or sole
proprietorship, by a general partner or the proprietor, respectively;
(c) For a limited partnership, by a general
partner; or
(d) For a municipality
or state, federal, or other public agency, by a principal executive officer.
For purposes of this paragraph, a principal executive officer includes:
1. The ranking elected official;
2. The chief executive officer of the
agency;
3. A senior executive
officer having responsibility for the overall operation of a principal
geographic unit of the agency; or
4. A person authorized, in writing, to sign
on behalf of a person described in subparagraphs 1, 2, and 3 of this paragraph.
The written authorization shall specify either an individual or a position
having responsibility for the overall operation of the regulated facility or
activity, such as the position of plant manager, superintendent, or a position
of equivalent responsibility. A duly authorized representative must thus be
either a named individual or any individual occupying a named
position.
(2)
Reports. All reports required by permits, and other information requested by
the cabinet, shall be signed by a person described in subsection (1) of this
section, or by a duly authorized representative of that person. A person shall
be a duly authorized representative only if:
(a) The authorization is made in writing by a
person described in subsection (1) of this section;
(b) The authorization specifies either an
individual or a position having responsibility for the overall operation of the
regulated facility or activity, such as the position of plant manager,
superintendent, or position of equivalent responsibility. A duly authorized
representative must thus be either a named individual or any individual
occupying a named position; and
(c)
The written authorization is submitted to the cabinet.
(3) Changes to authorization. If an
authorization under subsection (2) of this section is no longer accurate
because a different individual or position has responsibility for the overall
operation of the facility, a new authorization satisfying the requirements of
subsection (2) of this section shall be submitted to the cabinet prior to or
together with any reports, information, or applications to be signed by an
authorized representative.
(4)
Certification. Any person signing a document under subsection (1) or (2) of
this section shall make the following certification: "I certify under penalty
of law that this document and all attachments were prepared under my direction
or supervision in accordance with a system designed to assure that qualified
personnel properly gathered and evaluated the information submitted. Based on
my inquiry of the person or persons directly responsible for gathering the
information, the information submitted is, to the best of my knowledge and
belief, true, accurate, and complete. I am aware that there are significant
penalties for submitting false information, including the possibility of fine
and imprisonment for such violations."
Section 11. Past Performance Considered in
Review. Past performance of the owner, operator, and key personnel, as defined
in
KRS
224.01-010(44), of the
special waste site or facility shall be considered in the review for issuance
or denial of the permit application and in the determination of any requirement
for specialized conditions in accordance with
KRS
224.40-330(1) and
(3).
Section
12. Term and Expiration of Permits.
(1) Permits-by-rule and registered
permits-by-rule shall be perpetual unless modified or revoked by the cabinet.
Permits-by-rule and registered permits-by-rule may be automatically revoked by
the cabinet if the site or facility fails to meet the requirements of
401 KAR
30:031 or this chapter.
(2) Special waste site or facility
construction permits shall be effective for a fixed term not to exceed five (5)
years.
(3) Special waste landfill
construction/operating permits shall be issued for the anticipated life of the
facility. A shorter period may be specified by the cabinet.
(4) Special waste landfarming facility
construction/operation permits shall be effective for a fixed term not to
exceed ten (10) years. The cabinet shall review the conditions of the permit
after five (5) years and modify the permit as necessary.
(5) For permits issued under this
administrative regulation for a term greater than five (5) years, the cabinet
may reevaluate the terms and conditions of the permit any time prior to the
expiration date of the permit. Issued permits may be reevaluated in accordance
with the requirements of this chapter and KRS Chapter 224, including
reevaluation of the bond. After reevaluation of the permit, the cabinet may
require modifications of the permit pursuant to Section 1 of
401
KAR 45:040.
(6) Modification of term of permit. Except as
provided in Section 14 of this administrative regulation, the term of a permit
shall not be extended by modification beyond the maximum duration specified in
subsections (2) to (4) of this section.
(7) Reduced term of permit. The cabinet may
issue any permit for a duration that is less than the full allowable term under
subsections (2) to (4) of this section.
Section 13. Renewal of Formal Permits.
(1) Any application to renew a construction
or construction/operation permit shall be submitted to the cabinet at least 180
days before the expiration date of the permit. Persons applying for the renewal
of a permit shall use form DEP 7095 entitled "Application for Renewal of a
Formal Permit" (November 2016). The requirements contained in the renewal
application are incorporated in this administrative regulation by reference.
The cabinet may require that additional information be included in the
application to ensure that a renewed permit conforms to the requirements of
this chapter and KRS Chapter 224. The renewal application forms may be obtained
from the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky
40601, (502) 564-6716, between the hours of 8 a.m. to 4:30 p.m., Eastern Time,
Monday through Friday, or from the Web site at
eec.ky.gov/environmental-protection/waste.
(2) Applications to renew a construction or
construction/operation permit shall be subject to a review in accordance with
the requirements of this chapter.
(3) The cabinet, in issuing a renewal, shall
consider whether all conditions of prior permit conditions and agreed orders
have been met. The cabinet may request updated information and impose
additional or modified permit conditions when deemed appropriate.
Section 14. Continuation of
Expiring Permits.
(1) The conditions of an
expired permit shall continue in force to ensure the safe disposal of waste
until the effective date of a new permit if:
(a) The permittee has submitted a timely
application for renewal of a permit under Section 13 of this administrative
regulation. These applications shall be complete and the applicant shall have
paid the appropriate fees due under
401 KAR
45:250;
(b) The cabinet, through no fault of the
permittee, does not issue a new permit with an effective date on or before the
expiration date of the previous permit; and
(c) The cabinet has not given written notice
of permit expiration due to enforcement actions or other reasons.
(2) Effect. Permits continued
under this section shall remain in full force and effect.
Section 15. Termination of Permits. Special
waste site or facility permits shall automatically terminate on the expiration
date unless the cabinet has reissued the permit or issued a continuation in
accordance with Section 14 of this administrative regulation.
Section 16. Confidentiality of Information.
(1) Claims of confidentiality. Any
information submitted to the cabinet pursuant to this chapter may be claimed as
confidential by the applicant. Any such claim shall be asserted at the time of
submission in accordance with
KRS
224.10-210 and
400
KAR 1:060. If no claim is made in accordance with
400
KAR 1:060, the cabinet may make the information
available to the public without further notice.
(2) Denial of claims of confidentiality.
Claims that the name and address of any permit applicant or permittee is
confidential shall be denied.
STATUTORY AUTHORITY:
KRS 224.01-110,
224.10-100,
224.10-210,
224.40-305,
224.40-330,
224.50-760,
16 U.S.C.
661 et seq., 1273 et seq., 1531 et seq., 50
C.F.R. Part 402