Professional Documents
Culture Documents
120am 1
120am 1
6
7
RELATES TO: KRS 224.1, 224.10, 224.50, 224.70, 224.99, Chapter 322, Chapter 322A,
16 U.S.C. 1531, 33 U.S.C. 1251, 42 U.S.C. 82, 40 C.F.R. 257.50-257.106
10
cabinet to promulgate administrative regulations not inconsistent with the provisions of law
11
12
administrative regulations for the management of special wastes. This administrative regulation
13
14
15
16
(1)(a) An owner or operator of a CCR unit shall complete and submit the following to
17
18
19
20
21
(b) Within thirty (30) days of the receipt, as evidenced by the date stamped by the
Division of Waste Management, the cabinet shall review the registration information
4
5
6
7
8
9
10
11
12
changes.
13
2. Within thirty (30) days of receipt, the cabinet shall review the revised registration
14
information in accordance with paragraphs (b) and (c) of this subsection[without the owner
15
16
17
(2) A beneficial use of CCR user shall be deemed to have a permit-by-rule without
having made application with the cabinet, if:
18
(a) The user is not in violation of 401 KAR Chapter 46 or 401 KAR 30:031;
19
(b) The beneficial use of CCR does not present a threat or potential threat to human
20
21
22
1
2
(d) The user characterized the nonhazardous nature of the CCR in accordance with 401
KAR 31:030; and
3
4
(e) The user submits an annual report to the cabinet pursuant to Section 5 of this
administrative regulation.
(b) A person, who does not have a registered permit-by-rule as established in Section
1(1) of this administrative regulation, and intends to construct a CCR unit, may request a Notice
10
11
12
(c) A person who intends to beneficially use CCR may request a Notice of Concurrence
from the cabinet prior to beginning beneficial use.
13
14
(2) A person requesting to obtain a Notice of Concurrence shall complete and submit the
following information, if applicable:
15
16
17
18
(b) For a seismic hazard analysis of a new CCR landfill or lateral expansion of an
existing CCR landfill, a site-specific, scenario-based, deterministic, seismic hazard assessment;
19
20
(c) For a stability analysis of a new CCR landfill or lateral expansion of an existing CCR
landfill, the landfill design demonstrating the following:
21
1. For subgrade, the factor of safety shall be a minimum of two and zero-tenths (2.0);
22
2. For the liner components, the factor of safety shall be a minimum of one and one-fourth
23
(1.25);
1
2
3
4
3. For the final cover system, the factor of safety shall be a minimum of one and one-half
(1.5);
4. For the synthetic liner material and structural synthetic materials, a maximum elongation
of ten (10) percent; and
(d) Additional information necessary to enable the cabinet to make a determination on the
(e)1. If for the unencapsulated beneficial use of CCR involving placement on the land of
12,400 tons or more in non-roadway applications, a check or money order made payable to the
10
11
12
Section 1(1) of this administrative regulation, and intends to construct a CCR unit, a check or
13
money order made payable to the Kentucky State Treasurer in the amount of $5,000; and
14
(f) A narrative with supporting documentation, a certification statement, and seal, from a
15
professional engineer or professional geologist, licensed in accordance with KRS Chapter 322 or
16
KRS Chapter 322A, that the information prepared by the professional engineer or professional
17
geologist, and submitted with the notice of concurrence request, meets the applicable portions of
18
401 KAR 46:110 and paragraphs (b) and (c) of this subsection.
19
20
21
22
(3) The cabinet shall review the submittal request for a Notice of Concurrence within 365
days of receipt and issue in writing to the applicant a:
(a) Notice of Concurrence stating the cabinet concurs that the information submitted in
accordance with this section is determined to meet applicable criteria in 401 KAR Chapter 46;
1
2
3
4
(b) Deficiency letter from the cabinet that the submittal is incomplete or that additional
information is necessary to enable the cabinet to issue the Notice of Concurrence; or
(c) Notice that the cabinet does not concur that the information submitted in accordance
with this section meets the applicable criteria in 401 KAR Chapter 46.
(4)(a) Failure by the applicant to provide the requested information and documentation
within ninety (90) days of issuance of a deficiency letter established in subsection (3)(b) of this
section shall cause the CCR[If the submittal is incomplete or additional information is
needed after the second deficiency letter, the CCR Permit-by-rule] Notice of Concurrence
10
(b) No more than two (2) deficiency letters shall [not]be issued in accordance with
11
subsection (3)(b) of this section, after which the CCR [Permit-by-rule]Notice of Concurrence
12
13
14
shall not prevent the applicant from reapplying if the requested documentation becomes
15
available.
16
17
18
19
(5)(a) The cabinet may rescind or modify in writing the Notice of Concurrence if the
applicant or permittee is not in compliance with 401 KAR Chapter 46.
(b) The cabinet shall rescind the Notice of Concurrence in writing if the cabinet
determines that the applicant submitted a false certification.
20
Section 3. Transition of a Permit Issued in Accordance with 401 KAR Chapter 45. (1) A
21
permittee who is subject to 401 KAR Chapter 46 shall notify the cabinet in writing of its intent to
22
meet the requirements of 401 KAR Chapter 46 by no later than May 1[January 15], 2017, if the
23
permittee possesses a:
(b) Special waste registered permit-by-rule in accordance with 401 KAR 45:070; or
(c) Formal permit for special waste in accordance with 401 KAR 45:030.
2017], a permit issued pursuant to 401 KAR Chapter 45 for management, disposal, or beneficial
reuse of CCR shall terminate if the permittee is subject to 401 KAR Chapter 46.
7
8
Section 4. Annual Fees. (1)(a) The owner or operator of a CCR unit shall pay a $15,000
annual fee for each facility in operation or post-closure.
(b) An owner or operator of a CCR unit shall notify the cabinet in writing upon
10
completion of post-closure activities as established in 401 KAR 46:110, Section 6, and shall no
11
12
13
14
15
(2) Payment shall be submitted to the Solid Waste Branch of the Division of Waste
Management no later than July 31 of each year.
(3) The owner or operator shall complete and submit with the payment the CCR Annual
Fee Form, DWM 4620, incorporated by reference in this administrative regulation.
16
(4) A check or money order shall be made payable to the Kentucky State Treasurer.
17
(5) The annual fee shall be due July 31, 2017, and every year after.
18
(6)(a) The owner or operator of a CCR unit may request an extension to the deadline not
19
20
21
Section 5. Beneficial Use of CCR Reporting Requirements. The user shall submit to the
cabinet an annual report of the beneficial use activity undertaken in the previous calendar year by
Section 6. Noncompliances. (1) The cabinet may take any appropriate enforcement
action, including corrective action, pursuant to 401 KAR Chapter 40, KRS 224.10-410, or
10
11
12
224.10-420, if the permittee is not operating in compliance with 401 KAR Chapter 46.
(2) The cabinet may revoke, modify, or suspend[invalidate] a CCR permit-by-rule or
registered permit-by-rule upon a final determination of noncompliance.
13
(3) The cabinet shall follow the procedures in 401 KAR 40:040 in taking action to
14
15
16
Section 7. Financial Assurance and Public Notice Requirements. (1) Owners and
17
operators shall maintain financial assurance sufficient to complete closure and post-closure
18
19
20
(b) Existing CCR units that were required to establish financial assurance in
21
22
23
(3) The cabinet shall release the financial assurance mechanism required by this
circulation located in the county or counties where the property where the proposed CCR
unit is located. If there is no daily or weekly newspaper of major circulation in the county
or counties where the proposed CCR unit is located, public notice shall mean publication of
10
11
12
13
(b) Public notice shall include the information contained on the form incorporated
by reference in Section 8(1)(f) of this administrative regulation.
Section 8. Incorporation by Reference. (1) The following material is incorporated by
reference:
14
15
16
(b) CCR Annual Fee Form, DWM 4620, September 2016; and
17
(c) Registered Permit-by-Rule for CCR Facility", DWM 4600, January 2017.
18
(2) This material may be inspected, copied, or obtained, subject to applicable copyright
19
law, at the Division of Waste Management, 300 Sower Boulevard, 2nd Floor, Frankfort,
20
21
(3) This material may also be obtained on the divisions Web site at waste.ky.gov.
___________________________
Date
______________________________
Charles G. Snavely, Secretary
Energy and Environment Cabinet
Louanna Aldridge
Telephone: (502) 782-6538
Louanna.Aldridge@ky.gov
rule; Cabinet review added for CCR unit registration information within 30 days and would
require a notification to applicant when they have registered permit-by-rule, or issue the
applicant a deficiency letter; Cabinet would also review revised registrations within 30 days;
Financial assurance for closure and post-closure added for new CCR units and existing CCR
units which were required to establish financial assurance under 401 KAR 45:080 already;
Added a provision for Cabinet to release financial assurance upon notification of completion of
post-closure requirements; Added a public notice to be published in the newspaper of major
circulation where CCR unit is located, proof of which is required with registration; Changed
name of CCR Registered Notice of Concurrence Request form to allow either permit-by rule or
registered permit-by-rule applicants to apply; Clarified language in Section 2(4)(a) and (b) that
the Notice of Concurrence request would expire if applicant fails to submit information and
documentation required by deficiency letter; Extended notification required from permittees
transitioning from 401 KAR Chapter 45 to 401 KAR Chapter 46 from January 2017 to May
2017; Modified the termination of a permit under 401 KAR Chapter 45 to 401 KAR Chapter 46
from occurring on January 2017 until the Cabinet issues the new registered permit-by-rule;
Modified noncompliance language from invalidate to revoke, modify, or suspend to be
consistent with 401 KAR Chapter 40.
(b) The necessity of the amendment to this administrative regulation: The amendment
requiring CCR units to obtain a registered permit-by-rule will allow for the prior review of
registration information by the Cabinet. The financial assurance will ensure sufficient funding
for closure and post-closure of new CCR units and CCR units that were previously required to
have financial assurance under 401 KAR Chapter 45. In addition, the Cabinet provision for when
the financial assurance would be released is necessary to establish an end date. A public notice
publication was necessary to alert local residents of CCR units. Language clarification in Section
2(4)(a) and (b) of this administrative regulation was necessary as the Cabinet had an incomplete
sentence and it was unclear as to when the Notice of Concurrence request would expire. The
extension from January 2017 to May 2017 for notification from owners of operators transitioning
from 401 KAR Chapter 45 was necessary as the January 2017 date will be passed by the time the
regulation is effective. The January 2017 date for the termination of permits transitioning would
also be passed by the time the regulation is effective and to prevent a lapse in permit coverage,
the date was replaced with the issuance of the new registered permit-by-rule. Noncompliance
language was amended to be consistent with KRS 224 terms.
(c) How the amendment conforms to the content of the authorizing statutes: The
amendments conform to the content of KRS 224.50-760 by establishing compliance
requirements for the management of coal combustion residuals.
(d) How the amendment will assist in the effective administration of the statutes: This
amendment will administration of the statutes by establishing requirements for the management
of coal combustion residuals as required by KRS 224.50-760.
(3) List the type and number of individuals, businesses, organizations, or state and local
governments affected by this administrative regulation: This administrative regulation will affect
electric generating utilities that manage coal combustion residuals by establishing the
requirements for a CCR permit-by-rule. There are currently eight electric generating utilities that
11
will be affected in Kentucky. This administrative regulation will affect the Division of Waste
Management and the Division of Water as it establishes requirements for entities regulated by
the divisions.
(4) Provide an analysis of how the entities identified in question (3) will be impacted by
either the implementation of this administrative regulation, if new, or by the change, if it is an
amendment, including:
(a) List the actions that each of the regulated entities identified in question (3) will have
to take to comply with this administrative regulation or amendment: This administrative
regulation will require a utility previously regulated by 401 KAR Chapter 45 to notify the
cabinet by May 15, 2017 of their intent to comply with this chapter. Facilities operating CCR
units will be required to pay an annual fee. A person conducting beneficial use of CCR will be
required to report annually. Owners and operators of CCR units will be required to register with
the cabinet and post financial assurance for closure and post-closure as well as to maintain
financial assurance for closure and post-closure if previously required by 401 KAR Chapter 45.
In addition, owners and operators of CCR units will be required to submit a registration and
obtain a CCR registered permit-by-rule, and publish a public notice in the county where the CCR
unit is located.
(b) In complying with this administrative regulation or amendment, how much will it cost
each of the entities identified in question (3): This administrative regulation will cost each
facility $15,000 annually. In addition, the owners and operators of CCR units required to
maintain financial assurance will have the costs of maintaining that bond. In addition, owners
and operators of CCR units would have the costs of a public notice in the county newspaper
where the CCR unit is locatd. The Division of Waste Management and the Division of Water
will have personnel costs associated with the implementation of this administrative regulation
related to registration review, investigation of complaints for noncompliance of the regulated
entities, processing the notifications required in the federal regulation, reviewing annual reports
for the beneficial use of CCR, processing of fees, and evaluation of the criteria established in this
regulation upon request by the regulated entities. The Division of Waste Management anticipates
the need for an additional 2.25 personnel positions to administer the coal combustion residual
program at a cost of $225,000.
(c) As a result of compliance, what benefits will accrue to the entities identified in
question (3): This administrative regulation will benefit the regulated entities by providing a
permit-by-rule or registered permit-by rule for compliance with this chapter. The regulated entity
may request a notice of concurrence from the cabinet on whether they are complying with the
requirements established in 401 KAR 46:110 which may provide some protectiveness. In
addition, the criteria for the disposal of coal combustion residuals established in this
administrative regulation will increase the protectiveness of human health and the environment.
(5) Provide an estimate of how much it will cost the administrative body to implement
this administrative regulation:
(a) Initially: The administrative body will have personnel costs associated with the
12
13
14
Louanna Aldridge
Telephone: (502) 782-6538
Louanna.Aldridge@ky.gov
(1) What units, parts, or divisions of state or local government (including cities, counties,
fire departments, or school districts) will be impacted by this administrative regulation? This
administrative regulation will impact the Division of Waste Management and Division of Water.
(2) Identify each state or federal statute or federal regulation that requires or authorizes the
action taken by the administrative regulation. KRS 224.50-760
(3) Estimate the effect of this administrative regulation on the expenditures and revenues
of a state or local government agency (including cities, counties, fire departments, or school
districts) for the first full year the administrative regulation is to be in effect.
(a) How much revenue will this administrative regulation generate for the state or local
government (including cities, counties, fire departments, or school districts) for the first year?
This administrative regulation will generate an annual revenue of $225,000 in annual fees. In
addition, this administrative regulation will generate $2,500 or $5,000, if applicable, per
notification of concurrence request for the Division of Waste Management. The amount of
revenues that will be generated for concurrence requests will depend on the number received and
cannot be determined at this time.
(b) How much revenue will this administrative regulation generate for the state or local
government (including cities, counties, fire departments, or school districts) for subsequent
years? This administrative regulation will generate an annual revenue of $225,000 in annual fees
for subsequent years. In addition, this administrative regulation will generate $2,500 or $5,000, if
applicable, per notification of concurrence request for the Division of Waste Management. The
amount of revenues that will be generated for concurrence requests will depend on the number
received and cannot be determined at this time.
(c) How much will it cost to administer this program for the first year? This administrative
regulation will have personnel costs associated with the implementation of this administrative
regulation related to registration review for registered permit-by-rules, handling of financial
assurance mechanisms provided, verification of public notice, investigation of complaints for
noncompliance of the regulated entities, processing the notifications required in the federal
regulation, reviewing annual reports for the beneficial use of CCR, processing of fees, and
evaluation of the criteria established in this regulation upon request by the regulated entities. The
Division of Waste Management anticipates the need for an additional 2.25 personnel positions to
administer the coal combustion residual program at a cost of $225,000.
15
(d) How much will it cost to administer this program for subsequent years? This
administrative regulation will have continued personnel costs for subsequent years associated
with registration review for registered permit-by-rules, handling of financial assurance
mechanisms provided, verification of public notice investigation of complaints for
noncompliance of the regulated entities, processing the notifications required in the federal
regulation, reviewing annual reports for the beneficial use of CCR, processing of fees, and
evaluation of the criteria established in this regulation upon request by the regulated entities. The
Division of Waste Management anticipates the need for an additional 2.25 personnel positions to
administer the coal combustion residual program at a cost of $225,000.
Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain
the fiscal impact of the administrative regulation.
Revenues (+/-): 15 facilities x $15,000/annual fee =$225,000 generated.
Expenditures (+/-): $225,000 for the implementation of this administrative regulation on
2.25 additional personnel.
Other Explanation: The revenue generated for processing the notification of concurrence
requests will be $2,500 or $5,000, whichever is applicable. The amount of revenues that will be
generated for concurrence requests will depend on the number received and cannot be
determined at this time.
16
17
STATEMENT OF CONSIDERATION
RELATING TO
401 KAR 4:070 (Not Amended After Comments)
401 KAR 45:010 (Not Amended After Comments)
401 KAR 45:060 (Not Amended After Comments)
401 KAR 46:110 (Not Amended After Comments)
401 KAR 46:101 (Amended After Comments)
401 KAR 46:120 (Amended After Comments)
I. A public hearing on 401 KAR 4:070, 45:010, 45:060, 46:101, 46:110, and 46:120 was held on
November 22, 2016 at 6:00 p.m. at 300 Sower Blvd, Frankfort, Kentucky. The Divisions of
Waste Management and Water also received written comments during the public comment
period.
Name
Agency/Organization/Entity/Other
Comments
Louanna Aldridge
Written
James Below
Written
Written
Written
Written
Bill Smith
Verbal
Kelly Leach
Verbal
Kathy Little
Sonia McElroy
Verbal
III. The following people from the promulgating administrative body responded to the written
and verbal comments:
Division of Water:
Peter Goodmann, Director
Carole Catalfo, Internal Policy Analyst
Ron Gruzesky, Dam Safety Section Supervisor
IV. Summary of Comments and Responses for 401 KAR 401 KAR 4:070, 45:010, 45:060,
46:101, 46:110, and 46:120.
The following comments and responses are grouped by administrative regulation. General
comments related to the entire package are listed first, followed by comments specific to 401
KAR 4:070, 45:010, 45:060, 46:101, 46:110, and 46:120.
(1) Subject Matter: 401 KAR Chapters 45 and 46, Cane Run closing
(a) Commenter: Kathy Little
Comment: Since Cane Run is closed in regard to the coal fired units and LG&E is
capping the pond, that there wont be any more ash being brought in to be buried. Is this a
correct assessment? I want to be sure of my position (affected or not) before I write questions
regarding the new proposed regulations.
(b) Response: The Cane Run facility is undergoing final closure of the landfill and ash
pond. No other on-site areas currently have an operating permit for waste disposal. The Cabinet
is not aware of any future plans to dispose of special wastes or CCR at the Cane Run facility.
(2) Subject Matter: 401 KAR Chapters 45 and 46, Draft regulations
(a) Commenter: Kathy Little
Comment: Who wrote the proposed regulations?
(b) Response: The proposed regulations were written by Energy and Environment
Cabinet staff.
within the definition of CCR. Neither 401 KAR Chapters 45 or 46, nor the federal CCR rule,
overrides, negates, or nullifies a local governing bodys rules or regulations regarding restrictions
on waste sources, types, or location. Otherwise a utility could accept CCR from other sources.
(5) Subject Matter: 401 KAR Chapters 45 and 46, Federal mandate comparison
(a) Commenter: Kentucky Resources Council
Comment: KRC disagrees vigorously with the Federal Mandate Analysis Comparison,
which erroneously states that 40 C.F.R. 257.53 is a Federal statute or regulation constituting the
federal mandate. There is no federal mandate that the state weaken its permitting procedures for
coal combustion waste disposal facilities. Rather, the federal standards under Part 257 are
intended to supplement existing state requirements, as is made clear in 257.52 Applicability of
other regulations which provides that: (a) Compliance with the requirements of this subpart does
not affect the need for the owner or operator of a CCR landfill, CCR surface impoundment, or
lateral expansion of a CCR unit to comply with all other applicable federal, state, tribal, or local
laws or other requirements. The federal regulation cited as the basis for the federal mandate,
40 C.F.R. 257.53, is actually the definition section of Part 257, and contains no federal mandate.
(b) Response: The intent of the Cabinet is to make the regulations consistent with federal
standards.
(6) Subject Matter: 401 KAR Chapters 45 and 46, General comment
(a) Commenter: Kentucky Resources Council
Comment: The Kentucky Resources Council attached Failing the Test, The Unintended
Consequences of Controlling Hazardous Air Pollutants from Coal-Fired Power Plants
(b) Response: The Cabinet acknowledges receipt of this information.
(7) Subject Matter: 401 KAR Chapters 45 and 46, General comment
(a) Commenter: Todd Hendricks
Comment: The proposed state regulatory package is - at best - premature. Both litigation
and legislation are pending regarding the RCRA coal combustion residuals (CCR) Rule, and a
rewrite of the rule is underway. It is also unclear what modifications will be made as a result of
the change of presidential administrations.
5
The only certainty is that the requirements of a revised CCR Rule, if there is one, will be
different than the requirements of the present rule.
It is remarkably imprudent to incorporate the present verbiage (and present requirements) of the
CCR Rule into state regulations before the final verbiage (and final requirements) are even
known.
At a minimum, implementation of the proposed state regulations should be postponed
until the outcome of pending federal litigation and legislation and the concurrent revision of the
RCRA CCR Rule is complete. By far, the best course of action at this point in time is to leave the
present requirements of 401 KAR Chapters 30, 40, and 45 in effect for these facilities until the
federal regulations are in a reasonably final form.
(b) Response: It is the intent of the Cabinet to be consistent with the federal standards,
which are not impacted by the WIIN Act and potential federal regulations. The Cabinet
disagrees that it should wait for litigation to be exhausted.
(8) Subject Matter: 401 KAR Chapters 45 and 46, General comment
(a) Commenter: James Below
Comment: I urge the Dept. of Waste Management not to weaken Kentucky regulations
on the disposal of CCR's in any manner whatsoever. Please do not weaken Kentuckys law.
(b) Response: The proposed regulations are protective of human health and the
environment.
(9) Subject Matter: 401 KAR Chapters 45 and 46, General comment
(a) Commenter: Sonia McElroy
Comment: I took the trouble to look up the mission of the Division of Waste
Management. It is to protect human health and the environment by minimizing adverse impact
on all citizens of the Commonwealth through the development and implementation of fair,
equitable and effective waste management programs via program planning and administration
and regional field operation efforts. Now if these new regulations go into effect, the Division of
Waste Management's mission statement is to the four winds. It's like letting the fox in the
henhouse to regulate it.
I ask you to preserve and protect our environment and not adopt the amendments,
because putting the coal-ash landfill in a parsed area, an area that is full of sinkholes and small
6
caves is a disaster waiting to happen. Maybe not in my lifetime, but I know none of you would
want to live next to a landfill.
(b) Response: The proposed regulations are protective of human health and the
environment.
(10) Subject Matter: 401 KAR Chapters 45 and 46, General comment
(a) Commenter: Kathy Little
Comment: Within the information on the proposed regulations it asks if I am an affected
constituent. Am I affected? I believe my questions would have to reflect that.
(b) Response: The administrative regulations govern electric generating utilities that
manage coal combustion residuals by establishing the requirements for CCR management.
(11) Subject Matter: 401 KAR Chapters 45 and 46, General comment
(a) Commenter: James Below
Comment: LG&E is presently trying to put an ash disposal site on top of the highest hill
in Trimble County. This will impact air and water quality for many years into the future. LG&E's
own permit application identifies 113 sinkholes and 61 springs in the proposed disposal site. The
permit also states the ash will put a pressure of 15 tons per square foot on the liner when the site
is completed. What do you suppose will happen when a new sinkhole opens up under the liner?
(b) Response: This comment is specific to a pending permit application and not a
specific comment on the proposed regulations.
(12) Subject Matter: 401 KAR Chapters 45 and 46, Required permits
(a) Commenter: East Kentucky Power Cooperative and Utility Information Exchange of
Kentucky
Comment: EKPC is concerned that the Division's authority to approve excavation of clay
may be eliminated under the proposed regulations, potentially triggering an obligation to obtain a
separate permit to obtain clay and materials for liner and cap construction on-site. EKPC
requests that the Division reconsider this aspect of the program or provide clarification in
response to this comment.
(b) Response: KRS 350.300 defines that on-site excavation or grading when conducted
in aid of construction is exempt from the non-coal mining permitting requirements. Other
Cabinet regulatory and permit requirements may apply.
(13) Subject Matter: 401 KAR Chapters 45 and 46, Required permits
(a) Commenter: Todd Hendricks
Comment: Presently, borrow areas are regulated and permitted under 401 KAR Chapter
45. However, I see no mention of borrow areas in the federal CCR Rule. In lieu of regulation
under 401 KAR Chapter 46, will surface mining permits be required for borrow areas?
(b) Response: KRS 350.300 defines that on-site excavation or grading when conducted
in aid of construction is exempt from the non-coal mining permitting requirements. Other
Cabinet regulatory and permit requirements may apply.
(14) Subject Matter: 401 KAR Chapters 45 and 46, Public Notice
(a) Commenter: Kathy Little
Comment: Have you put public notices in newspapers close to every power plant that
would be affected by the new regulations?
(b) Response: KRS 13A governs the regulatory promulgation process in Kentucky,
including requirements for public notice. The Cabinet provided notice in compliance with KRS
13A.270.
(15) Subject Matter: 401 KAR Chapters 45 and 46, Permit by rule
(a) Commenter: Kathy Little
Comment: It appears that the state will not be regulating special-waste landfills anymore.
From what I hear, no permitting, no modifications, no notices of deficiencies by the state.
Federal regulations will be the law of the land, I believe, and power plants will self-regulate.
What if they don't follow federal regulation? There are no federal regulators, I don't believe.
Who is going to protect affected Kentuckian constituents?
I like our state regulatory agency. I believe that no business should have the right to selfregulate; there's way too much liability as far as our waterways, our streams, everything that
could be hurt because someone doesnt follow to the rule, would be devastating.
8
other generators, managers, and disposers of coal combustion wastes, but also the engineers
involved in the design and construction oversight of coal combustion waste facilities. Finally, in
addition to the heightened potential for inadequate siting, design, construction, and operation of
coal combustion waste disposal facilities due to the elimination of agency and public review of
such activities, the proposal will likely raise electricity rates for regulated and municipal utility
customers due to the passing through remediation costs associated with environmental damage
and public health and safety harm associated with failures of the disposal facilities occasioned
due to siting, design, construction, or operational flaws due to the complete absence of regulatory
oversight of the siting, permitting, construction, and operation of such facilities.
(b) Response: The proposed 401 KAR Chapter 46 regulations incorporate the 40 C.F.R.
257, Subpart D standards. While the Cabinet has a different perspective than the commenter, the
Cabinet has decided to revise this proposed regulation to create a registered permit-by-rule for
CCR units. 401 KAR Chapter 46 also establishes non-compliance provisions that allow the
Cabinet to enforce the standards under its own statutes and regulations.
(18) Subject Matter: 401 KAR Chapters 45 and 46, Permit by rule
(a) Commenter: Kentucky Resources Council
Comment: The first indication that the Cabinet or the public would have that a proposed
facility would be sited and constructed, would be when the construction began. The first time
that the Cabinet or public would be made aware that the design, siting, construction or operation
was being undertaken in a manner that caused environmental harm would be when the
environmental harm, groundwater damage, pond impoundment failure, or other indicia of a
failure to comply with the EPA standards, became manifest.
The proposal eviscerates the permitting process for coal combustion waste landfills and
ponds, and exposes those communities near proposed facilities, and those living near currentlypermitted facilities that choose to transition to the permit by rule and to terminate current
permits, to elevated levels of risk to public health and environmental damage associated with
coal combustion wastes and the numerous pollutants that are entrained in such wastes.
While some of the referenced EPA standards are more stringent than those in current
state regulations, particularly with respect to ash ponds, the regulatory proposal to eliminate all
advance individual agency permitting and public review of proposed facilities and of compliance
with the EPA standards prior to siting, design, construction, and operation, is ill-advised at best,
and at worst, dangerous.
Prior to addressing the specific flaws in the proposed regulatory approach, it is instructive
to review why regulatory scrutiny of the management, storage, and disposal of coal combustion
10
wastes such as is provided under the current regulatory structure of 401 KAR Chapter 45, is both
appropriate and justified.
KRC incorporates by reference the comments set forth above concerning the illconsidered proposal to allow management, disposal, or beneficial use of coal combustion wastes
under a permit-by-rule, allowing those activities to occur without the submission of an
application to the Cabinet[.]
(b) Response: The proposed 401 KAR Chapter 46 regulations incorporate the 40 C.F.R.
257, Subpart D standards. While the Cabinet has a different perspective than the commenter, the
Cabinet has decided to revise this proposed regulation to create a registered permit-by-rule. Also,
the Cabinet has amended the regulation to require financial assurance for new CCR units and
certain existing CCR units. 401 KAR Chapter 46 also establishes non-compliance provisions that
allow the Cabinet to enforce the standards under its own statutes and regulations.
The Cabinet has amended the regulations to require the owner or operator to prepare and
disseminate a public notice publication prior to registration. In addition, 40 C.F.R. 257, Subpart
D, includes requirements for a CCR unit owner or operator to post notifications and other
recordkeeping to a publicly accessible website. 401 KAR Chapter 46 incorporates the federal
recordkeeping and notification provisions that are required to be sent to the Cabinet (i.e., the
State Director). Users are also required to submit an annual report pursuant to 401 KAR 46:120,
Section 5.
The proposed regulation will place additional requirements on impoundments, but will
not relieve the owner/operator of existing requirements, nor exclude the permittee from the
responsibility of obtaining other state, local, or federal permits. Construction of a surface
impoundment that meets the statutory definition of a dam (as defined in KRS 151.100) will still
be permitted by the Division of Water, which will also continue routine inspections of surface
impoundments in accordance with KRS 151.250. If a CCR unit requires a Clean Water Act,
Section 402 discharge permit, the applicable permitting requirements will be employed.
(19) Subject Matter: 401 KAR Chapters 45 and 46, Permit by rule
(a) Commenter: Todd Hendricks
Comment: It is understandable that those in the utility industry who generate CCR
wastes do not want to be double-regulated. I do not envy their position. However, I assert that
although the federal CCR Rule is indeed, a regulation (i.e., a law, rule, or other order
prescribed by authority), it does virtually nothing with respect to the act of regulation; it simply
defines parameters for lawsuits.
(b) Response: The proposed administrative regulations make the federal CCR unit
11
standards a requirement under Kentucky law. These standards include siting, design and
operating, groundwater monitoring and corrective action, closure and post-closure, notification,
reporting, and inspection requirements. The proposed regulations do not change the Cabinets
enforcement authorities.
(20) Subject Matter: 401 KAR Chapters 45 and 46, Permit by rule; Incompatibility with KRS
224.10-100
(a) Commenter: Todd Hendricks
Comment: The proposed regulations show multiple incompatibilities with state law, a
situation which is prohibited by KRS 224.10-100. No determination of whether state or local law
is being followed is built into the federal CCR Rule.
According to USEPA, requirements of the CCR Rule are in addition to state and local
requirements. [It is unlikely that consulting engineers will have the experience and knowledge of
local laws and regulations, they will simply do things in accordance with the federal rule and
certify themselves in compliance.] However, self-certifying consulting engineers may not be
sufficiently familiar with state and local requirements to even know which requirements apply.
This is complicated by the possibility that citizens aggrieved by violation of state or local law
may be unable to sue under the citizen lawsuit provisions of RCRA.
KRS 224.10-100 is not passive language. It requires the cabinet to act with respect to
actual or suspected sources of pollution, and to provide for the prevention, abatement, and
control of all pollution. It does not provide for the cabinet to adopt a regulation wherein
facilities known to be polluting self-regulate, self-monitor, and self-certify their compliance. It
does not envision a regulation where citizens affected by pollution that adversely impacts their
property, their health, or the environment must rely on lawsuits for mitigation.
Ultimately, what is needed is a state regulation creating a permitting program consistent
with KRS 224.10-100 that meets the minimum requirements of the federal standards (once the
federal standards are finalized). Until then, the Commonwealth should leave its current
regulations in effect
(b) Response: The proposed administrative regulations make the federal CCR unit
standards a requirement under Kentucky law. These standards include siting, design and
operating, groundwater monitoring and corrective action, closure and post-closure, notification,
reporting, and inspection requirements. The proposed regulations do not change the Cabinets
enforcement authorities.
(21) Subject Matter: 401 KAR Chapters 45 and 46, Permit-by-rule
12
(a) Commenter: East Kentucky Power Cooperative and Utility Information Exchange of
Kentucky
Comment: At the outset, UIEK commends the Cabinet for proposing CCR regulations
that mirror the recently promulgated federal standards that apply to CCRs independent of any
state regulatory programs. By regulating CCR management, disposal, and beneficial use under
new Chapter 46 as opposed to under existing Chapter 45 for special wastes, the Cabinet will
eliminate unnecessary and unproductive regulation of CCR under two separate state and federal
programs. Additionally, the proposed regulations will effectively allow the Cabinet to enforce
the equivalent of the federal standards under state law, thus avoiding the concern that the Cabinet
could only enforce the federal standards through a citizen suit. UIEK fully supports the approach
taken by the Cabinet under the proposed regulations to incorporate the federal siting, design,
operating, closure, and corrective action standards and to authorize CCR management, disposal,
and beneficial use through state permits by rule.
(b) Response: The Cabinet acknowledges these comments.
(22) Subject Matter: 401 KAR Chapters 45 and 46, Permit by rule
(a) Commenter: Kentucky Resources Council
Comment: By defaulting to the federal regulations and granting a drive-by-permit to
facilities to site, design, construct, operate, and close without agency or public advance scrutiny,
the cabinet proposal creates a cycle of neglect in which the owner and operator of the CCR
unit is allowed to self-regulate rather than being subject to a reasonable demonstration of
compliance with the existing state permitting and technical standards and the supplemental
federal standards.
The responsible approach to incorporation of the federal standards into the existing
regulatory scheme is to compare and modify the individual design and performance standards of
the federal regulations with those of the Commonwealth, and to modify such standards as
deemed appropriate or necessary. Wholesale abdication of permitting and oversight functions is
neither requirement or contemplated by 40 CFR Part 257, nor is it a responsible path consistent
with the announced purposes and language of KRS Chapter 224.
(b) Response: The proposed 401 KAR Chapter 46 regulations incorporate the 40 C.F.R.
257, Subpart D standards. While the Cabinet has a different perspective than the commenter, the
Cabinet has decided to revise this proposed regulation to create a registered permit-by-rule. Also,
the Cabinet has amended the regulation to require financial assurance for new CCR units and
certain existing CCR units. 401 KAR Chapter 46 also establishes non-compliance provisions that
allow the Cabinet to enforce the standards under its own statutes and regulations.
13
The Cabinet has amended the regulations to require the owner or operator to prepare and
disseminate a public notice publication prior to registration.
(24) Subject Matter: 401 KAR Chapter 45, Permit by rule, public notice, Cabinet review
(a) Commenter: Kentucky Resources Council
Comment: The Council is gravely concerned with the proposed set of administrative
regulations and the laissez faire approach to management of coal combustion wastes evinced in
the regulations. Under the current regulatory program contained in 401 KAR Chapter 45, the
siting, construction, operation, environmental monitoring, reporting, closure, and post-closure of
14
landfills constructed for disposal of special wastes, including coal-combustion wastes, occurs
under an individual permit that is subject to technical review by the Energy and Environment
Cabinet, and is also subject to public notice, public comment, and opportunity for those affected
to test the sufficiency of the application and review process against the applicable statutes and
regulations. In stark contrast, the proposed regulations would grant a permit by rule to coal
combustion waste landfills and coal combustion waste ponds, allowing the siting, construction,
operation, environmental monitoring, self-inspection, closure and post-closure of coal
combustion waste landfills and ash ponds, with no advance notice to the Cabinet or public, and
no agency or public review of the sufficiency of the siting, design, construction, environmental
and groundwater monitoring, operation, closure, and post-closure care of the constructed landfill
cells or pond.
(b) Response: The proposed 401 KAR Chapter 46 regulations incorporate the 40 C.F.R.
257, Subpart D standards. While the Cabinet has a different perspective than the commenter, the
Cabinet has decided to revise this proposed regulation to create a registered permit-by-rule. Also,
the Cabinet has amended the regulation to require financial assurance for new CCR units and
certain existing CCR units. 401 KAR Chapter 46 also establishes non-compliance provisions that
allow the Cabinet to enforce the standards under its own statutes and regulations.
The Cabinet has amended the regulations to require the owner or operator to prepare and
disseminate a public notice publication prior to registration. Cabinet records related to CCR units
are available for public review. Additionally, 40 C.F.R. 257 requires owners and operators of
CCR units to make information regarding CCR units electronically available to the public.
(25) Subject Matter: 401 KAR Chapter 45, Permit-by-rule, public notice, Cabinet review
(a) Commenter: Todd Hendricks
Comment: CCR units, especially those with confirmed groundwater pollution or those in
corrective action, should retain full, written, formal permits, and those CCR facilities lacking
them presently should be issued full, written, formal permits.
401 KAR Chapter 46 includes a notable lack of citizen input. There appears to be no
provision for public notice and no public comment period in the proposed regulation. A utility
can just build a landfill if their engineers certify it, provided nobody sues them.
Is it beneficial to have a system where a 200-acre landfill with a 100-acre borrow area
can be built and self-certified by people who are paid by the utilities, without any state or local
input?
Response: While the Cabinet has a different perspective than the commenter, the Cabinet
has decided to revise this proposed regulation to create a registered permit-by-rule. 401 KAR
15
Chapter 46 also establishes non-compliance provisions that allow the Cabinet to enforce the
standards under its own statutes and regulations.
The Cabinet has amended the regulations to require the owner or operator to prepare and
disseminate a public notice publication prior to registration.
Additionally, 40 C.F.R. 257 requires owners and operators of CCR units to make information
regarding CCR units electronically available to the public.
16
gallons of arsenic-contaminated groundwater per day are captured and pumped to the active
surface impoundment for dilution and discharge through a [KPDES] permitted outfall.
At another facility, state laboratory analysis of one recent sample of fluid (presumably
leachate) flowing from the toe of a closed CCR landfill showed 9.81 mg/L of arsenic, which is
981 times the maximum contaminant level (MCL).
Fluids containing arsenic at this level may be characteristically hazardous because of
toxicity. Contained landfills are regulated to the highest standards of any solid or special waste
sites or facilities, but I have never seen leachate analysis from a contained landfill that indicated
that the leachate itself could be characteristically hazardous.
Response: These proposed administrative regulations make the federal standards that
apply to CCR units a requirement under Kentucky law. These requirements include siting, design
and operating, groundwater monitoring and corrective action, closure and post-closure,
notification, reporting, and inspection requirements. The Cabinet believes that the proposed
regulations are protective of human health and the environment.
(28) Subject Matter: 401 KAR Chapters 45 and 46, Permit-by-rule and self-regulation
(a) Commenter: Todd Hendricks
Comment: A significant weakness of the federal CCR Rule is that it relies on selfregulation by the facilities and self-certification by Professional Engineers regarding every
aspect of the siting, design, construction, operation, environmental monitoring, and reporting
regarding CCR units. The subject Professional Engineers are paid by the regulated entity,
creating at least an apparent conflict-of-interest. No independent oversight (like that provided by
the Energy and Environment Cabinet under Chapters 30, 40, and 45 of the Kentucky
Administrative Regulations) is involved.
EPA states in the narrative associated with the CCR Rule that licensure of Professional
Engineers in each of the 50 states and oversight and discipline by boards of licensure ensures that
the engineers involved are practicing ethically and within their competence regarding these
facilities.
However, inquiries to the Kentucky Board of Licensure for Professional Engineers and
Land Surveyors have revealed that no engineer has, at any time, been disciplined for any aspect
of any work performed at Solid Waste or Special Waste sites or facilities.
It is possible that the independent review of siting, design, operation, and construction by
Professional Engineers and Professional Geologists employed by the EEC assists consulting
17
(29) Subject Matter: 401 KAR Chapters 45 and 46, Waste classifications
(a) Commenter: Todd Hendricks
Comment: It is notable that 40 CFR 261.4(b) (4) lists certain CCRs and associated
wastes as exempt from hazardous waste classification. Among these are fly ash, bottom ash, flue
gas desulfurization sludge, coal pile runoff, boiler cleaning solutions, boiler blowdown, process
water treatment and demineralizer regeneration wastes, cooling tower blowdown, air heater and
precipitator washes, effluents from floor and yard drains and sumps, and wastewater treatment
sludge.
18
Mill rejects and pyrites are wastes generated by some CCR facilities, mostly those using
roller mills to crush the coal for combustion. (The terms mill rejects and pyrites are often
used interchangeably, although pyrites are a subset of mill rejects.) Historically, these materials
have been disposed in surface impoundments and landfills throughout the state.
USEPA [Industry publications] states that pyrites can be characteristically hazardous in
some cases [due to toxicity with respect to heavy metals]. According to industry publications, a
facility burning bituminous coal can be expected to produce between 750 to 1200 tons of pyrites
per year per 100 megawatt capacity. So, one 750 megawatt plant could produce 5,625 to 9,000
tons of pyrites in a single year.
Since the effective date of the CCR Rule (April 17[October 17], 2015), these wastes are
no longer exempt from classification as hazardous waste. Therefore, facilities producing such
wastes are obligated to perform the appropriate testing to determine whether the subject mill
rejects and pyrites are characteristically hazardous, and dispose of them properly.
Response: It is the responsibility of the generator to make a waste determination on mill
rejects and pyrites.
of a surface impoundment that meets the statutory definition of a dam (as defined in KRS
151.100) will still be permitted by the Division of Water, which will also continue routine
inspections of surface impoundments in accordance with KRS 151.250. If a CCR unit requires a
Clean Water Act, Section 402 discharge permit, the applicable permitting requirements will be
employed.
20
wastes, including fly ash, bottom ash, boiler slag, and flue gas desulfurization materials
generated at facilities that are not part of an electric utility or independent power producer, such
as manufacturing facilities, universities, and hospitals;
fly ash, bottom ash, boiler slag, and flue gas desulfurization materials, generated
primarily from the combustion of fuels (including other fossil fuels) other than coal, for the
purpose of generating electricity unless the fuel burned consists of more than fifty percent (50%)
coal on a total heat input or mass input basis, whichever results in the greater mass feed rate of
coal;
Unless CCR Units are defined in a manner that limits those facilities eligible for
transitioning to federal standards to those to whom the federal standard apply (i.e. coal-fired
utilities), the regulation would allow the unpermitted and unregulated management of fly ash,
bottom ash, and scrubber sludge from all of these sources, since they would be exempted from
401 KAR Chapter 45 but would not be subject to any of the requirements of proposed new 401
KAR Chapter 46.
(b) Response: 401 KAR Chapter 46 incorporates the definitions of a CCR unit and
beneficial use of CCR found in 40 C.F.R. 257.53. 401 KAR 46:110 establishes the applicability
of the Chapter to CCR units as established in 40 C.F.R. 257.50 through 257.52. Non-hazardous
wastes not specified in the federal rule, or disposal practices not subject to the CCR provisions,
will still be regulated under 401 KAR Chapters 45, 47, and 48, as applicable.
roadway application must comply with the first, second, and third provisions of the definition. A
CCR use that meets the definition is a permit-by-rule if the use meets the requirements of 401
KAR 46:120, Section 1(2). The beneficial use of CCR is therefore regulated by the Division of
Waste Management pursuant to 401 KAR Chapter 46. An activity involving placement of CCR
on the land that does not meet the definition of beneficial use of CCR shall be regulated as a
CCR landfill defined by 40 C.F.R. 257.53.
The proposed regulations in 401 KAR Chapter 46 apply only to CCR as defined in 40
C.F.R. 257.53 which specifies materials generated from the burning of coal for the purpose of
generating electricity by electric utilities and independent power producers. Fly ash, bottom
ash, or similar by-products of coal combustion generated by non-utility entities shall continue to
be regulated as solid waste pursuant to 401 KAR Chapters 47 and 48.
(37) Subject Matter: 401 KAR 46:110, Design and implementation of groundwater monitoring
(a) Commenter: Kentucky Resources Council
Comment: Without agency oversight of the design and implementation of groundwater
monitoring systems, owners of CCR units may design systems that fail to properly understand
and thus to characterize the hydrologic systems, and which may be located in areas that fail to
detect pollution, all the while claiming to meet the general performance standards under 40
C.F.R. 257.91. In a Commonwealth where numerous regions have hydrologic systems dominated
by fracture and karstic flow, particular attention to the design and location of groundwater
monitoring systems is key to determining compliance with the environmental performance
standards, and the lack of agency review of proposed systems is unconscionable. Additionally,
23
without agency review, compliance with the applicable requirements of 40 C.F.R. 257.93 with
respect to statistical exceedances of groundwater will be difficult to assure. Given Kentuckys
experiences with catastrophic failure of impoundments compromising life and property, the
proposal to delegate the evaluation of structural stability of high hazard dams impounding CCR
ponds is less than responsible. Kentucky has some of the largest and most dangerous CCR
impoundments, according to reports.
(b) Response: 401 KAR Chapter 46 incorporates the federal standards for groundwater
monitoring and corrective action, including 40 C.F.R. 257.91(a)(2), which states, All potential
contaminant pathways must be monitored.
All surface impoundments which meet the statutory definition of a dam (as defined in
KRS 151.100) will continue being reviewed and permitted by the Division of Water in
accordance with KRS 151.250. This review will ensure compliance with structural integrity,
hydrologic, and hydraulic capacity requirements. The proposed regulation will place additional
requirements on impoundments, but will not relieve the CCR owner/operator of existing
requirements, nor exclude the permittee from the responsibility of obtaining other state, local, or
federal permits.
(38) Subject Matter: 401 KAR 46:110, Design and implementation of groundwater monitoring
(a) Commenter: Todd Hendricks
Comment: Unfortunately, the federal CCR Rule is not a good fit geologically for
Kentucky, where some 40% of the land area overlies karst geology. No specific provision for
monitoring karst groundwater via springs is made in the CCR Rule. Only wells are specified as
monitoring points in the regulation.
Some CCR unit owners and operators, their attorneys, and their consulting engineers are
interpreting 40 CFR 257.91 to mean that only wells installed in accordance with the CCR Rule
can be acceptable monitoring points under the rule, and that existing state monitoring systems,
(which are the product of site-specific geological evaluation) and the data collected from them
are irrelevant for the purpose of the federal CCR Rule.
However, 40 CFR 257.91(a) (2) states, All potential contaminant pathways must be
monitored. A well or a spring (including those permitted under a state program) that has
confirmed exceedances attributable to releases from a CCR unit is situated on a contaminant
pathway, and must be monitored. Will a facility that is already in groundwater contamination
assessment and/or corrective action be allowed to stop the process that was initiated pursuant to
the present state regulations (401 KAR 45:160), and return to detection monitoring under the
federal CCR rule until data collection pursuant to 40 CFR 257.94(b) is complete? It appears that
24
if the present permits and all conditions become null and void, and if the facility is no longer
subject to the requirements of 401 KAR Chapter 45, this could be a possible outcome.
(b) Response: Facilities that are subject to 401 KAR Chapter 46 that are currently in
groundwater assessment or corrective action must continue to address the contamination.
Monitoring wells constructed by a facility pursuant to the requirements of 401 KAR Chapter 45
can be used to characterize the nature and extent of the release, and act as additional monitoring
wells necessary to define contaminant plumes pursuant to 40 C.F.R. 257.95 and 401 KAR
46:110.
25
(42) Subject Matter: 401 KAR 46:110, Dust control and emissions
(a) Commenter: Kentucky Resources Council
Comment: Dust control and fugitive dust emissions have been a significant problem for
CCR waste piles and impoundments in Jefferson County and elsewhere in the Commonwealth.
The Divisions for Air Quality and Waste Management should retain authority to review the
adequacy of fugitive dust control plans, and not the utility or landfill owner.
(b) Response: 40 C.F.R. 257 requires owners and operators of CCR units to make
information regarding CCR units electronically available to the public, including fugitive dust
control plans. The proposed regulations do not affect the enforcement authority of the Division
of Air Quality or the Cabinet.
(44) Subject Matter: 401 KAR 46:110, Violations of environmental performance standards
(a) Commenter: Kentucky Resources Council
Comment: Once of the more troubling aspects of the proposed regulation is that it would
appear to allow facilities that are currently under Agreed Orders for violations of the
Environmental Performance Standards, to transition to a permit-by-rule environment, since
pursuant to Agreed Orders the parties concede that there is no violation of the environmental
performance standards.
(b) Response: The cabinet disagrees that parties entering an Agreed Order concede there
are no violations of Environmental Performance Standards. 401 KAR Chapter 46 establishes
non-compliance provisions that allow the Cabinet to enforce the standards under its own statutes
and regulations.
(45) Subject Matter: 401 KAR 46:110, Violations of environmental performance standards
(a) Commenter: Todd Hendricks
Comment: Will CCR landfills, surface impoundments, and beneficial use facilities be
required to follow the relevant environmental performance standards of 401 KAR 30:031?
(b) Response: 401 KAR 30:031 applies to facilities and users that are regulated by 401
KAR Chapter 46.
(46) Subject Matter: 401 KAR 46:110, Violations of environmental performance standards
(a) Commenter: Todd Hendricks
Comment: Will they be considered open dumps if they violate environmental
performance standards, and be subject to having their permits-by-rule revoked, modified, or
suspended pursuant to KRS 224.10-100?
(b) Response: 401 KAR 46:120 provides for enforcement actions in the event of noncompliance.
(47) Subject Matter: 401 KAR 46:110, Violations of environmental performance standards
(a) Commenter: Todd Hendricks
27
(48) Subject Matter: 401 KAR 46:110, Incompatibility with KRS 322A
(a) Commenter: Todd Hendricks
Comment: As stated previously, a significant weakness of the federal CCR Rule is that it
relies on self-regulation by the facilities and self-certification by Professional Engineers
regarding every aspect of the siting, design, construction, operation, environmental monitoring,
and reporting regarding CCR units.
KRS 322A establishes licensure for Professional Geologists. However, 401 KAR 46:110
Section 8 incorporates by reference and without modification the requirement in the CCR Rule
that Professional Engineers certify all geological studies, groundwater monitoring systems,
monitoring reports, and all aspects of groundwater assessment and corrective action.
Incorporation of the federal regulation by reference without modification has the effect of
prohibiting a Professional Geologist from the independent practice of geology regarding CCR
facilities to which he or she is entitled by law. This represents a violation of KRS 224.10-100
(28).
(b) Response: KRS 224.10-100(28) states that the cabinet shall have the power and
authority to [p]romulgate administrative regulations not inconsistent with the provisions of law
administered by the cabinet. The Cabinet does not administer the laws governing the licensure
or professional conduct of engineers or geologists, and nothing within this regulation authorizes
professionals licensed in Kentucky to violate their standards of professional conduct.
Comment: It is ironic, and of great concern that 401 KAR 46:120 Section 1 imposes a
number of performance requirements on beneficial uses of CCR that are not required for disposal
facilities:
- Beneficial uses are required to avoid violation of 401 KAR 30:031, yet disposal of CCR
is not similarly required to meet those environmental performance standards;
- Beneficial use is required to avoid presenting a threat or potential threat to human health
and the environment, yet there appears to be no similar obligation for permit-by-rule landfills or
ponds;
- Beneficial uses are required to avoid creation of a nuisance from fugitive emissions, yet
there is no similar requirement for CCR disposal facilities;
- The beneficial user is required to characterize the waste pursuant to 401 KAR 31:030
(i.e. whether it is a hazardous waste), yet there is no characterization requirement for disposal
facilities;
- An annual report is required for beneficial use, but no reporting of data, including
monitoring data, is required of disposal facilities.
The failure to extend these obligations, as well as the clear obligation to meet and
demonstrate the compliance with the siting and environmental performance standards prior to
permit issuance, is a recipe for disaster. (KRC)
In the proposed regulation, 401 KAR 46:120 Section 1 seems to require a higher standard
of performance for beneficial use when compared to surface impoundments and landfills.
Subsection 2 states that a beneficial use is deemed to have a permit-by-rule only if it is in
compliance with 401 KAR Chapter 46 and the environmental performance standards of 401
KAR 30:031. However, Section 1 (1) allows landfills and surface impoundments remain permitsby-rule even when the CCR unit is in violation of the provisions of Chapter 46 as well as 401
KAR 30:031. This makes no environmental sense, given that human and environmental receptors
do not distinguish between contaminants produced from a landfill, a surface impoundment, or a
beneficial use facility.
(b) Response: CCR units must comply with all requirements of 40 C.F.R. 257.50
through 257.107. Both CCR units, and beneficial use of CCR, must comply with 401 KAR
30:031. The federal requirements for the beneficial use of CCR are limited to the definitions in
40 C.F.R. 257.53. The Cabinet is further requiring a person who beneficially uses CCR in
Kentucky to comply with the requirements of 401 KAR 46:120, Section 1(2). The requirements
for siting, operation, recordkeeping, and other activities at a CCR unit are established in 40
C.F.R. 257.
29
Chapter 46, including the financial assurance required under 401 KAR Chapter 45. All financial
assurance will be returned to the utilities. As a consequence, in the event of the bankruptcy of a
utility owning CCR unit, the relevant unit or units will have to be closed under Superfund, which
is both slow and expensive for the taxpayers. Unnecessary delays could result in greater costs to
the taxpayers and greater impacts to human health and the environment.
Financial Assurance should not only be retained for CCR landfills, it should be extended to
include closure of all surface impoundments.
(b) Response: The Cabinet has amended the regulation to require financial assurance for
new CCR units and certain existing CCR units.
(a) Commenter: East Kentucky Power Cooperative and Utility Information Exchange of
Kentucky
Comment: 401 KAR 46:120, Section 2(3) gives the Cabinet 365 days to respond to
request for Notice of Concurrence. This time frame seems too long and could result in delays in
construction. UIEK requests that the time period be reduced to 180 days. UIEK appreciates the
opportunity to provide these comments on the Cabinet's proposed CCR regulations.
(b) Response: Given that a Notice of Concurrence is not restricted to a single aspect of
CCR operation, a 365-day time frame is required in the event that an owner or operator submits a
request for review of the complete site design. It is always the cabinets goal to issue all
decisions in a timely manner.
(b) Response: CCR units not subject to 401 KAR Chapter 46 will continue to be subject
to the requirements and regulations of 401 KAR Chapter 45.
33
4)(a) Failure by the applicant to provide the requested information and documentation within
ninety (90) days of issuance of a deficiency letter established in subsection (3)(b) of this section
shall cause the CCR Permit-by-rule Notice of Concurrence Request, DWM 4610, to expire.
(b) No more than two (2) deficiency letters shall be issued in accordance with subsection (3)(b)
of this section, after which the CCR Permit-by-rule Notice of Concurrence Request, DWM 4610,
shall expire.
(b) Response: The cabinet will make this change.
with existing statute and regulation. In particular, the word invalidate does not appear in KRS
224.10-100. Instead, the statute uses the terms issue, continue in effect, revoke, modify,
suspend, or deny. In 401 KAR 40:040, the applicable terms are modify, suspend, revoke, and
discontinue.
(b) Response: The term invalidate is used in 401 KAR 46:120, Section 6(2). The
cabinet agrees with the comment and has made the appropriate revisions.
If it allows the issuance of a permit face, a provision similar to 401 KAR 47:120, Section
36
2 and 401 KAR 45:140, Section 2 should be added to the package. This will allow the cabinet to
add provisions that are site-specific.
(b) Response: The proposed 401 KAR Chapter 46 regulations incorporate the 40 C.F.R.
257, Subpart D standards which will be applicable to all owners and operators of CCR units
pursuant to a registered permit-by-rule and to beneficial use of CCR users pursuant to permit-byrule. The proposed revised regulation requires notice of registration to be sent to registered
permit-by-rule facilities, but contains no provision to impose site specific standards. 401 KAR
Chapter 46 also establishes non-compliance provisions that allow the Cabinet to enforce the
standards under its own statutes and regulations by any remedies available to it pursuant to 401
KAR 40:040. To the extent site-specific modifications need to be made to a registered permitby-rule to address non-compliances, those modifications can be made pursuant to an
enforcement order.
The public hearing on 401 KAR 4:070, 45:010, 45:060, 46:101, 46:110, and 46:120 was held on
November 22, 2016 and verbal comments were received. Additionally, the division received
written comments on these administrative regulations. The cabinet considered all comments for
401 KAR 4:070, 45:010, 45:060, 46:101, 46:110, and 46:120, and is making the following
amendments:
401 KAR 46:101: Comments were considered and the following changes were made:
Page 2
Section 1(2)
Lines 1 and 2
After means, insert the.
Delete the following:
authorization allowing the management, disposal, or
37
Page 2
Sections 1(2) and 1(2)(a) and (b)
Lines 3 through 5
After cabinet by, delete the following:
:
(a) An owner or operator of a CCR unit; or
(b)
Lowercase A.
Page 2
Section 1(3)
Lines 6 and 7
After (3), insert the following:
Coal Combustion Residuals registered permit-by-rule or CCR
registered permit-by-rule means authorization allowing the
management, or disposal, upon notification as established in 401
KAR 46:120, Section 1(1)(c)1.
(4)
Renumber the remaining subsections accordingly.
401 KAR 46:120: Comments were considered and the following changes were made:
Page 1
TITLE
38
Line 5
After residuals (CCR), insert program.
Delete permit-by-rule.
Page 1
NECESSITY, FUNCTION, AND CONFORMITY
Line 13
After permit-by-rule, insert and registered permit-by-rule.
Page 1
Section 1
Line 14
After Section 1. CCR, insert the following:
Permits. Any person engaged in the operation of a CCR until shall
comply with this administrative regulation
Delete Permit-by-rule.
Page 1
Section 1(1)
Line 14
After (1), insert (a).
Lines 14 and 15
After CCR unit shall, insert the following:
complete and submit the following to obtain
Delete be deemed to have.
39
40
Page 2
Section 2(1)(a)
Line 7
After permit-by-rule, insert the following:
or a registered permit-by-rule
Page 2
Section 2(1)(b)
Line 10
After does not have a, insert registered.
Page 2
Section 2(2)(a)
Line 17
After (a) CCR, delete Permit-by-rule.
Page 3
Section 2(2)(e)(2)
Line 13
After has not obtained a, insert registered.
Page 4
Section 2(4)(a)
Lines 9 and 10
After section, insert the following:
41
Page 4
Section 2(4)(c)
Line 14
After of the CCR, delete Permit-by-rule.
Page 5
Section 3(1)
Line 1
After no later than, insert May 1, 2017.
Delete January 15, 2017.
Page 5
Section 3(2)
Line 6
After (2), insert the following:
Upon issuance by the cabinet of a registered permit-by-rule
Delete January 15, 2017.
Page 6
42
Section 6(2)
Line 11
After cabinet may, insert
Delete invalidate.
After CCR permit-by-rule, insert or registered permit-by-rule.
Page 6
Section 6(3)
Lines 13 and 14
After taking action to insert, revoke, modify, or suspend.
Delete invalidate.
Line 14
After CCR permit-by-rule, insert or registered permit-by-rule.
Page 6
Section 7
Line 15
After Section 7., insert the following:
Financial Assurance and Public Notice Requirements. (1) Owners
and operators shall maintain financial assurance sufficient to
complete closure and post-closure requirements established in 401
KAR 46:110:
(a) For new CCR units; and
(b) Existing CCR units which were required to establish financial
assurance in accordance with 401 KAR 45:080.
(2) Financial assurance requirements shall be in accordance with
401 KAR 45:080, Sections 4, 7, 9, and 10.
43
Page 6
Section 7(1)(a)
Line 17
After (a) CCR, delete Permit-by-rule.
After DWM 4610,, insert January 2017.
Delete September 2016.
Lines 17 and 18
After ;, delete and.
Page 6
Section 7(1)(b)
Line 19
After September 2016, insert
; and
44
The Cabinet retitled the form CCR Permit-by Rule Notice of Concurrence
Request, DWM 4610 to CCR Notice of Concurrence Request, DWM to clarify
that either permit-by-rule or registered permit-by-rule permittees could use this
form. Type of PBR was changed to Type of Permit for this reason as well.
Due to these changes, the revision date was changed on this form from September
2016 to January 2017.
The Cabinet made the addition of the form Registered Permit-by-Rule for CCR
Facility, DWM 4600, January 2017. This document was added as a registration
to be submitted by owners and operators of CCR units to obtain a registered
permit-by-rule.
45