401 KAR 31:035. Rulemaking petitions.

 

      RELATES TO: KRS Subchapters 224.10, 224.40, 224.43, 224.46, 224.50, 224.99, 40 C.F.R. 260 Subpart C

      STATUTORY AUTHORITY: KRS 224.10-100, 224.46-510(3)

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 and the waste management provisions of KRS Chapter 224 require the Environmental and Public Protection Cabinet to promulgate regulations for the generation, treatment, storage, recycling and disposal of hazardous wastes and the disposal of solid wastes. This administrative regulation establishes the procedures to add a testing or analytical method to 401 KAR Chapters 31, 34, or 35 or to exclude a waste at a particular site or facility from 401 KAR 31:010, Section 3, or the lists of hazardous wastes in 401 KAR 31:040. This administrative regulation is equivalent to federal regulations, except for the requirement to submit a fee to delist a hazardous waste. This administrative regulation differs from the equivalent federal counterpart by requiring a fee as required in KRS 224.46-014.

 

      Section 1. General. The subject matter shall be governed by 40 C.F.R. 260.20, effective July 1, 2005.

 

      Section 2. Petitions for Equivalent Testing or Analytical Methods. The subject matter shall be governed by 40 C.F.R. 260.21, effective July 1, 2005.

 

      Section 3. Petitions to Amend 401 KAR Chapter 31 to Exclude a Waste Produced at a Particular Facility. (1) Except as provided in subsections (2) or (3) of this section the subject matter shall be governed by 40 C.F.R. 260.22, effective July 1, 2005.

      (2) A check made payable to the Kentucky State Treasurer in the amount required by KRS 224.46-014 shall be submitted to the cabinet with the submission of a completed petition for each hazardous waste that is petitioned for delisting.

      (3) Upon approval by the cabinet of a petition to exclude waste from a particular facility, the excluded waste shall thereby be subject to the disposal requirements of 401 KAR Chapter 47 and the conditions as specified in the approved exclusion.

 

      Section 4. Petitions to Amend 401 KAR Chapter 43 to Include Additional Hazardous Wastes. The subject matter shall be governed by 40 C.F.R. 260.23, effective July 1, 2005.

 

      Section 5. Variances from Classification as a Solid Waste. The subject matter shall be governed by 40 C.F.R. 260.30, effective July 1, 2005.

 

      Section 6. Standards and Criteria for Variances from a Classification as a Solid Waste. The subject matter shall be governed by 40 C.F.R. 260.31, effective July 1, 2005.

 

      Section 7. Variance to be Classified as a Boiler. The subject matter shall be governed by 40 C.F.R. 260.32, effective July 1, 2005.

 

      Section 8. Procedures for Variances from Classification as a Solid Waste or to be Classified as a Boiler. The subject matter shall be governed by 40 C.F.R. 260.33, effective July 1, 2005.

 

      Section 9. Additional Regulation of Certain Hazardous waste Recycling Activities on a Case-by-Case Basis. The subject matter shall be governed by 40 C.F.R. 260.40, effective July 1, 2005.

 

      Section 10. Procedures for Case-by-case Administrative Regulation of Hazardous Waste Recycling Activities. The cabinet shall use the following procedures if determining whether to regulate hazardous waste recycling activities described in 401 KAR 31:010, Section 6, rather than under the provisions of 401 KAR 36:060 (precious metals being reclaimed).

      (1)(a) If a generator is accumulating the waste, the cabinet shall issue a notice setting forth the factual basis for the decision and stating that the person shall comply with the applicable requirements of 401 KAR 32:010, 32:030, 32:040, and 32:050.

      (b)The notice shall become final thirty (30) days after issuance of the notice, unless the person served requests a public hearing to challenge the decision.

      (c) Upon receiving a request to challenge the decision, the cabinet shall hold a public hearing. The cabinet shall provide notice of the hearing to the public and allow public participation at the hearing.

      (d) The cabinet shall issue a determination after the hearing stating whether or not compliance with 401 KAR Chapter 32 is required. The order shall become effective thirty (30) days after service of the determination, unless the cabinet specifies a later date.

      (2)(a) If the person is accumulating the recyclable material at a storage facility, the notice shall state that the person shall obtain a permit in accordance with all applicable provisions of 401 KAR Chapter 38.

      (b) The owner or operator of the facility shall apply for a permit within no more than six (6) months of notice.

      (c) If the owner or operator of the facility wishes to challenge the cabinet's decision, he may do so in his permit application, in a public hearing held on the draft permit, or in comments filed on the draft permit or on the notice of intent to deny the permit.

      (d) The fact sheet accompanying the permit shall specify the reasons for the cabinet's determination.

      (e) The question of whether the cabinet's decision was proper shall remain open for consideration during the public comment period established in discussed under 401 KAR 38:050, Section 8, and in any subsequent hearing.

 

      Section 11. Waste Decision Tree. 40 C.F.R. Part 260 Appendix I shall help persons determine with which of the administrative regulations, if any, they shall comply. Persons who need help making this determination shall refer to this appendix. (33 Ky.R. 2835; 3658; eff. 6-13-2007; Recodified from 401 KAR 30:035; 2-27-12.)