401 KAR 42:290. Ranking system.

401 KAR 42:290. Ranking system.

RELATES TO: KRS 12.010-12.020, 224.60-120, 224.60-130, 224.60-140

STATUTORY AUTHORITY: KRS 224.60-130(1)

NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.130(1) requires the cabinet to establish by administrative regulation the procedures to administer the financial responsibility and petroleum storage tank accounts of the Petroleum Storage Tank Environmental Assurance Fund. This administrative regulation establishes the criteria for ranking sites according to the extent of damage to the environment and the financial ability of the petroleum storage tank owner or operator to perform corrective action, in order to address the completion of corrective action and the subsequent payment of claims.

Section 1. Applicability. A ranking system to address the completion of corrective action and the payment of claims shall be established for the Financial Responsibility Account and the Petroleum Storage Tank Account, respectively, as set forth in Sections 2 and 3 of this administrative regulation.

Section 2. Ranking System for the Financial Responsibility Account. Facilities eligible to participate in the Financial Responsibility Account shall be ranked as follows:

(1) For purposes of determining extent of damage to the environment:

(a) Rank 1. Those facilities that are the source of confirmed contamination to domestic use wells, springs, or cisterns exceeding the levels specified in Groundwater Table I of the Classification Outline, (August 2006), incorporated by reference in 401 KAR 42:080.

(b) Rank 2. Those facilities required to use the levels listed in Class IV and Groundwater Table I of the Classification Outline, (August 2006), incorporated by reference in 401 KAR 42:080, where groundwater contamination has been confirmed at levels exceeding those listed in Groundwater Table I but has not resulted in the contamination of domestic use wells, springs, or cisterns. Facilities conducting corrective action under the provisions of 401 KAR Chapter 42 in effect prior to April 18, 1994 shall be placed into this ranking if required to utilize the levels listed in Groundwater Table I and groundwater contamination has been confirmed at levels exceeding those listed in Groundwater Table I.

(c) Rank 3. Those facilities required to use the levels listed in Class III and Groundwater Table I of the Classification Outline, (August 2006), incorporated by reference in 401 KAR 42:080, where groundwater contamination has been confirmed at levels exceeding those listed in Groundwater Table I but has not resulted in the contamination of domestic use wells, springs, or cisterns.

(d) Rank 4. Those facilities required to use the levels listed in Class IV and Groundwater Table II of the Classification Outline, (August 2006), incorporated by reference in 401 KAR 42:080, where groundwater contamination has been confirmed at levels exceeding those listed in Groundwater Table II but has not resulted in the contamination of domestic use wells, springs, or cisterns. Facilities conducting corrective action under the provisions of 401 KAR Chapter 42 in effect prior to April 18, 1994 shall be placed into this ranking if required to utilize the levels listed in Groundwater Table II and groundwater contamination has been confirmed at levels exceeding those listed in Groundwater Table II.

(e) Rank 5. Those facilities required to use the levels listed in Class III and Groundwater Table II of the Classification Outline, (August 2006), incorporated by reference in 401 KAR 42:080, where groundwater contamination has been confirmed at levels exceeding those listed in Groundwater Table II but has not resulted in the contamination of domestic use wells, springs, or cisterns.

(f) Rank 6. All other facilities that are not included in Ranks 1, 2, 3, 4, or 5, as specified in this subsection.

(2) Facilities shall be further categorized within their respective Rank as determined in subsection 1 of this section, based on the financial ability of the owner or operator as follows:

(a) Facilities shall be placed in Category 1 within their respective rank if:

1. The owner’s or operator’s average total income for the last five (5) years is less than $50,000; or

2. The owner or operator is registered and recognized by the federal government as a tax-exempt nonprofit organization.

(b) Facilities shall be placed in Category 2 within their respective rank if the owner’s or operator’s average total income for the last five (5) years is more than $50,000 but less than $100,000.

(c) Facilities shall be placed in Category 3 within their respective rank if the owner’s or operator’s average total income for the last five (5) years is more than $100,000.

(d) Facilities within each category shall be further prioritized based on the cabinet’s evaluation of the threat posed to human health and the environment by the release from a petroleum storage tank.

(e) The cabinet shall utilize the information provided in an owner’s or operator’s Application for Assistance, incorporated by reference in 401 KAR 42:250, for purposes of determining financial ability to perform corrective action.

(3) Cabinet inspectors shall be provided access to a facility for the purpose of verifying facility classification. Refusal by an owner or operator to allow access requested by cabinet inspectors will render the facility ineligible for reimbursement from the cabinet.

(4) If the cabinet receives misrepresentations, or otherwise inaccurate information, or receives new information related to specific facilities, it may amend facility rankings and categories in accordance with subsections 1 and 2 of this section.

(5) A facility that has been ranked based upon accurate classification of the facility shall not thereafter receive a lower priority ranking as a result of the performance of directed corrective actions.

Section 3. Facilities eligible to participate in the Petroleum Storage Tank Account shall be ranked as follows:

(1) For purposes of determining extent of damage to the environment:

(b) Rank 2. Those facilities required to use the levels listed in Class IV and Groundwater Table I of the Classification Outline, (January 2006), incorporated by reference in 401 KAR 42:080, where groundwater contamination has been confirmed at levels exceeding those listed in Groundwater Table I but has not resulted in the contamination of domestic use wells, springs, or cisterns. Facilities conducting corrective action under the provisions of 401 KAR Chapter 42 in effect prior to April 18, 1994 shall be placed into this ranking if required to utilize the levels listed in Groundwater Table I and groundwater contamination has been confirmed at levels exceeding those listed in Groundwater Table I.

(f) Rank 6. All other facilities that are not included in Ranks 1, 2, 3, 4 or 5, as specified in this subsection.

(2) Facilities shall be further categorized within their respective Rank as determined in subsection 1 of this section, based on the financial ability of the owner or operator (applicant) as follows:

(a) Facilities shall be placed in Category 1 within their respective rank if:

1. The owner’s or operator’s average total income for the last five (5) years is less than $50,000; or

2. The owner or operator is registered and recognized by the federal government as a tax-exempt nonprofit organization.

(b) Facilities shall be placed in Category 2 within their respective rank if:

the owner’s or operator’s average total income for the last five (5) years is more than $50,000 but less than $100,000.

(e) The cabinet shall utilize the information provided in an owner’s or operator’s Application for Assistance for purposes of determining financial ability to perform corrective action.

Section 4. Ranking Allocations. (1) Issuance of written directives shall be prioritized for facilities within the Financial Responsibility Account and the Petroleum Storage Tank Account, respectively, according to rank and category, in the following order:

(a) Rank 1, Category 1;

(b) Rank 1, Category 2;

(d) Rank 2, Category 1;

(e) Rank 2, Category 2;

(f) Rank 2, Category 3;

(g) Rank 3, Category 1;

(h) Rank 3, Category 2;

(i) Rank 3, Category 3;

(j) Rank 4, Category 1;

(k) Rank 4, Category 2;

(l) Rank 4, Category 3;

(m) Rank 5, Category 1;

(n) Rank 5, Category 2;

(o) Rank 5, Category 3;

(p) Rank 6, Category 1;

(q) Rank 6, Category 2;

(r) Rank 6, Category 3.

(2) The cabinet shall consider the current legislatively-enacted budget, associated appropriations, and available funding in making the allocations described in subsection 1 of this section.

(3) The cabinet shall notify owners or operators of the decision to suspend written directives for specified rankings within either the Petroleum Storage Tank Account or the Financial Responsibility Account, respectively, upon a determination of insufficient funding being available to initiate corrective action in all rankings.

(4) Actions directed and documented by the Environmental Response Team, upon the cabinet’s declaration of an environmental emergency, shall take priority over the ranking system in this administrative regulation. Once the Environmental Response Team terminates the emergency phase, subsequent actions at the facility shall be prioritized in accordance with this administrative regulation.

(5) Facilities performing site checks or initial abatement at the written direction of the cabinet shall be reimbursed in lieu of the ranking system. (19 Ky.R. 1482; Am. 1799; eff. 3-12-93; 21 Ky.R. 1181; 1508; eff. 1-9-95; 23 Ky.R. 2230; eff. 4-9-97; 25 Ky.R. 1110; 1917; 2863; eff. 6-9-99; Recodified from 415 KAR 1:090, 2-17-2005; 32 Ky.R. 2130; 33 Ky.R. 476; 749; eff. 9-13-06.)