410 KAR 1:010. Application process.
RELATES TO: KRS 224.2201, 224.2203, 224.2207, 224.2209, 224.2211, 224.2213, 224.2215, 224.855, 224.862, 224.864, 224.866
STATUTORY AUTHORITY: KRS 224.2205
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.2205 requires the Regional Integrated Waste Treatment and Disposal Facility Siting Board to adopt administrative regulations establishing a fee or schedule of fees for the cost of processing applications for certificates of environmental safety and public necessity and prescribing the manner in which the board shall process applications. This administrative regulation establishes the process by which the board shall receive and review applications for certificates of environmental safety and public necessity.
Section 1. Applicability. This administrative regulation applies to any person who requires a certificate of environmental safety and public necessity to construct or operate a regional integrated waste treatment and disposal demonstration facility as defined in KRS 224.2201.
Section 2. Application Requirements. The application for a certificate of environmental safety and public necessity shall consist of the following:
(1) A copy of the complete permit application for a hazardous waste site or facility submitted to the Environmental and Public Protection Cabinet. The application must be accompanied by a copy of the notice of intent to issue a construction permit from the Environmental and Public Protection Cabinet. Where information requested in this section is already provided in the permit application, a notation should be included to that effect.
(2) A description of the waste material to be managed at the proposed facility including, but not limited to:
(a) A description of the types of materials that are anticipated to be received at the facility and the primary market area from which the materials will originate;
(b) A description of the anticipated transportation methods to be used including highway, rail, water and air; and
(c) A description of the anticipated route(s) including primary and secondary roads, by which waste is anticipated to be transported.
(3) A statement which demonstrates and documents each of the following:
(a) The facility will receive wastes from a region larger than the county boundaries within which it is proposed and from more than one (1) person.
(b) The facility will utilize multiple treatment and disposal methods including a secure landfill and a high technology incinerator.
(c) The facility will be designed to promote resource recovery and energy generation from hazardous waste.
(d) The facility will be designed to promote the use of state-of-the-art techniques for rendering waste nonhazardous and for disposing of waste in a manner that minimizes the risk to public health and long-term environmental impacts.
(e) The facility will contain an industrial park component. Property contiguous to the facility must be reasonably available for its development or the site must be of sufficient size to accommodate new industrial and commercial concerns. Contracts, leases or other documentation must be submitted as proof of availability of land for an industrial park.
(f) Any grant, contract, agreement, sale of state property or other form of assistance to the facility provided by the Commonwealth in accordance with KRS 224.896.
(4) A statement of social and economic impacts to the affected community including, but not limited to:
(a) The population density on the site and within five-tenths (0.5) miles of the facility. This is to be determined by multiplying the average persons per household for the county(ies) within this five-tenths (0.5) mile zone, by the number of residential structures indicated on maps. In addition the applicant shall provide population data for the county(ies) using the latest U.S. Census Bureau projections; the percentage change from the previous census projection; an estimate of the county population for twenty (20) years into the future; and the percentage change from the current population and the distance to and population of any cities within ten (10) miles.
(b) The proximity to structures including airports, schools, hospitals, churches, commercial centers, nursing homes, prisons, other sensitive populated structures, and cemeteries.
(c) An identification of the proposed project's compatibility with local development plans and ordinances.
(d) An identification of lands designated for industrial use contiguous to the proposed facility and within the county. In addition, the applicant shall provide an assessment of the proposed facility's proximity to utilities.
(e) An emergency response plan to include:
1. A statement of the availability of emergency services including an estimated response time for police, fire, ambulance and other necessary safety services.
2. An emergency warning system to alert residents within five-tenths (0.5) mile of the proposed site and transportation routes of any sudden releases of hazardous wastes.
3. An evacuation plan to be followed in the event of any sudden release of hazardous waste or other emergencies.
(f) An assessment of the population within five-tenths (0.5) miles of the transportation route including the number of dwelling units, schools, hospitals and shopping centers. A transportation route is defined as the highway route(s) between the site entrance and rail yard, or dock facility, or primary interstate or limited access interchange(s) used by site-bound motor carriers to deliver wastes to the site. The applicant shall identify the length of the transportation route(s); any transportation restrictions such as weight restrictions or bridge height restrictions; accident rate of the transportation route(s); and the potential adverse impact on the adjacent population and transportation structure due to the nature and volume of waste traffic.
(g) An identification of lands dedicated in public trust including publicly owned lands within two (2) miles of the proposed facility and an assessment of the impact the proposed facility will have upon these lands. Publicly owned lands shall include the following facilities owned and maintained or formally designated for acquisition by agencies of the federal, state or local government (including multicounty or multistate agencies):
1. Wilderness or scenic areas;
2. Wildlife or bird sanctuaries;
3. Archaeological sites;
4. Game lands;
5. National, state or local parks, and recreation areas;
6. Historic sites and landmarks; and
7. Other natural areas.
(h) A comparison of public revenue to public expenditures associated with the facility explaining whether public revenues would be anticipated to be greater than or less than public expenditures and justification for the conclusions.
(i) An assessment of the proposed facility's impact on property values, including:
1. The effect on property values considering established trends of property values using historical data and the projected effect of the proposed facility on those established trends; and
2. The overall economic effect upon the community and adjoining areas considering new employment to be provided at the proposed facility, changes in the tax base, and the potential for industrial development.
(j) An assessment of existing alternatives to the technology of the proposed facility and a statement of justification for selection of the proposed technology.
(k) A statement of the resource recovery and energy generation benefits that may be available.
(l) An assessment of the direct economic benefits to the affected municipality(ies) and county(ies) including property taxes, gross tax potential, and employment opportunities, and potential community support services to be furnished by the applicant.
(m) An assessment of the proposed facility's impact on any state-owned commercial low-level nuclear waste disposal site.
(n) An assessment of the proposed facility's compatibility with the state hazardous waste management plan established under KRS 224.033(24).
(5) A statement of the environmental impacts to the area surrounding the proposed facility. In as much as the applications for a hazardous waste facility permit and an air emission permit submitted to the Environmental and Public Protection Cabinet may contain in part or whole the requirements of this subsection, the applicant may reference those applicable sections when submitting the application for a certificate of environmental safety and public necessity. However, the applicant shall submit such additional information as may be necessary to fulfill the requirements of this subsection to include information concerning:
(a) The geology of the proposed site including:
1. Rock type.
2. Rock attitude (i.e., degree of inclination).
3. Macro and micro structures.
4. Fractures and cleavage.
5. Weathering properties including resistance to and reactions with water, acid solutions or alkaline solutions, and freeze and thaw action.
(b) Groundwater at the proposed site including:
1. An assessment of potential flow through karst channels.
2. A characterization of the uppermost aquifers and aquitards at the proposed facility including:
a. The extent and relative boundaries;
b. The properties such as porosity, fracturing, and composition;
c. The ion exchange capacity;
d. The hydraulic conductivity;
e. The hydraulic gradient;
f. The hydrodynamic dispersion properties;
g. The distance from the surface;
h. The direction of groundwater flow;
i. The velocity of groundwater flow;
j. The quality and quantity of the aquifer;
k. A characterization of recharge and discharge areas; and
l. The potentiometric surface.
3. A characterization of current and potential water use hydraulically downgradient from the proposed facility including the current or potential use as a drinking water source, and an inventory of wells and springs within one (1) mile of the proposed site.
4. A characterization of the unsaturated zone including;
a. The porosity of the soil and geologic formations overlying the aquifer(s);
b. The hydraulic conductivity;
c. The hydrodynamic dispersion properties of pollutants; and
d. The soil cation exchange capacity.
(c) Surface water at the proposed site including:
1. An assessment of the potential for a 100-year flood event.
2. The stream flow data including minimum and maximum annual volumes.
3. The water quality.
4. The stream classification (i.e. perennial, intermittent, ephemeral).
5. The stream order.
6. The drainage basin area of the proposed facility both upstream and downstream.
7. The ground slope.
8. The standing water in lakes, ponds and swamps.
9. The relationship of surface water to karst features.
10. The official stream designation as:
a. Domestic water supply;
b. Primary contact;
c. Secondary contact;
d. Outstanding resource water;
e. Warm water aquatic habitat; or
f. Cold water aquatic habitat.
(d) The potential for ground failure at the proposed site due to:
1. Karst failure (i.e., sinkhole collapse).
3. Mine subsidence.
4. Seismic activity.
5. Stream-bank failure.
(e) The characteristic of the soil and other unconsolidated deposits which overlie bedrock at the proposed site including:
1. The soil classification including:
a. Depth to bedrock;
b. Texture and particle size;
c. Soil structure;
d. Soil consistency;
e. Mineralogy; and
f. Soil pH.
2. The physical characteristics including:
a. Porosity and permeability;
b. Sorption capacity;
c. Thickness in each horizon;
d. Moisture/density relationship (i.e., compaction capability); and
e. Ion exchange capacity.
(f) The mineral resources at the proposed site including:
1. Known or potential mineral deposits.
2. Mined-out areas both at the surface and underground.
3. Known or potential areas of oil and gas production or occurrence.
4. Identification of ownership of mineral rights.
(g) Air quality in the vicinity of the proposed site including:
1. Identification of ambient air quality.
2. A list of potential air pollutants that may be released by the proposed facility.
3. A map depicting the wind rose to include prevailing wind speed and direction.
4. Identification of the location where the maximum ground-level concentrations of air emissions released by the proposed facility occur:
a. Air emissions to include those listed in 401 KAR 53:010; and
b. Other emissions specified by the siting board.
5. An evaluation of the potential public health, safety and environmental aspects of air emissions released by the proposed facility.
(6) A statement regarding the experience and qualifications of the applicant. Experiences to be listed include ownership or operational responsibilities for any other hazardous waste storage, treatment or disposal facility. A list of personnel positions at the proposed facility, listing job responsibilities and minimal qualifications for each position identified, shall be provided.
Section 3. Application Submittal. (1) Application format. The applicant shall submit a complete application to the board which shall be in eight and one-half (8 1/2) inches by eleven (11) inches format and in the sequence identified in Section 2 of this administrative regulation. All loose pages shall be bound in a folder, binder or similar device.
(2) Copies of the application. Twelve (12) complete copies of the application shall be submitted to the board. An additional copy shall be provided for the public to review. This copy shall be placed in a public location within the county where the facility is proposed to be located.
(3) Deadline for submittal. Within ninety (90) days of the date that the Environmental and Public Protection Cabinet notifies the applicant of its intent to issue a construction permit, the applicant must submit an application for a certificate of environmental safety and public necessity. The board may extend this deadline upon receiving written request and justification for the extension from the applicant.
Section 4. Application Process. (1) Public notice. Within ten (10) days of receipt of a complete application, the board shall publish a notice in a local newspaper within the county where the proposed facility is to be located and in all counties contiguous to the host county in conformance with KRS Chapter 424. This notice shall contain at a minimum the following information:
(a) The location of the proposed facility.
(b) The type of activity to be conducted at the proposed site.
(c) The name of the owners(s) of the proposed facility.
(d) The location within the county of an application available for public review.
(e) The location, date, and time of a public hearing on the proposed facility.
(f) The name(s) and address(es) of individuals to contact for additional information.
(2) Notice to the county judge/executive. Within ten (10) days of receipt of a complete application, the board shall notify the county judge/executive of the county in which the facility is proposed to be located of the application's receipt and the date on which the public hearing will be held.
(3) Public hearing. The board shall schedule a public hearing no less than thirty (30) days and no more than forty-five (45) days after publication of the notice described in subsection (1) of this section unless the applicant requests a delay. The public hearing shall be held in the county in which the facility is proposed to be located.
(4) Certificate of environmental safety and public necessity.
(a) The board shall make a decision whether to issue or deny the application within ninety (90) days of the public hearing. The board may extend the ninety (90) day period for an additional thirty (30) days with written notification to the applicant. If any additional complete applications for a certificate are received by the board during this review time, an additional ninety (90) day period will be automatically provided from the time that subsequent applications are received, to allow the board time to evaluate each of the applications against the state's hazardous waste management needs, and to issue the certificate to that facility which is most consistent with the purposes and goals of KRS 224.2201 to 224.2215, 224.896, 224.987. In making the decision, the board shall consider:
1. The impact of the proposed facility on community perceptions.
2. The psychic costs of the proposed facility to the community.
3. The proximity of the proposed facility to existing and potential industrial locations within the state.
4. Whether the location of the proposed facility minimizes the transportation distances between major generators and the proposed facility.
5. The necessity of the proposed facility in relation to the waste generated within the state.
6. Whether the proposed facility minimizes the risk to public health and safety.
7. Whether the proposed facility minimizes the risks to the environment.
(b) Denial of a certificate. If the decision of the board is to deny the application, the applicant shall be sent, by certified mail return receipt requested, a notice of denial and a statement explaining the basis for the decision. The board will publish a notice in a local newspaper within the county where the proposed facility was to be located and in all counties contiguous to the host county stating that the application has been denied. The board shall immediately send written notice to the Environmental and Public Protection Cabinet of the decision to deny the application for a certificate.
(c) Issuance of a certificate.
1. If the preliminary decision is to issue a certificate of environmental safety and public necessity, the board shall notify the chairperson(s) of the interim joint committees of the Legislative Research Commission with jurisdiction in hazardous waste management or, if the General Assembly is in session, the chairperson(s) of the House and Senate standing committees with jurisdiction in hazardous waste management. The notification shall state the board's intent to issue a certificate of environmental safety and public necessity. Within thirty (30) days of the receipt of this notice, the chairperson(s) of the appropriate joint committee shall call a meeting of the committee to hear the findings of the board. Upon the close of this meeting, the board may choose to deny the application in accordance with paragraph (b) of this subsection or issue the certificate as specified in subparagraph 2 of this paragraph.
2. After presenting its findings to the appropriate joint committee, if the decision of the board is to issue a certificate, the board shall prepare a certificate of environmental safety and public necessity to be signed by the chairperson of the board. The board shall publish a notice in a local newspaper within the county where the proposed facility will be located and in all counties contiguous to the host county stating that a certificate has been issued and identifying appeals procedures. The board shall immediately send written notice of the issuance of a certificate to the Environmental and Public Protection Cabinet.
Section 5. Revocation or Suspension of Certificates. (1) The board may revoke or suspend a certificate of environmental safety and public necessity subject to such conditions as it deems appropriate consistent with KRS 224.2207 including, where appropriate provision for mitigation of local impacts. In addition, the board may revoke or suspend a certificate of environmental safety and public necessity for:
(a) Violations of permit conditions resulting in an adjudicated violation.
(b) Failure to commence construction of the facility as described within the certificate within one (1) year of the issuance of a certificate of environmental safety and public necessity.
(c) Failure to accept waste from more than one (1) county.
(d) Failure to provide access to the energy produced from the waste.
(e) Violations of conditions or mitigative requirements as required by the certificate of environmental safety and public necessity.
(f) Failure to submit all relevant facts or submittal of incorrect information on the application.
(2) Upon revocation of a certificate, the facility shall close in accordance with permit conditions unless the operation of the facility is modified so that it does not fall within the definition of a regional integrated waste treatment and disposal demonstration facility, in which case it shall be subject to the provisions of KRS 224.855(5).
Section 6. Appeals. Any person aggrieved by the decision of the board to issue or deny a certificate of environmental safety and public necessity, may take an appeal to the Franklin Circuit Court. The appeal must be made within thirty (30) days of the board's decision and shall be in accordance with KRS 224.2207(5). (11 Ky.R. 1218; Am. 1404; eff. 4-9-85; TAm eff. 8-9-2007.)