2011 Kentucky Revised Statutes Subchapter 46 Hazardous Waste 224.46.520 Prerequisites to issuance of permit for storage, treatment, recycling, or disposal of hazardous waste -- Standards for closure -- Monitoring, maintenance, and remedial measures -- Financial responsibility -- Closure for noncompliance.
KY Rev Stat § 224.46.520 (1996 through Reg Sess) What's This?
224.46-520 Prerequisites to issuance of permit for storage, treatment, recycling, or
disposal of hazardous waste -- Standards for closure -- Monitoring,
maintenance, and remedial measures -- Financial responsibility -- Closure for
noncompliance.
(1)
No person shall engage in the storage, treatment, recycling, or disposal of hazardous
waste without first notifying the cabinet and obtaining construction and operation
permits from the cabinet. The cabinet shall promulgate regulations establishing
standards for such permits but in no case shall a permit to construct or operate a
hazardous waste site or facility or a regional integrated waste treatment and disposal
demonstration facility be issued unless it can be demonstrated that the proposed
facility can be integrated into the surroundings in an environmentally compatible
manner, including but not limited to, insuring that hydrologic, seismologic,
geologic, and soil considerations have been adequately addressed in the permit
application and in an operational plan. In no case shall a permit to construct a
hazardous waste incinerator, landfill, or other site or facility for the land disposal of
hazardous waste be approved or issued prior to notification of the cabinet by the
local unit of government of its actions pursuant to KRS 224.40-310(6). The cabinet
shall not issue a construction permit to a regional integrated waste treatment and
disposal demonstration facility until it has been issued a certificate of environmental
safety and public necessity. A person desiring a construction permit shall file an
application on forms supplied by the cabinet which shall contain such information
as the cabinet deems necessary and provide evidence that the hazardous waste shall
be treated, stored or disposed of in the manner prescribed by the cabinet. The
applicant shall not initiate construction at the proposed site of a new facility for the
storage, treatment, or disposal of hazardous waste until notice has been given to that
portion of the public most likely to be affected by the operation of the proposed
facility pursuant to KRS 224.40-310(1) to (5) and until a construction permit for
said facility has been issued by the cabinet. The cabinet may consider past
performance in this or related fields by the applicant. The cabinet, in making a
determination to issue, deny, or condition a construction permit, shall consider the
following:
(a) An evaluation of alternatives, to include other locations and other treatment,
storage, and disposal approaches, different from those proposed, available to
the applicant;
(b) An evaluation of the public health, safety, and environmental aspects of the
proposals;
(c) An evaluation of the social and economic impacts of the proposed action on
the affected community, to include, at a minimum, changes in property values,
community perception and other psychic costs, and the costs and availability
of public services, facilities and improvements required to support the facility
and protect public health, safety, and the environment;
(d) An evaluation of mitigation measures to alleviate problems identified in
paragraphs (b) and (c) of this subsection; and
(e) The relationship of the proposal to local planning and existing development.
(2)
(3)
Except that in the case of hazardous waste incinerators, landfills, or other sites or
facilities for the land disposal of hazardous waste, the provisions of paragraphs (c)
and (e) of this subsection shall be determined by the local unit of government
pursuant to KRS 224.40-310(6); in the case of a regional integrated waste treatment
and disposal demonstration facility the provisions of paragraphs (c) and (e) of this
subsection shall be determined by the siting board established pursuant to KRS
224.46-820.
The cabinet may prohibit the land disposal of any hazardous wastes. The criteria
and list of hazardous waste to be prohibited by the cabinet from land disposal shall
be identical to any such criteria and list promulgated by the United States
Environmental Protection Agency pursuant to the Resource Conservation and
Recovery Act of 1976, as amended, (Public Law 94-580). The land disposal of
hazardous waste may be permitted for methods determined by the cabinet to be
protective of human health and the environment for as long as the waste remains
hazardous.
In conjunction with the application for permits under this section, the applicant shall
establish adequate financial responsibility as follows:
(a) The applicant shall file as part of his application for a permit to construct the
facility an estimate of the cost of closing the facility after its capacity is
reached or operations have otherwise ceased and an estimate of the cost of
post-closure care. In the case of storage facilities, the cost of closing shall
include the cost of properly disposing of the hazardous waste stored. The
cabinet shall evaluate this cost estimate and either accept the estimate as made
or shall revise it in accordance with acceptable guidelines, using, where
available, actual data on closure costs associated with similar existing
facilities. Before a permit to operate can be issued, the applicant for any
hazardous waste permit shall assure that the funds needed to close the facility
are available by establishing assurance through one (1) or more of the
following mechanisms: cash, certificates of deposit, irrevocable credit, or
other sureties satisfactory to the cabinet and the mechanism shall be
established by agreement with the cabinet. The agreement shall provide that
disbursement is permissible only upon written approval of the cabinet and
whenever, on the basis of any information, the cabinet determines that the
owner or operator is in violation of any of the closure requirements for the
facility, that the cabinet shall have the right to use part or all of the closure
fund to carry out the closure requirements. The financial institution, surety
company, or escrow agent shall release these funds upon receiving a forfeiture
order of the cabinet issued pursuant to an appropriate administrative hearing
considering one (1) or more closure violations. Upon determination that
closure has been satisfactorily accomplished, the cabinet shall release the
applicant from further financial responsibility for closure;
(b) Any applicant for a hazardous waste disposal permit shall file with the cabinet
as part of his application an estimate of the annual cost of post-closure
monitoring and routine maintenance at the site. The cabinet shall evaluate the
(c)
cost estimate, and, after such modification as may be necessary in light of its
evaluation, shall give notice of acceptance of the cost estimate. This cost
estimate which will be referred to as the annual post-closure operating cost
shall then be used to determine the amount of the post-closure monitoring and
maintenance fund to be used for monitoring and maintenance for a period of a
minimum of thirty (30) years after facility closure. The post-closure
monitoring and maintenance fund shall be cash, irrevocable credit, or other
sureties satisfactory to the cabinet and shall be established by an agreement
with the cabinet. The agreement shall provide that whenever, on the basis of
any information, the cabinet determines that the owner or operator of the
facility is in violation of any of the post-closure monitoring and maintenance
requirements, the cabinet shall have the right to use part or all of the funds to
carry out the post-closure monitoring and maintenance for the facility. The
funds shall be released upon receipt of a forfeiture order of the cabinet issued
pursuant to an appropriate administrative hearing considering one (1) or more
post-closure monitoring and maintenance violations. One (1) year after
closure, and annually thereafter for a period of thirty (30) years, the applicant
who has carried out all necessary post-closure maintenance and monitoring
requirements may upon application to the cabinet be reimbursed out of the
post-closure monitoring and maintenance fund an amount equal to the
estimated costs for monitoring and routine maintenance for that year. Request
for release of funds for reimbursement shall be accompanied by an itemized
list of costs incurred. Upon determination that the expenditures incurred are in
accordance with the approved plan, or otherwise justified, the cabinet may
authorize the release of the funds to the applicant in writing. Any funds
remaining in the account following a termination hearing in which the
applicant is released of further responsibility shall likewise be released to the
applicant; and
All applicants for any hazardous waste permit shall provide evidence of
financial responsibility in an amount and for a time period specified by the
cabinet for the purpose of corrective action on and off-site and satisfying
claims arising out of injury to persons or property resulting from the release or
escape of hazardous waste into the environment. Such financial responsibility
may be established by one (1) or a combination of evidence of liability
insurance, self-insurance, or other evidence of financial responsibility
acceptable to the cabinet. The level of self-insurance shall not exceed ten
percent (10%) of equity, and financial responsibility shall be maintained
during the entire operation of the facility and until termination. The minimum
liability coverage for sudden occurrences, exclusive of legal defense costs, for
a storage, treatment, or disposal facility shall be one million dollars
(,000,000) per occurrence with an annual aggregate of two million dollars
(,000,000). The minimum liability coverage for nonsudden occurrences,
exclusive of legal defense costs, for a hazardous waste facility involving land
disposal shall be three million dollars (,000,000) per occurrence with an
annual aggregate of six million dollars (,000,000). Combined coverage for
(4)
(5)
sudden and nonsudden occurrences shall be no less than the combined totals
herein set forth for separate coverage. The cabinet shall accept a
demonstration of financial responsibility during the post-closure period of a
facility for a lesser amount for sudden or non-sudden occurrences where it is
shown that a lesser amount of financial responsibility will be adequate to
provide compensation for third-party injury or property damage and corrective
action, considering site and facility conditions and other site-specific factors.
Financial responsibility in post-closure for sudden and non-sudden
occurrences and corrective action may be demonstrated through a letter of
credit, surety or other bond, corporate guarantee, trust fund, liability
insurance, self-insurance, or combination of these or other methods as
approved by the cabinet.
The cabinet shall promulgate regulations establishing minimal standards for closure,
post-closure monitoring and maintenance, and termination of sites for the disposal
of hazardous waste. Any person who obtains a disposal permit for hazardous waste
shall be responsible for the post-closure monitoring and maintenance of the
permitted facility for a minimum of thirty (30) years after closure of the facility. The
permittee may apply to the cabinet for termination of the responsibility for postclosure monitoring and maintenance at any time during the thirty (30) year postclosure monitoring and maintenance period. Upon receipt of such application, the
cabinet shall provide notice to the public and to the owner or operator and an
opportunity for a hearing on the termination of the site. In this proceeding, the
burden shall be on the applicant to prove by clear and convincing evidence that
additional post-closure monitoring and maintenance is not necessary for adequate
protection of public health or the environment. The cabinet shall determine either
that post-closure monitoring and maintenance of the site is no longer required, in
which case the applicant shall be relieved of such responsibility; or that additional
post-closure monitoring and maintenance of the site as specified in a plan of
operation is still required, in which case the cabinet may order appropriate remedial
measures, impose restrictive covenants as to future use of the property involved, or
otherwise condition termination as may be necessary for adequate protection of
public health and the environment. The cabinet may require additional monitoring,
site maintenance, or remedial measures consistent with KRS Chapter 224 any time
after termination of the post-closure monitoring and maintenance of the permitted
facility in the event that the cabinet determines such actions are necessary for the
protection of human health and the environment.
In any case where the owner or operator is in bankruptcy, reorganization, or
arrangement pursuant to the Federal Bankruptcy Code or where jurisdiction cannot
be obtained with reasonable diligence in any state court or any federal court over an
owner or operator likely to be insolvent at the time of judgment, any claim arising
from conduct for which evidence of financial responsibility shall be provided under
this section may be asserted directly against the guarantor providing such evidence
of financial responsibility. In the case of any action pursuant to this subsection, such
guarantor shall be entitled to invoke all rights and defenses which would have been
available to the owner or operator if any action had been brought against the owner
(6)
(7)
(8)
or operator by the claimant and which would have been available to the guarantor if
an action had been brought against the guarantor by the owner or operator.
The total liability of any guarantor shall be limited to the aggregate amount which
the guarantor has provided as evidence of financial responsibility to the owner or
operator under this section. Nothing in this subsection shall be construed to limit
any other federal statutory, contractual or common law liability of a guarantor to its
owner or operator including, but not limited to, the liability of such guarantor for
bad faith either in negotiating or in failing to negotiate the settlement of any claim.
Nothing in this subsection shall be construed to diminish the liability of any person
under Section 107 or 111 of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 or other applicable law.
For the purpose of this subsection, the term guarantor means any person, other than
the owner or operator, who provides evidence of financial responsibility for an
owner or operator under this section.
Any hazardous waste treatment, storage, or disposal facility shall close in
accordance with the permit and this chapter, if the site or facility has not been
maintained in operational condition in conformance with this chapter, for any
period of six (6) months or longer. The permittee shall be afforded an opportunity to
be heard on the proposed termination of authorization to operate, and termination
under this section shall not be required where the permittee demonstrates that steps
have been taken to bring the facility, within a reasonable time not to exceed ninety
(90) days, into full operational status in accordance with this chapter and applicable
regulations. Within ninety (90) days, the cabinet shall review existing hazardous
waste treatment, storage, or disposal permits to determine compliance with this
section.
Effective: July 12, 2006
History: Amended 2006 Ky. Acts ch. 22, sec. 1, effective July 12, 2006. -- Amended
1990 Ky. Acts ch. 424, sec. 1, effective April 10, 1990; and ch. 454, sec. 1, effective
July 13, 1990. -- Amended 1988 Ky. Acts ch. 26, sec. 2, effective March 4, 1988;
and ch. 44, sec. 3, effective July 15, 1988. -- Amended 1986 Ky. Acts ch. 237, sec. 3,
effective July 15, 1986; and ch. 298 sec. 5, effective July 15, 1986. -- Amended 1982
Ky. Acts ch. 279, sec. 13, effective July 15, 1982; and ch. 299, sec. 1, effective July
15, 1982. -- Created 1980 Ky. Acts ch. 264, sec. 5, effective July 15, 1980.
Formerly codified as KRS 224.866.
Legislative Research Commission Note. Subsection 8 of this section became effective
on April 10, 1990, because of the emergency clause contained in 1990 House Bill
807, Ky. Acts ch. 424, sec. 2.
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