401 KAR 45:030.
Obtaining a special waste site or facility permit.
RELATES TO: KRS
146.200-146.990, 224.01, 224.10, 224.40, 224.50, 224.70, 224.99, 16 U.S.C. 661
et seq., 1273 et seq., 1531 et seq., 50 C.F.R. Part 402
STATUTORY
AUTHORITY: KRS 224.01-110, 224.10-100, 224.10-210, 224.40-305, 224.40-330,
224.50-760, 16 U.S.C. 661 et seq., 1273 et seq., 1531 et seq., 50 C.F.R. Part
402
NECESSITY,
FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt
administrative regulations for the management, processing, and disposal of
special wastes. KRS 224.40-305 requires persons who establish, construct,
operate, maintain or permit the use of a waste site or facility to obtain a
permit. This chapter establishes the permitting standards for special waste
sites or facilities, and the operating standards applicable to all special
waste sites or facilities. This administrative regulation establishes the
procedures for obtaining a permit for a special waste site or facility.
Section 1. The
Objective and Requirements of the Application for a Special Waste Formal
Permit. All applicants for a special waste formal permit shall submit an
application, on the designated application form, that contains all of the
information specified in this administrative regulation. The applicant shall
submit the application on a form approved by the cabinet and signed in
accordance with Section 10 of this administrative regulation. Engineering
drawings, specifications and studies shall be certified by a professional
engineer registered in Kentucky. The contents of the application shall be
accurate and complete before the cabinet makes a preliminary determination to
issue a special waste formal permit.
Section 2. Scope
of the Permit Requirements. (1) Except as otherwise provided in this section,
any person managing special waste shall maintain a special waste site or
facility permit as specified in Section 2 of 401 KAR 45:020.
(2) Specific
exclusions.
(a) The disposal
of mining overburden, coal mining wastes, refuse, and coal mining by-products
returned to the mine site of generation, including any nonhazardous waste
generated directly as a result of the mining operation, shall not require a
special waste site or facility permit. Owners or operators disposing of the
materials in this subsection shall obtain and be regulated by the appropriate
permit issued pursuant to KRS Chapter 350.
(b) Persons
managing special waste during emergency situations such as:
1. A spill of a
special waste;
2. An imminent
and substantial threat of a spill of special waste; or
3. A spill of a
material which, when spilled, becomes a special waste.
(3) Specific
inclusions.
(a) Owners and
operators of sites or facilities with permits under other programs for certain
aspects of the facility operation shall also obtain the required special waste
site or facility permit.
(b) Any person
who initiates or continues special waste containment or disposal activities
after emergency situations are taken shall be subject to all applicable
requirements of this chapter for those activities.
(4) Permits for
less than an entire facility. The cabinet may issue or deny a permit for one
(1) or more units at a facility without simultaneously issuing or denying a
permit to all of the units at the facility. A permit-by-rule for any unit for
which a permit has not been issued or denied shall not be affected by the
issuance or denial of a permit to any other unit at the facility.
Section 3.
Considerations of State and Federal Law. Permits shall be issued in a manner and
shall contain conditions consistent with requirements of applicable state and
federal laws. These laws include but are not limited to:
(1) 16 USC 661
et seq. (the Fish and Wildlife Coordination Act of 1958, as amended);
(2) 16 USC 1273
et seq. (the National Wild and Scenic Rivers System);
(3) 16 USC 1531
et seq. (the Endangered Species Act of 1983, as amended) and 50 CFR Part 402;
(4) KRS 146.200
to 146.360 and 401 KAR Chapters 4 and 5 (the Wild Rivers System); and
(5) KRS 146.410
to 146.990 and KAR Title 400 (the Nature Preserves System).
Section 4.
Limitations of a Permit. (1) A permit may be modified or revoked during its
term for cause as set forth in 401 KAR 45:040 and in 401 KAR Chapter 40.
(2) The issuance
of a permit shall not convey any property rights or any exclusive privilege.
(3) The issuance
of a permit shall not authorize any injury to persons or property or invasion
of other private property rights, or any infringement of state or local laws or
administrative regulations.
Section 5.
Prohibition of Use of Unpermitted Facilities. No person shall deliver, or cause
to be delivered, special waste to a site or facility unless the owner or
operator has:
(1) Submitted a
notice to the cabinet in accordance with Section 4(1) of 401 KAR 45:020 as an
existing waste site or facility in operation on or before the effective date of
this administrative regulation;
(2) Qualified
for a permit-by-rule in accordance with 401 KAR 45:060;
(3) Qualified
for a registered permit-by-rule in accordance with 401 KAR 45:070 or 401 KAR
45:100;
(4) Obtained a
solid waste facility permit providing for the disposal of special waste in
accordance with 401 KAR Chapters 47 and 48; or
(5) Obtained a
special waste formal permit in accordance with this chapter.
Section 6.
Permit Required. (1) No person shall engage in the management, processing, or
disposal of special waste at a waste site or facility without first obtaining a
permit from the cabinet as specified in this chapter.
(2) No person
shall engage in the management, processing, or disposal of special waste and
solid waste without first obtaining a permit from the cabinet as specified in
401 KAR Chapters 47 and 48.
(3) No person
shall engage in the management, processing, or disposal of special waste and
hazardous waste without first obtaining a permit from the cabinet as specified
in 401 KAR Chapters 31 to 39.
(4) An owner or
operator shall maintain a valid permit during the active life of the special
waste site or facility, including the closure and postclosure periods required
under 401 KAR 45:100 and 401 KAR 45:110.
Section 7. New
Special Waste Sites or Facilities. (1) No person shall begin physical
construction of a new special waste site or facility without having received a
special or solid waste permit.
(2) An applicant
for a special waste formal permit shall submit to the cabinet an application
that contains the information specified in Section 8 of this administrative
regulation.
(3) The site
shall be designed in accordance with the applicable requirements of this
chapter.
(4) If the
cabinet determines during the review of the application that the proposed site
cannot meet the requirements of this chapter, the cabinet shall deny the
permit.
(5) The cabinet
shall make a preliminary determination to issue or deny an application for a
special waste formal permit within 180 calendar days from initial receipt of
the application.
(6) If the
application is incomplete, the cabinet shall notify the applicant in writing of
the deficiencies. Failure to submit any required information noted by the
cabinet within ninety (90) calendar days of receipt of the deficiencies may be
grounds for denial of the application. Periods of deficiency correction shall
not be counted against the review time frame specified in subsection (5) of
this section.
Section 8.
Application for a Special Waste Formal Permit. (1) Any person who is required
to have a special waste site or facility permit under this chapter shall sign
and submit a complete application to the cabinet. The application forms are:
(a) Persons
applying for a special waste landfill permit shall use form DEP 7094A entitled
"Application For A Special Waste Landfill Permit" (May 1992). The
requirements contained in the special waste landfill permit application are
incorporated in this administrative regulation by reference. The cabinet may
require that additional information be included in the application to ensure
that a draft permit conforms with the requirements of this chapter. The permit
application form may be obtained from the Division of Waste Management, 14
Reilly Road, Frankfort, Kentucky 40601, (502) 564-6716, between the hours of 8
a.m. to 4:30 p.m., Eastern Time, Monday through Friday;
(b) Persons
applying for a special waste landfarming facility permit shall use form DEP
7021A entitled "Notice of Intent to Apply for a Special Waste Landfarming
or Composting Permit" (March 1992), and form DEP 7021B entitled
"Application for a Special Waste Landfarming Facility Permit" (May 1992).
The requirements contained in forms DEP 7021A and DEP 7021B are incorporated in
this administrative regulation by reference. Additional information may be
required by the cabinet to ensure that a draft permit conforms to the
requirements of this chapter. The permit application forms may be obtained from
the Division of Waste Management, 14 Reilly Road, Frankfort, Kentucky 40601,
(502) 564-6716, between the hours of 8 a.m. to 4:30 p.m., Eastern Time, Monday
through Friday; and
(c) Persons
applying for a special waste composting facility permit shall use form DEP
7021A entitled "Notice of Intent to Apply for a Special Waste Landfarming
or Composting Permit" (March 1992), and form DEP 7094D entitled
"Application for a Special Waste Composting Facility Permit" (May
1992). The requirements contained in forms DEP 7021A and DEP 7094D are
incorporated in this administrative regulation by reference. Additional
information may be required by the cabinet to ensure that a draft permit
conforms to the requirements of this chapter. The permit application forms may
be obtained from the Division of Waste Management, 14 Reilly Road, Frankfort,
Kentucky 40601, (502) 564-6716, between the hours of 8 a.m. to 4:30 p.m.,
Eastern Time, Monday through Friday.
(2) Alternative
application information may be used only after approval by the cabinet upon a
demonstration by a qualified registered professional engineer in accordance
with 401 KAR 30:020 that the alternative information results in information
equal to or better than that in this administrative regulation to determine
that the site and design comply with 401 KAR 30:031 and this chapter.
(3) Persons
applying for a special waste formal permit shall submit to the cabinet, as part
of the application, form DEP 7094J entitled "Past Performance Information"
(March 1992). The requirements contained in form DEP 7094J are incorporated in
this administrative regulation by reference. The past performance information
is collected in accordance with the requirements of KRS 224.40-330(1) and (3).
The information form may be obtained from the Division of Waste Management, 14
Reilly Road, Frankfort, Kentucky 40601, (502) 564-6716, between the hours of 8
a.m. to 4:30 p.m., Eastern Time, Monday through Friday.
(4) The cabinet
shall not begin the processing of a formal permit application until the
applicant has fully complied with the application requirements for a permit
pursuant to this administrative regulation, 401 KAR 45:100 or 401 KAR 45:110,
and 401 KAR 45:160.
(5) Upon
completing the review, the cabinet shall notify the applicant in writing
whether the application is complete or incomplete. If the application is
incomplete, the cabinet shall list the information necessary to make the
application complete. If the application is for an existing waste site or
facility, the cabinet shall specify in the notice of deficiency a date for
submitting the necessary information. The cabinet shall notify the applicant in
writing when the application is deemed complete after receiving any required
additional information. The notification of completeness shall also contain any
public notice required under Section 4 of 401 KAR 45:050.
(6) If an
applicant fails or refuses to correct deficiencies in the application or submit
additional information, the permit shall be denied and, if applicable,
enforcement actions taken under the appropriate statutory regulatory
provisions.
(7) If the
cabinet determines that a site investigation or visit is necessary for any
reason in conjunction with the processing of an application, the applicant or
an authorized representative of the applicant shall accompany the cabinet
representative on a site investigation or visit if requested by the cabinet.
(8) The cabinet
may require such additional information as it deems necessary in order to make
a final determination to issue a permit or deny the permit application.
Section 9.
Formal Permit Issuance. (1) The cabinet shall make a preliminary determination
to issue or deny the permit application after review of the complete
application. In making this preliminary determination, the cabinet shall
consider the requirements specified in this chapter and KRS Chapter 224.
(2) If the
cabinet makes a preliminary decision to deny the permit application, it shall
issue a notice of intent to deny. A notice of intent to deny the permit
application shall be subject to the public information process as specified in
401 KAR 45:050. If the cabinet's final decision reverses the preliminary
decision to deny the permit application, the cabinet shall withdraw the notice
of intent to deny and proceed to prepare a draft permit under subsection (3) of
this section.
(3) If the
cabinet makes a preliminary determination to issue the permit, a draft
construction permit shall be prepared containing the following information:
(a) The proposed
design and specifications; and
(b) Any
conditions in accordance with Section 2 of 401 KAR 45:140.
(4) The draft
construction permit shall be based on the administrative record outlined in
Section 3 of 401 KAR 45:050.
(5) All draft construction
permits prepared by the cabinet under this section, including those
applications for horizontal expansions under Section 1 of 401 KAR 45:040, shall
be subject to the public information process as specified in 401 KAR 45:050.
(6) After the
close of the public comment period, the cabinet shall issue a final permit
decision to issue or deny the construction permit.
(7) A final
permit decision shall become effective on the date of issuance of the
construction permit by the cabinet.
(8) The cabinet
shall document the disposition of significant comments received, and, within
thirty (30) days of a final permit decision, make this documentation available
to the public by supplying it to the repository established in the county in
which the facility is proposed.
(9) The cabinet
shall issue a construction permit if it finds that the applicant for the permit
has met all the requirements for application and the requirements of this
chapter and KRS Chapter 224.
(10) The
applicant shall maintain a construction permit in full force and effect until
the construction/operation permit is issued by the cabinet.
(11) A
construction/operation permit shall be issued by the cabinet when:
(a) The
applicant has notified the cabinet, in writing, that the liner system, if
required, has been constructed; and
(b) A
representative of the cabinet has inspected the site and verified in writing,
within thirty (30) days of the inspection, that the site has been developed in
accordance with plans approved by the cabinet;
(c) The required
financial responsibility in 401 KAR 45:080 for closure has been established
using any of the mechanisms required by 401 KAR 45:080 in an amount determined
by an approved closure plan and cost estimate; and
(d) The
applicant has submitted a certification by an engineer registered in Kentucky
that the liner system, if required, and other features have been constructed in
accordance with the approved plans and specifications.
(12) The cabinet
may issue a permit subject to specific conditions which include, but are not
limited to, types of wastes which may be accepted or disposed, special
operating conditions, schedules for compliance for corrective action, and the
issuance of other applicable permits of the cabinet.
Section 10.
Signatures to Permit Applications and Reports. (1) Applications. All permit
applications and modifications shall be signed as follows:
(a) For a
corporation, by a responsible corporate officer. For the purpose of this
section, a responsible corporate officer means:
1. A president,
secretary, treasurer, or vice-president of the corporation in charge of a
principal business function, or any other person who performs similar policy or
decision-making functions for the corporation;
2. The manager
of one (1) or more manufacturing, production, or operating facilities employing
more than 250 persons or having gross annual sales or expenditures exceeding
$25 million; or
3. A person who,
pursuant to a corporation resolution, is designated to act on behalf and bind
the corporation on all matters relating to permit applications and
modifications. A copy of the corporation resolution shall be submitted to the
cabinet attached to the permit application or modification.
(b) For a
partnership or sole proprietorship, by a general partner or the proprietor,
respectively;
(c) For a
limited partnership, by a general partner; or
(d) For a
municipality or state, federal, or other public agency, by a principal
executive officer. For purposes of this paragraph, a principal executive officer
includes:
1. The ranking
elected official;
2. The chief
executive officer of the agency;
3. A senior
executive officer having responsibility for the overall operation of a
principal geographic unit of the agency; or
4. A person
authorized, in writing, to sign on behalf of a person described in
subparagraphs 1, 2, and 3 of this paragraph. The written authorization shall
specify either an individual or a position having responsibility for the
overall operation of the regulated facility or activity, such as the position
of plant manager, superintendent, or a position of equivalent responsibility. A
duly authorized representative must thus be either a named individual or any
individual occupying a named position.
(2) Reports. All
reports required by permits, and other information requested by the cabinet,
shall be signed by a person described in subsection (1) of this section, or by
a duly authorized representative of that person. A person shall be a duly
authorized representative only if:
(a) The authorization
is made in writing by a person described in subsection (1) of this section;
(b) The
authorization specifies either an individual or a position having
responsibility for the overall operation of the regulated facility or activity,
such as the position of plant manager, superintendent, or position of
equivalent responsibility. A duly authorized representative must thus be either
a named individual or any individual occupying a named position; and
(c) The written
authorization is submitted to the cabinet.
(3) Changes to
authorization. If an authorization under subsection (2) of this section is no
longer accurate because a different individual or position has responsibility
for the overall operation of the facility, a new authorization satisfying the requirements
of subsection (2) of this section shall be submitted to the cabinet prior to or
together with any reports, information, or applications to be signed by an
authorized representative.
(4)
Certification. Any person signing a document under subsection (1) or (2) of
this section shall make the following certification: "I certify under
penalty of law that this document and all attachments were prepared under my
direction or supervision in accordance with a system designed to assure that
qualified personnel properly gathered and evaluated the information submitted.
Based on my inquiry of the person or persons directly responsible for gathering
the information, the information submitted is, to the best of my knowledge and
belief, true, accurate, and complete. I am aware that there are significant
penalties for submitting false information, including the possibility of fine
and imprisonment for such violations."
Section 11. Past
Performance Considered in Review. Past performance of the owner, operator, and
key personnel, as defined in KRS 224.01-010(44), of the special waste site or
facility shall be considered in the review for issuance or denial of the permit
application and in the determination of any requirement for specialized
conditions in accordance with KRS 224.40-330(1) and (3).
Section 12. Term
and Expiration of Permits. (1) Permits-by-rule and registered permits-by-rule
shall be perpetual unless modified or revoked by the cabinet. Permits-by-rule
and registered permits-by-rule may be automatically revoked by the cabinet if
the site or facility fails to meet the requirements of 401 KAR 30:031 or this
chapter.
(2) Special
waste site or facility construction permits shall be effective for a fixed term
not to exceed five (5) years.
(3) Special waste
landfill construction/operating permits shall be issued for the anticipated
life of the facility. A shorter period may be specified by the cabinet.
(4) Special
waste landfarming facility construction/operation permits shall be effective
for a fixed term not to exceed ten (10) years. The cabinet shall review the
conditions of the permit after five (5) years and modify the permit as
necessary.
(5) For permits
issued under this administrative regulation for a term greater than five (5)
years, the cabinet may reevaluate the terms and conditions of the permit any
time prior to the expiration date of the permit. Issued permits may be
reevaluated in accordance with the requirements of this chapter and KRS Chapter
224, including reevaluation of the bond. After reevaluation of the permit, the
cabinet may require modifications of the permit pursuant to Section 1 of 401
KAR 45:040.
(6) Modification
of term of permit. Except as provided in Section 14 of this administrative
regulation, the term of a permit shall not be extended by modification beyond
the maximum duration specified in subsections (2) to (4) of this section.
(7) Reduced term
of permit. The cabinet may issue any permit for a duration that is less than
the full allowable term under subsections (2) to (4) of this section.
Section 13.
Renewal of Formal Permits. (1) Any application to renew a construction or
construction/operation permit shall be submitted to the cabinet at least 180
days before the expiration date of the permit. Persons applying for the renewal
of a permit shall use form DEP 7095 entitled "Application for Renewal of a
Formal Permit" (March 1992). The requirements contained in the renewal
application are incorporated in this administrative regulation by reference.
The cabinet may require that additional information be included in the
application to ensure that a renewed permit conforms to the requirements of
this chapter and KRS Chapter 224. The renewal application forms may be obtained
from the Division of Waste Management, 14 Reilly Road, Frankfort, Kentucky
40601, (502) 564-6716, between the hours of 8 a.m. to 4:30 p.m., Eastern Time,
Monday through Friday.
(2) Applications
to renew a construction or construction/operation permit shall be subject to a
review in accordance with the requirements of this chapter.
(3) The cabinet,
in issuing a renewal, shall consider whether all conditions of prior permit
conditions and agreed orders have been met. The cabinet may request updated
information and impose additional or modified permit conditions when deemed
appropriate.
Section 14.
Continuation of Expiring Permits. (1) The conditions of an expired permit shall
continue in force to ensure the safe disposal of waste until the effective date
of a new permit if:
(a) The
permittee has submitted a timely application for renewal of a permit under
Section 13 of this administrative regulation. These applications shall be
complete and the applicant shall have paid the appropriate fees due under 401
KAR 45:250;
(b) The cabinet,
through no fault of the permittee, does not issue a new permit with an
effective date on or before the expiration date of the previous permit; and
(c) The cabinet
has not given written notice of permit expiration due to enforcement actions or
other reasons.
(2) Effect.
Permits continued under this section shall remain in full force and effect.
Section 15.
Termination of Permits. Special waste site or facility permits shall
automatically terminate on the expiration date unless the cabinet has reissued
the permit or issued a continuation in accordance with Section 14 of this
administrative regulation.
Section 16.
Confidentiality of Information. (1) Claims of confidentiality. Any information
submitted to the cabinet pursuant to this chapter may be claimed as
confidential by the applicant. Any such claim shall be asserted at the time of
submission in accordance with KRS 224.10-210 and 400 KAR 1:060. If no claim is
made in accordance with 400 KAR 1:060, the cabinet may make the information
available to the public without further notice.
(2) Denial of
claims of confidentiality. Claims that the name and address of any permit
applicant or permittee is confidential shall be denied. (18 Ky.R. 3080; Am.
3433; eff. 6-24-92.)
