401 KAR 102:010. Brownfield

Redevelopment Program.

 

      RELATES TO: KRS

224.1-010, 224.1-400, 224.1-405, 224.1-415, KRS Chapter 322, KRS Chapter 322A,

40 C.F.R. Part 312

      STATUTORY

AUTHORITY: KRS 224.1-415

      NECESSITY,

FUNCTION, AND CONFORMITY: KRS 224.1-415 authorizes the Brownfield Redevelopment

Program and authorizes the cabinet to implement the program. This administrative

regulation establishes application procedures for a person who owns or intends to acquire property as

defined in 401 KAR 102:005, Section 1(8). This administrative regulation also establishes

the process and procedures for obtaining the cabinet’s determination for the

applicability of KRS 224.1-415 for a person who owns or intends to acquire

property as defined in 401 KAR 102:005, Section 1(8).

 

      Section 1. Application

Procedures. An applicant shall submit to the cabinet a complete application that

consists of the following:

      (1) A notarized Brownfield

Liability Relief Eligibility Form, DEP 6056. This form shall be signed by the

applicant and include a certification of the requirements in KRS

224.1-415(2)(a);

      (2) A copy of the most

recently recorded deed for the property;

      (3) A property

management plan as established in 401 KAR 102:020;

      (4) A check or

money order for $2,500 made payable to the Kentucky State Treasurer; and

      (5) Documentation

that the applicant made an all appropriate inquiry into previous ownership and

uses of the property prior to the acquisition of the property.

      (a) For property

acquired after February 1, 2014, documentation that an all appropriate inquiry

was conducted in accordance with 40 C.F.R. Part 312 within 180 days prior to

submission of the application; or

      (b) For property

acquired prior to February 1, 2014, documentation that:

      1. An all

appropriate inquiry was conducted in accordance with generally accepted

practices when the property was acquired; and

      2. An all

appropriate inquiry was conducted in accordance with 40 C.F.R. Part 312 within

180 days prior to submission of the application.

 

      Section 2. Cabinet

Review and Notification. Within thirty (30) days of receipt of an application,

the cabinet shall issue in writing to the applicant:

      (1) A Notice of

Eligibility, in accordance with Section 3 of this administrative regulation;

      (2) A Notification

of Concurrence, in accordance with Section 4 of this administrative regulation and

as provided by KRS 224.1-415(2)(b); or

      (3) A notice from

the cabinet that:

      (a) The

application is administratively incomplete; or

      (b) A final

determination has been made that the application does not meet the provisions

of KRS 224.1-415.

 

      Section 3. Notice

of Eligibility. (1) An applicant who has met the requirements for the

Notification of Concurrence in Section 4(1) of this administrative regulation

with the exception of holding legal title to the property shall receive a

Notice of Eligibility. The Notice of Eligibility shall serve as documentation

that the applicant has met the requirements for the Notification of Concurrence

with the exception of holding legal title to the property.

      (2) The Notice of

Eligibility shall remain in effect for a period of 180 days from the date the

all appropriate inquiry, submitted pursuant to Section 1(5)(a) of this

administrative regulation, was conducted.

      (3) The cabinet

may extend the Notice of Eligibility’s expiration date. Upon receipt of an

updated all appropriate inquiry conducted pursuant to 40 C.F.R. Part 312 that

does not alter the cabinet’s finding or concurrence, the cabinet shall

establish a new expiration date. The new expiration date shall not be greater

than one (1) year from the date the all appropriate inquiry, submitted pursuant

to Section 1(5)(a) of this administrative regulation, was conducted.

      (4) The Notice of

Eligibility that has not expired shall have the effect of a Notification of Concurrence

letter upon the applicant obtaining legal title to the property until the

applicant receives from the cabinet a Notification of Concurrence letter or

denial of a Notification of Concurrence letter in accordance with subsection

(6) of this section.

      (5) The applicant

who has a Notice of Eligibility that has not expired shall, upon obtaining

legal title to the property, submit to the cabinet a copy of the recorded deed

for the property, identifying the applicant as the owner of the property within

sixty (60) business days of the deed being filed in the county clerk’s office.

      (6) The cabinet

shall, within fourteen (14) business days of the cabinet’s receipt of the documentation required in

subsection (5) of this section, issue or deny a Notification of Concurrence

as provided in Section 2(2) or (3) of this administrative regulation to an

applicant previously issued a Notice of Eligibility letter.

 

      Section 4. Notification

of Concurrence. (1) The Notification of Concurrence shall be issued to an

applicant who has met the conditions in Section 1 of this administrative

regulation and KRS 224.1-415.

      (2) The

Notification of Concurrence shall state:

      (a) The cabinet

concurs that the intended future use of the property will not interfere with the

remediation of the release of petroleum, a hazardous substance, or pollutant or

contaminant as required by the cabinet, increase the impacts of the release of

petroleum, a hazardous substance, or pollutant or contaminant on human health

or the environment, or expose the public and environment to unacceptable harm;

and

      (b) The cabinet

finds that the applicant shall not be liable for performing characterization, correcting

the effects of the release of petroleum, a hazardous substance, or pollutant or

contaminant on the environment, or performing corrective action pursuant to KRS

224.1-400 or 224.1-405.

      (3) An applicant who

has received a Notification of Concurrence shall:

      (a) Comply with

the provisions of KRS 224.1-415; and

      (b) Manage the

property in accordance with the cabinet approved property management plan and the

most recent amendments to the property management plan approved by the cabinet.

 

      Section 5. Discovered

Releases. (1) The Notification of Concurrence shall apply to all releases of

petroleum, a hazardous substance, or pollutant or contaminant certified by the

applicant in the application and in future notifications submitted pursuant to

subsection (2) of this section.

      (2) If a release or

evidence of a previously suspected release of petroleum, a hazardous substance,

or pollutant or contaminant is discovered subsequent to acquisition of the

property by an applicant who has been issued a Notice of Eligibility or a Notification

of Concurrence, the applicant shall:

      (a) Notify the Division

of Waste Management in writing of the presence of the release within fourteen (14)

business days of the release discovery; and

      (b) If the release

was not certified in the application and was not caused by the applicant, notify

the Division of Waste Management in writing that the information submitted as

part of the application in Section 1(1) of this administrative regulation is

also applicable to the discovered release.

      (3) If the

applicant who was previously issued a Notice of Eligibility receives a letter denying

a Notification of Concurrence in accordance with Section 3(6) of this

administrative regulation, then the notification requirements in subsection (2)

of this section shall no longer be applicable.

      (4) All releases of

petroleum, hazardous substances, or pollutants or contaminants caused by the applicant

shall be addressed by the applicant in accordance with the applicable local,

state, or federal law.

 

      Section 6. Change

in Property Use. Subsequent to a Notification of

Concurrence, the applicant shall provide written notice to the Division of

Waste Management if a change in property use is proposed that is different from

the property use identified in the approved property management plan.

 

      Section 7. Rescission

of Notification. The director of the Division of Waste Management may rescind or

modify in writing the Notice of Eligibility and the Notification of Concurrence

if the applicant is not in compliance with Section 4(3) of this administrative

regulation. The director of the Division of Waste Management shall rescind in

writing the Notice of Eligibility and the Notification of Concurrence if the cabinet

determines that the applicant submitted a false certification as part of its

application package.

 

      Section 8. Compliance

with other laws. Nothing in this administrative regulation alters in any way

any other legal obligations the applicant would be subject to pursuant to any

local, state, or federal law.

 

      Section 9. Incorporation

by Reference. (1) "Brownfield Liability Relief Eligibility Form", DEP

6056, November 2013, is incorporated by reference.

      (2) This material

may be inspected, copied, or obtained, subject to applicable copyright law, at

the Division of Waste Management, 200 Fair Oaks, 2nd Floor, Frankfort, Kentucky

40601, Monday through Friday, 8:00a.m. to 4:30p.m.

      (3) This material

may also be obtained on the division’s Web site at waste.ky.gov. (28 Ky.R. 1258; Am.

1606; eff. 1-14-2002; 38 Ky.R. 1643; 1846; eff. 6-1-2012; 40 Ky.R. 904; 1302;

eff. 2-3-2014.)