401 KAR 47:207. Public information procedures for petroleum-contaminated

soil treatment facilities.

 

      RELATES TO: KRS 224.01, 224.10, 224.40,

224.43, 224.50, 224.99

      STATUTORY AUTHORITY: KRS 224.10-100,

224.40-305

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100

requires the cabinet to promulgate rules and administrative regulations for the

management, processing, or disposal of wastes. KRS 224.40-305 requires that

persons engaging in the management, processing, and disposal of waste obtain a

permit. This administrative regulation establishes permit issuance and public

information procedures for petroleum-contaminated soil treatment facilities.

 

      Section 1. Definitions.

      (1) "Petroleum-contaminated

soil" means silt, sand, clay, gravel, or other earthen material; or asphalt,

concrete, or absorbent materials containing hydrocarbon concentrations above

the levels established in 401 KAR 48:205, Section 6, Table 3, but does not

exhibit a hazardous characteristic or is not a listed hazardous waste as defined

in 401 KAR Chapter 31.

      (2) "Petroleum-contaminated soil

treatment facility" means a solid waste site or facility where petroleum-contaminated

soil is treated to reduce contaminant concentrations to or below the levels

established in 401 KAR 48:205, Section 6, Table 3.

 

      Section 2. Applicability. The

requirements in this administrative regulation apply to the following

applications:

      (1) A new petroleum-contaminated soil

treatment facility permit as established in 401 KAR 47:205; or

      (2) A major modification to an existing petroleum-contaminated

soil treatment facility permit that is an increase in the amount of storage or

treatment capacity, area, or volume.

 

      Section 3. Permit Application and Public

Notice Process. (1) Upon receipt of DEP 7128, Notice of Intent to Apply for a Petroleum-contaminated Soil

Treatment Facility, as incorporated by reference in

401 KAR 47:205, Section 10, or upon receipt of a request for a major

modification to a petroleum-contaminated soil treatment facility permit in DEP

7129, Application for a Petroleum-contaminated Soil Treatment Facility Permit,

as incorporated by reference in 401 KAR 47:205, Section 10, the cabinet shall

provide a public notice that includes the items established in Section 4(1)(a)

through (d) of this administrative regulation.

      (2) Once the review in 401 KAR 47:205,

Section 3(4)(g) is complete, the cabinet shall tentatively decide whether to

issue the draft construction permit or to deny the application.

      (a) If the cabinet makes a tentative determination

to issue a construction permit, a draft permit shall be prepared that shall include

the application by reference and contain the following information:

      1. The proposed design and

specifications; and

      2. Proposed conditions to protect the

human health and environment as established in 401 KAR 47:030.

      (b) The draft permit shall be based on

the administrative record as established in Section 7 of this administrative

regulation.

      (3) Upon completion of the draft permit, the cabinet shall comply

with the public information procedures as established in Sections 4, 5, 6, and

8 of this administrative regulation.

      (4) The cost of public information

procedures established in subsection (3) of this section that are incurred by

the cabinet shall be paid by the applicant.

      (5) If the cabinet makes a determination

to issue the final construction permit, a permit shall be issued that shall

include the application by reference and contain the following information:

      (a) The design and specifications; and

      (b) Conditions to protect the human

health and the environment as established in 401 KAR 47:030.

 

      Section 4. Public Notice. (1) A public

notice shall contain the following information:

      (a) Name, address, and telephone number

of the division processing the permit action for which notice is being given;

      (b) Name, address, and telephone number

of the applicant and, if different, of the facility or activity regulated by

the permit;

      (c) A brief description of the petroleum-contaminated

soil treatment facility activities described in the permit application;

      (d) A brief description of the proposed

location of the petroleum-contaminated soil treatment facility including a

description of the primary access routes;

      (e) The location of a repository for

documents in the county in which the petroleum-contaminated soil treatment

facility is proposed or exists, including copies of the draft permit or permit,

fact sheet and application;

      (f) The time and place of a hearing if

already scheduled and procedures by which the public may participate in the

final permit decision;

      (g) The statement: "The cabinet has

issued a draft construction permit for a petroleum-contaminated soil treatment

facility. A person may comment on the draft permit within thirty (30) days of

the publication of this notice as established in 401 KAR 47:207, Section 3 or

request a hearing pursuant to 401 KAR 47:207, Section 8. If the cabinet issues

a final construction permit, any person who may be aggrieved by the permit

issuance shall have thirty (30) days to file a petition as established in KRS

224.10-420(2)."; and

      (h) Additional information as established

in KRS 224.40-305.

      (2) Public notices may describe more than

one (1) permit or permit action.

      (3) Public notices shall be of a size to

include not less than two (2) column widths for advertising and shall be in a

display format.

      (4) Public notices issued by the cabinet

shall be distributed by the following methods:

      (a) By mailing a copy of a notice to the

following persons:

      1. The applicant;

      2. Other agencies that the cabinet knows have

issued or are required to issue an environmental permit for the same facility

or activity;

      3. a. Federal and state agencies with

jurisdiction over fish, shellfish, and wildlife resources;

      b. The Kentucky Heritage Council; and

      c. Other government authorities with

jurisdiction over the petroleum-contaminated soil treatment facility, including

other affected states;

      4.a. Persons on a cabinet mailing list that

has been compiled by notifying the public of the opportunity to be put on the

mailing list through periodic publication; and

      b. Individuals shall request in writing

to be on the list;

      5. a. Adjacent property owners to the

proposed or existing facility.

      b. If, prior to issuance of the final

construction permit, an adjacent

property owner provides written evidence to the cabinet that the adjacent

property owner did not receive public notice as required in clause a. of this

subparagraph due to incorrect or incomplete information in the petroleum-contaminated

soil treatment facility permit application, the cabinet shall send a certified

letter to the adjacent property owner and allow that property owner an

additional thirty (30) days to provide public comment from the date of receipt

of the certified letter; and

      (b) Publication of a notice in a daily or

weekly major local newspaper of general circulation where the proposed or

permitted site is located.

 

      Section 5. Public Comment Period. The

public comment period shall allow at least thirty (30) days for public comment

during which an interested person may do the following:

      (1) For the public notices established in

Section 3(1) of this administrative regulation, an interested person may

request a public hearing as established in Section 8 of this administrative

regulation;

      (2) For the public notices established in

Section 3(3) of this administrative regulation:

      (a) Submit written comments on the application

or draft permit; or

      (b) Request a public hearing as

established in Section 8 of this administrative regulation; or

      (3) For issuance of the permit in Section

3(5) of this administrative regulation, file a petition for an adjudicative

hearing within thirty (30) days of the date of issuance as established in KRS

224.10-420(2).

 

      Section 6. Fact Sheet. (1)(a) A fact

sheet shall be prepared by the cabinet for a draft permit for a new or major

modification to a petroleum-contaminated soil treatment facility as established

in Section 2 of this administrative regulation.

      (b) The cabinet shall send this fact

sheet to the applicant and to a person if requested.

      (2) The fact sheet shall include:

      (a) A brief description of the petroleum-contaminated

soil treatment facility permit application that is the subject of the permit action;

      (b) 1. The type and quantity of petroleum-contaminated

soil that is proposed to be and is being stored or treated; and

      2. A summary of the facility design

including the petroleum-contaminated soil treatment area, equipment, structures,

liner, and leachate collection system specification;

      (c) A brief summary of the basis for the draft

permit conditions including references to applicable statutory or regulatory

provisions and appropriate supporting references to the administrative record as

established in Section 7 of this administrative regulation;

      (d) Reasons why a requested variance as

established in 401 KAR 30:020, Section 2 or other alternative to required standards

is justified in the draft permit;

      (e) The procedures for issuing a final

decision on the draft permit including:

      1. The beginning and ending dates of the

comment period established in Section 8 of this administrative regulation, and

the address where comments shall be received;

      2. Procedures for requesting a hearing,

and the nature of that hearing; and

      3. Procedures including public participation

in the final decision; and

      (f) The name and telephone number of a

person to contact for additional information.

 

      Section 7. Administrative Record for

Permits. (1) The provisions of a draft permit prepared by the cabinet as

established in Section 3(1) of this administrative regulation shall be based on

the administrative record.

      (2) The administrative record shall

consist of:

      (a) The application and supporting data

furnished by the applicant;

      (b) The draft permit;

      (c) The fact sheet as established in Section

6 of this administrative regulation;

      (d) Documents cited in the fact sheet; and

      (e) Documents contained in the supporting

file for the draft permit.

      (3)(a) Material readily available at the

cabinet need not be physically included at the public repository if the fact

sheet contains a specific reference to the material.

      (b) Published material need not be

physically included at the public repository if it is specifically referred to

in the administrative record.

 

      Section 8. Public Hearings. (1) The

cabinet shall hold a public hearing if public interest exists concerning a notice

of intent to apply for petroleum-contaminated soil treatment facility permit or

an application for petroleum-contaminated soil treatment facility permit.

      (2) If a public hearing is held, the

secretary of the cabinet shall designate a presiding officer for the hearing

who shall be responsible for its scheduling and orderly conduct.

      (3)The presiding officer shall allow:

      (a) Persons to submit oral or written

statements;

      (b) A five (5) minute limit on the time

allowed for oral statement by each individual; and

      (c)1. The public comment period established

in Section 5 of this administrative regulation to automatically be extended to

the close of the public meeting.

      2. The cabinet shall not extend the

thirty (30) day period to file a petition for an adjudicative hearing regarding

permit issuance as established in KRS 224.10-420(2).

      (4) A written transcript of the hearing

shall be made available to a person upon payment of the cost of copying.

 

      Section 9. Adjudicative Hearing. The

cabinet shall hold an adjudicative hearing as established in KRS 224.10-420(2) if

a petition in opposition to a permit and a request for an adjudicative hearing

is received within thirty (30) days of the issuance of a final construction permit

as established in Section 3(5) of this administrative regulation.

 

      Section 10. Response to Comments. (1) Upon

cabinet issuance of a final construction permit, the cabinet shall issue a response

to comments, which:

      (a) Specifies which provisions of the

draft permit have been changed in the final permit decision and the reasons for

the change; and

      (b) Describes and responds to comments on

the proposed permit raised during the public comment period or during a public

hearing.

      (2) The cabinet shall send the responses

to comments to commenters.

      (3) The cabinet shall document that

copies have been sent to each commenter and make copies available to the public

upon written request.

 

      Section 11. Issuance and Effective Date

of Permit. (1)(a) After the close of a public comment period as established in Section

5(2) of this administrative regulation and a hearing on a draft permit held in

accordance with Section 8 of this administrative regulation, the cabinet shall

issue a final construction permit decision as established in Section 3(5) of

this administrative regulation.

      (b) For the purposes of this section, a

final construction permit decision means a final decision to issue, deny,

modify, or terminate a permit.

      (2) A final construction permit decision

shall become effective on the date issued by the cabinet.

      (3) The cabinet shall provide notice of the

final construction permit to persons on the mailing list as established in Section

4(4)(a) of this administrative regulation. (37 Ky.R. 2781; 554; eff. 10-6-11.)