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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Request for Determination Regarding Applicability Of KRS 224.40.  Posted: December 13, 2001

Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428 phone (502) 875-2845 fax

e-mail FitzKRC@aol.com

December 13, 2001

Rob Daniell

Division of Waste Management

14 Reilly Road

Frankfort, Kentucky 40601

Re: Global Energy, Inc.

Request for Determination Regarding Applicability

Of KRS 224.40.

Dear Director:

After a review of the position paper submitted by Global Energy to the state Division for Waste Management, and after review of the applicable statute and case law, I believe that the facility is subject to the solid waste regulations and is required to obtain a determination of consistency from the solid waste management governing body of Clark County before importing and disposing of the solid waste fuel through thermal treatment.

By letter dated October 9, 2000, Global Energy Inc., Suite 2000, 312 Walnut Street, Cincinnati, OH 45202, through its manager of Regulatory Affairs Dwight Lockwood, requested a determination from the Kentucky Division of Waste Management as to the applicability of KRS 224.40 to the proposed integrated gasification combined cycle (IGCC) power plant project in Clark County.

The request letter from Global Energy (Hereafter Global) asserted that the proposed project was exempt from waste regulations. The 2-paged letter contained an attached Analysis of the Non-Applicability of KRS 224.40 to the Kentucky Pioneer Energy IGCC Project.

The determination of applicability of the waste regulations rests in the first instance with the Natural Resources and Environmental Protection Cabinet, subject always to review by the courts. KRS Chapter 224 is a statute that is remedial in nature and its protections are to be liberally with a view towards promoting the public and environmental protection goals of the statute. Roland v. Kentucky Retirement Systems, Ky.App.52 S.W.3d 579 (2001). Exemptions from its reach are to be narrowly construed.

The question of whether the proposed coal and waste-fueled facility is subject to the requirements of KRS Chapter 224 as a waste management and waste disposal facility is of significance to the residents of Trapp and of Clark County, since if exempted from the ambit of the term municipal solid waste facility, the planned importation of processed municipal solid waste from northeastern states representing the equivalent of roughly half of the residential waste generated in the entire Commonwealth of Kentucky will not be subject to scrutiny and a determination by the local governing body of Clark County of the consistency with that county s approved solid waste plan.

When enacted in 1991, Senate Bill 2 substantially revised state and local solid waste management, requiring of local communities that they plan for the proper management of solid waste generated within their borders and promising, in return, that the local governing body responsible for solid waste planning would have the ability to control the manner and extent to which waste generated outside of the boundary of that planning unit would be managed and disposed of within the planning area.

The proposal to thermally treat and to combust the volatile fraction of one million tons or more per year1 of treated municipal solid waste falls squarely within the type of facility intended by the General Assembly to be scrutinized under the solid waste planning process.

KRS 224.40-315 mandates that:

No permit to construct or expand a municipal solid waste

disposal facility shall be accepted for processing by the

Cabinet unless the application contains a determination from

the governing body for the solid waste management area

in which the facility is or will be located concerning the consistency of the application with the area solid waste

Management plan [.]

The scope of this statute and the requirement for a determination of consistency with the approved solid waste plan is defined by the term municipal solid waste disposal facility , which is defined in KRS 224.01-010(15) to include:

Any type of waste site or facility where the final deposition

of any amount of municipal solid waste occurs, whether

or not mixed with or including other waste allowed under

subtitle D of the Federal Resource Conservation and

Recovery Act of 1976, as amended, and includes, but is not

limited to, incinerators and waste-to-energy facilities that

burn municipal solid waste, . . .

The term is broadly inclusive of all types of waste sites or facilities where the final deposition of any amount of municipal solid waste occurs. There can be no serious argument that the feed material to be combined with the coal is a solid waste, which is to say, that the material is garbage, refuse, sludge and other discarded material. The waste is to be processed, according to the applicant, at a facility in a state other than Kentucky, where it will be manufactured from municipal solid waste by removing large objects and white goods as well as glass and metal [.] The remaining material, including chlorinated plastics, will be milled and shredded.2

These pellets are municipal solid waste processed as an intermediate step in the thermal treatment of the waste to produce a gas for combustion. The proposed facility is utilizing a fuel stream comprised of partially separated, shredded and shaped municipal solid waste used as a fuel source, disposing of the waste through thermal treatment at high temperature to drive off the volatile fraction for combustion. As such, it is engaged in disposal of a municipal solid waste stream and falls within the ambit of a municipal solid waste disposal facility the siting and operation of which should be reviewed for consistency with local solid waste plans.

The applicant claims exemption for the waste fuel from the waste program as a recovered material, yet the clearly better reading of the statute, and the intent to carefully regulate the disposal of solid waste by thermal treatment as well as other means, militates against the exemption of the material from regulation as a solid waste. The material is not a refuse-derived fuel notwithstanding the claim by the applicant to the contrary, since the applicant has indicated that it intends to retain the recoverable plastics in the waste3 (likely for the Btu value), and thus is outside of the ambit of recovered material, since that definition specifically excludes materials diverted or removed for purposes of energy recovery or combustion [] from being considered recovered material.

Assuming, for the sake of argument, that the waste were further processed over what is proposed, in order to meet the state definition of refuse derived fuel by removing all recoverable plastics and other recoverable material, such as mixed paper, corrugated paper and newsprint, the definition of recovered material still would not apply to exempt the entire waste stream from regulation since only 15% of the material processed by the facility creating the pellets could be credited as RDF.

While the acceptance by the applicant of regulation under EPA s Municipal Solid Waste Combustor standards makes it difficult to accept at face value the assertion of non-applicability of state waste designation, commenter concurs that the state law itself determines how this facility is to be characterized for purposes of state regulation.

Because the material is not a refuse derived fuel under KRS 224.01-010(23) in that it has not been subject to extensive separation of municipal solid waste including the extraction of recoverable materials for recycling the processing of the municipal solid waste stream to create the palletized fuel does not make the material a recovered material under KRS 224.01-010(20). The proposed gasification step in the process and the cleaning of the volatile fraction of the waste for combustion does not make the facility a recovered material processing facility so as to exempt it from the definition of a municipal solid waste disposal facility or to avoid the obligation to be consistent with the local solid waste plan.4

Beyond the specific failure of the application to meet the criteria for an exempt recovered material processing facility because the waste feed will retain recoverable materials, including all plastics and paper, the context in which municipal solid waste disposal facilities are regulated under KRS Chapter 224 makes clear that the attempt to shoehorn this substantial waste-fueled energy facility into the category of a recovered materials processing facility is an ill-fit from a public policy standpoint. KRS 224.01-010, which contains many of the definitions for the chapter, is prefaced with the caveat [a] s used in this chapter unless the context clearly indicates otherwise [.] The statutory provision requiring a determination of local consistency for disposal facilities was plainly intended to cover thermal treatment of municipal solid wastes with and without energy recovery, and to segment the facility into the component processes in order to exclude from the application of KRS 224.40-315 a facility which uses a sequential process of thermal treatment followed by combustion of volatile gases, and which presents many similar concerns in management of air, water and solid waste byproducts from a heterogeneous fuel source such as municipal solid waste (even if homogenous in shape), is contrary to the intent of the statute and the public policy behind it.

In sum, the Council believes that the pelletized mixed municipal solid waste does not fall within the ambit of the state statutory definition of refuse derived fuel and is thus not a recovered material. By definition, the facility is a municipal solid waste disposal facility under KRS 224.40-315(1), KRS 224.40-310 and KRS 224.01-010(15).

Commenter appreciates the Division s consideration of these comments in making a final determination as to the applicability of the waste statutes to the proposed facility.

Cordially,

Tom FitzGerald

Director

1 The Public Service Commission filing by East Kentucky Power Cooperative in response to requests for information indicated a 50-50% fuel to waste feed mix at 1 million tons of each per year, while noting that the actual feed ratio may vary.

2 Subpart Eb Siting Analysis Public Meeting and Comments, pp. 7-8.

3 Id.

4 Even assuming that the partially processed waste fell within the ambit of refuse derived fuel and the 15% limitation on RDF didn t limit the applicability of recovered material even as to RDF, the proposed facility is not a recovered material processing facility since it proposes to combust the gases created by the thermal and pressure treatment of the waste and is not storing and processing for resale or reuse. Reuse, as that term is used by the General Assembly does not include use of wastes as a fuel with or without hear recovery. The latter concept is resource recovery and is a term distinct from reuse of solid waste. See: KRS 224.43-010 (3) (which sets reuse of solid waste as a priority below reduction, and above recycling, composting, and resource recovery through mixed waste composting or incineration.

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