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KRC Asks State To Reconsider Proposed Hazwaste Reg Changes  Posted: June 8, 2006
June 8, 2006

April Webb, Manager
Hazardous Waste Branch
Division of Waste Management
14 Reilly Road
Frankfort, KY 40601

Tony Hatton
Hazardous Waste Branch
Division of Waste Management
14 Reilly Road
Frankfort, KY 40601

Re: Review of Draft Revisions
401 KAR Chapters 30-44

Dear April & Tony:

What follows are KRC’s preliminary thoughts and observations concerning the draft regulatory revisions to the state hazardous waste regulations. Thanks for the opportunity to review them, and I apologize for the delay in transmitting this review.

Before turning to the specific comments, let me express my fundamental concern that the proposed revisions make the regulations mush less “user-friendly,” particularly for small businesses and others who do not have an intimate working familiarity with both state and federal regulations. Replacing the text of regulations with references to federal rules and to incorporated documents requires the reader to jump from one set of regulations to another. Absent some compelling reason to have overhauled these regulations with no intended substantive effect on the scope of the program (since the state is bound by the federal counterparts and by those mandates in state law, such as the regulatory control over nerve agents), KRC is at a loss to understand why the regulatory package is being proposed, when the end result is a less understandable, less accessible, less useable and potentially less defensible set of regulations. With that general concern voiced, specific comments follow in the event that the Cabinet moves forward with this questionable venture.

401 KAR 30:005

a. The definition of “application” should be retained, since there is no federal counterpart definition, in order that the potentially regulated party knows what the agency considers to be an “application.”

b. The definition of “coal mine waste” should be modified to replace the “and” with “or” in the phrase “and to the washing and crushing of coal” so that the wastes would be included from the extraction and the cleaning or crushing of the coal. In many cases, the coal is crushed but is not washed, and as currently written, only where the coal is subject to both processes would the potentially toxic or acid-forming fines be regulated.

c. The references to the MCLs in 401 KAR 47:030 and 401 KAR 34:060 should be included in the definition of “contaminate” in order to assure that all MCLs are incorporated as standards to be met.

d. The definition of “groundwater” should be modified to retain specific reference to secondary permeability flow systems, including karst and fracture-flow systems, and perched aquifers which may be above a zone of saturation but which are used or capable of beneficial use and thus deserve protection.

e. The language in Section 3 should be modified to include after “in instances” the phrase “where the responsibility or authority is” and the words “that are” should be removed. As currently written it’s not clear what is intended to be delegable.

f. Section 3(1) needs to have the sentence completed.

g. For ease of reading, rewrite “Equivalent method” to read:

(3) “Equivalent Method” means any comparable testing or analytical method, approved by the secretary under 401 KAR Chapters 31, 47 or 48. or methods in 401 KAR Chapters 47 and 48, approved by the secretary of the cabinet.

401 KAR 30:010 Repeal

The new reference to 40 CFR 260.11 in Section 10 of 401 KAR 30:020 does not alert the reader to the fact that SW 846 has been incorporated into state regulation, nor provide where that document may be obtained. Specific reference to SW 846 should be retained in 30:020 Section 10.

401 KAR 30:020, 30:035, 30.040 & 30.071

No comments, other than our assumption that the exclusions formerly contained in 30:020(1) which are being removed are included elsewhere, explicitly or by reference to the federal counterpart; and that all of the documents contained in 30:010 and 070 have in fact been included elsewhere.

401 KAR 30:080

The proposed revision to this regulation actually removes the existing variance standard in their entirety, and creates a new and somewhat confusing reference to the “overview reference document.” The distinction among the types of waste is required to be based on the definitions, and should be spelled out in regulation. As a matter of form, if the agency intends to remove the text of 080, it should simply have repealed it and adopted a new regulation containing the proposed text. As a substantive matter, KRC assumes that the standards for variances will be elsewhere provided, in full text rather than by reference (see general comment). The chart indicating changes to the existing regulations states that current 080 is moved to 020, yet the text of proposed 020 does not incorporate the specific standards and criteria for classification as a waste, as a boiler, or as an industrial furnace.

401 KAR 31:005

In Section 1, replace “the subject matter shall be governed by” with an introduction more appropriate to a definitional section, such as “unless otherwise defined in Section 2 of this regulation, the terms contained in this Chapter shall have the meanings given them in 40 CFR 260.10.”

The definition of “spill” is inartfully drafted and should be revised to move the last clause “into or on any land or water” earlier in the definition after “dumping”.

401 KAR 31:010 & 31:170

See general comments above. The revision to the regulation saves a few pages of text at the cost of requiring the reader to jump back and forth between federal and state regulations.

The phrase “the subject matter shall be governed” is inartful, and if what is intended is that the federal regulation is incorporated by reference, that should be so stated, since in the regulatory arena, the phrase “shall be governed by” has no set meaning. Stating that the “subject matter shall be governed by” a federal regulation falls short of legally incorporating those federal standards as state regulations which can be administered and enforced by the state agency.

401 KAR 31:020, 31:030

Same comment as above.

401 KAR 31:040

In several places throughout the proposed revisions, the agency uses the phrasing that “The citation to xxx in the federal regulation referenced in subsection 1 of this section shall also include the additional language that is specific to the Commonwealth of Kentucky located at xxxx.

As written, the phrasing is confusing, since it appears that the Cabinet is attempting to amend a federal regulation to include additional language, and it is equally unclear what language is sought to be grafted onto the federal rule. The new language is a much less workable and less clear surrogate for a settled set of state regulations that had incorporated in full the federal language, and which has been adequate for these many years.

If it is the agency’s intent to add to the federal regulation, then include the additional text in this rule rather than obliquely referring back to a separate state regulation.

401 KAR 31:050

It is unclear what amendment is being proposed for this regulation, since it seems identical to existing 31:050.

401 KAR 31:100, 31:110

See comments under 31:0120 and 31:040 concerning the use of “the subject matter is governed” and the language in proposed Section 1(2).

401 KAR 31:121

The regulation should be rewritten in present tense, so that rather than stating that regulations “shall be repealed,” the regulation provides that the referenced regulations “are repealed” as of the effective date.

401 KAR 31:160

The regulation should be left as currently written (see general comment) but if the Cabinet goes forward with this proposal, the text needs rewriting to incorporate by reference the basis for listing, not to “adopt information” regarding how the “subject matter will be governed.”

401 KAR 31:190

Where the agency proposes to completely replace the text of a regulation, it should be repealed and a new regulation adopted.

401 KAR 32:010

As noted above, KRC believes that the deletion of the federally-defined regulations creates more work for the regulated and the public and makes the regulations less user-friendly. If the cabinet pursues this proposal, the phrases “the subject matter is governed” and “in instances that are delegable to the state” need replacing with more precise terms that indicate whether the federal definitions are being incorporated (and made enforceable) as Kentucky regulations, and that it is where the authority or responsibility has been delegated that the Kentucky regulation applies.

401 KAR 32:020 - 060

See previous comments.

401 KAR Chapters 33, 34, 35, 36, 37, 38, 43, 44

See previous comments.

Thank you for the opportunity to review the proposed changes. KRC urges the agency to rethink and reconsider the proposed replacement of a coherent set of regulations that have served the state well for 23 years, with a confusing set of rules that require the regulated and the public to hop between federal and state sources in order to determine compliance obligations, and which create vague references to “governance,” “delegability” and the inclusion of “language specific to Kentucky” that raise significant questions as to the meaning and the enforceability of the new rules, and which will create confusion and invite litigation.

Tom FitzGerald

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