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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

KRC Comments on Rewrite of State Hazardous Waste Regulations  Posted: March 2, 2007
February 28, 2007

Bruce Scott, Director
Division of Waste Management
14 Reilly Road
Frankfort, KY 40601

Re: Proposed Amendments, 401 KAR Chapter 30-44
Dear Bruce:

What follows are KRC’s comments concerning the proposed amendments to 401 KAR Chapters 30, 33, 35, 36, 37, 28, 43 and 44.

General Comments Applicable to All Regulations Amended

KRC continues to have a fundamental concern that the proposed revisions make the regulations much 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 overhaul 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.

KRC questions also the basis for the proposed changes, which is ostensibly to facilitate the revision of state standards as federal counterpart regulations change. The adoption by reference of federal regulations, of necessity due to anti-delegation jurisprudence, requires reference to specific editions of the CFR, so that if and when federal regulatory changes occur, the state will have to amend state regulations in any event. The loss of utility of the state regulations for all users more than offsets any anticipated gain in agency time from this new approach.

It is also unclear whether the Cabinet intends, by deleting the text of the regulations and replacing them by and large with federal references, to remove Kentucky-specific text that has been adopted into state regulation, such as for groundwater protection. To the extent that any such changes are intended or inadvertently occur, KRC opposes any weakening of the substantive or procedural protections of existing state regulations.

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.

Finally, the use of the phrase “shall be governed by” throughout the amended regulations with reference to a federal regulation should be replaced with a statement that the provisions of that federal regulation are incorporated by reference. The term “shall be governed by” creates some unnecessary ambiguity as to whether the state intends to require and enforce compliance with those requirements through the state delegated program and state regulations, or whether the governance of those activities is considered outside the scope of the state program regulations. The activities “shall be governed” by state regulations that incorporate federal standards, except as modified. It should be clarified that the federal requirements are incorporated into the state regulations and that the state agency intends to administer a state RCRA program utilizing the state regulation that incorporates those federal requirements.

Specific Comments



401 KAR 30:005 Section 1
401 KAR 33:005 Section 1
401 KAR 36:005 Section 1
401 KAR 37:005 Section 1
401 KAR 38:005 Section 1
401 KAR 43:005 Section 1

The modifications, exceptions and additions set forth in Section 1 cannot lawfully “amend” 40 C.F.R. 260.10, since the Cabinet is without authority to amend federal regulations. Different language reflecting that the federal regulations are adopted and incorporated by reference into state regulation with certain modifications, exceptions and additions as provided below is a more appropriate way to express the intention of the agency to modify otherwise-applicable federal requirements.

401 KAR 35:070 Section 4(4)

KRC is concerned with the limiting language that considers a release to occur, in the case of alterations of pH, only where the pH is decreased. Significant changes in elevation of pH above background can be indicative of constituents that are reactive and caustic and are hazardous in their own right or which, due to elevated alkalinity (such as FBC ash) release PAHs or metals of concern. Statistically significant changes in pH, rather than only decreases, should be considered.

401 KAR 36:020 Section 2(2)

a “.” should be added after “incorrect” and the word “the” should be capitalized; or a semicolon should be inserted after “incorrect”.

401 KAR 36:025

The Cabinet is correct that the tables should be modified to reflect Kentucky’s statutorily-endorsed policy of basing risk-specific doses on a 10 –6 factor.

Cordially,

Tom FitzGerald
Director


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