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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

Hazardous Waste Regulations Modified To Address KRC Concerns  Posted: June 24, 2008

June 2, 2008

Cassandra Jobe
PPA Branch, Division of Waste Management
14 Reilly Rd.
Frankfort, KY 40601

By E-Mail only

Re: Proposed Amendment 401 KAR 32:050
Proposed Amendment 401 KAR 34.080
Proposed Amendment 401 KAR 35.080
Proposed Amendment 401 KAR 37:005
Proposed Amendment 401 KAR 38:005

Dear Ms. Jobe:

These comments are submitted by the Kentucky Resources Council, Inc. concerning the proposed amendments to 401 KAR 32:050, 401 KAR 34.080, 401 KAR 35:080, 401 KAR 37:005, and 401 KAR 38:005. The Council has reviewed the proposed regulations and offers these comments:

401 KAR 32.050

1. The word apply in the first sentence of Section 1 is misspelled and should be corrected to read “apply” instead of “aply.”

2. KRC supports the remainder of the changes proposed in this regulation.

401 KAR 34.080

1. KRC is concerned that Section 2(4) allows the cabinet to replace all or part of the requirements of this administrative regulation, yet does not require notice and public comment prior to this replacement. KRC would request that public notice and comment be provided.

401 KAR 35.080

1. The provisions in Section 2(4) concerning the replacement of the requirements in this section where a regulated unit has alternative requirements for financial assurance appear to have the intent of mirroring the federal regulations at 40 C.F.R. § 265.140(d) and proposed regulation 401 KAR 34:080, but leave out language contained in those regulations that KRC feels is important to the meaning and clarity of this regulation. The proposed regulation in 401 KAR 35.080 leaves open the question of whether a permit setting out alternative requirements for financial assurance would be considered an enforceable document under the section. KRC recommends that the regulation track the language of the federal regulation and proposed 401 KAR 34.080 to preserve clarity and proposes the following modification:

(4) The cabinet may replace all or part of the requirements of this administrative regulation applying to a regulated unit with alternative requirements for financial assurance set out in the permit or in an enforceable document where the cabinet:

2. Additionally, KRC proposes that in all cases where the cabinet attempts to replace all or part of the requirements of 401 KAR 35.080, that the replacement of such requirements be noticed and subject to public comment, since the form and sufficiency of financial assurance is critical to assuring that closure and postclosure requirements are met.

401 KAR 37.005

1. KRC noticed the following typographical errors in 401 KAR 37:005: In Section 1(5) the word “plan” should be changed to “plant;” in Section 1(24), “wit” should be changed to “with.”

2. The definition of “debris” (Section 1(5)) concerns KRC because it appears to allow material that contains hazardous waste to be characterized as “debris” since a material must only be “primarily” comprised of “debris” to be so classified. KRC proposes that the definition of “debris” include an express prohibition against the blending of hazardous waste, consistent with the prohibition in the definition of “soil” in Section 1(24).

3. It appears that the definition of “debris” was intended to be identical to the federal definition of “debris” in 40 CFR 268.2, however a portion of this definition was omitted, making the regulation unclear. The proposed definition of “debris” states that “process residuals such as smelter slag and residues from the treatment of waste that are not ruptured and that retain at least seventy-five (75) percent of their original volume” are not debris. KRC assumes that the proposed regulation was intended to be identical to the federal regulation since it is unclear how smelter slag and residues could rupture or why the regulation would only apply to ruptured smelter slag and residues as opposed to all smelter slag and residues. Additionally, KRC is concerned that the definition of debris, as proposed, would include residues from wastewater, sludge, and air emissions residue. Therefore, in light of the above suggestions, KRC suggests that the definition of debris read consistent with the federal regulation and exclude from the definition of debris “process residuals such as smelter slag and residues from the treatment of waste, wastewater, sludges, or air emission residues; and intact containers of hazardous waste that are not ruptured and that retain at least seventy-five (75) percent of their original volume.”

4. The reference to 401 KAR 47:040 should instead reference 401 KAR 37:040.

401 KAR 38:005

1. The proposed definition of “draft permit” is inconsistent with the federal regulation, 40 CFR 270.2. In the definition of “draft permit” the proposed regulation states that a draft permit is not “a notice of intent to terminate a permit or a notice of intent to deny a permit.” However, the federal regulation states, “A notice of intent to terminate a permit, and a notice of intent to deny a permit . . . are types of draft permits. A denial of a request for modification, revocation and reissuance, or termination . . . is not a draft permit.

Thanks for your consideration of these comments.


Cordially,



Liz Darling Edmondson
Bingham Fellow


Tom FitzGerald
Director

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