Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
May 28, 2004
Nini Hughes, Planning Section Supervisor
PPA Branch, Division of Waste Management
14 Reilly Road
Frankfort, KY 40601
By fax only
Re: Proposed Amendment 401 KAR 49:011
New Proposed Regulation 401 KAR 49:080
Dear Ms. Hughes:
These comments are submitted by the Kentucky Resources Council, Inc. concerning the proposed amendment to 401 KAR 49:011 and new proposed regulation 401 KAR 49:080. The Council has reviewed the
proposed regulations and offers these comments:
1. KRC appreciates the clarification in Section 2(1) of what is implicit in Section 4 of the existing regulation - that the public notice and comment procedures apply to plan amendments as well as initial area solid waste plans.
2. KRC is concerned with the deletion of language in existing Section 2(a) that requires the public notice of the plan or amendment to a plan to follow the Cabinet?s format. If the intent is to continue to require use of a standardized format, the requirement must be contained in the regulation. If the intent is to allow the local solid waste governing body to develop its own public notice, then the regulation must specify minimum content requirements, such as a description of the proposed action, location where the existing plan and proposed change may be reviewed, procedures for submitting comments, and location of public hearing, etc. The preferred resolution would be to retain the existing language requiring publication of the standard format developed by the agency.
3. KRC supports the revision to Section 3(5), but believes it may be problematic for many local governments who may need in excess of 30 days in which to publish and hold meetings on changes needed to resolve identified deficiencies. KRC would suggest a clarification that the response to deficiencies should be provided in sixty days (and that the 120-day time clock is tolled) and that an additional third 30-day extension will be considered only where the governing body provides good cause.
4. KRC supports the remainder of the changes proposed in the regulation.
1. KRC is concerned that the proposed definitions may not be consistent with the defined terms as used elsewhere under KRS Chapter 224, and may be inconsistent with KRS 224.43-505.
In order to avoid potential conflicts with other permitting and enforcement-related definitions, Section 1 should be revised to read:
Section 1. Definitions. The following terms, as used in this regulation, shall have the meanings given in this section:
The need for such language is to prevent the definitions from inadvertently compromising the scope of the Cabinets regulatory power. For example, open dump as used elsewhere in the chapter may include hazardous waste as well as solid waste disposal, and the arbitrary use of a 2 yard minimum for funding priority in 401 KAR 49:080, if applied more generally, could significantly compromise the ability of the Cabinet to enforce open dumping prohibitions.
The Cabinet must make clear that the definitions in 49:080 apply only to that section.
2. The proposed definition of illegal dump is inconsistent with the statute, which provides funding for Cabinet elimination of illegal open dumps. The definition and phrase as used in Section 5 must be modified to match statutory language.
3. The definitions of waste collector and recycler concern KRC because they do not appear to track KRS Chapter 224 distinctions, nor to include under the registration and reporting requirements all facilities that manage materials diverted from the waste stream.
A recycler is one engaged in recycling, which is defined in KRS 224.01-010 to include collection, separation or processing and reuse or returning to use in the form of raw materials or products. The limitation in the proposed regulation to private-sector reselling of collected recyclables, or public-sector collection of recyclables, is internally inconsistent and inconsistent as well with the statute. It is internally inconsistent since it would require municipalities to report on all recyclables collected and to register, but would not require registration or reporting from private-sector recyclers unless the recyclables are sold.
The acts of collecting, separating and processing materials for reuse that would otherwise constitute solid waste is recycling, and the definition of a recycler should be concurrent in scope, covering all solid waste and all recycling.
The regulation should be revised to state that any facility engaged in recycling and any recovered material processing facility, as those terms are defined in KRS 224.01-010, should register and report. This change would eliminate the need for defining solid waste collector since collection is one of several covered activities under recycling.
4. Finally, and related to #3, defining solid waste collector to mean only municipal solid waste collection is inappropriate since solid waste includes institutional, industrial and other wastes beyond MSW. The definition restricting solid waste to MSW could create adverse precedent, since there is nothing in 49:080 Section 1 limiting
the applicability of the regulatory definition to 49:080 Section 2.
Thanks in advance for your consideration of these comments.