401 KAR | Title 401 KAR — Energy and Environment Cabinet - Department for Environmental Protection

Chapter 4 Water Resources

401 KAR 4:010 Water withdrawal permits, criteria, reports {#sec-401-kar-4-010 omnilex-key=us-ky-regs-official--title-401--401 KAR 4:010}

Section 1. The necessity for water withdrawal permits shall be determined according to the following criteria:

(1) If the average withdrawal rate is more than 10,000 gallons per day, a permit shall be required except as exempted by KRS 151.140;

(2) If the withdrawal of water is made at a relatively constant rate each day and the average withdrawal rate is 10,000 gallons per day, or less, no permit shall be required; or

(3) If withdrawals are made on an irregular basis and at an irregular rate, permits may be required if the water withdrawn represents a significant portion of the available water supply or collection of withdrawal data is necessary for water resource planning purposes.

Section 2. Permit Issue Date and Effective Date.

(1) Each permit shall clearly show:

(a) An issue date, which shall be the date on which a permit is signed by the cabinet representative; and

(b) An effective date, which shall be the date on which a permitted withdrawal may begin.

(2) The issue date may be up to three (3) years in advance of the effective date.

(3) Water allocated by a permit that is issued more than six (6) months in advance of the effective date shall be reserved for use by that applicant if:

(a) The requested amount of water is available from the proposed water source;

(b) There remains an amount of water that may be allocated for other competing uses; and

(c) The applicant provides to the cabinet additional project information and quarterly status reports that document the continued viability of and progress toward the completion of the project by the permit's effective date.

This shall include:

a. A proposal for securing financing of the project; and

b. A project schedule with the anticipated dates for all major milestones. These milestones shall include:

(i) Funding approval;

(ii) Commencement of construction;

(iii) Site preparation;

(iv) Construction of major structural or project elements;

(v) Completion of construction; and

(vi) Commencement of project operations and water withdrawal.

Quarterly status reports shall address each milestone listed in subparagraph 1b of this paragraph. Reports shall be due thirty (30) days after the end of each calendar quarter following the issuance date of the permit.

(4) For those permits having an issue date more than six (6) months in advance of the effective date, a project schedule may be amended and the permit's effective date extended up to one (1) year if the permittee demonstrates that circumstances beyond the control of the permittee have caused an unavoidable delay in the completion of the project.

(5) For those permits having an issue date more than six (6) months in advance of the effective date, withdrawals shall begin no later than six (6) months after the effective date.

(6) For those permits having an issue date more than six (6) months in advance of the effective date, a water withdrawal permit shall expire and become void if the holder of the permit fails to:

(a) Adhere to the project schedule as submitted at the time of permit issuance or as amended according to subsection (4) of this section;

(b) Comply with the interim reporting requirements; or

(c) Commence withdrawals within six (6) months after the permit effective date, including any extensions granted under subsection (4) of this section.

Section 3. Water Withdrawal Reporting Requirements. Reports of water withdrawn pursuant to permit shall be made as follows:

(1) Withdrawals made at a relatively constant daily rate shall be recorded daily and reported to the division monthly on the "Monitoring Results Submittal Form" and "Water Withdrawal Report Form," incorporated by reference in Section 4 of this administrative regulation.

(2) If withdrawals are made on an irregular basis and at an irregular rate, the division may specify recording frequency as the circumstances require. Reporting of withdrawal information to the cabinet shall be made monthly. Recording and reporting shall be done on the "Monitoring Results Submittal Form" and "Water Withdrawal Report Form," incorporated by reference in Section 4 of this administrative regulation.

(3) Increased reporting or recording frequency of the rate or volume of a permitted water withdrawal may be required if:

(a) A water withdrawal may adversely impact other water users, water quality, or aquatic habitat based on:

Scientific documentation;
Monitoring data; or
An observed or documented impact;

(b) The data is needed for water resources management or planning purposes; or

Section 4. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Monitoring Results Submittal Form, DEP 0056 (3/05)"; and

(b) "Water withdrawal report form, DEP 8058 (3/05)".

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Kentucky Division of Water, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p. m.

History

RELATES TO: KRS 151.110, 151.112, 151.114, 151.116, 151.120, 151.182, 151.200, 151.210, 151.220
STATUTORY AUTHORITY: KRS 151.125(1), (3), (4), (9), (10), 151.140, 151.150, 151.160, 151.170
NECESSITY, FUNCTION, AND CONFORMITY: KRS 151.125(3) authorizes the cabinet secretary to adopt rules and regulations for water resources which he or she deems necessary to accomplish the purposes of KRS Chapter 151. KRS 151.125(4) authorizes the secretary to adopt rules and regulations with respect to procedural issues regarding water withdrawal permits. This administrative regulation is necessary to establish the requirements for permits to withdraw water and the reporting procedure to be used in conjunction with water withdrawal permits issued by the Division of Water.
History: 401 KAR 004:010. 1 Ky.R. 11; 448; eff. 2-5-1975; 31 Ky.R. 1721; 32 Ky.R. 101; 262; eff. 8-25-2005; TAm eff. 11-25-2008; TAm eff. 7-8-2016; Crt eff. 8-9-2018; Crt eff. 7-22-2025.

401 KAR 4:020 General permit procedure exemptions {#sec-401-kar-4-020 omnilex-key=us-ky-regs-official--title-401--401 KAR 4:020}

Section 1. No permit shall be required pursuant to KRS 151.250 for those activities in and along the streams of the Commonwealth of Kentucky which are approved by the United States Department of the Army in accordance with its General Permit procedures as set out in Title 33 C.F.R. 209.120(i)(2)(ix), and as published in the Federal Register of 25 July, 1975, Volume 40, Number 144.

History

RELATES TO: KRS Chapter 151
STATUTORY AUTHORITY: KRS 151.250(1), 224.10-100(17)
NECESSITY, FUNCTION, AND CONFORMITY: This administrative regulation is necessary to exempt from the permitting requirements of KRS 151.250 those dams, embankments and other obstructions in and along streams of the Commonwealth which are not of such size or type as to require approval by the Environmental and Public Protection Cabinet in the interest of safety or retention of water supply. This administrative regulation exempts only those activities which have been approved by the United States Department of the Army pursuant to the specific criteria set forth in its General Permit procedures.
History: 401 KAR 004:020. 3 Ky.R. 767; eff. 7-6-1977; Crt eff. 8-9-2018; Crt eff. 7-22-2025.

401 KAR 4:030 Design criteria for dams and associated structures {#sec-401-kar-4-030 omnilex-key=us-ky-regs-official--title-401--401 KAR 4:030}

Section 1. This administrative regulation applies to all dams as defined by KRS 151.100 and to all other impounding obstructions which might create a hazard to life or property.

Section 2. Except as modified in this administrative regulation, the procedures outlined by the latest edition of "Design of Small Dams" (Second Edition, 1973), available from the U.S. Government Printing Office and the Department of Reclamation, herein filed by reference, shall be the minimum criteria.

Section 3. The Division of Water Engineering Memorandum No. 5 (2-1-75) outlined as follows: Section A. Definitions; Section B. Structure Classification; Section C. Hydrologic Criteria; Section D. Sediment Storage; Section E. Principal Spillways; Section F. Emergency Spillways; Section G. Earth Embankments; and Section H. Utilities Under Embankments; is hereby incorporated by reference and made a part of this administrative regulation as if fully set out herein. Copies are available from the Division of Water upon request.

Section 4. Structure types not generally used in Kentucky, i.e. gravity, buttress, steel, timber, etc., will be considered on an individual basis and reviewed in accord with prevailing practices that are currently accepted by the engineering profession.

Section 5. In all cases the safety of the structure, the water and/or other material impounded therein, property and human life will be the principal governing factors. Under no circumstances will the proposed use of the structure and its contents, or the cost of providing an unquestionably safe structure be allowed to assume precedence over the possible hazard involved.

Section 6. Structures which are to be repaired or reconstructed must be made to conform to the criteria established by this administrative regulation.

Section 7. Each of the following stated criteria indicates whether the limit is a maximum or minimum limit and is not to be construed as being satisfactory design criteria at all sites. Professional judgment, state laws and administrative regulations, investigations, or analysis may dictate more conservative criteria.

Section 8.

(1) Approval of all plans and specifications shall be divided into two (2) distinct parts:

(a) Issuance of a construction permit pursuant to KRS 151.250 shall constitute approval of the final engineering documents to allow construction to be started; and

(b) Final written approval by the cabinet upon receipt of the "as-built" plans and specifications will constitute approval to impound.

(2) No approval to impound water and/or other material is implied or is in any way granted until the "as-built" plans and specifications have been approved, an on-site inspection has been made, and a written statement of approval issued. It is recommended that the owner and/or his engineer contact this division before initiation of final design for a predesign conference.

Section 9. All plans and specifications submitted for consideration must bear the seal and signature of the responsible engineer as defined in KRS 322.010(2), except officers and employees of the United States Government while engaged in engineering for the government. Each sheet of the drawings shall bear the seal and signature of the engineer or engineers responsible for its preparation.

Section 10. All structures, other than Class A as defined in Engineering Memorandum No. 5 (2-1-75) shall have a complete subsurface investigation and soil analysis submitted as an integral part of the drawings.

Section 11.

(1) Elevation area capacity data and elevation discharge data must be submitted as a part of the plans for each structure. This elevation area capacity data shall give the area and capacities from the elevation of the lowest point in the impoundment area to at least the elevation at the top of the dam. When the configuration of the structure will not allow the elevation discharge relationship to be developed by methods accepted as standard by the engineering profession, the structure must provide the storage necessary to contain the entire storm run-off without probable damage to the structure or creating an unacceptable hazard to life or property.

(2) When this required basic information is furnished by the responsible design engineer, the Division of Water will upon request assist the engineer in preparing the flood routings required by Engineering Memorandum No. 5 (2-1-75).

(3) In the event that the elevation area capacity data is not furnished or the flood routings show that insufficient floodwater storage has been provided, the plans will be returned to the design engineer without being approved.

Section 12. All information concerning elevations shall refer to mean sea level and the use of assumed elevations for any purpose is prohibited. Should an error in either the horizontal control or vertical control become known during construction, the necessary information to correct the distances and the elevations shall be referred to on the first sheet of the "as-built" drawing or referred to in the index. Clearly marked reference points and bench marks shall be maintained at the job site by the responsible engineer until final written approval is received.

Section 13. Unless waived in writing by the cabinet, no structure shall be approved unless a positive means is provided to pass water through the structure in sufficient quantity to satisfy the needs of downstream users and to empty the reservoir within a reasonable length of time. Conditions considered in determining downstream water requirements and required minimum time to empty the impoundment shall be determined by the responsible engineer and referred to on the drawings.

Section 14. Construction supervision and inspection must be performed by or under the direction of the design engineer. Unless otherwise directed by the cabinet the engineer shall submit monthly progress reports on forms to be supplied by the cabinet. Copies of all testing reports shall be submitted with the progress reports.

Section 15. All "as-built" documents shall be submitted by the responsible engineer in the form of permanent type drawings of a standard and uniform size. Variations in size will be permitted for federal agencies in order that they may use their standard drawings. Drawings that do not conform to standard practices or drawings that are not easily legible will not be accepted.

Section 16. Because of the cabinet's statutory duty to review federal projects for the Commonwealth under KRS 151.220, the United States Army Corps of Engineers is exempt from the provisions of this administrative regulation and KRS 151.250.

History

RELATES TO: KRS 151.250
STATUTORY AUTHORITY: KRS 151.125, 224.01-110(6)(b), 224.10-100(17)
NECESSITY, FUNCTION, AND CONFORMITY: This administrative regulation is necessary to establish minimum design criteria for dams and associated structures constructed in Kentucky.
History: 401 KAR 004:030. DOW-Rg-2; 1 Ky.R. 759; eff. 6-11-1975; Crt eff. 8-9-2018; Crt to Am, filing deadline 1-22-2027.

401 KAR 4:040 Nonhazardous sediment structures exempted {#sec-401-kar-4-040 omnilex-key=us-ky-regs-official--title-401--401 KAR 4:040}

Section 1. As a part of the routine processing of applications for permits for surface mining and the surface effects of deep mining, the engineering staff of the Division of Reclamation reviews all designs for dams, embankments, levees, dikes, bridges, fills, and other stream obstructions proposed in conjunction with surface or deep mining and, whereas a substantial number of such dams, embankments, levees, dikes, bridges, fills, and other stream obstructions are of such a size, type, and location as to present no potential hazard to life and/or property; this administrative regulation exempts from the provisions of KRS 151.250 all such dams, etc., as described above, except those dams which come within the hazard classification contained in Division of Water Engineering Memorandum No. 5 (2-1-75), and those obstructions as described, which, in the professional judgment of the Division of Reclamation engineering staff, present a potential hazard to life and/or property. Copies of Engineering Memorandum No. 5 (2-1-75) are available upon request from the Division of Water.

Section 2. Certified, "as-built" engineering plans for all dams which impound or divert water and/or other material and which (i) are twenty-five (25) feet or more in height or (ii) have an impounding capacity of fifty (50) acre-feet or more at the lowest point in the top of the dam must be forwarded by the Division of Reclamation to the Division of Water for inclusion in the Dam Safety Program required by KRS 151.295(c). Height is measured from the natural bed of the stream or watercourse at the downstream toe of the barrier to the low point in the top of the dam.

History

RELATES TO: KRS 151.250
STATUTORY AUTHORITY: KRS 151.125, 224.01-110(6)(b), 224.10-100(17)
NECESSITY, FUNCTION, AND CONFORMITY: This administrative regulation is necessary to exempt certain dams, embankments, levees, dikes, bridges, fills, and other stream obstructions proposed in conjunction with surface and deep mining from the provisions of KRS Chapter 151 to avoid duplication of effort within the Environmental and Public Protection Cabinet.
History: 401 KAR 004:040. DOW-Rg-3; 1 Ky.R. 759; eff. 6-11-1975; Crt eff. 8-9-2018; Crt eff. 7-22-2025.

401 KAR 4:050 Construction exemptions {#sec-401-kar-4-050 omnilex-key=us-ky-regs-official--title-401--401 KAR 4:050}

Section 1. A construction permit pursuant to KRS 151.250 shall not be required for construction in or along a stream whose watershed is less than one (1) square mile, except for the construction of dams as defined by KRS 151.100 or other water impounding structures or for any construction that does or may endanger life or cause severe damage to residential or commercial property.

Section 2. A construction permit pursuant to KRS 151.250 shall not be required for a subfluvial utility or pipeline crossing provided that the construction of the crossing meets the following criteria:

(1) During the construction of the crossing, no material may be placed in the stream or in the flood plain of the stream to form construction pads, coffer dams, access roads, etc., unless prior approval has been obtained from the cabinet.

(2) The trench shall be backfilled as closely as possible to the original contour. All excess material from construction of the trench shall be disposed of outside of the flood plain unless the applicant has received prior approval from the cabinet to fill within the flood plain.

(3) For subfluvial crossings of erodible channels, there shall be at least thirty (30) inches clear to the top of the pipe or conduit at all points.

(4) For subfluvial crossings of nonerodible channels, there shall be at least six (6) inches of clear cover above the top of the pipe or conduit at all points, and the pipe or conduit shall be encased on all sides by at least six (6) inches of concrete.

(5) The weight of a pipe and its contents during normal operating conditions at all points must exceed that of an equal volume of water, or the applicant must provide the division with sufficient information to show that the pipe and joints have sufficient strength.

History

RELATES TO: KRS 151.110, 151.250, 151.310
STATUTORY AUTHORITY: KRS 151.230, 151.250
NECESSITY, FUNCTION, AND CONFORMITY: In the course of regulating construction in or along streams pursuant to KRS 151.250, the Environmental and Public Protection Cabinet frequently encounters actions or proposed actions which are of such nature or location as to have little potential for damage or such that any damage which would occur is limited in extent to the immediate vicinity of the action. This administrative regulation exempts construction of this type from the provisions of KRS 151.250.
History: 401 KAR 004:050. 7 Ky.R. 365; eff. 11-6-1980; TAm eff. 8-9-2007; Crt eff. 8-9-2018; Crt to Am, filing deadline 1-22-2027.

401 KAR 4:060 Stream construction criteria {#sec-401-kar-4-060 omnilex-key=us-ky-regs-official--title-401--401 KAR 4:060}

Section 1. Definitions.

(1) "Areas of shallow flooding" means a designated flood zone, shown on a FEMA Flood Insurance Rate Map, with a one (1) percent or greater annual chance of flooding to an average depth of one (1) to three (3) feet where clearly-defined channel does not exist, where the path of flooding is unpredictable, where velocity flow may be evident, and is characterized by ponding or sheet flow.

(2) "Backwater effect" means the rise in water surface elevation caused by obstruction of a stream's flow, such as by a narrow bridge opening, buildings or fill material that limits the area through which the stream's flow must pass.

(3) "Base flood" means the flood having a one (1) percent chance of being equaled or exceeded in any given year, also called the 100-year frequency flood.

(4) "Base floodplain" means the area along, adjacent to, and including a stream, which is inundated by the base flood on that stream.

(5) "Base flood elevation" or "BFE" means the elevation of the water surface measured above mean sea level, as defined on the applicable FEMA Flood Insurance Rate Map (FIRM) in either the NGVD 1929 or NAVD 1988 vertical datum, reached during the base flood.

(6) "Basement" means any area of the building having its floor below ground level on all sides.

(7) "Conveyance" means a measure of the flow-carrying capability of a stream cross section and is equal to the flow rate at a given depth in cubic feet per second divided by the square root of the slope of the energy grade line in feet per foot.

(8) "Cross section" means a graph or plot of ground elevation across a stream valley or portion of it along a line perpendicular to the direction of stream flow.

(9) "Designated floodway" means the stream and that portion of the adjacent base floodplain specified by a local ordinance or indicated on National Flood Insurance Program maps.

(10) "Dry flood proofing" means modifying a structure so that it is watertight below the flood protection elevation so that floodwaters cannot enter.

(11) "Energy grade line" means a line that represents the elevation of the total energy head of water flowing in a pipe, conduit, or channel.

(12) "Existing construction" means any structure, manufactured home park, or subdivision constructed on or before the effective date of the FEMA Flood Insurance Rate Map (FIRM) or the Flood Hazard Boundary Map (FHBM) for the community where the proposed structure is located, or in cases where no FIRMs are available, on or before October 1987.

(13) "Flood crest" means the maximum stage or elevation reached or expected to be reached by waters of a specific flood at a given location.

(14) "Flood frequency" means a statistical expression of the average time period between floods equaling or exceeding a given magnitude.

(15) "Flood Boundary and Floodway Map" or "FBFM" means a map on which the Federal Emergency Management Agency (FEMA) or Federal Insurance Administration (FIA) has delineated the areas of flood hazards and the regulatory floodway, pursuant to 44 C.F.R. Part 60 and 64.3.

(16) "Flood Hazard Boundary Map" or "FHBM" means an official map of a community issued by FEMA, pursuant to 44 C.F.R. Part 60 and 64.3, where the boundaries of the areas of special flood hazard have been identified as Zone A.

(17) "Flood Insurance Rate Map" or "FIRM" means an official map of a community on which FEMA, pursuant to 44 C.F.R. Part 60 and 64.3, has delineated both the areas of special flood hazard and the risk premium zones applicable to the community.

(18) "Flood Insurance Study" or "FIS" is the official hydraulic and hydrological report by FEMA, pursuant to 44 C.F.R. Part 60 and 64.3, containing flood profiles, the FIRM, FHBM, where applicable, and the water surface elevation of the base flood.

(19) "Flood proofing" means structural changes or adjustments to new or existing structures and facilities, their contents, or their sites for the purpose of reducing or eliminating flood damages by protecting against structural failure, keeping water out, or reducing the effect of water entry, and includes dry flood proofing and wet flood proofing.

(20) "Flood warning" means the issuance and dissemination of information about an imminent or current flood.

(21) "Historic structure" means any structure that is:

(a) Listed individually in the National Register of Historic Places or preliminarily determined by the Secretary of the Interior as meeting the requirements for listing;

(b) Certified or preliminarily determined as contributing to the historical significance of a registered historic district;

(d) Listed on a local inventory of historic places in communities with historic preservation programs approved by the state or the Secretary of the Interior.

(22) "Letters of Map Change" or "LOMC" means an official FEMA determination by letter to amend or revise effective Flood Insurance Rate Maps, Flood Boundary and Floodway Maps, and Flood Insurance Studies.

(23) "Licensed engineer or land surveyor" means a professional engineer or surveyor with accreditation in the state of Kentucky.

(24) "Lowest floor" means the lowest floor of the lowest enclosed area, including any basement, but does not include an unfinished or flood resistant enclosure usable solely for parking of vehicles, building access, or storage of mobile equipment or of property that is not flood damageable in an area other than a basement.

(25) "Manufactured home" means a structure, transportable in one (1) or more sections, that is built on a permanent chassis and designed for use with or without a permanent foundation when connected to utilities, but does not include recreational vehicles placed on a site for less than 180 consecutive days.

(26) "National Flood Insurance Program", or "NFIP", means a federal program which makes available flood insurance protection to property owners in flood prone areas.

(27) "No impact" means a certification by a licensed engineer that an encroachment shall not result in any increase in the base flood elevation, floodwater elevations, and floodway width during the occurrence of the base flood discharge, referred to as "No Impact Certification".

(28) "NAVD 1988" means a vertical control, as corrected in 1988, used a reference for establishing varying elevations within the floodplain.

(29) "NGVD 1929" means a vertical control, as corrected in 1929, used as a reference for establishing varying elevations within the floodplain.

(30) "Nonsubstantial improvement" means any combination of repairs, reconstruction, alteration, or improvement to a structure in which the cumulative cost does not exceed fifty (50) percent of the present market value of the structure.

(31) "100-year flood" means a flood of a magnitude having a one (1) percent chance of occurring in any given year.

(32) "Permit" means written approval for any construction across, along, or adjacent to a stream subject to the provisions of KRS 151.250.

(33) "Profile" means a graph or elevation plot of the water surface or channel bottom against distance along the stream.

(34) "Recreational vehicle" means a vehicle that is:

(a) Built on a single chassis;

(b) 400 square feet or less when measured at the largest horizontal projection;

(d) Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.

(35) "Regulatory floodway" means the stream channel and that portion of adjacent land area that is required to pass flood flows without raising the base flood crest elevation by more than one (1) foot.

(36) "Stream" is defined in KRS 151.100(3).

(37) "Structure" means an object constructed or installed which may be an obstruction to flood flows such as buildings, manufactured homes, towers, smokestacks, and overhead transmission lines.

(38) "Substantial damage" means damage of any origin sustained by a structure whereby the cost of restoring the structure to before-damaged conditions would equal or exceed fifty (50) percent of the market value of the structure before the damage occurred.

(39) "Substantial improvement" means any combination of repairs, reconstruction, alteration, or improvements to a structure, taking place during a one (1) year period, in which the cumulative cost equals or exceeds fifty (50) percent of the market value of the structure, excluding periodic maintenance and upkeep that does not increase the value of the structure.

(40) "Wet flood proofing" means modifying the uninhabited portions of a house, such as a crawlspace so that floodwaters may get in but will not cause significant damage.

Section 2. Applicability. This administrative regulation shall apply to all construction across, along, or adjacent to a stream (i.e., the base floodplain) or in the floodway of a stream for which a construction permit is required pursuant to KRS 151.250, 44 C.F.R. Part 60, and 44 C.F.R. 64.3, except for the construction of dams as defined in KRS 151.100.

Section 3. General Provisions.

(1) This administrative regulation shall constitute minimum criteria for the issuance of permits for stream construction pursuant to KRS 151.250, 44 C.F.R. Part 60, and 44 C.F.R. 64.3.

(2) The applicant shall properly complete an appropriate application form, incorporated by reference in Section 9 of this administrative regulation, with all pertinent information and submit it to the cabinet.

(3) Any construction limits specified in the permit shall be plainly staked or otherwise marked on the site.

(4) Public notification.

(a) As part of the stream construction permit issuance procedure, each applicant shall provide notice to all parties who may incur additional flood-related damages as a result of the construction for which a permit has been requested, except as provided in subparagraph 3 of this paragraph.

For those projects that may have flooding impacts beyond the local area of the construction, the applicant shall publish a notice in the newspaper having greatest circulation in the area of the proposed construction.

a. This notice shall provide:

(i) The name and address of the applicant;

(ii) The location, nature, and extent of the proposed construction; and

(iii) The address and telephone number of the Division of Water and stating the comments and objections shall be directed to the division.

b. The notice shall be run for period of three (3) consecutive days or printings of the newspaper; however, for weekly newspapers or areas where newspapers are printed less frequently, the cabinet may reduce this requirement to two (2) consecutive printings upon written request of the applicant.

c. The public notice required in subparagraph 1 of this paragraph shall be at least three (3) column inches in size and shall be large enough that all of the information required in subparagraph 1 of this paragraph is easily readable.

If the cabinet determines that flood impacts will be localized, the applicant may obtain and submit affidavits from all parties who reside, own property, or have other legitimate property interests in the affected areas. This affidavit shall contain a complete description of the proposed construction, a place for concerned parties to sign indicating that they have read the statement and that they understand that a permit application is being submitted to the cabinet, and the name and address of the cabinet representative to whom statements of concern or request for hearing may be addressed.
For construction projects that will have negligible flood impacts (e.g. placement of electrical utility power poles or transmission towers if no fill is included or minor stream-bank restoration), the cabinet may waive the public notification requirement after receipt of a written request from the applicant to do so.
The cabinet shall notify all persons filing comments or objections to the issuance of any permit of their right to be heard pursuant to the provisions of KRS 151.182(2).

(b) Proof that the notice was published or the original of the completed affidavit shall be provided to the cabinet before the application shall be considered complete; however, technical review of the application by the cabinet may proceed before proof is provided. Issuance of the permit shall not proceed until sufficient proof of notice is submitted.

(c) If the cabinet determines any of the conditions of paragraph (a) of this subsection are not met by the initial notice or affidavit, it may require that the applicant place another notice or provide another affidavit which does so. The application shall not be considered complete until the applicable public notification provisions of this subsection are satisfied.

(5) The permit shall become effective on the date of issuance and shall remain valid for a period of one (1) year. Extensions may be requested in writing on a year-by-year basis and shall be granted if:

(a) The scope of work and ownership has not changed; and

(b) There is no change in BFE or regulatory floodway.

(6) The permittee shall provide the cabinet with written notification that construction was completed in accordance with approved plans and specifications not later than ninety (90) days after completion of construction. If any of the provisions of the permit are not met, the cabinet may revoke the permit pursuant to KRS 151.125.

(7) If any watercourse, channel relocation, or realignment, and any encroachment that causes a change in base flood elevations takes place, all supporting technical data shall be submitted to FEMA in order to obtain the appropriate Letter of Map Change (LOMC) to officially amend the FIRM in a given community.

(8) Any substantial improvement that increases the current market value of the structure by more than fifty (50) percent shall be considered as new construction. The market value of the structure shall be:

(a) The appraised fair market value of the structure prior to the start of the initial repair or improvement; or

(b) If damage has occurred, the fair market value of the structure prior to the damage.

(9) Substantial improvement shall be considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure. The term does not; however, include any project for substantial or nonsubstantial improvement of a structure required to comply with existing health, sanitary, or safety code specifications which are solely necessary to ensure safe living conditions.

Section 4. Uses of Regulatory Floodway.

(1) Except as provided in subsection 2 of this section, all encroachments, including fill, new construction, substantial improvements, and other development is prohibited unless certification with supporting technical data by a licensed engineer is provided, that demonstrates that the encroachments shall have "no impact" or not result in any increase in flood levels during occurrence of the base flood discharge.

(2) The following activities or structures shall be permitted for land within the regulatory floodway limits of a stream if they do not result in increases in flood elevations:

(a) Open space uses having no appreciable flood damage potential such as those associated with agriculture, silviculture, recreation, parking, storage yards, and certain sand and gravel operation;

(b) Certain structures, such as aerial utility crossings, that are related to allowable open space uses if the structures are designed, constructed and placed on the lot so as to offer no obstruction to flood flows;

(c) Structures necessary for navigation and waterborne freight handling, for transportation or utility crossings, if every effort has been made to reduce the impact of all of those facilities on flooding and if the facilities considered alone or in conjunction with permissible development above and below it and on the opposite side of the stream do not create an increase in flood elevations in excess of that which is appropriate for determination of the floodway boundaries at that site pursuant to Section 5 of this administrative regulation;

(d) Dredging or other removal of material from between the stream banks and the regulatory floodway, if disposal of the dredged material is outside of the regulatory floodway;

(e) Recreational vehicles may be permitted in the regulatory floodway for a period of no more than 180 days if the vehicle is placed so that it can be moved easily in case of imminent flooding; and

(f) Other activities exempted by 401 KAR 4:020 and 4:050.

Section 5. Determining Regulatory Floodway Boundaries.

(1) The regulatory floodway boundaries shall include the stream channel and that portion of the adjacent land areas required to pass the base flood discharge without increasing the water surface elevation at any point more than one (1) foot. If the stream flow is supercritical, or if velocity is so high that backwater considerations are not possible or appropriate, the determination of regulatory floodway boundaries shall be based on a one (1) foot maximum allowable rise in the energy grade line. If making these calculations, the cabinet shall use methods which consider equal conveyance losses on opposite sides of the stream.

(2) For stream segments for which a local government has used methods comparable to those specified in this section to define floodway boundaries and has adopted these boundaries by ordinance or for which the Federal Emergency Management Agency (FEMA) has developed a Flood Insurance Study (FIS), Flood Hazard Boundary Maps (FHBM), Flood Boundary and Floodway Maps (FBFM), mapped floodway boundaries and areas of shallow flooding, the cabinet shall consider these designated floodway boundaries to define the regulatory floodway. If both locally-determined floodway boundaries and FEMA maps are available, the more stringent shall apply for purposes of this administrative regulation.

(3) Notwithstanding any other provisions of this administrative regulation, in areas containing one (1) or more houses or commercial or industrial buildings that may be affected by flooding or at other locations if the one (1) foot increase in base flood elevation (BFE) allowable in determining regulatory floodway boundaries would create an undue increase in flood damages, the cabinet may impose a more stringent limitation on the floodway determination.

(4) Base flood flow information shall be determined by one (1) of the following methods, which are listed in descending order of preference:

(a) The base flood flow frequency curve for gauged sites on unregulated streams shall be obtained from the district office of the U.S. Geological Survey or the appropriate U.S. Army Corps of Engineers district office. This data shall be used to provide the best discharge estimates for the site under consideration. Peak discharges for ungauged sites on a gauged stream may consider both the gauged site information and information from an appropriate regional estimate, if available. The transfer technique for establishing discharges at the ungauged location shall be by interpolation or extrapolation methods in keeping with best engineering practices. For gauged streams with regulated flows, peak discharges shall be obtained from the agency responsible for regulating the flow.

(b) For ungauged streams one (1) of the following shall be used:

"Estimating the Magnitude of Peak Flows for Streams in Kentucky for Selected Recurrence Intervals", U.S. Geological Survey, Water Resources Investigations Report 03-4180, incorporated by reference in Section 9 of this administrative regulation;
Natural Resources Conservation Service "National Engineering Handbook, Part 630: Hydrology", incorporated by reference in Section 9 of this administrative regulation; or
The cabinet may approve the use of other generally accepted methods in keeping with best engineering practices.

(5) For areas below dams or impounding structures, flood routings shall be determined as if the dam or impounding structure does not exist.

(6) In performing the calculations for regulatory floodway boundaries, the cabinet shall use standard engineering practices.

(a) The applicant shall provide cross sections for determining floodway boundaries at any proposed construction site if FEMA maps are not available. All cross sections shall be referenced to mean sea level, in either the NGVD 1929 or NAVD 1988 vertical datum, and shall have vertical error tolerances of no more than plus or minus five-tenths (0.5) foot. Cross sections elevations shall be taken at those points which represent significant breaks in slope and at points where hydraulic characteristics of the base floodplain change. Each cross section shall extend across the entire base floodplain and shall be in the number and at the locations specified by the cabinet. Submitted cross sections shall be in a tabular, electronic format. If necessary to ensure that significant flood damage will not occur, the cabinet may require additional cross sections or specific site elevations which extend beyond those needed for making routine regulatory floodway boundary calculations.

(b) Roughness values for use in regulatory floodway computations shall be calibrated from existing flood information, if possible. If the information is not available, the cabinet shall base these values on the professional judgment of the cabinet's staff in keeping with best engineering practices. The cabinet may require the applicant to provide photographs or other information if it is helpful in making this determination.

(d) Conveyance loss shall be calculated through an equal loss method.

Section 6. Placement of Flood-damageable Property in Floodplain.

(1) In order to minimize or prevent the harmful effects of stream flooding, the cabinet shall not issue permits for the placement or construction of flood-damageable property in the base floodplains of streams, unless the placement or construction conforms to the requirements of the following subsection.

(2) In issuing construction permits pursuant to KRS 151.250 for the placement of flood-damageable property within the base flood inundation area the cabinet shall require the following:

(a) All new construction and substantial improvements of residential structures within the base floodplain shall have the lowest floor (including basement) elevated to at least the base flood elevation;

(b) All new construction and substantial improvements of existing construction and nonresidential structures within the base floodplain shall meet the following conditions:

The lowest floor (including basement) shall be elevated to the base flood elevation or above; or
Together with attendant utility and sanitary facilities, shall be designed with the application of dry flood proofing techniques, so that below the base flood level the structure is properly flood proofed with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy;

(c) New construction or substantial improvements of existing construction or elevated structures that include fully-enclosed areas formed by foundation and other exterior walls below the base flood elevation shall be designed with the application of wet flood proofing techniques to preclude finished living space and designed to allow for entry and exit of floodwaters to automatically equalize hydrostatic flood forces on exterior walls.

Opening sizes for complying with this requirement shall meet the following minimum criteria:

a. Provide a minimum of two (2) openings having a total net area of not less than one (1) square inch for every square foot of enclosed area subject to flooding;

b. The bottom of all openings shall be no higher than one (1) foot above foundation interior grade, which shall be equal in elevation to or higher than the exterior foundation grade; and

c. Opening may be equipped with screens, louvers, valves, or other coverings or devices provided they permit the automatic flow of floodwaters in both directions.

The interior portion of the enclosed areas shall not be partitioned or finished into separate rooms.

(d) The floor elevation or the flood proofing certification shall be provided by the permittee after the lowest floor is completed. Upon placement of the lowest floor, or flood proofing by whatever construction means, the permit holder or owners shall submit to the Division of Water a certification of the elevation of the lowest floor or flood proofed elevation, using the FEMA Elevation or Floodproofing Certificate, whichever is applicable, as built, in relation to mean sea level. The document shall be prepared and certified by or under the direct supervision of a licensed land surveyor or engineer. If flood proofing is used for a particular building, the certification shall be prepared by or under the direct supervision of a licensed engineer. Any work undertaken prior to submission of the certification shall be at the permit holder's or owner's risk. The Division of Water shall review the floor elevation survey data submitted. Deficiencies detected by the cabinet's review shall be corrected by the permit holder or owner immediately and prior to further progressive work being performed. Failure to submit the survey or failure to make the required corrections, shall be cause to issue a stop-work order for the project; and

(e) All manufactured homes, except in an existing manufactured home park or subdivision, shall be elevated to the base flood elevation and properly anchored to resist flotation, collapse, or lateral movement. If placed in an existing manufactured home park or subdivision the home shall be elevated no less than three (3) feet above grade, and properly anchored. Any manufactured home placed in an existing manufactured home park or subdivision on which a manufactured home has incurred substantial damage equal to or exceeding fifty (50) percent of its predamaged market value as a result of a flood shall be elevated to the base flood elevation and properly anchored. The expansion of an existing manufactured home park or subdivision constitutes new construction and placement in that newly developed area shall conform to both base flood elevation and anchoring requirements.

Section 7. Construction Materials. All materials used in projects shall be stable and inert, shall be free from pollutants and floatable objects, and shall meet all appropriate engineering standards applicable to the construction project.

Section 8. Variances and Exceptions.

(1) Encroachments which cause a backwater effect of more than one (1) foot may be allowed by the cabinet if:

(a) The applicant owns the entire affected property on both sides of the stream;

(b) The amount of backwater at the nearest upstream property line is no more than considerations in Section 5 of this administrative regulation would allow; and

(c) The cabinet has reasonable assurances that none of the applicant's property within the area of the excessive backwater shall be subdivided and sold. Reasonable assurances shall include:

Zoning considerations that would preclude subdivision of the property;
Deed restrictions that would preclude subdivision of the property;
Restrictive floodplain construction easements identifying the Commonwealth of Kentucky as owner of the easement; or
All structures built in these areas shall have their lowest floor elevation at or above the altered elevation or be flood proofed to that elevation.

(2) The cabinet may allow regulatory floodway boundaries to be shifted by changing allocation of conveyance losses. The cabinet may redesignate the regulatory floodway boundary on one (1) side of a stream to be closer to the stream channel if a permanent flooding easement is provided for a compensating area on the opposite side. This easement shall include that area extending from the top of the opposite stream bank to whatever distance away from the stream that is required to compensate for the proposed streamward shift of the floodway boundary. The easement shall specify the Commonwealth as owner of the easement rights and shall prohibit the placement of any obstruction on the property. The easement shall be filed of record in the county where the property is located and the grantor shall provide proof to the cabinet that the easement has been recorded. If regulatory floodway boundary changes are approved by the cabinet, the applicant shall be responsible for having changes made to the appropriate FEMA boundary maps.

(3) If an area along a stream is incorrectly indicated within the designated floodway on the FEMA map, an applicant may submit an independent hydraulic analysis performed by a qualified licensed engineer that demonstrates the area is not within the designated floodway. The applicant shall be responsible for obtaining all site-specific information for the analysis including, if necessary, the information used for the initial FEMA study. The cabinet shall review the analysis and, if the mapped information is incorrect, it may issue a permit based on the revised information. The cabinet's permit shall reflect the boundaries determined by the corrected analysis. The applicant shall be responsible for submitting the revised information to FEMA. After review, FEMA may develop Letters of Map Change (LOMC) to amend or revise the affected FIRM, FBFM, or FIS. LOMCs include the following categories:

(a) A Conditional Letter of Map Amendment (CLOMA), which is FEMA's comment on whether a proposed project would be excluded from the Special Flood Hazard Area (SFHA) shown on the effective National Flood Insurance Program (NFIP) map.

(b) A Conditional Letter of Map Revision (CLOMR), which is FEMA'S comment on a proposed project that would affect the hydrologic or hydraulic characteristics of a flooding source and thus result in the modification of the existing regulatory floodway or effective Base Flood Elevations.

(c) A Conditional Letter of Map Revision based on Fill (CLOMR-F), which is FEMA'S comment on whether a proposed project involving the placement of fill would exclude an area from the SFHA shown on the NFIP map.

(d) A Letter of Map Amendment (LOMA), which is an official amendment, by letter, to an effective NFIP map. A LOMA establishes a property's location in relation to the SFHA.

(e) A Letter of Map Revision (LOMR), which is an official revision, by letter, to an effective NFIP map.

(f) A Letter of Map Revision based on Fill (LOMR-F), which is an official revision, by letter, to an effective NFIP map.

(4) Exceptions to Section 6 of this administrative regulation may be allowed for the reconstruction, rehabilitation, or restoration of historic structures if the proposed repair, rehabilitation, or restoration will not preclude the structure's continued designation as a historic structure and the exception is the minimum necessary to preserve historic character and design of the structure.

(5) Exceptions may be allowed for the requirement of a hydraulic or hydrologic study for the replacement or reconstruction of county or city bridges, if:

(a) The new bridge, as designed, will be capable of passing as much or more flow at the base flood level; and

(b) There are no significant changes in the elevation and grades of the existing approaches and roadway which may be within the base floodplain.

(6) Exceptions may be allowed for the requirement of a hydraulic study for a new clear span bridge, if the deck abutments are recessed within the stream banks with no approach fill and if the chord depths, including curbs, are no greater than eighteen (18) inches.

(7) Exceptions may be allowed for the requirement of a hydraulic study for low water crossings, if the structure is constructed in accordance with the cabinet's standard low water crossing template found in document DOW 84-01, incorporated by reference in Section 9 of this administrative regulation.

Section 9. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Estimating the Magnitude of Peak Flows for Streams in Kentucky for Selected Recurrence Intervals, U.S. Geological Survey, Water Resources Investigations Report 03-4180, 2003",

(b) "National Engineering Handbook, Part 630: Hydrology, Natural Resources Conservation Service, July 2001";

(d) "Kentucky Division of Water Policy Document DOW 84-01, 5/18/1984"; and

(e) "Application for Permit to Construct Across or Along a Stream and/or Water Quality Certification, DOW 7116, January 2004".

History

RELATES TO: KRS 151.100, 151.110, 151.182, 151.184, 151.186, 151.210, 151.250, 151.260, 151.280, 151.310, 44 C.F.R. Part 60, 64.3
STATUTORY AUTHORITY: KRS 151.125, 151.230
NECESSITY, FUNCTION, AND CONFORMITY: KRS 151.125 requires the secretary to establish requirements for flood control and water resources. KRS 151.230 authorizes the cabinet to establish minimum standards for floodplain management. This administrative regulation establishes standards for construction in floodplain areas.
History: 401 KAR 004:060. 14 Ky.R. 316; 556; eff. 10-2-1987; 20 Ky.R. 3005; eff. 7-7-1994; 33 Ky.R. 1122; 2283; eff. 3-9-2007; TAm eff. 11-25-2008; TAm eff. 7-8-2016; Crt eff. 8-9-2018; Crt to Am, filing deadline 1-22-2027.

401 KAR 4:070 Coal combustion residuals surface impoundments {#sec-401-kar-4-070 omnilex-key=us-ky-regs-official--title-401--401 KAR 4:070}

Section 1. Definition. "Coal combustion residuals surface impoundment" or "CCR surface impoundment" means a natural topographic depression, man-made excavation, or diked area, which is designed to hold an accumulation of CCR and liquids, and the unit treats, stores, or disposes of CCR.

Section 2. The structural integrity criteria requirements for an owner or operator of an existing CCR surface impoundment shall be as established in 40 C.F.R 257.73.

Section 3. The structural integrity criteria requirements for an owner or operator of a new CCR surface impoundment and any lateral expansion of a CCR surface impoundment shall be as established in 40 C.F.R 257.74.

Section 4. The hydrologic and hydraulic capacity requirements for owners or operators of CCR surface impoundments shall be as established in 40 C.F.R. 257.82.

Section 5. The inspection requirements for owners or operators of CCR surface impoundments shall be as established in 40 C.F.R. 257.83.

Section 6. Except for 40 C.F.R. 257.107, including cross-references to 40 C.F.R. 257.107 within 40 C.F.R. 257.73, 257.74, 257.82, and 257.83, the record keeping and notification requirements for an owner or operator of a CCR surface impoundment shall be as established in 40 C.F.R. 257.105 and 257.106.

History

RELATES TO: KRS 146.200-146.990, 151.110, 151.125, 151.250, 224.1, 224.10, 224.50, 224.99, 40 C.F.R. 257.73, 257.74, 257.82, 257.83, 16 U.S.C. 661, 1273, 1531, 33 U.S.C. 1261 - 1387
STATUTORY AUTHORITY: KRS 224.10-100, 224.70-100, 224.70-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 authorizes the cabinet to promulgate administrative regulations not inconsistent with the provisions of law administered by the cabinet. KRS 224.10-100 and 224.70-100 authorize the cabinet to develop and conduct a comprehensive program for the management of water resources and to provide the prevention, abatement, and control of water pollution. This administrative regulation establishes the standards for coal combustion residuals (CCR) surface impoundments pertaining to the permit-by-rule established in 401 KAR Chapter 46.
History: 401 KAR 004:070. 43 Ky.R. 848; eff. 5-5-2017; Crt eff. 8-9-2018; Crt eff. 6-4-2025.

401 KAR 4:200 Documents and procedures incorporated by reference for the administration of the regulatory provisions of Kentucky's water resources law {#sec-401-kar-4-200 omnilex-key=us-ky-regs-official--title-401--401 KAR 4:200}

Section 1. Stream Construction Permits. The following documents and policy are incorporated by reference for the purpose of determining whether to issue or deny permits for any construction or reconstruction in or along a stream pursuant to KRS 151.250:

(1) Documents.

(a) National Engineering Handbook, Section 4, Hydrology; Soil Conservation Service; August, 1972.

(b) HEC-2 Water Surface Profiles (Computer Program); U.S. Army Corps of Engineers; September, 1982.

(c) Federal Emergency Management Agency, National Flood Insurance Program, Part 59 - General Provisions; FEMA; May 31, 1979.

(d) Kentucky Model Flood Damage Prevention Ordinance; Booker Associates, Inc.; August, 1983.

(e) Technique for Estimating Magnitude and Frequency of Floods in Kentucky; U.S. Geological Survey, Water Resources Investigations 76-62; November, 1976.

(f) Drainage Areas of Streams at Selected Locations in Kentucky; U.S. Geological Survey, Open-File Report 81-61; January, 1981.

(g) TP-149, A Method for Estimating Volume and Rate of Run-off in Small Watersheds; Soil Conservation Service; April, 1973 Revised.

(h) Floodway, Flood Boundary and Floodway Maps; Flood Insurance Rate Maps; Flood Hazard Boundary Maps; Federal Emergency Management Agency; (Dates Vary).

(i) Executive Order 77-927, National Flood Insurance Program; Signed by Governor Julian Carroll, September 30, 1977.

(2) Policy. Division of Water policy document DOW 84-01 is hereby incorporated by reference.

Section 2. Dam Construction Permits. The following documents are incorporated by reference for the purpose of determining whether to issue or deny permits to construct, reconstruct, modify, or remove any dam on appurtenance thereto:

(1) Documents.

(a) Drainage Manual; Commonwealth of Kentucky, Department of Transportation; 1983 (Revised); Page 400.

(b) DAMS 2, Structure Site Analysis Computer Program; Soil Conservation Service; October, 1982 (Draft).

(d) HEC-2, Water Surface Profiles (Computer Program); U.S. Army Corps of Engineers; September, 1982.

(e) Guidelines for the Geotechnical Investigation and Analysis of Existing Earth Dam; Division of Water; June, 1980.

(f) General Discussion of Dam Breach Analysis; Division of Water; August, 1979.

(g) TR-20, Computer Program for Project Formulation Hydrology, Soil Conservation Service; May, 1983 (Draft of Second Edition).

(h) ICES LEASE-1, Slope Stability Analysis (For Computer); Bailey and Christian, Massachusetts Institute of Technology; April, 1969.

(i) REAME, Computerized Slope Stability Analysis; Y. H. Huane, Institute for Mining and Minerals Research; February, 1983.

(j) SWASE, Computerized Slope Stability Analysis; Y. H. Huang, Institute for Mining and Minerals Research; 1983.

(k) NWS Dam - Break Flood Forecasting Model (Computer Program); Dr. D. L. Fread, National Weather Service; July 18, 1983.

(2) Policy. (Reserved).

Section 3. Water Withdrawal Permitting. The following documents included by reference and policies are for the purpose of determining whether to approve or deny permits to withdraw water pursuant to KRS 151.150:

(1) Documents.

(a) Flow Duration at Selected Stream-Sites in Kentucky (USGS Open File Report 80-1221).

(b) Drainage Areas of Streams at Selected Sites in Kentucky (USGS Open File Report 81-61).

(2) Policy.

(a) For the purpose of evaluating withdrawals from streams, the seven (7) day, ten (10) year low flow will be maintained in order to ensure proper water quality and provide for aquatic life needs.

(b) In evaluating applications for groundwater withdrawals, the cabinet will allow the withdrawal of reasonable amounts without requiring submission of extensive data and analysis. However, if the cabinet has reason to believe that groundwater withdrawals will be of such location or extent that existing uses will be impaired, the cabinet shall require detailed analysis of the proposed withdrawal's effects. If a permitted groundwater withdrawal adversely effects previously permitted groundwater users or domestic water supplies, the withdrawal shall be reduced to a rate that no longer causes adverse effects or all affected users shall be provided with sufficient water to meet their needs.

History

RELATES TO: KRS 151.125, 151.140, 151.150, 151.160, 151.182, 151.184, 151.200, 151.230, 151.240, 151.250, 151.260, 151.280, 151.293, 151.295, 151.297, 151.310
STATUTORY AUTHORITY: KRS 151.125
NECESSITY, FUNCTION, AND CONFORMITY: KRS 13A.120 prohibits an administrative body from issuing standards or by any other name a document where an administrative regulation is required or authorized by law. KRS 13A.130 prohibits an administrative body from using a policy, memorandum, or other form of action to modify or expand a statute or administrative regulation, or to expand or limit a right guaranteed by the Constitution of the United States, the Constitution of Kentucky, a statute, or an administrative regulation. This administrative regulation provides for the incorporation by reference allowed under 1 KAR 1:010 of the documents needed by the Environmental and Public Protection Cabinet to implement 401 KAR Chapter 4, Water Resources. Copies of these documents may be obtained or examined at the Division of Water Frankfort Office.
History: 401 KAR 004:200. 10 Ky.R. 1212; 11 Ky.R. 176; eff. 8-7-1984; Crt eff. 8-9-2018; Crt eff. 7-22-2025.

401 KAR 4:220 Water supply plan requirements {#sec-401-kar-4-220 omnilex-key=us-ky-regs-official--title-401--401 KAR 4:220}

Section 1. Definitions. The following definitions describe terms used in this administrative regulation. Terms not defined below shall have the meanings given to them in KRS 151.100, or if not so defined, the meanings attributed by common use.

(1) "Aquifer" means a saturated, permeable geological unit that is capable of yielding water to wells or springs.

(2) "Available water" means water that may be withdrawn by any one (1) user at a specific site, according to the water withdrawal permitting requirements of KRS 151.140 through 151.170 and 401 KAR 4:010.

(3) "Base year" means the year that is the starting point for planning conducted pursuant to this administrative regulation, usually the year in which planning begins, and from which existing water use information is drawn.

(4) "Contributing watershed" means a watershed delineated in such a way that noncontributing areas, such as areas draining to sinkholes that drain into another watershed, are excluded.

(5) "Discharge" means the volume of water that flows past a given point within a given period of time, usually expressed in cubic feet per second or gallons per minute.

(6) "Historical year" means a year four (4) to six (6) years prior to the base year.

(7) "Hydrologic unit" means watershed boundaries as shown on the U.S. Geological Survey's Hydrologic Unit Map of Kentucky.

(8) "Impoundment" means a water-retaining structure with the ability to retain at least twenty-five (25) acre-feet of water at normal pool.

(9) "Interconnection" means a linkage between two (2) or more water suppliers that can be used to transfer water from one (1) water supplier to the other.

(10) "Kentucky River Authority" means the authority established under KRS 151.700 and 151.710.

(11) "Local planning fund contributors" means counties, cities, and water suppliers that pay any portion of the expenditures necessary to comply with this administrative regulation.

(12) "Monthly average flow" means the average flow for each month of the year based on the period of record. It is equal to the total volume of water used for the month divided by the number of days in the month.

(13) "Nonpoint source pollution" means pollution caused by diffuse sources, including land runoff, precipitation, atmospheric deposition, or percolation.

(14) "Phase one planning activities" include the activities required by this administrative regulation that relate to data collection and assessment of water supply planning needs. Specifically, these activities include the requirements for initiating the planning process, including notifications and setting planning objectives, and Section 6(1) through (8) of this administrative regulation.

(15) "Phase two planning activities" include the activities required by this administrative regulation that relate to inventorying water resources, protecting water supplier sources, preparing emergency plans, evaluating water supply alternatives, and to all other planning activities not completed as phase one planning activities.

(16) "Planning council" means a group formed for the express purpose of creating a water supply plan in compliance with this administrative regulation.

(17) "Planning grant" means funds awarded by the General Assembly and the cabinet to support water supply planning pursuant to this administrative regulation.

(18) "Planning representative" means a person who is designated by a planning council to perform tasks in compliance with this administrative regulation.

(19) "Planning unit" means a county or group of counties that have agreed to join with other counties to create a water supply plan that encompasses more than one (1) county.

(20) "Recharge area" means that area that captures and supplies water to a spring or an aquifer.

(21) "Regionalization" means the creation of a regional, administrative or infrastructural, water supplier unit by consolidation or expansion.

(22) "Safe yield" means the amount of water a user can withdraw annually from a groundwater basin throughout the year without depleting the well or aquifer and without adversely affecting other users of the aquifer.

(23) "Semipublic water supplier" means any water supply system that serves more than three (3) families, but is not a water supplier or distributor.

(24) "Seven (7) day, ten (10) year low flow" means the lowest mean flow for seven (7) consecutive days having a recurrence interval of ten (10) years, or having a ten (10) percent chance of occurring in any year.

(25) "Seven (7) day, twenty (20) year low flow" means lowest mean flow for seven (7) consecutive days having a recurrence interval of twenty (20) years, or having a five (5) percent chance of occurring in any year.

(26) "Source classification" means the particular type of a water supply site, including surface water intake, well, or spring-fed intake.

(27) "Specific capacity" means yield of a well per unit of drawdown.

(28) "Unaccounted for water" means water that is withdrawn and not used for commercial, residential, industrial, or municipal purposes.

(29) "Water conservation" means methods and technological applications of passive and active water savings and reuse devices, components and processes to reduce demand for water supply.

(30) "Water supplier" means any system that provides water to the public for human consumption, has at least fifteen (15) service connections or regularly serves an average of at least twenty-five (25) individuals daily at least sixty (60) days of the year, and withdraws more than fifty (50) percent of the water it distributes.

(31) "Water supply distributor" means any system that provides water to the public for human consumption, has at least fifteen (15) service connections or regularly serves an average of at least twenty-five (25) individuals daily at least sixty (60) days of the year, and depends on a water supplier to provide fifty (50) percent or more of the water it distributes.

(32) "Water supply reservoir" means a water retaining structure with the ability to retain at least thirty (30) days of average water use at normal pool, used by a water supplier.

(33) "Water supply source" means a particular site or classification of site where water is withdrawn.

(34) "Water watch group" means a group registered with the cabinet as part of the water watch program.

(35) "Zone of contribution" means the entire area recharging or contributing to a well or well field.

(36) "Zone of influence" means the spatial area surrounding a well, in which drawdown effects occur from groundwater pumpage.

(37) The following items used in this administrative regulation are defined in KRS 151.100: cabinet; dam; domestic use; groundwater; reservoir; secretary; watershed; and withdrawal of water.

Section 2. Scope and Applicability. Each county, its municipalities and water suppliers, shall prepare a water supply plan. Representatives of each county, its municipalities and water suppliers shall decide whether to form a multicounty planning unit and shall form a planning council to oversee the planning process. Under the oversight of the planning council, a planning representative shall assess the need to provide increased or alternative water supplies for the water supplier systems within each county, formulate recommendations to protect water supplies, and prepare a water supply contamination response plan. If increased or alternative water supplies are needed, the planning representative shall develop water shortage response plans and evaluate water supply alternatives. The planning council shall select water supply alternatives. Until July 15, 1996, the cabinet shall award grants, if budgeted by the General Assembly, for water supply planning.

Section 3. Content and Format of the Planning Documents. The planning representative shall prepare no less than two (2) documents which shall include the information as required by this administrative regulation and additional information as considered necessary by the planning council. The cabinet may accept planning documents that were prepared prior to the existence of a planning council in place of specific sections of the planning documents required by this administrative regulation.

(1) Plan formulation document. Documentation of the details of the planning process shall be placed in a publication subtitled "Plan Formulation Document." The plan formulation document shall have sections named and numbered as specified in this subsection.

(a) Phase one planning activities shall be documented in sections named and numbered as follows: I. Formation of the planning unit; II. Planning council and planning representative; III. Notifications; IV. Workplan and process for setting objectives; V. County base map; VI. Water use and water use forecast; VII. Water supplier source assessment; VIII. Supply adequacy assessment; Appendix PFD-A - Paying for the planning process; Appendix PFD-B - Council minutes.

(b) Phase two planning activities shall be documented in sections named and numbered as follows: IX. Supply protection; X. Water resources inventory; XI. Water supply alternatives; XII. Primary water supply alternative; XIII. Emergency plans; XIV. Implementation plan; Appendix PFD-A - Paying for the planning process; Appendix PFD-B - Council minutes. If the current supply source is adequate for forecasted demands, plan formulation document sections X, XI, XII, and XIV shall contain a brief statement of adequacy and the consequent lack of need to assemble information for each of those sections.

(2) Final plan document. Documentation of the water supply plan shall be placed in a publication subtitled "Final Plan Document." The final plan document shall have sections named and numbered as specified in this subsection.

(a) Phase one planning activities shall be documented in sections named and numbered as follows: I. Formation of the planning unit; II. Planning council and planning representative; III. Planning objectives and water supply planning conflicts; IV. County base map; V. Water use, forecast, and infrastructure assessment; VI. Water supplier source assessment; VII. Supply adequacy assessment; Appendix FPD-A - Obstacles to the planning process.

(b) Phase two planning activities shall be documented in sections named and numbered as follows: VIII. Supply protection; IX. Water resources inventory; X. Water supply alternatives; XI. Primary water supply alternative; XII. Emergency plans; XIII. Implementation plan; XIV. Plan approvals; Appendix FPD-A - Obstacles to the planning process. If the current supply source is adequate for forecasted water use, final plan document section X shall contain a brief statement of adequacy and the consequent lack of need to assemble information for that section.

Section 4. Plan Initiation and Cabinet Assistance.

(1) Planning unit: geographic area of plan. A county may develop a water supply plan independently or it may enter into a written agreement to join with other counties to form a regional water supply planning unit. A multicounty plan may or may not entail regionalization or interconnection between water supplier systems.

(a) If a county has fewer than seven (7) cities, then the decision to join with other counties shall be supported by a two-thirds (2/3) majority of representatives of water suppliers in the county and each city in the county that is not a water supplier.

(b) If a county has at least seven (7) but no more than ten (10) cities, then the decision to join with other counties shall be supported by a two-thirds (2/3) majority of representatives of water suppliers in the county and representatives of the first, second, third, and fourth class cities in the county that are not water suppliers.

(c) If a county has more than ten (10) cities, then the decision to join with other counties must be supported by a two-thirds (2/3) majority of representatives of water suppliers in the county and representatives of the first, second, and third class cities in the county that are not water suppliers.

(2) Planning council. A planning council shall be formed to oversee the planning process.

(a) Membership requirements. The planning council shall consist, at least, of representatives from the following categories in the planning unit:

Each county judge-executive or mayor of an urban-county government, or his or her authorized representative;
One (1) representative of each water supplier that provides water to persons in the planning unit;
One (1) representative of each water supply distributor serving persons in the planning unit, unless that water supply distributor chooses to be represented by another member of the planning council;
One (1) representative of semipublic water suppliers, appointed by the county judge-executive or mayor of an urban-county government, or one (1) representative from a local health department in the planning unit; and
One (1) representative of each first, second, or third class city that is not a water supplier or distributor, unless that city chooses to be represented by another member of the planning council.
One (1) representative of the fourth class cities that are not water suppliers or water supply distributors, appointed by the county judge/executive.
One (1) representative of fifth and sixth class cities appointed by the county judge/executive.

(b) Membership options. One (1) planning council member may represent more than one (1) entity. At any planning council meeting, a majority of the required members of the planning council, listed in paragraph (a) of this subsection, may also choose to appoint other planning council members. The cabinet may require additional planning council members so that the planning council fully represents the planning unit or if the planning unit has unique social or economic characteristics.

(c) First planning council meeting. The entities listed in paragraph (a) of this subsection shall be notified of the first meeting of the planning council at least two (2) weeks prior to the meeting.

(d) Planning council chair. The planning council chair shall be elected by a majority of the planning council members.

(e) Quorum. The planning council shall determine what constitutes a quorum.

(3) Optional water supply advisory group. A planning council may create one (1) or more water supply advisory groups to assist in the planning process.

(4) Planning representative. The planning council shall select a planning representative who shall be responsible for conducting the water supply planning process and creating water supply plan documents.

(5) Cabinet assistance. At the request of one (1) or more counties on a planning council, the cabinet may award water supply planning grants to a county or planning representative. The cabinet shall provide access to records and data collected by the cabinet, in accordance with the Kentucky Open Records Act. The cabinet shall also make every reasonable effort, as resources allow, to provide special data reports and make staff available for consultation and technical support to planning councils and planning representatives.

(6) Documentation of plan initiation.

(a) Section I of the plan formulation document shall describe how the county (or counties), cities, and water suppliers reached agreement as to the composition of the planning unit. Section II of the plan formulation document shall describe how a planning representative was selected.

(b) Section I of the final plan document shall include a description of the planning unit and a planning unit map that shows planning unit boundaries, county boundaries, hydrologic unit boundaries of watersheds, county seats, and first through fourth class cities. Section II of the final plan document shall include a list of planning council members with their affiliations and identify any designated planning council member who declines to serve on the planning council or any designated planning council member that has not responded to invitations to participate in the planning process. Section II of the final plan document shall identify the planning representative and the individuals who will prepare the plan under the direction of the planning representative. If a county advisory group has been formed, section II of the final plan document shall also list the members of that group.

Section 5. Planning Council Duties and Procedures. After a planning representative has been designated, the planning council shall continue to oversee the planning process. This process shall use principles of hydrologic science, effective environmental protection, efficient water management and conservation, and democratic governance.

(1) Public notice and public participation. The planning council shall solicit public input for planning decisions.

(a) Council meetings. Each meeting of a planning council shall allow time to discuss progress of the planning process and obtain public input. The planning council shall notify local broadcast and print media of the meetings and request that the media make a public announcement of the time, place and purpose of the meeting. The planning council shall keep minutes of its meetings and a list of attendees and other interested persons. These shall be available to the public on request and shall be included as Appendix PFD-B of the plan formulation document.

(b) Public notice shall include the following:

A public notice shall be placed in the newspaper of greatest circulation in the area. The public notice shall be at least three (3) column inches in size, and shall be large enough that all information contained therein is easily readable. A copy of each public notice shall be placed in section III of the plan formulation document.
A letter shall be mailed to each water watch group in the planning unit. A sample letter and a list of recipients shall be placed in section III of the plan formulation document.
Public notice for a public meeting shall include the date, time, and location of the meeting; the mailing address and deadline for providing written comment; the purpose of the meeting; a brief statement of the purpose of the plan and planning procedures; and any other information to ensure that the public is aware of the nature of the meeting and the planning process.

(2) Conflict resolution.

(a) Planning council members shall attempt to reach consensus on planning goals, objectives, and preferred supply, emergency, and implementation alternatives. The planning council may select mediation as a method to achieve an acceptable solution. The cabinet may provide mediation assistance if requested by planning council members.

(b) If planning council members are unable to reach consensus concerning any aspect of the planning process, a description of the conflict shall be included in section III of the final plan document. This section shall also describe conflicts or potential conflicts between the water supply plan and existing plans of local units of government, water suppliers, or water supply distributors and conflicts or potential conflicts between the water supply plan and existing or proposed plans of surrounding counties. Each description of a conflict shall identify the units of government or water suppliers or distributors involved in the conflict. Each description shall also identify the provisions or omissions causing the conflict and the nature of the conflict, including objections and the type of authority applicable.

(3) Notification. The planning council shall comply with the requirements in this subsection within fourteen (14) days of the first meeting of the planning council. If phase two planning activities for any county within the planning unit are begun two (2) years or more after the notifications required by this subsection, the planning council shall repeat the notifications required by this subsection before beginning phase two planning activities. If a water supply plan has been prepared for the county within five (5) years of the base year, the cabinet may allow variances in the notification process.

(a) Notification to adjacent counties. The planning council shall send written notification to mayors, county judge-executives, and water suppliers in counties adjacent to the planning unit of the intent to develop a water supply plan.

(b) Notification to the public. The planning council shall give public notice of the intent to develop a water supply plan. Public notice shall describe the planning unit and planning council membership. Public notice shall state that a water supply plan is being developed, that public attendance at council meetings is welcomed, and that a meeting concerning planning goals and a meeting concerning plan alternatives will be publicly announced. Further, it shall announce the date, time, and location of the next council meeting or provide a telephone number at which such information shall be available.

(c) Notification to local governments and water suppliers. The planning council shall send written notification of the intent to develop a water supply plan to the following: all local units of government within the planning unit; water suppliers that provide water for use in the planning unit; and local units of government that use the same source of water as any water supplier in the planning unit. The letter of notification to local governments and water suppliers shall request the following information:

A copy of any existing water or related plans;
A statement of any current or potential conflicts, problems or opportunities that the local units or water systems want the planning process to examine or address, including water use rights, access and conservation; and
A description of expected changes in or around the planning unit that may alter current growth trends, including existing ordinances and planning goals.

(d) Notification to the cabinet. The planning council shall notify the cabinet of the intent to develop a water supply plan. Notification to the cabinet shall include a list of members of the planning council, their affiliations, and a list of counties included in the planning unit. The notification shall identify any designated planning council member who declines to serve on the planning council or any designated planning council member that has not responded to invitations to participate in the planning process. The notification shall state whether counties in the planning unit will apply for a planning grant from the cabinet. The cabinet shall notify the planning council of data that is readily available from the cabinet, state universities or other state or federal agencies.

(e) Notification to the Kentucky River Authority. If any portion of any county in a planning unit is located within the watershed of the Kentucky River, the planning council shall notify the Kentucky River Authority of the intent to develop a water supply plan. The letter of notification shall ask the authority to provide information concerning any planning objectives or activities that might impact the water supply planning process of the planning unit.

(f) Documentation of notifications. Section III of the plan formulation document shall include a copy of each public notice and notification sent to adjacent counties and to local units of government and water suppliers, a list of persons to whom these documents were sent, and a description of information received in response to notification sent to local governments and water suppliers. If any portion of any county in a planning unit is located within the watershed of the Kentucky River, section III of the plan formulation document shall include a copy of the notification sent to the Kentucky River Authority and a description of the response from the authority.

(4) Planning goals and objectives.

(a) The planning council shall consider the following objectives for the planning process:

Use of conservation to the maximum extent practical;
Choice of supply dependability. In addition to the level of water supply that meets minimum standards described in Section 6(8) of this administrative regulation, a planning council may plan to provide a continuous level of supply under all conditions or plan to rely on consumer cooperation to maintain a supply buffer, allowing a supplier to provide less than a continuous level of supply;
Compatibility with existing plans, or to offer recommendations to alter those plans;
Preservation and use of natural water storage and retention systems, whenever cost and data constraints permit;
Protection and enhancement of the overall quality of the environment;
Cost effectiveness; and
Social and political acceptability, and community cohesion.

(b) The planning council shall assess existing plans and public input regarding planning objectives and existing and forthcoming issues to be addressed in the planning process. The planning council shall identify any planning objectives specific to the planning unit. The planning council shall conduct at least one (1) public meeting to obtain public input concerning objectives and issues affecting the planning process. The planning council shall conduct the public meeting concerning objectives and issues early in the planning process, prior to determining the objectives of the planning process.

(c) Documentation. Section III of the final plan document shall describe the planning objectives and summarize the process used to determine these objectives. Section IV of the plan formulation document shall fully describe the objective-setting process.

(5) Water supply alternatives and emergency response plans. The planning council shall conduct at least one (1) public meeting to obtain public input concerning supply protection recommendations and emergency plans. If the existing sources of supply are not adequate to meet forecasted needs for twenty (20) years after the base year, the public meeting shall be conducted as part of the process for selecting a water supply alternative, to obtain public input concerning plan alternatives, implementation strategies, and any reevaluation of goals and objectives. The planning council shall review water supply plan alternatives and implementation strategies; consider public input, reevaluate goals and objectives; and select alternatives to be included in the final plan document.

(6) Water supply plan document approval. Section XIV of the final plan document shall include the signature of each member of the planning council who has participated in the planning process, signifying that the document accurately reflects the planning effort. If any member disagrees with the chosen plan alternative, it is the responsibility of that member to identify objections in a minority report in Section III of the final plan document, as described in subsection (2) of this section. The cabinet may approve a final plan document that is not signed by each planning council member if the planning council justifies the absence of each missing signature.

(7) Plan implementation.

(a) Upon completion and acceptance of the plan by the cabinet, the planning council shall act as an oversight or advisory group to plan implementation. The planning council shall reconvene at least annually and update the plan at least every five (5) years. A tentative date and location for reconvening the planning council shall be placed in section XIII of the final plan document.

(b) If any portion of any county in a planning unit is located within the watershed of the Kentucky River, the planning council shall address the consistency of the plan with administrative regulations promulgated by the Kentucky River Authority and with the Kentucky River Authority's water resource plan at the annual meeting.

Section 6. Responsibilities of the Planning Representative.

(1) Workplan. The planning representative shall develop a workplan for council approval and submission to the cabinet. Workplans may be separately developed for phase one and phase two planning activities. The workplan shall define objectives and deadlines for the planning process in accordance with the objectives established by the planning council, KRS 151.110 through 151.116, and this administrative regulation. The rate of plan development for specific counties within multicounty units may vary. A copy of the workplan shall be placed in section IV of the plan formulation document. The workplan shall identify the following:

(a) The planning representative;

(b) Overall goals, proposed procedures, and quarterly objectives;

(d) Sources of funds for the planning effort, including in-kind services, if any; and

(e) Any proposed deviations from the standard procedures required in this section and Sections 3 and 5 of this administrative regulation. Deviations from the standard procedures in this administrative regulation are allowed only with prior approval from the cabinet.

(2) Information review. The planning representative shall assemble and review information collected through the notification process described in Section 5(3)(c) and (4) of this administrative regulation. The planning representative shall review any plans and studies prepared within five (5) years previous to the base year by city, county, regional, state, and federal agencies that are related to water, sewer, waste management, or commercial and industrial growth. Existing water or water-related plans shall be described in section III of the final plan document.

(3) Obstacles to the planning process. The planning representative shall describe obstacles to the planning process that affect the potential accuracy, effectiveness, or implementation of the planning effort. These obstacles may include lack of equipment; insufficient legal, fiscal or other resources necessary to implement data collection; inadequate authority or responsibility at any governmental or organizational level; or lack of available information. Appendix FPD-A of the final plan document shall identify and describe obstacles to the planning process, state the relevance of the incomplete or unavailable information to the planning process, and make recommendations to remove the obstacle for future planning efforts.

(4) County base map.

(a) The following information shall be located and identified on a map of each county in the planning unit: two (2) tick marks on both the right and left margins and two (2) along both the bottom and the top, each showing latitude and longitude; county boundary; state, federal, and significant county roads; hydrologic unit boundaries of watersheds; rivers, creeks, and other tributaries within the county or shared with contiguous counties; county seat; names and jurisdictional boundaries of first through fourth class cities; significant springs; water supply reservoirs; and dams. Maps of counties that have less than ten (10) fifth class cities shall show the name and location of these cities.

(b) County base maps shall be used as a base for each map required in this administrative regulation, with the exception of the planning unit map and maps generated by state or federal agencies, or as specifically approved by the cabinet. The scale of county base maps and maps created using the county base map shall be between 1:24,000 and 1:90,000. The map document from which county base maps are compiled shall originally be a map at a scale of 1:90,000 or larger. Scales for county base maps in a planning unit shall be identical. Maps required in this administrative regulation may be created as overlays to county base maps. The plan formulation document and the final plan document may include reduced copies of maps in addition to the maps created at the scale required in this paragraph.

(c) The county base map shall be placed in section V of the plan formulation document and section IV of the final plan document.

(5) Water use assessment. The planning representative shall assess water use for the base year. The planning representative shall use sources of data specified in this subsection unless the planning representative establishes that other information is more accurate or that the required information is not available. If a comprehensive water supply study has been completed within five (5) years of the base year by the U.S. Army Corps of Engineers for any area of the planning unit, the planning representative shall use the information developed in those studies, with corrections if data varies significantly from the latest U.S. census. Information developed in other water supply studies that have been completed within five (5) years of the base year may also be used, with corrections based on the latest U.S. census data, with the approval of the cabinet.

(a) Water suppliers and distributors.

Amounts of water used by water suppliers and distributors shall be determined for the base year. Usage shall be entered into a computerized database, using software described in subsection (7)(a) of this section. Water supplier and distributor usage shall also be determined for a historical year, four (4) to six (6) years prior to the base year. This information shall be used to calibrate the forecasting software output. Usage data shall be disaggregated by usage sector.
Amounts of water used by water suppliers shall be determined from reports of metered water withdrawals, unless the planning representative justifies to the cabinet the use of other figures.
Amounts of water used by water supply distributors shall be determined from meter readings.
Water losses shall be calculated from the difference between metered readings of water purchased or withdrawn and water sold or otherwise accounted for.
Population figures used shall be based on the latest U.S. census and projections made by the Urban Research Institute at the University of Louisville. These figures may be adjusted for the planning unit, with cabinet approval, if the planning representative justifies the need to do so.

(b) Water use for withdrawal permittees other than water suppliers or distributors shall be determined from water withdrawal permit records available from the cabinet. Water withdrawals in violation of the water withdrawal permitting program shall also be determined.

(d) Other permit-exempt water withdrawals, including water used for fire protection at rates less than 10,000 gallons per day and for domestic uses, shall be estimated. Permit-exempt water withdrawals shall be described by source classification and usage.

(e) Documentation of water use assessment. Written records shall be kept regarding the sources of any water use data. The sources of data and water use information compiled pursuant to this subsection shall be fully described in section VI of the plan formulation document and summarized in section V of the final plan document, unless otherwise specified.

The planning representative shall create a water use map of each county in the planning unit. The water use map shall identify water supplier intakes, water supplier wells, and permitted water withdrawal intakes or wells that do not serve water suppliers. The map shall identify the source type and use category of each permitted site. The map shall also show water withdrawal sites for entities that withdraw more than 10,000 gallons of water per day and are exempt from or in violation of the water withdrawal permitting requirements of KRS 151.140 through 151.170 and 401 KAR 4:010, and identify the source classification and use category of each permit-exempt user.
The planning representative shall create one (1) or more diagrams showing disaggregated use of water that was withdrawn by each water supplier, including the categories of domestic, industrial, commercial, municipal, and lost or unaccounted for water use during the base year. Disaggregated demand figures shall be listed with respect to the source of supply, unless these sources are interconnected.
The planning representative shall describe water use conflicts or potential conflicts, including those caused by groundwater pumping that affects other wells or surface water or by other existing or potential competing users.

(6) Water supplier source assessment.

(a) Data collection constraints. The planning representative shall forecast the amount of available water, under normal and drought conditions, from each source being used by water suppliers in the planning unit during the base year. Methods for measuring water supply yield shall be preapproved or specified by the cabinet. The cabinet may approve deviations from the requirements in this subsection, if the planning representative demonstrates significant fiscal or other constraints. If a measure of available water is not accessible to each water supplier on a monthly basis, the planning representative shall estimate the cost of attaining those measurements. Data collection constraints shall be described in Appendix FPD-A of the final plan document.

(b) The planning representative shall summarize the soils and geologic characteristics of the planning unit. The planning representative shall obtain one (1) or more maps showing general characteristics of soils in the planning unit. These shall be included, as attachments if necessary, in section X of the plan formulation document.

(c) The planning representative shall calculate the amount of available water at the site of any water supplier intake on a stream. To determine water availability under normal conditions, the planning representative shall apply water withdrawal permitting program criteria to calculated average flow during the month of lowest flow and the seven (7) day, ten (10) year low flow. To simulate drought conditions, the planning representative shall calculate the seven (7) day, twenty (20) year low flow during the month of lowest flow. Data from the U.S. Geological Survey shall be used to make flow calculations unless the planning representative shows the cabinet that other data will provide more accurate information. If the watershed of the intake site extends beyond contiguous counties, the planning representative shall delineate an area as a recommended area appropriate for watershed protection.

(d) The planning representative shall calculate the available amount of water at the site of any water supplier intake in a water supply reservoir during normal and drought conditions. The planning representative shall also calculate streamflow into each water supply reservoir that stores runoff from a contributing watershed that drains more than thirty (30) square miles. Streamflow calculations shall be made as described in paragraph (c) of this subsection. If the watershed of the intake site extends beyond contiguous counties, the planning representative shall delineate an area as a recommended area appropriate for watershed protection.

(e) The planning representative shall calculate safe yield, specific capacity, zone of contribution and zone of influence for each water supplier well. The planning representative shall delineate an area as a recommended area appropriate for wellhead protection.

(f) The planning representative shall calculate available amount of water at the site of any water supplier intake at or below a spring. Flow calculations shall be made as described in paragraph (c) of this subsection. The planning representative shall delineate a recharge protection area that includes the recharge area of the spring.

(g) Documentation of source assessment. The planning representative shall prepare a water supplier source map of each county in the planning unit. The source map shall show contributing watersheds and known recharge areas for each water supplier's source of water, such as known zone of influence for a well and recharge area for a spring. The water supplier source map shall also show recommended protection areas. Section VII of the plan formulation document shall show all calculations made pursuant to this subsection. Section VI of the final plan document shall include a chart showing the available yield of streams, reservoirs, springs, and water wells used by water suppliers. If the planning representative identifies constraints on water use related to quality or quantity, these shall be discussed in section VI of the final plan document.

(7) Water use forecast and assessment of treatment and total distribution capacity. Water supply demands shall be forecast for dates five (5), ten (10), fifteen (15) and twenty (20) years after the base year. The planning representative may develop as many as three (3) water use forecasts, each one related to variations in usage rates created by regulatory and nonregulatory measures to reduce the amount of water created by specific water uses. If a comprehensive water supply study has been completed by the U.S. Army Corps of Engineers within five (5) years of the base year for any area of the planning unit, the planning representative shall use the information developed in those studies, with corrections if data vary significantly from the latest U.S. census. Information developed in other water supply studies that have been completed within five (5) years of the base year may also be used, with corrections based on the latest U.S. census data, with the approval of the cabinet.

(a) Water suppliers.

Demand for water from water suppliers shall be forecast using computerized software that enable water use projections that are disaggregated according to type of usage, including type of residential unit. Planning representatives may use IWR-MAIN Water Use Forecasting System computer software produced by the U.S. Army Corps of Engineers Institute for Water Resources or similar software. Section VI of the plan formulation document shall include a listing of assumptions, data sources, and extrapolations used in forecasting water demand.
The planning representative shall identify and contact any single user that purchases twenty (20) percent or more of the water produced by any water supplier and review all available plans such users have that would affect future water use. These users, their plans and the impact of these plans on forecasted water use shall be summarized in section V of the final plan document.

(b) The planning representative shall forecast average daily water use for each type of water use described in subsection (5) of this section. Diagrams showing disaggregated, forecasted use of water shall be placed in section V of the final plan document.

(c) Assessment of treatment and total distribution capacity. Information related to assessment of treatment and total distribution capacity shall be placed in section V of the final plan document.

The planning representative shall determine existing treatment and total distribution capacity of the water supplier. The planning representative shall create one (1) or more graphs comparing treatment and total distribution capacity, any planned expansion of treatment or total distribution capacity, and forecasted water use.
The planning representative shall determine if vertical elevation of an intake or capacity of a pump limits access to available water and describe access limitations.
For water suppliers whose water losses are greater than fifteen (15) percent, the planning representative shall estimate the cost of finding and repairing leaks. If water use is not metered, the planning representative shall estimate the cost of meter installation.
The planning representative shall prepare a service area map of each county in the planning unit showing the existing jurisdictional and service area boundaries of water suppliers and distributors.
The planning representative shall create a service area expansion map for each county in the planning unit showing existing expansion plans of water suppliers and distributors, including the proposed access sites of new sources of water. The service area expansion map shall be accompanied by an explanation that identifies projected dates of the expansions.

(8) Supply adequacy assessment. In order to determine water supply adequacy, the planning representative shall compare water source availability and water demands for the base year and forecasted demand for dates five (5), ten (10), fifteen (15), and twenty (20) years afterward, for each water supplier or source. By applying adequacy standards described in this subsection to each five (5) year increment, the planning representative shall identify the apparent date at which the current supply will no longer be adequate. Criteria described in this subsection shall be adjusted if a water supplier withdraws water from more than one (1) source of water. The cabinet may approve equivalent adequacy standards if the planning representative demonstrates the necessity to do so. Calculations for determining supply adequacy and a description of supply adequacy shall be documented in section VIII of the plan formulation document and summarized in section VII of the final plan document. If the existing source of supply is not adequate to meet forecasted needs for twenty (20) years after the base year, the planning representative shall inventory the water resources of the planning unit according to subsection (10) of this section. If the existing source of supply is adequate to meet forecasted needs for twenty (20) years from the base year, the planning representative shall evaluate and describe the security of access to supply for that period in section IX of the final plan document. Whether existing supply is adequate for twenty (20) years from the base year or not, the planning representative shall identify potential sources of water to use in case of contamination or similar emergency as described in subsection (13)(b) of this section.

(a) A stream shall be considered an inadequate source of water supply if the seven (7) day, ten (10) year low flow equals zero or if average rate of water use is more than eighty-five (85) percent of the available water under normal conditions.

(b) A water supply reservoir that stores runoff from a contributing watershed area of ten (10) square miles or less shall be considered an inadequate source of supply if the available volume at normal pool provides less than 200 days of supply at the average rate of water use.

(c) A water supply reservoir that stores runoff from a contributing watershed that drains between ten (10) and thirty (30) square miles shall be considered inadequate if the available volume at normal pool provides less than 100 days of supply at the average rate of water use.

(d) The following chart shall be used to determine the adequacy of a water supply reservoir that stores runoff from a contributing watershed that drains more than thirty (30) square miles.

(e) A water supply well or well field shall be considered inadequate if the average rate of water use requires water withdrawal at a rate greater than the safe yield of the aquifer.

(f) A water supply spring shall be considered inadequate if the average rate of water use is more than eighty-five (85) percent of the available water under normal conditions.

(g) In addition to the minimum standards in this subsection, the assessment of supply adequacy shall consider the following:

Instream uses such as recreation and maintenance of both game and nongame aquatic life;
Water conservation and demand management practices for resolving any adequacy deficits;
The quantity impacts of significant water withdrawals in the watershed or recharge area of the water supplier source;
The downstream or down-gradient impacts of water supplier withdrawals on other users; and
Competing uses of the surface waters or aquifers from which each water supplier's water is being taken.

(9) Supply protection. The planning representative shall identify and evaluate the risk of water supply degradation, contamination, or depletion resulting from activities in the watershed or recharge area in the planning unit. The risk of water supply degradation, contamination, or depletion shall be documented in section IX of the plan formulation document and summarized in section VIII of the final plan document.

(a) The planning representative shall identify any potential source of contamination within the watershed of a surface water supplier source or within the recharge area of a water supplier spring, or the wellhead protection area of a water supplier well or well field. The planning representative shall develop a tabular display of the degree of hazard posed by potential contaminants of a water supplier source. The planning representative shall create a map of potential sources of contamination. The map and the tabular display shall be placed in section VIII of the final plan document. Sources of potential contamination shall include, at a minimum:

Areas possessing known or potential sources of nonpoint source pollution;
Discharges permitted or tank batteries registered under 401 KAR 5:050 through 401 KAR 5:090;
Landfills, hazardous waste sites, and large, unpermitted or abandoned garbage dumps;
Active or inactive underground storage tank facilities that are registered with the Division of Waste Management;
Wells used for underground injection;
Facilities that store, utilize, or produce hazardous materials; and
Lagoon or surface impoundments or stock piles used to store or produce materials which could potentially contaminate water.

(b) The planning representative shall relate soils and geologic characteristics of the planning unit to the risks of water supply contamination, degradation, or depletion in section VIII of the final plan document.

(c) The planning representative shall describe local, existing regulatory and nonregulatory measures that protect the quality and quantity of the water supplier's sources in the planning unit in section VIII of the final plan document. Copies of local, existing regulatory measures shall be included in section IX of the plan formulation document.

(d) The planning representative shall formulate recommendations for local regulatory and nonregulatory measures to protect the quality and quantity of the water supplier's sources through watershed, recharge area, or wellhead protection programs. Local regulations and recommendations shall be described in section VIII of the final plan document.

(10) Water resources inventory. If the existing source of supply is not adequate to meet forecasted needs for twenty (20) years after the base year, the planning representative shall inventory the water resources of the planning unit. If inadequate, existing sources affect less than forty (40) percent of the counties in the planning unit, the cabinet may require an inventory or specific counties only.

(a) The planning representative shall prepare one (1) or more water resources maps of each county in the planning unit. Water resources maps shall be placed in section IX of the final plan document. Maps produced by federal or state agencies may be substituted for one (1) or more features and appended to section IX of the final plan document. Water resources maps shall show the following features:

The location of federally authorized or other significant rain and streamflow gauges;
Wetlands delineated by the U.S. Fish and Wildlife Service, under the National Wetlands Inventory program, and hydric soils delineated by the U.S. Soil Conservation Service;
Outstanding resource waters and coldwater aquatic habitat, as designated under 401 KAR 5:026 through 401 KAR 5:031, Kentucky water quality standards;
Generalized land use;
Active and abandoned mine works in which water is stored or from which water is discharged, if map information is available;
Geologic conditions, such as karst areas, that may cause unique water quantity or quality problems, if this information is available;
Areas of cultural and/or archeological significance that may affect water resources of the planning unit;
Aquifers and groundwater recharge and discharge areas, if maps are available; and
Significant water-oriented recreational resources.

(b) The following information, if available, shall be compiled in paragraph or chart form, and placed in section X of the plan formulation document:

Historical streamflow data;
Average monthly precipitation from historical data;
State and federal requirements and policies affecting water availability;
Construction data, usage data and average monthly static water levels, where readily available, of wells used at average rates of more than 10,000 gallons per day;
Generalized quality of water;
Description of groundwater aquifers, including confining layers, flow characteristics, and predicted maximum yield; and
Ownership of dams or water body access rights to any reservoirs or impoundments.

(c) The planning representative shall acquire current U.S. Geological Survey topographic maps of the planning unit, scale 1:24,000, and append these to section IX of the final plan document.

(d) The planning representative shall assemble or identify all readily available printed information related to water resources in the planning unit and describe this information in section X of the plan formulation document.

(e) The planning representative shall place a summary of the available information that relates to the quality of water in the county in section IX of the final plan document.

(11) Water supply alternatives. If the existing sources of supply are not adequate to meet forecasted needs for twenty (20) years after the base year, the planning representative shall evaluate water supply alternatives related to each water supplier that does not have adequate supply. These evaluations shall be fully documented in section XI of the plan formulation document, summarized in section X of the final plan document, and presented to the planning council. Maps shall be used if their existence will clarify alternatives.

(a) The planning representative shall examine each alternative that could potentially provide adequate water for normal supply provisions. The planning representative shall clarify these alternatives for the planning council and the public, shall fully explain each alternative in the plan formulation document, and shall summarize each alternative in the final plan document. The planning representative shall clarify why other alternatives were deemed inadequate. Documentation and presentations to the planning council and the public shall clarify at least the factors listed below:

The degree to which the alternative contributes to the planning objectives;
Use of conservation and demand options, including legal, motivational, and technological water use efficiency measures;
The level of supply dependability;
Consistency with existing plans;
Environmental impacts;
The feasibility of providing adequate pumpage and pressure to supply water from the alternative sources;
Costs associated with developing the alternative source;
Social, political, and economic impacts;
Potential sources of contamination of new sources of water;
Variations of water quality treatment capabilities or techniques required due to the characteristics of new sources of water;
The impacts and potential for conflicts with water uses that are not dependent on water suppliers, including private drinking water wells;
Supply protection; and
Changes in wastewater treatment and disposal systems required as a result of water supplier system expansion.

(b) If regionalization is considered a feasible alternative, the planning representative shall identify and evaluate the factors related to supply dependability, contamination and other risks, a recommended management structure for the regional unit, and economic cost to individuals, water suppliers, and governments.

(c) If interconnection between existing water suppliers is a specified alternative, the plan shall provide reasonable assurance that the resulting demand for water is included in any water use forecast performed in conjunction with water supply planning for the proposed interconnected water supply system.

(d) If capital improvement projects are proposed to implement the plan, the projects shall be described in the plan, including: design components; storage capacity; location alternatives; proposed construction schedule; expected federal, state and local costs; types of financing; and sources of local financing (subcounty, countywide, or multicounty).

(e) If any portion of any county in a planning unit is located within the watershed of the Kentucky River, the planning representative shall identify administrative regulations promulgated by the Kentucky River Authority and portions of the Kentucky River Authority's water resource plan that are relevant to the planning unit.

(12) Primary alternatives. If any existing source of supply is not adequate to meet forecasted needs for twenty (20) years after the base year, the planning representative shall further evaluate one (1) or more specific alternative if the planning grant or other funds allow. Section XI of the final plan document shall include a detailed description of the selected alternative. A map shall be created if it will clarify the primary alternative or alternatives.

(13) Emergency plans. The planning representative shall prepare water shortage response and supply contamination plans, which shall be documented in section XIII of the plan formulation document and summarized in section XII of the final plan document.

(a) Water shortage response plans. If the water supply availability inventory indicates that water availability for any supplier will be less than adequate during drought conditions, the planning representative shall outline contingency plans for managing water demands and accessing alternate sources of water.

Water shortage response plans shall be based on the water shortage response plan available from the cabinet, and shall include: identification of various levels of response; triggers that shall initiate these responses; actions and responses applicable to local government and the public for each response level; and penalties as necessary to ensure that the required actions are implemented.
Water shortage response plans shall describe the methods to be used by any affected water supplier to notify the public of the emergency and to provide the public with the information needed to understand the seriousness of the situation and to know what shall be done to properly respond to the situation.
Water shortage response plans shall identify sources of water for use during water supply emergencies and shall describe plans for receiving prior approvals, achieving access to the water, and adequately treating and distributing the water.
Water shortage response plans shall include a description of provisions made for activities to be performed by the Department for Military Affairs or the cabinet, if the emergency plan calls for any actions on the part of either agency. The discussion of such provisions shall include the types of activities to be performed by the Department of Military Affairs or the cabinet, at what level of water shortage these actions are to take place, approximately what it will cost the local community to reimburse the Department of Military Affairs' or the cabinet's expense, and documentation of agreement and approval from the appropriate agency.
Water shortage response plans shall describe any legal arrangements that are recommended or would be required to implement or enforce the emergency plans, including at least Public Service Commission approval when applicable.
Water shortage response plans shall identify who within the local government shall enforce the emergency provisions in the plan. The plan shall demonstrate that the local government has the authority to enforce these provisions.

(b) Supply contamination response plans. The planning representative shall develop contingency plans to be implemented if a water supply is contaminated or is threatened by contamination.

Supply contamination response plans shall describe methods of notifying state and federal agencies of the emergency.
Supply contamination response plans shall describe methods to be used by any affected water supplier to notify the public of the emergency and to provide the public with the information needed to understand the seriousness of the situation and to know what shall be done to properly respond to the situation.
Supply contamination response plans shall recommend sources of water for use during both short-term and long-term emergencies due to supply contamination and describe plans for receiving prior approvals, achieving access to the water, and adequately treating and distributing the water. Alternate sources of water for short-term use shall not be required to meet the adequacy standards described in subsection (8) of this section.
The planning representative shall assess water supplier distribution system capability to cope with contamination.
For water supply wells, the planning representative shall evaluate the effectiveness of existing monitoring wells.

(14) Implementation plan. The planning representative shall determine the steps necessary to implement the water supply plan and describe these in section XIII of the final plan document.

(a) Plans for implementation shall include methods for updating and amending the plan document and addressing current or future potential conflicts.

(b) Implementation plans shall contain a timetable for initiation and completion of tasks and shall identify parties responsible for completing tasks.

(c) The planning representative shall create a chart showing the anticipated costs of implementation and describe proposed methods of financing, including reasonable estimates of the interest rates on loans and the per capita cost to water users.

(d) The planning representative shall recommend procedures to coordinate actions of local government, and other agencies that impact development decisions within the planning unit, with the water supply plan.

(e) The implementation plan shall describe existing authority to implement the plan and identify any legal changes or agreements that are necessary to implement the plan. If the planning council makes any written agreement towards the implementation of the plan or a portion of the plan, section XIII of the final plan document shall describe the nature of the agreement, the parties involved, and when the implementation will happen. Copies of any written agreement or resolution, including agreements to expand treatment facilities or use new water sources, shall be included in section XIV of the plan formulation document.

Section 7. Grant Provisions and Plan Approval. Water supply planning grants provided by the cabinet shall be used only to create water supply plans, and shall not be used for implementing water supply plans or to construct water supply facilities or distribution systems. Planning grants may be provided separately or jointly for phase one and phase two planning activities.

(1) Funding application.

(a) A county or planning representative may apply for a planning grant by submitting a form entitled "Water Supply Planning Financial Assistance Application," dated March, 1991 and hereby incorporated by reference. Copies of this form may be reviewed or obtained from cabinet offices at 300 Sower Boulevard, Frankfort, Kentucky 40601, between 8 a.m. and 4:30 p.m. from Monday through Friday, except holidays.

(b) The application period for requesting a planning grant for state fiscal year 1991 and 1992 funds shall be from the effective date of this administrative regulation until ninety (90) days thereafter. The application deadline for subsequent state fiscal years shall be May 1.

(c) The cabinet shall review the application and may require the workplan to be revised if the cost of the water supply plan is unreasonable.

(2) Funding priorities. Water supply planning grants from available funds shall be distributed annually, as available. Unfunded applications from one (1) fiscal year may be carried over to the next fiscal year in their priority order. The cabinet shall prioritize grant applications according to water supply needs and budget constraints, within the following categories of priority:

(a) First priority shall be given to grant applicants from either counties within which lie one (1) or more water suppliers that have demonstrated drought vulnerability or significant conflicts related to shared sources of water supply or source degradation and which serve thirty-five (35) percent of the county population, or counties in which thirty-five (35) percent of the county population is solely dependent on groundwater and are not located adjacent to a stream with average flow of at least 15,000 cubic feet per second or an impoundment of at least 300,000 acre-feet. The cabinet may provide from eighty (80) to 100 percent of planning costs for these counties if they are within multicounty units, and eighty (80) to eighty-five (85) percent if they are single-county units.

(b) Second priority shall be given for phase one planning activities only, and shall be given to grant applicants from multicounty planning units that include a water supplier with demonstrated drought vulnerability or significant conflicts related to water supply planning. The cabinet may provide these grant applicants eighty (80) to 100 percent of phase one planning costs.

(c) Third priority shall be given for phase one planning activities only, and shall be given to grant applications from counties without demonstrated drought vulnerability or water supply conflicts. The cabinet may provide from eighty (80) to 100 percent of planning costs for counties from multicounty planning units and eighty (80) to eighty-five (85) percent if they are single county units.

(d) Fourth priority shall be given to grant applicants from planning units without demonstrated drought vulnerability or water supply conflicts. The cabinet may provide from eighty (80) to 100 percent of planning costs for these counties if they are from multicounty planning units, and eighty (80) to eighty-five (85) percent if they are single-county planning units.

(3) Local funding contributions.

(a) In-kind services. Local planning fund contributions may include up to fifty (50) percent of costs incurred during planning activities. Written records of these services shall be submitted to the cabinet for approval before matching funds will be released and documented in Appendix PFD-A of the plan formulation document.

Activities that shall not be considered as in-kind services include those associated with advertising for, selecting, or administering contractual agreements and those associated with expenses incurred prior to notification to the cabinet.
Records shall be maintained to document expenditures of any in-kind services where cost-share financial assistance has been requested for plan development. These records shall be included in Appendix PFD-A of the plan formulation document and available for review when any financial assistance request is made for a partial reimbursement prior to final plan approval.

(b) Expenses incurred prior to grant approval. The cabinet may approve planning expenditures that have been incurred after notification to the cabinet of the intent to develop a water supply plan and prior to grant approval. If approved, these expenses shall be reimbursed at a rate of forty-five (45) percent. No more than seventy (70) percent of total reimbursed expenses shall have been performed prior to grant approval.

(4) Plan approval. The planning council shall submit one (1) copy of the plan formulation document and three (3) copies of the final plan document to the cabinet.

(a) No plan shall be approved by the cabinet unless it meets all the provisions of this administrative regulation and is consistent with state laws and administrative regulations.

(b) The cabinet shall examine the plan for consistency with other water supply plans that have been approved by the cabinet pursuant to this administrative regulation. The cabinet shall notify planning councils of inconsistencies between water supply plans. If any portion of any county in a planning unit is located within the watershed of the Kentucky River, the cabinet shall examine the plan for consistency with administrative regulations promulgated by the Kentucky River Authority and with the Kentucky River Authority's water resource plan and notify the planning council and the Kentucky River Authority of inconsistencies.

(c) The cabinet shall notify the planning council within ninety (90) days if any portion of the plan document is not consistent with statutes or administrative regulations and shall identify any portion of the plan document requiring revision. The planning council shall subsequently submit a revision within 120 days after receiving notice of disapproval. The cabinet may extend the time period allowed to revise a plan document if a planning council submits written justification to postpone the deadline.

(d) Payments. No payments shall be made to a grant recipient for work that does not conform to the approved plan. As part of the grant contractual agreement, the cabinet may specify a schedule for payment based on submittal and approval of work elements. No more than eighty (80) percent of any total grant allotment shall be paid until grant conditions have been met and work completed under the planning grant has been approved by the cabinet.

History

RELATES TO: KRS Chapter 151
STATUTORY AUTHORITY: KRS 151.110, 151.114, 151.116, 151.118, 151.125
NECESSITY, FUNCTION, AND CONFORMITY: This administrative regulation is required to implement the legislative mandate of KRS 151.110, 151.114, 151.116, and 151.118, directing the Environmental and Public Protection Cabinet to administer a program for developing a long range water supply plan for each county in the Commonwealth. This administrative regulation describes planning procedures, details to be included in a plan, funding criteria, and uniform data base development.
History: 401 KAR 004:220. 17 Ky.R. 3054; 3457; 18 Ky.R. 22; 6-26-1991; TAm eff. 11-25-2008; TAm eff. 7-8-2016; Crt eff. 8-9-2018; Crt eff. 7-22-2025.

401 KAR 4:300 Permit timetables for 401 KAR Chapter 4 {#sec-401-kar-4-300 omnilex-key=us-ky-regs-official--title-401--401 KAR 4:300}

Section 1. Permit Timetables. The cabinet shall issue its final decision on a complete permit application within the review times specified in this section. A complete permit application shall contain all the administrative and technical information required by applicable statutes and administrative regulations.

(1)

(a) Except as provided in Section 2 of this administrative regulation, within thirty (30) calendar days of initial receipt of an application for permits subject to subsections (2) and (4) of this section, the cabinet shall notify the applicant as to whether the application is administratively complete, or if not complete, of the deficiencies which make the application administratively incomplete. A determination that the application is administratively complete shall not mean that the application is complete in every detail, nor shall it mean that any aspect of the application is technically sufficient or approvable.

(b) If the application is determined to be administratively incomplete, the applicant shall correct identified deficiencies within thirty (30) calendar days of the date of notification. If the applicant does not correct the deficiencies within the time frame, the cabinet may return the application.

(c) After the notification that the application is administratively complete, if the cabinet determines that the application is technically deficient, the cabinet shall notify the applicant of deficiencies which make the application technically incomplete or unapprovable. The applicant shall correct the technical deficiencies within thirty (30) calendar days of the notification, or other time as agreed upon by the applicant and cabinet. If the technical deficiencies are not corrected within thirty (30) calendar days or the agreed upon time frame, the cabinet may deny the permit.

(2) For water withdrawal permits required by KRS 151.140, the review time shall be ninety (90) calendar days after receipt of an administratively complete permit application.

(3) For change of use permits and public hearings for a change of use permit, the review times shall be as specified in KRS 146.290.

(4) For utility right of way and other approvals required by KRS 146.290, the review time shall be sixty (60) calendar days after receipt of an administratively complete permit application.

Section 2. Timetable Exclusions. Time periods which shall not be included in the cabinet's consideration of its decision on an application subject to Section 1(2) or (4) of this administrative regulation shall include:

(1) Time waiting for the applicant to respond to a notice of deficiency;

(2) Time during which the permit, application, decision, or related matter is held in litigation, including but not limited to administrative hearings;

(3) Time during which an opportunity for public hearing or public comment period on a draft or proposed permit is given, and time during which a public hearing is scheduled;

(4) Time waiting for federal, state or local agencies to comment on the permit or to respond to written requests from the cabinet for additional information; and

(5) Other times as agreed to by the applicant and the cabinet.

Section 3. Timetable Extensions.

(1) If two (2) or more permits for a facility, site, source, construction project, or other entity are required from the cabinet, the cabinet may coordinate the issuance of the permits, establishing different review and action times that shall be accomplished by the cabinet or applicant. If the permits are coordinated, the cabinet shall so notify the applicant and indicate the timetables under which the intermediate and final permit actions shall be accomplished. The established time frame for final action shall not exceed the last date for action that is provided for under applicable statutes and administrative regulations, based on all applications being considered and their filing dates.

(2) The applicant and the cabinet may agree that the time frames or other timetables specified in this administrative regulation may be extended.

Section 4. For permit applications submitted to the division prior to the effective date of this administrative regulation the review times shall be applied as if the application were submitted on the effective date of this administrative regulation.

History

RELATES TO: KRS 146.200-146.360, 151.140, 224.10-100, 224.10-220
STATUTORY AUTHORITY: KRS 146.270, 151.125, 224.10-100, 224.10-220
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-220 requires the Environmental and Public Protection Cabinet to prescribe timetables for the issuance of all permits by the cabinet, except those permits for which a timetable is set out by statute. This administrative regulation establishes timetables for permits that are required by 401 KAR Chapter 4, except those permits whose timetables are set out in KRS 146.290 and 151.260.
History: 401 KAR 004:300. 19 Ky.R. 1941; 2401; eff. 4-28-1993; Crt eff. 8-9-2018; Crt eff. 7-22-2025.

Chapter 5 Water Quality

401 KAR 5:002 Definitions for 401 KAR Chapter 5 {#sec-401-kar-5-002 omnilex-key=us-ky-regs-official--title-401--401 KAR 5:002}

Section 1. Definitions.

(1) "Abandoned well" means a well not currently in use and not intended for future use.

(2) "Activity" means, in 401 KAR 5:050 through 401 KAR 5:080 and if used in conjunction with "facility", a KPDES point source, or other activity, including land or related appurtenances, that is subject to regulation under the KPDES program.

(3) "Administrator" is defined by 40 C.F.R. 122.2.

(4) "Agriculture operation" is defined by KRS 224.71-100.

(5) "Agricultural wastes handling system" means a structure or equipment that conveys, stores, or treats manure from an animal feeding operation prior to land application.

(6) "Alternative effluent limitations" is defined by 40 C.F.R. 125.71(a).

(7) "Analysis category" means one (1) of the following analyte groups for which an analysis can be performed by a wastewater laboratory:

(a) Inorganic general chemistry;

(b) Inorganic metals;

(d) Organic chemistry semi-volatiles;

(e) Organic chemistry pesticides, herbicides, or PCBs;

(f) Organic chemistry dioxins;

(g) Microbiology;

(h) Whole effluent toxicity; and

(i) Field analysis.

(8) "Animal feeding operation" or "AFO" is defined by 40 C.F.R. 122.23(b).

(9) "Applicable standards and limitations" means all standards and limitations to which a discharge or a related activity is subject pursuant to KRS Chapter 224 and 401 KAR Chapters 4 through 11, including effluent limitations, water quality standards, standards of performance, or toxic effluent standards.

(10) "Application" means the documentation submitted by an applicant to the cabinet that provides information used by the cabinet to make a final determination to issue or deny a permit or certification.

(11) "Approved POTW pretreatment program", "POTW pretreatment program", "pretreatment program", or "program" means a program administered by a POTW that meets the criteria established in 401 KAR 5:055 and that has been approved by the cabinet.

(12) "Aquaculture project" is defined by 40 C.F.R. 122.25(b)(1).

(13) "Authorized representative" is defined by 40 C.F.R. 122.22.

(14) "Available" means located within the planning area and:

(a) Located within one and zero-tenths (1.0) mile of a regional facility for a WWTP with an average daily design capacity larger than 1,000 gpd; or

(b) For new construction if the distance is one and zero-tenths (1.0) mile or more, where it is cost-effective to connect as determined by a twenty (20) year present worth cost analysis.

(15) "BAT" means best available technology economically achievable.

(16) "Best management practices" or "BMPs" means:

(a) For agriculture operations, as defined by KRS 224.71-100; or

(b) For all other purposes:

Schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of waters of the commonwealth; and
Treatment requirements, operating procedures, practices to control site run-off, pollution of surface water and groundwater from nonpoint sources, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

(17) "Biochemical oxygen demand", "BOD", or "BOD5" is defined by 40 C.F.R. 133.101(d).

(18) "Borehole" means a hole drilled into the subsurface for exploratory or sampling purposes.

(19) "BPT" means best practicable technology currently available.

(20) "Building sewer" means that part of the drainage system that extends from the end of the building drain, beginning two (2) feet outside the building wall, and conveys its discharge to a downstream manhole, sewer line, pump station, or sewage disposal system.

(21) "Bulk quantities" means undivided quantities of any substance equal to or greater than fifty-five (55) U.S. gallons liquid measure or 100 pounds net dry weight transported or held in an individual container.

(22) "Bypass" means the intentional diversion of sewage or waste-streams from a portion of a facility or industrial user's treatment facility.

(23) "Carbonaceous biochemical oxygen demand" or "CBOD" means BOD, not including the nitrogenous oxygen demand of the wastewater.

(24) "Certified", for 401 KAR 5:320, means that the cabinet has determined that a wastewater laboratory complies with the regulatory performance criteria and the standard of quality established in 401 KAR 5:320 and has issued a certification.

(25) "Certified operator" means an individual who holds an active certified operator's certificate issued in accordance with 401 KAR 11:050.

(26) "cfm" means cubic feet per minute.

(27) "Chronic toxicity" means lethality, reduced growth or reproduction or other harmful effect sustained by either indigenous aquatic organisms or representative indicator organisms used in toxicity tests due to long-term exposures, relative to the life span of the organisms or a significant portion of their life span, due to toxic substances or mixtures of toxic substances.

(28) "Combined sewer" or "combined sewer line" means a sewer or sewer line designed to carry stormwater runoff as well as sanitary wastewater.

(29) "Combined sewer overflow" or "CSO" means the flow from a combined sewer in excess of the interceptor or regulator capacity that is discharged into a receiving water without going to a POTW.

(30) "Commercial" means services at stores, offices, restaurants, warehouses, and other service and nonmanufacturing activities, excluding households and industries.

(31) "Concentrated animal feeding operation" or "CAFO" is defined by 40 C.F.R. 122.23(b)(2).

(32) "Consolidation sewer" means a conduit, without direct sanitary connections that intercepts and transports combined sewer storm overflows to a treatment facility or a single combined sewer overflow point.

(33) "Container" means any portable enclosure in which a material is stored, transported, treated, disposed, or otherwise handled.

(34) "Continuous facility discharge" means a discharge that occurs without interruption throughout the operating hours of the facility, except for infrequent shutdowns for maintenance, process changes, or other similar activities.

(35) "Conventional pollutant" is defined by 40 C.F.R. 401.16.

(36) "Core hole" means a hole drilled for the purpose of obtaining a rock sample.

(37) "Corrective action", for 401 KAR 5:037, means an activity or measure taken to remedy groundwater pollution.

(38) "Date of program approval" means September 30, 1983, the effective date of the administrator's approval of Kentucky's KPDES regulatory program pursuant to 33 U.S.C. Section 1342.

(39) "Day" means a twenty-four (24) hour period.

(40) "Design flow" means the long-term daily average flow the wastewater treatment plant can treat and remain in compliance with the overall performance requirements during its design life.

(41) "Direct discharge" means the discharge of a pollutant into waters of the commonwealth if the discharge is not included under the definition of indirect discharger and does not include a discharge of animal waste onto land by land application if the discharge does not reach the waters of the commonwealth.

(42) "Disappearing stream" means an intermittent or perennial surface stream that terminates and drains underground through caves, fractures, or swallets in the stream bed.

(43) "Discharge" or "discharge of a pollutant" means the addition of a pollutant or combination of pollutants to waters of the commonwealth from a point source.

(44) "Discharge monitoring report" or "DMR" means the report including any subsequent additions, revisions, or modifications, for the reporting of self-monitoring results by KPDES permittees.

(45) "Division" means the Kentucky Division of Water, within the Department for Environmental Protection, Energy and Environment Cabinet.

(46) "Domestic" means relating to household wastes or other similar wastes. It is used to distinguish municipal, household, or commercial water or wastewater services from industrial water or wastewater services.

(47) "Domestic sewage" means sewage devoid of industrial or other wastes and that is typical of waste received from residential facilities. It may include wastes from commercial developments, schools, restaurants, and other similar developments.

(48) "Draft permit" means a document prepared pursuant to 401 KAR 5:075 indicating the cabinet's preliminary decision to issue or deny, modify, revoke and reissue, revoke, or reissue a permit. It includes a notice of intent to revoke a permit and a notice of intent to deny a permit as provided in 401 KAR 5:075. It does not include a proposed permit; a denial of a request for modification, revocation, and reissuance; or a denial of a request for revocation.

(49) "Effluent ditch" means that portion of a treatment system that is a discrete, person-made conveyance, either totally owned, leased or under valid easement by the discharger that transports a discharge to surface waters of the commonwealth.

(50) "Effluent limitation" is defined by KRS 224.1-010.

(51) "Effluent limitations guideline" is defined by 40 C.F.R. 122.2.

(52) "Environmental Protection Agency", "EPA", or "U.S. EPA" means the U.S. Environmental Protection Agency.

(53) "E. coli" or "Escherichia coli" means an aerobic and facultative anaerobic gram negative, nonspore forming, rod shaped bacterium that is ortho-nitrophenyl-B-D-galactopyranoside (ONPG) positive, and Methylumbelliferyl glucuronide (MUG) positive. It is a member of the indigenous fecal flora of warm-blooded animals.

(54) "Equivalency of certification", for 401 KAR 5:320, means certification of a wastewater laboratory by an entity, other than the cabinet, whose requirements for certification are determined by the cabinet to comply with the requirements of 401 KAR 5:320.

(55) "Exceptional water" means a surface water categorized as exceptional by the cabinet pursuant to 401 KAR 10:030.

(56) "Excessive infiltration" means a high groundwater period induced peak infiltration rate that:

(a) Results in an operational problem and permit violation at the WWTP or results in recurring overflows from the sewer system or the WWTP; and

(b) Does not include:

An overflow that results from blockages, power failures or other temporary mechanical failures, or flood waters entering the sewer system directly; or
A resulting overflow if an overflow occurs at a KPDES permitted overflow point that is in compliance with its permit requirements.

(57) "Excessive inflow" means a rainfall induced peak inflow rate that:

(a) Results in operational problems and permit violations at the WWTP or results in recurring overflows from the sewer system or the WWTP; and

(b) Does not include:

A combined sewer system if an overflow occurs at a KPDES permitted overflow point that is in compliance with its permit requirements; or
An overflow that results from blockages, power failures or other temporary mechanical failures, or flood waters entering the sewer system directly.

(58) "Facility" means:

(a) In 401 KAR 5:005 or 5:006, a sewage system as defined by KRS 224.1-010 except for septic tanks, pretreatment facilities regulated by an approved pretreatment program or intermunicipal agreement, and disposal wells as used in 401 KAR 5:090; or

(b) In 401 KAR 5:050 through 5:080 and if used in conjunction with activity, any KPDES point source, or any other facility, including land or related appurtenances, that is subject to regulation under the KPDES program. .

(59) "Field analysis" means a measuring of:

(a) Conductivity;

(b) Dissolved oxygen;

(d) Residual chlorine;

(e) Sulfite;

(f) Temperature; and

(g) Turbidity.

(60) "Flood relief sewer" means a conduit, without direct sanitary connections, that is used to transport sewage if a flood control structure or overflow detention basin is in operation.

(61) "Field-only wastewater laboratory" means a wastewater laboratory that performs a measurement for only the parameters identified as field analysis, regardless of if the measurement takes place outdoors, in an on-site room used as a laboratory, or in an off-site laboratory.

(62) "Floor drain" means an opening in the floor used to collect spills, water, or other liquids.

(63) "Force main" means a conduit used to transport sewage from a pump discharge to a sewer line, pump station, or WWTP.

(64) "General permit" means a:

(a) "General permit" as defined by 40 C.F.R. 122.2; or

(b) A KPDES permit issued pursuant to 401 KAR 5:055 authorizing a category of discharges or non-discharging facilities under KRS Chapter 224 within a geographical area.

(65) "General wastewater laboratory" means a wastewater laboratory that performs an analysis for at least one (1) analysis category other than field analysis, regardless of if the general wastewater laboratory also performs a field analysis measurement.

(66) "Generic groundwater protection plan" means a groundwater protection plan that can be applied to activities conducted at different locations because the activities are substantially identical and because the potentials of the activities to pollute groundwater are substantially the same.

(67) "GPD" or "gpd" means gallons per day.

(68) "Groundwater" means the subsurface water occurring in the zone of saturation beneath the water table and perched water zones below the B soil horizon including water circulating through fractures, bedding planes, and solution conduits.

(69) "Groundwater pollution" means "water pollution" as defined by KRS 224.1-010 of groundwaters of the Commonwealth.

(70) "Hydrogeologic sensitivity" means an assessment of the potential ease and speed of vertical infiltration or recharge of a liquid through the soil and the unsaturated zones combined with assessments of the maximum potential flow rate and dispersion potential after entry into the principal or uppermost saturated zone.

(71) "Industrial" means manufacturing or industrial processes, including:

(a) Electric power generation;

(b) Fertilizer or agricultural chemicals;

(d) Inorganic chemicals;

(e) Iron and steel manufacturing;

(f) Leather and leather products;

(g) Nonferrous metals manufacturing or foundries;

(h) Organic chemicals;

(i) Plastics and resins manufacturing

(j) Pulp and paper manufacturing;

(k) Rubber and miscellaneous plastic products;

(l) Stone, glass, clay, and concrete products;

(m) Textile manufacturing;

(n) Transportation equipment; and

(o) Water treatment.

(72) "Industrial wastewater treatment plant" or "IWWTP" means a privately owned WWTP with more than ninety (90) percent of the influent flow from sources of industrial waste.

(73) "Infiltration" is defined by 40 C.F.R. 35.2005.

(74) "Inflow" is defined by 40 C.F.R. 35.2005.

(75) "Injection" means a type of land application in which the waste is placed directly beneath the land surface.

(76) "Interference" is defined by 40 C.F.R. 403.3(k).

(77) "Interim certification", for 401 KAR 5:320, means a wastewater laboratory certification approved by the cabinet if the cabinet determines through documentation review that the wastewater laboratory complies with the requirements of 401 KAR 5:320. Interim certification is applicable to method-analyte pairing until the cabinet has a completed an on-site audit for that method-analyte pairing.

(78) "Intermediate facility" means an intermediate WWTP or a sewer line of 2,500 feet to 5,000 feet in length including appurtenances.

(79) "Intermediate nonpublicly-owned treatment works" means a facility with a design flow rate of between 10,000 gpd and 49,999 gpd of wastewater containing only conventional pollutants and that is not a POTW.

(80) "Intermediate WWTP" means a WWTP with an average daily design capacity of 10,000 to 49,999 gpd.

(81) "Interstate agency" means an agency of which Kentucky and one (1) or more states is a member established by or under an agreement or compact, or any other agency, of which Kentucky and one (1) or more other states are members, having substantial powers or duties pertaining to the control of pollution as determined and approved by the secretary or administrator pursuant to 33 U.S.C. 1251 – 1387 or KRS Chapter 224.

(82) "Karst" means the type of geologic terrain underlain by carbonate rocks where significant solution of rock has occurred due to flowing groundwater.

(83) "Kentucky Intersystem Operational Permit" or "KISOP" means a permit issued pursuant to 401 KAR 5:005 for operating a sewer system that has more than 5,000 linear feet of sewer line that discharges to a sewer system, or a WWTP that is owned by another person.

(84) "Kentucky No Discharge Operational Permit" or "KNDOP" means a permit issued pursuant to 401 KAR 5:005 for operating a WWTP that does not have a discharge to a stream, including agricultural waste handling systems and spray irrigation systems.

(85) "Kentucky Pollutant Discharge Elimination System" or "KPDES" means the Kentucky program for issuing, modifying, revoking and reissuing, revoking, monitoring and enforcing permits to discharge, and imposing and enforcing pretreatment requirements.

(86) "Key personnel" means a wastewater laboratory employee who:

(a) Performs or supervises sample analysis or quality assurance;

(b) Is a primary analyst or technician as defined in this administrative regulation; or

(87) "KPDES permit" means a Kentucky Pollutant Discharge Elimination System permit issued to a facility, including a POTW, or activity pursuant to KRS Chapter 224 for the purpose of operating the facility or activity.

(88) "Land application" means the uniform placement of animal waste on or in the soil by spraying or spreading on the surface, incorporation into the soil, or injection directly beneath the surface.

(89) "Land application area" is defined by 40 C.F.R. 122.23(b)(3).

(90) "Land treatment" or "land disposal" means the application or incorporation of a pollutant onto or into the soil.

(91) "Large animal feeding operation" means an AFO that stables or confines as many as or more than the numbers of animals specified in any of the following categories:

(a) 700 mature dairy cows, whether milked or dry;

(b) 1,000 veal calves;

(c) 1,000 cattle other than mature dairy cows or veal calves. Cattle includes heifers, steers, bulls, or cow or calf pairs;

(d) 2,500 swine each weighing fifty-five (55) pounds or more;

(e) 10,000 swine each weighing less than fifty-five (55) pounds;

(f) 500 horses;

(g) 10,000 sheep or lambs;

(h) 55,000 turkeys;

(i) 30,000 laying hens or broilers, if the AFO uses a liquid manure handling system;

(j) 125,000 chickens other than laying hens, if the AFO uses other than a liquid manure handling system;

(k) 82,000 laying hens, if the AFO uses other than a liquid manure handling system;

(l) 30,000 ducks, if the AFO uses other than a liquid manure handling system; or

(m) 5,000 ducks, if the AFO uses a liquid manure handling system.

(92) "Large concentrated animal feeding operation" is defined by 40 C.F.R. 122.23(b)(4).

(93) "Large facility" means a WWTP with an average daily design capacity of 50,000 GPD or more, or a sewer line of more than 5,000 feet in length including appurtenances.

(94) "Large nonpublicly-owned treatment works" means a facility that has a design flow rate of greater than or equal to 50,000 gpd of wastewater containing only conventional pollutants and that is not a POTW.

(95) "Large WWTP" means a WWTP with an average daily design capacity of 50,000 GPD or more.

(96) "Loading and unloading area" means an area used for loading and unloading, and related handling of raw materials, intermediate substances, products, wastes, or recyclable materials. Loading and unloading areas include areas used to load and unload drums, trucks, and railcars.

(97) "Long-term CSO control plan" means a control plan that complies with the Combined Sewer Overflow Control Policy issued by the U.S. EPA in the "Federal Register" on April 19, 1994 (59 FR 18688).

(98) "Manure" is defined by 40 C.F.R. 122.23(b)(5).

(99) "Maintenance replacement" means replacement of:

(a) Existing component parts with component parts that have similar characteristics and capacity; or

(b) A section of sewer or force main with the same size, alignment, and slope; and

(100) "Major facility" means a KPDES facility or activity classified as a major facility by the cabinet in cooperation with the regional administrator. Designation as a major industry as used in KRS 224.70-120 does not indicate automatic classification as a major facility.

(101) "Major industry" means a fee category as established in 401 KAR 5:310 for an industry that generates and discharges process-related wastewater while engaged in commercial activities including resource recovery, manufacturing, products distribution, or wholesale and retail trade. Each has a design flow rate of greater than or equal to 50,000 gpd of process wastewater containing conventional, nonconventional, or thermal pollutants. A major industry designation is not a criterion for classification as a major facility.

(102) "Major municipal separate storm sewer outfall" or "major outfall" is defined by 40 C.F.R. 122.26(b)(5).

(103) "Measurement" means the ability of the analytical method or protocol to quantify as well as identify the presence of the substance in question.

(104) "Medium concentrated animal feeding operation is defined by 40 C.F.R. 122.23(b)(6).

(105) "µg/l" means micrograms per liter, same as ppb, assuming unit density.

(106) "mgd" or "MGD" means million gallons per day.

(107) "Milligrams per liter" or "mg/l" means the milligrams of substance per liter of solution and is equivalent to parts per million in water, assuming unit density.

(108) "Minor industry" means a fee category as established in 401 KAR 5:310 for an industry that generates and discharges process-related wastewater while engaged in commercial activities and has a design flow rate of less than 50,000 gpd of process wastewater containing conventional, nonconventional, or thermal pollutants.

(109) "Minor modification to a WWTP" means a modification that does not change the WWTP average daily design hydraulic or organic treatment capacity of the WWTP or discharge location.

(110) "Mixing zone" means a domain of a water body contiguous to a treated or untreated wastewater discharge with quality characteristics different from those of the receiving water. The discharge is in transit and progressively diluted from the source to the receiving system. The mixing zone is the domain where wastewater and receiving water mix.

(111) "Municipal separate storm sewer system" or "MS4" is defined by 40 C.F.R. 122.26(b)(8).

(112) "Municipality" means a city, district, or other public body created by or under the Kentucky Revised Statutes and having jurisdiction over disposal of sewage, industrial wastes, or other wastes, or a designated and approved management agency pursuant to 33 U.S.C. 1288.

(113) "National Pollutant Discharge Elimination System" or "NPDES" is defined by 40 C.F.R. 122.2.

(114) "National pretreatment standard", "pretreatment standard", or "standard" is defined by 40 C.F.R. 403.3(l).

(115) "Natural Resources Conservation Service" or "NRCS" means the organization created pursuant to 7 U.S.C. 6962 in the U.S. Department of Agriculture.

(116) "New discharger" is defined by 40 C.F.R. 122.2.

(117) "New source" is defined by 40 C.F.R. 122.2.

(118) "Nonpoint" means any source of pollutants not defined by a point source.

(119) "Nutrient management plan" means the plan for an individual operation developed for the purpose of recycling nutrients from animal waste onto cropland or pasture.

(120) "On-site sewage disposal system", "on-site sewage system", and "on-site system" means a complete system installed on a parcel of land, under the control or ownership of any person, which accepts sewage for treatment and ultimate disposal under the surface of the ground, including:

(a) A conventional system consisting of sewage pretreatment unit, distribution box, and lateral piping within rock-filled trenches or beds;

(b) A modified system consisting of a conventional system enhanced by shallower trench or bed placement, artificial drainage systems, dosing, alternating lateral fields, fill soil over the lateral field, or other necessary modifications to the site, system, or wasteload to overcome the site limitations;

(c) An alternative system consisting of a sewage pretreatment unit, necessary site modifications, wasteload modifications, and a subsurface soil absorption system using other methods and technologies than a conventional or modified system to overcome site limitations;

(d) Cluster systems that accept effluent from more than one (1) structure's or facility's sewage pretreatment unit and transport the collected effluent through a sewer system to one (1) or more common subsurface soil absorption systems or conventional, modified, or alternative design; and

(e) A holding tank that provides limited pretreatment and storage for off-site disposal in situations in which site limitations preclude immediate installation of a subsurface soil absorption system or connection to a municipal sewer.

(121) "Operator" means a person involved in the operation of a facility or activity.

(122) "Other wastes" means sawdust, bark or other wood debris, garbage, refuse, ashes, offal, tar, oil, chemicals, acid drainage, wastes from agricultural enterprises, and other foreign substances not included within the definitions of industrial wastes and sewage that may cause or contribute to the pollution of waters of the commonwealth.

(123) "Outfall" means, for municipal separate storm sewers, a point source at the point where a municipal separate storm sewer discharges to waters of the Commonwealth, but does not include open conveyances connecting two (2) municipal separate storm sewers, or pipes, tunnels, or other conveyances that connect segments of the same stream or other waters of the Commonwealth and are used to convey waters of the Commonwealth.

(124) "Outstanding state resource water" means a surface water designated by the cabinet as an outstanding state resource water pursuant to 401 KAR 10:031.

(125) "Overburden" means material of any nature, consolidated or unconsolidated, that overlies a mineral deposit, excluding topsoil or similar naturally-occurring surface materials that are not disturbed by mining operations.

(126) "Overflow" means any intentional or unintentional diversion of flow from a facility.

(127) "Owner" means a person who has legal ownership of a facility or activity regulated pursuant to 401 KAR Chapter 5.

(128) "Package WWTP" means a factory-built WWTP that is transported to and assembled or set in place at the site.

(129) "Permit" means, as used in 401 KAR 5:005 or 5:006:

(a) A document issued by the cabinet that authorizes the permittee to construct, modify, or operate a facility; or

(b) A KPDES permit.

(130) "Pesticide" means a substance or mixture of substances intended to:

(a) Prevent, destroy, control, repel, attract, or mitigate any pest;

(b) Be used as a plant regulator, defoliant, or desiccant; or

(131) "Plan of study" means a report that contains the following information required for a regional facility plan by 401 KAR 5:006, Section 2:

(a) Planning area maps;

(b) A discussion of the need for sewer service in the area;

(d) An estimation of the twenty (20) year cost by category.

(132) "Planning area" means the geographic area proposed to be served by a regional planning agency in a projected twenty (20) year period.

(133) "Point source" is defined by 33 U.S.C. 1362(14). The term does not include agricultural stormwater run-off or return flows from irrigated agriculture.

(134) "Pollutant" is defined by KRS 224.1-010.

(135) "POTW" means publicly owned treatment works as defined in KRS 224.1-010.

(136) "POTW treatment plant" is defined by 40 C.F.R. 403.3(r).

(137) "Pretreatment" is defined by 40 C.F.R. 403.3(s).

(138) "Pretreatment requirement" is defined by 40 C.F.R. 403.3(r).

(139) "Pretreatment standard" means a national pretreatment standard.

(140) "Primary analyst or technician" means an analyst or technician who performs a specific method-analyte pairing analysis more often than any other analyst or technician at that wastewater laboratory.

(141) "Primary responsibility" means:

(a) Personal, first-hand responsibility to conduct or actively oversee and direct procedures and practices necessary to ensure that the wastewater treatment plant or wastewater collection system is operated in accordance with accepted practices and with KRS Chapter 224 and 401 KAR Chapters 5 and 11, and

(b) Having the authority to conduct the procedures and practices necessary to ensure that the wastewater system or any portion thereof is operated in accordance with accepted practices, laws, and administrative regulations of the commonwealth, or to supervise others in conducting these practices.

(142) "Privately owned treatment works" is defined by 40 C.F.R. 122.2.

(143) "Production area" means, for animal feeding operations, the area defined by 40 C.F.R. 122.23(b)(8).

(144) "Professional engineer" or "engineer" is defined by KRS 322.010(2).

(145) "Project priority list" means the list developed by the cabinet pursuant to KRS Chapter 224A that includes a priority ranking of applicants for the construction of wastewater treatment works under 33 U.S.C. 1313(e)(3)(H).

(146) "Proposed permit" means a KPDES permit prepared after the close of the public comment period and, if applicable, any public hearing and administrative appeals that are sent to U.S. EPA for review before final issuance by the cabinet. A proposed permit is not a draft permit.

(147) "Public water system" is defined by 40 C.F.R. 141.2.

(148) "Publicly owned treatment works" or "POTW" is defined by KRS 224.1-010.

(149) "RCRA" means the Resource Conservation Recovery Act as amended, 42 U.S.C. 6901 - 6992k.

(150) "Recommencing discharger" means a source that recommences discharge after terminating operations.

(151) "Recurring discharge" means, as it relates to a sewer system overflow, a discharge that occurs two (2) or more times in a twelve (12) month period.

(152) "Regional administrator" means the regional administrator of the Region IV office of the U.S. EPA or the authorized representative of the regional administrator.

(153) "Regional facility" means a facility that is:

(a) Owned by a city, county, or other public body created by KRS Chapter 67, 67A, 74, 76, 96, 108, or 220; and

(b) Designated by a regional facility plan or water quality management plan to provide wastewater collection, transportation, or treatment services for a specific area.

(154) "Regional facility plan" means a type of water quality management plan addressing point sources of pollution for the purpose of areawide waste treatment management planning prepared by the designated regional planning agency pursuant to 33 U.S.C. 1251 - 1387 to control point sources of pollution within a planning area.

(155) "Regional planning agency" means a governmental agency, such as a city, county, or other public body created by KRS Chapter 67, 67A, 74, 76, 96, 108, or 220, that has been designated pursuant to 33 U.S.C. 1288 and 40 C.F.R. 130 to provide planning for the treatment of wastewater and for controls and recommendations relating to wastewater for a particular area; and those existing agencies that have developed plans pursuant to 33 U.S.C. 1281, 1285, 1288, and 1313(e) to provide planning related to wastewater collection, transportation, or treatment for a particular area.

(156) "Regional sewage collection system" means a sewage collection system designated by a regional planning agency that is owned by a city, county, or other public body that was created by KRS Chapter 67, 67A, 74, 76, 96, 108, or 220.

(157) "Run-off coefficient" means the fraction of total rainfall that will appear at a conveyance as run-off.

(158) "SARA" means the Superfund Amendments and Reauthorization Act, 42 U.S.C. 9601 – 9675.

(159) "Schedule of compliance" means a schedule of remedial measures included in a permit, including an enforceable sequence of interim requirements leading to compliance with KRS Chapter 224 and 401 KAR Chapters 4 through 11.

(160) "SDWA" means Safe Drinking Water Act, 42 U.S.C. 300f – 300j-26.

(161) "Secondary treatment" means that degree of treatment that results in an effluent quality that meets the minimum requirements of 401 KAR 5:045.

(162) "Service area" means that geographic area currently being served by a regional facility.

(163) "Seven-Q-ten" or "7Q10" means that minimum average flow that occurs for seven (7) consecutive days with a recurrence interval of ten (10) years.

(164) "Sewage" means the water-carried human or animal wastes from residences, buildings, or other places, together with industrial wastes or underground, surface, storm, or other water as may be present.

(165) "Sewage sludge" is defined by 40 C.F.R. 122.2.

(166) "Sewer line" means a device used for collecting, transporting, pumping, or disposing of sewage, but not a building sewer that serves an individual building. A sewer line begins at the junction of two (2) building sewers that serve different buildings. Sewer lines include gravity sewer lines, pump stations, and force mains.

(167) "Sewer line extension" means a proposed construction project which extends a sewer system; it includes gravity sewer lines, pump stations, and force mains.

(168) "Sewer system" means the network of sewer lines, pump stations, and force mains that discharge to a common WWTP.

(169) "SIC" means standard industrial classification.

(170) "Significant industrial user" or "SIU" is defined by 40 C.F.R. 403.3(v).

(171) "Silvicultural point source" is defined by 40 C.F.R. 122.27.27(b(1).

(172) "Sinkhole" means a naturally occurring topographic depression in a karst area. Its drainage is subterranean and serves as a recharge source for groundwater. It is formed by the collapse of a conduit or the solution of bedrock.

(173) "Sinking stream" means a surface stream in a karst region that disappears underground usually through gradual seepage of flow along the channel bottom.

(174) "Site" means, as used in 401 KAR 5:060 through 5:080, the land or water area where a facility or activity is physically located or conducted, including adjacent land used in connection with the facility or activity.

(175) "Sludge requirements" is defined by 40 C.F.R. 403.7(a)(ii).

(176) "Small concentrated animal feeding operation is defined by 40 C.F.R. 122.23(b)(9).

(177) "Small facility" means a WWTP with an average daily design capacity less than 10,000 GPD or a sewer line of less than 2,500 feet in length including appurtenances.

(178) "Small nonpublicly-owned treatment works" means a facility that has a design flow rate of less than 10,000 gpd of wastewater containing only conventional pollutants and that is not a POTW.

(179) "Small WWTP" means a WWTP with an average daily design capacity of less than 10,000 gpd.

(180) "Source" means a building, structure, facility, or installation from which there is or may be a discharge of pollutants.

(181) "Storing" means the containing of materials, products, substances, wastes, or other pollutants on a temporary basis in a manner that does not constitute disposal.

(182) "Stormwater" is defined by 40 C.F.R. 122.26(b)(13).

(183) "Stormwater discharge associated with industrial activity" is defined by 40 C.F.R. 122.26(b)(14).

(184) "Stormwater discharge associated with small construction activity" is defined by 40 C.F.R. 122.26(b)(15), except that:

(a) Waters of the "United States" means waters of the Commonwealth of Kentucky; and

(b) "Director" means "cabinet" if "director" refers to the director of an approved state program.

(185) "Supernatant" means the water that accumulates in the upper portion of a lagoon and contains not greater than two and zero-tenths (2.0) percent total solids by dry weight analysis.

(186) "Surface impoundment" means a natural topographic depression, manmade excavation, or diked area formed primarily of earthen materials, including those lined with manmade materials, which is designed to hold an accumulation of liquids or solids.

(187) "Surface mining operation" means only those facilities required to have a permit by 405 KAR Chapters 7 through 26.

(188) "Surface waters" means those waters having well-defined banks and beds, either constantly or intermittently flowing; lakes and impounded waters; marshes and wetlands; and any subterranean waters flowing in well-defined channels and having a demonstrable hydrologic connection with the surface. Lagoons used for waste treatment and effluent ditches that are situated on property owned, leased, or under valid easement by a permitted discharger are not considered to be surface waters of the commonwealth.

(189) "Total dissolved solids" or "TDS" is defined by 40 C.F.R. 122.2.

(190) "Total maximum daily load" or "TMDL" means a calculation of the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards, and an allocation of that amount to the pollutant's sources.

(191) "Total suspended solids" or "TSS" means the total suspended solids (nonfilterable residue) as determined by use of the method specified in 40 C.F.R. 136.

(192) "Toxic pollutant" is defined by 40 C.F.R. 122.2.

(193) "UIC" means Underground Injection Control.

(194) "Underground injection control well" means a well used for the emplacement of fluids into the subsurface.

(195) "Upset" is defined by 40 C.F.R. 122.41(n).

(196) "USGS" means the U.S. Geological Survey.

(197) "Variance" means a mechanism or provision pursuant to 401 KAR Chapter 5 that allows modification to or waiver of the generally applicable effluent limitation requirements or time deadlines.

(198) "Wastewater laboratory" means a laboratory that performs an analysis, measurement, or laboratory test for an activity subject to 33 U.S.C. 1342.

(199) "Wastewater system" means a sewage system as defined by KRS 224.1-010.

(200) "Wastewater treatment plant" or "WWTP" means a facility used for the treatment and disposal of sewage.

(201) "Water" or "Waters of the Commonwealth" is defined by KRS 224.1-010.

(202) "Water quality management plan" or "WQM plan" means:

(a) A plan consisting of initial plans produced in accordance with 33 U.S.C. 1288 and 1313 and certified and approved updates to those plans; or

(b) A state or areawide waste treatment management plan developed and updated in accordance with 33 U.S.C. 1281, 1285j, 1288, and 1313e and 40 C.F.R. Part 130.

(203) "Water quality criteria" means the elements of state water quality standards established in 401 KAR Chapter 10 expressed as constituent concentrations, levels, or narrative statements, that represent a quality of water that supports a particular designated use.

(204) "Water quality standard" means the designated use of a surface water of the commonwealth and the water quality criteria and antidegradation requirements necessary to maintain and protect that designated use as established in 401 KAR Chapter 10.

(205) "Water Resources Information System" or "WRIS" means the water and wastewater system infrastructure database housed at and supported by the Kentucky Infrastructure Authority that is used for infrastructure planning, management, and financing purposes.

(206) "Well" or "water well", for 401 KAR 5:005 and 5:037, is defined by KRS 223.400(7).

(207) "Wellhead protection area" means:

(a) The surface and subsurface area surrounding a water well, well field, or spring, supplying a public water system, through which pollutants are reasonably likely to move toward and reach the water well, well field, or spring; or

(b) An area defined as a wellhead protection area in an approved wellhead protection plan.

(208) "Wetlands" is defined by 40 C.F.R. 122.2.

(209) "Zone of saturation" means the zone in which all the subsurface voids in the rock or soil are filled with water.

History

RELATES TO: KRS 224.1-010, 224.1-070, 224.1-400, 224.70-100, 224.70-120, 224.99-010, 40 C.F.R. 35, 116, 122, 130, 131, 133, 136, 141, 401-471, 15 U.S.C. 2601 - 2629, 33 U.S.C. 1251 - 1387, 42 U.S.C. 6901-6992k, 7401 - 7671q, 9601, 11023
STATUTORY AUTHORITY: KRS 224.10-100(5), 224.10-110, 224.16-050, 224.16-060, 224.70-110, 40 C.F.R. 116, 122, 130, 131, 136, 401-471, 15 U.S.C. 2601 - 2629, 33 U.S.C. 1251 – 1387
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(5) authorizes the cabinet to promulgate administrative regulations for the prevention, abatement, and control of all water pollution. This administrative regulation establishes definitions for terms used in 401 KAR Chapter 5. These definitions are not more stringent than the federal counterparts.
History: 401 KAR 005:002. 25 Ky.R. 690; eff. 11-18-1998; 26 Ky.R. 118; 792; 1119; eff. 12-8-1999; 29 Ky.R. 1018; 1533; eff. 12-18-2002; 30 Ky.R. 997; eff. 9-8-2004; TAm eff. 9-8-2007; TAm eff. 11-25-2008; 35 Ky.R. 2493; 36 Ky.R. 337; eff. 9-25-2009; TAm eff. 7-8-2016; 44 Ky.R. 2578; 45 Ky.R. 667, 982; eff. 11-1-2018; Crt to Am, filing deadline 4-28-2027.

401 KAR 5:005 Permits to construct, modify, or operate a facility {#sec-401-kar-5-005 omnilex-key=us-ky-regs-official--title-401--401 KAR 5:005}

Section 1. Applicability.

(1) This administrative regulation shall apply to an owner and an operator of a sewage system, except:

(a)

A septic tank with a subsurface discharge;
A pretreatment facility regulated by a pretreatment program or intermunicipal agreement, approved pursuant to 401 KAR 5:055; or
An authorization by permit or rule that is prepared to assure that underground injection will not endanger a drinking water supply, pursuant to the Safe Drinking Water Act, 42 U.S.C.300f-300j, and that are issued pursuant to a state or federal Underground Injection Control program; and

(b) An underground injection control well that is permitted pursuant to 40 C.F.R. 144 if the permit:

Is protective of public health and welfare; and
Prevents the pollution of ground and surface waters.

(2) Unless exempted pursuant to subsection (3)(b) of this section or paragraph (a) of this subsection, a person shall not construct, modify, or operate a facility without having received a permit from the cabinet.

(a) A construction or modification permit shall not be required for maintenance replacement for components of an existing facility or for changes that do not affect the treatment processes of the facility, but shall be required for replacement of an entire wastewater treatment plant (WWTP).

(b) The operational permit provisions of Section 27 of this administrative regulation shall be satisfied by those facilities that have a valid KPDES permit.

(3) This subsection shall apply to an agricultural waste handling system, industrial WWTP, or a stormwater WWTP.

(a) The following requirements shall apply to an agricultural waste handling system:

An agricultural waste handling system that conveys, stores, or treats manure from a concentrated animal feeding operation shall obtain a:

a. Permit to construct or modify the facility, pursuant to Sections 2 and 24 of this administrative regulation; and

b. KPDES permit; and

All other agricultural waste handling systems shall obtain a:

a. Permit to construct, modify, or operate the facility pursuant to Sections 2, 24, 25, 27, and 30(1) of this administrative regulation; and

b. Kentucky No Discharge Operational Permit (KNDOP).

(b) The following shall apply to industrial wastewater treatment plants (IWWTPs):

An IWWTP with a closed loop system or a system that uses spray irrigation for disposal shall:

a. Obtain a KNDOP permit;

b. Comply with Sections 2, 25, 27, and 30(1)(e) through (h) of this administrative regulation; and

c. Not be required to obtain a permit to construct or modify the facility;

An IWWTP with a discharge to the waters of the Commonwealth shall:

a. Comply with Section 4(2) of this administrative regulation;

b. Obtain a KPDES permit to discharge into the waters of the Commonwealth;

c. Comply with any other applicable standard or requirement of 401 KAR Chapter 5; and

d. Not be required to obtain a permit to construct or modify the facility; and

A sewer line that conveys wastewater to an IWWTP shall not be required to obtain a construction permit.

A permit to construct or modify the facility shall not be required for a WWTP that collects, conveys, or treats only stormwater and discharges into the waters of the Commonwealth.

a. These facilities shall comply with 401 KAR 5:037 through 5:080 and 401 KAR 10:026 through 10:031.

b. 401 KAR 5:060 establishes if these facilities shall obtain a KPDES permit.

A WWTP that collects, conveys, or treats only stormwater and does not discharge into the waters of the Commonwealth shall obtain an operational permit pursuant to Sections 2, 25, 27, and 30(1)(e) through (h) of this administrative regulation.

Section 2. Application Submittal.

(1) An application to construct, modify, or operate a facility, or renew the operational permit for a facility shall be submitted on the applicable forms established in this subsection and shall include the applicable supporting information pursuant to Section 3 of this administrative regulation, applicable construction permit fees pursuant to Section 5 of this administrative regulation, applicable modification or operating permit fees, and plans and specifications for the proposed construction or modification pursuant to Section 6 of this administrative regulation.

(a) For construction of a sewer line extension, the applicant shall submit a completed Construction Permit Application for Clean Water Collection System, DEP No. 7071-S1 (4/2018).

(b) For construction of a WWTP or WWTP with a sewer line with a direct discharge, the applicant shall submit or shall have submitted:

The completed KPDES applications pursuant to 401 KAR 5:060; and
A completed Construction Permit Application for Wastewater Treatment Plant, DEP No. 7071-W1 (4/2018).

(c) For a WWTP construction project without a discharge other than an agricultural waste handling system, the applicant shall submit:

A completed Construction Permit Application for Wastewater Treatment Plant, DEP No. 7071-W1 (4/2018); and
A completed Kentucky No Discharge Operational Permit Application, DEP 7033-ND (3/2018).

(d) For an operational permit or renewal of a Kentucky No Discharge Operational Permit (KNDOP) other than an agricultural waste handling system, the applicant shall submit a completed Kentucky No Discharge Operational Permit for Closed Loop and Spray Irrigation Systems Application, DEP 7033-ND (3/2018).

(e) For construction, renewal, modification, or operation of agricultural waste handling systems that do not discharge and do not intend to discharge, the applicant shall submit a completed Kentucky No Discharge Operational Permit Application for Agricultural Wastes Handling Systems, Short Form B, DEP 7033-B-ND (3/2018).

(f) For construction of minor modifications to a WWTP, the applicant shall submit a completed Construction Permit Application for Wastewater Treatment Plant, DEP 7071-W1 (3/2018).

(g) For WWTP construction projects with a discharge for an individual residence, the applicant shall submit a completed notice of intent for coverage under a general permit issued pursuant to 401 KAR 5:055.

(h) For operational permits or renewals of operational permits for publicly owned sewer systems that have at least 5,000 linear feet of sewer line and that discharge to a sewer system or a WWTP that is owned by another person, the applicant shall submit a completed Kentucky Inter-System Operational Permit Application, DEP 7103 (3/2018).

(2) Signatures.

(a) An application and all reports required by the permit shall be signed as established in 40 C.F.R. 122.22(a) through (c)..

(b) Certification. A person signing a document in accordance with paragraph (a) of this subsection shall make the following certification: "I certify under penalty of law that this document and all attachments were prepared under my direction or supervision. The information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for known violations."

Section 3. Application; Construction Permit Supporting Information. For those facilities required to submit a Construction Permit Application for Wastewater Treatment Plant or Construction Permit Application for Clean Water Collection System, the following information shall be submitted with the application pursuant to Section 2 of this administrative regulation:

(1)

(a) The applicant shall identify who will inspect and certify that the facility under construction conforms to the plans and specifications approved by the cabinet in accordance with this administrative regulation.

(b) Facilities designed by an engineer shall be inspected and certified by an engineer;

(2) The applicant shall provide:

(a) An estimate for the cost of the facility and the sources of project funding;

(b) A USGS 7.5 minute topographic map with the proposed project site identified;

(c) The North American Datum 1983 (NAD 83), degree, minutes, and seconds measurement of the proposed project's latitude and longitude; and

(d) An estimate, and the basis for the estimate, for the average daily flow added by the proposed project;

(3) Closure plan.

(a) If an existing facility or a portion of a facility will be taken out of service, the applicant shall submit a closure plan discussing the following items:

How the facility will be constructed and how the sewage will be diverted to the new construction without a bypass to a stream. If a bypass is unavoidable during construction, the applicant shall submit:

a. An explanation of why construction cannot occur without the bypass;

b. An estimate of the shortest duration for the construction to be completed;

c. A description of all equipment, material, labor, and any other item necessary to complete the construction; and

d. An estimate of when the necessary items for the construction will be on-site;

How the contents of the facility will be removed and properly disposed;
How any remaining sludge will be removed and properly disposed;
How the abandoned facility will be removed or filled and covered; and
How the abandoned sewers will be plugged and manholes filled and covered.

(b) If an existing WWTP discharge is eliminated, the owner of the WWTP shall submit a completed No Discharge Certification, DEP 7032-NDC (3/2018), within thirty (30) days after the elimination of the discharge;

(4) Preliminary submittal. Applicants for WWTP construction permits may submit the following information prior to formal submittal of the construction application, to allow the applicant to receive a preliminary determination on the suitability of the proposed discharge location and preliminary effluent limits used in the design of the facility.

(a) If the information in this subsection is not submitted prior to the formal submittal, the information shall be submitted with the construction application.

(b) The preliminary determination shall be valid for up to one (1) year after issuance of the preliminary determination or until the issuance of the KPDES permit, whichever occurs first.

(c) The preliminary determination shall not be a guarantee of final permit limits and may be changed as a result of information presented during the public notice phase of the KPDES permitting procedure.

(d) The preliminary effluent limits shall be contingent upon the validity, accuracy, and completeness of the following information that the applicant shall submit:

A reproducible copy of a USGS 7.5 minute topographic map with the projected service area outlined, the proposed WWTP location, and the discharge point identified on the map;
A letter from the regional planning agency stating whether the applicant's project is compatible with the regional facility plan or water quality management plan;

a. For a new or an expansion of an existing regional facility pursuant to 401 KAR 5:006, a regional facility plan or water quality management plan.

b. The planning requirements of Recommended Standards for Wastewater Facilities, 2014 Edition, A Report of the Wastewater Committee of the Great Lakes-Upper Mississippi River Board of State and Provincial Public Health and Environmental Managers, 2014 (Ten States' Standards) shall be satisfied by the cabinet's approval of a regional facility plan or a water quality management plan;

For a WWTP project, a demonstration that the users of the proposed WWTP cannot be served by an existing regional facility. The applicant shall provide a detailed evaluation of alternatives by conducting a twenty (20) year present worth cost analysis.

a. The distance criteria for determining availability shall not apply to a WWTP with an average daily design capacity less than or equal to 1,000 gpd.

b. The distance shall be measured along the most feasible route of connection to a point where the downstream sewer has capacity to carry the additional flow; and

An estimate and the basis for the estimate of the average daily flow added by the proposed project;

(5) For a WWTP project, the applicant shall submit the following influent design values:

(a) Average daily flow;

(b) Peak daily flow;

(d) Peak instantaneous flow;

(e) BOD;

(f) Influent suspended solids;

(g) Phosphorus; and

(h) Ammonium nitrogen (NH3-N);

(6) For a WWTP project, if the discharge point of a proposed WWTP fails to coincide with a stream indicated as a blue line on a USGS 7.5 minute topographic map, the applicant shall demonstrate that the applicant has a recorded deed, recorded other right of ownership, or recorded right of easement to discharge the applicant's effluent across any land owner's property that comes between the point of discharge and a blue line stream;

(7) For a WWTP project, the applicant shall submit a copy of the plat or survey clearly indicating the property boundaries, the position of the proposed facility, and the position of the dwellings within 200 feet of the WWTP;

(8) For a WWTP project, the applicant shall provide a sludge management plan that includes the method of sludge processing and ultimate sludge disposal;

(9) For a WWTP project, the applicant shall indicate that laboratory services shall be provided for self-monitoring and process control to ensure that the WWTP operation complies with the permit; and

(10) For a WWTP project, the applicant shall submit:

(a) A schematic drawing of the WWTP layout and detailed explanation of the proposed facility and its method of operation;

(b) The WWTP's reliability category and a demonstration of how the WWTP complies with the reliability requirements in Section 13 of this administrative regulation; and

Section 4. Application; Preliminary Considerations.

(1) A permit shall not be granted to a facility that is not compatible with a regional facility plan or with a water quality management plan approved by the cabinet or the U.S. EPA.

(2) A permit shall not be granted to construct a new or expanded wastewater treatment plant five (5) miles or less upstream of a surface water intake.

(a) The cabinet may issue a variance to the five (5) mile limitation established in this subsection if the applicant demonstrates that the:

Proposed wastewater treatment plant incorporates design and reliability features necessary to protect water quality at surface water intakes located five (5) miles or less downstream of the proposed wastewater treatment plant; and
Wastewater treatment plant discharge shall not significantly affect the quality of the water at the downstream source water intake.

(b) An applicant for a variance on the five (5) mile limitation established in this subsection to construct a new or expanded wastewater treatment plant shall submit to the cabinet a plan of study describing in detail how the applicant plans to undertake the demonstration required by subparagraph (a) of this subsection. At a minimum the plan of study shall include the:

Methodologies to be used;
Source and extent of existing data to establish quantitative and qualitative background conditions or tentative plan to generate a data base that will establish quantitative and qualitative background conditions;
Parameters to be measured and equipment to be used for measurement and analysis;
Means by which the discharge flow and resulting plume will be simulated to include estimates of maximum concentrations expected at the discharge point and the downstream surface water intake; and
Distribution of instream sampling points and the frequency at which samples will be taken.

(c) An applicant for a permit to construct a new or expanded wastewater treatment plant shall not commence field work on the demonstration required by subparagraph (a) of this subsection until the plan of study has been reviewed and approved by the cabinet.

(d) An applicant for a permit to construct new or expanded wastewater treatment plant greater than five (5) miles upstream of a surface water intake may be required to demonstrate that the proposed wastewater treatment plant discharge will not significantly affect the quality of the water at the downstream surface water intake.

(3) A new open-top component of a WWTP shall not be located within 200 feet of an existing dwelling or property line; except:

(a) A WWTP that serves an individual residence shall not be required to be at least 200 feet from the dwelling that it serves; and

(b) An open-top component of a WWTP may be located within 200 feet of another dwelling that the WWTP does not serve or a property line if:

The WWTP or component is enclosed within a building that controls odors and dampens noise; or
The applicant demonstrates that an equivalent method for noise and odor control shall be provided.

(4) A discharge point or direct discharge into a wellhead protection area shall comply with Section 4(2) of this administrative regulation if that public drinking water well or spring is under the direct influence of surface water.

(5) The initial suitability of a location for a proposed discharge point or spray irrigation field shall be determined by the cabinet after site inspection. In determining the suitability of the location, the cabinet shall consider the:

(a) Distance to the nearest dwelling;

(b) Distance to water intake used for a public water supply;

(d) Physical characteristics and current use of the stream;

(e) Physical characteristics of the proposed spray field including karst topography;

(f) Need for easements;

(g) Location of property boundaries; and

(h) Other items consistent with this administrative regulation and KRS Chapter 224.

(6) If the discharge from the WWTP enters a sinkhole directly or enters a disappearing stream, the applicant shall submit a proposal for a groundwater tracer study or results from a previously conducted study to the cabinet.

(a) The cabinet shall accept a groundwater tracer study or a proposal for a groundwater tracer study if it is sufficiently scientifically rigorous to establish if a hydrologic connection exists with:

Surface waters that may result in additional or more stringent permit limitations;
Domestic water supply intakes within five (5) miles; and
Drinking water wells within five (5) miles.

(b) The cabinet shall notify that applicant of the cabinet's acceptance or denial of a proposed groundwater tracer study.

(c) If the cabinet accepts a proposal for a groundwater tracer study, the applicant shall conduct the groundwater tracer study and submit the completed groundwater tracer study to the cabinet.

(d) The cabinet shall issue, deny, or modify the permit based upon the findings of a scientifically rigorous groundwater tracer study.

(7) The cabinet may condition or deny a permit to construct or expand a facility based on its compatibility with a regional facility plan or the availability of a regional facility.

(a) Permits to construct, expand, or operate a sewage system shall require connection to a regional facility if one (1) becomes available and shall not be renewed, reissued, or modified to remove that requirement unless a regional facility is no longer available.

(b) The distance criteria to determine if a regional facility is available shall be measured along the most feasible route of connection to a point where the downstream sewer has capacity to carry the additional flow.

(8) Pursuant to 401 KAR 5:075, the cabinet may coordinate issuance of a construction permit for WWTPs that require a new KPDES permit or modification to a KPDES permit with the issuance of the KPDES permit to ensure that public comments received as a result of the public notice requirements of 401 KAR 5:075 shall be considered in the issuance of the construction permit.

(a) The cabinet may also coordinate issuance of construction approval for the associated sewer lines with the issuance of the construction permit for the WWTP.

(b) The cabinet may condition or deny the construction permit based on those public comments.

(9)

(a) The cabinet shall issue a notice of deficiency for the deficiencies in the application, fees, supporting information, or plans and specifications.

(b) Failure of the applicant to respond to a notice of deficiency within thirty (30) days shall result in the application being terminated without the issuance of a construction permit.

Section 5. Fees.

(1) Except as specified in KRS 224.10-100, 224.16-050, and subsection (5) of this section, the applicant shall submit a construction permit fee as provided in subsection (4) of this section with the construction permit application and any applicable KPDES fee.

(2) If the cabinet denies a construction permit for a WWTP or sewer line, the fee for the construction permit shall be retained by the cabinet, unless the fee is for a WWTP that serves only an individual residence.

(3) The applicant shall make checks or money orders payable to the Kentucky State Treasurer.

(4) Construction permit fees shall be as established in the table in this subsection, except as provided in subsection (5) of this section.

(5) Fees established in this section shall not apply to an agricultural waste handling system or to a renewal of a KNDOP permit.

(6) The WWTP fee shall apply to the WWTP project and sewers or pump stations located on the plant property.

(a) A sewer fee shall apply to all sewers, force mains, and pump stations that are bound together as one (1) set of plans.

(b) If a WWTP project includes sewers, force mains, or pump stations located off of the plant property, at least two (2) fees shall be submitted.

(7) To qualify for the reduced fee in subsection (4) of this section, nonprofit organizations shall submit proof that they are qualified pursuant to 26 U.S.C. 501(c)(3).

Section 6. Plans and Specifications.

(1) The applicant shall submit to the cabinet at least one (1) set of detailed plans and specifications for the facility and one (1) digital copy. Plans for gravity sewer lines and force mains shall include a plan view and a profile view.

(2) The cabinet may request additional information as is necessary to evaluate the facility to ensure compliance with this administrative regulation.

(3) If cabinet approval is obtained, changes shall not be made to the plans and specifications that would alter or affect the location, capacity, type of treatment process, discharge location, or quality of effluent without issuance of a modified permit from the cabinet.

(4) If a proposed facility will become a part of a sewer system served by a regional facility or has a projected average daily design capacity of 10,000 gpd or more, the plans and specifications shall be prepared, stamped, signed, and dated by a professional engineer.

(5) The plans shall be accompanied by engineering calculations necessary for the understanding of the basis and design of the facility.

(6) If a proposed facility's design capacity is less than 10,000 gpd, the cabinet may require the plans to be prepared, stamped, signed, and dated by a professional engineer if there is not sufficient operating data available from previous similar installations. Operation data shall demonstrate that water quality standards have not been violated and that there have not been significant operational problems.

Section 7. Design Considerations.

(1)

(a) Facilities, except an extended aeration package WWTP with an average daily design capacity less than 100,000 gpd, shall be designed in accordance with the Recommended Standards for Wastewater Facilities, 2014 Edition, A Report of the Wastewater Committee of the Great Lakes-Upper Mississippi River Board of State and Provincial Public Health and Environmental Managers, 2014, commonly referred to as Ten States' Standards.

A deviation from the Ten States' Standards requirements may be approved if the applicant submits a written request for a deviation with the basis for the request pursuant to this paragraph.
The basis for the deviation request shall be supported by current engineering practice such as that found in Wastewater Engineering: Treatment and Reuse, Metcalfe and Eddy Inc., 5th Edition (2013).
Design calculations and other supporting documentation to support the deviation shall be submitted to the cabinet.

(b) Other practices may be required if necessary for the protection of public health and the environment.

(c) Other practices may be approved by the cabinet if sufficient operational experience is available from previous similar installations to indicate operational problems have not occurred, that water quality standards have not been violated, and design calculations and documentation to support the other practice have been submitted to the cabinet.

(2) The applicant shall demonstrate that the effluent from a proposed facility shall:

(a) Protect those minimum conditions listed in 401 KAR 10:031 that are applicable to all waters of the Commonwealth;

(b) Not cause those waters designated by 401 KAR 10:026 or categorized by 401 KAR 10:030 to be of lesser quality than the numeric criteria applicable to those waters in 401 KAR 10:031 or the requirements of 401 KAR 10:030; and

(3) Each WWTP shall have a flow measuring device at the plant capable of measuring the anticipated flow, including variations, with an accuracy of ± ten (10) percent.

(a) The flow measuring device shall measure all flow discharged by the WWTP including any bypasses.

(b) An indicating, recording, and totalizing flow measuring device shall be installed at each large WWTP.

(c) A flow measuring device for new large WWTPs shall meet the requirements of Section 12 of this administrative regulation.

(4) A bypass or overflow structure of any type shall not be constructed in a sewer line or pump station or at a WWTP unless construction of the bypass or overflow structure is necessary to prevent loss of life, personal injury, or severe property damage and there is not an alternative.

Section 8. Requirements for Sewer Line Extensions.

(1) If the applicant does not own all of the proposed sewer line extension, the applicant shall identify the owner and the portion of the sewer line extension owned by the other person.

(2) The applicant shall submit letters from the owner of the:

(a) Sewer line extension stating that the owner shall accept operation and maintenance responsibilities for the sewer line extension as it is constructed;

(b) Sewer system stating that the owner approves the connection and accepts responsibility for the additional flow; and

(3)

(a) The applicant shall demonstrate that the portion of the sewer system used by the connection has adequate capacity to transport the current and anticipated peak flow to the WWTP and that the portion of the sewer system used by the connection shall not be subject to excessive infiltration or excessive inflow.

(b) The cabinet may deny a sewer line extension for that portion of the sewer system if the portion of the system is subject to excessive infiltration or excessive inflow unless a plan for investigation and remediation that addresses these conditions has been submitted and is being implemented.

(4)

(a) The applicant shall demonstrate that the WWTP that receives the waste has adequate capacity to treat the current and the anticipated flow and is not subject to excessive infiltration or excessive inflow.

(b) The cabinet may deny the sewer line extension if the WWTP does not have adequate capacity to treat the flow or is subject to excessive infiltration or excessive inflow unless a plan for investigation and remediation that addresses these conditions has been submitted and the plan is being implemented.

(5) The entrance of groundwater into, or loss of waste from, a new gravity sewer line shall be limited to 200 gpd per inch of diameter per mile of the gravity sewer line and shall include manholes, gravity sewer lines, and appurtenances.

(6)

(a) The integrity of a new gravity sewer line shall be verified by either the infiltration-exfiltration or low pressure air testing method.

An infiltration-exfiltration test shall be performed with a minimum positive head of two (2) feet.
A deflection test shall be performed for each new flexible pipe; pipe deflection shall not exceed five (5) percent.
Each new manhole shall be tested for watertightness.

(b) The integrity of a new force main shall be verified by leakage tests. The applicant shall describe the proposed testing methods and leakage limits in the specifications submitted with the permit application.

(7) The construction of a new combined sewer shall not be permitted unless it is a consolidation sewer, flood relief sewer, or a replacement of a combined sewer that:

(a) Conforms with the long-term CSO control plan that complies with the Combined Sewer Overflow (CSO) Control Policy, U.S. EPA, 59 Federal Register 18688, April 1994;

(b) Enhances water quality; and

(8) A gravity sewer line and a force main shall be designed and constructed to give mean velocities, when flowing full, of not less than two and zero-tenths (2.0) feet per second.

(a) The roughness coefficient used in the Manning or Kutter's formula shall be 0.013, or the "C" factor used in the Hazen-Williams Formula shall be 100.

(b) If the specifications allow only plastic pipe, a roughness coefficient of 0.011 or a "C" factor of 120 may be used.

(c) A roughness coefficient between 0.013 and 0.011 may be used for other pipe materials if sufficient documentation of experimental testing is submitted to the cabinet and if the testing supports the use of the design roughness coefficient.

(9) A gravity sewer line and a force main shall have a minimum of thirty (30) inches of cover or provide comparable protection.

(10) If a gravity sewer line and a force main are to be constructed in fill areas, the fill areas shall be compacted to ninety-five (95) percent density as determined by the Standard Proctor Density test or to a minimum of ninety (90) percent density as determined by the Modified Proctor Density test prior to the installation of the sewer lines.

(11) The minimum diameter for a conventional gravity sewer line shall be eight (8) inches, except that:

(a) The minimum diameter for an extension to an eight (8) inch or larger sewer line if a future extension is not feasible shall be six (6) inches;

(b) The minimum diameter for an extension to a six (6) inch sewer line shall be six (6) inches; and

(12) A manhole shall be provided at the junction of two (2) building sewers. This subsection shall not apply to building sewers that serve a single-family residence.

(13) The following building sewers shall be exempt from the requirements of this administrative regulation:

(a) A gravity sewer that:

Discharges directly to the sewer main; and
Serves a single building; and

(b) A force main sewer, regardless of the location of the pump station that:

Discharges directly to a gravity sewer main; and
Serves a single building.

(14) Except as provided in paragraph (b) of this subsection, a sewer line shall be located at least fifty (50) feet away from an intermittent or perennial stream except where the sewer alignment crosses the stream.

(a) The distance shall be measured from the top of the stream bank.

(b) The applicant may request a variance from the requirement established in this subsection.

(15) A gravity sewer line and a force main that cross streams shall be constructed by a method that maintains normal stream flow and allows for a dry excavation.

(a) Water pumped from the excavation shall be contained and allowed to settle prior to reentering the stream.

(b) Excavation equipment and vehicles shall operate outside of the flowing portion of the stream.

(16) A pump station wetwell shall be sized so that, based on the average flow, the time to fill the wetwell from the pump-off elevation to the pump-on elevation shall not exceed thirty (30) minutes.

(17) A pump station wetwell shall have a vent.

(18) A pump station shall provide a minimum of two (2) hours of detention, based on the average design flow, above the high level alarm elevation or provide an alternate source of power with wetwell storage providing sufficient time for the alternative power source to be activated.

(19) Each high point in the force main shall have an automatic air release valve.

(20) The applicant shall submit a performance curve for a proposed pump station.

(21) A simplex design shall be used only for a pump station that serves an individual residence or business, and a spare pump shall be available for immediate installation.

Section 9. Municipal Water Pollution Prevention Program. This section applies to owners of regional WWTPs, sewer systems served by regional WWTPs, and political subdivision facilities with KISOPs.

(1) For each regional WWTP, the cabinet shall review the WWTP's reported monthly flows and organic loads for the most recent twelve (12) months. If the annual average flow or organic load, or for systems with combined sewer lines the lowest monthly flow and associated organic load, exceed the following values, the cabinet shall advise the owner of the WWTP of the need to address the potential overload condition pursuant to subsections (2) and (3) of this section:

(a) For a regional WWTP with a design capacity of ten (10) mgd or less, ninety (90) percent of the WWTP's average daily design capacity; or

(b) For a regional WWTP with a design capacity of more than ten (10) mgd, ninety-five (95) percent of the WWTP's average daily design capacity.

(2) The cabinet shall give written notice to the owner of the WWTP that the wastewater collection system shall not accept any additional flow until the owner of the WWTP:

(a) Agrees to address the potential overload condition established in subsection (1) of this section in accordance with subsection (3) of this section; or

(b) Demonstrates to the cabinet that the additional flow shall not result in an increase in monthly flows at the WWTP and receives cabinet approval to accept the additional flow.

(3) The cabinet shall deny the approval of a sewer line extension until the owner of the WWTP agrees to address the potential overload condition identified in subsection (1) of this section. The owner shall address the condition by:

(a)

Demonstrating, with supporting documentation, that the average daily design capacity of the plant is greater than the permitted amount.
The cabinet shall review the request and if justified, shall issue a revised average daily design capacity for the WWTP by issuing a modification to the KPDES permit;

(b) Expanding the WWTP to a size sufficient to handle the anticipated flows and loads; or

(4) The cabinet shall deny a sewer line extension that is of sufficient flow or adds load sufficient to exceed the remaining design capacity of the WWTP or exacerbate water quality problems until the owner of the WWTP agrees to address the design capacity or water quality problem.

(5) The owners of the following facilities shall conduct a study of the sewer system or the affected portion of the sewer system that complies with subsections (5) and (6) of this section:

(a) A regional WWTP with a reported average flow or organic load that exceeds the percent identified in subsection (1)(a) or (b) of this section, as applicable, or a political subdivision KISOP facility that either:

Receives more than 275 gallons per capita per day of sewage flow based on the maximum flow received during a twenty-four (24) hour period exclusive of industrial flow; or
Receives more than 120 gallons per capita per day of sewage flow based on the annual average of daily flows exclusive of industrial flow; or

(b) If subject to excessive infiltration or excessive inflow, a regional WWTP, sewer system served by a regional WWTP, or a political subdivision facility with a KISOP.

(6) The study shall determine if the infiltration-inflow can be removed in a cost-effective manner by using a twenty (20) year present worth cost analysis and if it cannot be, shall identify the modifications to the sewer system, affected portion of the sewer system, or affected portion of the WWTP necessary to transport and treat the infiltration-inflow.

(a) A schedule for completion of the necessary modifications shall also be prepared.

(b)

The study and schedule shall be submitted to the cabinet for review and approval.
Approval shall be based on cost and length of time required to correct the infiltration-inflow.

(7) For the infiltration-inflow study of the sewer system or the affected portion of the sewer system, the owner shall:

(a) Use a map of the sewer system or the affected portion of the sewer system to select manholes for the installation of flow monitoring equipment;

(b) Install equipment to monitor flow at the key manholes, groundwater levels, and rainfall volume and duration for a period of thirty (30) to ninety (90) days;

(d) Evaluate the cost-effectiveness of transportation and treatment versus correction of the infiltration-inflow sources by using a twenty (20) year present worth cost analysis;

(e) Internally inspect the sewer lines in the affected portion of the sewer system to determine the rehabilitation locations and methods if the rehabilitation locations and methods cannot be established by other analysis;

(f) Develop plans for rehabilitation of the affected portion of the sewer system or modifications to the affected portion of the facility necessary to transport and treat all flows; and

(g) Develop a schedule for completion of the rehabilitation or modifications.

(8)

(a) The owner of the facility shall complete the necessary rehabilitation or modifications in accordance with the schedule to which the applicant and cabinet agree.

(b) The cabinet may deny a further sewer line extension if the owner is not meeting the schedule or is not making progress that follows the schedule.

Section 10. Extended Aeration Package WWTP Requirements. This section shall apply to an extended aeration package WWTP intended to treat only domestic sewage but shall not apply to an extended aeration package WWTP that serves an individual residence.

(1) A bar screen shall be provided for each plant, except those with trash traps pursuant to Section 14 of this administrative regulation.

(2) The aeration chamber shall have a minimum detention time of twenty-four (24) hours based on the average design flow.

(3) A minimum of 2,050 cubic feet of air shall be provided per pound of BOD.

(4) The clarifier shall have:

(a) A minimum detention time of four (4) hours based on the average design flow;

(b) A surface overflow rate of less than 1,000 GPD/ft2; and

(5) A positive sludge return shall be provided.

(6)

(a) A source of water shall be provided for cleanup.

(b) If a potable source is provided, backflow preventers shall be installed to protect the water supply.

(7) Fencing with a lockable gate shall be installed around the plant site.

(8) An all-weather access road to the plant shall be provided.

(9) A sludge holding system shall be provided for each large WWTP. The sludge holding system shall:

(a) Provide two (2) cubic feet of volume per 100 gallons of WWTP design treatment capacity;

(b) Provide thirty (30) cubic feet per minute (cfm) of air per 1,000 cubic feet of tank volume;

(d) Transport supernatant to the aeration chamber.

(10) For a large WWTP, motors and blowers shall be installed sufficient to handle the load if the largest unit is taken out of service.

(11) Post aeration, if required by effluent limits, shall be designed to raise the effluent dissolved oxygen from two (2) mg/l to the required effluent concentration.

(a) If a diffused air system is used, a minimum blower capacity of 0.154 cubic feet per minute (cfm) per 1,000 gallons of average daily design capacity shall be provided.

(b) If a step aeration ladder is used, a minimum drop of nineteen (19) feet shall be provided.

(12) A WWTP with a monthly average permit limit for CBOD of twenty (20) mg/l or less shall provide additional treatment.

(13) A WWTP that serves a restaurant or other similar establishment where food is prepared and served and a food grinder is used shall be designed to treat the additional BOD loading.

(14) Effluent discharge piping for a new WWTP, except a regional facility, shall be designed to transport sewage to facilitate a future connection to a regional facility.

(15) A used package extended aeration WWTP may be used if the manufacturer or a professional engineer certifies that the tank is structurally sound and all mechanical equipment has been reconditioned.

Section 11. Disinfection.

(1) All WWTPs shall have a disinfection process that meets the following requirements:

(a) An ultraviolet disinfection system designed to treat the anticipated peak hourly flow with two (2) banks in series;

(b) A chlorination system with a flow or demand proportional feed system.

The chlorine contact tank shall have a minimum detention time of thirty (30) minutes based on the average flow, or fifteen (15) minutes based on the peak hourly flow, whichever requires the larger tank size.
A WWTP shall also have a dechlorination system with a flow or demand proportional feed system if necessary to meet the effluent limits;

(c) A chlorination system with a manually controlled feed system and a flow equalization basin designed to eliminate the diurnal flow variations.

The flow equalization basin shall meet the requirements of Section 17 of this administrative regulation.
The chlorine contact tank shall have a minimum detention time of thirty (30) minutes based on the average design flow or fifteen (15) minutes based on peak hourly flow.
A WWTP shall also have a dechlorination system if necessary to meet the effluent limits;

(d) A peracetic acid system for a WWTP with a capacity that is greater than 10,000 gpd in flow.

If a pilot test is to be conducted, the WWTP shall submit written notice of the intent to begin pilot testing.
Pilot testing shall not exceed twelve (12) months.
For final approval of a peracetic acid system, the WWTP shall submit:

a. A W-1 application;

b. A detailed plan showing:

(i) The treatment train that shall include peracetic acid;

(ii) The basin that will serve as a chamber for feeding peracetic acid; and

(iii) Secondary containment of peracetic acid storage;

c. The type of pump used to deliver peracetic acid;

d. The type of material used in the feed line; and

e. The contact time calculations.

If basin construction is required, construction plans and specifications shall be signed, stamped, and dated by a Professional Engineer; or

(e) Another disinfection process approved based on a demonstration that the process provides equivalent treatment.

(2) Tablet type chlorination equipment shall not be used in an intermediate or large WWTP.

Section 12. Requirements for Flow Measuring Devices. This section shall apply to a new large WWTP.

(1)

(a) Each flow measuring device shall be capable of measuring the anticipated flow, including variations, with an accuracy of ± ten (10) percent.

(b) The flow measuring device shall measure all flow received at the WWTP.

(2)

(a) If the influent and effluent flow are expected to be significantly different, flow measuring devices shall be provided for both the influent and the effluent flow.

(b) Multiple flow measuring devices shall be provided for a WWTP:

That stores and hydrographically controls the release of effluent;
With flow equalization facilities that are designed to store more than the volume required to dampen the diurnal flow variations;
With a lagoon that has a detention time of greater than twenty-four (24) hours;
With the capability to bypass a treatment process; and
With more than one (1) discharge point.

(3) Sharp crested weirs shall be used for measuring effluent flow only and shall have the following characteristics:

(a) The weir shall be installed perpendicular to the axis of flow, and there shall not be leakage at the weir edges or bottom;

(b) The weir plate shall be level and adjustable;

(d) The angles of a V-notch weir shall be cut precisely;

(e) The thickness of the weir crest shall be less than one-tenth (0.1) of an inch;

(f) The distance from the weir crest to the bottom of the approach channel shall be more than one (1) foot or two (2) times the maximum weir head, whichever is greater;

(g) For a weir other than a suppressed, rectangular weir, the distance from the sides of the weir to the sides of the approach channel shall be more than one (1) foot or two (2) times the maximum weir head, whichever is greater;

(h) Air shall circulate freely under, and on both sides of, the nappe;

(i) The measurement of head on the weir shall be made at least four (4) times the maximum weir head upstream from the weir crest;

(j)

The cross-sectional area of the approach channel shall be at least eight (8) times the area of the nappe.
The approach channel shall be straight and uniform upstream from the weir for a distance of fifteen (15) times the maximum weir head;

(k) The minimum acceptable weir head shall be two-tenths (0.2) foot;

(l) The maximum downstream pool level shall be at least two-tenths (0.2) foot below the crest elevation;

(m) The weir length for a rectangular, suppressed, or cipolletti weir shall be at least three (3) times the maximum weir head; and

(n) A reference staff gauge shall be provided.

(4) Parshall flumes may be used to measure influent or effluent flows and shall have the following characteristics:

(a) The approach channel upstream of the flume shall be straight and have a width uniform for the length required by the following:

If the flume throat width is less than one-half (1/2) the width of the approach channel, the straight upstream channel length shall be twenty (20) times the throat width;
If the flume throat width is equal to or larger than one-half (1/2) the width of the approach channel, the straight upstream length shall be greater than ten (10) times the approach channel width; and
If the cross-sectional area of the inlet to the approach channel is smaller than the cross-sectional area of the approach channel, additional straight upstream channel length may be required to dissipate the velocity if necessary to maintain laminar flow;

(b) The throat section walls shall be vertical;

(d) The flow shall be evenly distributed across the channel, shall be free of turbulence or waves, and shall not be located after transition sections;

(e) The longitudinal and lateral axes of the converging crest floor shall be level;

(f) Free flow conditions shall be maintained; and

(g) A reference staff gauge shall be provided for Ha and Hb to determine if submergence occurs.

(5) Other types of flow measuring devices shall be approved if the device reasonably and accurately measures the flow.

Section 13. Reliability Categories.

(1) A WWTP design shall:

(a) Provide sufficient treatment units to allow for cleaning and repair without causing a violation of effluent limitations or a bypass from the sewer system or WWTP; and

(b) Provide storage or treatment capability sufficient to contain or treat the:

Volume of the largest tank if that tank is out of service; and
Flow received during the time needed to drain, complete cleaning, and accomplish an anticipated repair without causing a permit violation or bypass of a treatment process.

(2) The cabinet shall determine the reliability grade of a WWTP based on the water quality use designation of the receiving stream, pursuant to 401 KAR 10:031.

(a) A Grade A WWTP shall have:

Treatment units and alternate power sufficient for the continuous use of all treatment processes and disinfection, with the exception of alternate power for the aeration equipment used in an activated sludge process; and
Full alternate power capacity for a discharge to a stream segment within five (5) miles of a public water supply intake.

(b) A Grade B WWTP shall have:

a. Treatment units sufficient for the continuous use of the preliminary, primary, and secondary treatment processes and disinfection; and

b. If an intermediate or large facility, alternate power sufficient for the continuous use of the preliminary, primary, secondary treatment, and disinfection processes, with the exception of alternate power for the aeration equipment used in an activated sludge process; or

If a small facility, a design that enables the small facility to connect to an emergency generator.

a. Treatment units sufficient for the continuous use of the preliminary treatment, primary treatment, and disinfection processes; and

b. If an intermediate or large facility, alternate power sufficient for the continuous use of the preliminary treatment, primary treatment, and disinfection processes; or

If a small facility, a design that enables the small facility to connect to an emergency generator.

(d) If alternate power is required pursuant to this subsection:

Alternative power shall be provided from the connection to at least two (2) independent power sources or an emergency generator; or
The cabinet may approve alternative measures for an intermediate or small facility if:

a. The applicant can demonstrate that those measures provide protection comparable to alternative power; and

b. The receiving stream is not an OSRW, within five (5) miles of a public water supply intake, or within five (5) miles of a wellhead protection area.

(3) Grade A WWTP requirements shall be met by a WWTP approved to discharge:

(a) To a water body designated as an Outstanding State Resource Water pursuant to 401 KAR 10:031.

(b) Into a sinkhole or disappearing stream; and

(4) A WWTP shall meet the requirements for a Grade B WWTP if it discharges within five (5) miles upstream of the head of an embayment if the lake is at normal elevation.

(5) Except as provided in subsection (6) of this section, a WWTP shall, at minimum, meet the requirements for a Grade C WWTP.

(6) The cabinet shall not assign a grade to a WWTP:

(a) Treating less than or equal to 1,000 gallons per day; or

(b) Serving an individual family residence.

Section 14. Requirements for Trash Traps. A trash trap shall not be used on a WWTP with a design capacity of larger than 100,000 gpd. A trash trap shall have an outlet baffle, be accessible to cleaning equipment, have air-tight access openings for cleaning, allow for cleaning in front of baffles, and have a volume required by this section.

(1) For a small WWTP, the trash trap volume shall be fifteen (15) percent of the average daily design flow; and

(2) For an intermediate or large WWTP with a design capacity of less than or equal to 100,000 gpd, the trash trap volume shall be as indicated in the table established in this subsection for the appropriate WWTP capacity. For capacities not included, the volume shall be interpolated.

Section 15. Requirements for Slow Sand Filters.

(1) Wastewater loading shall not exceed five (5) GPD per square foot of filter surface area.

(2) Filter areas larger than 900 square feet shall have multiple beds.

(3) The discharge piping on the filter bed shall be located so that the maximum lateral travel over the sand is less than twenty (20) feet.

(4) Each discharge point shall serve a maximum of 300 square feet of filter surface.

(5) Each discharge point shall have a splash block with a minimum surface area of nine (9) square feet and a square or circular shape.

(6) Distribution piping shall be designed to drain properly.

(7) An underdrain shall be spaced on ten (10) foot centers or less.

(8) Gravel shall be placed around the underdrain and to a depth of six (6) inches over the top of the underdrain.

(9) The filter bed shall have at least thirty (30) inches of sand with an effective size between three-tenths (0.3) and five-tenths (0.5) millimeter.

(10) The dosing chamber shall have a volume sufficient to provide a depth of two (2) inches over the entire filter bed.

Section 16. Requirements for Rapid Sand or Mixed Media Filters.

(1) Rapid sand or mixed media filter loadings shall not exceed one (1) gallon per minute per square foot of filter surface area.

(2) If flow equalization is provided, the allowable loading may be increased to two (2) gallons per minute per square foot.

(3) A backwash system shall be provided.

Section 17. Requirements for Flow Equalization Basins.

(1) A flow equalization basin shall have:

(a) A variable flow weir box set to deliver flow at a treatable rate;

(b) A minimum of 1.25 cfm of diffused air per 1,000 gallons of flow equalization volume;

(d) Sufficient volume to dampen the diurnal flow variations.

(2) A flow equalization basin with earth embankments shall be constructed with a slope not steeper than 1:3 (one to three) unless a steeper slope is supported by geotechnical and slope stability studies.

(3) For a flow equalization basin constructed in material other than earth, the applicant shall indicate how the basin will be properly sealed.

(4) The flow equalization basin volume calculation and justification shall be provided to the cabinet.

Section 18. Requirements for Wastewater Treatment Lagoons.

(1) BOD loading shall be less than:

(a) Thirty-five (35) pounds per day per acre of lagoon surface for a nonaerated primary lagoon system;

(b) Fifty (50) pounds per day per acre of lagoon surface for a nonaerated polishing lagoon; and

(2)

(a) The lagoon design submittal shall provide details on the aeration system proposed including:

The type, location, and capacity of the aeration units;
The operating depth;
The area of the lagoon at the operating depth;
Permeability and thickness of the lagoon liner;
Anticipated ultimate wastewater flow; and
Influent wastewater characteristics.

(b) A new lagoon system shall be designed to treat a raw wastewater BOD of at least 240 mg/l.

(c) Except as established in subsection (5) of this section, the lagoon design shall be evaluated by the method established in Ten States' Standards and the predicted BOD remaining shall be less than the required effluent concentration.

(3) A lagoon shall be at least 200 feet from any present residence or adjacent property line.

(4) A nonaerated primary lagoon shall have a minimum detention time of ninety (90) days.

(5) The Ten States' Standards requirement for vegetation to be established prior to filling the lagoon shall not apply.

(6) An applicant proposing a lagoon with an embankment slope steeper than one to three (1:3) shall provide geotechnical and slope stability studies to support the design.

(7) The applicant shall indicate how a basin constructed in material other than earth will be properly sealed.

Section 19. Additional Requirements for WWTPs That Serve Schools. In addition to the requirements of Sections 10 through 18 of this administrative regulation, the requirements established in this section shall apply to a WWTP that serves a school.

(1) If a flow equalization basin is provided it shall meet the requirements of Section 17 of this administrative regulation.

(2) The aeration tank shall have at least ten (10) gallons of capacity per day per student for elementary and middle schools, or at least twenty (20) gallons of capacity per day per student for an elementary or middle school, and a high school.

(3) The secondary clarifier shall be sized to provide a maximum surface loading, at the average design flow, of 300 GPD per square foot of clarifier surface area. If a flow equalization basin is not provided, the secondary clarifier shall be sized to provide a maximum surface loading of 100 GPD per square foot at average daily design flow.

Section 20. Additional Requirements for WWTPs That Serve Multifamily Residential Developments. In addition to the requirements of Sections 10 through 18 of this administrative regulation, a WWTP that serves a multifamily residential development, including subdivisions, condominiums, apartments, and mobile home parks shall comply with at least one (1) of the requirements established in subsections

(1) through (3) of this section. (1) Blowers and motors shall be installed sufficient to handle the organic load if the largest unit is not available for service.

(2) An alternate source of power.

(3) Additional treatment units or processes.

Section 21. Additional Requirements for WWTPs That Propose Effluent Disposal by Spray Irrigation. In addition to the requirements of Sections 10 through 18 of this administrative regulation, the requirements in this section shall apply to a WWTP that proposes effluent disposal by spray irrigation.

(1) One (1) acre of spray field shall be provided for each 1,000 GPD of treated wastewater. An applicant proposing higher application rates shall provide detailed design based on site-specified information.

(2) The following plans and specifications shall be signed, sealed, and dated by a professional engineer licensed in Kentucky:

(a) Plans for a WWTP with a design capacity of more than 1,000 gallons per day that propose an application rate greater than 1,000 gallons per acre per day; and

(b) Plans that propose a final slope equal to or greater than ten (10) percent.

(3) A spray field that has a slope greater than twenty-five (25) percent on any portion of the spray field shall not be permitted.

(4) The soil of a spray irrigation field shall have an average saturated hydraulic conductivity of not less than six-tenths (0.6) inch per hour, as established by:

(a) The saturated hydraulic conductivity value provided by an NRCS soil survey; or

(b) A saturated soil test of the spray field.

(5) The spray field shall have less than a six (6) percent slope unless:

(a) The average saturated hydraulic conductivity for the spray field is more than six (6) inches per hour; and

(b) The average soil depth of the spray field is at least twenty-four (24) inches.

(6) The spray irrigation field shall have sufficient vegetative growth to promote absorption, evaporation, and transpiration.

(a) Vegetative growth shall be perennial.

(b) Vegetative growth shall cover not less than ninety-five (95) percent of the spray field area.

(7) A twenty (20) foot buffer zone shall be provided between the outer boundary of the spray field and the property boundary or the applicant shall provide screening to inhibit the transport of aerosols and windborne spray across property boundaries.

(8) A spray irrigation field for an individual residence shall have a temporal or physical barrier that inhibits human contact with the airborne spray.

(9) Effluent from the spray irrigation field shall be contained on the owner's property.

(10) Setbacks.

(a) A construction permit shall not be issued if a portion of the spray field is closer than 200 feet from an existing dwelling.

(b) A portion of a spray field shall not be closer than the minimum setback requirements for a leach bed as established in 902 KAR 10:085, Section 8.

(c) If a setback provision of 902 KAR 10:085, Section 8, is less stringent than the setback requirements of this subsection, the more stringent setback shall apply.

(11) Effluent derived from a wastewater that contained human waste shall not be applied to an area in active production of food for human consumption.

(12) A spray irrigation field for an individual residence shall also have:

(a) At least three (3) sprinkler heads;

(b) A spray area larger than 0.19 acre; and

Section 22. Requirements for WWTPs that Serve an Individual Residence.

(1) A wastewater plant intended to serve an individual residence and eligible for a general KPDES permit pursuant to 401 KAR 5:055 shall have, at minimum, the following treatment processes:

(a) Extended aeration;

(b) Filtration; and

(2) The WWTP shall be capable of meeting the final effluent limitations of the general permit.

(3) The WWTP shall be capable of meeting secondary treatment requirements of 401 KAR 5:045 prior to filtration.

(4) The cabinet may allow an alternative or additional treatment process to extended aeration if an alternative process is necessary to meet the requirements of a general permit issued pursuant to 401 KAR 5:055.

(5) A minimum lot size of one (1) acre shall be provided for WWTPs. The cabinet may grant a variance to the one (1) acre limitation established in this subsection if the WWTP owner demonstrates that the WWTP shall not adversely affect water quality.

(6) A WWTP serving an individual residence and proposing effluent disposal by spray irrigation shall also comply with Section 21 of this administrative regulation.

(7) Setback restrictions for a treatment system serving an individual residence shall not be less than the setback restrictions established by 902 KAR 10:085, Section 8, Table 7.

(8) An applicant may submit to the cabinet only one (1) of the two (2) copies of the plans and specifications required pursuant to Section 6 of this administrative regulation.

Section 23. Additional Requirements for extended aeration WWTPs that Serve Car Washes or Laundries. An extended aeration WWTP that serves a commercial or fleet car wash, commercial laundry, or laundry serving commercial or institutional establishment, shall have an average daily flow from other biochemically degradable sources that is at least four (4) times greater than the anticipated flow of the car wash, commercial laundry, or laundry serving a commercial or institutional establishment.

Section 24. The Construction Permit.

(1)

(a) A permit to construct a facility shall be effective upon issuance unless otherwise conditioned.

(b) If construction is not commenced within the twenty-four (24) months following a permit's issuance, a new permit shall be obtained before construction may begin.

(2)

(a) The permittee shall submit the certification from an engineer that the facility was constructed in conformity with the plans and specifications approved by the cabinet in accordance with this administrative regulation within thirty (30) days from the completion of construction.

(b) The permittee shall certify the completion of construction for a project not designed by an engineer.

(c) If construction has not been completed within five (5) years of the permit issuance date, the permit shall expire and a new permit shall be required.

(3) Permit conditions.

(a) Permits may contain special conditions that are necessary to comply with KRS Chapter 224 and 401 KAR Chapters 4 through 11. The conditions shall be in writing and treated as a part of the permit.

(b) The following conditions shall apply to all construction permits:

There shall not be deviations from the plans and specifications submitted with the application or the conditions specified in this subsection, unless authorized in writing by the cabinet; and
The permittee shall ensure that the effluent is of satisfactory quality to prevent violations of the standards in 401 KAR Chapter 5 and 401 KAR Chapter 10.

(c) The following conditions shall also apply to a construction permit issued to a WWTP that discharges to waters of the Commonwealth:

If a sewer system served by a regional facility becomes available, the WWTP shall be abandoned and the influent flow shall be diverted to the regional facility; and
Issuance of this permit shall not relieve the permittee from the responsibility of obtaining other permits or licenses required by this cabinet and other state, federal, or local agencies.

(4) The construction permit for agricultural waste handling system may be used as an interim operational permit until the operational permit is issued or denied.

(5) The issuance of a permit by the cabinet shall not convey any property rights of any kind or any exclusive privilege.

Section 25. Kentucky No Discharge Operational Permits (KNDOPs). A Kentucky No Discharge Operational Permit (KNDOP) shall only be issued to a facility that does not discharge and does not intend to discharge to waters of the Commonwealth, including agricultural waste handling systems and facilities that dispose of effluent by spray irrigation.

(1) Nutrient Management Plans. An animal feeding operation shall have a nutrient management plan that:

(a) Contains the information required by subsection (2) of this section; and

(b) Is consistent with:

The Agriculture Water Quality Act, KRS 224.71-100 through 224.71-145; or
NRCS Conservation Practice Standard Nutrient Management Code 590 for Kentucky, NRCS, Kentucky (January 2013).

(2) The nutrient management plan shall:

(a) Ensure adequate storage of manure, litter, and process wastewater, including procedures to ensure proper operation and maintenance of the storage facilities;

(b) Ensure proper management of animal mortalities established in KRS 257.160 to ensure that they shall not be disposed of in liquid manure, stormwater, or process wastewater storage or treatment system;

(d) Prevent direct contact of confined animals with waters of the Commonwealth;

(e) Ensure that chemicals and other contaminants handled on-site shall not be disposed of in manure, litter, process wastewater, or stormwater storage or treatment system, unless specifically designed to treat chemicals and other contaminants;

(f) Identify site-specific conservation practices to be implemented to control runoff of pollutants to waters of the Commonwealth;

(g) Identify protocols for testing of manure, litter, process wastewater, and soil;

(h) Establish protocols to land apply manure, litter, or process wastewater in accordance with site-specific nutrient management practices that ensure agricultural utilization of the nutrients in the manure, litter, or process wastewater; and

(i) Large animal feeding operations shall identify records that shall be maintained to document the implementation and management of the minimum elements described in paragraphs (a) through (h) of this subsection.

(3) Additional Measures for Large Animal Feeding Operations.

(a) Visual inspections. There shall be routine visual inspections of the production area. The following shall be visually inspected:

Weekly inspections of all stormwater diversion devices, runoff diversion structures, and devices channeling contaminated stormwater to the wastewater and manure storage and containment structure;
Daily inspections of drinking water or cooling water lines; and
Weekly inspections of the manure, litter, and process wastewater impoundments. The inspection shall note the level in liquid impoundments as indicated by the depth marker in paragraph (b) of this subsection.

(b) Depth marker. An open surface liquid impoundment shall have a depth marker that clearly indicates the storage capacity.

(d) Mortality handling. A mortality shall not be disposed of in liquid manure or process wastewater system and shall be handled in a way that prevents the discharge of pollutants to surface water.

(4) Record Keeping Requirements for Large Animal Feeding Operation Production Areas. Each AFO shall maintain on-site, for a period of five (5) years from the date they are created, a complete copy of the information required by subsection (2)(i) of this section, and the records specified in paragraphs (a) through (f) of this subsection. The AFO shall make these records available to the cabinet for review upon request.

(a) Records documenting the inspections required pursuant to subsection (3)(a) of this section;

(b) Weekly records of the depth of the manure and process wastewater in the liquid impoundment as indicated by the depth marker pursuant to subsection (3)(b) of this section;

(c) Records documenting an action taken to correct deficiencies required pursuant to subsection (3)(c) of this section. Deficiencies not corrected within thirty (30) days shall be accompanied by an explanation of the factors preventing immediate correction;

(d) Records of mortalities management and practices used by the AFO to meet the requirements of subsection (3)(d) of this section;

(e) Records documenting the current design of manure or litter storage structures, including volume for solids accumulation, design treatment volume, total design volume, and approximate number of days of storage capacity; and

(f) Records of the date, time, and estimated volume of any overflow.

(5) Recordkeeping requirement for the land application areas.

(a) Each AFO shall maintain on-site a copy of its site-specific nutrient management plan.

(b) Each AFO shall maintain on-site for a period of five (5) years from the date it was created a complete copy of the information required by the permit application Short Form B, the information required by subsection (2)(i) of this section, and the records specified in paragraphs (a) through (j) of this subsection.

Expected crop yields;
The date manure, litter, or process waste water is applied to each field;
Weather conditions at time of application and for twenty-four (24) hours prior to and following application;
Test methods used to sample and analyze manure, litter, process waste water, and soil;
Results from manure, litter, process waste water, and soil sampling;
Explanation of the basis for determining manure application rates;
Calculations showing the total nitrogen and phosphorus to be applied to each field, including sources other than manure, litter, or process wastewater;
Total amount of nitrogen and phosphorus applied to each field, including documentation of calculations for the total amount applied;
The method used to apply the manure, litter, or process wastewater; and
Each date of manure application equipment inspection.

(6) If an animal feeding operation does not discharge, does not intend to discharge, and obtains a Kentucky No-Discharge Operational Permit pursuant to this section, the cabinet shall not consider the animal feeding operation a CAFO.

(7) KNDOP permit conditions.

(a) A permit may contain special conditions that are necessary to comply with KRS Chapter 224 and 401 KAR Chapters 4 through 11.

(b) The conditions shall be in writing and shall be treated as part of the permit.

(d) The permit authorizes operation only of the WWTP described in the permit in the manner and under the conditions established in the permit application and supporting documents as approved by the cabinet in the permit.

(e) The permit shall not be construed as authorizing:

An operation that is otherwise in contravention of a statute, administrative regulation, ordinance, or order of a governmental unit.
The creation or maintenance of a nuisance.

(f) The permit shall be subject to revocation or modification by the cabinet as established in KRS 224.10-100.

(g) Commencement of a routine point source discharge shall result in a permit revocation.

(h) A permit shall be issued in accordance with the provisions of KRS Chapter 224 and 401 KAR Chapters 4 through 11. Issuance of the permit shall not relieve the permittee from the responsibility of obtaining any other permits or licenses required by the cabinet and other state, federal, and local agencies.

(i) If applicable, the waste materials removed from the settling basin shall be disposed of according to the requirements of the Division of Waste Management in 401 KAR Chapters 30 through 49.

(j) Land application that results in runoff to a stream shall be prohibited.

Section 26. Kentucky Intersystem Operational Permits (KISOPs). A KISOP shall be issued to publicly or privately owned sewer systems that discharge to a WWTP or a sewer system that is owned by another person.

(1) A KISOP shall not apply to sewer systems with less than 5,000 linear feet of sewer line.

(2) A KISOP shall not apply to a sewer system that discharges to a POTW if the system is subject to a local permit pursuant to the pretreatment program established in 401 KAR 5:055.

(3) A KISOP shall be issued to the applicant and the permittee shall remain the responsible party until a Transfer of Permit Request form is submitted and the transfer of the permit is acknowledged by the cabinet.

(4) Permits may contain special conditions that are necessary to comply with KRS Chapter 224 and 401 KAR Chapters 4 through 11. The conditions shall be in writing and shall be treated as a part of the permit.

Section 27. Operational Permits. An operational permit required in Sections 25 and 26 of this administrative regulation shall be valid for five (5) years from the date of issuance and shall be renewed to maintain continuous operation.

(1) The operational permit shall specify the type of monitoring or analysis required for a facility, and the frequency that the monitoring or analysis shall be performed and reported to the cabinet.

(2) The facility, including backup or auxiliary components, shall be operated and maintained to ensure compliance with permit requirements and this administrative regulation.

Section 28. Transfer of Operating Permits.

(1) An operating permit shall be issued to the applicant, and the permittee shall remain the responsible party for compliance with the permit until:

(a) A Transfer of Permit Request form is submitted by the new owner and the transfer of the permit is acknowledged by the cabinet; or

(b) The current permittee has submitted a Transfer of Permit Request form and the transfer of the permit has been acknowledged by the cabinet.

(2) A Transfer of Permit Request form submitted by the current permittee without the signature of the new permittee shall include a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility, coverage, and liability between them.

(3) A transfer of permit request shall serve as an application for a minor modification of the operating permit.

(4) Transfer of operating permits issued pursuant to Sections 25 and 26 of this administrative regulation shall be as established in C.F.R. 122.61.

Section 29. Alternative Requirements.

(1) The cabinet may approve alternative requirements to the provisions of Sections 7 to 23 of this administrative regulation if the cabinet determines that the alternative measure provides sufficient treatment, or transport.

(2) The applicant shall demonstrate that an alternative requested by the applicant provides sufficient treatment or transport.

Section 30. Material Incorporated by Reference.

(1) The following material is incorporated by reference:

(a) "Recommended Standards for Wastewater Facilities, 2014 Edition, A Report of the Wastewater Committee of the Great Lakes-Upper Mississippi River Board of State and Provincial Public Health and Environmental Managers, 2014". This document is also known as the "Ten States' Standards";

(b) "Construction Permit Application for Wastewater Treatment Plant, DEP No. 7071-W1 (3/2018)";

(d) ;

(e) "Transfer of Permit Request", DEP 7032-CO (3/2018)";

(f) "No Discharge Certification, DEP 7032-NDC (3/2018)";

(g) "Kentucky No Discharge Operational Permit for Closed Loop and Spray Irrigation Systems Application, DEP 7033-ND (3/2018)";

(h) "Kentucky No Discharge Operational Permit Application for Agricultural Wastes Handling Systems, Short Form B, DEP 7033-B-ND (3/2018)";

(i) "Kentucky Intersystem Operational Permit Application, DEP 7103 (3/2018)"; and

(j) "NRCS Conservation Practice Standard Nutrient Management Code 590 for Kentucky, NRCS, Kentucky, (January 2013)".

(k) "Combined Sewer Overflow (CSO) Control Policy", U.S. EPA, 59 Federal Register 18688, April 1994.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Water, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. This material is also available on the division's Web site at http://water.ky.gov.

(3)

(a) "Recommended Standards for Wastewater Facilities, 2014 Edition, A Report of the Wastewater Committee of the Great Lakes-Upper Mississippi River Board of State and Provincial Public Health and Environmental Managers, 2014" may also be obtained at http://10statesstandards.com/wastewaterstandards.pdf.

(b) "Combined Sewer Overflow (CSO) Control Policy, U.S. EPA, 59 Federal Register 18688, April 1994" may also be obtained at https://www.epa.gov/sites/production/files/2015-10/documents/owm0111.pdf.

(c) "NRCS Conservation Practice Standard Nutrient Management Code 590 for Kentucky, NRCS, Kentucky, (January 2013)" may also be obtained at https://efotg.sc.egov.usda.gov/references/Delete/2013-11-9/Nutrient_Management_Std_(590).pdf.

History

RELATES TO: KRS 224.10-100, 224.16-050, 224.16-060, 224.70-100, 224.70-110, 40 C.F.R. 144.26, 26 U.S.C. 501(c)(3), 42 U.S.C. 300f-300j
STATUTORY AUTHORITY: KRS 224.10-100(5), 224.10-110, 224.16-050, 224.16-060, 224.70-100, 224.70-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the cabinet to develop and conduct a comprehensive program for the management of water resources, to issue permits for the construction, modification, or extension of water treatment systems, and to provide for the prevention, abatement, and control of water pollution. This administrative regulation establishes administrative procedures for the issuance of permits for the construction, modification, and operation of facilities authorized by KRS Chapter 224 and establishes conditions for construction of facilities under 401 KAR Chapter 5. This administrative regulation also establishes a schedule of fees to recover the costs of issuance for certain classes of permits.
History: 401 KAR 005:005. 1 Ky.R. 760; 1381; eff. 7-2-1975; 12 Ky.R. 504; eff. 12-10-1985; 15 Ky.R. 282; 1005; 1257; eff. 10-26-1988; 16 Ky.R. 599; 1191; eff. 1-9-1990; 23 Ky.R. 1633; 2766; eff. 5-14-1997; 30 Ky.R. 1333; 1781; 2135; eff. 4-12-2004; TAm eff. 8-9-2007; 35 Ky.R. 2507; 36 Ky.R. 351; eff. 9-25-2009; TAm eff. 7-8-2016; 44 Ky.R. 2585; 45 Ky.R. 675, 689; eff. 11-1-2018; Crt to Am, filing deadline 4-28-2027.

401 KAR 5:006 Wastewater planning requirements for regional planning agencies {#sec-401-kar-5-006 omnilex-key=us-ky-regs-official--title-401--401 KAR 5:006}

Section 1. Applicability.

(1) A governmental entity, such as a city, county, or other public body created by KRS Chapter 67, 67A, 74, 76, 96, 108, or 220, may apply for designation as a regional planning agency. An applicant for designation as a regional planning agency shall submit a regional facility plan to the cabinet.

(2) The cabinet shall designate a regional planning agency in accordance with 33 U.S.C. 1288(a)(2) and (3).

(3) The cabinet shall de-designate a regional planning agency if the regional planning agency:

(a) Requests de-designation;

(b) Fails to meet its planning obligations as specified in a grant agreement, contract, or memorandum of understanding; or

(c) No longer has the resources or the commitment to continue water quality planning activities within the designated boundary.

(4) If a regional planning agency is de-designated, the cabinet shall assume responsibility for continued water quality planning and oversight of implementation of planning activities within the regional planning area.

(5) The cabinet shall not designate an entity as a regional planning agency if that entity does not have authority to meet the requirements established in 33 U.S.C. 1288(c)(2)(A) through (I).

Section 2. Requirement to Submit a Regional Facility Plan.

(1) An applicant for designation as a new regional planning agency shall submit a regional facility plan to the cabinet.

(2) An existing regional planning agency shall submit a regional facility plan if:

(a) A new wastewater treatment facility is proposed for construction within the planning area;

(b) An existing regional planning agency proposes to expand the average daily design capacity of an existing wastewater treatment facility by more than thirty (30) percent; or

(c) The equivalent population served by an existing wastewater collection system or a system with a Kentucky Inter-System Operating Permit is proposed for expansion by more than thirty (30) percent of the population served in the previously approved regional facility plan.

(3) A regional planning agency shall request a pre-planning meeting with the cabinet before submitting a regional facility plan.

(4) One (1) paper copy and one (1) electronic copy of the regional facility plan shall be submitted to the cabinet and shall be certified in a manner that meets the requirements established in 201 KAR 18:104.

Section 3. Contents of a Regional Facility Plan.

(1) A regional facility plan shall include adequate information to allow for an environmental assessment of the projects proposed in the regional facility plan that are ready to begin construction within twenty-four (24) months of the cabinet's approval of the plan and to assure that a cost-effective and environmentally sound means of achieving the established water quality goals can be implemented.

(2) A regional facility plan shall include:

(a) An executive summary of the findings presented in subsequent sections;

(b) A statement of the purpose of and need for the regional facility plan, including documentation of existing water quality or public health problems related to wastewater in the planning area;

Physical characteristics of the planning area;
Socioeconomic characteristics of the planning area;
Existing environment in the planning area;
Existing wastewater collection and treatment facilities in the planning area; and
Discharge permit conditions and compliance with those conditions;

(d) A forecast of flows and waste loads for the planning area;

(e) A detailed evaluation of each alternative, including:

A twenty (20) year present worth cost analysis for each alternative, with sufficient detail to determine the most cost-effective alternatives;
All wastewater management alternatives considered, including no action, and the basis for the engineering judgment for selection of the alternatives chosen for detailed evaluation;
Sufficient detail to allow for a thorough cost analysis;
Nonmonetary effectiveness criteria shall include implementability, environmental impact, constructability, public support, decentralization, and regionalization;
Intended sources of funding and estimated user fees; and
How alternatives reflect a comprehensive regional plan for the planning area and minimize the number of point source discharges;

(f) Cross-cutter correspondence and mitigation, which shall include verification from the regional planning agency of its commitment to all required mitigative action;

(g) An evaluation of the recommended regional facility plan; and

(h) Documentation of public participation.

A certified copy of the advertisement for the public hearing required by Section 5 of this administrative regulation, an attendance log or sign-in sheet, a copy of the minutes of the public hearing, and written comments and responses shall be submitted as part of the regional facility plan.
If more than one (1) public hearing is held or if there are public meetings or public notices about the project, a copy of all documentation of these events shall be submitted as part of the regional facility plan.

(3) The items required in subsection 2(c) through (f) of this section shall be prepared by, or under the direct supervision of, a professional engineer licensed in Kentucky.

Section 4. Requirement to Submit an Asset Inventory Report.

(1)

(a) An asset inventory report shall be submitted to the cabinet if:

It has been ten (10) years since the cabinet approved the last regional facility plan or asset inventory report; and
Section 2(2) of this administrative regulation does not require the regional planning agency to submit a regional facility plan.

(b)

A major facility shall submit the regional facility plan using the Water Resources Inventory System (WRIS).
A minor facility may submit the regional facility plan using WRIS or the Asset Inventory Report form.

(2) The regional planning agency shall submit:

(a) Wastewater facility data;

(b) Revenue and expenses;

(d) Project prioritization;

(e) Funding plan;

(f) Copies of supporting documentation; and

(g) Certification statement from a designated official.

(3) The cabinet shall issue to the regional planning agency an assessment report that provides recommendations related to facility planning, operation, and management that ensure continuing compliance and protection of surface water and groundwater.

(4) The cabinet shall provide public notice of its assessment of the Asset Inventory Report on its Web site for thirty (30) days.

(5) The public shall have an opportunity to comment on the cabinet's assessment of the asset inventory report and the period for comment shall remain open for thirty (30) days from the date of the first publication of the report.

Section 5. Public Notice, Public Comment, and Public Hearing Requirements.

(1) Prior to final agency action on the regional facility plan, the regional planning agency shall publish notice of its draft plan and shall hold a public hearing on the draft plan. Public notice of the draft plan and the public hearing shall be provided pursuant to KRS Chapter 424.

(2) A public notice issued pursuant to this administrative regulation shall contain:

(a) The name and address of the regional planning agency that is proposing the plan;

(b) A brief description of the contents of the draft plan and the area to be served;

(c) The name, address, and telephone number of persons from whom interested persons may obtain further information and a copy of the draft regional facility plan;

(d) A brief description of the public's right to comment on the draft regional facility plan and the procedures for commenting;

(e) The date of previous public notices relating to the draft regional facility plan;

(f) The date, time, and place of the public hearing on the draft plan; and g) A brief description of the nature and purpose of the hearing.

(3) The planning agency shall provide a copy of the public notice and the draft plan to the cabinet for publication on its Web site at least thirty (30) days prior to the public hearing.

(4) At the required public hearing, the scope of the project, cost of the project, alternatives considered, and estimated user charges and hook-up fees shall be discussed.

(5) The public shall have an opportunity to comment on the draft plan and the period for comment shall remain open for thirty (30) days from the date of the first publication of the notice of the public hearing or until the termination of the hearing, whichever is later. The regional planning agency may extend the public comment period, on request, if it believes additional public input is necessary.

(6) A person may submit written or oral comments and data to the regional planning agency concerning the draft regional facility plan. In the interest of time and efficiency, limits may be set up on the time allowed for oral statements and the submission of statements in writing may be required.

(7) All persons who believe any condition of the draft plan is inappropriate, inaccurate, incomplete, or otherwise not in the best interest of the public and the environment, shall raise all reasonably ascertainable issues and submit all reasonably available arguments and factual background supporting their position, including all supporting materials, by the close of the public comment period.

Section 6. Regional Facility Plan Review.

(1) The cabinet shall prepare an environmental assessment report summarizing the regional facility plan.

(a) The cabinet shall submit the environmental assessment report to the State Clearinghouse for review and comments to identify potentially adverse impacts resulting from the proposed projects.

(b) The cabinet shall provide public notice of the environmental assessment report on its Web site for thirty (30) days.

(c) The public shall have an opportunity to comment on the environmental assessment report, and the period of comment shall remain open for thirty (30) days from the date of the first publication of the report.

(d) The cabinet may identify measures in the environmental assessment report to avoid, minimize, or reduce potentially adverse environmental impacts.

(2) The cabinet shall issue a determination to approve or deny a regional facility plan within 120 calendar days of receipt of a complete regional facility plan.

(3) If the regional facility plan is submitted consistent with the requirements of this administrative regulation and addresses water quality or public health problems related to wastewater, the cabinet shall approve the regional facility plan.

(4) KPDES and facility construction permit decisions shall be made in accordance with approved regional facility plans, as established in 40 C.F.R. 130.12(a) and (b).

Section 7. Incorporation by Reference.

(1) The "Asset Inventory Report Form", DEP No. DOW0501 February 2011 is incorporated by reference.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at Division of Water, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. This material may also be obtained through the Division of Water's Web site at http://water.ky.gov.

History

RELATES TO: KRS Chapters 67, 67A, 74, 76, 96, 108, 220, 224.10-100, 224.70-100, 224.70-110, 424, 33 U.S.C. 1251-1387
STATUTORY AUTHORITY: KRS 224.10-100, 224.70-100, 224.70-110, 40 C.F.R. 130, 33 U.S.C. 1288, 1313
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 and 224.70-100 require the Energy and Environment Cabinet to develop a comprehensive plan for the management of water resources and to provide for the prevention, abatement, and control of all water pollution. 33 U.S.C. 1313(e) requires each state to establish and maintain a continuing planning process to provide for the control of water pollution. 33 U.S.C. 1288 requires the governor of the state or local officials to designate a boundary for areas within the state and a single representative organization within each area to develop a wastewater treatment management plan applicable to all wastewater generated within an area. 40 C.F.R. 130.6 requires the state and areawide agencies to update the plans as needed to reflect changing water quality conditions, results of implementation actions, and new requirements, or to remove conditions in prior conditional or partial plan approvals. This administrative regulation establishes Kentucky's regional facility planning process for publicly-owned wastewater treatment works that are, or result in, point sources of water pollution in designated planning areas.
History: 401 KAR 005:006. 23 Ky.R. 1814; 2780; eff. 5-14-1997; TAm eff. 8-9-2007; 37 Ky.R. 1757; 2434; eff. 6-3-2011; TAm eff. 7-8-2016; 44 Ky.R. 2598; 45 Ky.R. 1000; eff. 11-1-2018; Crt to Am, filing deadline 4-28-2027.

401 KAR 5:010 Operation of wastewater systems by certified operators {#sec-401-kar-5-010 omnilex-key=us-ky-regs-official--title-401--401 KAR 5:010}

Section 1. Certified Operators for Wastewater Treatment Plants. A wastewater treatment plant that accepts wastewater containing domestic sewage shall be under the primary responsibility of a certified operator as established in this section.

(1) A treatment plant with a design capacity of less than or equal to 50,000 gallons per day shall be under the primary responsibility of a certified operator holding an active Class I, II, III, or IV treatment certificate.

(2) A treatment plant with a design capacity of more than 50,000 gallons per day, but less than or equal to two (2) million gallons per day shall be under the primary responsibility of a certified operator holding an active Class II, III, or IV treatment certificate.

(3) A treatment plant with a design capacity of more than two (2) million gallons per day, but less than or equal to seven and one-half (7 1/2) million gallons per day shall be under the primary responsibility of a certified operator holding an active Class III or IV treatment certificate.

(4) A treatment plant with a design capacity in excess of seven and one-half (7 1/2) million gallons per day shall be under the primary responsibility of a certified operator holding an active Class IV treatment certificate.

(5) A wastewater treatment plant at a school shall be under the primary responsibility of a certified operator holding an active limited certificate or a Class I, II, III, or IV treatment certificate.

Section 2. Certified Operators for Collection Systems. Each collection system transporting wastewater containing domestic sewage shall be under the primary responsibility of a certified operator as established in this section.

(1) Collection systems with greater than 5,000 linear feet of sewer line that transport wastewater to a treatment plant with a design capacity of less than or equal to 50,000 gallons per day shall be under the primary responsibility of a certified operator holding an active Class I, II, III, or IV collection certificate.

(2) Collection systems that transport wastewater to a treatment plant with a design capacity of more than 50,000 gallons per day, but less than or equal to two (2) million gallons per day shall be under the primary responsibility of a certified operator holding an active Class II, III, or IV collection certificate.

(3) Collection systems that transport wastewater to a treatment plant with a design capacity of more than two (2) million gallons per day, but less than or equal to seven and one-half (7 1/2) million gallons per day shall be under the primary responsibility of a certified operator holding an active Class III or IV collection certificate.

(4) Collection systems that transport wastewater to a treatment plant with a design capacity in excess of seven and one-half (7 1/2) million gallons per day shall be under the primary responsibility of a certified operator holding an active IV collection certificate.

(5) A wastewater collection system at a school shall be under the primary responsibility of an operator holding an active:

(a) Class I, II, III, or IV collection certificate;

(b) Class I, II, III, or IV treatment certificate; or

(6) Collection systems with not more than 5,000 linear feet of sewer line that transport wastewater to a treatment plant with a design capacity of less than or equal to 50,000 gallons per day, shall be operated under the primary responsibility of a certified operator with an active:

(a) Class I, II, III, or IV collection certificate; or

(b) Class I, II, III, or IV treatment certificate.

(7) Collection systems that transport wastewater containing domestic sewage to a treatment plant owned by another person shall use population-served for determination of the appropriate collection system certificate.

(a) Collection systems with greater than 5,000 linear feet of sewer line and with a population served of 1,500 individuals or less shall be operated by a certified operator holding an active Class I, II, III, or IV collection certificate.

(b) Collection systems with a population served of 1,501 to 15,000 individuals shall be operated by a certified operator holding an active Class II, III, or IV collection certificate.

(c) Collection systems with a population served of 15,001 to 50,000 individuals shall be operated by a certified operator holding an active Class III or IV collection certificate.

(d) Collection systems with a population served of 50,001 individuals or greater shall be operated by a certified operator holding an active Class IV collection certificate.

(e) Collection systems with not more than 5,000 linear feet of sewer line that serve a population of not more than 1,500, shall be operated under the primary responsibility of a certified operator with an active:

Class I, II, III, or IV collection certificate; or
Class I, II, III, or IV treatment certificate.

Section 3. Certified Operator Availability.

(1) The facility shall ensure that a certified operator with primary responsibility shall be able to be contacted by phone within thirty (30) minutes.

(2) The facility shall ensure that a certified operator with primary responsibility shall be capable of being onsite:

(a) Within two (2) hours if the certified operator with primary responsibility is required to have a Class I or Limited certificate; or

(b) Within one (1) hour if the certified operator with primary responsibility is required to have a Class II, III, or IV certificate.

Section 4. Operators In Training.

(1) A Class I Operator In Training shall not have primary responsibility of a wastewater treatment plant or wastewater collection system.

(2) A certified operator with an Operator In Training designation shall work under the direct supervision of a certified operator who:

(a) Works at the same facility; and

(b) Holds an active certification level that is equal to or greater than the certification level required to serve in primary responsibility of the facility.

(3) An Operator In Training may have primary responsibility for a wastewater collection system or wastewater treatment plant for which the operator holds an active Class II through Class IV certification as established in 401 KAR 11:030.

Section 5. A wastewater collection system or treatment plant may propose an alternate staffing plan to the staffing requirement established in this section.

(1) The proposal shall be submitted to the cabinet and shall thoroughly explain the alternate proposal.

(2) The proposal shall demonstrate:

(a) A necessity for the wastewater collection system or treatment plant to vary from the requirements in this paragraph; and

(b) An equal level of protection of human health and the environment.

(3) The cabinet shall not approve an alternate proposal that does not propose that a duly certified operator in direct responsible charge operate a wastewater collection system or treatment plant, in accordance with KRS 224.73-110.

Section 6. Certificate Display. If a system office is available at the wastewater treatment plant or within the sewer service area, the operator's certificate shall be prominently displayed on the wall.

History

RELATES TO: KRS 224.10-100, 224.10-110, 224.70-100, 224.70-110
STATUTORY AUTHORITY: KRS 224.10-100, 224.10-110, 224.73-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the Cabinet to develop and conduct a comprehensive program for the management of water resources and to provide for the prevention, abatement, and control of water pollution. KRS 224.73-110 requires that a person shall not have primary responsibility for the operation of a sewage system or a portion of a system, whether publicly or privately owned, unless the operator has passed an examination prescribed by the cabinet. This administrative regulation establishes standards for the staffing and classification of wastewater treatment plants and collection systems that accept domestic sewage.
History: 6 Ky.R. 329; 560; eff. 5-7-1980; 11 Ky.R. 1128; eff. 4-9-1985; 14 Ky.R. 1289; eff. 2-8-1988; 15 Ky.R. 285; 1007; eff. 10-26-1988; 16 Ky.R. 603; 1193; eff. 1-9-1990; 19 Ky.R. 415; 717; eff. 8-27-1992; 35 Ky.R. 354; 1205; eff. 3-6-2009; Crt eff. 5-11-2018; TAm eff. 5-15-2018; 45 Ky.R. 3514; eff. 11-1-2019.

401 KAR 5:015 Releases to be reported to the division {#sec-401-kar-5-015 omnilex-key=us-ky-regs-official--title-401--401 KAR 5:015}

Section 1. Any person having knowledge in advance of the necessity to release a "pollutant or contaminant", as defined by KRS 224.1-400, which could result in or contribute to pollution of the waters of the Commonwealth, shall notify the Division of Water before the release is commenced. Notification shall be given as far in advance as possible.

Section 2. Emergency Reports. If by reason of emergency or accident a release of "pollutants or contaminants", as defined by KRS 224.1-400, is threatened or occurs, which could result in or contribute to the pollution of the waters of the Commonwealth and that could present an imminent or substantial danger to public health or welfare, the person possessing or controlling the pollutant or contaminant shall, as soon as the person has knowledge of any release of a pollutant or contaminant from a site to the environment, immediately notify the division by calling the cabinet's twenty-four (24) hour environmental emergency telephone number at (800) 928-2380.

Section 3.

(1) Any person notifying the division pursuant to Section 1 or 2 of this administrative regulation shall report:

(a) The point of release;

(b) The nature of the material released;

(d) The date, time, and duration of the release; and

(e) An assessment of probable environmental impact.

(2) If notification is not initially made in writing, it shall be confirmed by written notification within ten (10) days if requested by the division director or the division director's appointed representative. For each release or threatened release, the report shall identify the:

(a) Precise location;

(b) Name, address, and phone number of the person or persons who:

Possesses or controls the contaminant or pollutant;
Has actual knowledge of the facts; and
Can be contacted for additional information;

(d) Concentration and quantity of the pollutant or contaminant or hazardous substance;

(e) Circumstances and cause;

(f) Efforts taken to mitigate or control;

(g) To the extent known, potential harmful effects;

(h) Transportation characteristics of the medium or matrix into which the contaminant or pollutant was released or threatened to be released;

(i) Present or proposed remedial action by the person at the site; and

(j) Additional information that could facilitate remediation of the site.

Section 4. A person failing to report as required by Sections 1 through 3 of this administrative regulation shall be subject to the penalties provided by KRS 224.99-010.

History

RELATES TO: KRS Chapter 224
STATUTORY AUTHORITY: KRS 224.1-400, 224.10-100
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.1-400 requires any person who possesses or controls pollutants or contaminants to immediately report certain releases of pollutants or contaminants into the environment to the cabinet. KRS 224.10-100 requires the cabinet to provide for the prevention, abatement, and control of water pollution. This administrative regulation establishes that releases of pollutants or contaminants that could result in or contribute to pollution of the waters of the Commonwealth from any source other than a KPDES-permitted facility, shall be reported to the division. This administrative regulation establishes reporting timeframes and mechanisms that enable the division to determine what action is necessary to protect public safety and mitigate or reduce the effect of the release.
History: 401 KAR 005:015. WP-3; 1 Ky.R. 761; 1382; eff. 7-2-1975; TAm eff. 6-6-2008; 44 Ky.R. 2602; 45 Ky.R. 2602; eff. 11-1-2018; Crt eff. 10-28-2025.

401 KAR 5:037 Groundwater protection plans {#sec-401-kar-5-037 omnilex-key=us-ky-regs-official--title-401--401 KAR 5:037}

Section 1.

(1) Applicability. Except for activities established in subsections (2) and (3) of this section, a person responsible for conducting any of the activities listed in paragraphs (a) through (p) of this subsection shall prepare and implement a groundwater protection plan:

(a) Storing or related handling of bulk quantities of pesticides or fertilizers for commercial purposes;

(b) Storing or related handling of bulk quantities of pesticides or fertilizers for the purpose of distribution to a retail sales outlet;

(d) Applying of fertilizers or pesticides for public right-of-way maintenance or institutional lawn care;

(e) Land treatment or land disposal of a pollutant;

(f) Storing, treating, disposing, or related handling of hazardous waste, solid waste, or special waste in landfills, incinerators, surface impoundments, tanks, drums or other containers, or in piles;

(g) Commercial or industrial storing or related handling in bulk quantities of raw materials, intermediate substances or products, finished products, substances held for recycling, or other pollutants held in tanks, drums or other containers, or in piles;

(h) Transmission in pipelines of raw materials, intermediate substances or products, finished products, or other pollutants;

(i) Installation or operation of on-site sewage disposal systems;

(j) Storing or related handling of road oils, dust suppressants, or deicing agents at a central location;

(k) Application or related handling of road oils, dust suppressants or deicing materials;

(l) Mining and associated activities;

(m) Installation, construction, operation, or abandonment of wells, bore holes, or core holes;

(n) Collection or disposal of pollutants in an industrial or commercial facility through the use of floor drains not connected to on-site sewage disposal systems, closed-loop collection or recovery systems, or a waste treatment system permitted under the Kentucky Pollutant Discharge Elimination System;

(o) Impoundment or containment of pollutants in surface impoundments, lagoons, pits, or ditches; or

(p) Commercial or industrial transfer, including loading and unloading, in bulk quantities of raw materials, intermediate substances or products, finished products, substances held for recycling, or other pollutants.

(2) General exclusion. A person who conducts an activity established in subsection (1) of this section shall not be required to prepare or to implement a groundwater protection plan for that activity if that person can demonstrate by substantial evidence based on the factors established in this subsection, the activity has no reasonable potential of altering the physical, thermal, chemical, biological, or radioactive properties of the groundwater in a manner, condition, or quantity that will be detrimental to the public health or welfare, to animal or aquatic life, to the use of groundwater as present or future sources of public water supply or to the use of groundwater for recreational, commercial, industrial, agricultural, or other legitimate purposes. The demonstration shall at a minimum consider:

(a) Hydrogeologic sensitivity at or near the location of the activity;

(b) Quantity of the pollutants, including the cumulative potential to pollute from small discharges, spills, or releases that individually would not have the potential to pollute;

(c) Physical, chemical, and biological characteristics of the pollutants such as solubility, mobility, toxicity, concentration, and persistence;

(d) Use of the pollutants at the locations of the activities; and

(e) Present and potential uses of the groundwater.

(3) Specific exclusions. The provisions of this administrative regulation shall not apply to:

(a) Normal use or consumption of products sized and packaged for personal use by individuals;

(b) Retail marketing of products sized and packaged for personal use or consumption by individuals;

The building has a floor sufficient to prevent the release of pollutants to groundwater; and
There are no floor drains, or all floor drains within the building are connected to an on-site sewage disposal system, closed-loop collection or recovery system or a waste treatment system permitted under the Kentucky Pollutant Discharge Elimination System;

(d) Storing, related handling, or transmission in pipelines of pollutants that are gases at standard temperature and pressure;

(e) Storing municipal solid waste in a container located on property where the municipal solid waste is generated and that is used solely for the purpose of collection and temporary storage of that municipal solid waste prior to off-site disposal;

(f) Installing and operating sewer lines or water lines approved by the cabinet pursuant to 401 KAR 5:005 or 8:100;

(g) Storing water in ponds, lakes, or reservoirs;

(h) Impounding stormwater, silt, or sediment in surface impoundments;

(i) Application of chloride-based deicing materials used on roads or parking lots;

(j) Emergency response activities conducted in accordance with local, state, or federal law;

(k) Fire fighting activities;

(l) Conveyance or related handling by motor vehicle, rolling stock, vessel, or aircraft;

(m) Agricultural activities at agriculture operations; or

(n) Application by commercial applicators of fertilizers or pesticides on lands used for agriculture operations.

(4) Relationship to other programs. Nothing in this administrative regulation shall abrogate the duty of a person to comply with the statutes and other administrative regulations administered by the cabinet, with the statutes and administrative regulations administered by other state and federal agencies, or with statutes and ordinances administered by a local government.

Section 2. Preparation of Groundwater Protection Plans.

(1) General requirements for site-specific and generic groundwater protection plans. The practices established by a groundwater protection plan shall be designed and implemented in a manner that prevents groundwater pollution. A person conducting an activity established in Section 1(1) of this administrative regulation shall determine if an exclusion of Section 1(2) or (3) of this administrative regulation applies to that activity.

(2) Deadlines for preparation and implementation. Except for activities excluded by Section 1(2) or (3) of this administrative regulation, a person required to prepare and to implement a groundwater protection plan pursuant to Section 1 of this administrative regulation, shall prepare and implement a site-specific or generic groundwater protection plan upon commencement of the regulated activity.

(3) Elements of generic and site-specific groundwater protection plans. Both generic and site-specific groundwater protection plans shall contain:

(a) General information regarding the facility and its operation, including the:

Name of the facility;
Address of the facility; and
Name of the person or persons responsible for implementing the plan;

(b) Identification of all activities established in Section 1(1) of this administrative regulation and not excluded by Section 1(2) or (3) of this administrative regulation;

(d) An implementation schedule for the practices selected for the plan;

(e) A description of and implementation schedule for employee training necessary to ensure implementation of the plan;

(f) An inspection schedule requiring regular inspections as needed to ensure that all practices established are in place and properly functioning;

(g) A certification by the person responsible for implementing the plan or an "authorized representative" as defined by 401 KAR 5:002 that the plan complies with the requirements of this administrative regulation, and that the person responsible for implementing the plan has reviewed the terms of the plan and shall implement its provisions.

(4) Selection of practices for groundwater protection. A person required to prepare a groundwater protection plan pursuant to this section shall evaluate technological means for protection of groundwater from pollution that could result from activities addressed by the plan and shall select practices for the plan that protect groundwater from pollution. The groundwater protection practices chosen for a groundwater protection plan may include:

(a) Equipment design;

(b) Operational procedures;

(d) Construction techniques;

(e) Personnel training;

(f) Spill response capabilities;

(g) Alternative materials or processes;

(h) Implementation of new technology;

(i) Modification of facility or equipment;

(j) Spill prevention control and countermeasure plans;

(k) Best management practices;

(l) Hazardous waste contingency plans;

(m) Other plans prepared pursuant to other programs that protect groundwater from pollution;

(n) Runoff or infiltration control systems;

(o) Siting considerations; and

(p) Any other practice which will protect groundwater from pollution.

(5) Specific practices. In selecting practices to protect groundwater for the activities established in Section 1(1) of this administrative regulation and not excluded by Section 1(2) or (3) of this administrative regulation a person preparing a groundwater protection plan shall consider the nature of the pollutant and the hydrogeologic characteristics at or near the location of the activity and shall comply with the requirements established in paragraphs (a) through (e) of this subsection in selecting those practices.

(a) Loading and unloading areas. Loading and unloading areas shall have spill prevention and control procedures and operation procedures designed to prevent groundwater pollution. Spill containment and cleanup equipment shall be readily accessible.

(b) On-site sewage disposal systems. A person shall not install a new or replace an existing on-site sewage disposal system if a publicly or privately owned treatment works capable of treating the pollutants to be discharged is available.

A person using existing floor drains shall evaluate those floor drains to determine if they discharge to an on-site sewage disposal system, to a closed-loop collection or recovery system, or to a waste treatment system permitted under the Kentucky Pollutant Discharge Elimination System.
If drains are identified that do not discharge to an on-site sewage disposal system, a closed-loop collection or recovery system, or a waste treatment system permitted under the Kentucky Pollutant Discharge Elimination System, that person shall terminate the discharge or connect it to an on-site sewage disposal system, a closed-loop collection or recovery system, or a waste treatment system permitted under the Kentucky Pollutant Discharge Elimination System.
A person shall not install a floor drain unless it is connected to an on-site sewage disposal system, closed-loop collection or recovery system, or a waste treatment system permitted under the Kentucky Pollutant Discharge Elimination System.

(d) Tanks and sumps.

A person using a tank or sump shall prepare and implement good housekeeping practices, operating procedures, operator training, and spill response procedures.
A person using a tank or sump shall consider leak control devices, secondary containment, integrity testing, mechanical inspections, and overfill protection devices.
Containment additional to subsections (1) and (2) of this subsection shall not be required for sumps and tanks that are used solely to provide secondary containment.

(e) New surface impoundments, lagoons, pits, or ditches.

A person who constructs a new surface impoundment, lagoon, pit, or ditch that will contain a pollutant shall evaluate the site's hydrogeology and shall design and operate it to minimize discharges to soil. Soils may be used to construct liners if the soil liner will protect groundwater from pollution.
All necessary and appropriate measures shall be taken to prevent groundwater pollution. The person shall consider the use of liners, secondary containment, leak detection devices, and other appropriate and effective control systems that will protect groundwater from pollution.
Containment additional to subsections (1) and (2) of this subsection shall not be required for new surface impoundments, lagoons, pits, and ditches that are used solely to provide secondary containment.

(6) Exceptions to specific requirements.

(a) The provisions of subsection (5) of this section shall not apply to activities that are governed by other federal, state, or regulatory programs that comply with the requirements of subsection (7) of this section while the person conducting the activities remains in compliance with the other program.

(b) Variances from the provisions of subsection (5) of this section may be granted by the cabinet if the applicant for a variance demonstrates that a variance will not result in pollution of groundwater, but a person required to prepare a groundwater protection plan pursuant to this section shall not take any actions contrary to the provisions of subsection (5) of this section without prior written approval of the cabinet.

(7) Incorporation of requirements of other regulatory programs.

(a) Groundwater protection activities required by other federal, state, or local regulatory programs may be incorporated into a site-specific or generic groundwater protection plan by reference if the other regulatory program contains:

Management and design standards;
Mandatory monitoring for groundwater pollution or methods of detecting discharges, spills, or releases to groundwater; and
Specific corrective action criteria.

(b)

The plan shall identify each activity covered by the other regulatory program. The person responsible for implementing the plan shall certify compliance with the other regulatory program.
The provisions of the other program shall be the groundwater protection plan for purposes of this administrative regulation for the activities covered by the other regulatory program.
If activities identified in Section 1(1) of this administrative regulation and not excluded in Section 1(2) or (3) of this administrative regulation are conducted that are not covered by the other regulatory program, the plan shall contain separate practices designed to protect groundwater from pollution for each activity not covered by the other regulatory program.

(8) Generic groundwater protection plans. A generic groundwater protection plan shall be prepared in accordance with subsections (1) through (7) of this section and may govern all or part of a person's activities. A generic groundwater protection plan shall not be sufficient by itself if it does not address all activities conducted by the person that are established in Section 1(1) of this administrative regulation and not excluded by Section 1(2) or (3) of this administrative regulation.

(a)

A person responsible for preparing and implementing a groundwater protection plan required by this administrative regulation may apply one (1) provision of the plan to all substantially identical activities if factors established in Section 1(2) of this administrative regulation do not cause substantial differences in the potential to pollute among locations.
If substantial differences do exist, the plan shall provide separate site-specific or region-specific preventive measures, as necessary, for the activities.

(b) A person responsible for preparing a groundwater protection plan governed by this section may use a generic groundwater protection plan prepared by another person or group, including a trade organization, if:

The activities established in the generic groundwater protection plan are substantially identical;
The factors established in Section 1(2) of this administrative regulation do not cause substantial differences in the potentials to pollute among locations; and
The groundwater protection plan has been reviewed and approved by the cabinet as established in this administrative regulation.

(c) A generic groundwater protection plan may consist of requirements imposed by other regulatory programs designed to protect groundwater or programs offering technical assistance for groundwater protection if the cabinet has approved the requirements of the other program as a generic groundwater protection plan. A person using a generic groundwater protection plan from another program pursuant to this paragraph as a part of, or all of, the plan shall certify in the plan that the plan is subject to the program and in compliance with its provisions. Any activities that are not addressed by the program shall be addressed separately in the groundwater protection plan.

(d)

A person conducting an activity established in this subsection who does not prepare a groundwater protection plan for that activity or does not use another approved generic groundwater protection plan for that activity shall implement the provisions of the generic groundwater protection plan prepared by the cabinet.
The cabinet, in cooperation with other appropriate state agencies, shall prepare generic groundwater protection plans for:

a. Use of existing residential septic systems; and

b. Construction, operation, closure, and capping of water wells.

(e)

A generic groundwater protection plan that has been approved by the cabinet as established in this administrative regulation may be incorporated by reference in a facility's groundwater protection plan.
Each person responsible for implementing the generic plan at a site shall maintain a copy of the plan at an appropriate, accessible location.
A person using a generic groundwater protection plan shall identify the activities governed by the plan and attach the identification to the copy of the generic plan.

(f)

A person preparing a new or revised generic groundwater protection plan person shall also place a notice in a statewide newspaper and a trade publication likely to be read by those affected by the groundwater protection plan. That notice shall:

a. Provide for a thirty (30) day comment period;

b. Identify activities that are addressed by the proposed generic groundwater protection plan; and

c. Describe the procedure for review by the public of the plan and the procedures and time frames for providing comments.

The cabinet shall also notify by mail or email anyone who has requested in writing to be placed on a mailing list for purposes of this administrative regulation.

Section 3. Implementation of Groundwater Protection Plans.

(1) Record retention requirements.

(a) A site-specific groundwater protection plan required by Sections 1 through 3 of this administrative regulation, and documentation evidencing compliance with the provisions of the plan, shall be retained by the person responsible for implementing the plan, at the location of the activity if the location is normally attended at least eight (8) hours per day, or at the nearest office of that person's activity if the facility is not so attended.

(b) A generic groundwater protection plan and documentation evidencing compliance with the provisions of the plan shall be retained by the person responsible for implementing the plan in as many locations as necessary to ensure compliance.

(c) All records evidencing compliance shall be maintained and available for review by the cabinet for a period of not less than six (6) years after their preparation.

(2) Amendment of groundwater protection plans. Prior to conducting any new or modified activity, a person conducting that activity shall amend the groundwater protection plan to address the new or modified activity.

(3) Review and recertification of groundwater protection plans. Each groundwater protection plan shall be reviewed in its entirety every three (3) years, by the persons responsible for the plan, updated if necessary, and recertified. To the extent possible, the review shall include a reevaluation of the design and operation procedures for the pollution prevention practices previously selected for the plan to ensure that they are effective.

(4) Submission of groundwater plans to cabinet.

(a) Upon written request of the cabinet, a person required to prepare a groundwater protection plan pursuant to this administrative regulation shall submit a copy of the plan to the cabinet within thirty (30) days of the date of the request.

(b) Upon written request of the cabinet, a person who has made a determination pursuant to Section 1(2) of this administrative regulation that a groundwater protection plan is not required for a specific activity shall submit a written demonstration to the cabinet within thirty (30) days of the date of the request.

(5) Submission of additional information to the cabinet. Upon review of a groundwater protection plan that has been submitted to the cabinet, the cabinet may require a person responsible for preparation or implementation of a plan to submit any of the information in this subsection to determine if the plan is protective of groundwater:

(a) For a site-specific groundwater protection plan, and for a generic groundwater protection plan in effect at a specific location, the location of all buildings, structures, roads, utilities, drainage pathways, and boundaries by using a narrative description or by using a map, diagram, or drawing;

(b) For a generic groundwater protection plan that applies to more than one (1) location, identification of the geographic region to which the generic groundwater protection plan applies, and an explanation of why that region was selected and why one (1) plan is appropriate for all activities addressed by the plan for all sites within the region;

(c) For a generic groundwater protection plan that applies to more than one (1) location, to the extent possible, a description of the nature and number of activities, and their associated facilities, that are expected to be governed by the generic groundwater protection plan;

(d) A Summary of reasonably available hydrogeologic information including:

Identification of location of sinkholes, sinking streams, springs, streams, lakes, ponds, and ditches;
Description of soil survey information;
Identification and location of currently usable wells, abandoned wells, and wellhead protection areas;
Identification of subsidence areas; and
Description of any other relevant hydrogeologic data known to the person preparing or implementing the groundwater protection plan; and

(e) Any other information, including site-specific groundwater or geologic information, which is known and readily available to the person responsible for preparing or implementing the plan but not to the cabinet to determine if the plan is protective of groundwater.

(6) Revisions to plans after cabinet review.

(a) If the cabinet reviews a groundwater protection plan and determines that it does not comply wih the requirements of this administrative regulation, the cabinet shall notify the person responsible for preparing or implementing the plan of the deficiency in the plan. That person shall revise the plan to correct the deficiencies identified by the cabinet and submit the revised plan to the cabinet for further review.

(b) The person submitting the revised plan shall have thirty (30) days from issuance of the notice of the deficiencies to submit the revised plan.

(c) The cabinet shall review the revised plan and notify the person submitting the revised plan of its final determination within ten (10) days of receiving the revised plan.

(7) Public inspection of groundwater protection plans.

(a) A person who desires to review a groundwater protection plan shall send a written request to the person required to prepare and to implement the groundwater protection plan.

(b) A person who receives a written request to review the groundwater protection plan shall within ten (10) working days:

Send a written response to the person requesting to inspect the groundwater protection plan stating that the groundwater protection plan may be reviewed at:

a. The Division of Water in Frankfort;

b. A regional office of the Division of Water;

c. The facility;

d. A local public library; or

Send a written response to the person requesting to inspect the groundwater protection plan stating the reason that a groundwater protection plan was not required to be prepared.

(c) A person who designates a review location for a groundwater protection plan shall send a copy of the groundwater protection plan to the location designated for review within ten (10) working days of receiving a written request to review the plan.

(8) Requirements upon transfer of property. Upon any subsequent transfer of a facility for which a groundwater protection plan has been prepared, the seller shall provide the purchaser with a copy of the most recent groundwater protection plan prepared for the facility pursuant to this administrative regulation.

History

RELATES TO: KRS 151.110, Chapter 224
STATUTORY AUTHORITY: KRS 224.10-100, 224.70-100, 224.70-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 and 70-100 require the cabinet to provide for the prevention, abatement, and control of all water pollution. KRS 224.10-100 authorizes the cabinet to promulgate administrative regulations to achieve the objectives of KRS Chapter 224. This administrative regulation establishes the requirement to prepare and to implement groundwater protection plans to ensure protection for all current and future uses of groundwater and to prevent groundwater pollution.
History: 401 KAR 005:037. 20 Ky.R. 3128; 21 Ky.R. 25; 1030; eff. 8-24-1994; TAm eff. 7-14-2017; 44 Ky.R. 2604; 45 Ky.R. 690, 1003; eff. 11-1-2018; Crt eff. 10-28-2025.

401 KAR 5:045 Treatment requirements; compliance; biochemically degradable wastes {#sec-401-kar-5-045 omnilex-key=us-ky-regs-official--title-401--401 KAR 5:045}

Section 1. Treatment Requirements.

(1) This administrative regulation shall apply to all discharges to surface waters of the Commonwealth as defined by 401 KAR 10:001.

(2) All persons who discharge through a point source shall, as a minimum, apply the secondary treatment, or equivalent, considering the:

(a) Total cost of the application of such technology in relation to the effluent reduction benefits to be achieved;

(b) Age of the equipment and facilities involved;

(d) Engineering aspects of the application of various types of control techniques; and

(e) Nonwater quality environmental impact.

(3) All persons who discharge through a point source shall apply the best available waste control technology, or equivalent, considering:

(a) The factors in subsection (2) of this section;

(b) Any operating and maintenance procedures;

(d) Other management practices to control site run-off, spillage, leaks, sludge or waste disposal, or drainage from raw material storage.

(4) The cabinet may deny, revoke, or modify a permit to any applicant if the discharge does not comply with KRS 224.70-100.

Section 2. Biochemically Degradable Wastes; Treatment.

(1) A facility that receives an influent that is biochemically degradable and discharges into waters of the Commonwealth shall provide a minimum of secondary treatment to that influent prior to its discharge.

(2) A facility subject to treatment requirements established in 401 KAR 5:080, Section 2 shall be exempt from the requirements of this administrative regulation.

Section 3. Secondary Treatment of Biochemically Degradable Wastes. Secondary treatment shall be the degree of treatment that results in an effluent quality that complies with the minimum requirements established in this section.

(1) Biochemical oxygen demand, five (5) days.

(a) The arithmetic mean of the values for effluent samples collected during a period of thirty (30) consecutive days shall not exceed thirty (30) milligrams per liter.

(b) The arithmetic mean of the values for effluent samples collected during a period of seven (7) consecutive days shall not exceed forty-five (45) milligrams per liter.

(2) Suspended solids.

(a) The arithmetic mean of the values for suspended solids in effluent samples collected during a period of thirty (30) consecutive days shall not exceed thirty (30) milligrams per liter.

(b) The arithmetic mean of values for suspended solids in effluent samples collected during a period of seven (7) consecutive days shall not exceed forty-five (45) milligrams per liter.

Section 4. Continuation of a Permit. A person responsible for an existing facility that receives biochemically degradable influent and discharges into waters of the Commonwealth shall apply for a permit to continue to discharge to the waters of the Commonwealth not later than 180 days prior to the expiration of the current permit.

History

RELATES TO: KRS 224.10-100, 224.70-100, 224.70-110
STATUTORY AUTHORITY: KRS 224.10-100(19), (21)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(19) requires the cabinet to issue, continue in effect, revoke, modify, suspend, or deny permits to discharge into waters of the Commonwealth. KRS 224.10-100(21) authorizes the cabinet to require technological levels of treatment and effluent limitations. This administrative regulation establishes minimum treatment requirements, requires all persons discharging pollutants through point sources to apply these measures, or more stringent as required, to comply with water quality standards, and requires a minimum of secondary treatment or best conventional pollutant control technology for a facility that receives biochemically degradable wastes.
History: 401 KAR 005:045. 1 Ky.R. 763; 1383; eff. 7-2-1975; 2 Ky.R. 500; eff. 5-12-1976; 10 Ky.R. 430; 888; eff. 2-1-1984; TAm eff. 8-9-2007; 36 Ky.R. 2112-M; 37 Ky.R. 44; eff. 8-5-2010; 44 Ky.R.2610; 45 Ky.R. 1008; eff. 11-1-2018; Crt eff. 10-28-2025.

401 KAR 5:050 General provisions of KPDES Permitting Program {#sec-401-kar-5-050 omnilex-key=us-ky-regs-official--title-401--401 KAR 5:050}

Section 1. Conflicting Provisions. The provisions of the KPDES administrative regulations shall be construed as compatible with and complementary to each other. If any of these administrative regulations are found by a court of competent jurisdiction to be contradictory, the more stringent provisions shall apply.

Section 2. Duration of Permits. The duration of a KPDES permit shall be as established in 40 C.F.R. 122.46.

Section 3. Schedules of Compliance. The schedule of compliance for a KPDES permit shall be as established in 40 C.F.R. 122.47.

Section 4. Requirements for Recording and Reporting of Monitoring Results. The requirements for recording and reporting of a monitoring result shall be as established in 40 C.F.R. 122.48.

Section 5. Effect of a Permit.

(1) Except for a toxic effluent standard or prohibition established in 401 KAR 5:065, compliance with a KPDES permit during its term shall constitute compliance, for purposes of enforcement, with the KPDES program.

(2) A permit may be modified, revoked and reissued, or revoked during its term for cause as established in Sections 7 and 8 of this administrative regulation.

(3) The issuance of a permit shall not convey property rights or exclusive privilege.

(4) The issuance of a permit shall not authorize:

(a) Injury to persons or property;

(b) Invasion of other private rights; or

Section 6. Transfer of Permits. Transfer of a KPDES permit shall be as established in 40 C.F.R. 122.61.

Section 7. Modification or Revocation and Reissuance of Permit.

(1) The modification or revocation and reissuance of a KPDES permit shall be as established in 40 C.F.R. 122.62.

(2) A minor modification of a KPDES permit shall be as established in 40 C.F.R. 122.63.

Section 8. Revocation of Permit. The causes and procedure for revoking a KPDES permit shall be as established in 40 C.F.R. 122.64.

Section 9. Substitutions, Exceptions, and Additions to Cited Federal Regulations.

(1) "Waters of the Commonwealth" shall be substituted for "waters of the United States" in the federal regulations cited in this administrative regulation.

(2) "Cabinet" shall be substituted for "Director" in the federal regulations cited in this administrative regulation.

(3) "KPDES" shall be substituted for "NPDES" in the federal regulations cited in this administrative regulation.

History

RELATES TO: KRS 224.1-010, 224.1-070, 224.1-400, 224.10-110, 224.16-050, 224.70-100, 224.70-110, 224.70-120, 224.99-010, 40 C.F.R. Parts 122, 403, 33 U.S.C. 1251-1387
STATUTORY AUTHORITY: KRS 224.10-100, 224.16-050, 224.70-110, 40 C.F.R. Parts 122, 403, 33 U.S.C. 1251-1387
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 authorizes the Energy and Environment Cabinet to issue, continue in effect, revoke, modify, suspend or deny under such conditions as the cabinet may prescribe, permits to discharge into the waters of the Commonwealth. KRS 224.16-050 authorizes the cabinet to issue federal permits pursuant to 33 U.S.C. Section 1342(b) of the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.) and requires that the cabinet shall not impose under any permit issued pursuant to this section any effluent limitation, monitoring requirement, or other condition that is more stringent than would have been applicable under the federal regulation if the permit were issued by the federal government. This administrative regulation establishes the provisions, terms, effect, schedule of compliance, and duration of a KPDES permit, and the basis for permit modification or revocation and reissuance.
History: 401 KAR 005:050. 9 Ky.R. 852; 1100; 10 Ky.R. 6; eff. 6-1-1983; 11 Ky.R. 737; eff. 1-7-1985; 12 Ky.R. 507; eff. 12-10-1985; 20 Ky.R. 3228; 21 Ky.R. 362; eff. 8-24-1994; TAm eff. 8-9-2007; 44 Ky.R. 2612; eff. 11-1-2018; Cert eff. 10-28-2025; TAm eff. 11-14-2025.

401 KAR 5:052 Requirements applicable to cooling water intake structures for facilities regulated by Section 316(b) of the Clean Water Act, 33 U.S.C. 1326(b) {#sec-401-kar-5-052 omnilex-key=us-ky-regs-official--title-401--401 KAR 5:052}

Section 1.

(1) Except as established in Sections 2 and 3 of this administrative regulation, requirements for new facilities pursuant to Section 316(b) of the Clean Water Act, 33 U.S.C. 1326(b), shall be as established in 40 C.F.R. 125.80 through 125.89.

(2) Except as established in Sections 2 and 3 of this administrative regulation, requirements for existing facilities pursuant to Section 316(b) of the Clean Water Act, 33 U.S.C. 1326(b), shall be as established in 40 C.F.R. 125.90 through 125.98.

Section 2. Political subdivisions and interstate agencies may adopt or enforce requirements that are more stringent than this administrative regulation.

Section 3. Substitutions. The following terms shall be substituted in the federal regulations cited in this administrative regulation:

(1) "Waters of the Commonwealth" shall replace "waters of the United States"; and

(2) "Cabinet" shall replace "Director".

History

RELATES TO: KRS 224.10-100, 224.16-050, 224.70-100, 224.70-110, 40 C.F.R. 122, 33 U.S.C. 1251-1387
STATUTORY AUTHORITY: KRS 224.10-100, 224.16-050, 224.70-100, 224.70-110, 40 C.F.R. 125, 33 U.S.C. 1251-1387
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 authorizes the cabinet to issue, continue in effect, revoke, modify, suspend, or deny under such conditions as the cabinet may prescribe, permits to discharge into waters of the Commonwealth. KRS 224.16-050 authorizes the cabinet to issue federal permits pursuant to 33 U.S.C. Section 1342(b) of the Clean Water Act, 33 U.S.C. Section 1251-1387, subject to the conditions imposed in 33 U.S.C. Section 1342(b) and (d). This administrative regulation establishes the requirements applicable to cooling water intakes structures for new and existing facilities under Section 316(b) of the Clean Water Act, 33 U.S.C. 1326(b).
History: 401 KAR 005:052. 35 Ky.R. 471; 797; eff. 10-8-2008; 44 Ky.R. 2616; 45 Ky.R. 1009; eff. 11-1-2018; Crt eff. 10-28-2025.

401 KAR 5:055 Scope and applicability of the KPDES Program and pretreatment requirements {#sec-401-kar-5-055 omnilex-key=us-ky-regs-official--title-401--401 KAR 5:055}

Section 1. Definitions. Definitions established in 40 C.F.R. 122.2 shall apply for the interpretation of federal regulations that are cited within this administrative regulation.

Section 2. Applicability of the KPDES Requirements.

(1) A KPDES permit shall be required to discharge pollutants from a point source into waters of the Commonwealth.

(2) Compliance with the KPDES program requirements shall constitute compliance with the operational permit requirements of 401 KAR 5:005.

(3) Failure to obtain a KPDES permit shall not relieve a discharger whose discharge is subject to the KPDES program from complying with the applicable performance standards of the KPDES program, 401 KAR 5:045 through 5:080.

Section 3. Point Source Categories Requiring a KPDES Permit.

(1) The following categories of point sources shall require a KPDES permit to discharge:

(a) A point source discharge identified in 40 C.F.R. 122;

(b) A concentrated animal feeding operation;

(d) A discharge into aquaculture projects;

(e) A discharge from separate storm sewers; and

(f) A silviculture point source.

(2) A facility covered by a general permit issued pursuant to Section 8 of this administrative regulation may be required to obtain an individual permit based on contributions to water pollution.

(3) If an individual permit is required pursuant to this section, except as provided in subsection (4) of this section, the cabinet shall notify the discharger of that decision and the reasons for it in writing.

(a) The discharger shall apply for a permit pursuant to 401 KAR 5:060 within sixty (60) days of notice, unless an extension request is granted.

(b) The question of if the permit determination was proper shall remain open for consideration during the public comment period pursuant to 401 KAR 5:075 and in a subsequent hearing pursuant to KRS 224.10-420(2).

(4)

(a) Prior to a determination that an individual permit shall be required for a stormwater discharge, the cabinet may require the discharger to submit information regarding the nature of the discharge as established in 40 C.F.R. 122.21(e) if:

The provisions of the general permit are not sufficient to protect human health and the environment; or
The discharger has a history of noncompliance with the provisions of the general permit.

(b) If an individual permit is required pursuant to this section, the cabinet shall notify the discharger of that decision and the reasons for it in writing.

(c) The discharger shall apply for a KPDES permit within sixty (60) days of notice, unless an extension request is granted.

(d) The question of if the initial determination was proper shall remain open for consideration during the public comment period pursuant to 401 KAR 5:075 and in a subsequent hearing pursuant to KRS 224.10-420(2).

Section 4. Exclusions. An exclusion from the requirement to obtain a KPDES permit shall be:

(1) A discharge identified in 40 C.F.R. 122.3 or KRS 224.16-050(6);

(2) An authorization by permit or by rule that is prepared to assure that underground injection will not endanger drinking water supplies, pursuant to the Safe Drinking Water Act, 42 U.S.C. 300f-300j, and that are issued under a state or federal Underground Injection Control program;

(3) An underground injection control well that is permitted pursuant to 40 C.F.R. 144 if those permits are protective of public health and welfare and prevent the pollution of ground and surface waters; or

(4) A discharge that is not regulated by the U.S. EPA under the Clean Water Act Section 402, 33 U.S.C. 1342.

Section 5. Prohibitions. The cabinet shall not issue a KPDES permit if:

(1) The conditions of the permit would violate the provisions of KRS Chapter 224;

(2) The regional administrator has objected to issuance of the permit in writing pursuant to the procedures specified in 40 C.F.R. 123.44;

(3) The conditions of the permit do not comply with the water quality standards established in 401 KAR Chapter 10; or

(4) A prohibition is established in 40 C.F.R. 122.4.

Section 6. Variance Requests from Technology-Based Effluent Limitations.

(1) A non-POTW may request a variance from otherwise applicable effluent limitations as established in 40 C.F.R. 122.21(m).

(2) A non-POTW may request an expedited variance as established in 40 C.F.R. 122.21(o).

Section 7. Effect of a Permit. The effect of a KPDES permit shall be as established in 40 C.F.R. 122.5.

Section 8. A General permit shall be issued as established in 40 C.F.R. 122.28.

Section 9. Disposal of Pollutants into Underground Injection Control Wells, into Publicly Owned Treatment Works, or by Land Application.

(1) An adjustment of effluent limitations related to disposal of pollutants into wells, into publicly owned treatment works, or by land application shall be as established in 40 C.F.R. 122.50.

(2) The cabinet may issue permits to control the disposal of pollutants into wells if necessary to protect the public health and welfare and to prevent the pollution of ground and surface waters.

Section 10. Variances from Technology-Based Treatment Requirements Available to KPDES Applicants. Consistent with KRS 224.16-050, the variance provisions in this section and in 401 KAR 5:080, Sections 2 and 4, establish those variances from technology-based requirements available to KPDES applicants.

(1) Economic capability. The cabinet, with the concurrence of U.S. EPA, may modify BAT requirements for a point source if the owner or operator demonstrates that the variance satisfies the requirements of 33 U.S.C. 1311(c).

(2) Environmental considerations. The cabinet, with the concurrence of U.S. EPA, may modify the BAT requirement for a point source that does not discharge toxic pollutants identified in 40 C.F.R. 401.15, conventional pollutants, or the thermal component of that discharge, if the owner or operator demonstrates that the modification is consistent with the conditions established in 33 U.S.C. 1311(g).

(3) Innovative technology. The cabinet shall establish a date for complying with the deadline for achieving BAT not later than two (2) years after the date for compliance with the effluent limitation would otherwise be applicable, if the innovative technology is as established in 33 U.S.C. 1311(k) and after consultation with the U.S. EPA Regional Administrator, as required by 40 C.F.R. 124.62(a)(2).

(4) Thermal pollution. An alternative effluent limitation for the thermal component of a discharge shall be as established in 33 U.S.C. 1326(a).

Section 11. KPDES Pretreatment Requirements.

(1) This administrative regulation shall not affect pretreatment requirements established by local law if those requirements are not less stringent than those established in state or national pretreatment standards or other requirements or prohibitions established under the National Water Pollution Control Act, 33 U.S.C. 1251-1387 or this administrative regulation.

(2) Prohibited discharges shall be as established in 40 C.F.R. 403.5.

(3) Categorical standards shall be as established in 40 C.F.R. 403.6.

(4) The granting of removal credits shall be as established in 40 C.F.R. 403.7.

(5) The development by a POTW of pretreatment program requirements shall be as established in 40 C.F.R. 403.8.

(6) The submission for approval of a pretreatment program or authorization to revise pretreatment standards shall be as established in 40 C.F.R. 403.9.

(7) The approval procedures for POTW pretreatment programs and POTW granting of removal credits shall be as established in 40 C.F.R. 403.11.

(8) The reporting requirements for POTWs and industrial users shall be as established in 40 C.F.R. 403.12.

(9) Variances from categorical pretreatment standards as a result of fundamentally different factors shall be as established in 40 C.F.R. 403.13.

(10) Confidentiality.

(a) Information submitted to the cabinet pursuant to this Section may be claimed as confidential if the claim of confidentiality complies with KRS 224.10-210 and 224.10-212.

(b) All other information submitted to the POTW shall be available to the public at least to the extent provided by KRS 61.870 through 61.884.

(11) Net-gross calculation shall be as established in 40 C.F.R. 403.15.

(12) Upset provisions shall be as established in 40 C.F.R. 403.16.

(13) Bypasses shall be as established in 40 C.F.R. 403.17.

(14) Modification of POTW pretreatment programs shall be as established in 40 C.F.R. 403.18.

(15) Pretreatment program reinvention pilot pojects under Project XL shall be as established in 40 C.F.R. 403.20.

Section 12. Substitutions, Exceptions, and Additions to Cited Federal Regulations.

(1) "Waters of the Commonwealth" shall be substituted for "Waters of the United States" in the federal regulations cited in this administrative regulation.

(2) "Cabinet" shall be substituted for "Director" in the federal regulations cited in this administrative regulation.

(3) "KPDES" shall be substituted for "NPDES" in the federal regulations cited in this administrative regulation.

(4) "Standard metropolitan statistical areas as defined by the University of Louisville Urban Studies Center, consistent with the U.S. Office of Management and Budget" shall be substituted for "Standard metropolitan statistical areas as defined by the Office of Management and Budget" in 40 C.F.R. 122.28(a)(1)(vi).

(5) "Urbanized areas as designated by the University of Louisville Urban Studies Center consistent with the U.S. Bureau of the Census" shall be substituted for "Urbanized areas as designated by the Bureau of the Census according to criteria in 30 FR 15202, effective May 1, 1974" in 40 C.F.R. 122.28(a)(1)(vi).

History

RELATES TO: KRS 61.870-61.884, 224.1-010, 224.1-070, 224.1-400, 224.18-100, 224.70-100, 224.70-120, 224.99-010, 33 C.F.R. 153, 40 C.F.R. 122, 123.44, 124.62, 131, 136, 144, 258, 261, 300, 401-471, 33 U.S.C. 1251 -1387, 42 U.S.C. 300f – 300j, 6907
STATUTORY AUTHORITY: KRS 224.10-100, 224.10-110, 224.16-050, 224.18-100, 224.70-100, 224.70-110, 224.73-120, 40 C.F.R. 1.25(e), 25, 122.21, 300, 33 U.S.C. 1251 -1387, 42 U.S.C. 6901, 6902, 6907
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the cabinet to provide for the prevention, abatement, and control of water pollution, to issue, continue in effect, revoke, modify, suspend or deny permits to discharge into waters of the Commonwealth, and authorizes the cabinet to require technological levels of treatment and effluent limitations. KRS 224.16-050(1) authorizes the cabinet to issue federal permits pursuant to 33 U.S.C. 1342(b) of the Federal Water Pollution Control Act, 33 U.S.C. 1251 – 1387. KRS 224.16-050(4) requires that the cabinet shall not issue any permit pursuant to this administrative regulation that is more stringent than if the permit was issued by the federal government. KRS 224.73-120 authorizes the cabinet to apply and enforce against users of publicly owned treatment works the requirements of monitoring, recordkeeping and reporting, effluent limitations, and pretreatment standards for the introduction of pollutants into treatment works. This administrative regulation establishes the scope and applicability of the KPDES program and identifies categories of point sources required to obtain a KPDES permit, requirements pertaining to exclusions and prohibitions, requirements for general permits, requirements for disposal into wells and into publicly-owned treatment works (POTW), and requirements for disposal by land application. This administrative regulation implements 33 U.S.C. 1311, 1314, 1317, 1318, 1319, 1342, and 1345 related to the cabinet's pretreatment program and establishes responsibilities of the Commonwealth of Kentucky, local government, industry, and the public to implement the national pretreatment program to control pollutants as established in 40 C.F.R. 403.1.
History: 401 KAR 005:055. 9 Ky.R. 854; 1103; 10 Ky.R. 9; eff. 6-1-1983; 11 Ky.R. 740; 1028; eff. 1-7-1985; 12 Ky.R. 511; eff. 12-10-1985; 13 Ky.R. 241; eff. 9-4-1986; 20 Ky.R. 3231; 21 Ky.R. 364; eff. 8-24-1994; 29 Ky.R. 1031; 1545; eff. 12-18-2002; TAm eff. 8-9-2007; 35 Ky.R. 2520; 36 Ky.R. 364; 575; 9-25-2009; 39 Ky.R. 265; 990; eff. 3-8-2013; 44 Ky.R. 2620; 45 Ky.R. 1009; eff. 11-1-2018; Crt eff. 10-28-2025.

401 KAR 5:060 KPDES application requirements {#sec-401-kar-5-060 omnilex-key=us-ky-regs-official--title-401--401 KAR 5:060}

Section 1. Definitions. Except as established in 401 KAR 5:002, definitions established in 40 C.F.R. 122.2 shall apply for the interpretation of the federal regulations cited within this administrative regulation.

Section 2. Applying for a KPDES Permit.

(1) Application requirements. A person who is required to have a permit, including a new applicant or permittee with an expiring permit, shall complete, sign, and submit an application to the cabinet as established in this administrative regulation and 401 KAR 5:055.

(2) Duty to apply.

(a)

A person who discharges or proposes to discharge pollutants and who does not have an effective permit shall submit a complete application to the cabinet in accordance with this section, unless excluded as established in clauses a. through c. of this subparagraph.

a. A person covered pursuant to general permits as established in 40 C.F.R. 122.28.

b. A person discharging to a POTW as established in 40 C.F.R. 122.3 unless the cabinet requires an individual permit pursuant to 40 C.F.R. 122.44(m).

c. A user of a privately owned treatment works, unless the cabinet requires an individual permit pursuant to 40 C.F.R. 122.44(m).

The application shall include a BMP program if necessary pursuant to 40 C.F.R. 122.44(k).

(b) An applicant shall submit the appropriate application form, as established in Table 1 of this paragraph.

(3) Additional requirements for KPDES applications shall be as established in 40 C.F.R. 122.21 and the modifications, exceptions, and additions of Section 11 of this administrative regulation.

(4) Continuation of expiring permits.

(a) The conditions of an expired permit shall continue in force until the effective date of a new permit if:

The permittee has submitted a timely and complete application; and
The cabinet, through no fault of the permittee, does not issue a new permit with an effective date pursuant to 401 KAR 5:075, Section 11, on or before the expiration date of the previous permit.

(b) Effect. A permit continued pursuant to this subsection shall remain fully effective and enforceable until the effective date of a new permit.

(c) Enforcement. If the permittee is not in compliance with the conditions of the expiring or expired permit the cabinet shall:

Initiate enforcement action based upon the permit that has been continued;
Issue a notice of intent to deny the new permit pursuant to 401 KAR 5:075, Section 3;
Issue a new permit pursuant to 401 KAR 5:075 with appropriate conditions to ensure that the permit is protective of water quality; or
Take action authorized by KRS 224 and 401 KAR Chapter 5.

Section 3. Service of Process.

(1) Each applicant and permittee shall provide the cabinet with an address for receipt of a legal document for service of process.

(2) The last address provided to the cabinet pursuant to this provision shall be the address at which the cabinet shall tender a legal notice.

Section 4. Signatories to Permit Applications and Reports. Signatories to permit applications and reports shall be as established in 40 C.F.R. 122.22.

Section 5. Concentrated Animal Feeding Operations.

(1) Additional permit application and special KPDES program requirements shall be as established in 40 C.F.R. 122.23.

(2) The incorporation of the terms of a CAFO's nutrient management plan into the terms and conditions of a general permit if a CAFO obtains coverage under a general permit in accordance with 40 C.F.R. 122.23(h) and 40 C.F.R. 122.28 is not a cause for permit modification pursuant to the requirements of 401 KAR 5:050, Section 7 or 40 C.F.R. 122.62.

(3) The incorporation of changes to the terms of a CAFO's nutrient management plan that have been revised in accordance with the requirements established in 40 C.F.R. 122.42(e)(6) shall be a minor modification as established in 40 C.F.R. 122.63.

Section 6. Concentrated Aquatic Animal Production Facilities. A concentrated aquatic animal production facility shall be a point source subject to the KPDES permit program and shall be subject to permit application and special KPDES program requirements established in 40 C.F.R. 122.24.

Section 7. Aquaculture Projects. A discharge into an aquaculture project shall be a point source subject to the KPDES permit program and the requirements established in 40 C.F.R. 122.25.

Section 8. Stormwater Discharges. A point source discharge of stormwater shall be subject to the KPDES permit program and the requirements established in 40 C.F.R. 122.26.

Section 9. Silvicultural Activities. A silvicultural point source shall be a point source subject to the KPDES permit program and the requirements established in 40 C.F.R. 122.27.

Section 10. Regulated Small MS4.

(1) The objective of regulating a small MS4 shall be as established in 40 C.F.R. 122.30.

(2) The operator of a small MS4 shall be subject to regulation as established in 40 C.F.R. 122.32.

(3) The application requirements for a small MS4 shall be as established in 40 C.F.R. 122.33.

(4) The permit for a small MS4 shall contain conditions consistent with the requirements established in 40 C.F.R. 122.34.

(5) A small MS4 may share responsibilities to implement minimum control measures as established in 40 C.F.R. 122.35.

Section 11. Substitutions, Exceptions, and Additions to Cited Federal Regulations.

(1) "Waters of the Commonwealth" shall be substituted for "Waters of the United States" in the federal regulations cited in this administrative regulation.

(2) "Cabinet" shall be substituted for "Director" in the federal regulations cited in this administrative regulation.

(3) "KPDES" shall be substituted for "NPDES" in the federal regulations cited in this administrative regulation.

(4) The forms required in Section 2(2)(b) of this administrative regulation shall be substituted for the federal forms established in 40 C.F.R. 122.21.

(5) The conditions for Cooling Water Phase II shall be as established in 40 C.F.R. 122.21(r)(1)(ii).

(6) The special procedures related to thermal variances cited as 40 C.F.R. Section 124.65 in 40 C.F.R. 122.21(m)(6) shall be modified to 40 C.F.R. 124.62.

Section 12. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) KPDES Form 1, DEP 7032, March 2018;

(b) KPDES Form A, DEP 7032A, March 2018;

(d) KPDES Form C, DEP 7032C, March 2018;

(e) KPDES Form SC, DEP 7032SC, March 2018;

(f) KPDES Form F, DEP 7032F, March 2018; and

(g) KPDES Form NE, DEP 7032NE, March 2018.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Water, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. This material may also be obtained through the Division of Water Web site at http://water.ky.gov.

History

RELATES TO: KRS 224.1-010, 224.1-400, 224.70-100, 224.70-120, 224.99-010
STATUTORY AUTHORITY: KRS 224.10-100, 224.10-110, 224.16-050, 224.70-110, 40 C.F.R. 110.6, 117.21, 122, 123.35, 136, 261, 262.34, 302.6, 355, Chapter I, Subchapter N, Parts 401-471, 33 U.S.C. 1251-1387, 42 U.S.C. 300h, 6901-7000, 11023
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the cabinet to provide for the prevention, abatement, and control of water pollution, and authorizes the cabinet to issue, continue in effect, revoke, modify, suspend, or deny permits to discharge into any waters of the Commonwealth. KRS 224.16-050 authorizes the cabinet to issue federal permits pursuant to 33 U.S.C. 1342(b) of the Federal Water Pollution Control Act, 33 U.S.C. 1251-1387. This administrative regulation establishes the application requirements for a KPDES permit and contains additional requirements for general and specific categories of dischargers.
History: 401 KAR 005:060. 9 Ky.R. 858; 1119; 10 Ky.R. 25; eff. 6-1-1983; 11 Ky.R. 756; eff. 1-7-1985; 12 Ky.R. 528; eff. 12-10-1985; 20 Ky.R. 3246; 21 Ky.R. 396; eff. 8-24-1994; 28 Ky.R. 2686; 29 Ky.R. 1053; 1566; eff. 12-18-2002; TAm eff. 8-9-2007; 35 Ky.R. 2526; eff. 9-25-2009; 39 Ky.R. 268; 992; eff. 3-8-2013; TAm eff. 7-8-2016; 44 Ky.R. 2623; eff. 11-1-2018; Crt to Am, filing deadline 4-28-2027.

401 KAR 5:065 KPDES permit conditions {#sec-401-kar-5-065 omnilex-key=us-ky-regs-official--title-401--401 KAR 5:065}

Section 1. Definitions. Definitions established in 40 C.F.R. 122.2 shall apply for the interpretation of federal regulations that are cited within this administrative regulation.

Section 2. Federal Regulations. A KPDES permit limitation, standard, or condition shall be as established in:

(1) 40 C.F.R. 122.41;

(2) 40 C.F.R. 122.42;

(3) 40 C.F.R. 122.43;

(4) 40 C.F.R. 122.44;

(5) 40 C.F.R. 122.45;

(6) 40 C.F.R. 122, Appendix A;

(7) 40 C.F.R. 129;

(8) 40 C.F.R. 136;

(9) 40 C.F.R. 401 through 471; and

(10) 40 C.F.R. 503.

Section 3. Substitutions, Exceptions, and Additions to Cited Federal Regulations.

(1) "Waters of the Commonwealth" shall be substituted for "Waters of the United States" in the federal regulations cited in this administrative regulation.

(2) "Cabinet" shall be substituted for "Director" in the federal regulations cited in this administrative regulation.

(3) "KPDES" shall be substituted for "NPDES" in the federal regulations cited in this administrative regulation.

(4) In addition to applicable requirements for state permits established in 40 C.F.R. 122.43(b)(1), the requirements of interstate agencies shall be considered in permits issued by the cabinet.

(5) Reporting shall be as established in 40 C.F.R. 122.41 except that:

(a) If a spill or release of pollutants or contaminants, bypass, upset, or other event of noncompliance occurs that may present an imminent or substantial danger to the environment or the public health or welfare, the permittee shall immediately notify the Division of Water by calling the Division of Water in Frankfort at (502) 564-3410 or the appropriate regional field office of the Division of Water as established in Table 1 of this section.

(b) If a report required by this subsection is made during other than normal business hours, it shall be made through the twenty-four (24) hour environmental emergency telephone number at (800) 928-2380.

History

RELATES TO: KRS 224.1-010, 224.1-070, 224.1-400, 224.18-100, 224.70-100, 224.70-120, 224.99-010, 40 C.F.R. 122, 129, 136, 401-471, 503, 33 U.S.C. 1251 – 1387
STATUTORY AUTHORITY: KRS 224.10-100, 224.10-110, 224.16-050, 224.70-110, 40 C.F.R. 122, 129, 136, 401-471, 503, 33 U.S.C. 1251-1387
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 authorizes the cabinet to issue, continue in effect, revoke, modify, suspend or deny under conditions as the cabinet may prescribe, permits to discharge into any waters of the Commonwealth. KRS 224.16-050 authorizes the cabinet to issue federal permits pursuant to 33 U.S.C. 1342(b) of the Federal Water Pollution Control Act, 33 U.S.C. 1251-1387. This administrative regulation establishes the conditions applicable to all KPDES permits, the procedures for establishing and calculating permit conditions, the procedures for reporting spills, releases, bypasses, upsets, and other events of noncompliance to the division, the establishment of limits, standards, and other conditions, primary industrial categories, toxic pollutant effluent standards, test procedures for the analysis of pollutants, effluent guidelines and standards, and standards for the use or disposal of sewage sludge.
History: 401 KAR 005:065. 9 Ky.R. 866; Am. 1127; eff. 6-1-1983; 11 Ky.R. 765; eff. 1-7-1985; 12 Ky.R. 540; eff. 12-10-1985; 13 Ky.R. 258; eff. 9-4-1986; 20 Ky.R. 3272; 21 Ky.R. 421; 918; eff. 8-24-1994; 29 Ky.R. 1075; 1587; eff. 12-18-2002; TAm eff. 8-9-2007; 35 Ky.R. 2551; 36 Ky.R. 395; eff. 9-25-2009; 44 Ky.R. 2623; eff. 11-1-2018; Crt eff. 10-28-2025.

401 KAR 5:075 Cabinet review procedures for KPDES permits and permit timetables for 401 KAR Chapter 5 {#sec-401-kar-5-075 omnilex-key=us-ky-regs-official--title-401--401 KAR 5:075}

Section 1. Review of the Application. An application for a KPDES permit shall be submitted and reviewed as established in 40 C.F.R. 124.3.

Section 2. Review Procedures for Permit Modification, Revocation and Reissuance, or Revocation. A KPDES permit modification, revocation and reissuance, or revocation shall be as established in 40 C.F.R. 124.5, except that a request for a hearing shall be made as established in Section 13 of this administrative regulation.

Section 3. Draft Permits. Preparation or denial of a draft permit shall be as established in 40 C.F.R. 124.6.

Section 4. Fact Sheets. A fact sheet shall be prepared as established in 40 C.F.R. 124.8.

Section 5. Public Notice of Permit Actions and Public Comment Period. Public notice of a permit action and the public comment period shall be as established in 40 C.F.R. 124.10.

Section 6. Public Comments and Requests for Public Hearings. Provisions for public comments and requests for a public hearing shall be as established in 40 C.F.R. 124.11.

Section 7. Public Hearings. A public hearing shall be conducted as established in 40 C.F.R. 124.12.

Section 8. Obligation to Raise Issues and Provide Information During the Public Comment Period. An obligation to raise issues and provide information during the public comment period shall be as established in 40 C.F.R. 124.13.

Section 9. Conditions Requested by the Corps of Engineers and Other Government Agencies. Conditions requested by the Corps of Engineers or another government agency shall be as established in 40 C.F.R. 124.59.

Section 10. Reopening of the Public Comment Period. The public comment period shall be reopened as established in 40 C.F.R. 124.14.

Section 11. Issuance and Effective Date of Permit.

(1) After the close of the public comment period established in Section 5 of this administrative regulation, the cabinet shall make a determination to issue, deny, modify, revoke and reissue, or revoke a permit.

(a) The cabinet shall provide written notice to the applicant and to each person who submitted written comments or requested notice of the determination.

(b) The notification shall include reference to the procedures to request a hearing to contest the determination.

(2) A final permit determination shall become effective thirty (30) days after the service of notice of the determination, unless:

(a) A later effective date is specified in the determination; or

(b) Comments did not request a change in the draft permit, in which case the permit shall become effective immediately upon issuance.

(3) The determination, which is a condition precedent to demanding a hearing pursuant to KRS 224.10-420(2) and Section 13 of this administrative regulation, shall be the final permit decision.

Section 12. Response to Comments. Response to comments shall be as established in 40 C.F.R. 124.17.

Section 13. Hearings pursuant to KRS 224.10-420.

(1) A determination pursuant to Section 11 of this administrative regulation shall be subject to a demand for a hearing pursuant to KRS 224.10-420(2).

(2) A hearing held pursuant to this section shall comply with the provisions of KRS 224.10-440 and 224.10-470.

(3) Failure to raise an issue pursuant to Section 8 of this administrative regulation shall not preclude an aggrieved person from making a demand for a hearing pursuant to KRS 224.10-420(2).

Section 14. Permit Timetables.

(1) This section shall apply to permits required by 401 KAR 5:005.

(2) The cabinet shall issue its final decision on a complete permit application within the review time established in this section.

(3) A complete permit application shall contain all the administrative and technical information required by applicable statutes and administrative regulations.

(4)

(a) The review time for construction or minor modification of a wastewater treatment plant shall be ninety (90) calendar days from the receipt of a complete permit application.

(b) The review time for all other permits required by 401 KAR 5:005 shall be forty-five (45) calendar days from receipt of a complete permit application except as established in Section 15 of this administrative regulation.

Section 15. Timetables for KPDES Permits.

(1) This section shall apply for KPDES permits issued pursuant to KRS 224.16-050(1).

(2) The cabinet shall issue its final decision on a complete permit application within 180 calendar days after receipt of an administratively complete permit application, except as provided in Section 16 of this administrative regulation.

(3) A complete permit application shall contain all the administrative and technical information required by applicable statutes and administrative regulations.

(4) Within thirty (30) calendar days of initial receipt of an application for a KPDES permit, the cabinet shall notify the applicant as to whether the application is administratively complete, or if not complete, of the deficiencies that make the application administratively incomplete. A determination that the application is administratively complete shall not mean that the application is complete in every detail, nor shall it mean that any aspect of the application is technically sufficient or approvable.

(5) If the application is determined to be administratively incomplete, the applicant shall correct identified deficiencies within thirty (30) calendar days of the date of notification. If the applicant does not correctly identify deficiencies within the time frame, the cabinet may return the application, and the fee may be retained by the cabinet.

(6) After the notification that the application is administratively complete, if the cabinet determines that the application is technically deficient, the cabinet shall notify the applicant of deficiencies that make the application technically incomplete or unapprovable. The applicant shall correct the technical deficiencies within thirty (30) days of the notification, or other time as agreed upon by the applicant and cabinet. If the technical deficiencies are not corrected within thirty (30) calendar days or the agreed upon time frame, the cabinet may deny the permit, and the fee may be retained by the cabinet.

Section 16. Timetable Exclusions. The time periods that shall not be included in the cabinet's consideration of its decision on a KPDES shall include:

(1) Time waiting for the applicant to respond to a notice of deficiency;

(2) Time during which the permit, application, decision, or related matter is held in litigation, including administrative hearings;

(3) Time during which an opportunity for public hearing or public comment period on a draft or proposed permit is given, and time during which a public hearing is scheduled and held;

(4) Time waiting for federal, state, or local agencies to comment on the permit or to respond to written requests from the cabinet for additional information; and

(5) Other times as agreed to by the applicant and the cabinet.

Section 17. Timetable Extensions.

(1) If two (2) or more permits for a facility, site, source, construction project, or other entity are required from the cabinet, the cabinet may coordinate the issuance of the permits, establishing different review and action times that shall be accomplished by the cabinet or applicant. If the permits are coordinated, the cabinet shall so notify the applicant and indicate the time frames under which the intermediate and final permit actions shall be accomplished. The established time frame for final action shall not exceed the last date for action that is provided for under applicable statutes and administrative regulations, based on all applications being considered and their filing dates.

(2) The applicant and the cabinet may agree that the timetables or review times established in this administrative regulation may be extended.

Section 18. Substitutions, Exceptions, and Additions to Cited Federal Regulations.

(1) "Waters of the Commonwealth" shall be substituted for "Waters of the United States" in the federal regulations cited in this administrative regulation.

(2) "Cabinet" shall be substituted for "Director", "EPA", and "Regional Administrator" in the federal regulations cited in this administrative regulation.

(3) "KPDES" shall be substituted for "NPDES" in the federal regulations cited in this administrative regulation.

(4) "Mail", as used in 40 C.F.R. 124.10 and cited in Section 5 of this administrative regulation, shall include electronic transmissions.

History

RELATES TO: KRS 224.1-010, 224.1-070, 224.1-400, 224.10-420, 224.10-440, 224.10-470, 224.70-100, 224.70-120, 224.99-010, 40 C.F.R. 124
STATUTORY AUTHORITY: KRS 224.10-100, 224.10-220, 224.16-050, 224.70-110, 33 U.S.C. 1251-1387
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(19) authorizes the cabinet to issue, continue in effect, revoke, modify, suspend or deny permits to discharge into any waters of the Commonwealth. KRS 224.16-050(1) authorizes the cabinet to issue federal permits pursuant to 33 U.S.C. 1342(b) of the Federal Water Pollution Control Act, 33 U.S.C. 1251-1387. KRS 224.10-220 requires the cabinet to establish timetables for the issuance of all permits by the cabinet, except those permits for which a timetable is established by statute. This administrative regulation establishes timetables for permits that are required by 401 KAR Chapter 5 and the procedures for receiving permit applications, preparing draft permits, issuing public notice, inviting public comment, and holding public hearings on draft permits.
History: 401 KAR 005:075. 9 Ky.R. 874; 1136; eff. 6-1-1983; 12 Ky.R. 554; eff. 12-10-1985; 20 Ky.R. 3285; 21 Ky.R. 432; eff. 8-24-1994; 29 Ky.R. 1087; 1597; eff. 12-18-2002; TAm eff. 8-9-2007; 36 Ky.R. 2119-M; 2339; 37 Ky.R. 45; eff. 8-5-2010; 44 Ky.R. 2625; 45 Ky.R. 1355; eff. 11-1-2018; Crt eff. 10-28-2025.

401 KAR 5:080 Criteria and standards for the Kentucky Pollutant Discharge Elimination System {#sec-401-kar-5-080 omnilex-key=us-ky-regs-official--title-401--401 KAR 5:080}

Section 1. Definitions. Definitions established in 40 C.F.R. 122.2 shall apply for the interpretation of the federal regulations cited within this administrative regulation.

Section 2. Criteria and standards for technology-based treatment standards shall be as established in:

(1) 40 C.F.R. 125.1;

(2) 40 C.F.R. 125.2; and

(3) 40 C.F.R. 125.3.

Section 3. Criteria for issuance of permits to aquaculture projects shall be as established in:

(1) 40 C.F.R. 125.10; and

(2) 40 C.F.R. 125.11.

Section 4. Criteria and standards for determining fundamentally different factors shall be as established in:

(1) 40 C.F.R. 125.30;

(2) 40 C.F.R. 125.31; and

(3) 40 C.F.R.125.32.

Section 5. Criteria for determining alternative effluent limitations for the control of a thermal component of a discharge shall be as established in:

(1) 40 C.F.R. 125.70;

(2) 40 C.F.R. 125.71;

(3) 40 C.F.R. 125.72; and

(4) 40 C.F.R. 125.73.

Section 6. Special KPDES program requirements related to new sources and new discharges shall be as established in 40 C.F.R. 122.29.

Section 7. Toxic pollutants shall be as established in 40 C.F.R. 401.15..

Section 8. The level of effluent quality attainable through the application of secondary or equivalent treatment shall be as established in:

(1) 40 C.F.R. 133.100;

(2) 40 C.F.R. 133.101;

(3) 40 C.F.R. 133.102;

(4) 40 C.F.R. 133.103;

(5) 40 C.F.R. 133.104; and

(6) 40 C.F.R. 133.105.

Section 9. Modifications, Exceptions, and Additions to Cited Federal Regulations.

(1) "Waters of the United States" shall be modified to "Waters of the Commonwealth" in the federal regulations cited in this administrative regulation;

(2) "Director" shall be modified to "cabinet" in the federal regulations cited in this administrative regulation;

(3) "NPDES" shall be modified to "KPDES" in the federal regulations cited in this administrative regulation; and

(4) The notification requirements related to applications for a thermal variance shall be modified to add the notification of interstate agencies in 40 C.F.R. 125.72(d).

History

RELATES TO: KRS 224.10-110, 224.18-760, 40 C.F.R. 122.21, 122.29, 125.1, 125.2, 125.3, 125.10, 125.11, 125.31, 125.32, 125.70, 125.71, 125.72, 125.73, 401.15
STATUTORY AUTHORITY: KRS 224.10-100, 224.16-050, 224.70-100, 224.70-110, 40 C.F.R. 122, 125
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 authorizes the cabinet to issue, continue in effect, revoke, modify, suspend or deny under conditions as the cabinet may prescribe, permits to discharge into any waters of the Commonwealth. KRS 224.16-050 authorizes the cabinet to issue federal permits pursuant to 33 U.S.C. 1342(b) of the Federal Water Pollution Control Act, 33 U.S.C. 1251-1387. This administrative regulation establishes the criteria and standards for the KPDES permitting system.
History: 401 KAR 005:080. 9 Ky.R. 879; 1141; eff. 6-1-1983; 12 Ky.R. 559; eff. 12-10-1985; 20 Ky.R. 3290; 21 Ky.R. 436; eff. 8-24-1994; TAm eff. 8-9-2007; 35 Ky.R. 2559; 36 Ky.R. 403; eff. 9-25-2009; 44 Ky.R. 2625; eff. 11-1-2018; Crt eff. 10-28-2025.

401 KAR 5:310 Surface water permit fees {#sec-401-kar-5-310 omnilex-key=us-ky-regs-official--title-401--401 KAR 5:310}

Section 1. Individual Permit Fees. The fee for review of an individual permit to discharge pollutants into waters of the Commonwealth shall be as established in Table 1 in this section.

Section 2. General Permit Fees. The fee for review of a general permit notice of intent to discharge pollutants into waters of the Commonwealth shall be as established in Table 2 of this section.

Section 3. Kentucky No Discharge Operational Permit (KNDOP) Fees. The fee for review of a KNDOP shall be as established in Table 3 of this section.

Section 4. Multiple Categories. The cabinet shall impose the single maximum fee if a discharge falls into multiple categories.

Section 5. Short Term Permits. If the cabinet issues a permit that is effective for less than five (5) years, the fee assessed pursuant to this administrative regulation shall be adjusted proportionately to the effective term of the permit.

Section 6. Publicly Owned Facilities. A publicly owned facility shall be exempt from the fees established in this administrative regulation pursuant to KRS 224.10-100(20).

Section 7. Nonprofit Organizations.

(1) A qualifying nonprofit organization shall be charged the fee established by KRS 224.16-050(5).

(2) A nonprofit organization requesting a reduced fee pursuant to KRS 224.16-050(5) shall submit proof of Internal Revenue Code 26 U.S.C. 501(c)(3) status with the permit application.

(3) A nonprofit organization that does not qualify for the fee established in KRS 224.16-050(5) shall be charged the applicable fee established in Sections 1 through 5 of this administrative regulation.

Section 8. Payment.

(1) Check or money order shall be made payable to the Kentucky State Treasurer.

(2)

(a) The applicant shall submit with the application a filing fee equal to twenty (20) percent of the permit fee.

(b) An application shall not be complete before the cabinet has received the filing fee.

(3) The cabinet shall retain the filing fee if:

(a) The cabinet denies the issuance, reissuance, or modification of the permit;

(b) The cabinet finds that the application is not complete pursuant to 401 KAR 5:075, Section 1, and returns the application as incomplete after the applicant has failed to submit a complete application within thirty (30) days following mailing of a notice of deficiency by the cabinet; or

(4)

(a) The cabinet shall notify the applicant of the permit fee due after the cabinet has determined that the permit shall be issued, but before the permit shall be issued.

(b) The applicant shall submit the permit fee within thirty (30) days of the notification required by paragraph (a) of this subsection.

(5) The cabinet shall not issue a permit before receipt of the applicable permit fee.

History

RELATES TO: KRS 224.01-010, 224.10-110, 224.16-050, 224.70-100, 224.70-110, 26 U.S.C. 501(c)(3), EO 2009-538
STATUTORY AUTHORITY: KRS 224.10-100, 224.10-230(3), 224.16-050, 224.70-120, 40 C.F.R. 122.28(b)(2), 33 U.S.C. 1323(a), EO 2009-538
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-230(3) authorizes the cabinet to amend, by administrative regulation, the discharge permit fees authorized by KRS 224.70-120. KRS 224.10-100(20) authorizes the cabinet to establish, by administrative regulation, a fee for the cost of processing an application for a permit. 40 C.F.R. 122.28(b)(2)(i) requires the cabinet to establish that a complete and timely filed notice of intent to be covered in accordance with general permit requirements, fulfills the requirements for a permit application. EO 2009-538, effective June 12, 2009, establishes the new Energy and Environment Cabinet. This administrative regulation establishes fees for reviewing surface water permits.
History: 36 Ky.R. 486; 822; eff. 11-17-2009; Crt eff. 5-11-2018; TAm eff. 4-3-2025; Crt eff. 4-18-2025.

401 KAR 5:320 Wastewater Laboratory Certification Program {#sec-401-kar-5-320 omnilex-key=us-ky-regs-official--title-401--401 KAR 5:320}

Section 1. Requirement for Acceptance of Environmental Data. In accordance with KRS 224.10-670(2), environmental data from analyses and laboratory tests submitted to the cabinet for activities subject to 33 U.S.C. 1342 shall be performed:

(1) By a certified wastewater laboratory; and

(2) In compliance with:

(a) An analytical method in 40 C.F.R. Part 136 or as established in the applicable permit;

(b) This administrative regulation; and

Section 2. Certification Requirements. The requirements established in this section shall apply to a wastewater laboratory seeking certification.

(1) Application for certification shall be made on the Kentucky Wastewater Laboratory Certification Program Application for Kentucky Laboratory Certification, DEP No. DOW0503, and shall include all information required by that form, and shall be submitted with the applicable fee as established in Section 6 of this administrative regulation as follows:

(a) If in paper form, to: Kentucky Division of Water; Attn: Laboratory Certification; 300 Sower Boulevard; Frankfort, Kentucky 40601; or

(b) If in electronic form, via the cabinet's Web site: www.water.ky.gov.

(2) The wastewater laboratory shall apply for certification for each analysis category and for each method-analyte pairing for which the wastewater laboratory intends to perform an analysis.

Section 3. Term of Certification Periods for a General Wastewater Laboratory.

(1) The initial certification period for a general wastewater laboratory shall be from January 1, 2014, until December 31, 2015, and subsequent certification periods shall be consecutive two (2) year periods, beginning January 1, 2016.

(2) If, beginning January 1, 2016, a general wastewater laboratory applies for initial certification of the wastewater laboratory or for certification for a new method-analyte pairing, the initial certification period shall be the two (2) year period as established in subsection (1) of this section, based upon the date of application receipt by the cabinet.

Section 4. Term of Certification Periods for a Field-Only Wastewater Laboratory.

(1) The initial certification period for a field-only wastewater laboratory shall be from January 1, 2015, until December 31, 2016, and subsequent certification periods shall be consecutive two (2) year periods, beginning January 1, 2017.

(2) If, beginning January 1, 2017, a field-only wastewater laboratory applies for initial certification of the wastewater laboratory or for certification for a new method-analyte pairing, the initial certification period shall be the two (2) year period as established in subsection (1) of this section, based upon the date of application receipt by the cabinet.

Section 5. Due Date for Certification Renewal Applications.

(1) If a Kentucky Wastewater Laboratory Certification Program Application for Kentucky Laboratory Certification for certification renewal is received by the cabinet by November 15 of the odd-numbered year of the current certification period for a general wastewater laboratory, or November 15 of the even-numbered year of the current certification period for a field-only wastewater laboratory, the application shall be considered timely submitted, and the wastewater laboratory's certification shall continue in effect until the cabinet acts upon the application, unless the certification is otherwise revoked.

(2) If a Kentucky Wastewater Laboratory Certification Program Application for Kentucky Laboratory Certification for certification renewal is received by the cabinet after November 15 but on or before December 15 of the odd-numbered year of the current certification period for a general wastewater laboratory, or after November 15 but on or before December 15 of the even-numbered year of the current certification period for a field-only wastewater laboratory, the application shall not be considered timely submitted, and shall be subject to the surcharge established in Section 6(4) of this administrative regulation. The wastewater laboratory's certification shall continue in effect until the cabinet acts upon the application, unless the certification is otherwise revoked.

(3) If a Kentucky Wastewater Laboratory Certification Program Application for Kentucky Laboratory Certification for certification renewal is received by the cabinet after December 15 of the odd-numbered year of the current certification period for a general wastewater laboratory, or after December 15 of the even-numbered year of the current certification period for a field-only wastewater laboratory, the application shall not be considered timely submitted, and shall be subject to the surcharge established in Section 6(5) of this administrative regulation. The wastewater laboratory's certification shall expire after December 31 of that odd-numbered year for a general wastewater laboratory, or after December 31 of that even-numbered year for a field-only wastewater laboratory, and shall not be valid until the cabinet acts upon the renewal application.

Section 6. Annual Certification Fees.

(1) The annual certification fees for wastewater laboratory certification shall be established in Table 1 of subsection (2) of this section and shall include:

(a) A nonrefundable administrative fee; and

(b) A fee for each applicable analysis category.

(2) If a follow-up audit is performed to verify the correction of a deficiency identified by an audit pursuant to Section 8 of this administrative regulation, an additional audit fee, established in Table 1, shall be assessed.

(3) The applicable certification fee shall be due by November 15 of each year. In odd-numbered years of the certification period for a general wastewater laboratory, or in even-numbered years of the certification period for a field-only wastewater laboratory, the applicable certification fee shall be submitted concurrent with the renewal certification Kentucky Wastewater Laboratory Certification Program Application for Kentucky Laboratory Certification.

(4)

(a) If a fee is received by the cabinet after November 15 but on or before December 15, the wastewater laboratory shall incur a surcharge of fifteen (15) percent of the applicable certification fee (administrative fee plus analysis category fee).

(b) Payment of this surcharge shall be due thirty (30) days after notice is provided by the cabinet.

(5) If a fee is received by the cabinet after December 15, the wastewater laboratory shall incur a surcharge of twenty-five (25) percent of the applicable certification fee.

(a) The wastewater laboratory's certification shall expire after December 31 of that year and shall not be valid until the applicable certification fee and the surcharge are received by the cabinet.

(b) Payment of this fee and surcharge shall not reinstate certification for failure to timely submit an application for certification renewal pursuant to the expiration established in Section 5(3) of this administrative regulation.

(6) A wastewater laboratory seeking or obtaining equivalency of certification shall receive a twenty (20) percent reduction of the certification fee.

(7) An in-state laboratory that is also certified for drinking water analysis, as established in 401 KAR 8:040, shall receive a twenty (20) percent reduction of the certification fee.

(8) A wastewater laboratory that provides only field analysis shall be exempt from the annual administrative fee established in Table 1 of subsection (2) of this section.

(9) A wastewater laboratory operated by a facility that has been issued a Kentucky Pollutant Discharge Elimination System permit and that is providing only field analysis for only its own facility shall be exempt from all fees established in this administrative regulation.

(10) A wastewater laboratory operated by a municipality that provides analysis for only its own facility shall receive a reduction to the administrative fee established in Table 1 of subsection (2) of this section, based on its maximum permitted flow value as established in this subsection.

(a) Less than or equal to 0.10 million gallons per day (MGD) shall indicate a 100 percent reduction (no administrative fee).

(b) Less than or equal to 0.50 MGD but greater than 0.10 MGD shall indicate a seventy-five (75) percent reduction.

(c) Less than or equal to one and zero tenths (1.0) MGD but greater than zero and five tenths (0.5) MGD shall indicate a fifty (50) percent reduction.

(d) Less than or equal to two and zero tenths (2.0) MGD but greater than one and zero tenths (1.0) MGD shall indicate a twenty-five (25) percent reduction.

(e) Greater than two and zero tenths (2.0) MGD shall indicate a ten (10) percent reduction.

(11) If more than one (1) reduction pursuant to subsections (6) through (10) of this section applies, only the greatest reduction shall be taken.

Section 7. Interim Certification.

(1) If a wastewater laboratory demonstrates that it complies with the requirements established in subparagraphs (a) through (d) of this subsection for a method-analyte pairing, the cabinet shall approve interim certification for that method-analyte pairing.

(a) All information required by the Kentucky Wastewater Laboratory Certification Program Application for Kentucky Laboratory Certification shall be submitted to the cabinet.

(b) The appropriate fee shall be submitted to the cabinet.

(d) A proficiency test study sample shall be analyzed by the primary analyst or technician within the last year and the results shall be within the acceptance limits specified by a proficiency test study provider approved by the American Association for Laboratory Accreditation.

(2) A wastewater laboratory with interim certification may analyze samples for that method-analyte pairing for compliance purposes.

Section 8. Audits.

(1) A certified wastewater laboratory shall allow a cabinet auditor to conduct, and shall participate in, an on-site audit during normal business hours.

(2) Wastewater laboratory certification records and supporting documentation shall be retained for five (5) years or until the next on-site audit, whichever is longer.

(3) If the cabinet identifies a deficiency, the certified laboratory shall correct or otherwise address the deficiency within thirty (30) days of receipt of notice of the deficiency.

(4)

(a) If an on-site audit of a wastewater laboratory located outside of Kentucky is conducted by the cabinet, the wastewater laboratory shall bear the reasonable cost of the audit.

(b) Payment shall be due thirty (30) days after notice of this cost is provided by the cabinet.

Section 9. Full Certification Requirements.

(1) If, after an on-site audit and review of submitted information, all requirements established by this administrative regulation for a method-analyte pairing have been met, the cabinet shall approve full certification for that method-analyte pairing.

(2) To maintain full certification for the method-analyte pairing, the wastewater laboratory shall:

(a) Maintain compliance with the requirements established by this administrative regulation, based upon the cabinet's review of requested documentation, on-site audit inspection, or both;

(b) Analyze a proficiency test study sample at least annually by the primary analyst or technician and the results shall be within the acceptance limits specified by a proficiency test study provider approved by the American Association for Laboratory Accreditation. If the wastewater laboratory fails a proficiency test study, the wastewater laboratory shall, within ninety (90) days after receiving notice of the failed proficiency test study, analyze a second proficiency test study with the results within the acceptance limits specified by an approved proficiency test study provider;

(c) Notify the cabinet within thirty (30) calendar days of a change in the personnel, equipment, analytical method, or laboratory location identified in its Kentucky Wastewater Laboratory Certification Program Application for Kentucky Laboratory Certification;

(d) Submit documentation or data required by this administrative regulation; and

(e) Submit to the cabinet all fees by the deadlines established in this administrative regulation.

Section 10. Provisional Certification.

(1) The cabinet shall, upon becoming aware of a failure of a wastewater laboratory to comply with one (1) or more of the requirements established in Section 9(2) of this administrative regulation, provide written notice to the wastewater laboratory of the deficiency and of the cabinet's intent to change the certification status to provisional certification.

(2) If the deficiency relates to a specific method-analyte pairing, the cabinet may change the status of the wastewater laboratory's certification to provisional certification. If the status is changed to provisional certification, this changed status shall be for only the analyte that failed to comply with the requirements of Section 9(2) of this administrative regulation, unless the cabinet had certified a group of related analytes based on a limited number of analytes in the group.

(3) The wastewater laboratory shall submit to the cabinet a written corrective action plan to address this deficiency within thirty (30) days of receipt of the notice of intent from the cabinet, specifying the immediate and long-term corrective actions that shall be taken.

(4) The wastewater laboratory shall correct this deficiency as soon as reasonably possible. If the deficiency is not corrected within thirty (30) days of receipt of the notice of intent, the cabinet shall change the certification status to provisional certification, and shall provide written notice to the wastewater laboratory of this action.

(5) A wastewater laboratory with provisional certification may continue to analyze a sample for compliance purposes, but shall notify its client of the wastewater laboratory's provisional certification status prior to conducting an analysis for that client and shall provide that information in writing to the client.

(6) A wastewater laboratory with provisional certification shall correct the deficiency as soon as is reasonably possible, but within three (3) months of written notification from the cabinet of the change to provisional certification status.

(7) The cabinet shall restore the wastewater laboratory's provisional certification status to full certification upon making a determination that the deficiency resulting in the provisional certification status has been corrected and shall provide written notice to the wastewater laboratory of this action.

Section 11. Certification Revocation.

(1) The cabinet may immediately revoke a wastewater laboratory's certification for:

(a) Failing to use an analytical method established in 40 C.F.R. Part 136 or in the applicable permit;

(b) Reporting proficiency test study data from another laboratory as its own data;

(d) Endangering public health or the environment through an operation associated with the wastewater laboratory;

(e) Refusing to allow or participate in an on-site audit conducted by the cabinet; or

(f) Persistent failure to report accurate compliance data to the cabinet.

(2) If the cabinet revokes a wastewater laboratory's certification pursuant to subsection (1) of this section, the cabinet shall immediately notify the wastewater laboratory of this action and provide written notice to the wastewater laboratory of this action.

(3) If a wastewater laboratory has not corrected the deficiency resulting in the provisional certification status within three (3) months of written notification from the cabinet of the change to provisional certification, the cabinet shall provide written notice to the wastewater laboratory of the cabinet's intent to revoke the wastewater laboratory's certification for any method-analyte pairing involved in the deficiency.

(4) The wastewater laboratory may request, in writing, a redetermination of the cabinet's intent to revoke certification pursuant to subsection (3) of this section.

(a) If a redetermination is requested, the request shall be made within thirty (30) days of receipt of the notice of intent to revoke.

(b)

This request shall be submitted to the cabinet and shall explain the basis for the redetermination request and, if appropriate, include a written corrective action plan to address the deficiency identified in the cabinet's notice of intent to revoke.
The request shall be signed by a responsible official of the wastewater laboratory.

(5) The cabinet, having received a request for redetermination pursuant to subsection (4) of this section, shall make a final determination whether or not to continue provisional certification, approve certification, or revoke certification, and shall provide written notice to the wastewater laboratory of this action.

(6) If, within thirty (30) days of receipt of the notice of intent to revoke pursuant to subsection (3) of this section, the wastewater laboratory does not request a redetermination, the cabinet shall revoke the wastewater laboratory's certification and provide written notification to the wastewater laboratory of this action.

Section 12. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Commonwealth of Kentucky Wastewater Laboratory Certification Manual", August 2018; and

(b) "Kentucky Wastewater Laboratory Certification Program Application for Kentucky Laboratory Certification", DEP No. DOW0503 (March 2018).

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Water, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. This material may also be obtained through the Division of Water's Web site at http://water.ky.gov.

History

RELATES TO: KRS 224.1-010, 224.10-100, 224.10-670, 224.70-100, 224.70-110, 40 C.F.R. 136, 33 U.S.C. 1342
STATUTORY AUTHORITY: KRS 224.10-670
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-670 authorizes the cabinet to promulgate administrative regulations establishing standards for the operation of laboratories, fees for certification and competency evaluation of those laboratories, issuance of certificates of competency, and a certification program for laboratories that submit environmental data as it relates to analyses and laboratory tests for activities subject to 33 U.S.C. 1342. This administrative regulation establishes the wastewater laboratory certification program, standards for the certification of wastewater laboratories, and fees for certification and evaluation of wastewater laboratories.
History: 401 KAR 005:320. 27 Ky.R. 2603; 3122; 3239; eff. 6-8-2001; 35 Ky.R. 2337; 2768; 36 Ky.R. 25; eff. 7-31-2009; TAm eff. 4-4-2011; 39 Ky.R. 2094; 40 Ky.R. 33; 282; eff. 9-5-2013; TAm eff. 7-8-2016; 44 Ky.R. 2631; 45 Ky.R. 696, 1012; eff. 11-1-2018; Crt to Am, filling deadline 4-28-2027.

Chapter 6 Water Wells

401 KAR 6:001 Definitions for 401 KAR Chapter 6 {#sec-401-kar-6-001 omnilex-key=us-ky-regs-official--title-401--401 KAR 6:001}

Section 1. Definitions.

(1) "Abandon" means to seal or plug a well or borehole to prevent entry of surface water or contaminants and to prevent mixing of water from different water-bearing formations.

(2) "Annular space" means the opening between a well-bore or excavation and the well casing or between an outer casing pipe and an inner casing pipe or liner pipe.

(3) "Aquifer" means a water-bearing formation that transmits water in sufficient quantity to supply a well.

(4) "Base flood elevation" means the elevation of surface water resulting from a flood that has a one (1) percent chance of equaling or exceeding that level in any given year.

(5) "Bedrock" means a consolidated rock exposed at the surface of the earth or overlain by unconsolidated materials or soils.

(6) "Bentonite" means a clay in the montmorillonite series with a predominance of sodium as its major cation, having the property of expanding several times its original volume if saturated, and used to seal or plug wells, well annuluses, and well bores.

(7) "Board" is defined by KRS 223.400(2).

(8) "Bridging" means the deliberate or accidental closing or plugging of a section of a drill hole or annulus, beneath which is an open borehole or unfilled annulus.

(9) "Certified well driller" means a person who has met all requirements of 401 KAR 6:320 and to whom the cabinet has issued a well driller certificate.

(10) "Certified well driller assistant" means a person who has met all requirements of 401 KAR 6:320 and to whom the cabinet has issued a well driller assistant certificate.

(11) "Confining layers" or "confining formation" means a zone of sufficiently low permeability as to impede the vertical migration of groundwater.

(12) "Consolidated formation" means a geological rock formation that has grains that are bonded together.

(13) "Construction":

(a) Means all acts necessary for obtaining groundwater by wells, including drilling or excavation of the well and installation or modification of casing; and

(b) Does not mean the installation of permanent pumps and pumping equipment.

(14) "Direct supervision" means that a certified water well driller oversees and manages the work of the water well driller's assistant, including providing specific instruction regarding the construction, modification, alteration, repair, and abandonment of a water well, but the certified water well driller is not required to provide in-person supervision at the drilling site.

(15) "Driller" means "water well driller" as defined by KRS 223.400(8).

(16) "Drilling derived waste" or "DDW" means soils, drill cuttings, drilling fluids, product-contaminated water, and decontamination rinsate.

(17) "Finished ground surface" means the final or permanent elevation of the ground surface at the site of the well or abandoned borehole.

(18) "Grout-pipe method" means that grout is placed into the borehole or annulus from bottom to top via gravity flow or by pumping through a pipe or funnel-like apparatus.

(19) "High solids sodium bentonite" means bentonite containing a minimum of thirty (30) percent solids.

(20) "Impervious" means a material that will not permit the passage of water at a rate greater than 1 x 10-7 centimeters per second (cm/sec).

(21) "Modification" means a change, replacement, or alteration of the water well.

(22) "Monitoring well" means a well constructed if the actual or intended use in whole or part is the removal of water for sampling, measuring, treating, or pumping for scientific, engineering, or regulatory purposes.

(23) "Perched" means a region in the unsaturated zone separated from an underlying aquifer where the materials are locally saturated because they overlie a confining layer.

(24) "Person" shall be defined by KRS 223.400(5).

(25) "Pit" means a hole, shaft, or cavity in the ground.

(26) "Pitless well adapter" means a device designed for attachment to one (1) or more openings through a well casing.

(27) "Pitless well unit" means an assembly that extends from the upper end of the well casing to above the finished ground surface.

(28) "Potable water" means water that complies with the requirements of 401 KAR Chapter 8, the quality of which is approved by the cabinet for human consumption.

(29) "Sealing materials" means neat cement, cement-bentonite grout, or bentonite.

(30) "Special flood zone" means an area that is subject to a one (1) percent or greater chance of flooding in any given year.

(31) "Special well types" means a well that is:

(a) Bored;

(b) Driven;

(d) Radial collector.

(32) "Static water level" means the level at which water stands in a well when water is not being taken from the aquifer either by pumping or by free flow.

(33) "Unconsolidated formation" means a loose-grained, non-lithified geological formation such as soil, sand, or gravel.

(34) "Undesirable geologic formation" means a geologic formation with physical characteristics or water quality not conducive to the construction and use of a well.

(35) "Undesirable groundwater" means groundwater not suitable for human or animal consumption, irrigation, manufacturing process water, or cooling.

(36) "Water supply well" means "water well" or "well" as defined by KRS 223.400(7).

(37) "Water well driller's assistant" is defined by KRS 223.400(9).

(38) "Well unsuitable for its intended use" means a well:

(a) The use of which has been permanently discontinued;

(b) That is in such a state of disrepair that it cannot be used to supply groundwater;

(d) From which usable groundwater is not obtainable; or

(e) With boreholes that:

Are dry;
Have caved in; or
Are unsuitable for further development and well construction.

History

RELATES TO: KRS 223.400 - 223.460, 223.991
STATUTORY AUTHORITY: KRS 223.420(1)(e), 223.435, 224.10-100, 224.70-100, 224.70-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100, 224.70-100, and 224.70-110 authorize the cabinet to establish administrative regulations to protect water quality. KRS 223.420 requires the cabinet to promulgate administrative regulations to carry out the purposes of KRS 223.405 through 223.460. KRS 223.435 requires the cabinet to promulgate administrative regulations establishing standards of practice for water well construction. This administrative regulation establishes definitions for terms used by the cabinet in 401 KAR Chapter 6.
History: 35 Ky.R. 585; 797; eff. 10-8-2008; Crt eff. 9-5-2018; 46 Ky.R. 628, 1465, eff: 1-3-2020; TAm eff. 4-2-2021.

401 KAR 6:310 Water supply well construction practices and standards {#sec-401-kar-6-310 omnilex-key=us-ky-regs-official--title-401--401 KAR 6:310}

Section 1. General Requirements.

(1) Each water supply well subject to this administrative regulation shall be constructed, modified, or abandoned only by a certified water supply well driller or certified well driller assistant as established in KRS 223.425 and 401 KAR 6:320.

(2) A water supply well driller's assistant shall work under the "direct supervision", as defined by 401 KAR 6:001(14), of a certified water supply well driller.

(3) Well specifications shall be:

(a) Provided by the certified well driller to the well driller's assistant under "direct supervision" as defined by 401 KAR 6:001(14), for the work to be conducted including:

Construction;
Alteration;
Maintenance;
Repair;
Reworking;
Development;
Abandonment; or
Plugging; and

(b) Recorded on the Uniform Kentucky Well Construction Record, which shall be:

Retained by the water supply well driller's assistant; and
Available for inspection upon request by the cabinet.

(4) Changes made to water supply well specifications during any work being conducted on a water supply well shall be:

(a) Approved in advance by a certified waters supply well driller;

(b) Recorded on an amended Uniform Kentucky Well Construction Record;

(d) Available for inspection upon request by the cabinet.

(5) Permanent and temporary water supply wells shall be constructed, modified, and abandoned in a manner that prevents the introduction or migration of contamination to a water-bearing zone or aquifer through the casing, drill hole, or annular materials.

(6) Within sixty (60) days after a water supply well has been completed, modified, or abandoned, the certified water supply well driller shall submit to the cabinet the Uniform Kentucky Well Construction Record or the Uniform Kentucky Well Maintenance and Plugging Record, as appropriate. The report shall include:

(a) All information about the depth and the materials used in the water supply well construction, modification, or abandonment; and

(b) The results of the bacteriological sampling as established in Section 9(6) of this administrative regulation.

(7) Records to water supply well owner. Within sixty (60) days after the water supply well has been completed or modified, the certified water well driller shall provide to the well owner a copy of the:

(a) Uniform Kentucky Well Construction Record or the Uniform Kentucky Well Maintenance and Plugging Record submitted to the cabinet;

(b) Results of bacteriological sample analysis collected in accordance with Section 9(6) of this administrative regulation;

(d) Analytical results if additional water quality analysis is conducted.

(8) Each well constructed or modified shall be tagged with a well identification number tag provided by the cabinet.

(a) An existing well identification number shall be included on the Uniform Kentucky Well Maintenance and Plugging Record for any well being modified or abandoned.

(b) If a well identification number does not exist at the time of modification or abandonment, the well shall be tagged and the well identification number assigned shall be recorded on the Uniform Kentucky Well Maintenance and Plugging Record.

(9) Variances. If conditions exist or are believed to exist that preclude compliance with the requirements established in this administrative regulation, the certified water supply well driller may request a variance prior to well construction, modification, or abandonment. The variance request shall be submitted to the cabinet on the Kentucky Water Well Variance Request form.

(a) The variance request shall include:

A thorough description of the land use at the site and adjacent properties;
The distance between the proposed well location and existing water supply wells and monitoring wells on adjacent properties;
The distance between the proposed well location and potential pollution sources, both on site and on adjacent properties, including septic systems, sewers, and petroleum and chemical storage tanks;
A description of the geologic conditions at the site, including soil thickness, type of bedrock, perched water, confining zones, and the depth to groundwater;
A summary of the provisions, including the section numbers of this administrative regulation, for which the variance is requested;
A justification for the variance; and

a. The proposed well construction procedures to be used in lieu of compliance with this administrative regulation; and

b. An explanation of how the alternate well construction procedures ensure the protection of the quality of the groundwater and the protection of public health and safety.

(b) Written variance procedure.

The certified water supply well driller shall request a variance by submitting to the cabinet a Water Well Variance Request form signed by the certified water supply well driller and water supply well owner, and shall obtain written cabinet approval before well construction begins.
The cabinet shall notify the applicant in writing within ten (10) days of its decision to either grant or deny the variance.
The cabinet shall not issue a variance if the proposed water supply well construction will not ensure the protection of groundwater quality and public health and safety.

A certified water supply well driller may request a verbal variance for an emergency if the delay incurred due to the written variance procedure in paragraph (b) of this subsection could result in:

a. Loss of access to potable water for the intended user;

b. Failure to address an existing or impending environmental emergency in accordance with KRS 224.1-400; or

c. A risk to public health or safety.

The cabinet shall not issue a variance for an emergency if the proposed water supply well construction will not ensure the protection of groundwater quality and public health and safety.
Within fifteen (15) days of the date the cabinet approves the verbal variance for an emergency, the certified water well driller shall submit to the cabinet a Kentucky Water Well Variance Request form signed by the certified water supply well driller and water supply well owner.

(d) The variance approval shall list the conditions of the variance, including the:

Approved alternate well construction procedures;
Well sampling requirements; and
Requirement to notify surrounding property and well owners of the variance, if applicable.

(e) Within sixty (60) days of completing the well, the certified water supply well driller shall submit to the cabinet a copy of the Kentucky Water Well Variance Request form signed by the certified water supply well driller and the water supply well owner.

(f)

After a variance is issued regarding the location of a well with respect to various pollution sources as established in Section 5(1) of this administrative regulation, water samples from the well shall be collected and analyzed for the parameters stated in the variance approval issued by the cabinet.
The certified water well driller shall submit a copy of the analytical results on the Water Well Bacterial Report and Chain of Custody form to the well owner and the cabinet within ten (10) days of the receipt of the analytical results from the laboratory.

Section 2. Construction Materials and Requirements.

(1) All materials used for the construction, modification, or abandonment of water supply wells shall be approved for use in water wells by the:

(a) National Sanitation Foundation (N.S.F.);

(b) American Society for Testing and Materials (A.S.T.M.); or

(2) Permanent well casing and liners.

(a) Well casing and liners shall be able to withstand the physical forces acting upon them during and following their installation and during their use including forces:

Due to suspension in the borehole, grouting, development, purging, pumping, or sampling; and
Exerted on the well casing and liners by the surrounding geologic materials.

(b) Steel or PVC well casing and liners shall have a minimum inside diameter of four (4) inches, except for driven point wells and jetted wells as established in Section 8(3) of this administrative regulation.

(d) Used, damaged, or contaminated well casing or liner pipe shall not be installed.

(e) Steel well casing and liners.

Steel well casing and liners shall meet or exceed the minimum standards established in Table A of this administrative regulation.
Joints and couplings shall be welded or threaded.
Joints shall be watertight.

(f) PVC well casing and liners.

PVC well casing and liners shall:

a. Meet the minimum standards established in Table B of this administrative regulation;

b. Have a minimum Impact Classification of IC-1 in accordance with A.S.T.M. Standard F480-14; and

c. At a minimum, meet:

(i) A.S.T.M. Specification D1784-11 or F480-14 found in A.S.T.M. Specification D1784-11, Standard Specification for Rigid Poly (Vinyl Chloride) (PVC) Compounds and Chlorinated Poly(Vinyl Chloride) (CPVC) Compounds and A.S.T.M. Specification F480-14, Standard Specification for Thermoplastic Well Casing Pipe and Couplings Made in Standard Dimension Ratios (SDR), SCH 40 and SCH 80;

(ii) N.S.F. Standard 14-2018 for potable water applications found in N.S.F. Standard 14-2018, Plastics Piping System Components and Related Materials; and

(iii) N.S.F. Standard 61-2018, Drinking Water System Components – Health Effects.

Joints and couplings shall be welded, cemented, or threaded.
Joints shall be watertight.
PVC casing shall not be driven or pushed by force of the rig, either by direct hydraulic force or by hammer.

(3)

(a) Temporary outer casing. Temporary outer casing used during well construction shall be sufficiently strong to permit installation without distorting or rupturing, and shall be removed upon well completion.

(b) If temporary outer casing is to be used as permanent outer casing, the temporary outer casing shall be grouted in place.

(4) Well screens.

(a)

Well screens shall be capable of withstanding the stress to which the pipe will be subjected and the corrosiveness of the water with which it comes in contact.
Used, damaged, or contaminated well screens shall not be installed.

(b) Steel or PVC well screens with a minimum inside diameter of four (4) inches shall be installed, except for bored, driven, or jetted wells.

Installed in accordance with the manufacturer's specifications; and
Centered in the borehole.

(d) Steel screens. Joints and couplings shall be welded or threaded.

(e) PVC screens shall:

Have minimum Standard Dimension Ratio (SDR) 26;
Have a minimum Impact Classification of IC-1 in accordance with A.S.T.M. Standard F480-14;
At a minimum, meet:

a. A.S.T.M. Specification D1784-11 or F480-14 found in A.S.T.M. Specification D1784-11, Standard Specification for Rigid Poly (Vinyl Chloride) (PVC) Compounds and Chlorinated Poly(Vinyl Chloride) (CPVC) Compounds and A.S.T.M. Specification F480-14, Standard Specification for Thermoplastic Well Casing Pipe and Couplings Made in Standard Dimension Ratios (SDR), SCH 40 and SCH 80; and

b. N.S.F. Standard 14-2018 for potable water applications found in N.S.F. Standard 14-2018, Plastics Piping System Components and Related Materials and rated potable water (PW) or well casing (WC); and

Joints and couplings shall be welded, cemented, or threaded.

(f) Screen slot size shall be selected to prevent the entry of sediment or other harmful material into the well.

(5) Air rotary drilling. Water shall be injected into the air stream at a rate sufficient to eliminate dust and to keep the borehole clean of cuttings.

(6) Mud rotary drilling. Pits to contain or re-circulate drilling fluids shall be constructed in a manner as to isolate the drilling fluid from runoff to a stream or other waterway.

(7) Materials containing lead shall not be used in the construction of a water supply well.

Section 3. Sealing Materials.

(1) Sealing materials and additives that control or affect setting times or physical properties of the sealing materials shall be mixed in accordance with the manufacturer's specifications.

(2) Application. Grouting shall be performed using the grout-pipe method or a pressure grouting device to add the sealing materials and other materials used to seal the annulus from the bottom of the annulus upward in one (1) continuous operation until the annulus is filled to two (2) feet below the surface or to the point of pitless adapter attachment. If temporary or permanent outer casing is used, sealing materials shall be added prior to installing the inner casing.

(a) Cement and concrete grout. The appropriate type of neat cement and concrete grout for the conditions present in the well shall be used in accordance with the manufacturer's specifications and this subsection.

(b) Neat cement-bentonite grout. Neat cement-bentonite grout shall set for a minimum of seventy two (72) hours prior to resuming drilling operations.

Bentonite grout shall set until the slurry has hydrated according to the manufacturer's specifications.
Bentonite grout shall not be used if chlorides in groundwater exceed 1,000 parts per million (ppm).

(d) Reduced setting time. Setting time may be reduced with additives if used in accordance with the manufacturer's specifications.

(e) Bentonite in pellet, chip, or granular form.

If bentonite pellets, chips, or granules are placed above the water table:

a. Dry bentonite pellets, chips, or granules shall be placed in increments not greater than two (2) feet in thickness to provide proper hydration and prevent bridging; and

b. Each increment shall be hydrated prior to the continued placement of dry bentonite pellets, chips, or granules.

Bentonite pellets, chips, or granules shall not be used if chlorides in groundwater exceed 1,000 parts per million (ppm).

(f) Construction water. Water used in the drilling or decontamination process shall be potable.

(g)

Drill cuttings. Clay, shale, or limestone drill cuttings may be used if cuttings are allowed to seal portions of the annulus.
Sandstone cuttings shall not be used.

Section 4. Design Factors. Each well shall be constructed to include:

(1) Natural protection. The well shall be located to protect groundwater quality and public health and safety;

(2) Geologic formations.

(a) The well construction shall be adapted to the local or site-specific geologic formations and groundwater conditions.

(b) Undesirable groundwater shall be cased off or otherwise prevented from contributing to a well;

(3) Capacity. The well shall be constructed to optimize yield while maintaining the safe functioning and integrity of the aquifer;

(4) Pitless well adapters.

(a) A well casing shall not be cut off or cut into below finished ground surface except to install a pitless well adapter, a pitless well unit, or to make modifications.

(b) Construction or installation of pitless well adapters or pitless well units shall provide a leak-proof seal. If a frost-free hydrant is installed, a Double Check Valve Backflow Preventer that meets the specifications of American Society of Sanitary Engineering (A.S.S.E.) 1015-2011 Performance Requirements for Double Check Backflow Prevention Assemblies shall be installed between the pitless adapter and the frost-free hydrant;

(5) Flowing artesian wells. A flowing artesian well shall be constructed to:

(a) Maintain the head pressure within the aquifer; and

(b) Prevent an uncontrolled discharge of groundwater into the environment; and

(6) The well shall be constructed to allow access for repairs, maintenance, treatment, and inspection.

Section 5. Setback requirements.

(1) Wells shall be installed with the minimum lateral distances between the well and potential pollution sources established in Table C of this administrative regulation.

(2) The certified water supply well driller shall evaluate land-use activities, both on the property on which the well is to be located and on adjacent properties, and identify other potential pollution sources not listed subsection (1) of this section.

(3) If the unconsolidated material is less than twenty (20) feet thick and composed of predominantly sand or gravel, the minimum lateral distances established in subsection (1) of this section shall be doubled.

(4) A well may be constructed in an identified special flood hazard area if an alternate site does not exist.

(5) The casing shall be terminated:

(a) A minimum of two (2) feet above the highest base flood elevation at the site; and

(b) Any known conditions of flooding by drainage or run-off from the surrounding land.

(6) The well extended vertically shall clear a projection from a building by a minimum of five (5) feet.

(7) Wells shall not be constructed in pits or basements.

Section 6. Wells Drilled into Consolidated Formations Using the Cable Tool, Air Rotary, Mud Rotary, Reverse Rotary, or Sonic Methods.

(1) Borehole construction.

(a) The diameter of the borehole shall be a minimum of 1.75 inches greater than the outer diameter of the casing.

(b) Steel casing may be driven or advanced through unconsolidated material without over-drilling using the dry-driven grout method in accordance with Section 8(2) of this administrative regulation.

(c) The borehole diameter of the open-hole portion of the well shall be smaller than the inside diameter of the lowermost permanent casing so that the:

Permanent casing can rest on the shoulder of the open borehole; and
Lower portion of the permanent casing can be properly sealed.

(d) Plumbness and alignment. The borehole shall:

Be sufficiently plumb and straight to receive well casing, liner, and screen without binding; and
Not interfere with the installation and operation of the pump.

(2) Casing installation.

(a) Casing shall extend below the surface a minimum of twenty (20) feet.

(b) Single-cased wells.

If unconsolidated material is thirty (30) feet thick or less, the casing shall be installed to extend a minimum of ten (10) feet into bedrock.
If unconsolidated material is greater than thirty (30) feet thick, the casing shall be installed to extend a minimum of two (2) feet into bedrock.
Permanent casing shall be installed a minimum of two (2) feet below any fractures, crevices, voids, or undesirable geologic formations that may introduce harmful materials, pollutants, or undesirable groundwater to the well.
Undesirable water-bearing formations shall be cased off leaving a minimum of two (2) feet below the bottom of the production zone.

Temporary outer casing shall:

a. Have an inside diameter a minimum of two (2) inches greater than the outside diameter of the inner casing;

b. Be removed prior to well completion; and

c. If temporary outer casing is to be used as permanent outer casing, the temporary outer casing shall be grouted in place.

The inside diameter of permanent outer casing shall be a minimum of two (2) inches greater than the outside diameter of the inner casing.
Permanent inner casing shall be installed in accordance with the requirements established in subsection (2)(b) of this section.

(3) Screen and liner installation.

(a) Screen or liner slot size shall prevent the entry of fine-grained sediment and other anticipated harmful material into the well.

(b) Screens and liners shall conform to the requirements established in Section 2 of this administrative regulation.

(4) Filter pack.

(a) An artificial filter pack shall:

Be of a size that works in conjunction with the well screen to prevent the entry of fine material and sediment into the well;
Be disinfected prior to placement in the well or shall be disinfected in the well; and
Extend a minimum of two (2) feet above the screen.

(b) Filter pack refill pipes may be installed if refill pipes:

Terminate above finished ground surface;
Are provided with a watertight cap; and
Are sealed in the annulus.

(5) Annular seal.

(a) The annulus shall be sealed in a manner that prevents the migration of pollutants through the annulus and by:

Sealing the entire annulus with sealing materials;
Sealing a minimum of the bottom two (2) feet of the annulus between the borehole and the permanent casing and sealing the remainder of the annulus with impervious drill cuttings, sealing materials, native clay, or a combination of these materials; or
Using the methods in subparagraphs 1 or 2 of this paragraph in combination with a mechanical packer.

(b) Single-cased wells.

Open-hole construction.

a. The bottom two (2) feet of the annulus shall be sealed with sealing materials; and

b. The remainder of the annulus shall be filled with drill cuttings, sealing materials, native clay, or a combination of these materials.

Screened construction.

a. The bottom two (2) feet above the filter pack shall be sealed with sealing materials; and

b. The remainder of the annulus shall be filled with drill cuttings, sealing materials, native clay, or a combination of these materials.

Temporary outer casing.

a. The annulus shall be sealed below the temporary outer casing prior to removal of the temporary outer casing; and

b. The remainder of the annulus shall be filled in the zone where temporary outer casing was used upon removal of the temporary outer casing.

Permanent outer casing.

a. The annulus shall be sealed between the borehole and permanent outer casing at the installation of the permanent outer casing;

b. The bottom two (2) feet of the annulus shall be sealed between the bore hole and the permanent outer casing with sealing materials; and

c. The remainder of the annulus shall be filled with drill cuttings, sealing materials, native clay, or a combination of these materials.

Inner casing.

a. The entire annulus shall be sealed around the inner casing, including the annulus between the outer and inner casing;

b. The bottom two (2) feet of the annulus shall be sealed between the outer casing and the inner casing with sealing materials; and

c. The remainder of the annulus shall be filled with drill cuttings, sealing materials, native clay, or a combination of these materials.

Section 7. Wells Drilled in Unconsolidated Formations.

(1) Borehole construction.

(a) The borehole diameter shall be a minimum of four (4) inches greater than the outside diameter of the well casing and screen; or

(b) Steel casing may be driven or advanced without over-drilling using the dry-driven grout method in accordance with Section 8(2) of this administrative regulation.

Be sufficiently plumb and straight to receive well casing, liner, and screen without binding; and
Not interfere with the installation and operation of the pump.

(2) Casing installation.

(a) Single-cased wells. A minimum of twenty (20) feet of permanent casing shall be installed below finished ground surface excluding the screened interval.

(b) Multiple-cased wells.

Temporary outer casing.

a. The inside diameter of temporary outer casing shall be a minimum of four (4) inches greater than the outside diameter of the inner casing.

b. Temporary outer casing shall be removed prior to well completion.

Permanent outer casing. The inside diameter of permanent outer casing shall be a minimum of four (4) inches greater than the outside diameter of the inner casing.
Inner casing. A minimum of twenty (20) feet of permanent inner casing shall be installed below finished ground surface excluding the screened interval.

(3) Screen slot size shall prevent the entry of fine sediment or other harmful material into the well.

(4) Filter pack. The natural formation may be developed to serve as a filter pack, or an artificial filter pack shall be installed.

(a) The artificial filter pack shall:

Be sized to prevent the entry of fine sediment or other harmful material into the well;
Be disinfected prior to placement in the well, or disinfected in place; and
Extend a minimum of two (2) feet above the screen.

(b) Filter pack refill pipes may be installed if they:

Terminate above finished ground surface;
Are provided with a watertight cap; and
Are sealed in the annulus.

(5) Annular seal.

(a) The annulus shall be sealed in a manner that prevents the migration of groundwater and pollutants through the annulus and by:

Sealing the entire annulus with sealing materials;
Sealing the:

a. Two (2) feet of annulus directly above the filter pack with sealing materials; and

b. Remainder of the annulus with drill cuttings, sealing materials, native clay, or a combination of these materials; or

Using the method established in subparagraph 2. of this paragraph in combination with a mechanical packer.

(b) Single-cased wells.

The annulus shall be sealed by sealing the:

a. Entire annulus with sealing materials; or

(i) Two (2) feet of annulus directly above the filter pack with sealing materials; and

(ii) Remainder of the annulus with drill cuttings, sealing materials, native clay, or a combination of these materials.

The annular seal shall extend to a minimum depth of eighteen (18) feet below finished ground surface.

Temporary outer casing.

a. The bottom two (2) feet of the annulus shall be sealed above the filter pack with sealing materials; and

b. The remainder of the annulus shall be sealed below the temporary outer casing with drill cuttings, sealing materials, native clay, or a combination of these materials prior to removal of the temporary outer casing.

Permanent outer casing.

a. The bottom two (2) feet of the annulus shall be sealed between the borehole and permanent outer casing above the filter pack with sealing materials; and

b. The remainder of the annulus shall be sealed between the borehole and permanent outer casing with drill cuttings, sealing materials, native clay, or a combination of these materials at the installation of the permanent outer casing.

Inner casing.

a. The bottom two (2) feet of the annulus shall be sealed between the inner casing and outer casing with sealing materials; and

b. The remainder of the annulus shall be sealed between the inner casing and outer casing with drill cuttings, sealing materials, native clay, or a combination of these materials.

Section 8. Special Well Types. Wells in this classification shall include bored, driven, irrigation, and radial collector wells.

(1) Bored well construction. Bored wells shall be constructed using the concrete-collar or the buried-slab method.

(a) The borehole diameter shall be a minimum of four (4) inches greater than the outside diameter of the well casing or precast concrete tiles used below the buried-slab or concrete-collar method.

(b) Casing materials for bored wells shall consist of pre-cast concrete tiles or corrugated fiberglass casing that meet the material construction standards established in Section 2 of this administrative regulation.

(c) Filter pack. The natural formation may serve as a filter pack, or an artificial filter pack may be installed in the annulus below the buried slab.

An artificial filter pack shall:

a. Be sized to prevent the entry of fine-grained sediment and other material into the well;

b. Be free from clay, silt, or other deleterious material;

c. Be disinfected prior to placement in the well; and

d. Not extend above the buried slab or concrete collar.

Filter pack refill pipes shall terminate above finished ground surface, shall be provided with a watertight cap, and shall be sealed in the annulus.

(d) Bored well construction using the buried-slab method.

The buried slab shall:

a. Be a minimum of ten (10) feet below ground surface;

b. Consist of reinforced concrete constructed without joints; and

c. Have a diameter sufficient to extend to the outer edge of the casing or tiles installed below the buried slab.

The top of the buried slab shall slope away from the center and shall provide a watertight joint where the buried slab rests on the well casing.
A coupling shall be cast in the buried slab in which to install the upper well casing.
The joint between the well casing and coupling shall be water tight.
A bentonite seal shall be:

a. Installed above the buried slab that extends the entire diameter of the borehole; and

b. A minimum of twelve (12) inches thick.

Upper well casing shall:

a. Be installed above the buried slab to extend a minimum of eight (8) inches above the ground surface;

b. Have an inside diameter of at least four (4) inches;

c. Conform to the requirements of Section 2 of this administrative regulation; and

d. Have only threaded or welded joints.

Pitless adapter.

a. A pitless adapter shall be installed so that it provides a leak-proof seal.

b. If a frost-free hydrant is installed, a Double Check Valve Backflow Preventer that meets the specifications of A.S.S.E. 1015-2011 Performance Requirements for Double Check Backflow Prevention Assemblies shall be installed between the pitless adapter and the frost-free hydrant.

The annulus fill for the upper casing above the bentonite seal shall consist of sealing materials or clean, inert earth materials.
A water-tight well cap shall be installed at the top of casing.

(e) Bored well construction with concrete-collar method.

The upper ten (10) feet of the borehole diameter shall be a minimum of six (6) inches greater than the outside diameter of the well casing.
The annular space in the upper ten (10) feet of the borehole between the excavation and the installed concrete collar casing shall be sealed with concrete or sealing materials.
The diameter of the borehole below the grouting shall be a minimum of four (4) inches greater than the outside diameter of the well casing.
The casing shall extend a minimum of eight (8) inches above the finished ground surface.
The cover slab shall be a minimum of four (4) inches thick.
A pipe sleeve shall be cast in place in the slab to accommodate the type of pump or pump piping to be used for the well.
A watertight joint shall be made where the slab rests on the well casing.

(2) Dry-driven grout method.

(a) General.

Steel casing may be driven using the dry-driven grout method.
PVC casing shall not be driven or pushed by force of the rig, either by direct hydraulic force or by hammer.

(b) A pilot hole shall be constructed a minimum of three (3) feet deep and a minimum of six (6) inches larger in diameter than the outside diameter of the casing to be driven.

Dry bentonite granules no less than fifty (50) mesh and no more than eight (8) mesh shall be poured into the pilot hole prior to driving the casing.
Bentonite shall continue to be poured into the pilot hole as the casing is driven and bentonite is drawn into the annulus.

(3) Driven point wells and jetted wells. Driven point wells and jetted wells shall be used for temporary dewatering purposes only.

(a) The well point, drive pipe, and joints shall be structurally suitable to prevent rupture or distortion during driving.

(b) Driven point wells shall have a water-tight cap.

Not supply water for human consumption; and
Be abandoned in accordance with Section 11 of this administrative regulation.

(4) Radial collector wells.

(a) The certified water well driller shall submit plans for a proposed radial collector well to the cabinet and receive written approval prior to construction of a radial collector well.

(b) Factors that shall be considered for approval of a radial collector well include:

Depth of the well;
Types of formations;
The location of the well;
Sources of potential contamination in the area surrounding the well;
Intended use of the well; and
Planned or approved treatment schemes, if applicable.

(5) Irrigation wells.

(a) Irrigation wells shall be constructed with Double Check Valve Backflow Preventers that meet the specifications of the A.S.S.E. 1015-2011 Performance Requirements for Double Check Backflow Prevention Assemblies to prevent reverse flow of discharged water into the wellhead and aquifer.

(b) Reduced Pressure Backflow Preventers that meet the specifications of A.S.S.E. 1013-2011 Performance Requirements for Reduced Pressure Principle Backflow Preventers shall be installed:

Onto irrigation wells that are capable of pumping greater than ten thousand gallons per day or supplying groundwater to center pivot irrigation systems; and
In line between the final discharge point and the well discharge head.

Section 9. Well Finishing, Disinfection, and Testing.

(1) Upper terminal. Upon well completion, the requirements established in this section shall be completed. Upper terminal. The casing shall be terminated:

(a) A minimum of four (4) inches above finished ground surface and shall slope the ground surface away from the well; and

(b) In a flood zone, a minimum of two (2) feet above the highest base flood elevation at the site.

(2) Newly installed water supply wells shall be developed until the column of water in the well is free of visible sediment.

(3) Disinfection. Wells shall be disinfected in accordance with the procedures established in this subsection.

(a) Determine the:

Feet of water in the well by subtracting the static water level from the total depth of the well;
Amount of chlorine disinfectant to use in order to provide a minimum chlorine concentration of 100 parts per million (ppm) in the well as established in this subparagraph.

a. For a four (4) inch-diameter well, there shall be a minimum of three (3) cups of chlorine bleach or two (2) ounces of hypochlorite granules per 150 feet of water in the well.

b. For a six (6) inch-diameter well, there shall be a minimum of three (3) cups of chlorine bleach or two (2) ounces of hypochlorite granules per seventy-five (75) feet of water in the well.

c. For an eight (8) inch-diameter well, there shall be a minimum of three (3) cups of chlorine bleach or two (2) ounces of hypochlorite granules per fifty (50) feet of water in the well.

d. For a twenty-four (24) inch-diameter well, there shall be a minimum of eight (8) cups of chlorine bleach or five (5) ounces of hypochlorite granules per ten (10) feet of water in the well; and

(b) Chlorine disinfection procedure.

Introduce the chlorine or hypochlorite granules into the well;
Circulate the chlorine solution throughout the well for a minimum of thirty (30) minutes, ensuring that the chlorinated water contacts all parts of the well casing, borehole, discharge pipes, and all internal well components;
Allow chlorinated water to stand in the well for a minimum of thirty (30) minutes;
After the chlorinated water solution has stood in the well for a minimum of thirty (30) minutes, purge the well of all chlorinated water; and.
Chlorinated water shall:

a. Be discharged to the ground in a manner that prevents environmental harm; and

b. Not be discharged to a surface water body.

(4) A sanitary seal or watertight well cap shall be installed.

(5) Vents.

(a) A vent shall consist of a pipe:

That extends above the top of the well and above base flood elevation;
With the open end turned down; and
The open end shall be covered with twenty-four (24) mesh or finer screen of durable material.

(b) For wells with naturally occurring methane, a vent shall be installed.

(6) Bacteriological sampling.

(a) A well for potable use shall be analyzed for E. coli within thirty (30) days of the completion of the well.

(b) The sample shall not be collected until all residual chlorine has been purged from the well.

(d) Samples for E. coli shall be:

Delivered to the laboratory within six (6) hours of the time they are collected;
Kept at four (4) degrees Centigrade (forty (40) degrees Fahrenheit) until delivered to the laboratory; and
Analyzed at a laboratory certified in accordance with 401 KAR 8:040.

Section 10. Well Modification.

(1) General. A water supply well being modified shall be brought into compliance with this administrative regulation.

(2) Well pits.

(a) A new well pit shall not be constructed, and an existing well pit shall not be modified.

(b) If a well is being modified, the:

Existing well pit shall be eliminated; and
Casing shall be extended a minimum of four (4) inches above the finished ground surface.

(c)

Flooring and the walls of the pit shall be broken and removed; and
The pit shall be filled with compacted earth.

(3) Finishing and testing. The well shall be:

(a) Finished; and

(b) Tested for E. coli in accordance with Section 9(6) of this administrative regulation.

(4) Within sixty (60) days of modification of a well, the certified water supply well driller shall submit a Uniform Kentucky Well Maintenance and Plugging Record to the well owner and the cabinet as established in Section 1 of this administrative regulation.

Section 11. Well Abandonment.

(1) Well unsuitable for its intended use. A water supply well that has been damaged, or is otherwise unsuitable for use as a water supply well, shall be abandoned within thirty (30) days from the date it is determined that the well is no longer suitable for its intended use.

(a) Water supply wells shall be abandoned in a manner that prevents the migration of:

Surface water or contaminants to the subsurface; and
Contaminants among water bearing zones.

(b) A record of the abandonment of a water supply well shall be submitted by the certified water supply well driller on the Uniform Kentucky Well Maintenance and Plugging Record to the cabinet within sixty (60) days from the date abandoned.

(2) Well preparation for abandonment.

(a) Measurements. Prior to abandoning a water supply well, the certified water supply well driller shall record the measurements established in subparagraphs 1 through 3 of this paragraph on the Well Maintenance and Plugging Record:

Well depth;
Well diameter; and
Depth to static water level.

(b) Obstructions.

All obstructions shall be removed from the well prior to abandoning; or
If the pump or equipment is stuck in the well and cannot be removed, the material shall be pushed to the bottom of the well as far as possible.

(3) Drilled wells.

(a) Well casing, screen, and liner removal.

All well casing, screens, and liners:

a. Shall be removed from the well prior to placing the sealing material by pulling or over-drilling; and

b. May be removed simultaneously with the introduction of sealing material if necessary to avoid borehole collapse.

a. If the well casing has been grouted in place and the casing cannot be removed, the casing may be cut off a minimum of five (5) feet below the ground surface.

b. The well shall be filled with sealing materials or inert earth materials from the bottom of the well to a minimum of twenty (20) feet below the ground surface.

c. The remainder of the well shall be filled with sealing materials to a minimum of five (5) feet below the ground surface.

d. The uppermost five (5) feet of the well shall be filled with sealing materials or other inert earth material suitable to land use at the site.

(b) Sealing material placement.

The well or borehole shall be filled:

a. With sealing materials or other inert materials from the bottom to a minimum of twenty (20) feet below the ground surface; and

b. So that all voids are completely filled and in a manner that prevents bridging across the well or well bore.

The well or borehole shall be filled with sealing materials from a minimum of twenty (20) feet below ground surface to a minimum of five (5) feet below the ground surface in a manner that prevents the migration of pollutants along the well or well bore.
Sealing materials, clay, or other inert material suitable to the proposed land use shall be used to fill the upper five (5) feet or less of a well being abandoned.

(4) Wells with multiple casing. The innermost well casing, screen, or liner shall be removed first and the well filled up to the level of the bottom of the next outer casing before removing the next outer casing.

(a) Voids. The well or borehole shall be filled with sealing materials or other inert materials from the bottom of the well to a minimum of five (5) feet below the bottom of a void.

A packer, expansion bridge, or other support shall be placed at the top of the void.
A permanent bridge consisting of a minimum of ten (10) feet of sealing materials shall be placed above the expansion bridge.

(b)

The remainder of the well or borehole shall be plugged with sealing materials or other inert materials from the bottom to a minimum of twenty (20) feet below the ground surface; and
The well or borehole shall be filled with sealing materials from a maximum of twenty (20) feet below the ground surface to a minimum of five (5) feet below the ground surface.

(c) Sealing materials, clay, or other inert material suitable to the proposed land use shall be used to fill the upper five (5) feet or less of a well being abandoned.

(5) Bored wells.

(a) The well shall be filled with sealing materials, dense grade aggregate, limestone sand, or native clay from the bottom of the well to a maximum of five (5) feet below finished ground surface.

(b) The upper five (5) feet of well casing, tiles, or other well-wall material shall be removed. A minimum one (1) foot thick concrete surface seal shall be poured and allowed to cure for twenty-four (24) hours. The uppermost five (5) feet of the borehole shall be filled with clay or an inert material appropriate to the intended use of the land.

(6) Driven wells.

(a) Well casing and screens shall be removed and sealing materials shall be introduced from the bottom of the well to a maximum five (5) feet below finished ground surface. A minimum one (1) foot thick concrete surface seal shall be poured and allowed to cure for twenty-four (24) hours.

(b) Sealing materials, clay, or other inert material suitable to the proposed land use shall be used to fill the upper five (5) feet or less of a well being abandoned.

(7) Flowing artesian wells.

(a) Flowing artesian wells or wells in which there is upward movement of water between aquifers shall be plugged with neat cement grout that is pumped under pressure and mixed with the minimum quantity of water that will permit handling.

(b) Artesian flow may be restricted if necessary.

(c) A well packer, cast-iron plug, or temporary bridge shall be placed at the bottom of the confining formation immediately overlying the artesian water-bearing horizon to seal off the flow.

(8) Hand dug wells.

(a) The pumps, casing, and equipment shall be removed, and the well surface pad shall be demolished.

(b) The well shall be filled from the bottom to the top with clean rock, gravel, or sand to within five (5) feet of the ground surface.

A minimum of one (1) foot thick; and
Allowed to cure for twenty-four (24) hours before finishing to the ground surface.

(d) The remaining three (3) feet or less of annular space shall be filled from the top of the surface seal to the ground surface with clean soil or other appropriate surface material.

(9) Within sixty (60) days after a water well has been abandoned, the certified water supply well driller shall complete and submit a Uniform Kentucky Well Maintenance and Plugging Record to the well owner, if known, and to the cabinet.

Section 12. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Uniform Kentucky Well Construction Record", DEP No. DOW6010, July 2019;

(b) "Water Well Owner's Guide", Kentucky Energy and Environment Cabinet, DEP No. DOW6020, September 8, 2009;

(d) "Uniform Kentucky Well Maintenance and Plugging Record", DEP No. DOW6040, Month 2019;

(e) Water Well Bacterial Report and Chain of Custody form, DEP No. DOW6050, July 2019;

(f) American Society for Testing and Materials (A.S.T.M.) Specification D1784-11, "Standard Specification for Rigid Poly (Vinyl Chloride) (PVC) Compounds and Chlorinated Poly(Vinyl Chloride) (CPVC) Compounds", 2011;

(g) American Society for Testing and Materials (A.S.T.M.) Specification F480-14, "Standard Specification for Thermoplastic Well Casing Pipe and Couplings Made in Standard Dimension Ratios (SDR), SCH 40 and SCH 80", 2014;

(h) National Sanitation Foundation (N.S.F.) Standard 14-2018, "Plastics Piping System Components and Related Materials", June 2018;

(i) National Sanitation Foundation (N.S.F.) Standard 61-2018, "Drinking Water System Components – Health Effects", February 2018; and

(j) American Society of Sanitary Engineering (A.S.S.E.) 1015-2011, "Performance Requirements for Double Check Backflow Prevention Assemblies and Double Check Fire Protection Backflow Prevention Assemblies", August 2011.

(k) American Society of Sanitary Engineering (A.S.S.E.) 1013-2011, "Performance Requirements for Reduced Pressure Principle Backflow Preventers and Reduced Pressure Principle Fire Protection Backflow Preventers", August 2011.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Water, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. The material in subsection (1)(a) through (d) of this section is also available on the Division of Water Web site, https://eec.ky.gov/Environmental-Protection/Water/GW/Pages/default.aspx.

(3)

(a) American Society for Testing and Materials (A.S.T.M.) Specification D1784-11, "Standard Specification for Rigid Poly (Vinyl Chloride) (PVC) Compounds and Chlorinated Poly(Vinyl Chloride) (CPVC) Compounds", 2011, may also be obtained from the American Society for Testing and Materials, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA, 19428-2949; Phone 1-610-832-9585.

(b) American Society for Testing and Materials (A.S.T.M.) Specification F480-14, "Standard Specification for Thermoplastic Well Casing Pipe and Couplings Made in Standard Dimension Ratios (SDR), SCH 40 and SCH 80", 2014, may also be obtained from the American Society for Testing Materials, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA, 19428-2949; Phone 1-610-832-9585.

(c) National Sanitation Foundation (N.S.F.) Standard 14-2018, "Plastics Piping System Components and Related Materials", June 2018, may also be obtained from the National Sanitation Foundation International, P.O. Box 130140, 789 N. Dixboro Road, Ann Arbor, MI, 48105; Phone 1-800-673-6275.

(d) National Sanitation Foundation (N.S.F.) Standard 61-2018 "Drinking Water System Components – Heath Effects", February 2018, may also be obtained from the National Sanitation Foundation International, P.O. Box 130140, 789 N. Dixboro Road, Ann Arbor, MI, 48105; Phone 1-800-673-6275.

(e) American Society of Sanitary Engineering (A.S.S.E.) 1015-2011, "Performance Requirements for Double Check Backflow Prevention Assemblies and Double Check Fire Protection Backflow Prevention Assemblies", August 2011, may also be obtained from the American Society of Sanitary Engineering, 18927 Hickory Creek Drive, Suite 220, Mokena, IL, 60448; Phone (708) 995-3019.

(f) American Society of Sanitary Engineering (A.S.S.E.) 1013-2011, "Performance Requirements for Reduced Pressure Principle Backflow Preventers and Reduced Pressure Principle Fire Protection Backflow Preventers", August 2011, may also be obtained from the American Society of Sanitary Engineering, 18927 Hickory Creek Drive, Suite 220, Mokena, IL, 60448; phone (708) 995-3019.

History

RELATES TO: KRS 223.400 - 223.460, 223.991, 224.1-010, 224.1-400
STATUTORY AUTHORITY: KRS 223.420(1)(e), 223.435, 224.10-100, 224.70-100, 224.70-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100, 224.70-100, and 224.70-110 authorize the cabinet to establish administrative regulations to protect water quality. KRS 223.435 requires the cabinet to promulgate administrative regulations establishing standards of practice for water well construction. This administrative regulation provides minimum standards and requirements for construction, modification, and abandonment of water supply wells.
History: 11 Ky.R. 1950; Am. 12 Ky.R. 144; eff. 8-13-1985; 17 Ky.R. 2762; 3142; eff. 5-22-91; TAm eff. 8-9-2007; 35 Ky.R. 587; 798; eff. 10-8-2008; TAm eff. 7-8-2016; Crt eff. 9-5-2018; 46 Ky.R. 631, 1468; eff. 1-3-2020.

401 KAR 6:320 Certification of water well drillers and water well driller assistants {#sec-401-kar-6-320 omnilex-key=us-ky-regs-official--title-401--401 KAR 6:320}

Section 1. General Requirements.

(1) The cabinet shall issue a water well driller or water well driller assistant certificate to qualified applicants as established in KRS Chapter 223 and this administrative regulation.

(2) Certificate issuance.

(a) Monitoring well driller. A certificate shall be issued for drilling monitoring wells that shall state the methods for which the certified driller is qualified to drill, including:

Cable tool drilling;
Air rotary drilling;
Reverse rotary drilling;
Jetting and driving wells in unconsolidated material;
Sonic drilling;
Direct push; or
Boring and auguring in unconsolidated materials.

(b) Water supply well driller. A certificate shall be issued for drilling water supply wells that shall state the methods for which the certified driller is qualified to drill, including:

Cable tool drilling;
Air rotary drilling;
Mud rotary drilling;
Reverse rotary drilling;
Jetting and driving wells in unconsolidated material;
Sonic drilling;
Direct push; or
Boring and augering in unconsolidated materials.

(c) A combined certificate may be issued for drilling monitoring wells and water supply wells that shall specify the methods for which the water well driller is qualified to drill as established in this subsection.

(3) A person shall not construct, alter, repair, or abandon a water well without first obtaining a water well driller or water well driller assistant certificate from the cabinet.

(4) Each water well driller or water well driller assistant certified to drill water supply wells may construct, alter, repair, or abandon water supply wells using the drilling method or methods stated on the certificate.

(5) Each water well driller or water well driller assistant certified to drill monitoring wells may construct, alter, repair, or abandon monitoring wells using the drilling method or methods stated on the certificate.

(6) In order to receive a water well driller or water well driller assistant certificate, an applicant shall:

(a) Submit a complete application as established in this administrative regulation;

(b) Earn a minimum passing score of seventy (70) percent on applicable examinations as established in this administrative regulation;

Applicant has the education and experience to qualify for a certificate as established in KRS Chapter 223 and this administrative regulation; and
Applicant's certificate is not under suspension, temporary revocation, or permanent revocation as established in Section 6 of this administrative regulation.

Section 2. Applications.

(1) Water well driller application. Each person desiring a water well driller certificate shall submit to the cabinet a complete application which shall include:

(a) Payment of the application fee as established in KRS 223.447;

(b) The Application for Certification;

(d) Proof of the insurance and bond required by KRS 223.430; and

(e)

A notarized statement from a certified water well driller, a driller in another state, or another person who has directly supervised the applicant, that the applicant has worked under the driller's supervision for a minimum of two (2) years as established in KRS 223.425(2); or
Notarized proof of other qualifying experience, including:

a. Employment as an environmental professional working with the design and installation of wells and well drilling operations for a minimum of two (2) years; and

(i) Employment as a registered professional geologist as established in KRS Chapter 322A;

(ii) Employment as a registered professional engineer as established in, or associate degree in a natural science.

(2) Water well driller assistant application. An applicant desiring a water well driller assistant certification shall submit a completed application to the cabinet and shall include:

(a) The Application for Certification;

(b) All information required by KRS 223.425(5); and

Section 3. Examinations.

(1) An applicant for a water well driller or water well driller assistant certification shall earn a minimum passing score of seventy (70) percent on an applicable examination in order to receive a certificate.

(2) The cabinet shall prepare and administer the examinations that determine the knowledge, ability, and judgment of approved applicants as established in this section and Section 1 of this administrative regulation.

(a)

Examinations shall be administered at least annually by the cabinet.
The applicant and cabinet shall schedule the cabinet-administered examination at a mutually agreeable date and time.

(b) The applicant shall schedule to take other examinations required by this administrative regulation directly with the National Groundwater Association..

(3) The cabinet shall administer the examination only to a qualified applicant who has:

(a) Submitted a complete application;

(b) Met all requirements established in KRS 223.425;

(d) Paid the examination fee as established in KRS 223.447.

(4)

(a) An applicant who does not pass an examination may repeat the examination after forty-five (45) days from the date the cabinet notifies the applicant of the results.

(b) An applicant shall not repeat an examination more than six (6) times per calendar year.

(c) Examinations shall not be returned to the applicant, but the applicant may review results with a member of the board or an employee of the cabinet upon request.

(5) Contents of the water supply well driller examination.

(a) For a certificate to drill water supply wells, an examination shall consist of:

The Kentucky Water Well Certification Examination;
The National Ground Water Association General Exam; and
One (1) or more of the National Ground Water Association specialty examinations applicable to each drilling method for which the applicant wishes to be certified, including:

a. Cable Tool Drilling Exam;

b. Air Rotary Drilling Exam;

c. Mud Rotary Drilling Exam;

d. Reverse Rotary Drilling Exam;

e. Jetting and Driving Wells in Unconsolidated Material Exam;

f. Boring and Augering in Unconsolidated Materials Exam; or g, A substitute examination as identified or developed by the cabinet in consultation with the board to test knowledge of local laws or regulations as established in KRS 223.410.

(b) For a certificate to drill monitoring wells using hollow stem auger, solid stem auger, or direct push method, an examination shall consist of:

The Kentucky Monitoring Well Certification Examination;
The National Ground Water Association General Exam; and
The National Ground Water Association Augering and Monitoring Exam; or
A substitute examination as identified or developed by the cabinet in consultation with the board to test knowledge of local laws or regulations as established in KRS 223.410.

The Kentucky Monitoring Well Certification Examination;
The National Ground Water Association General Examination;
The National Ground Water Association Augering and Monitoring Exam; and
One (1) or more of the National Ground Water Association specialty examinations applicable to each drilling method for which the applicant wishes to be certified, including:

a. Cable Tool Drilling Exam;

b. Air Rotary Drilling Exam;

c. Mud Rotary Drilling Exam;

d. Reverse Rotary Drilling Exam;

e. Jetting and Driving Wells in Unconsolidated Material Exam;

f. Boring and Augering in Unconsolidated Materials Exam; or

g. A substitute examination as identified or developed by the cabinet in consultation with the board to test knowledge of local laws or regulations as established in KRS 223.410.

(6) Contents of the water supply well driller assistant examination. An applicant shall earn a minimum passing score of seventy (70) percent on:

(a) The Kentucky Water Well Driller Assistant Certification Examination; or

(b) A substitute examination as identified or developed by the cabinet in consultation with the board to test knowledge of local laws or regulations as established in KRS 223.410.

(7) Contents of the monitoring well driller assistant examination. An applicant shall earn a minimum passing score of seventy (70) percent on the:

(a) Kentucky Monitoring Well Driller Assistant Certification Examination; or

(b) A substitute examination as identified or developed by the cabinet in consultation with the board to test knowledge of local laws or regulations as established in KRS 223.410.

Section 4. Issuance of Certificate.

(1) The cabinet shall issue a certificate designating the classification for which the water well driller or water well driller assistant has demonstrated competence:

(a) Upon satisfactory fulfillment of the requirements established in this administrative regulation; and

(b) Payment of the initial certification fee as established in KRS 223.447.

(2) A water well driller or water well driller assistant shall provide written notification to the cabinet within thirty (30) days of a change of employment or mailing address.

(3) Display of certificate number.

(a) A certified water well driller shall have the certificate number affixed and prominently displayed on the drill rig used at the well site.

(b) The certificate number shall be:

Inscribed with the format: KY. CERT. XXXX-XXXX-XX (insert certificate number in place of the Xs);
Inscribed with numbers that shall be at least three (3) inches in height and of a color that shall be easily distinguishable from that of the drill rig; and
Removed if the:

a. Drill rig is scrapped, sold, or otherwise changes ownership; or

b. Certified water well driller's certificate becomes invalid.

Section 5. Service of Process. Each applicant, certified water well driller, and certified water well driller assistant shall provide the cabinet with an address for receipt of applicable legal documents for service of process. The last address provided to the cabinet shall be the address at which the cabinet shall tender applicable legal notices in connection with an enforcement or disciplinary action.

Section 6. Disciplinary Action.

(1) A certified water well driller or certified water well driller assistant shall be subject to disciplinary action if the water well driller or water well driller assistant:

(a) Practiced fraud or deception in obtaining a certificate or filing cabinet mandated reports;

(b) Did not use reasonable care or judgment in the performance of duties;

(d) Is unable or unwilling to properly perform duties; or

(e) Does not have bond and insurance required by KRS 223.430.

(2) The disciplinary action shall be as established in this subsection depending on the severity, duration, and number of the violations, including:

(a) Probation, not to exceed one (1) year;

(b) Suspension of the water well driller's or water well driller assistant certificate, not to exceed one (1) year, during which the certificate shall be considered void;

(d) Permanent revocation of the certificate; or

(e) Civil or criminal penalties against the driller.

(3) Initial review procedures. Valid complaints or a significant enforcement action against a water well driller or water well driller assistant may be reviewed at the next regularly scheduled board meeting.

(a) If the board decides a complaint or enforcement action warrants further investigation, the water well driller or water well driller assistant shall be requested to appear before the board.

(b) Upon completion of its review of the complaint and available facts, the board shall send its recommendation and supporting facts to the cabinet.

Decide whether or not to take disciplinary action against the water well driller or water well driller assistant based on the board's recommendation and supporting facts; and
Notify the water well driller or water well driller assistant and the board of its decision and the facts supporting its decision in writing.

(4) Action taken by the cabinet pursuant to this section shall not preclude the cabinet from pursuing additional civil or criminal action.

(5)

(a) A water well driller or water well driller assistant whose certificate has been suspended or revoked shall not drill wells.

(b) If a certificate is permanently revoked, the water well driller or water well driller assistant shall be ineligible to receive a certificate as a water supply well driller, monitoring well driller, or well driller assistant in the future.

(c) Experience gained during a suspension or temporary revocation shall not be included toward meeting the requirements established in Section 2 of this administrative regulation.

(6)

(a) Sanction review and removal. During the water well driller's or water well driller assistant's probation or suspension the board and cabinet shall monitor the water well driller's or water well driller assistant's work activities.

(b) At the end of the sanction period, the board shall recommend that the cabinet lift the sanction or take additional action against the water well driller or water well driller assistant.

(7) Pursuant to KRS 224.10-420(2) and 400 KAR 1:100, a water well driller or water well driller assistant may contest a disciplinary action of the cabinet by filing a petition for a hearing with the cabinet.

Section 7. Expiration and Renewal of Certificates.

(1) All certified water well drillers and water well driller assistants shall renew their certificates annually.

(2)

(a) Certificates shall be valid from the date of issuance until the following June 30. If an initial certificate is issued after May 1, it shall be effective until June 30 of the next calendar year.

(b) Certificates shall be renewed by July 1 of each year.

(3) Certificate renewal shall require submitting to the cabinet:

(a) A complete Application for Certification Renewal; and

(b) Payment of the renewal fee as established in KRS 223.447.

(4)

(a) If the certificate renewal fee is not received within sixty (60) days of the renewal date of July 1, the certificate shall expire.

(b) Expired certificates may be renewed without examination within two (2) years of the expiration date, if the applicant:

Pays the renewal fee as established in KRS 223.447;
Meets the continuing education requirements established in subsection 5 of this section within the twelve (12) months immediately preceding recertification; and
Meets all other statutory and regulatory requirements for certification.

(5) Continuing education requirement.

(a) Certified water well drillers shall complete a minimum of five (5) hours of cabinet-approved continuing education for certificate renewal. A minimum of three (3) hours of continuing education shall pertain directly to well drilling.

(b) Certified well driller assistants shall complete a minimum of eight (8) hours of cabinet-approved continuing education as established in KRS 223.425. A minimum of four (4) hours of continuing education shall pertain directly to well drilling.

(c) Continuing education shall include correspondence courses, short courses, trade association meetings, and other job training courses relevant to water well construction.

(d) A certified water well driller or water well driller assistant shall obtain written confirmation from the cabinet that a continuing education training course has been approved by the cabinet prior to completing the continuing education training course.

(e) The cabinet shall approve continuing education training events that meet the requirements established in paragraphs (a) and (b) of this subsection.

(f) An applicant for certificate renewal shall submit documentation of continuing education with the renewal application.

Section 8. Certificates and Wallet Cards.

(1) The cabinet shall provide certified water well drillers and water well driller assistants with certificates and wallet cards.

(2) A certified water well driller or water well driller assistant shall carry wallet cards at the job site.

Section 9. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Application for Certification", DEP No. DOW6060, July 2019;

(b) "Application for Certification Renewal", DEP No. DOW6070, July 2019; and

History

RELATES TO: KRS 223.400 - 223.460, 223.991, 224.10-010, 224.10-100, 224.10-410 - 224.10-470, Chapter 322, Chapter 322A
STATUTORY AUTHORITY: KRS 223.410, 223.420(1)(e), 223.435, 224.10-100, 224.70-100, 224.70-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100, 224.70-100, and 224.70-110 authorize the cabinet to establish administrative regulations to protect water quality. KRS 223.420 requires the cabinet to promulgate administrative regulations concerning examination and certification of water well drillers and water well driller assistants. This administrative regulation establishes provisions for the certification of water well drillers and water well driller assistants, including the requirements for examination, application, and disciplinary action.
History: 17 Ky.R. 581; 1421; eff. 11-15-1990; 35 Ky.R. 601; eff. 10-8-2008; TAm eff. 7-8-2016; Crt eff. 9-5-2018; 46 Ky.R. 640, 1477; eff. 1-3-2020.

401 KAR 6:350 Monitoring well construction practices and standards {#sec-401-kar-6-350 omnilex-key=us-ky-regs-official--title-401--401 KAR 6:350}

Section 1. General Requirements.

(1) Each monitoring well shall be constructed, modified, or abandoned by a monitoring well driller or monitoring well driller assistant certified in accordance with KRS 223.425 and 401 KAR 6:320.

(2) A monitoring well driller's assistant shall work under the "direct supervision", as defined by 401 KAR 6:001(14), of a certified monitoring water well driller.

(3) Well specifications shall:

(a) Be provided by the certified well driller to the well driller's assistant, as required under "direct supervision", as defined by 401 KAR 6:001(14), for the work to be conducted including:

Construction;
Alteration;
Maintenance;
Repair;
Reworking;
Development;
Abandonment; or
Plugging; and

(b) Shall be recorded on the Uniform Kentucky Well Construction Record, which shall be:

Retained by the well driller's assistant; and
Available for inspection upon request by the cabinet.

Approved in advance by a certified well driller;
Recorded on an amended Uniform Kentucky Well Construction Record;
Retained by the well driller's assistant; and
Available for inspection upon request by the cabinet.

(4) Permanent and temporary monitoring wells shall be constructed, modified, and abandoned in a manner that prevents the introduction or migration of contamination to a water-bearing zone or aquifer through the casing, drill hole, or annular materials.

(5) Reporting requirement. Within sixty (60) days after completion, modification, or abandonment of a monitoring well or temporary monitoring well, the certified monitoring well driller shall:

(a) Record all information about the depth and the materials used in the monitoring well construction, modification, or abandonment; and

(b) Submit a complete Uniform Kentucky Well Construction Record form to the cabinet and monitoring well owner.

(6) Each well constructed or modified shall be tagged with a well identification number tag provided by the cabinet.

(a) An existing well identification number shall be included on the Uniform Kentucky Well Maintenance and Plugging Record for any well being modified or abandoned.

(7) Variance. If conditions exist or are believed to exist that preclude compliance with the requirements established in this administrative regulation, the certified monitoring well driller may request a variance from the cabinet prior to well construction or well abandonment.

(a) The variance request shall be submitted in writing on the Kentucky Monitoring Well Variance Request form and shall include:

A thorough description of the:

a. Land use at the site and at adjacent and surrounding properties; and

b. Expected geologic conditions at the site, including:

(i) Soil thickness;

(ii) Type of bedrock;

(iii) Depth to groundwater;

(iv) Perched water; and

(v) Confining zones;

Distance between the proposed monitoring well location and:

a. Other existing water-supply wells or monitoring wells on adjacent properties; and

b. Potential pollution sources, both on site and on adjacent properties, including:

(i) Septic systems;

(ii) Sewers; and

(iii) Petroleum and chemical storage tanks, or other potential pollution sources;

A summary of the provisions, including the section numbers of this administrative regulation, for which the variance is requested;
A justification for the variance;
Proposed construction, modification, or abandonment procedures to be used in lieu of compliance with this administrative regulation; and
An explanation of how the alternate well construction procedures will ensure the protection of the quality of the groundwater and the protection of public health and safety.

(b) Written variance procedure.

The certified monitoring well driller shall:

a. Request a variance by submitting to the cabinet a complete Kentucky Monitoring Well Variance Request form signed by the certified monitoring well driller and, if possible, by the monitoring well owner; and

b. Obtain cabinet approval before well construction begins.

The cabinet shall:

a. Notify the applicant in writing within ten (10) days of its decision to either grant or deny the variance; and

b. Not issue a variance if the proposed monitoring well construction will not ensure the protection of groundwater quality and public health and safety.

A certified monitoring well driller may request a verbal variance for an emergency if the delay incurred due to the written variance procedure established in paragraph (b) of this subsection may result in:

a. Failure to address an existing or impending environmental emergency in accordance with KRS 224.1-400; or

b. A risk to public health or safety.

The cabinet shall not issue a variance if the proposed monitoring well construction will not ensure the protection of groundwater quality and public health and safety.
Within fifteen (15) days of the date the cabinet approves the verbal variance for an emergency, the certified monitoring well driller shall submit to the cabinet a complete Kentucky Monitoring Well Variance Request form signed by the certified monitoring well driller and monitoring well owner.

(d) The variance approval shall list the conditions of the variance, including the:

Approved alternate well construction procedures;
Well sampling requirements; and
Requirement to notify surrounding property and well owners of the variance, if applicable.

(e) The certified monitoring well driller shall submit to the cabinet and the monitoring well owner a copy of the Kentucky Monitoring Well Variance Request form signed by the certified monitoring well driller and the monitoring well owner within sixty (60) days after the well is completed.

Section 2. Design Factors. Monitoring well construction shall comply with the requirements established in this section.

(1) Monitoring wells shall not be constructed in an identified special flood hazard area unless:

(a) An alternate site does not exist;

(b) The well is water tight; and

The well is of flush mounted construction; or
The well casing extends a minimum of two (2) feet above the highest base flood elevation at the site.

(2) Measures shall be taken during drilling and well construction to prevent the introduction or migration of contaminants to a water-bearing zone or aquifer.

(3) Water used in the drilling or decontamination process shall be potable.

(4)

(a) Each water-bearing zone that is intercepted during the drilling phase but not intended for groundwater monitoring shall be:

Sealed off to prevent down-hole cross contamination before advancing the borehole; and
Prevented from contributing to a well by installing outer casing with a watertight seal.

(b) The permanent outer casing shall have a minimum two (2) inch annulus between the:

Borehole and the outside diameter of the outer casing; and
Outer casing and the inner casing.

(d) A minimum cure time in accordance with the sealing material manufacturer's specifications shall be required before drilling through the grout seal.

(e) Temporary outer casing may be installed.

Section 3. Monitoring Well Construction.

(1) General Requirements.

(a) All permanent and temporary monitoring wells shall be constructed, modified, and abandoned in a manner that prevents the introduction or migration of contamination to a water-bearing zone or aquifer through the casing, drill hole, or annular materials.

(b) Monitoring wells shall be constructed in a manner that yields both groundwater samples and groundwater-level measurements that shall be representative of the water-bearing zone or aquifer to be monitored.

(2) Boreholes.

(a)

Boreholes drilled in unconsolidated formations shall be a minimum of four (4) inches greater than the outside diameter of the well casing and well screen except for sonic wells, direct push wells, and temporary wells.
The open borehole shall be cleaned if soil or rock fall into the open borehole during auger or drill-stem retrieval.

(b) Boreholes drilled in consolidated formations shall be a minimum of two (2) inches greater than the outside diameter of the well casing and screen.

(c) Boreholes drilled by the hollow-stem auger or sonic drill method shall have a minimum auger or casing inner diameter (ID) as established in this paragraph.

Four and one quarter (41/4) inches ID for the installation of two (2) inch monitoring well casing;
Six and one quarter (61/4) inches ID for the installation of four (4) inch monitoring well casing; or
Larger augers shall be required if installation difficulties due to geologic conditions or greater depths are anticipated.

(3)

(a) Lubricant shall not be used on drill pipe threads, hollow-stem or solid-stem augers, or on the exterior of the drill pipe, unless approved in advance by the cabinet following the variance procedure established in Section 1(7) of this administrative regulation.

(b) A request to use a lubricant shall:

Be submitted by the certified monitoring well driller in writing to the cabinet; and
Include a Safety Data Sheet for the proposed lubricant.

(4)

(a) If the air rotary drilling method is used, drill cuttings shall be contained.

(b) Air rotary drills using screw compressor systems shall have a coalescing filter system that captures excess entrained compressor oils.

(5) Drilling Derived Waste (DDW) shall be properly containerized.

Section 4. Monitoring Wells Completed Below Ground Surface.

(1)

(a) Flush mount wells may be approved in areas where above-ground completion is not practical or poses a threat to monitoring well integrity and safety.

(b) Monitoring wells completed below ground surface shall have a flush-mount manhole with a bolt-down well cover and waterproof seals installed to prevent the inflow of surface water and contaminants.

(2) The concrete surface pad shall slope away from the monitoring well to prevent precipitation or contaminants from accumulating around the well.

(3)

(a) Waterproof seals shall be installed between the cover and the box; and

(b) O-rings or gaskets shall be installed around the bolts that mount on the cover.

(4) The cover shall consist of material able to withstand the maximum expected loadings.

(5) A water-tight lockable cap shall be attached to the top of the well casing.

(6) The well casing shall be cut so that the locking cap shall install properly and provide a waterproof seal.

(7) A flush-mount monitoring well shall have a concrete surface pad that shall be a minimum of four (4) inches thick with a minimum two (2) foot diameter or square pad centered on the well.

Section 5. Direct Push Monitoring Wells.

(1) Direct push monitoring wells installed using direct push technology shall be constructed, modified, and abandoned in a manner that prevents the introduction or migration of contamination to a water-bearing zone or aquifer through the casing, drill hole, or annular materials.

(2) Temporary monitoring wells installed by the direct push method shall:

(a) Be constructed in a manner that yields both groundwater samples and groundwater level measurements that shall be representative of the water-bearing zone or aquifer to be monitored;

(b) Not allow the mixing of hydrogeologically distinct groundwater zones;

(d) Comply with requirements as established in Section 6 of this administrative regulation.

(3) Direct push monitoring wells shall also comply with the additional standards established in this subsection.

(a) The outside diameter of the borehole shall be a minimum of one (1) inch greater than the outside diameter of the well casing.

(b) Premixed bentonite slurry or bentonite chips with a minimum of one-eighth (1/8) inch diameter shall be used in the sealed interval below the static water level.

(c)

Direct push monitoring wells shall not be constructed through more than one (1) water-bearing formation unless the upper water bearing zone is isolated by temporary or permanent casing.
The direct push tool string may serve as temporary casing.

(4) Prepacked well screens may be used.

Section 6. Temporary Monitoring Wells.

(1) Temporary monitoring wells shall be:

(a) Constructed, modified, and abandoned in a manner that prevents the introduction or migration of contamination to a water-bearing zone or aquifer through the casing, drill hole, or annular materials; and

(b) Constructed in a manner that yields both groundwater samples and groundwater level measurements that shall be representative of the water-bearing zone or aquifer to be monitored.

(2) The annulus between the borehole and the well casing shall be sealed at the surface with a bentonite seal to prevent surface water from migrating into the borehole.

(3) Each temporary monitoring well shall be properly abandoned, as established in Section 11 of this administrative regulation, within seventy-two (72) hours after the well was constructed.

(4) A record of a temporary monitoring well constructed and abandoned shall be submitted by the certified monitoring well driller on the Uniform Kentucky Well Maintenance and Plugging Record to the cabinet and the monitoring well owner within sixty (60) days from the date abandoned.

Section 7. Materials for Monitoring Wells and Temporary Monitoring Wells.

(1) Well casing and screens.

(a) Monitoring well casing and screens shall:

Be constructed of materials determined on a site-specific basis to ensure that the integrity of the material shall not be affected by contaminants or introduce contaminants to the groundwater;
Be resistant to chemical and microbiological corrosion and degradation;
Be able to withstand the physical forces acting upon them during and following their installation, and during their use, including force:

a. Due to suspension in the borehole, grouting, development, purging, pumping, sampling; and

b. Exerted on the well casing and screens by the surrounding geologic materials; and

Have a minimum inside diameter of two (2) inches except for direct push and temporary wells.

(b) Used, damaged, or contaminated well casing or screens shall not be installed.

(2) Joints and couplings.

(a)

All joints and couplings shall be a threaded flush joint design.
All joints shall be watertight.

(b) The monitoring well casing shall extend a minimum of two and one half (2 1/2) feet above ground surface, except as established in Section 4 of this administrative regulation.

(c)

A minimum annular space of two (2) inches shall be maintained between the borehole wall and the outside diameter of the monitoring well casing.
In a multi-cased monitoring well the annulus between the well casings shall be a minimum of two (2) inches.

(d) Centralizers shall be installed:

In monitoring wells greater than fifty (50) feet in depth; and
At a minimum of ten (10) foot intervals.

(3) Filter pack.

(a) The filter pack materials shall:

Consist of clean, rounded to well-rounded, insoluble particles of quartz silica composition; and
Be of a size that minimizes head losses through the filter pack and prevents sediment movement through the well screen into the well.

(b) The filter pack shall be placed:

a. In the annulus in a manner that prevents bridging; and

b. Slowly and carefully by the free-fall method; or

Using another method that ensures proper placement of the filter pack.

(d)

A minimum of six (6) inches of filter pack shall be placed below the bottom of the well screen.
The filter pack shall extend at least two (2) feet above the top of the well screen.

(e) Prepacked well screens may be used if the filter-pack material, filter-pack grain size, and the screen slots are properly sized for the monitoring zones.

(4) Sealing materials.

(a) Only potable water shall be used in mixing sealing materials used in the construction or abandonment of monitoring wells.

(b) The sealing material shall be placed in the annulus by a grout pipe, starting at the top of the bentonite seal to within three (3) feet of the ground surface.

(d) The concrete surface pad or surface casing shall not be installed until the sealing materials placed in the annulus have settled and cured.

(e) Bentonite seal.

The bentonite seal shall:

a. Consist of high solids sodium bentonite pellets with a minimum of thirty (30) percent solids; and

b. Be placed in the annulus by a method that ensures the prevention of bridging.

a. The depth to the bentonite seal shall be continually monitored during installation.

b. The bentonite seal shall extend a minimum of two (2) feet above the top of the filter pack.

a. Hydration time of the bentonite seal shall be according to the manufacturer's specifications.

b. Only potable water shall be used as the hydration medium.

c. The surface opening and the annulus shall be protected during the hydration period to prevent material from falling into the borehole.

(f) Annular seal.

The annular seal shall be installed in a manner that prevents the migration of contaminants or pollutants along the monitoring well annulus into the well.
The sealing material shall be placed so that pollutants cannot migrate through the annulus.
The sealing materials shall not have a harmful effect on the well casings or screens or damage the surface completion of the well.

Section 8. Surface Completion.

(1) Surface casing.

(a) Monitoring wells completed with the well casing extending above ground surface shall be constructed with a steel, anodized aluminum, or PVC outer protective surface casing with a locking cap.

(b) A water tight well cap shall be installed on the well casing.

(c) The well casing shall be cut in a manner so that the locking cap shall install properly and provide a waterproof seal.

(d) The outer protective surface casing shall:

Have a minimum of two (2) inches of clearance between the inside diameter of the outer protective casing and the outside diameter of the well casing;
Extend a minimum of one (1) inch and a maximum of twelve (12) inches above the inner well casing;

a. Be installed by pouring a concrete slurry mix into the borehole from the top of the annular seal to the ground surface; and

b. Then be pushed into the wet concrete slurry a minimum of two (2) feet below the ground surface;

a. Have a minimum of two (2) weep holes for drainage.

b. The weep holes shall be a minimum diameter of one-quarter (1/4) inch and shall be located directly above the top of the concrete surface pad; and

Bear the Kentucky Water Well Tag with the water well number.

(2) Bumper guards.

(a) Monitoring wells extending above ground surface shall have:

Four (4) protective bumper guards consisting of steel pipes a minimum of three (3) inches in diameter; and
A minimum of five (5) feet in length.

(b) The bumper guards shall:

Be installed to a minimum depth of two (2) feet below ground surface in a concrete footing;
Extend a minimum of three (3) feet above ground surface;
Be filled with concrete for additional strength if the bumper guards are steel pipe; and
Be painted a highly visible color.

(c) A modification to the bumper guard requirement shall be pre-approved by the cabinet according to the variance procedure established in Section 1(7) of this administrative regulation.

(3) Concrete surface pad.

(a) All monitoring wells shall have a concrete surface pad a minimum of six (6) inches thick with a minimum three (3) foot diameter or square pad centered on the well.

(b) The concrete surface pad shall slope away from the monitoring well in a manner as to prevent precipitation or contaminants from accumulating around the well.

Section 9. Well Development.

(1) Newly installed monitoring wells shall be developed until the column of water in the well is free of visible sediment.

(2) The well-development protocol established in subsection (1) section shall not be used as a method for purging prior to water quality sampling.

Section 10. Repairs or modifications to the well casing shall be reported to the cabinet by the certified monitoring well driller on the Uniform Kentucky Well Maintenance and Plugging Record.

Section 11. Monitoring Well Abandonment.

(1) General requirements.

(a) A monitoring well that has been damaged or is otherwise unsuitable for use as a monitoring well shall be abandoned within thirty (30) days from the:

Last sampling date; or
Date it is determined that the well is no longer suitable for its intended use.

(b) Monitoring wells shall be abandoned in a manner that prevents the migration of:

Surface water or contaminants to the subsurface; and
Contaminants among water bearing zones.

(c) A Division of Waste Management program that permits or regulates the facility at which a monitoring well is to be abandoned shall be notified by the certified monitoring well driller a minimum of ten (10) working days prior to abandonment of each monitoring well.

(d) A temporary monitoring well shall be abandoned within seventy-two (72) hours after installation.

(e) A record of the monitoring well abandonment shall be submitted to the cabinet by the certified monitoring well driller on the Uniform Kentucky Well Maintenance and Plugging Record within sixty (60) days from the date abandoned.

(2) Abandonment methods and sealing materials for all types of monitoring wells.

(a) The surface casing, monitoring well casing, well screen, filter pack, bentonite seal, and cement shall be removed.

(b) The borehole shall be plugged with sealing material by grout-pipe method or by pressure injection from the bottom of the boring to within three (3) feet of the top of the borehole, except as established in paragraph (c) of this subsection.

(c) The borehole may be plugged using the gravitational displacement, or free-flow method to a maximum depth of fifty (50) feet with bentonite:

With a minimum particle size of three-eighths (3/8) inch; and
Used according to the manufacturer's specifications.

(d) The top two (2) feet of the borehole shall be filled with materials consistent with the surrounding ground surface.

(e) If the well casing cannot be removed, an alternate method of abandonment may be used if approved in advance by the cabinet in accordance with the variance process established in Section 1(7) of this administrative regulation.

Section 12. Division of Waste Management Program Requirements.

(1) Prior to the installation or abandonment of a monitoring well at a facility regulated by the cabinet, all monitoring well construction designs and all monitoring-well materials shall be pre-approved by the cabinet in accordance with the requirements established in KRS 224.1-400, 224.1-405, 224.43-010 through 224.43-815, 224.46-012 through 224.46-870, and 224.60-100 through 224.60-160.

(2) The cabinet shall be notified at least ten (10) working days prior to a monitoring well construction, modification, or abandonment so that a cabinet representative may be present at the construction, modification, or abandonment.

Section 13. Documents Incorporated by Reference.

(1) The following material is incorporated by reference:

(a) "Uniform Kentucky Well Construction Record", DEP No. DOW6010, July 2019;

(b) "Uniform Kentucky Well Maintenance and Plugging Record", DEP No. DOW6040, July 2019; and

History

RELATES TO: KRS 223.400 - 223.460, 223.991, 224.1-400, 224.1-405, 224.43-010 - 224.43-815, 224.46-012 - 224.46-870, 224.60-100 - 224.60-160
STATUTORY AUTHORITY: KRS 151.110, 223.435, 224.10-100, 224.70-100, 224.70-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100, 224.70-100, and 224.70-110 authorize the cabinet to establish administrative regulations to protect water quality. KRS 223.435 requires the secretary of the cabinet to promulgate administrative regulations establishing standards of practice for water well construction. This administrative regulation establishes requirements for the construction of monitoring wells, including temporary monitoring wells, and provides minimum standards for location, construction, modification, and abandonment.
History: 35 Ky.R. 605; 811; eff. 10-8-2008; TAm eff. 7-8-2016; Crt eff. 9-5-2018; 46 Ky.R. 645, 1481; eff. 1-3-2020.

Chapter 8 Public Water Supply

401 KAR 8:010 Definitions for 401 KAR Chapter 8 {#sec-401-kar-8-010 omnilex-key=us-ky-regs-official--title-401--401 KAR 8:010}

Section 1. Definitions. Except as provided in this section, the definitions established in 40 C.F.R. 141.2 shall apply.

(1) "Board" means the Kentucky Board of Certification of Water Treatment Plant and Water Distribution System Operators as established by KRS 223.170.

(2) "Boil water advisory" means a type of consumer advisory that provides notice to the consuming public through radio, television, direct mail, electronic mail, posting, newspaper, or other media and that conveys in the quickest and most effective manner possible:

(a) Information that water provided by a system might cause adverse human health effects due to possible biological contamination if consumed, unless it is first boiled for three (3) minutes at a rolling boil; and

(b) What action the public is advised to take.

(3) "Bottled water" means water that is:

(a) From an approved bottled water treatment plant as established in 401 KAR 8:700;

(b) Placed in a sealed container or package; and

(4) "Bottled water system":

(a) Means a public water system that provides bottled drinking water and includes the sources of water, and treatment, storage, bottling, manufacturing, or distribution facilities; and

(b) Does not mean:

A public water system that provides only a source of water supply for a bottled water system; or
An entity providing only transportation, distribution, or sale of bottled water in sealed bottles or other sealed containers.

(5) "Bottled water treatment plant" means a facility that provides the product water used for bottled water by processing water from an approved source as established in 401 KAR Chapter 8.

(6) "Bypass" means a physical arrangement whereby water can be diverted around a feature of the purification process of a public or semipublic water supply.

(7) "Certificate" means a certificate of competency issued by the cabinet stating that the operator has met all requirements for the specified operator classification as established by 401 KAR Chapter 8.

(8) "Certified laboratory" means a laboratory:

(a) For which the physical, instrumental, procedural, and personnel capabilities have been approved by the U.S. Environmental Protection Agency or the cabinet pursuant to 401 KAR 8:040 and 40 C.F.R. 141 and 142; and

(b) That is certified for one (1) or more types of the contaminants listed or for one (1) or more of the specific constituents or combinations of constituents listed in 401 KAR Chapter 8.

(9) "Certified operator" means an individual who holds an active certificate.

(10) "Community water system" is defined by 40 C.F.R. 141.2.

(11) "Consumer advisory" means a notice to the consuming public through radio, television, direct mail, electronic mail, posting, newspaper, or other media to convey in the quickest and most effective manner possible:

(a) Information that water provided by a system might cause adverse human health effects if consumed and what action the public is advised to take; or

(b) Other information that the public needs to know about its water.

(12) "Contaminant group" means all of the constituent members that collectively comprise the individual bacteriological, inorganic chemical, organic chemical, radiological, volatile organic chemical, synthetic organic chemical, or secondary contaminant groups regulated by 401 KAR Chapter 8.

(13) "Conventional filtration treatment" means a series of processes including coagulation, flocculation, sedimentation, and filtration resulting in substantial particulate removal.

(14) "Cross connection" means a physical connection or arrangement between two (2) otherwise separate systems, one (1) of which contains potable water and the other being either water of unknown or questionable safety, or steam, gas, or chemicals, whereby there can be flow from one (1) system to the other, the direction of flow depending on the pressure differential between the two (2) systems.

(15) "Direct responsible charge" means personal, first hand responsibility to conduct or actively oversee and direct procedures and practices necessary to ensure that the drinking water treatment plant or distribution system is operated in accordance with accepted practices and with KRS Chapter 223 and 401 KAR Chapters 8 and 11.

(16) "Mineral water" means bottled water that contains not less than 250 parts per million total dissolved solids.

(17) "NTU" means nephelometric turbidity unit.

(18) "Operator" means a person involved in the operation of a drinking water treatment plant or distribution system.

(19) "Private water supply" means a residential water supply located on private property for the use of one (1) to three (3) residential households.

(20) "Product water" means the water processed by a bottled water treatment plant that is used for bottled drinking water.

(21) "Professional engineer" means an engineer who is licensed as a professional engineer in Kentucky, pursuant to KRS Chapter 322.

(22) "Secondary contaminant" means a contaminant that does not, in general, have a direct impact on the health of consumers but its presence in excessive quantities can discourage the utilization of drinking water or discredit the supplier.

(23) "Secondary standard" means the maximum contaminant level for a secondary contaminant.

(24) "Semipublic water system" means a water system made available for drinking or domestic use that does not qualify as a private or public water system.

(25) "Submeter" means the use by a property owner or operator of meters that measure water used by tenants for the purpose of passing costs charged by a public water system from the property owner or operator to tenants based on tenants' actual water usage.

(26) "Supplier of water" means the owner or operator of a public water system.

(27) "Surface water" means water that is open to the atmosphere and subject to surface runoff, or groundwater under the direct influence of surface water.

(28) "Surface water source" means ponds, reservoirs, streams of all sizes, free-flowing springs, a source of water supply for a public water system that has a free water surface exposed to the atmosphere, or groundwater under the direct influence of surface water.

(29) "System" means a public water system.

(30) "Turbidity" means the presence of suspended particulates, including sand, silt, clay, finely divided organic or inorganic matter, plankton or other microscopic organisms, or elements that optically interfere with the clarity of liquid.

(31) "Water distribution system" means the portion of the public water system in which water is conveyed from the water treatment plant or other supply point to the premises of a consumer, or a system of piping and ancillary equipment that is owned and operated by an established water system independent of the water supply system from which potable water is purchased.

(32) "Water supply system" means the source of supply and all structures and appurtenances used for the collection, treatment, storage, and distribution of water for a public or semipublic water system.

(33) "Water treatment plant" or "purification plant" means that portion of the water supply system that is designated to alter the physical, chemical, or bacteriological quality of the water prior to entry to the water distribution system.

History

RELATES TO: KRS 223.160-223.220, 224.10-100, 224.10-110, 322, 40 C.F.R. 141.2
STATUTORY AUTHORITY: KRS 223.160-223.220, 224.10-100(28), 224.10-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(28) and 224.10-110(2) require the cabinet to promulgate administrative regulations for the regulation and control of the purification of water for public and semipublic use. This administrative regulation establishes the definitions for terms used by the cabinet in 401 KAR Chapter 8.
History: 401 KAR 008:010. 17 Ky.R. 584; 1422; eff. 11-15-1990; 18 Ky.R. 1165; 1841; eff. 11-26-1991; 20 Ky.R. 3010; 21 Ky.R. 309; eff. 8-24-1994; 23 Ky.R. 2538; eff. 5-14-1997; 27 Ky.R. 1546; 2505; 2728; eff. 4-9-2001; 31 Ky.R. 149; 734; 1081; eff. 1-4-2005; 35 Ky.R. 1511; eff. 4-3-2009; 2804; 36 Ky.R. 579; eff. 9-25-2009; 43 Ky.R. 2040; eff. 9-8-2017; Crt eff. 10-3-2018; Crt to Am; filing deadline 4-1-2027.

401 KAR 8:020 Public and semipublic water systems; submetering; general provisions {#sec-401-kar-8-020 omnilex-key=us-ky-regs-official--title-401--401 KAR 8:020}

Section 1. A public or semipublic water system shall be subject to the requirements of 401 KAR Chapter 8, except those exempted in 40 C.F.R. 141 and 142.

Section 2. Submetering.

(1) A property using a submeter as defined by 401 KAR 8:010 shall not be considered a public water system as defined by 40 C.F.R. 141.2 and, except for this administrative regulation and the emergency authority provisions established in Section 1431 of the federal Safe Drinking Water Act, shall be exempt from the requirements of 401 KAR Chapter 8.

(2)

(a) A property using a submeter as defined by 401 KAR 8:010 and exempt from the requirements of 401 KAR Chapter 8 shall:

Receive all of its water from a public water system and shall not change the quality of water provided to customers;
Be located on property owned by a single person, entity, individual, or a co-op or condominium association of property owners;
Not be regulated as a water utility by the Kentucky Public Service Commission; and
Not charge tenants an amount that exceeds tenants' share of the actual amount charged by the public water system to the owner or operator of a property using a submetered system, based on the tenants' actual water usage in proportion to the total amount of water used for the entire submetered property.

(b) The owner or operator of a property using a submetered system shall designate a person or organization as the owner or operator of the submetered system and shall provide the name, address, and phone number of the designated owner or operator upon request by the cabinet.

Submetered system does not have any cross connections; and
Applicable provisions of 815 KAR 20:120 have been met.

(3) An advisory received by the owner or operator pursuant to Section 3(9) of this administrative regulation shall be disseminated to property tenants in the manner established in Section 3(10) of this administrative regulation.

(4) Public notices and consumer confidence reports received by the owner or operator pursuant to 401 KAR 8:075 shall be disseminated to property tenants in the next billing period.

Section 3.

(1) Public and semipublic water systems. A person shall not operate or commence operation of a public or semipublic water system except in compliance with the provisions of 401 KAR Chapter 8 and 40 C.F.R. 141. A water supply system constructed prior to November 11, 1990 may be continued in use, if the operation, maintenance, bacteriological, chemical, physical, and radiological standards comply with 401 KAR Chapter 8, or the system obtains a variance or exemption from those standards in accordance with 40 C.F.R. 141.

(2)

(a) A cross-connection shall be prohibited.

(b) The use of automatic devices, such as a reduced pressure zone back flow preventer and a vacuum breaker, may be approved to protect public health, in lieu of air gap separation.

(c) A combination of air gap separation and an automatic device shall be required if determined by the cabinet to be necessary due to the degree of hazard to public health.

(d) Every public water system shall determine if or where a cross-connection exists and shall immediately eliminate it.

(3) A bypass shall not be created or maintained without the prior written approval of the cabinet stating the approved circumstances for establishment of a bypass, its design, and the exact conditions for its use.

(4) An auxiliary intake shall not be used in direct connection with a public or semipublic water system except with prior written approval from the cabinet stating the emergency condition that necessitates the intake.

(5) The plumbing system serving the purification plant and auxiliary facilities shall discharge to a sewer system if available.

(a) If a sewer is not available, the connection shall be made to a sewage disposal facility approved pursuant to KRS Chapter 211.350 through 211.392 or 224.16-050.

(b) There shall not be connections between the sewer system and a filter backwash, filter-to-waste drain, or clearwell overflow line, unless an air gap is provided between the drain and overflow line and the sanitary storm sewer or natural drainage system, so as to preclude the possibility of back-up of sewage or waste into the drain or overflow line.

(6) The owner or operator of a public water system shall operate and maintain the facilities and systems of treatment, intake, and distribution to comply with the provisions of 401 KAR Chapter 8 including effective performance; preventive maintenance; operator staffing and training pursuant to 401 KAR 8:030, 11:040, and 11:050; establishing representative sample points that comply with the requirements of 401 KAR Chapter 8; and adequate process controls for testing, including quality assurance procedures.

(7) Reports to the cabinet.

(a) The supplier of water shall provide a complete monthly operating report to the cabinet, which shall be received at the Division of Water, 300 Sower Boulevard, Frankfort, Kentucky 40601 not later than ten (10) days after the end of the month for which the report is filed.

A completed report shall include:

a. Volume of water treated;

b. Average number of hours per day water is being treated;

c. Type and amount of chemicals added;

d. Test results appropriate to be reported by the plant; and

e. The dated original signature, or equivalent, pursuant to KRS Chapter 369, of the owner or authorized agent.

A supplier of water shall submit the reports required by 40 C.F.R. 141.75(b) to the cabinet not later than ten (10) days after the end of each month the public water system serves water to the public.
A public water system shall report to the cabinet in accordance with 40 C.F.R. 141.31.

(b) The public water system shall submit to the cabinet a completed Annual Water System Data form, DOW0801, (April 2017) not later than January 10 of each year.

(c) Reports of failure to comply. A public water system shall report to the cabinet within forty-eight (48) hours, by phone or in writing, the failure to comply with a monitoring requirement of 401 KAR Chapter 8 or any other provision of 401 KAR Chapter 8.

(d) Emergency reports.

If a public water system experiences a line break or loss of pressure as established in 401 KAR 8:150, Section 4(2)(e), loss of disinfection, or other event that may result in contamination of the water, the public water system shall immediately report to the cabinet by calling the Division of Water in Frankfort at (502) 564-3410 or the appropriate regional field office of the Division of Water.
If a report required by this paragraph is made during other than normal business hours, it shall be made through the twenty-four (24) hour environmental emergency telephone number, (800) 928-2380.

(8) Records to be maintained. An owner or operator of a public water system shall keep the records established in 40 C.F.R. 141.33 on the premises or readily accessible to cabinet staff inspecting the system.

(9) Boil water and consumer advisories.

(a) Boil water advisories.

A public water system or semipublic water system shall issue a boil water advisory if the system believes an advisory is warranted.
The cabinet may direct that a boil water advisory be issued upon:

a. The reception of confirmed positive bacteriological results, for example, E. coli or fecal coliform, in at least one (1) sample; or

b. Other circumstances that warrant an advisory for the protection of public health.

The cabinet may, if circumstances warrant for the protection of public health, issue a boil water advisory directly, rather than rely on a public or semipublic water system to issue the advisory.
A boil water advisory shall remain in effect until the cabinet approves the lifting of the advisory based on bacteriological results showing coliform bacteria are not present in the water.

(b) Consumer advisory.

The cabinet may issue a consumer advisory if:

a. Conditions within a public water system or semipublic water system indicate a possible adverse health effect from consumption of the water distributed by the system; or

b. Other information of interest to the consumer exists.

The advisory shall notify affected persons of a required or recommended action.

Immediately notify the local health department that serves the area affected if a boil water advisory or consumer advisory is issued.

a. The notification may be made by telephone, email, or fax machine for an occurrence during normal business hours.

b. For an occurrence after normal business hours, the public or semipublic water system shall notify the affected local health department in a manner agreed upon by the system and affected health department; or

Develop a protocol with a local health department that describes when and how the system shall notify the affected health department if the system issues a boil water advisory or consumer advisory. The protocol shall address:

a. For which types of advisories the system shall notify the affected health department;

b. What procedures shall be used to notify and under what circumstances;

c. How soon after the occurrence the notification shall be made; and

d. To whom the notification shall be made, during and after business hours.

(10) How to issue an advisory.

(a) A boil water advisory or consumer advisory shall be issued through newspapers, radio, television, or other media having an immediate public impact.

(b) As a health and safety measure, the water system shall repeat the notification during the period of imminent danger at intervals that maintain public awareness.

(c)

The advisory shall be readily understandable and shall include instructions for the public, as well as an explanation of the steps being taken to correct the problem.
Boiling instructions shall caution to boil water to be used for consumption by boiling the water for at least three (3) minutes at a rolling boil.

(11) Maps.

(a) A public or semipublic water system shall have on the premises, or readily accessible to cabinet staff inspecting the system, an up-to-date map of the distribution system. The map shall, at a minimum, show:

Line size;
Cutoff valves;
Fire hydrants;
Flush hydrants;
Tanks;
Booster pumps;
Chlorination stations;
Connection to emergency or alternative sources;
Wholesale customer master meters; and
Type of piping material in the distribution system and its location.

(b)

If a public water system is not able to comply with the requirements of paragraph (a) of this subsection, the system may petition the cabinet to modify this requirement.
The petition for modification shall state specifically what portion of the requirements of paragraph (a) of this subsection is not practical and why.

(12) Operation and maintenance manual.

(a) Each public water system shall develop and keep on the premises, for operators and employees of the system, an operation and maintenance manual that includes:

A detailed design of the plant;
Daily operating procedures;
A schedule of testing requirements designating who is responsible for the tests;
Safety procedures for operation of the facility, including storage and inventory requirements for materials and supplies used by the facility; and
Procedures for issuing a boil water advisory and consumer advisory as established in this administrative regulation, including notification to the public and local health department and consumers.

(b) The operation and maintenance manual shall be updated as necessary, but not less than annually, and shall be available for inspection by the cabinet.

(c) A public water system serving fewer than 100 people or thirty (30) service connections may request that the cabinet waive the requirements of paragraphs (a) and (b) of this subsection. The request shall be in writing and any waiver granted by the cabinet shall be in writing and be retained by the public water system for examination by cabinet personnel.

(13) Flushing. Each community water system shall establish and maintain a flushing program that ensures that:

(a) Dead end and low usage mains shall be flushed periodically;

(b) Drinking water standards shall be met;

(d) Disinfectant residuals established in 401 KAR 8:150, Section 1 shall be maintained.

(14) A person shall not introduce into the water supply system a substance that may have a deleterious physiological effect, or for which physiological effects may not be known.

(15) Certified lab analysis required. For the purpose of determining compliance with the sampling requirements of 401 KAR Chapter 8, samples shall be analyzed by a laboratory certified by the cabinet as established in 401 KAR 8:040, except that measurements for turbidity, disinfectant residuals, and other parameters established by 40 C.F.R. 141.28 and 141.131 may be performed by a certified operator or an individual under the supervision of a certified operator.

(16) Right of entry. The cabinet may enter an establishment, facility, or other property of public and semipublic water supplies in order to determine if the supplies have acted or are acting in compliance with applicable laws or regulations that the cabinet has the authority to enforce.

(a) Entry may include, for example, collection of water samples for laboratory analyses and inspection of records, files, papers, processes, controls, and facilities required to be kept, installed, or used under the provisions of 401 KAR Chapter 8.

(b) The cabinet or its authorized agent may cause to be tested a feature of a public water system, including its raw water source, to determine compliance with applicable legal requirements.

(17) Water treatment chemicals and system components. Chemical additives and protective materials, such as paints and linings, may be used by a water system if they meet the requirements established in the Recommended Standards for Water Works, 2012 Edition, A Report of the Water Supply Committee of the Great Lakes-Upper Mississippi River Board of State Public Health and Environmental Managers' Recommended Standards for Water Works, 2012.

(18) Disposal of chlorinated water. Chlorinated water resulting from disinfection of treatment facilities and new, repaired, or extended distribution systems shall be disposed in a manner that shall not violate 401 KAR 10:031.

(19) Water loading stations. A public water system that provides water loading stations for the purpose of providing water to water hauling trucks or other bulk water devices shall construct the stations to conform to the standards in the Great Lakes-Upper Mississippi River Board of State Public Health and Environmental Managers' Recommended Standards for Water Works.

Section 4. The cabinet shall maintain records and submit reports as established in 40 C.F.R. 142.14, 142.15, and 142.16(f).

Section 5. A public water system may receive a variance or exemption from some provisions of 401 KAR Chapter 8 only in accordance with 40 C.F.R. 141.4.

Section 6. A public water system may use noncentralized treatment devices only in accordance with 40 C.F.R. 141.100 or bottled water only in accordance with 40 C.F.R. 141.101.

Section 7. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Recommended Standards for Water Works, 2012 Edition," A Report of the Water Supply Committee of the Great Lakes-Upper Mississippi River Board of State Public Health and Environmental Managers, 2012; and

(b) "Annual Water System Data" form, DOW0801, (April 2017).

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at Division of Water, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. This material is also available the division's Web site at http://water.ky.gov.

(3) The "Recommended Standards for Water Works, 2012 Edition," A Report of the Water Supply Committee of the Great Lakes-Upper Mississippi River Board of State Public Health and Environmental Managers, 2012, may also be obtained at http://10statesstandards.com/waterrev2012.pdf.

History

RELATES TO: KRS 211.350-211.392, 223.160-223.220, 224.10-100, 224.10-110, 224.16-050, 369, 40 C.F.R. 141, 142.14, 142.15, 142.16, 142.20, 142.21, 142.40-142.65
STATUTORY AUTHORITY: KRS 223.200, 224.10-100(28), 224.10-110(2), 40 C.F.R. 141.3, 141.31, 141.75, 142.14, 142.15, 142.20. 142.21, 142.40-142.65, 42 U.S.C. 300f-300j-26
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(28) and 224.10-110(2) authorize the cabinet to promulgate administrative regulations for the regulation and control of the purification of water for public and semipublic use. This administrative regulation establishes the general provisions for regulating public and semipublic water supplies.
History: 401 KAR 008:020. 17 Ky.R. 588; 1425; eff. 11-15-1990; 18 Ky.R. 1170; 1845; eff. 11-26-1991; 20 Ky.R. 3015; 21 Ky.R. 313; eff. 8-24-1994; 27 Ky.R. 1552; 2511; 2732; eff. 4-9-2001; 31 Ky.R. 154; 740; 1090; eff. 1-4-2005; 35 Ky.R. 1517; 2010; eff. 4-3-2009; 36 Ky.R. 2088-A; 2321; eff. 6-3-2010; 37 Ky.R. 2924; 38 Ky.R. 508; eff. 10-7-2011; TAm eff. 7-8-2016; 43 Ky.R. 2043; 44 Ky.R. 206, 516; eff. 9-8-2017; Crt eff. 10-3-2018; Crt to Am; filing deadline 4-1-2027.

401 KAR 8:022 Sanitary surveys {#sec-401-kar-8-022 omnilex-key=us-ky-regs-official--title-401--401 KAR 8:022}

Section 1.

(1) The cabinet shall conduct a sanitary survey of a public water system in accordance with the requirements of 40 C.F.R. 142.16(b)(1)(ii), (iii), and 142.16(b)(3) for systems using surface water as a source.

(2) The cabinet shall conduct a sanitary survey of a public water system in accordance with the requirements of 40 C.F.R. 141.400, 141.401, 141.403, 142.16(o) for systems using groundwater as a source.

Section 2. System Requirements.

(1) If the cabinet identifies a deficiency of a public water system in a sanitary survey report that is not significant, the public water system shall correct or otherwise address the deficiency.

(2) A deficiency shall be a significant deficiency if:

(a) It is part of a recurring pattern of noncompliance with the administrative regulations in 401 KAR Chapter 8;

(b) It poses a potential threat to public health or safety;

(c) The system fails to implement the items identified in a compliance correction program, pursuant to 40 C.F.R. 142.16(g)(1); or

(d) The deficiency is identified as significant pursuant to the requirements of 40 C.F.R. 142.16(o)(2)(iv).

History

RELATES TO: KRS 224.10-100, 224.10-110, 40 C.F.R. 141.300, 141.401, 141.403, 142.10(2), 142.16(b), 2008-531
STATUTORY AUTHORITY: KRS 224.10-100(28), 224.10-110, 40 C.F.R. 142.10(b)(2), 142.16(b), 42 U.S.C. 300f, 300g, 300h, 300j
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 and 224.10-110 require the cabinet to promulgate administrative regulations for the regulation and control of the purification of water for public and semipublic use. This administrative regulation establishes the requirements for conducting sanitary surveys and requirements on the public water system subject to a sanitary survey.
History: 401 KAR 008:022. 28 Ky.R. 1272; 1887; 2018; eff. 3-18-2002; 35 Ky.R. 2806; 36 Ky.R. 581; eff. 9-25-2009; TAm eff. 12-11-2017; Crt eff. 10-3-2018; Crt to Am; filing deadline 4-1-2027.

401 KAR 8:030 Water treatment plant and water distribution system classification and staffing {#sec-401-kar-8-030 omnilex-key=us-ky-regs-official--title-401--401 KAR 8:030}

Section 1. General Provisions.

(1)

(a) A public water system shall be operated according to the provisions of KRS Chapters 223 and 224 and 401 KAR Chapter 8.

(b) A certified operator shall not be required for a semipublic water system.

(c) Except as established in subsection (3)(c)1b, 2b, and 4b of this section, a public water system shall be operated by a certified operator, other than an operator-in-training, in direct responsible charge who holds a valid certificate in a class equal to or higher than that required for the system under supervision.

(2)

(a) A Class I Operator In Training shall not be in direct responsible charge of a water treatment, distribution, or bottled water system.

(b) A certified operator with an Operator In Training designation shall work under the direct supervision of a certified operator who:

Works at the same facility; and
Has obtained a certification level that is equal to or greater than the certification level required to serve in direct responsible charge of the facility.

(c) An Operator In Training may have direct responsible charge for a water treatment or water distribution system for which the operator holds a valid certification in a class equal to or higher than that as required by 401 KAR 11:040.

(3) Staffing requirements.

(a) Water distribution systems. A water distribution system shall be operated by or under the supervision of a distribution system operator certified in a class equal to or higher than the class of the distribution system.

(b) Combination water treatment plants and water distribution systems.

A combination water treatment plant or water distribution system shall be classified as Class IA-D, Class IB-D, or Class IIB-D.
A system classified as a combination system in subparagraph 1. of this paragraph shall be operated by or under the supervision of an operator who:

a. Holds an active combination or separate water treatment and distribution system operator certificate of the appropriate class or higher; and

b. Who shall be in direct responsible charge of the system.

A certified operator of a Class IA-D combination system shall be at the water treatment plant if water is being treated, unless the operator is performing other system-related duties.

Class IIA.

a. Except as established in subparagraph b. of this paragraph, if water is being treated, a Class IIA water treatment plant shall be operated by a certified water treatment plant operator who:

(i) Holds an active certificate in a class equal to or higher than Class IIA who shall be in direct responsible charge of the plant; and

(ii) Shall be present at the water treatment plant or performing system-related duties.

b. A Class IIA water treatment plant that treats water during more than one (1) shift per day may employ a Class IA-D certified operator for one (1) shift per day, other than the shift worked by the Class IIA operator in direct responsible charge, if the Class IIA operator in direct responsible charge shall be able to respond on site within thirty (30) minutes.

Class IIIA.

a. Except as established in subparagraph b. of this paragraph, if water is being treated, a Class IIIA water treatment plant shall be operated by a certified water treatment plant operator who:

(i) Holds an active certificate in a class equal to or higher than Class IIIA who shall be in direct responsible charge of the plant; and

(ii) Shall be present at the water treatment plant or performing system- related duties.

b. A Class IIIA water treatment plant that treats water during more than one (1) shift per day may employ a Class IIA operator for one (1) shift per day, other than the shift worked by the Class IIIA operator in direct responsible charge, if the Class IIIA operator in direct responsible charge shall be able to respond on site within thirty (30) minutes.

Class IIIB. A Class IIIB water treatment plant shall be operated by or under the supervision of a certified water treatment plant operator who:

a. Holds an active certificate in a class equal to or higher than Class IIIB; and

b. Who shall be in direct responsible charge of the system.

Class IVA.

a. Except as established in subparagraph b. of this paragraph, if water is being treated, a Class IVA water treatment plant shall be operated by a certified water treatment plant operator who:

(i) Holds an active Class IVA certificate who shall be in direct responsible charge of the plant; and

(ii) Who shall be present at the water treatment plant or performing system-related duties.

b. A Class IVA water treatment plant that treats water during more than one (1) shift per day may employ a Class IIIA operator for one (1) shift per day, other than the shift worked by the Class IVA operator in direct responsible charge, if the Class IVA operator in direct responsible charge shall be able to respond on site within thirty (30) minutes.

Class IVB. A Class IVB water treatment plant shall be operated by or under the supervision of a certified water treatment plant operator who holds an active certificate in a class equal to or higher than Class IVB who is in direct responsible charge of the system.
A public water system may propose an alternate staffing plan to the staffing requirement established in this paragraph.

a. The proposal shall be submitted to the cabinet and shall thoroughly explain the alternate proposal.

b. The proposal shall demonstrate:

(i) A necessity for the water system to vary from the requirements in this paragraph; and

(ii) An equal level of protection of human health and the environment.

c. The cabinet shall not approve an alternate proposal that does not propose that a duly certified operator in direct responsible charge operate a water treatment plant, in accordance with KRS 223.210.

(d) Bottled Water Systems. A bottled water treatment plant shall be operated by or under the supervision of a certified water treatment plant operator who:

Holds an active bottled water certification; and
Who shall be in direct responsible charge of the system.

(e) System-related duties shall be for:

Class IIA, Class IIIA, and Class IVA water systems, duties related to the operation and maintenance of the water treatment plant; or
Class IA-D water systems, duties related to the operation and maintenance of the water treatment plant and distribution system.

(4)

(a) A public water system may comply with the staffing requirements of this section by securing a contract operator or an operations firm.

(b) If a public water system secures a contract operator or operations firm to operate a treatment plant or distribution system, the public water system shall provide to the cabinet:

Name, mailing address, and telephone number of the:

a. Certified operator or contract operations firm; and

b. Principal contact within the firm for certification activities, if different;

Name, certificate type, and certificate number for each certified operator;
Facility name, public water supply identification number, and county location of each system for which the contract or operations firm operator is assuming responsibility;
Effective date and expiration date of the contract; and
Duties and responsibilities of each party to the contract.

(5) Certificate display. If a public water system office is available at the water treatment plant or within the distribution system, each operator's certificate shall be prominently displayed.

(6) Reporting requirements.

(a) A public water system shall notify the cabinet in writing within thirty (30) calendar days of a certified operator employment change.

(b)

A certified operator shall notify the cabinet within thirty (30) calendar days of a change in employment or mailing address.
Employment change information shall include:

a. The name and identification number of the public water system;

b. The effective date of the change; and

c. Whether the operator is assuming or relinquishing responsibility for the plant or system.

Section 2. Classification of Water Treatment Plants and Water Distribution Systems. There shall be four (4) classes of water treatment plants, Class I, II, III, or IV; two (2) subclasses of treatment types, A or B; four (4) classes of water distribution systems, Class I, II, III, or IV; and one (1) bottled water class.

(1)

(a) Class IV is the highest class and subclass A is the highest subclass.

(b) Combined treatment and distribution classifications for Class I and II systems shall be Class IA-D, Class IB-D, and Class IIB-D.

(2) The water treatment plant and water distribution system classifications shall correspond to the operator classifications established in 401 KAR 11:040.

(3) A public water system shall be classified according to the criteria in subsection (4) of this section.

(a)

The cabinet may change a public water system classification if necessary because of:

a. Complexity of the system due to engineering design;

b. Source water quality; or

c. Operation conditions.

Notice of a change shall be given to the owner of the public water system.

(b) The cabinet shall reclassify a nontransient noncommunity water system that treats water primarily for its industrial process with limited employee use if the calculated portion of the water produced by the water treatment plant not used for the industrial process averages less than ten (10) percent of the average daily production averaged over the most recent twelve (12) months.

(4)

(a)

A water treatment plant or system based on the cabinet-assigned design capacity for finished water production the treatment plant is able to produce in twenty-four (24) continuous hours of production, taking into consideration all limiting factors and the treatment process employed.
A water treatment plant classification shall be as established in Table 1 of this subsection.

(b)

A water distribution system shall be classified according to population served, determined as established in 401 KAR 8:200, Section 3.
A water distribution system classification shall be as established in Table 1 of this subsection.

(c) Each class of water treatment plan shall be subdivided according to the type of treatment used by the plant. The subclasses shall be:

Subclass A: a water treatment plant that treats:

a. Surface water or groundwater under the direct influence of surface water; or

b. Groundwater not under the direct influence of surface water that uses gravity filtration; and

Subclass B: a water treatment plant that treats groundwater:

a. Not under the direct influence of surface water and uses a filtration process other than gravity filtration; or

b. Not under the direct influence of surface water that does not use filtration processes.

(d) A combination treatment and distribution system shall be classified as Class IA-D, Class IB-D, or Class IIB-D.

(e) Each treatment plant comprising a single public water system shall be classified in accordance with this section, and each plant shall be operated in accordance with Section 1 of this administrative regulation.

(5) A bottled water treatment plant classification shall only apply to a bottled water system that bottles water for sale.

(6) Limited. A limited classification is available to a water treatment facility serving a school or a semipublic water system.

History

RELATES TO: KRS 223.180, 223.190, 223.200, 223.210, 223.220, 224.10-110,42 U.S.C. 300g-7, Section 1419
STATUTORY AUTHORITY: KRS 223.180 - 223.220, 224.10-100, 224.10-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 223.180-223.220 authorizes the cabinet to classify water treatment plants and distribution systems based on size, type, and physical condition and according to the skill, knowledge, and experience needed by the plant operator. KRS 224.10-110 requires the cabinet to enforce administrative regulations for the regulation and control of the purification of water for public and semipublic use and for the certification of water plant operators. This administrative regulation establishes standards for the staffing and classification of water treatment plants and water distribution systems.
History: 17 Ky.R. 592; 1428; eff. 11-15-1990; 19 Ky.R. 419; eff. 8-27-1992; 23 Ky.R. 3079; 3808; 24 Ky.R. 70; 332; eff. 8-12-1997; TAm eff. 8-9-2007; 36 Ky.R. 442; 1041; 1450; eff. 2-5-2010; TAm eff. 10-19-2011; TAm eff. 12-11-2017; Crt eff. 10-3-2018; 45 Ky.R. 3516; 46 Ky.R. 947; eff. 11-1-2019.

401 KAR 8:040 Laboratory certification {#sec-401-kar-8-040 omnilex-key=us-ky-regs-official--title-401--401 KAR 8:040}

Section 1. Laboratory Certification.

(1) The U.S. Environmental Protection Agency or the cabinet shall evaluate a public water system laboratory or a commercial laboratory that performs drinking water analysis for a public water system for certification.

(2) Contracting by the cabinet with a third party to conduct laboratory evaluations and make recommendations to the cabinet regarding certification shall be in accordance with the Manual for the Certification of Laboratories Analyzing Drinking Water; Criteria and Procedures Quality Assurance; Fifth Edition, January 2005, Publication EPA 815-R-05-004, January 2005.

(3)

(a) Certification may be for one (1) or more method analyte pair or for a single drinking water contaminant within a method analyte pair.

(b) Each method analyte pair shall require a different certification, but qualification for different certifications may be evaluated during one (1) audit.

Section 2. Application.

(1) An initial certification request may be made at any point during the calendar year.

(2) A laboratory seeking certification shall submit a written request for certification to the cabinet. The request shall include:

(a) A statement of the method analyte pair or drinking water contaminant for which certification is requested;

(b) A list of the analytic methods for each analysis for which certification is requested;

(d) Completion of a Proficiency Test (PT) study for each analysis category or drinking water contaminant for which certification is requested.

(3) The cabinet may request other information necessary to determine eligibility for certification as described in the Manual for the Certification of Laboratories Analyzing Drinking Water; Criteria and Procedures Quality Assurance; Fifth Edition, January 2005, Publication EPA 815-R-05-004, January 2005.

(4)

(a) An applicant who has been decertified in accordance with the Manual for the Certification of Laboratories Analyzing Drinking Water; Criteria and Procedures Quality Assurance; Fifth Edition, January 2005, Publication EPA 815-R-05-004, January 2005 for a method analyte pair or drinking water contaminant may request recertification in accordance with this section.

(b) The applicant for recertification shall pay the fee established in 401 KAR 8:050, Section 2.

Section 3. Public Water System Laboratory.

(1) A Public water system may establish a laboratory. Each laboratory shall be certified annually.

(2) Failure to achieve or maintain annual certification shall not relieve the public water system of the responsibility to report results of the required analyses from a certified laboratory.

Section 4. Requirements. Maintenance of certification shall require:

(1) Analysis. Analyses for drinking water contaminants shall be performed in accordance with the appropriate approved method established in 40 C.F.R. Subpart C, 141.21 through Appendix A;

(2) Submission of analysis results. The result of each analysis performed in a certified laboratory by or for a public water system shall be submitted to the cabinet by the tenth day of the month following the compliance period for which the analysis was performed and shall be submitted to the public water system as soon as possible. The public water system shall be responsible for this reporting requirement; and

(3) Proficiency Test sample. A Proficiency Test sample shall be analyzed for each method analyte pair or drinking water contaminant for which certification is requested, and the results shall be submitted to the cabinet at times established in the Manual for the Certification of Laboratories Analyzing Drinking Water; Criteria and Procedures Quality Assurance; Fifth Edition, January 2005, Publication EPA 815-R-05-004, January 2005 not to exceed twice a year, unless additional results shall be required in accordance with the Manual for the Certification of Laboratories Analyzing Drinking Water; Criteria and Procedures Quality Assurance; Fifth Edition, January 2005, Publication EPA 815-R-05-004, January 2005.

Section 5. Deviations.

(1) Deviation from accepted practice established in the Manual for the Certification of Laboratories Analyzing Drinking Water; Criteria and Procedures Quality Assurance; Fifth Edition, January 2005, Publication EPA 815-R-05-004, January 2005 listed on a report resulting from an on-site inspection, shall be corrected.

(2) A written explanation of the deviation and action taken to correct it shall be submitted to the cabinet within thirty (30) days of the issuance of the inspection report.

Section 6. Violations.

(1) A laboratory shall report any violation of a maximum contaminant level or other violation requiring Tier 1 public notification pursuant to 401 KAR 8:075 to the public water system and the cabinet within twenty-four (24) hours of sample analysis, in accordance with 40 C.F.R. 141.201-141.211, Appendices A and B.

(2) A public water system shall begin check sampling within twenty-four (24) hours of notification of a violation.

(3) Emergency provision. A laboratory shall make provisions to receive and test samples twenty-four (24) hours a day during an emergency.

Section 7. Right of Entry. A certified laboratory shall permit the cabinet to conduct on-site surveys during normal business hours, without prior notification.

Section 8. Revocation of certification and downgrading of certification shall be in accordance with the procedures established in the Manual for the Certification of Laboratories Analyzing Drinking Water; Criteria and Procedures Quality Assurance; Fifth Edition, January 2005, Publication EPA 815-R-05-004, January 2005.

(1) A laboratory that has been notified of a change of certification shall, within seventy-two (72) hours, notify the public water systems that the laboratory serves of the change in certification status and any impact that change could have on the public water system.

(2) A laboratory may provide monitoring reports by subcontracting with a laboratory that is certified by the cabinet.

Section 9. Recognition of an Out-of-state Laboratory.

(1) The cabinet shall recognize a laboratory located outside Kentucky upon submission of proof by the laboratory that it is certified by the U.S. Environmental Protection Agency, or by a state having primary enforcement responsibility for the provisions of the Safe Drinking Water Act, 42 U.S.C. 300f through 300j-26, or that is certified pursuant to the Safe Drinking Water Act, 42 U.S.C. 300f through 300j-26, requirements.

(2) A water system located in Kentucky that has entered into a contract with a certified out-of-state laboratory shall comply with time intervals and capabilities established in the Manual for the Certification of Laboratories Analyzing Drinking Water; Criteria and Procedures Quality Assurance; Fifth Edition, January 2005, Publication EPA 815-R-05-004, January 2005.

(3) If on-site inspection shall be conducted for certification of an out-of-state laboratory, the laboratory shall bear the cost.

Section 10. Incorporation by Reference.

(1) "Manual for the Certification of Laboratories Analyzing Drinking Water; Criteria and Procedures Quality Assurance; Fifth Edition, January 2005", Publication EPA 815-R-05-004, January 2005, is incorporated by reference.

History

RELATES TO: KRS 224.10-100, 40 C.F.R. 141.21, Appendix A-Subpart C, 141.201, Appendices A, B of Subpart Q
STATUTORY AUTHORITY: KRS 224.10-100(4), (5), (28), 224.10-110(2), 40 C.F.R. 141.28, 142.10, 42 U.S.C. 300f-300j-26
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-110(2) requires the cabinet to enforce the administrative regulations promulgated by the secretary for the regulation and control of the purification of water for public and semipublic use. This administrative regulation establishes procedures for certification of commercial or water system laboratories to test for drinking water contaminants.
History: 401 KAR 008:040. 17 Ky.R. 597; 1432; eff. 11-15-1990; 20 Ky.R. 3019; eff. 7-27-1994; 33 Ky.R. 1641; 3606; eff. 6-13-2007; 35 Ky.R. 1844; 2677; eff. 7-6-2009; 36 Ky.R. 1110; 1923; eff. 3-5-2010; TAm eff. 7-8-2016; 43 Ky.R. 2047; eff. 9-8-2017; Crt eff. 10-3-2018; Crt to Am; filing deadline 4-1-2027.

401 KAR 8:050 Drinking water program fees {#sec-401-kar-8-050 omnilex-key=us-ky-regs-official--title-401--401 KAR 8:050}

Section 1. Fees for the Review of Plans and Specifications for New and Existing Public and Semipublic Water Systems.

(1) Filing fees.

(a) Except as established in KRS 224.10-100, a person who submits the plans and specifications established in subsection (2) of this section shall simultaneously submit a filing fee in the amount of twenty (20) percent of the required project fee established in subsection (2) of this section.

(b) A filing fee shall not be refundable if the plans and specifications for which the filing fee is required are denied or withdrawn.

(d)

Plans and specifications not approved shall be returned to the applicant.
Further consideration of plans and specifications not approved shall require a new submittal and payment of the appropriate filing fee.

(2) Project fees.

(a) Following preliminary review of the plans and specifications, the cabinet shall notify the applicant whether or not the plans and specifications comply with 401 KAR 8:100. If the applicant is notified that the plans and specifications comply, the applicant shall submit the remainder of the fee required by paragraph (b) of this subsection.

(b) A fee for review and approval of the plans and specifications shall be assessed according to subparagraphs 1. through 3. of this paragraph.

Fee for reviewing plans of community public water systems

a. The fee for reviewing plans for a water treatment plant utilizing disinfection and all components of conventional filtration treatment shall be $800.

b. The fee for reviewing plans for a water treatment plant utilizing disinfection, but not all components of conventional filtration treatment, shall be $525.

c. The fee for reviewing plans for a water treatment plant utilizing only disinfection shall be $250.

d. The fee for reviewing plans for a change in design capacity of a water treatment plant involving disinfection and all components of conventional filtration treatment shall be $800.

e. The fee for reviewing plans for a change in design capacity of a water treatment plant involving disinfection, but not all components of conventional filtration treatment, shall be $525.

f. The fee for reviewing plans for a change in design capacity of a water treatment plant involving only disinfection shall be $125.

g. The fee for reviewing plans for a change in the structures and appurtenances, except for distribution lines of less than 10,000 feet, of a water supply system shall be $325.

h. The fee for reviewing plans of a water supply system for a change to the distribution lines of 10,000 feet or less shall be $150.

Fees for reviewing plans of noncommunity public water systems.

a. The fee for reviewing plans for a water treatment plant utilizing disinfection and all components of conventional filtration treatment shall be $800.

b. The fee for reviewing plans for a water supply system serving more than 100 people that utilizes disinfection, but not all components of conventional filtration treatment, shall be $200.

c. The fee for reviewing plans for a change to a water supply system serving more than 100 people shall be $100

d. The fee for reviewing plans for a water supply system serving 100 people or fewer, which utilizes disinfection, but not all components of conventional filtration treatment, shall be $100.

e. The fee for reviewing plans for a change to a water supply system serving 100 people or fewer shall be fifty (50) dollars.

Semipublic water systems. The fee for reviewing plans for a semipublic water system facility or a change to a semipublic water system shall be fifty (50) dollars.

Section 2. Fees for Laboratory Certification.

(1) Fees shall be received by December 31 of each calendar year prior to the certification period.

(2) A fee received after December 31 and before January 15 shall incur a surcharge of fifteen (15) percent.

(3) Laboratory certification shall be revoked if fees are not received by January 15 of the certification year.

(4) To reinstate a laboratory certification that was revoked pursuant to subsection (3) of this section, the laboratory shall comply with 401 KAR 8:040, Section 2, and shall pay a surcharge of twenty-five (25) percent of the certification fee established in Table A in subsection (5) of this section.

(5) The annual fee for certification by analysis category shall be as established in Table A:

(6) Fees shall apply to in-state and out-of-state laboratories.

(7)

(a) A laboratory may request a ten (10) percent discount of the following year's certification fee if it submits compliance data electronically for one (1) calendar year.

(b) To be eligible for the discount:

The laboratory's data shall not contain errors;
The laboratory shall not err in the electronic-submittal process; and
The laboratory shall comply with 401 KAR 8:040, Section 4.

(8) A laboratory certified by the National Environmental Laboratory Association Certification Institute (TNI) or a National Environmental Laboratory Association Program accrediting authority may request a ten (10) percent discount of the total certification fee for which it maintains the TNI certification.

History

RELATES TO: KRS 223.220, 224.10-100, 224.10-110, 40 C.F.R. 142.10, Pub.L. 104-182, 2008-531
STATUTORY AUTHORITY: KRS 223.220, 224.10-100(20), 224.10-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(20) authorizes the cabinet to establish, by administrative regulation, a fee or schedule of fees for the cost of processing applications for permits authorized by KRS Chapter 224. KRS 224.10-110 requires the cabinet to enforce cabinet administrative regulations for review, approval, or disapproval of plans for water purification and distribution systems. This administrative regulation establishes fees for reviewing plans and specifications of public water systems and for laboratory certification.
History: 17 Ky.R. 599; eff. 11-15-1990; 35 Ky.R. 1847; eff. 7-6-2009; TAm eff. 12-11-2017; Crt eff. 10-3-2018; 45 Ky.R. 3519; 46 Ky.R. 950; eff. 11-1-2019.

401 KAR 8:075 Consumer confidence reports and public notification {#sec-401-kar-8-075 omnilex-key=us-ky-regs-official--title-401--401 KAR 8:075}

Section 1. Consumer Confidence Reports.

(1) A community water system shall submit an annual consumer confidence report to its customers and to the cabinet in accordance with 40 C.F.R. 141 Subpart O, 141.151, 141.152, 141.153, 141.155, including Appendix A, and 141.154, except as established in subsection (2) of this section.

(2) A copy of the annual report required by 40 C.F.R. 141.155 shall be delivered to the cabinet and the system's customers by July 1 each year.

(3) The certification required by 40 C.F.R. 141.155 shall be delivered to the cabinet by July 1 each year.

Section 2. Public Notification. The owner or operator of a public water system shall give public notice as established in 40 C.F.R. Subpart Q, 141.201 through 141.211, Appendix A, Appendix B, and Appendix C.

History

RELATES TO: KRS 224.10-100, 224.10-110, 40 C.F.R. 141.151-141.155, 42 U.S.C. 300f-300j-26
STATUTORY AUTHORITY: KRS 224.10-100(28), 224.10-110, 40 C.F.R. 141.151-141.155, 141.201-141.211, Appendix A, Appendix B, Appendix C, 42 U.S.C. 300f-300j-26
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-110(2) and (3) require the secretary of the cabinet to promulgate administrative regulations for the regulation and control of the purification of water for public and semipublic use. This administrative regulation establishes the requirements for consumer confidence reports and notification of the public if a public water system violates a provision of this administrative regulation. This administrative regulation establishes requirements more stringent than the federal regulation for submitting consumer confidence reports and certifications to the cabinet in enforceable timeframes. The federal regulation requires a consumer confidence report to be certified within three (3) months after it is mailed to the cabinet. This administrative regulation requires that the report and certification be delivered to the cabinet by July 1 of each year.
History: 401 KAR 008:075. 27 Ky.R. 1665; 2515; 2746; eff. 4-9-2001; 31 Ky.R. 177; 763; 1110; eff. 1-4-2005; 33 Ky.R. 1651; 2987; 3615; eff. 6-13-2007; 35 Ky.R. 1529; eff. 4-3-2009; 2808; 36 Ky.R. 409; eff. 9-25-2009; 43 Ky.R. 2049; 44 Ky.R. 237; eff. 9-8-2017; Crt eff. 10-3-2018; Crt eff. 10-1-2025.

401 KAR 8:100 Design, construction, and approval of facilities and approval timetable for 401 KAR Chapter 8 {#sec-401-kar-8-100 omnilex-key=us-ky-regs-official--title-401--401 KAR 8:100}

Section 1. Preliminary Engineering Report.

(1) A preliminary engineering report for a proposed new facility or a modification to an existing facility shall be prepared by a professional engineer and submitted to the cabinet.

(a) Except as established in paragraph (b) of this subsection, a supplier or potential supplier of water shall submit the preliminary engineering report to the cabinet before entering into a financial commitment for or initiating construction of a new public water system or increasing the capacity of an existing public water system.

(b) A preliminary engineering report shall not be required for:

A semipublic treatment facility; or
Construction, extension, or improvement of a distribution system.

(d) An applicant for a proposed new public water system or modification to an existing public water system shall not locate a proposed surface water intake five (5) miles or less downstream from the discharge of an existing wastewater treatment plant. The cabinet may issue a variance to the five (5) mile limitation established in this paragraph if the applicant demonstrates that the:

Water quality at the proposed intake located five (5) miles or less downstream of a wastewater treatment plant will not be significantly affected by the discharge from the wastewater treatment plant; and
The proposed new public water system or modification to an existing public water system has the capacity to treat the source water in order that finished water will be in compliance with 401 KAR Chapter 8.

(2) The preliminary engineering report shall include:

(a) The name of the applicant and of the owner of the plant;

(b) A map that shows the location of the proposed facility;

(c) The proposed source of water and the quantity available, with the location of the intake or wellhead identified by latitude and longitude in degrees, minutes, and seconds;

(d) An analysis of the water from the proposed source for contaminants regulated pursuant to 401 KAR Chapter 8, performed by a certified laboratory;

(e) A detailed description of the proposed facility;

(f) A detailed flow diagram of the proposed facility;

(g) A demonstration that the intake or intakes comply with subsection 1(d) of this section;

(h) Pilot study conclusions, if conducted; and

(i) An operation plan, including:

Anticipated load;
Hours of operation;
Area served; and
Number and certification of operational staff.

(3) Preliminary engineering report approval.

(a) The preliminary engineering report shall be consistent with the requirements of:

Recommended Standards for Water Works, 2012 Edition, A Report of the Water Supply Committee of the Great Lakes-Upper Mississippi River Board of State Public Health and Environmental Managers, 2012;
General Design Criteria for Surface and Ground Water Supplies, April 2010; and
Subsection 1(d) of this section.

(b) Upon receipt and review of the preliminary engineering report, the cabinet shall either approve the preliminary engineering report or return it to the applicant for revision.

Final plans shall not be submitted until the preliminary engineering report has been approved.
Approval of the preliminary engineering report shall not constitute final approval for construction.
A proposed change in the preliminary engineering report shall be submitted to the cabinet and approved prior to incorporation in the final plans.

Section 2. Final Plans and Specifications.

(1) Final plans and specifications for the construction or modification of a water treatment plant or a distribution facility shall be consistent with:

(a) Recommended Standards for Water Works, 2012 Edition, A Report of the Water Supply Committee of the Great Lakes-Upper Mississippi River Board of State Public Health and Environmental Managers, 2012;

(b) General Design Criteria for Surface and Ground Water Supplies, April 2010; and

(d) If a preliminary engineering report is required pursuant to Section 1 of this administrative regulation, the final plans and specifications shall be consistent with the approved preliminary engineering report.

(e)

Plans for the construction or modification of a public water system shall be submitted by the water system or shall be accompanied by a letter from the water system confirming that the water system has reviewed the plans, accepts the design, and has the capacity to and shall provide water service to the project.
A public water system that purchases water from another public water system shall submit a letter from the providing water system verifying the providing water system has the capacity and shall provide water service to the purchasing water system, including the proposed project if the project will result in:

a. Demand for water exceeding eighty-five (85) percent of the purchasers current purchase contract; or

b. Increased water demand by the purchaser by 10,000 gallons or more per day.

(f) Engineering plans and specifications shall;

Be submitted to the cabinet
Be prepared by a professional engineer licensed in Kentucky; and
Bear the engineer's seal, signature, and date of signature.
Prior to the construction or modification of a public or semipublic water system, the following documents and fees shall be submitted to the cabinet:

a. Two (2) copies of the plans and specifications or changes thereto, one (1) of which shall be in an electronic format;

b. For construction or modification of a distribution system, a complete Construction Application for Drinking Water Distribution, DW-1, (8/2010) form;

c. For the construction or modification of a treatment facility, a completed Construction Application for Drinking Water Treatment, DW-2, (8/2010) form;

d. For construction or modification of a semi-public facility, a completed Construction Application for Small Groundwater and Semi-Public Systems, DW-3, (8/2010) form;

e. A map that shows the location of the proposed facility;

f. Hydraulic calculations;

g. Design data and supporting documents necessary for review of the plans and specifications;

h. Chemical and microbiological analyses of a new raw water source if the plans and specifications are for a treatment facility; and

i. The fee required by 401 KAR 8:050.

Construction or modification of a public or semipublic water system shall not begin until the plans and specifications have been approved by the cabinet in writing; and
The front page of the plans shall identify the:

a. Public water system;

b. Owner of the public water system;

c. Public water system's location by city and county; and

d. Professional engineer preparing the plans.

(g) The cabinet's review of plans and specifications shall be limited to sanitary features of design and other features of public health significance and shall not include a review of structural, mechanical, or electrical design.

(h) The plans shall be drawn to scale and shall be accompanied by specifications, so as to allow a comprehensive engineering review, and shall include:

Plan and sectional views with all necessary dimensions; and
A piping diagram in sufficient detail to allow a hydraulic analysis of the system.

(2) Approval of final plans.

(a) Upon receipt and review of final plans and specifications, the cabinet shall either approve the final plans and specifications in writing or return them to the applicant for revision.

(b) If approved, one (1) set of approved plans and specifications shall be returned to the engineer, and one (1) set shall be returned to the water system.

Section 3. Construction.

(1)

(a) During construction, a set of approved plans and specifications shall be available at the job site.

(b) Construction shall be performed in accordance with the approved plans and specifications.

(2) If the cabinet's representative observes work being performed in a manner that does not conform to the approved plans and specifications, the cabinet shall notify the owner in writing.

(3) Unless construction begins within two (2) years from the date of approval of the final plans and specifications, the approval shall expire.

Section 4. Final Approval of Facility.

(1) Upon completion of construction, a professional engineer shall certify in writing that the project has been completed in accordance with the approved plans and specifications.

(2) A proposed change to the approved plans affecting sanitary features of design shall be submitted to the cabinet for approval in accordance with Section 2 of this administrative regulation.

(3) The public water system shall not implement a change to the approved plans without the prior written approval of the cabinet.

Section 5. Modifications and Extension of Service. The cabinet shall not approve a modification of a public water system or an extension of service to one (1) or more customers if the modification or extension of service is likely to result in the water system's inability to supply consistent water service in compliance with 401 KAR 8:010 through 8:510.

Section 6. Treatment Techniques. A public water system shall comply with the treatment technique requirements established in 40 C.F.R. 141.110 through 141.111, General requirements and treatment techniques for acrylamide and epichlorohydrin.

Section 7. Variance. If plans and specifications deviate from the requirements of this administrative regulation, a written request for a variance shall be submitted with the plans and specifications or preliminary plans.

(1) The variance request shall include:

(a) A description of the reason for the variance request;

(b) The basis for the alternate plans or specifications, which shall be supported by current engineering practices; and

(2) A variance shall not be approved if it will not protect public health, water quality, and the environment.

Section 8. Approval Timetables.

(1) A complete request for approval shall contain all the administrative and technical information required pursuant to 401 KAR Chapter 8, KRS Chapter 224, and 40 C.F.R. 141 and 142.

(2)

(a) Except for the projects established in subsection (2)(b) of this section, the cabinet shall issue its final decision on a request for preliminary or final approval of plans and specification reviews within forty-five (45) calendar days of receipt of the complete request for approval.

(b) The cabinet shall issue its final decision on a request for a preliminary or final approval of plans and specification reviews for construction or modification of a water treatment plant within ninety (90) calendar days of receipt of the complete request for approval.

(3) Timetable Extensions.

(a) If two (2) or more permits for a facility, site, source, construction project, or other entity are required from the cabinet, the cabinet may coordinate the issuance of the permits, establishing different review and action times that shall be accomplished by the cabinet or applicant.

(b) If the permits are coordinated, the cabinet shall notify the applicant and indicate the time frames under which the intermediate and final permit actions shall be accomplished.

(c) The established time frame for final action shall not exceed the last date for action pursuant to 401 KAR Chapter 8, KRS Chapter 224, and 40 C.F.R. 141 and 142, based on all applications being considered and the filing date of each application.

Section 9. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Recommended Standards for Water Works, 2012 Edition, A Report of the Water Supply Committee of the Great Lakes-Upper Mississippi River Board of State Public Health and Environmental Mangers", 2012;

(b) "General Design Criteria for Surface and Ground Water Supplies", April 2010;

(d) "Construction Application for Drinking Water Treatment", DW-2, 8/2010; and

(e) "Construction Application for Small Groundwater and Semi-Public Systems", DW-3, 8/2010.

(3) "Recommended Standards for Water Works, 2012 Edition, A Report of the Water Supply Committee of the Great Lakes-Upper Mississippi River Board of State Public Health and Environmental Managers', 2012, may also be obtained at http://10statesstandards.com/waterrev2012.pdf.

History

RELATES TO: KRS 151.634, 224.10-110, 322.020(1), 322.340, 40 C.F.R. 141
STATUTORY AUTHORITY: KRS 224.10-100, 224.10-110, 224.10-220, 40 C.F.R. 141.5, 142.10, 142.16, 42 U.S.C. 300j-26
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-110 (2), (3), and (4) require the cabinet to enforce administrative regulations promulgated by the secretary for the regulation and control, including construction and operation of facilities, of the purification of water for public and semipublic use. KRS 224.10-220 requires the cabinet to establish timetables for the issuance of all permits by the cabinet, except those permits for which a timetable is set out by statute. This administrative regulation establishes design plan requirements for the construction of new and expanded facilities that deliver potable water for public or semipublic use and establishes requirements for submitting plans and specifications for modifications to existing facilities and a timeline for cabinet review and approval or disapproval of plans. There is not a federal regulation that deals with this subject matter; therefore, this administrative regulation is not more stringent than federal requirements.
History: 401 KAR 008:100. 17 Ky.R. 609; 1437; 1715; 1977; eff. 11-15-1990; 20 Ky.R. 3037; 21 Ky.R. 316; eff. 7-27-1994; 23 Ky.R. 2560; eff. 5-14-1997; 37 Ky.R. 123; Am. 991; eff. 1-3-2011; TAm eff. 7-8-2016; 43 Ky.R. 2051; 44 Ky.R. 519; eff. 9-8-2017; Crt eff. 10-3-2018; Crt to Am; filing deadline 4-1-2027.

401 KAR 8:150 Disinfection, filtration, and recycling {#sec-401-kar-8-150 omnilex-key=us-ky-regs-official--title-401--401 KAR 8:150}

Section 1. Disinfection. A public and semipublic water system shall provide disinfection, except as provided in this section. A semipublic water system shall comply with the requirements of this section for public water systems or meet the requirements of Section 2(2) of this administrative regulation.

(1) A public water system using groundwater or surface water as a source.

(a) A public water system that uses chlorine shall:

Use continuous automatic disinfection by chlorination;
Provide a minimum free chlorine residual of two-tenths (0.2) milligrams per liter, or ppm, throughout the distribution system measured as described in subsection (2) of this section;
Check free chlorine residuals daily at representative points throughout the system; and
Report the free chlorine residuals monthly pursuant to 401 KAR 8:020, Section 3(7)(a).

(b)

Disinfecting agents other than chlorine may be used pursuant to 40 C.F.R. 141.172(c).
If chloramination is used, a minimum combined residual of five-tenths (0.5) milligrams per liter, or ppm, shall be provided throughout the distribution system.

(2) A public water system using surface water as a source or groundwater under the direct influence of surface water shall provide disinfection treatment as established in 40 C.F.R. 141.72(b).

(3) If a disinfection residual fails to comply with Section 1(1) of this administrative regulation, the public shall be notified in accordance with 401 KAR 8:020, Section 3(9).

(4) Variances or exemptions shall not be granted for subsection (2) of this section.

Section 2. Filtration.

(1) A public water system using a surface water source or a groundwater system with wells with variable or high turbidity due to characteristics of the raw water that may cause an adverse health effect shall establish a filtration system. The design for the system shall be submitted to the cabinet in accordance with 401 KAR 8:100 and shall comply with 40 C.F.R. 141.73.

(2)

(a) A semipublic water system shall provide a contact period of at least thirty (30) minutes between the chorine and the water to allow adequate time for disinfection, or may enter into a protocol with the cabinet whereby the filtration and disinfection requirements of this administrative regulation shall be achieved using filtration technology, disinfection technology, or a combination of both, if the technology shall achieve a ninety-nine and nine-tenths (99.9) percent (3-log) removal or inactivation of Giardia lamblia cysts and 99.99 percent (4-log) removal or inactivation of viruses.

(b) The protocol shall contain a schedule for maintenance and testing of the filtration and disinfection equipment to assure that the requirements of this subsection are met.

(d) If surface water is a source of water, filtration shall be an element of the protocol.

(e) If groundwater not under the direct influence of surface water is the only source of water, a semipublic water system eligible under this subsection may enter into a protocol with the cabinet to demonstrate through a regular schedule of bacteriological testing that filtration or disinfection is not needed.

Section 3. Analytical and Monitoring Requirements.

(1) Analytical requirements. Analyses required by this administrative regulation shall be conducted in accordance with the requirements of 40 C.F.R. 141.74(a).

(2) Monitoring requirements. A public water system that uses a surface water source or a groundwater source under the influence of surface water shall monitor in accordance with 40 C.F.R. 141.74(c).

Section 4. Disinfection of Treatment and Distribution System Facilities, New and Repaired Water Lines.

(1) New construction projects and line extensions.

(a) Disinfection. A water treatment plant or distribution system, including storage distribution tanks, or extensions to existing systems, shall be thoroughly disinfected before being placed in service.

(b) A water distribution system shall disinfect with chlorine or chlorine compounds in amounts that shall produce a concentration of at least fifty (50) ppm and a residual of at least twenty-five (25) ppm at the end of twenty-four (24) hours, and the disinfection shall be followed by a thorough flushing.

(c) Other methods and testing procedures that provide an equivalent level of protection may be used if the cabinet grants prior written approval in accordance with 40 C.F.R. 141.21.

(d) A new water distribution line shall not be placed into service until bacteriological samples taken at the points specified in paragraph (f) of this subsection are examined and are shown to be negative following disinfection.

(e) A water treatment plant or distribution system shall submit to the cabinet results of bacteriological samples for each new construction project, replacement, or extension to existing systems, after the disinfection and flushing.

(f) A sample shall be taken in the newly constructed line at each of the following points:

Within 1,200 feet downstream of each connection point between the existing and new lines;
One (1) mile intervals; and
Each dead end, without omitting any branch.

(g) A new or routine replacement line shall not be placed in service until negative laboratory results are obtained on the bacteriological analyses.

(h) Sample bottles shall be clearly identified as "special" construction tests, and the results submitted to the cabinet shall be clearly marked as "special" samples.

(i)

Notification of analytical results shall be submitted to the cabinet with the routine monthly compliance bacteriological samples, unless the bacteriological samples are to be used to lift a boil water advisory.
Samples used to lift a boil water advisory shall be submitted to the cabinet as soon as results are known.

(2) Line repairs due to breaks or ruptures.

(a) The system shall thoroughly flush the break area and maintain at least a minimum disinfectant residual, pursuant to Section 1(1) of this administrative regulation.

(b) The system may leave the line in service or return the line to service before receiving bacteriological results and may forego a boil water advisory if:

Pressure is maintained;
The break area is thoroughly flushed; and
At least the minimum disinfectant residual is maintained, pursuant to Section 1(1) of this administrative regulation.

(c)

The system shall take at least two (2) bacteriological tests, one (1) located before, or just upstream of, the break or rupture, and one (1) located behind, or just downstream of, the break or rupture, as close to the break or rupture as practical pursuant to 40 C.F.R. 141.21. Additional samples may be required, if necessary to be representative of the area affected by the break.
Sample bottles shall be clearly identified as "special" tests, and the results submitted to the cabinet shall be clearly marked as "special" samples.

(d)

Records of results shall be submitted to the cabinet with routine monthly compliance samples, unless the samples are required to lift a boil water advisory, and shall be maintained for one (1) year.
Samples needed to remove a boil water advisory shall be submitted to the cabinet as soon as the results are known.

(e) A water system shall notify the cabinet immediately if:

The pressure drops below twenty (20) pounds per square inch in the distribution system surrounding the break; or
A break or rupture occurs that requires more than eight (8) hours to repair, with the eight (8) hours beginning when the water system becomes aware of the break.

(f) Boil Water Advisories shall be issued in accordance with 401 KAR 8:020, Section 3(9).

(g) Reports pursuant to 401 KAR 8:020, Section 3(7)(c) shall not be required for a loss of pressure, break, or rupture occurring in service lines serving only one (1) single family residence.

(h)

A community or nontransient noncommunity public water system shall maintain a log of all breaks or ruptures, which shall include the:

a. Date and location of the break or rupture;

b. Time it was discovered;

c. Population affected;

d. Length of time required to repair the break or rupture;

e. Date and time disinfectant residuals are detected; and

f. Date and time bacteriological samples are taken.

The log shall be available for inspection by the cabinet.

Section 5. Uncovered Facility. A public or semipublic water system subject to this administrative regulation shall not begin construction of an uncovered finished water storage facility.

Section 6. Recycling. A public water system shall comply with the requirements established in 40 C.F.R. 141.76.

Section 7. In addition to the other requirements of this administrative regulation, for disinfection and filtration, a public water system that uses surface water as a source and that serves 10,000 or more persons, shall meet the requirements established in 40 C.F.R. 141.170 and 141.172 through 141.175.

Section 8. In addition to the other requirements of this administrative regulation for disinfection and filtration, a public water system that uses surface water as a source and that serves less than 10,000 persons shall meet the requirements established in 40 C.F.R. 141.500 through 141.571.

Section 9. In addition to the other requirements of this administrative regulation for disinfection and filtration, a public water system that uses surface water as a source shall meet the requirements for enhanced treatment for Cryptosporidium as established in 40 C.F.R. 141 Subpart W, 141.700 through 141.723.

Section 10. In addition to the other requirements of this administrative regulation for disinfection and filtration, a public water system that uses groundwater as a source shall comply with the requirements established in 40 C.F.R. 141.400 through 141.405.

History

RELATES TO: KRS 224.10-100, 224.10-110, 40 C.F.R. 141.70-141.76
STATUTORY AUTHORITY: KRS 224.10-100(28), 224.10-110(2), 40 C.F.R., 141.21, 141.65, 141.70-141.76, 141.130(d), 141.400-141.405, 141.500-141.605, 141.700-141.723, 142.16, 42 U.S.C. 300f-300j-26
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(28) and 224.10-110(2) require the cabinet to promulgate administrative regulations for the regulation and control of the purification of water for public and semipublic use. This administrative regulation establishes requirements for the disinfection, filtration, recycling, and testing of drinking water in a public or semipublic water system using surface water or groundwater not under the direct influence of surface water. This administrative regulation differs from the federal regulation by requiring filtration of water supplies that have surface water sources and disinfection of water supplies whose source is groundwater.
History: 401 KAR 008:150. 17 Ky.R. 612; 1439; 1717; eff. 11-15-1990; 18 Ky.R. 1180; 1853; eff. 11-26-1991; 20 Ky.R. 3041; 21 Ky.R. 318; eff. 8-24-1994; 23 Ky.R. 2563; eff. 5-14-1997; 27 Ky.R. 1568; 2755; eff. 4-9-2001; 31 Ky.R. 189; 775; 1121; eff. 1-4-2005; 33 Ky.R. 1662; 3625; eff. 6-13-2007; 35 Ky.R. 1541; 2013; eff. 4-3-2009; TAm eff. 10-20-2009; 36 Ky.R. 2094-A; 37 Ky.R. 50; eff. 8-5-2010; TAm eff. 10-10-2017; TAm eff. 12-11-2017; Crt eff. 10-3-2018; Crt eff. 10-1-2025.

401 KAR 8:200 Microbiological monitoring {#sec-401-kar-8-200 omnilex-key=us-ky-regs-official--title-401--401 KAR 8:200}

Section 1. A "public water system" as defined by 40 C.F.R. 141.2", shall meet the requirements established in 40 C.F.R. 141.21, 141.52, and 141.63.

Section 2. Beginning January 1, 2016, a public water system shall comply with the requirements established in 40 C.F.R. 141.851 through 141.861, except that a sample site plan required by 40 C.F.R. 141.853 shall be submitted to the cabinet no later than December 31, 2015. A semipublic water system shall take a minimum of one (1) total coliform bacteria sample each month the system is in operation.

Section 3. Population served shall be determined by the appropriate method established in this section.

(1) A "community water system", as defined by 40 C.F.R. 141.2, and a "semipublic water system", as defined by 401 KAR 8:010, shall:

(a) Use the most recent decennial census count conducted by the United States Census Bureau;

(b) Use the serviceable population established by the Water Resources Information System database located at http://wris.ky.gov/portal/sysdata;

(d) Utilize a method mutually agreed upon by a community or semipublic water system and the cabinet.

(2) A "non-transient non-community public water system", as defined by 40 C.F.R. 141.2, shall use the actual population served.

(3) A "transient non-community public water system", as defined by 40 C.F.R. 141.2, shall use the actual population served.

(4) A public water system shall provide the figure to the cabinet in its December Monthly Operating Report established in 401 KAR 8:020, Section 3(7), by the tenth day of the month following the determination.

(5) A semipublic water system shall immediately notify the cabinet in writing if the population served calculation changes its classification from a semipublic water system to another classification.

History

RELATES TO: KRS 224.10-110, 40 C.F.R. 141.21, 141.52, 141.63, 141.851 - 861
STATUTORY AUTHORITY: KRS 224.10-100(28), 224.10-110(2), 40 C.F.R. 141.21, 42 U.S.C. 300f-300j-26
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-110(2) requires the cabinet to enforce administrative regulations promulgated by the secretary for the regulation and control of the purification of water for public and semipublic use. This administrative regulation establishes a schedule and method for sampling drinking water to test for bacteriological contaminants, establishes maximum contaminant levels for bacteria, and establishes requirements if tests show maximum contaminant levels have been exceeded.
History: 401 KAR 008:200. 17 Ky.R. 614; 1440; eff. 11-15-1990; 18 Ky.R. 1186; 1857; eff. 11-26-1991; 20 Ky.R. 3045; 21 Ky.R. 321; eff. 8-24-1994; 23 Ky.R. 2568; eff. 5-14-1997; 35 Ky.R. 1546; 2017; eff. 4-3-2009; 36 Ky.R. 2097-A; 2323; eff. 6-3-2010; 41 Ky.R. 316; 807; 1050; eff. 12-5-2014; TAm eff. 10-10-2017; Crt eff. 10-3-2018; Crt eff. 10-1-2025.

401 KAR 8:250 Inorganic and organic chemical sampling, analytical techniques, maximum contaminant levels, radionuclides, and secondary standards {#sec-401-kar-8-250 omnilex-key=us-ky-regs-official--title-401--401 KAR 8:250}

Section 1. Inorganic and Organic Chemical Sampling, Analytical Techniques, and Maximum Contaminant Levels.

(1) A public water system shall meet the requirements for inorganic chemicals as established in 40 C.F.R. 141.11, 141.23, 141.41, 141.51, and 141.62.

(2) A public water system shall meet the requirements for organic chemicals as established in 40 C.F.R. 141.24, 141.50, and 141.61.

Section 2. Radionuclides. A community water system shall meet the requirements for radionuclides as established in 40 C.F.R. 141.25, 141.26, 141.55, and 141.66.

Section 3. Sampling, Analysis, Reporting, and Treatment for Secondary Contaminants.

(1) A public water system that treats groundwater or surface water shall sample for secondary contaminants as established in 40 C.F.R. 143.1 through 143.4.

(a) An analysis for secondary contaminants shall be performed if a new source of water supply is proposed to the cabinet for preliminary approval pursuant to 401 KAR 8:100, Section 1.

(b) Excessive amounts of these contaminants or excessive costs for removal of these contaminants shall be grounds for rejection of the proposed source of water.

(2)

(a) An existing public water system that treats groundwater or surface water shall sample for, analyze, and report the secondary contaminants listed in 40 C.F.R. 143.3 annually, and if consumer complaints indicate the presence of one (1) or more of these contaminants.

(b) Treatment shall be adequate to assure that the secondary contaminant level does not exceed the maximum level limits established in 40 C.F.R. 143.3.

(3) A sample shall be taken from each entry point to the distribution system.

(4) If a secondary maximum contaminant level established in 40 C.F.R. 143.3 is exceeded by a supplier of water, the cabinet may direct that supplier to modify the treatment procedure or to locate a more suitable source of water if the exceeded contaminant level results in a violation of the primary drinking water standards or in consumer complaints.

History

RELATES TO: KRS 224.10-100, 224.10-110, 40 C.F.R. 141, 142, 143
STATUTORY AUTHORITY: KRS 224.10-100(28), 224.10-110(2), 40 C.F.R. 141, 142, 143
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-110(2) requires the cabinet to enforce administrative regulations promulgated by the secretary for the regulation and control of the purification of water for public and semipublic use. This administrative regulation establishes sampling and analytical requirements for certain inorganic and organic chemicals and sets maximum contaminant levels for those chemicals which, if exceeded, may affect public health. This administrative regulation establishes the requirements for sampling and testing procedures for radionuclides and establishes maximum contaminant levels for safe drinking water. This administrative regulation establishes maximum contaminant levels and requirements for the sampling and testing for contaminants that do not have a direct impact on the health of consumers, but may discourage the utilization of drinking water or discredit the supplier. Provisions for these contaminants are referred to as "secondary standards". This administrative regulation establishes sampling schedules and requires public water systems to modify treatment to comply with maximum levels established by federal regulation. Federal regulations leave monitoring frequency and consequences for exceeding secondary standards to primacy agency discretion.
History: 401 KAR 008:250. 17 Ky.R. 619; eff. 11-15-1990; 20 Ky.R. 3051; 21 Ky.R. 326; eff. 7-27-1994; 23 Ky.R. 2573; eff. 5-14-1997; 33 Ky.R. 1671; 3003; 3634; eff. 6-13-2007; 35 Ky.R. 1551; 2020; eff. 4-3-2009; 36 Ky.R. 2099-A; 2324; eff. 6-3-2010; 43 Ky.R. 2065; eff. 9-8-2017; Crt eff. 10-3-2018.; Crt to Am; filing deadline 4-1-2027

401 KAR 8:300 Lead and copper {#sec-401-kar-8-300 omnilex-key=us-ky-regs-official--title-401--401 KAR 8:300}

Section 1. A public water system shall meet the requirements for control of lead corrosivity and copper as established in:

(1) 40 C.F.R. 141.42, 141.43, 141.80 through 141.91, and 141.154; and

(2) 42 U.S.C. 300g-6.

History

RELATES TO: 40 C.F.R. 141.42, 141.43, 141.80-141.91, 141.154, 42 U.S.C. 300f-300j-26
STATUTORY AUTHORITY: KRS 224.10-100(28), 224.10-110(2), 40 C.F.R. 141.43, 141.80-141.91, 42 U.S.C. 300f-300j-26
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(28) and 224.10-110(2) require the cabinet to promulgate administrative regulations for the regulation and control of the purification of water for public and semipublic use. This administrative regulation limits lead in drinking water facilities and establishes standards for lead and copper in drinking water.
History: 401 KAR 008:300. 17 Ky.R. 622; eff. 11-15-1990; 20 Ky.R. 3057; eff. 7-27-1994; 23 Ky.R. 2579; eff. 5-14-1997; 31 Ky.R. 194; 1124; eff. 1-4-2005; 35 Ky.R. 1557; 2025; eff. 4-3-2009; 36 Ky.R. 2100; 2324; eff. 6-3-2010; 41 Ky.R. 318; 1050; eff. 12-5-2014.; Crt eff. 10-3-2018; Crt to Am; filing deadline 4-1-2027.

401 KAR 8:510 Disinfectant residuals, disinfection by-products, and disinfection by-product precursors {#sec-401-kar-8-510 omnilex-key=us-ky-regs-official--title-401--401 KAR 8:510}

Section 1. A public water system shall meet the requirements established in 40 C.F.R. 141.130 through 141.135, 141.600 through 141.605, 141.620 through 141.629, 141.53, 141.54, 141.64, and 141.65.

Section 2. A purchasing system shall monitor for maximum residual disinfectant levels at the same points in the distribution system and at the same time as total coliforms are sampled as established in 401 KAR 8:200.

History

RELATES TO: KRS 224.10-100, 224.10-110
STATUTORY AUTHORITY: KRS 224.10-100(28), 224.10-110(2), 40 C.F.R. 141.53, 141.54, 141.64, 141.65, 141.130-141.135, 141.600-141.605, 141.620-141.629, 42 U.S.C. 300f-300j-26
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(28) and 224.10-110(2) require the cabinet to enforce administrative regulations promulgated by the secretary for the regulation and control of the purification of water for public and semipublic use. This administrative regulation establishes the maximum contaminant levels for total trihalomethanes and haloacetic acid five (5) to limit the levels of known and unknown disinfection by-products.
History: 27 Ky.R. 1680; 2529; 2764; eff. 4-9-2001; 1677; 3009; 3640; eff. 6-13-2007; 35 Ky.R. 1573; eff. 4-3-2009; 2810; 36 Ky.R. 582; eff. 9-25-2009; 2101-A; 2324; eff. 6-3-2010; 44 Ky.R. 1880; eff. 5-4-2018; Crt eff. 4-18-2025.

401 KAR 8:700 Bottled water {#sec-401-kar-8-700 omnilex-key=us-ky-regs-official--title-401--401 KAR 8:700}

Section 1. Applicability.

(1) A bottled water system that bottles water within the Commonwealth shall comply with the provisions of 401 KAR Chapter 8 except:

(a) Distribution system monitoring and compliance applicable to public water systems, including provisions for chlorine residual and disinfection by-products; and

(b) The public notification requirements of 401 KAR 8:070 and the reporting requirements of 401 KAR 8:075; and

(2) Water bottled outside the Commonwealth shall not be subject to this administrative regulation, regardless of its source.

Section 2. Disinfection and Treatment.

(1) Disinfection shall be by chlorination, ultraviolet light, ozonation, or chlorine dioxide.

(2) "Filtration", as defined by 40 C.F.R. 141.2, shall be used for all sources identified as "surface water" or "groundwater under the direct influence of surface water", as defined by 40 C.F.R. 141.2.

(3) A bottled water system that uses a surface water source may use treatment techniques that are different from other surface water users if equivalent treatment is provided.

(4) Water located in the line after bottling operations cease shall be flushed before bottling is resumed.

Section 3. Sampling, Monitoring, and Reporting.

(1) Analysis shall be performed with a method established in 401 KAR Chapter 8 in a laboratory that shall be certified to conduct testing pursuant to 401 KAR 8:040.

(2) Monitoring results, including the Monthly Operating Report, shall be received by the cabinet no later than the tenth day of the month following the end of the reporting period.

(3) If no treatment or bottling of water occurred during the reporting month, the bottled water system shall notify the cabinet in its Monthly Operating Report established in 401 KAR 8:020, Section 2(7), no later than the tenth day of the following month.

(4) Microbiological Sampling and Monitoring. A bottled water system shall conduct microbiological sampling and testing as established in 401 KAR 8:200.

(a) Each sample shall be taken after water disinfection and prior to the water being placed in a bottle, with no intervening stagnant storage; or

(b) A sample may be taken from a bottle immediately after bottling and before the bottle leaves the plant.

(5) Turbidity Sampling and Monitoring.

(a) A bottled water system shall conduct turbidity sampling once every four (4) hours the system is in operation, regardless of source. The system may substitute continuous monitoring for grab sampling as established in 401 KAR 8:150, Section 3(2), and may use the average turbidity value for each four (4) hour increment to determine compliance with turbidity performance criterion in paragraph (b) of this subsection.

(b) The turbidity level of the system's product water shall be less than or equal to three-tenths (0.3) nephelometric turbidity units (NTU) in not less than ninety-five (95) percent of the measurements taken each month, and shall never exceed one (1) NTU.

(6) Disinfectant Sampling and Monitoring. Monitoring for disinfectants shall occur after disinfection but prior to bottling, with no intervening stagnant storage.

(a) Chlorine dioxide. A bottled water system that uses chlorine dioxide shall monitor daily for chlorine dioxide.

The Maximum Residual Disinfection Level (MRDL) for chlorine dioxide shall not exceed 0.8 mg/L.
No two (2) consecutive daily samples shall exceed the MRDL for chlorine dioxide.
A bottled water system shall immediately take steps to lower the level of chlorine dioxide in finished water if the MRDL for chlorine dioxide is exceeded.

(b) Chlorite. A bottled water system that uses chlorine dioxide as a disinfectant shall monitor for chlorite annually. The Maximum Residual Disinfection Level (MRDL) for chlorite shall not exceed 1.0 mg/L.

(c)

Ozone. A bottled water system that uses ozone shall monitor:

a. Monthly for bromate; or

b. Annually for bromate if the system demonstrates that the average bromate concentration is less than 0.0025 mg/L calculated as a running annual average of monthly bromate samples.

The Maximum Contaminant Level (MCL) for bromate shall not exceed 0.010 mg/L.

(7) Chemical contaminants.

(a) A bottled water system shall monitor for chemical contaminants after treatment but before bottling, with no intervening stagnant storage.

(b) A sample may be taken from a bottle immediately after bottling and before the bottle leaves the plant.

Annually for inorganic and organic contaminants established in 401 KAR 8:250, including sodium;
Annually for secondary contaminants established in 401 KAR 8:600, except that a bottled water system may exceed maximum secondary contaminant levels for purposes of bottling mineral water or other water if:

a. Each consumer is informed by labeling as established in 902 KAR 45:050; and

b. The system obtains written cabinet approval after:

(i) Submitting secondary contaminant results before and after treatment; and

(ii) Providing justification for any exceedances;

Annually for lead and copper as established in 401 KAR 8:300;
Annually for total trihalomethanes and haloacetic acids established in 401 KAR 8:510; and
Every four (4) years for radiological contaminants established in 401 KAR 8:550.

(d) Exception. A bottled water system that uses as its source a public water system as defined in 40 C.F.R. 141.2 and is subject to 401 KAR Chapter 8 may substitute the monitoring results of the public water system to satisfy the requirements of this subsection if the bottled water system submits a letter to the cabinet postmarked no later than January 30 of each year stating that it shall:

Use the annual results of their public water system source for that calendar year; and
Conduct monitoring established in this subsection that has not been conducted by the public water system source.

Section 4. Failure to Comply.

(1) A bottled water system that exceeds a MCL or MRDL or otherwise fails to comply with this administrative regulation shall:

(a) Immediately cease operations;

(b) Notify the cabinet as established by 401 KAR 8:020, Section 2(7)(c), and the Cabinet for Health and Family Services, Department for Public Health; and

(c) Not resume operations without the written approval of the cabinet and the Cabinet for Health and Family Services, Department for Public Health.

(2) Enforcement of this administrative regulation shall be pursued for bottled water systems in the same manner as other public water systems.

History

RELATES TO: KRS 224.10-100, 224.10-110, 21 C.F.R. 129.35, 165.110
STATUTORY AUTHORITY: KRS 224.10-100, 224.10-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-110 requires the cabinet to enforce the administrative regulations adopted by the secretary for the regulation and control of the purification of water for public and semipublic use. This administrative regulation establishes provisions to assure the purity of water placed in bottles that will be resold as a food for human consumption or other consumer use. U.S. EPA does not have a federal regulation relating to bottled water. Certain provisions of this administrative regulation are more stringent than the FDA requirements. The cabinet requires that plans, reports, and monitoring results be submitted to the cabinet to ensure that compliance with all public health standards is achieved without more frequent, costly on-site inspections, and that systems monitor for chlorite more frequently to ensure that public health standards are met for any disinfectant residuals.
History: 401 KAR 008:70. 17 Ky.R. 645; eff. 11-15-1990; 23 Ky.R. 2614; eff. 5-14-1997; 31 Ky.R. 211; 780; eff. 1-4-2005; 41 Ky.R. 320; 1051; eff. 12-5-2014; Crt eff. 10-3-2018; Crt to Am; filing deadline 4-1-2027.

Chapter 9 Water Quality Certification

401 KAR 9:010 Section 401 Individual Water Quality Certification public notice {#sec-401-kar-9-010 omnilex-key=us-ky-regs-official--title-401--401 KAR 9:010}

Section 1. Public Notice.

(1) The cabinet shall give public notice of receipt of a complete application for a Section 401 Individual Water Quality Certification.

(a) A complete application shall contain the information necessary to allow a meaningful review of the project based on its merits.

An applicant for a project relating to surface mining coal operations shall submit the Application for Water Quality Certification for Surface Coal Mining Activities.
All other applicants seeking certification shall submit the Application for Permit to Construct Across or Along a Stream and/or Water Quality Certification.

(b) If an application is incomplete, a notice shall be sent to the applicant indicating the areas of the application that are deficient.

(2) Section 401 Individual Water Quality Certification public notices may describe more than one (1) certification or action and may be a part of other public notices under the Federal Water Pollution Control Act, 33 U.S.C. 1251-1387.

Section 2. Methods.

(1) The cabinet shall post public notices on its Web site, www.eec.ky.gov; and

(2) The cabinet shall give public notice to:

(a) An applicant or person who has requested an electronic copy of Section 401 Individual Water Quality Certification public notices; and

(b) An applicant or person who has requested to be notified by standard mail of Section 401 Individual Water Quality Certification public notices.

Section 3. Content. A public notice shall contain at least the following information:

(1) The name and address of the applicant and, if different, the address or location of the activity regulated by the certification;

(2) The name, address, and telephone number of the applicant or applicant's representative to contact for further information;

(3) A brief description of the comment procedures, including deadlines;

(4) A brief description of the proposed activity and its purpose;

(5) The location of the waters of the Commonwealth affected by the proposed activity; and

(6) The location and availability of the application for public inspection.

Section 4. Public Comment.

(1) The public comment period shall expire thirty (30) days from the date of the public notice.

(2) The cabinet shall consider comments prior to making a final determination on a certification.

Section 5. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Application for Water Quality Certification for Surface Coal Mining Activities", Form DNR-WQC, July 2008.

(b) "Application for Permit to Construct Across or Along a Stream and/or Water Quality Certification", July 2008.

History

RELATES TO: KRS 224.01-010, 224.10-100, 224.16-050, 224.16-070, 350.060, 33 U.S.C. 1251-1387, EO 2008-507, 2008-531
STATUTORY AUTHORITY: KRS 224.16-050, 33 U.S.C. 1341
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.16-050 authorizes the cabinet to certify pursuant to 33 U.S.C. 1341 that applicants for a federal permit regarding the construction or operation of facilities, which may result in a discharge of dredged or fill material into the waters of the Commonwealth, as defined in KRS 224.01-010(33), shall comply with the applicable provisions of the Federal Water Pollution Control Act, 33 U.S.C. 1251-1387. This administrative regulation establishes the procedures for public notice of Section 401, Individual Water Quality Certifications. EO 2008-507 and 2008-531, effective June 16, 2008, abolish the Environmental and Public Protection Cabinet and establish the new Energy and Environment Cabinet. This administrative regulation is not more stringent than the federal counterpart.
History: 401 KAR 009:010. 34 Ky.R. 2369; 35 Ky.R. 34; 259; eff. 8-21-2008; TAm eff. 7-8-2016; Crt eff. 10-4-2018; Crt to Am, filing deadline 2-28-2027.

401 KAR 9:020 Section 401 Water Quality Certification fees and certification timetable {#sec-401-kar-9-020 omnilex-key=us-ky-regs-official--title-401--401 KAR 9:020}

Section 1. Definitions.

(1) "Agriculture operation" is defined by KRS 224.71-100(1).

(2) "Natural person" means an individual person distinguished from a person as defined in KRS 224.01-010(17).

(3) "Personal residence" means a natural person's primary place of abode.

Section 2. Fee Remittance. Fees for water quality certifications shall be remitted to the Kentucky State Treasurer, which shall be for the sole use of the cabinet in administration of the 401 water quality certification program and shall be in addition to money appropriated by the General Assembly for the use of the cabinet.

Section 3. Review Fees for Individual Water Quality Certification Applications for Stream Impacts. Fees for the review of individual water quality certification applications for stream impacts shall be as follows:

(1) $1,000 for an impact greater than 500 linear feet but less than 1,000 linear feet;

(2) $2,500 for an impact of 1,000 to 5,000 linear feet; and

(3) $5,000 for an impact greater than 5,000 linear feet.

Section 4. Review Fees for Individual Water Quality Certification Applications for Wetland Impacts.

(1) Fees for the review of individual water quality certification applications for wetland impacts shall be $500 per acre of impacted wetland.

(2) The fee charged for review of an individual water quality certification application for wetland impacts shall not exceed $5,000.

Section 5. Exemptions. The following shall be exempt from Section 401 certification fees:

(1) Applications for Section 401 general water quality certifications;

(2) Agriculture operations; and

(3) Personal residences.

Section 6. Timetable for Review of Section 401 Water Quality Certifications.

(1) The cabinet shall issue its final decision on a certification application within 120 calendar days after receipt of a complete application, pursuant to 401 KAR 9:010, Section 1(1), except as provided in subsection (3) of this section.

(2) Within thirty (30) calendar days of initial receipt of an application for a section 401 water quality certification, the cabinet shall issue a notice of deficiency if the application is not complete.

(3) Timetable exclusions. Time periods that shall not be counted towards the cabinet review schedule referenced in subsection (1) of this section include:

(a) Time waiting for the applicant to respond to a notice of deficiency;

(b) Time during which the certification, application, decision, or related matter is the subject of litigation, including administrative hearings or court proceedings, between the cabinet and the applicant;

(d) Time waiting for Section 401 Water Quality Certification fees to be paid after the cabinet's certification decision regarding the application is made; and

(e) Other times as agreed to by the applicant and the cabinet.

History

RELATES TO: KRS Chapter 224, 224.10-220, 224.10-100, 224.16-050, 224.16-070, 224.71-100, 33 U.S.C. 1251-1387, EO 2008-507, 2008-531
STATUTORY AUTHORITY: KRS 224.10-100, 224.10-220, 224.16-050, 33 U.S.C. 1251, 1341
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 authorizes the cabinet to establish a fee for the cost of processing applications for permits authorized under KRS Chapter 224. KRS 224.10-220 requires the cabinet to establish timetables for the issuance of permits. KRS 224.16-050 authorizes the cabinet to certify, pursuant to 33 U.S.C. 1341, that applicants for a federal permit for the construction or operation of facilities, which may result in a discharge into the waters of the Commonwealth, will comply with the applicable provisions of the Federal Water Pollution Control Act, 33 U.S.C. 1251-1387. This administrative regulation establishes fees and a certification timetable for processing applications for Section 401 Water Quality Certifications. EO 2008-507 and 2008-531, effective June 16, 2008, abolish the Environmental and Public Protection Cabinet and establish the new Energy and Environment Cabinet. This administrative regulations is neither more nor less stringent than federal requirements.
History: 401 KAR 009:020. 35 Ky.R. 35; 815; eff. 10-8-2008; Crt eff. 9-5-2018; Crt to Am; filing deadline 2-28-2027.

Chapter 10 Water Quality Standards

401 KAR 10:001 Definitions for 401 KAR Chapter 10 {#sec-401-kar-10-001 omnilex-key=us-ky-regs-official--title-401--401 KAR 10:001}

Section 1. Definitions.

(1) "Acute criteria" means the highest instream concentration of a toxic substance or an effluent to which an organism can be exposed for one (1) hour without causing an unacceptable harmful effect.

(2) "Acute to chronic ratio" means the ratio of the acute toxicity, expressed as an LC50, of an effluent or a toxic substance, to its chronic toxicity. It is used as a factor to estimate chronic toxicity from acute toxicity data.

(3) "Acute toxicity" means lethality or other harmful effect sustained by either an indigenous aquatic organism or a representative indicator organism used in a toxicity test, due to a short-term exposure, of ninety-six (96) hours or less, to a specific toxic substance or mixture of toxic substances.

(4) "Acute toxicity unit" means the reciprocal of the effluent dilution that causes the acute effect, or LC50, by the end of the acute exposure period.

(5) "Adversely affect" or "adversely change" means to alter or change the community structure or function, to reduce the number or proportion of sensitive species, or to increase the number or proportion of pollution tolerant aquatic species so that aquatic life use support or aquatic habitat is impaired.

(6) "Balanced indigenous community" means a biotic community typically characterized by diversity, the capacity to sustain itself through cyclic seasonal changes, presence of necessary food chain species, and a lack of domination by pollution tolerant species. The community may include historically nonnative species introduced in connection with a program of wildlife management and species whose presence or abundance results from substantial, irreversible environmental modification. Normally, such a community does not include species whose presence or abundance is attributable to the introduction of pollutants that will be eliminated by compliance of all sources with 401 KAR 5:065, and may not include species whose presence or abundance is attributable to alternative effluent limitations imposed pursuant to 401 KAR 5:055.

(7) "Bathing area" means those surface waters that:

(a) Are frequented by bathers for swimming;

(b) Have a lifeguard; or

(8) "Best management practices" or "BMPs" means:

(a) For agriculture operations, as defined by KRS 224.71-100(3); or

(b) For all other purposes:

Schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of waters of the commonwealth; and
Treatment requirements; operating procedures; and practices to control site run-off, pollution of surface water and groundwater from nonpoint sources, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

(9) "Chronic criteria" means the highest instream concentration of a toxic substance or an effluent to which organisms are able to be exposed for ninety-six (96) hours without causing an unacceptable harmful effect.

(10) "Chronic toxicity" means lethality, reduced growth or reproduction, or other harmful effect sustained by either indigenous aquatic organisms or representative indicator organisms used in toxicity tests due to long-term exposures, relative to the life span of the organisms or a significant portion of their life span, to toxic substances or mixtures of toxic substances.

(11) "Chronic toxicity unit" means the reciprocal of the effluent dilution that causes twenty-five (25) percent inhibition of growth or reproduction to the test organisms by the end of the chronic exposure period.

(12) "Clean Water Act" or "CWA" means the Clean Water Act as subsequently amended, 33 U.S.C. Section 1251 through 1387, otherwise known as the Federal Water Pollution Control Act.

(13) "Cold water aquatic habitat" or "CAH" means surface waters and associated substrate that are able to support indigenous aquatic life or self-sustaining or reproducing trout populations on a year-round basis.

(14) "Combined sewer" or "combined sewer line" means a sewer or sewer line designed to carry stormwater runoff as well as sanitary wastewater.

(15) "Combined sewer overflow" or "CSO" means the flow from a combined sewer in excess of the interceptor or regulator capacity that is discharged into a receiving water without going to a POTW.

(16) "Conventional domestic water supply treatment" means or includes coagulation, sedimentation, filtration, and disinfection.

(17) "Criteria" or "water quality criteria" means elements of state water quality standards expressed as constituent concentrations, levels, or narrative statements, that represent a quality of water that supports a particular designated use.

(18) "Day" means a twenty-four (24) hour period.

(19) "Discharge" or "discharge of a pollutant" means the addition of a pollutant or combination of pollutants to waters of the commonwealth from a point source.

(20) "Division" means the Kentucky Division of Water, within the Department for Environmental Protection, Energy and Environment Cabinet.

(21) "Domestic" means relating to household wastes or other similar wastes. It is used to distinguish municipal, household, or commercial water or wastewater services from industrial water or wastewater services.

(22) "Domestic water supply" or "DWS" means surface waters that with conventional domestic water supply treatment are suitable for human consumption through a public water system as defined by 40 C.F.R. 141.2, culinary purposes, or for use in a food or beverage processing industry; and meet state and federal regulations promulgated pursuant to the Safe Drinking Water Act, as amended, 42 U.S.C. 300f - 300j-26.

(23) "Effluent limitations" is defined by KRS 224.1-010(11).

(24) "Environmental Protection Agency", "EPA", or "U.S. EPA" means the United States Environmental Protection Agency.

(25) "Epilimnion" means the thermally homogeneous water layer overlying the metalimnion of a thermally stratified lake or reservoir.

(26) "E. coli" or "Escherichia coli" means an aerobic and facultative anaerobic gram negative, nonspore forming, rod shaped bacterium that is ortho-nitrophenyl-B-D-galactopyranoside (ONPG) positive, and Methylumbelliferyl glucuronide (MUG) positive. It is a member of the indigenous fecal flora of warm-blooded animals.

(27) "Eutrophication" means the enrichment of a surface water with nutrients nitrogen and phosphorus resulting in adverse effects on water chemistry and the indigenous aquatic community. Resulting adverse effects on water chemistry manifest by daily dissolved oxygen supersaturation followed by low dissolved oxygen concentrations and diurnal increase in pH. Resulting adverse effects on the indigenous aquatic community include:

(a) Nuisance algae blooms;

(b) Proliferation of nuisance aquatic plants;

(c) Displacement of diverse fish or macroinvertebrate community by species tolerant of nutrient-enriched environments; or

(d) Fish kills brought on by severe, sudden episodes of plant nutrient enrichment.

(28) "Exceptional water" means a surface water categorized as exceptional by the cabinet pursuant to 401 KAR 10:030.

(29) "Existing use" means a legitimate use being attained where the quality or habitat to support the legitimate use was achieved in or on a surface water of the commonwealth on or after November 28, 1975, irrespective of its use designation.

(30) "Expanded discharge" means an increase in pollutant loading of twenty (20) percent or greater.

(31) "°F" means degrees Fahrenheit.

(32) "General permit" means a:

(a) "General permit" as defined by 40 C.F.R. 122.2; or

(b) KPDES permit issued pursuant to 401 KAR 5:055 authorizing a category of discharges or non-discharging facilities pursuant to KRS Chapter 224 within a geographical area.

(33) "Harmonic mean flow" means the reciprocal of the mean of the reciprocal daily flow values.

(34) "High quality water" means a surface water categorized as high quality by the cabinet pursuant to 401 KAR 10:030.

(35) "Impact" means a change in the chemical, physical, or biological quality or condition of a surface water.

(36) "Impairment" means a detrimental impact to a surface water that prevents attainment of a designated use.

(37) "Indigenous aquatic community" means naturally occurring aquatic organisms including bacteria, fungi, algae, aquatic insects, other aquatic invertebrates, reptiles, amphibians, and fishes. Under some natural conditions one (1) or more of the above groups may be absent from a surface water.

(38) "Inhibition concentration of twenty-five (25) percent" or "IC25" means the concentration that is determined by a linear interpolation method for estimating the concentration at which a twenty-five (25) percent reduction is shown in reproduction or growth in test organisms, and which statistically approximates the concentration at which an unacceptable chronic effect is not observed.

(39) "Intermittent water" means a stream that flows only at certain times of the year.

(40) "Kentucky Pollutant Discharge Elimination System" or "KPDES" means the Kentucky program for issuing, modifying, revoking and reissuing, revoking, monitoring, and enforcing permits to discharge, and imposing and enforcing pretreatment requirements.

(41) "KPDES permit" means a Kentucky Pollutant Discharge Elimination System permit issued to a facility, including a POTW, or activity pursuant to KRS Chapter 224 for the purpose of operating the facility or activity.

(42) "LC1" means that concentration of a toxic substance or mixture of toxic substances that is lethal, or immobilizing if appropriate, to one (1) percent of the organisms tested in a toxicity test during a specified exposure period.

(43) "LC50" means that concentration of a toxic substance or mixture of toxic substances that is lethal, or immobilizing if appropriate, to fifty (50) percent of the species tested in a toxicity test during a specified exposure period.

(44) "Long-term CSO control plan" means a control plan that complies with the Combined Sewer Overflow Control Policy issued by the U.S. EPA and published in the Federal Register on April 19, 1994 (59 FR 18688).

(45) "Maintain" means to preserve or keep in present condition by not allowing an adverse permanent or long-term change to water quality or to a population of an aquatic organism or its habitat.

(46) "Measurement" means the ability of the analytical method or protocol to quantify as well as identify the presence of the substance in question.

(47) "µg/L" means micrograms per liter, same as ppb, assuming unit density.

(48) "Milligrams per liter" or "mg/L" means the milligrams of substance per liter of solution, and is equivalent to parts per million in water, assuming unit density.

(49) "Mixing zone" means a domain of a water body contiguous to a treated or untreated wastewater discharge with quality characteristics different from those of the receiving water. The discharge is in transit and progressively diluted from the source to the receiving system. The mixing zone is the domain where wastewater and receiving water mix.

(50) "Natural water quality" means those naturally occurring physical, chemical, and biological properties of waters.

(51) "Nonpoint" means a source of pollutants not defined by a point source.

(52) "Normal temperature" means the temperature that would exist in waters of the commonwealth without the change of enthalpy of artificial origin.

(53) "Other wastes" means sawdust, bark or other wood debris, garbage, refuse, ashes, offal, tar, oil, chemicals, acid drainage, wastes from agricultural enterprises, and other foreign substances not included within the definitions of industrial wastes and sewage that may cause or contribute to the pollution of waters of the Commonwealth.

(54) "Outstanding national resource water" means a surface water categorized by the cabinet as an outstanding national resource water pursuant to 401 KAR 10:030.

(55) "Outstanding state resource water" means a surface water designated by the cabinet as an outstanding state resource water pursuant to 401 KAR 10:031.

(56) "pCi/L" means picocuries per liter.

(57) "PCR" means primary contact recreation.

(58) "Point source" is defined by 33 U.S.C. 1362(14). The term does not include agricultural stormwater run-off or return flows from irrigated agriculture.

(59) "Pollutant" is defined by KRS 224.1-010.

(60) "POTW" means publicly owned treatment works as defined by KRS 224.1-010.

(61) "Primary contact recreation water" means those waters suitable for full body contact recreation during the recreation season of May 1 through October 31.

(62) "Productive aquatic community" means an assemblage of indigenous aquatic life capable of reproduction and growth.

(63) "Propagation" means the continuance of a species by successful spawning, hatching, and development or natural generation in the natural environment, as opposed to the maintenance of the species by artificial culture and stocking.

(64) "Regional facility plan" means a type of water quality management plan addressing point sources of pollution for the purpose of areawide waste treatment management planning prepared by the designated regional planning agency pursuant to Sections 201, 205, and 208 of the Clean Water Act, 33 U.S.C. 1251-1387, to control point sources of pollution within a planning area.

(65) "Representative indicator organism" means an aquatic organism designated for use in toxicity testing because of its relative sensitivity to toxicants and its widespread distribution in the aquatic environment.

(66) "SCR" means secondary contact recreation.

(67) "Secondary contact recreation waters" means those waters suitable for partial body contact recreation, with minimal threat to public health due to water quality.

(68) "Seven-Q-ten" or "7Q10" means that minimum average flow that occurs for seven (7) consecutive days with a recurrence interval of ten (10) years.

(69) "Source" means a building, structure, facility, or installation from which there is or may be a discharge of pollutants.

(70) "Standard" or "water quality standard" means the designated uses of a surface water of the commonwealth and the water quality criteria necessary to maintain and protect the designated uses as established in 401 KAR Chapter 10.

(71) "Stormwater" is defined by 40 C.F.R. 122.26(b)(13).

(72) "Surface waters" means those waters having well-defined banks and beds, either constantly or intermittently flowing; lakes and impounded waters; marshes and wetlands; and any subterranean waters flowing in well-defined channels and having a demonstrable hydrologic connection with the surface. Lagoons used for waste treatment and effluent ditches that are situated on property owned, leased, or under valid easement by a permitted discharger are not considered to be surface waters of the commonwealth.

(73) "Total dissolved solids" or "TDS" is defined by 40 C.F.R. 122.2.

(74) "Total suspended solids" or "TSS" means the total suspended solids (nonfilterable residue) as determined by use of the method specified in 40 C.F.R. Part 136.

(75) "Toxic substance" means a substance that is bioaccumulative, synergistic, antagonistic, teratogenic, mutagenic, or carcinogenic and causes death, disease, a behavioral abnormality, a physiological malfunction, or a physical deformity in an organism or its offspring or interferes with normal propagation.

(76) "Warm water aquatic habitat" or "WAH" means a surface water and associated substrate capable of supporting indigenous warm water aquatic life.

(77) "Wetlands" is defined by 40 C.F.R. 122.2.

(78) "Zone of initial dilution" means the limited area permitted by the cabinet surrounding or downstream from a discharge location where rapid, first-stage mixing occurs. The zone of initial dilution is the domain where wastewater and receiving water initially mix.

History

RELATES TO: KRS 146.200 - 146.360, 146.410 - 146.535, 146.550 - 146.570, 146.600 - 146.619, 146.990, 224.1-010, 224.1-400, 224.16-050, 224.16-070, 224.70-100 - 22.70-150, 224.71-100 - 224.71-145, 224.73-100 - 224.73-120, 40 C.F.R. 136
STATUTORY AUTHORITY: KRS 224.10-100, 224.70-100, 224.70-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 authorizes the cabinet to promulgate administrative regulations for the prevention, abatement, and control of all water pollution. This administrative regulation establishes definitions for terms used in 401 KAR Chapter 10.
History: 35 Ky.R. 208; Am. 856; 1452; eff. 1-5-2009; 39 Ky.R. 561; eff. 4-5-2013; 46 Ky.R. 154, 1186; eff. 1-3-2020.

401 KAR 10:026 Designation of uses of surface waters {#sec-401-kar-10-026 omnilex-key=us-ky-regs-official--title-401--401 KAR 10:026}

Section 1. Scope of Designation.

(1) All surface waters of the Commonwealth listed in this administrative regulation shall be designated for all legitimate uses contained in KRS 224.70-100(1):

(a) Except as established in 401 KAR 10:031, Sections 5 and 8 and listed in Tables B and C of this administrative regulation; or

(b) Unless redesignated in accordance with the procedures established in Section 2 of this administrative regulation and listed in Table D of this administrative regulation.

(2) Designated uses are:

(a) Warm water aquatic habitat;

(b) Cold water aquatic habitat;

(d) Secondary contact recreation;

(e) Domestic water supply; and

(f) Outstanding state resource water.

(3) Waters listed in this administrative regulation shall meet all criteria applicable to their designated uses and those criteria listed in 401 KAR 10:031, Section 2, unless the:

(a) Cabinet grants an exception pursuant to 401 KAR 10:031, Section 10 or 11; or

(b) Uses for a listed water have been redesignated pursuant to Section 2 of this administrative regulation.

(4) Outstanding state resource waters may have unique water quality characteristics that shall be protected by additional criteria established in 401 KAR 10:031, Section 8.

Section 2. Redesignation of Surface Water Uses.

(1)

(a) Surface waters shall not be redesignated except upon affirmative findings by the cabinet pursuant to Sections 3 and 4 of this administrative regulation and consistent with 40 C.F.R. 131.10(g).

(b) Before redesignating a surface water, the cabinet shall provide notice and an opportunity for a public hearing.

(2) In redesignating a surface water, the cabinet shall ensure that its water quality standards provide for the maintenance of downstream water quality and shall not preclude the attainment of designated uses of downstream surface waters.

(3) A designated use shall not be removed for a surface water if:

(a) That use is an existing use; or

(b) The use may be attained by implementing effluent limitations required under Sections 301(b) and 306 of the Clean Water Act, 33 U.S.C. 1311(b) and 1316, and by implementing cost-effective best management practices for nonpoint source control.

(4) If a surface water is designated for a use that is not an existing use, the cabinet shall redesignate the surface water upon demonstration and consistent with 40 C.F.R. 131.10(g) that the designated use is unattainable because:

(a) Naturally occurring pollutant concentrations prevent the attainment of the use;

(b) Natural, ephemeral, intermittent, or low flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges;

(c) Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place;

(d) Dams, diversions, or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the surface water to its original condition or to operate the modification in a way that would result in the attainment of the use;

(e) Physical conditions related to the natural features of the surface water, but unrelated to water quality, preclude attainment of the aquatic life use, such as the lack of a proper substrate, cover, flow, depth, pools, or riffles; or

(f) Controls more stringent than those required by Sections 301(b) and 306 of the Clean Water Act, 33 U.S.C. 1311(b) and 1316, would result in substantial and widespread economic and social impact as determined by:

The guidelines in Interim Economic Guidance for Water Quality Standards Workbook, EPA, March 1995; or

a. An updated Combined Sewer Overflow Long Term Control Plan Financial Capability Assessment developed in accordance with the Combined Sewer Overflows Guidance for Financial Capability Assessment and Schedule Development (EPA, February 1997); and

b. An updated Combined Sewer Overflow Long Term Control Plan alternatives analysis developed in accordance with the Combined Sewer Overflow Control Policy (EPA, 1994) if the cabinet determines it necessary.

(5) The cabinet shall re-examine any waterbody with water quality standards that do not include the uses established in this administrative regulation every three (3) years to determine if any new information has become available as established in 40 C.F.R. 131.20(a).

(6) Redesignations shall be consistent with the antidegradation provisions of 401 KAR 10:029 and 10:030.

Section 3. Documentation for Redesignations.

(1)

(a) A person may request redesignation of surface water uses by petition to the cabinet.

(b) The petitioner shall provide the cabinet with the documentation required in subsection (3) of this section and shall have the burden of proof that the redesignation is appropriate.

(2)

(a) The cabinet may propose redesignations of surface water uses.

(b) The cabinet shall provide documentation for those surface waters that it proposes for use redesignation.

(3) Except for waters identified pursuant to 401 KAR 10:031, Section 8(1)(a), documentation to support the redesignation of a surface water of the Commonwealth shall be:

(a) A United States Geological Survey 7.5 minute topographic map or its equivalent showing those surface waters to be redesignated, with a description consisting of a river mile index with existing and proposed discharge points;

(b) Existing uses and water quality data for the surface waters for which the redesignation is proposed. If adequate data are unavailable, additional studies shall be required by the cabinet;

(c) Descriptions of general land uses and specific land uses adjacent to the surface waters for which the redesignation is proposed;

(d) The existing and designated uses of the downstream waters into which the surface water under consideration discharges;

(e) General physical characteristics of the surface water including width, depth, bottom composition, and slope;

(f) The frequency of occasions if there is no natural flow in the surface water and the 7Q10 and harmonic mean flow values for the surface water and adjacent surface waters;

(g) An assessment of the existing and potential aquatic life habitat in the surface waters under consideration and the adjacent upstream surface waters.

The existing aquatic life shall be documented and livestock and natural wildlife dependence on the surface water shall be assessed; and
The occurrence of individuals or populations, indices of diversity and well-being, and abundance of species of unique native biota shall be documented;

(h) The proposed designated uses for the surface water in question; and

(i) An explanation of the irretrievable person-induced, or natural conditions that preclude attainment of a higher use designation or an assessment of the substantial and widespread social and economic impacts resulting from the imposition of additional controls necessary for existing point sources, beyond the most stringent effluent limitation levels normally required for the sources. This explanation shall be in accordance with the:

Interim Economic Guidance for Water Quality Standards Workbook (EPA, 1995); or
Combined Sewer Overflows Guidance for Financial Capability Assessment and Schedule Development (EPA, February 1997).

Section 4. Procedures for Redesignation.

(1) For each of the surface waters for which a redesignation is proposed, the cabinet or petitioner shall prepare a fact sheet containing:

(a) The name and address of the petitioner;

(b) The name and sketch or description of the surface water proposed for specified use redesignations, including the location of existing and proposed dischargers;

(d) A brief abstract of the supportive documentation, which demonstrates that the redesignation is appropriate;

(e) The appropriate water quality criteria for the surface water based on the proposed designated use;

(f) The treatment requirements proposed for discharges to the surface water in question if designated for the proposed use; and

(g) A "plain English" summary of the implications of the designation for the community and other users or potential users of the surface water in question.

(2) The cabinet shall document the determination to propose or deny redesignation as a result of a petition, and shall provide a copy of the decision to the petitioner and other interested parties.

Section 5. Surface Water Use Designations.

(1) Listed in the tables in this administrative regulation are the use designations for specific surface waters of the Commonwealth. The identifying symbols for use designations are listed in table A of this section.

(2) Domestic water supply criteria in 401 KAR 10:031, Section 6, are implemented at locations listed in Table B in this paragraph.

(3) Table C in this subsection lists waters that have an added designated use of CAH or OSRW.

(a) The WAH designated use does not apply to waters designated as CAH unless both WAH and CAH are indicated in Table C.

(b) Table D in this subsection lists waters that have been redesignated pursuant to Section 2 of this administrative regulation or have approved exceptions to criteria pursuant to 401 KAR 10:031 Sections 10 or 11.

Section 6. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Interim Economic Guidance for Water Quality Standards Workbook", EPA, March 1995 Publication EPA-823-B-95-002. U.S. Environmental Protection Agency, Office of Water, Washington, D.C.;

(b) "Combined Sewer Overflows - Guidance for Financial Capability Assessment and Schedule Development", EPA, February 1997; and

(3)

(a) "Interim Economic Guidance for Water Quality Standards Workbook", EPA, March 1995 may also be obtained at https://www.epa.gov/sites/production/files/2016-03/documents/econworkbook-complete.pdf;

(b) "Combined Sewer Overflows - Guidance for Financial Capability Assessment and Schedule Development", EPA, February 1997 may also be obtained at https://www.epa.gov/sites/production/files/2015-10/documents/csofc_0.pdf; and

(c) "Combined Sewer Overflow (CSO) Control Policy", U.S. EPA, 59 Federal Register 18688, April 1994 may also be obtained at https://www3.epa.gov/npdes/pubs/owm0111.pdf.

History

RELATES TO: KRS 146.200 - 146.360, 146.410 - 146.535, 146.550 - 146.570, 146.600 - 146.619, 146.990, 224.1-010, 224.1-400, 224.16-050, 224.16-070, 224.70-100 - 224.70-140, 224.71-100 - 224.71-145, 224.73-100 - 224.73-120
STATUTORY AUTHORITY: KRS 146.220, 146.241, 146.270, 146.410, 146.450, 146.460, 146.465, 224.10-100, 224.16-050, 224.16-060, 224.70-100, 224.70-110, 40 C.F.R. Part 131, 16 U.S.C. 1271 - 1287, 1531 - 1544, 33 U.S.C. 1311, 1313, 1314, 1316, 1341
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the cabinet to develop and conduct a comprehensive program for the management of water resources and to provide for the prevention, abatement, and control of pollution. This administrative regulation and 401 KAR 10:001, 10:029, 10:030, and 10:031 establish procedures to protect the surface waters of the Commonwealth, and thus protect water resources. This administrative regulation applies the designated uses described in 401 KAR 10:031 to the surface waters of the Commonwealth. This administrative regulation also establishes that all surface waters shall be subject to the general criteria specified in 401 KAR 10:031, Section 2.
History: 5 Ky.R. 825; Am. 6 Ky.R. 339; eff. 12-5-1979; 11 Ky.R. 424; 708; eff. 11-13-1984; 1132; 1372; eff. 4-9-1985; 16 Ky.R. 809; 1356; 2655; eff. 5-31-1990; 26 Ky.R. 130; 8804; 1131; eff. 12-8-1999; 30 Ky.R. 1010; 1791; 31 Ky.R. 547; eff. 9-8-2004; TAm eff. 8-9-2007, Recodified from 401 KAR 5:026, 6-11-2008; 35 Ky.R. 129; 860; 2679; eff. 7-6-2009; 39 Ky.R. 564; eff. 4-5-2013; 42 Ky.R. 859; 2071; eff. 2-5-2016; TAm eff. 7-8-2016; 46 Ky.R. 154, 1186; eff. 1-3-2020.

401 KAR 10:029 General provisions {#sec-401-kar-10-029 omnilex-key=us-ky-regs-official--title-401--401 KAR 10:029}

Section 1. Antidegradation Policy.

(1) The purpose of 401 KAR 10:026 through 401 KAR 10:031 is to safeguard the surface waters of the commonwealth for their existing and designated uses, to prevent the creation of new pollution of these waters, and to abate existing pollution.

(2) Where the quality of surface waters exceeds that necessary to support propagation of fish, shellfish, wildlife and recreation in and on the water, that quality shall be maintained and protected unless the cabinet finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the cabinet's continuing planning process required by 33 U.S.C. 1313 and 40 C.F.R. 130.5, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located.

(a) For point source discharges, water quality shall be maintained and protected in these waters according to the procedures specified in 401 KAR 10:030, Section 1(2)(b) or (3)(b).

(b) In allowing degradation or lower water quality, the cabinet shall assure water quality adequate to protect existing uses fully.

(c) The cabinet shall assure that there shall be achieved the highest statutory and regulatory requirements for waste treatment by all new and existing point sources and that nonpoint sources of pollutants be controlled by application of all cost effective and reasonable best management practices.

(3) Water quality shall be maintained and protected in a water categorized as an outstanding national resource water according to the procedures specified in 401 KAR 10:030, Section 1(1)(b).

(4) Water quality shall be maintained and protected in those waters designated as outstanding state resource waters according to the procedures specified in 401 KAR 10:031, Section 8.

(5) If potential water quality impairment associated with a thermal discharge is involved, a successful demonstration conducted under Section 316 of the Clean Water Act, 33 U.S.C. 1326, shall be in compliance with this section.

Section 2. Withdrawal of Contaminated Water. Surface waters occasionally do not meet the criteria established in 401 KAR 10:031.

(1) Withdrawal and subsequent discharge of these waters without alteration of the physical or chemical characteristics into the same or similar surface water shall not be considered a violation of water quality standards.

(2) The cabinet shall determine KPDES permit limitations in these situations based on the quality of the raw and receiving waters.

(3) The cabinet retains the right to require permit modification under the provisions of 401 KAR 5:035, 5:065, 5:070, 5:075, and 5:080.

Section 3. Sample Collection and Analytical Methodology.

(1) All methods of preservation and analysis used to determine conformity or nonconformity with water quality standards shall be governed by 40 C.F.R. 136, as amended, if applicable.

(2) Sample collection and other methods not established in subsection (1) of this section may be used as appropriate if they:

(a) Meet commonly accepted quality assurance and quality control principles;

(b) Are within the accuracy required for determining conformity or nonconformity with water quality standards; and

Section 4. Mixing Zones.

(1) The cabinet may assign definable geometric limits for mixing zones for a discharge of a pollutant or pollutants within a discharge based on the following criteria:

(a) Applicable limits shall include the linear distances from the point of discharge, surface area involvement, volume of receiving water, and shall take into account other nearby mixing zones;

(b) Dilution provided by assigned mixing zones shall not be allowed until applicable limits are assigned by the cabinet in accordance with this section;

(c) In a stream or river, unless assigned on or before December 8, 1999, an assigned mixing zone, from the point of discharge in a spatial direction, shall not exceed one-third (1/3) of the width of the receiving stream or one-half (1/2) of the cross-sectional area;

(d) In a lake or a reservoir, unless assigned on or before December 8, 1999, an assigned mixing zone, from the point of discharge in any spatial direction, shall not exceed one-tenth (1/10) of the width of the lake, or reservoir at the discharge point;

(e) An assigned mixing zone shall be limited to an area or volume that shall not adversely affect the designated uses of the receiving water and shall not be so large as to adversely affect an established community of aquatic organisms;

(f) The location of a mixing zone shall not:

Interfere with fish spawning or nursery areas, fish migration routes, public water supply intakes, or bathing areas;
Preclude the free passage of fish or other aquatic life; or
Jeopardize the continued existence of endangered or threatened aquatic species listed under Section 4 of the Endangered Species Act, 16 U.S.C. 1531 through 1544, or result in the destruction or adverse modification of their critical habitat;

(g) For thermal discharges, a successful demonstration conducted under Section 316(a) of the Clean Water Act, 33 U.S.C. Section 1326(a), shall constitute compliance with this section; and

(h) Unless assigned by the cabinet on or before September 8, 2004, there shall not be mixing zones for bioaccumulative chemicals of concern.

A bioaccumulative chemical of concern is one that accumulates in one (1) or more aquatic organisms by a human health bioaccumulation factor of greater than 1,000.
For the purposes of this administrative regulation, bioaccumulative chemicals of concern shall consist of the following:

a. alpha-Hexachlorocyclohexane;

b. beta-Hexachlorocyclohexane;

c. Chlordane;

d. DDD;

e. DDE;

f. DDT;

g. delta-Hexachlorocyclohexane;

h. Dieldrin;

i. Hexachlorobenzene;

j. Hexachlorobutadiene;

k. Hexachlorocyclohexane;

l. Lindane;

m. Mercury;

n. Mirex;

o. Octachlorostyrene;

p. PCBs;

q. Pentachlorobenzene;

r. Photomirex;

s. Toxaphene;

t. 1,2,3,4-Tetrachlorobenzene;

u. 1,2,4,5-Tetrachlorobenzene; and

v. 2,3,7,8-TCDD (Dioxin).

(2) Concentrations of toxic substances that exceed the acute criteria for protection of aquatic life in 401 KAR 10:031 shall not exist within an assigned mixing zone or in the discharge itself unless a zone of initial dilution is assigned.

(a) A zone of initial dilution shall be assigned pursuant to subsection (3) of this section.

(b) Chronic criteria for the protection of aquatic life and criteria for the protection of human health regarding the consumption of fish tissue shall be met at the edge of the assigned mixing zone.

(3) The following requirements shall apply to a zone of initial dilution:

(a) The cabinet shall require an applicant to provide a technical evaluation for a zone of initial dilution;

(b) Concentrations of toxic substances shall not exceed the acute criteria for the protection of aquatic life at the edge of the assigned zone of initial dilution, except, numeric acute criteria may be exceeded within the zone if the frequency and duration of exposure of aquatic organisms are not sufficient to cause acute toxicity; and

(c) Unless assigned on or before December 8, 1999, a zone of initial dilution for a pollutant shall not be allowed in an exceptional water.

(4) Unless assigned on or before July 6, 2009, a zone of initial dilution for a pollutant shall be available only to a submerged high-rate multiport outfall structure and shall be limited in size to the most restrictive of the acute criteria which shall be met:

(a) Within ten (10) percent of the distance from the edge of the outfall structure to the edge of the regulatory mixing zone in a spatial direction;

(b) Within a distance of fifty (50) times the square root of the cross-sectional area of a discharge port, in a spatial direction; or

(c) In a horizontal direction within a distance of five (5) times the natural water depth that prevails under mixing zone design conditions, and exists before the installation of a discharge outlet.

History

RELATES TO: KRS 146.200 - 146.360, 146.410 - 146.535, 146.550 - 146.570, 146.600 - 146.619, 146.990, 224.1-010, 224.1-400, 224.16-050, 224.16-070, 224.70-100 - 224.70-140, 224.71-100 - 224.71-145, 224.73-100 - 224.73-120, 40 C.F.R. 136, 33 U.S.C. 1326(a)
STATUTORY AUTHORITY: KRS 146.220, 146.241, 146.270, 146.410, 146.450, 146.460, 146.465, 224.10-100, 224.16-050, 224.16-060, 224.70-100, 224.70-110, 40 C.F.R. 131, 136, 16 U.S.C. 1531 - 1544, 33 U.S.C. 1311, 1312, 1313, 1314, 1316, 1341
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the cabinet to develop and conduct a comprehensive program for the management of water resources and to provide for the prevention, abatement, and control of water pollution. This administrative regulation and 401 KAR 10:001, 10:026, 10:030, and 10:031 establish procedures to protect the surface waters of the commonwealth, and thus protect water resources. This administrative regulation establishes the commonwealth's surface water antidegradation policy, provides for withdrawals of waters not meeting water quality standards, and addresses sample collection and analytical methodology and mixing zones.
History: 5 Ky.R. 827; 6 Ky.R. 341; eff. 12-5-1979; 11 Ky.R. 1141; 1380; eff. 4-9-1985; 16 Ky.R. 833; 1367; 2676; eff. 5-31-1990; 2257; 2676; eff. 7-11-1990; 26 Ky.R. 141; 815; 1141; eff. 12-8-1999; 30 Ky.R. 1021; 31 Ky.R. 556; eff. 9-8-2004; TAm eff. 8-9-2007, Recodified from 401 KAR 5:029, 6-11-2008; 35 Ky.R.157; 904; 2721; eff. 7-6-2009; 42 Ky.R. 881; eff. 2-5-2016; 46 Ky.R. 199, 1229; eff. 1-3-2020.

401 KAR 10:030 Antidegradation policy implementation methodology {#sec-401-kar-10-030 omnilex-key=us-ky-regs-official--title-401--401 KAR 10:030}

Section 1. Categorization and Implementation. The antidegradation procedures established in this administrative regulation shall not preempt the power or authority of a local government to provide by ordinance for a higher level of protection through antidegradation implementation for a discharger located within that local government's jurisdiction to a surface water of the commonwealth. The procedures established in this section shall govern implementation of the antidegradation policy of 401 KAR 10:029, Section 1, for a point source discharge. Surface waters shall be placed into one (1) of four (4) categories listed in this section and each category shall have a corresponding implementation procedure.

(1) Outstanding national resource water. Surface waters of the commonwealth categorized as outstanding national resource waters are listed in Table 1 of this subsection.

(a) Categorization criteria. A surface water shall be categorized as an outstanding national resource water if:

The surface water meets, at a minimum, the requirements for an outstanding state resource water as provided in 401 KAR 10:031, Section 8; and
The surface water demonstrates national ecological or recreational significance.

(b) Implementation procedure.

Water quality shall be maintained and protected in an outstanding national resource water.
A new discharger or expanded discharge that may result in permanent or long-term changes in water quality shall be prohibited.
The cabinet may approve temporary or short-term changes in water quality if the changes to the outstanding national resource water do not have a demonstrable impact on the ability of the water to support the designated uses.

(2) Exceptional water. Surface waters of the commonwealth categorized as an exceptional water are listed in Table 2 of this subsection.

(a) Categorization criteria. A surface water shall be categorized as an exceptional water if the surface water:

Is designated as a Kentucky Wild River and is not categorized as an outstanding national resource water;
Is designated as an outstanding state resource water as established in 401 KAR 10:031, Section 8(1)(a)1. and 2. and Section 8(1)(b);
Contains a:

a. Fish community that is rated "excellent" by the use of the Index of Biotic Integrity included in Development and Application of the Kentucky Index of Biotic Integrity (KIBI), 2003; or

b. Macroinvertebrate community that is rated "excellent" by the Macroinvertebrate Bioassessment Index included in "The Kentucky Macroinvertebrate Bioassessment Index," 2003; or

Is in the cabinet's reference reach network.

(b) Implementation procedure. The implementation procedure for exceptional water shall be as established in subsection (3)(b) of this section.

(3) High quality water.

(a) Categorization criteria.

A surface water shall be categorized as high quality water if the surface water is not listed as an outstanding national resource water or an exceptional water in Table 1 or 2 of this section and if the surface water does not meet the criteria for impaired water as established in subsection (4)(a) of this section.
A surface water shall be categorized as a high quality water if the surface water is listed as an outstanding state resource water in 401 KAR 10:026 and is not listed as an outstanding national resource water in Table 1 or an exceptional water in Table 2 of this section.

(b) Implementation procedure. Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected. A KPDES permit application for a new or expanded discharge into a high quality or exceptional water shall be subject to the provisions of this paragraph, except:

a. The renewal of a KPDES permit that does not authorize pollutant loading to the receiving stream in excess of that previously authorized;

b. An increase in pollutant loading within the limits previously approved by the KPDES permit; or

c. A new or expanded discharge that the applicant demonstrates:

(i) Shall not consume more than ten (10) percent of the available assimilative capacity of the receiving stream outside of a designated mixing zone or zone of initial dilution for each new or increased pollutant in the discharge; and

(ii) The cumulative impact of this category of discharges shall not consume more than ten (10) percent of the available assimilative capacity of the receiving stream outside of a designated mixing zone or zone of initial dilution.

The activities identified in clauses a. through d. of this subparagraph shall constitute compliance with the alternatives and socioeconomic analysis requirements if addressed in the manner established in this subparagraph rather than as established in subparagraph 1.c. of this paragraph, unless the permittee chooses to satisfy applicable antidegradation requirements pursuant to subparagraph 3. of this paragraph.

a. The cabinet may, upon receipt of a notice of intent to be covered under a general permit, require additional analyses or other information if necessary to comply with antidegradation requirements. A general permit issued pursuant to 401 KAR 5:050 through 5:080 shall be compliant with the alternatives and socioeconomic analysis requirements if:

(i) The activity permitted by the general permit may result in a lowering of water quality, the cabinet shall describe in the Fact Sheet how the general permit complies with the alternatives analysis, and socioeconomic demonstration requirements of subparagraph 1.c. of this paragraph upon each general permit issuance;

(ii) The requirements and conditions in a general permit will prevent a lowering of water quality, the cabinet shall describe in the Fact Sheet how the general permit complies with the antidegradation policy established in 401 KAR 10:029, Section 1; and

(iii) The cabinet notifies the public of an activity granted coverage under a general permit on the cabinet's Web page, which shall include the facility name, location, and receiving water.

b. The approval of a POTW's regional facility plan pursuant to 401 KAR 5:006 shall constitute compliance with the alternatives analysis and socioeconomic demonstration for a regional facility.

c. An antidegradation review shall not be required for maintenance of an existing highway facility. A new or expanded discharge associated with a project identified in the Kentucky Transportation Cabinet's six (6) year road plan as established in KRS 176.430 shall satisfy the:

(i) Alternatives analysis for lowering water quality requirement if an alternatives analysis for the project has been submitted; and

(ii) Socioeconomic demonstration requirement if the project has been approved by the General Assembly and included in the Kentucky Transportation Cabinet's six (6) year road plan and evaluated pursuant to the provisions of KRS 176.430(4)(i).

d. An individual MS4 permit issued pursuant to 401 KAR 5:050 through 5:080 shall be compliant with the alternatives and socioeconomic analysis requirements if the:

(i) Activity permitted by the MS4 permit may result in a lowering of water quality, the cabinet shall describe in the Fact Sheet how the MS4 permit complies with the alternatives analysis and socioeconomic demonstration requirements of subparagraph 3.a. and b. of this paragraph; and

(ii) Requirements and conditions in the MS4 permit will prevent a lowering of water quality, the cabinet shall describe in the Fact Sheet how the MS4 permit complies with the antidegradation policy established in 401 KAR 10:029, Section 1.

An application for a KPDES permit subject to this paragraph shall contain information demonstrating that the lowering of water quality is necessary to accommodate important economic or social development in the area in which the water is located.

a. The socioeconomic demonstration shall consider:

(i) The boundaries of the affected community;

(ii) The potential effect on employment, including a comparison of local unemployment rates and state and national unemployment rates;

(iii) The potential effect on median household income levels, including a comparison of the present median household income level, projected median household income level, and number of households affected in the defined community;

(iv) The potential effect on tax revenues, including current tax revenues in the affected community compared to projected increase in tax revenues generated by the permitted project;

(v) The potential effect of the facility on the environment and public health; and

(vi) Other potential economic or social effect to the community that the applicant includes in the application.

b. The alternatives analysis shall consider:

(i) Pollution prevention measures, such as changes in plant processes, source reductions, or substitution with less toxic substances;

(ii) The use of best management practices to minimize impacts;

(iii) Recycle or reuse of wastewater, waste by-products, or production materials and fluids;

(iv) Application of water conservation methods;

(v) Alternative or enhanced treatment technology;

(vi) Improved operation and maintenance of existing treatment systems;

(vii) Seasonal or controlled discharge options;

(viii) Land application or infiltration to capture pollutants and reduce surface runoff, on-site treatment, or alternative discharge locations; and

(ix) Discharge to other treatment facilities.

c. Information required pursuant to this subparagraph shall be submitted on the Socioeconomic Demonstration and Alternatives Analysis form.

A permit applicant who has failed to demonstrate the necessity and social or economic development importance for lowering water quality shall not receive a permit unless:

a. The applicant demonstrates, through a revised submission, the necessity for lowering revised water quality in accordance with subparagraph 3. of this paragraph; or

b. The applicant demonstrates that the discharge can meet the requirements established in subparagraph 1.c. of this paragraph.

A permit applicant who demonstrates the necessity and social or economic development importance for lowering water quality shall meet the requirements of the KPDES program, 401 KAR 5:050 through 5:080.
The cabinet's determination shall be documented in the permit Fact Sheet and included in the administrative record for the permit or action.

(4) Impaired water.

(a) Categorization criteria. A surface water categorized as impaired for applicable designated uses shall be a water identified pursuant to 33 U.S.C. 1315(b).

A surface water assessed by the cabinet as not fully supporting an applicable designated use shall be categorized as impaired for the purposes of this administrative regulation, except as established in subparagraph 2. of this paragraph.
A surface water shall not be categorized as impaired water for the purposes of this administrative regulation if the surface water is listed:

a. As an outstanding state resource water in 401 KAR 10:026;

b. As an exceptional water in 401 KAR 10:030; or

c. Only as mercury or methylmercury impaired for fish consumption.

(b) Implementation procedure.

All existing uses shall be protected and the level of water quality necessary to protect those existing uses shall be assured in impaired water.
The process to allow a discharge into an impaired water and to assure protection of the water shall be regulated by the requirements in the Kentucky Pollution Discharge Elimination System Program, 401 KAR 5:050 through 5:080.

Section 2. Procedure for Recategorizing Water. This section shall apply to the recategorization of surface water to outstanding national resource water and exceptional water. The redesignation of water to outstanding state resource water shall be governed by the procedures in 401 KAR 10:026.

(1) The cabinet may propose to recategorize certain water to outstanding national resource water and exceptional water if the water meets the criteria set forth in Section 1(1)(a) or (2)(a) of this administrative regulation.

(a) If the cabinet proposes to recategorize these waters, it shall provide notice and an opportunity for public hearing.

(b) The cabinet shall provide the documentation requirements of this section for those surface waters it proposes to recategorize.

(2) A person may request recategorization of a surface water to an outstanding national resource water or exceptional water by filing a petition with the cabinet.

(a) The petition shall include the name and address of the petitioner and the information and documentation necessary to recategorize the particular water as required by subsection (4) of this section.

(b) The petitioner shall have the burden of proof that the recategorization is appropriate.

(d) The cabinet shall review the petition, supporting documentation, and any comments received from the public to determine if the proposed water qualifies for recategorization.

(e) The cabinet shall document the determination to grant or deny recategorization as a result of a petition, and shall provide a copy of the decision to the petitioner and other interested parties.

(3) If a water is to be recategorized, the cabinet shall publish notice of the recategorization.

(a) A permit issued after the date of publication shall be issued with limitations based on the new category.

(b) When the cabinet reviews its water quality standards pursuant to the provisions of Section 303 of the Clean Water Act, 33 U.S.C. 1313, the cabinet shall propose to have all recategorized water promulgated as an amendment to this administrative regulation.

(4) The following information, documentation, and data shall support a petition for recategorization:

(a) A petition for outstanding national resource water shall include:

A USGS 7.5 minute topographic map or its equivalent showing those surface waters to be recategorized including a description consisting of a river mile index with any existing and proposed discharge points;
Existing uses and water quality data for the surface water for which the recategorization is proposed. If adequate data are unavailable, additional studies shall be required by the cabinet;
Descriptions of general land uses and specific land uses adjacent to the surface water for which the recategorization is proposed;
The existing and designated uses of the water upstream and downstream of the proposed recategorized water;
General physical characteristics of the surface water including width, depth, bottom composition, and slope;
The frequency of occasions when there is no natural flow in the surface water and the 7Q10 and harmonic mean flow values for the surface water and adjacent surface waters;
An assessment of the existing and potential aquatic life habitat in the surface water under consideration and the adjacent upstream surface waters. The existing aquatic life shall be documented including the occurrence of individuals or populations, indices of diversity and well-being, and abundance of species of any unique native biota;
A documented rationale as to why the water qualify for the recategorization; and
The rationale used to support the national significance of the water.

(b) A petition for exceptional water shall include:

A United States Geological Survey 7.5 minute topographic map or its equivalent showing the surface water to be recategorized including a description consisting of a river mile index with existing and proposed discharge points;
Descriptions of general land uses, including:

a. Mining;

b. Agriculture;

c. Recreation;

d. Low, medium, and high density residential, commercial, or industrial uses; and

e. Specific land uses adjacent to the surface water for which the recategorization is proposed;

The frequency of occasions when there is no natural flow in the surface water and the 7Q10 and annual mean flow values for the surface water; and
Fish or benthic macroinvertebrate collection data and an Index of Biotic Integrity or Macroinvertebrate Bioassessment Index calculation from a waterbody if criteria specified in Section 1(2)(a)3 of this administrative regulation are utilized.

Section 3. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Development and Application of the Kentucky Index of Biotic Integrity (KIBI)", 2003, Kentucky Division of Water, Environmental and Public Protection Cabinet;

(b) "The Kentucky Macroinvertebrate Bioassessment Index", 2003, Kentucky Division of Water, Environmental and Public Protection Cabinet; and

(a) The Socioeconomic Demonstration and Alternative Analysis, KPDES Form SDAA, DEP Form 7032, May 2019, is also available on the division's Web site at https://eec.ky.gov/Environmental-Protection/Water/PermitCert/KPDES/Pages/default.aspx.

(b) "Development and Application of the Kentucky Index of Biotic Integrity" and "Kentucky Macroinvertebrate Bioassessment Index" is also available on the division's Web site at https://eec.ky.gov/Environmental-Protection/Water/QA/Pages/default.aspx.

History

RELATES TO: KRS 146.200 - 146.360, 146.410 - 146.535, 146.550 - 146.570, 146.600 - 146.619, 146.990, 176.430, 224.1-010, 224.1-400, 224.16-050, 224.16-070, 224.70-100 - 224.70-140, 224.71-100 - 224.71-145, 224.73-100 - 224.73-120, 30 U.S.C. 1201 -1328
STATUTORY AUTHORITY: KRS 146.220, 146.241, 146.270, 146.410, 146.450, 146.460, 146.465, 224.10-100, 224.16-050, 224.16-060, 224.70-100, 224.70-110, 40 C.F.R. 130, 131, 16 U.S.C. 1271 - 1287, 1531 - 1544, 33 U.S.C. 1311, 1313, 1314, 1315, 1316, 1341, 1342, 1344
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the cabinet to develop and conduct a comprehensive program for the management of water resources and to provide for the prevention, abatement, and control of all water pollution. KRS 224.70-100 authorizes the policy of the commonwealth to conserve its waters for legitimate uses, safeguard from pollution the uncontaminated waters of the commonwealth, prevent the creation of any new pollution in the waters of the commonwealth, and abate any existing pollution. This administrative regulation and 401 KAR 10:001, 10:026, 10:029, and 10:031 establish procedures to protect the surface waters of the Commonwealth, and thus protect water resources. This administrative regulation establishes a methodology to implement the antidegradation policy contained in 401 KAR 10:029 by establishing procedures to control water pollution in waters affected by that policy.
History: 21 Ky.R. 2843; Am. 89; 280; eff. 7-12-1995; 26 Ky.R. 145; 819; 1144; eff. 12-8-1999; 30 Ky.R. 1024; 1801; 31 Ky.R. 558; eff. 9-8-2004; TAm eff. 8-9-2007, Recodified from 401 KAR 5:030, 6-11-2008; 35 Ky.R. 161; 908; 36 Ky.R. 31; eff. 7-30-2009; 37 Ky.R. 2071; 2655; eff. 8-5-2011; 42 Ky.R. 884; 2092; eff. 2-5-2016; TAm 7-8-2016.; 46 Ky.R. 202, 1231, 1840; eff. 1-3-2020.

401 KAR 10:031 Surface water standards {#sec-401-kar-10-031 omnilex-key=us-ky-regs-official--title-401--401 KAR 10:031}

Section 1. Nutrients Criterion. Nutrients shall not be elevated in a surface water to a level that results in a eutrophication problem.

Section 2. Minimum Criteria Applicable to All Surface Waters.

(1) The minimum water quality criteria established in this administrative regulation shall be applicable to all surface waters including mixing zones, with the exception that toxicity to aquatic life in mixing zones shall be subject to the provisions of 401 KAR 10:029, Section 4. Surface waters shall not be aesthetically or otherwise degraded by substances that:

(a) Settle to form objectionable deposits;

(b) Float as debris, scum, oil, or other matter to form a nuisance;

(d) Injure or are chronically or acutely toxic to or produce adverse physiological or behavioral responses in humans, animals, fish, and other aquatic life;

(e) Produce undesirable aquatic life or result in the dominance of nuisance species; or

(f) Cause fish flesh tainting.

(2) The concentration of phenol shall not exceed 300 µg/L as an instream value.

(3) The water quality criteria for the protection of human health related to fish consumption in Table 1 of Section 6 of this administrative regulation shall apply to all surface water at the edge of the assigned mixing zones except for those points where water is withdrawn for domestic water supply use.

(a) The criteria are established to protect human health regarding the consumption of fish tissue and shall not be exceeded.

(b) For those substances associated with a cancer risk, an acceptable risk level of not more than one (1) additional cancer case in a population of 1,000,000 people, or 1 x 10-6 shall be utilized to establish the allowable concentration.

Section 3. Use Designations and Associated Criteria.

(1) Surface waters may be designated as having one (1) or more legitimate uses established in 401 KAR 10:026 and associated criteria protective of those uses. Nothing in this administrative regulation shall be construed to prohibit or impair the legitimate beneficial uses of these waters. The criteria in Sections 2, 4, 6, and 7 of this administrative regulation represent minimum conditions necessary to:

(a) Protect surface waters for the indicated designated use; and

(b) Protect human health regarding fish consumption.

(2) On occasion, surface water quality may be outside of the limits established to protect designated uses because of natural conditions. If this occurs during periods when stream flows are below the flow that is used by the cabinet to establish effluent limitations for wastewater treatment facilities, a discharger shall not be considered a contributor to instream violations of water quality standards, if treatment results in compliance with permit requirements.

(3) Stream flows for water quality-based permits. The following stream flows shall be utilized if deriving KPDES permit limitations to protect surface waters for the listed uses and purposes:

(a) Aquatic life protection shall be 7Q10;

(b) Water-based recreation protection shall be 7Q10;

The harmonic mean for cancer-linked substances; and
7Q10 for noncancer-linked substances;

(d) Human health protection regarding fish consumption and for changes in radionuclides shall be the harmonic mean; and

(e) Protection of aesthetics shall be 7Q10.

Section 4. Aquatic Life.

(1) Warm water aquatic habitat. The following parameters and associated criteria shall apply for the protection of productive warm water aquatic communities, fowl, animal wildlife, arboreous growth, agricultural, and industrial uses:

(a) Natural alkalinity as CaCO3 shall not be reduced by more than twenty-five (25) percent.

If natural alkalinity is below twenty (20) mg/L CaCO3, there shall not be a reduction below the natural level.
Alkalinity shall not be reduced or increased to a degree that may adversely affect the aquatic community;

(b) pH shall not be less than six and zero-tenths (6.0) nor more than nine and zero-tenths (9.0) and shall not fluctuate more than one and zero-tenths (1.0) pH unit over a period of twenty-four (24) hours;

(d) Temperature shall not exceed thirty-one and seven-tenths (31.7) degrees Celsius (eighty-nine (89) degrees Fahrenheit).

The normal daily and seasonal temperature fluctuations that existed before the addition of heat due to other than natural causes shall be maintained.
The cabinet may determine allowable surface water temperatures on a site-specific basis utilizing available data that shall be based on the effects of temperature on the aquatic biota that utilize specific surface waters of the commonwealth and that may be affected by person-induced temperature changes.
Effects on downstream uses shall also be considered in determining site-specific temperatures.
A successful demonstration concerning thermal discharge limits carried out pursuant to Section 316(a) of the Clean Water Act, 33 U.S.C. 1326, shall constitute compliance with the temperature requirements of this subsection. A successful demonstration assures the protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife in or on the water into which the discharge is made;

(e) Dissolved oxygen.

a. Dissolved oxygen shall be maintained at a minimum concentration of five and zero-tenths (5.0) mg/L as a twenty-four (24) hour average in water with WAH use.

b. The instantaneous minimum shall not be less than four and zero-tenths (4.0) mg/L in water with WAH use.

The dissolved oxygen concentration shall be measured at mid-depth in waters having a total depth of ten (10) feet or less and at representative depths in other waters;

(f) Total dissolved solids or specific conductance. Total dissolved solids or specific conductance shall not be changed to the extent that the indigenous aquatic community is adversely affected;

(g) Total suspended solids. Total suspended solids shall not be changed to the extent that the indigenous aquatic community is adversely affected;

(h) Settleable solids. The addition of settleable solids that may alter the stream bottom so as to adversely affect productive aquatic communities shall be prohibited;

(i) Ammonia. The concentration of the un-ionized form shall not be greater than 0.05 mg/L at any time instream after mixing. Un-ionized ammonia shall be determined from values for total ammonia-N, in mg/L, pH and temperature, by means of the following equation:

(j) Toxics.

The allowable instream concentration of toxic substances, or whole effluents containing toxic substances, which are noncumulative or non-persistent with a half-life of less than ninety-six (96) hours, shall not exceed:

a. One-tenth (0.1) of the ninety-six (96) hour median lethal concentration (LC50) of representative indigenous or indicator aquatic organisms; or

b. A chronic toxicity unit of 1.00 utilizing the twenty-five (25) percent inhibition concentration, or IC25.

The allowable instream concentration of toxic substances, or whole effluents containing toxic substances, which are bioaccumulative or persistent, including pesticides, if not specified elsewhere in this section, shall not exceed:

a. 0.01 of the ninety-six (96) hour median lethal concentration (LC50) of representative indigenous or indicator aquatic organisms; or

b. A chronic toxicity unit of 1.00 utilizing the IC25.

In the absence of acute criteria for pollutants listed in Table 1 of Section 6 of this administrative regulation, for other substances known to be toxic but not listed in this administrative regulation, or for whole effluents that are acutely toxic, the allowable instream concentration shall not exceed the LC1 or one-third (1/3) LC50 concentration derived from toxicity tests on representative indigenous or indicator aquatic organisms or exceed three-tenths (0.3) acute toxicity units.
If specific application factors have been determined for a toxic substance or whole effluent such as an acute to chronic ratio or water effect ratio, the specific application factors may be used instead of the one-tenth (0.1) and 0.01 factors listed in this subsection upon demonstration by the applicant that the application factors are scientifically defensible.
Allowable instream concentrations for specific pollutants for the protection of warm water aquatic habitat are listed in Table 1 of Section 6 of this administrative regulation. These concentrations are based on protecting aquatic life from acute and chronic toxicity and shall not be exceeded; and

(k) Total residual chlorine. Instream concentrations for total residual chlorine shall not exceed an acute criteria value of nineteen (19) µg/L or a chronic criteria value of eleven (11) µg/L.

(2) Cold water aquatic habitat. The following parameters and criteria are for the protection of productive cold water aquatic communities and streams that support trout populations, whether self-sustaining or reproducing, on a year-round basis. The criteria adopted for the protection of warm water aquatic life also apply to the protection of cold water habitats with the following additions:

(a) Dissolved oxygen.

A minimum concentration of six and zero-tenths (6.0) mg/L as a twenty-four (24) hour average and five and zero-tenths (5.0) mg/L as an instantaneous minimum shall be maintained.
In lakes and reservoirs that support trout, the concentration of dissolved oxygen in waters below the epilimnion shall be kept consistent with natural water quality; and

(b) Temperature. Water temperature shall not be increased through human activities above the natural seasonal temperatures.

Section 5. Domestic Water Supply Use. Maximum allowable in-stream concentrations for specific substances, to be applicable at the point of withdrawal, as established in 401 KAR 10:026, Section 5(2)(b), Table B, for use for domestic water supply from surface water sources are specified in Table 1 of Section 6 of this administrative regulation and shall not be exceeded.

Section 6. Pollutants.

(1) Allowable instream concentrations of pollutants are listed as water column values in Table 1 of this section unless otherwise indicated.

(2) The following additional criteria for radionuclides shall apply for Domestic Water Supply use:

(a) The gross total alpha particle activity, including radium-226 but excluding radon and uranium, shall not exceed fifteen (15) pCi/L;

(b) Combined radium-226 and radium-228 shall not exceed five (5) pCi/L. Specific determinations of radium-226 and radium-228 are not necessary if dissolved gross alpha particle activity does not exceed five (5) pCi/L;

(d) The concentration of tritium shall not exceed 20,000 pCi/l;

(e) The concentration of total Strontium-90 shall not exceed eight (8) pCi/L; and

(f) The concentration of uranium shall not exceed thirty (30) µg/l.

Section 7. Recreational Waters.

(1) Primary contact recreation water. The following criteria shall apply to waters designated as primary contact recreation use during the primary contact recreation season of May 1 through October 31:

(a) Escherichia coli content shall not exceed 130 colonies per 100 ml as a geometric mean based on not less than five (5) samples taken during a thirty (30) day period. Content also shall not exceed 240 colonies per 100 ml in twenty (20) percent or more of all samples taken during a thirty (30) day period for for Escherichia coli. Fecal coliform criteria listed in subsection (2)(a) of this section shall apply during the remainder of the year;

(b) pH shall be between six and zero-tenths (6.0) to nine and zero-tenths (9.0) and shall not change more than one and zero-tenths (1.0) pH unit within this range over a period of twenty-four (24) hours; and

(c)

PCR criteria may be suspended in CSO receiving waters during CSO events for a duration determined by the cabinet-approved Long-Term Control Plan as established in 401 KAR 5:005 and the facility KPDES permit; if:

a. An exception to criteria is approved:

(i) In accordance with Section 10 or 11 of this administrative regulation; and

(ii) Consistent with 40 C.F.R. 131.14; or

b. A redesignation pursuant to a use attainability analysis has been approved:

(i) In accordance with 401 KAR 10:026, Sections 2 through 4; and

(ii) Consistent with 40 C.F.R. 131.10(g).

A table of CSO-impacted waters for which a suspension of the Primary Contact Recreation has been approved shall be located in 401 KAR 10:026.

(2) Secondary contact recreation water. The following criteria shall apply to waters designated for secondary contact recreation use during the entire year:

(a) Fecal coliform content shall not exceed 1,000 colonies per 100 ml as a thirty (30) day geometric mean based on not less than five (5) samples; nor exceed 2,000 colonies per 100 ml in twenty (20) percent or more of all samples taken during a thirty (30) day period;

(c)

SCR criteria may be suspended in CSO receiving waters during CSO events for a duration determined by the cabinet-approved Long-Term Control Plan as established in 401 KAR 5:005 and the facility KPDES permit; if:

a. An exception to criteria is approved:

(i) In accordance with Section 10 or 11 of this administrative regulation; and

(ii) Consistent with 40 C.F.R. 131.14; or

b. A redesignation pursuant to a use attainability analysis has been approved:

(i) In accordance with 401 KAR 10:026, Sections 2 through 4; and

(ii) Consistent with 40 C.F.R. 131.10(g).

A table of CSO-impacted waters for which a suspension of the Secondary Contact Recreation criteria has been approved shall be located in 401 KAR 10:026.

Section 8. Outstanding State Resource Waters. This designation category includes certain unique waters of the commonwealth.

(1) Water for inclusion.

(a) Automatic inclusion. The following surface waters shall automatically be included in this category:

Waters designated pursuant to the Kentucky Wild Rivers Act, KRS 146.200 through 146.360;
Waters designated pursuant to the Federal Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287; and
Waters that support federally recognized endangered or threatened species pursuant to the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531-1544.

(b) Permissible consideration. Other surface waters shall be considered for inclusion in this category if:

The surface waters flow through or are bounded by state or federal forest land, or are of exceptional aesthetic or ecological value or are within the boundaries of national, state, or local government parks, or are a part of a unique geological, natural, or historical area recognized by state or federal designation; or
The surface water is a component part of an undisturbed or relatively undisturbed watershed that can provide basic scientific data and possess outstanding water quality characteristics, or fulfill two (2) of the following conditions:

a. Support a diverse or unique native aquatic flora or fauna;

b. Possess physical or chemical characteristics that provide an unusual and uncommon aquatic habitat; or

c. Provide a unique aquatic environment within a physiographic region.

(2) Outstanding state resource waters protection. The water quality criteria for protection of an OSRW shall be as established in paragraphs (a) through (d) of this section.

(a) At a minimum, the criteria of Section 2 and Table 1 of Section 6 of this administrative regulation and the appropriate criteria associated with the stream use designation assignments in 401 KAR 10:026, shall be applicable to these waters.

(b) Outstanding state resource waters that are listed as Exceptional Waters in 401 KAR 10:030, Section 1(2) shall have dissolved oxygen maintained at a minimum concentration of six and zero-tenths (6.0) mg/L as a twenty-four (24) hour average and an instantaneous minimum concentration of not less than five and zero-tenths (5.0) mg/L.

(c)

Existing water quality and habitat shall be maintained and protected in those waters designated as outstanding state resource waters that support federally threatened and endangered species of aquatic organisms, unless the cabinet determines that lowering water quality or a habitat modification will not have an adverse effect on the threatened or endangered species that the water supports.
If the basis of the Outstanding State Resource Water designation depends on or relates to instream water quality, the cabinet shall:

a. Review existing water quality criteria to determine if additional criteria or more stringent criteria are necessary to protect the water; and

b. Evaluate the need to develop additional data upon which to base the determination.

If the cabinet determines that more stringent instream water quality criteria are necessary to protect the basis of the Outstanding State Resource Water designation as established in paragraph 2 of this subsection, those additional protective criteria shall not be effective until the cabinet lists those criteria with the respective waterbody in 401 KAR 10:026..

(3) Determination of designation.

(a) A person may present a proposal to designate certain waters pursuant to this section. Documentation requirements in support of an outstanding state resource water proposal shall contain those elements outlined in 401 KAR 10:026, Section 3(3)(a) through (h).

(b)

The cabinet shall review the proposal and supporting documentation to determine if the proposed waters qualify as outstanding state resource waters within the conditions established by this administrative regulation.
The cabinet shall document the determination to deny or to propose redesignation, and a copy of the decision shall be served upon the petitioner and other interested parties.

(c) After considering all of the pertinent data, a redesignation, if appropriate, shall be made pursuant to 401 KAR 10:026.

Section 9. Water Quality Criteria for the Main Stem of the Ohio River.

(1) The water quality standards established in this Chapter provide for the protection of the designated uses of the Ohio River with consideration of the uses and water quality criteria established in the Pollution Control Standards of the Ohio River Valley Water Sanitation Compact. The criteria established in this Section shall apply to the main stem of the Ohio River from its juncture with the Big Sandy River at River Mile 317.1 to its confluence with the Mississippi River, and shall not be exceeded.

(2) These waters shall be subject to all applicable provisions of 401 KAR 10:001, 10:026, 10:029, 10:030, and this administrative regulation, except in-stream concentrations of dissolved oxygen shall:

(a) Average at least five and zero-tenths (5.0) mg/L per calendar day; and

(b) Shall not be less than four and zero-tenths (4.0) mg/L except during the April 15 - June 15 spawning season when a minimum of five and one-tenth (5.1) mg/L shall be maintained.

Section 10. Exceptions to Criteria for Specific Surface Waters.

(1) The cabinet may grant exceptions to the criteria contained in Sections 2, 4, 6, 7, 8, and 9 of this administrative regulation for specific surface water upon demonstration by an applicant that maintenance of applicable water quality criteria is not attainable or scientifically valid but the use designation is still appropriate.

(2) The analysis shall show that the water quality criteria cannot be reasonably achieved, either on a seasonal or year-round basis due to natural conditions or site-specific factors differing from the conditions used to derive criteria in Sections 2, 4, 6, 7, 8, and 9 of this administrative regulation.

(a) Site-specific criteria shall be developed by the applicant utilizing toxicity tests, indicator organisms, and application factors that shall be consistent with those outlined in Chapter 3 of Water Quality Standards Handbook, EPA, 2017.

(b) In addition, an applicant shall supply the documentation established in 401 KAR 10:026, Section 3 and 40 C.F.R. 131.14(b).

(c) The documentation required by subparagraph (b) shall be subject to the public notice and comment requirements established in 40 C.F.R. 130.20(b) and 131.14.

(3) An exception to criteria listed in Table 1 of Section 6 of this administrative regulation for the protection of human health from the consumption of fish tissue may be granted if it is demonstrated that natural, ephemeral, intermittent, or low flow conditions or water levels preclude the year-round support of a fishery, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges.

(4) Before granting an exception to water quality criteria, the cabinet shall ensure the maintenance of downstream water quality and that the variance shall not preclude the attainment of designated uses of downstream surface waters.

(5)

(a) All exceptions to water quality criteria shall be subject to reevaluation at least every five (5) years.

(b) If reevaluation results are not submitted, the exception to criteria shall no longer be the applicable water quality standard for the purposes of this administrative regulation and the federal Clean Water Act.

(6) Exceptions to water quality criteria shall be adopted as an administrative regulation by listing them with the respective surface water in 401 KAR 10:026.

Section 11. Exceptions to Criteria for Individual Dischargers.

(1) An exception to criteria may be granted to an individual discharger based on a demonstration by the discharger, that KPDES permit compliance with existing instream criteria cannot be attained because of factors specified in 401 KAR 10:026, Section 2(4)(a) through (f) and 40 C.F.R. 131.14(b)(1)(A)(1) through (3).

(2) The demonstration shall include:

(a) An assessment of alternative pollution control strategies and biological assessments that indicated designated uses are being met; and

(b) The documentation established in 40 C.F.R. 131.14(b).

(3) Before granting an exception to water quality criteria, the cabinet shall ensure the maintenance of downstream water quality and that the variance shall not preclude the attainment of designated uses of downstream surface waters.

(4)

(a) All exceptions shall be submitted to the cabinet for reevaluation at least every five (5) years.

(b) Upon review, the discharger shall demonstrate to the cabinet the effort the discharger made to reduce the pollutants in the discharge to levels that would achieve existing applicable water quality criteria.

(c) If reevaluation results are not submitted, the exception to criteria shall no longer be the applicable water quality standard for the purposes of this administrative regulation and the federal Clean Water Act.

(5) The highest level of effluent quality that can be economically and technologically achieved shall be ensured while the exception is in effect.

(6) Exceptions to criteria for individual discharges shall be subject to the public participation requirements as established in 40 C.F.R. 131.20(b).

Section 12. Compliance Schedules.

(1) The cabinet may allow a compliance schedule to give a permittee time to comply with water quality based effluent limitations that derive from and comply with water quality standards.

(2) Compliance schedules shall be as established in 40 C.F.R. 122.47.

Section 13. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Water Quality Standards Handbook-Chapter 3", EPA 2017, Publication No. EPA-823-B-17-001, U.S. Environmental Protection Agency, Office of Water, Washington, D.C.;

(b) "Interim Economic Guidance for Water Quality Standards Workbook", March 1995, Publication EPA-823-B-95-002, U.S. Environmental Protection Agency, Office of Water, Washington, D.C.; and

(c) "Aquatic Life Ambient Freshwater Quality Criteria-Copper", EPA, February 2007, Publication No. EPA 822-R-07-001, U.S. Environmental Protection Agency, Office of Water, Washington D.C.

(3)

(a) "Water Quality Standards Handbook-Chapter 3", EPA 2017, Publication EPA-823-B-17-001, U.S. Environmental Protection Agency, Office of Water can also be found at https://www.epa.gov/sites/production/files/2014-10/documents/handbook-chapter3.pdf.

(b) "Interim Economic Guidance for Water Quality Standards Workbook", March 1995, Publication EPA-823-B-95-002, U.S. Environmental Protection Agency, Office of Water can also be found at https://www.epa.gov/sites/production/files/2016-03/documents/econworkbook-complete.pdf.

(c) "Aquatic Life Ambient Freshwater Quality Criteria-Copper", February 2007, Publication No. EPA-822-R-07-001, U.S. Environmental Protection Agency, Office of Water can also be found at https://www.epa.gov/sites/production/files/2019-02/documents/al-freshwater-copper-2007-revision.pdf.

History

RELATES TO: KRS 146.200 - 146.360, 146.410 - 146.535, 146.550 - 146.570, 146.600 - 146.619, 146.990, 224.1-010, 224.1-400, 224.16-050, 224.16-070, 224.70-100 - 224.70-140, 224.71-100 - 224.71-145, 224.73-100 - 224.73-120
STATUTORY AUTHORITY: KRS 146.220, 146.241, 146.270, 146.410, 146.450, 146.460, 146.465, 224.10-100, 224.16-050, 224.16-060, 224.70-100, 224.70-110, 40 C.F.R. Part 131, 16 U.S.C. 1271 - 1287, 1531 - 1544, 33 U.S.C. 1311, 1313, 1314, 1341
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the cabinet to develop and conduct a comprehensive program for the management of water resources and to provide for the prevention, abatement, and control of water pollution. This administrative regulation and 401 KAR 10:001, 10:026, 10:029, and 10:030 establish procedures to protect the surface waters of the Commonwealth, and thus protect water resources. This administrative regulation establishes water quality standards that consist of designated legitimate uses of the surface waters of the Commonwealth and the associated water quality criteria necessary to protect those uses. These water quality criteria are minimum requirements that apply to all surface waters in the Commonwealth of Kentucky in order to maintain and protect them for designated uses. These water quality standards are subject to periodic review and revision in accordance with the Clean Water Act, 33 U.S.C. 1251-1387, 40 C.F.R. 131, and KRS Chapter 224.
History: 5 Ky.R. 829; Am. 6 Ky.R. 344; eff. 12-5-1979; 11 Ky.R. 1144; 1384; eff. 4-9-1985; 16 Ky.R. 838; 1370; 2666; eff. 5-31-1990; 18 Ky.R. 1388; 2331; eff. 1-27-1992; 26 Ky.R. 150; 824; 1148; eff. 12-8-1999; 30 Ky.R. 1035; 1813; eff. 9-8-2004; TAm eff. 8-9-2007, Recodified from 401 KAR 5:031; 2008; 35 Ky.R. 177; 930; 2723; eff. 7-6-2009; 39 Ky.R. 596; 1188; 2167; eff. 5-31-2013; 42 Ky.R. 900; 1798; eff. 2-5-2016; TAm eff. 7-8-2016; 46 Ky.R. 222, 1251, 1858; eff. 1-3-2020.

Chapter 11 Certified Operators

401 KAR 11:001 Definitions for 401 KAR Chapter 11 {#sec-401-kar-11-001 omnilex-key=us-ky-regs-official--title-401--401 KAR 11:001}

Section 1. Definitions.

(1) "Active certificate" means a current and valid certificate that:

(a) Has been renewed for the current period as established in 401 KAR 11:050; and

(b) Authorizes the operator to operate the type of water or wastewater facility indicated on the certificate.

(2) "Applicant" means a person who has submitted an application to take an examination for certification.

(3) "Board" means the:

(a) Kentucky Board of Certification of Wastewater System Operators; or

(b) Kentucky Board of Certification of Water Treatment and Distribution System Operators.

(4) "Cabinet" is defined by KRS 224.1-010(8).

(5) "Certificate" means a certificate of competency issued by the cabinet stating that the operator has met the requirements for the specified operator classification as established by 401 KAR Chapter 11.

(6) "Certified operator" means an individual that holds an active certified operator's certificate issued in accordance with 401 KAR 11:050.

(7) "Certified Training Provider" or "CTP" means a continuing education or training provider that has been approved by the cabinet as established in 401 KAR 11:050, in consultation with the board, and that offers continuing education or training that:

(a) Is pertinent to the practice of drinking water or wastewater plant operation;

(b) Contributes to operator competency beyond the knowledge obtained in the initial certification preparatory program; and

(8) "Core content" means the information identified as essential by the board for purposes of certification examination and continuing education training.

(9) "Direct responsible charge" means personal, first-hand responsibility to conduct or actively oversee and direct procedures and practices necessary to ensure that the drinking water treatment plant or distribution system is operated in accordance with accepted practices and with KRS Chapters 223 and 224 and 401 KAR Chapters 8 and 11.

(10) "Inactive certificate" means a certificate:

(a) For which only the renewal fee has been paid;

(b) For which continuing education required by 401 KAR 11:050 has not been met; and

(c) That shall not give the certificate holder the authority or credentials to operate any type of water or wastewater plant until the certificate has been returned to active status.

(11) "Operator" means a person involved in the operation of a wastewater treatment plant, wastewater collection system, drinking water treatment plant, or drinking water distribution system.

(12) "Primary responsibility" means personal, first-hand responsibility to conduct or actively oversee and direct procedures and practices necessary to ensure that the wastewater treatment plant or wastewater collection system is operated in accordance with accepted practices and with KRS Chapter 224 and 401 KAR Chapters 5 and 11.

History

RELATES TO: KRS 223.160 - 223.220, 224.1-010, 224.73-110
STATUTORY AUTHORITY: KRS 223.200, 224.10-100, 224.10-110, 224.73-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-110 authorizes the cabinet to promulgate administrative regulations concerning the certification of wastewater operators. KRS 223.200 requires the cabinet to promulgate administrative regulations concerning the certification of water treatment and distribution system operators. KRS 224.73-110 requires wastewater system operators to be certified by the cabinet. This administrative regulation establishes definitions applicable to the certification of wastewater and water operators.
History: 35 Ky.R. 473; 1210; eff. 3-6-2009; 36 Ky.R. 449; 1047; eff. 2-5-2010; Crt eff. 11-1-2018; 45 Ky.R. 3522; 46 Ky.R. 952; eff. 11-1-2019.

401 KAR 11:010 Boards of certification {#sec-401-kar-11-010 omnilex-key=us-ky-regs-official--title-401--401 KAR 11:010}

Section 1. Duties of the Board. The board shall:

(1) Evaluate the qualifications of applicants and recommend qualified applicants to the cabinet for certification examination;

(2) Review and provide comments to the cabinet on proposed administrative regulations regarding operator certification;

(3) Review and make recommendations to the cabinet on core content for certification examinations and continuing education training for certification renewal;

(4) Review and make recommendations to the cabinet on training proposed to provide continuing education to certified operators. During the evaluation of training courses and seminars, the board shall consider:

(a) The consistency of training material with the core content;

(b) The ability of the training to provide information that supports effective water conveyance, treatment, and quality; and

(5) Assist the cabinet in drafting examinations for the certification of operators;

(6) Review and provide comments to the cabinet on proposed fees for the training and certification of operators;

(7) Review applications for reciprocity and recommend to the cabinet the acceptance or denial of the application based on the criteria established in 401 KAR 11:050, Section 1(8); and

(8) Review evidence and advise the cabinet regarding disciplinary actions for certified operators who fail to comply with KRS Chapters 223 and 224 or 401 KAR Chapter 5, 8, or 11.

History

RELATES TO: KRS 223.160-220, 224.73-110, EO 2009-538
STATUTORY AUTHORITY: KRS 223.160-200, 224.10-100, 224.10-110, 224.73-110, EO 2009-538
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-110 authorizes the cabinet to promulgate administrative regulations concerning the board of certification of wastewater system operators and the certification of wastewater operators. KRS 223.160-220 authorizes the cabinet to promulgate administrative regulations concerning the board of certification for water treatment and distribution operators and the certification of water treatment and distribution system operators. EO 2009-538, effective June 12, 2009, establishes the new Energy and Environment Cabinet. This administrative regulation establishes the duties of the Kentucky Board of Certification of Wastewater System Operators and the Kentucky Board of Certification of Water Treatment and Distribution System Operators.
History: 400 KAR 011:010. 35 Ky.R. 474; 1211; 1746; eff. 3-6-2009; 36 Ky.R. 450; 1049; eff. 2-5-2010; Crt eff. 11-1-2018; Crt to Am, filing deadline 4-28-2027.

401 KAR 11:020 Standards of professional conduct for certified operators {#sec-401-kar-11-020 omnilex-key=us-ky-regs-official--title-401--401 KAR 11:020}

Section 1. Standards of Professional Conduct.

(1) In order to safeguard the life, health, and welfare of the public and the environment and to establish and maintain a high standard of integrity in the certified operator profession, the following standards of professional conduct apply to persons certified in accordance with 401 KAR Chapter 11:

(a) A certified operator shall, during the performance of operational duties, protect the safety, health, and welfare of the public and the environment;

(b) A certified operator shall use reasonable care and judgment in the performance of operational duties;

(c) If a certified operator's judgment is overruled by an employer under circumstances in which the safety, health, and welfare of the public or the environment are endangered, the certified operator shall inform the employer of the possible consequences;

(d) A certified operator shall be objective, truthful, and complete in applications, reports, statements, and testimony provided to the cabinet; and

(e) A certified operator shall ensure the integrity of the samples that the operator collects, prepares, or analyzes so that results shall be a true representation of water quality.

(2) Proof of certification. While on duty, a certified operator shall carry the cabinet-issued wallet card showing the operator's current certification status.

(3) Maintenance of records. If information related to the operator's employment or mailing address changes from that provided in the application for certification, the certified operator shall provide written notification to the cabinet within thirty (30) days.

History

RELATES TO: KRS 223.160-220, 224.73-110, EO 2009-538
STATUTORY AUTHORITY: KRS 224.10-100, 224.10-110, 224.73-110, EO 2009-538
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-110 authorizes the cabinet to promulgate administrative regulations concerning the certification of water and wastewater operators. EO 2009-538, effective June 12, 2009, establishes the new Energy and Environment Cabinet. This administrative regulation establishes standards for the performance of certified water and wastewater operator duties.
History: 401 KAR 011:020. 35 Ky.R. 475; 1212; 1747; eff. 3-6-2009; 36 Ky.R. 452; 1051; eff. 2-5-2010; Crt eff. 11-1-2018; Crt eff. 10-28-2025.

401 KAR 11:030 Wastewater treatment and collection system operators; classification and qualifications {#sec-401-kar-11-030 omnilex-key=us-ky-regs-official--title-401--401 KAR 11:030}

Section 1. Classification of Wastewater Operator Certifications.

(1) Wastewater treatment certifications.

(a) Limited certification. An operator issued a limited certificate may have primary responsibility for a school wastewater treatment plant and collection system as established in KRS 224.73-110(5).

(b) Class I Treatment certification. A Class I treatment operator:

May have primary responsibility for a wastewater treatment plant with a design capacity less than or equal to 50,000 gallons per day; and
Shall not have primary responsibility for a wastewater treatment plant with a larger design capacity as established in 401 KAR 5:010.

May have primary responsibility for a wastewater treatment plant with a design capacity less than or equal to two (2) million gallons per day; and
Shall not have primary responsibility for a wastewater treatment plant with a larger design capacity as established in 401 KAR 5:010.

(d) Class III Treatment certification. A Class III Treatment operator:

May have primary responsibility for a wastewater treatment plant with a design capacity less than or equal to seven and one-half (7 1/2) million gallons per day; and
Shall not have primary responsibility for a wastewater treatment plant with a larger design capacity as established in 401 KAR 5:010.

(e) Class IV Treatment certification. A Class IV Treatment operator may have primary responsibility for a wastewater treatment plant of any design capacity.

(2) Wastewater collection certifications.

(a) Class I Collection certification. A Class I Collection operator:

May have primary responsibility for a wastewater collection system that transports wastewater to a treatment plant with a design capacity of less than or equal to 50,000 gallons per day; and
Shall not have primary responsibility for a wastewater collection system that transports wastewater to a treatment plant with a larger design capacity as established in 401 KAR 5:010.

(b) Class II Collection certification. A Class II Collection operator:

May have primary responsibility for a wastewater collection system that transports wastewater to a treatment plant with a design capacity of less than or equal to two (2) million gallons per day; and
Shall not have primary responsibility for a wastewater collection system that transports wastewater to a treatment plant with a larger design capacity as established in 401 KAR 5:010.

May have primary responsibility for a wastewater collection system that transports wastewater to a treatment plant with a design capacity of less than or equal to seven and one-half (71/2) million gallons per day; and
Shall not have primary responsibility for a wastewater collection system that transports wastewater to a treatment plant with a larger design capacity as established in 401 KAR 5:010.

(d) Class IV Collection certification. A Class IV Collection operator may have primary responsibility for any wastewater collection system.

(3) Operator in Training designations.

(a) A certified operator with an Operator in Training designation shall not have primary responsibility of a wastewater treatment plant or wastewater collection system as established in this subsection and in 401 KAR 5:010.

(b) A Class I Operator In Training shall not have primary responsibility of a wastewater treatment plant or wastewater collection system.

(c) A certified operator with an Operator in Training designation shall work under the direct supervision of a certified operator who:

Works at the same facility; and
Has obtained a certification level that is equal to or greater than the certification level required to serve in primary responsibility of the facility.

(d) An Operator In Training may have primary responsibility for a wastewater collection system or wastewater treatment plant for which the operator has obtained Class II through Class IV certification required by this section.

Section 2. Wastewater Operator Qualifications: Experience, Education, and Equivalencies. An individual desiring to become a certified operator shall meet the minimum education and experience requirements established in this section prior to the cabinet approving the individual to take a certification examination as established in 401 KAR 11:050.

(1) The minimum education and experience requirement for each class of wastewater treatment certification shall be as established in this subsection.

(a) Limited certification. The cabinet shall issue a limited certificate as established in KRS 223.73-110(5) if the applicant demonstrates the knowledge and experience required to properly operate the particular sewage system for which the applicant shall be responsible.

(b) Class I Treatment certification.

A high school diploma or general education development (GED) certificate; and
One (1) year of operation of a wastewater treatment plant.

A high school diploma or general education development (GED) certificate; and
Two (2) years of operation of a wastewater treatment plant.

(d) Class III Treatment certification.

A high school diploma or general education development (GED) certificate; and
Three (3) years of operation of a wastewater treatment plant with one (1) year of that experience in a wastewater treatment plant with a design capacity greater than 50,000 gallons per day.

(e) Class IV Treatment certification.

A baccalaureate degree from a regionally accredited college or university in engineering, or biological, environmental, physical, or chemical science, or equivalent; and
At least three (3) years of operation of a wastewater treatment plant.

a. Two (2) years of the required experience shall be in a wastewater treatment plant with a design capacity greater than two (2) million gallons per day; and

b. At least one (1) year of primary responsibility shall be in a wastewater treatment plant with a design capacity greater than two (2) million gallons per day.

(2) The minimum educational and experience requirements for wastewater collection certifications shall be as established in this subsection.

(a) Class I Collection certification.

A high school diploma or general education development (GED) certificate; and
One (1) year of operation of a wastewater collection system.

(b) Class II Collection certification.

A high school diploma or general education development (GED) certificate; and
Two (2) years of operation of a wastewater collection system.

A high school diploma or general education development (GED) certificate; and
Three (3) years of operation of a wastewater collection system with one (1) year of that experience in a wastewater collection system that transports wastewater to a treatment plant with a design capacity of greater than 50,000 gallons per day.

(d) Class IV Collection certification.

A baccalaureate degree from a regionally accredited college or university in engineering, or biological, environmental, physical, or chemical science; or equivalent; and
At least three (3) years of operation of a wastewater collection system. At least two (2) years of the required experience shall be in a wastewater collection system that transports wastewater to a treatment plant with a design capacity of greater than two (2) million gallons per day.

(3) Operator in Training designations.

(a) Class I Treatment and Class I Collection certifications.

A high school diploma or general education development (GED) certificate; and
Experience shall not be required.

(b) All other applicants for the classifications identified in Section 1(1) and (2) of this administrative regulation:

Shall have successfully qualified for and passed the certification exam of the same type classification at one (1) level lower than the Operator in Training designation being pursued; and
Shall not have been subject to disciplinary action as established in 401 KAR 11:050.

(4) Substitutions. The cabinet shall allow substitutions as established in this subsection for education and experience requirements established in subsections (1) and (2) of this section.

(a) Education from a regionally accredited college or university in engineering or biological, environmental, physical, or chemical science or equivalent shall be substituted if the substitution does not exceed fifty (50) percent of the required experience.

An associate degree may substitute for two (2) years of experience.
A baccalaureate degree may substitute for four (4) years of experience.
Ten (10) contact hours, one (1) Continuing Education Unit, or one (1) postsecondary education quarter hour in any subject with a grade of C or higher shall substitute for 0.022 years of experience.
One (1) postsecondary education semester hour in any subject with a passing grade of C or higher shall substitute for 0.033 years of experience.

(b) Education from a regionally accredited college or university that did not result in a degree in engineering or biological, environmental, physical, or chemical science may be substituted if the substitution does not exceed twenty-five (25) percent of the required experience.

An associate degree may substitute for a maximum of one (1) year of experience.
A baccalaureate degree may substitute for a maximum of two (2) years of experience.
Ten (10) contact hours, one (1) Continuing Education Unit, or one (1) postsecondary education quarter hour in any subject with a passing grade of C or higher shall substitute for 0.011 years of experience.
One (1) postsecondary education semester hour in any subject with a passing grade of C or higher shall substitute for 0.016 years of experience.
Ten (10) contact hours, one (1) Continuing Education Unit, or one (1) postsecondary education quarter hour in engineering, mathematics or biological, environmental, physical, or chemical science with a passing grade of C or higher shall substitute for 0.022 years of experience.
One (1) postsecondary education semester hour in engineering, mathematics or biological, environmental, physical, or chemical science with a passing grade of C or higher shall substitute for 0.033 years of experience.

(c) Education applied to the experience requirements established in subsections (1) and (2) of this section shall not be applied to the education requirement.

(d) Treatment and collection experience may be substituted for the educational requirement as established in this paragraph.

One (1) year of operational experience at a treatment plant may substitute for one (1) year of education.
One (1) year of collection system experience may substitute for one (1) year of education.

a. The cabinet may allow partial substitution of the education requirement with experience in:

(i) Maintenance;

(ii) Laboratory analysis; or

(iii) Other work related to the collection, treatment, or distribution of drinking water or wastewater.

b. To establish the amount of experience that shall be accepted, the cabinet shall determine the degree of:

(i) Technical knowledge needed to perform the work; and

(ii) Responsibility the applicant had in the operation of the system.

Experience applied to the education requirement established in subsections (1) and (2) of this section shall not be applied to the experience requirement.

(e) Collection system, treatment, and distribution experience may be substituted as established in this paragraph.

Four (4) years of collection system experience may be considered equivalent to one (1) year of treatment experience.
One (1) year of treatment experience may be considered equivalent to one (1) year of collection system experience.
One (1) year of distribution system experience as established in 401 KAR 11:040 may substitute for one (1) year of collection experience.
Substitutions under this paragraph shall not account for more than fifty (50) percent of the experience requirement.

(f) Experience that is not related to water collection, treatment, or distribution may be substituted as established in this paragraph.

Two (2) years of experience in laboratory analysis may be considered equivalent to one (1) year of treatment experience or six (6) months of collection experience.
Two (2) years of experience in the construction trades, construction management, engineering, plumbing, or electronics may be considered equivalent to one (1) year of collection experience or six (6) months of treatment experience.
Work experience in an area or specialty unrelated to those established in this paragraph may be substituted for up to six (6) months of collection or treatment experience.
To establish the amount of experience that shall be accepted, the cabinet shall determine the degree of:

a. Technical knowledge needed to perform the work; and

b. Responsibility the applicant had in performing the work.

Substitutions under this paragraph shall not account for more than fifty (50) percent of the experience required by this administrative regulation.

(5) Apprenticeships. An applicant who completes a state-approved treatment or collection apprenticeship program as established in 401 KAR 11:050 may be eligible for treatment or collection certification if the applicant also achieves a passing score of seventy (70) percent or above on a cabinet-administered examination.

(6) Equivalency. An operator who has received wastewater operator certification in a state, territory, or possession of the United States may be given an equivalent certification in Kentucky based on the:

(a) Level of certification obtained in the state, territory, or possession of the United States;

(b) Number of years of wastewater operator experience obtained while holding valid certification from another state, territory, or possession of the United States; and

(7) Reciprocity. The cabinet may establish a reciprocal agreement for operator certification with any other state, territory, or possession of the United States if the cabinet determines that operator certification requirements of the other state, territory, or possession of the United States are at least as stringent as those established in this administrative regulation.

History

RELATES TO: KRS 224.73-110
STATUTORY AUTHORITY: KRS 224.10-100, 224.10-110, 224.73-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.73-110 requires a person operating a public or private sewage system to possess necessary skills, pass an examination, and hold a certificate issued by the cabinet unless the person is operating a sewage system located at the residence where the person lives and the sewage system serves only one (1) residence. KRS 224.10-110 requires the cabinet to establish programs and enforce cabinet administrative regulations for the certification of sewage system operators. This administrative regulation establishes classifications and qualifications for wastewater treatment and collection operator certifications.
History: 35 Ky.R. 476; 1213; eff. 3-6-2009; 36 Ky.R. 454; 1052; 1456; eff. 2-5-2010; 36 Ky.R. 2105-A; 37 Ky.R. 51; eff. 8-5-2010; Crt eff. 11-1-2018; 45 Ky.R. 3524; 46 Ky.R. 954, 1114; eff. 11-1-2019.

401 KAR 11:040 Water treatment and distribution system operators; classification and qualifications {#sec-401-kar-11-040 omnilex-key=us-ky-regs-official--title-401--401 KAR 11:040}

Section 1. Classification of Water Operator Certifications.

(1) Water treatment certifications.

(a) Limited certification. An operator issued a limited certificate may have primary responsibility for a water treatment facility for a school and for a semipublic water supply as established in KRS 223.160.

(b) Class IA-D treatment certification. A Class IA-D treatment operator:

May be in direct responsible charge for a Class IA-D or Class IB-D water treatment plant as established in 401 KAR 8:030; and
Shall not be in direct responsible charge for a water treatment plant with a larger design capacity.

May be in direct responsible charge for a Class IB-D water treatment plant as established in 401 KAR 8:030; and
Shall not be in direct responsible charge for a water treatment plant with a larger design capacity.

(d) Class IIA treatment certification. A Class IIA treatment operator:

May be in direct responsible charge for a Class IIA water treatment plant or a Subclass A or B water treatment plant of an equal to or smaller design capacity as established in 401 KAR 8:030; and
Shall not be in direct responsible charge for a water treatment plant with a larger design capacity.

(e) Class IIB-D treatment certification. A Class IIB-D treatment operator:

May be in direct responsible charge for a Class IIB-D water treatment plant or a Subclass B water treatment plant of a smaller design capacity as established in 401 KAR 8:030; and
Shall not be in direct responsible charge for a water treatment plant with a larger design capacity.

(f) Class IIIA treatment certification. A Class IIIA treatment operator:

May be in direct responsible charge for a Class IIIA water treatment plant or a Subclass A or B water treatment plant of an equal to or smaller design capacity as established in 401 KAR 8:030; and
Shall not be in direct responsible charge for a water treatment plant with a larger design capacity.

(g) Class IIIB treatment certification. A Class IIIB treatment operator:

May be in direct responsible charge for a Class IIIB water treatment plant or a Subclass B water treatment plant of a smaller design capacity as established in 401 KAR 8:030; and
Shall not be in direct responsible charge for a water treatment plant with a larger design capacity.

(h) Class IVA treatment certification. A Class IVA treatment operator may be in direct responsible charge of any Subclass A or B water treatment plant as established in 401 KAR 8:030.

(i) Class IVB treatment certification. A Class IVB treatment operator may be in direct responsible charge of any Subclass B water treatment plant, as established in 401 KAR 8:030.

(2) Water distribution certifications.

(a) Class ID distribution certification. A Class ID distribution operator:

May be in direct responsible charge for a Class ID water distribution system as established in 401 KAR 8:030; and
Shall not be in direct responsible charge for a water distribution system serving a larger population.

(b) Class IID distribution certification. A Class IID distribution operator:

May be in direct responsible charge for a Class IID water distribution system as established in 401 KAR 8:030; and
Shall not be in direct responsible charge for a water distribution system serving a larger population.

May be in direct responsible charge for a Class IIID water distribution system as established in 401 KAR 8:030; and
Shall not be in direct responsible charge for a water distribution system serving a larger population.

(d) Class IVD distribution certification. A Class IVD distribution operator may be in direct responsible charge of any water distribution system.

(3) Bottled water certification. A bottled water operator may be in direct responsible charge for a bottled water system that bottles water for sale.

(4) Operator in Training designations.

(a) A certified operator with an Operator in Training designation shall not be in direct responsible charge of a water treatment plant or distribution system as established in this subsection and in 401 KAR 8:030.

(b) A Class I Operator In Training shall not be in direct responsible charge of a water treatment, distribution, or bottled water system except as established in 401 KAR 8:030 and paragraph (d) of this section.

(c) A certified operator with an Operator in Training designation shall work under the direct supervision of a certified operator who:

Works at the same facility; and
Has obtained a certification level that is equal to or greater than the certification level required to serve in direct responsible charge of the facility.

(d) An Operator In Training may have direct responsible charge for a water treatment or distribution system for which the operator holds an active Class II through Class IV certification required for the system as established in 401 KAR 8:030.

Section 2. Water Operator Qualifications: Experience, Education, and Equivalencies. An individual desiring to become a certified operator shall meet the minimum education and experience requirements established in this section prior to the cabinet approving the individual to take a certification examination as established in 401 KAR 11:050.

(1) The minimum education and experience requirement for each class of water treatment certification shall be as established in this subsection.

(a) Limited certification The cabinet shall issue a limited certificate as established in KRS 223.160 if the applicant demonstrates the knowledge and experience required to properly operate the particular water treatment facility for which the applicant is responsible..

(b) Class IA-D treatment certification.

A high school diploma or general education development (GED) certificate; and
One (1) year of operation of a Subclass A public water system with any design capacity as established in 401 KAR 8:030.

A high school diploma or general education development (GED) certificate; and
One (1) year of operation of a Subclass A or B public water system with any design capacity as established in 401 KAR 8:030.

(d) Class IIA treatment certification.

A high school diploma or general education development (GED) certificate; and
Two (2) years of operation of a water treatment plant, with six (6) months in a Class IIA, IIIA, or IVA water treatment plant, as established in 401 KAR 8:030.

(e) Class IIB-D treatment certification.

A high school diploma or general education development (GED) certificate; and
Two (2) years of operation of a public water system, with six (6) months in a Class IA-D, II B-D, or higher water treatment plant, as established in 401 KAR 8:030.

(f) Class IIIA treatment certification.

A high school diploma or general education development (GED) certificate; and
Three (3) years of operation of a public water treatment plant with one (1) year in a Class IIA, IIIA, or IVA water treatment plant, as established in 401 KAR 8:030, Section 2.

(g) Class IIIB treatment certification.

A high school diploma or general education development (GED) certificate; and
Three (3) years of operation of a public water treatment plant with one (1) year in a Class IIA, IIB-D, IIIA, IIIB, IVA, or IVB water treatment plant, as established in 401 KAR 8:030, Section 2.

(h) Class IVA treatment certification.

A baccalaureate degree from a regionally accredited college or university in engineering, or biological, environmental, physical, or chemical science, or equivalent; and
One (1) year of operation of a Class IIIA or IVA public water treatment plant as established in 401 KAR 8:030, Section 2.

(i) Class IVB treatment certification.

A baccalaureate degree from a regionally accredited college or university in engineering, or biological, environmental, physical or chemical science, or equivalent; and
One (1) year of operation of a Class IIIA, IIIB, IVA, or IVB public water treatment plant.

(2) The educational and experience requirements for water distribution certifications shall be as established in this subsection.

(a) Class ID distribution certification.

A high school diploma or general education development (GED) certificate; and
One (1) year of operation of a water distribution system.

(b) Class IID distribution certification.

A high school diploma or general education development (GED) certificate; and

a. Two (2) years of operation of a water distribution system; and

b. Six (6) months of the required experience shall be in a water distribution system serving a population greater than or equal to 1,500.

A high school diploma or general education development (GED) certificate; and

a. Three (3) years of operation of a water distribution system; and.

b. One (1) year of the required experience shall be in a water distribution system serving a population greater than or equal to 1,500.

(d) Class IVD distribution certification.

A baccalaureate degree from a regionally accredited college or university in engineering, or biological, environmental, physical, or chemical science, or equivalent; and
One (1) year of operation of a water distribution system serving a population greater than or equal to 15,000.

(3) Bottled water certification. The educational and experience requirements for bottled water certifications shall be:

(a) A high school diploma or general education development (GED) certificate; and

(b) One (1) year of operation of a bottled water system.

(4) The educational and experience requirements for Operator in Training designations shall be as established in this subsection.:

(a) Class IA-D Treatment, Class IB-D Treatment, Class ID Distribution, and Bottled Water certifications.

A high school diploma or general education development (GED) certificate; and
Experience shall not be required.

(b) All other applicants for the classifications established in subsections 1(1) and 1(2) of this administrative regulation:

Shall have successfully qualified for and passed the certification exam of the same type classification at one (1) level lower than the Operator in Training designation being pursued; and
Shall not have been subject to disciplinary action as established in 401 KAR 11:050, Section 4.

(5) Substitutions. The cabinet shall allow substitutions as established in this subsection for education and experience requirements as established in subsections (1), (2), and (3) of this section.

(a) Education from a regionally accredited college or university in engineering, or biological, environmental, physical, or chemical science, or equivalent shall be substituted if the substitution does not exceed fifty (50) percent of the required experience.

An associate degree shall be considered equivalent to two (2) years of experience.
A baccalaureate degree shall be considered equivalent to four (4) years of experience.
Ten (10) contact hours, one (1) Continuing Education Unit, or one (1) postsecondary education quarter hour in any subject with a passing grade of C or higher shall substitute for 0.022 years of experience.
One (1) postsecondary education semester hour in any subject with a passing grade of C or higher shall substitute for 0.033 years of experience.

(b) Education from a regionally accredited college or university that did not result in a degree in engineering or biological, environmental, physical, or chemical science, or equivalent may be substituted if the substitution does not exceed twenty-five (25) percent of the required experience.

An associate degree may substitute for a maximum of one (1) year of experience.
A baccalaureate degree may substitute for a maximum of two (2) years of experience.
Ten (10) contact hours, one (1) Continuing Education Unit, or one (1) post-secondary education quarter hour in any subject with a passing grade of C or higher shall be considered equivalent to 0.011 years of experience.
One (1) postsecondary education semester hour with a passing grade of C or higher in any subject shall be considered equivalent to 0.016 years of experience.
Ten (10) contact hours, one (1) Continuing Education Unit, or one (1) postsecondary education quarter hour in engineering, mathematics, or biological, environmental, physical, or chemical science with a passing grade of C or higher shall substitute for 0.022 years of experience.
One (1) postsecondary education semester hour in engineering, mathematics or biological, environmental, physical, or chemical science with a passing grade of C or higher shall substitute for 0.033 years of experience.

(c) Education applied to the experience requirements established in subsections (1) and (2) of this section shall not be applied to the education requirement.

(d) Treatment and distribution experience may be substituted for the educational requirement as established in this paragraph.

One (1) year of operational experience at a water system may substitute for one (1) year of education.

a. The cabinet may allow partial substitution of the education requirement by experience in:

(i) Maintenance;

(ii) Laboratory analysis; or

(iii) Other work related to the collection, treatment, or distribution of drinking water or wastewater.

b. To establish the amount of experience that shall be accepted, the cabinet shall determine the degree of:

(i) Technical knowledge needed to perform the work; and

(ii) Responsibility the applicant had in the operation of the system.

Experience applied to the education requirement established in subsections (1) and (2) of this section shall not be applied to the experience requirement.

(e) Water treatment, distribution and collection experience may be substituted as established in this paragraph.

Two (2) years of distribution system experience may be considered equivalent to one (1) year of treatment experience.
One (1) year of treatment experience may be considered equivalent to one (1) year of distribution system experience.
One (1) year of collection experience may be considered equivalent to six (6) months of distribution experience.
Substitutions under this paragraph shall not account for more than fifty (50) percent of the experience requirement.

(f) Experience that is not related to water collection, treatment, or distribution may be substituted as established in this paragraph.

Two (2) years of experience in laboratory analysis may be considered equivalent to one (1) year of treatment experience or six (6) months of distribution experience.
Two (2) years of experience in the construction trades, construction management, engineering, plumbing, or electronics may be considered equivalent to one (1) year of distribution experience or six (6) months of treatment experience.
Work experience in an area or specialty unrelated to those established in this paragraph may be substituted for up to six (6) months of collection or treatment experience.
To establish the amount of experience that shall be accepted, the cabinet shall determine the degree of:

a. Technical knowledge needed to perform the work; and

b. Responsibility the applicant had in performing the work.

Substitutions under this paragraph shall not account for more than fifty (50) percent of the experience required by this administrative regulation.

(6) Apprenticeships. An applicant who completes a state-approved treatment or distribution apprenticeship program as established in 401 KAR 11:050 may be eligible for treatment or distribution certification if the applicant also achieves a passing score of seventy (70) percent or above on a cabinet-administered examination.

(7) Equivalency. An operator who has received water operator certification in a state, territory, or possession of the United States may be given an equivalent certification in Kentucky based on the:

(a) Level of certification obtained in the other state, territory, or possession of the United States;

(b) Number of years of water operator experience obtained while holding valid certification from another state, territory, or possession of the United States; and

(8) Reciprocity. The cabinet may establish a reciprocal agreement for operator certification with any other state, territory, or possession of the United States if the cabinet determines that operator certification requirements of the other state are at least as stringent as those established in this administrative regulation.

History

RELATES TO: KRS 223.160 - 223.220, 224.10-100, 224.10-110
STATUTORY AUTHORITY: KRS 223.160 - 223.220, 224.10-100, 224.10-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 authorizes the cabinet to promulgate administrative regulations concerning the certification of water operators. KRS 224.10-110 requires the cabinet to establish programs and enforce cabinet administrative regulations for the certification of water plant operators. KRS 223.160 through 223.220 authorizes the cabinet to establish qualifications and examinations, and issue certificates for, water plant operators. This administrative regulation establishes classification of water treatment and distribution operator certifications and establishes the qualifications for certification.
History: 36 Ky.R. 1055; 1457; eff. 2-5-2010; TAm eff. 9-14-2018; Crt eff. 11-1-2018; 45 Ky.R. 3527; 46 Ky.R. 958, 1116; eff. 11-1-2019.

401 KAR 11:050 Operator and training provider certification {#sec-401-kar-11-050 omnilex-key=us-ky-regs-official--title-401--401 KAR 11:050}

Section 1. Application and Examination for Certification.

(1) An individual desiring to become a certified operator shall:

(a) Meet the education and experience requirements established in 401 KAR 11:030 or 11:040; and

(b) Achieve a minimum passing score of seventy (70) percent on an examination administered by the cabinet.

(2)

(a) An applicant for certification shall submit to the cabinet:

A completed Registration Form for Exams and Training;
A completed Education and Experience Documentation Form; and
The certification application fee as established in 401 KAR 11:060.

(b) In addition to the requirements established in paragraph (a) of this subsection, an applicant desiring to obtain an Operator in Training designation shall submit a signed letter from a certified operator located at the facility where the applicant will work. The letter shall include:

A statement from the certified operator indicating that the certified operator shall oversee the work of the applicant seeking an Operator in Training designation;
A commitment that the certified operator shall serve as a mentor to the applicant seeking an Operator in Training designation if the applicant is under the certified operator's direct responsible charge; and
Confirmation that the certified operator has obtained a certification level that is equal to or greater than the certification level required to serve in primary responsibility or in direct responsible charge of the facility.

(3)

(a) After receipt of the application items for Class IV operators established in subsection (2) of this section, the cabinet, considering the recommendation of the board, shall determine if the applicant meets the requirements established in 401 KAR 11:030 or 11:040.

(b) After receipt of the application items established in subsection (2) of this section, the cabinet shall determine if the applicant meets the requirements established in 401 KAR 11:030 or 11:040.

(c) If the applicant meets the requirements established in 401 KAR 11:030 or 11:040, the cabinet shall approve the application and notify the applicant of the scheduled exam date.

(4)

(a) Upon the applicant's completion of the examination, the cabinet shall notify the applicant of the applicant's examination score.

(b) A score of at least seventy (70) percent shall be required to pass the examination.

(5)

(a) The cabinet shall issue a certificate and a wallet card to an applicant who successfully passes the certification examination.

(b) The certificate and wallet card shall designate the certification classification for which the operator has demonstrated competency.

(6) An applicant who fails to pass an examination may apply to take the examination again by resubmitting the Registration Form for Exams and Training and the application fee to the cabinet.

(7)

(a) An examination shall not be returned to the applicant, but results may be reviewed by the applicant with a member of the cabinet.

(b) A request for a review shall be submitted to the cabinet in writing.

(8)

(a) An equivalent certification may be issued, without examination, to a person who holds a valid certificate in a state, territory, or possession of the U.S. as established in 401 KAR 11:030 and 11:040.

(b) The applicant shall submit an Application for Reciprocity and Equivalency form and the reciprocity or equivalency fee as established in 401 KAR 11:060 to the cabinet.

(9)

(a) A certified operator who holds an Operator in Training designation may upgrade the certification by removing the Operator in Training designation without examination if the operator:

Has satisfied the requirements established in Section 3(1)(a) and (b) of this administrative regulation;
Has acquired the minimum experience required for the certification being pursued as established in 401 KAR 11:030 or 11:040; and
Submits a letter from the certified operator who has served as the applicant's mentor during the Operator in Training period that recommends the removal of the Operator in Training designation.

(b) A certified operator with an Operator in Training designation who is unable to comply with the requirements established in paragraph (a) of this subsection shall apply for and retake the certification exam to upgrade the operator's certification.

Section 2. Duration of Certification.

(1)

(a) Wastewater certifications shall expire on June 30 of an odd-numbered year unless suspended, revoked, or replaced by a higher classification certificate before that date.

(b) Wastewater certifications issued on or after January 1 and on or before June 30 of an odd-numbered year shall expire on June 30 of the next odd-numbered year.

(2)

(a) Water certifications shall expire on June 30 of an even-numbered year unless suspended, revoked, or replaced by a higher classification certificate before that date.

(b) Water certifications issued on or after January 1 and on or before June 30 of an even-numbered year shall expire on June 30 of the next even-numbered year.

(3)

(a) An expired certification shall continue in force pending the administrative processing of a renewal if the certified operator has complied with the renewal requirements established in Section 3 of this administrative regulation.

(b) A certification continued in accordance with this subsection shall remain fully effective and enforceable.

(4) A certification shall terminate if not renewed on or before December 31 of the year the certification expired.

Section 3. Continuing Education and Certification Renewal.

(1) A certified operator who is not designated an Operator in Training may renew a certification without examination if the operator has:

(a) Accumulated the training hours required in subsection (5) of this section; and

(b) Submitted a completed Application for Certification Renewal form and the renewal fee to the cabinet or has renewed the certification electronically on the cabinet's Web site https://eec.ky.gov/Environmental-Protection/Compliance-Assistance/operator-certification-program/Pages/default.aspx.

(2)

(a) A certified operator seeking to renew a certification with an Operator in Training designation shall submit a:

Completed Application for Certification Renewal form;
Letter of mentorship; and
Completed Education and Experience Documentation form.

(b) The cabinet shall not approve an operator to renew a certification with Operator in Training designation unless the applicant has accumulated the required training hours established in subsection (5) of this section.

(3) If the Application for Certification Renewal form and the renewal fee are not received by the cabinet or submitted electronically by June 30 of the year the certification expires, a late renewal fee as established in 401 KAR 11:060 shall be paid.

(4)

(a) A terminated certification shall not be renewed.

(b) An operator whose certification is terminated and who wishes to become recertified shall reapply for and pass an examination as established in Section 1 of this administrative regulation.

(5)

(a) Prior to applying for certification renewal or to return a certificate to active status, a certified operator shall complete the required number of cabinet-approved training hours as established in Sections 4 and 5 of this administrative regulation.

(b) A certified operator holding multiple wastewater certifications issued in accordance with this administrative regulation shall complete the required number of cabinet-approved training hours for the highest certificate held in lieu of completing the required number of continuing education hours required for each certificate.

(c) A certified operator holding multiple water certifications issued in accordance with this administrative regulation shall complete the required number of cabinet-approved training hours for the highest certificate held in lieu of completing the required number of continuing education hours required for each certificate.

(d) Hours earned prior to initial certification shall not count toward certification renewal.

(e) Water and wastewater training hours shall be completed for each renewal during the two (2) year period immediately prior to the certificate expiration date.

Certified operators with a Bottled Water, Limited, Class I or II Treatment, Collection, or Distribution certification shall complete twelve (12) hours of approved training.
Certified operators with a Class III or IV Treatment, Collection, or Distribution certification shall complete twenty-four (24) hours of approved training.

Section 4. Certified Training Provider Program.

(1) A training provider applicant shall have provided cabinet-approved continuing education courses as established in Section 5 of this administrative regulation for a minimum of two (2) consecutive years prior to the application for certification.

(2) A training provider applicant shall submit to the cabinet:

(a) A completed Application for Certified Training Provider form; and

(b) The fee as established in 401 KAR 11:060.

(3) The cabinet shall:

(a) Notify a training provider applicant of the cabinet's decision within ninety (90) days of receiving the items established in subsection (2)of this section; and

(b) Issue a provider identification number that shall be written on all training materials and documentation.

(4) Training provider certification shall be valid for one (1) calendar year from the date of certification.

(5) The principal officers and core trainers of a certified training provider shall attend a cabinet training session prior to offering continuing education courses after certification has been approved.

(6) Continuing education courses offered by a certified training provider shall be based on core content.

(7) For each continuing education course:

(a) The certified training provider shall submit to the cabinet a Certified Training Provider Course Submittal form.

(b) The cabinet shall assign a course number.

(c) The certified training provider shall submit a Continuing Education Activity Report form at the completion of the course.

(d) The certified training provider shall retain for five (5) years:

A completed Application for Approval of Courses for Continuing Education Credit form;
Course learning objectives;
Criteria for successful completion by course attendees;
Agenda that establishes:

a. Course instruction and break times; and

b. Brief description of each topic;

The instructor's name and credentials;
Evaluation methods;
The completed Continuing Education Activity Report form;
A summary of participant evaluations; and
Instructional materials and references.

(8) Compliance.

(a) The cabinet and board may review the continuing education activities of a certified training provider at any time.

(b) A certified training provider shall be subject to its certification being limited, denied, or revoked if the cabinet, in consultation with the board, determines that the certified training operator has failed to comply with this administrative regulation.

(d) The board shall make a recommendation to the cabinet regarding the limitation, denial, or revocation of training provider certification if the certified training provider has failed to comply with this administrative regulation.

(e) Upon receiving a recommendation from the board, the cabinet shall review the available evidence.

(f) After completing the review, the cabinet shall initiate the recommended action or notify the board as to why an alternative action was taken.

(g) A certified training provider that is aggrieved by a certification limitation, denial, or revocation action may file a petition for hearing with the cabinet as established in KRS 224.10-420 through 224.10-470.

Section 5. Training Approval of Non-Certified Training Providers.

(1) A training provider seeking approval of certified operator training shall submit to the cabinet a completed Application for Approval of Courses for Continuing Education Credit form.

(2) Upon completion of the approved training, the provider shall submit to the cabinet a completed Continuing Education Activity Report form.

(3) A certified operator who has attended training that has not been submitted to the cabinet for approval may apply for training approval as established in subsection (1) of this section.

(4) A certified operator who provides approved training shall receive hour-for-hour credit for actual instruction time.

(5)

(a) Cabinet approval of training shall expire two (2) years following the date of approval.

(b) The cabinet, in consultation with the board, shall extend the approval expiration date if:

The provider requests the extension on the Extension Request for Approved Continuing Education Courses form; and
The training has not changed from the previous approval.

Section 6. Operator Disciplinary Action.

(1) A certified operator shall be subject to disciplinary action if the certified operator has not satisfactorily performed the operator's duties as established in 401 KAR 11:020.

(2)

(a) A written complaint received by the board or cabinet regarding a certified operator, unless duplicitous or frivolous, and violations of 401 KAR 11:020 that are identified by the cabinet shall be evaluated by the board.

(b) The certified operator shall appear before the board if requested by the board.

(3) The board shall make a recommendation to the cabinet regarding disciplinary action. The board may recommend that disciplinary action not be taken or recommend that a disciplinary action be taken if the board determines that the certified operator has not satisfactorily performed operator duties in compliance with 401 KAR 11:020.

(4)

(a) Upon receiving a recommendation from the board, the cabinet shall review the available evidence.

(b) After completing the review, the cabinet shall initiate the recommended disciplinary action or notify the board as to why an alternative disciplinary action was taken.

(5) A disciplinary action shall be commensurate with the severity, duration, and number of the violations. Disciplinary actions may include:

(a) Probation of the operator's certification for a specified period of time, not to exceed one (1) year;

(b) Suspension of the operator's certification for a specified period of time, not to exceed four (4) years, during which the certification shall be considered void;

(d) Civil or criminal penalties; or

(e) A combination of the disciplinary actions established in paragraphs (a) through (d) of this subsection.

(6) If disciplinary action is taken, the cabinet shall notify the certified operator and the operator's employer by certified mail of the action, the reasons outlined for the action, and the length of time for which the disciplinary action shall apply.

(7)

(a) A certified operator whose certification has been suspended shall not have primary responsibility or be in in direct responsible charge during the period that the suspension remains in effect.

(b) Experience gained during a suspension shall not be included toward meeting the requirements established in 401 KAR 11:030 or 11:040.

(8) If a certification is revoked, the operator shall be ineligible for future certification.

(9) A certified operator who is aggrieved by a disciplinary action may file a petition for hearing with the cabinet as established in KRS 224.10-420(2).

Section 7. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Registration Form for Exams and Training", Form DCA1100, May 2019;

(b) "Education and Experience Documentation Form", Form DCA1110, May 2019;

(d) "Application for Approval of Courses for Continuing Education Credit", Form DCA1130, May 2019;

(e) "Continuing Education Activity Report", Form DCA1140, May 2019; and

(f) "Application for Reciprocity and Equivalency", Form DCA1150, May 2019.

(g) "Extension Request For Approved Continuing Education Courses", Form DCA1180, May 2019;

(h) "Application for Certified Training Provider", Form DCA1160, May 2019; and

(i) "Certified Training Provider Course Submittal", Form DCA1170, May 2019.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Compliance Assistance, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. This material is also available on the cabinet's Web site at https://eec.ky.gov/Environmental-Protection/Compliance-Assistance/operator-certification-program/Pages/forms.aspx.

History

RELATES TO: KRS 223.160 - 223.220, 224.10-420(2), 224.73-110
STATUTORY AUTHORITY: KRS 223.160 – 223.220, 224.10-100, 224.10-110, 224.73-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-110 authorizes the cabinet to promulgate administrative regulations concerning the certification of water and wastewater operators. KRS 223.160 through 223.220 authorizes the cabinet to establish qualifications and examinations and establish fees for certification of water plant operators. KRS 224.73-110 authorizes the cabinet to promulgate administrative regulations for the certification of wastewater operators. This administrative regulation establishes application and examination procedures, provisions relating to certificate issuance, renewal, and termination; reciprocity; equivalency; training; and disciplinary actions for water and wastewater operators. This administrative regulation also establishes requirements for the certification of operator training providers.
History: 35 Ky.R. 479; 1216; eff. 3-6-2009; eff. 2-5-2010; TAm eff. 7-8-2016; Crt eff. 11-1-2018; 45 Ky.R. 3531; 46 Ky.R. 962; eff. 11-1-2019.

401 KAR 11:060 Operator and training provider certification fees {#sec-401-kar-11-060 omnilex-key=us-ky-regs-official--title-401--401 KAR 11:060}

Section 1. Operator Certification Fees.

(1) Fees for certification of water and wastewater operators shall be as established in this subsection.

(a) Certification application fee: $250.

(b) Renewal application fee: $200.

(d) Reciprocity and equivalency fee: $500.

(e) Inactive fee: $100.

(2) Initial, renewal, equivalency, inactive, and reciprocal certification application fees that are not submitted through the cabinet's Web site shall incur a surcharge of fifty (50) dollars in addition to the fees established in subsection (1) of this section.

(3) Fees established in this section shall be nonrefundable.

Section 2. Training Fees.

(1) Each year the cabinet, in consultation with the board, shall set fees for operator training conducted by the cabinet.

(2) If an operator cancels registration at least two (2) business days prior to the beginning of a training event, the operator shall:

(a) Have one (1) calendar year to reschedule attendance at another training event without being required to submit an additional fee; and

(b) Not receive a fee refund for canceled registration.

(3) The fees established in this section shall be fully refunded only if the training event is canceled by the cabinet.

Section 3. Training Provider and Continuing Education Approval Fees.

(1) Certified training provider annual fee: $2000.

(2) Cabinet approval of individual continuing education credit hours for non-certified training providers:

(a) Fifty (50) dollars for the first six (6) continuing education credit hours; and

(b) Twenty-five (25) dollars for each additional six (6) continuing education credit hours.

(3) Extension Request for Approved Continuing Education: Fifteen (15) dollars.

(4) Continuing education and training provider documents and fees that are not submitted through the cabinet's Web site shall incur a surcharge of fifty (50) dollars in addition to the fees established in this section.

History

RELATES TO: KRS 223.160 - 223.220, 224.10-110, 224.73-110
STATUTORY AUTHORITY: KRS 224.10-100, 224.10-110, 224.73-110
NECESSITY, FUNCTION, AND CONFORMITY: KRS 223.160 through 223.220 authorizes the cabinet to promulgate administrative regulations and establish fees for the certification of water operators. KRS 224.73-110 authorizes the cabinet to promulgate administrative regulations and establish fees for the certification of wastewater operators. This administrative regulation establishes a fee schedule for water and wastewater operator certification and for training of operators that is provided or approved by the cabinet.
History: 35 Ky.R. 481; 1219; eff. 3-6-2009; Crt eff. 11-1-2018; 45 Ky.R. 3535; 46 Ky.R. 967; eff. 11-1-2019.

Chapter 30 General Administrative Procedures

401 KAR 30:005 Definitions for 401 KAR Chapter 30 {#sec-401-kar-30-005 omnilex-key=us-ky-regs-official--title-401--401 KAR 30:005}

Section 1. Definitions. Except as provided in this section, the definitions established in 40 C.F.R. 260.10, effective September 9, 2005, shall apply.

(1) "100-year flood" means a flood that has a one (1) percent chance of being equaled or exceeded in any given year.

(2) "Administrator", "agency", "assistant administrator", "regional administrator", "director", or "regional director" means cabinet as defined in KRS 224.01-010(9).

(3) "Cabinet" is defined by KRS 224.01-010(9).

(4) "Coal mining by-products" means any material that:

(a) Is not one (1) of the primary products of a particular coal mining operation;

(b) Is a secondary and incidental product of the particular operation;

(d) Does not include an intermediate mining product, which results from one (1) of the steps in a mining process and is processed through the next step of the process within a short time; and

(e) May be stored separately in the hope that it can be profitably treated later, such as ore deposit that is too low in grade to be of economic value at the time of mining.

(5) "Coal mining waste" means earth materials which:

(a) Are combustible, physically unstable, acid-forming or toxic-forming;

(b) Are generated during and incidental to the mining and extraction of coal and to the washing and crushing of coal;

(d) Shall include refuse, overburden, and coal mining by-products.

(6) "Contaminate" means the introduction of a substance that would cause:

(a) The concentration of that substance in the groundwater to exceed the maximum contaminant level specified in 401 KAR 30:031, 401 KAR 47:030, Sections 5 and 6, or 401 KAR 34:060, Section 5;

(b) An increase in the concentration of that substance in the groundwater where the existing concentration of that substance exceeds the maximum contaminant level specified in 401 KAR 30:031, 401 KAR 47:030, or 401 KAR 34:060, Section 5; or

(c) A significant increase above established background levels, for substances that do not have an established maximum contamination level.

(7) "Contamination" means the degradation of naturally occurring water, air, or soil quality either directly or indirectly as a result of human activities.

(8) "Destruction or adverse modification" means an alteration of critical habitat which appreciably diminishes the likelihood of the survival and recovery of threatened or endangered species using that habitat.

(9) "Disposal" is defined by KRS 224.01-010(10).

(10) "Endangered or threatened species" means any species listed as endangered or threatened pursuant to Section 4 of the Endangered Species Act, as amended, 16 U.S.C. 1533.

(11) "Environmental Protection Agency" or "EPA" means the Kentucky Department for Environmental Protection except if used in the phrases "EPA hazardous waste number", "EPA identification number", "EPA Region", "EPA Acknowledgment of Consent", "EPA Test Methods", or "EPA publications".

(12) "Equivalent method" means any testing or analytical method authorized under 401 KAR Chapter 31, or methods in 401 KAR Chapters 47 and 48.

(13) "Federal Register" means the Administrative Register of Kentucky as described in KRS 13A.050.

(14) "Generator" is defined by KRS 224.01-010(13).

(15) "Hazardous waste" is defined by KRS 224.01-010(31)(b).

(16) "Karst terrain" means a type of topography where limestone, dolomite or gypsum is present and is characterized by naturally occurring closed topographic depressions or sinkholes, caves, disrupted surface drainage, and well developed underground solution channels formed by dissolution of these rocks by water moving underground.

(17) "Lower explosive limit" means the lowest percent by volume of a mixture of explosive gases, which will propagate a flame in air at twenty-five (25) degrees Celsius and atmospheric pressure.

(18) "Manifest" is defined by KRS 224.01-010(37).

(19) "Overburden" means:

(a) All of the earth and other geologic materials, excluding topsoil, which lie above a natural deposit of coal; and

(b) The earth and other material after removal from their natural state in the process of mining.

(20) "Permit" means the authorization or other control document that:

(a) Is issued by the cabinet to implement the requirements of the waste management administrative regulations;

(b) Includes permit-by-rule, registered permit-by-rule, research, development, and demonstration permit, and emergency permit; and

(21) "Person" is defined by KRS 224.01-010(17).

(22) "Publicly owned treatment works" is defined by KRS 224.01-010(19).

(23) "RCRA" means the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq).

(24) "Recycling" is defined by KRS 224.01-010(22).

(25) "Refuse" means waste material in the raw coal which it is the object of cleaning to remove.

(26) "Solid waste" is defined in KRS 224.01-010(31)(a).

(27) "State" means the Commonwealth of Kentucky.

(28) "Storage" is defined by KRS 224.01-010(28).

(29) "Termination" is defined by KRS 224.01-010(26).

(30) "Transfer facility" is defined by KRS 224.01-010(48).

(31) "Transportation" is defined by KRS 224.01-010(29).

(32) "Treatment" is defined by KRS 224.01-010(30).

(33) "United States" means the Commonwealth of Kentucky.

(34) "Used oil" is defined by KRS 224.50-545(2)(a).

(35) "Washout" means the carrying away of waste by waters as a result of flooding.

(36) "Waste" is defined by KRS 224.01-010(31).

(37) "Water" or "Waters of the Commonwealth" is defined by KRS 224.01-010(33).

(38) "Wetlands" means land that has a predominance of hydric soils and is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions.

Section 2. Substitution of Federal References.

(1) The following federal parts and subparts, which are cited by federal regulations referenced in 401 KAR Chapter 30, shall be substituted with the state administrative regulations listed below.

(2) The requirements of the following federal regulations, which are referenced in 401 KAR Chapter 30, shall include the modifications, exceptions, and additions that are specific to the Commonwealth of Kentucky set forth in the following state administrative regulations referenced in the table below.

(3) The following federal regulations, which are cited by the federal regulations referenced in this 401 KAR Chapter 30, shall be replaced with the state administrative regulations as identified in the table below.

History

RELATES TO: KRS Subchapters 224.01, 224.10, 224.40, 224.43, 224.46, 224.50, 224.60, 224.99, 40 C.F.R. 260.10
STATUTORY AUTHORITY: KRS 224.10-100, 40 C.F.R. 260.10
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 and the waste management provisions of KRS Chapter 224 require the cabinet to promulgate administrative regulations for the management of solid, special, and hazardous wastes. This administrative regulation defines essential terms, acronyms, and abbreviations used in connection with 401 KAR Chapter 30. Some federal terms have been modified to conform to Kentucky statutory mandates. Definitions contained in KRS Chapter 224 have been referenced to the appropriate statutory citation. Some terms do not have a federal counterpart and have been added to clarify requirements and provisions of KRS Chapter 224 and 401 KAR Chapter 30.
History: 401 KAR 030:005. 23 Ky.R. 1052; eff. 3-12-1997; 33 Ky.R. 2369; 3652; eff. 6-13-2007; Crt eff. 9-5-2018; Crt to Am; filing deadline 2-28-2027.

401 KAR 30:020 General provisions {#sec-401-kar-30-020 omnilex-key=us-ky-regs-official--title-401--401 KAR 30:020}

Section 1. Applicability. The waste management administrative regulations established in 401 KAR Chapters 31 to 49 shall apply to the disposal of solid waste and the management of all liquid, semisolid, solid, or gaseous waste defined or identified as hazardous in KRS Chapter 224 or the appropriate administrative regulations by all persons and state and federal agencies who engage in the generation, treatment, storage, or disposal of wastes, including hazardous substances spilled into the environment, that meet the criteria of hazardous waste.

Section 2. Variance. Except as provided in 401 KAR Chapter 38, a variance shall be a written waiver from any provision of the waste management administrative regulations, upon the finding by the cabinet that the absence of the provision shall provide adequate protection to health and the environment in a manner consistent with the purpose of the waste management administrative regulations and KRS Chapter 224.

(1) The cabinet may grant a variance or permit modification from the requirements of the waste management administrative regulations if a waste permit requirement, or the process and equipment used, is determined by the cabinet to be either:

(a) Insignificant as a potential hazard to public health or the environment because of its small quantity; low concentration; physical, biological, or chemical characteristics; or method of operation used; or

(b) Handled, processed, or disposed of pursuant to administrative regulations of another governmental agency, if the administrative regulations of other agencies meet the requirements of the waste management administrative regulations, including federal exemption rule-making actions pertaining to hazardous waste management.

(2) A request for variance from a requirement of the waste management administrative regulations shall be submitted in a report in sufficient detail to satisfy a request from the cabinet to provide the analyses, procedures, controls, and other pertinent data necessary to support the request for variance. The granting of a request by the cabinet shall be in writing and shall specify appropriate conditions such as duration, limitations, and review procedures to provide adequate protection to health and the environment.

(3) The cabinet shall not grant any request for a variance which:

(a) Would make the hazardous waste program less stringent than the federal hazardous waste management program;

(b) Would be in conflict with Kentucky Revised Statutes;

(d) Would vary the requirements of 401 KAR 47:030; or

(e) Would vary the financial responsibility requirements in a manner conflicting with 401 KAR 34:080, Section 1, or 401 KAR 35:080, Section 1.

Section 3. Compatibility with the Federal Acts. The administrative regulations promulgated pursuant to the waste management provisions of KRS Chapter 224 shall be compatible with federal regulations adopted pursuant to Pub.L. 94-580, the "Resource Conservation and Recovery Act of 1976," as amended through September 1996.

Section 4. Conflicting Provisions. The provisions of the waste management administrative regulations shall be construed as being compatible with and complimentary to each other. If an administrative regulation is found to be contradictory, the more stringent provisions shall apply.

Section 5. Severability. If a provision of KRS Chapter 224 or any administrative regulation promulgated pursuant thereto is found to be invalid, the remaining waste management administrative regulations in 401 KAR Chapters 30 through 49 shall not be affected or diminished thereby.

Section 6. Use of Number and Gender. In accordance with 40 C.F.R. 260.3, as used in 401 KAR Chapters 30 through 49:

(1) Words in masculine gender shall also include the feminine and neuter genders;

(2) Words in the singular shall include the plural; and

(3) Words in the plural shall include the singular.

Section 7. Applicability of Administrative Regulations.

(1) At the time of permit issuance, the applicable administrative regulations shall be those waste management administrative regulations which are in effect upon the date of permit issuance except as provided in 401 KAR 47:080, Section 6(3).

(2) Unless otherwise provided in 401 KAR 47:080, Section 6(3), for permit modifications, revocation and reissuance, or termination, the applicable administrative regulations shall be those regulatory provisions which are in effect upon the date that the cabinet makes a final determination (i.e., approval of a permit modification) upon the permit action and are applicable to those specific permit conditions being modified or revoked and reissued. The procedures which shall be used for permit modifications, revocation and reissuance, or termination shall be those regulatory procedures which are in effect upon the date of the cabinet's final determination.

Section 8. Availability of Information; Confidentiality of Information.

(1) Any information provided to the cabinet under 401 KAR Chapters 30 through 49 shall be made available to the public to the extent and in the manner authorized by the Kentucky Open Records Act, KRS 61.870 to 61.884, 224.10-212, and 400 KAR 1:060.

(2) Any person who submits information to the cabinet in accordance with 401 KAR Chapters 30 through 49 and 400 KAR 1:060 may assert a claim of business confidentiality or trade secret covering part or all of that information by following the procedures established in 400 KAR 1:060. Information covered by a claim shall be disclosed by the cabinet only to the extent, and by means of the procedures, established in 400 KAR 1:060 and KRS Chapter 61 except that information required by 401 KAR 32:050, Section 3, which is submitted in notification of intent to export a hazardous waste shall be provided to the U.S. Department of State and the appropriate authorities in a receiving country regardless of any claims of confidentiality. If a claim does not accompany the information when it is received by the cabinet, it may be made available to the public without further notice to the person submitting it.

Section 9. Compliance Deadlines. After promulgation of administrative regulations under 401 KAR Chapter 31 identifying by its characteristics or listing any substance as hazardous waste subject to the hazardous waste management administrative regulations, any person generating or transporting a substance or owning or operating a facility for treatment, storage, disposal or recycling of such substance shall register with the cabinet. The registration shall be filed within ninety (90) days after promulgation or revision of the administrative regulations unless another notification date is specified.

Section 10. Referenced Documents.

(1) The subject matter shall be governed by 40 C.F.R. 260.11, effective July 1, 2005.

(2) The documents incorporated by reference in 40 C.F.R. 260.11 (July 2005) and referenced in subsection (1) of this section shall be applicable to 401 KAR Chapters 31 through 49.

History

RELATES TO: KRS Subchapters 224.10, 224.43, 224.99, 40 C.F.R. 260 Subpart A
STATUTORY AUTHORITY: KRS 224.10-100
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 and the waste management provisions of KRS Chapter 224 require the Environmental and Public Protection Cabinet to promulgate administrative regulations for the generation, treatment, storage, recycling and disposal of hazardous wastes and the disposal of solid wastes. This administrative regulation establishes general provisions which apply to the waste management administrative regulations with regard to applicability, scope, exceptions, variances, general prohibitions, compatibility, conflicting provisions, severability, availability and confidentiality of information.
History: 401 KAR 030:020. 6 Ky.R. 473; 659; eff. 6-4-1980; 8 Ky.R. 158; 441; 859; eff. 2-1-1982; 1002; 9 Ky.R. 126; 401; eff. 8-25-1982; Recodified from 401 KAR 2:050, Sections 1 through 5; eff. 3-1-1983; 10 Ky.R. 54; eff. 12-2-1983; 12 Ky.R. 684; eff. 2-4-1986; 14 Ky.R. 1309; 1767; eff. 3-10-1988; 16 Ky.R. 1640; 2169; 2344; eff. 5-8-1990; 33 Ky.R. 2375; 3656; eff. 6-13-2007; Crt eff. 9-5-2018; Crt eff. 8-29-2025.

401 KAR 30:031 Environmental performance standards {#sec-401-kar-30-031 omnilex-key=us-ky-regs-official--title-401--401 KAR 30:031}

Section 1. Purpose, Scope and Applicability. The standards in this administrative regulation are for use under the waste management provisions of KRS Chapter 224 in determining which waste sites or facilities pose a reasonable probability of adverse effects on human health or the environment. Waste sites or facilities failing to satisfy the requirements of this administrative regulation shall be considered open dumps, which are prohibited by KRS 224.40-100. No owner or operator shall cause, suffer, or allow a waste site or facility or any unit of a waste site or facility to violate any provision of this administrative regulation.

Section 2. Floodplains. No waste site or facility shall restrict the flow of the 100-year flood, reduce the temporary water storage capacity of the floodplain, or be placed in a manner likely to result in washout of waste, so as to pose a hazard to human health, wildlife, or land or water resources.

Section 3. Endangered Species. No waste site or facility shall:

(1) Cause or contribute to the taking of any endangered or threatened species or candidate species listed pursuant to 16 USC 1531 et seq. (the Endangered Species Act of 1983 as amended); or

(2) Result in the destruction or adverse modification of the critical habitat of an endangered or threatened species or candidate species listed pursuant to 16 USC 1531 et seq. (the Endangered Species Act of 1983 as amended).

Section 4. Surface Waters. No waste site or facility shall:

(1) Cause a discharge of pollutants into waters of the Commonwealth, including wetlands, that violate any requirements of KRS Chapter 224, or the surface water standards of 401 KAR Chapter 10 or 8; or

(2) Cause a discharge of dredged material or fill material to waters of the Commonwealth that is in violation of the requirements under 33 USC 1251 et. seq. (Section 404 of the Clean Water Act of 1977 as amended).

Section 5. Groundwater. No waste site or facility shall contaminate an underground drinking water source beyond the point of compliance in excess of the maximum contaminant levels specified in 401 KAR Chapter 8.

Section 6. Application to Land Use for the Production of Food Chain Crops. No waste site or facility shall exist or occur that applies waste within three (3) feet of the surface of land used for the production of food chain crops unless in compliance with all the requirements of subsection (1) or (2) of this section:

(1)

(a) The pH of the waste and soil mixture is six and five-tenths (6.5) or greater at the time of each waste application, except for waste containing cadmium at concentrations of two (2) mg/kg (dry weight) or less;

(b) The annual application of cadmium from waste does not exceed 0.44 pounds per acre on land used for production of tobacco or food chain crops. The annual cadmium application rate does not exceed 0.44 pounds per acre; and

(c) The maximum cumulative application of cadmium from the waste does not exceed the levels in Table 1 of this paragraph.

(2) If animal feed is the only food chain crop produced, there is no limit to the cadmium application rate, as long as the pH of sludge and soil mixture is six and five-tenths (6.5) or greater at the time of sludge application or at the time the crop is planted, whichever occurs later, and this pH level is maintained whenever food chain crops are grown. A plan shall also be developed that demonstrates how the animal feed shall be distributed to preclude human ingestion, and the measures to be taken to safeguard against possible health hazards from cadmium entering the food chain, which may result from alternative land uses. Future property owners shall also be notified by a stipulation in the land record or property deed that states that the property received sludge at high cadmium application rates and that food chain crops, except for animal feed, shall not be grown due to possible health hazards.

Section 7. Polychlorinated Biphenyls. No waste site or facility shall exist or occur that places waste containing concentrations of polychlorinated biphenyls (PCBs) equal to or greater than one (1) mg/kg (dry weight) on the land. However, residual landfills may dispose of PCBs in accordance with their permit, and special waste and contained landfills may dispose of wastes containing PCBs equal to forty-nine (49) mg/kg (dry weight) or less.

Section 8. Disease.

(1) Disease vectors. No waste site or facility shall exist or occur unless the on-site population of disease vectors is prevented or controlled through the periodic application of cover material or other techniques as appropriate to protect human health and the environment.

(2) Sewage sludge and septic tank pumpings. No waste site or facility shall exist or occur that applies sewage sludge or septic tank pumpings within three (3) feet of the surface of the land unless a process to significantly reduce pathogens has been utilized.

Section 9. Air.

(1) No waste site or facility shall engage in open burning of wastes. This requirement does not apply to infrequent burning of agricultural wastes in the field, silvicultural wastes for forest management purposes, land-clearing debris, diseased trees, debris from emergency cleanup operations, or ordinance.

(2) No waste site or facility shall violate applicable air pollution requirements contained in KRS Chapter 224 or 401 KAR Chapters 50 to 63.

Section 10. Safety.

(1) Explosive gases. No waste site or facility shall allow the concentration of explosive gases generated by the facility to exceed:

(a) Twenty-five (25) percent of the lower explosive limit for the gases in facility structures, excluding gas control or recovery system components; and

(b) The lower explosive limit for the gases at the facility property boundary.

(2) Fires. No waste site or facility shall pose a hazard to the safety of persons or property from fires. This may be accomplished through compliance with Section 9 of this administrative regulation and this section, through the periodic application of cover material or other techniques as appropriate.

(3) Access. No waste site or facility shall allow uncontrolled public access, unauthorized vehicular traffic, or illegal dumping of wastes. This requirement to ensure protection of human health and the environment may be met by using artificial barriers, natural barriers, or other methods as appropriate.

Section 11. Public Nuisance. No waste site or facility shall result in a public nuisance because of blowing litter, debris, or other waste or material.

Section 12. Wetlands. No new or expanded waste site or facility shall be located in wetlands.

Section 13. Karst. No waste site or facility shall allow contamination of karst terrain.

Section 14. Compliance. No waste site or facility shall violate any requirement of KRS Chapter 224 or administrative regulations promulgated pursuant thereto.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.46, 224.50, 224.70, 224.99, 16 U.S.C. 1531 et. seq., 33 U.S.C. 1251 et. seq.
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt administrative regulations for the treatment, storage, recycling and disposal of wastes. KRS 224.40-305 requires that persons engaging in the treatment, storage, recycling and disposal of waste obtain a permit. This chapter establishes the general administrative procedures that are applicable to 401 KAR Chapters 31 to 49. This administrative regulation sets forth the minimum environmental performance standards with which all waste sites or facilities shall comply.
History: 401 KAR 030:031. 18 Ky.R. 3074; 3430; eff. 6-24-1992; 23 Ky.R. 487; eff. 3-12-1997; TAm eff. 10-14-2008; Crt eff. 9-5-2018; Crt eff. 8-29-2025.

401 KAR 30:040 Transfer of regulatory responsibility {#sec-401-kar-30-040 omnilex-key=us-ky-regs-official--title-401--401 KAR 30:040}

Section 1. Regulatory Authority. Mining waste shall be a special waste pursuant to KRS 224.50-760(1)(a). Coal mining wastes as defined in 401 KAR 30:005 shall be regulated under KRS Chapter 350.

Section 2. Transfer of Responsibility. The regulatory responsibility for coal mining waste disposal, which is subject to waste management administrative regulations, shall be with the Department for Natural Resources, Division of Mine Reclamation and Enforcement at sites regulated under KRS Chapter 350. Coal mining waste may be disposed of in the areas regulated under KRS Chapter 350 and shall be exempt from the permit requirements in 401 KAR 47:100 if:

(1) Hazardous waste is not placed, stored, treated, disposed or otherwise managed under the provisions of this section; and

(2) The general requirements of KRS Chapter 224 are maintained.

Section 3. Variance and Termination. (1) This transfer of regulatory responsibility shall include the regulatory authority in 401 KAR 47:120, Section 1(8), to request information from the applicant, and the regulatory authority to grant a variance pursuant to 401 KAR 30:020, Section 2. This transfer of regulatory responsibility may be terminated by the cabinet at an individual mining site if any of the provisions of Section 2 of this administrative regulation are violated, and the Department for Environmental Protection shall reassume full regulatory responsibility for the individual site at that time.

History

RELATES TO: KRS Subchapters 224.10, 224.40, 224.43
STATUTORY AUTHORITY: KRS 224.10-100(24)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 and the waste management provisions of KRS Chapter 224 require the Environmental and Public Protection Cabinet to promulgate administrative regulations for the management of solid and hazardous wastes. This administrative regulation transfers regulatory responsibility for coal mining solid waste to the Department for Natural Resources, Division of Mine Reclamation and Enforcement.
History: 401 KAR 030:040. 6 Ky.R. 473; 659; eff. 6-4-1980; 8 Ky.R. 158; 441; 859; eff. 2-1-1982; 1002; 9 Ky.R. 126; 401; eff. 8-25-1982; Recodified from 401 KAR 2:050, Section 2; eff. 3-1-1983; 23 Ky.R. 490; eff. 3-12-1997; 33 Ky.R. 2377; 3658; eff. 6-13-2007; Crt eff. 9-5-2018; Crt eff. 8-29-2025.

Chapter 39 Hazardous Waste

401 KAR 39:005 Definitions for 401 KAR Chapter 39 {#sec-401-kar-39-005 omnilex-key=us-ky-regs-official--title-401--401 KAR 39:005}

Section 1. Definitions. Except as established in this section, definitions for 401 KAR Chapter 39 shall be as established in 40 C.F.R. 260.10.

(1) "Acute hazardous waste" is defined by 40 C.F.R. 260.10 and also includes the hazardous wastes listed in 401 KAR 39:060, Section 3(4), Table I with the assigned hazard code of (H).

(2) "Administrator":

(a) Means "cabinet", as defined by KRS 224.1-010(8); or

(b) Is defined by 40 C.F.R. 260.10 as referenced in:

40 C.F.R. 261.10;
40 C.F.R. 261.11;
40 C.F.R. 261.30(b);
40 C.F.R. 261, Appendix IX;
40 C.F.R. 262, Subpart H;
40 C.F.R. 268.5;
40 C.F.R. 268.6;
40 C.F.R. 268.13;
40 C.F.R. 268.40(b);
40 C.F.R. 268.42(b);
40 C.F.R. 268.44(a), (d), and (e);
40 C.F.R. 270.2;
40 C.F.R. 270.5;
40 C.F.R. 270.10(e)(2) and (3);
40 C.F.R. 270.10(f)(3); and
40 C.F.R. 270.32(b)(2) and (3).

(3) "Admixed liner" means a liner made from a mixture of any of a multitude of materials, often asphalt or cement, with widely varying physical and chemical properties.

(4) "Agency" means "cabinet" as defined by KRS 224.1-010(8).

(5) "Application" is defined by 40 C.F.R. 270.2, and includes the forms for applying for a permit, including any additions, revisions or modifications and any narrative and drawings required by 401 KAR Chapter 39, including Parts A and B of the permit application.

(6) "Appropriate regional administrator" means "state director".

(7) "Appropriate regional EPA office" means "cabinet" as defined by KRS 224.1-010(8).

(8) "Assistant administrator for solid waste and emergency response" means "cabinet" as defined by KRS 224.1-010(8).

(9) "Burn" means:

(a) Burning for energy recovery or destruction; or

(b) Processing for materials recovery or as an ingredient.

(10) "Cabinet" is defined by KRS 224.1-010(8).

(11) "Cation exchange capacity" means the sum of exchangeable cations a soil can absorb expressed in milliequivalents per 100 grams of soil as determined by sampling the soil to the depth of cultivation or solid waste placement, whichever is greater, and analyzing by the summation method for distinctly acid soils or the sodium acetate method for neutral, calcareous, or saline soils.

(12) "Closure" is defined by KRS 224.1-010(4).

(13) "Closure plan" means the plan for closure prepared in accordance with the requirements of 401 KAR 39:090, Sections 1 through 4.

(14) "Container" is defined by 40 C.F.R. 260.10, and includes transport vehicles that are containers themselves, including tank trucks, tanker-trailers, rail tank cars, and containers placed on or in a transport vehicle.

(15) "Contaminate" means to introduce a substance that would cause:

(a) The concentration of that substance in the groundwater to exceed the maximum contaminant level established in 401 KAR 30:031, 401 KAR 47:030, Sections 5 and 6, or 401 KAR 39:090, Section 1;

(b) An increase in the concentration of that substance in the groundwater where the existing concentration of that substance exceeds the maximum contaminant level established in 401 KAR 30:031, 401 KAR 47:030, Sections 5 and 6 or 401 KAR 39:090, Section 1; or

(c) A significant increase above the background levels established in 401 KAR 100:030, for substances that do not have an established maximum contamination level.

(16) "Contamination" means the degradation of naturally occurring water, air, or soil quality either directly or indirectly as a result of human activities.

(17) "Contingency plan" is defined by 40 C.F.R. 260.10, and includes financial planning to identify resources for initiation of required action.

(18) "Corrective action management unit" or "CAMU" means an area within a facility:

(a) Designated by the cabinet pursuant to 401 KAR 39:090, Section 1, for the purpose of implementing corrective action requirements established in 401 KAR 39:090, KRS 224.46-520, KRS 224.46.530, and RCRA 3008(h); and

(b) Is only used for the management of remediation wastes pursuant to implementing the corrective action requirements at the facility.

(19) "Department of Transportation" or "DOT" means the United States Department of Transportation.

(20) "Director" means:

(a) "Cabinet" as defined by KRS 224.1-010(8); or

(b)

The director of the Federal Register as referenced in 40 C.F.R. 260.11;
The director of the U.S. DOT Office of Pipeline and Hazardous Materials Technology as referenced in 40 C.F.R. 261.21(a)(3)(ii)(A);
The director of the EPA Office of Resource Conservation and Recovery as referenced in 40 C.F.R. 262.21;
The director of the EPA's Collection Strategies Division as referenced in 40 C.F.R. 262, Appendix; and
The director of the U.S. DOT Office of Hazardous Materials Regulations as referenced in 40 C.F.R. 263.30(c)(2) and 40 C.F.R. 279.43(c)(3)(ii).

(21) "Disposal" is defined by KRS 224.1-010(9).

(22) "Engineer" is defined by KRS 322.010(2).

(23) Environmental Protection Agency" or "EPA":

(a) Means "cabinet" as defined by KRS 224.1-010(8); or

(b) Means the Federal Environmental Protection Agency:

If used in the phrases:

a. "EPA or authorized state";

b. "EPA ID number";

c. "EPA hazardous waste codes";

d. "EPA form";

e. "EPA Region";

f. "EPA Acknowledgement of Consent";

g. "EPA test methods";

h. "EPA guidance"; and

i. "EPA publication; and

As referenced in:

a. 40 C.F.R. 260.1;

b. 40 C.F.R. 260.2

c. 40 C.F.R. 260.10 related to the definitions of:

(i) "Administrator";

(ii) "AES filing compliance date";

(iii) "Electronic import-export reporting compliance date";

(iv) "Electronic manifest";

(v) "Electronic manifest system";

(vi) "EPA hazardous waste number";

(vii) "EPA identification number"; and

(viii) "Replacement unit";

d. 40 C.F.R. 260.11(a) and (f);

e. 40 C.F.R. 261.1(a)(2);

f. 40 C.F.R. 261.1(b)(2)(i);

g. 40 C.F.R. 261.4(b)(11)(ii);

h. 40 C.F.R. 261.32(a) related to the listing of K069 only;

i. 40 C.F.R. 261.39(a)(5);

j. 40 C.F.R. 261.41;

k. 40 C.F.R. 261, Appendix IX;

l. 40 C.F.R. 262.20(a)(3)(ii);

m. 40 C.F.R. 262.21;

n. 40 C.F.R. 262.24(a)(3);

o. 40 C.F.R. 262.24(g);

p. 40 C.F.R. 262.25;

q. 40 C.F.R. 262.81 to 40 C.F.R. 262.84;

r. 40 C.F.R. 262, Appendix;

s. 40 C.F.R. 262, Subpart H;

t. 40 C.F.R. 263.20(a), (c), (e), and (f);

u. 40 C.F.R. 263, Subpart B;

v. 40 C.F.R. 264.12(a);

w. 40 C.F.R. 264.71(a)(2)(v);

x. 40 C.F.R. 264.71(a)(3);

y. 40 C.F.R. 264.71(d);

z. 40 C.F.R. 264.71(f)(4) and (5);

aa. 40 C.F.R. 264.71(h)(3);

bb. 40 C.F.R. 264.71(j);

cc. 40 C.F.R. 264.1082(c)(4)(ii), the second occurrence only stating "an equivalent method of treatment approved by EPA";

dd. 40 C.F.R. 265.12(a);

ee. 40 C.F.R. 265.71(a)(2)(v);

ff. 40 C.F.R. 265.71(a)(3);

gg. 40 C.F.R. 265.71(d);

hh. 40 C.F.R. 265.71(f)(4) and (5);

ii. 40 C.F.R. 265.71(h)(3);

jj. 40 C.F.R. 265.71(j);

kk. 40 C.F.R. 265.1083(c)(4)(ii), the second occurrence only stating "an equivalent method of treatment approved by EPA";

ll. 40 C.F.R. 266.103;

mm. 40 C.F.R. 266, Appendix IX;

nn. 40 C.F.R. 267.71(d);

oo. 40 C.F.R. 267.143(f)(2)(i)(A)(1);

pp. 40 C.F.R. 268.1(e)(3);

qq. 40 C.F.R. 268.2(j);

rr. 40 C.F.R. 268.7(e);

ss. 40 C.F.R. 270.1(a)(1);

tt. 40 C.F.R. 270.1(c)(7);

uu. 40 C.F.R. 270.2;

vv. 40 C.F.R. 270.5;

ww. 40 C.F.R. 270.6;

xx. 40 C.F.R. 270.10(e)(2);

yy. 40 C.F.R. 270.11(a)(3);

zz. 40 C.F.R. 270.12;

aaa. 40 C.F.R. 270.32(a) and (c);

bbb. 40 C.F.R. 270.51;

ccc. 40 C.F.R. 270.72(a)(5);

ddd. 40 C.F.R. 270.72(b)(5);

eee. 40 C.F.R. 124.6(e);

fff. 40 C.F.R. 124.10(c)(1)(ii); and

ggg. 40 C.F.R. 273.32(a)(3).

(24) "EPA Environmental Appeals Board" means "cabinet" as defined by KRS 224.1-010(8).

(25) "EPA Regional Administrator" means "cabinet" as defined by KRS 224.1-010(8).

(26) "EPA regional office" means "cabinet" as defined by KRS 224.1-010(8).

(27) "Existing boiler or industrial furnace" means a boiler or industrial furnace that on or before August 21, 1991 was either in operation burning, or processing hazardous waste, including the ancillary facilities to burn or to process the hazardous waste, or for which construction, including the ancillary facilities to burn or to process the hazardous waste, has commenced.

(28) "Facility" is defined by 40 C.F.R. 260.10, and includes sites implementing corrective action pursuant to KRS 224.46-520 and KRS 224.46-530.

(29) "Facility mailing list" means the mailing list for a facility maintained in accordance with 401 KAR 39:060, Section 5.

(30) "Federal Register":

(a) Means the United States Federal Register; or

(b) Means the "Administrative Register of Kentucky" as defined by KRS 13A.050, as referenced in 40 C.F.R. 260.20(c) and (e).

(31) "Flood plain" means areas adjoining inland waters that are inundated by the base flood, unless otherwise established in 401 KAR 30:031 or 401 KAR 47:030, and includes 100-year flood plain and floodway.

(32) "Floodway" means the channel of the waterway, stream or river and that portion of the adjoining flood plain that provides for passage of the 100-year flood flow without increasing the floodwater depth across the 100-year flood plain by more than one (1) foot.

(33) "Generator" is defined by KRS 224.1-010(12).

(34) "Governing body" is defined by KRS 224.1-010(45).

(35) "Groundwater" means the subsurface water occurring in the zone of saturation beneath the water table, and perched water zones below the B-soil horizon, including water circulating through fractures, bedding planes, and solution conduits.

(36) "Hazardous constituent" is defined by KRS 224.1-010(41).

(37) "Hazardous debris" means debris that contains a hazardous waste listed in, or that exhibits a characteristic of hazardous waste identified in 401 KAR 39:060, Section 3.

(38) "Hazardous waste" is defined by KRS 224.1-010(30)(b) and implemented through the criteria established in 40 C.F.R. 261.3.

(39) "Hazardous waste constituent" means a constituent that caused the cabinet or EPA to list the hazardous waste, or a constituent listed in 401 KAR 39:060, Section 3 and 40 C.F.R. Part 261, Subpart D.

(40) "Hazardous waste management unit" is defined by 40 C.F.R. 260.10, and includes an aboveground tank, component, existing tank system or existing component, in-ground tank, new tank system or new tank component, on-ground tank, tank system, underground tank, or unfit-for-use tank system.

(41) "Hazardous waste site or facility" means "hazardous waste management facility" as defined by 40 C.F.R. 270.2.

(42) "Inactive portion" means that portion of a hazardous waste site or facility that was not operated after November 19, 1980.

(43) "Industrial solid waste" is defined by KRS 224.1-010(30)(a)3.

(44) "Karst terrain" means a type of topography where limestone, dolomite or gypsum is present and is characterized by naturally occurring closed topographic depressions or sinkholes, caves, disrupted surface drainage, and well developed underground solution channels formed by dissolution of these rocks by water moving underground.

(45) "Lab pack" means any large container equal to or smaller than fifty-five (55) gallons that holds many smaller containers of various content tightly secured with packing material.

(46) "LDR" means land disposal restrictions.

(47) "Manifest" is defined by KRS 224.1-010(36) and includes:

(a)

The shipping document EPA Form 8700-22 as referenced in 40 C.F.R. 260.10; and
If applicable, EPA Form 8700-22A as referenced in 40 C.F.R. 260.10; or

(b) The electronic manifest.

(48) "Monitoring" means the act of systematically inspecting and collecting data on operational parameters or on the quality of the air, soil, groundwater, or surface water.

(49) "Municipal solid waste" is defined by KRS 224.1-010(30)(a)4.

(50) "Operator" is defined by 40 C.F.R. 260.10, and includes any operation of a facility on-site or off-site, and any private contractor conducting operational activities at a federal facility.

(51) "Owner" is defined by 40 C.F.R. 260.10, and includes any person who owns an on-site or off-site facility, or any part of a facility.

(52) "Permittee" means any person holding a valid permit issued by the cabinet or EPA to manage, treat, store, or dispose of hazardous waste.

(53) "Person" is defined by KRS 224.1-010(16).

(54) "Post-closure monitoring and maintenance" is defined by KRS 224.1-010(17).

(55) "Professional engineer is defined by KRS 322.010(3).

(56) "Professional land surveyor" is defined by KRS 322.010(9).

(57) "Publicly owned treatment works" or "POTW" is defined by KRS 224.1-010(18).

(58) "Regional Administrator":

(a) Means "cabinet", as defined by KRS 224.1-010(8); or

(b) Is defined by 40 C.F.R. 260.10 as referenced in:

40 C.F.R. 261, Appendix IX;
Note 1 to 40 C.F.R. 261.196;
40 C.F.R. 262, Appendix, Item 18;
Note to 40 C.F.R. 264.196;
40 C.F.R. 264.551 and 40 C.F.R. 264.552 related to CAMUs designated under RCRA Section 3008(h);
40 C.F.R. 264.553 related to temporary units designated under RCRA Section 3008(h);
Note to 40 C.F.R. 265.196;
40 C.F.R. 270.2 related to the definitions of:

a. "CAMU" under RCRA 3008(h);

b. "Director";

c. "Major facility"; and

d. "State/EPA agreement";

40 C.F.R. 270.5;
40 C.F.R. 270.10(e)(4);
40 C.F.R. 270.10(f)(2);
40 C.F.R. 270.10(g)(1)(i) and (iii);
40 C.F.R. 270.11(a)(3)(ii);
40 C.F.R. 270.51;
40 C.F.R. 124.2;
40 C.F.R. 124.3(c);
40 C.F.R. 124.4(a)(2);
40 C.F.R. 124.4(c)(2);
40 C.F.R. 124.5(d)(3);
40 C.F.R. 124.6(e);
40 C.F.R. 124.10(b);
40 C.F.R. 124.12(b);
40 C.F.R. 124.16(b)(2);
40 C.F.R. 124.18; and
40 C.F.R. 124.19.

(59) "Remediation waste" is defined by 40 C.F.R. 260.10, and includes waste managed in implementing KRS 224.46-530 for releases beyond the facility boundary.

(60) "Research, development, and demonstration permit" means a permit issued by the cabinet for a hazardous waste treatment facility that utilizes an innovative and experimental hazardous waste treatment technology or process for which permit standards for the experimental activity have not been promulgated under 401 KAR Chapter 39.

(61) "Resource Conservation and Recovery Act", "Act", "RCRA", "Subtitle C of RCRA", "RCRA Subtitle C", or "Subtitle C":

(a) Means KRS Chapter 224:

If referring to a permit issued by the cabinet pursuant to KRS Chapter 224-46, including a RCRA permit, Part B permit, RCRA Part B permit, RCRA permit by rule, and RCRA standardized permit, except for a federally issued EPA permit or a permit issued by another authorized state; and
If referring to the Federal hazardous waste program as a whole;

(b) Means "Act" or "RCRA" as defined by 40 C.F.R. 260.10 if referring to a specific section or provision of RCRA and as referenced in:

40 C.F.R. 261, Appendix IX;
40 C.F.R. 262, Subpart H;
40 C.F.R. 262, Appendix;
40 C.F.R. 270.1(a) and (b);
40 C.F.R. 270.2 related to the definition of "RCRA";
40 C.F.R. 270.14(d)(3); and
40 C.F.R. 270.51(d) in the reference to "EPA-issued RCRA permit"; or

(c) Means "Act" or "RCRA" as defined by 40 C.F.R. 260.10 and KRS Chapter 224, as appropriate, as referenced in 40 C.F.R. Part 124.

(62) "Schedule of compliance" is defined by 40 C.F.R. 270.2, and includes a cabinet order leading to compliance with KRS Chapter 224 and 401 KAR Chapter 39.

(63) "Solid waste" means for the purposes of 401 KAR Chapter 39, waste that meets the criteria established in 40 C.F.R. 261.2.

(64) "Solid waste management unit" means any discernible unit at which solid wastes have been placed at any time, irrespective of whether the unit was intended for the management of solid or hazardous waste. These units include any area at a facility at which solid wastes have been routinely and systematically released.

(65) "Spill" means any accidental spilling, leaking, pumping, pouring, emitting, or dumping into or on any land or water of hazardous wastes or materials which, if spilled, become hazardous wastes.

(66) "Start-up" means the setting in operation of a hazardous waste management unit, hazardous secondary material management unit, or control device for any purpose.

(67) "State Director" means "cabinet", as defined by KRS 224.1-010(8).

(68) "Storage" is defined by KRS 224.1-010(27).

(69) "Storage facility" means a facility or part of a facility at which hazardous waste is held for a temporary period, at the end of which the hazardous waste is treated, disposed of, or stored elsewhere.

(70) "Transportation" is defined by KRS 224.1-010(28), except as used in the phrase "Department of Transportation".

(71) "Treatment" is defined by KRS 224.1-010(29).

(72) "United States Environmental Protection Agency", "U.S. Environmental Protection Agency", or "U.S. EPA" means "Environmental Protection Agency" as defined by this administrative regulation.

(73) "Used oil" is defined by KRS 224.50-545(2)(a).

(74) "Waste" is defined by KRS 224.1-010(30).

(75) "Waste pile" means a noncontainerized accumulation of solid, nonflowing hazardous waste that is used for treatment or storage and that is not in a containment building.

History

RELATES TO: KRS 224.1, 224.10, 224.46, 224.50-545(2)(a), 322.010, 40 C.F.R. Parts 260, 261, 262, 268, 270
STATUTORY AUTHORITY: KRS 224.10-100, 224.46
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.46-530(2) authorizes the cabinet to promulgate administrative regulations to establish standards for the management of hazardous waste. This administrative regulation establishes definitions for 401 KAR Chapter 39. Some terms do not have a federal counterpart, and have been added to clarify requirements and provisions of KRS Chapter 224 and 401 KAR Chapter 39.
History: 41 KAR 039:005. 23 Ky.R. 1192; 2132; eff. 3-12-1997; 44 Ky.R. 285, 1232; eff. 12-7-2017; TAm eff. 7-9-2018; Crt eff. 9-5-2018; Crt eff. 8-29-2025.

401 KAR 39:060 General requirements {#sec-401-kar-39-060 omnilex-key=us-ky-regs-official--title-401--401 KAR 39:060}

Section 1. Applicability. This administrative regulation shall apply to a person, state, or federal agency that engages in the generation, treatment, storage, disposal, transportation, or management of waste defined or identified as hazardous in KRS Chapter 224 or 401 KAR Chapter 39, including hazardous substances spilled into the environment that meet the criteria of hazardous waste.

Section 2. Hazardous Waste Management System.

(1) Except as established in subsections (2) through (6) of this section and Section 6 of this administrative regulation, the requirements for hazardous waste management systems shall be as established in 40 C.F.R. Part 260, except:

(a) 40 C.F.R. 260.34(a)(1) to (3);

(b) 260.10; and

(2) The public notice requirements established in 40 C.F.R. 260.20(c) shall be replaced with the requirements established in paragraphs (a) and (b) of this subsection. If the tentative decision is to:

(a) Deny the petition, the cabinet shall notify the petitioner in writing and notify the public as required by subsection (3)(b) of this section; or

(b) Grant the petition, the cabinet shall propose a regulatory amendment, and file the proposed amendment with the Legislative Research Commission pursuant to KRS Chapter 13A, including the rule making and public comment process contained therein.

(3) The final decision making procedure established in 40 C.F.R., 260.20(e) shall be replaced with procedures established in paragraphs (a) and (b) of this subsection.

(a) The cabinet shall make a final decision after evaluating all public comments.

(b) The final decision shall be published either in the Kentucky Administrative Register, a daily or weekly major local newspaper of general circulation, or other methods reasonably calculated to give actual notice of the action to the persons potentially affected by it.

(4) A check made payable to the Kentucky State Treasurer in the amount required by KRS 224.46-014 shall be submitted to the cabinet with the submission of a completed petition for each hazardous waste that is petitioned for delisting.

(5) Upon approval by the cabinet of a petition to exclude a waste from a particular facility in accordance with 401 KAR Chapter 39, the excluded waste shall be subject to the disposal requirements established in 401 KAR Chapter 47 and the conditions as specified in the approved exclusion.

(6) A variance shall be a written waiver from a requirement of 401 KAR Chapters 39 and 40, upon the finding by the cabinet that the absence of the provision shall provide adequate protection to human health and the environment consistent with KRS Chapter 224.

(a)

A request for variance from a requirement of 401 KAR Chapters 39 and 40 shall be submitted in a report in sufficient detail to provide to the cabinet the analyses, procedures, controls, and other pertinent data necessary to support the request for variance.
The granting of a request by the cabinet shall be in writing and shall specify appropriate conditions, including duration, limitations, and review procedures to provide adequate protection to human health and the environment.

(b) The cabinet shall grant a variance or permit modification from the requirements of 401 KAR Chapters 39 and 40 if a waste permit requirement, or the process and equipment used, is determined by the cabinet to be:

Insignificant as a potential hazard to human health or the environment because of its small quantity, low concentration, physical, biological, or chemical characteristics, or method of operation used; or
Handled, processed, or disposed of pursuant to administrative regulations of another governmental agency, if the administrative regulations of other agencies comply with the requirements of the waste management administrative regulations, including federal exemption rule-making actions pertaining to hazardous waste management.

Make the hazardous waste program less stringent than the federal hazardous waste management program;
Conflict with Kentucky Revised Statutes;
Conflict with a regulatory provision stating that no variance shall be granted; or
Vary the financial responsibility requirements in a manner conflicting with 401 KAR 39:090 or Section 3 of this administrative regulation.

Section 3. Identification and Listing of Hazardous Waste.

(1) Except as established in subsections (2) through (8) of this section and Section 6 of this administrative regulation, the requirements for identification and listing of hazardous waste shall be as established in 40 C.F.R. Part 261, except:

(a) 40 C.F.R. 261.4(b)(17);

(b) 40 C.F.R. 261.149; and

(2) Wastes shall be considered radioactive mixed wastes if the wastes contain both hazardous wastes subject to KRS Chapter 224 and radioactive wastes subject to the Atomic Energy Act, 42 U.S.C. 2011 et. seq. Unless specifically exempted by 401 KAR 39:090, Section 3, radioactive mixed wastes shall be subject to the requirements of 401 KAR Chapters 39 and 40.

(3) Facilities required to comply with the export notification requirements referenced in 40 C.F.R. 261.39(a)(5) and 40 C.F.R. 261.41, shall also notify the cabinet.

(4) In addition to those substances listed in 40 C.F.R. 261, Subpart D, substances identified in Table I shall be listed hazardous wastes in the Commonwealth of Kentucky.

(5) In addition to the agricultural wastes established in 40 C.F.R. 261.4(b)(2), prunings and crop residues shall be agricultural wastes.

(6) In addition to the copy of the written state agreement required in 40 C.F.R. 261.4(b)(11)(ii) being submitted to the U.S. EPA, a copy shall be submitted to the cabinet at the same time.

(7) If multiple facilities are covered by the same financial assurance mechanism as referenced in 40 C.F.R. 261.143(g), 40 C.F.R. 261.147(a)(1)(i), and 40 C.F.R. 261.147(b)(1)(i), evidence of financial assurance shall be submitted to the cabinet and, as applicable, to the Regional Administrator and other state directors.

(8) In addition to the excluded hazardous wastes in 40 C.F.R. Part 261, Appendix IX, the cabinet granted an exclusion for the multi-source landfill leachate (EPA Hazardous Waste F039) generated after February 2, 2017, at Ashland Route 3 Landfill, Kentucky 3, Catlettsburg, Kentucky. This subsection shall serve as publication of the exclusion in accordance with Section 2(3)(b) of this administrative regulation.

(9) Any special waste identified as a hazardous waste as established in this administrative regulation shall be:

(a) Regulated pursuant to 401 KAR Chapter 39; and

(b) Exempt from the assessment of the Kentucky hazardous waste management fund as established in KRS 224.46-580(7).

Section 4. Land Disposal Restrictions. Except as established in Section 6 of this administrative regulation, the requirements for land disposal restrictions shall be as established in 40 C.F.R. Part 268.

Section 5. Hazardous Waste Permit Programs and Procedures.

(1) Except as established in subsections (2) through (18) of this section and Section 6 of this administrative regulation, the requirements for hazardous waste permit programs and procedures shall be as established in 40 C.F.R. Parts 124 and 270, except:

(a) 40 C.F.R. 270.1(c)(2)(ix);

(b) 40 C.F.R. 270.14(b)(18); and

(2) In addition to public notice requirements of 40 C.F.R. 124, the statement contained in KRS 224.40-310(5)(e) shall be included in each public notice.

(3) The applicant or facility shall reimburse the cabinet for the costs of newspaper advertisements, duplication, and postage for any required public notice or distribution to a mailing list.

(4) In addition to the requirements of 40 C.F.R. 124.10(a)(1)(iii), public notice shall be given if a hearing has been granted pursuant to 401 KAR Chapters 4 and 5 or 805 KAR Chapter 1.

(5) In addition to the federal appeal procedures referenced in 40 C.F.R. Parts 124 and 270, the cabinet appeal procedures shall be as established in KRS 224.10-420 through 224.10-470 and 400 KAR Chapter 1 for cabinet issued permits.

(6)

(a) Any owner or operator required to obtain a permit shall complete and submit to the cabinet:

EPA form 8700-23 as referenced in 40 C.F.R. 270.13; and
Part A Application Addendum, DWM 7058A.

(b) If any of the information required by paragraph (a) of this subsection changes, the owner or operator shall submit revised forms, established in paragraph (a) of this subsection, to the cabinet within sixty (60) days of the change, except as established in 401 KAR 39:080, Section 5(4).

(7) In addition to the noncompliance reporting requirements referenced in 40 C.F.R. 270.30(l)(6), the permittee shall immediately notify the cabinet of a release as established in KRS 224.1-400.

(8) In addition to the requirements established in 40 C.F.R. 270.10, any person applying for a construction and operation permit shall submit the information and documentation required in KRS 224.46-520(1) to include documentation of the applicant's decisions with respect to the proposal and justification for actions taken.

(9) In addition to the requirements of 40 C.F.R. Parts 124 and 270, for a hazardous waste disposal site or facility, that meets the criteria established in paragraph (a) of this subsection, a permit shall not be approved or issued by the cabinet, or a permit-by-rule applied, prior to the determinations established in KRS 224.40-310(6).

(a) This subsection shall apply to an owner or operator of:

A hazardous waste disposal site or facility that meets the definition of a waste disposal facility as defined by KRS 224.40-310(1); and

a. A new or proposed hazardous waste landfill, incinerator, or other site or facility for the land disposal of hazardous waste;

b. An existing hazardous waste landfill, incinerator, or other site or facility for the land disposal of hazardous waste that requests a permit modification that does not meet the criteria of a Class 1 or 2 modification; or

c. A new or existing hazardous waste treatment facility or hazardous waste storage facility that requests a permit modification to include a disposal facility instead of or in addition to any permitted hazardous waste activity already conducted by the owner or operator.

(b) The applicant shall obtain local government approval for incinerators or land disposal facilities, as established in KRS 224.40-310(7).

(10) An emergency permit shall specify that:

(a) All remaining hazardous waste and residues shall be removed at the end of the term of the emergency permit to a properly permitted hazardous waste site or facility in order to be exempted from the financial requirements of 401 KAR 39:090;

(b) The permittee shall comply with the closure performance standards established in 401 KAR 39:090, Section 8; and

(c) The cabinet shall recover its actual and necessary costs associated with the permittee's failure to properly close the unit specified in the emergency permit.

(11) Upon collection of trial burn data, referenced in 40 C.F.R. 270.62(b)(9), the data shall become part of the Part B permit application.

(12)

(a) In accordance with 401 KAR 39:090, the applicant shall establish financial assurance prior to issuance of a permit or sixty (60) days before the date on which hazardous waste is first received for treatment, storage, or disposal.

(b) The amount of financial assurance established for closure or post-closure shall be in accordance with the plan prepared pursuant to 401 KAR 39:090.

(c) The owner or operator of the hazardous waste site or facility shall submit a demonstration of financial assurance as established in KRS 224.46-520(3) and 401 KAR 39:090.

(13) An owner or operator of existing hazardous waste sites or facilities that close under interim status without submitting Part B of the permit application shall, at a minimum, comply with the corrective action requirements established in 401 KAR 39:090, Section 1.

(14) In addition to the requirements in 40 C.F.R. 270.10 and KRS 224.40-330, any initial, renewal, or change to ownership permit application shall include the following background information and past compliance record:

(a) Organizational structure:

If the applicant is a sole proprietor, a detailed listing of any general or limited partnership, joint venture, or corporation in which the applicant holds as much as or more than a twenty-five (25) percent interest, whether ownership or otherwise;
If the applicant is a general or limited partnership, a detailed listing of:

a. Each of the partners and their respective interests, whether ownership or otherwise;

b. Any corporation, joint venture, limited liability corporation, general or limited partnership, or proprietorship in which any of the constituent partners of the applicant holds as much as or more than a twenty-five (25) percent interest whether ownership or otherwise; and

c. Any corporation, joint venture, proprietorship, limited liability corporation, or general or limited partnership that holds as much as or more than a twenty-five (25) percent interest, whether ownership or otherwise in any of the non-individual constituent partners comprising the applicant;

If the applicant is a corporation, a detailed listing of:

a. The officers, directors, and major stockholders holding as much or more than a twenty-five (25) percent interest;

b. Any corporation of which the applicant is either a subsidiary or which holds as much as or more than a twenty-five (25) percent interest, either in stock or assets, in the applicant;

c. Any corporations that are either subsidiaries of the applicant or in which the applicant holds as much as or more than a twenty-five (25) percent interest, either in stock or assets; and

d. Any proprietorship, general or limited partnership, or joint venture in which the applicant holds as much as or more than a twenty-five (25) percent interest, whether ownership or otherwise; or

If the applicant is a joint venture, a detailed listing of:

a. All other joint ventures, and the respective interests, whether ownership or otherwise of each; and

b. Any proprietorship, general or limited partnership, joint venture, or corporation in which the applicant holds as much as or more than a twenty-five (25) percent interest, whether ownership or otherwise;

(b) For each individual or other entity listed in paragraph (a) of this subsection, a detailed listing of all violations of federal or state laws, rules, or administrative regulations concerning the areas established in subparagraphs 1. through 5. of this paragraph, whether judicial or administrative proceedings are pending or completed, that have resulted or might result in either criminal convictions or civil or administrative fines as much as or more than $1,000:

Solid or hazardous waste management;
Air pollution;
Water;
Occupational Safety and Health Administration with respect to hazardous materials or hazardous substances; or
Transportation with respect to hazardous materials or hazardous substances; and

(c) For each individual or other entity listed in paragraph (a) of this subsection, a current financial statement prepared by a certified public accountant.

(15) The owner or operator of the hazardous waste site or facility shall complete and submit an evaluation of subsurface geologic formations and surface topography for solution or karst terrain.

(a) If the owner or operator demonstrates to the cabinet that the facility is not underlain by soluble limestone, the owner or operator shall be exempt from the requirements of this subsection.

(b) Except as established in paragraph (a) of this subsection, the owner or operator shall demonstrate that:

The facility has been designed to withstand any gradual or sudden land subsidence, which is characteristic of areas underlain by soluble limestone; and
Contamination into or through any fractures, channels, or solution features shall not occur.

a. Establish the presence and extent of all fractures, channels, and solution features in the bedrock beneath the facility and describe how these features shall be sealed, filled, isolated, or otherwise neutralized to prevent subsidence; and

b. Describe how solution features shall be monitored to demonstrate compliance with the criteria established in paragraph (b) of this subsection; or

a. Design, operate, and maintain a double-liner system, which shall be installed beneath the facility and that shall include a leak detection system that meets the criteria established in paragraph (b) of this subsection; and

b. Comply with all of the requirements of 401 KAR 39:090, Section 1, for the design of the double-lined facility as applicable.

(16) The owner or operator of the hazardous waste site or facility shall submit the actual test data demonstrating the liner is or will be compatible with the waste, if applicable.

(17)

(a) The applicability established in 40 C.F.R. 124.31(a) shall be replaced with this paragraph.

The requirements in 40 C.F.R. 124.31 shall apply to all RCRA part B applications seeking:

a. An initial permit for a hazardous waste management unit;

b. A renewal of a permit for a unit with a significant change in facility operations;

c. A RCRA standardized permit as referenced in 40 C.F.R. 270, Subpart J; or

d. A renewal of a standardized permit for a unit with a significant change in facility operations, as defined by 40 C.F.R. 124.211(c).

The requirements in 40 C.F.R. 124.31 shall not apply to permit modifications pursuant to 40 C.F.R. 270.42 or to applications that are submitted for the sole purpose of conducting post-closure activities or post-closure activities and corrective action at a facility.

(b) The applicability established in 40 C.F.R. 124.32(a) shall be replaced with this paragraph.

The requirements in 40 C.F.R. 124.32 shall apply to RCRA part B applications seeking:

a. An initial permit for a hazardous waste management unit; or

b. A renewal of a permit for a unit pursuant to 40 C.F.R. 270.51.

The requirements in 40 C.F.R. 124.32 shall not apply to a hazardous waste unit for which a facility owner or operator is seeking:

a. A RCRA standardized permit referenced in 40 C.F.R. part 270, subpart J;

b. A permit modification pursuant to 40 C.F.R. 270.42; or

c. A permit application submitted for the sole purpose of conducting post-closure activities or post-closure activities and corrective action at a facility.

(c) The applicability established in 40 C.F.R. 124.33(a) shall be replaced with this paragraph. The requirements in 40 C.F.R. 124.33 shall apply to applicants seeking RCRA permits for hazardous waste management units.

(18) The biennial reporting referenced in 40 C.F.R. 270.60(a)(3)(v) shall be replaced with annual reporting.

Section 6. Exceptions and Additions.

(1) In the event of a release or threatened release of a hazardous substance, pollutant, or contaminant to the environment in a quantity that might present an imminent or substantial danger to human health or the environment, the facility authorized representative shall:

(a) Immediately notify the cabinet's twenty-four (24) hour emergency response line as required by KRS 224.1-400; and

(b) Provide a written report of the incident or accident within seven (7) days of the release, if required by the cabinet pursuant to KRS 224.1-400.

(2) Dates included in the federal regulations referenced in 401 KAR Chapter 39 that occurred before the effective date of this administrative regulation shall not be construed as creating a retroactive right or obligation in accordance with 401 KAR Chapter 39 if that right or obligation did not exist in this administrative regulation prior to the date the federal regulations were referenced.

(3) If a right or obligation existed in accordance with federal regulations based on a date in federal regulations, and there is a period from the date cited in the text until the date the requirements initially became effective in 401 KAR Chapter 39, these administrative regulations shall not contravene or countermand the legal application of the federal regulation for that period.

(4)

(a) For initial issuance, modification, revocation and reissuance, or termination, of a permit, the applicable administrative regulations shall be those regulatory provisions that are in effect upon the date that the cabinet makes a final determination upon the permit action and are applicable to those specific permit conditions being modified or revoked and reissued.

(b) The procedures that shall be used for permit modification, revocation and reissuance, or termination shall be those regulatory procedures that are in effect upon the date of the cabinet's final determination.

(5) In addition to RCRA, Section 7003 KRS 224.10-410 shall apply.

(6) In addition to RCRA, Section 3008 KRS 224.10-420 through 224.10-470, 224.46-530, and 224.99-010 shall apply.

(7) In addition to RCRA, Section 3004 KRS 224.46-520, 401 KAR 39:090, and Section 4 of this administrative regulation shall apply.

(8)

(a) As referenced in 401 KAR Chapter 39, the requirements in RCRA, Section 3010 shall be replaced with the requirement that any person generating or transporting a substance, or owning or operating a facility for treatment, storage, disposal, or recycling of the substance, shall register with the cabinet after promulgation of an administrative regulation identifying a substance by its characteristics or listing as hazardous waste subject to 401 KAR Chapter 39.

(b) The registration shall be filed as established in 401 KAR 39:080, Section 1(2) and within ninety (90) days after promulgation or revision of the administrative regulation unless another registration date is established in the administrative regulation.

(9) Any person who submits information to the cabinet pursuant to KAR Chapters 39 and 40, may assert a claim of business confidentiality or trade secret covering part or all of that information by following the procedures established in KRS 224.10-212 and 400 KAR 1:060.

(a) Information covered by a claim shall be disclosed by the cabinet as established in 400 KAR 1:060 and KRS Chapter 61, except that information required by 401 KAR 39:080, Section 1, which is submitted in notification of intent to export a hazardous waste, shall be provided to the U.S. Department of State, U.S. EPA, and the appropriate authorities in a receiving country regardless of any claims of confidentiality.

(b) If a claim does not accompany the information received by the cabinet, the claim may be made available to the public without further notice to the person submitting the claim.

(10) A person shall not deliver hazardous waste to a facility for treatment, storage, or disposal, unless the owner or operator has:

(a) Registered with the cabinet as an existing hazardous waste facility in operation on or before November 19, 1980;

(b) Qualified for interim status in accordance with 401 KAR 39:090, Section 2; or

(11) A person shall not engage in the storage, treatment, or disposal of hazardous waste without first obtaining construction or operation permits from the cabinet in accordance with KRS 224.46-520(1).

(12) Issuance of a federal permit to own or operate a hazardous waste site or facility shall not relieve the owner or operator of the responsibility to comply with the requirements of 401 KAR Chapter 39.

(13) All permit forms or permit submissions to the cabinet shall include:

(a) One (1) original and two (2) paper copies of the form;

(b) One (1) electronic copy, which shall be an exact match to the original;

(d) The Agency Interest (AI) number, if known; and

(e) A signature of the authorized representative.

(14) In addition to 40 C.F.R. 270.43, the cabinet may terminate a permit during its term or deny a permit renewal application for a violation of any requirement of KRS Chapter 224 or 401 KAR Chapter 39.

(15) In addition to 40 C.F.R. 270.50, a permit for the nerve agents established in KRS 224.50-130 and Section 3 of this administrative regulation shall be reviewed by the cabinet five (5) years after the date of permit issuance or reissuance and shall be modified if necessary, as established in Section 5 of this administrative regulation.

(16) The permittee shall have paid the applicable fees due as established in KRS 224.46 and 401 KAR 39:120.

(17) Except for closure, post-closure, and corrective action permit applications, failure to submit a requested application on time, or to submit in full the information required by 401 KAR Chapter 39, shall result in denial of the application in accordance with this administrative regulation.

(18) Past performance of the owner or operator shall be considered in the review and in the determination of any requirement for specialized conditions pursuant to KRS 224.40-330.

(19) The provisions of 401 KAR Chapter 39 shall be compatible with and complementary to each other. If an administrative regulation is found to be contradictory, the more stringent provision shall apply.

(20) The citations to Sections 301, 307, and 402 of the Clean Water Act shall also include any applicable Kentucky requirements as established in 401 KAR Chapter 5.

(21) The citations to Sections 60, 61, and 63 of the Clean Air Act shall also include any applicable Kentucky requirements as established in 401 KAR Chapters 50 through 65.

(22) The citations to the Safe Drinking Water Act shall also include any applicable Kentucky requirements as established in 401 KAR Chapters 6, 8, 9, and 10, and 805 KAR Chapter 1.

(23) In addition to 40 C.F.R. 258 and Subtitle D, 401 KAR Chapters 45, 47, and 48 shall apply.

(24) In addition to RCRA, Subtitle C, KRS 224.46 shall apply.

(25) In addition to RCRA, Section 3008h, KRS 224.10-100(18), KRS 224.99-010(5), and KRS 224.46-530 shall apply.

Section 7. Incorporation by Reference.

(1) "Part A Application Addendum", DWM 7058A, June 2017, is incorporated by reference.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Waste Management, 300 Sower Boulevard, 2nd Floor, Frankfort, Kentucky 40601, Monday through Friday, 8:00 a.m. to 4:30 p.m.

(3) This material may also be obtained on the division's Web site at eec.ky.gov/environmental-protection/waste.

History

RELATES TO: KRS 61.870, 61.884, 224.1-400, 224.10, 224.40-310, 224.46, 224.99, 40 C.F.R. Parts 124, 260, 261, 268, 270, 42 U.S.C. 2011 et seq.
STATUTORY AUTHORITY: KRS 224.10-100, 224.46-505, 224.46-510(3), 224.46-520, 224.50-130, 224.50-135
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 authorizes the Energy and Environment Cabinet to promulgate administrative regulations for the generation, treatment, storage, recycling, and disposal of hazardous wastes. KRS 224.46-510(3) and 224.50-130 require the cabinet to identify the characteristics of and to list hazardous wastes. KRS 224.46-505 and 224.46-520 authorize the cabinet to control land disposal of hazardous waste to be protective of human health and the environment. KRS 224.46-520 requires that persons engaging in the treatment, storage, disposal, and recycling of hazardous waste obtain a permit, and to establish standards for these permits, to require adequate financial responsibility, and to establish minimum standards for closure for all facilities, and the post-closure monitoring and maintenance of hazardous waste disposal facilities. This administrative regulation establishes the general requirements for hazardous waste management systems.
History: 10 Ky.R. 256; 616; eff. 12-2-1983; 15 Ky.R. 371; 1034; 1263; eff. 10-26-1988; 16 Ky.R. 624; 1200; eff. 1-9-1990; 44 Ky.R. 299, 1244; eff. 12-7-2017; Crt eff. 9-5-2018; 1349, 2621; eff. 4-5-2019; TAm eff. 5-7-2019; 47 Ky.R. 2095; eff. 8-5-2021.

401 KAR 39:080 Hazardous waste handlers {#sec-401-kar-39-080 omnilex-key=us-ky-regs-official--title-401--401 KAR 39:080}

Section 1. Generators of Hazardous Waste.

(1) Except as established in subsections (2) through (11) of this section and Section 5 of this administrative regulation, the requirements for standards applicable to generators of hazardous waste shall be as established in 40 C.F.R. Part 262, except 40 C.F.R. 262.10(k).

(2) Small quantity generators and large quantity generators shall register with the cabinet by completing and submitting:

(a) EPA form 8700-12 as referenced in 40 C.F.R. Parts 260 through 267, 270, 273, and 279; and

(b) Registration of Hazardous Waste Activity Addendum, DWM 7037A.

(3) The registration established in subsection (2) of this section shall be submitted annually to the cabinet at least forty-five (45) days prior to the expiration date shown on the certificate of registration.

(4)

(a) A generator that has not received an EPA identification number may obtain one by registering with the cabinet as established in subsection (2) of this section.

(b) Upon receiving the request and reviewing the information, the cabinet shall assign an EPA identification number to the generator.

(5)

(a) Hazardous waste generation and on-site management of hazardous waste shall be consistent with the registration submitted pursuant to subsection (2) of this section.

(b) If any information submitted in accordance with subsection (2) of this section changes, the generator shall modify and resubmit the form that includes the changes to the cabinet no later than thirty (30) days following the change.

(6) In addition to 40 C.F.R. 262.17, any large or small quantity hazardous waste generator that no longer generates hazardous waste on site, closes its facility, or goes out of business, shall complete and submit to the cabinet the Request to be Removed from the Hazardous Waste Handler List, DWM 7086, within ninety (90) days after the last date of hazardous waste generation.

(7)

(a) A hazardous waste generator may only treat on-site in tanks, containers, containment buildings, and on drip pads, if:

A generator complies with the hazardous waste accumulation provisions of this section;
The generator notifies the cabinet of the intent to treat hazardous waste as required by subsection (2) of this section; and
The cabinet issues written approval to the generator.

(b)

The cabinet shall not approve any treatment process that is not demonstrated to provide adequate protection to human health, safety, or the environment in a manner consistent with the purpose of 401 KAR Chapter 39 and KRS Chapter 224.
If the cabinet determines that the approved treatment is not protective of human health, safety, or the environment, the cabinet shall issue a written revocation of the approval and all treatment activities shall cease.

(8)

(a) Generators, except for very small quantity generators, shall prepare a Hazardous Waste Annual Report for the cabinet annually by completing and submitting:

EPA form 8700-13 A/B as referenced in 40 C.F.R. 262.41(a), 264.75, 265.75, and 267.75; and
Hazardous Waste Annual Report Addendum, DWM 7072A.

(b) Each generator, except for very small quantity generators, shall submit a copy of the Hazardous Waste Annual Report established in paragraph (a) of this subsection as established in KRS 224.46-510(1)(h).

(9) A generator, except for very small quantity generators, shall not offer hazardous waste to a transporter or to a treatment, storage, or disposal facility that has not received an EPA identification number.

(10)

(a) A large quantity generator or small quantity generator shall not treat, store, dispose of, transport, or offer for transportation, hazardous waste until the generator has:

Registered with the cabinet as established in subsection (2) of this section; and
Received an EPA identification number.

(b) A very small quantity generator shall not treat hazardous waste until the generator has registered with the cabinet as established in subsection (2) of this section.

(11) The requirement for the container marking wording to state "Federal Law Prohibits" referenced in 40 C.F.R. 262.32(b), shall be replaced with "Federal and State Law Prohibit".

(12) In addition to the requirements in 40 C.F.R. 262.18, a very small quantity generator voluntarily requesting to obtain an EPA identification number, shall register with the cabinet in accordance with subsection (2) of this section.

Section 2. Transporters of Hazardous Waste.

(1) Except as established in subsections (2) and (3) of this section and Section 5 of this administrative regulation, the requirements for standards applicable to transporters of hazardous waste shall be as established in 40 C.F.R. Part 263.

(2)

(a) A transporter shall not transport hazardous wastes or used oil within the Commonwealth of Kentucky without having received an EPA identification number from the cabinet, any other RCRA authorized state, or from the Federal Environmental Protection Agency.

(b) To obtain an EPA identification number from the cabinet, a transporter shall:

For a transporter who is also a hazardous waste generator or used oil transporter, register with the cabinet as established in Section 1(2) and (3) of this administrative regulation; or
For a transporter that is not also a hazardous waste generator or used oil transporter, complete and submit the Registration of Hazardous Waste Transportation Activity, DWM 7053.

(3) In addition to 40 C.F.R. 263.30(c), an air, rail, highway, or water transporter that has any knowledge of a release or threatened release of a hazardous substance or pollutant or contaminant shall notify and report to the cabinet as established in Section 5(1) of this administrative regulation.

Section 3. Universal Waste.

(1) Except as established in subsections (2) through (4) of this section and Section 5 of this administrative regulation, the requirements for standards for universal waste management shall be as established in 40 Part C.F.R. 273.

(2)

(a) Prior to conducting on-site treatment of their own accumulated universal waste, a large or small quantity handler shall be subject to the requirements of Section 1 of this administrative regulation, including the requirement for on-site treatment by generators.

(b) Prior to conducting on-site treatment of accumulated universal waste received from off-site, a large or small quantity handler shall be subject to the requirements of 401 KAR 39:060 and 401 KAR 39:090.

(3) Breaking, disassembling, crushing, or otherwise damaging, intentionally or unintentionally, universal waste lamps shall render them a hazardous waste.

(4) A large quantity handler of universal waste shall register and report as established in Section 1 of this administrative regulation.

Section 4. Used Oil.

(1) Except as established in subsections (2) through (9) of this section and Section 5 of this administrative regulation, the requirements for standards for the management of used oil shall be as established in 40 C.F.R. Part 279, except 40 C.F.R. 279.82.

(2) In addition to 40 C.F.R. 279.22 and 40 C.F.R. 279.52, KRS 224.1-400(11) and (12) and KRS 224.1-405 shall apply.

(3) An owner or operator of each used oil collection center shall:

(a) Register initially with the cabinet as established in Section 1(2) of this administrative regulation; and

(b) Complete and submit a Hazardous Waste Annual Report annually as established in Section 1(8) of this administrative regulation.

(4) A used oil processor, recycler, re-refiner, burner, or marketer that has not received an EPA identification number shall register with the cabinet as established in Section 1(2) of this administrative regulation.

(5) In addition to 40 C.F.R. 279.54, upon detection of a release of used oil to the environment not subject to the requirements established in 401 KAR 42:060, an owner or operator shall notify and report to the cabinet pursuant to Section 5(1) of this administrative regulation.

(6) In addition to 40 C.F.R. 279.43, 601 KAR 1:025 and Section 5(1) of this administrative regulation shall apply.

(7) Used oil shall not be used as a dust suppressant within the Commonwealth of Kentucky.

(8) In addition to 40 C.F.R. Part 280, 401 KAR Chapter 42 shall apply.

(9) The citations to Sections 307(b) and 402 of the Clean Water Act referenced in 40 C.F.R. Part 279 shall also include 401 KAR Chapter 5.

Section 5. Exceptions and Additions.

(1) In the event of a release or threatened release of a hazardous substance, pollutant or contaminant, or petroleum to the environment in a quantity that may present an imminent or substantial danger to human health or the environment as established in KRS 224.1-400, the facility authorized representative shall immediately notify the cabinet's twenty-four (24) hour emergency response line and provide a written report of the incident or accident within seven (7) days of the release, pursuant to KRS 224.1-400.

(2) In addition to RCRA, Section 3008 KRS 224.10-420 through 224.10-470, 224.46-530, and 224.99-010 shall apply.

(3) In addition to RCRA, Subtitle C KRS 224.46 shall apply.

(4)

(a) As referenced in 401 KAR Chapter 39, the requirements in RCRA Section 3010 shall be replaced with the requirement that any person generating or transporting a substance, or owning or operating a facility for treatment, storage, disposal, or recycling of the substance to register with the cabinet after promulgation of an administrative regulation identifying a substance by its characteristics or listing as hazardous waste subject to 401 KAR Chapter 39.

(b) The registration shall be filed as established in Section 1(2) of this administrative regulation and within ninety (90) days after promulgation or revision of the administrative regulation unless another registration date is established in the administrative regulations.

(5) In addition to 40 C.F.R. Part 257 and 40 C.F.R. Part 258, 401 KAR Chapters 45, 47, and 48 shall apply.

Section 6. Incorporated by Reference.

(1) The following material is incorporated by reference:

(a) "Hazardous Waste Annual Report Addendum", DWM 7072A, June 2017;

(b) "Registration of Hazardous Waste Activity Addendum", DWM 7037A, July 2018;

(d) "Request to be Removed from the Hazardous Waste Handler List", DWM 7086, June 2017.

(3) This material may also be obtained on the division's Web site at eec.ky.gov/environmental-protection/waste.

History

RELATES TO: KRS 224.10, 224.46, 224.99, 40 C.F.R. Parts 260 through 267, 270, 273, 279
STATUTORY AUTHORITY: KRS 224.10-100, 224.46-510, 224.50-545
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.46-510 requires the Energy and Environment Cabinet to promulgate administrative regulations establishing standards applicable to transporters of hazardous waste regarding recordkeeping and compliance with the manifest system. KRS 224.46-510(1) requires the cabinet to promulgate administrative regulations to establish requirements relating to generators of hazardous waste and establish standards for generators of hazardous waste by amount of waste generated. KRS 224.46-510(3) requires that the cabinet establish classes or categories of hazardous waste reflecting the relative degree of hazard. KRS 224.50-545 requires that used automotive and industrial oil shall be recycled or disposed of properly. This administrative regulation establishes the standards for hazardous waste handlers.
History: 12 Ky.R. 1104; eff. 2-4-1986; 14 Ky.R. 1506; eff. 3-10-1988; 15 Ky.R. 374; eff. 10-26-1988; 16 Ky.R. 628; eff. 1-9-1990; 23 Ky.R. 980; eff. 3-12-1997; 44 Ky.R. 304, 962, 1249; eff. 12-7-2017; Crt eff. 9-5-2018; 45 Ky.R. 1355; eff. 4-5-2019; TAm eff. 5-7-2019; Crt eff. 3-23-2026.

401 KAR 39:090 Hazardous waste permit program {#sec-401-kar-39-090 omnilex-key=us-ky-regs-official--title-401--401 KAR 39:090}

Section 1. Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities. Except as established in subsections (1) through (7) of this section and Sections 5 through 9 of this administrative regulation, standards for owners and operators of hazardous waste treatment, storage, and disposal facilities shall be as established in 40 C.F.R. Part 264, except 40 C.F.R. 264.1(f), 40 C.F.R. 264.1(g)(12), 40 C.F.R. 264.15(b)(5), 40 C.F.R. 264.149, 40 C.F.R. 264.150, 40 C.F.R. 264.301(l), 40 C.F.R. 264.1030(d), 40 C.F.R. 264.1050(g), and 40 C.F.R. 264.1080(e) through (g).

(1) The Maximum Concentration of Constituents for Groundwater Protection in 40 C.F.R. 264.94, Table 1 shall be replaced with Table 1 of this subsection.

(2) In addition to 40 C.F.R. 264.143(e)(1), 40 C.F.R. 264.145(e)(1), 40 C.F.R. 264.147(a)(1)(ii), and 40 C.F.R. 264.147(b)(1)(ii), each insurance policy providing primary coverage shall be issued by an insurer that is authorized to transact insurance in Kentucky, except if KRS 304.11-030 establishes otherwise.

(3) The reference in 40 C.F.R. 264.570 and 265.440(a) to "December 6, 1990", shall be replaced with "August 18, 1994", for drip pads where F034 or F035 wastes are handled.

(4) The reference in 40 C.F.R. 264.570 to "December 24, 1992", shall be replaced with "August 26, 1996", for drip pads where F034 or F035 wastes are handled.

(5) A tank system that stores or treats materials that become hazardous waste subsequent to March 10, 1988, shall conduct an assessment of any existing tank system's integrity within twelve (12) months after the date the waste becomes a hazardous waste.

(6) In addition to the requirements in 40 C.F.R. 264.304, if the flow rate into the leak detection system exceeds the action leakage rate for any sump, the owner or operator shall notify the cabinet pursuant to 401 KAR 39:060, Section 6(1).

(7) In addition to the requirements in 40 C.F.R. 264.226, 264.254, and 264.303, applicants shall demonstrate that the admixed liner shall be structurally sound and chemically resistant to the waste placed in it to ensure that the liner shall be capable of supporting the waste without cracking, disintegrating, or allowing waste or leachate to escape.

Section 2. Owners and Operators of Interim Status Hazardous Waste Treatment, Storage, and Disposal Facilities.

(1) Except as established in subsections (2) through (4) of this section and Sections 5 through 9 of this administrative regulation, interim status standards for owners and operators of hazardous waste treatment, storage, and disposal facilities shall be as established in 40 C.F.R. Part 265, except 40 C.F.R. 265.1(c)(4), 40 C.F.R. 265.1(c)(15), 40 C.F.R. 265.149, 40 C.F.R. 265.150, 40 C.F.R. 265.1030(c), 40 C.F.R. 265.1050(f), and 40 C.F.R. 265.1080(e) through (g).

(2) In addition to the requirements in 40 C.F.R. 265.303, if the flow rate into the leak detection system exceeds the action leakage rate for any sump, the owner or operator shall notify the cabinet pursuant to 401 KAR 39:060, Section 6(1).

(3) In addition to 40 C.F.R. 265.143(d)(1), 40 C.F.R. 265.145(d)(1), 40 C.F.R. 265.147(a)(1)(ii), and 40 C.F.R. 265.147(b)(1)(ii), each insurance policy providing primary coverage shall be issued by an insurer who is authorized to transact insurance in Kentucky, except if KRS 304.11-030 establishes otherwise.

(4) As of January 12, 1991, a facility that failed to qualify for federal interim status for any waste code promulgated pursuant to HSWA or that lost interim status for failing to certify as required by HSWA for any newly promulgated waste code, shall also be denied interim status pursuant to this administrative regulation.

Section 3. Specific Hazardous Wastes and Facilities. Except as established in subsections (1) through (3) of this section and Sections 5 through 9 of this administrative regulation, standards for the management of specific hazardous wastes and specific types of hazardous waste management facilities shall be as established in 40 C.F.R. Part 266.

(1) The Tier I and Tier II Feed Rate and Emissions Screening Limits for Carcinogenic Metals for Facilities in Noncomplex Terrain in 40 C.F.R. Part 266, Appendix I, Table I-D shall be replaced with Table I-D in this subsection.

(2) The Tier I and Tier II Feed Rate and Emissions Screening Limits for Carcinogenic Metals for Facilities in Complex Terrain, Values for use in Urban and Rural Areas in 40 C.F.R. Part 266, Appendix I, Table I-E shall be replaced with Table I-E in this subsection.

(3) The Risk Specific Doses (10-5) in 40 C.F.R. Part 266, Appendix V shall be replaced with Appendix V in this subsection.

Section 4. Standardized Permits. Except as established in Sections 5 through 9 of this administrative regulation, the standards for owners and operators of hazardous waste facilities operating under a standardized permit shall be as established in 40 C.F.R. 267, except 40 C.F.R. 267.150.

Section 5. Flood Plains.

(1) Except as established in subsection (3)(b) of this section, a facility located in a 100-year flood plain shall be designed, constructed, operated, maintained, and refitted if necessary, to prevent washout of any hazardous waste and to protect the facility from inundation by waters of the 100-year flood plain throughout the:

(a) Active life of the facility;

(b) Closure phase of the facility; and

(2) Prevention of washout and protection from inundation shall be accomplished by:

(a) Using a structure or device designed to:

Provide adequate freeboard to prevent overtopping of the structure during a 100-year flood due to wind and wave action;
Provide sufficient structural integrity to prevent massive failure due to the force and erosive tendencies of the 100-year floodwaters; and
Accommodate other characteristics of the facility's location as necessary to accomplish the requirements of this subsection;

(b) Providing procedures that shall cause the waste to be removed safely, before floodwaters can reach the facility, to a location where the wastes shall not be vulnerable to floodwaters; or

(c) Demonstrating that alternate devices or measures, with the exception of covering the waste, shall provide protection that meets the requirements of this subsection.

(3) The cabinet shall not issue a permit to construct a new hazardous waste:

(a) Site or facility in the floodway; or

(b) Disposal site or facility in the 100-year flood plain or a seasonal high-water table.

(4) A hazardous waste site or facility shall not restrict the flow of the 100-year flood or reduce the temporary water storage capacity of the 100-year flood plain so as to pose a hazard to human life, wildlife, or land or water resources.

(5) A facility that has closed and removed all hazardous waste, waste constituents, contaminated soil, debris, or other material contaminated with hazardous constituents, shall not be required to protect the closed portion of the facility from washout of waste or inundation by waters of the 100-year flood.

Section 6. Chemical Demilitarization.

(1) In addition to the requirements in 40 C.F.R. Part 264, the cabinet shall consider the criteria established in subsection (2) of this section in making a determination to issue, deny, or condition a permit for any person applying for a permit to construct or operate a hazardous waste site or facility for treatment, storage, or disposal of any of the hazardous wastes listed in 401 KAR 39:060, Section 3(4).

(2) The permit applicant shall affirmatively demonstrate and the cabinet shall determine prior to issuance, conditional issuance, or denial of the permit that:

(a)

The proposed treatment or destruction technology has been proven in an operational facility of scale, configuration, and throughput comparable to the proposed facility, for a period of time sufficient to provide assurance of 99.9999 percent destruction and removal efficiency of each substance proposed to be treated or destroyed as established in KRS 224.50-130(3)(a).
Destruction and removal efficiency (DRE) shall be determined for each waste from the following equation: DRE % = (Win – Wout) /Winx 100% Where: Win = Mass feed rate of waste into the process. Wout = Mass emission rate of the same waste out of the process;

(b)

Monitoring data from a comparable facility shall reflect the absence of emissions from stack or fugitive sources, including the products of combustion and incomplete combustion, which alone or in combination present an adverse effect on human health or the environment in accordance with KRS 224.50-130(3)(b).
The cabinet shall determine from the monitoring data the absence of risk to human health and the environment prior to permit issuance;

(c) A plan has been developed and funded providing for sufficient training, coordination, and equipment for state and local emergency response consistent with the requirements established in KRS 224.50-130(c); and

(d) All workers within 1000 meters of the treatment unit shall be provided with an adequate level of protection against exposure to the nerve agents.

(3) In addition to the performance standards established in Section 1 of this administrative regulation, a facility treating the nerve and blister agents with hazardous waste codes N001, N002, or N003 established in 401 KAR 39:060, Section 3(4) shall be designed, constructed, and maintained to achieve a 99.9999 percent destruction and removal efficiency of each substance treated or destroyed.

(4)

(a) An owner or operator that stores munitions or explosive hazardous wastes that contain the substances established in 401 KAR 39:060, Section 3(4), shall be subject to the requirements of 40 C.F.R. 264, Subpart EE.

(b) As referenced in 40 C.F.R. 266.202(a), military munitions shall not include any material containing the substances established in 401 KAR 39:060, Section 3(4).

(c) Waste military munitions that are chemical agents or chemical munitions and that exhibit a hazardous waste characteristic or are listed as hazardous waste in 401 KAR 39:060, Section 3(4), shall be subject to the applicable regulatory requirements of 401 KAR Chapter 39, including the storage prohibitions referenced in 40 C.F.R. 268.50 as established in 401 KAR 39:060, Section 4.

Section 7. Financial Assurance.

(1)

(a) An owner or operator may satisfy the financial assurance requirements of this administrative regulation by submitting to the cabinet by certified mail, a bond guaranteeing compliance with KRS Chapter 224 and 401 KAR Chapter 39.

(b) The bond shall be supported by a cash account or certificate of deposit.

(d) An owner or operator of a new facility shall submit the bond to the cabinet at least sixty (60) days before the date on which hazardous waste is first received for treatment, storage, or disposal.

(e) A cash account or certificate of deposit shall only be held by a bank or financial institution that is subject to and complies with all applicable state and federal financial regulations.

(2) In addition to the financial assurance wording of instruments referenced in 40 C.F.R. 264.143, 40 C.F.R. 264.145, 40 C.F.R. 264.147, 40 C.F.R. 264.151, 40 C.F.R. 265.143, 40 C.F.R. 265.145, 40 C.F.R. 265.147, 40 C.F.R. 267.143, 40 C.F.R. 267.147, and 40 C.F.R. 267.151, the owner or operator shall include the following information if using cash or certificate of deposit:

(a) Date that the signatory signed the document in front of the notary public;

(b) Signature, seal, and the date that the notary public's commission expires;

(d) Certificate number, date of issuance, and principal dollar amount in United States dollars, of each certificate of deposit;

(e) Cash account number, date of opening, and principal dollar amount in United States dollars of each cash account maintained;

(f) Signature of the authorized representative of the escrow agent; and

(g) Signature of the Director of the Kentucky Division of Waste Management.

(3) The cabinet shall be the beneficiary of the Escrow Agreement to demonstrate closure, post-closure, or corrective action for the cash account or certificate of deposit.

(4) The cabinet shall be empowered to draw upon the funds if the owner or operator fails to perform closure, post-closure, or corrective action in accordance with the respective plan.

(5) The sum of the cash account or certificate of deposit shall be in an amount at least equal to the amount of the current closure, post-closure, or corrective action cost estimate, except as established in subsection (6) of this section.

(6) After each interest period is completed, if the current closure, post-closure, or corrective action cost estimate changes, the owner or operator shall compare the new estimate with the trustee's most recent annual valuation of the cash accounts or the certificate of deposit.

(a) If the value of the cash accounts or certificate of deposit is less than the amount of the new estimate, the owner or operator, within sixty (60) days of the change in the cost estimate, shall:

Deposit an amount into the cash accounts or the certificate of deposit so that the value after this deposit at least equals the amount of the current closure, post-closure, or corrective action cost estimate; or
Obtain other financial assurance as established in 40 C.F.R. Parts 264 or 265 to cover the difference.

(b) If the value of the cash account or the certificate of deposit is greater than the total amount of the current closure, post-closure, or corrective action cost estimate, the owner or operator may submit a written request to the cabinet for release of the amount in excess of the current closure, post-closure, or corrective action cost estimate.

(7)

(a) The terms of the escrow agreement for a cash account or certificate of deposit shall provide a provision for a notice of cancellation by certified mail to the owner or operator and to the cabinet prior to cancellation.

(b) The cancellation provision shall state that cancellation shall not occur during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the cabinet, as evidenced by return receipt.

(8) The owner or operator may cancel the cash account or certificate of deposit if the cabinet has given prior written consent. The cabinet shall provide a written consent if:

(a) An owner or operator substitutes alternate financial assurance as established in this administrative regulation; or

(b) The cabinet releases the owner or operator from the requirements of this administrative regulation in accordance with this administrative regulation.

(9)

(a) An owner or operator or any other person authorized to perform closure, post-closure, or corrective action may request reimbursement for closure, post-closure, or corrective action expenditures by submitting itemized bills to the cabinet.

(b) Within sixty (60) days after receiving bills for closure, post-closure, or corrective action activities, the cabinet shall determine if the closure, post-closure, or corrective action expenditures are in accordance with the plan or approved, and if so, the cabinet may instruct the bank or financial institution to make reimbursements in those amounts as stated in writing if the cabinet determines that the expenditures are in accordance with the plan or approved.

(10) If a financial mechanism is used for multiple facilities, all matters arising in accordance with the financial mechanism related to the validity, interpretation, performance, and enforcement of the financial mechanism shall be determined in accordance with the law and practice of the Commonwealth of Kentucky.

(11) Except as established in 401 KAR Chapter 39 and KRS 224.46, a variance or other waiver of any financial requirements shall not be granted by the cabinet.

(12) Upon request by the cabinet, the insurer shall provide to the cabinet a duplicate original of the policy including all endorsements thereon.

(13)

(a) Based on evidence that the owner or operator may no longer meet the financial test for any financial assurance posted, the cabinet shall require reports of financial condition from the owner or operator.

(b) If the cabinet determines, based on the reports of financial condition or other information, that the owner or operator no longer meets the financial test for any financial assurance posted, the owner or operator shall provide financial assurance using the appropriate instrument as established in this administrative regulation within thirty (30) days after notification of the cabinet's determination.

(14) In addition to 40 C.F.R. 264.151 requiring an owner or operator to notify several Regional Administrators of their financial obligations, the owner or operator shall notify both the cabinet and all Regional Administrators of Regions that are affected by the owner or operator's financial assurance mechanisms.

Section 8. Releases from Solid Waste Management Units. The owner or operator of a facility, any person seeking a permit, or any person closing a facility for the treatment, storage, or disposal of hazardous waste, shall institute corrective action as established in this section, necessary to protect human health and the environment for all releases of hazardous waste or constituents from any solid waste management unit at the facility, regardless of the time at which waste was placed in the unit.

(1) A facility assessment shall be conducted consistent with the substantive requirements established in 401 KAR 100:030, Sections 6(1) and (2).

(2) A fee for the facility assessment shall be required as established in KRS 224.46-016(3).

(3)

(a) Corrective action shall be established in the permit or other enforceable document in accordance with this administrative regulation.

(b) The permit or other enforceable document shall contain:

A schedule of compliance for the corrective action, if corrective action will not be completed prior to issuance of the permit or closure of the facility; and
An assurance of financial responsibility for completing the corrective action.

(4)

(a) A required facility investigation shall be conducted consistent with the requirements established in 401 KAR 100:030, Section 6(3) through (8), Section 7(2)(a)1 and 2, and Section 7(2)(b) and (c).

(b) A fee for the facility investigation shall be required as established in KRS 224.46-016(4) and 224.46-018(5)(a).

(5)

(a) A required plan or report for corrective action shall be conducted consistent with the substantive requirements established in 401 KAR 100:030, Section 8(1) and (3) and Section 9(1) and (2).

(b) A fee for corrective action shall be required as established in KRS 224.46-016(4) and 224.46-018(5)(b).

(6) The owner or operator shall implement corrective actions beyond the facility property boundary, if necessary to protect human health and the environment, unless the owner or operator demonstrates to the cabinet that, despite the owner's or operator's best efforts, the owner or operator was unable to obtain permission to implement corrective actions beyond the facility property boundary.

(a) The owner or operator shall not be relieved of all responsibility to clean up a release that has migrated beyond the facility property boundary if off-site access is denied.

(b) On-site measures to address releases beyond the facility property boundary shall be determined in accordance with 401 KAR Chapter 39.

(c) An assurance of financial responsibility for corrective action for releases beyond the facility property boundary shall be provided.

(7) This section shall not apply to a remediation waste management site unless the site is part of a facility subject to a permit for treating, storing, or disposing of hazardous wastes that are not remediation wastes.

(8) The schedule for closure of each hazardous waste management unit and for final closure of the facility required to be included in the closure plan established in subsection (5) of this section, shall also comply with the requirements in KRS 224.46-520(8).

Section 9. Exceptions and Additions.

(1)

(a) In the event of a release or threatened release of a pollutant or contaminant to the environment the facility shall comply with the requirements of 401 KAR 39:060, Section 6(1).

(b) If the owner or operator detects a condition that might have caused or has caused a release of hazardous waste, the condition shall be repaired in accordance with KRS 224.1-400.

(c) The reference to "EPA notification procedures" referenced in 40 C.F.R. Parts 264 to 267 shall be replaced with the notification procedures established in paragraph (a) of this subsection or 401 KAR 39:080, Section 1(2).

(2) Any reports, notifications, information, or documents required to be submitted to EPA, shall also be submitted to the cabinet at the same time.

(3) In addition to RCRA, Section 3008, KRS 224.10-420 through 224.10-470, 224.46-530, and 224.99-010 shall apply.

(4) In addition to RCRA, Section 3004(o)(1), KRS 224.46-530(1)(h) and (i), Sections 1 and 2 of this administrative regulation shall apply.

(5) The citation to RCRA, Section 3004(k), shall be replaced with KRS 224.1-010(43).

(6) In addition to the requirements in RCRA, Section 3005, KRS 224.46-520, KRS 224.46-530, 401 KAR 39:060, and this administrative regulation shall apply.

(7) In addition to RCRA, Section 7003, KRS 224.10-410 shall apply.

(8) In addition to RCRA, Section 3005(j)(1), Sections 1 and 2 of this administrative regulation shall apply.

(9) In addition to RCRA, Sections 3004(o)(2) and (3), Section 1 of this administrative regulation shall apply.

(10) In addition to RCRA, Sections 3005(j)(2), (3), (4), and (13), Section 2 of this administrative regulation shall apply.

(11) The requirements in RCRA, Section 3010(a), shall be replaced with the requirements established in 401 KAR 39:080, Section 1(2).

(12) In addition to RCRA, Section 3019, 401 KAR 39:060 and KRS 224.46-520(1) shall apply.

(13) In addition to RCRA, Section 3004(d), KRS 224.46-520(2) shall apply.

(14) Any decision to shorten the post-closure period or the post-closure monitoring and maintenance of a permitted facility shall be made in accordance with KRS 224.46-520(4).

(15) Waste, used oil, or material contaminated with dioxins or hazardous wastes shall not be used as a dust suppressant.

(16) In addition to the import notifications referenced in 40 C.F.R. 264.12(a) and 40 C.F.R. 265.12(a) being submitted to the U.S. EPA, a copy shall be submitted to the cabinet at the same time.

(17) In addition to the requirements in 40 C.F.R. Parts 264, 265, and 267, owners and operators of hazardous waste treatment, storage, and disposal facilities and owners and operators of interim status hazardous waste treatment, storage, and disposal facilities shall prepare a Hazardous Waste Annual Report for the cabinet annually as established in 401 KAR 39:080, Section 1(8)(a).

(18) The citations to the Clean Water Act, Sections 301, 307, and 402 in 40 C.F.R. Part 264 and 40 C.F.R. Part 265, shall also include any applicable Kentucky requirements as established in 401 KAR Chapter 5.

(19) The citations to 40 C.F.R. Part 60 and 40 C.F.R. Part 61, shall also include 401 KAR 60:005 and 401 KAR 57:002, respectively.

(20) The citation to 40 C.F.R. 63, Subpart EEE shall also include 401 KAR 63:002, Section 2(4)(rr).

(21) The citation to 40 C.F.R. 124.15 in 40 C.F.R. 264.1030(c), 40 C.F.R. 264.1050(c), 40 C.F.R. 264.1080(c), and 40 C.F.R. 265.1080(c), shall be replaced with 40 C.F.R. 124.5.

(22) In addition to the citations to 40 C.F.R. Part 144 in 40 C.F.R. Parts 264, 265, and 267, 805 KAR 1:110 shall also apply.

(23) If multiple facilities are covered by the same financial assurance mechanism as referenced in 40 C.F.R. 264.143(h), 40 C.F.R. 264.145(h), 40 C.F.R. 264.147(a)(1)(i), 40 C.F.R. 264.147(b)(1)(i), 40 C.F.R. 265.143(g), 40 C.F.R. 265.147(a)(1)(i), 40 C.F.R. 265.147(b)(1)(i), and 40 C.F.R. 265.145(g), evidence of financial assurance shall be submitted to the cabinet and, as appropriate, to the Regional Administrator and other state directors.

(24) The citations to the Safe Drinking Water Act shall also include any applicable Kentucky requirements as established in 401 KAR Chapters 6, 8, 9, and 10, and 805 KAR Chapter 1.

(25) The citations to Sections 60, 61, and 63 of the Clean Air Act shall also include any applicable Kentucky requirements as established in 401 KAR Chapters 50 through 65.

History

RELATES TO: KRS 224.10, 224.46, 224.50-130, 224.99, 304.11-030, 40 C.F.R. 264, 265, 266, 267
STATUTORY AUTHORITY: KRS 224.46-520, 224.5-130
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.46-520 requires the Energy and Environment Cabinet to promulgate administrative regulations establishing standards for hazardous waste permitting and persons engaging in the storage, treatment, disposal, and recycling of hazardous waste, and to establish standards for these permits, to require adequate financial responsibility, to establish corrective action requirements, and to establish minimum standards for closure for all facilities and the post-closure monitoring and maintenance of hazardous waste disposal facilities. KRS 224.50-130 requires the Energy and Environment Cabinet to list additional compounds as hazardous wastes and to consider additional criteria in making a determination to issue, deny, or condition a permit for a hazardous waste site or facility for treatment, storage, or disposal of nerve agents. This administrative regulation establishes the standards for the hazardous waste permit program.
History: 14 Ky.R. 1559; eff. 3-10-1988; 15 Ky.R. 375; 1035; 1264; eff. 10-26-1988; 16 Ky.R. 629; 1201; eff. 1-9-1990; TAm eff. 6-27-2016; 44 Ky.R. 308, 966, 1250; eff. 12-7-2017; Crt eff. 9-5-2018; 45 Ky.R. 1358, 2624; eff. 4-5-2019; Crt eff. 3-23-2026.

401 KAR 39:120 Permit review, determination timetables, and fees {#sec-401-kar-39-120 omnilex-key=us-ky-regs-official--title-401--401 KAR 39:120}

Section 1. Applicability.

(1) This administrative regulation shall apply to:

(a) An owner or operator of a hazardous waste site or facility in Kentucky that submits an application for:

A treatment, storage, or disposal facility permit;
A post-closure permit;
A permit that contains exposure information reports for treatment, storage, or disposal of hazardous waste in a surface impoundment or landfill;
An emergency permit;
A land treatment demonstration permit; or
An emergency identification number;

(b) A person who:

Is a recycler of hazardous waste; or
Petitions the cabinet to include additional wastes as a universal waste;

(d) A large quantity handler of universal waste;

(e) A used oil processor, refiner, burner, or marketer;

(f) A hazardous waste transporter;

(g) A hazardous waste generator; and

(h) A generator who treats hazardous waste on-site.

(2) This administrative regulation shall apply to all applications for hazardous waste site or facility permits submitted, including those applications that are not complete.

Section 2. Filing Fees.

(1) Any owner or operator who submits a Part A Permit Application, incorporated by reference in 401 KAR 39:060, for a treatment, storage, or disposal facility shall submit a filing fee in the amount of $1,000.

(2)

(a) Any owner or operator that submits an application for a post-closure permit or permit renewal for a hazardous waste site or facility shall submit a filing fee in the amount of $4,000.

(b) The filing fee established in paragraph (a) of this subsection shall not apply to owners and operators of hazardous waste sites or facilities that submit a post-closure plan as part of an application for an operation permit for a landfill required in 401 KAR 39:060, Section 5.

Section 3. Review Fees.

(1) In addition to those fees established by KRS 224.46-016, any owner or operator who submits a permit application for a treatment, storage, or disposal facility shall submit the following unit fees:

(a) Containment buildings - $7,400;

(b) Drip pads - $3,700;

Treatment unit - $15,800;
Storage unit - $3,700; and
Disposal unit - $12,200; and

(d) Boilers and industrial furnaces - $19,400.

(2) Any owner or operator that submits a closure plan for a treatment, storage, or disposal facility shall submit:

(a) A closure plan fee of $3,600;

(b) A facility assessment fee in accordance with KRS 224.46-016; and

The fee for incinerators shall be submitted one (1) time for each different type of incinerator.
The fees for tanks and containers shall be submitted one (1) time for each different tank design or container type.
Tank design criteria shall include differences in materials of construction, pressure vessels, nonpressure vessels, shape, and ancillary equipment.
Container types shall include drums, tote bins, bottles, and roll-off boxes.
The fees shall be:

a. Incinerator - $2,000;

b. Waste piles - $1,000;

c. Surface impoundments - $1,500;

d. Tanks - $660;

e. Containers - $460;

f. Land treatment - $2,000;

g. Landfill - $2,000;

h. Containment buildings - $660;

i. Drip pads - $660;

j. Miscellaneous units:

(i) Treatment unit - $2,000;

(ii) Storage unit - $660; and

(iii) Disposal unit - $1,000; and

k. Boilers and industrial furnaces - $2,000.

(3) Any owner or operator that is required to submit to the cabinet a facility investigation plan or a corrective action plan shall submit with the plans the applicable review fee upon the request of the cabinet. These fees shall be the cost of review, but shall not exceed the following amounts:

(a) Facility investigation plan - the fee as established in KRS 224.46-016;

(b) Corrective action plan - the fee as established in KRS 224.46-016;

(d) Temporary unit:

Temporary containers - $3,000; and
Temporary tanks - $3,700.

(4) In addition to those fees established by KRS 224.46-018, any owner or operator that modifies a permit shall submit the fees established in this subsection.

(a) An owner or operator that modifies an existing hazardous waste treatment, storage, or disposal facility permit to add one (1) or more waste streams, or a waste stream with the same characteristic that is already permitted, shall submit the following fees along with the modification:

Containment buildings - $3,400;
Drip pads - $3,400;
Miscellaneous units:

a. Treatment unit - $5,500;

b. Storage unit - $3,400; and

c. Disposal unit - $4,500; and

Boilers and industrial furnaces - $6,500.

(b) An owner or operator that modifies an existing hazardous waste treatment, storage, or disposal facility permit by constructing or operating an additional hazardous waste treatment, storage, or disposal unit, or by substantially modifying an existing hazardous waste treatment, storage, or disposal unit, shall submit the following fees along with the modification:

Containment buildings - $7,400;
Drip pads - $3,700;
Miscellaneous units:

a. Treatment unit - $15,800;

b. Storage unit - $3,700; and

c. Disposal unit - $12,200; and

Boilers and industrial furnaces - $19,400.

(5)

(a) Any owner or operator that submits an application for a post-closure permit or permit renewal for a hazardous waste site or facility, but has not received a permit, shall submit a review fee in the amount of $9,000.

(b) This fee shall not apply to owners and operators of hazardous waste sites or facilities that submit a post-closure plan as part of an application for an operation permit for a landfill required in 401 KAR 39:060, Section 5 and pay the fees required by this administrative regulation.

(6) Any owner or operator that submits an application for an emergency permit shall submit a review fee in the amount of $750.

(7) Any owner or operator that submits an application for land treatment disposal shall submit a review fee in the amount of $5,500.

(8) In addition to any other required registration fees, any owner or operator that submits an application for an emergency identification number shall also submit a review fee in the amount of $100.

(9) A person petitioning to change the classification of a hazardous waste or a category of hazardous waste to a universal waste shall submit a review fee in the amount of $2,500.

(10) A person who submits a permit application containing an exposure information report for treatment, storage, or disposal of hazardous waste in a surface impoundment or landfill shall submit a review fee in the amount of $5,000.

Section 4. Registration and Fees.

(1) In addition to those fees established by KRS 224.46-012 for generators of hazardous waste, an annual registration fee in the amount of $300 shall be submitted:

(a) Per process for a hazardous waste generator that treats hazardous waste on site;

(b) Per process for a recycler of hazardous waste;

(d) By a used oil processor, refiner, burner, or marketer; and

(e) By a Kentucky based hazardous waste transporter.

(2) In addition to those fees established by KRS 224.46-012 for generators of hazardous waste, an initial registration fee in the amount of $300 shall be submitted for:

(a) Nonhazardous used oil activities;

(b) A large quantity handler of universal waste; and

(3)

(a) An owner or operator that modifies a registration in accordance with 401 KAR 39:080, Section 1(5)(b) shall submit a registration modification fee in the amount of fifty (50) dollars.

(b) The registration modification fee established in paragraph (a) of this subsection shall not apply to a registrant that modifies a registration by only making a name change.

(4)

(a) An annual registration fee in the amount of $200 shall be submitted by a very small quantity generator who submits a registration in accordance with 401 KAR 39:080, Section 1, except as established in subsection (b) of this section.

(b) For a person who submits more than one (1) very small quantity generator registrations under common ownership, that are received on the same date by the hazardous waste branch, an initial fee of $200 shall be charged to the first registration, and a $150 fee shall be charged to each additional registration.

Section 5. Submittal of Fees.

(1) The fees required in Sections 2 through 4 of this administrative regulation shall be submitted to the cabinet with the application, registration, petition, or other required documentation related to the request.

(2) Fees shall not be refunded if an application, registration, petition, or other request is withdrawn.

(3) All checks or money orders shall be made payable to the Kentucky State Treasurer and note that the fee is for hazardous waste branch.

(4) The cabinet shall refund any fees paid in accordance with Section 1(1)(g) of this administrative regulation, if the cabinet fails to provide a written determination within sixty (60) days of receipt of a generator's request to treat hazardous waste on-site.

Section 6. Permit Review and Determination Timetables.

(1) The official date of receipt for documents associated with a hazardous waste permit shall be the date the document is stamped received by the Division of Waste Management.

(2) The applicant for a hazardous waste permit shall have the burden of establishing that the application is in compliance with all applicable requirements of KRS Chapter 224 and 401 KAR Chapter 39.

(3)

(a) If a Part A Permit Application, incorporated by reference in 401 KAR 39:060, is required by KRS Chapter 224 and 401 KAR Chapter 39, the applicant shall submit that application at least forty-five (45) days prior to submitting any of the applications set forth in paragraph (b) of this subsection.

(b) The cabinet shall review all hazardous waste permit applications and make a determination to issue or deny a permit within the following timetables:

Part B Permit Applications, as referenced in 40 C.F.R. Part 270, for hazardous waste permits for storage in containers or tanks only within 180 calendar days;
Part B Permit Applications, as referenced in 40 C.F.R. Part 270, for hazardous waste permits for treatment and storage in containers or tanks within 365 calendar days;
Part B Permit Applications, as referenced in 40 C.F.R. Part 270, for hazardous waste incinerators within 365 calendar days;
Part B Permit Applications, as referenced in 40 C.F.R. Part 270, for facilities with land-based units, including surface impoundments, waste piles, land treatment units, and landfills, and other miscellaneous units within 365 calendar days;
Class 3 modifications to a hazardous waste permit within 365 calendar days;
Class 1 and Class 2 modifications to a hazardous waste permit requiring approval within ninety (90) calendar days;
Closure plan with groundwater monitoring within 365 calendar days;
Closure plan without groundwater monitoring within 180 calendar days; and
Renewal of permits shall follow the same timetables as established in subparagraphs 1. through 4. of this paragraph for the applicable type of unit.

(c) The timetables established in paragraphs (a) and (b) of this subsection may be extended to a mutually agreed upon timetable, at the initiative of either the cabinet or the applicant.

The purpose and period of the extension shall be in writing and, if agreed to, shall be signed by both the cabinet and the applicant.
The agreement to extend the timetable shall become part of the cabinet's administrative record.

(d) If a hazardous waste permit application requires more than one (1) type of permit action as established in paragraph (b) of this subsection, the review time for each permit action shall apply and run consecutively upon computing the total review time for the issuance or denial of the permit.

(4) The time periods established in subsection (3) of this section shall not run:

(a) From the date the cabinet mails or hand delivers a notice of deficiency to an applicant until the date the Division of Waste Management stamps as received a complete response to the deficiencies;

(b) Sixty (60) days from the date of any public hearing or meeting on the application to allow the cabinet time to consider public comments;

(c) From the date the cabinet submits an application to U.S. EPA for overview until the date the cabinet receives U.S. EPA's comments;

(d) From the date a permit application is subject to any adjudicatory process that prevents the cabinet from making a determination to the date all administrative or judicial hearings are final and all parties are in compliance with all final orders resulting from those hearings; and

(e) If a governing body holds a public hearing pursuant to KRS 224.40-310(7), sixty (60) days from the date of publication of the public notice on the hearing.

(5) If two (2) or more permits for a facility, site, source, construction project, or other entity are required from the cabinet, the cabinet may coordinate the issuance of the permits, establishing different review and action times that shall be accomplished by the cabinet or the applicant.

(a) If the permits are coordinated, the cabinet shall notify the applicant and indicate the time frames for which the intermediate actions and final permit actions shall be accomplished.

(b) The established time frame for final action shall not exceed the last date for action required by KRS Chapter 224 and 401 KAR Chapter 39, based on all applications being considered and their filing dates.

(6)

(a)

If a notice of deficiency is sent to an applicant, the applicant shall have forty-five (45) calendar days to respond to the notice of deficiency.
The forty-five (45) day time period may be extended by agreement between the cabinet and the applicant.

(b) Failure to respond to a notice of deficiency within the established time shall be grounds for denial of the permit.

History

RELATES TO: KRS 224.1, 224.10, 224.40, 224.46, 224.50, 224.99, 40 C.F.R. Part 270
STATUTORY AUTHORITY: KRS 224.10-100, 224.10-220, 224.46-550
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(20) authorizes the Energy and Environment Cabinet to promulgate an administrative regulation for a reasonable schedule of fees for the cost of processing applications for permits, exemptions, and partial exemptions. KRS 224.46-550 requires the cabinet to promulgate administrative regulations requiring the payment of reasonable fees for hazardous waste registration certificates and permits. KRS 224.10-220 requires the cabinet to establish timetables for the review and determination of permit applications. This administrative regulation establishes timetables for the review and determination of hazardous waste permit applications and the fee schedule for hazardous waste management.
History: 401 KAR 039:120. 15 Ky.R. 715; Am. 1036; 1265; eff. 10-26-1988; 16 Ky.R. 632; 1202; eff. 1-9-1990; 23 Ky.R. 983; eff. 3-12-1997; TAm eff. 8-9-2007; TAm eff. 6-14-2013; 44 Ky.R. 315, 973, 1256; eff. 12-7-2017; Crt eff. 9-5-2018; Crt eff. 8-29-2025.

Chapter 40 Enforcement and Compliance Monitoring

Section 1. Definitions. Unless otherwise specifically defined in KRS Chapter 224 or otherwise specifically indicated by context, terms in 401 KAR Chapter 40 shall have the meanings given in this Section.

(1) "Cabinet" shall have the meaning specified in KRS 224.01-010.

(2) "Contamination" means the degradation of naturally occurring water, air, or soil quality either directly or indirectly as a result of human activities.

(3) "Hazardous waste" shall have the meaning specified in KRS 224.01-010.

(4) "Operator" means any person responsible for overall operation of an on-site or off-site waste facility, including any private contractor conducting operational activities at a federal facility.

(5) "Owner" means any person who owns an on-site or off-site waste facility, or any part of a facility.

(6) "Permittee" means any person holding a valid permit issued by the cabinet to manage, treat, store, or dispose of waste.

(7) "Person" shall have the meaning specified in KRS 224.01-010.

(8) "Secretary" shall have the meaning specified in KRS 224.01-010.

(9) "Solid waste" shall have the same meaning as KRS 224.01-010.

Section 2. Acronyms and Abbreviations. Unless otherwise specifically indicated by context, acronyms and abbreviations used in 401 KAR Chapter 40 shall have the meaning as identified in Table 1 of this administrative regulation.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.46, 224.50, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.46-520, 224.46-530, 224.99-010
NECESSITY, FUNCTION, AND CONFORMITY: This chapter establishes standards for enforcement and compliance monitoring of hazardous waste and solid waste management and practices. This administrative regulation defines essential terms that are used in this chapter.
History: 401 KAR 040:001. 23 Ky.R. 1205; eff. 3-12-1997; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 40:010 General enforcement provisions {#sec-401-kar-40-010 omnilex-key=us-ky-regs-official--title-401--401 KAR 40:010}

Section 1. Enforcement. The requirements of 401 KAR Chapters 30 through 47 shall be enforced by the secretary or any duly authorized representative of the cabinet. Enforcement of these requirements shall be in accordance with the provisions of this chapter and KRS Chapter 224 to the extent such provisions provide fair and orderly fulfillment of the duties and powers of the secretary and the Environmental and Public Protection Cabinet. This chapter, however, shall in no way limit or prevent the secretary or the Environmental and Public Protection Cabinet from exercising any power or authority granted or vested it by the laws of the Commonwealth.

Section 2. Inspection. In accordance with the provisions of this chapter, the cabinet shall conduct or cause to be conducted such inspections, studies, investigations or other determinations as it deems reasonable and necessary to obtain information and evidence with which to ensure that waste management and disposal practices are conducted in accordance with the provisions of KRS Chapter 224, 401 KAR Chapters 30 through 40, all terms and conditions of a permit, and any order of the secretary.

Section 3. Compliance. It shall be the duty of any person affected by the provisions of KRS Chapter 224, 401 KAR Chapters 30 through 47, any condition of a permit or order of the secretary pertaining to hazardous or solid waste management or disposal activities to demonstrate compliance with any such provision, condition or order. Failure or inability to demonstrate compliance may be presumed by the secretary or any duly authorized representative of the cabinet to mean such person has not complied with that provision, condition or order for the purpose of proceeding with any action contemplated by this chapter.

History

RELATES TO: KRS 224.10, 224.46, 224.99
STATUTORY AUTHORITY: KRS 224.46-520
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the cabinet to inspect any property or premises for the purpose of investigating either actual or suspected sources of pollution or contamination or for the purpose of ascertaining compliance or noncompliance with KRS Chapter 224 or the administrative regulations promulgated pursuant thereto. KRS 224.99-010 permits the Environmental and Public Protection Cabinet to assess civil and criminal penalties against any person who fails to perform any duties imposed by KRS Chapter 224, the administrative regulations promulgated pursuant to KRS Chapter 224 or any determination or order of the cabinet. This chapter establishes standards for enforcement and compliance monitoring of hazardous waste and solid waste management and practices. The enforcement and compliance monitoring standards of this chapter are for those activities and hazardous waste and solid waste sites or facilities regulated pursuant to 401 KAR Chapters 30 through 47. This administrative regulation establishes general enforcement provisions for the hazardous waste management administrative regulations.
History: 401 KAR 040:010. 6 Ky.R. 479; 666; eff. 6-4-1980; Recodified from 401 KAR 2:065, Section 1, 3-1-1983; 10 Ky.R. 162; eff. 12-2-1983; TAm eff. 8-9-2007; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 40:020 Inspections {#sec-401-kar-40-020 omnilex-key=us-ky-regs-official--title-401--401 KAR 40:020}

Section 1. Inspections. In accordance with the provisions of this chapter, the cabinet shall conduct or cause to be conducted such inspections, studies, investigations or other determinations as it deems reasonable and necessary to obtain information and evidence with which to ensure that solid waste and hazardous waste sites or facilities are conducted in accordance with the provisions of KRS Chapter 224, 401 KAR Chapters 30 through 47, and all terms and conditions of any permit.

(1) The secretary or any duly authorized representative of the cabinet upon presentation of proper identification and authority may:

(a) Enter any premises registered to generate hazardous waste, any permitted hazardous waste facility, any permitted solid waste facility or any premises or facility that the cabinet has reasonable cause to believe is generating hazardous waste or constitutes an unpermitted solid or hazardous waste facility, inspect the premises, and gather evidence on existing conditions and procedures;

(b) Obtain from any permittee, or from any permitted or unpermitted premises, representative samples of waste or any material believed to be polluting or contaminating the environment;

(c) Conduct tests, analyses and evaluations to determine whether the requirements of the waste management administrative regulations and KRS Chapter 224 are being met;

(d) Obtain samples of any containers and photographs or facsimiles of container labels;

(e) In the event that any samples are obtained prior to leaving the premises, a receipt describing the samples obtained shall be given to the owner, operator, or agency in charge and if requested, a portion of each such sample equal in volume or weight to the portion retained. A copy of the results shall be furnished to the owner, operator or agency in charge if an analysis is made.

(f) Inspect and copy any pertinent records, reports, information or test results relating to the requirements of 401 KAR Chapters 30 through 47;

(g) Question any person found on the premises, including employees or agents of the owner, operator or agency in charge of the premises, concerning their duties, responsibilities, past activities or any other matter relating to the requirements of 401 KAR Chapters 30 through 47; and

(h) Enter and inspect any other premises in accordance with the requirements of KRS 224.033(10).

(2)

(a) A report listing any deficiencies found during the inspection shall be prepared by the inspector and shall be kept on file in the cabinet. A copy of the report shall be provided to the owner or operator or his agent immediately upon completion of the inspection when the owner or operator is present during the inspection. Otherwise a copy of the report shall be mailed to the owner or operator, or his agent, at the address specified on the registration, permit application or other document supplied to the cabinet by the owner or operator, or, when applicable, to the address of the unauthorized owner or operator when his identity and address is discovered.

(b) Authorized representatives of the cabinet shall make and maintain written records of inspections and other activities including observations made and factual matters discovered. A copy of such record shall be made available to the owner or operator and shall be available for public inspection at the main office of the Division of Waste Management in accordance with the Kentucky Open Records Law, KRS 61.870 through 61.884.

(c) Upon inspection of a facility, authorized representatives of the cabinet shall collect evidence of every observed violation of a permit condition or requirement of KRS Chapter 224 or administrative regulations promulgated pursuant thereto.

(d) The cabinet shall preserve collected evidence, where appropriate, in order that such evidence may be presented at hearings held pursuant to 401 KAR 40:030.

Section 2. Timing and Conduct of Inspections.

(1) Right of entry and access. Authorized representatives of the cabinet shall have unrestricted right of entry and access to all parts of the permit area for any purpose associated with their proper duties pursuant to KRS Chapter 224 and 401 KAR Chapters 30 through 47, including but not limited to the purpose of making inspections.

(2) Presentation of credentials. Authorized representatives of the cabinet shall present credentials for identification purposes upon request by a representative of the owner or operator.

(3) Prior notice. The cabinet shall have no obligation to give prior notice that an inspection will be conducted.

(4) Timing. Inspections shall ordinarily be conducted at irregular and unscheduled times during normal workdays, but may be conducted at night or on weekends or holidays when the department deems such inspections necessary to properly monitor compliance with KRS Chapter 224, 401 KAR Chapters 30 through 47, and conditions of the permit. It shall be the responsibility of the owner or operator to notify the cabinet at least five (5) working days prior to crucial phases of the facility construction. Crucial phases of facility construction include, but are not necessarily limited to, liner installation, well drilling leachate collection system installation, and any other phase of construction identified in the conditions of the permit.

Section 3. Deficiencies. The cabinet shall notify the owner or operator of any noncompliance with the requirements of KRS Chapter 224, 401 KAR Chapters 30 through 47, with guidelines adopted pursuant thereto, or with conditions of the permit by utilizing one (1) of the means described in this section.

(1) The inspection report shall serve as notice to the owner or operator that a deficiency has occurred. The inspection report may list a date on which the owner or operator (or his agent) can reasonably be expected to correct the deficiency.

(2) The secretary or any duly authorized representative of the cabinet, upon determining that a violation of any requirement of 401 KAR Chapters 30 through 47; KRS Chapter 224, a permit condition or order of the secretary has occurred or is occurring may require the owner or operator to submit to the cabinet a plan of correction to be implemented within a time acceptable to the cabinet.

(3) If the owner/operator fails to accomplish an agreed upon step in the plan of correction within the time period specified, or correct a deficiency by a reasonable correction date set by the inspector as provided in subsection (1) of this section, the secretary may take action to modify, suspend, discontinue, or revoke the owner or operator's permit(s), or seek any other remedy provided in 401 KAR 40:040.

(4) The supervisor of any regional field office maintained by the Division of Waste Management may hold field office conferences with the owner or operator (or his agent) of a site or facility affected by the requirements of 401 KAR Chapters 30 through 47 or the provisions of KRS Chapter 224 dealing with waste management or disposal practices, for the purpose of determining a reasonable date for correcting a deficiency discovered by inspection and handled according to subsection (1)(b) of this section. The exact nature of the violations discussed during the conference and the dates for correcting those violations shall be set out in writing and signed by the inspector, the field office supervisor and the owner, operator or agent attending the conference if the parties attending the conference reach an agreement as to correction dates. This document shall then become a permit condition of the owner or operator's permit or permit-by-rule.

History

RELATES TO: KRS 224.10, 224.46, 224.99
STATUTORY AUTHORITY: KRS 224.46-520
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the cabinet to inspect any property or premises for the purpose of investigating either actual or suspected sources of pollution or contamination or for the purpose of ascertaining compliance or noncompliance with KRS Chapter 224 or the administrative regulations promulgated pursuant thereto. This chapter establishes standards for enforcement and compliance monitoring of hazardous waste. The enforcement and compliance monitoring standards of this chapter are for those activities and hazardous waste sites or facilities regulated pursuant to 401 KAR Chapters 30 through 47. This administrative regulation establishes standards for inspections and notification of deficiencies.
History: 401 KAR 040:020. 6 Ky.R. 479; 666; eff. 6-4-1980; Recodified from 401 KAR 2:065, Sections 2 and 3, eff. 3-1-83; 10 Ky.R. 162; eff. 12-2-1983; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 40:040 Remedies {#sec-401-kar-40-040 omnilex-key=us-ky-regs-official--title-401--401 KAR 40:040}

Section 1. Modification, Suspension and Revocation of a Permit. The cabinet may modify, suspend or revoke a permit issued under 401 KAR Chapters 30 through 47 for:

(1) Violation of any requirement of KRS Chapter 224 or the respective administrative regulations promulgated pursuant thereto.

(2) Aiding, abetting or permitting the violation of any provisions of 401 KAR Chapters 30 through 47.

(3) Any action or omission associated with maintenance and operation of the facility that could or does create a threat to public health or the environment.

(4) Violations of a condition or a variance of the hazardous waste site or facility permit or a solid waste site or facility permit.

(5) Misrepresentation or omission of a significant fact by the operator either in the application for the permit or in information subsequently reported to the cabinet.

(6) Failure to comply with an order issued by the cabinet.

Section 2. Order for Discontinuance, Abatement, or Alleviation. The secretary may, when he finds after investigation that it would be prejudicial to the interests of the people of the state to delay action, issue an order for discontinuance, abatement, or alleviation of a condition or activity without prior hearing as provided in KRS 224.10-410.

Section 3. Discontinuance of a Permit.

(1) The secretary may order the discontinuance of a permit prior to any hearing when he determines such action is necessary to protect public health and safety and the environment from imminent danger.

(2) The secretary, or his authorized designee, shall notify the owner or operator of the hazardous waste site or facility or of the solid waste site or facility of the discontinuance and the effective date thereof and, at the same time, shall provide the owner or operator with an explanation for the basis of the discontinuance.

(3) The owner or operator shall take prompt action to correct the deficiencies cited by the cabinet.

(4) The suspension shall remain in effect until the deficiencies are corrected to the satisfaction of the cabinet or until the cabinet makes a final determination based on the outcome of a hearing held in accordance with the requirements of KRS 224.10-410. The determination may result in termination of the order, suspension, or modification of the permit, or revocation of the permit.

Section 4. Petition for Reinstatement. An owner or operator whose permit has been suspended or revoked may petition the cabinet for reinstatement after thirty (30) days or more have elapsed from the effective date of the suspension or revocation or from the date of the denial of a similar petition or immediately after the conditions of Section 3(4) of this administrative regulation have been met.

History

RELATES TO: KRS 224.10, 224.46, 224.99
STATUTORY AUTHORITY: KRS 224.10-100
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the cabinet to inspect any property or premises for the purpose of investigating either actual or suspected sources of pollution or contamination or for the purpose of ascertaining compliance or noncompliance with KRS Chapter 224 or the administrative regulations promulgated pursuant thereto. KRS 224.99-010 permits the cabinet to assess civil and criminal penalties against any person who fails to perform any duties imposed by KRS Chapter 224, the administrative regulations promulgated pursuant to KRS Chapter 224, or any determination or order of the cabinet. This chapter establishes standards for enforcement and compliance monitoring of hazardous waste and solid waste management and practices. The enforcement and compliance monitoring standards of this chapter are for those activities and hazardous waste and solid waste sites or facilities regulated pursuant to 401 KAR Chapters 30 through 47. This administrative regulation establishes remedies for solid waste and hazardous waste violations.
History: 401 KAR 040:040. 6 Ky.R. 479; 666; eff. 6-4-1980; Recodified from 401 KAR 2:065, Sections 4, 6 and 7, eff. 3-1-1983; 10 Ky.R. 165; eff. 12-2-1983; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 40:060 County enforcement representative {#sec-401-kar-40-060 omnilex-key=us-ky-regs-official--title-401--401 KAR 40:060}

Section 1. Position Requirements. When a county or urban county government elects to employ a county enforcement representative under the provisions of KRS 109.042, the individual employed in the position shall, at a minimum, meet the following requirements:

(1) The representative shall be a graduate of a college or university with a bachelors degree including fifteen (15) semester equivalent hours in the physical or biological sciences. Professional experience in environmental management may substitute for the educational requirements on a year-for-year basis.

(2) The individual appointed to the position of county enforcement representative shall within one (1) year of appointment complete the manager portion of the Kentucky Landfill Operator Certification Program and successfully complete the certified landfill manager test as outlined in 401 KAR 47:070.

Section 2. Inspection Requirements.

(1) The county enforcement representative shall conduct inspections or investigations in a manner that is reasonable and necessary. The county enforcement representative shall obtain information and evidence with which to determine the compliance of the facilities identified in Section 5 of this administrative regulation with the provisions of relative KRS Chapter 224, 401 KAR Chapters 47 and 48, terms and conditions of a permit and any order of the secretary. Inspections shall be conducted in accordance with procedures approved by the cabinet using forms approved by the cabinet.

(2) The county enforcement representative upon presentation of proper identification and authority may:

(a) Enter any permitted facility identified in Section 5 of this administrative regulation located in the county, to inspect the premises and gather evidence on existing conditions and procedures;

(b) Obtain representative samples of waste or any material believed to be polluting or contaminating the environment;

(c) Conduct tests, analyses and evaluations to determine compliance with the requirements of KRS Chapter 224, 401 KAR Chapters 47 and 48, terms and conditions of a permit and any order of the secretary;

(d) Obtain samples of any containers and photographs or facsimiles of container labels;

(e) Inspect and copy any pertinent records, reports, information or test results relating to the requirements of KRS Chapter 224 and 401 KAR Chapters 47 and 48, terms and conditions of the permit and any order of the secretary; and

(f) Question any person found on the premises, including but not limited to employees or agents of the owner, operator or agency in charge of the premises, concerning their duties, responsibilities, past activities or any other matter relating to the requirements of KRS Chapter 224 and 401 KAR Chapters 47 through 48.

(3) In the event that any samples are obtained prior to leaving the premises, a receipt describing the samples obtained shall be given to the owner, operator, or agency in charge and, if requested, a portion of each such sample equal in volume or weight to the portion retained. A copy of the results shall be furnished to the owner, operator or agency in charge if an analysis is made.

Section 3. Timing and Conduct of Inspections.

(1) The county enforcement representative shall have unrestricted right of entry and access to all parts of any facility identified in Section 5 of this administrative regulation located in the county for any purpose associated with their proper duties pursuant to 401 KAR Chapters 47 and 48.

(2) Presentation of credentials. The county enforcement representative shall present credentials for identification purposes upon request by a representative of the owner or operator.

(3) The county enforcement representative shall not be required by the cabinet or the owner or operator to schedule inspections or to give prior notice that an inspection shall be conducted.

(4) The county enforcement representative shall only be authorized to inspect inside the boundaries of the county or urban county government that elected to implement KRS 109.042.

Section 4. Reporting Requirements.

(1) A report listing any deficiencies found during the inspection shall be prepared by the inspector and shall be kept on file in the county. A copy of the inspection report shall be provided to the owner or operator or his agent immediately upon completion of the inspection.

(2) The county enforcement representatives shall make and maintain written records of inspections or investigations including observations made and factual matters discovered. A copy of such record shall be made available to the owner or operator and shall be available for public inspection.

(3) The county enforcement representative shall notify the cabinet of any noncompliance with the requirements of KRS Chapter 224 and 401 KAR Chapters 47 and 48, the terms and conditions of the permit, and any order of the secretary upon completion of the inspection. The notification shall be by submittal of an inspection report to the cabinet including documentation of the deficiency(ies) noted. The cabinet shall respond to the county enforcement representative concerning the deficiency report within three (3) working days of receipt. When such response is by telephone, it shall be followed up by a written reply.

Section 5. Applicability.

(1) The provisions of this administrative regulation apply to county enforcement officers hired by county or urban county governments under the provisions of KRS 109.042 and KRS 68.178 to inspect contained, construction/demolition and residual landfills; registered permit-by-rule which entail disposal, and residential and inert facilities through the transition period located within the county's geographical boundary.

(2) Notification procedures. The county shall notify the cabinet in writing of the county enforcement officer's name and hiring date within thirty (30) days of his employment.

History

RELATES TO: KRS 224.01, 224.10, 224.18, 224.40, 224.43, 224.46, 224.99
STATUTORY AUTHORITY: KRS 109.042, 224.10-100, 224.43-310
NECESSITY, FUNCTION, AND CONFORMITY: KRS 109.042 requires the cabinet to promulgate administrative regulations for local government inspection of solid waste landfills and enforcement procedures. This administrative regulation establishes the minimum requirements for appointment as a county enforcement representative, establishes standards for compliance monitoring and establishes reporting requirements.
History: 401 KAR 040:060. 16 Ky.R. 1721; 2170; eff. 5-8-1990; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

Chapter 42 Underground Storage Tanks

401 KAR 42:005 Definitions for 401 KAR Chapter 42 {#sec-401-kar-42-005 omnilex-key=us-ky-regs-official--title-401--401 KAR 42:005}

Section 1. Definitions. Except as established in this section, definitions for 401 KAR Chapter 42 shall be as established in 40 C.F.R. 280.12 and 280.250.

(1) "Analytical Testing":

(a) Means:

The techniques established in Test Methods for Evaluating Solid Waste Physical/Chemical Methods, U.S. EPA Publication SW-846 as referenced in 40 C.F.R. 260.11(c)(3); or
Cabinet-approved techniques based on best management practices, including the required quality assurances and quality controls used to identify the quantitative, chemical makeup of a sample; and

(b) Does not mean field instruments, qualitative, or semi-quantitative techniques utilized to inform decision making, but not utilized to determine regulatory compliance.

(2) "Background" means the concentration of substances consistently present in the environment at, or regionally proximate to, a UST system release, but outside of the influence of the UST system release. The two (2) types of background are natural background and ambient background.

(3) "Bodily injury and property damage" is defined by KRS 224.60-115(1).

(4) "Cabinet" is defined by KRS 224.1-010(8).

(5) "Cathodic protection tester" means a person accredited or certified in accordance with 401 KAR 42:020, Section 11(9).

(6) "Change in service" means continued use of a UST system that previously stored a regulated substance to store a non-regulated substance.

(7) "Claim" is defined by KRS 224.60-115(3).

(8) "Contamination" means degradation in the quality of surface water, sediment, groundwater, air, soil, or bedrock as a result of human activities.

(9) "Contract" means the legally-binding written agreement for performance of corrective action entered into by an owner or operator and an eligible company or partnership.

(10) "Corrective action":

(a) For purposes of 401 KAR 42:250 and 42:330, is defined by KRS 224.60-115(4); or

(b) For purposes of 401 KAR 42:020 and 42:060, means those actions necessary to protect human health and the environment if there is a UST system release. Corrective action includes initial response remedial actions to clean up contaminated groundwater, surface waters or soil, actions to address residual effects after initial corrective action is taken, and actions taken to restore or replace potable water supplies. Corrective action also includes actions necessary to monitor, assess, and evaluate a UST system release, as well as actions necessary to monitor, assess, and evaluate the effectiveness of remedial action after a UST system release has occurred.

(11) "Delivery prohibition" means prohibiting the delivery, deposit, or acceptance of a regulated substance to an underground storage tank that has been determined to be ineligible by the cabinet in accordance with 401 KAR 42:020 for delivery, deposit, or acceptance.

(12) "Division" is defined by KRS 224.60-115(6).

(13) "Domestic-use cistern" means a cistern constructed in a manner to allow the infiltration of groundwater and is currently used or potentially used by humans for consumption or other uses resulting in dermal or inhalation exposure.

(14) "Domestic-use spring" means a perennial spring continuously utilized by humans for consumption or other potable uses resulting in dermal or inhalation exposure.

(15) "Domestic-use well" means a well currently used or potentially used by humans for consumption or other uses resulting in dermal or inhalation exposure.

(16) "Double walled" means factory certified construction utilizing an inner wall and an outer wall with an interstitial space between the inner wall and outer wall suitable for interstitial monitoring.

(17) "Eligible company or partnership" means a person issued a letter of eligibility in accordance with 401 KAR 42:250.

(18) "Empty" means all regulated substances have been removed from the UST system using commonly employed practices so that not more than two and five-tenths (2.5) centimeters (one (1) inch) of residue, or zero and three-tenths (0.3) percent by weight of the total capacity of the UST system, remain in the system.

(19) "Entry level" means a deductible amount equal to the financial responsibility the owners or operators shall establish and maintain in accordance with KRS 224.60-120, except for actions established in 401 KAR 42:250, Section 5(3).

(20) "Environmental emergency" is defined by KRS 224.1-400(1)(d).

(21) "Facility" is defined by KRS 224.60-115(7).

(22) "Field blank" means an aliquot of reagent water exposed to the environment during field sample collection and processed in the laboratory as an environmental sample. A field blank is used to document that contamination is not introduced during sample collection.

(23) "Financial ability" means the capacity of a petroleum storage tank owner or operator to finance the performance of corrective action.

(24) "Free product" is defined by KRS 224.60-115(9).

(25) "Groundwater" means the subsurface water occurring in the zone of saturation beneath the water table, and perched water zones below the B-soil horizon, including water circulating through fractures, bedding planes, and solution conduits.

(26) "Hydrogeologically upgradient" means in the direction from a point of lower hydrostatic pressure to a point of higher hydrostatic pressure, as defined by wells or piezometers constructed to the same depth, or in the direction from a point where a lower water table elevation exists to a point where a higher water table elevation exists, as defined by wells or piezometers.

(27) "Independent third-party evaluator" means a consulting firm, test laboratory, not-for-profit research organization, or educational institution with no organizational or financial conflict of interest.

(28) "Interior lining" means corrosion and chemical resistance materials that are applied to the inside of the tank to protect the internal surface of the tank from corrosion.

(29) "Interstitial space" means the area between the inner and outer wall of any component of a UST system.

(30) "Liquid-tight" means impervious to the passage of water or a liquid regulated substance.

(31) "Monitoring" means the act of systematically collecting and accessing data on operational parameters or on the quality of the air, soil, bedrock, groundwater, sediment, or surface water.

(32) "Motor fuel" is defined by KRS 224.60-115(12).

(33) "Newly discovered UST system" means a UST system at a UST facility that would not have been discovered by the owner or operator by the exercise of ordinary diligence.

(34) "Occurrence" is defined by KRS 224.60-115(13).

(35) "Off-site" means any area beyond the point of compliance.

(36) "On-site" means the area within the point of compliance.

(37) "Operational life" means the period beginning when installation of the UST system has commenced and ending when the UST system is closed in accordance with 401 KAR 42:060.

(38) "Overfill release" means a UST system release that occurs if a UST system is filled beyond its capacity, resulting in a discharge of the regulated substance to the environment.

(39) "Permanent closure" means:

(a) Closure, occurring prior to December 22, 1988, in accordance with the requirements of the Kentucky Fire Marshal, and applicable industry standards when closure occurred, and that prevents future use of the UST system; or

(b) After December 22, 1988, removing the UST system from the ground or filling the UST system with an inert solid material, or a combination of both methods in accordance with 401 KAR 42:060, Section 6.

(40) "Person" is defined by KRS 224.60-115(14).

(41) "Petroleum" is defined by KRS 224.60-115(15).

(42) "Petroleum storage tank" is defined by KRS 224.60-115(16).

(43) "Petroleum storage tank operator" is defined by KRS 224.60-115(17).

(44) "Petroleum storage tank owner" is defined by KRS 224.60-115(18).

(45) "Point of compliance" means the property boundaries of the property on which the UST facility is located.

(46) "Product deliverer" means a person that delivers or deposits regulated substances into a UST system.

(47) "Professional engineer" is defined by KRS 322.010(3).

(48) "Professional geologist" is defined by KRS 322A.010(4).

(49) "Registration" means "notification" as used in 40 C.F.R. 280.22.

(50) "Regulated substance" is defined by KRS 224.60-100(2).

(51) "Release" is defined by:

(a) KRS 224.60-115(20); or

(b) 40 C.F.R. 280.12 for the purposes of 401 KAR 42:020 and 42:060, except for a release that is permitted or authorized by the state or federal law.

(52) "Repair" is defined by 40 C.F.R. 280.12, except that the term also includes restoration of a UST system component that has exhibited an unusual operating condition.

(53) "Replaced" or "replacement" means:

(a) For a tank, to remove a tank and install another tank;

(b) For piping, to remove fifty (50) percent or more of piping and install other piping, excluding connectors, connected to a single tank or single compartment. For multiple piping runs connected to a single tank or compartment, this definition applies independently to each piping run; and

(54) "Residual tank materials" means accumulated tank water, bottom sediments, mixture of product and water, or other material remaining in a tank after removal of tank contents.

(55) "Sump" means a subsurface area designed to provide access to UST system equipment.

(56) "Surface water" means:

(a)

Those waters having well-defined banks and beds, either constantly or intermittently flowing;
Lakes and impounded waters;
Marshes and wetlands; and
Subterranean waters flowing in well-defined channels and having a demonstrable hydrologic connection to the surface; and

(b) Does not mean effluent ditches and lagoons used for waste treatment that are situated on property owned, leased, or under valid easement by a permitted discharger.

(57) "Suspected UST system release" means the observation of an unusual operating condition or an unconfirmed UST system release.

(58) "Tank contents" means accumulated tank water, bottom sediments, or mixture of product and water, that is removed from a tank at one (1) time by the same method and that is accepted by a recycling facility.

(59) "Third party" is defined by KRS 224.60-115(22).

(60) "Trip blank" means a sample of analyte-free media taken from the laboratory to the sampling site and returned to the laboratory unopened. A trip blank is used to document contamination attributable to shipping and field handling procedures per cooler per sampling event.

(61) "Underground storage tank" is defined by KRS 224.60-100(1).

(62) "Unusual operating condition" means an abnormal condition observed during the normal use of a UST system, including erratic behavior of product dispensing equipment, the sudden loss of product from a portion of the UST system, the unexplained presence of water in the tank exceeding one (1) inch, a failing result from a tank or line tightness test, a failing result of a corrosion protection evaluation, a failing result of a spill containment device test, a failing result of an under-dispenser containment test, a failing result of a containment sump test, an unexplained failing result from a release detection method or device, an unexplained inventory discrepancy, two (2) consecutive months of inconclusive statistical inventory reconciliation (SIR) results, an unexplained equipment failure or malfunction, an unexplained presence of vapors, an unexplained presence of product in sumps, under-dispenser containment or a spill containment device, infiltration of liquid into the interstitial space of a UST system, an unexplained overfill or release detection alarm, or evidence of a release of a regulated substance.

(63) "UST facility" means all UST systems owned or operated by an owner or operator, and located on a single parcel of property or on a contiguous or adjacent property.

(64) "UST site" or "site" means UST facility.

(65) "Vapor intrusion" means the presence of volatile and semi-volatile organic compounds in residential or commercial buildings, assessed in accordance with Section 7.3 of the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060, resulting from contaminated subsurface media originating from a UST system release.

History

RELATES TO: KRS 224.1, 224.10, 224.60, 40 C.F.R. 280 Subpart A, 42 U.S.C. 6991 - 6991m, 9601-9675
STATUTORY AUTHORITY: KRS 224.10-100(5), 224.60-105, 42 U.S.C. 6991-6991m
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(5) requires the cabinet to develop and conduct programs that provide for the prevention, abatement, and control of contaminants that may threaten the environment. KRS 224.60-105(2) requires the cabinet to regulate underground storage tanks by requiring registration, minimum construction and performance standards, leak detection, recordkeeping, release reporting, corrective action, closure, financial responsibility, and other requirements to protect human health and the environment. KRS 224.60-105(3) requires the cabinet to establish a regulatory program that implements federal requirements for underground storage tank (UST) systems. This administrative regulation establishes definitions for 401 KAR Chapter 42.
History: 22 Ky.R. 427; 918; eff. 11-14-1995; 23 Ky.R. 986; eff. 3-12-1997; 29 Ky.R. 2146; 2458; eff. 4-11-2003; 32 Ky.R. 2109; 33 Ky.R. 456; 732; eff. 9-13-2006; 37 Ky.R. 2686; 38 Ky.R. 255; 510; eff. 10-6-2011; Crt eff. 10-9-2018; 45 Ky.R. 1365, 2360, 2630; eff. 4-5-2019; Crt eff. 3-23-2026.

401 KAR 42:020 UST system requirements, notification, registration, and annual fees {#sec-401-kar-42-020 omnilex-key=us-ky-regs-official--title-401--401 KAR 42:020}

Section 1. Applicability and Exclusions.

(1) Except as established in subsection (3) of this section, applicability and exclusions shall be as established in 40 C.F.R. 280.10, 280.11, and this administrative regulation.

(2) Requirements for previously federally deferred field-constructed tanks and airport hydrant fuel distribution systems shall be as established in 40 C.F.R. 280.250 through 280.252, and this administrative regulation.

(3) In addition to the exclusions established in subsection (1) of this section, the following shall be excluded from the requirements of 401 KAR Chapter 42:

(a) A UST system containing wastes established as hazardous in 401 KAR Chapter 39 and UST systems containing mixtures of hazardous waste and other regulated substances;

(b) Exclusions listed in KRS 224.60-100(1)(a) through (i); and

(c) A UST system used in the operation of heating equipment, boilers, and furnaces, but with a secondary usage as part of an emergency generator system, if:

UST system contents are consumed on the premises where stored; and
The UST system stores fuel oil number 1, 2, 4, 5, 6, or residual fuel oil.

Section 2. Notification, Registration, and Annual Fees.

(1) Notification requirements for UST systems shall be as established in KRS 224.60-105, 40 C.F.R. 280.22, and this section.

(a) Owners shall submit the UST Notice of Intent to Install Underground Storage Tank or Piping, DWM 4231, to the appropriate Division of Waste Management Regional Office, at a minimum, fourteen (14) days prior to installation of a UST or an entire piping run, in accordance with Section 6(4) of this administrative regulation, to afford a division representative the opportunity to be present during installation.

(b) If a division representative fails to be present on the date scheduled for installation, the installation may proceed.

(2) Registration of UST systems shall comply with the requirements in subsection (1) of this section and this subsection.

(a) The owner shall submit, to the cabinet, a UST Facility Registration, DWM 4225, for a UST facility within thirty (30) days of bringing a UST system into use at the UST facility.

(b) The form shall be signed by the owner and operator of the UST system.

(3) A corporation or limited liability company, registering as an owner or operator of a UST system, shall be authorized to conduct business in the Commonwealth of Kentucky, hold an active status, and be in good standing, with the Kentucky Secretary of State.

(4)

(a) Except as established in subsection (5) of this section, an owner shall submit to the cabinet an amended UST Facility Registration, DWM 4225 within thirty (30) days of any change to information contained within the most recently submitted UST Facility Registration.

(b) The form shall be signed by the owner and operator of the UST system.

(5) An unregistered UST system discovered during permanent closure activities conducted in accordance with 401 KAR 42:060, shall be listed on the UST Closure Assessment Report Checklist, DWM 4262, incorporated by reference in 401 KAR 42:060, in lieu of an amended UST Facility Registration, DWM 4225.

(6) An owner shall notify the cabinet within thirty (30) days of an address change by submittal of:

(a) An amended UST Facility Registration, DWM 4225; or

(b) A UST Facility Owner Address Correction, DWM 4224.

(7) If ownership of a UST system changes, the new owner shall comply with this subsection.

(a) The new owner shall complete and submit an amended and signed UST Facility Registration, DWM 4225, to indicate the new ownership. The form shall include the previously-assigned agency interest number and shall be submitted to the cabinet within thirty (30) days after the transaction.

(b) The new owner shall maintain a copy of the properly executed deed or other properly executed legal document proving the transfer of the UST system and submit to the cabinet if requested.

(c) Upon the sale of a UST system, the previous owner shall advise the new owner of the obligation to submit an amended and signed UST Facility Registration, DWM 4225, to the cabinet that indicates the change in ownership.

(8) Upon a determination by the UST Branch that the UST Facility Registration, DWM 4225, is complete and accurate, and the requirements of subsection (9) of this section are met, a written approval letter shall be issued by the UST Branch.

(9)

(a) Annual fees for each tank that is in the ground, and not permanently closed in accordance with 401 KAR 42:060, on July 1 of a year (July 1 through June 30), shall be as established in KRS 224.60-150; and

(b)

Owners or operators of USTs shall pay a thirty (30) dollar annual fee for each tank in the ground on July 1 of that year (July 1 through June 30);
Payment shall be made according to instructions on the invoice from the cabinet stating the required payment;
Payment shall be made within thirty (30) days from the date on the invoice from the cabinet specifying the required payment;
Payment submitted by check shall be made payable to the Kentucky State Treasurer with a note stating that the payment applies to UST tank fees;
Annual fees shall not be due for years prior to the one beginning July 1, 1990; and
Annual fees shall not be required for an unregistered tank newly discovered during permanent closure activities conducted in accordance with 401 KAR 42:060.

Section 3. Temporary Closure.

(1) An amended UST Facility Registration, DWM 4225, shall be submitted in accordance with Section 2(4) of this administrative regulation.

(2) If a UST system is in temporary closure, the owner and operator shall continue operation and maintenance of corrosion protection and UST system release detection, in accordance with this section.

(a) If a UST system is empty, the following operation and maintenance requirements shall not be required:

UST system release detection in accordance with Section 15 of this administrative regulation; and
Walkthrough inspections in accordance with Section 17 of this administrative regulation.

(b) Spill and overfill operation and maintenance testing and inspections shall not be required in accordance with Sections 8 and 9 of this administrative regulation.

(3) In addition to the requirements of subsection (2) of this section, if a UST system is in temporary closure for more than three (3) months, the owner and operator shall:

(a) Leave vent lines open and functioning; and

(b) Cap and secure all other lines, pumps, man ways, and ancillary equipment.

(4) If a UST system is in temporary closure for more than twelve (12) months, and does not comply with the requirements of subsections (2) and (3) of this section, the owner and operator of the UST system shall:

(a) Perform permanent closure in accordance with 401 KAR 42:060; or

(b) Request an extension of temporary closure in accordance with Section 22 of this administrative regulation and perform an assessment in accordance with Section 4.0 of the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060.

(5) If a UST system is in temporary closure for more than twelve (12) months, and complies with the performance standards for corrosion protection, spill containment and overfill prevention, and release detection in accordance with this administrative regulation, the owner and operator shall conduct tank and piping tightness tests, and any outstanding periodic test, prior to returning the UST system into use.

Section 4. Performance Standards for New UST Systems.

(1) Performance standards for new UST systems shall be as established in 40 C.F.R. 280.20, Section 4.0 of the UST System Compliance Manual, and this section.

(2) Noncorrodible piping requirements shall be as established in Section 14 of this administrative regulation.

(3) Owners and operators shall submit a UST System Compatibility Verification, DWM 4234, in accordance with Section 12 of this administrative regulation.

Section 5. Upgrading of Existing UST Systems. Upgrading requirements for existing UST systems shall be as established in 40 C.F.R. 280.21 and this section, except that:

(1) Interior lining shall not be an acceptable method of corrosion protection; and

(2) All interior lined steel tanks that had not, as of December 22, 2013, been upgraded with impressed current corrosion protection shall be permanently closed immediately in accordance with 401 KAR 42:060.

Section 6. Double Walled Tanks and Piping Requirements.

(1) Requirements for double walled tanks and piping shall be as established in 40 C.F.R. 280.20 and the performance standards of this section.

(2) All tanks and piping installed, or UST systems changing from storage of a non-regulated substance to storage of a regulated substance, on or after April 1, 2012, shall comply with the requirements in Section 4 of this administrative regulation, and the UST System Compliance Manual, except that the use of flow restrictors shall be in accordance with Section 9(3) of this administrative regulation.

(3) All existing single walled piping shall be permanently closed in accordance with 401 KAR 42:060 if an associated tank is permanently closed.

(4) Owners and operators shall replace an entire piping run with double walled piping, in accordance with the UST System Compliance Manual, if fifty (50) percent or more of the piping run, extending from the tank to the farthest dispenser or other end-use equipment, excluding connectors, is replaced.

(5) Newly installed piping that is associated with a newly installed UST system dispenser, located in an area where a UST system dispenser did not previously exist, shall be designed and manufactured with double walled construction and shall comply with the requirements in Section 4.0 of the UST System Compliance Manual.

(6) An existing tank that is removed shall comply with the requirements of Section 4.0 of the UST System Compliance Manual if reinstalled.

Section 7. Emergency Shutoff Valves (Shear Valves).

(1) Shear valve requirements shall be as established in 40 C.F.R. 280.20(d) and this section.

(2) All pressurized piping systems that connect tanks to dispensers shall be installed with shear valves for each supply line at the base of each dispenser.

(3) The shear valves shall be rigidly anchored to the dispenser island or another appropriate anchoring point in a manner that allows the shear valve to close automatically in the event of significant impact to a dispenser.

(4) A shear valve found to be defective, inoperable, leaking, not functioning as designed by the manufacturer, or not rigidly anchored shall be immediately replaced or repaired in accordance with Sections 4 and 13 of this administrative regulation.

Section 8. Spill Containment Devices (Spill Buckets and Catch Basins).

(1) Requirements for spill buckets and catch basins shall be as established in 40 C.F.R. 280.20(c), 280.30, 280.35, and this section.

(2) Owners and operators shall not allow regulated substances, liquids, or debris to accumulate in a spill containment device. Owners and operators shall immediately, upon discovery, remove all liquid accumulations and debris from a spill containment device.

(3) All spill containment devices installed on or after April 1, 2012 shall be double walled, liquid-tight, compatible with the substance being stored in the UST system, and installed in accordance with the manufacturer's instructions.

(4) All double walled spill containment devices installed on or after April 1, 2012 shall be tested at installation, and, at a minimum, every thirty-six (36) months thereafter, for liquid-tightness using a test method approved by the double walled spill containment device's manufacturer, a code of practice developed by a nationally recognized association or independent testing laboratory, or a method approved by the cabinet based upon site-specific conditions.

(5) All single walled spill containment devices, and all double walled spill containment devices, installed prior to April 1, 2012 shall be immediately tested and, at a minimum, every thirty-six (36) months thereafter, for liquid-tightness using a test method approved by the spill containment device's manufacturer, a code of practice developed by a nationally recognized association or independent testing laboratory, or a method approved by the cabinet based upon site-specific conditions.

(6) The thirty-six (36) month testing requirements for double walled spill containment devices established in subsections (4) and (5) of this section shall not be required if the spill containment device interstice is monitored, at a minimum, every thirty (30) days and is documented as follows:

(a) For electronic devices capable of printing sensor readings, owners and operators shall obtain a record, at a minimum, every thirty (30) days; or

(b) For devices not capable of printing sensor readings, a monthly log shall be maintained and documented on the UST Visual Interstitial Log, DWM 4236.

(7) The thirty-six (36) month testing established in subsections (4) and (5) of this section shall be conducted within thirty (30) days of the requirements of subsection (6) of this section no longer being met.

(8) The test for liquid-tightness shall be documented on the UST Containment Device Test, DWM 4222 and shall be submitted to the UST Branch within:

(a) Seven (7) days of the test date for failing test results; or

(b) Thirty (30) days of the test date for passing test results.

(9) Owners and operators shall ensure immediate replacement or repair of a damaged, defective, or leaking spill containment device in accordance with Sections 4 and 13 of this administrative regulation.

Section 9. Overfill Prevention Requirements.

(1) Except as established in this section, overfill prevention device requirements shall be as established in 40 C.F.R. 280.20(c), 280.30, and 280.35.

(2) All overfill prevention devices installed on or after April 1, 2012 shall be installed in an extractable fitting to allow for inspection, maintenance, and testing of the device.

(3) Flow restrictors, also known as ball floats, shall not be an approved method for overfill prevention for newly installed UST systems.

(4) All overfill prevention devices shall be accessible for testing, shall be tested to ensure that overfill prevention equipment is set to activate at the levels established in 40 C.F.R. 280.20(c), and will activate if a regulated substance reaches that level. Overfill prevention devices shall be tested using a method approved by the device's manufacturer, a code of practice developed by a nationally recognized association or independent testing laboratory, or a method approved by the cabinet based upon site-specific conditions.

(5) All existing overfill prevention devices not subject to the requirements in subsection (7) of this section, shall be immediately tested and at a minimum, every thirty-six (36) months thereafter.

(6)

(a) All flow restrictors, also known as ball floats, shall immediately be removed and physically inspected to verify the ball and cage are intact and functioning properly. If this equipment is not functioning properly, the ball float shall be replaced with another form of overfill prevention in accordance with subsection (4) of this section.

(b) If the flow restrictor, also known as a ball float, cannot be evaluated in accordance with paragraph (a) of this subsection, an automatic shutoff device or a high level alarm, set to activate at ninety (90) percent capacity, shall be installed as a replacement of the existing ball float.

(7) All newly installed overfill prevention devices shall be tested at installation and, at a minimum, every thirty-six (36) months thereafter.

(8) The overfill prevention device test shall be documented on the UST Overfill Prevention Device Test, DWM 4232 and shall be submitted to the UST Branch within:

(a) Seven (7) days of the test date for failing test results; or

(b) Thirty (30) days of the test date for passing test results.

Section 10. Under-dispenser Containment (UDC) and Sump Requirements.

(1) Requirements for UDC and sumps shall be as established in 40 C.F.R. 280.20, 280.35, and this section.

(2) A UST system dispenser installed on or after April 1, 2012, located in an area where a UST system dispenser did not previously exist, shall have liquid-tight UDC installed in accordance with this section and Section 7.0 of the UST System Compliance Manual.

(3) If equipment below the shear valve, used to connect an existing UST system dispenser to the piping, is replaced in conjunction with a dispenser replacement, liquid-tight UDC shall be installed or existing equipment shall comply with the requirements of this section and Section 7.0 of the UST System Compliance Manual.

(4) A UDC or sump containing product piping, installed or replaced on or after April 1, 2012, shall comply with the liquid-tight containment requirements in Section 7.0 of the UST System Compliance Manual.

(5) Owners and operators shall maintain written records of all installations of UDC and sumps, installed on or after April 1, 2012, for the operating life of the UDC or sump. These records shall be made available to the cabinet upon request.

(6) If a UDC or sump sensor monitoring device detects the presence of a liquid, the owner and operator shall ensure that the UDC or sump shall be immediately inspected.

(7) If one-eighth of an inch or greater of free product is discovered within a UDC or sump, the requirements of 401 KAR 42:060, Section 1, shall apply.

(8) Free product shall be recovered and disposed of in accordance with KRS Chapter 224.

(9) If liquid, other than free product, is discovered within a UDC or sump, the UDC or sump shall be further inspected to determine the source of liquid infiltration, the liquid shall be removed, and the UDC or sump shall be repaired, as necessary.

(10) Except as established in subsection (11) of this section, UDC and sumps installed on or after April 1, 2012 shall be tested for liquid-tightness at installation and, at a minimum, every thirty-six (36) months thereafter. To verify liquid-tightness, UDC and sumps shall be tested using a method approved by the device's manufacturer, a code of practice developed by a nationally recognized association or independent testing laboratory or a method approved by the cabinet based upon site-specific conditions.

(11)

(a) Testing of double walled UDC and sumps, required every thirty-six (36) months in accordance with subsection (10) of this section, shall not be required if the UDC or sump interstice is monitored, at a minimum, every thirty (30) days; and

(b)

For electronic devices capable of printing sensor readings, a record shall be obtained, at a minimum, every thirty (30) days; or
For a device not capable of printing sensor readings, a monthly log shall be maintained and documented on the UST Visual Interstitial Log, DWM 4236.

(12) The thirty-six (36) month testing required in subsection (10) of this section shall be conducted within thirty (30) days of the requirements of subsection (11) of this section no longer being met.

(13) The liquid-tightness test shall be documented on the UST Containment Device Test, DWM 4222 and shall be submitted to the UST Branch within:

(a) Seven (7) days of the test date for failing test results; or

(b) Thirty (30) days of the test date for passing test results.

Section 11. Corrosion Protection Operation and Maintenance.

(1) Requirements for operation and maintenance of corrosion protection shall be as established in 40 C.F.R. 280.31 and this section.

(2) UST system components that routinely contain product and are regularly, or intermittently, in contact with soil, water, or backfill, shall be protected from corrosion.

(3) Owners and operators with steel tanks or piping that have never had corrosion protection installed in accordance with subsection (2) of this section shall immediately remove all regulated substances and initiate permanent closure in accordance with 401 KAR 42:060.

(4) A tank or piping that has been left unprotected from corrosion, or that has been inadequately protected from corrosion, for over 365 days shall undergo an integrity assessment on the unprotected tank or piping, conducted by a contractor certified by the State Fire Marshal's Office in accordance with 815 KAR 30:060, utilizing a method certified by an independent third-party evaluator.

(a) Documentation of the integrity assessment and results, including the average tank metal thickness, shall be submitted to the cabinet on the UST Integrity Assessment, DWM 4228, within thirty (30) days of the assessment date.

(b) If the integrity assessment determines that the average thickness of the steel tank is less than seventy-five (75) percent of the tank's original metal thickness, the steel tank shall be permanently closed in accordance with 401 KAR 42:060.

(5) Owners and operators shall ensure that cathodic protection systems and evaluations shall be as established in this subsection.

(a) A cathodic protection system evaluation shall be required within 180 days from the date of installation, repair, or modification of a cathodic protection system and, at a minimum, every thirty-six (36) months thereafter.

(b) If a cathodic protection system fails an evaluation, but the cathodic protection system evaluator determines that the failure may be attributable to adverse physical conditions related to the evaluation, and further determines that the system is otherwise in good working condition, then a re-evaluation shall be performed.

If a re-evaluation is performed, it shall be performed within thirty (30) days of the failing evaluation.
A re-evaluation shall only be performed once for a failed system evaluation.
If the cathodic protection system fails the re-evaluation, then repairs or modifications shall be completed as soon as practicable, but not more than ninety (90) days after the performance of the evaluation.

(c) If a cathodic protection system fails the evaluation, and it does not qualify for the thirty (30) day re-evaluation period established in paragraph (b) of this subsection, then repairs or modifications shall be completed as soon as practicable, but not more than ninety (90) days after the performance of the evaluation.

(d) If a cathodic protection system evaluation result is inconclusive, as a result of inconsistent remote and local potential readings, a corrosion expert shall evaluate the cathodic protection system and make a determination regarding cathodic protection system adequacy for the UST facility as soon as practicable, but not more than ninety (90) days after the performance of the evaluation.

(6) Impressed current cathodic protection system requirements shall also comply with the requirements established in this subsection.

(a) Impressed current cathodic protection system design, or modifications to an impressed current corrosion protection system, shall only be conducted by a person qualified as a corrosion expert.

(b) Owners and operators shall complete the UST Rectifier Operational Record for Impressed Current Cathodic Protection Systems (60-day Log), DWM 4233, every sixty (60) days.

(c) The form shall be retained by the owner and operator for a minimum of three (3) years and made available to the cabinet upon request.

(7) Owners and operators shall maintain written records for the last two (2) cathodic protection evaluations.

(8) The owners and operators shall ensure that a cathodic protection tester completes, signs, and submits to the cabinet the cathodic protection system evaluation within thirty (30) days of the system evaluation. Results of the cathodic protection evaluation shall be documented on:

(a) A UST Galvanic Cathodic Protection Evaluation, DWM 4226, for a galvanic cathodic protection system; or

(b) A UST Impressed Current Cathodic Protection Evaluation, DWM 4227, for an impressed current cathodic protection system.

(9) A cathodic protection tester shall have completed a third-party corrosion protection tester training, which shall include, at a minimum:

(a) Basics of corrosion, underground corrosion, and corrosion prevention;

(b) Assessing physical conditions for corrosion potential;

(c) Hands on field experience in the testing of both impressed current and sacrificial anode systems, including using reference cells, taking remote readings for appropriate systems, how to read and understand a rectifier, taking measurements using -850 criterion, and typical and non-typical problems;

(d) Review of EPA's regulatory requirements for corrosion protection; and

(e) Review of standards and recommended practices from corrosion protection publications, as referenced in the note to 40 C.F.R. 280.31(b).

(10) Owners and operators shall ensure that individuals, qualified to perform cathodic protection system evaluations in accordance with subsection (9) of this section, submit to the cabinet upon request, documentation verifying that the training requirements have been met.

(11) All interior lined steel tanks that had not, as of December 22, 2013, been upgraded with external corrosion protection shall be permanently closed immediately in accordance with 401 KAR 42:060.

Section 12. Compatibility.

(1) Requirements for compatibility shall be as established in 40 C.F.R. 280.32, Section 4.0 of the UST System Compliance Manual, and this section.

(2) The owners and operators of UST systems installed on or after April 1, 2012 shall submit the UST System Compatibility Verification, DWM 4234, within thirty (30) days of bringing the UST system into use, in order to verify that the UST systems are compatible with the regulated substances stored.

(3) A UST System Compatibility Verification, DWM 4234, shall be submitted within thirty (30) days of the replacement of a UST system component, associated with a UST system installed on or after April 1, 2012, if the UST system component is no longer covered by a previously submitted UST System Compatibility Verification, DWM 4234.

(4) A UST System Compatibility Verification, DWM 4234, shall be submitted to the cabinet if the regulated substance stored is no longer covered by a previously submitted UST System Compatibility Verification, DWM 4234.

Section 13. Repairs.

(1) UST system repairs shall be as established in 40 C.F.R. 280.33 and this section.

(2) UST system repairs shall be performed by a contractor certified by the State Fire Marshal's Office, in accordance with 815 KAR 30:060.

(3) Owners and operators of UST systems shall ensure that repairs shall prevent releases due to structural failure or corrosion.

(4) Within thirty (30) days following the date of the completion of a repair to a tank, piping, or UST system component, owners and operators shall:

(a) Submit a UST System Compatibility Verification, DWM 4234, in accordance with Section 12 of this administrative regulation; and

(b) Conduct a test, adequate to detect a release from the repaired component of the UST system, in accordance with this administrative regulation.

Section 14. Noncorrodible Piping.

(1) All new or replaced underground noncorrodible piping installed on or after April 1, 2012, shall comply with or exceed the Standard for Safety established by Underwriters Laboratories Inc. in Standard for Nonmetallic Underground Piping for Flammable Liquids - UL 971, as referenced in the note to 40 C.F.R. 280.20(b)(1).

(2) Owners and operators shall ensure repairs to noncorrodible piping shall be performed in accordance with Section 13 of this administrative regulation, or shall permanently close noncorrodible piping in accordance with Section 6.0 of 401 KAR 42:060, if the piping exhibits any of the conditions identified in UST Systems: Inspecting and Maintaining Sumps and Spill Buckets, EPA 510-R-05-001.

Section 15. Release Detection.

(1) General release detection requirements for petroleum UST systems shall be as established in 40 C.F.R. 280.40, 280.41, 280.42, 280.45, and this section.

(2) System integrity tests shall be performed in accordance with a method approved by the device's manufacturer, a code of practice developed by a nationally recognized association or independent testing laboratory, or an equally protective method approved by the cabinet based on site-specific conditions. Results shall be submitted for:

(a) A line tightness test on a UST Line Tightness Test, DWM 4229;

(b) An automatic line leak detector test on a UST Automatic Line Leak Detector Operational Test, DWM 4221;

(d) A tank tightness test on a UST Tank Tightness Test, DWM 4235.

(3) Owners and operators shall immediately report failing results of a test performed in accordance with subsection (2) of this section to the cabinet as a suspected release in accordance with 401 KAR 42:060, Section 1.

(4) All test results shall be documented in accordance with subsection (2) of this section.

(a) Failing test results shall be submitted to the UST Branch within seven (7) days of the test date.

(b) Passing test results shall be submitted to the UST Branch within thirty (30) days of the test date.

(5) Owners and operators shall ensure that tests of tanks and piping for tightness, and operational tests of automatic line leak detectors, shall be conducted by a UST system equipment tester.

(6) A UST system equipment tester shall:

(a) Use testing equipment and methods that are certified, as of the time of testing, by an independent third-party evaluator;

(b) Have completed a training course conducted or endorsed by the manufacturer of the testing equipment;

(d) Provide a copy of their training credentials to the cabinet upon request.

(7) Failure to provide training credentials as established in subsection (6) of this section, upon written request from the cabinet, shall render the test results invalid.

(8) Methods of release detection for tanks and piping installed prior to April 1, 2012 shall be as established in 40 C.F.R. 280.43(b), (c), (d), (g), and (h); 280.44; and this section.

(a) A release detection method shall be certified, at the time of testing, by an independent third-party evaluator.

(b)

Electronic interstitial monitoring shall be the primary method of release detection for all UST systems installed on or after April 1, 2012, in accordance with Section 9.0 of the UST System Compliance Manual.
Owners and operators shall only install electronic devices capable of printing sensor readings. Owners and operators shall obtain a record, at a minimum, every thirty (30) days, to verify that release detection is being performed and that releases have not occurred.

(c) Owners and operators of tanks and piping installed prior to April 1, 2012, for which interstitial monitoring is the primary method of release detection, shall:

If using electronic devices capable of printing sensor readings, obtain, at a minimum, every thirty (30) days a sensor reading to verify that release detection is being performed and that releases have not occurred; or
If using devices not capable of printing sensor readings, maintain a monthly log documented on the UST Visual Interstitial Log, DWM 4236, to verify that release detection is being performed and that releases have not occurred.

(d) Owners and operators of piping installed prior to April 1, 2012, for which interstitial monitoring is the primary method of release detection, shall comply with the requirements in paragraph (c) of this subsection and comply with the requirements for UDCs and sumps in Section 10 of this administrative regulation.

(e) All release detection records shall be retained for the most recent twelve (12) months, except:

Annual operational test results, which shall be retained for three (3) years; and
Tank tightness testing and line tightness testing results, which shall be retained until the next test is conducted.

(f) All electronic release detection monitoring equipment for UST systems shall be operationally tested at installation, and at a minimum, every twelve (12) months thereafter, using a test method approved by the manufacturer or a code of practice developed by a nationally recognized association or independent testing laboratory.

(g) Owners and operators shall not remove, alter, or disable release detection monitoring equipment, required to be maintained in accordance with this administrative regulation, in a manner that would render the equipment inaccurate or inoperable.

(9) Except as established in subsection (12) of this section, automatic line leak detectors (ALLD) for all pressurized piping systems shall be:

(a) Performance tested at installation, and at a minimum, every twelve (12) months thereafter, by a qualified individual that complies with the requirements of subsection (6) of this section;

(b) Performance tested through simulation of a release at the dispenser located furthest away from the ALLD or at the highest elevation above the ALLD; and

(10) Electronic line leak detectors, in addition to the requirements established in subsection (9) of this section, shall be:

(a) Tested to verify that the ALLD functions and shuts down the submersible turbine pump (STP);

(b) Capable of detecting a leak rate equivalent to three (3) gallons-per-hour at ten (10) pounds per square inch of line pressure; and

(c) Tested to verify that the STP relay switch is not malfunctioning in the permanent on position, which would prevent the electronic line leak detector from operating properly.

(11) Mechanical line leak detectors, in addition to the requirements established in subsection (9) of this section, shall be:

(a) Tested to verify that the ALLD is capable of detecting a leak rate equivalent to three (3) gallons-per-hour at ten (10) pounds per square inch of line pressure while reducing the flow; and

(b) Tested to verify that the STP relay switch is not malfunctioning in the permanent on position, which would prevent the mechanical line leak detector from operating properly.

(12) ALLD requirements for all pressurized piping systems installed for emergency generators shall be as established in 40 C.F.R. 280.44(a).

Section 16. Operator Training Requirements.

(1) Operator training requirements for UST systems shall be as established in 40 C.F.R. 280 Subpart J and this section.

(2) A combined Class A and Class B operator shall comply with the requirements of both the Class A operator and the Class B operator as established in 40 C.F.R. 280.242.

(3) An owner of a UST system registered, but not permanently closed, and not subject to the requirements in subsection (4) of this section, shall immediately designate at least one (1) individual to be trained (if not previously designated and trained) within thirty (30) days of designation, as a combined Class A and Class B operator.

(4) An owner of a newly installed, or newly acquired but not permanently closed, UST system shall, within thirty (30) days of registration, designate at least one (1) individual to be trained, within thirty (30) days of designation, as a combined Class A and Class B operator.

(5) If an owner of a UST system no longer has a trained combined Class A and Class B operator, the owner shall immediately designate another individual as a combined Class A and Class B operator, and that designated individual shall complete operator training within thirty (30) days.

(6) The owner of a UST system shall ensure that:

(a) A trained combined Class A and Class B operator successfully retrains annually, within twelve (12) months of the most recent training date;

(b) An operator training certificate, in accordance with this section, is submitted to the cabinet within thirty (30) days of completion; and

(c) An operator trained in accordance with this section, shall submit to the cabinet upon request, documentation verifying that the training requirements have been met.

Section 17. Walkthrough Inspections.

(1) Except as established in this section, requirements for periodic operation and maintenance walkthrough inspections shall be as established in 40 C.F.R. 280.36.

(2) Owners and operators of UST systems shall comply with the requirements and procedures for walkthrough inspections in Section 11.0 of the UST System Compliance Manual.

(3) Owners and operators shall ensure that the walkthrough inspections are completed by the owner, operator, or a combined Class A and Class B operator as established in Section 16 of this administrative regulation.

(4) Monthly walkthrough inspections shall be completed and documented on the UST Monthly Walkthrough Inspection, DWM 4230, or another form containing, at a minimum, the same information, for:

(a) Existing UST facilities, not subject to the requirements of paragraphs (b) and (c) of this subsection, immediately, and every thirty (30) days thereafter;

(b) Newly installed UST facilities, initially within thirty (30) days of registration, and every thirty (30) days thereafter; and

(c) UST facilities that have a change in ownership, within thirty (30) days of registration, and every thirty (30) days thereafter.

(5) Annual walkthrough inspections shall be completed and documented on the UST Annual Walkthrough Inspection, DWM 4220, or another form containing, at a minimum, the same information, for:

(a) Existing UST facilities, not subject to the requirements of paragraphs (b) and (c) of this subsection, immediately, and every twelve (12) months thereafter;

(b) Newly installed UST facilities, initially within thirty (30) days of registration, and every twelve (12) months thereafter; and

(c) UST facilities that have a change in ownership, within thirty (30) days of registration, or within twelve (12) months of the last annual walkthrough inspection, and every twelve (12) months thereafter.

(6) The annual walkthrough shall include replacing hand held release detection equipment, including tank gauge sticks, if the equipment is damaged or unable to function as originally designed.

(7) Walkthrough inspection forms required by subsections (4) and (5) of this section shall be retained for twelve (12) months after the last annual walkthrough inspection completion date.

Section 18. Delivery Prohibition.

(1) The cabinet shall issue a Notice of Violation to the UST system's owner or operator upon confirmation of:

(a) Spill prevention equipment not installed, operational, or maintained;

(b) Overfill prevention equipment not installed, operational, or maintained;

(d) Release detection not performed;

(e) Release detection equipment not installed, operational, or maintained;

(f) Registration not submitted or not amended as necessary;

(g) Annual fee past due by more than one (1) year; or

(h) A defective UST system component, confirmed by UST system testing, or visual observation by the cabinet, and for which the owner and operator have not documented a repair or replacement, has:

Caused a release of a regulated substance into the environment; or
Allowed a regulated substance to infiltrate into the interstitial space or secondary containment of the UST system.

(2) The Notice of Violation shall serve as notice to owners and operators of the cabinet's intent to invoke delivery prohibition for the UST system if the violation is not corrected within the time frame established in writing by the cabinet.

(3) A second Notice of Violation shall be issued upon failure by an owner or operator to correct a condition cited in the initial Notice of Violation issued in accordance with subsection (1) of this section, or to request an extension in accordance with Section 22 of this administrative regulation.

(4) Upon issuance by the cabinet of the second Notice of Violation, delivery prohibition shall be invoked and an authorized representative of the cabinet shall attach a delivery prohibition tag to the non-compliant UST system.

(5) Owners and operators shall ensure that a delivery prohibition tag shall not be removed, defaced, altered, or destroyed.

(6) Owners and operators shall not allow the delivery, deposit, or acceptance of regulated substances into a UST system if the cabinet has invoked delivery prohibition, unless directed in writing by the cabinet for the purpose of UST system testing.

(7) Owners and operators shall notify the appropriate product deliverer if delivery prohibition has been invoked.

(8) Except as established in subsection (11) of this section, delivery prohibition shall remain in effect until the non-compliant UST system is returned to compliance for the violation that caused delivery prohibition to be invoked.

(9) The cabinet shall determine if a UST system is authorized to accept deliveries within two (2) business days (Monday through Friday) of receipt of written notice from the owner or operator that the remedial measures established in the Notice of Violation have been completed.

(10) If the violation has been corrected, the cabinet shall terminate delivery prohibition and remove an affixed delivery prohibition tag within two (2) business days (Monday through Friday).

(11) If the division director or designee determines, in writing, that delivery prohibition at a UST facility would jeopardize the availability of, or access to, motor fuel in a rural and remote area, the cabinet shall defer the application of delivery prohibition for a UST system for a period not to exceed forty-five (45) days, unless an extension is approved in accordance with Section 22 of this administrative regulation by the division director or designee.

(12) This section shall not apply to a regulated UST used to fuel an emergency backup generator.

Section 19. Recordkeeping. Requirements for recordkeeping shall be as established in 40 C.F.R. 280.34, 280.45, Section 13.0 of the UST System Compliance Manual, and this administrative regulation.

Section 20. Financial Responsibility.

(1) Requirements for financial responsibility shall be as established in 40 C.F.R. 280 Subpart H and this section.

(2) The Petroleum Storage Tank Environmental Assurance Fund (PSTEAF) may be utilized as a mechanism to demonstrate financial responsibility in accordance with subsection (1) of this section, and the requirements as established in 401 KAR 42:250.

(3) Owners and operators shall certify, through signature on the UST Facility Registration, DWM 4225, that financial responsibility has been established and shall be maintained in accordance with this administrative regulation.

Section 21. Lender Liability. Requirements for lender liability shall be as established in 40 C.F.R. 280 Subpart I.

Section 22. Extensions.

(1) The owner or operator of a UST system may request an extension to a deadline established by this administrative regulation or established by the cabinet in a written directive.

(2) The extension request shall be submitted in writing and received by the Division of Waste Management prior to the deadline.

(3) The cabinet may grant an extension, if an extension would not have a detrimental impact on human health or the environment.

Section 23. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "UST Annual Walkthrough Inspection", DWM 4220, September 2019;

(b) "UST Automatic Line Leak Detector Operational Test", DWM 4221, September 2019;

(d) "UST Electronic Release Detection Equipment Test", DWM 4223, September 2019;

(e) "UST Facility Owner Address Correction", DWM 4224, September 2019;

(f) "UST Facility Registration", DWM 4225, September 2019;

(g) "UST Galvanic Cathodic Protection Evaluation", DWM 4226, September 2019;

(h) "UST Impressed Current Cathodic Protection Evaluation", DWM 4227, September 2019;

(i) "UST Integrity Assessment", DWM 4228, September 2019;

(j) "UST Line Tightness Test", DWM 4229, January 2019;

(k) "UST Monthly Walkthrough Inspection", DWM 4230, September 2019;

(l) "UST Notice of Intent to Install Underground Storage Tank or Piping", DWM 4231, September 2019;

(m) "UST Overfill Prevention Device Test", DWM 4232, September 2019;

(n) "UST Rectifier Operational Record for Impressed Current Cathodic Protection Systems (60-day Log)", DWM 4233, September 2019;

(o) "UST System Compatibility Verification", DWM 4234, September 2019;

(p) "UST Tank Tightness Test", DWM 4235, September 2019;

(q) "UST Visual Interstitial Log", DWM 4236, September 2019;

(r) "UST System Compliance Manual", January 2019; and

(s) "UST Systems: Inspecting and Maintaining Sumps and Spill Buckets", EPA 510-R-05-001, May 2005.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Waste Management, 300 Sower Boulevard, Second Floor, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

(3) This material may also be obtained at the Division of Waste Management's Web site at eec.ky.gov/environmental-protection/waste or from www.epa.gov.

History

RELATES TO: KRS 224.1, 224.10, 224.60, 10 C.F.R. Part 50, 40 C.F.R. Part 280, Subparts A, B, C, D, G, H, I, J, K, Part 281, Subpart D, 42 U.S.C. 2011 - 2021, 2022 - 2286i, 2296a - 2297h-13, 6991 - 6991m
STATUTORY AUTHORITY: KRS 224.10-100, 224.60-105, 224.60-150, 42 U.S.C. 6991 - 6991m
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the cabinet to develop and conduct programs that provide for the prevention, abatement, and control of contaminants that may threaten the environment. KRS 224.60-105 requires the cabinet to regulate underground storage tanks (USTs) by requiring registration, minimum construction and performance standards, leak detection, recordkeeping, release reporting, corrective action, closure, financial responsibility, and other requirements to protect public health and the environment. KRS 224.60-105(3) requires the cabinet to establish a regulatory program that implements federal requirements for UST systems. KRS 224.60-150 requires the cabinet to levy and collect an annual fee of thirty (30) dollars per tank from owners or operators of USTs for the purpose of funding the administration of the UST Program. KRS 224.10-100(28) authorizes the cabinet to promulgate administrative regulations not inconsistent with the provisions of law administered by the cabinet. This administrative regulation establishes the scope of the UST program, including provisions for exclusions, requirements concerning registration, annual fees, performance standards, operation and maintenance of UST systems, delivery prohibition, operator training, and requirements for demonstrating financial responsibility for corrective action, compensation of third parties for bodily injury and property damage, and lender liability.
History: 17 Ky.R. 1637; 1994; eff. 12-19-1990; 22 Ky.R. 318; 920; eff. 11-14-1995; 32 Ky.R. 2113; 33 Ky.R. 461; 736; eff. 9-13-2006; 37 Ky.R. 2693; 514; eff. 10-6-2011; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Crt eff. 10-9-2018; 45 Ky.R. 1370, 2365, 2634; eff. 4-5-2019; TAm eff. 5-7-2019; TAm eff. 9-25-2019; Crt eff. 3-23-2026.

401 KAR 42:060 UST system release and corrective action requirements {#sec-401-kar-42-060 omnilex-key=us-ky-regs-official--title-401--401 KAR 42:060}

Section 1. Reporting for Releases, Spills, and Overfills.

(1) Reporting of confirmed or suspected releases shall be as established in 40 C.F.R. 280.50 and this section.

(2) Except as established in subsection (3) of this section, reporting and cleanup requirements for spills and overfills shall be as established in 40 C.F.R. 280.53.

(3) Confirmed releases, spills, and overfills shall be reported immediately, in accordance with KRS 224.1-400(11), to the cabinet's 24-hour Environmental Emergency Response Team number at (800) 928-2380 or (502) 564-2380.

(4) An unusual operating condition, or an unconfirmed UST system release, shall be reported immediately as a suspected release to the cabinet's 24-hour Environmental Emergency Response Team number at (800) 928-2380 or (502) 564-2380, unless:

(a) The UST system equipment or component is found not to be releasing regulated substances to the environment;

(b) Any defective UST system equipment or component is immediately repaired or replaced; and

(c) For secondarily contained UST systems, any liquid in the interstitial space not used as part of the interstitial monitoring method is immediately removed.

Section 2. Environmental Emergencies. During the course of an environmental emergency response, the Environmental Response Team shall have the authority to prevent delivery, deposit, storage, or dispensing of regulated substances and to require all actions necessary to protect human health and the environment.

Section 3. Off-Site Impacts. Requirements for Investigations due to off-site impacts shall be as established in 40 C.F.R. 280.51.

Section 4. Release Investigation and Confirmation.

(1) Procedures for suspected release investigation and confirmation shall be as established in 40 C.F.R. 280.52 and this administrative regulation.

(2) Owners and operators shall immediately investigate and test, within seven (7) days, any UST component that might contribute to a confirmed or suspected release, or an unusual operating condition required to be reported in accordance with Section 1 of this administrative regulation. Any defective UST component shall be repaired or replaced as soon as practical, but shall not exceed the time requirements established in 401 KAR 42:020.

(3) Owners and operators shall perform a site check, if directed by the cabinet, in accordance with Section 3.0 of the UST Corrective Action Manual.

Section 5. Release Response and Corrective Action.

(1) General requirements shall be as established in 40 C.F.R. 280.60 through 280.67.

(2) The procedures in the UST Corrective Action Manual shall be followed.

(3) In addition to the requirements established in 40 C.F.R. 280.62 and 280.63, the owner or operator shall complete and submit to the cabinet the UST Site Check Checklist, DWM 4268.

(4) In addition to the requirements established in 40 C.F.R. 280.63 and 280.65, the owner or operator shall complete and submit to the cabinet, when directed in writing, the:

(a) UST Over-Excavation Checklist, DWM 4267;

(b) UST Site Investigation Checklist, DWM 4269;

(d) UST Vapor Intrusion Assessment Checklist, DWM 4270.

(5) In addition to the requirements established in 40 C.F.R. 280.66 and 280.67, the owner or operator shall complete and submit to the cabinet, if directed in writing, the:

(a) UST Corrective Action Certification, DWM 4263;

(b) UST Over-Excavation Checklist, DWM 4267;

(d) UST Interim Corrective Action Checklist, DWM 4265.

(6) The forms referenced in subsections (3) through (5) of this section shall be certified by a professional engineer or a professional geologist.

(7) Owners and operators shall undertake, as directed in writing by the cabinet, corrective actions necessary to ensure that contamination of all domestic-use wells, domestic-use springs, and domestic-use cisterns impacted by a release from a regulated UST system does not exceed the maximum contaminant levels, established in 401 KAR Chapter 8, applicable to the regulated substance stored.

Section 6. Permanent Closure or Change in Service.

(1) Owners or operators performing permanent closure, or change in service, of a UST system shall comply with the requirements of Section 4.0 of the UST Corrective Action Manual.

(2)

(a) This administrative regulation shall apply to an owner or operator of a UST system that has a UST system release confirmed after October 6, 2011, or has submitted a UST Notice of Intent to Permanently Close Underground Storage Tank or Piping, DWM 4266, that has been received by the appropriate Division of Waste Management regional office after October 6, 2011.

(b) With the exception of those UST systems with requirements established in paragraph (c) of this subsection, the owners and operators of a UST system that have, prior to October 6, 2011, either submitted a notice of intent to permanently close UST systems or reported a confirmed release to the cabinet, shall comply with the closure requirements in effect on the date the notice of intent to permanently close UST systems was received by the appropriate Division of Waste Management regional office or the confirmed release was reported to the cabinet. This paragraph shall not apply to the screening levels, which shall be determined in accordance with Section 7 of this administrative regulation.

(c) An owner or operator shall comply with the permanent closure requirements that were in place prior to April 18, 1994, for a UST system:

From which dispensing had ceased prior to April 18, 1994, regardless of the submittal date of the UST Notice of Intent to Permanently Close Underground Storage Tank System;
For which a UST Notice of Intent to Permanently Close Underground Storage Tank System was submitted after December 22, 1988, but prior to April 18, 1994; or
For which a confirmed release was reported prior to April 18, 1994, regardless of the submittal date of the UST Notice of Intent to Permanently Close Underground Storage Tank System.

(3)

(a) Owners and operators shall notify the cabinet of intent to permanently close or make a change in service for a UST system a minimum of fourteen (14) days prior to beginning either the permanent closure or change in service in accordance with subsections (1) and (4) of this section.

The notice shall be completed and submitted on the UST Notice of Intent to Permanently Close Underground Storage Tank or Piping, DWM 4266.
Initial abatement action shall not alleviate owners and operators of the responsibility to notify the cabinet of the intent to permanently close a UST system.
The cabinet may specify a shorter notification time prior to permanent closure if permanent closure activities are completed in response to actions conducted in accordance with Sections 2.0 and 3.0 in the UST Corrective Action Manual or actions directed by the Environmental Response Team.

(b) The UST Notice of Intent to Permanently Close Underground Storage Tank or Piping, DWM 4266, shall only be valid for twelve (12) months following submittal to the cabinet.

(4) An assessment at permanent closure or change in service shall be as established in paragraphs (a) through (c) of this subsection.

(a)

In order to complete permanent closure, or a change in service of a UST system, owners and operators shall measure for the presence of a UST system release in accordance with Section 2.0 of the UST Corrective Action Manual.
Permanent closure activities shall be reported to the cabinet within ninety (90) days after UST system removal, closure in place, or change in service, in accordance with Section 4.7 of the UST Corrective Action Manual.

(b) If analytical results from permanent closure sampling indicate that further actions are necessary, those actions shall be performed at the written direction of the cabinet, and in accordance with Section 5.0 of the UST Corrective Action Manual.

(c) The handling, transportation, and disposal of a regulated substance from a UST system and contaminated soils, backfill materials, groundwater, cleaning liquids, and other similar materials generated during activities performed in accordance with this administrative regulation shall be performed in accordance with applicable requirements of 401 KAR Chapters 30 through 49.

(5) Applicability to previously closed UST systems shall be as established in 40 C.F.R. 280.73.

(6) Requirements for reporting and maintaining closure records shall be as established in paragraphs (a) through (c) of this subsection.

(a)

Owners or operators shall complete and submit to the cabinet a UST Closure Assessment Report Checklist, DWM 4262, within ninety (90) days of the date of permanent closure or a change in service, in accordance with Section 4.7 of the UST Corrective Action Manual.
The UST Closure Assessment Report Checklist, DWM 4262, shall be certified by a professional engineer or a professional geologist.

(b) Owners or operators shall complete and submit a UST Certification of Properly Cleaned USTs, DWM 4260, to the cabinet if a UST system is permanently closed by removal.

Section 7. UST Facility Classification.

(1)

(a) An owner or operator of a UST system for which a UST Notice of Intent to Permanently Close Underground Storage Tank System containing petroleum was submitted, or a confirmed UST system release of petroleum was reported to the cabinet, on or after April 18, 1994, shall be required to classify the UST facility in accordance with this section.

(b) The owner or operator shall, if the UST system is permanently closed, or if directed by the cabinet, in order to appropriately classify the UST facility, submit a UST Classification Guide, DWM 4261, which shall be certified by a professional engineer or a professional geologist.

(c) Section 7.0 of the UST Corrective Action Manual shall be used in completing the UST Classification Guide, DWM 4261, for determining the classification of a UST facility.

(d) Section 7.0 of the UST Corrective Action Manual lists the applicable screening levels for petroleum constituents for each classification.

(2) An owner or operator of a UST system that either submitted a UST Notice of Intent to Permanently Close Underground Storage Tank System, or reported a confirmed UST system release of petroleum to the cabinet, or for which dispensing ceased, prior to April 18, 1994, shall not be required to classify the UST facility in accordance with this administrative regulation, unless:

(a) The owner or operator reports an additional confirmed UST system release of petroleum to the cabinet; and

(b) The additional confirmed UST system release of petroleum is commingled with a UST system release of petroleum associated with the UST Notice of Intent to Permanently Close Underground Storage Tank System submitted prior to April 18, 1994, or the UST system release of petroleum reported to the cabinet prior to April 18, 1994.

(3) An owner or operator of a UST system that chooses to remove from the ground a UST system for which dispensing ceased prior to April 18, 1994, shall not be required to classify the UST facility in accordance with this administrative regulation.

(4) An owner or operator may submit, in accordance with 401 KAR 30:020, Section 2, a written request for a variance to the applicable screening levels established in accordance with this administrative regulation if:

(a) Prior to October 6, 2011:

A UST Notice of Intent to Permanently Close Underground Storage Tank System containing petroleum was submitted to the cabinet; or
A confirmed UST system release of petroleum was reported to the cabinet; and

(b) The allowable levels previously applicable to the UST facility are less stringent than the screening levels established by this administrative regulation.

(5) An owner or operator, required to classify a UST facility in accordance with this administrative regulation, shall utilize the screening levels established in Section 7.0 of the UST Corrective Action Manual, regardless of the date of permanent closure of the UST system.

Section 8. No Further Action Letter.

(1) A no further action letter shall be issued if the cabinet has determined that all applicable requirements in 401 KAR Chapter 42 have been met.

(2) Any unpaid annual fees due in accordance with 401 KAR 42:020, shall be paid in full prior to the cabinet issuing a no further action letter.

(3) If a threat to human health or the environment exists, related to a release or permanent closure for which a no further action letter was previously issued, the cabinet shall revoke the no further action letter and require necessary action in accordance with 401 KAR Chapter 42.

Section 9. Extensions.

(1) The owner or operator of a UST system may request an extension to a deadline established by this administrative regulation or established by the cabinet in a written directive.

(2) The extension request shall be submitted in writing and received by the UST Branch of the Division of Waste Management prior to the deadline.

(3) The cabinet may grant an extension, if an extension would not have a detrimental impact on human health or the environment.

(4) The cabinet shall not grant an extension for requirements established in Sections 1, 2, 4(1), or 4(2) of this administrative regulation.

Section 10. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "UST Certification of Properly Cleaned USTs", DWM 4260, September 2019;

(b) "UST Classification Guide", DWM 4261, September 2019;

(d) "UST Corrective Action Certification", DWM 4263, September 2019;

(e) "UST Groundwater Monitoring Checklist", DWM 4264, September 2019;

(f) "UST Interim Corrective Action Checklist", DWM 4265, September 2019;

(g) "UST Notice of Intent to Permanently Close Underground Storage Tank or Piping", DWM 4266, September 2019;

(h) "UST Over-Excavation Checklist", DWM 4267, September 2019;

(i) "UST Site Check Checklist", DWM 4268, September 2019;

(j) "UST Site Investigation Checklist", DWM 4269, September 2019;

(k) "UST Vapor Intrusion Assessment Checklist", DWM 4270, September 2019;

(l) "UST Vapor Intrusion Building Assessment Checklist", DWM 4271, September 2019; and

(m) "UST Corrective Action Manual", September 2019.

(2) This material may be inspected, copied, or obtained, subject to copyright law, at the Division of Waste Management, 300 Sower Boulevard, Second Floor, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

(3) This material may also be obtained at the Division of Waste Management's Web site at eec.ky.gov/environmental-protection/waste.

History

RELATES TO: KRS 224.1, 224.1-400(11), 224.10, 224.40, 224.43, 224.46, 224.60, 40 C.F.R. 280, Subparts E, F, G, 40 C.F.R. 281, Subpart D, 42 U.S.C. 6991-6991m
STATUTORY AUTHORITY: KRS 224.10-100, 224.60-105, 224.60-137
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the cabinet to develop and conduct programs that provide for the prevention, abatement, and control of contaminants that may threaten the environment. KRS 224.60-105 requires the cabinet to regulate underground storage tanks (USTs) by requiring registration, minimum construction and performance standards, leak detection, recordkeeping, release reporting, corrective action, closure, financial responsibility, and other requirements to protect public health and the environment. KRS 224.60-105(3) requires the cabinet to establish a regulatory program that implements federal requirements for UST systems. This administrative regulation establishes the requirements for UST system release reporting, release response, permanent closure of UST systems, change in service of UST systems, site characterization, corrective action, and UST facility classification, including screening levels of a UST system containing petroleum.
History: 17 Ky.R. 1643; eff. 12-19-1990; 22 Ky.R. 323; 921; eff. 11-14-1995; 32 Ky.R. 2121; 33 Ky.R. 465; 739; eff. 9-13-2006; 37 Ky.R. 2704; 38 Ky.R. 269; 523; eff. 10-6-2011; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Crt eff. 10-9-2018; 45 Ky.R. 1380, 2374, 2642; eff. 4-5-2019; TAm eff. 5-7-2019; TAm eff. 9-25-2019; Crt eff. 3-23-2026.

401 KAR 42:250 Petroleum Storage Tank Environmental Assurance Fund reimbursement {#sec-401-kar-42-250 omnilex-key=us-ky-regs-official--title-401--401 KAR 42:250}

Section 1. Applicability.

(1) This administrative regulation shall establish the eligibility requirements and procedures for a petroleum storage tank owner or operator to make application, become an eligible applicant, and receive reimbursement from the cabinet for the cost of corrective action due to a release from a petroleum storage tank.

(2) Federally owned facilities shall not be eligible for reimbursement from the PSTEAF in accordance with KRS 224.60-115(16).

(3) Eligible reimbursement shall be made in accordance with the reimbursement administrative regulations in effect at the time work was performed.

Section 2. Application for Assistance for Reimbursement.

(1) A petroleum storage tank owner or operator seeking reimbursement from the Financial Responsibility Account (FRA) or the Petroleum Storage Tank Account (PSTA), shall:

(a) In accordance with 401 KAR 42:020, submit to the UST Branch a complete and accurate UST Facility Registration, DWM 4225, incorporated by reference in 401 KAR 42:020;

(b) Complete and submit a UST Application for Assistance for PSTEAF, DWM 4282, including all required attachments;

(d)

Document that a release requiring corrective action from a petroleum storage tank has occurred; or
Receive a written directive from the UST Branch or Emergency Response Branch, in accordance with 401 KAR 42:060; and

(e) Subrogate, to the cabinet, the rights to recover costs of corrective action, for which the cabinet has compensated the person seeking reimbursement, from the person responsible or liable for the release in accordance with KRS 224.60-140(14)(c).

(2) If an application for assistance is found deficient by the UST Branch, a written correspondence, stating the deficiencies, shall be issued to the applicant.

(a) Failure by the applicant to provide the requested information and documentation within thirty (30) days of receipt of the request shall cause the application for assistance to be denied.

(b) Denial of the application for assistance shall not prevent the petroleum storage tank owner or operator from reapplying if the requested documentation becomes available.

(3) If the applicant complies with the requirements of subsection (1) of this section, the UST Branch shall determine the eligibility of the applicant to receive reimbursement from either the FRA or PSTA, in accordance with Section 4 of this administrative regulation, and shall issue a written approval of the application for assistance.

(4) Reimbursement in accordance with an approved application for assistance shall be restricted to:

(a) Actions directed in writing by the UST Branch or Emergency Response Branch; and

(b) Initial and immediate response actions taken at a facility, prior to a written directive, and not declared an environmental emergency by the cabinet, and subject to the reimbursement provisions established in Section 3.13 of the UST PSTEAF Reimbursement Rates.

(5) If the petroleum storage tank owner or operator seeking reimbursement from the PSTEAF changes and the new petroleum storage tank owner or operator assumes responsibility for the compliance with 401 KAR Chapter 42, the new petroleum storage tank owner or operator shall submit an amended:

(a) UST Facility Registration, DWM 4225, incorporated by reference in 401 KAR 42:020, in accordance with 401 KAR 42:020, Section 2(4), indicating a change in petroleum storage tank owner or operator; and

(b) UST Application for Assistance for PSTEAF, DWM 4282, including all required attachments, within thirty (30) days of the transfer of the petroleum storage tank.

(6) To maintain eligibility for participation in and reimbursement from the PSTEAF, the petroleum storage tank owner or operator shall maintain compliance with the requirements of this administrative regulation.

Section 3. Contracts.

(1) A petroleum storage tank owner or operator shall obtain a contract from an eligible company or partnership to be eligible for reimbursement from the cabinet for the performance of corrective action or site check activities at a facility.

(2) In accordance with KRS 224.60-130(1)(a), an eligible company or partnership shall not require payment from an applicant in an amount greater than the reimbursable amount.

(3) The contract shall be executed prior to commencing corrective action or site check activities.

(4) If a contract is revised, a copy of the revised contract shall be submitted to the UST Branch within thirty (30) days of the revised contract execution.

(5) If a contract is terminated and a new contract is executed:

(a) The petroleum storage tank owner or operator approved for PSTEAF reimbursement shall submit a notarized UST Affidavit of Termination of PSTEAF Contract, DWM 4280, to the UST Branch; and

(b) A copy of the newly executed contract shall be submitted to the UST Branch within thirty (30) days of contract execution and prior to the commencing of corrective action or site check activities by the new eligible company or partnership.

Section 4. Account Placement.

(1) If participating in the FRA, a petroleum storage tank owner or operator shall be eligible to receive reimbursement for:

(a) Corrective action costs;

(b) Site check activities directed in writing by the UST Branch after September 13, 2006, that do not confirm contamination above applicable screening levels; and

(c) Third-party claims in accordance with Section 12 of this administrative regulation, incurred on or after April 9, 1990, if the petroleum storage tank owner or operator has:

Registered the petroleum storage tanks with the UST Branch, in accordance with 401 KAR 42:020, prior to the release requiring corrective action or site check activities;
Maintained UST system release detection as required by 401 KAR 42:020. A petroleum storage tank permanently or temporarily closed in accordance with 401 KAR 42:060, shall have been in compliance with UST system release detection requirements prior to the permanent or temporary closure of the system;
Maintained corrosion protection for the petroleum storage tank system in accordance with 401 KAR 42:020;
Maintained overfill and spill prevention for the petroleum storage tank system in accordance with 401 KAR 42:020 for those tanks in use after December 22, 1998;
Reported the release to the cabinet in accordance with KRS 224.1-400(11) and 401 KAR 42:060;
Performed initial abatement procedures as required by the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060; and
Submitted to the cabinet a UST Notice of Intent to Permanently Close Underground Storage Tank or Piping, DWM 4266, incorporated by reference in 401 KAR 42:060, if applicable.

(2) A petroleum storage tank owner or operator that is not eligible for participation in the FRA, shall be eligible for reimbursement from the (PSTA) for corrective action costs, incurred on or after April 9, 1990, or site check activities directed in writing by the UST Branch after September 13, 2006, that do not confirm contamination above applicable screening levels, if the petroleum storage tank owner or operator has registered the petroleum storage tanks with the UST Branch in accordance with 401 KAR 42:020.

Section 5. Entry Level.

(1) A petroleum storage tank owner's or operator's entry level shall be equal to the financial responsibility requirement, as established in KRS 224.60-120(1), and shall be deducted from the eligible reimbursement, except as established in subsection (3) of this section.

(2) An entry level shall be assessed upon confirmation of a release, constituting an occurrence, that requires corrective action for which the applicant is seeking reimbursement through the FRA and PSTA in accordance with subsection (1) of this section, regardless of a petroleum storage tank owner's participation in the Small Owner Tank Removal Account (SOTRA) in accordance with 401 KAR 42:330.

(3) The entry level shall not be deducted from the eligible reimbursement if the petroleum storage tank owner or operator performs:

(a) A site check directed by the UST Branch in accordance with 401 KAR 42:060, that does not confirm contamination requiring further action in accordance with 401 KAR Chapter 42;

(b) An initial and immediate response action in accordance with Section 2.2 of the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060;

(c) Optional soil removal outside the excavation zone during permanent closure in accordance with Section 4.16 of the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060;

(d) Transportation and disposal of excavated material contaminated above applicable screening levels within the excavation zone during permanent closure in accordance with 401 KAR 42:060; or

(e) Transportation and disposal of pit water contaminated above applicable screening levels within the excavation zone during permanent closure in accordance with the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060.

(4) Upon request by the petroleum storage tank owner or operator, the UST Branch shall reimburse, upon final payment, twenty-five (25) percent of the entry level if the petroleum storage tank owner or operator has:

(a) Completed corrective action at the facility within:

180 days from the discovery of the release, for soil contamination only; or
Twenty-four (24) months from the discovery of the release, for groundwater contamination only or both soil and groundwater contamination; and

(b) Been issued a no further action letter without additional measures being required for an occurrence associated with the submittal of a UST Application for Assistance for PSTEAF, DWM 4282.

(5) The applicable entry level shall be equal to the financial responsibility requirement as established in KRS 224.60-120(1), based on the number of tanks owned or operated by the petroleum storage tank owner or operator at the time of the occurrence associated with the submittal of an application for assistance.

Section 6. Newly Discovered UST Systems.

(1) A newly discovered UST system encountered at a facility during the performance of corrective action due to a release from a registered petroleum storage tank shall not affect a petroleum storage tank owner's or operator's account placement eligibility.

(2) The number of newly discovered tanks shall not increase the entry level of the petroleum storage tank owner or operator.

Section 7. Establishing the Reimbursable Amount for a Written Directive.

(1) The reimbursable amount established for the completion of a written directive issued by the UST Branch shall be based on:

(a) The formulated task rates established in Section 3.0 of the UST PSTEAF Reimbursement Rates; and

(b) For a specific task that does not have a formulated task rate in the UST PSTEAF Reimbursement Rates, a cost estimate shall be submitted by the owner or operator.

(2) The cost estimate shall include:

(a) A cost itemization to complete the individual task using those personnel and equipment rates established in Section 5.0 of the UST PSTEAF Reimbursement Rates applicable to individual components of the task;

(b) Three (3) bids from suppliers or manufacturers of corrective action equipment for individual equipment purchase or rental, exceeding $3,000, if applicable, containing a description of the equipment provided by the supplier or manufacturer; and

(3) The UST Branch shall establish the reimbursable amount in a written directive based on the formulated task rates established in the UST PSTEAF Reimbursement Rates and applicable, approved, cost estimates.

(4) The cabinet shall attach to the written directive:

(a) An itemization of the reimbursable amount; and

(b) A UST Claim Request for Directed Actions, DWM 4286.

(5) The issuance of a written directive by the UST Branch shall, contingent upon compliance with the provisions of Section 8 of this administrative regulation, constitute an obligation and guarantee of payment of the reimbursable amount identified within a written directive, in accordance with KRS 224.60-140(5).

(6) Upon compliance with Section 8 of this administrative regulation, the reimbursable amount established by the UST Branch in a written directive shall, as applicable and in accordance with the UST PSTEAF Reimbursement Rates, be adjusted as established in this subsection.

(a) The reimbursable amount for over-excavation identified in the written directive issued by the UST Branch is an estimate of the tonnage to be removed and shall be based on the volume and density of material in the proposed excavation area. The UST Branch shall convert cubic yardage to tons using a density of one and one-half (1.5) tons per cubic yard. The reimbursable amount shall be adjusted based on:

a. The soil tonnage verified through the submittal of weigh tickets; or

b. If soil is disposed of at a permitted disposal facility incapable of providing weigh tickets, a calculation of the tonnage associated with the actual area and depth of over-excavation, not to exceed the tonnage estimate identified in the written directive from the UST Branch; and

The actual quantity of water encountered during an over-excavation that is removed, transported, and disposed of, contingent upon analytical confirmation that contaminant levels of the water exceed the applicable groundwater screening levels, and as documented by disposal manifests and limited to one (1) pit volume.

(b) The reimbursable amount for a Mobile Dual-Phase Extraction Event, identified in a written directive issued by the UST Branch, shall be adjusted to include the amount of water disposed as documented by disposal manifests, or the amount of water verified by the eligible company or partnership as being treated on site.

(c) The reimbursable amount for operation and maintenance of an approved remediation system shall be adjusted to include the actual cost of utilities as documented by invoices submitted.

(d) If the UST Branch has not received and approved the UST Application for Assistance for PSTEAF, DWM 4282, prior to the issuance of the written directive, the reimbursable amount identified in the written directive issued shall not include the applicable formulated task rates for mobilization, per diem, and field equipment cost. The UST Branch shall add the applicable formulated task rates for mobilization, per diem, and field equipment to the reimbursable amount of the submitted claim, in accordance with the UST PSTEAF Reimbursement Rates, once an approved UST Application for Assistance for PSTEAF, DWM 4282, is submitted.

(e) If the UST Branch has not received a signed contract between the eligible applicant and the eligible company or partnership prior to the issuance of the written directive, the reimbursable amount identified in the written directive issued shall not include the applicable formulated task rates for mobilization, per diem, and field equipment cost. The UST Branch shall add the applicable formulated task rates for mobilization, per diem, and field equipment to the reimbursable amount of the submitted claim, in accordance with the UST PSTEAF Reimbursement Rates, once the requirements of Section 3 of this administrative regulation are met.

(f) If a written directive issued by the UST Branch cannot be complied with to the extent necessary to achieve a technically complete determination by the UST Branch, in accordance with 401 KAR 42:060, for reasons beyond the control of the applicant, or eligible company or partnership, the previously approved reimbursable amount established in the written directive shall, unless addressed in the written directive, be adjusted by the UST Branch, with reference to the UST PSTEAF Reimbursement Rates and the applicable, approved cost estimate, to deduct the cost of actions not completed.

(g) If the UST Branch rescinds an issued written directive prior to the completion of the entire scope of work identified in the written directive, the previously approved reimbursement amount shall be adjusted to reflect the cost of actions completed, with reference to the UST PSTEAF Reimbursement Rates and the approved cost estimate, if applicable.

(7) Reimbursement for an individual corrective action equipment purchase or rental shall not include markup and shall be limited to:

(a) The original purchase price provided by the supplier or manufacturer, including applicable sales tax, if purchased; or

(b) Rental costs not exceeding the purchase price provided by the supplier or manufacturer, if rented.

(8) The UST Branch shall have final authority to determine all reimbursable actions including site characterization and corrective action technologies in accordance with 401 KAR 42:060.

Section 8. Reimbursement for a Written Directive.

(1) Reimbursement for a written directive shall be made after:

(a) The submittal and approval of a UST Application for Assistance for PSTEAF, DWM 4282, in accordance with Section 2 of this administrative regulation;

(b) The UST Claim Request for Directed Actions, DWM 4286, which shall include a payment verification affidavit as required by KRS 224.60-140(18), with the written directive that has been completed, signed, and submitted to the UST Branch;

(c) The submittal of a UST Payment Waiver, DWM 4289, executed by each affected vendor or subcontractor, as applicable, in accordance with KRS 224.60-140(18);

(d) The submittal of weigh tickets and invoices documenting the actual cost of items that do not have a formulated task rate established in the UST PSTEAF Reimbursement Rates or other required backup documentation as indicated in the written directive;

(e) The technical report submitted in response to the written directive once determined by the UST Branch to be technically complete in accordance with the written directive and 401 KAR 42:060; and

(f) Payment has been received for all applicable annual fees in accordance with KRS 224.60-150 and 401 KAR 42:020, Section 2.

(2) Reimbursement shall be contingent upon the contracted eligible company or partnership complying with the requirements established in accordance with Section 19 of this administrative regulation.

(3) Reimbursement shall be contingent upon a certified laboratory performing the required analysis in accordance with Section 20 of this administrative regulation.

(4) If the contract with the eligible company or partnership designated on a written directive is terminated prior to the commencement of reimbursable activities in response to the written directive, the obligation and guarantee of payment of the reimbursable amount shall be void.

(5) The information completed by the UST Branch on the UST Claim Request for Directed Actions, DWM 4286, attached to the written directive, shall not be modified by the applicant or the eligible company or partnership designated on the written directive.

(6) If the applicant fails to correct a claim-related deficiency or to supply additional claim information, within thirty (30) days of written notice from the UST Branch, that portion of the claim shall be denied.

(7) The UST Branch shall issue a determination in accordance with KRS 224.60-140(7) as to whether or not the costs submitted in the claim are eligible for reimbursement.

(8) All claims shall be submitted within two (2) years after issuance of a no further action letter by the UST Branch, in accordance with KRS 224.60-130(1)(n).

(9) If a request to re-evaluate the reimbursable amount, established in accordance with Section 7 of this administrative regulation, is submitted in accordance with Section 14 of this administrative regulation, and a not-to-exceed amount is warranted, final reimbursement shall be made on a time and material basis, which shall require:

(a) An itemization of the eligible company or partnership invoice with supporting documentation;

(b) Itemized subcontractor and vendor invoices with supporting documentation; and

(c) Time sheets to support all personnel time billed for the completion of the scope of work identified in the written directive.

Section 9. Reimbursement for Actions Not Directed in Writing.

(1) Reimbursement shall be made for the following actions in accordance with the applicable formulated task rates established in the UST PSTEAF Reimbursement Rates:

(a) Optional Soil Removal Outside the Excavation Zone at permanent closure, in accordance with Section 4.16 of the UST Corrective Action Manual incorporated by reference in 401 KAR 42:060;

(b) Transportation and disposal, treatment, or recycling, at a permitted facility, of material or water contaminated above applicable screening levels, removed from within the excavation zone, at permanent closure, in accordance with the UST Corrective Action Manual incorporated by reference in 401 KAR 42:060;

(c) Initial and immediate response actions, identified in Section 3.13 of the UST PSTEAF Reimbursement Rates, taken at a facility in accordance with Section 2.0 of the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060, prior to a written directive from the UST Branch or prior to the date of a declared environmental emergency by the cabinet;

(d) Transportation and disposal of drums containing purged water or soil cuttings associated with actions directed in accordance with 401 KAR 42:060;

(e) Encroachment permit renewals necessary to complete directed actions; and

(f) Unscheduled maintenance of a remediation system installed in accordance with approved corrective action activities. Pre-approval shall be required for one (1) unscheduled maintenance event that will exceed $3,000 for material and equipment.

(2) Reimbursement shall be made after:

(a) The approval of a UST Application for Assistance for PSTEAF, DWM 4282, in accordance with Section 2 of this administrative regulation;

(b) The UST Claim Request for Actions Not Directed, DWM 4285, which shall include the payment verification affidavit as required by KRS 224.60-140(18), that has been completed, signed, and submitted to the UST Branch;

(c) The submittal of a UST Payment Waiver, DWM 4289, executed by each affected vendor or subcontractor, as applicable, in accordance with KRS 224.60-140(18);

(d) The submittal of required backup documentation as identified on the instruction sheet associated with each worksheet;

(e) Payment has been received for all applicable annual fees in accordance with KRS 224.60-150 and 401 KAR 42:020, Section 2;

(f) The UST Optional Soil Removal at Permanent Closure Reimbursement Worksheet, DWM 4288, has been completed and submitted to the UST Branch for optional soil removal outside of the excavation zone at permanent closure in accordance with 401 KAR 42:060 for actions listed in subsection (1)(a) of this section, if applicable;

(g) The UST Miscellaneous Tasks Reimbursement Worksheet, DWM 4287, has been completed and submitted to the UST Branch for actions listed in subsection (1)(b), (c), (d), (e), or (f) of this section, if applicable; and

(h) The technical report submitted in accordance to subsections (1)(a), (b), or (c) of this section has been deemed technically complete, if applicable, in accordance with 401 KAR Chapter 42.

(3) Reimbursement shall be contingent upon the contracted eligible company or partnership complying with the requirements established in accordance with Section 19 of this administrative regulation.

(4) Reimbursement shall be contingent upon a certified laboratory performing the required analysis in accordance with Section 20 of this administrative regulation.

(5) The UST Branch may require additional information and documentation, if necessary to determine that a request for reimbursement is reasonable and necessary.

(6) If the applicant fails to correct a claim-related deficiency, or to supply additional claim information, within thirty (30) days of written notice from the cabinet, that portion of the claim shall be denied.

(7) The UST Branch shall issue a determination, in accordance with KRS 224.60-140(7), as to the eligibility for reimbursement of the costs submitted in the claim.

(8) All claims shall be submitted within two (2) years after issuance of a no further action letter by the UST Branch in accordance with KRS 224.60-130(1)(n).

Section 10. Facility Restoration.

(1) The UST Branch shall issue a written directive in accordance with Section 7 of this administrative regulation, once the applicant provides the information required by Section 5.9.2 in the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060.

(2) If the UST Branch does not issue a written directive in accordance with subsection (1) of this section, the applicant may submit an obligation request to the cabinet, with the information required by Section 5.9.2 of the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060, for the completion of facility restoration actions.

(3) Reimbursement for facility restoration activities shall be made in accordance with Section 8 of this administrative regulation.

Section 11. Payment for Actions Directed by the Environmental Response Team. Payment for actions directed and documented by the Environmental Response Team during a declared environmental emergency shall not be governed by this administrative regulation and shall be made in accordance with KRS Chapter 224.

Section 12. Third-Party Claims.

(1) An eligible third-party claim shall be limited to bodily injury and property damage, asserted against an owner or operator as a result of sudden or non-sudden accidental releases into the environment from a petroleum storage tank at a facility eligible for participation in the FRA.

(2) A petroleum storage tank owner or operator shall be eligible to apply for reimbursement or payment for a third-party claim if:

(a) The cabinet has approved an application for assistance in accordance with Section 2(3) of this administrative regulation; and

(b) The owner or operator has maintained compliance with the eligibility requirements for participation in the FRA in effect at the time the application for assistance was approved.

(3) If a petroleum storage tank owner or operator receives a written notice from the cabinet indicating noncompliance with the eligibility of the FRA in accordance with Section 4 of this administrative regulation, the petroleum storage tank owner or operator shall only be eligible for reimbursement of the costs of third-party claims brought against the petroleum storage tank owner or operator within sixty (60) days from the date of the written notice.

(4) To assert a claim for payment or reimbursement of a third-party claim, an eligible owner or operator shall:

(a) Submit a new UST Application for Assistance for PSTEAF, DWM 4282; and

(b) Notify the cabinet of the assertion of the third-party claim within twenty-one (21) days of service of process of an action against the owner or operator by the third party, or the receipt of an assertion of a claim in writing by a third party.

(5) A third-party claim shall be paid on the basis of:

(a) A final and enforceable judgment; or

(b) A written agreement between a third party and the owner or operator, upon review and concurrence by the cabinet.

(6)

(a) A settlement of a third-party claim shall not be made by an owner or operator without the prior approval of the cabinet.

(b) The cabinet shall not pay a third-party judgment, or reimburse an owner or operator for payment of the judgment, in an amount exceeding a settlement offer rejected by the owner or operator if the settlement offer was:

Not submitted to the cabinet for consideration; or
Previously approved by the cabinet.

(7) Claim payment shall be limited to actual, documented, bodily injury and property damage caused by the release of petroleum.

(a) A claim for bodily injury and property damage shall be paid to the extent that the damages are not addressed by the performance of corrective action.

(b)

The aggregate amount of payment of all third-party claims shall not exceed $1,000,000 per occurrence.
Claim requests shall be submitted on the UST Third-Party Claim, DWM 4292.

(c) The cabinet shall acquire by subrogation the right of the third-party to recover, from the person responsible or liable for the release, the amount of damages paid to the third-party.

(d) Reimbursement for third-party claims shall be made in accordance with Section 21 of this administrative regulation.

(e) Payment of a third-party claim shall be made after approval by the cabinet.

Section 13. Eligible and Ineligible Costs.

(1) Eligible costs for regulated petroleum storage tanks containing motor fuel shall include:

(a) Initial and immediate response actions directed by or approved by the UST Branch or Emergency Response Branch in accordance with Section 2.0 of the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060;

(b) Site checks at a facility, in accordance with a written directive issued after September 13, 2006 by the UST Branch;

(c) Tank and line tightness testing as requested in writing by the UST Branch in conjunction with site check, site investigation, or corrective action activities for a facility;

(d) Performance of "corrective action" as defined by KRS 224.60-115(4), due to a release of motor fuel from a regulated petroleum storage tank system, upon written direction by the UST Branch;

(e) Transportation, disposal, or treatment at a permitted facility, and replacement of excavated material, contaminated above applicable screening levels:

Within the excavation zone, excluding the tank volume, in accordance with Section 4.0 of the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060; or
Outside the excavation zone, in accordance with Section 4.16 of the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060;

(f) Transportation and disposal, treatment, or recycling, at a permitted facility, of free product or water, contaminated above screening levels encountered:

Within the excavation zone, during activities in accordance with Section 4.0 of the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060; and
During activities in accordance with Section 4.16 of the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060;

(g) A fifteen (15) percent total markup above the invoice associated with a task for which there is not a formulated task rate established in the UST PSTEAF Reimbursement Rates;

(h) Surface material to replace removed or damaged areas directly associated with corrective action activities, upon written direction by the UST Branch; and

(i) Other costs, associated with corrective action activities, as required in a written directive issued by the UST Branch for the facility.

(2) Ineligible costs for regulated petroleum storage tanks containing motor fuel shall include:

(a) Except as established in subsection (1) of this section, costs incurred prior to written approval by the UST Branch;

(b) Costs incurred for the purpose of complying with the requirements of 401 KAR 42:020;

(d) A cost associated with a release from a storage tank exempt from requirements of 401 KAR Chapter 42, as established in KRS 224.60;

(e) A cost or cost recovery for governmental emergency services;

(f) A cost of a party employed to act as a surrogate or stand-in for the owner or operator of the facility;

(g) Preparation of documentation, cost estimates, written agreements, contracts, or client invoices that will be submitted to the UST Branch for reimbursement purposes;

(h) Except as established in 401 KAR 42:330, costs related to the removal or actions incidental to the removal of a tank system;

(i) Road mileage beyond 1,000 miles round trip;

(j) Reimbursement for work or a portion of work, performed at a facility if the results of laboratory analysis do not confirm the need for corrective action, or for actions to achieve contaminant concentrations less than those directed by the cabinet, except for investigatory or corrective actions directed from the UST Branch in writing;

(k) Work performed that is not in compliance with safety codes;

(l) Free product recovery from monitoring wells or borings during corrective action activities, unless directed in writing by the UST Branch;

(m) Costs incurred to replace a monitoring well destroyed, damaged, or that cannot be accessed or located due to actions within the control of the applicant;

(n) Costs incurred for the purpose of compliance with permit conditions for permitted soil treatment facilities;

(o) Costs incurred for the removal, transportation and disposal, recycling, or treatment of free product from within the excavation zone of a UST system, that is not permanently closed, for which contamination above applicable screening levels outside the excavation zone has not been confirmed;

(p) Costs relating to compliance with a local program having corrective action standards more stringent than those directed by the cabinet;

(q) A laboratory "rush" fee, unless directed by the UST Branch;

(r) Costs of resampling and laboratory tests performed as a result of an operational or methodology mistake by the analytical laboratory, or costs for an analytical laboratory to become certified or accredited in accordance with the requirements of KRS 224.60-130(1)(a) and Section 20 of this administrative regulation;

(s) Laboratory costs incurred after the laboratory certification eligibility expiration date;

(t) Costs incurred for additional assessment or corrective action plan modification necessary as a result of delayed implementation of the corrective action plan, beyond the deadline established in writing by the UST Branch;

(u) Costs incurred as a result of delayed implementation of a written directive, beyond twelve (12) months from the issuance date of the deadline established in writing by the UST Branch;

(v) The portion of a lease or rental cost for capital equipment that exceeds the purchase price of the equipment;

(w) Equipment replacement costs covered by equipment warranty;

(x) Payment of the owner's or operator's personnel for overtime or for staff time in planning or implementing "corrective action" as defined by KRS 224.60-115(4);

(y) Out-of-state travel expense, including air fare;

(z) Contractor markup expense for a normally expected overhead item or in-stock material;

(aa) Contractor markup expense for personnel costs;

(bb) Markup for pass-through costs for utilities and employee expense accounts;

(cc) Fifteen (15) percent markup for the costs of corrective action for an eligible company or partnership that employs a subcontractor, a subsidiary company, or other vendor, that is affiliated with the eligible company or partnership or a principal of the eligible company or partnership;

(dd) Except as directed by or approved by the cabinet during an emergency response in accordance with subsection (1)(a) of this section, overtime for eligible company or partnership personnel exceeding forty (40) hours, individually, during a standard workweek;

(ee) Actions resulting from contractor error or negligence;

(ff) A contractor surcharge implemented because the owner or operator failed to act in a timely fashion;

(gg) Costs covered by the contractor's liability insurance;

(hh) Costs covered by insurance payable to the owner or operator;

(ii) Interest on an overdue account or loan;

(jj) Loss of business, income, or profits;

(kk) An attorney fee related to:

Judicial or administrative litigation;
Consultation on administrative regulations;
Preparation or submittal of documentation related to the reimbursement process; or
Other legal services not integral to the performance of corrective action;

(ll) Corrective action costs incurred after the eligible company or partnership eligibility expiration date;

(mm) Corrective action activities performed subsequent to the issuance of a no further action letter, unless directed in writing by the UST Branch;

(nn) Facility or aesthetic improvements, including costs to upgrade the facility, except for approved surface replacement in accordance with Section 10 of this administrative regulation;

(oo) Decreased property values for the facility;

(pp) Costs of surface material replacement for areas not removed or damaged as part of corrective action; and

(qq) Unreasonable or unnecessary costs and expenses for corrective action, in accordance with KRS 224.60-140(5).

Section 14. Re-Evaluation of a Reimbursable Amount.

(1) If the applicant determines that the scope of work or portion thereof, required in a written directive cannot be completed without exceeding the reimbursable amount established, a request for re-evaluation of the reimbursable amount may be submitted to the UST Branch. The request for re-evaluation shall include:

(a) The UST Re-Evaluation of a Reimbursable Amount, DWM 4291 form;

(b) If applicable, three (3) current written estimates from subcontractors in the area in which the facility is located, for services or materials not provided by the contracting company or partnership;

(c) If applicable, a copy of any previously approved cost estimate that will be used to perform any portion of the directive; and

(d) An itemized cost breakdown of the eligible company's or partnership's time and materials to be used for the completion of the written directive. The personnel rates established in Section 5.2 of the UST PSTEAF Reimbursement Rates shall be used for the contracted eligible company employee rate charges.

(2)

(a) The UST Branch shall review the re-evaluation request and determine if a new reimbursable amount shall be established.

(b) The review shall be based upon the reasonable and necessary costs for the scope of work.

(c) The UST Branch shall include a fifteen (15) percent markup for the contracted eligible company in addition to the total requested amount. The fifteen (15) percent markup shall not apply to personnel rates for the contracted eligible company, which shall be as established in Section 3.0 of the UST PSTEAF Reimbursement Rates.

(3) If the amount established in accordance with subsection (2) of this section:

(a) Exceeds the initial reimbursable amount established, the UST Branch shall establish a new reimbursable amount; or

(b) Is less than or equal to the initial reimbursable amount established, the UST Branch shall deny the request for re-evaluation.

(4)

(a) If the establishment of a new reimbursable amount is warranted, final reimbursement shall be determined by the UST Branch based upon documentation received and shall include a fifteen (15) percent markup, except for the contracted eligible company personnel rates.

(b) The appropriate supporting documentation shall be submitted to the UST Branch, in accordance with Section 8 of this administrative regulation, as an attachment to the claim.

Section 15. Reconsideration for a Claim.

(1) An applicant may request a reconsideration of a denial of a claim request, or portion thereof. Reconsideration shall be requested by submitting a completed UST Reconsideration Request, DWM 4290, within thirty (30) days from the date the person has notice, or could reasonably have had notice, of the denial, which shall include:

(a) A statement of the grounds for reconsideration;

(b) Supporting documents; and

(2) The cabinet shall review the previous claim decision and shall revise the claim if the evidence accompanying the request warrants revision by demonstrating clear error or through submittal of additional documentation.

(3) The cabinet shall not reconsider a claim more than once without new supporting documentation.

Section 16. Signatures.

(1) Application and reimbursement forms required by this administrative regulation for which a signature is required shall be signed by:

(a) An eligible petroleum storage tank owner or operator;

(b) Legally authorized representative; or

(2) A claim form or application for assistance shall also be signed by an authorized representative of the eligible company or partnership, unless corrective action commenced prior to July 1, 1999.

(3) The owner or operator shall submit documentary evidence to substantiate the legality of an authorized representative's power of agency or power of attorney.

Section 17. Financial Audits.

(1) The cabinet may, in accordance with subsection (2) of this section, conduct a financial audit if the entity is referenced in KRS 224.60-130(1)(k).

(2) The cabinet shall have the authority to audit an entity if:

(a) A required document, or other document relevant to a cabinet determination, submitted to the cabinet appears to be fraudulent; or

(b) There is evidence that the entity has violated a federal or state law or a requirement of KAR Title 401 related to its actions.

(3) Upon written request by the cabinet, records, as established in KRS 224.60-130(l)(k), shall be provided to the cabinet during a financial audit.

(4) The cabinet shall notify the subject of the audit, in writing, of the date that the audit is scheduled to begin. The notice shall be sent at least ten (10) working days before the scheduled start of the audit or a rescheduled audit.

(5)

(a) If the petroleum storage tank owner or operator fails to maintain records as required by KRS 224.60-130(1)(k), the cabinet shall recover any monies reimbursed to the owner or operator for the cost of corrective action at the facility to which the missing documents relate.

(b) If an eligible company or partnership or subcontractor fails to maintain records as required by KRS 224.60-130(1)(k), the cabinet shall recover any monies paid to the entity pursuant to a contract or agreement to perform a corrective action service at that facility, for which costs have been reimbursed by the cabinet.

(6) If the audit by the cabinet finds an improper, irregular, or illegal use of any monies received directly or indirectly from the cabinet, or that the monies were obtained by fraud or misrepresentation, the cabinet shall report the results of the audit to the proper authorities for civil and criminal investigation.

(7)

(a) Reimbursements to an owner or operator that fails to cooperate with an audit shall be grounds for recovery by the cabinet.

(b) Failure by an entity, that contracts or subcontracts for corrective action services at a facility, to cooperate with an audit shall result in the recovery of funds paid by the cabinet for corrective action services at that facility.

Section 18. Account Balance.

(1) The unobligated balance of the FRA shall not be less than $1,000,000, to ensure a reserve balance adequate to comply with federal financial responsibility requirements for participants in the account.

(2)

(a) If the unobligated balance of the FRA is $1,000,000, or the reimbursement of additional claims would cause the unobligated balance of the fund to be less than $1,000,000, the cabinet shall immediately suspend claim reimbursements and the approval of applications until the unobligated balance is greater than $1,000,000.

(b) If the suspension is lifted, the priority of reimbursement for claims submitted related to an approved application for assistance shall be determined by the date of the claim submittal.

(c) During the suspension, all written directives from the cabinet shall be issued in accordance with Section 21 of this administrative regulation.

Section 19. Eligible Companies and Partnerships.

(1) To be eligible to contract with a petroleum storage tank owner or operator seeking reimbursement from the cabinet, a company or partnership shall:

(a) Employ or contract with a professional engineer or a professional geologist;

(b) Be authorized to conduct business in the Commonwealth of Kentucky and remain active, and in good standing, with the Kentucky Secretary of State;

(c) Hold, in good standing, all licenses, permits, training certifications, or other authority required to perform corrective action services, or otherwise conduct business, in Kentucky;

(d)

Maintain, at a minimum, general and professional liability insurance and pollution or property coverage in the amount of $1,000,000; and
Add the cabinet as an additional interest on the policy to be notified, by the insurance company, if there is a lapse of insurance coverage;

(e) Be approved in writing by the cabinet as eligible to contract with a petroleum storage tank owner or operator seeking reimbursement from the cabinet to perform corrective action services;

(f) Submit the UST Application for PSTEAF Eligible Companies or Partnerships, DWM 4284; and

(g) Sign an application or claim payment request in addition to the eligible owner or operator. The eligible company or partnership shall certify that:

The information provided in the claim is true and correct; and
Each claim payment cost is reasonable, necessary, and was performed in compliance with 401 KAR 42:060 and this administrative regulation.

(2) Application requirements for a company or partnership eligibility shall include submittal of:

(a) A completed UST Application for PSTEAF Eligible Companies or Partnerships, DWM 4284;

(b) Verification of the employment or contracting of a professional engineer or a professional geologist; and

(3) The cabinet shall inspect the records and business premises of the applicant if necessary to verify information in the application or to assist in the evaluation of the applicant's capabilities.

(4) The cabinet shall require additional information and documentation if necessary to verify information in the application.

(5) An application for eligible company or partnership status shall be denied if the applicant:

(a) Fails to provide the information required in the application or in this administrative regulation;

(b) Does not comply with the requirements of subsection (1) of this section;

(c) Fails to allow cabinet staff to access company records for audit purposes in accordance with Section 17 of this administrative regulation;

(d) Fails to provide additional information and documentation requested by the cabinet to verify that the requirements of this administrative regulation have been met;

(e) Provides false or misleading information in the application; or

(f) Fails to maintain general and professional liability insurance and pollution or property coverage.

(6) An applicant whose application for company or partnership eligibility is denied may appeal the determination. Appeal shall be made by requesting a reconsideration in accordance with Section 15 of this administrative regulation.

(7) The cabinet shall issue a letter of eligibility to a qualifying applicant.

(8) An amended application for a company or partnership shall be submitted if:

(a) The information in the UST Application for PSTEAF Eligible Companies or Partnerships, DWM 4284, has changed; or

(b) Requested by the cabinet to submit an updated application upon the receipt of information indicating a change to application information.

(9) Eligibility and renewal procedures shall be as established in paragraphs (a) through (d) of this subsection.

(a) The cabinet shall issue a letter of eligibility to each company or partnership that successfully complies with this administrative regulation.

(b) Eligibility shall be renewed two (2) years from the date of the letter of eligibility. The company or partnership shall be responsible for renewing eligibility prior to expiration.

(c) An application for eligibility renewal shall be submitted to the cabinet on the UST Application for PSTEAF Eligible Companies or Partnerships, DWM 4284.

(d) The failure of the company or partnership, under contract with an owner or operator, to renew eligibility shall render corrective action costs incurred after the expiration date ineligible for reimbursement.

(10) Revocation of eligibility procedures shall be as established in paragraphs (a) and (b) of this subsection.

(a) A letter of eligibility issued in accordance with this administrative regulation shall be revoked if the eligible company or partnership:

No longer complies with the eligibility requirements established in subsection (1) of this section;
Employs, or has a business relationship with, an employee or agent that knowingly submits materially false information or documentation, or a false payment request, to an owner, operator, or the cabinet;
Has a current officer, director, or principal of that company, that has been convicted of, or found liable for, civil or criminal fraud or an environmental crime;
Has failed to comply with the terms established in Section 17 of this administrative regulation; or
Obtained eligibility through fraud or misrepresentation.

(b) The cabinet shall issue a letter by certified mail notifying a noncompliant company or partnership that its eligibility has been revoked by action of the cabinet.

Section 20. Laboratory Certification.

(1) Applicability and requirements for PSTEAF eligibility criteria for laboratory certification shall be as established in this section.

(a) Owners or operators seeking reimbursement from the PSTEAF for analytical testing shall utilize a laboratory certified in accordance with this section.

(b) This section shall apply to analytical testing performed on or after October 1, 1999.

(c) Owners or operators of a petroleum storage tank that fail to comply with this requirement shall not be reimbursed by the cabinet for costs related to analytical testing.

(2) Certification requirements for laboratory certification shall be as established in paragraphs (a) and (b) of this subsection.

(a) A laboratory shall demonstrate current accreditation by submitting documentation of certification by:

The American Association for Laboratory Accreditation; or
A state approved to accredit environmental laboratories, in accordance with National Environmental Laboratory Accreditation Program requirements and standards.

(b) A laboratory seeking certification from the cabinet shall submit:

A completed UST Application for Laboratory Certification, DWM 4283; and
Proof of accreditation as established in paragraph (a) of this subsection.

(3) The cabinet shall reimburse a petroleum storage tank owner or operator for the cost of a laboratory analysis if the:

(a) Analysis is conducted in accordance with the established parameters and methods;

(b) Analysis is required by written directive by the cabinet and performed in accordance with 401 KAR Chapter 42; and

(4) Requirements for maintaining laboratory certification shall be as established in paragraphs (a) through (c) of this subsection.

(a) A certified laboratory shall maintain accreditation by the American Association for Laboratory Accreditation or the National Environmental Laboratory Accreditation Program for the duration of certification.

(b) If a certified laboratory's accreditation, in accordance with subsection (1) of this section, is renewed, or otherwise changes in status, the certified laboratory shall submit updated documentation of the accreditation status to the cabinet within thirty (30) days.

(c) If a certified laboratory fails to maintain certification in accordance with this subsection, the laboratory shall be required to submit a UST Application for Laboratory Certification, DWM 4283, in accordance with subsection (2) of this section.

(5)

(a) The cabinet shall revoke a certification if the applicant:

Obtains the certification through fraud or misrepresentation; or
Knowingly or intentionally submits materially false information to owners, operators, contractors, or the cabinet.

(b) The cabinet shall, within ten (10) days of a revocation determination, notify the laboratory, in writing, of the revocation of certification.

Section 21. Facility Ranking System.

(1) Upon a determination of insufficient PSTEAF funding to initiate corrective action at facilities, facilities shall be ranked according to the extent of damage to the environment, the potential threat to human health, and the financial ability of the petroleum storage tank owner or operator to perform corrective action, in order to prioritize the completion of corrective action and the subsequent reimbursement of eligible costs.

(2) Actions directed and documented by the Environmental Response Team, upon the cabinet's declaration of an environmental emergency, shall take priority over the ranking system in this administrative regulation. Once the Environmental Response Team terminates the emergency phase, subsequent actions at the facility shall be prioritized in accordance with this administrative regulation.

(3) Actions performed by, or on behalf of, the cabinet in accordance with KRS 224.60-135(2) shall not be subject to the ranking system.

(4) Facilities performing site checks or initial abatement, at the written direction of the cabinet in accordance with the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060, shall not be subject to the ranking system.

(5) Those facilities for which the owner or operator has verified, through submittal of a notarized UST Affidavit of Waiver for PSTEAF Reimbursement, DWM 4281, that reimbursement from the PSTEAF will not be sought shall not be subject to the ranking system.

(6)

(a) Facilities eligible to participate in the FRA and the PSTA shall be ranked for purposes of addressing the completion of corrective action.

Facilities with releases for which the cabinet has not issued a no further action letter shall be a Rank 1, if:

a. Contamination is confirmed within domestic-use wells, domestic-use springs, or domestic-use cisterns exceeding the maximum contaminant levels established in 401 KAR Chapter 8; or

b. "Vapor intrusion", as defined by 401 KAR 42:005, Section 1(65), is confirmed in occupied residential or commercial buildings.

All other facilities with releases for which the cabinet has not issued a no further action letter shall be a Rank 2.

(b) Facilities shall be further categorized within their respective rank based on the financial ability of the owner or operator.

Facilities shall be placed in Category 1 within their respective rank if:

a. The owner's or operator's average total income for the last five (5) years is less than or equal to $100,000; or

b. The owner or operator is registered and recognized by the federal government as a tax-exempt nonprofit organization.

Facilities shall be placed in Category 2 within their respective rank if the owner's or operator's average total income for the last five (5) years is more than $100,000.
The cabinet shall utilize the information provided in an owner's or operator's application for assistance for PSTEAF, for purposes of determining financial ability to perform corrective action.

(c) The cabinet shall be provided access to a facility for the purpose of verifying classification. Refusal by an owner or operator to allow access requested by the cabinet shall render the facility ineligible for reimbursement from the cabinet.

(d) If the cabinet receives misrepresentations or otherwise inaccurate information, or receives new information related to specific facilities, it shall amend facility rankings and categories in accordance with this subsection of this section.

(e) Issuance of written directives shall be prioritized for facilities within the FRA and the PSTA, respectively, according to rank and category, in the following order:

Rank 1, Category 1;
Rank 1, Category 2;
Rank 2, Category 1; and
Rank 2, Category 2.

(f) The cabinet shall consider the current legislatively enacted budget and available funding in making the allocations established in subsection (1) of this section.

(g) The cabinet shall notify an owner or operator of the decision to suspend written directives for rankings within either the PSTA or the FRA, upon a determination of insufficient PSTEAF funding to initiate corrective action in all rankings.

Section 22. Extensions.

(1) The owner or operator of a UST system may request an extension to a deadline established by this administrative regulation or established by the cabinet in a written directive.

(2) The extension request shall be received by the UST Branch of the Division of Waste Management prior to the deadline.

(3) The cabinet may grant an extension, if an extension would be equitable, does not impact the PSTEAF's financial viability, and would not have a detrimental impact on human health or the environment.

(4) The cabinet shall not grant an extension for any requirements established in Section 12 or 15 of this administrative regulation.

Section 23. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "UST Affidavit of Termination of PSTEAF Contract", DWM 4280, September 2019;

(b) "UST Affidavit of Waiver for PSTEAF Reimbursement", DWM 4281, September 2019;

(d) "UST Application for Laboratory Certification", DWM 4283, August 2023;

(e) "UST Application for PSTEAF Eligible Companies or Partnerships", DWM 4284, September 2019;

(f) "UST Claim Request for Actions Not Directed", DWM 4285, September 2019;

(g) "UST Claim Request for Directed Actions", DWM 4286, September 2019;

(h) "UST Miscellaneous Tasks Reimbursement Worksheet", DWM 4287, August 2023;

(i) "UST Optional Soil Removal at Permanent Closure Reimbursement Worksheet", DWM 4288, August 2023;

(j) "UST Payment Waiver", DWM 4289, September 2019;

(k) "UST Reconsideration Request", DWM 4290, September 2019;

(l) "UST Re-Evaluation of a Reimbursable Amount", DWM 4291, August 2023;

(m) "UST Third-Party Claim", DWM 4292, September 2019; and

(n) "UST PSTEAF Reimbursement Rates", August 2023.

(3) This material may also be obtained at the Division of Waste Management's Web site at eec.ky.gov/environmental-protection/waste.

History

RELATES TO: KRS 61.878(1)(c), 224.1-400, 224.1-405, 224.10-410, 224.10-420, 224.10-430, 224.10-440, 224.10-470, 224.60-110, 224.60-120, 224.60-130, 224.60-135, 224.60-140, 224.60-150, 40 C.F.R. 280, Subpart H
STATUTORY AUTHORITY: KRS 224.10-100(28), 224.60-120(6), 224.60-130(1)(a) - (e)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.60-130(1)(a) through (e) requires the establishment of the procedures to administer the Petroleum Storage Tank Environmental Assurance Fund (PSTEAF). KRS 224.10-100(28) authorizes the cabinet to promulgate administrative regulations not inconsistent with the provisions of law administered by the cabinet. KRS 224.60-120(6) requires the cabinet to establish administrative regulations to implement the requirements for financial responsibility of petroleum storage tank owners or operators. This administrative regulation establishes procedures to administer the PSTEAF, payment for third-party claims, financial audits, eligible company and partnership certification, laboratory certification, and facility ranking.
History: 401 KAR 042:250. 32 Ky.R. 2207; 33 Ky.R. 471; 745; eff. 9-13-2006; 37 Ky.R. 2715; 38 Ky.R. 275; 530; eff. 10-6-2011; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Crt eff. 10-9-2018; 45 Ky.R. 1384, 2378, 2644; eff. 4-5-2019; TAm eff. 5-7-2019; TAm eff. 9-25-2019; 50 Ky.R. 735, 1490; eff. 2-22-2024.

401 KAR 42:330 Small Owners Tank Removal Account {#sec-401-kar-42-330 omnilex-key=us-ky-regs-official--title-401--401 KAR 42:330}

Section 1. Eligibility.

(1) To demonstrate eligibility, an owner shall submit a completed UST Application for Assistance for SOTRA, DWM 4293. An owner shall be eligible for reimbursement from this account if:

(a) The petroleum storage tank owner complies with the financial eligibility criteria of $100,000 total income, or less, averaged over the last five (5) years as documented by:

The applicant's signed federal income tax returns for the last five (5) years, with the exception of Non-Profit Public Service Corporations, eligible governmental bodies, and all other Non-Profit entities, which shall provide tax exemption documentation and budgets for the last five (5) years; or
If the applicant is not required to file federal income tax returns, the applicant shall submit in lieu of federal income tax returns:

a. Budget and tax exemption documentation; or

b. Other financial statements sufficient to document income;

(b) The tanks are located at a facility that is or was involved in the storage of motor fuel;

(c) The tanks are registered with the Division of Waste Management by the owner seeking reimbursement from SOTRA pursuant to KRS 224.60-105 and 401 KAR 42:020;

(d) The owner certifies that:

Permanently closed tanks shall not be replaced or upgraded; and
All known tanks at the facility shall be permanently closed; and

(e) The owner has owned the tanks for more than one (1) year prior to the date of the application for reimbursement from this account.

(2) A newly discovered underground storage tank (UST) system shall not affect the eligibility of an owner.

(3) A tank shall not need to be in use prior to its permanent closure.

(4) An owner shall submit to the cabinet a UST Notice of Intent to Permanently Close Underground Storage Tank System, DWM 4266, incorporated by reference in 401 KAR 42:060.

(5) Federally owned facilities shall not be eligible for reimbursement from SOTRA in accordance with KRS 224.60-115(16).

Section 2. Account Use.

(1) Funds in this account shall be used to reimburse eligible petroleum storage tank owners for those reasonable and necessary costs incurred through performance of permanent closure in accordance with 401 KAR 42:060.

(2) The use of this account shall be limited as established in KRS 224.60-130(1)(j).

(3)

(a) The owner of a facility shall:

Be eligible for reimbursement of the cost of permanent closure; and
Not be eligible for reimbursement of the corrective action cost from this account.

(b) If corrective action is required, eligible reimbursement shall be made in accordance with 401 KAR 42:250.

(4)

(a) If expenditures from this account exceed $3,000,000 during a fiscal year, the cabinet shall suspend further reimbursements for that fiscal year. The suspension shall be in effect until the cabinet determines that further reimbursements from this account will not threaten the solvency of the Petroleum Storage Tank Environmental Assurance Fund (PSTEAF).

(b) This determination shall be based upon legislatively enacted budgets and associated appropriations.

(5) The owner shall have one (1) year from the application approval date to perform permanent closure in accordance with 401 KAR 42:060.

Section 3. Application Procedure.

(1) The owner shall file a completed UST Application for Assistance for SOTRA, DWM 4293, for participation in this account at least forty-five (45) days prior to the permanent closure of the petroleum storage tank. The owner shall also provide:

(a) Verification of income through the submittal of:

Copies of the applicant's signed federal income tax returns for the last five (5) years, with the exception of non-profit public service corporations, eligible governmental bodies, and all other non-profit entities, which shall provide tax exemption documentation and budgets for the last five (5) years; or
If the applicant is not required by federal law to file federal income tax returns, the applicant shall submit in lieu of federal income tax returns;

a. Budget and tax exemption documentation; or

b. Other financial statements sufficient to document income;

(b) A copy of the contract between the owner and the primary contractor;

(c) A facility map identifying approximate property boundaries, placement of petroleum storage tank pits, location of other relevant facility features including buildings, canopies, driveways, piping, dispenser islands, paved areas, and the proposed extent of areas to be excavated in the performance of permanent closure, including dimensions;

(d) Color photographs of the facility and the areas to be impacted by the permanent closure; and

(e) A copy of a deed or other documentation indicating ownership of the tanks, if the tanks have not been registered in the applicant's name with the Division of Waste Management for twelve (12) months prior to the SOTRA application being submitted.

(2)

(a) In response to the application submitted, the UST Branch shall issue a letter setting forth the owner's eligibility status and, if eligible, establishing a reimbursable amount in accordance with Section 4 of this administrative regulation.

(b) Permanent closure of the tank system shall not begin until the UST Branch has approved the application and established the reimbursable amount. Failure to comply with this requirement shall result in denial of the reimbursement.

Section 4. Permanent Closure Costs.

(1) Costs for the permanent closure and facility restoration shall be established in the UST PSTEAF Reimbursement Rates, incorporated by reference in 401 KAR 42:250. The reimbursable amount, issued in a written approval by the UST Branch, shall be based on:

(a) The formulated task rates established in Section 2.0 of the UST PSTEAF Reimbursement Rates, incorporated by reference in 401 KAR 42:250; and

(b) For a specific task that does not have a formulated task rate in the UST PSTEAF Reimbursement Rates, incorporated by reference in 401 KAR 42:250, a cost estimate submitted by the owner. The cost estimate shall include:

A cost itemization to complete the individual task using those personnel and equipment rates established in Section 5.0 of the UST PSTEAF Reimbursement Rates, incorporated by reference in 401 KAR 42:250, applicable to individual components of the task;
Three (3) competitive bids from suppliers or manufacturers of corrective action equipment for individual equipment purchase or rental, exceeding $3,000, if applicable, containing a description of the equipment to be purchased or rented provided by the supplier or manufacturer for new equipment purchased; and
An estimate for materials to be purchased, if applicable.

(2) The reimbursable amount for facility restoration that has not been directed by the UST Branch shall be established by the submittal of an obligation request to the cabinet, with the information required by Section 5.9.2 of the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060, for the completion of facility restoration actions.

(a) Upon an obligation request approval, a written approval of an obligation and guarantee of payment shall be issued in writing by the UST Branch in accordance with KRS 224.60-140(5).

(b) Reimbursement for facility restoration activities shall be made in accordance with Section 5 of this administrative regulation.

(3) The UST Branch shall establish the reimbursable amount in accordance with subsection (1) of this section. The cabinet shall attach to the written approval:

(a) An itemization of the reimbursable amount; and

(b) The UST Claim Request for Directed Actions, DWM 4286, incorporated by reference in 401 KAR 42:250.

(4) The issuance of a written approval by the UST Branch shall, subject to the provisions of Section 5 of this administrative regulation, constitute an obligation and guarantee of payment of the reimbursable amount identified within a written approval, in accordance with KRS 224.60-140(5).

(5) The reimbursable amount established by the UST Branch shall be adjusted to:

(a) Include the formulated task rates for mobilization, per diem, and field equipment; and

(b) Deduct those actions approved but that could not reasonably be completed for reasons beyond the control of the applicant eligible company or partnership.

(6) Optional soil removal outside of the excavation zone in accordance with Section 4.15 of the UST Corrective Action Manual, incorporated by reference in 401 KAR 42:060, shall be reimbursable:

(a) If a no further action letter has been issued for the subject facility upon completion of permanent closure activities, without additional corrective action activities being performed; or

(b) In accordance with 401 KAR 42:050, if additional corrective action is necessary.

(7) Facility restoration activities shall be reimbursable:

(a) If a no further action letter has been issued for the subject facility upon completion of permanent closure activities in accordance with KAR 42:060, without additional corrective action activities being performed; and

(b) In accordance with 401 KAR 42:250, if additional corrective action is necessary.

Section 5. Claims.

(1) Eligible reimbursement for permanent closure costs associated with a SOTRA Application for Assistance shall be made in accordance with the requirements in effect at the time the SOTRA Application for Assistance was approved.

(2) To receive reimbursement, an owner shall submit a completed UST Claim Request for Directed Actions, DWM 4286, incorporated by reference in 401 KAR 42:250.

(3) In addition to the completed claim form, the owner shall submit supporting documentation of actual cost, including invoices, and weigh tickets.

(4) The UST Branch shall review a claim request for:

(a) The number and size of tanks removed; and

(b) Verification of eligible costs.

(5) To receive reimbursement, an owner shall have paid all annual tank fees as required by KRS 224.60-150.

(6) The cabinet may request additional supporting documentation to verify the reasonableness or necessity of a cost.

(7) If a claim is deficient, a written correspondence, stating the deficiencies, shall be issued to the applicant. Failure by the applicant to provide the requested information and documentation within thirty (30) days of receipt of the request shall cause the claim to be denied.

(8) Reimbursement shall be contingent upon a determination by the cabinet that the report required has been deemed technically complete and complies with the requirements of 401 KAR 42:060.

(9)

(a) An entry level shall not be assessed for eligible reimbursement in accordance with this administrative regulation.

(b) An entry level shall be assessed upon confirmation of a release, constituting an occurrence, that requires corrective action for which the applicant is seeking reimbursement through the Financial Responsibility Account or Petroleum Storage Tank Account in accordance with 401 KAR 42:250.

(10) An applicant may request a reconsideration of a denial of a claim request, or portion thereof, and the cabinet shall review the request, in accordance with the procedures established in 401 KAR 42:250, Section 15.

(11) All claims shall be submitted within two (2) years after issuance of a no further action letter by the UST Branch in accordance with KRS 224.60-130(1)(n).

Section 6. Extensions.

(1) The owner of a UST system may request an extension to a deadline established by this administrative regulation or established by the cabinet in a written directive.

(2) The extension request shall be submitted in writing and received by the UST Branch of the Division of Waste Management prior to the deadline.

(3) The cabinet may grant an extension, if the cabinet determines that an extension would not have a detrimental impact on human health or the environment.

Section 7. Incorporation by Reference.

(1) "UST Application for Assistance for SOTRA", DWM 4293, September 2019, is incorporated by reference.

(3) This material is also available on the Division of Waste Management's Web site at eec.ky.gov/environmental-protection/waste.

History

RELATES TO: KRS 224.60-105, 224.60-130(1)(a), (b), (j), 224.60-140, 224.60-150, 40 C.F.R. 280 Subpart H
STATUTORY AUTHORITY: KRS 224.60-130(1)(j)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.60-130(1)(j) requires the establishment of an account to reimburse small owners for the reasonable cost of permanent closure, and authorizes the cabinet to promulgate administrative regulations to establish this account. This administrative regulation establishes the eligibility requirements and rates for reimbursement from the Small Owners Tank Removal Account (SOTRA).
History: 23 Ky.R. 3649; 4178; 24 Ky.R. 77; eff. 7-9-1997; 25 Ky.R. 1128; 2868; eff. 6-9-1999; Recodified from 415 KAR 1:130; 32 Ky.R. 2141; 33 Ky.R. 483; eff. 9-13-2006; 37 Ky.R. 2735; 38 Ky.R. 287; 546; 746; eff. 10-6-2011; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Crt eff. 10-9-2018; 45 Ky.R. 1397; 2391; 2655; eff. 4-5-2019; TAm eff. 5-7-2019; TAm eff. 9-25-2019; Crt eff. 3-23-2026.

Chapter 45 Special Waste

401 KAR 45:010 Definitions for 401 KAR Chapter 45 {#sec-401-kar-45-010 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:010}

Section 1. Definitions.

(1) "Beneficial reuse":

(a) Means the use or reuse of special wastes in a manner that complies with the environmental performance standards of 401 KAR 30:031 and all other applicable requirements of 401 KAR Chapter 45; and

(b) Does not mean the use or reuse of biosolids that are governed by the provisions of 401 KAR 45:105.

(2) "Biosolids" is defined by KRS 224.50-765(1).

(3) "Certified operator" means a special waste site or facility operator who holds a valid certificate upon the successful completion of a training course and examination, both approved as established in 401 KAR 45:090. The categories of certified operator include:

(a) Composting operator;

(b) Interim operator;

(d) Landfill operator.

(4) "Closure" is defined by KRS 224.1-010(4).

(5) "Coal combustion by-products":

(a) Means special waste including fly ash, bottom ash, or scrubber sludge residues produced by coal-fired electrical generating units; and

(b) Does not mean residues of refuse derived fuels such as municipal waste, tires, or solvents.

(6) "Composting" is defined by KRS 224.1-010(6).

(7) "Composting operator" means a certified operator who is responsible for ensuring compliance with all permit conditions at a composting facility and who is available to the facility during operations.

(8) "Construction permit" means a formal permit issued by the cabinet to an owner or operator of a special waste site or facility that authorizes the owner or operator to commence site preparation prior to the disposal or management of special waste.

(9) "Construction and Operation permit" means a formal permit issued by the cabinet to an owner or operator of a special waste site or facility that authorizes the owner or operator to accept special waste for disposal or management. This permit is issued only after the construction of the site or facility has been certified as complete by the cabinet and the necessary financial assurance has been executed.

(10) "Formal permit" means a permit for special waste landfills, landfarming operations, and composting operations issued by the cabinet after review of the designated application form and completion by the applicant of the requirements of 401 KAR Chapter 45.

(11) "Horizontal expansion" means any increase in the capacity of a special waste landfill that expands the waste boundary of the landfill beyond the original waste boundaries contained in the permit application, approved as established in 401 KAR 45:040.

(12) "Interim operator" means a person who assumes the position of a special waste site or facility operator in the absence of a designated certified operator pursuant to 401 KAR 45:090, Section 11.

(13) "Landfarming facility" means a special waste site or facility for land application of sludges or other special waste by methods established in 401 KAR Chapter 45, for purposes of disposal.Disposal on any piece or pieces of land could improve the physical and chemical qualities of the land for agricultural purposes, but does not alter the topography of the application area as revealed by contours and does not disturb the soil below three (3) feet from the surface.

(14) "Landfarming operator" means a certified operator who is responsible for ensuring compliance with all permit conditions at a landfarming site or facility and who is available to be at the site or facility during operations.

(15) "Landfill operator" means a certified operator who has primary responsibility for management and operation of a special waste landfill to assure compliance with all permit conditions and is available to be at the site or facility during operations.

(16) "Postclosure" means the routine care, maintenance, and monitoring of a special waste site or facility following closure of the facility.

(17) "Responsible corporate officer" means:

(a) A president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation;

(b) The manager of one (1) or more manufacturing, production, or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25 million; or

(c) A person who, pursuant to a corporation resolution, is designated to act on behalf and bind the corporation on all matters relating to permit applications and modifications.

(18) "Special waste" means:

(a) As established in KRS 224.50-760(1)(a); and

(b) Coal combustion residuals, which are governed by 401 KAR Chapter 46 and not included for the purposes of 401 KAR Chapter 45 provisions.

(19) "Special waste site or facility" means any land, real property, appurtenance, building, structure, or installation where special waste is managed, processed, beneficially reused, or disposed.

History

RELATES TO: KRS 224.1-010, 224.50-760, 224.50-765
STATUTORY AUTHORITY: KRS 224.10-100(28), 224.40-305, 224.50-760(1)(d)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(28) authorizes the cabinet to promulgate administrative regulations that are consistent with the provisions of law administered by the cabinet. KRS 224.40-305 requires persons who establish, construct, operate, maintain, or allow the use of a waste site or facility to obtain a permit, pursuant to administrative regulations promulgated by the cabinet. KRS 224.50-760(1)(d) authorizes the cabinet to promulgate administrative regulations for the management of special wastes. This administrative regulation establishes definitions for 401 KAR Chapter 45, concerning the management of special wastes and the training and certification of operators of special waste sites or facilities.
History: 18 Ky.R. 3076; 3432; 19 Ky.R. 22; eff. 6-24-1992; 32 Ky.R. 1472; 1885; eff. 5-5-2006; 43 Ky.R. 794, 1557; eff. 5-5-2017; Cert eff. 9-5-2018; 50 Ky.R. 914, 2023; eff. 6-6-2024.

401 KAR 45:020 Types of special waste permits {#sec-401-kar-45-020 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:020}

Section 1. Overview. This administrative regulation establishes the type of permit a person shall obtain prior to engaging in the disposal or management of special waste.

Section 2. Permit Types. This section establishes the types of special waste site or facility permits.

(1) Formal permit. A formal permitting process shall be established that shall include the submittal of a complete application, review of the application, and permit issuance or denial by the cabinet. A formal permit shall be obtained by persons engaged in:

(a) Special waste landfill, which shall be a category of waste site or facility designed and operated to accept for disposal a limited number of special wastes that are characterizable. The administrative and technical requirements for a special waste landfill shall be as established in 401 KAR 45:030 and 45:110; and

(b) Landfarming and composting, which shall be a category of special waste site or facility that landfarms or composts special waste.

A special waste composting site or facility that manages municipal wastewater treatment sludge shall be classified as a Type A or Type B facility according to the metal concentrations of the sludge and volume of sludge accepted at the site as established in 401 KAR 45:100, Section 2..]
Other special waste landfarming or composting shall include the category of site or facility that manages special waste, other than municipal wastewater treatment sludge, which shall be classified as established in this administrative regulation and based upon the source, chemical and physical characteristics of the waste, volume of waste, and its potential for adverse impact on human health or the environment. Other special waste landfarming or composting facilities shall be classified as either a Type A or Type B facility in accordance with 401 KAR 45:100, Section 2.
Landfarming of biosolids, the application to the land of sludges from the treatment of domestic sewage or sewage sludge from a treatment facility, shall be managed in accordance with 401 KAR 45:105.

(2) Permit-by-rule. This shall be a category of waste site or facility permit for certain special waste management practices established in 401 KAR 45:060, which shall be deemed to have a permit without the owner or operator having made application or registration with the cabinet.

(3) Registered permit-by-rule. This shall be a category of waste site or facility permit for certain special waste management practices established in 401 KAR 45:070, which shall be deemed to have a permit without further action by the cabinet upon acknowledgement by the cabinet of a complete registration by the owner or operator.

(4) Emergency permit. This shall be a category of special waste site or facility permit for the short-term storage or disposal of special waste generated during certain emergency situations. These permits shall be issued in accordance with 401 KAR 45:135.

(5) Research, development, and demonstration permit. This shall be a category of special waste or facility permit to demonstrate unproven technology. These permits shall be issued in accordance with 401 KAR 45:135.

Section 3. Special Waste Formal Permit Phases. The application process to obtain a formal permit shall consist of two (2) phases.

(1) Upon approval of a permit application, the cabinet shall issue a construction permit that authorizes the owner or operator to commence construction of a site or facility in accordance with the terms and conditions of the construction permit.

(2) Upon completion of the construction phase, the owner or operator shall notify the cabinet that construction of the special waste site or facility is complete, in accordance with 401 KAR 45:140, Section 1(11). The cabinet shall inspect the site or facility to ensure compliance with all construction permit requirements and, upon execution of financial assurance and the submission of a fee established in 401 KAR 45:250, Section 2(1)(d), the cabinet shall issue a construction and operation permit.

History

RELATES TO: KRS 224.1, 224.10, 224.40, 224.46, 224.50, 224.70, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.50-760(1)(d)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.50-760(1)(d) authorizes the cabinet to promulgate administrative regulations for the management special wastes. KRS 224.40-305 requires persons who establish, construct, operate, maintain, or allow the use of a waste site or facility to obtain a permit. This administrative regulation establishes the classification of special waste sites or facilities for permitting.
History: 18 Ky.R. 3078; eff. 6-24-1992; Cert eff. 9-5-2018; TAm eff. 10-15-2018; 50 Ky.R. 9+16, 2024; eff. 6-6-2024.

401 KAR 45:025 Permit review and determination timetables {#sec-401-kar-45-025 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:025}

Section 1. Submittal of Permit Applications and Registrations.

(1) The official date of receipt for documents associated with a special permit application or registration shall be the date the document is stamped received by the Division of Waste Management.

(2) The applicant or registrant shall submit all information required in the applicable permit application.

Section 2. Administrative Completeness Determination.

(1)

(a) A application or registration shall not be reviewed until the cabinet has determined that the application or registration is administratively complete. A determination by the cabinet that an application or registration is administratively complete means that the application or registration contains the major elements required by the applicable forms.

(b) An application or registration shall not be deemed administratively complete if one (1) or more major components are found to be absent from the application or registration, which, by virtue of their absence, would require that the permit be denied. A determination that an application or registration is administratively complete shall not mean that any aspect of the application is technically sufficient.

(2) Within forty-five (45) calendar days of receipt of the application or registration, the cabinet shall provide written notice to the applicant or registrant as to the administrative completeness of the application or registration.

(a) If the application or registration is determined to be incomplete, the cabinet shall notify the applicant or registrant of all the deficiencies that render it administratively incomplete. The applicant or registrant shall have thirty (30) calendar days from mailing or hand delivery of the cabinet's notice of deficiency to correct the deficiencies and render the application or registration administratively complete, unless the cabinet and applicant approve a longer time period in writing.

(b) The cabinet shall have thirty (30) calendar days from receipt of the applicant's or registrant's submittal of a complete response to a notice of deficiency to determine if the application or registration is administratively complete.

If the applicant or registrant submits the application or registration administratively complete within the established timetable, the cabinet shall notify the applicant or registrant in writing that the review and determination period established by Section 3 of this administrative regulation has commenced.

a. If the cabinet determines that the application or registration is not administratively complete at the end of the established timetable, the cabinet shall make a written determination to deny the permit. The reason the application or registration fails to comply with the requirement to submit a complete application shall be submitted to the applicant or registrant.

b. This action shall not preclude the submission of a new application or registration for the same site or facility in the future. Submission of a new application or registration shall be considered a new submittal for the purpose of fees and review timetables.

Section 3. Timetables for Permit or Registration Review and Determination.

(1) All administratively complete permit applications and registrations shall be reviewed and a determination made to issue, acknowledge, or deny the permit within the timetables established in paragraphs (a) through (h) of this subsection.

(a) Special Waste Formal Permit: 180 calendar days.

(b) Notice of Intent to Apply for a Special Waste Landfarming or Composting Permit: ninety (90) calendar days.

(d) Research, Development, and Demonstration Permit: 180 calendar days.

(e) Special Waste Permit modifications: 180 calendar days.

(f) Permit transfer: 180 calendar days.

(g) Permit renewal: ninety (90) calendar days.

(h) Permit-by-rule applicability determinations: ninety (90) calendar days.

(2) The timetables established in subsection (1) may be extended at the initiative of either the cabinet or the applicant or registrant. The purpose and period of the extension shall be in writing and, if agreed to by both parties, shall be signed by both the cabinet and the applicant or registrant. The agreement to extend the timetable shall become part of the cabinet's permit or registration file.

Section 4. Timetable Exclusions. The time periods established in Section 3 of this administrative regulation shall not run:

(1) From the date the cabinet mails or hand delivers a notice of deficiency until the date the Division of Waste Management stamps as received a completed response to the deficiencies. If a notice of deficiency is sent to an applicant or registrant, the applicant or registrant shall have 180 calendar days to respond to the notice of deficiency. Failure to respond to a notice of deficiency within 180 calendar days shall be grounds for denial of the permit;

(2) Sixty (60) days from the date of any public hearing on the application or registration to allow the cabinet time to consider public comments; and

(3) From the date a permit application or registration is subject to any adjudicatory process that prevents the cabinet from making a determination to the date all administrative or judicial hearings are final and all parties are in compliance with all final orders resulting from those hearings.

Section 5. Timetable Extensions.

(2) If the permits are coordinated, the cabinet shall so notify the applicant and indicate the time frames under which the intermediate actions and final permit actions shall be accomplished.

(3) The established time frame for final action shall not exceed the last date for action that is provided for under applicable statutes and 401 KAR Chapter 45, based on all applications being considered and their filing dates.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.50
STATUTORY AUTHORITY: KRS 224.10-220, 224.40-305, 224.50-760(1)(d)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.50-760(1)(d) authorizes the cabinet to promulgate administrative regulations for the management, processing, and disposal of special wastes. KRS 224.40-305 requires persons who establish, construct, operate, maintain, or allow the use of a waste site or facility to obtain a permit. KRS 224.10-220 requires the cabinet to promulgate administrative regulations to establish timetables for the review and determination of permit applications. This administrative regulation establishes timetables for the review and determination of special waste permit applications and registrations but does not establish permitting timetables for biosolids from the treatment of domestic sewage or sewage sludge from a treatment facility pursuant to 401 KAR 45:105.
History: 19 Ky.R. 1950; 2253; 2404; eff. 4-28-1993; Cert eff. 9-5-2018; TAm eff. 10-15-2018; 50 Ky.R. 919, 20258; eff. 6-6-2024.

401 KAR 45:030 Obtaining a special waste site or facility permit {#sec-401-kar-45-030 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:030}

Section 1. The Objective and Requirements of the Application for a Special Waste Formal Permit.

(1) All applicants for a special waste formal permit shall submit an application, on the designated application form, that contains all of the information required by this administrative regulation. Engineering drawings, specifications, and studies shall be certified by a professional engineer registered in Kentucky.

(2) The contents of the application shall be accurate and complete before the cabinet makes a preliminary determination as established in 401 KAR 45:050, Section 4, to issue a special waste formal permit.

Section 2. Scope of the Permit Requirements.

(1) Except as otherwise established in this section, any person managing special waste shall maintain a special waste site or facility permit as established in 401 KAR 45:020, Section 2.

(2) Specific exclusions.

(a) The disposal of mining overburden, coal mining wastes, refuse, and coal mining by-products returned to the mine site of generation, including any nonhazardous waste generated directly as a result of the mining operation, shall not require a special waste site or facility permit. Owners or operators disposing of the materials in this subsection shall obtain and be regulated by the appropriate permit issued pursuant to KRS Chapter 350.

(b) Persons managing special waste during emergency situations shall be excluded, including:

A spill of a special waste;
An imminent and substantial threat of a spill of special waste; or
A spill of a material that, if spilled, becomes a special waste.

(3) Specific inclusions.Any person who initiates or continues special waste containment or disposal activities after emergency actions are complete shall comply with all applicable requirements of this chapter for those activities.

(4)

(a) Permits for less than an entire facility. The cabinet may issue or deny a permit for one (1) or more units at a facility without simultaneously issuing or denying a permit to all of the units at the facility.

(b) A permit-by-rule for any unit for which a permit has not been issued or denied shall not be affected by the issuance or denial of a permit to any other unit at the facility.

Section 3. Considerations of State and Federal Law. Permits shall be issued in a manner and shall contain conditions consistent with requirements of applicable state and federal laws. These laws include:

(1) 16 USC 661 et seq. (the Fish and Wildlife Coordination Act of 1958, as amended);

(2) 16 USC 1273 et seq. (the National Wild and Scenic Rivers System);

(3) 16 USC 1531 et seq. (the Endangered Species Act of 1983, as amended) and 50 CFR Part 402;

(4) KRS 146.200 through 146.360 and 400 KAR Chapter 4 (the Wild Rivers system); and

(5) KRS 146.410 through 146.990 and 400 Chapters 2 and 3.

Section 4. Limitations of a Permit.

(1) A permit may be modified or revoked during its term for cause as established in 401 KAR 45:040 and in 401 KAR Chapter 40.

(2) The issuance of a permit shall not convey any property rights or any exclusive privilege.

(3) The issuance of a permit shall not authorize any injury to persons or property or invasion of other private property rights, or any infringement of state or local laws or administrative regulations.

Section 5. Prohibition of Use of Unpermitted Facilities. A person shall not deliver, or cause to be delivered, special waste to a site or facility unless the owner or operator has:

(1) Qualified for a permit-by-rule in accordance with 401 KAR 45:060;

(2) Obtained for a registered permit-by-rule in accordance with 401 KAR 45:070 or 401 KAR 45:100, Section 8;

(3) Obtained a solid waste facility permit providing for the disposal of special waste in accordance with 401 KAR Chapters 47 and 48; or

(4) Obtained a special waste formal permit in accordance with 401 KAR Chapter 45.

Section 6. Permit Required.

(1) A person shall not engage in the management, processing, or disposal of special waste at a waste site or facility without first obtaining a permit from the cabinet as established in 401 KAR Chapter 45.

(2) A person shall not engage in the management, processing, or disposal of special waste and solid waste without first obtaining a permit from the cabinet as established in 401 KAR Chapters 47 and 48.

(3) A person shall not engage in the management, processing, or disposal of special waste and hazardous waste without first obtaining a permit from the cabinet as established in 401 KAR Chapter 39.

(4) An owner or operator shall maintain a valid permit during the active life of the special waste site or facility, including the closure and postclosure periods required under 401 KAR 45:100 and 45:110.

Section 7. New Special Waste Sites or Facilities.

(1) A person shall not begin physical construction of a new special waste site or facility without having received a special waste permit.

(2) An applicant for a special waste formal permit shall submit to the cabinet an application that contains the information established in Section 8 of this administrative regulation.

(3) The site shall be designed in accordance with the applicable requirements of 401 KAR Chapter 45.

(4) If the cabinet determines during the review of the application that the proposed site cannot meet the requirements of this chapter, the cabinet shall deny the permit.

Section 8. Application for a Special Waste Formal Permit.

(1) Any person who is required to have a special waste site or facility permit under 401 KAR Chapter 45 shall sign and submit a complete application to the cabinet.

(a) Persons applying for a special waste landfill permit shall use form Application for a Special Waste Landfill Permit, form DEP 7094A. The cabinet may require that additional information be included in the application to ensure that a draft permit conforms with the requirements of 401 KAR Chapter 45.

(b) Persons applying for a special waste landfarming facility permit for the land application of special waste other than biosolids shall use"Notice of Intent to Apply for a Special Waste Landfarming or Composting Permit" form DEP 7021A and "Application for a Special Waste Landfarming Facility Permit" form DEP 7021B.

(c) Persons applying for a special waste composting facility permit shall use Notice of Intent to Apply for a Special Waste Landfarming or Composting Permit, form DEP 7021A andApplication for a Special Waste Composting Facility Permit, form DEP7094D.

(2) Alternative application information may be used only after approval by the cabinet upon a demonstration by a qualified registered professional engineer in accordance with 401 KAR 30:020, Section 2, that the alternative information results in information equal to or better than that in this administrative regulation to determine that the site and design comply with 401 KAR 30:031 and 401 KAR Chapter 45.

(3) Persons applying for a special waste formal permit shall submit to the cabinet, as part of the application, Past Performance Information, form DEP 7094J. The past performance information shall be collected in accordance with the requirements of KRS 224.40-330(1) and (3).

(4) The cabinet shall not begin the processing of a formal permit application until the applicant has fully complied with the application requirements for a permit pursuant to this administrative regulation, 401 KAR 45:025, and:

(a) 401 KAR 45:100; or

(b) 401 KAR 45:110 and 45:160.

(5) Upon completing the review, the cabinet shall notify the applicant in writing whether the application is complete or incomplete. If the application is incomplete, the cabinet shall list the information necessary to make the application complete. If the application is for an existing waste site or facility, the cabinet shall state in the notice of deficiency, a date for submitting the necessary information in accordance with the timetables established in 401 KAR 45:025. The cabinet shall notify the applicant in writing if the application is deemed complete after receiving any required additional information. The notification of completeness shall also contain any public notice required under 401 KAR 45:050, Section 4.

(6) If an applicant fails or refuses to correct deficiencies in the application or submit additional information, the permit shall be denied and, if applicable, enforcement actions shall be taken.

(7) If a site investigation or visit is necessary for any reason in conjunction with the processing of an application, the applicant or an authorized representative of the applicant shall accompany the cabinet representative on a site investigation or visit if requested by the cabinet.

(8) The cabinet may require additional information necessary in order to make a final determination to issue a permit or deny the permit application as established in paragraph (1)(a) of this section.

Section 9. Formal Permit Issuance.

(1) The cabinet shall make a preliminary determination to issue or deny the permit application after review of the complete application. In making this preliminary determination, the cabinet shall consider the requirements established in 401 KAR Chapter 45 and KRS 224.50-760.

(2)

(a) If the cabinet makes a preliminary decision to deny the permit application, it shall issue a notice of intent to deny, and the permit applicant shall comply with the public information process as established in 401 KAR 45:050.

(b) If the cabinet's final decision reverses the preliminary decision to deny the permit application, the cabinet shall withdraw the notice of intent to deny and proceed to prepare a draft permit under subsection (3) of this section.

(3) If the cabinet makes a preliminary determination to issue the permit, a draft construction permit shall be prepared containing:

(a) The proposed design and specifications; and

(b) Any conditions in accordance with 401 KAR 45:140, Section 2.

(4) The draft construction permit shall be based on the administrative record established in 401 KAR 45:050, Section 3.

(5) All draft construction permits prepared by the cabinet under this section, including those applications for horizontal expansions under 401 KAR 45:040, Section 1(2), shall comply with the public information process as established in 401 KAR 45:050.

(6) After the close of the public comment period, the cabinet shall issue a final permit decision, based on the submitted application, to issue or deny the construction permit.

(7) A final permit decision shall become effective on the date of issuance of the construction permit by the cabinet.

(8) The cabinet shall document the disposition of significant comments received, and, within thirty (30) days of a final permit decision, make this documentation available to the public by supplying it to the repository established in the county in which the facility is proposed.

(9) The cabinet shall issue a construction permit if it finds that the applicant for the permit has met all the requirements for application,the requirements of 401 KAR Chapter 45, and KRS 224.50-760.

(10) The applicant shall maintain a construction permit in full force and effect until the construction and operation permit is issued by the cabinet.

(11) A construction and operation permit shall be issued by the cabinet if:

(a) The applicant has notified the cabinet, in writing, that the liner system, if required, has been constructed;

(b) A representative of the cabinet has inspected the site and verified in writing to the applicant, within thirty (30) days of the inspection, that the site has been developed in accordance with plans approved by the cabinet;

(c) The required financial responsibility in 401 KAR 45:080 for closure has been established using any of the mechanisms required by 401 KAR 45:080 in an amount determined by an approved closure plan and cost estimate; and

(d) The applicant has submitted a certification by an engineer registered in Kentucky that the liner system, if required, and other features have been constructed in accordance with the approved plans and specifications.

(12) The cabinet may issue a permit that includes:

(a) Types of wastes accepted or disposed;

(b) Special operating conditions;

(d) The issuance of other applicable permits of the cabinet.

Section 10. Signatures to Permit Applications and Reports.

(1) Applications. All permit applications and modifications shall be signed as established in paragraphs (a) through (d) of this section.

(a) A responsible corporate officer shall sign permit applications and modification on behalf of a corporation. If the signature is by a person that meets the requirements of 401 KAR 45:010, Section 1(17)(c), then a copy of the corporation resolution shall be submitted to the cabinet attached to the permit application or modification.

(b) A general partner or the proprietor shall sign for a partnership or sole proprietorship.

(d) A principal executive officer shall sign for a municipality or state, federal, or other public agency. A principal executive officer shall include:

The ranking elected official;
The chief executive officer of the agency;
A senior executive officer having responsibility for the overall operation of a principal geographic unit of the agency; or
A person authorized, in writing, to sign on behalf of a person established in subparagraphs 1, 2, or 3 of this paragraph. The written authorization shall state either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, superintendent, or a position of equivalent responsibility. A duly authorized representative shall be either a named individual or any individual occupying a named position.

(2) Reports.

(a) All reports required by permits, and other information requested by the cabinet, shall be signed by a person established in subsection (1) of this section, or by a duly authorized representative of that person.

(b) A person shall be a duly authorized representative only if:

The authorization is made in writing by a person established in subsection (1) of this section;
The authorization states either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, superintendent, or position of equivalent responsibility. A duly authorized representative shall be either a named individual or any individual occupying a named position; and
The written authorization is submitted to the cabinet prior to or together with any reports.

(3) Changes to authorization. If an authorization under subsection (2)(b) of this section is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, then a new authorization satisfying the requirements of subsection (2)(b) of this section shall be submitted to the cabinet prior to or together with any reports, information, or applications to be signed by an authorized representative.

(4) Certification. Any person signing a document under subsection (1) or (2) of this section shall make the following certification: "I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information submitted. Based on my inquiry of the person or persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for such violations."

Section 11. Past Performance Considered in Review. Past performance of the owner, operator, and "key personnel", as defined by KRS 224.1-010(43), of the special waste site or facility shall be considered in the review for issuance or denial of the permit application and in the determination of any requirement for specialized conditions in accordance with KRS 224.40-330(1) and (3).

Section 12. Term and Expiration of Permits.

(1)

(a) Permits-by-rule and registered permits-by-rule shall be perpetual unless modified or revoked by the cabinet.

(b) Permits-by-rule and registered permits-by-rule may be automatically revoked by the cabinet if the site or facility fails to meet the requirements of 401 KAR 30:031 or 401 KAR Chapter 45.

(2) Special waste site or facility construction permits shall be effective for a fixed term of five (5) years.

(3) Special waste landfill construction and operation permits shall be issued for the anticipated life of the facility.

(4) Special waste landfarming facility construction and operation permits shall be effective for a fixed term not to exceed ten (10) years. The cabinet shall review the conditions of the permit after five (5) years and modify the permit as necessary to maintain compliance with 401 KAR Chapter 45.

(5) For registered permits-by-rule or permit-by-rule issued under this administrative regulation for a term greater than five (5) years, the cabinet may reevaluate the terms and conditions of those permits any time prior to their expiration date. Issued permits shall be reevaluated in accordance with the requirements of 401 KAR Chapter 45, including reevaluation of the bond. After reevaluation of the permit, the cabinet may require modifications of the permit pursuant to 401 KAR 45:040, Section 1.

(6) Modification of term of permit. Except as established in Section 14 of this administrative regulation, the term of a permit shall not be extended by modification beyond the maximum duration established in subsections (2) through (4) of this section.

(7) Reduced term of permit. The cabinet may issue any permit for a duration that is less than the full allowable term under subsections (2) through (4) of this section.

Section 13. Renewal of Formal Permits.

(1) Any application to renew a construction or construction and operation permit shall be submitted to the cabinet at least 180 days before the expiration date of the current permit. Persons applying for the renewal of a permit shall use Application for Renewal of a Formal Permit, form DEP 7095 (November 2016).

(2) Applications to renew a construction or construction and operation permit shall be reviewed in accordance with the requirements of 401 KAR Chapter 45.

(3) The cabinet, in issuing a renewal, shall consider if all conditions of prior permit conditions and agreed orders have been met. The cabinet may request updated information and impose additional or modified permit conditions to ensure compliance with 401 KAR Chapter 45.

Section 14. Continuation of Expiring Permits.

(1) The conditions of an expired permit shall continue in force to ensure the safe disposal of waste until the effective date of a new permit if:

(a) The permittee has submitted an application for renewal of a permit pursuant to Section 13 of this administrative regulation. These applications shall be complete and the applicant shall have paid the appropriate fees due under 401 KAR 45:250;

(b) The cabinet, through no fault of the permittee, does not issue a new permit with an effective date on or before the expiration date of the previous permit; and

(c) The cabinet has not given written notice of permit expiration due to enforcement actions or other reasons pursuant to the requirements of 401 KAR Chapter 45.

(2) Effect. Permits continued under this section shall remain in full force and effect until the renewal application has been issued.

Section 15. Termination of Permits. Special waste site or facility permits shall automatically terminate on the expiration date unless the cabinet has reissued the permit or issued a continuation in accordance with Section 14 of this administrative regulation.

Section 16. Confidentiality of Information.

(1) Claims of confidentiality. Any information submitted to the cabinet pursuant to this chapter may be claimed as confidential by the applicant. Any claim of confidentiality shall be asserted at the time of submission in accordance with KRS 224.10-210 and 400 KAR 1:060. If a claim is not made in accordance with 400 KAR 1:060, the cabinet may make the information available to the public without further notice.

(2) Denial of claims of confidentiality. Claims that the name and address of any permit applicant or permittee is confidential shall be denied.

Section 17. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Application For a Special Waste Landfill Permit", form DEP 7094A, February 2023;

(b) "Notice of Intent to Apply for a Special Waste Landfarming or Composting Permit", form DEP 7021A, February 2023;

(d) "Application for a Special Waste Composting Facility Permit", form DEP 7094D, August 2023;

(e) "Past Performance Information", form DEP 7094J, November 2016; and

(f) "Application for Renewal of a Formal Permit", form DEP 7095, November 2016.

(3) This material may also be obtained on the division's Web site at eec.ky.gov/environmental-protection/waste.

History

RELATES TO: KRS 146.200 - 146.990, 224.1, 224.10, 224.40, 224.50, 224.70, 224.99, Chapter 350, 16 U.S.C. 661 et seq., 1273 et seq., 1531 et seq., 50 C.F.R. Part 402
STATUTORY AUTHORITY: KRS 224.10-100, 224.10-210, 224.40-305, 224.40-330, 224.50-760(1)(d), 16 U.S.C. 661 et seq., 1273 et seq., 1531 et seq., 50 C.F.R. Part 402
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.50-760(1)(d) authorizes the cabinet to promulgate administrative regulations for the management, processing, and disposal of special wastes. KRS 224.40-305 requires persons who establish, construct, operate, maintain, or allow the use of a waste site or facility to obtain a permit. This administrative regulation establishes the procedures for obtaining a permit for a special waste site or facility. This administrative regulation does not establish permitting or permit application standards for biosolids from the treatment of domestic sewage or sewage sludge from a treatment facility because those requirements are contained in 401 KAR 45:105.
History: 18 Ky.R. 3080; 3433; eff. 6-24-1992; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Crt eff. 9-5-2018; TAm eff. 10-15-2018; TAm eff. 5-7-2019; 50 Ky.R. 921, 2026; eff. 6-6-32024

401 KAR 45:040 Modification, transfer or revocation of special waste permits {#sec-401-kar-45-040 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:040}

Section 1. Modification of Permits.

(1) A special waste site or facility permit may be modified during its term. Modification shall be conducted in accordance with this administrative regulation.

(a) If a permit is modified, only the conditions that relate to the modification shall be reopened. A permit modification shall comply with public notification requirements unless the modification does not present a threat to human health and the environment.

(b) An application to modify a permit for a horizontal expansion beyond the permitted waste boundary shall require a public notice in accordance with 401 KAR 45:050.

(2) Modification of formal permits. Modifications requested by the permittee shall not be considered by the cabinet until the permittee has submitted a complete application to the cabinet that is appropriate for the type of facility being modified. The permittee shall use:

(a) ["]Application for a Special Waste Landfill Permit, form DEP7094A, incorporated by reference in 401 KAR 45:030;

(b) Application for a Special Waste Landfarming Facility Permit, form DEP7021B, incorporated by reference in 401 KAR 45:030;

(c) Application for a Special Waste Composting Facility Permit, form DEP 7094D, incorporated by reference in 401 KAR 45:030; or

(d) Application for a Research, Development, and Demonstration Permit, form DEP 7094B, incorporated by reference in 401 KAR 45:135.

(3) Modification of a registered permit-by-rule. Registrants requesting a modification shall submit a new registration form in accordance with 401 KAR 45:070, Section 4.

(4) Causes for modification. Causes for modification of formal permits by the cabinet shall include:

(a) Material and substantial alterations or additions to the permitted special waste site or facility being contemplated that justify new permit conditions that are different or absent in the existing permit;

(b) A cabinet determination that the special waste site or facility, as previously permitted, is not likely to comply with 401 KAR 30:031;

(c) Good cause exists for modification of a compliance schedule, such as an act of God, labor strike, materials shortage, or other events over which the permittee has little or no control and for which there is no reasonable available remedy;

(d) Modification of a closure plan if required by 401 KAR Chapter 45;

(e) The cabinet receiving notification of expected closure and finding that one (1) or more of the permit conditions are no longer warranted;

(f) Cabinet adjustment of the level of financial responsibility required pursuant to 401 KAR 45:080;

(g) Corrective action program, as included in the permit, failure to bring the waste site or facility into compliance with the groundwater protection standards as established in 401 KAR 45:160, Section 5;

(h) A monitoring program meeting the requirements of 401 KAR 45:160;

(i) Approval of a corrective action plan required by 401 KAR 45:160;

(j) Conditions applicable in new or amended statutes and administrative regulations;

(k) Modification necessary to protect human health or the environment;

(l) Conditions applicable as a result of a hearing or enforcement action as established in 401 KAR Chapter 40;

(m) Change of ownership of the special waste site or facility;

(n) Expansion of the capacity of a special waste site or facility; or

(o) Addition of a new waste that contains different chemical characteristics than the waste source previously permitted.

Section 2. Procedures for Permit Modification.

(1) A permit for a special waste site or facility may be modified either at the request of the permittee or upon the cabinet's initiative.

(2) If the permittee requests the modification, the cabinet shall determine if the request is justified in accordance with Section 1 of this administrative regulation. If the cabinet determines not to modify the permit, the cabinet shall notify the permittee in writing and give a reason for the decision.

(3) If the cabinet makes a preliminary decision to modify a permit under this administrative regulation, then the cabinet shall prepare a draft modified permit incorporating the proposed changes. If the permit modification requires public notice, the permittee shall publish a notice in accordance with 401 KAR 45:050, Section 4.

(4) The cabinet shall provide the permittee with a copy of the draft modified permit and allow ten (10) working days for comment. Comments received from the permittee shall be considered in finalizing the draft modified permit.

(5) The cabinet shall issue the modified permit after consideration of the comments or following the ten (10) day comment period if no comments are received.

(6) The owners or operators of a special waste site or facility may request a hearing. A hearing shall be requested pursuant to KRS 224.10-420 within thirty (30) days of issuance of the permit modification by the cabinet.

(7) All terms of an existing permit shall remain in effect during the permit modification request.

(8) A permit modification requesting a horizontal expansion shall comply with the requirements of public notice in accordance with 401 KAR 45:050. All draft permits for horizontal expansions shall be prepared as established in 401 KAR 45:030, Sections 8 and 9, and shall be based on the administrative record required by 401 KAR 45:050, Section 3.

Section 3. Transfer of Permits.

(1) A permit shall not be transferred to any person without prior approval of the cabinet based on the submitted application. A person requesting to transfer a formal permit for an existing special waste site or facility shall submit a completed Application to Transfer Special Waste Permit, form DEP 7094C. The application shall be required if a person requests that the name on the permit be changed to a different person or entity or if the permittee is a corporation and fifty-one (51) percent or more of the stock is sold to a person who was not previously a stockholder, or was a stockholder owning less than five (5) percent of the stock.

(2) On the basis of the submitted application, the cabinet shall make a preliminary determination to approve or disapprove a formal permit transfer within 180 calendar days from the initial receipt of the application.

(3) If the transfer application is incomplete, the cabinet shall notify the applicant in writing of all the deficiencies. Periods of deficiency shall not be counted against the review time frame established in subsection (3) of this section. Failure to submit information noted by the cabinet related to the deficiencies within ninety (90) calendar days of receipt of the notice of deficiency shall be grounds for disapproval of the transfer application.

(4) If the cabinet makes a preliminary determination to approve the transfer application, the applicant shall publish a public notice in accordance with 401 KAR 45:050, Section 4.

(5) After the public notice has been published by the applicant, the cabinet shall provide a public comment period in accordance with 401 KAR 45:050, Sections 5 through 8.

(6) After the close of the public comment period, the cabinet shall make a final decision on the transfer application, based on the submitted application.

(7) A person requesting to transfer a registered permit-by-rule shall submit a registration in accordance with 401 KAR 45:070, Section 2.

Section 4. Modification, Suspension, and Revocation of a Permit.

(1) The cabinet may modify, suspend, or revoke a permit issued under this chapter for:

(a) Violation of any requirement of KRS Chapter 224, 401 KAR Chapter 45, or 401 KAR 30:031;

(b) Aiding, abetting, or allowing the violation of KRS Chapter 224, 401 KAR Chapter 45, or 401 KAR 30:031;

(c) Any action or omission associated with maintenance and operation of the facility that could or does create a threat to public health or the environment;

(d) Violations of a condition or a variance of the special waste site or facility permit;

(e) Misrepresentation or omission of a significant fact by the owner or operator either in the application for the permit or in information subsequently reported to the cabinet;

(f) Failure to comply with an order issued by the cabinet; or

(g) Transfer of the facility to another person without prior approval of the cabinet.

(2) The cabinet shall follow the applicable procedures in this administrative regulation and 401 KAR Chapter 40 in revoking any permit under this section.

(3) If a permit is revoked, the owner or operator may reapply.

(4) Owners or operators of special waste sites or facilities may file a request for a hearing. A request shall be pursuant to KRS 224.10-420 upon revocation of the permit.

Section 5. Incorporation by Reference.

(1) "Application To Transfer Special Waste Permit", form DEP 7094C November 2016, is incorporated by reference.

(3) This material may also be obtained on the division's Web site at eec.ky.gov/environmental-protection/waste.

History

RELATES TO: KRS 224.1, 224.10, 224.40, 224.46, 224.50, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.40-330, 224.50-760(1)(d)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.50-760(1)(d) authorizes the cabinet to promulgate administrative regulations for the management, processing, or disposal of wastes. KRS 224.40-305 requires persons who establish, construct, operate, maintain, or allow the use of a waste site or facility to obtain a permit. This administrative regulation establishes the requirements for modification, transfer, and revocation of special waste permits but does not establish standards for biosolids from the treatment of domestic sewage or sewage sludge from a treatment facility that are regulated pursuant to 401 KAR 45:105.
History: 18 Ky.R. 3084; 3436; eff. 6-24-1992; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Cert eff. 9-5-2018; TAm eff. 5-7-2019; 50 Ky.R. 926, 2030; eff. 6-6-2024.

401 KAR 45:050 Public information procedures for special waste site or facility permits {#sec-401-kar-45-050 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:050}

Section 1. Applicability.

(1) Public information procedures shall apply to applicants for:

(a) A new special waste landfill permit;

(b) A permit for a horizontal expansion of a special waste landfill;

(d) A research, development, and demonstration permit;

(e) A transfer of ownership of a site facility with a formal special waste permit that originally required a public notice; and

(f) Approval of a new waste permit that contains different chemical characteristics than the waste source previously permitted.

(2) The cabinet may require public information procedures for other permit actions or modifications if a significant degree of public interest exists with respect to an application or modification.

Section 2. Fact Sheet.

(1) A fact sheet shall be prepared by the cabinet for every draft permit. The fact sheet shall briefly state the principal facts and the significant factual, legal, methodological, and policy questions considered in processing the permit application.

(2) The fact sheet shall include:

(a) A brief description of the type of facility or activity that is the subject of the draft permit;

(b) The type and quantity of wastes that are proposed to be or are being stored, treated, or disposed;

(c) A brief summary of the basis for the proposed permit conditions, including reference to applicable statutory or regulatory provisions and appropriate supporting references to the administrative record required by Section 3 of this administrative regulation;

(d) Reasons why any requested variances or alternatives to required standards do or do not appear justified;

(e) A description of the procedures for reaching a final decision on the draft permit including:

The beginning and ending dates of the comment period under Section 5 of this administrative regulation and the address where comments shall be received;
Procedures for requesting a hearing and the nature of that hearing; and
Any other procedures including public participation in the final decision; and

(f) Name and telephone number of a cabinet representative to contact for additional information.

Section 3. Administrative Record for Proposed Permits.

(1) The provisions of a draft permit prepared by the cabinet under of 401 KAR 45:030, Section 9, shall be based on the administrative record.

(2) The administrative record shall consist of:

(a) The application and any supporting data submitted furnished by the applicant;

(b) The draft permit or notice of intent to deny the application;

(d) All documents cited in the fact sheet; and

(e) Other documents contained in the supporting file for the proposed permit.

(3) Material readily available at the cabinet's office need not be physically included with the rest of the record if it is specifically referred to in the fact sheet, including published material that is generally available and that is included in the administrative record.

Section 4. Public Notice.

(1)

(a) Upon notification by the cabinet that the application is complete, the permit applicant shall publish a public notice, supplied by the cabinet, in a daily or weekly major local newspaper of general circulation where the proposed site or facility is located.

(b) Verification of publication shall be provided to the cabinet within thirty (30) calendar days of the publication date. The notice shall contain:

Name and address of the cabinet's office processing the permit action for which notice is being given;
Name and address of the permit applicant and, if different, of the facility or site regulated by the permit;
A brief description of the business conducted or activity included in the permit application;
A description of the proposed location of the special waste site or facility, including a description of the primary access roads;
Name, address, and telephone number of a person from whom interested persons may obtain further information; and
The following statement: "Within thirty (30) days of the publication of this notice, any person who wishes to comment on the application may submit written comments and, if desired, request from the cabinet, a public meeting".

(2) The cabinet may schedule a public meeting if a significant degree of public interest exists as a result of a public notice published under this section.

(3) Upon notification by the cabinet that a draft permit has been prepared, the permit applicant shall publish a public notice, supplied by the cabinet, in a daily or weekly, major, local newspaper of general circulation where the proposed site or facility is located. Verification of publication shall be provided to the cabinet within thirty (30) days of the publication date. The notice shall contain:

(a) The information required by subsection (1)(b)1. through 6. of this section;

(b) The location of a repository for documents in the county in which the site or facility is proposed, including copies of the proposed permit, fact sheet, and application;

(c) The time and place of any hearing already scheduled and procedures by which the public may participate in the public comment period and public hearing;

(d) The location of the administrative record required by Section 3 of this administrative regulation, including:

A local repository in the county in which the site or facility is proposed;
The times at which the record is open for public inspection; and
A statement that all data submitted by the applicant is available as part of the administrative record; and

(e) The following statement: "Any person who wishes to comment on the draft permit decision for this special waste site or facility may file comments with the cabinet and, if desired, request a public hearing within thirty (30) days of the publication of this notice pursuant to 401 KAR 45:050, Section 6."

(4) Public notices may describe more than one (1) permit or permit action.

(5) Public notices shall be of a size to include not less than two (2) columns widths for advertising and shall be in a display format.

(6) The cabinet shall distribute the public notice established in subsection (1) of this section to:

(a) The Kentucky Department of Fish and Wildlife Resources;

(b) The U.S. Fish and Wildlife Agency;

(d) The State Historic Preservation Officer;

(e) Other appropriate government authorities, including those of any other affected states; and

(f) Any unit of local government having jurisdiction over the area where the facility is proposed to be located .

(7) The cabinet shall use any other public notice method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.

(8) In addition to the published public notices required in this section, an applicant shall deliver a notice that has been prepared by the cabinet to:

(a) Landowners of all adjacent and abutting properties surrounding the proposed special waste site or facility; and

(b) Occupants of all buildings or units within a building on adjacent and abutting properties surrounding the proposed special waste site or facility.

Section 5. Public Comment Period. The public comment period shall allow at least thirty (30) days for public comment during which any interested person may submit written comments on the application or permit decision, and may request a public hearing if a hearing has not already been scheduled. The comment period shall commence on the date of publication of the public notice.

Section 6. Public Hearings.

(1) The cabinet may hold a public hearing on the basis of written request or if a significant degree of public interest exists concerning a special waste site or facility permit decision. The cabinet may hold a public hearing to clarify one (1) or more issues involved in the permit decision.

(2) If a public hearing is held, a presiding officer shall be designated by the cabinet for the hearing who shall be responsible for its scheduling and orderly conduct.

(3) Any person may submit oral or written statements and data. Reasonable limits may be set upon the time allowed for oral statement, and the submission of statements in writing may be required.

(4) A written transcript of the hearing shall be made available to any person upon payment of the actual cost of reproducing the original.

Section 7. Reopening of the Public Comment Period.

(1) If any data, information, or arguments submitted during the public comment period, including information or arguments that any condition of the proposed permit or permit denial is inappropriate, appear to raise substantial new questions concerning a permit, the cabinet may:

(a) Prepare a new draft permit; or

(b) Reopen or extend the comment period to provide interested persons an opportunity to comment on the information or arguments submitted.

(2) Comments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening. A public notice shall define the scope of the reopening.

(3) The cabinet may also, in the circumstances established in subsection (1) of this section, elect to hold further proceedings. This decision may be combined with any of the actions established in subsection (1) of this section.

Section 8. Response to Comments.

(1) At the time that any final permit decision is issued, the cabinet shall issue a response to comments. This response shall:

(a) State which provisions, if any, of the draft permit have been changed in the final permit decision, and the reasons for the change; and

(b) Briefly describe and respond to all comments on the draft permit raised during the public comment period, or during any public hearing.

(2) The response to comments shall be available to the public and shall be deposited in an appropriate facility in the county in which the site or facility is proposed.

Section 9. Adjudicatory Hearing. An aggrieved person's right to an adjudicatory hearing pursuant to KRS 224.10-420 shall commence upon the completion of the public comment and hearing period as established in Sections 5 through 7 of this administrative regulation and upon the cabinet's rendering of a final permit decision in accordance with 401 KAR 45:030, Section 9.

History

RELATES TO: KRS 224.1, 224.10, 224.40, 224.46, 224.50, 224.999
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.50-760(1)(d)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.50-760(1)(d) authorizes the cabinet to promulgate administrative regulations for the management, processing, and disposal of wastes. KRS 224.40-305 requires persons who establish, construct, operate, maintain, or allow the use of a waste site or facility to obtain a permit. This administrative regulation establishes public information procedures. This administrative regulation does not establish the public information procedures for biosolids from the treatment of domestic sewage or sewage sludge from a treatment facility.
History: 18 Ky.R. 3086; eff. 6-24-1992; Cert eff. 9-5-2018; 50 Ky.R. 929, 2032; eff. 6-6-2024.

401 KAR 45:060 Special waste permit-by-rule {#sec-401-kar-45-060 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:060}

Section 1. Permit-by-rule. Notwithstanding any other provision of this chapter, the following special waste sites or facilities shall be deemed to have a permit without the owner or operator having made application or registration with the cabinet, if the operation is a practice common to the industry, if the site or facility is not in violation of 401 KAR 30:031, and if the operation does not present a threat or potential threat to human health or the environment:

(1) Pits subject to 401 KAR 5:090;

(2) Temporary storage of special waste in piles;

(3) Injection wells:

(a) Used for disposal of special waste subject to 805 KAR 1:110; or

(b) In compliance with an underground injection control permit issued by the U.S. EPA;

(4) Special waste surface impoundments with a KPDES permit;

(5) If the facility is in compliance with the KPDES or NPDES permit, surface impoundments that:

(a) Treat domestic sewage and that do not contain any industrial wastewater; or

(b) Are publicly owned treatment works for the treatment of domestic sewage; and

(6) Beneficial reuse of coal combustion by-products for placement at active or abandoned underground or surface coal mines, including structural fill, backfill, material for contouring, mine stabilization, and reclamation material, if:

(a) The utilization of coal combustion by-products does not result in the creation of a nuisance condition;

(b) Erosion and sediment control measures consistent with sound engineering practices shall be undertaken;

(c) Unless permission has been obtained from the appropriate regulatory agency, the use is not within 100 feet of existing streams or 300 feet of existing drinking water wells, floodplains, or wetlands;

(d) The generator characterizes the nonhazardous nature of the coal combustion by-products; and

(e) The generator submits to the cabinet an annual report that identifies the:

Type and amount of coal combustion by-products released for reuse;
Name and address of each recipient of coal combustion by-products; and
Specific use, if known, of each recipient made of the coal combustion by-products.

Section 2. Noncompliances.

(1) A special waste permit-by-rule site or facility that is not operating in compliance with Section 1 of this administrative regulation shall be subject to appropriate enforcement action, including corrective action or revocation.

(2) The cabinet may require the owner or operator of a special waste permit-by-rule site or facility to upgrade the permit to a registered permit-by-rule if doing so will ensure that the requirements of this chapter and the environmental performance standards of 401 KAR 30:031 are met.

History

RELATES TO: KRS 224.1, 224.10, 224.40, 224.46, 224.50, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.50-760
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to promulgate administrative regulations for the management, processing, and disposal of wastes. KRS 224.40-305 requires persons who establish, conduct, operate, maintain, or permit the use of a waste site or facility to obtain a permit. This administrative regulation establishes the requirements for a special waste permit-by-rule.
History: 401 KAR 045:060. 18 Ky.R. 3089; 3437; eff. 6-24-1992; 43 Ky.R. 796, 1558; eff. 5-5-2017; 44 Ky.R. 319, 1258; eff. 12-7-2017; Crt eff. 9-5-2018; Crt to Am; filing deadline 2-28-2027.

401 KAR 45:070 Special waste registered permit-by-rule {#sec-401-kar-45-070 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:070}

Section 1. Registered Permit-by-rule.

(1) A person engaged in the following activities shall be required to register with the cabinet:

(a) Sludge giveaway in accordance with Section 8 of 401 KAR 45:100;

(b) Beneficial reuse of special waste not specified in Section 1(7) of 401 KAR 45:060; and

(2) Special waste registered permit-by-rule sites or facilities shall not store, treat, reuse, or dispose of special waste without first submitting a registration to the cabinet and receiving acknowledgement, in writing, by the cabinet of acceptance of the registration in accordance with Section 2 of this administrative regulation.

Section 2. Registration Procedure for Registered Permit-by-rule.

(1) Persons required to obtain a registered permit-by-rule shall complete and submit the following information:

(a) "Registered Permit-by-rule for Sludge Giveaway" DEP 7059D (November 2005);

(b) "Registered Permit-by-rule for Beneficial Reuse" DEP 7059F (November 2005); or

(2) The owner or operator shall submit any additional information necessary to ensure compliance with this administrative regulation to the cabinet upon request.

(3) After submission of the appropriate registration form, the cabinet shall review the registration form. If the cabinet determines upon examination of the registration form that it fails to include all of the required information or that the registration form fails to provide the engineering, geological, or scientific information necessary to determine that the registered permit-by-rule site or facility will comply with 401 KAR 30:031, the cabinet shall notify the owner or operator that the registration form is deficient and the owner or operator shall submit the information requested by the cabinet.

(4) Owners or operators of a registered permit-by-rule site or facility may begin operation of the site or facility when the cabinet acknowledges in writing receipt of a complete registration and the cabinet determines the operation complies with the environmental performance standards of 401 KAR 30:031.

Section 3. Operation During a Registered Permit-by-rule.

(1) A site or facility operating under a registered permit-by-rule, except as provided in Section 4 of this administrative regulation, shall not:

(a) Store, treat, reuse, or dispose of special waste not specified in the registration form; or

(b) Exceed the design capacities specified in the administrative registration form.

(2) The owner or operator of a registered permit-by-rule site or facility shall comply at all times with 401 KAR 30:031, 401 KAR 45:140, and this administrative regulation.

(3) The owner or operator of a registered permit-by-rule site or facility shall comply with the applicable provisions of 401 KAR 45:100.

Section 4. Changes To a Registered Permit-by-rule.

(1) The owner or operator of a registered permit-by-rule site or facility shall submit a revised registration form identifying new types of special waste to be stored, treated, reused, or disposed at the registered permit-by-rule site or facility if the special waste type was not previously identified in the registration form.

(2) The owner or operator shall submit a revised registration form prior to increases in the design capacity of processes used at a site or facility.

(3) The owner or operator shall submit a revised registration form prior to changes in the processes for the storage, treatment, reuse, or disposal of special waste or use of additional processes.

(4) The owner or operator shall submit a revised registration form prior to changes in owners or operators of the site or facility.

(5) Changes listed in subsections (1) to (4) of this section shall not be implemented until the cabinet acknowledges in writing receipt of a complete revised registration form.

(6) If the revised registration form fails to provide the engineering, geological, or scientific information necessary to determine that the registered permit-by-rule site or facility will comply with 401 KAR 30:031, the cabinet shall notify the owner or operator that the revised registration form is deficient, and the owner or operator shall submit the information requested by the cabinet.

Section 5. Noncompliances. The cabinet may take any appropriate enforcement actions, including corrective action or revocation, if a special waste registered permit-by-rule site or facility is not operating in compliance with this administrative regulation.

Section 6. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Registered Permit-by-rule for Sludge Giveaway", DEP 7059D, November 2016;

(b) "Registered Permit-by-rule for Beneficial Reuse", DEP 7059F, November 2016; or

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, Monday through Friday, 8 a.m. to 4:30 p.m., eastern time, excluding state holidays, or from the Web site at eec.ky.gov/environmental-protection/waste.

History

RELATES TO: KRS 224.01-010, 224.50-760
STATUTORY AUTHORITY: KRS 224.10-100(30), 224.10-100, 224.40-305, 224.50-760(1)(d)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(30) authorizes the cabinet to promulgate administrative regulations not inconsistent with the provisions of law administered by the cabinet. KRS 224.50-760(1)(d) authorizes the cabinet to promulgate administrative regulations for the management of special wastes. KRS 224.40-305 requires persons who establish, construct, operate, maintain or permit the use of a waste site or facility to obtain a permit, pursuant to administrative regulations adopted by the cabinet. This administrative regulation establishes requirements for a special waste registered permit-by-rule.
History: 401 KAR 045:070. 18 Ky.R. 3090; 3438; 19 Ky.R. 23; eff. 6-24-1992; 32 Ky.R. 1474; 1886; eff. 5-5-2006; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Crt eff. 9-5-2018; TAm eff. 5-7-2019; Crt eff. 8-29-2025.

401 KAR 45:080 Financial requirements and bonds for special waste facilities {#sec-401-kar-45-080 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:080}

Section 1. Applicability. The financial assurance criteria and bond requirements shall apply to the owner or operator of special waste landfills; Type A landfarming and composting sites or facilities; research, development, and demonstration sites or facilities; and other sites or facilities if required by the cabinet as part of a remedy or requirement included in a resolution of permit violations.

Section 2. Closure Cost Estimate. The owner or operator shall have a detailed, current written estimate, in dollars, of the cost of hiring a third party to close the special waste disposal site or facility in accordance with the closure plan developed to satisfy the closure requirements in 401 KAR 45:100, Section 4, and 401 KAR 45:110, Section 5.

(1) The estimate shall equal the cost of closing the special waste disposal site or facility at the point in the active life when the extent and manner of its operation would make closure the most expensive. The cabinet may adjust the figure for inflation and other factors. The owner or operator shall base the cost estimate on the following elements that are applicable depending on the type of site or facility:

(a) Design;

(b) Site grading and drainage;

(d) Final grading and drainage of the cap;

(e) Revegetation of the cap; and

(f) Quality control and construction certification.

(2) The owner or operator shall increase the closure cost estimate and the amount of financial assurance established under Section 5 of this administrative regulation if changes to the closure plan or special waste disposal site or facility conditions increase the maximum cost of closure at any time during the active life.

(3) The owner or operator may request a reduction in the closure cost estimate and the amount of financial assurance established under Section 5 of this administrative regulation if the owner or operator can demonstrate that the cost estimate exceeds the maximum cost of closure at any time over the life of the special waste disposal site or facility.

(4) The owner or operator shall keep a copy of the latest closure cost estimate at the special waste disposal site or facility until the owner or operator has been notified by the cabinet that the owner or operator has been released from closure financial assurance requirements under Section 5 of this administrative regulation.

Section 3. Postclosure Cost Estimate.

(1)

(a) The owner or operator shall have a current, detailed written estimate, in dollars, of the cost of hiring a third party to conduct each phase of postclosure monitoring and maintenance of the special waste site or facility in accordance with the postclosure plan developed to satisfy the postclosure requirements of 401 KAR 45:100, Section4, and 401 KAR 45:110, Section 5.

(b) The postclosure cost estimate for each phase of postclosure used to demonstrate financial assurance in Section 6 of this administrative regulation shall be calculated by multiplying the annual cost estimate for each phase of postclosure by the number of years of postclosure care required.

(2) The cost estimate for each phase of postclosure shall be based on the most expensive costs of postclosure during that phase.

(3) The owner or operator shall increase the amount of the postclosure cost estimate and the amount of financial assurance established under Section 6 of this administrative regulation if changes in the postclosure plan or facility conditions increase the maximum costs of postclosure.

(4) The owner or operator may request a reduction in the postclosure cost estimate and the amount of financial assurance established under Section 6 of this administrative regulation if the owner or operator can demonstrate to the satisfaction of the cabinet that the cost estimate exceeds the maximum costs of postclosure remaining over the postclosure period.

(5) The owner or operator shall keep a copy of the latest postclosure cost estimate at the site or facility until notified by the cabinet that the owner or operator has been released from postclosure financial assurance requirements for the entire facility under Section 6 of this administrative regulation.

Section 4. Financial Mechanisms. The owner or operator shall use one (1) of the financial mechanisms established in Section 7 or 10 of this administrative regulation, which satisfies the criteria in subsections (1) through (3) of this section. The financial assurance mechanism shall:

(1) Ensure that the amount of funds shall be sufficient to cover the costs of closure and postclosure care;

(2) Ensure that funds shall be available in a timely fashion; and

(3) Guarantee the availability of the required amount of coverage prior to the initial receipt of special waste.

Section 5. Closure Financial Assurance. The owner or operator of a special waste site or facility governed by this administrative regulation shall establish, in accordance with Section 4 of this administrative regulation, financial assurance for closure of the facility, in an amount equal to the most recent closure cost estimate prepared in accordance with Section 2 of this administrative regulation. The owner or operator shall provide continuous coverage for closure until released from financial assurance requirements pursuant to 401 KAR 45:100, Section 4, or 401 KAR 45:110, Section 5.

Section 6. Postclosure Financial Assurance. The owner or operator of a special waste site or facility governed by this administrative regulation shall establish, in accordance with Section 4 of this administrative regulation, financial assurance for postclosure care of the facility, in an amount equal to the most recent postclosure cost estimate prepared in accordance with Section 3 of this administrative regulation. The owner or operator shall provide continuous coverage for postclosure until released from the financial assurance requirement pursuant to 401 KAR 45:100, Section 4, or 401 KAR 45:110, Section 5.

Section 7. Performance Agreement.

(1) Before the cabinet shall issue a construction and operation permit, the owner or operator of a special waste site or facility that is required to post financial assurance pursuant to this administrative regulation shall complete a performance agreement form on Performance Agreement, DWM 4650.

(2) To satisfy the financial requirement, the owner or operator shall submit a performance bond and one (1) of the following:

(a) A surety bond which is executed by filling in the required information on the performance bond form submitted in accordance with subsection (1) of this section and by submitting a copy of the surety bond agreement to the cabinet;

(b) A letter of credit submitted on form Irrevocable Letter of Credit, DWM 4670; or

Section 8. Release of Financial Assurance.

(1) Financial assurance posted to assure proper closure of a special waste landfarming or composting facility shall be released in accordance with 401 KAR 45:100, Section 4.

(2) Financial assurance posted to assure proper closure of a special waste landfill shall be released in accordance with 401 KAR 45:110, Section 5.

Section 9. Financial Assurance for Publicly Owned Facilities. The owner or operator of a publicly owned facility shall provide a budget for the permitting, construction, operation, closure, and postclosure care of the facility. The budget shall be revised and submitted annually. If elements of the facility's permitting, construction, operation, closure, or postclosure care are to be accomplished by contract or agreement, a copy of the contract or agreement shall be submitted to the cabinet.

Section 10. Financial Assurance for Captive Facilities. The cabinet may accept other satisfactory financial assurance as adequate financial responsibility for a special waste site or facility exclusively owned and operated by a special waste generator on property owned by the special waste generator for the purpose of accepting special waste exclusively from the special waste generator.

Section 11. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Performance Agreement", form DWM 4650, February 2019;

(b) "Irrevocable Letter of Credit" form DWM 4670, [; February 2019; and

(3) This material may also be obtained on the division's Web site at eec.ky.gov/environmental-protection/waste.

History

RELATES TO: KRS 224.1, 224.10, 224.40, 224.46, 224.50, 224.99, Chapter 355
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.50-760(1)(d)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.50-760(1)(d) authorizes the cabinet to promulgate administrative regulations for the managing, processing, or disposal of wastes. KRS 224.40-305 requires persons who establish, construct, operate, maintain, or allow the use of a waste site or facility to obtain a permit. This administrative regulation establishes the financial requirements for closure and postclosure of special waste sites or facilities but does not establish financial assurance requirements for biosolids from the treatment of domestic sewage or sewage sludge from a treatment facility. Information related to the permitting of biosolids is located in 401 KAR 45:105.
History: 18 Ky.R. 3092; 3439; eff. 6-24-1992; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Cert eff. 9-5-2018; TAm eff. 5-7-2019; 50 Ky.R. 932, 2034; eff. 6-6-2024.

401 KAR 45:090 Special waste operator certification {#sec-401-kar-45-090 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:090}

Section 1. Applicability.

(1) The requirements of this administrative regulation apply to all special waste landfills, landfarms, and composting facilities operating under formal permits, as identified in 401 KAR 45:020, Section 2(1)(a) and (b).

(2) The owner or operator shall ensure that all technical operations at the special waste site or facility are conducted by or under the direction of an individual with a valid certification under this administrative regulation. The landfill, landfarming, or composting operator shall be reasonably available at the site or facility during operation.

(3) The certified operator shall ensure that all operations are conducted in compliance with this chapter.

(4) A special waste site or facility permit may be revoked or subject to other enforcement actions upon violation of the requirements of this administrative regulation.

Section 2. Transition of Certification.

(1) Persons holding a valid certification for landfill manager, landfill operator, and landfarming operator under 401 KAR 47:070 shall be deemed to hold a valid certification under this chapter until the certification expires. At the time a certification expires, the certificate holder shall obtain special waste certification under this administrative regulation.

(2) Persons operating a special waste landfill who were not previously certified to operate a residual landfill under 401 KAR Chapter 47 shall obtain certification under this chapter within one (1) year of June 24, 1992.

(3) Persons operating a special waste composting or landfarming site or facility shall obtain certification within one (1) year of June 24, 1992.

Section 3. General Provisions for Landfills.

(1) Each special waste landfill shall have a landfill operator certified in accordance with this administrative regulation.

(2) No special waste landfill shall operate in the absence of a certified operator without the appointment of an interim operator in accordance with Section 11 of this administrative regulation.

Section 4. General Provisions for Landfarming and Composting Facilities.

(1) Each landfarming or composting facility shall have an operator certified in accordance with this administrative regulation.

(2) No landfarming or composting facility shall operate in the absence of a certified operator without the appointment of an interim operator in accordance with Section 11 of this administrative regulation.

Section 5. Application for Certification.

(1) Persons desiring to be certified shall submit an application at least thirty (30) days prior to the scheduled training class. Applicants for training and examination shall use form DEP 6031 entitled "Application for Certification" (November 2016). The requirements contained in the application for certification are incorporated in this administrative regulation by reference. The application may be obtained from the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, between the hours of 8 a.m. to 4:30 p.m., Eastern Time, Monday through Friday, or from the Web site at eec.ky.gov/environmental-protection/waste.

(2) The cabinet shall review applications and supporting documents, determine the eligibility of the applicant for examination, and notify the applicant of the determination.

(3) No person shall be eligible for examination for certification unless that person completes the appropriate training course provided by the cabinet, unless an alternative training program is accepted by the cabinet in accordance with Section 6 of this administrative regulation.

Section 6. Training Course Requirements.

(1) The cabinet shall provide training courses for individuals desiring to become certified. All applicants for certification shall be required to attend a training course provided by the cabinet, unless alternate training is accepted under subsection (3) of this section.

(2) The training course shall address the technical and legal aspects of the facility type for which operator certification is sought.

(a) The training course for landfill operators shall include:

Permit application requirements for special waste landfills, including technical and administrative requirements;
Waste characterization;
Chemical and biologic reactions associated with the waste;
Hydrogeologic and engineering factors associated with the facility;
Operational requirements and achieving compliance with 401 KAR 30:031;
Duties and responsibilities associated with landfill management;
Requirements of this chapter as they apply to facility operation, including environmental monitoring, operations requirements, and maintaining compliance with 401 KAR 30:031;
Evaluating site suitability to receive wastes;
Environmental considerations in preventing violations of this chapter;
Maintaining equipment; and
Facility safety.

(b) The training course for landfarm and composting operators shall include:

Requirements of this chapter as they apply to facility operation and management;
Wastewater treatment processes;
Waste characterization;
Chemical and biological reactions associated with the waste;
Landfarming design and management;
Permit application requirements for special waste landfarms;
Environmental considerations in preventing violations of this chapter;
Achieving and maintaining compliance with 401 KAR 30:031;
Evaluating site suitability to receive waste;
Maintaining equipment;
Facility safety; and
Duties and responsibilities associated with operating a landfarm.

(3) The cabinet may accept alternate training courses, provided they result in a level of competence equivalent to that of participation in the cabinet's training course. It shall be the applicant's responsibility to submit documentation as the cabinet requires for an equivalency judgement of the alternate training course. This information shall contain at a minimum the following specifics: the course name; sponsoring agency; the date, location, and beginning and ending times of the course; a summary of the course content of sufficient detail to determine relevance and quality of the course; and a copy of the certificate received.

Section 7. Training and Examinations.

(1) After training is complete, time shall be set aside for the purpose of examinations to determine the knowledge and ability of the applicant.

(2) Separate examinations shall be prepared to cover basic differences in the duties and responsibilities for the operation of each category of special waste site or facility.

(3) Applicants who fail to pass an examination may reapply for the examination at a regularly scheduled examination or by appointment with the cabinet. The cabinet shall require the applicant to attend the training session again if the applicant fails to pass the examination in three (3) attempts.

Section 8. Education and Equivalencies.

(1) All applicants shall be evaluated by the cabinet as to education and experience as related to the appropriate category of special waste site or facility.

(2)

(a) Applicants for landfill operator shall have completed high school, by graduation or by obtaining an equivalency certificate, and shall have a minimum of one (1) year of experience at a landfill facility.

(b) If an applicant for landfill operator does not meet the requirements of paragraph (a) of this subsection, the cabinet may consider the number of years of experience in operating a landfill or experience in a related field such as heavy equipment operator, road construction, surface mining.

(3)

(a) Applicants for landfarming or composting operator shall have completed high school, by graduation or by obtaining an equivalency certificate, and shall have a minimum of one (1) year of experience at a landfarming or composting facility.

(b) If an applicant for landfarming or composting operator does not meet the requirements of paragraph (a) of this subsection, the cabinet may consider the number of years of experience in operating a landfarming facility or experience in a related field such as wastewater treatment or water treatment in determining eligibility for examination on a year-for-year basis.

Section 9. Issuance of a Certificate.

(1) Certification may be issued to individuals upon meeting the minimum education requirements, work experience, and the course work requirements of this administrative regulation and passing the examination in accordance with Section 5 of this administrative regulation.

(2) Certification shall not be valid if obtained through fraud, deceit, or the submission of inaccurate data.

Section 10. Issuance of Certificate.

(1) A certification shall be issued for a period of five (5) years, at the end of which the certification shall expire, unless renewed. Renewal procedures and requirements shall be the same as those for a new certification.

(2) The certification of an operator whose employment at a special waste site or facility terminates shall remain valid until expiration or revocation of certification.

(3) Certificates shall be carried on the person of the certified operator during working hours at the facility, or shall be prominently displayed at the facility office.

(4)

(a) The cabinet may revoke the certification of an operator if the operator:

Has practiced fraud or deception;
Has failed to perform his duties under this chapter;
Has failed to use reasonable care and judgement in performance of his duties under this chapter; or
Has knowingly or willfully violated the requirements of this chapter.

(b) Individuals who have had their certification revoked shall be ineligible for future recertification.

Section 11. Interim Operators.

(1) The permittee shall be responsible for actions of an interim operator. The permittee shall notify the cabinet in writing if the special waste site or facility will not have a certified operator for more than fourteen (14) consecutive operating days.

(2) Consecutive operating days, as used in subsection (1) of this section, shall be determined as any days:

(a) When the special waste site or facility accepts waste, operates equipment, or otherwise performs the business of special waste management; and

(b) That occur in sequence, regardless of whether nonoperating days such as weekends or holidays fall in between.

(3) The notification required by subsection (1) of this section shall be provided at least ten (10) days prior to an anticipated absence, and immediately upon discovery of an unanticipated absence. The notification shall contain:

(a) The name, address, and qualifications of the interim operator;

(b) The length of time for which the permittee seeks to have an interim operator rather than a certified operator; and

(4) The cabinet shall evaluate the qualifications of the designated interim operator and shall notify the permittee of the cabinet's determination in writing within thirty (30) days of receipt of the permittee's notice. The determination shall:

(a) Approve, conditionally approve, or deny the permittee's request for designation of the interim operator;

(b) Identify the length of time an interim operator may operate the special waste site or facility; and

(5) An interim operator shall obtain certification under this administrative regulation within fifteen (15) months of becoming an interim operator.

(6) The cabinet may revoke the appointment of an interim operator in accordance with Section 10(4)(a) of this administrative regulation. Revocation shall render the person ineligible for operator certification under Section 10(4)(b) of this administrative regulation.

Section 12. Fees.

(1) Fees for application for certification shall be:

(a) $125 for application for certification as a landfill operator;

(b) $125 for certification as a landfarming or composting operator;

(d) $100 dollars for attendance at the certification training without taking the examination.

(2) Fees shall accompany applications and shall not be returned to those who do not qualify for a certificate.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.50
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-100, 224.40-305, 224.40-605, 224.50-760
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt administrative regulations for the management, processing, and disposal of special wastes. KRS 224.40-305 requires persons who establish, conduct, operate, maintain or permit the use of a waste site or facility to obtain a permit. This chapter establishes the permitting standards for special waste sites or facilities, and the standards applicable to all special waste sites or facilities. This administrative regulation establishes the program for education, testing, and certification of operators of special landfarming sites or facilities in accordance with KRS 224.40-605.
History: 401 KAR 045:090. 18 Ky.R. 3094; 3440; eff. 6-24-1992; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Crt eff. 9-5-2018; TAm eff. 10-15-2018; TAm eff. 5-7-2019; Crt eff. 8-29-2025.

401 KAR 45:100 Landfarming and composting of special waste {#sec-401-kar-45-100 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:100}

Section 1. Applicability.

(1) The requirements in this administrative regulation shall apply to any person disposing of or treating special waste by:

(a) Composting; or

(b) Landfarming of special wastes that are not biosolids..

(2) Landfarming of biosolids shall be regulated in accordance with 401 KAR 45:105.

Section 2. Classifications of Special Waste Landfarming and Composting Sites or Facilities. A special waste landfarming or composting site or facility shall be classified as a Type A or Type B facility after the cabinet reviews the application filed pursuant 401 KAR 45:030, Section 8(1)(b). The classification shall be based on the type and quantity of sludge or other special waste to be accepted at the landfarm or composting site or facility. Classifications shall be established in accordance with subsections (1) through (3) of this section.

(1) A Type A landfarm or composting facility shall be a site or facility that accepts Type A sludge or other special waste. Type A sludge shall include sludge containing these limits:

(2)

(a) A Type B landfarm or composting facility shall be a site or facility that accepts Type B sludge or other special waste. Type B sludge shall include sludge containing these limits:

(b) The maximum amount of sludge that may be processed by a Type B landfarm or composting site or facility shall be 250,000 gallons or 250 tons (dewatered) per calendar year. If the owner or operator is processing Type B sludge and exceeds this volume limitation, then the site or facility shall be classified as a Type A landfarm or composting facility.

(3) One (1) time only disposal. An applicant for one (1) time only disposal of special waste by landfarming or composting methods shall submit an application for a Type B landfarming or composting facility.

(4) An application to landfarm biosolids shall meet the requirements of 401 KAR 45:105.

(5) A facility composting a Type A sludge may, at the discretion of the cabinet, be classified as a Type B facility depending upon the volume of special waste received, methods of composting, and siting considerations.

(6) A special waste landfarm or composting site or facilities classification under this section shall be reevaluated based upon the annual analyses submitted under Section 6(19) or 9(5) of this administrative regulation. The cabinet may reassign a landfarming or composting site or facility classification based on this submittal and require the owner or operator of the landfarm or composting site or facility to modify the permit accordingly.

(7)

(a) Classification under this section shall be based on the average concentration of metals, listed in subsection (1) and (2) of this section, in a minimum of two (2) consecutive samples taken no closer than thirty (30) days apart. Metal concentration values shall be determined on a dry weight basis. Analysis shall be accomplished by determining the metal concentration of the undried sample (wet weight) and converting to dry weight using percent solids. The following formula shall be used: mg/L or mg/kg (wet weight) divided by (percent solids/100) = mg/kg dry weight.

(b) A single metal parameter shall be sufficient to require a sludge to be classified as Type A.

Section 3. Application Procedure for a Special Waste Landfarming or Composting Permit.

(1)

(a) Notice of intent to apply. An applicant for a special waste landfarming or composting permit shall submit a notice of intent to apply as required under 401 KAR 45:030, Section 8(1)(b) or (c). Upon review of the notice of intent to apply, the cabinet shall notify the applicant of the special waste classification determination and designate the landfarming or composting facility as either a Type A or Type B facility.

(b) The applicant shall submit a notice of intent form with the permit application established in subsection (2) of this section.

(2)

(a) Contents of landfarming or composting permit application. Upon determination of a special waste classification, A person shall submit the designated permit application for a special waste landfarming or a composting facility as established in 401 KAR 45:030, Section 8(1)(b) or (c), to the cabinet.

(b) A landfarming application may include parcels of land that are not located contiguously.

(3)

(a) An applicant for a landfarming or composting facility formal permit shall comply with applicable requirements in 401 KAR 45:030.

(b) An applicant for a Type A landfarming or composting facility shall also comply with the:

Public notice requirement in 401 KAR 45:050;
Financial assurance requirements of 401 KAR 45:080;
Surface and groundwater requirements of 401 KAR 45:160; and
Postclosure requirements of Section 4 of this administrative regulation.

(4)

(a) A groundwater monitoring plan pursuant to 401 KAR 45:160 shall be required for Type A facilities.

(b) Upon examination by the cabinet of the facility specific geologic setting and any variance requests in the permit application, the cabinet may require the applicant for a Type B facility to prepare a groundwater monitoring plan to include location and specifications of wells, monitoring parameters, and monitoring schedules in accordance with 401 KAR 45:160.

(5) The cabinet shall base a decision to approve or deny a permit application for a special waste landfarming or composting facility based on the suitability of the facility, the special waste's ability to biodegrade in the environment, the potential for the special waste to be managed in a manner consistent with 401 KAR 30:031, the likelihood that special waste constituents will contaminate surface water or groundwater, the potential for nuisances from odors or unsightly conditions, and the potential for the special waste to harm human health or the environment.

Section 4. Closure and Postclosure of Landfarming and Composting Facilities.

(1) An owner or operator permanently ceasing to accept special waste at a Type A or Type B special waste landfarming or composting site or facility, shall submit to the cabinet a closure report that shall include:

(a) The results of final soil samples taken in accordance with the permit within eighteen (18) months following the last application of special waste;

(b)

For landfarming sites or facilities, a historical summary of all landfarming, by subplot, showing:

a. The allowable and actual rates of special waste application;

b. Heavy metals and nitrogen; and

c. Incorporating the annual landfarming review required by Section 6(19) of this administrative regulation; or

For composting sites or facilities, a historical summary of composting activities at the site incorporating the annual composting review report required in Section 9(5) of this administrative regulation; and

(c) A certification from the owner or operator that the site or facility is closed and is in compliance with 401 KAR 30:031.

(2) The cabinet shall review the closure report and determine if any additional monitoring or information shall be required to assure compliance of the site or facility with 401 KAR 30:031. If the site is not in conformance with 401 KAR 30:031 or the requirements of this chapter, the cabinet may take appropriate enforcement actions for violations of 401 KAR Chapter 45 or KRS Chapter 224.

(3)

(a) A two (2) year postclosure monitoring maintenance period commencing on the first day after the facility permanently ceases accepting special waste shall be required for all Type A landfarming and composting facilities and for any other landfarming or composting facility required to conduct groundwater or surface water monitoring pursuant to 401 KAR 45:160.

(b) During the postclosure monitoring and maintenance period, the owner or operator shall conduct groundwater and surface monitoring as required by:

401 KAR 45:160;
The facility's approved groundwater and surface water monitoring plans; and
The terms of the facility's special waste permit.

(4)

(a) At the conclusion of the two (2) year postclosure monitoring and maintenance period, the owner or operator shall submit a certification that postclosure is complete and that the site or facility is in compliance with 401 KAR 30:031 and the terms of this chapter.

(b) The cabinet shall review the postclosure certification and if additional monitoring or information is not required and the site or facility is not subject to any enforcement actions for violations of this chapter or KRS Chapter 224, then the cabinet shall accept the owner's or operator's certification of postclosure.

(5) Upon acceptance of certification of postclosure, the cabinet shall release the financial assurance bond.

(6) The two (2) year postclosure monitoring and maintenance period may be extended if groundwater contamination as established 401 KAR 45:160, Section 5, is documented and the owner or operator is required to submit a groundwater assessment plan.

(7) Any necessary environmental remediation steps or corrective action for groundwater contamination required under 401 KAR 45:160 shall be performed before the special waste landfarm or composting site or facility postclosure is certified as complete and financial assurance is released.

Section 5. Siting Requirements for Landfarming. Special waste landfarming sites or facilities shall comply with subsections (1) through (5) of this section:

(1) Special waste shall not be applied in the 100-year floodplain unless the special waste is injected or incorporated.

(2) Land application units shall have a minimum of four (4) feet of soil between the soil surface and both the seasonal high water table and bedrock.

(3) Special waste shall not be applied on soils with a permeability rate greater than six (6) inches per hour or less than two-tenths (0.2) inches per hour.

(4) Land application units shall not be located on land with a slope greater than fifteen (15) percent.

(5) All landfarming facilities shall comply with 401 KAR 30:031 and shall maintain the following buffer zones:

Section 6. Operating Requirements for Special Waste Landfarming Facilities. Special waste landfarming sites or facilities shall comply with subsections (1) through (29) of this section.

(1) Prior to applying sludges to the land, all sludges shall be processed to significantly reduce pathogens as established in Section 11 of this administrative regulation.

(2) An operator certified in accordance with 401 KAR 45:090 shall be available at the landfarming site during special waste application. All sludge applications shall be accomplished under the direction of a certified landfarming operator.

(3) If surface application is used in conjunction with soil incorporation methods, incorporation shall occur within forty-eight (48) hours of sludge application.

(4) Surface application without incorporation into the soil shall not be used on land without established vegetative cover or crop residue of at least seventy-five (75) percent.

(5) Hazardous wastes or mixtures of hazardous and solid waste shall not be disposed at, discharged to, or placed in a landfarming site.

(6) Toxic wastes or mixtures of toxic and nontoxic wastes regulated under 7 U.S.C. 136 et seq. (the Toxic Substances Control Act) shall not be disposed at, discharged to, or placed in a landfarming site.

(7) The agricultural use restrictions established in paragraphs (a) through (e) of this subsection shall apply.

(a) Land spreading shall not occur on land where leafy vegetables or root crops for human consumption will be harvested within twelve (12) months.

(b) Land spreading shall not occur on land where crops for direct human consumption will be harvested within two (2) months.

(c) Dairy grazing shall be prohibited for six (6) months after land spreading. Other livestock grazing shall be prohibited for three (3) months.

(d) The annual application rate of cadmium shall meet the requirements in 401 KAR 30:031, Section 6.

(e) If the annual application rate of cadmium from sludge exceeds 0.44 pounds per acre at any time during the life of a site, special waste shall not be land spread where tobacco is to be harvested within five (5) years of special waste application.

(8) The general public shall be restricted from the application zone for a period of twelve (12) months after each application, unless the special waste has undergone a process to further reduce pathogens in accordance with Section 12 of this administrative regulation.

(9) Special waste shall not be land spread on frozen, snow-covered, ice-covered, or water-saturated soil, or during any precipitation event.

(10) special waste shall not be applied in excess of schedules and rates of special waste application established in subsection (23) of this section and Section 7 of this administrative regulation.

(11) Raw or unstabilized special waste shall not be landfarmed. The permittee shall maintain compliance with the ambient air quality standard for odor, as established in 401 KAR 53:010.

(12) The amount of any single surface application shall not be greater than an average one-half (1/2) inch in thickness.

(13) High pressure spray irrigation of sludge that produces aerosols shall be prohibited.

(14) Subplots shall be staked or otherwise clearly marked in the field.

(15) The owner or operator shall have a sign located at the entrance to the landfarming facility. The sign shall indicate the source and type of special waste and the type of operation, the name of operator, the permit number, the contact person, and the emergency telephone number.

(16) Surface water or special waste ponding within the application zone shall be prohibited.

(17) Surface run-off and run-on shall be controlled to minimize the possibility of applied special waste contaminating nearby surface water or adjacent land areas.

(18) Records of all landfarming activities shall be maintained throughout the operation of the site on the form, Annual Landfarming Review, DEP 7048. The records shall at a minimum contain the schedules and rates of special waste application and all laboratory analyses. Records shall be made available to the cabinet upon request.

(19) Each landfarming owner or operator shall submit an annual report of landfarming activities to the cabinet by March 15 for the landfarming activities conducted the previous calendar year. The report shall be submitted on form DEP 7048, Annual Landfarming Review.

(20) Operational monitoring shall be performed as established in paragraphs (a) and (b) of this subsection.

(a) Soil shall be sampled annually in accordance with the soil monitoring plan in the approved permit.

(b)

Special waste from municipal water treatment facilities shall be sampled in accordance with the following table, or more frequently if required by the cabinet based on an increase in concentrations from routine sampling or a change in sources to the municipal water treatment facility.
Other special waste shall be sampled in accordance with a schedule approved by the cabinet based on an increase in concentrations from routine sampling or a change in sources to the municipal water treatment facility. Special waste shall be analyzed for solids content, pH, ammonium nitrogen (NH4-N), nitrate nitrogen (NO3-N), total Kjeldahl nitrogen, total phosphorus, total potassium, PCBs, chromium, copper, zinc, nickel, lead, and cadmium. Laboratory analysis results shall be reported in milligrams per kilogram wet and dry weight.

(21) Soil pH shall be maintained at six and five-tenths (6.5) or greater during crop production, hay production, or grazing.

(22) Special waste containing concentrations of PCBs greater than one (1) milligram per kilogram shall not be landfarmed.

(23)

(a) The maximum amount of metals from special waste that may be applied during the life of the site shall be based upon the cation exchange capacity (CEC) of the soil and shall be as follows:

(b) The following equation shall be used to determine the maximum number of tons of special waste per acre that may be land spread without exceeding the above limitations:

(24) The amount of nitrogen land spread shall not exceed the nitrogen utilization rate of the vegetative cover in the application zone.

(25)

(a) If the laboratory analyses and calculations to determine quantities of metals applied to the soil indicate that the cumulative concentration of a contaminant is above the maximum level allowed under subsection (23) of this section, a written notice shall be given to the cabinet within ten (10) days of receipt of the monitoring results. The owner or operator shall cease further landfarming and submit to the cabinet within forty-five (45) days a report stating proposed corrective actions to be taken by the owner or operator.

(b) A notice shall be recorded on the property deed within forty-five (45) days of receipt of the monitoring results stating that the property has received special waste at concentrations exceeding permitted levels, and that food chain crops shall not be grown due to possible health hazards.

(26) In addition to the operating requirements in this section, the owner or operator who is landfarming Type A sludge shall sample surface water quarterly.

(a) Parameters to be monitored shall include:

pH;
Ammonium nitrogen (NH4-N);
Fecal coliform bacteria;
Chromium;
Biological oxygen demand;
Total organic carbon;and
Total dissolved solids.

(b) A minimum of one (1) upgradient and one (1) downgradient sampling point shall be required.

(27) Owners and operators of Type A landfarming or composting facilities and all Type B facilities that have documented contamination shall conduct groundwater monitoring in accordance with 401 KAR 45:160.

(28) If metal applications exceed the amounts listed in subsection (23) of this section, the owner or operator shall immediately commence closure of the facility and submit a closure report within forty-five (45) days containing the information required by Section 4(1) of this administrative regulation. The report shall also include a copy of the notice in the deed advising all future landowners in perpetuity that metal concentrations exceed those allowed by this administrative regulation.

(29) Landfarming sites and facilities shall comply with all requirements established in 401 KAR 45:140.

Section 7. Application Rates for Landfarming Sites or Facilities.

(1) The annual application rate shall be the lesser of the two (2) application rates determined for cadmium and for nitrogen utilization.

(2) The applicant shall determine the percent of available organic nitrogen in the special waste using the following calculation: Percent available organic N = (percent total N) - (percent NH4-N) - (percent NO3-N).

(3) The applicant shall determine the amount of nitrogen that shall be available for plant uptake at the landfarming site using one (1) of the following calculations depending on the application method:

(a) Incorporation: Lbs available N/ton = (percent NH4-N x 20) + (percent NH3-N x 20) + (percent available organic N x 4); or

(b) Surface application: Lbs available N/ton = (percent NH4-N x 10) + (percent NO3-N x 20) + (percent available organic N x 4).

(4) The annual application rate of cadmium from special waste shall not exceed 0.44 pound per acre. The annual application rate shall be determined using the following calculation:

Section 8. Sludge Giveaway Program. A municipal water sludge generator may give away sludge equal to or less than the metal concentration limitation established in Section 2(2) of this administrative regulation to persons for subsequent use as a soil conditioner. This program shall be operated under a registered permit-by-rule in accordance with this administrative regulation and 401 KAR 45:070. The maximum amount of sludge that may be distributed annually to any person is limited to 2,000 pounds (dry weight).

(1) During operation of the giveaway program the generator shall:

(a) Maintain a list of names and addresses of all persons receiving the sludge;

(b) Submit annually to the cabinet the sludge analysis performed in accordance with the schedule established in Section 6(20) of this administrative regulation, and a copy of the distribution log;

(c) Provide to persons receiving special waste, copies of the sludge analyses and a brochure, approved by the cabinet, explaining the proper procedures to be utilized in the landfarming of sludge; and

(d) Use a process to significantly reduce pathogens in accordance with Section 11 of this administrative regulation.

(2) Unless the sludge has undergone a process to further reduce pathogens in accordance with Section 12 of this administrative regulation, it shall not be used in a manner likely to allow direct human contact for a period of twelve (12) months from the date of application.

(3) The sludge generator shall maintain another approved means of sludge disposal to be used if the sludge is not given away.

Section 9. Operating Requirements for Composting Facilities. The owner or operator of a composting facility shall comply with the following:

(1) Within one (1) month of receiving any materials that do not meet standards for land application established in the permit or by this administrative regulation, dispose of the material in a facility permitted to accept the waste or special waste;

(2) After the compost has completed the curing process, ensure that at least seventy-five (75) percent of the compost shall be distributed within one (1) year;

(3) Use one (1) or more processes to further reduce pathogens in accordance with Section 12 of this administrative regulation;

(4) Process and store compost on an impermeable pad, or provide information on soils at the facility and a groundwater quality assurance plan;

(5) Submit an annual report for the previous calendar year's activities to the cabinet by March 1 of each year. The report shall be submitted on form DEP 7048A, Annual Composting Review; and

(6) Composting sites or facilities shall comply with all requirements established in 401 KAR 45:140.

Section 10. Usage of Composted and Treated Special Waste.

(1) Composted special waste and treated special waste that has undergone additional treatment to further reduce pathogens, as established in Section 12 of this administrative regulation, shall meet the criteria established in paragraphs (a) through (c) of this subsection in order to be distributed or marketed to the general public.

(a) The final product shall not exceed Type B metals concentration limits as established in Section 2(2) of this administrative regulation.

(b) A brochure shall accompany all compost or treated special waste sold or given away. The brochure shall be subject to cabinet approval and shall contain, at a minimum:

The source or sources of the original material;
An analysis of the parameters established in Section 6(20)(b) within six (6) months of the finished product; and
Suggested uses and application rates for the product.

(c) The quantity distributed shall be limited to fifty (50) tons per person per year for composted special waste and fifteen (15) tons per person per year for treated special waste.

(2) A final product that exceeds metals concentration limits or exceeds the quantity limitation established in subsection (1) of this section shall be disposed or distributed in accordance with the facility's permit.

Section 11. Processes to Significantly Reduce Pathogens. Processes to significantly reduce pathogens shall include one (1) or more of the following:

(1) Aerobic digestion. The process shall be conducted by agitating sludge with air or oxygen to maintain aerobic conditions at residence times ranging from sixty (60) days at fifteen degrees Celsius (15° C) to forty (40) days at twenty degrees Celsius (20° C), with a volatile solids reduction of at least thirty-eight (38) percent;

(2) Air drying. Liquid sludge shall be allowed to drain or dry on under-drained sand beds, or paved or unpaved basins. Sludge in paved or unpaved basins shall be at a depth of nine (9) inches. Air drying shall be conducted for a minimum of three (3) months, with two (2) months of temperatures that average on a daily basis above zero degrees Celsius (0° C);

(3) Anaerobic digestion. The process shall be conducted in the absence of air at residence times ranging from sixty (60) days at twenty degrees Celsius (20° C) to fifteen (15) days at thirty-five degrees Celsius (35° C) to fifty-five degrees Celsius (55° C), with a volatile solids reduction of at least thirty-eight (38) percent;

(4) Composting. If using the within-vessel, static aerated pile or windrow composting methods, the special waste shall be maintained at minimum operating conditions of forty degrees Celsius (40° C) for five (5) days. For four (4) hours during this period, the temperature shall exceed fifty-five degrees Celsius (55° C); or

(5) Lime stabilization. Sufficient lime shall be added to produce a pH of twelve (12) for two (2) hours.

Section 12. Processes to Further Reduce Pathogens. Processes to further reduce pathogens shall include one (1) or more of the following:

(1)

(a) Composting.

Using the within-vessel composting method, the special waste shall be maintained at operating conditions of fifty-five degrees Celsius (55° C) or greater for three (3) days.
Using the static aerated pile composting method, the special waste shall be maintained at operating conditions of fifty-five degrees Celsius (55° C) or greater for three (3) days.
Using the windrow composting method, the special waste shall:

a. Attain a temperature of fifty-five degrees Celsius (55° C) or greater for at least fifteen (15) days during the composting period; and

b. During the high temperature period, there shall be a minimum of five (5) turnings of the windrow.

(b)

Heat drying. Dewatered sludge cake shall be dried by contact with hot gases, and moisture content shall be reduced to ten (10) percent or lower.
Sludge particles shall reach temperatures in excess of eighty degrees Celsius (80° C), or the wet bulb temperature of the gas stream in contact with the sludge at the point when it leaves the dryer shall be in excess of eighty degrees Celsius (80° C).

(d) Thermophilic aerobic digestion. Liquid sludge shall be agitated with air or oxygen to maintain aerobic conditions at residence times of ten (10) days at fifty-five to sixty degrees Celsius (55o - 60o C), with a volatile solids reduction of at least thirty-eight (38) percent; or

(2) Any of the processes established in paragraphs (a) through (c) of this subsection shall be added to the processes in Section 11 of this administrative regulation. The processes established in paragraphs (a) through (c) of this subsection, on their own, do not reduce the attraction of disease vectors but are meant to be added to the processes in Section 11 of this administrative regulation. The following processes shall be an additional method of reducing pathogens:

(a) Beta ray irradiation. Sludge shall be irradiated with beta rays from an accelerator at dosages of at least one (1.0) megarad at room temperature, approximately twenty degrees Celsius (20° C);

(b) Gamma ray irradiation. Sludge shall be irradiated with gamma rays from certain isotopes, such as Cobalt-60 and Cesium-137, at dosages of at least one (1.0) megarad at room temperature, approximately twenty degrees Celsius (20° C); and

(c) Pasteurization. Sludge shall be maintained for at least thirty (30) minutes at a minimum temperature of seventy degrees Celsius (70° C).

Section 13. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Annual Landfarming Review", Form DEP 7048, (February 2023); and

(b) "Annual Composting Review", Forms DEP 7048A, (February 2023).

(3) This material may also be obtained on the division's Web site at eec.ky.gov/environmental-protection/waste.

History

RELATES TO: KRS 224.1, 224.10, 224.40, 224.50, 7 U.S.C. 136 et seq.
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-100, 224.40-305, 224.50-760(1)(d), 7 U.S.C. 136 et seq.
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.50-760(a)(d) authorizes the cabinet to promulgate administrative regulations for the management, processing, and disposal of special wastes. KRS 224.40-305 requires persons who establish, construct, operate, maintain, or allow the use of a waste site or facility to obtain a permit. This administrative regulation establishes requirements for special waste landfarming sites or facilities and special waste composting sites or facilities but does not include landfarming of biosolids.
History: 401 KAR 045:100. 18 Ky.R. 3097; 3442; eff. 6-24-1992; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Cert eff. 9-5-2018; TAm eff. 5-7-2019; 50 Ky.R. 935, 2035; eff. 6-6-2024.

401 KAR 45:105 Land application of biosolids {#sec-401-kar-45-105 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:105}

Section 1. Definitions.

(1) "Karst feature" means sinkholes, sinking streams, cave openings, fensters, and springs.

(2) "Ordinary high-water mark" means the line on the shore of a body of water established by the fluctuations of water and indicated by physical characteristics, such as defined, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, and the presence of litter and debris.

(3) "Seasonal high-water table" means the highest level that groundwater, at atmospheric pressure, reaches in the soil in years with normal rainfall.

(4) "Sinkhole" means a depression in the land surface resulting from the chemical dissolution of the underlying carbonate rocks that create a potential direct conduit from surface water flow into the underlying groundwater system. This includes the immediately adjacent catchment area that could direct surface water flow into the underlying groundwater system.

Section 2. General Provisions.

(1) The general provisions related to the land application of biosolids shall be as established in 40 C.F.R. 503.5 through 40 C.F.R. 503.9.

(2)

(a) If a biosolid material is exempt from regulation pursuant to 40 C.F.R. 503.10, then the provisions of this administrative regulation shall not apply to the biosolid material, except as required in paragraph (b) of this subsection.

(b) The exemptions established in 40 C.F.R. 503.10 shall not exempt biosolids given away from the requirement to obtain a registered permit by rule established in 401 KAR 45:070.

Section 3. Land Application of Biosolids.

(1) Except for additional siting criteria standards established in Section 5 of this administrative regulation, the requirements related to the application of biosolids to the land shall be as established in 40 C.F.R. 503.10 through 40 C.F.R. 503.18.

(2) An operator certified in accordance with 401 KAR 45:090 shall be available to the land application site while biosolids are being applied to the land. All sludge land application operations shall be accomplished under the direction of a certified landfarming operator.

(3) The reports required by 40 C.F.R. 503.18 shall also be sent to the Kentucky Division of Waste Management.

(4) Each permittee shall submit to the cabinet Annual Biosolids Land Application Report, form DEP 4506 by March 31 of each year on the land application activity that occurred in the previous year. Permittees shall submit the report for years with no land application activity.

(5) In addition to the notification requirements in 40 C.F.R. 503.12, the person who prepares the biosolids shall notify the person applying the biosolids or owner or operator of a biosolids land application site that the biosolids could contain constituents from an industrial pretreatment program.

(6) The notifications provided pursuant to subsection (5) of this section shall be given to adjoining landowners by the person applying the biosolids or owner or operator of a biosolids land application site.

(7) The additional notifications in subsections (5) and (6) of this section shall be in writing and occur prior to submitting a biosolids application to the cabinet.

Section 4. Pathogens and Vector Attraction Reduction. The requirements related to the reduction of pathogens and the vectors that could transport those pathogens shall be as established in 40 C.F.R. 503.30 through 40 C.F.R. 503.33.

Section 5. Siting Criteria for Land Application of Biosolids. The land application of biosolids shall comply with the siting criteria in subsections (1) through (4) of this section.

(1) Biosolids shall not be applied in the 100-year floodplain.

(2)

(a) An applicant shall use the Kentucky Energy and Environment Cabinet Basics of Groundwater and Kentucky Aquifers document to determine aquifer type.

(b) A minimum of four (4) feet of soil between the soil surface and the seasonal high-water table shall be maintained for land application in areas comprised of the Granular-unconsolidated, karst, and alluvial (Ohio River Alluvium) aquifers.

(3) A land application unit shall not be located on land with a slope greater than fifteen (15) percent.

(4)

(a) The ten (10) meter buffer zone for surface waters established in 40 C.F.R. 503.14(c) shall not be used. All biosolid land application facilities shall maintain the following buffer zones:

(b) The distances measured for buffer zones shall be as established in subparagraphs 1. through 7. of this paragraph.

Residences and occupied buildings shall be measured from the building or residence to the closest boundary of the area that land application will occur.
Water wells buffer shall be measured from the well to the closest boundary of the area that land application will occur.
Surface Water including perennial streams buffer shall be measured from the baseline stream bank to the closest boundary of the area that land application will occur.
Karst features buffer shall be measured from the feature to the closest boundary of the area that land application will occur.
Ephemeral streams buffer shall be measured from the ordinary high-water mark to the closest boundary of the area that land application will occur.
Property line buffers shall be measured from the property line to the closest boundary of the area that land application will occur.
Public roads buffer shall be measured from the edge of the road to the closest boundary of the area that land application will occur.

Section 6. Biosolids Land Application Permit Required.

(1) A person operating under a permit issued prior to June 29, 2023 for the land application of biosolids shall operate in accordance with that permit until a renewal permit is issued by the cabinet. At the time for renewal, the applicant shall apply for a new permit under this administrative regulation.

(2) A person seeking to engage in the land application of biosolids after June 29, 2023 shall first obtain a permit issued in accordance with this administrative regulation from the cabinet prior to land application.

Section 7. Biosolid Land Application Permit Review.

(1) A person applying for a biosolids land application permit shall submit Application for a Biosolid Land Application Facility Permit, form DEP 4505. The completed permit application shall be submitted to the cabinet and include all of the attachments that are required by the application form. The attachments in the application shall include:

(a) Copies of property deeds or land application agreements;

(b) Lists of landfills receiving biosolids;

(d) An enlargement of a current United States Geological Survey topographic map. The map shall have a minimum scale of one (1) inch equals 400 feet and the contour interval as published; and

(e) A certification statement.

(2) A fee in the amount established in 401 KAR 45:250 shall accompany the permit application, unless the applicant is a municipality.

(3) The cabinet shall not require additional information that is not in the permit application. Any additional information requests shall be in the form of a notice of deficiency or in response to a variance request from the applicant pursuant to 401 KAR 30:020.

(4) The cabinet shall not review a permit application until the application has been deemed complete. An application for a biosolids land application permit shall be considered complete unless the forms submitted are incomplete or otherwise missing information that is necessary for review.

(5) If the application is determined to be incomplete, the cabinet shall notify the applicant of all the deficiencies that render it incomplete. the applicant shall have the right to correct deficiencies identified by the cabinet. If the cabinet determines that the application is incomplete two (2) or more times, that determination shall be considered final and the applicant shall have the right to file a petition pursuant to KRS 224.10-420.

(6)

(a) The cabinet shall review complete applications and issue a final determination based on the submitted application, within 120 calendar days of the official day the permit application was received.

(b) The official date of receipt for a permit application shall be:

The date the paper document is stamped received by the Division of Waste Management; or
The submission date created by electronic submittal portal.

The cabinet mails, hand delivers, or electronically sends a notice of deficiency until the date the Division of Waste Management receives the response to the deficiencies as established in paragraph (b) of this subsection; and
A permit application is subject to an adjudicatory process that prevents the cabinet from making a determination to the date the administrative or judicial hearings are final and the parties are in compliance with the final orders resulting from those hearings.

(d) The timetables established in this section may be extended at the initiative of either the cabinet or the applicant. The purpose and period of the extension shall be in writing and, if agreed to by both parties, shall be signed by both the cabinet and the applicant. The agreement to extend the timetable shall become part of the cabinet's permit file.

(7)

(a) Upon final determination of the permit application, the cabinet shall post on its Web page, a public notice of the permit determination.

(b) A person aggrieved by the final determination of the cabinet shall be afforded an opportunity to appeal the decision pursuant to KRS 224.10-420(2).

(c) Land application of biosolids under the approved permit shall not begin until thirty (30) days from the date of the posted public notice as established in paragraph (a) of this subsection.

Section 8. Modification of Permits. A biosolids land application permit may be modified during its term. The modification shall be in accordance with this section.

(1) If a permit is modified, only the conditions related to modification shall be reopened.

(2) Modifications requested by the permittee shall not be considered by the cabinet until the permittee has submitted a completed Application for a Biosolid Land Application Facility Permit, form DEP 4505, to the cabinet.

(3) Causes for modification. Causes for modification of permits shall include:

(a) Material and substantial alterations or additions to the permitted special waste site or facility that would justify new permit conditions that are different or absent in the existing permit;

(b) The cabinet determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, materials shortage, or other events over which the permittee has little or no control and for which there is no reasonable available remedy;

(c) The cabinet receiving notification of expected closure and finds that one (1) or more of the permit conditions are no longer warranted;

(d) The corrective action program established in the permit has not brought the site into compliance with the groundwater protection standards;

(e) To approve a corrective action plan required by 401 KAR 45:160;

(f) To include conditions applicable in new or amended statutes or administrative regulations;

(g) To include conditions applicable as a result of a hearing or enforcement action as established in 401 KAR Chapter 40;

(h) Ownership of the special waste site or facility changes;

(i) To expand the capacity of a special waste site or facility; or

(j) To add a new special waste source.

(4) All terms of an existing permit shall remain in effect during the permit modification request.

(5) The cabinet shall make a final determination based on the submitted application, to approve or disapprove a permit modification within ninety (90) calendar days.

Section 9. Permit Transfers. A permit shall not be transferable to any person without prior approval of the cabinet. For purposes of this section, a permit transfer application shall be required if a person requests that the name on the permit be changed to a different person or entity or if the permittee is a corporation and fifty-one (51) percent or more of the stock is sold to a person who was not previously a stockholder, or was a stockholder owning less than five (5) percent of the stock.

(1) A person requesting to transfer a permit for an existing special waste site or facility shall submit to the cabinet a completed Application to Transfer a Special Waste Permit form DEP 7094C, incorporated by reference in 401 KAR 45:040.

(2) Based on the submitted application, the cabinet shall make a final determination to approve or disapprove a formal permit transfer within sixty (60) calendar days.

(3) If the transfer application is incomplete, the cabinet shall notify the applicant in writing of all the deficiencies. Periods of deficiency shall not be counted against the review time frame. Failure to submit information noted by the cabinet related to the deficiencies within fifteen (15) calendar days of receipt of the notice of deficiency shall be grounds for disapproval of the transfer application.

Section 10. Suspension and Revocation of Biosolid Land Application Permits.

(1) The cabinet may modify, suspend, or revoke a permit issued under this chapter for:

(a) Violation of any requirement of KRS Chapter 224, 401 KAR Chapter 45, or 401 KAR 30:031;

(b) Aiding, abetting, or allowing the violation of KRS Chapter 224, 401 KAR Chapter 45, or 401 KAR 30:031;

(d) Misrepresentation or omission of a significant fact by the owner or operator either in the application for the permit or in information subsequently reported to the cabinet;

(e) Failure to comply with an order issued by the cabinet; or

(f) The facility is transferred to another person without prior approval of the cabinet.

(2) The cabinet shall follow the applicable procedures in this administrative regulation and 401 KAR Chapter 40 in revoking any permit under this section.

(3) If a permit is revoked, the owner or operator may reapply.

(4) Upon revocation of a permit, an owner or operator of a special waste site or facility may file a request for a hearing. A hearing request shall be pursuant to KRS 224.10-420 upon revocation of the permit.

Section 11. Permit Renewals.

(1) Applications for renewal shall be submitted to the cabinet at least ninety (90) calendar days prior to the expiration of the permit. A person applying for a renewal shall submit a completed Application for a Biosolid Land Application Facility Permit form DEP 4505, to the cabinet.

(2) Applications for renewal shall comply with the review requirements in this administrative regulation.

(3) The cabinet shall consider if all conditions of prior permit conditions have been met.

Section 12. Closure of a Biosolid Landfarming Site or Facility.

(1) A landfarming site or facility shall send a letter of closure to the cabinet if:

(a) An owner or operator determines to permanently cease accepting biosolid at a special waste landfarming site or facility and does not exceed limits pursuant to Section 3 of this administrative regulation; or

(b) The landfarming site or facility has reached the limits in 40 C.F.R. 503.13 and is required to cease accepting biosolid at that location.

(2) The notification shall be a letter to the cabinet indicating the special waste landfarming site or facility is in compliance with regulatory requirements and is no longer accepting biosolid at the location.

Section 13. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Application for a Biosolid Land Application Facility Permit", Form DEP 4505, (December 2023);

(b) "Annual Biosolids Land Application Report", Form DEP 4506, (December 2023); and

(3) This material may also be obtained on the division's Web site at eec.ky.gov/environmental-protection/waste.

History

RELATES TO: KRS 224.1, 224.10, 224.40, 224.70, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.50-760(1)(d), 224.50-765, 40 C.F.R. Part 503
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.50-760(1)(d) authorizes the cabinet to promulgate administrative regulations for the treatment, management, processing, or disposal of special wastes. KRS 224.40-305 requires persons who establish, construct, operate, maintain, or allow the use of a waste site or facility to obtain a permit. This administrative regulation establishes the standards and requirements for the application of biosolids, in accordance with 40 C.F.R. Part 503 and as required by KRS 224.50-765 from the treatment of domestic sewage or sewage sludge from a treatment facility. This administrative regulation is no more stringent than the corresponding federal rules but in order to comply with KRS 224.50-765(3), does have additional requirements that are not in 40 C.F.R. Part 503 related to a permitting program and siting criteria.
History: 18 Ky.R. 3097; 3442; eff. 6-24-1992; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Cert eff. 9-5-2018; TAm eff. 5-7-2019; 50 Ky.R. 994, 1721, 2040; eff. 6-6-2024.

401 KAR 45:110 Technical and operating requirements for special waste landfills {#sec-401-kar-45-110 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:110}

Section 1. Design Requirements. The engineering design for a special waste landfill shall demonstrate compliance with 401 KAR 30:031 and the siting standards of 401 KAR 45:130 considering the following:

(1) The physical and chemical characteristics of the waste, including compatibility of the waste with the liner, if required; cover materials, if required; and water that may come in contact with the waste;

(2) Volume of waste;

(3) The climatic conditions in the area;

(4) The permeability of the liner material, if required. The liner shall assure containment of the waste on site and compliance with 401 KAR 30:031;

(5) The properties of the soil underlying the facility;

(6) Hydrogeologic characteristics of the site including quality, quantity, current use, and direction of groundwater flow;

(7) The design of the facility leachate control system, run-off control system, and gas migration control, if required, as it relates to the physical and chemical characteristics of the waste, the climatic conditions of the specific location, the volume of leachate and contaminated run-off collected at the facility;

(8) The proximity of the facility to surface water and groundwater;

(9) The potential for gas emissions and odors; and

(10) Any additional requirements specified by the cabinet.

Section 2. Construction Quality Control Plan.

(1) An applicant for a special waste landfill permit shall submit a construction quality control plan conforming to Section 4 of this administrative regulation containing the following elements:

(a) The persons responsible for each part of the quality control plan;

(b) Frequencies and specifications for inspections and tests;

(d) Survey control system of plan views and cross-sections for such inspections and tests; and

(e) A statement to be used for certifying that the quality control plan was followed by the owner or operator.

(2)

(a) The construction quality control plan shall provide assurance that the layers of the homogeneous low permeability soil liners, if required, are compacted using nonvibratory compactors with full depth penetrating feet with a minimum of six (6) passes per soil layer. The compacter ballast shall be varied to prevent reaching the desired proctor density within less than six (6) passes. The foot length shall be one (1) inch longer than the loose soil layer thickness.

(b) Smooth rollers may be used at the end of each work period to seal the surface from rain infiltration.

Section 3. Operating Requirements.

(1) The owner or operator of a special waste landfill shall operate the facility in accordance with the requirements of KRS Chapter 224, the requirements of this chapter, the conditions of the special waste landfill permit issued by the cabinet, and the operational plan filed with and approved by the cabinet.

(2) The owner or operator of a special waste landfill shall operate the facility in such a manner to ensure compliance with 401 KAR 30:031.

(3) The owner or operator of a special waste landfill shall inspect the site and operation at a sufficient frequency to ensure compliance with 401 KAR 30:031.

(4) The owner or operator of a special waste site or facility that is open to the public shall have a sign located at the entrance that indicates the landfill name, the names of the owner and the operator, the hours that the landfill is accepting wastes, the permit number, the contact person, and the emergency telephone number.

(5) One (1) copy of the permit application shall be returned to the permittee. The permit with all applicable conditions shall be conspicuously displayed at all special waste sites or facilities with a formal permit for the duration of the permit period. A copy of the approved application, including plans, shall be available at the site, or at a location approved by the cabinet.

(6) Records and reports shall be maintained and submitted in accordance with the requirements of Section 4 of this administrative regulation and Section 1(8) of 401 KAR 45:140.

(7) The cabinet may place additional requirements on the owner or operator of a special waste landfill if necessary to ensure compliance with 401 KAR 30:031.

Section 4. Special Waste Landfill Recordkeeping and Reporting. An applicant for a special waste landfill permit shall submit plans for a recordkeeping and reporting system. The plan shall meet the following requirements:

(1) Surface water and groundwater samples shall be collected and analyzed according to 401 KAR 45:160 and the following criteria:

(a) Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.

(b) The owner or operator shall retain records of all monitoring information, copies of all reports required by the permit, and records of all data used to complete the application for the permit, for a period of at least three (3) years from the date of the sample, measurement, report, certification, or application. This period may be extended by request of the cabinet at any time. In addition, the owner or operator shall maintain records from all groundwater monitoring wells and associated groundwater surface evaluations, for the active life of the facility, and for the closure care period as well.

Date, exact place, and time of sampling or measurements;
Individual who performed the sampling or measurements;
Date analyses were performed;
Individual who performed the analyses;
Analytical techniques or methods used; and
Results of such analyses.

(2) A summary of the monitoring information shall be submitted to the cabinet semiannually.

(3) If the owner or operator is conducting surface water and groundwater monitoring that meets the requirements of this chapter as part of a permit other than the special waste permit, certified copies of records and reports may be submitted to the cabinet rather than conducting and maintaining duplicative monitoring requirements.

Section 5. Closure and Postclosure Requirements.

(1) A special waste landfill shall be closed in a manner that complies with 401 KAR 30:031. The owner or operator of a special waste landfill shall submit a closure plan that includes a closure design as specified in subsection (2) of this section, a closure cost estimate in accordance with Section 2 of 401 KAR 45:080, a narrative discussing the closure plan's conformance with 401 KAR 30:031 and a schedule for implementation of the plan.

(2) A closure plan shall have a closure design prepared to specify the function and design of the final cover on the special waste landfill considering:

(a) The type and amount of waste in the facility;

(b) The mobility and expected rates of migration of the waste or leachate constituents;

(d) The climatic conditions in the area;

(e) The characteristics of the cover material including its chemical and physical composition, erodibility, slope stability, final surface contours, thickness, porosity, permeability, slope, length of run of slope, and type of vegetation on the cover; and

(f) The geology and soil profiles and surface and subsurface hydrology of the site.

(3) A postclosure plan shall be submitted by the owner or operator of the special waste landfill that includes a monitoring and maintenance schedule for the landfill and a postclosure cost estimate in accordance with Section 3 of 401 KAR 45:080.

(4) Upon cessation of special waste disposal activities at the landfill, the owner or operator shall implement the approved closure plan in accordance with its terms and the requirements of this chapter. An owner or operator may be required to revise a closure plan prior to implementation.

(5) Upon completion of the implementation of an approved closure plan, a special waste landfill shall be maintained under its postclosure plan for a minimum of five (5) years in a manner that complies with 401 KAR 30:031.

(6) The cabinet may release a portion of the financial assurance executed in accordance with 401 KAR 45:080 in an amount that exceeds the funds necessary to maintain the final cover to correct vegetative growth and erosion, and the cost of postclosure environmental monitoring two (2) years into the five (5) year period established in subsection (5) of this section. These funds shall be released upon inspection of the permit records and the site to determine that it is in compliance with all regulatory requirements, the terms of its closure plan and it has at least a ninety (90) percent permanent vegetative cover or other cover as approved by the cabinet. The excess funds shall be released within 180 days of the cabinet's determination of the existence of excess financial assurance.

(7) The owner or operator of a special waste landfill shall record a notice that shall in perpetuity notify any potential purchaser of the property of the location and time of the operation of the facility, the nature of the waste placed in the site and a caution against future disturbance of the area. This notice shall be recorded in accordance with KRS Chapter 382 and proof of recording shall be submitted to the cabinet prior to acceptance of certification of closure of the landfill.

(8) At the conclusion of the five (5) year postclosure monitoring period, the owner or operator of the special waste landfill shall submit a certification that closure and postclosure of the site is complete in accordance with the approved closure and postclosure plans, and that the site is in conformance with the terms of this chapter and 401 KAR 30:031. The cabinet shall review the certification, conduct a site visit and review the permit records to determine if the site is closed in accordance with this chapter, 401 KAR 30:031, and KRS Chapter 224. If the certification of closure is accurate and there is no outstanding environmental violations at the site, the cabinet shall accept the certification of closure and, within 180 days of accepting the certification, release any remaining financial assurance executed under 401 KAR 45:080.

(9) Any necessary environmental remediation steps or corrective action for groundwater contamination required under 401 KAR 45:160 shall be performed before the special waste landfill postclosure is certified as complete and financial assurance is released.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.46, 224.50, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.50-760
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt administrative regulations for the management, processing or disposal of wastes. KRS 224.40-305 requires persons who establish, construct, operate, maintain or permit the use of a waste site or facility to obtain a permit. This chapter establishes the permitting standards for special waste sites or facilities, and the standards applicable to all special waste sites or facilities. This administrative regulation sets forth the technical and operating requirements for special waste landfills.
History: 401 KAR 045:110. 18 Ky.R. 3103; eff. 6-24-1992; Crt eff. 9-5-2018; Crt eff. 8-29-2025.

401 KAR 45:130 Siting requirements for special waste landfills {#sec-401-kar-45-130 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:130}

Section 1. Buffer Zones. Wastes shall not be placed:

(1) Within 250 feet of an intermittent or perennial stream unless a water quality certification has been issued pursuant to 401 KAR Chapter 10;

(2) Within the zone of collapse of deep-mine workings or within the critical angle of draw of such workings;

(3) Within 250 feet of a sinkhole, or other karst feature suggesting the rapid transmission of water to the water table; or

(4) Within 100 feet of the property line.

Section 2. Flood Plain. Waste disposed in special waste landfills shall not be placed within the 100-year floodplain of the waters of the Commonwealth unless the applicant complies with 401 KAR 30:031 concerning base flow restriction, temporary water storage capacity reduction, and waste washout. If available, empirical data shall be used to determine the frequency of flood exposure. If data are not available, the frequency of flood exposure shall be established by the unit hydrograph technique.

Section 3. Site Suitability.

(1) Special waste landfills shall not be sited in an area unless the applicant can demonstrate to the satisfaction of the cabinet that:

(a) The uppermost aquifer is capable of being monitored in a manner that detects the presence of any constituent listed in 401 KAR 45:160; and

(b) Corrective action of the uppermost aquifer is capable of being performed in accordance with 401 KAR 45:160.

(2) If the requirements of subsection (1) of this section cannot be achieved, the owner or operator may propose an equivalent statistical procedure that provides reasonable confidence that the migration of leachate from the site is capable of being detected.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.46, 224.50, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.50-760
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt administrative regulations for the management, processing, or disposal of wastes. KRS 224.40-305 requires persons who establish, construct, operate, maintain or permit the use of a waste site or facility to obtain a permit. This administrative regulation sets forth the siting requirements for new special waste landfills and for horizontal expansions to the permitted waste boundaries of special waste landfills permitted prior to June 24, 1992.
History: 401 KAR 045:130. 18 Ky.R. 3106; eff. 6-24-1992; TAm eff. 10-14-2008; Crt eff. 9-5-2018; TAm eff. 10-15-2018; Crt eff. 8-29-2025.

401 KAR 45:135 Requirements for emergency and research, development, and demonstration permits {#sec-401-kar-45-135 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:135}

Section 1. Emergency Permit.

(1) The cabinet may issue an emergency permit that allows for the disposal or temporary storage of special waste in response to a situation that poses an imminent and substantial threat to human health or the environment. However, an emergency permit shall only be issued when the circumstances preclude the processing of a permit of appropriate classification, and the permitted site would not create an endangerment to human health or the environment.

(2) An emergency permit:

(a) Shall be oral or written. If oral, it shall be followed in five (5) days by a written emergency permit request;

(b) Shall not exceed ninety (90) days in duration;

(c) Shall clearly specify the special wastes to be received, and the manner and location of treatment, storage, or disposal;

(d) May be unilaterally terminated by the cabinet at any time if the cabinet determines that termination is appropriate to protect human health or the environment;

(e) Shall incorporate to the extent possible, and not inconsistent with the emergency situation, all applicable requirements of this chapter and 401 KAR 30:031;

(f) Shall specify that all remaining special waste is to be removed at the end of the term of the emergency permit to a properly permitted special waste site or facility in order to be exempted from closure and financial requirements of this chapter; and

(g) Shall specify that failure to comply with the conditions of the emergency permit shall be grounds for the cabinet to take any appropriate enforcement action including an action to recover the cost of proper closure.

Section 2. Research, Development, and Demonstration Permits.

(1) The cabinet may issue a research, development, and demonstration permit for any special waste treatment or disposal site or facility that proposes to utilize an innovative and experimental special waste technology or process for which permit standards for such experimental activity have not been promulgated under this chapter. The permit shall include terms and conditions that will assure protection of human health and the environment. In issuing research, development, and demonstration permits, the cabinet shall:

(a) Provide standards for the construction of the facility, and authorize operation of the facility for not longer than two (2) years, unless the permit is renewed as provided in subsection (4) of this section;

(b) Provide authorization for the receipt, storage, and disposal by the facility of only those types and quantities of special waste that the cabinet deems necessary for purposes of determining the efficiency and performance capabilities of the technology or process and the effects of the technology or process on human health and the environment; and

(c) Include requirements necessary to protect human health and the environment including, but not limited to: monitoring, operation, financial responsibility, closure, corrective action, testing, and reporting.

(2) The processing of a research, development, and demonstration permit shall be accomplished on a case-by-case basis. The cabinet may, consistent with the protection of human health and the environment, modify or waive permit issuance requirements in this chapter except there shall be no modification or waiver of the requirement to post financial assurance in accordance with 401 KAR 45:080 or the provisions of 401 KAR 45:050 regarding public notification.

(3) The cabinet may order an immediate termination of all operations at the site or facility at any time it is determined that termination is necessary to protect human health or the environment.

(4) Permits issued under this section may be renewed one (1) time for a period not to exceed two (2) years.

(5) Persons applying for a new or renewal of a research, development, and demonstration permit shall use form DEP 7094B entitled "Application For A Research, Development, and Demonstration Permit" (November 2016). The requirements contained in the research, development, and demonstration permit application are incorporated in this administrative regulation by reference. The cabinet may require that additional information be included in the application to ensure the protection of human health and the environment. The application may be obtained from the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, between the hours of 8 a.m. to 4:30 p.m., Eastern Time, Monday through Friday, or from the Web site at eec.ky.gov/environmental-protection/waste.

(6) The cabinet, in issuing a research, development and demonstration permit, shall prepare as a permit condition a list of statutes and administrative regulations with which the owner or operator of the facility is required to comply. The cabinet shall determine the groundwater monitoring, closure, postclosure, financial assurance obligations, and reporting requirements of the owner or operator and shall list them as a permit condition.

(7) The owner or operator of a research, development, and demonstration site or facility shall submit a renewal application at least 180 days prior to the expiration of the initial permit.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.46, 224.50, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.50-760
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt administrative regulations for the management, processing, and disposal of wastes. KRS 224.40-305 requires persons who establish, construct, operate, maintain or permit the use of a waste site or facility to obtain a permit. This chapter establishes standards applicable to all special waste sites or facilities. This administrative regulation sets forth the requirements for an emergency permit and a research, development, and demonstration permit.
History: 401 KAR 045:135. 18 Ky.R. 3107; 3446; eff. 6-24-1992; TAm eff 7-8-2016; TAm eff. 12-21-2016; Crt eff. 9-5-2018; TAm eff. 5-7-2019; Crt eff. 8-29-2025.

401 KAR 45:140 Conditions applicable to all special waste permits {#sec-401-kar-45-140 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:140}

Section 1. Conditions Applicable to All Permits. The conditions applicable to a special waste site or facility shall be incorporated into the permit either expressly or by reference.

(1) Duty to comply. The owner or operator shall comply with all conditions of the permit and all approved plans in the permit application. Any permit noncompliance shall constitute a violation of the appropriate requirement in KRS Chapter 224 and shall be grounds for enforcement action that may result in revocation, modification, or denial of a permit application.

(2) Duty to reapply. If the owner or operator wishes to continue an activity regulated by the permit after the expiration date of the permit, then the owner or operator shall apply for and obtain a new permit.

(3) Duty to halt or reduce activity. It shall not be a defense for an owner or operator in an enforcement action to claim necessity to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit. The owner or operator shall comply with 401 KAR Chapter 45 before commencing operations.

(4) Duty to mitigate. In the event of noncompliance with the permit, the owner or operator shall take all reasonable steps to minimize releases to the environment, and shall carry out measures that are reasonable to prevent additional releases or other noncompliances with 401 KAR Chapter 45 and KRS 224.50-760.

(5) Proper operation and maintenance. The owner or operator shall at all times properly operate and maintain all facilities and systems of treatment and control that are installed or used by the owner or operator to achieve compliance with the conditions of the permit. Proper operation and maintenance shall include:

(a) Effective performance;

(b) Adequate funding;

(d) Process controls, including appropriate quality assurance procedures.

(6) Permit actions. The permit may be modified or revoked due to noncompliance with the provisions of 401 KAR Chapter 45 or KRS 224.50-760. The filing of a request by the owner or operator for a permit modification, revocation, or termination, or a notification of planned changes or anticipated noncompliance, shall not stay any permit condition.

(7) Property rights. The permit shall not convey any property rights or any exclusive privilege.

(8) Duty to provide information. The owner or operator shall provide the cabinet with information that the cabinet reasonably requests to determine if cause exists for modifying, revoking, or terminating the permit, or to determine compliance with the permit or 401 KAR Chapter 45. The owner or operator shall submit to the cabinet upon request, copies of records required under the conditions of the permit to be kept by the permittee.

(9) Inspection and entry. The owner or operator shall allow the cabinet to:

(a) Enter upon the owner's or operator's premises where a regulated facility or activity is located or conducted, or where records are kept under the conditions of the permit;

(b) Have access to and copy at reasonable times any records that are kept under the conditions of the permit;

(c) Inspect any facility's equipment, including monitoring and control equipment, practices, or operations regulated or required under the permit; and

(d) Sample or monitor, for the purposes of assuring permit compliance or determining compliance with KRS Chapter 224 or 401 KAR Chapter 45, any substances or parameters within the boundaries of the permitted area and outside the boundaries of the permitted area if necessary to determine the environmental impacts resulting from a permitted activity.

(10) Signatory requirement. All applications, reports, and information submitted to the cabinet shall be signed and certified in accordance with 401 KAR 45:030, Section 10.

(11) Authorization to operate. For a new special waste site or facility, or a facility undergoing an expansion or modification as stated in 401 KAR 45:040, the owner or operator shall not commence storage, treatment, or disposal of special waste in the modified portion of the facility until:

(a) The owner or operator has submitted to the cabinet, by certified mail or hand delivery, a request for the issuance of a construction and operation permit signed by the owner or operator stating that the facility has been constructed or modified in compliance with the construction permit. The request shall be accompanied by a fee established in 401 KAR 45:250, Section 2(1)(d); and

(b) The cabinet has inspected the newly constructed or modified facility and issued a special waste construction and operation permit or modified permit.

(12) Transfers. The permit shall not be transferable to any person without prior approval of the cabinet. Proposed new owners or operators shall submit a complete transfer permit application to the cabinet in accordance with 401 KAR 45:040, Section 3.

(13) Monitoring reports. Monitoring results shall be reported at the intervals established in the approved permit application.

(14) Compliance schedules. Reports of compliance with, or any progress reports on, requirements contained in any compliance schedule of the permit shall be submitted no later than fourteen (14) days following each scheduled date.

(15) Reports. Reports required in 401 KAR Chapter 45 or in the permit shall be submitted to the cabinet on the dates required in 401 KAR Chapter 45 or in the permit.

(16) Other information. If the owner or operator fails to submit any relevant facts in a permit application, or submits incorrect information in a permit application or in any report to the cabinet, the owner or operator shall promptly submit the facts or correct information.

Section 2.

(1) Establishing Permit Conditions. In addition to conditions required for all permits in Section 1 of this administrative regulation, the cabinet shall establish conditions on a case-by-case basis in permits to ensure compliance with the requirements of 401 KAR Chapter 45.

(2) The cabinet may incorporate applicable requirements directly into the permit. Each special waste permit issued by the cabinet shall contain conditions as the cabinet determines necessary to assist in compliance with the approved application and 401 KAR Chapter 45.

History

RELATES TO: KRS 224.1, 224.10, 224.40, 224.46, 224.50, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.50-760(1)(d)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.50-760(1)(d) authorizes the cabinet to promulgate administrative regulations for the management, processing, or disposal of wastes. KRS 224.40-305 requires persons who establish, construct, operate, maintain, or allow the use of a waste site or facility to obtain a permit. This administrative regulation establishes the conditions applicable to all special waste permits.
History: 18 Ky.R. 3109; eff. 6-24-1992; Cert eff. 9-5-2018; 50 Ky.R. 942, 2043; eff. 6-6-2024.

401 KAR 45:160 Surface and groundwater monitoring and corrective action for special waste sites or facilities {#sec-401-kar-45-160 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:160}

Section 1. Applicability.

(1) The requirements of this administrative regulation apply to owners and operators of special waste landfills, Type A special waste landfarming or composting sites or facilities, other special waste sites or facilities at which the cabinet determines groundwater and surface water monitoring shall be required pursuant to 401 KAR 45:100, Section 3(3), and special waste sites or facilities required to perform corrective action as a result of documented groundwater contamination.

(2) Designs, reports, and plans constituting the "public practice of geology", as defined by KRS 322A.010(3), shall be developed by a person registered pursuant to KRS Chapter 322A, except as established in by KRS 322A.080.

(3)

(a) Landfarming and composting sites or facilities required to monitor surface water shall comply with 401 KAR 45:100, Section 6(26).

(b) Landfarming and composting sites or facilities required to perform corrective action shall comply with Section 5 of this administrative regulation.

(c) The owner or operator shall satisfy the requirements of this administrative regulation for all wastes and waste constituents contained in the site or facility.

(d) The cabinet may waive baseline groundwater characterization and groundwater monitoring, in accordance with the provisions of 401 KAR 30:020.

Section 2. Design Requirements for Groundwater Monitoring Systems.

(1) The groundwater quality monitoring system to be utilized in the groundwater monitoring plan shall accurately analyze groundwater quality and characterize regional and local groundwater flow and flow systems. The monitoring system shall include at a minimum, of the monitoring requirements established in paragraphs (a) and (b) of this subsection.

(a) Background wells shall be located so that they will not be affected by groundwater contamination from the disposal area. Background wells shall be placed as established in subparagraphs 1. and 2. of this paragraph.

At least one (1) background well shall be placed at a point hydraulically upgradient from the disposal area in the direction of increasing static head that is capable of providing data representative of groundwater not affected by the special waste site or facility.
If the special waste site or facility occupies the most upgradient position in the flow system or the upgradient area is not representative, sufficient downgradient or side gradient monitoring wells shall be placed to accurately characterize the groundwater quality and regional and local groundwater flow systems; and

(b)

At least two (2) monitoring wells shall be placed at points hydraulically downgradient in the direction of decreasing static head from the area in which special waste has been or will be disposed.
The cabinet may allow springs for monitoring points if the springs are hydraulically downgradient from the area in which special waste has been or will be disposed, if the springs are developed and protected in a manner approved by the cabinet, and if the springs are capable of detecting any contamination from the disposal facility.
Downgradient monitoring wells shall be located so that they will provide early detection of groundwater contamination and progressive monitoring of the phases and units of the site or facility.

(2) An alternative monitoring plan may be proposed in an application for a special waste site or facility in accordance with 401 KAR 45:110, Section 3(2).

Section 3. Requirements for Monitoring Well Construction.

(1)

(a) Precautions shall be taken during drilling and construction of monitoring wells to avoid introducing contaminants into the borehole.

(b) Only potable water shall be used in drilling monitoring wells.

(d) Air systems and drilling lubricants shall not introduce contaminants into the boreholes.

(2) Decontamination of all equipment to be placed into the boring shall be performed before use at the site and between boreholes. If possible, upgradient wells shall be drilled first.

(3) Monitoring wells shall be cased as follows:

(a) In a manner to ensure the integrity of the monitoring well borehole by isolating water bearing units which are sampled by each well;

(b) With a minimum casing diameter of four (4) inches, unless otherwise approved by the cabinet in writing;

(c) With screens and appropriate gravel or sand where necessary, to enable collection of samples at depths where appropriate aquifer flow zones exist;

(d) To allow the casing to protrude at least one (1) foot above ground;

(e) To provide a drill hole diameter that is a minimum of four (4) inches larger than the outside diameter of the well casing;

(f) To produce an annular space above the sampling depth that is sealed to prevent contamination of samples and the groundwater; and

(g) If plastic casing is used, it shall be threaded and gasket sealed to preclude potential sample contamination from solvent welded joints, unless otherwise provided by the cabinet in the permit.

(4) Monitoring well casings shall be enclosed in a protective cover that shall:

(a) Be of sufficient strength to protect the well from damage by heavy equipment and vandalism, and also include protective barrier steel posts at the corners of the concrete pad;

(b) Be installed into firm rock, unless otherwise approved by the cabinet;

(c) Be grouted and placed with a cement collar below the frost line to hold it firmly in position, unless otherwise approved by the cabinet;

(d) Be numbered and painted in a highly visible color;

(e) Protrude at least one (1) inch higher above grade than the monitoring well casing;

(f) Have a locking cap; and

(g) Be made of steel or any other material of equivalent strength.

(5) Each monitoring well shall have a concrete pad extending two (2) feet around the well and sloped away from the well.

Section 4. Sampling and Analysis.

(1) Parameters listing. Owners or operators of special waste sites or facilities that require groundwater monitoring shall conduct sampling and analysis from each monitoring well for the parameters established in Section 8 of this administrative regulation.

(2) Reporting of analysis results. Analyses of data required by this section shall be submitted to the cabinet. The reporting may be submitted on a form provided by the cabinet or in another format. The report shall be submitted within sixty (60) days of sampling or fifteen (15) days after completion of analyses, whichever is sooner, unless the cabinet approves another time period in the permit. Frequency of sampling shall be as established in Section 8 of this administrative regulation.

(3) If analysis of the sample results indicates contamination, the owner or operator shall notify the cabinet within forty-eight (48) hours of receiving the analysis results and shall arrange for the cabinet to split a sample no later than ten (10) days from the receipt of the results.

Section 5. Groundwater Contamination Assessment and Corrective Action.

(1) The owner or operator of a special waste site or facility shall prepare and submit a groundwater assessment plan if laboratory analyses of one (1) or more public or private water supplies or monitoring wells at the site or facility shows the presence of one (1) or more parameters established in 40 C.F.R. 302.4 Appendix A, above the maximum contaminant level (MCL) as established in 401 KAR 30:031 or significant increase over established background levels for parameters that have no MCL. For parameters that have no maximum contaminant levels, a significant increase over background shall be determined using a statistical test as established in Section 6 of this administrative regulation.

(2) Confirmation sampling. The owner or operator of a special waste site or facility shall not be required to submit a groundwater assessment plan if:

(a) Within ten (10) days after receipt of sample results showing groundwater contamination the owner or operator resamples the affected wells; and

(b) Analysis from resampling establishes that groundwater contamination has not occurred.

(3) The owner or operator of a special waste site or facility shall provide alternate water supplies to affected parties within twenty-four (24) hours of notification of the cabinet that sample results indicate contamination of a drinking water supply if it has been determined that the special waste site or facility is the probable source of contamination.

(4) The groundwater assessment plan shall be submitted to the cabinet within thirty (30) days of the occurrence of the conditions established in subsection (1) of this section. The assessment plan shall state the manner in which the owner or operator will determine the existence, quality, quantity, areal extent, and depth of groundwater degradation, and the rate and direction of migration of contaminants in the groundwater. The assessment plan shall be prepared by a registered geologist pursuant to Section 1(2) of this administrative regulation and shall be implemented upon approval by the cabinet in accordance with the approved implementation schedule. The assessment plan shall be implemented within sixty (60) days after approval by the cabinet. The plan shall contain, at a minimum:

(a) The number, location, size, casing type and depth of wells, lysimeters, borings, pits, piezometers, and other assessment structures or devices to be used;

(b) Sampling and analytical methods for the parameters to be evaluated;

(c) Analyses of all parameters listed in the approved monitoring plan in the permit application, and any other parameter required by the cabinet; and

(d) Evaluation procedures, including the use of previously gathered groundwater quality information, to determine the concentration, rate, and extent of groundwater degradation or pollution from the facility.

(5) For public or private water supplies that could be adversely affected by the facility, the owner or operator shall submit a detailed hydrogeologic study addressing the potential effect of the site or facility on the water supply.

(6) If the assessment plan is inadequate, the cabinet may modify the plan and approve the plan as modified.

(7) Within ninety (90) days after the implementation of the groundwater assessment plan, the owner or operator shall submit a groundwater assessment report containing the new data collected, analysis of the data, and recommendations on the necessity for abatement.

(8) The cabinet may require abatement measures prior to approval of the groundwater assessment plan. These are conditions that require the declaration of a secretary's emergency, as established in KRS 224.01-400, or impacts to offsite receptors, including to the public or the environment.

(9) Within ninety (90) days of cabinet approval of the groundwater assessment report, but no later than one (1) year from the event established in subsection (1) of this section, the owner or operator shall submit a remedial action plan to include:

(a) The specific methods or techniques to be used to abate groundwater contamination from the facility;

(b) The specific methods or techniques to be used to prevent further groundwater contamination from the facility; and

(c) A description of the means used to restore or replace public or private water supplies affected by contamination from the special waste facility.

(10) The owner or operator of a special waste site or facility shall take any other steps deemed necessary by the cabinet to ensure protection of human health and the environment.

(11) Corrective action measures under this administrative regulation shall be initiated and completed within a period of time as established by the cabinet considering the extent of degradation determined pursuant to subsection (1) of this section.

(12) Corrective action measures under this administrative regulation may be terminated upon approval of the cabinet if the owner or operator demonstrates that concentrations have been reduced to levels below the maximum contaminant level or naturally occurring background.

Section 6. Statistical Methods for Groundwater Analysis. The owner or operator of a special waste site or facility shall use the following statistical procedure in determining if background values or concentration limits have been significantly exceeded:

(1) If the level of a parameter is to be compared to the parameter's background value and that background value has a sample coefficient of variation less than one (1.00):

(a) The owner or operator shall take at least four (4) portions from a sample at each well and determine whether the difference between the mean of the parameter at each well, using all portions taken, and the background value for the parameter is significant at the 0.05 level using the Cochran's Approximation to the Behrens-Fisher Students' t-test. If the test indicates that the difference is significant, the owner or operator shall repeat the same procedures, with at least the same number of portions as used in the first test, with fresh samples from the monitoring wells. If this second round of analyses indicates that the difference is significant, the owner or operator shall conclude that a statistically significant change has occurred; or

(b) With prior approval from the cabinet, the owner or operator may use an equivalent statistical procedure for determining if a statistically significant change has occurred. The cabinet shall approve the procedure in the permit if it is found that the alternative procedure reasonably balances the probability of falsely identifying a noncontaminating facility and the probability of failing to identify a contaminating facility in a manner that is comparable to that of the statistical procedure established in paragraph (a) of this subsection; and

(2) In all other situations, the owner or operator shall use a statistical procedure approved in the permit that provides reasonable confidence that the migration of contamination from a special waste site or facility into and through the groundwater will be indicated. The cabinet shall approve a statistical procedure in the permit that:

(a) Is appropriate for the distribution of the data used to establish background values or concentration limits; and

(b) Provides a reasonable balance between the probability of falsely identifying a noncontaminating facility and the probability of failing to identify a contaminating facility.

Section 7. Baseline Groundwater Quality Characterization Parameters. For special waste sites or facilities that require groundwater monitoring, the following parameters are to be analyzed and the resulting data submitted in the permit application:

(1) For all landfarming or composting sites or facilities required to monitor groundwater, the characterization shall be based on the following metals and other waste analysis based parameters:

(a)

Specific conductance;
Chemical oxygen demand;
Total organic carbon;
Chloride;
Iron;
Manganese;
Sodium;
Total nitrogen;
Nitrate nitrogen;
Chromium;
Cadmium;
Coliform bacteria;
pH;
Calcium;
Magnesium;
Potassium;
Sulfate Bicarbonate; and
Carbonate.

(b) Groundwater elevation in monitoring wells recorded as a distance from the elevation at the well head referenced to mean sea level based on a United States Geological Survey (USGS) datum;

(2) For special waste landfills, used solely for the disposal of coal combustion by-products, the characterization shall be based on the following dissolved metals and other parameters:

(a)

Chloride;
Chemical oxygen demand;
Total dissolved solids;
Total organic carbon;
Specific conductance;
pH;
Copper;
Nickel;
Zinc;
Iron;
Sodium;
Arsenic;
Cadmium;
Lead;
Mercury;
Selenium;
Calcium;
Magnesium;
Potassium;
Sulfate;
Bicarbonate; and
Carbonate.

(b) Groundwater elevations recorded as a distance from the elevation at the well head referenced to mean sea level based on a United States Geological Survey (USGS) datum; and

(3) For special waste sites or facilities other than those established in subsections (1) and (2) of this section, the characterization shall be for parameters determined by the cabinet based on a review of the chemical analysis of the waste provided in the application.

Section 8. Groundwater Monitoring Parameters.

(1) Owners or operators of landfarming or composting sites or facilities requiring groundwater monitoring shall monitor for the following parameters on a semiannual basis:

(a)

Chemical oxygen demand;
Total organic carbon;
Total nitrogen;
Nitrate nitrogen;
Lead;
Chromium;
Cadmium; and
Coliform bacteria;

(b) Groundwater elevations in monitoring wells recorded as a distance from the elevation at the well head referenced to mean sea level based on a USGS datum; and

(2)

(a) Owners or operators of special waste landfills used solely for the disposal of coal combustion by-products shall monitor semiannually for:

a. Chloride;

b. 2. Chemical oxygen demand;

c. 3. Total dissolved solids;

d. 4. Total organic carbon;

e. 5. Specific conductance;

f. 6. pH; and

g. 7. Copper;

Groundwater elevations in monitoring wells recorded as a distance from the elevation at the well head referenced to mean sea level based on a USGS datum; and
Monitoring of additional parameters that may be required by the cabinet based on a significant increase from the baseline characterization.

(b) If, after four (4) initial monitoring events, analysis for the parameters in paragraph (a)1. through 3. of this subsection indicates no exceedances above levels established in Section 5(1) of this administrative regulation, the owner or operator may, upon request, be granted permission from the cabinet to reduce the monitoring parameters to those established in paragraph (a) of this subsection.

(3) Owners or operators of special waste sites or facilities other than those referenced in subsections (1) and (2) of this section shall monitor quarterly for parameters to be determined by the cabinet based upon chemical analysis of the waste to be disposed.

Section 9. Surface Water Monitoring and Corrective Action.

(1) Special waste sites or facilities required to monitor surface water shall do so in accordance with a plan provided in the permit application. The plan shall be sufficient to characterize the quality of surface water unaffected by the site or facility and to determine if water leaving the site or facility has been contaminated.

(a) Baseline sampling shall include a minimum of two (2) samples collected at no less than thirty (30) day intervals and shall be sufficient to characterize baseline conditions.

(b) Operational surface water monitoring shall be completed in accordance with the surface water monitoring plan approved in the permit application and shall be sufficient to determine if the site or facility is contaminating surface water.

(2) Corrective action shall be completed by a special waste site or facility owner or operator as necessary to comply with 401 KAR 30:031.

History

RELATES TO: KRS 224.1, 224.10, 224.40, 224.46, 224.50, 224.99, Chapter 322A, 40 C.F.R. 302.4, Appendix A
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.50-760(1)(d), 40 C.F.R. 302.4
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.50-760(1)(d) authorizes the cabinet to promulgate administrative regulations for the treatment, management, processing, or disposal of wastes. KRS 224.40-305 requires persons who establish, construct, operate, maintain or permit the use of a waste site or facility to obtain a permit. This administrative regulation establishes the standards for groundwater and surface water monitoring and corrective action at special waste sites or facilities. This administrative regulation does not establish requirements for surface or groundwater monitoring of special waste sites or facilities where biosolids from the treatment of domestic sewage or sewage sludge from a treatment facility have been land applied, except as it applies to biosolid permit corrective action plans.
History: 18 Ky.R. 3111; 3447; eff. 6-24-1992; Cert eff. 9-5-2018; 50 Ky.R. 944, 1725, 2044; eff. 6-6-2024.

401 KAR 45:210 Designation of waste as special waste {#sec-401-kar-45-210 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:210}

Section 1. Coverage. This administrative regulation shall be used by the cabinet to determine those wastes that meet the criteria of special waste and to determine if a waste may be designated as special waste. Wastes not specifically listed as special waste in KRS 224.50-760 are regulated as either solid waste, as defined by KRS 224.01-010(31)(a), or hazardous waste, as defined by KRS 224.01-010(31)(b) and the criteria of 401 KAR Chapter 31, unless the cabinet has made a designation in accordance with the provisions of this administrative regulation.

Section 2. Criteria for Designating Special Waste. The cabinet may list classes or types of waste as special waste if wastes within the class or type of waste meet the characteristics of special waste found in Section 3 of this administrative regulation. The cabinet shall designate a waste as a special waste upon:

(1) Determining that the waste meets the criteria in Section 3 of this administrative regulation; and

(2) Following the procedures in Section 4 of this administrative regulation.

Section 3. Criteria for Identifying Special Waste. The cabinet shall identify and define a special waste only upon determining that:

(1) The waste exhibits the characteristic of high volume as determined by:

(a) Nonliquid wastes that are generated at an average annual rate of greater than 49,614 tons or 45,000 metric tons per year per Kentucky facility; or

(b) Liquid wastes that are generated at an average annual rate of more than 1,000,000 metric tons per year per Kentucky facility; and

(2) The waste exhibits the characteristic of low hazard if:

(a) There is low probability that the management, processing, or disposal of the waste would violate the provisions of 401 KAR 30:031;

(b) The waste is not a hazardous waste as defined in 401 KAR Chapter 31;

(d) The level of waste constituents does not exceed the maximum level of arsenic, barium, cadmium, chromium, lead, mercury, nitrate, selenium, and silver specified in Section 5 of 401 KAR 30:031; and

(e) For aqueous waste, the waste has a pH less than or equal to ten (10) and greater than or equal to four and five-tenths (4.5).

Section 4. Procedures for Designating Special Waste.

(1) For each waste that a designation of special waste is proposed, the cabinet or applicant shall prepare a fact sheet containing the following information:

(a) The name and address of the applicant;

(b) The name and description of the waste proposed for designation as a special waste, the location of the disposal site, and the method of disposal;

(c) A brief abstract of the supporting documentation that demonstrates that the designation is appropriate, based on the criteria in Section 3 of this administrative regulation; and

(d) A description of any physical or chemical treatment of the waste prior to disposal.

(2) Based upon information submitted by the applicant, and any other information available to the cabinet, the cabinet shall make a determination on the designation as a special waste.

(3) The cabinet shall publish a public notice concerning the proposed designation of a waste as a special waste. The notice shall allow for a thirty (30) day public comment period.

(4) Upon finding that the request for designation meets the criteria in Section 3 of this administrative regulation, the cabinet shall notify the applicant in writing that the special waste is designated as a special waste.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.46, 224.50, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.50-760
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt administrative regulations for the management, processing, and disposal of special wastes. KRS 224.40-305 requires persons who establish, construct, operate, maintain or permit the use of a waste site or facility to obtain a permit. This chapter establishes standards applicable to all special waste sites or facilities. This administrative regulation sets forth the process for identifying special waste and for listing waste as special waste.
History: 401 KAR 045:210. 18 Ky.R. 3115; eff.6-24-1992; Crt eff. 9-5-2018; Crt to Am; filing deadline 2-28-2027.

401 KAR 45:250 Special waste permit fees {#sec-401-kar-45-250 omnilex-key=us-ky-regs-official--title-401--401 KAR 45:250}

Section 1. Applicability.The provisions of this administrative regulation shall apply to:

(1) The owner or operator of each special waste site or facility required to apply for a permit, permit renewal, permit modification, or permit transfer, except publicly-owned facilities; and

(2) Special waste site or facility permit applications for the land application of biosolids.

Section 2. Filing Fees.

(1) Each permit application shall be accompanied by an appropriate filing fee determined as follows:

(2) A filing fee shall be in the form of a check or money order and made payable to the Kentucky State Treasurer. Filing fees shall not be refundable.

History

RELATES TO: KRS 224.40
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.50-760(1)(d)
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(20) authorizes the cabinet to promulgate an administrative regulation to establish a reasonable schedule of fees for the cost of processing applications for permits, exemptions, and partial exemptions. This administrative regulation establishes a fee schedule for the issuance and modification of special waste site or facility permits.
History: 18 Ky.R. 3117; eff. 6-24-1992; Cert eff. 9-5-2018; TAm eff. 10-15-2018; 50 Ky.R. 948, 2047; eff. 6-6-2024.

Chapter 46 Coal Combustion Residuals (CCR)

401 KAR 46:101 Definitions for 401 KAR Chapter 46 {#sec-401-kar-46-101 omnilex-key=us-ky-regs-official--title-401--401 KAR 46:101}

Section 1. Definitions. Except as provided in this section, the definitions shall be as established in 40 C.F.R 257.53.

(1) "Cabinet" is defined by KRS 224.1-010(9).

(2) "Coal combustion residuals (CCR) permit-by-rule" or "CCR permit-by-rule" means the beneficial use of CCR, consistent with 401 KAR Chapter 46, without the submission of an application to the cabinet by a beneficial use of CCR user.

(3) "Coal combustion residuals registered permit-by-rule" or "CCR registered permit-by-rule" means authorization allowing the management, or disposal, upon notification as established in 401 KAR 46:120, Section 1(1)(c)1.

(4) "Disposal" is defined by KRS 224.1-010(10).

(5) "Person" is defined by KRS 224.1-010(17).

(6) "Secretary" is defined by KRS 224.1-010(24).

(7) "Solid waste" is defined by KRS 224.1-010(31)(a).

(8) "Solid waste management" is defined by KRS 224.1-010(39).

(9) "Special waste" is established by KRS 224.50-760(1)(a).

(10) "State" means the Commonwealth of Kentucky.

(11) "State director" means the "secretary" as defined by KRS 224.1-010(24).

(12) "User" means the person beneficially using CCR in the Commonwealth of Kentucky.

History

RELATES TO: KRS 224.1, 224.10, 224.50, 224.70, 224.99, 16 U.S.C. 1531, 33 U.S.C. 1251, 42 U.S.C. 82, 40 C.F.R. 257.53
STATUTORY AUTHORITY: KRS 224.10-100, 224.50-760
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(28) authorizes the cabinet to promulgate administrative regulations not inconsistent with the provisions of law administered by the cabinet. KRS 224.50-760(1)(d) authorizes the cabinet to promulgate administrative regulations for the management of special wastes. This administrative regulation defines terms used in 401 KAR Chapter 46. Some federal terms have been replaced with the definitions established in KRS Chapter 224. Definitions contained in KRS Chapter 224 have been referenced to the appropriate statutory citation. Some terms do not have a federal counterpart and have been added to clarify requirements and provisions of KRS Chapter 224 and 401 KAR Chapter 46.
History: 401 KAR 046:101. 43 Ky.R. 850, 1413, 1558; eff. 5-5-2017; Crt eff. 9-5-2018; Crt eff. 8-29-2025.

401 KAR 46:110 Standards for the disposal of coal combustion residuals (CCR) in CCR units {#sec-401-kar-46-110 omnilex-key=us-ky-regs-official--title-401--401 KAR 46:110}

Section 1. Scope and Applicability.

(1) Except as provided in this section, the purpose, scope, and applicability of 401 KAR Chapter 46 to CCR units and the beneficial use of CCR shall be as established in 40 C.F.R. 257.50 through 257.52.

(2) 401 KAR Chapter 46 shall not apply to a special waste surface impoundment subject to 401 KAR Chapter 45 containing special waste and liquids at a facility that ceased producing electricity prior to October 19, 2015.

Section 2. Location Restrictions. The location restrictions for a CCR unit shall be as established in 40 C.F.R. 257.60 through 257.64.

Section 3. Design Criteria. The design criteria for a CCR unit shall be as established in 40 C.F.R. 257.70 through 257.72.

Section 4. Structural Integrity Criteria.

(1) The structural integrity criteria shall be as established in 401 KAR 4:070, Sections 2 and 3.

(2) The citation to 40 C.F.R. 257.73 within 40 C.F.R. 257.50 through 257.106 shall be replaced with 401 KAR 4:070, Section 2.

(3) The citation to 40 C.F.R. 257.74 within 40 C.F.R. 257.50 through 257.106 shall be replaced with 401 KAR 4:070, Section 3.

Section 5. Operating Criteria. The operating criteria for a CCR unit shall be as established in 40 C.F.R. 257.80, 257.81, and 257.84.

Section 6. Hydrologic and Hydraulic Capacity Requirements for CCR Surface Impoundments.

(1) The hydrologic and hydraulic capacity requirements for CCR surface impoundments shall be as established in 401 KAR 4:070, Section 4.

(2) The citation to 40 C.F.R. 257.82 within 40 C.F.R. 257.50 through 257.106 shall be replaced with 401 KAR 4:070, Section 4.

Section 7. Inspection Requirements for CCR Surface Impoundments.

(1) The inspection requirements for CCR surface impoundments shall be as established in 401 KAR 4:070, Section 5.

(2) The citation to 40 C.F.R. 257.83 within 40 C.F.R. 257.50 through 257.106 shall be replaced with 401 KAR 4:070, Section 5.

Section 8. Groundwater Monitoring and Corrective Action. The groundwater monitoring and corrective action requirements for a CCR unit shall be as established in 40 C.F.R. 257.90 through 257.98.

Section 9. Closure and Post-closure Care. The closure and post-closure care requirements for a CCR unit shall be as established in 40 C.F.R. 257.100 through 257.104.

Section 10. Recordkeeping and Notification. Except for 40 C.F.R. 257.107, including cross-references to 40 C.F.R. 257.107 within 40 C.F.R. 257.50 through 257.106, the recordkeeping and notification requirements for an owner or operator of a CCR unit shall be as established in 40 C.F.R. 257.105 and 257.106.

History

RELATES TO: KRS 224.1, 224.10, 224.50, 224.70, 224.99, 16 U.S.C. 1531, 33 U.S.C. 1251, 42 U.S.C. 82, 40 C.F.R. 257.50-257.106
STATUTORY AUTHORITY: KRS 224.10-100, 224.50-760, 151.250
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(28) authorizes the cabinet to promulgate administrative regulations not inconsistent with the provisions of law administered by the cabinet. KRS 224.50-760(1)(d) authorizes the cabinet to promulgate administrative regulations for the management of special wastes. This administrative regulation establishes the requirements for the disposal of CCR in CCR units.
History: 401 KAR 046:110. 43 Ky.R. 852; eff. 5-5-2017; Crt eff. 9-5-2018; Crt eff. 8-29-2025.

401 KAR 46:120 Coal combustion residuals (CCR) program {#sec-401-kar-46-120 omnilex-key=us-ky-regs-official--title-401--401 KAR 46:120}

Section 1. CCR Permits. Any person engaged in the operation of a CCR unit shall comply with this administrative regulation.

(1)

(a) An owner or operator of a CCR unit shall complete and submit the following to obtain a registered permit-by-rule:

Registered Permit-by-Rule for CCR Facility, DWM 4600; and
In accordance with Section 7 of this administrative regulation, established financial assurance and proof of publication of a public notice.

(b) Within thirty (30) days of the receipt, as evidenced by the date stamped by the Division of Waste Management, the cabinet shall review the registration information submitted in accordance with paragraph (a) of this subsection.

(c) After review of the registration information submitted in accordance with paragraph (a) of this subsection, the cabinet shall notify the applicant in writing:

The applicant completed and submitted all registration information and is deemed to have a registered permit-by-rule; or
The registration information is deficient, and require the owner or operator to submit the required information to the cabinet.

(d)

The owner or operator of a registered permit-by-rule shall submit revised registration information pursuant to paragraph (a) of this subsection if any information changes.
Within thirty (30) days of receipt, the cabinet shall review the revised registration information in accordance with paragraphs (b) and (c) of this subsection.

(2) A beneficial use of CCR user shall be deemed to have a permit-by-rule without having made application with the cabinet, if:

(a) The user is not in violation of 401 KAR Chapter 46 or 401 KAR 30:031;

(b) The beneficial use of CCR does not present a threat or potential threat to human health or the environment;

(d) The user characterized the nonhazardous nature of the CCR in accordance with 401 KAR 31:030; and

(e) The user submits an annual report to the cabinet pursuant to Section 5 of this administrative regulation.

Section 2. Notice of Concurrence.

(1)

(a) A permittee who has a permit-by-rule or a registered permit-by-rule as established in Section 1 of this administrative regulation may request a Notice of Concurrence from the cabinet.

(b) A person, who does not have a registered permit-by-rule as established in Section 1(1) of this administrative regulation, and intends to construct a CCR unit, may request a Notice of Concurrence from the cabinet prior to beginning construction.

(c) A person who intends to beneficially use CCR may request a Notice of Concurrence from the cabinet prior to beginning beneficial use.

(2) A person requesting to obtain a Notice of Concurrence shall complete and submit the following information, if applicable:

(a) CCR Notice of Concurrence Request, DWM 4610;

(b) For a seismic hazard analysis of a new CCR landfill or lateral expansion of an existing CCR landfill, a site-specific, scenario-based, deterministic, seismic hazard assessment;

(c) For a stability analysis of a new CCR landfill or lateral expansion of an existing CCR landfill, the landfill design demonstrating:

For subgrade, the factor of safety shall be a minimum of two and zero-tenths (2.0);
For the liner components, the factor of safety shall be a minimum of one and one-fourth (1.25);
For the final cover system, the factor of safety shall be a minimum of one and one-half (1.5);
For the synthetic liner material and structural synthetic materials, a maximum elongation of ten (10) percent; and
A minimum seismic factor of safety of one and zero-tenths (1.0);

(d) Additional information necessary to enable the cabinet to make a determination on the issuance of the Notice of Concurrence;

(e)

If for the unencapsulated beneficial use of CCR involving placement on the land of 12,400 tons or more in non-roadway applications, a check or money order made payable to the Kentucky State Treasurer in the amount of $2,500; or
If for a person, who has not obtained a registered permit-by-rule as established in Section 1(1) of this administrative regulation, and intends to construct a CCR unit, a check or money order made payable to the Kentucky State Treasurer in the amount of $5,000; and

(f) A narrative with supporting documentation, a certification statement, and seal, from a professional engineer or professional geologist, licensed in accordance with KRS Chapter 322 or KRS Chapter 322A, that the information prepared by the professional engineer or professional geologist, and submitted with the notice of concurrence request, meets the applicable portions of 401 KAR 46:110 and paragraphs (b) and (c) of this subsection.

(3) The cabinet shall review the submittal request for a Notice of Concurrence within 365 days of receipt and issue in writing to the applicant a:

(a) Notice of Concurrence stating the cabinet concurs that the information submitted in accordance with this section is determined to meet applicable criteria in 401 KAR Chapter 46;

(b) Deficiency letter from the cabinet that the submittal is incomplete or that additional information is necessary to enable the cabinet to issue the Notice of Concurrence; or

(c) Notice that the cabinet does not concur that the information submitted in accordance with this section meets the applicable criteria in 401 KAR Chapter 46.

(4)

(a) Failure by the applicant to provide the requested information and documentation within ninety (90) days of issuance of a deficiency letter established in subsection (3)(b) of this section shall cause the CCR Notice of Concurrence Request, DWM 4610, to expire.

(b) More than two (2) deficiency letters shall not be issued in accordance with subsection (3)(b) of this section, after which the CCR Notice of Concurrence Request, DWM 4610, shall expire.

(c) Expiration of the CCR Notice of Concurrence Request, DWM 4610, shall not prevent the applicant from reapplying if the requested documentation becomes available.

(5)

(a) The cabinet may rescind or modify in writing the Notice of Concurrence if the applicant or permittee is not in compliance with 401 KAR Chapter 46.

(b) The cabinet shall rescind the Notice of Concurrence in writing if the applicant submitted a false certification.

Section 3. Transition of a Permit Issued in Accordance with 401 KAR Chapter 45.

(1) A permittee who is subject to 401 KAR Chapter 46 shall notify the cabinet in writing of the permittee's intent to meet the requirements of 401 KAR Chapter 46 by no later than May 1, 2017, if the permittee possesses a:

(a) Special waste permit-by-rule in accordance with 401 KAR 45:060;

(b) Special waste registered permit-by-rule in accordance with 401 KAR 45:070; or

(2) Upon issuance by the cabinet of a registered permit-by-rule, a permit issued pursuant to 401 KAR Chapter 45 for management, disposal, or beneficial reuse of CCR shall terminate if the permittee is subject to 401 KAR Chapter 46.

Section 4. Annual Fees.

(1)

(a) The owner or operator of a CCR unit shall pay a $15,000 annual fee for each facility in operation or post-closure.

(b) An owner or operator of a CCR unit shall notify the cabinet in writing upon completion of post-closure activities as established in 401 KAR 46:110, Section 6, and shall no longer be subject to annual fees established in this section.

(2) Payment shall be submitted to the Solid Waste Branch of the Division of Waste Management no later than July 31 of each year.

(3) The owner or operator shall complete and submit with the payment the CCR Annual Fee Form, DWM 4620.

(4) A check or money order shall be made payable to the Kentucky State Treasurer.

(5) The annual fee shall be due July 31, 2017, and every year after.

(6)

(a) The owner or operator of a CCR unit may request an extension to the deadline. The extension shall not exceed thirty (30) days.

(b) The extension request shall be in writing and shall be received by the Solid Waste Branch of the Division of Waste Management prior to the deadline.

Section 5. Beneficial Use of CCR Reporting Requirements. The user shall submit to the cabinet an annual report of the beneficial use activity undertaken in the previous calendar year by March 31 that identifies the:

(1) Name and address of the CCR generator;

(2) Tonnage of CCR beneficially used;

(3) Name and address of each user of CCR; and

(4) Specific use of the CCR.

Section 6. Noncompliances.

(1) The cabinet shall take any appropriate enforcement action, including corrective action, pursuant to 401 KAR Chapter 40, KRS 224.10-410, or 224.10-420, if the permittee is not operating in compliance with 401 KAR Chapter 46.

(2) The cabinet may revoke, modify, or suspend a CCR permit-by-rule or registered permit-by-rule pursuant to 401 KAR 40:040 upon a final determination of noncompliance with 401 KAR Chapter 46.

Section 7. Financial Assurance and Public Notice Requirements.

(1) Owners and operators shall maintain financial assurance sufficient to complete closure and post-closure requirements established in 401 KAR 46:110:

(a) For new CCR units; and

(b) Existing CCR units that were required to establish financial assurance in accordance with 401 KAR 45:080.

(2) Financial assurance requirements shall be in accordance with 401 KAR 45:080, Sections 4, 7, 9, and 10.

(3) The cabinet shall release the financial assurance mechanism required by this section upon notification of completion of post-closure requirements referenced in 40 C.F.R. 257.104(e) as established in 401 KAR 46:110.

(4)

(a) A public notice shall be published in a daily or weekly newspaper of major circulation located in the county or counties where the property where the proposed CCR unit is located. If there is no daily or weekly newspaper of major circulation in the county or counties where the proposed CCR unit is located, public notice shall mean publication of required information in a daily or weekly newspaper of major circulation in a county adjacent to the county or counties where the property is located.

(b) Public notice shall include the information contained on the form incorporated by reference in Section 8(1)(c) of this administrative regulation.

Section 8. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "CCR Notice of Concurrence Request", DWM 4610, January 2017;

(b) "CCR Annual Fee Form", DWM 4620, September 2016; and

(3) This material may also be obtained on the division's Web site at eec.ky.gov/environmental-protection/waste.

History

RELATES TO: KRS 224.1, 224.10, 224.50, 224.70, 224.99, Chapter 322, Chapter 322A, 16 U.S.C. 1531, 33 U.S.C. 1251, 42 U.S.C. 82, 40 C.F.R. 257.50-257.106
STATUTORY AUTHORITY: KRS 224.10-100, 224.50-760
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(28) authorizes the cabinet to promulgate administrative regulations not inconsistent with the provisions of law administered by the cabinet. KRS 224.50-760(1)(d) authorizes the cabinet to promulgate administrative regulations for the management of special wastes. This administrative regulation establishes the requirements for a CCR permit-by-rule and registered permit-by-rule.
History: 401 KAR 046:120. 43 Ky.R. 854, 1415, 1559; eff. 5-5-2017; Crt eff. 9-5-2018; TAm eff. 5-7-2019; Crt to Am; filing deadline 2-28-2027.

Chapter 47 Solid Waste Facilities

Section 1. Definitions. Unless otherwise specifically defined in KRS Chapter 224 or otherwise specifically indicated by context, terms in 401 KAR Chapter 47 shall have the meanings given in this Section.

(1) "100-year floodplain" means any land area which is subject to a one (1) percent or greater chance of flooding in any given year from any source.

(2) "100-year flood" means a flood that has a one (1) percent chance of being equaled or exceeded in any given year.

(3) "Aboveground tank" means a device meeting the definition of "tank" and that is situated in such a way that the entire surface area of the tank is completely above the plane of the adjacent surrounding surface and the entire surface area of the tank (including the tank bottom) is able to be visually inspected.

(4) "Active fault" means a land area which, according to the weight of geological evidence, has a reasonable probability of being affected by movement along a fault to the extent that a waste site or facility would be damaged and thereby pose a threat to human health and the environment.

(5) "Active life" of a facility means the period from the initial receipt of waste at a waste site or facility until the cabinet receives certification of final closure.

(6) "Active portion" means any area of a facility where treatment, storage, or disposal operations are being or have been conducted and which have not been closed. It includes the treated area of a landfarm and the active face of a landfill. Covered, closed, or inactive portions of landfills, building roofs, and roads are excluded unless designated as "active portions" by the cabinet.

(7) "Administrative application" means the standard forms and format used for applying for a solid waste site or facility permit as specified in 401 KAR 47:160 and 401 KAR 47:180.

(8) "Admixed liner" means a liner made from a mixture of any of a multitude of materials, often asphalt or cement, with widely varying physical and chemical properties. Admixed liners shall be demonstrated to be structurally sound and chemically resistant to the waste placed in it so as to be capable of supporting the waste without cracking or disintegrating or allowing waste or leachate to escape.

(9) "Agricultural waste" means any nonhazardous waste resulting from the production and processing of on-the-farm agricultural products, including manures, prunings and crop residues.

(10) "Airport" means public-use airport open to the public without prior permission and without restrictions within the physical capacities of available facilities.

(11) "Application" means the form approved by the cabinet for applying for a permit, including any additions, revisions or modifications and any narrative and drawings required by 401 KAR Chapters 47 or 48.

(12) "Aquifer" means a geologic formation, group of formations, or part of a formation capable of yielding a significant amount of groundwater to wells or springs.

(13) "Attenuation" means any decrease in the maximum concentration or total quantity of an applied chemical or biological constituent in a fixed time or distance traveled resulting from a physical, chemical, or biological reaction or transformation occurring in the zone of aeration or zone of saturation.

(14) "Authorized representative" means the person responsible for the overall operation of a facility or an operational unit or part of a facility, such as the plant manager, superintendent, or person of equivalent responsibility.

(15) "Base flood" means a flood that has a one (1) percent or greater chance of recurring in any year, or a flood of a magnitude equaled or exceeded once in 100 years on the average over a significantly long period.

(16) "Battery" means a device consisting of one or more electrically connected electrochemical cells which is designed to receive, store, and deliver electric energy. An electrochemical cell is a system consisting of an anode, cathode, and an electrolyte, plus such connections (electrical and mechanical) as may be needed to allow the cell to deliver or receive electrical energy. The term battery also includes an intact, unbroken battery from which the electrolyte has been removed.

(17) "Bird hazard" means an increase in the likelihood of bird or aircraft collisions that may cause damage to the aircraft or injury to its occupants.

(18) "Cabinet" shall have the meaning specified in KRS 224.01-010.

(19) "Cation exchange capacity" means the sum of exchangeable cations a soil can absorb expressed in milliequivalents per 100 grams of soil as determined by sampling the soil to the depth of cultivation or solid waste placement, whichever is greater, and analyzing by the summation method for distinctly acid soils or the sodium acetate method for neutral, calcareous, or saline soils.

(20) "Cell" means a portion of any landfill which is isolated, usually by means of an approved barrier.

(21) "Certification" means a statement of professional opinion based upon knowledge and belief.

(22) "Closed portion" means that portion of a facility which an owner or operator has closed in accordance with the approved facility closure plan and all applicable closure requirements.

(23) "Closed unit" means any solid waste unit that no longer receives waste as of May 8, 1990 and has received all required final layers of cover material.

(24) "Closure care" means the routine care, maintenance, monitoring, and any required corrective action of a solid waste disposal site or facility following certification of closure until the applicable requirements are met.

(25) "Closure" shall have the meaning specified in KRS 224.01-010.

(26) "Coal mining solid waste" means solid waste, as defined by KRS 224.01-010, that is generated at, and is incidental to, a coal exploration operation or surface mining and reclamation operation regulated under KRS Chapter 350, and shall not include wastes generated by households, communities, cities, counties, or any person or business other than those regulated under KRS Chapter 350.

(27) "Coal mining waste" means earth materials which are combustible, physically unstable, or acid-forming or toxic-forming, that are generated during and incidental to the mining and extraction of coal and to the washing and crushing of coal. The term does not include used oil, paints or flammable liquids. The term includes the following:

(a) Refuse which is that waste material in the raw coal which it is the object of cleaning to remove;

(b) Overburden which includes all of the earth and other geologic materials, excluding topsoil, which lie above a natural deposit of coal and also means such earth and other material after removal from their natural state in the process of mining; and

(c) Coal mining by-products which include any material that is not one (1) of the primary products of a particular coal mining operation, is a secondary and incidental product of the particular operation and would not be solely and separately mined by the particular operation. The term does not include an intermediate mining product which results from one (1) of the steps in a mining process and is processed through the next step of the process within a short time. An example of a coal mining by-product is that part of the ore deposit that is too low in grade to be of economic value at the time, but which is stored separately in the hope that it can be profitably treated later.

(28) "Collection box" shall have the meaning specified in KRS 224.01-010.

(29) "Commercial solid waste" shall have the meaning specified in KRS 224.01-010.

(30) "Component" means either the tank or ancillary equipment of a tank system.

(31) "Compost" shall have the meaning specified in KRS 224.01-010.

(32) "Composting" shall have the meaning specified in KRS 224.01-010.

(33) "Conditionally exempt small quantity generator" means:

(a) A generator who generates no more than 100 kilograms of hazardous waste in a calendar month; and

(b) A generator who generates acutely hazardous waste listed in Sections 2, 3, and 4(5) of 401 KAR 31:040 in a calendar month in quantities greater than one (1) kilogram. All quantities of that acutely hazardous waste are subject to administrative regulation under 401 KAR Chapters 32 through 39, and the notification and permitting requirements of KRS 224.01-400, 224.40-310, 224.46-510, 224.46-580, and 224.50-130 to 224.50-413.

(34) "Confined aquifer" means an aquifer bounded above and below by impermeable beds or by beds of distinctly lower permeability than that of the aquifer itself; an aquifer containing confined groundwater.

(35) "Construction/demolition debris landfill" means a solid waste site or facility for the disposal of construction/demolition waste. The technical requirements for construction/demolition debris landfills are found in 401 KAR 47:080, 401 KAR 48:050, and 401 KAR 48:060.

(36) "Construction/demolition waste" means waste resulting from the construction, remodeling, repair, and demolition of structures and roads, and for the disposal of uncontaminated solid waste consisting of vegetation resulting from land clearing and grubbing, utility line maintenance, and seasonal and storm related cleanup.

(37) "Construction materials" means nonhazardous nonsoluble material, including but not limited to steel, concrete, brick, asphalt roofing material, or lumber from a construction or demolition project. Mixture of construction and demolition debris with any amount of other types of waste may cause it to be classified as other than construction materials.

(38) "Contained landfill" means a solid waste site or facility that accepts solid waste for disposal. The technical requirements for contained landfills are found in 401 KAR 47:080, 401 KAR 48:050, and 401 KAR 48:070 to 401 KAR 48:090.

(39) "Contaminate" means introduce a substance that would cause:

(a) The concentration of that substance in the groundwater to exceed the maximum contaminant level specified in 401 KAR 30:031, Sections 5 and 6 of 401 KAR 47:030, or Section 8 of 401 KAR 34:060;

(c) A significant increase above established background levels, for substances that do not have an established maximum contamination level.

(40) "Contamination" means the degradation of naturally occurring water, air, or soil quality either directly or indirectly as a result of human activities.

(41) "Contingency plan" means a document setting out an organized, planned, and coordinated course of action to be followed in the event of a fire, explosion, or release of waste or waste constituents into the environment which has the potential for endangering human health and the environment. Financial planning to identify resources for initiation of such action is a part of contingency plan development.

(42) "Convenience center" shall have the meaning specified in KRS 224.01-010.

(43) "Cover material" means soil or other suitable material that is spread and compacted on the top and side slopes of disposed waste in order to control disease vectors, gases, erosion, fires, and infiltration of precipitation or run-on; support vegetation; provide trafficability; or assure an aesthetic appearance.

(44) "Demonstration" shall have the meaning specified in KRS 224.01-010.

(45) "Destruction or adverse modification" means an alteration of critical habitat which appreciably diminishes the likelihood of the survival and recovery of threatened or endangered species using that habitat.

(46) "Dike" means an embankment or ridge of either natural or manmade materials used to prevent the movement of liquids, sludges, solids, or other materials.

(47) "Disease vector" means all insects, birds or gnawing animals such as rats, mice or ground squirrels, which are capable of transmitting pathogens.

(48) "Disposal facility" means a facility or part of a facility at which solid waste is intentionally placed into or on any land or water and at which waste will remain after closure.

(49) "Disposal" shall have the meaning specified in KRS 224.01-010.

(50) "Domestic sewage" means untreated sanitary wastes that pass through a sewer system.

(51) "Draft permit" shall have the same meaning as "proposed permit".

(52) "Effluent limitations" shall have the same meaning as KRS 224.01-010.

(53) "Emergency permit" means a permit issued by the cabinet to temporarily store, treat or dispose of hazardous waste in accordance with the provisions of Section 2 of 401 KAR 38:060, to temporarily manage, process, or dispose of a solid waste in accordance with the provisions of Section 2 of 401 KAR 47:150 or to temporarily store, treat, or dispose of special waste in accordance with the provisions of Section 1 of 401 KAR 45:135.

(54) "Endangered or threatened species" means any species listed as such pursuant to Section 4 of the Endangered Species Act, as amended, 16 USC 1536.

(55) "Engineer" shall have the meaning specified in KRS 322.010. An independent, professional engineer shall be registered in Kentucky pursuant to KRS 322.040 and shall be qualified to engage in waste management engineering practices.

(56) "Ephemeral stream" means a stream which flows only in direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow and ice and which has a channel bottom that is always above the local water table.

(57) "Equivalent method" means any testing or analytical method, approved jointly by the administrator and the secretary under 401 KAR Chapter 31, or methods in 401 KAR Chapters 47 and 48, approved by the secretary of the cabinet.

(58) "Existing unit" means any solid waste disposal unit that was receiving solid waste as of May 8, 1990 and has not received the final layers of cover material.

(59) "Explosive gas" means methane (CH4).

(60) "Facility structures" means any buildings and sheds or utility or drainage lines on the solid waste site or facility.

(61) "Facility" means all contiguous land, and structures, other appurtenances, and improvements on the land, used for treating, storing, or disposing of waste. A facility may consist of several treatment, storage, or disposal operational units, such as one (1) or more landfills, surface impoundments, or combination of them.

(62) "Federal agency" means any department, agency, or other instrumentality of the federal government, any independent agency or establishment of the federal government including any government corporation, and the United States Government Printing Office.

(63) "Final closure" of a solid waste site or facility means the approved closure of a solid waste site or facility in accordance with 401 KAR 30:031, 401 KAR 47:030 and the applicable requirements of 401 KAR 48:060, 401 KAR 48:090, 401 KAR 48:170, or 401 KAR 48:200.

(64) "Flood plain" means areas adjoining inland waters which are inundated by the base flood, unless otherwise specified in 401 KAR 30:031 or 401 KAR 47:030, and includes: 100-year floodplain and floodway.

(65) "Floodway" means the channel of the waterway, stream or river and that portion of the adjoining floodplain which provides for passage of the 100-year flood flow without increasing the floodwater depth across the 100-year floodplain by more than one (1) foot.

(66) "Food chain crops" means tobacco, crops grown for human consumption, and crops grown for feed for animals whose products are consumed by humans.

(67) "Free liquids" means liquids which readily separate from the solid portion of a waste under ambient temperature and pressure.

(68) "Freeboard" means the vertical distance between the top of a tank or surface impoundment dike and the surface of the waste contained therein.

(69) "Groundwater table" means the upper boundary of the saturated zone in which the hydrostatic pressure of the groundwater is equal to the atmospheric pressure.

(70) "Groundwater" means the subsurface water occurring in the zone of saturation beneath the water table, and perched water zones below the B-soil horizon, including water circulating through fractures, bedding planes, and solution conduits.

(71) "Holocene" means the most recent epoch of the quaternary period, extending from the end of the pleistocene to the present.

(72) "Household solid waste" shall have the meaning specified in KRS 224.01-010.

(73) "Hydric soils" means soils that, in their undrained condition, are saturated, flooded, or ponded long enough during a growing season to develop an anaerobic condition that supports the growth and regeneration of hydrophytic vegetation.

(74) "Hydrophytic vegetation" means a plant growing either in water, or in a substrate that is at least periodically deficient of oxygen during a growing season as a result of excessive water content.

(75) "Incinerator" means any enclosed device using controlled flame combustion for burning solid waste.

(76) "Industrial solid waste" shall have the meaning specified in KRS 224.01-010.

(77) "Inert landfill" means a facility for the proper disposal of inert, nonsoluble and nonputrescible solid waste, including construction materials, certain industrial or special wastes, and other waste material with specific approval from the cabinet. Certain putrescible wood product wastes (such as cardboard, paper, sawdust, wood chips, and tree trimmings) may be considered by the cabinet for disposal at inert landfills.

(78) "Infectious waste" means those wastes which may cause disease or reasonably be suspected of harboring pathogenic organisms; included are wastes resulting from the operation of medical clinics, hospitals, and other facilities producing wastes which may consist of, but are not limited to, diseased human and animal parts, contaminated bandages, pathological specimens, hypodermic needles, contaminated clothing, and surgical gloves.

(79) "Inground tank" means a device meeting the definition of "tank" in this section and that whereby a portion of the tank is situated to any degree within the ground, thereby preventing visual inspection of that external surface area of the tank that is in the ground.

(80) "Intermittent stream" means a stream or reach of stream that drains a watershed of one (1) square mile or more but does not flow continuously during the calendar year.

(81) "Karst terrain" means a type of topography where limestone, dolomite or gypsum is present and is characterized by naturally occurring closed topographic depressions or sinkholes, caves, disrupted surface drainage, and well developed underground solution channels formed by dissolution of these rocks by water moving underground.

(82) "Key personnel" shall have the meaning specified in KRS 224.01-010.

(83) "Landfarming facility" means a facility for land application of sludges or other solid waste by any method for purposes of disposal. It can be on any piece or pieces of land and may improve the physical and chemical qualities of the land for agricultural purposes, but does not alter the topography of the application area as revealed by contours and will not disturb the soil below three (3) feet from the surface.

(84) "Landfill" means a solid waste site or facility for the disposal of specific wastes that is located, designated, constructed, operated, maintained, and closed in conformance with 401 KAR Chapter 47 and 48, and 401 KAR 30:031, and receives a case-by-case design review by the cabinet.

(85) "Lateral expansion" means a horizontal expansion of the waste boundaries of an existing solid waste landfill unit.

(86) "Leachate" means any liquid including any suspended components in the liquid, that has percolated through or drained from waste.

(87) "Liner" means a continuous layer of natural or manmade material, beneath or on the sides of a waste site or facility, including but not limited to a waste pile, surface impoundment, landfill, or landfill cell, or beneath or on the sides of a waste site or facility which restricts the movement of the wastes, waste constituents, or leachate.

(88) "Lower explosive limit" means the lowest percent by volume of a mixture of explosive gases which will propagate a flame in air at twenty-five (25) degrees Celsius and atmospheric pressure.

(89) "Major modification" means for solid waste sites and facilities, a change meeting the criteria in Section 3 of 401 KAR 47:130.

(90) "Management facility" means a facility or part of a facility at which solid waste is held for a temporary period, at the end of which solid waste is processed, disposed or managed elsewhere.

(91) "Materials recovery facility" shall have the meaning specified in KRS 224.01-010.

(92) "Mining overburden returned to the mine site" means any material overlying an economic mineral deposit which is removed to gain access to that deposit and is then used for reclamation of a surface mine.

(93) "Miscellaneous unit" means a solid waste management unit where waste is disposed and that is not a container, tank, surface impoundment, pile, landfarming unit, landfill, incinerator, underground injection well with appropriate technical standards under 40 CFR Part 146, or unit eligible for a research, development, and demonstration permit under section 3 of 401 KAR 47:150.

(94) "Monitoring well" means a well used to obtain water samples for water quality and quantity analysis and groundwater levels.

(95) "Monitoring" means the act of systematically inspecting and collecting data on operational parameters or on the quality of the air, soil, groundwater, or surface water.

(96) "Municipal solid waste disposal facility" shall have the meaning specified in KRS 224.01-010.

(97) "Municipal solid waste reduction" shall have the meaning specified in KRS 224.01-010.

(98) "Municipal solid waste" shall have the meaning specified in KRS 224.01-010.

(99) "Newsprint" shall have the meaning specified in KRS 224.01-010.

(100) "Notice of intent" means the standard forms for applying for a solid waste site or facility permit as required by 401 KAR 47:160, 401 KAR 47:170 and 401 KAR 48:200.

(101) "Off-site" means properties noncontiguous to the site.

(102) "On-site" means on the same or geographically contiguous property which may be divided by public or private right-of-way, provided the entrance and exit between the properties is at a crossroads intersection, and access is by crossing, as opposed to going along the right-of-way. Noncontiguous properties owned by the same person but connected by a right-of-way which he controls and to which the public does not have access is also considered on-site property.

(103) "Open burning" means the combustion of any material or solid waste without:

(a) Control of combustion air to maintain adequate temperature for efficient combustion;

(b) Containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and

(104) "Open dump" shall have the meaning specified in KRS 224.01-010.

(105) "Onground tank" means a device meeting the definition of "tank" in this section and that is situated in such a way that the bottom of the tank is on the same level as the adjacent surrounding surface so that the external bottom of the tank cannot be visually inspected.

(106) "Operational plan" means the approved plan of operations filed with the cabinet which describes the method of operation that the permittee will use in the treatment, storage, or disposal of wastes.

(107) "Operator" means any person responsible for overall operation of an on-site or off-site waste facility, including any private contractor conducting operational activities at a federal facility.

(108) "Owner" means any person who owns an on-site or off-site waste facility, or any part of a facility.

(109) "Perennial stream" means a stream or that part of a stream that flows continuously during all of the calendar year as a result of groundwater discharge or surface run-off. The term does not include "intermittent stream" or "ephemeral stream".

(110) "Periodic application of cover material" means the application and compaction of soil or other suitable material over disposed waste at a solid waste site or facility at the end of each operating day or at such frequencies and in such a manner as to reduce the risks of fire and to impede disease vector's access to the waste.

(111) "Permit by rule" means authorization allowing certain classes of sites or facilities to manage waste consistent with 401 KAR Chapters 30 to 49, without submission of a registration or permit application to the cabinet. Examples of solid waste sites or facilities which are permitted by rule include facilities identified in 401 KAR 47:150.

(112) "Permit" means the authorization or other control document issued by the cabinet to implement the requirements of the waste management administrative regulations. The term permit includes permit-by-rule, registered permit-by-rule, research, development, and demonstration permit, and emergency permit. However, the term permit does not include draft permit or proposed permit.

(113) "Permittee" means any person holding a valid permit issued by the cabinet to manage, treat, store, or dispose of waste.

(114) "Person" shall have the meaning specified in KRS 224.01-010.

(115) "Personnel" or "facility personnel" means all persons who work at or oversee the operations of a waste facility, and whose actions or failure to act may result in noncompliance with the requirements of the waste management administrative regulations.

(116) "Pile" or "waste pile" means any noncontainerized accumulation of nonflowing solid waste that is used for processing or management.

(117) "Point of compliance" means for solid waste site and facilities, groundwater monitoring wells located within 250 feet of the waste boundary as approved by the cabinet.

(118) "Point source" means any discernible, confined, and discrete conveyance including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, vessel or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture.

(119) "Pollutant" shall have the same meaning as KRS 224.01-010.

(120) "Polychlorinated biphenyls" or "PCB" means halogenated organic compounds defined in accordance with 40 CFR 761.2 as of July 1989.

(121) "Postclosure" shall have the same meaning as "closure care."

(122) "Postclosure care" means the manner in which a facility shall be maintained when it no longer accepts waste for disposal.

(123) "Postclosure monitoring and maintenance" shall have the meaning specified in KRS 224.01-010.

(124) "Postconsumer waste paper" shall have the meaning specified in KRS 224.01-010.

(125) "Processing facility" means a facility or part of a facility using any method, technique or procedure, including neutralization, designed to change the physical, chemical, or biological character or composition of any solid waste so as to neutralize such waste, or so as to recover energy or material resources from the waste, or so as to render such waste less hazardous; safer to transport, store, or dispose of; or amenable for recovery, amenable for handling or reduced in volume.

(126) "Proposed permit" means a document prepared by the cabinet indicating the cabinet's tentative decision to issue or deny, modify, revoke or terminate a permit.

(127) "Publicly owned treatment works" or "POTW" shall have the meaning specified in KRS 224.01-010.

(128) "Publisher" shall have the meaning specified in KRS 224.01-010.

(129) "Putrescible" means susceptible to rapid decomposition by bacteria, fungi, or oxidation sufficient to cause nuisances such as odors, gases, or other offensive conditions.

(130) "Qualified groundwater scientist" means a geologist registered in Kentucky who has received a baccalaureate or postgraduate degree in the natural sciences or engineering, and has sufficient training and experience in groundwater hydrology and related fields to enable that individual to make sound professional judgments regarding groundwater monitoring and contaminant fate and transport.

(131) "Recharge zone" means an area supplying the water which enters an underground drinking water source.

(132) "Recovered material processing facility" shall have the meaning specified in KRS 224.01-010.

(133) "Recovered material" shall have the meaning specified in KRS 224.01-010.

(134) "Recycled content" shall have the meaning specified in KRS 224.01-010.

(135) "Recycling center" means a facility or a part of a facility at which solid waste is received and managed in a manner amenable for the recovery of material or energy. This term does not include recycling facilities.

(136) "Recycling facility" means a facility or a part of a facility at which solid waste is processed to reclaim material or energy from the solid waste.

(137) "Recycling" shall have the meaning specified in KRS 224.01-010.

(138) "Refuse-derived fuel" shall have the meaning specified in KRS 224.01-010.

(139) "Registered permit by rule" means that certain classes of solid waste sites or facilities as specified in 401 KAR 47:080 have a permit as provided in 401 KAR 47:110 or 401 KAR 48:200.

(140) "Representative sample" means a sample of a universe or whole (for example, waste pile, lagoon, or groundwater) which can be expected to exhibit the average properties of the universe or whole.

(141) "Research, development, and demonstration permit" means a solid waste treatment or disposal facility using innovative and experimental technology as specified in sections of 401 KAR 47:150.

(142) "Residential landfill" means a facility for the proper disposal of solid waste including residential waste, commercial waste, institutional waste, and those sludges, industrial or special waste with specific approval from the cabinet.

(143) "Residual landfill" means a facility for the disposal of specific solid waste(s), including special waste, which is located, designed, constructed, operated, maintained, and closed in conformance with 401 KAR 30:031 and 401 KAR 47:030 and which receives a case-by-case design review by the cabinet.

(144) "Resource recovery" means the recovery of material or energy from waste.

(145) "Run-off" means any rainwater, leachate, or other liquid that drains overland from any part of a facility.

(146) "Run-on" means any rainwater, leachate, or other liquid that drains overland onto any part of a facility.

(147) "Salvaging" means the controlled removal of waste materials for utilization in a manner approved by the cabinet.

(148) "Sanitary landfill" means a facility for the disposal of solid waste that complies with 401 KAR 30:031 and 401 KAR 47:030.

(149) "Saturated zone" shall have the same meaning as "zone of saturation".

(150) "Scavenging" means the removal of waste materials from a waste management site or facility in a manner deemed by the cabinet to be dangerous to the health and safety of any person.

(151) "Schedule of compliance" means a schedule of remedial measures included in a permit or cabinet order, including an enforceable sequence of interim requirements (for example, actions, operations, or milestone events) leading to compliance with KRS Chapter 224 and 401 KAR Chapters 30 to 49.

(152) "Secretary" shall have the meaning specified in KRS 224.01-010.

(153) "Sewage system" shall have the meaning specified in KRS 224.01-010.

(154) "Site" means the land or water area where any facility or activity is physically located or conducted, including adjacent land used in connection with the waste facility or activity.

(155) "Sludge dryer" means any enclosed thermal treatment device that is used to dehydrate sludge and that has a maximum total thermal input, excluding the heating value of the sludge itself, of 2,500 BTU per pound of sludge treated on a wet-weight basis.

(156) "Sludge" means any solid, semisolid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility exclusive of the treated effluent from a wastewater treatment plant or any other waste having similar characteristics and effects.

(157) "Small quantity generator" means a generator who generates more than 100 kilograms but less than 1000 kilograms of hazardous waste in a calendar month.

(158) "Solid waste" shall have the same meaning as KRS 224.01-010.

(159) "Solid waste management area" or "area" shall have the meaning specified in KRS 224.01-010.

(160) "Solid waste management facility" shall have the meaning specified in KRS 224.01-010.

(161) "Solid waste management" shall have the meaning specified in KRS 224.01-010.

(162) "Solid waste site or facility" means any place at which solid waste is managed, processed or disposed by landfilling, incineration, landfarming or any other method. The term includes: construction/demolition debris landfill; collection box; contained landfill; convenience center; disposal facility; incinerator; injection well; landfarming facility; management facility; miscellaneous unit; municipal solid waste disposal facility; pile or waste pile; processing facility; recycling center; recycling facility; residual landfill; sanitary landfill; surface impoundment; tank; transfer facility; unit or solid waste unit; wastewater treatment unit; inert landfill; or residential landfill.

(163) "Solid waste unit" means a contiguous area of land on or in which solid waste is placed, or the largest area in which there is significant likelihood of mixing waste constituents in the same area. Examples of solid waste units include a surface impoundment, a waste pile, a land processing area, a landfill cell, an incinerator, a tank and its associated piping and underlying containment system, and a container storage area. A container alone does not constitute a unit; the unit includes containers and the land or pad upon which they are placed.

(164) "State" means any of the fifty (50) states, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, the Northern Mariana Islands or Guam but does not include any foreign country.

(165) "Storage" shall have the meaning specified in KRS 224.01-010.

(166) "Surface impoundment" means a facility or part of a facility which is a natural topographic depression, manmade excavation, or diked area formed primarily of earthen materials (although it may be lined with manmade materials), which is designed to hold an accumulation of liquid wastes or wastes containing free liquids, and which is not an injection well. Examples of surface impoundments are holding, storage, settling, and aeration pits, ponds, and lagoons.

(167) "Tank" means a stationary device designed to contain an accumulation of leachate or solid waste that is constructed primarily of nonearthen materials (for example, wood, concrete, steel, or plastic) which provide structural support.

(168) "Tank system" means a solid waste tank and its associated piping, ancillary equipment and containment system.

(169) "Technical application" means the standard format for applying for a solid waste site or facility permit as specified in 401 KAR 47:160 and 401 KAR 47:190.

(170) "Termination" shall have the meaning specified in KRS 224.01-010.

(171) "Transfer facility" shall have the meaning specified in KRS 224.01-010.

(172) "Transport vehicle" means a motor vehicle or rail car used for the transportation of cargo by any mode. Each cargo-carrying body is a separate transport vehicle.

(173) "Transportation" shall have the meaning specified in KRS 224.01-010.

(174) "Trenching or burial operation" means the placement of sewage sludge or septic tank pumpings in a trench or other natural or manmade depression and the covering with soil or other suitable material at the end of each operating day such that the waste does not migrate to the surface.

(175) "Underground drinking water source" means:

(a) An aquifer supplying drinking water for human consumption; or

(b) An aquifer in which the groundwater contains less than 10,000 mg/l total dissolved solids.

(176) "Underground tank" means a device meeting the definition of "tank" in this section whose entire surface area is totally below the surface of and covered by the ground.

(177) "Unfit-for-use tank system" means a tank system that has been determined through an integrity assessment or other inspection to be no longer capable of managing or processing solid waste without posing a threat of release of waste to the environment.

(178) "Unit" shall have the same meaning as "solid waste unit".

(179) "Universal collection" shall have the meaning specified in KRS 224.01-010.

(180) "Unsaturated zone" shall have the same meaning as "Zone of aeration".

(181) "Uppermost aquifer" means the geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected with this aquifer within the facility's property boundary.

(182) "Vessel" means any watercraft used or capable of being used as a means of transportation on the water.

(183) "Washout" means the carrying away of waste by waters as a result of flooding.

(184) "Waste boundary" means:

(a) The outermost perimeter of the waste (projected in the horizontal plane) as it would exist at completion of the disposal activity; or

(b) An alternative boundary for a solid or special waste disposal facility which may be used in lieu of paragraph (a) when the cabinet finds that such a change would not result in the contamination of groundwater which may be needed or used for human consumption. Such a finding shall be based on an analysis and consideration of all the factors identified in the following subparagraphs of this paragraph that are relevant:

The hydrogeological characteristics of the facility and surrounding land including any natural attenuation and dilution characteristics of the aquifer;
The volume and physical and chemical characteristics of the leachate;
The quantity, quality, and direction of flow of groundwater underlying the facility;
The proximity and withdrawal rates of groundwater users;
The availability of alternative drinking water supplies;
The existing quality of the groundwater, including other sources of contamination and their cumulative impacts on the groundwater; and
Public health, safety, and welfare effects.

(185) "Waste disposal facility" shall have the same meaning as KRS 224.40-310.

(186) "Waste management district" shall have the meaning specified in KRS 224.01-010.

(187) "Waste pile" shall have the same meaning as "pile".

(188) "Waste site or facility" shall have the meaning specified in KRS 224.01-010.

(189) "Waste" shall have the meaning specified in KRS 224.01-010.

(190) "Wastewater treatment unit" means a tank which is part of a wastewater treatment facility which is subject to administrative regulation under either Section 402 or Section 307(b) of the Clean Water Act of 1972 and which receives, treats, stores, generates, or accumulates influent wastewater or receives, manages, processes, generates or accumulates wastewater treatment sludge, either of which is a solid waste.

(191) "Water pollution" shall have the meaning specified in KRS 224.01-010.

(192) "Water" or "waters of the Commonwealth" shall have the meaning specified in KRS 224.01-010.

(193) "Well" means any shaft or pit dug or bored into the earth, generally of cylindrical form, and often walled with bricks or tubing to prevent the earth from caving in.

(194) "Wetlands" means land that has a predominance of hydric soils and is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions.

(195) "Zone of aeration" means that region of the soil or rock between the land surface and the nearest saturated zone in which the interstices are occupied partially by air.

(196) "Zone of incorporation" means the depth to which the soil on a landfarm is plowed, tilled, or otherwise designed to receive waste.

(197) "Zone of saturation" means that part of the earth's crust containing groundwater in which all voids, large and small, are filled with liquid.

Section 2. Acronyms and Abbreviations. Unless otherwise specifically indicated by context, acronyms and abbreviations used in 401 KAR Chapter 47 shall have the meaning as identified in Table 1 of this administrative regulation.

History

RELATES TO: KRS 224.10, 224.40, 224.43, 40 C.F.R. 257.2, 258.2
STATUTORY AUTHORITY: KRS 224.10-100
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt administrative regulations for the management, processing, and disposal of solid wastes. This chapter establishes standards applicable to all solid wastes or facilities. This administrative regulation defines essential terms that are used in this chapter.
History: 401 KAR 047:005. 23 Ky.R. 1265; eff. 3-12-1997; TAm eff. 6-14-2013; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 47:025 Permit review and determination timetables {#sec-401-kar-47-025 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:025}

Section 1. Submittal of Permit Applications and Registrations.

(1) The official date of receipt for documents associated with a solid waste permit application or registration shall be the date the document is stamped received by the Division of Waste Management.

(2) The applicant or registrant shall have the burden of establishing that the application or registration is in compliance with all requirements of KRS Chapter 224 and 401 KAR Chapters 30, 47, and 48.

Section 2. Administrative Completeness Determination.

(1) No application or registration shall be reviewed until the cabinet has determined that the application or registration is administratively complete. A determination by the cabinet that an application or registration is administratively complete means that the application or registration contains the major elements required by KRS Chapter 224 and 401 KAR Chapters 30, 47, and 48 that are necessary to allow meaningful review by the cabinet. An application or registration shall not be deemed administratively complete if one (1) or more major components are found to be absent from the application or registration, which, by virtue of their absence, would require that the permit be denied. A determination that an application or registration is administratively complete shall not mean that the application is complete in every detail, nor shall it mean that any aspect of the application is technically sufficient or approvable.

(2) Within forty-five (45) calendar days of receipt of the application or registration the cabinet shall provide written notice to the applicant or registrant as to the administrative completeness of the application or registration.

(a) If the application or registration is determined to be administratively complete, the cabinet shall notify the applicant or registrant in writing that the review and determination period provided by Section 3 of this administrative regulation has commenced.

(b) If the application or registration is determined to be incomplete, the cabinet shall notify the applicant or registrant of the deficiencies that render it administratively incomplete. The applicant or registrant shall have thirty (30) calendar days from mailing or hand delivery of the cabinet's notice of deficiency to correct the deficiencies and render the application or registration administratively complete, unless a longer time period is approved by the cabinet.

(c) The cabinet shall have thirty (30) calendar days from receipt of the applicant's or registrant's submittal of a complete response to a notice of deficiency to determine if the application or registration is administratively complete.

If the applicant or registrant renders the application or registration administratively complete within the specified timetable, the cabinet shall notify the applicant or registrant in writing that the review and determination period provided by Section 3 of this administrative regulation has commenced.
If the cabinet determines that the application or registration is not administratively complete at the end of the period specified in this subsection, the cabinet shall make a written determination to deny the permit with the stated reason that the application or registration, in its current form, fails to comply with the requirement to submit a complete application. This action shall not preclude the submission of a new application or registration for the same site or facility in the future. Submission of a new application or registration shall be considered as if not previously submitted for the purpose of fees and review timetables.

Section 3. Timetables for Permit or Registration Review and Determination.

(1) All administratively complete permit applications and registrations shall be reviewed and a determination made to issue, acknowledge, or deny the permit within the following timetables:

(a) Application to Construct a New Solid Waste Disposal Facility or to Horizontally Expand an Existing Solid Waste Disposal Facility: the timetable is specified in KRS 224.40-310(10).

(b) Research, Development, and Demonstration Permit: 180 calendar days.

(d) Closure Permit: 180 calendar days.

(e) Permit transfer: 180 calendar days.

(f) Permit renewal: 180 calendar days.

(g) Registered Permit-by-rule: ninety (90) calendar days.

(h) Any other permit action not specifically set forth in this section: ninety (90) calendar days.

(2) The timetables specified in subsection (1) of this section may be extended at the initiative of either the cabinet or the applicant or registrant. The purpose and period of the extension shall be in writing and, if agreed to, shall be signed by both the cabinet and the applicant or registrant. The agreement to extend the timetable shall become part of the cabinet's permit or registration file.

Section 4. Timetable Exclusions. The time periods specified in Section 3 of this administrative regulation shall not run during the following intervals:

(1) From the date the cabinet mails or hand delivers a notice of deficiency until the date the Division of Waste Management stamps as received a complete response to the deficiencies. If a notice of deficiency is sent to an applicant or registrant, the applicant or registrant shall have 180 calendar days to respond to the notice of deficiency. Failure to respond to a notice of deficiency within 180 calendar days shall be grounds for denial of the permit;

(2) Sixty (60) days from the date of any public hearing on the application or registration to allow the cabinet time to consider public comments; and

Section 5. Timetable Extensions. If two (2) or more permits for a facility, site, source, construction project, or other entity are required from the cabinet, the cabinet may coordinate the issuance of the permits, establishing different review and action times that shall be accomplished by the cabinet or applicant. If the permits are coordinated, the cabinet shall so notify the applicant and indicate the time frames under which the intermediate actions and final permit actions shall be accomplished. The established time frame for final action shall not exceed the last date for action that is provided for under applicable statutes and administrative regulations, based on all applications being considered and their filing dates.

Section 6. Applicability Dates.

(1) The provisions of this administrative regulation shall apply to applications and registrations received after the effective date of this administrative regulation.

(2)

(a) The provisions of this administrative regulation shall not apply to applications and registrations pending on the effective date of this administrative regulation unless, within ninety (90) days of the effective date of this administrative regulation, the applicant or registrant submits written notification to the cabinet that the applicant or registrant desires to have the application or registration subject to this administrative regulation.

(b) If the applicant or registrant fails to notify the cabinet in accordance with paragraph (a) of this subsection, the application or registration shall not be subject to the provisions of this administrative regulation.

(c) Applications and registrations for which the cabinet has mailed or hand delivered a notice of deficiency prior to the cabinet's receipt of the letter provided for in paragraph (a) of this subsection shall not be subject to the provisions of Section 2 of this administrative regulation. All other provisions of this administrative regulation shall apply beginning on the date the cabinet receives the notice provided for in paragraph (a) of this subsection.

Section 7. Relationship to KRS 224.40-310(10). Applications processed under KRS 224.40-310(10) shall be subject to the provisions of Sections 1 and 4(1) of this administrative regulation. The other provisions of this administrative regulation shall not apply to applications processed under KRS 224.40-310(10).

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.50
STATUTORY AUTHORITY: KRS 224.10-220
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt administrative regulations for the management, processing, and disposal of solid wastes. KRS 224.40-305 requires persons who establish, construct, operate, maintain or permit the use of a waste site or facility to obtain a permit. This chapter establishes standards applicable to all solid waste sites or facilities. KRS 224.10-220 requires the cabinet to establish timetables for the review and determination of permit applications and registrations. This administrative regulation sets forth timetables for the review and determination of solid waste permit applications and registrations.
History: 401 KAR 047:025. 19 Ky.R. 1952; 2254; 2405; eff. 4-28-1993; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 47:030 Environmental performance standards {#sec-401-kar-47-030 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:030}

Section 1. Purpose, Scope and Applicability. The standards in this administrative regulation shall be for use under the waste management provisions of KRS Chapter 224 in determining which solid waste sites or facilities pose a reasonable probability of adverse effects on human health or the environment. Solid waste sites or facilities failing to satisfy the requirements of this administrative regulation shall be considered open dumps which are prohibited by KRS 224.40-100. An owner or operator shall not cause, suffer, or allow a solid waste site or facility or any unit of a solid waste site or facility to violate any provision of this administrative regulation.

Section 2. Flood Plains. A solid waste site or facility shall not restrict the flow of the 100 year flood, reduce the temporary water storage capacity of the flood plain, or be placed in a manner likely to result in washout of waste, so as to pose a hazard to human health, wildlife, or land or water resources.

Section 3. Endangered Species. A solid waste site or facility shall not:

(1) Cause or contribute to the taking of any endangered or threatened species or candidate species of the Endangered Species Act of 1973 as amended through January 1984, 16 U.S.C. 1531 to 1544, and 50 C.F.R. Part 424 as of October 1984; or

(2) Result in the destruction or adverse modification of the critical habitat of endangered or threatened species or candidate species as identified in the Endangered Species Act of 1973 as amended through January 1984, 16 U.S.C. 1531 to 1544, and 50 C.F.R. Part 424 as of October 1984.

Section 4. Surface Waters. A solid waste site or facility shall not:

(1) Cause a discharge of pollutants into waters of the Commonwealth, including wetlands, that violates any requirements of KRS Chapter 224, including but not limited to the Kentucky Pollutant Discharge Elimination System;

(2) Cause a discharge of dredged material or fill material to waters of the Commonwealth that is in violation of the requirements under Section 404 of the Clean Water Act as of February 4, 1987, 33 U.S.C. Section 1344; or

(3) Cause the release of nonpoint source pollution to waters of the Commonwealth, including wetlands, that violates any requirements of the Kentucky Nonpoint Source Pollution Program.

Section 5. Groundwater. A solid waste site or facility shall not contaminate an underground drinking water source beyond the point of compliance in excess of the maximum contaminant levels contained in Section 6 of this administrative regulation.

Section 6. Maximum Groundwater Contaminant Levels. The maximum contaminant levels of this section shall be used in determining whether solid waste site or facility activities comply with the groundwater criteria of Section 5 of this administrative regulation. Only analytical methods for these contaminants that are approved by the cabinet shall be used. A solid waste site or facility shall not contaminate an underground drinking water source beyond the maximum contaminant levels established in this section.

(1) Maximum contaminant levels for inorganic chemicals. A solid waste site or facility shall not contaminate an underground drinking water source beyond the following maximum contaminant levels:

(2) Maximum contaminant levels for organic chemicals. The following shall be the maximum contaminant levels for organic chemicals other than volatile synthetic organic chemicals:

(3) Maximum contaminant levels for radioactivity. The following shall be the maximum contaminant levels for radionuclides:

(4) Maximum contaminant levels for volatile synthetic organic chemicals. The following shall be the maximum contaminant levels for volatile synthetic organic chemicals:

(5) Maximum microbiological contaminant levels. The maximum contaminant level for coliform bacteria from any one (1) well shall be:

(a) Using the membrane filter technique:

Four (4) coliform bacteria per 100 milliliters if one (1) sample is taken; or
Four (4) coliform bacteria per 100 milliliters in more than one (1) sample of all the samples analyzed in one (1) month; or

(b) Using the five (5) tube most probable number procedure (the fermentation tube method) in accordance with the analytical procedures approved by the cabinet, and using a standard sample, each portion being one-fifth (1/5) of the sample:

If the standard portion is ten (10) milliliters, coliform in any five (5) consecutive samples from a well shall not be present in three (3) or more of the twenty-five (25) portions; or
If the standard portion is 100 milliliters, coliform in any five (5) consecutive samples from a well shall not be present in five (5) portions in any of five (5) samples or in more than fifteen (15) of the twenty-five (25) portions.

Section 7. Application to Land Use for the Production of Food Chain Crops. A solid waste site or facility shall not exist or occur which applies solid waste within three (3) feet of the surface of land used for the production of food chain crops unless in compliance with all the requirements of subsection (1) or (2) of this section:

(1)

(a) The pH of the solid waste and soil mixture shall be six and five-tenths (6.5) or greater at the time of each solid waste application, except for solid waste containing cadmium at concentrations of two (2) mg/kg (dry weight) or less;

(b) The annual application of cadmium from solid waste shall not exceed 0.44 pounds per acre on land used for production of tobacco or food chain crops. The annual cadmium application rate shall not exceed 0.44 pounds per acre; and

(c) The maximum cumulative application of cadmium from the waste shall not exceed the levels in Table 1 of this paragraph.

(2) If animal feed is the only food chain crop produced, there shall not be limit to the cadmium application rate, as long as the pH of sludge and soil mixture is six and five-tenths (6.5) or greater at the time of sludge application or at the time the crop is planted, whichever occurs later, and this pH level is maintained whenever food chain crops are grown. A plan shall also be developed which demonstrates how the animal feed shall be distributed to preclude human ingestion, and the measures to be taken to safeguard against possible health hazards from cadmium entering the food chain, which may result from alternative land uses. Future property owners shall also be notified by a stipulation in the land record or property deed which states that the property received sludge at high cadmium application rates and that food chain crops, except for animal feed, shall not be grown due to possible health hazards.

Section 8. Polychlorinated Biphenyls. A solid waste site or facility shall not exist or occur which places solid waste containing concentrations of polychlorinated biphenyls (PCBs) equal to or greater than one (1) mg/kg (dry weight) on the land. However, residual landfills may dispose of PCBs in accordance with their permit and contained landfills may dispose of solid wastes containing PCBs equal to forty-nine (49) mg/kg (dry weight) or less.

Section 9. Disease.

(1) Disease vectors. A solid waste site or facility shall not exist or occur unless the on-site population of disease vectors is prevented or controlled through the periodic application of cover material or other techniques as appropriate to protect human health and the environment.

(2) Sewage sludge and septic tank pumpings. A solid waste site or facility shall not exist or occur which applies sewage sludge or septic tank pumpings within three (3) feet of the surface of the land unless a method to reduce pathogens has been utilized.

Section 10. Air.

(1) A solid waste site or facility shall not engage in open burning of solid waste or hazardous wastes. This requirement shall not apply to infrequent burning of agricultural wastes in the field, silvicultural wastes for forest management purposes, land-clearing debris, diseased trees, debris from emergency cleanup operations, or ordnance.

(2) A solid waste site or facility shall not violate applicable air pollution requirements contained in KRS Chapter 224 or 401 KAR Chapters 50 through 63.

Section 11. Safety.

(1) Explosive gases. A solid waste site or facility shall not allow the concentration of explosive gases generated by the facility to exceed:

(a) Twenty-five (25) percent of the lower explosive limit for the gases in facility structures (excluding gas control or recovery system components); and

(b) The lower explosive limit for the gases at the facility property boundary.

(2) Fires. A solid waste site or facility shall not pose a hazard to the safety of persons or property from fires. This may be accomplished through compliance with Sections 8 and 9 of this administrative regulation, through the periodic application of daily, interim, or long-term cover materials or other techniques such as, but not limited to, isolation, fire breaks, compliance with local fire codes, availability of fire fighting equipment, and normal fire prevention measures as appropriate.

(3) Access. A solid waste site or facility shall not allow uncontrolled public access, unauthorized vehicular traffic, or illegal dumping of wastes. This requirement to ensure protection of human health and the environment may be met by using artificial barriers, natural barriers, or other methods as appropriate.

Section 12. Public Nuisance. A solid waste site or facility shall not result in a public nuisance because of blowing litter, debris, or other waste or material.

Section 13. Wetlands. A new or expanded solid waste site or facility shall not be located in wetlands.

Section 14. Compliance. A solid waste site or facility shall not violate any requirement of KRS Chapter 224.

History

RELATES TO: KRS 224.01-010, 224.10-100, 224.10-105, 224.10-110, 224.40-100-224.40-650, 224.43-010-224.43-505, 224.70-100, 224.70-110, 224.99-010-224.99-030, 50 C.F.R. Part 424
STATUTORY AUTHORITY: KRS 224.10-100, 224.10-105, 224.40-100, 224.40-305, 224.43-340
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(19) and (24) and 224.10-105 require the Natural Resources and Environmental Protection Cabinet to promulgate administrative regulations concerning waste management. KRS 224.40-305 and 224.40-100 require the cabinet to promulgate administrative regulations establishing requirements for obtaining a permit to use a waste site or facility and response actions to close and reclaim or upgrade open dumps. KRS 224.43-340 requires the cabinet to promulgate administrative regulations establishing requirements for the reduction and management of solid waste. This administrative regulation establishes the minimum environmental standards with which all solid waste sites or facilities shall comply.
History: 401 KAR 047:030. 16 Ky.R. 1724; 2171; 2346; eff. 5-8-1990; 30 Ky.R. 1343; 1958; 2019; eff. 3-18-2004; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 47:070 Operator certification {#sec-401-kar-47-070 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:070}

Section 1. Definitions. The following are definitions as used in this administrative regulation:

(1) "Category of solid waste site or facility" means inert, residual, construction demolition debris, residential or contained landfill and includes landfarming facilities receiving Class I, II and III sludges or wastes.

(2) "Certificate" means a written document issued by the cabinet stating that the operator has met all requirements for certification.

(3) "Certified operator" means a solid waste site or facility operator who holds a valid certificate. The following are categories of certified operators:

(a) "Landfarming operator" means a certified operator who is the individual responsible for ensuring compliance with all permit conditions at a landfarming facility in accordance with 401 KAR 48:200, and who is reasonably available to the site;

(b) "Landfill operator" means a certified operator who is the individual responsible for the daily operating requirements identified in 401 KAR 47:120, 48,060, 48:090, or 48:170;

(c) "Landfill manager" means a certified operator who is the individual with primary responsibility for management and operation of the residential or contained or construction/demolition debris sanitary landfill to assure compliance with all permit conditions including direct responsibility for providing guidance to the landfill operator, or the permittee and the authority to commit financial resources allocated for proper operation; or

(d) "Interim operator" means the individual identified by the permittee as the replacement landfarming operator, landfill operator, or landfill manager in accordance with Section 12 of this administrative regulation.

Section 2. Applicability.

(1) The requirements in this administrative regulation apply to all solid waste sites or facilities except as subsection (2) of this section provides otherwise. Each solid waste site or facility shall have at least one (1) operator certified in accordance with Section 3 (sanitary landfills) or Section 4 (landfarming facilities) of this administrative regulation, as appropriate to the category of solid waste site or facility.

(2) Residual landfills and facilities operating under a registered permit-by-rule or a permit-by-rule are excluded from the requirements of this administrative regulation, unless the cabinet requires operator certification as a condition of the permit. In deciding whether to require operator certification at a residual landfill, a site or facility with a registered permit-by-rule or a permit-by-rule, the cabinet shall consider:

(a) The characteristics of the waste stream;

(b) The characteristics of the site, including geology and hydrology; and

(3) It shall be the responsibility of the permittee to ensure that the solid waste site or facility complies with the requirements of this administrative regulation.

Section 3. General Provisions for Landfills.

(1) Each construction/demolition debris, residential and contained landfill shall have a certified operator who is a landfill operator and a landfill manager. The requirements of this subsection may be fulfilled by:

(a) One (1) individual who has been certified in accordance with Section 6 of this administrative regulation for both categories of certified operator (provided this individual meets the qualifications in Sections 1(3) and 11 of this administrative regulation); or

(b) Two (2) individuals who have been certified in accordance with Section 6 of this administrative regulation in each category of operator such that one (1) individual is certified as a landfill operator and one (1) individual is certified as a landfill manager.

(2) As provided in Section 2 of this administrative regulation, the cabinet may require as a permit condition that a residual landfill or a site or facility with a permit-by-rule or registered permit-by-rule shall have a certified operator who is a landfill operator or a landfill manager or both. The permit condition imposed shall reference all applicable operating administrative regulations and requirements for the specific category of sanitary landfill.

(3) In the event the certified operator who is the landfill operator is not physically at the facility during operating hours, either the landfill manager or an interim operator shall be designated responsible for daily site operation and shall be physically located on site. If an interim operator assumes responsibility for daily operation of the landfill, the requirements in Section 12 of this administrative regulation shall be met.

(4) In carrying out its responsibilities, the cabinet shall examine the qualifications of applicants for certification and maintain records of certification and a register of certified operators.

(5)

(a) Except as provided in Section 2 of this administrative regulation, no landfill shall continue operation in the absence of a landfill operator on site for more than ten (10) consecutive operating days without appointment of a qualified interim operator in accordance with Section 12 of this administrative regulation or written approval from the cabinet.

(b) Except as provided in Section 2 of this administrative regulation, no landfill shall continue operation in the absence of a landfill manager for a period longer than thirty (30) consecutive operating days without appointment of a qualified interim operator in accordance with Section 12 of this administrative regulation or written approval from the cabinet.

Section 4. General Provisions for Landfarming Facilities.

(1) Each landfarming facility shall have a landfarming operator certified in accordance with Section 6 of this administrative regulation.

(2) No landfarming facility shall continue operation in the absence of a landfarming operator for a period longer than five (5) consecutive working days without appointment of a qualified interim operator in accordance with Section 12 of this administrative regulation or written approval from the cabinet.

Section 5. Application for Certification.

(1) An individual desiring to be certified shall file an application on a form provided by the cabinet at least thirty (30) days before beginning training for a scheduled examination.

(2) The applicant shall submit all information needed to determine eligibility of the applicant for examination and certification.

(3) The cabinet shall review applications and supporting documents, determine the eligibility of the applicant for examination and notify the applicant of the determination.

(4) No person shall be eligible for examination for certification unless that person completes the appropriate training class or classes provided by the cabinet, unless an alternative training program or certification program is accepted by the cabinet in accordance with Section 7(6) of this administrative regulation.

Section 6. Training Classes and Examinations.

(1) The cabinet will provide training classes for the certified operator.

(2) Training sessions will be held at least annually at places and times set by the cabinet. The last day of each training session will be set aside for the purpose of examinations to determine the knowledge and ability of the applicant.

(3) Certification shall be conditioned on successful passage of a written examination, unless an alternative examination process is accepted by the cabinet.

(4) Separate examinations will be prepared to cover basic differences in the duties and responsibilities for the operation of each category of solid waste site or facility and each category of certified operator.

(5) Applicants who fail to pass an examination may reapply for the examination at a regularly scheduled examination or by appointment with the cabinet. The cabinet shall require the applicant to attend the training session again if the applicant fails to pass the examination in three (3) attempts.

(6) In the event an applicant fails to meet the requirements for certification, he may petition the cabinet for a one (1) time only "temporary hardship certification." The cabinet will then conduct an informal hearing at which evidence shall be presented by the applicant to support his hardship request. Each temporary hardship certification request shall be considered on a case-by-case basis under the following guidelines:

(a) Failure of the applicant to receive certification would leave a significant area of the state without adequate waste disposal service.

(b) The applicant has shown a good faith effort by attending all required training sessions and met all requirements except the applicant has failed in three (3) attempts to pass the examination.

(c) The applicant has shown, through cabinet inspections, a capability for satisfactory operation of the solid waste site or facility.

Section 7. Training Course Requirements.

(1) All applicants for certification shall be required to attend a training course provided by the cabinet in accordance with KRS 224.844.

(2) The training course provided by the cabinet shall be designed to provide information as appropriate to the category of certified operator. At a minimum, the training course shall provide information which enables the certified operator to perform his duties in a knowledgeable and competent manner.

(3) Landfill managers shall be trained on:

(a) The requirements for permit application for the applicable category of sanitary landfill including ownership, zoning, chapter 109 district boards, geologic and hydrologic information and specific design details;

(b) Characteristics of the waste stream; the physical, chemical and biological reactions including the hydrogeologic interactions of a landfill; and measures that shall be employed to meet the environmental performance standards in 401 KAR 47:030 and all other regulatory requirements; and

(c) Specific duties expected to be performed by individuals who are wholly responsible for the requirements associated with the operation of the applicable category of sanitary landfill permitted by the cabinet. These actions include at a minimum, the commitment of resources, oversight of operating personnel, and verification that site operation is in accordance with all provisions of the permit including technical documents.

(4) Landfill operators shall be trained on the requirements contained in the solid waste administrative regulations as they apply to daily site operation duties. These duties include judging indicators regarding a site's ability to receive wastes; judging waste characteristics for disposal acceptability; employing site equipment to maintain waste compaction, cover, and surface water management on a daily basis; maintaining equipment; maintaining site safety; and generally assuring compliance with the administrative regulations.

(5) Landfarming operators shall be trained on the Kentucky waste management program as it applies to landfarming; wastewater treatment processes; the nature and characteristics of sludges; the physical and chemical properties of sludges; landfarming design and management; environmental considerations; and the Kentucky waste management permit process. The permit process includes requirements for application, conditions for maintaining a permit in compliance with the application and administrative regulations, and amendments to the landfarming activity and associated permit.

(6) The cabinet shall provide the training course to applicants for certification. However, the cabinet may consider alternate training courses or certification programs provided they are equivalent to the content prescribed by the cabinet's training course. It shall be the applicant's responsibility to submit such documentation as the cabinet requires for an equivalency judgment of the alternate training course. This information shall contain at a minimum the following specifics: the course name; sponsoring agency; the date, location and the beginning and ending times of the course; a summary of the course content of sufficient detail to determine relevance and quality of the course; and a copy of the certificate received.

Section 8. Issuance of Certificates.

(1) Upon passage of the examination the cabinet will issue a certificate to the applicant which will indicate the category of solid waste site or facility and the category of certified operator for which the operator is certified.

(2) Certified operators shall be recertified every five (5) years.

(3) Certificates will be issued to holders of certificates of another state if the training requirements of the issuing state are deemed comparable as specified in Section 7(6) of this administrative regulation and if the operator passes the cabinet's examination.

(4) The certificates of operators who terminate their employment at a solid waste site or facility will remain valid until expiration or revocation of the certificate.

(5) Certificates shall be carried on the person of each certified operator during working hours at the facility or prominently displayed on site.

Section 9. Compliance Dates.

(1) An operator who is not an appropriately certified operator and who assumes the responsibility of a certified operator shall immediately comply with the requirements in Section 12 of this administrative regulation; and

(2) Comply with the requirements in Section 6 of this administrative regulation within fifteen (15) months of assuming the responsibility.

Section 10. Revocation of Certificate.

(1) The cabinet may revoke the certificate of an operator, following a cabinet hearing, when it determines that the operator has practiced fraud or deception, or that the operator has failed to perform an operator's duties including, but not limited to, failure to comply with permit conditions.

(2) The cabinet may revoke a certificate whenever the holder fails to use reasonable care and judgment in the performance of an operator's duties. No certificate shall be valid if obtained through fraud, deceit, or the submission of inaccurate data on qualifications.

(3) Individuals who have had their certificate revoked by the cabinet shall be ineligible for future recertification.

Section 11. Operator Qualifications: Education and Equivalencies.

(1) All applicants shall be evaluated by the cabinet as to education, and experience as related to the appropriate category of solid waste site or facility.

(2)

(a) Applicants for landfill operator shall have completed high school (by graduation or by obtaining an equivalency certificate) and shall have a minimum of one (1) year of experience at a landfill similar to the category of landfill for which certification is sought.

(b) If an applicant for landfill operator does not meet the requirements of paragraph (a) of this subsection, the cabinet may consider the number of years of experience in operating a landfill or experience in a related field (i.e., heavy equipment operator, road construction, surface mining, etc.) in determining eligibility for examination on a year-for-year basis.

(3)

(a) Applicants for landfill manager shall have completed high school (by graduation or by obtaining an equivalency certificate) and shall have:

A minimum of two (2) years administrative experience in a related field (i.e., waste management, wastewater treatment, etc.); or
A minimum of two (2) years of postsecondary education; or
A minimum of two (2) years of a combination of experience in a related field and postsecondary education.

(b) If an applicant for landfill manager does not meet the requirements of paragraph (a) of this subsection, the cabinet may consider the qualifications of the applicant on a case-by-case basis.

(4)

(a) Applicants for landfarming operator shall have completed high school (by graduation or by obtaining an equivalency certificate) and shall have a minimum of one (1) year of experience at a landfarming facility.

(b) If an applicant for landfarming operator does not meet the requirements of paragraph (a) of this subsection, the cabinet may consider the number of years of experience in operating a landfarming facility or experience in a related field (i.e., waste water treatment, water treatment, etc.) in determining eligibility for examination on a year for year basis.

Section 12. Interim Operators.

(1) In accordance with the requirements in subsection (2) of this section, the permittee shall notify the cabinet in writing of the extended absence of a certified operator ten (10) days prior to an anticipated absence and immediately upon discovery of an extended absence due to an emergency or unanticipated circumstances. The notice from the permittee shall provide the cabinet with the following information:

(a) Name and qualifications of the individual intended to replace the certified operator; and

(b) The length of time for which the permittee seeks to have the interim operator fulfill the obligations of the certified operator.

(2) The permittee shall notify the cabinet of the extended absence when the operator or manager shall be absent for:

(a) More than ten (10) consecutive operating days for a landfill operator;

(b) More than thirty (30) consecutive operating days for a landfill manager; and

(3) Consecutive operating days as used in subsection (2) of this section shall be determined as any days:

(a) When the solid waste site or facility accepts waste, operates equipment or otherwise performs the business of solid waste management; and

(b) Which days occur in sequence regardless of whether nonoperating days such as weekends or holidays fall in between.

(a) Approve or deny the permittee's request for designation of the interim operator;

(b) Identify the length of time the interim operator may operate the solid waste site or facility; and

Section 13. Permit Condition. As specified in Section 2 of this administrative regulation, every solid waste site or facility requiring a permit shall be operated by the operator certified pursuant to this administrative regulation. Pursuant to Sections 2 and 3 of this administrative regulation, maintaining the certified operator(s) shall be considered a permit condition, and the permit may be revoked, or penalties for permit violations sought as appropriate, upon violation of the requirements and duties established by this administrative regulation.

Section 14. Fees.

(1) Fees for application for certification shall be:

(a) $125 for application for certification as a landfill operator;

(b) $125 for application for certification as a landfill manager;

(c) $150 for application for certification as both a landfill operator and a landfill manager when the application is made for certification for both categories at the same training session;

(d) $125 for application for certification as a landfarming operator; and

(e) Fifty (50) dollars for certification by reciprocity for all categories of operator.

(2) Fees shall accompany applications and will not be returned to those who do not qualify for a certificate.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.46, 224.70, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-605
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt rules and administrative regulations for the management, processing or disposal of wastes. KRS 224.40-605 requires the cabinet to promulgate administrative regulations that establish standards and a certification program for operators of waste sites or facilities. This chapter establishes the permitting standards for solid waste sites or facilities, the standards applicable to all solid waste sites or facilities, and the standards for certification of operators. An overview of the permit program is found in Section 1 of 401 KAR 47:080. This administrative regulation establishes the program for education, testing, and certification of facility operators of solid waste sites or facilities.
History: 401 KAR 047:070. 8 Ky.R. 181; 459; eff. 2-1-1982; Recodified from 401 KAR 2:111, 3-1-1983; 10 Ky.R. 172; eff. 12-2-1983; 13 Ky.R. 913; 1228; eff. 1-13-1987; 16 Ky.R. 1642; 2174; eff. 5-8-1990; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 47:080 Classification of solid waste sites or facilities {#sec-401-kar-47-080 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:080}

Section 1. Coverage. The permit administrative regulations of 401 KAR Chapter 47 establish provisions for the solid waste permit program under KRS Chapter 224. The administrative regulations of this chapter cover the basic permitting requirements, including application requirements, standard permit conditions, a presiting procedure, construction, modification, monitoring and reporting of any facility that manages solid waste. The administrative regulations of this chapter are part of a regulatory scheme implementing the solid waste provisions of KRS Chapter 224. The solid waste permit program relies upon technical requirements which are contained in 401 KAR Chapter 48. The technical administrative regulations are used by the cabinet to determine what conditions are applicable to each permit and to determine compliance with KRS Chapter 224. Administrative regulations governing solid waste planning are set forth in 401 KAR Chapter 49 and the enforcement and compliance monitoring requirements in 401 KAR Chapter 40.

Section 2. Permit Types. This chapter provides for several types of solid waste site or facility permits which are classified based on the waste managed and the facility type.

(1) Contained landfill permit. Contained landfill is the category of solid waste site or facility which may accept for disposal all nonhazardous solid waste including residential, commercial, institutional, industrial, and municipal waste, shredded tires, household hazardous waste, limited quantity generator hazardous waste and nonhazardous spill cleanup residue. The technical requirements for contained landfills are found in 401 KAR 48:050 and 401 KAR 48:070 through 401 KAR 48:090.

(2) Construction/demolition debris landfill permit. Construction/demolition debris landfill is the category of solid waste site or facility for the disposal of solid waste which results from the construction, remodeling, repair and demolition of structures and roads, and for the disposal of uncontaminated solid waste consisting of vegetation resulting from land clearing and grubbing, utility line maintenance and seasonal and storm-related cleanup. Such waste includes, but is not limited to: bricks, shredded or segmented tires, concrete and other masonry materials, soil, rock, wood, wall coverings, plaster, drywall, plumbing fixtures, tree stumps, limbs, saw dust, leaves, yard waste, paper, paper products, metals, furniture, insulation, roofing shingles, asphaltic pavement, glass, plastics that are not sealed in a manner that conceals other wastes, electrical wiring and components containing no liquids or hazardous metals that are incidental to any of the above and other inert waste as approved by the cabinet. Asbestos-containing materials may be accepted only if the permit application includes procedures approved by the cabinet to handle these materials. Construction/demolition debris landfills shall not be for disposal of garbage, electrical fixtures containing hazardous liquids such as fluorescent light ballasts or transformers, PCB-containing waste, hazardous material spill residues, limited quantity generator hazardous waste, any waste regulated by 401 KAR Chapter 31 and 32, whole tires, liquids, drums, fuel tanks, or other nonpermitted waste. The technical requirements for construction/demolition debris landfills are found in 401 KAR 48:050 and 401 KAR 48:060.

(3) Residual landfill permit. Residual landfill is the category of solid waste site or facility designed and operated to accept for disposal a limited number of industrial wastes or residues which are fully characterizable. It also includes residuals from air and water pollution control devices and energy generation which are codisposed in a mining operation. In addition, residual landfills may accept sludge, and special wastes. The technical requirements for residual landfills are found in 401 KAR 48:050 and 401 KAR 48:170.

(4) Landfarming permit. Landfarming is a category of solid waste site or facility where solid waste is applied to the soil surface or injected into the upper layer of the soil to improve soil quality or provide plant nutrients. Solid wastes suitable for this purpose include, but are not limited to, food processing waste, municipal sewage treatment plant sludge, and municipal water treatment plant sludge. The technical requirements for landfarming facilities are found in 401 KAR 48:200.

(5) Permit-by-rule. Permit-by-rule is a category of solid waste site or facility permit for certain solid waste management practices listed in 401 KAR 47:150 which are deemed to have a permit without the owner or operator having made application to the cabinet. The practices and conditions of the permit-by-rule are specified in Section 1 of 401 KAR 47:150 and include limited tire disposal, on-site disposal of land clearing wastes, on-site disposal of construction and demolition wastes, sawdust piles, pumpings, oil production brine pits, gas and oil drilling, mud pits, and asphalt residues, waste piles, surface impoundments with a KPDES permit, automobile and truck recycle and salvage yards, beneficial reuse of solid wastes.

(6) Registered permit-by-rule.

(a) Registered permits-by-rule are a category of solid waste site or facility permit providing for the storage, treatment and disposal of solid waste that includes:

Commercial recycling centers;
Transfer stations;
Construction/demolition debris landfills of one (1) acre or less, when the wastes are not disposed at the site of generation;
Solid waste incinerators that have a rated capacity of more than one (1) ton per day including those using refuse derived fuel;
Sludge giveaway programs, composted sludge and other composted material programs in accordance with 401 KAR 48:200;
Landfarming of class I sludges in accordance with 401 KAR 48:200;
Septic tank pumpings if in compliance with the Cabinet for Human Resources administrative regulations and the waste is not applied to within three (3) feet of the surface of the land unless a method to reduce pathogens has been utilized in accordance with 401 KAR 48:200; and
Convenience centers.

(b) Owners and operators of a registered permit-by-rule site or facility are deemed to have a permit without further action by the cabinet. Owners and operators of a registered permit-by-rule site or facility shall prevent adverse effects on human health and the environment as identified in 401 KAR 47:030 and implement any necessary corrective action under Section 8 of 401 KAR 48:300.

(c) Operators shall submit a registration on a form prescribed by the cabinet as specified in Section 3 of this administrative regulation or 401 KAR 48:200, and shall operate in accordance with the standards specified in 401 KAR 48:200 or 401 KAR 47:110, and 401 KAR 47:030.

(7) Emergency permit. An emergency permit is a category of solid waste site or facility permit for the short-term storage or disposal of solid waste generated from a storm or flood event or other emergency as specified by the cabinet. The requirements for emergency permits are found in 401 KAR 47:150.

(8) Research, development and demonstration permit. A research, development and demonstration permit is a category of solid waste site or facility permit issued for a short period to demonstrate unproven technology. The permit procedures for this category can be found in 401 KAR 47:150.

(9) Residential landfill permit. A residential landfill permit is a category of solid waste site or facility construction permit which was issued prior to the effective date of this administrative regulation. Landfills in this category may continue to operate under the prior issued permit provided they notify the cabinet in accordance with Section 4 of this administrative regulation and comply with the operating standards for contained landfills as specified in 401 KAR 48:090, or construction/demolition debris landfills as specified in 401 KAR 48:060. The facility may close in accordance with Sections 4 and 5 of this administrative regulation or submit an application in accordance with the technical standards in 401 KAR Chapter 48.

(10) Inert landfill permit. An inert landfill permit is a category of solid waste site or facility permit which was issued prior to the effective date of this administrative regulation. Landfills in this category may continue to operate under the prior issued permit provided they notify the cabinet in accordance with Section 4 of this administrative regulation and comply with the operating standards for construction/demolition debris landfills as specified in 401 KAR 48:060 or residual landfills specified in 401 KAR 48:170. The facility may close in accordance with Sections 4 and 5 of this administrative regulation or submit an application in accordance with the technical standards of 401 KAR Chapter 48.

Section 3. Notification Procedures for Registered Permit-by-rule Facilities. All solid waste sites or facilities in existence on the effective date of this administrative regulation that require registered permits-by-rule as specified in Section 2(6) of this administrative regulation shall, no later than October 1, 1990, submit a form prescribed by the cabinet.

(1) After submission of the registration form, the cabinet shall acknowledge receipt in writing. Facility owners or operators with registered permits-by-rule shall comply with the environmental performance standards of 401 KAR 47:030 and any condition of the registered permit-by-rule specified in 401 KAR 47:110.

(2) The operator of such facilities may continue to operate the facility without further application to the cabinet subject to the conditions specified in 401 KAR 47:110.

(3) Existing facilities required by this chapter to register with the cabinet which close prior to October 1, 1990, may close without submittal of the registration form.

Section 4. Solid Waste Facilities with Permits Issued Prior to the Effective Date of this Administrative Regulation.

(1) Within six (6) months of the effective date of this administrative regulation, any person that possesses a solid waste landfill or landfarming permit issued before the effective date of this administrative regulation under KRS Chapter 224 shall file a notice with the cabinet which states the operator's intent to close or meet the revised technical requirements by July 1, 1992.

(2) After July 1, 1992, no person shall operate a solid waste landfill or landfarming facility unless one (1) of the paragraphs of this subsection is satisfied and the owner or operator has complied with subsection (1) of this section:

(a) The facility, owner or operator possesses a permit issued under 401 KAR Chapters 47 and 48;

(b) The facility, owner or operator possesses a permit modified to meet the technical standards of 401 KAR Chapter 48;

(c) An application for a permit modification which addresses each of the applicable technical standards for closure or conversion to a different classification under 401 KAR Chapters 47 and 48 has been filed with the cabinet within twelve (12) months of the effective date of this administrative regulation and the cabinet has not yet rendered a decision with respect to the complete application; or

(d) The facility, owner or operator has requested and received approval from the cabinet in accordance with subsection (3) of this section.

(3) Residential and contained landfills with permits issued prior to the effective date of this administrative regulation may operate until July 1, 1995, if the owner or operator complies with:

(a) Subsections (1), (2), and (5) of this section;

(b) The construction quality control plan which has been approved by the cabinet or meets the requirements of 401 KAR 48:080, Section 4 to document the existence or placement of:

At least twelve (12) inches of soil with a maximum permeability of 1 X 10-7 centimeters per second or its equivalent;
A leachate collection system installed in a manner approved by the cabinet;
A groundwater monitoring system meeting the requirements of 401 KAR 48:300; and

(4) Solid waste sites or facilities with permits issued prior to the effective date of this administrative regulation may close prior to July 1, 1992, under the closure requirements specified in Section 5 of this administrative regulation without complying with the requirements of 401 KAR Chapter 48 provided:

(a) The permittee has provided the notice as required in subsection (1) of this section;

(b) A complete closure plan which complies with the closure requirements of Section 5 of this administrative regulation is submitted to the cabinet within twelve (12) months of the effective date of this administrative regulation or one (1) year prior to last intended receipt of waste whichever occurs first;

(c) The operator maintains a valid operating permit including the bond required by KRS 224.40-650 prior to and during closure; and

(d) The groundwater monitoring data for the facility includes the parameters listed in 401 KAR 48:300, Section 11.

(e) The owner or operator performs corrective action if required under 401 KAR 48:300.

(5) Residential and inert landfills permitted prior to the effective date of this administrative regulation shall comply with the following operating requirements:

(a) Residential landfills shall meet the operating requirements for contained landfills in 401 KAR 48:090 or construction/demolition debris landfills in 401 KAR 48:060.

(b) Inert landfills shall meet the operating requirements for construction/demolition debris landfills in 401 KAR 48:060 or residual landfills in 401 KAR 48:170.

(6) No placement of the low permeability soil liner component shall be initiated at any landfill, or portion thereof, unless it meets the requirements of subsection (7) of this section or 401 KAR Chapters 47 and 48.

(7) Operation may be authorized for any portion of a landfill in accordance with Section 4(3) of this administrative regulation for which a low permeability soil liner component had been approved prior to January 16, 1990. Any soil construction shall be certified using the requirements of Section 4 of 401 KAR 48:080.

Section 5. Closure Requirements for Sites Closing under Section 4(1) of this Administrative Regulation.

(1) Residential landfills, contained landfills and inert landfills permitted prior to the effective date of this administrative regulation, closing pursuant to the notice in Section 4(1) of this administrative regulation, shall comply with the following:

(a) All records shall be submitted to the cabinet;

(b) A closure plan shall be submitted to the cabinet that shall contain the following requirements:

A description of the access controls;
A description of the covering activities and procedures including frequency of cover, total volume and source of borrow material available, and total estimated volume and source of cover required (final, daily and interim);
The proposed revegetation program, including provisions for liming, fertilization, seed types and seeding schedule, erosion control during early growth period, and interim cover vegetation program;
A final cover maintenance program covering the entire site and lasting two (2) years beyond closure, to include erosion control, reseeding, refertilization and growth control; and
A detailed plan for closure of the landfill in accordance with KRS 224.40-650 along with an estimate of closure costs; and

Those areas of a landfill that shall receive no additional deposits of solid waste within 365 days of the last placement of waste shall receive final cover. A minimum final cover of two (2) feet shall be required in addition to any daily and interim cover required. All contained and residential landfills shall have the lower six (6) inches of the final cap contain soil with a permeability of 1 X 10-7 centimeters per second;
Before earth-moving equipment is removed from the site, an inspection of the entire site shall be made by an authorized representative of the cabinet to determine compliance with approved plans and specifications. The owner or operator shall submit a closure schedule based on the approved closure plan thirty (30) days prior to the last intended use of a solid waste facility;
Final cover shall be graded as provided in the approved closure plan in a manner to prevent ponding. For a period of two (2) years, the surface of final cover shall be maintained at the proper elevation as specified in the approved closure plan;
Final cover shall be revegetated. After grading, final cover shall be fertilized as necessary, seeded, and/or planted with legumes, perennial grasses or other vegetation according to the approved closure plan. The owner or operator shall be required to repeat this process until adequate vegetation is obtained to ensure soil stabilization as specified in the approved closure plan;
Other necessary corrective work required by the cabinet, if any, shall be performed before the landfill is accepted as closed and financial responsibility funds released;
The owner or operator of a residential or contained landfill shall record a notice that shall in perpetuity notify any potential purchaser of the property of the location and time of operation of the facility, and a statement that future disturbance of this area shall only occur after an examination of potential gas or leachate migration problems. Such notice shall be recorded in accordance with state property law prior to acceptance of final closure of the landfill.

(2) Landfarming facilities permitted prior to the effective date of this administrative regulation closing under Section 4(1) of this administrative regulation shall comply with the following:

(a) All records shall be submitted to the cabinet; and

(b) Food chain crops restrictions of 401 KAR 47:030 shall be met including deed notice if applicable.

(3) Residual landfills permitted prior to the effective date of this administrative regulation closing under Section 4(1) of this administrative regulation, shall comply with the following:

(a) The closure plan shall specify the function and design of the final cover for the facility. The closure design shall assure compliance with the applicable environmental performance standards in 401 KAR 47:030 and shall reflect consideration of:

The type and amount of waste in the facility;
The mobility and expected rates of migration of the waste;
The site location, topography and surrounding land use, and final site use;
The climatic conditions in the area;
The characteristics of the cover material including erodibility, slope, length of run of slope, and type of vegetation on the cover; and
The geological and soil profiles and surface and subsurface hydrology of the site.

(b) All records shall be submitted to the cabinet.

A residual landfill shall be closed in a manner that shall assure compliance with the environmental performance standards in 401 KAR 47:030. The closure shall include the placement of a final cover over the facility as specified in the approved design of the site;
Any necessary corrective work required by the cabinet shall be performed before the residual landfill is accepted as closed and financial responsibility funds released;
The owner or operator of a residual landfill shall record a notice that shall in perpetuity notify any potential purchaser of the property of the location and time of the operation of the facility, nature of the waste placed in the site and a caution against future disturbance of the area. Such notice shall be recorded in accordance with state property law prior to acceptance of final closure of the landfill; and
Closure care maintenance. A residual landfill shall be maintained for two (2) years following the closure of the site in a manner that complies with the environmental performance standards in 401 KAR 47:030 and in accordance with any approved closure care monitoring and maintenance plan approved by the cabinet.

Section 6. Solid Waste Facility Applications Pending on the Effective Date of This Administrative Regulation.

(1) Unless the provisions of subsection (3) of this section are applicable, applications pending as of the effective date of this administrative regulation shall be revised to meet all requirements of 401 KAR Chapters 47 and 48 prior to being determined technically complete.

(2) Applications that have been determined to be administratively complete prior to the effective date of this administrative regulation and have published the notices required by KRS 224.40-310 shall complete the public information process commencing with Section 12(3) of 401 KAR 47:140.

(3) Applications for solid waste sites or facilities upon which a preliminary determination was made and a hearing pursuant to KRS 224.10-420 commenced prior to the effective date of this administrative regulation shall be subject to and reviewed in accordance with the procedural and substantive requirements in effect at the time the preliminary determination was made if prior to the effective date of this administrative regulation the proposed solid waste site or facility had completed construction pursuant to a permit issued by the cabinet. In the event an application processed under this subsection results in issuance of a permit, the permit shall thereafter be subject to all provisions of these administrative regulations applicable to permits issued prior to the effective date of these administrative regulations.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.46, 224.70, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt rules and administrative regulations for the management, processing, and disposal of solid wastes. KRS 224.40-305 requires that persons engaging in the storage, treatment, recycling, and disposal of solid waste obtain a permit. This chapter establishes the permitting standards for solid waste sites or facilities, the standards applicable to all solid waste sites or facilities, and the standards for certification of operators. This administrative regulation sets forth the classification of solid waste sites or facilities for permitting purposes.
History: 401 KAR 047:080. 16 Ky.R. 1727; 2178; 2348; eff. 5-8-1990; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 47:090 Solid waste permit fees {#sec-401-kar-47-090 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:090}

Section 1. Applicability. The provisions of this administrative regulation shall apply to a person required to apply for a solid waste site or facility permit, permit renewal, or modification, except for persons applying for publicly-owned facilities.

Section 2. Permit Application Review Fee. A person required to apply for a solid waste site or facility permit shall include, with the application, a check or money order made payable to Kentucky State Treasurer for the filing fee based on the following tables:

Section 3. Failure To Submit Fee.

(1) If the applicant fails to submit the fee established in Section 2 of this administrative regulation during the administrative completeness review established in 401 KAR 47:025, Section 3, the cabinet shall deny the permit application.

(2) If the applicant for a new landfill or horizontal expansion of an existing landfill fails to submit the fee established in Section 2 of this administrative regulation during the technical review period established in KRS 224.40-310(10), the cabinet shall deny the permit application.

Section 4. Refunds.

(1) Except as provided in subsection (2) of this section, if the technical review time (TRT) of a permit application by the cabinet exceeds the TRT listed in Section 2 of this administrative regulation established pursuant to KRS 224.40-310(10)(a), (b), or (c) or 401 KAR 47:025, Section 3, the owner or operator shall receive the refund of the application fee listed in Section 2 of this administrative regulation pursuant to KRS 224.10-220(3).

(2) Exceptions to subsection (1) of this section shall include:

(a) An order of agreement allowed pursuant to KRS 224.40-310(10)(e); or

(b) The agreement allowed by 401 KAR 47:025, Section 3(2).

Section 5. Annual Permit Renewal Fee.

(1) The owner or operator shall submit the amount of the annual permit renewal fee by the due date established for the type of facility pursuant to Table V of this administrative regulation.

(2)

(a) The owner or operator shall submit the fee with Annual Solid Waste Permit Renewal Fee, DEP 7119, May 2009.

(b) If the owner or operator fails to submit the annual permit renewal fee required by Table V, the cabinet shall suspend the permit until the payment is received.

(c) If more than one (1) type of permitted facility is located on one (1) site, the owner or operator shall submit 100 percent of the fee for the facility handling or disposing of the most waste in the previous calendar year and fifty (50) percent of the fee for the other types of facilities.

(3)

(a) Beginning January 1, 2011, all facilities operating under a registered-permit-by-rule; a Class II landfarming permit; or a research, demonstration and development (RDD) permit shall pay the annual permit fee listed in Table V.

(b) All other solid waste disposal facilities for which an annual permit renewal fee is listed in Table V shall begin paying the annual permit renewal fee upon expiration of a permit with an effective date prior to September 1, 2010.

Section 6. Incorporation by Reference.

(1) "Annual Solid Waste Permit Renewal Fee", DEP 7119, November 2016, is incorporated by reference.

(3) This material may also be obtained from the division's Web site at at eec.ky.gov/environmental-protection/waste.

History

RELATES TO: KRS 224.10, 224.40, EO 2008-507, 2008-531
STATUTORY AUTHORITY: KRS 224.10-100(20), 224.10-220, EO 2008-507, 2008-531
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(20) authorizes the cabinet to establish by administrative regulation a schedule of fees for the cost of processing permit applications. EO 2008-507 and 2008-531, effective June 16, 2008, abolish the Environmental and Public Protection Cabinet and establish the new Energy and Environment Cabinet. This administrative regulation establishes a schedule of fees for solid waste permit applications.
History: 401 KAR 047:090. 16 Ky.R. 1732; 2182; eff. 5-8-1990; 36 Ky.R. 620; 37 Ky.R. 53; eff. 8-5-2010; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Crt eff. 10-9-2018; TAm eff. 5-7-2019; Crt eff. 10-1-2025.

401 KAR 47:095 Environmental remediation fee {#sec-401-kar-47-095 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:095}

Section 1. Remittance of the Environmental Remediation Fee by Municipal Solid Waste Disposal Facilities.

(1) The owner or operator of a municipal solid waste disposal facility shall remit to the Kentucky Pride Fund an environmental remediation fee equivalent to one (1) dollar and seventy-five (75) cents per ton of waste disposed at the facility.

(2) If a less than one (1) acre construction/demolition debris landfill does not have adequate scales necessary to weigh the waste, the environmental remediation fee shall be calculated and assessed using a conversion factor calculated as follows:

(a) For compacted loads, the fee shall be one (1) dollar and seventy-five (75) cents for every three (3) cubic yards of waste.

(b) For all other loads, the fee shall be one (1) dollar and seventy-five (75) cents for every five (5) cubic yards of waste.

(3) The owner or operator of the facility shall remit quarterly payments of the environmental remediation fee, accompanied by a completed and signed document entitled "Environmental Remediation Fee Reporting and Submittal Form" (DEP form 5032).

(4) Quarterly payments shall be equivalent to one (1) dollar and seventy-five (75) cents multiplied times the number of tons of waste disposed in the municipal solid waste disposal facility during that quarter. Quarterly payments shall be due on April 30, July 31, October 31, and January 30 of each year.

Section 2. Remittance of the Environmental Remediation Fee By Certain Transfer Stations.

(1) The owner or operator of a transfer station accepting waste for disposal at an out-of-state municipal solid waste disposal facility shall remit to the Kentucky Pride Fund an environmental remediation fee equivalent to one (1) dollar and seventy-five (75) cents per ton of waste to be disposed out-of-state.

(2) The owner or operator of the transfer station shall utilize weigh scales, if available, to determine the tonnage of waste that will be disposed out of state.

(3) If a transfer station collecting the environmental remediation fee does not have adequate scales necessary to weigh the waste, the environmental remediation fee shall be calculated and assessed using a conversion factor calculated as follows:

(a) For compacted loads, the fee shall be one (1) dollar and seventy-five (75) cents for every three (3) cubic yards of waste.

(b) For all other loads, the fee shall be one (1) dollar and seventy-five (75) cents for every five (5) cubic yards of waste.

(4) The owner or operator of the transfer station shall remit payments quarterly, accompanied by a completed and signed document entitled "Environmental Remediation Fee Reporting and Submittal Form" (DEP Form 5032).

(5) Quarterly payments shall be equivalent to one (1) dollar and seventy-five (75) cents multiplied times the number of tons of waste to be disposed at an out-of-state municipal solid waste disposal facility during that quarter. Quarterly payments shall be due on April 30, July 31, October 31, and January 30 of each year.

Section 3. Incorporation by Reference.

(1) The "Environmental Remediation Fee Reporting and Submittal Form", DEP Form 5032, November 2016, is incorporated by reference.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, Monday through Friday, 8 a.m. to 4:30 p.m., Eastern Time, excluding state holidays, or from the Web site at eec.ky.gov/environmental-protection/waste.

History

RELATES TO: KRS 224.01-010, 224.43-500, 224.43-505
STATUTORY AUTHORITY: KRS 224.10-100, 224.43-500, 224.43-505
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(24) authorizes the Natural Resources and Environmental Protection Cabinet to promulgate administrative regulations for waste planning and management. KRS 224.43-500(3) requires the cabinet to promulgate administrative regulations adopting a conversion formula to allow assessment of the environmental remediation fee by transfer stations that do not have scales. KRS 224.43-505(2) authorizes the cabinet to promulgate administrative regulations to administer the Kentucky Pride Fund. This administrative regulation governs the environmental remediation fee established by KRS 224.43-500.
History: 401 KAR 047:095. 29 Ky.R. 1434, 1838, 2277; eff. 3-19-2003; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Crt eff. 10-9-2018; TAm eff. 5-7-2019; Crt eff. 10-1-2025.

401 KAR 47:100 General provisions for obtaining a solid waste permit {#sec-401-kar-47-100 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:100}

Section 1. Overview of the Solid Waste Site or Facility Permit Program. This administrative regulation sets forth the specific requirements for the solid waste site or facility permitting program. KRS 224.40-305 requires acquisition of a permit to establish, construct, operate and maintain a waste site or facility. The term waste site or facility is defined in KRS 224.01-010. Owners or operators of solid waste sites or facilities shall have permits during the active life (including the closure period) of the facility and, for any facility that closes after July 1, 1992, during any closure care period required under 401 KAR Chapter 48.

Section 2. Scope of the Permit Requirements.

(1) The permit process is specified in 401 KAR 47:160. A permit application consists of three (3) parts: notice of intent to apply for a solid waste permit (see 401 KAR 47:170 or 401 KAR 48:200), an administrative application (see 401 KAR 47:180), and a technical application (see 401 KAR 47:190). The permit program has separate additional administrative regulations that contain technical requirements. These separate administrative regulations are used by the cabinet to determine whether permits shall be issued and what conditions to those permits are required. These separate administrative regulations are located in this chapter and 401 KAR Chapter 48.

(2) Specific exclusions. The following persons are among those who are not required to obtain a solid waste site or facility permit:

(a) Disposers of agricultural waste, including manures and crop residues returned to the soil as fertilizers or soil conditioners by practices common to soil conditioning, provided the wastes are used on the same farm on which they are generated;

(b) Disposers of mining over-burden, coal mining wastes, refuse, and coal mining by-products returned to the mine site on the site of generation, including any nonhazardous solid waste generated directly as a result of the mining operation on site;

(c) Owners or operators of injection wells that dispose of solid waste with an underground injection control permit issued by the U.S. EPA, providing they comply with the conditions of that permit;

(d) Users of septic tanks in compliance with KRS 211.972 through 211.982;

(e) Owners or operators of mining surface impoundments and other surface impoundments with Kentucky Pollution Discharge and Elimination System (KPDES) permits, providing they comply with the conditions of their permit;

(f) Persons managing solid waste during immediate response to any of the following situations:

A spill of a solid waste;
An imminent and substantial threat of a spill of solid waste; or
A spill of a material which, when spilled, becomes a solid waste; and

(g) Owners or operators of surface impoundments receiving solid waste that treat domestic sewage that does not contain any industrial wastewater, or are publicly owned treatment works (POTW) for the treatment of domestic sewage, if the facility complies with the conditions of its KPDES or NPDES permit.

(3) Specific inclusions. Owners and operators of certain facilities with permits under other programs for certain aspects of the facility operation shall also obtain solid waste site or facility permits. The following types of facilities are required to have solid waste site or facility permits:

(a) Solid waste sites or facilities which have or have had a surface mining permit and dispose of wastes other than mine spoils or coal mining solid wastes; and

(b) Any person who initiates or continues solid waste containment or disposal activities after an immediate response deadline is passed is subject to all applicable requirements of this chapter and 401 KAR Chapter 48 for those activities.

(4) Permits for less than an entire facility. The cabinet may issue or deny a permit for one (1) or more units at a facility without simultaneously issuing or denying a permit to all of the units at the facility. A granted permit-by-rule for any unit for which a permit has not been issued or denied is not affected by the issuance or denial of a permit to any other unit at the facility.

Section 3. Considerations of Federal Law. Permits shall be issued in a manner and shall contain conditions consistent with requirements of applicable federal laws. These laws include but are not limited to:

(1) The Wild and Scenic Rivers Act (1968), as amended through October 1984.

(2) The National Historic Preservation Act of 1966, as amended through December 1980.

(3) The Endangered Species Act (1973), as amended through June 1984.

(4) The Fish and Wildlife Coordination Act (1934), as amended through July 1965.

Section 4. Limitations of a Permit.

(1) A permit may be modified, or revoked, during its term for cause as set forth in 401 KAR 47:130 and in 401 KAR Chapter 40.

(2) The issuance of a permit does not convey any property rights of any sort, or any exclusive privilege.

(3) The issuance of a permit does not authorize any injury to persons or property or invasion of other private rights, or any infringement of state or local laws or administrative regulations.

Section 5. Prohibition of Use of Unpermitted Facilities.

(1) Restrictions. No owner or operator shall manage, process or dispose of solid waste at a solid waste site or facility unless the owner or operator has:

(a) The ability to qualify for a registered permit-by-rule in accordance with Section 1(1) of 401 KAR 47:110 and submits before October 1, 1990, the registration form to the cabinet;

(b) Qualified for a permit-by-rule in accordance with 401 KAR 47:150;

(d) Obtained a valid solid waste facility permit issued by the cabinet in accordance with 401 KAR Chapter 47 or holds a permit issued by the cabinet prior to the effective date of this administrative regulation.

(2) Permit required. No person shall engage in the management, processing, or disposal of solid waste at a solid waste site or facility without first obtaining a permit from the cabinet as specified in KRS 224.40-305.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.46, 224.70, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-100, 224.40-305, 224.40-310, 224.46-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224.40-305 requires that persons who engage in the management, processing, and disposal of waste first obtain a waste facility permit from the cabinet. This chapter establishes the permitting standards for solid waste sites or facilities, the standards applicable to all solid waste sites or facilities and the standards for certified operators. This administrative regulation establishes the procedures for obtaining a permit for a solid waste facility.
History: 401 KAR 047:100. 16 Ky.R. 1734; 2183; 2352; eff. 5-8-1990; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 47:110 Registered permit-by-rule {#sec-401-kar-47-110 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:110}

Section 1. Issuance of Registered Permit-by-rule.

(1) Before accepting waste, the owner or operator of a solid waste site or facility established in 401 KAR 47:080, Section 2(6), shall notify the cabinet by submitting a notarized registration as established in subsection (2) of this section, along with any supporting documentation, such as maps or specifications.

(a) The registration shall become effective thirty (30) calendar days after the cabinet receives it unless the cabinet determines the registration complies with this administrative regulation or denies the registration within that time. A registration shall be denied if the registration is incomplete or the registration fails to demonstrate compliance with the requirements established in 401 KAR 47:120 and 401 KAR 48:320.

(b) The cabinet shall hold a public hearing in accordance with 401 KAR 47:140, Section 10, prior to accepting or denying the registration, upon the request of any individual.

(c) The owner or operator of a registered permit-by-rule facility shall comply with the environmental performance standards in 401 KAR 30:031 in order for the registered permit-by-rule to remain effective.

(2) The registration for a registered permit-by-rule facility shall be submitted to the cabinet on:

(a) DEP 7059; Solid Waste Transfer Station, Convenience Center, and Recycling Center;

(b) DEP 7059-A; Solid Waste Composting Facility;

(d) DEP 7059-H; Less-than-one-acre Construction/Demolition Debris (CDD) Landfill; or

(e) DEP 7059-J; Solid Waste Incinerator.

(3) If the cabinet determines that a registration that is not approved or denied pursuant to subsection (1) of this section fails to include all of the information required, the cabinet shall notify the operator that the registration is deficient.

(a) The owner or operator shall submit the requested information within thirty (30) calendar days of the date of the notice of deficiency.

(b) The cabinet shall review the registration in accordance with the requirements of 401 KAR 47:025.

(4) Prior to submission of the registration, the owner or operator shall prepare a groundwater protection plan in accordance with 401 KAR 5:037.

(5) The owner or operator shall publish a notice two (2) weeks prior to submission of the registration in a daily or weekly newspaper of general circulation where the proposed facility is located.

(a) Public notices shall be of a size to include not less than two (2) column widths for advertising and shall be in a display format.

(b) The public notice shall contain:

Name and address of the owner or operator;
The type of facility;
A brief description of the business to be conducted; and
Name and address of the facility.

Section 2. Operating Requirements for Registered Permit-by-rule Facilities.

(1) The owner or operator of a facility operating under a registered permit-by-rule, except as established in Section 3 of this administrative regulation, shall not:

(a) Store, treat, or dispose of solid waste not included in the registration; or

(b) Exceed the design capacities stated in the registration.

(2) The owner or operator of a facility operating under a registered permit-by-rule shall comply with the environmental performance standards in 401 KAR 30:031.

(3) The owner or operator of a registered permit-by-rule facility shall keep records as established in this section.

(a) The owner or operator of a less-than-one (1) acre or expanded less-than-two (2) acre construction or demolition debris landfill or solid waste incinerator shall report quarterly pursuant to KRS 224.43-330. In addition, the owner or operator shall submit DEP 7046, Annual Waste Quantity Report, to the cabinet annually and upon closure of the facility.

(b) The owner or operator of a composting facility shall report quarterly pursuant to KRS 224.43-330. In addition, the owner or operator shall submit DEP 7108, Annual Report for a Solid Waste Composting Facility, to the cabinet annually and upon closure of the facility.

(c) The owner or operator of a landfarming facility shall report quarterly pursuant to KRS 224.43-330. In addition, the owner or operator shall submit DEP 7064, Annual Report for a Class I Solid Waste Landfarm, to the cabinet annually and upon closure of the facility.

(d) The owner or operator of a registered permit-by-rule convenience center, transfer station or commercial recycling center shall document records on DEP 7046, Annual Waste Quantity Report. Records shall be kept on site and available for inspection for at least three (3) years.

(4) The owner or operator of a solid waste incinerator shall conduct the Toxicity Characteristic Leaching Procedure (TCLP) test established in 401 KAR 39:060, Section 2, before the initial disposal of any ash and if the characteristics of the waste accepted by the incinerator significantly change.

(a) The owner or operator shall keep a record of the current TCLP laboratory analysis report required by this section available for inspection by the cabinet for at least three (3) years.

(b) The owner or operator of a solid waste incinerator shall report the volume of ash generated to the cabinet annually and upon closure of the facility. The report shall be submitted no later than January 31 for the preceding calendar year.

Section 3. Changes to a Registered Permit-by-rule.

(1) A revised registration shall be submitted as established in paragraphs (a) through (c) of this subsection.

(a) Solid wastes not previously identified in the registration may be stored, treated, or disposed at a facility operating under a registered permit-by-rule if the owner or operator submits a revised registration to the cabinet prior to that change.

(b) The owner or operator of a facility operating under a registered permit-by-rule shall submit a revised registration to the cabinet prior to increasing the design capacity of processes used at a facility.

(c) The owner or operator of a facility operating under a registered permit-by-rule shall submit a revised registration to the cabinet prior to changing the processes for the storage, treatment, or disposal of solid waste, using additional processes, or changing the owner or operator.

(2) The revised registration shall become effective thirty (30) calendar days after the cabinet receives it, unless the cabinet approves or denies the registration within that time. The cabinet shall review the registration in accordance with Section 1 of this administrative regulation.

Section 4. Revocation of a Registered Permit by Rule. The cabinet may revoke a registered permit-by-rule for:

(1) Noncompliance by the owner or operator with a condition of the registration;

(2) Owner, operator, or key personnel failure to disclose all information required by the cabinet during the registration process;

(3) Owner, operator, or key personnel misrepresentation of any information required by the cabinet;

(4) A cabinet determination that the operation endangers human health, safety, or the environment;

(5) Owner, operator, or key personnel violation of any requirement of KRS Chapter 224 or 401 KAR Chapters 30 through 49; or

(6) A change to the registered-permit-by-rule that was made without complying with Section 3 of this administrative regulation.

Section 5. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) DEP 7059; "Solid Waste Transfer Station, Convenience Center, and Recycling Center", November 2016;

(b) DEP 7059-A; "Solid Waste Composting Facility", November 2016;

(d) DEP 7059-H; "Less-than-one-acre Construction/Demolition Debris", July 2024;

(e) DEP 7059-J; "Solid Waste Incinerator", November 2016;

(f) DEP 7064; "Annual Report for a Class I Solid Waste Landfarm", November 2016;

(g) DEP 7108; "Annual Report for a Solid Waste Composting Facility", November 2016; and

(h) DEP 7046; "Annual Waste Quantity Report", November 2016.

(2) This material may be inspected, copied, or obtained at the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m., or at any of the division's field offices Monday through Friday, 8 a.m. to 4:30 p.m.; 2642 Russellville Road, Bowling Green, Kentucky 42101; 2751 Campbellsville Road, Columbia, Kentucky 42728; 8020 Veterans Memorial Drive, Suite 110, Florence, Kentucky 41042; 1332 State Highway 15, Hazard, Kentucky 41701; 875 South Main Street, London, Kentucky 40741; 9116 Leesgate Road, Louisville, Kentucky 40222-4925; Madisonville State Office Building, 625 Hospital Drive, Madisonville, Kentucky 42431; 525 Hecks Plaza Drive, Morehead, Kentucky 40351; 130 Eagle Nest Drive, Paducah, Kentucky 42003.

(3) This material is also available at the division Web site at eec.ky.gov/environmental-protection/waste.

History

RELATES TO: KRS 224.1-010, 224.10-100, 224.10-105, 224.40-100, 224.40-110, 224.40-120, 224.40-305, 24.40-310, 224.40-315, 224.40-320, 224.40-325, 224.40-330, 224.40-340, 224.40-605, 224.40-650, 224.43-010, 224.43-020, 224.43-310, 224.43-315, 224.43-330, 224.43-340, 224.43-345, 224.43-350, 224.70-100, 224.70-110, 224.99-010, 224.99-020
STATUTORY AUTHORITY: KRS 224.10-100(19)(c); (24), 224.40-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(19)(c) and (24) and 224.40-305 authorize the cabinet to promulgate administrative regulations for the management, processing, and disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing, and disposal of waste obtain a permit. This administrative regulation establishes requirements for registered permits-by-rule and the standards for the certification program.
History: 401 KAR 047:110. 25 Ky.R. 2433; 26 Ky.R. 73; 374; 730; eff. 9-8-1999; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Crt eff. 10-9-2018; TAm eff. 5-7-2019; 51 Ky.R. 773, 1483, 1650; eff. 6-3-2025.

401 KAR 47:120 Conditions applicable to all solid waste permits {#sec-401-kar-47-120 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:120}

Section 1. Conditions Applicable to All Permits. All conditions applicable to all permits shall be incorporated into the permits either expressly or by reference.

(1) Duty to comply. The owner or operator shall comply with all conditions of the permit. Any permit noncompliance constitutes a violation of the appropriate Kentucky revised statute and is grounds for enforcement action which may result in revocation, modification or denial of a permit renewal application.

(2) Duty to reapply. If the owner or operator wishes to continue an activity regulated by the permit after the expiration date of the permit, the owner or operator shall apply for and obtain a new permit.

(4) Duty to mitigate. In the event of noncompliance with the permit, the owner or operator shall take all reasonable steps to minimize releases to the environment, and shall carry out such measures as are reasonable to prevent significant adverse impacts on human health and the environment.

(5) Proper operation and maintenance. The owner or operator shall at all times properly operate and maintain all facilities and systems of treatment and control which are installed or used by the owner or operator to achieve compliance with the conditions of the permit. Proper operation and maintenance includes effective performance, adequate funding, adequate operator staffing and training, and process controls, including appropriate quality assurance procedures.

(6) Permit actions. The permit may be modified or revoked for cause. The filing of a request by the owner or operator for a permit modification, revocation, or termination, or a notification of planned changes or anticipated noncompliance, does not stay any permit condition.

(7) Property rights. The permit does not convey any property rights or any exclusive privilege.

(8) Duty to provide information. The owner or operator shall furnish the cabinet any information which the cabinet shall reasonably require to determine whether cause exists for modifying, revoking, or terminating the permit, or to determine compliance with the permit or any provision of KRS Chapter 224 or 401 KAR Chapters 47 and 48. The owner or operator shall also furnish to the cabinet upon request copies of records required to be kept by the permit.

(9) Inspection and entry. The owner or operator shall allow the cabinet or its authorized representative to:

(a) Enter upon the owner's or operator's premises where a regulated facility or activity is located or conducted, or where records shall be kept under the conditions of the permit;

(b) Have access to and copy at reasonable times any records that shall be kept under the conditions of the permit;

(c) Inspect any facility's equipment including monitoring and control equipment, practices, or operations regulated or required under the permit; and

(d) Sample or monitor, for the purposes of assuring permit compliance or determining compliance with any provision of KRS Chapter 224 or 401 KAR Chapters 47 and 48, any substances or parameters at any location.

(10) Signatory requirement. All applications, reports, or information submitted to the cabinet shall be signed and certified in accordance with 401 KAR 47:160, Section 6.

(11) Authorization to operate. For a new solid waste site or facility, the owner or operator shall not commence storage, treatment or disposal of solid waste; and for a facility undergoing a major modification as stated in 401 KAR 47:130 the owner or operator shall not commence storage, treatment or disposal of solid waste in the modified portion of the facility until:

(a) The owner or operator has submitted to the cabinet, by certified mail or hand delivery, a letter signed by the owner or operator and a professional engineer registered in Kentucky stating that the facility has been constructed or modified in compliance with the permit; and

(b) The cabinet has inspected the modified or newly constructed facility, issued any public notice required in 401 KAR 47:140, and issued a solid waste permit or permit modification.

(12) Transfers. The permit is not transferable to any person without the prior written approval of the cabinet. Any person seeking a transfer of a permit shall file a transfer application on the forms prescribed by the cabinet. Upon review and approval of the transfer application, the cabinet shall reissue the permit to reflect the new ownership.

(13) Monitoring reports. Monitoring results shall be reported at the intervals specified in the approved application.

(14) Compliance schedules. Reports of compliance or noncompliance with, or any progress reports on, requirements contained in any compliance schedule of the permit shall be submitted no later than fourteen (14) days following each scheduled date.

(15) Annual and quarterly reports. An annual or quarterly report shall be submitted covering facility activities during the specified reporting period as required in the permit.

(16) Other information. Where the owner or operator fails to submit the required information in a permit application, or submits incorrect information in a permit application or in any report to the cabinet, he shall promptly submit such facts or correct information.

Section 2. Establishing Permit Conditions. In addition to conditions required for all permits in Section 1 of this administrative regulation, the cabinet shall establish conditions on a case-by-case basis in permits under 401 KAR 47:100, 401 KAR 47:110, and 401 KAR 47:130. The cabinet may incorporate applicable requirements of the Kentucky solid waste management administrative regulations directly into the permit. Each permit issued under KRS 224.40-100 and 224.40-305 shall contain terms and conditions as the cabinet determines necessary to protect human health and the environment.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.70, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt rules and administrative regulations for the management, processing or disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing and disposal of waste obtain a permit. This chapter establishes the permitting standards for solid waste sites or facilities, the standards applicable to all solid waste sites or facilities, and the standards for certification of operators. An overview of the permit program is found in Section 1 of 401 KAR 47:080. This administrative regulation sets forth the conditions applicable to all permits.
History: 401 KAR 047:120. 16 Ky.R. 1739; 2186; eff. 5-8-1990; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 47:130 Changes to solid waste permits; expiration of solid waste permits {#sec-401-kar-47-130 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:130}

Section 1. Transfer of Permits. A permit is not transferable to any person without prior approval of the cabinet. New owners or operators shall submit a complete transfer application to the cabinet. After a new permit has been issued to incorporate the new owners or operators, the cabinet shall revoke the existing permit.

Section 2. Modification or Revocation of Permits.

(1) When the cabinet receives any information (for example, if the cabinet inspects the facility, receives information submitted by the permittee as required in the permit under Section 1 of 401 KAR 47:120, receives a request for modification or revocation under Section 2 of 401 KAR 47:140, or conducts a review of the permit file), the cabinet shall determine whether or not one (1) or more of the causes for a modification or revocation exist as listed in subsection (2) of this section and Sections 3 and 4 of this administrative regulation. If cause exists, the cabinet shall modify or revoke the permit accordingly, and shall request an updated application if necessary. When a permit is modified, only the conditions subject to modification are reopened. If a permit is revoked, the owner or operator may reapply. If cause does not exist, the cabinet shall not modify or revoke the permit. If a permit modification satisfies the criteria in Section 3 of this administrative regulation for minor modifications, the permit shall be modified without a notice to the public. Otherwise, a proposed permit shall be prepared and procedures in 401 KAR 47:140 followed.

(2) Causes for modification. Paragraphs (a) through (e) of this subsection are causes for modification but not revocation of permits by the cabinet.

(a) Alterations. There are material and substantial alterations or additions to the permitted solid waste site or facility or activity that occurred after permit issuance and which justify the application of permit conditions that are different or absent in the existing permit.

(b) Information. The cabinet has received new information.

(c) Compliance schedules. The cabinet determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, materials, shortage, or other events over which the permittee has little or no control and for which there is no reasonably available remedy (see also Section 3 of this administrative regulation on minor modifications).

(d) The cabinet shall modify a permit:

When modification of a closure plan is required under 401 KAR Chapter 48;
When the cabinet receives notification of expected closure and finds that any of the previous granted permit conditions are no longer warranted;
When the cabinet adjusts the level of financial responsibility required;
When the corrective action program specified in the permit under 401 KAR Chapter 48 has not brought the regulated unit into compliance with the groundwater protection standards within a reasonable period of time;
To include a monitoring program meeting the requirements of 401 KAR 48:300;
When a permit requires a monitoring plan under Section 401 KAR 48:300, but monitoring data collected prior to permit issuance indicate that the facility is exceeding the groundwater protection standard;
To include conditions applicable in new or amended standards or administrative regulations;
When modification is necessary to protect human health or the environment; or
To include conditions applicable as a result of a hearing or enforcement action as specified in 401 KAR Chapter 40.

(e) Notwithstanding any other provision in this section, when a permit is reviewed by the cabinet, the cabinet shall modify the permit as necessary to assure that the facility continues to comply with the currently applicable requirements in 401 KAR Chapters 47 and 48.

(3) Owners or operators of a waste site or facility may request a hearing pursuant to KRS 224.10-420 upon modification of the permit by the cabinet.

Section 3. Major and Minor Modifications of Permits. Upon the request of the permittee, and receipt of an administrative and technically complete submission to the cabinet, the cabinet may modify a permit to make the corrections or allowances for changes in the permitted activity listed in this section, including the procedures of 401 KAR 47:140. Any permit modification not processed as a major modification under this section shall be considered a minor change and shall not require a 401 KAR 47:140 public notice prior to approval. A determination may be made by the cabinet upon filing of the modification application that the modification requested is a major modification. A modification shall be major if the proposed change is of the scope and nature that the cabinet determines that public notice is necessary to allow participation in the cabinet's decision by persons who have an interest which may be adversely affected by the proposed change. Major modifications shall include, but shall not be limited to:

(1) It is a variance requested pursuant to 401 KAR 30:020, Section 2.

(2) It would increase the area authorized for waste disposal of any unit as represented by the waste boundary as specified by 401 KAR 30:010. This type action is a horizontal expansion.

(3) It would increase the landfill capacity that extends the life of the facility by more than two (2) years and is not a horizontal expansion. This type action is a vertical expansion.

(4) It would add a source of solid waste such that the operating life of the facility would be less than five (5) years.

(5) It would transfer ownership to a person other than that named on the permit.

(6) It is an approval of the corrective action plan required by 401 KAR 48:300, Section 8(9) by the cabinet. The public notice requirements of 401 KAR 47:140 shall not preclude the cabinet from taking actions necessary to mitigate conditions that are an immediate threat to human health or the environment.

(7) Add a geographic area that is a source of solid waste accepted at the facility.

Section 4. Revocation of Permits.

(1) The cabinet may revoke a permit during its term or deny a permit renewal application for the following causes:

(a) Noncompliance by the permittee with a condition of the permit resulting in failure to protect human health or the environment;

(b) The permittee's failure in the application or during the permit issuance process to disclose all information required by the cabinet or the permittee's misrepresentation of any such information at any time;

(c) A determination that the permitted activity endangers human health or the environment and can only be enforced in accordance with the requirements of KRS Chapter 224 by permit modification or revocation;

(d) A violation of any requirement of KRS Chapter 224 or the respective administrative regulations promulgated pursuant thereto; or

(e) The cabinet has received notification that a facility has been transferred to another person without proper prior approval by the cabinet.

(2) The cabinet shall follow the applicable procedures in this administrative regulation and in 401 KAR 47:140 and 401 KAR Chapter 40 in revoking any permit under this section.

(3) Owners or operators of solid waste sites or facilities may file a request for a hearing pursuant to KRS 224.10-420 upon revocation of the permit or receipt of a notice of violation from the cabinet.

Section 5. Termination of Permits. A permit shall automatically terminate on the expiration date unless the cabinet has reissued the permit or continuation in accordance with Section 7 of this administrative regulation.

Section 6. Duration of Construction and Construction/Operation Permits.

(1) Term of permit. Solid waste site or facility construction and construction/operation permits shall be effective for a fixed term not to exceed ten (10) years. The cabinet shall review the conditions of the permit after five (5) years and modify the permit as necessary.

(2) Modification of term of permit. Except as provided in Section 7 of this administrative regulation, the term of a permit shall not be extended by modification beyond the maximum duration specified in subsection (1) of this section.

(3) Reduced term of permit. The cabinet may issue any permit for a duration that is less than the full allowable term under subsection (1) of this section.

Section 7. Continuation of Expiring Permits.

(1) The conditions of an expired permit shall continue in force at the discretion of the cabinet in order to ensure the safe disposal of waste until the effective date of a new permit if:

(a) The permittee has submitted a timely application for renewal of a permit under 401 KAR 47:160 through 401 KAR 47:190. Such applications shall be complete and the applicant shall have paid the appropriate fees due under 401 KAR 47:060 or 401 KAR 47:090;

(b) The cabinet, through no fault of the permittee, does not issue a new permit with an effective date on or before the expiration date of the previous permit (for example, when issuance is impracticable due to time or resource constraints); and

(2) Effect. Permits continued under this section remain fully effective and enforceable.

(3) Enforcement. When the permittee is not in compliance with the conditions of the expiring or expired permit, the cabinet may choose to do any or all of the following:

(a) Initiate enforcement action based upon the permit which has been continued;

(b) Issue a notice of intent to deny the new permit under Section 3 of 401 KAR 47:140. If the permit is denied, the owner or operator shall cease the activities authorized by the continued permit or be subject to enforcement action for operating without a permit;

(d) Take other actions authorized by 401 KAR Chapters 47 and 48.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.70, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt rules and administrative regulations for the management, processing, or disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing, and disposal of waste obtain a permit. This chapter establishes the permitting standards for solid waste sites or facilities, the standards applicable to all solid waste sites or facilities, and the standards for certification of operators. An overview of the permit program is found in Section 1 of 401 KAR 47:080. This administrative regulation sets forth the requirements for changes to permits and expiration of permits.
History: 16 Ky.R. 1741; 2187; 2355; eff. 5-8-1990; Crt eff. 10-9-2018.

401 KAR 47:136 Diversions of waste {#sec-401-kar-47-136 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:136}

Section 1. If the cabinet revokes, suspends or denies a permit for a solid waste disposal facility, orders the facility to cease accepting waste, or if the facility otherwise ceases to accept waste, the wastes which would have been accepted by the facility shall be diverted to a permitted solid waste facility with adequate disposal capacity. The diversion shall require a minor modification of the permit for the solid waste facility accepting the diverted waste, in accordance with 401 KAR 47:130.

Section 2. The owner or operator of the solid waste disposal facility prohibited from accepting waste shall post and maintain a clearly-legible sign advising the public that waste shall not be disposed at the facility.

History

RELATES TO: KRS 224.10, 224.40, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.43-340
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt administrative regulations for the management, processing, and disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing, or disposal of waste first obtain a permit from the cabinet. This chapter establishes the permitting standards for solid waste sites and facilities, the standards applicable to all solid waste sites and facilities, and the standards for certification of operators. This administrative regulation requires waste to be diverted to a permitted solid waste disposal facility with adequate capacity if the cabinet revokes, suspends or denies a permit or orders a solid waste disposal facility to cease accepting waste, or if the facility otherwise ceases to accept waste. That diversion shall require a minor modification to the permit of the receiving facility. The administrative regulation is necessary to assure that solid waste is disposed at permitted solid waste disposal facilities in a manner protective of human health and the environment and consistent with Kentucky's long-range planning goals for solid waste management.
History: 401 KAR 047:136. 17 Ky.R. 2093; 2448; eff. 3-13-1991; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 47:140 Public information and permit issuance procedures {#sec-401-kar-47-140 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:140}

Section 1. Application for a Permit.

(1) Any person who is required to have a solid waste site or facility permit under KRS Chapter 224 shall complete, sign and submit an application to the cabinet. Applications are not required for solid waste site or facility permits-by-rule specified in Section 1 of 401 KAR 47:150.

(2) The cabinet shall not begin the processing of a permit until the applicant has fully complied with the application requirements for that permit.

(3) Permit applications shall comply with the signature and certification requirements of Section 6 of 401 KAR 47:160.

(4) Upon completing the review, the cabinet shall notify the applicant in writing whether the application is complete or incomplete. If the application is incomplete, the cabinet shall list the information necessary to make the application complete. When the application is for an existing solid waste site or facility, the cabinet shall specify in the notice of deficiency a date for submitting the necessary information. The cabinet shall notify the applicant when the application is complete after receiving this information.

(5) If an applicant fails or refuses to correct deficiencies in the application or submit additional information, the permit shall be denied and, if applicable, enforcement actions taken under the appropriate statutory provision.

(6) If the cabinet decides that a site visit is necessary for any reason in conjunction with the processing of an application, the applicant shall accompany the cabinet representative on a site visit upon request by the cabinet.

(7) The cabinet may require such additional information as it deems necessary for a final determination regarding the application.

Section 2. Modification or Revocation of Permits.

(1) A permit for a solid waste site or facility may be modified, or revoked, either at the request of the permittee or upon the cabinet's initiative. However, a permit shall only be modified or revoked for the reasons specified in Sections 2 and 4 of 401 KAR 47:130 and following the procedures of 401 KAR Chapter 40. All requests shall be in writing and shall contain facts or reasons supporting the request.

(2) If the cabinet decides the request is not justified, the cabinet shall notify the permittee and give a reason for the decision. Denials of requests for modification or revocation are not subject to public notice, comment, or public hearings.

(3) If the cabinet tentatively decides to modify a permit under Section 2 of 401 KAR 47:130, the cabinet shall prepare a proposed permit under Section 3 of this administrative regulation incorporating the proposed changes. The cabinet may request additional information and, in the case of a modified permit, require the submission of an updated permit application if necessary. In the case of revoked permits, the cabinet shall require the submission of a new application to obtain a new permit.

(a) In a permit modification under this section, only those conditions to be modified shall be reopened when a new proposed permit is prepared. All other aspects of the existing permit shall remain in effect for the duration of the unmodified permit.

(b) When a permit is revoked, a new application may be submitted to the cabinet.

(4) If the cabinet tentatively decides to revoke a permit under Section 4 of 401 KAR 47:130, it shall issue a notice of intent to revoke. A notice of intent to revoke shall be subject to public notice.

(5) All proposed permits (including notices of intent to revoke) prepared under Sections 3 through 5 of this administrative regulation shall be based on the administrative record as outlined in Section 5 of this administrative regulation.

(6) The cabinet may consider conformance with the solid waste management area plan(s) or requirements of the district or county as a basis for permit modification.

Section 3. Permit Issuance.

(1) Once the technical application is complete, the cabinet shall tentatively decide whether to issue the permit or to deny the application. In making this determination the cabinet shall consider the requirements specified in the waste management administrative regulations and in KRS 224.40-305.

(2) If the cabinet tentatively decides to deny the permit application, it shall issue a notice of intent to deny. A notice of intent to deny the permit application shall be subject to public information process as specified in Section 12 of this administrative regulation. If the cabinet's final decision reverses the tentative decision to deny the permit application, the cabinet shall withdrawn the notice of intent to deny and proceed to prepare a proposed permit under subsection (3) of this section.

(3) If the cabinet makes a preliminary determination to issue the permit, a proposed permit is prepared which shall contain the following information:

(a) The proposed design and specifications;

(b) Any conditions in accordance with Section 2 of 401 KAR 47:120; and

(c) The proposed permit shall be based on the administrative record outlined in Section 5 of this administrative regulation.

(4) The cabinet may consider conformance with the solid waste management area plan(s) or requirements of the district or county as a basis for permit issuance.

(5) All proposed permits including permit major modifications as defined in 401 KAR 47:130, prepared by the cabinet under this section shall be subject to the public information process as specified in Section 12 of this administrative regulation.

Section 4. Fact Sheet.

(1) A fact sheet shall be prepared for every proposed permit for a solid waste facility which includes a contained landfill, residual landfill, or a research, development, and demonstration facility, and for every proposed permit that the cabinet finds is the subject of widespread public interest or raises major issues. The fact sheet shall briefly set forth the principal facts and the significant factual, legal, methodological and policy questions considered in preparing the proposed permit. The cabinet shall send this fact sheet to the applicant and, on request, to any other person.

(2) The fact sheet shall include, when applicable:

(a) A brief description of the type of facility or activity which is the subject of the proposed permit;

(b) The type and quantity of wastes which are proposed to be and are being stored, treated or disposed of and a summary of the facility design including the cap, liner, and leachate collection system specification;

(c) A brief summary of the basis for the proposed permit conditions including references to applicable statutory or regulatory provisions and appropriate supporting references to the administrative record required by Section 5 of this administrative regulation;

(d) Reasons why any requested variances or alternatives to required standards do or do not appear justified;

(e) A description of the procedures for reaching a final decision on the proposed permit including:

The beginning and ending dates of the comment period under Section 9 of this administrative regulation and the address where comments shall be received;
Procedures for requesting a hearing and the nature of that hearing; and
Any other procedures including public participation in the final decision.

(f) Name and telephone number of a person to contact for additional information.

Section 5. Administrative Record for Proposed Permits.

(1) The provisions of a proposed permit prepared by the cabinet under Section 3 of this administrative regulation shall be based on the administrative record.

(2) For preparing a proposed permit under Section 3 of this administrative regulation, the administrative record shall consist of:

(a) The application, if required, and any supporting data furnished by the applicant;

(b) The proposed permit or notice of intent to deny the application or to revoke the permit;

(d) All documents cited in the fact sheet; and

(e) Other documents contained in the supporting file for the proposed permit.

(3) Material readily available at the cabinet's office need not be physically included with the rest of the record as long as it is specifically referred to in the fact sheet. This includes published material that is generally available, and that is included in the administrative record.

(4) This section applies to all proposed permits when public notice was given after the effective date of these administrative regulations.

Section 6. Public Information Process Overview.

(1) The public information process may consist of five (5) phases. These phases include:

(a) A public notice;

(b) A special notice with executive summary;

(d) A public hearing; and

(e) An adjudicative hearing.

(2) The type of notice or hearing varies with each permit classification as well as the part of the application or modification being approved or denied by the cabinet. Sections 12 through 14 of this administrative regulation shall provide the specific process for each permit type.

Section 7. Public Notice.

(1) Public notices issued under this chapter shall contain the following information as specified in Sections 12 through 14 of this administrative regulation.

(a) Name and address of the office processing the permit action for which notice is being given;

(b) Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit;

(d) A description of the proposed location of the solid waste site or facility;

(e) Name, address and telephone number of a person from whom interested persons may obtain further information, and the location of a repository for documents in the county in which the site or facility is proposed, including copies of the proposed permit, fact sheet and application;

(f) The time and place of any hearing already scheduled and procedures by which the public may participate in the final permit decision;

(g) The location of the administrative record required by Section 5 of this administrative regulation, including a local repository in the county in which the site or facility is proposed, the times at which the record shall be open for public inspection, and a statement that all data submitted by the applicant are available as part of the administrative record;

(h) The statements required in KRS 224.40-310, if applicable; and

(i) Any additional information considered necessary or proper.

(2) Public notices may describe more than one (1) permit or permit action.

(3) Public notices shall be of a size to include not less than two (2) column widths for advertising and shall be in a display format.

(4) Public notices issued by the cabinet shall be distributed by the following methods:

(a) By mailing a copy of a notice to the following persons:

The applicant;
Any other agency that the cabinet knows has issued or is required to issue an environmental permit for the same facility or activity;
Federal and state agencies with jurisdiction over fish, shellfish, and wildlife resources, the Advisory Council on Historic Preservation, the state historic preservation officers, and other appropriate government authorities, including any other affected states;
Persons on a cabinet mailing list which has been compiled by notifying the public of the opportunity to be put on the mailing list through periodic publication. Individuals shall request in writing to be on the list;
Any unit of local government having jurisdiction over the area where the facility is proposed to be located;
Each state agency having any authority under state law with respect to the construction or operation of such facility; and
The owner(s) of all property adjacent to property to be used by the applicant for the proposed facility;

(b) Publication of a notice in a daily or weekly major local newspaper of general circulation as required by KRS 224.40-310(2) where the proposed site is located; and

(c) Any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.

Section 8. Special Notice/Executive Summary. A special notice in the form of an executive summary of the permit application shall be submitted to the county judge/executive or mayor of an urban-county government and members of the fiscal court or urban-county council of the county or urban-county government in which the site or facility is or shall be located as specified in KRS 224.40-310.

Section 9. Public Comment Period. The public comment period when provided shall allow at least thirty (30) days for public comment during which any interested person may submit written comments on the application or proposed permit and may request an adjudicative hearing pursuant to KRS 224.40-310. The comment period shall commence on the date of the public notice providing a comment period is published.

Section 10. Public Hearings.

(1) The cabinet may hold a public hearing on the basis of request or when a significant degree of public interest exists concerning a solid waste site or facility permit decision. The cabinet at its discretion may hold a public hearing whenever such a hearing might clarify one (1) or more issues involved in the permit decision.

(2) Whenever a public hearing is held, the secretary shall designate a presiding officer for the hearing who shall be responsible for its scheduling and orderly conduct.

(3) Any person may submit oral or written statements and data. Reasonable limits may be set upon the time allowed for oral statement, and the submission of statements in writing may be required. The public comment period under Section 9 of this administrative regulation shall automatically be extended to the close of any administrative hearing. The presiding officer may also extend the comment period by so stating at the hearing.

(4) A written transcript of the hearing shall be made available to any person upon payment of the actual cost of reproducing the original.

Section 11. Adjudicative Hearing.

(1) The cabinet shall hold an adjudicative hearing as specified in KRS 224.40-310 and consistent with the requirements and provisions of KRS 224.10-420(2) whenever petition in opposition to a proposed permit determination and a request for an adjudicative hearing is received within thirty (30) days of public notice. All other permitting determinations shall be subject to an adjudicative hearing only as provided in KRS 224.10-420(2).

(2) Whenever possible the cabinet shall schedule a hearing under this section at a location convenient to the population center nearest to the proposed facility provided the hearing location is in the same county as required by KRS 224.40-310.

Section 12. Public Information Process for Landfills.

(1) Upon receipt of a notice of intent to apply for a contained, residual, or construction/demolition debris landfill, or upon receipt of a request for a major permit modification, the cabinet shall require the permit applicant to provide public notice. The contents of this public notice shall include those items listed in Section 7(1)(a) through (d) of this administrative regulation.

(2) When the administrative portion of the application is deemed complete, the cabinet shall:

(a) Issue a special notice as outlined in Section 8 of this administrative regulation; and

(b) Require the applicant to make public notice which provides for a public comment period and provides that any interested person may request a public hearing.

(3) The cabinet shall:

(a) Require the applicant to provide public notice when review of the technical portion of the application begins. The contents of this public notice shall include those items listed in Section 7(1)(a) through (d). The notice shall also state that the executive summary shall be available from the office of the county judge/executive or mayor of an urban-county government; and

(b) Issue a special notice as outlined in Section 8 of this administrative regulation.

(4) Once a preliminary determination on the application has been made and the cabinet has prepared a proposed permit, the applicant shall issue a public notice. The public notice shall provide for a public comment period. The public notice shall also contain the following statement: "Any person who may be aggrieved by the issuance of a permit for this proposed waste site or facility may file with the cabinet a petition which sets forth the grounds of the objection and demands a hearing pursuant to KRS 224.10-420(2)."

(5) A public notice including a public comment period shall be published by the cabinet when a notice of intent to deny a landfill application is issued. The public notice shall be distributed as specified in Section 7(4) of this administrative regulation. The contents of the public notice shall include those items listed in Section 7(1)(a) through (i).

(6) A public notice shall be published by the cabinet upon the issuance of the construction/operating permit or upon renewal of a landfill permit. The public notice shall be distributed as specified in Section 7(4)(b) of this administrative regulation. The contents of the public notice shall include those items listed in Section 7(1)(a) through (g) of this administrative regulation.

Section 13. Public Information Process for Landfarming. The public information process for landfarming shall be followed as specified in 401 KAR 48:200.

Section 14. Public Information Process for Research, Development and Demonstration Permits. Once the cabinet has issued a proposed permit, the applicant of a research, development and demonstration permit shall publish a public notice. This notice shall be distributed by the cabinet as specified in Section 7(4)(b) of this administrative regulation. The public notice shall provide for a public comment period. The public notice shall also contain the following statement: "Any person who may be aggrieved by the issuance of a permit for this proposed waste site or facility may file with the cabinet a petition which sets forth the grounds of the objection and demands a hearing pursuant to KRS 224.10-420(2)."

Section 15. Reopening of the Public Comment Period.

(1) If any data, information or arguments submitted during the public comment period (including information or arguments that any condition of the proposed permit or permit denial is inappropriate) appear to raise substantial new questions concerning a permit, the cabinet shall take one (1) or more of the following actions:

(a) Prepare a new proposed permit, appropriately modified, under Section 3 of this administrative regulation;

(b) Reopen or extend the comment period to provide interested persons an opportunity to comment on the information or arguments submitted.

(2) Comments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening. A public notice shall define the scope of the reopening.

(3) The cabinet may also, in the circumstances described above, elect to hold further proceedings. This decision may be combined with any of the actions enumerated in subsection (1) of this section.

Section 16. Response to Comments.

(1) At the time that any final permit decision is issued, the cabinet shall issue a response to comments. This response shall:

(a) Specify which provisions, if any, of the proposed permit have been changed in the final permit decision, and the reasons for the change; and

(b) Briefly describe and respond to all significant comments on the proposed permit raised during the public comment period, or during any public hearing.

(2) The response to comments shall be available to the public and shall be deposited in an appropriate facility in the county which the site or facility is proposed.

Section 17. Issuance and Effective Date of Permit.

(1) After the close of the public comment period and any applicable hearing on a proposed permit, the cabinet shall issue a final permit decision. For the purposes of this section, a final permit decision means a final decision to issue, deny, modify, revoke, or terminate a permit.

(2) A final permit decision shall become effective on the date issued by the cabinet.

(3) The cabinet shall document the disposition of significant comments received and make it available to the public by supplying it to the repository established in the county in which the facility is proposed.

Section 18. Past Performance Considered in Review. Past performance of the owner or operator may be considered in the review for issuance or denial of the permit application and in the determination of any requirement for specialized conditions.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.46, 224.50, 224.70, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt rules and administrative regulations for the management, processing, or disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing, and disposal of waste obtain a permit. This chapter establishes the permitting standards for solid waste sites or facilities, the standards applicable to all solid waste sites or facilities, and the standards for certification of operators. An overview of the permit program is found in Section 1 of 401 KAR 47:080. This administrative regulation sets forth permit issuance and public information procedures.
History: 401 KAR 047:140. 16 Ky.R. 1744; 2189; eff. 5-8-1990; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 47:150 Special types of permits {#sec-401-kar-47-150 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:150}

Section 1. Permit-by-rule. Notwithstanding any other provision of this chapter, the following Disposal of certain solid wastes by a practice common to the industry shall be deemed to have a permit-by-rule provided the operation is not in violation of the applicable environmental performance standards of 401 KAR 47:030, does not present a threat of imminent hazard to human health or substantial environmental impact and the following applicable conditions are met:

(1) Sawdust piles if:

(a) The pile is on the property of the generator; and

(b) The pile does not cause nonpoint pollution of surface water above the water quality standard specified in 401 KAR 10:031.

(2) Disposal of asphalt residue.

(3) Oil production brine pits and gas and oil drilling mud pits, if the operator:

(a) Has a KPDES or NPDES permit; and

(b) Complies with the conditions of the KPDES or NPDES permit.

(4) One (1) time disposal of waste construction material if:

(a) Disposal occurs at the point of generation;

(b) Disposal occurs only during the period of construction;

(d) The wastes do not include packaging or putrescible wastes.

(5) Disposal of demolition waste on the property where demolition occurs during the period of demolition except for materials containing asbestos.

(6) Disposal of land clearing debris on the property where clearing occurred.

(7) Disposal of less than 100 tires, shredded tires in a single pile of less than one-fourth (1/4) acre, or tires actively used in agricultural operations.

(8) Waste piles.

(9) Automobile and truck recyclers and salvage yards.

(10) Surface impoundments with a KPDES permit.

(11) Beneficial reuse of solid waste.

Section 2. Emergency Permits.

(1) Notwithstanding any other provision of this chapter, in the event the cabinet finds an imminent and substantial endangerment to human health or the environment, the cabinet may issue an emergency permit to allow temporary storage or disposal of solid waste for a nonpermitted facility, thus granting the nonpermitted facility an effective temporary solid waste site or facility permit. However, an emergency permit shall only be issued when the circumstances preclude the processing of a permit of appropriate classification, and the permitted site would not create an endangerment to human health or the environment. Such permits may be for either temporary or permanent disposal.

(2) An emergency permit:

(a) Shall be oral or written. If oral, it shall be followed in five (5) days by a written emergency permit request;

(b) Shall not exceed ninety (90) days in duration;

(c) Shall clearly specify the solid wastes to be received, and the manner and location of treatment, storage, or disposal;

(d) May be unilaterally terminated by the cabinet at any time if the cabinet determines that termination is appropriate to protect human health or the environment;

(e) Shall incorporate to the extent possible and not inconsistent with the emergency situation, all applicable requirements of this chapter and 401 KAR Chapter 48;

(f) Shall specify that all remaining solid waste and residues are removed at the end of the term of the emergency permit to a properly permitted solid waste site or facility in order to be exempted from the technical and financial requirements of 401 KAR Chapter 48; and

(g) Shall specify that failure to comply with the conditions of the emergency permit shall be grounds for the cabinet to recover the cost of proper closure.

Section 3. Research, Development and Demonstration Permits.

(1) The cabinet may issue a research, development and demonstration permit for any solid waste treatment or disposal facility which proposes to utilize an innovative and experimental solid waste technology or process for which permit standards for such experimental activity have not been promulgated under 401 KAR Chapter 48. Any permit shall include such terms and conditions as shall assure protection of human health and the environment. In issuing research, development and demonstration permits the cabinet shall:

(a) Provide for the construction of such facilities as necessary, and for operation of the facility for not longer than one (1) year unless renewed as provided in subsection (4) of this section;

(b) Provide for the receipt, storage and disposal by the facility of only those types and quantities of solid waste that the cabinet deems necessary for purposes of determining the efficiency and performance capabilities of the technology or process and the effects of such technology or process on human health and the environment; and

(c) Include such requirements as the cabinet deems necessary to protect human health and the environment including, but not limited to: monitoring, operation, financial responsibility, closure, remedial action, testing, and reporting.

(2) For the purpose of expediting review and issuance of permits under this section, the cabinet may, consistent with the protection of human health and the environment, modify or waive permit application and permit issuance requirements in 401 KAR Chapter 47 except that there may be no modification or waiver of provisions in KRS Chapter 224 regarding financial responsibility (including insurance) or of procedures regarding public notification.

(3) The cabinet may order an immediate termination of all operations at the facility at any time it is determined that termination is necessary to protect human health and the environment.

(4) Any permit issued under this section shall not be renewed more than three (3) times. Each such renewal shall be for a period of not more than one (1) year.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt rules and administrative regulations for the management, processing, and disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing, and disposal of waste obtain a permit. This chapter establishes the permitting standards for solid waste sites or facilities, the standards applicable to all solid waste sites or facilities, and the standards for certification of operators. An overview of the permit program is found in Section 1 of 401 KAR 47:080. This administrative regulation sets forth the requirements for permits-by-rule; emergency permits; and research, development, and demonstration permits.
History: 401 KAR 047:150. 16 Ky.R. 1749; 2193; eff. 5-8-1990; TAm eff. 10-14-2008; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 47:160 Application procedures {#sec-401-kar-47-160 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:160}

Section 1. General Application Requirements.

(1) Permit application. A permit application consists of three (3) parts: notice of intent to apply for a solid waste permit; administrative application; and technical application. Any person who is required to have a permit (including new applicants and permittees with expiring permits) shall complete, sign and submit an application to the cabinet as described in 401 KAR 47:170 through 401 KAR 47:190 and 401 KAR Chapter 48.

(2) Completeness. The cabinet shall not issue a permit before receiving a complete application for a permit except for permits-by-rule or emergency permits. An application for a permit is complete when the cabinet receives an application, including any supplemental information, which shall be completed to the satisfaction of the cabinet.

(3) Information requirements. All applicants for permits shall provide the applicable information in compliance with 401 KAR 47:170 through 401 KAR 47:190 and 401 KAR Chapter 48 to the cabinet, using the application forms provided by the cabinet.

(4) Number of copies.

(a) For the purpose of reviews, three (3) original copies of the application shall be submitted to the cabinet. The application shall be compiled such that it conforms to an eight and one-half (8.5) by eleven (11) inch document. The applicant shall submit two (2) rolled sets of full scale engineering drawings.

(b) For issuance of the permit, the applicant shall provide one (1) original application and four (4) copies, incorporating all changes, bound such that they conform to an eight and one-half (8.5) by eleven (11) inch document. The applicant shall also submit the following sets of engineering drawings:

Two (2) full scale sets folded to eight and one-half (8.5) by eleven (11) inches;
Two (2) full scale sets rolled;
Two (2) one-half (0.5) scale sets.

Section 2. Existing Solid Waste Sites or Facilities and Registered Permits-by-rule. Owners or operators of solid waste sites or facilities in existence on the effective date of this administrative regulation which close under a registered permit-by-rule shall, at a minimum, comply with the corrective action requirements in 401 KAR 48:300.

Section 3. New Solid Waste Sites or Facilities.

(1) No person shall begin physical construction of a new solid waste site or facility without having submitted a permit application and received a solid waste permit.

(2) An applicant for a solid waste landfill or landfarming permit after the effective date of this administrative regulation shall submit to the cabinet a notice of intent to apply for a solid waste permit which contains the information specified in 401 KAR 47:170 or 401 KAR 48:200.

(3) The applicant shall submit an administrative application for a solid waste site or facility in accordance with the approved notice of intent to apply for a solid waste permit and the implementation of the approved site investigation plan. The administrative application shall contain the information as specified in 401 KAR 47:180.

(4) The applicant shall submit a technical application in accordance with the approved administrative application and the requirements of 401 KAR 47:190 and Chapter 48.

(5) The site shall be designed in accordance with the approved conceptual design, any variances given preliminary approval, and the applicable requirements of 401 KAR 47:190 and 401 KAR Chapter 48.

(6) If at any time the cabinet determines that the proposed site cannot meet the requirements of 401 KAR Chapters 47 and 48, the cabinet may deny the permit.

(7) The cabinet shall take action on applications for solid waste sites and facilities within the following time frames as appropriate:

(a) Notice of intent to apply thirty (30) working days;

(b) Administrative application sixty (60) working days; and

(8) If the application is incomplete, the cabinet shall notify the applicant in writing of the deficiencies. Failure to submit the required information within 180 days shall be grounds for denial. Periods of deficiency correction shall not be counted against the review time frames specified in subsection (7) of this section.

Section 4. Issuance of a Solid Waste Site or Facility Permit.

(1) The cabinet shall issue a construction permit for no more than five (5) years if, after completing the review of a complete solid waste site or facility permit application, it finds that the applicant for the permit has met all the requirements for application and the requirements of KRS 224.40-310 and 401 KAR Chapters 47 and 48.

(2) The applicant shall maintain a construction permit in full force and effect until all facilities have been constructed and approved by the cabinet, including closure of the facility.

(3) A construction/operation permit shall be issued by the cabinet when:

(a) The applicant notifies the cabinet, in writing, that liner system and facility construction has been completed;

(b) A representative of the cabinet inspects the site and verifies in writing within thirty (30) days of the inspection that the site has been developed according to plans and that necessary equipment is available to operate the site;

(c) The required financial responsibility in 401 KAR 48:310 for closure has been established using any of the mechanisms required by KRS 224.40-650 in an amount determined by an approved closure plan and cost estimate;

(d) The applicant submits a certification by an engineer registered in Kentucky that the site liner system and facilities are constructed in accordance with the approved plans and specifications; and

(e) A notice has been published as required by KRS 224.855 and 401 KAR 47:140.

(4) The cabinet may issue a permit subject to special conditions which include, but are not limited to, types of wastes which may be accepted or disposed, source of waste, special operating conditions, schedules for compliance for corrective actions, and the issuance of other applicable permits of the cabinet.

Section 5. Expiration and Renewal of Permits.

(1) The construction/operation permit shall be issued for no more than ten (10) years. A shorter period may be specified. A permit-by-rule shall be perpetual until modified or revoked by the cabinet. A registered permit-by-rule shall be perpetual until modified or revoked by the cabinet. The site may continue operation past the expiration date of a permit only if the owner or operator has complied with the requirements of Section 7 of 401 KAR 47:130. For permits of longer than five (5) year terms issued under this administrative regulation, the cabinet may review the permit during the term. Issued permits may be reevaluated in accordance with the requirements of KRS Chapters 47 and 48 including reevaluation of the bond. After reevaluation of the permit, the cabinet may require modifications of the permit pursuant to Section 2 of 401 KAR 47:140.

(2) Any solid waste site or facility with an effective construction or construction/operation permit shall submit an application for renewal at least 180 days before the expiration date of the effective permit, unless permission for a later date has been granted in writing by the cabinet.

(3) Applications to renew construction and construction/operation permits will be subject to all requirements of 401 KAR Chapters 47 and 48 upon application renewal and shall be subject to public notice pursuant to KRS 224.40-310 and 401 KAR 47:140.

(4) The cabinet, in issuing a renewal, shall consider whether all conditions of the original permit and modifications of permit conditions by agreed order or otherwise have been met. The cabinet may request updated information necessary for reevaluating the permit's suitability for reissuance and impose additional or modified permit conditions when deemed appropriate.

Section 6. Signatures to Permit Applications and Reports.

(1) Applications. All permit applications and modifications shall be signed as follows:

(a) For a corporation, by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means:

A president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision making functions for the corporation; or
The manager of one (1) or more manufacturing, production or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25 million (in second-quarter 1980 dollars); or

(b) For a partnership or sole proprietorship, by a general partner or the proprietor, respectively; or

(c) For a municipality, state, federal, or other public agency, by either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer of a federal agency includes:

The chief executive officer of the agency; or
A senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency.

(2) Reports. All reports required by permits, and other information requested by the cabinet, shall be signed by a person described in subsection (1) of this section, or by a duly authorized representative of that person. A person shall be a duly authorized representative only if:

(a) The authorization is made in writing by a person described in subsection (1) of this section;

(b) The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, superintendent, or position of equivalent responsibility (a duly authorized representative may thus be either a named individual or any individual occupying a named position); and

(3) Changes to authorization. If an authorization under subsection (2) of this section is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of subsection (2) of this section shall be submitted to the cabinet prior to or together with any reports, information, or applications to be signed by an authorized representative.

(4) Certification. Any person signing a document under subsections (1) or (2) of this section shall make the following certification: "I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for such violations."

Section 7. Confidentiality of Information.

(1) Claims of confidentiality. Any information submitted to the cabinet pursuant to these administrative regulations may be claimed as confidential by the submitter. Any such claim shall be asserted at the time of submission in accordance with KRS 224.10-210 and 400 KAR 1:060. If no claim is made in accordance with 400 KAR 1:060, the cabinet may make the information available to the public without further notice.

(2) Denial of claims of confidentiality. Claims that the name and address of any permit applicant or permittee is confidential shall be denied.

Section 8. General Contents and Application Specifications.

(1) An application for a solid waste permit shall be on a form provided by the cabinet and contain:

(a) A letter detailing the desired cabinet action or response;

(b) A table of contents listing all sections of the submittal; and

(c) Appropriate maps, figures, photographs, and tables to clarify information or conclusions. All material shall be legible.

(2) All maps, plan sheets, drawings, isometrics, cross-sections, and aerial photographs shall meet the following requirements:

(a) Be of appropriate scale to clearly show all required detail;

(b) Be numbered, referenced in the narrative, titled, have a legend of all symbols used, contain horizontal and vertical scales (where applicable), and specify drafting or origination dates;

(d) Contain a north arrow;

(e) Use USGS data as a reference for all elevations;

(f) Contain a survey grid with maximum dimension of 1,000 feet square based on monuments established in the field which shall be referenced to an established site specific bench mark;

(g) Show original topography and the grid system on plan sheets showing construction, operation, or closure topography; and

(h) Show survey grid location and reference major plan sheets on all cross-sections.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt rules and administrative regulations for the management, processing or disposal of solid wastes. KRS 224.40-305 requires that persons engaging in the management, processing and disposal of waste obtain a permit. This chapter establishes the permitting standards for solid waste sites or facilities, the standards applicable to all waste sites or facilities, and the standards for certification of operators. An overview of the permit program is found in Section 1 of 401 KAR 47:080. This administrative regulation sets forth the requirements for application procedures.
History: 401 KAR 047:160. 16 Ky.R. 1752; 2195; 2357; eff. 5-8-1990; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 47:170 Notice of intent to apply for a solid waste permit {#sec-401-kar-47-170 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:170}

Section 1. The Objectives and Requirements of the Notice of Intent to Apply for a Solid Waste Permit. All applicants for a solid waste permit shall submit a notice of intent to apply for a solid waste permit that shall contain the information specified in Section 2 of this administrative regulation. An applicant for a solid waste construction/ demolition debris, contained, or residual landfill permit shall additionally submit the geotechnical information contained in Section 3 of this administrative regulation. An applicant for a landfarming permit shall submit a notice of intent to apply for a solid waste permit in accordance with 401 KAR 48:200. The notice of intent to apply for a solid waste permit makes the cabinet aware of the potential location for a new site or site expansion; allows for review of existing information for suitability of the site relative to 401 KAR 47:030, 401 KAR 47:100, and 401 KAR Chapter 48; allows for review and approval of the proposed field investigations to supplement the existing information; allows the cabinet to determine the relationship of a proposed facility to the approved solid waste management area plan; and identifies any provisions of local government that pertain to the proposed facility. The notice of intent to apply contains information that is part of a complete application as required by KRS 224.40-310.

Section 2. Notice of Intent to Apply for a Solid Waste Permit. All notices of intent to apply for a solid waste permit shall include the following information:

(1) The management, processing, or disposal activities that require a solid waste permit under KRS Chapter 224;

(2) The name and mailing address of the proposed facility;

(3) The location, including latitude and longitude, of the center of the proposed waste disposal area(s);

(4) A list of the anticipated sources that generate wastes to be disposed at the site;

(5) For industrial facilities seeking a permit, the major applicable United States Department of Commerce Standard Industrial Classification Codes (SIC) and a description of the process in sufficient detail to allow determination of the materials used for production and the resultant chemical, physical, and hazardous character of the wastes. Hazardous waste characterization shall be consistent with 401 KAR Chapter 31;

(6) The operator's name, address, and telephone number;

(7) The name, address, and telephone number of the owner of the property and a copy of the current deed to the property;

(8) Written directions to the site, using roads or highways, from a commonly known landmark;

(9) A general county highway map eleven (11) inches by fourteen (14) inches as published by the Kentucky Transportation Cabinet for the county showing the location of the proposed site;

(10) A description of the portions of the property to be used for waste management, processing, or disposal to include the area in acres, and anticipated peak capacity; and average rate of operation in cubic yards and tons per day;

(11) The source by county or facility as appropriate; the chemical, physical, and biological characteristics of the solid wastes to be managed at the facility; an estimate of the quantity of such wastes to be managed annually; and a general description of the methods of management for each waste;

(12) A listing of all permits or construction approvals anticipated, applied for, or received under any of the following programs that relate specifically to the proposed facility;

(a) Solid and Hazardous Waste Management Program under the Resource Conservation and Recovery Act and KRS Chapter 224 as specified in 401 KAR Chapters 30 through 48;

(b) Underground Injection Control Program under the Safe Drinking Water Act; and

(c) NPDES Program under the Clean Water Act, or the KPDES Program under KRS Chapter 224 as specified in 401 KAR 5:050 through 5:085;

(13) For existing facilities, the following additional information shall be included:

(a) A drawing of the facility showing the location of all past, present, and proposed future waste management areas;

(b) Photographs of the facility clearly delineating all existing structures, existing waste management areas, primary operating components, and sites of future waste management;

(c) A report describing the permitting and compliance history that relates to the existing sites and the owner's abilities to meet the environmental performance standards of 401 KAR 47:030. This report shall include the financial requirements to modify the site or facility to meet the environmental performance standards;

(d) A written description of compliance with the Prevention of Significant Deterioration (PSD) program under KRS Chapter 224 as specified in 401 KAR 51:017;

(e) A written description of compliance with the nonattainment program under KRS Chapter 224 and as specified in 401 KAR 51:052;

(f) Water quality certification as required by Section 401 of the Clean Water Act;

(g) All permits issued for mineral or coal extraction under the Surface Mining and Reclamation Act and KRS Chapter 350; and

(h) Other relevant environmental permits.

(14) A review of all pertinent published information pertaining to the proposed solid waste site or facility concerning federally protected threatened and endangered species and their critical habitat, historical properties, archaeological sites, and wetlands; and

(15) Any other information that may be required to determine that the respected permit conforms to the requirements for solid waste sites or facilities.

Section 3. Geotechnical Information. The notice of intent to apply for a solid waste landfill permit shall contain a geotechnical report and site investigation plan including:

(1) An original current USGS seven and one-half (7.5) minute topographic quadrangle map showing the proposed waste boundaries and the property boundaries. The map shall show the following items that are located within one (1) mile of the proposed waste boundary:

(a) All surface water intake and discharge structures;

(b) All waste management, processing, or disposal facilities;

(d) All wells, springs, ephemeral, intermittent, and perennial streams, other surface water bodies, and drinking water wells.

(2) A review of all pertinent existing and published information pertaining to:

(a) Geology (karst features, structural features, and lithologic description);

(b) Hydrogeology of the groundwater resources and aquifers that shall be monitored;

(d) Caves and excavations including mined or quarried areas;

(3) A written plan addressing the determination of specific requirements of 401 KAR 47:030, 401 KAR 47:180, 401 KAR 48:050 through 401 KAR 48:080, and 401 KAR 48:170 as appropriate;

(4) A rock core boring plan that shall:

(a) Provide the data needed to evaluate the geologic features to the level of the first confining layer below the uppermost aquifer, and all geologic units hydraulically connected to the uppermost aquifer;

(b) Provide the data needed to determine the features of the liner system for the appropriate landfill class;

(c) Provide data to describe the site geology, the local aquifers that are hydrogeologically associated with the site, and the transmissivity of the aquifers; and

(d) Include relevant field data and appropriate test methods for determining hydrogeologic parameters;

(5) A soil boring plan that shall address the field and laboratory methods to be used. The soil boring plan shall include:

(a) The procedures to be used for field observations during solid borings and the criteria for selecting soils to be examined in the laboratory and a procedure for all soil borings to be field classified by a person qualified to make distinctions on characteristics relative to the engineering classification of soils;

(b) An analysis plan for at least one (1) soil sample for each soil type within each soil examination block. Each soil examination block shall be no larger than 1000 feet by 1000 feet and include a narrative describing the soils to be selected for laboratory examination using a test method approved by the cabinet; and

(6) Directions for closure of the rock core borings using grout and closure of the soil borings. The closure of the investigative excavations shall be acknowledged in writing by a qualified engineering geotechnical investigation professional;

(7) The methods and accuracy to be used to determine the location of the rock core borings and the soil borings during the subsurface investigation;

(8) A site geotechnical investigation map prepared at a scale of one (1) inch equals 400 feet showing the limits of all areas that may be used for soil borrow or waste disposal, site topography, and the USDA SCS soil group mapping. The site map shall have the following shown:

(a) A regular grid (soil examination block) of 1,000 feet by 1,000 feet spacing;

(b) USDA SCS soil groups;

(c) Within each soil examination block of the grid, the placement of at least one (1) soil boring for each soil type; and

(d) Additional soil boring locations such that a minimum of nine (9) soil borings shall be taken in each soil examination block.

(9) A procedure for written documentation when the location of actual subsurface excavations (borings or corings) are adjusted in the field. The adjusted excavation locations shall achieve the criteria of this section and shall be subject to concurrence by the cabinet;

(10) Additional information for each classification of landfill as outlined below:

(a) For construction/demolition debris landfills, the geotechnical investigation map shall be annotated to show the proposed location of a minimum of three (3) rock core borings. The number and placement of the rock core borings shall be determined based on the size and geologic complexity of the site;

(b) For contained landfills, the geotechnical investigation map shall show the proposed location of a minimum of four (4) rock core borings. For sites with more than fifty (50) acres, an additional rock core boring shall be required for each additional twenty-five (25) acres or part thereof. The placement of the rock core borings shall be dependent on site geologic features of the proposed site. Additional rock core borings may be required for sites with complex geologic attributes; and

(11) Other informational sources to be researched for site specific attributes. The sources shall include, at a minimum, surface mining permits, subsurface excavation and mining permits, and records of the Kentucky Geologic Survey and the Kentucky Department of Mines and Minerals.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt rules and administrative regulations for the management, processing or disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing or disposal of waste obtain a permit. This chapter establishes the permitting standards for solid waste sites or facilities, the standards applicable to all solid waste sites or facilities, and the standards for certification of operators. An overview of the permit program is found in Section 1 of 401 KAR 47:080. This administrative regulation sets forth the requirements for a notice of intent to apply for a solid waste permit.
History: 401 KAR 047:170. 16 Ky.R. 1755; 2197; 2359; eff. 5-8-1990; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 47:180 Contents of the administrative application for solid waste landfills {#sec-401-kar-47-180 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:180}

Section 1. Objective and General Requirements. The objectives of the administrative application for solid waste facilities are to allow the cabinet to determine if the proposed permit is consistent with local solid waste management area requirements and to review potential effects on human health and the environment if the proposed landfill is permitted. The information required for an administrative application for solid waste management facilities includes, but shall not be limited to, ownership documents, documentation of past performance, results from the geotechnical investigation specified in the approved notice of intent to apply for a solid waste permit, and the proposed design plan. The information provided shall be sufficient to allow the cabinet to evaluate the data detailing the site characteristics and the proposed design in the administrative application compared with the requirements for each type of site or facility, the waste to be disposed, and the ability to meet environmental performance standards. Information required in the administrative application shall be submitted to the cabinet in a format approved by the cabinet and signed in accordance with requirements in Section 6 of 401 KAR 47.160. Design drawings, specifications, and engineering studies shall be sealed by a professional engineer registered in Kentucky. The contents of the administrative application contain information that is part of a complete application as required by KRS 224.40-310. The contents of the administrative application shall be accurate and complete at the time the cabinet makes its preliminary determination to issue a solid waste permit.

Section 2. Notice of Intent to Apply. The owner or operator shall state the name of the applicant and list the date of submittal of the notice of intent to apply for a solid waste permit as required by 401 KAR 47:170.

Section 3. Compliance with the Area Plan.

(1) The applicant shall describe how the proposed new solid waste site or facility or expansion to the existing solid waste site or facility complies with or relates to relevant solid waste management area plan. If the proposed site or expansion is in an area with an approved area plan, the cabinet shall review the application for compliance with the solid waste management area plan. If the proposed facility does not comply with the approved area plan, the cabinet may deny the permit application unless a revision or amendment to the plans are completed by the solid waste management areas and approved by the cabinet.

(2) Modification of facilities. When an application for a modification to a solid waste site or facility is for an increase in the quantity of waste, the cabinet may deny the application when the additional quantity shall reduce the projected operating life to less than five (5) years. If an application for a modification to a solid waste site or facility reduces the projected operating life of the site or facility to less than five (5) years, the cabinet shall notify the affected solid waste management areas.

Section 4. General Information Requirements.

(1) The applicant is to describe the potential impact of operating the facility on the following:

(a) Transportation facilities;

(b) Prime agricultural lands; and

(2) Historic properties. The application shall include a review of the site features or structures of historical significance.

(3) Endangered or threatened species. The application shall include an inventory of any federally listed endangered or threatened species and the habitat critical to any endangered or threatened species consistent with the requirements of 50 CFR Part 424 as of October 1984.

(4) Variances. The applicant shall describe any anticipated variance requests pursuant to Section 2 of 401 KAR 30:020, including the administrative regulation from which relief is sought. The variance request shall describe the ability of the applicant to meet the environmental performance standards of 401 KAR 47:030 if the variance is granted.

(5) The applicant shall provide a statement that the facility complies with any local planning and zoning laws.

(6) The applicant shall provide a statement that the proposed facility does not conflict with the solid waste management area plan(s) or requirements of the district or county.

(7) The applicant shall provide a copy of the deed to the property and a copy of the lease or proposed lease showing a thirty (30) year right of reentry following closure of the facility if the landowner is not the applicant. The proposed lease or option shall be executed prior to permit issuance. The applicant shall also provide the names of the owners of mineral rights beneath the property.

(8) The applicant shall provide a statement that describes what assistance the local fire district shall provide.

Section 5. Topographic Map and Site Information. The administrative application shall contain:

(1) An existing conditions topographic map at a suitable scale to depict the anticipated buffer zones and limits of waste on an engineering drawing twenty-four (24) inches by thirty-six (36) inches. The contour intervals on the map shall be two (2) feet. The map shall clearly show the following:

(a) Legend with a bar scale, date of preparation, and last update;

(b) Orientation of the map (north arrow);

(d) Surface waters, including ephemeral, intermittent and perennial streams;

(e) Surrounding land uses (residential, commercial, agricultural, recreational, etc.). For areas with zoning, the land use map shall conform to the local zoning agency's land use mapping system;

(f) A wind rose (i.e., prevailing wind-speed and direction);

(g) Property lines;

(h) The location of areas which are proposed to be excavated to obtain earthen material for the construction of the facility and for cover material;

(i) The zones that reflect the area of expected subsidence or critical draw if subsurface mines, caves or excavations subside;

(j) Proposed limits of the waste;

(k) The actual elevation referenced to a United States Geological Survey mean sea level datum and location of test borings and core samplings;

(l) Injection and withdrawal wells;

(m) Any existing structures; and

(n) Alternate map and drawing scales may be approved by the cabinet.

(2) Site information. The applicant shall provide the following information regarding the potential site:

(a) Total acres of site;

(b) Acres of the site to be designed for disposal areas;

(d) Planned life of facility;

(e) A description of title, deed, or usage restrictions affecting the proposed permit area including a scaled drawing showing the current boundaries of all property proposed for development and buffer zones, and the ownership of these properties and all adjacent property; and

(f) The presence of any abandoned, reclaimed, active or inactive surface or subsurface mines or natural caves on the site.

Section 6. Geologic and Hydrogeologic Information.

(1) The administrative application shall include the following geologic information:

(a) A description of the type, texture, thickness and range in thickness of unconsolidated materials;

(b) A description of the regional bedrock geologic structure to include the regional stratigraphic strike and dip, the locations and attitudes of regional faults and folds and regional jointing trends;

(c) A description of the site specific geologic structure to include site specific stratigraphic strike and dip, the locations and attitudes of any faults or folds intersecting the site and the attitudes and spacing of joints;

(d) A brief description of the influence that fracture zones have on the movement of infiltrated water and groundwater;

(e) A minimum of two (2) geologic cross sections, using published data, bedrock outcrops and rock core boring information which shall be depicted on scaled drawings with vertical exaggeration, to adequately illustrate the geology of the site. The cross sections shall include:

The seasonal high groundwater table; and
Rock outcrop occurrences.

(f) A list of any extractable coal seams or other minerals beneath the site;

(g) A description of any active or inactive deep mines located beneath the site or within 1,500 feet of the site including depth to mined area, aerial extent of mined area and type of minerals mined (if coal, give the names of seams); and

(h) A map depicting the property, the proposed limits of waste and the area at least 1,500 feet from the limits of waste at a scale of one (1) inch equals 400 feet that shows the following:

Geologic units and rock outcrop occurrences;
Surface depressions, sinkholes and spring occurrences;
Location of wells used for water withdrawal and injection of fluids;
Location of rock core borings; and
Surface contours.

(2) The administrative application shall include the following hydrogeologic characterization:

(a) The hydrologic characteristics of the uppermost aquifer and the geologic units hydraulically connected to it, including field test data for hydraulic conductivity, storage coefficient and transmissivity, and groundwater hydraulic gradient and velocity. The description of these characteristics shall be based on multiple well aquifer tests, piezometer nest evaluation, core evaluation and other appropriate methods approved by the cabinet. In karst environments both diffuse and discrete flow conditions shall be characterized. The water quality characterization as specified in Section 11 of 401 KAR 48:300 shall be included. The application shall include data and the procedures and calculations used to determine these characteristics;

(b) Tracer studies. Where sites overlie fractured bedrock, weathered limestone or dolomite bedrock or where karst environments cannot be avoided, the cabinet may require tracer studies before finalizing the groundwater monitoring plan; and

(c) A survey and listing of residential springs and water wells within one (1) mile of the proposed waste boundaries. The survey shall determine the location of springs and wells which shall be shown on a map with their approximate elevation and depth, name of owner, age and usage of the spring or well, stratigraphic unit that the spring is located in or is constructed in, well construction, static well levels, spring or well yield, perceived water quality, and any other relevant data which can be obtained.

Section 7. Soils Information. The administrative application for a solid waste landfill shall contain a soils inventory consisting of a description of the total volume and source of borrow material available, and total estimated volume and source of required daily cover, interim cover, long term cover, final cover, and low permeability soils required by 401 KAR 48:060, 401 KAR 48:070, 401 KAR 48:080, 401 KAR 48:090, and 401 KAR 48:170. The administrative application shall include the following soils data as determined by the approved site investigation: location, depth, thickness, classification of soils for engineering purposes, particle size distribution, atterburg limits, optimum moisture, permeability, and recoverable volume in compacted cubic yards for each soil classification and permeability. The administrative application shall include a map at a scale of one (1) inch equals 400 feet depicting the distribution of the soils that is keyed to a list of the soils by engineering classification. The approximate volume and depth of each type of soil shall be recorded on the map.

Section 8. Siting Restrictions and Design Report for Landfills. The administrative application for landfills shall contain a report describing the design the applicant proposes for the facility to meet the siting, design and operating requirement restrictions in 401 KAR 47:030, 401 KAR 48:050, 401 KAR 48:060, 401 KAR 48:070, 401 KAR 48:080, 401 KAR 48:090 401 KAR 48:170 and be consistent with Section 4 of this administrative regulation. The report shall include a description of the engineering drawings to be developed by type and the proposed scale for each. The report shall include the proposed points of compliance as required in accordance with 401 KAR 48:300, Section 3. The design report shall address the proposed liner and cap design.

Section 9. Executive Summary. The administrative application shall include an executive summary pursuant to KRS 224.40-310.

(1) The written portion of the executive summary shall be in a format that may be understood by the average citizen and shall contain:

(a) The applicant's name and address;

(b) Directions to the site;

(d) Purpose of the application;

(e) Type of landfill, i.e., construction/demolition debris, residual, or contained;

(f) Acreage of the property and the area to be filled;

(g) Volume of fill stated in cubic yards;

(h) Source of waste by county or facility as appropriate, both in-state and out-of-state;

(i) A description of all waste, other than residential, to be disposed at the site;

(j) Anticipated operating life of the proposed landfill site reported in years;

(k) A description and the source of soils to be used for liner, cover material, and other purposes;

(l) General geology, i.e., limestone, coal field, etc., of the proposed site area;

(m) A description of the groundwater resources (aquifers and flow patterns);

(n) Approximate depth to groundwater and general groundwater use in the area;

(o) A description of surface water control measures;

(p) A description of the liner and cap;

(q) Leachate management methodology to include treatment and or disposal; and

(r) Any other information considered to be pertinent to the public interest or of concern to the solid waste management planning area, the applicant, or the cabinet.

(2) An area map, twenty-four (24) inches by thirty-six (36) inches, shall be provided depicting the proposed development plan. The map shall be prepared to include the facility plus 1,500 feet from the boundary of the proposed waste cells. The map shall show the following:

(a) Major highways and features;

(b) Site boundaries and waste limits;

(d) Any water supply intake shall be either shown or noted;

(e) Federally listed endangered and threatened species or candidate species and their habitat as identified by the Kentucky Nature Preserves Commission and the Kentucky Department for Fish and Wildlife Resources;

(f) The direction of groundwater flow;

(g) Location of groundwater users; and

(h) Property boundaries where they occur on the map showing the adjacent land owner's name.

(3) Graphics or engineering drawings shall be provided to show the following:

(a) Proposed landfill site prior to development;

(b) Anticipated landfill units and phases;

(c) Environmental protection measures including liners, cap, groundwater monitoring, surface water monitoring, silt ponds, etc.;

(d) Geologic setting of the site; and

(e) Proposed site entrance.

Section 10. Ownership Information. The administrative application shall contain a showing of the past compliance record for both the applicant and any other individual or entity designated to own or operate the facility by submitting the following:

(1) Organizational structure;

(a) If the applicant is a proprietorship, the applicant shall provide a detailed listing of:

The proprietors and their respective interests, whether ownership or otherwise; and
Any partnerships (general or limited), joint venture, or corporation in which the applicant holds a twenty-five (25) percent or more interest (whether ownership or otherwise);

(b) If the applicant is a partnership, either general or limited, the applicant shall provide a detailed listing of:

Each of the partners and their respective interests, whether ownership or otherwise;
Any corporation, joint venture, partnership (general or limited), or proprietorship in which any of the constituent partners of the applicant holds twenty-five (25) percent or more interest (whether ownership or otherwise); and
Any corporation, joint venture, proprietorship, or partnership (general or limited) which holds a twenty-five (25) percent or more interest (whether ownership or otherwise) in any of the nonindividual constituent partners comprising the applicant;

The officers, directors, and major stockholders;
Any corporation of which the applicant is either a subsidiary or which holds twenty-five (25) percent or more interest (either in stock or assets) in the applicant;
Any corporations which are either subsidiaries of the applicant or in which the applicant holds a twenty-five (25) percent or more interest (either in stock or assets); and
Any proprietorship, partnership (general or limited), or joint venture in which the applicant holds a twenty-five (25) percent or more interest, whether ownership or otherwise;

(d) If the applicant is a joint venture, a detailed listing of:

All other joint ventures, and the respective interests (whether ownership or otherwise) of each; and
Any proprietorship, partnership (general or limited), joint venture or corporation in which the applicant holds a twenty-five (25) percent or more interest (whether ownership or otherwise); and

(2) For every individual or other entity listed in subsection (1) of this section, a detailed listing of violations of federal or state laws, rules or administrative regulation, whether judicial or administrative, where proceedings are completed and have resulted in criminal convictions or civil or administrative fines as much as or more than $1000. The status of any pending action, whether judicial or administrative, shall also be submitted. This subsection shall apply to the requirements of the Clean Air Act (1955) as amended through December 1987, the Clean Water Act (1977) as amended through November 1988, the Surface Mine Reclamation Act (1977) as amended through July 1987, the Resource Conservation and Recovery Act (1976) as amended through November 1988, the Occupational Safety and Health Act (1970) as amended through November 1984, KRS Chapter 224, KRS Chapter 350 and KRS Chapter 352; and

(3) For each and every individual or other entity listed in subsection (1) of this section, a current financial statement prepared by a certified public accountant.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.44, 224.99, 50 C.F.R. Part 424
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt rules and administrative regulations for the management, processing or disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing or disposal of waste obtain a permit. This chapter establishes the permitting standards for solid waste sites or facilities, the standards applicable to all solid waste sites or facilities, and the standards for certification of operators. An overview of the permit program is found in Section 1 of 401 KAR 47:080. This administrative regulation sets forth the general contents of the administrative application for solid waste landfills excluding landfarming.
History: 401 KAR 047:180. 16 Ky.R. 1759; 2199; 2361; eff. 5-8-1990; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 47:190 Contents of the technical application for solid waste landfills {#sec-401-kar-47-190 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:190}

Section 1. Objective and General Requirements. The objectives of the technical application are to specify technical standards. The technical application contains the facility design and narrative. The cabinet shall evaluate the application for compliance with the environmental performance standards in 401 KAR 47:030 and other applicable administrative regulations. The applicant shall submit the technical application in a format approved by the cabinet and signed in accordance with Section 6 of 401 KAR 47:160. Engineering drawings, specifications and studies shall be signed and sealed by a professional engineer registered in Kentucky. The contents of the technical application contains information that is part of a complete application as required by KRS 224.40-310. The contents of the technical application shall be accurate and complete at the time the cabinet makes its preliminary determination to issue a solid waste permit.

Section 2. Design Plans.

(1) An applicant for a solid waste landfill permit shall submit engineering plans showing the design of the site. The engineering plans shall meet the design requirements of 401 KAR 48:060 for construction/demolition debris landfills, 401 KAR 48:070 and 401 KAR 48:080 for contained landfills or 401 KAR 48:170 for residual landfills. The applicant shall submit copies of the application including engineering drawings in accordance with Section 1(4) of 401 KAR 47:160.

(2) At a minimum, each drawing set in the application shall include the following drawings:

(a) A drawing of the entire site on one (1) sheet showing:

Current site conditions;
Site development plan including buffer zones;
Location of environmental monitoring points for surface water, groundwater and methane; and
Baselines.

(b) Site plans drawn to a scale of one (1) inch equals 100 feet unless an alternative scale has been approved showing:

Development plan;
Location of environmental monitoring points for surface water, groundwater and methane; and
Baseline or off-set baseline;

(c) Cross-sections at 100 foot intervals of each baseline at a scale of one (1) inch equals ten (10) feet vertically and one (1) inch equals 100 feet horizontally;

(d) Drawing of the profile along each baseline; and

(e) Other drawings as needed to properly depict the site's proposed development and details of construction design and construction.

(3) The applicant shall use the terminology of this subsection to name and label elements of the solid waste landfills. The plans and reports shall be organized and referenced using the following:

(a) Facility shall be the total area under permit;

(b) Unit shall be the highest named element within the facility;

(c) Phase shall be a subdivision of a unit and shall be the smallest element designated for the purpose of financial assurance as required by KRS 224.40-650; and

(d) Working area shall be a subdivision of a phase.

(4) Typical details shall be included in the plans showing the features of cell, lifts, liners, daily cover, interim cover, long-term cover and final cover.

(5) The plans shall show the working areas, phases and units and the order that each shall be filled. The plan shall include volume data for each phase and unit.

Section 3. Narrative.

(1) An applicant for a solid waste landfill permit shall submit a design narrative. The narrative shall address how the application meets the requirements of 401 KAR 47:030, 401 KAR 48:050, and 401 KAR 48:060 for construction/demolition debris landfills; 401 KAR 47:030, 401 KAR 48:050, 401 KAR 48:070 and 401 KAR 48:080 for contained landfills; or 401 KAR 47:030, 401 KAR 48:050 and 401 KAR 48:170 for residual landfills. The narrative shall also include the construction quality control plan required by Section 6 of this administrative regulation and the quarterly report specifications required by Section 8 of this administrative regulation.

(2) An applicant for a solid waste landfill permit shall submit an operations narrative describing how the operational requirements of 401 KAR 48:060 for a construction/demolition debris landfill, 401 KAR 48:090 for a contained landfill or 401 KAR 48:170 for a residual landfill shall be met.

Section 4. Closure, Closure Care and Performance Bond.

(1) An applicant for a solid waste landfill permit shall submit closure and closure care plans meeting the requirements of 401 KAR 48:060 for a construction/demolition debris landfill, 401 KAR 48:070 through 401 KAR 48:090 for a contained landfill and 401 KAR 48:170 for a residual landfill. Design specifications for the cap shall be included.

(2) The applicant shall submit a closure and closure care cost estimate for the plans in subsection (1) of this section consistent with the requirements of 401 KAR 48:310.

(3) Upon approval of the permit application and before the issuance of the construction/ operating permit, the applicant shall submit the performance bond for closure and closure case which meets the requirements of 401 KAR 48:310.

Section 5. Surface Water and Groundwater Monitoring and Corrective Action Plan. An applicant for a solid waste landfill permit shall submit a surface water and groundwater monitoring plan meeting the requirements of 401 KAR 48:300.

Section 6. Construction Quality Control Plan.

(1) An applicant for a solid waste landfill permit shall submit a construction quality control plan that shall ensure the site or facility is constructed in a manner conforming to the requirements in Sections 7 and 8 of this administrative regulation and containing the following elements:

(a) The persons responsible for each part of the quality control plan;

(b) Frequencies and specifications for inspections and tests;

(d) Survey control system of plan views and cross-sections for such inspections and tests; and

(e) A statement to be used for certifying that the quality control plan was followed by the owner or operator.

(2)

(a) The construction quality control plan shall provide assurance that the layers of the homogeneous low permeability soil liners are compacted using nonvibratory compactors with full depth penetrating feet with a minimum of six (6) passes per soil layer. The compactor ballast shall be varied to prevent reaching the desired proctor density with less than six (6) passes. The feet length shall be one (1) inch longer than the loose soil layer thickness.

(b) Smooth rollers may be used at the end of each work period to seal the surface from rain infiltration.

Section 7. Landfill Liner Requirements. An applicant for a solid waste landfill permit shall submit liner designs in accordance with 401 KAR 48:080 for contained landfills, 401 KAR 48:060 for construction/demolition debris and 401 KAR 48:170 for residual landfills.

Section 8. Landfill Recordkeeping and Reporting. An applicant for a solid waste landfill permit shall submit plans for a recordkeeping and reporting system. The plan shall meet the following requirements:

(1) A quarterly report shall be submitted to the cabinet on a form approved by the cabinet no later than the 15th of the month following the end of each quarter year. The quarters shall end on March 31, June 30, September 30 and December 31 of each year. The report shall contain the following:

(a) Description of construction activities during the quarter;

(b) Monthly volume of waste received from each source;

(d) Environmental monitoring results including surface water, groundwater, methane, and other permit conditions; and

(e) The quantity and concentration of leachate removed from the site, where disposed, and the method of disposal. The concentration shall be determined using appropriate parameters from Section 10(2) of 401 KAR 48:300 for construction/demolition debris landfills and Section 10(3) of 401 KAR 48:300 for contained landfills.

(2)

(a) An annual survey shall be conducted by the owner operator to determine remaining landfill volume which may be used for waste disposal. The quantity of waste disposed per day shall be determined by dividing the total waste received in one (1) year by 365 calendar days. The survey shall be conducted annually and the results shall be submitted to the cabinet no later than sixty (60) days following the actual survey. When aerial photography is used, the survey results shall be provided within ninety (90) days of the aerial photography. This survey shall bear the seal and signature of the registered professional land surveyor or professional engineer who performed the survey. The owner or operator shall notify the cabinet no less than fifteen (15) calendar days prior to the date the survey shall be conducted.

(b) The annual survey shall be made between January 1 and May 1 each year and shall be submitted to the cabinet within sixty (60) days. The annual survey shall contain the following information:

Cross-sections on 100 foot intervals showing current waste placement and proposed final contours; and
Remaining capacity in cubic yards.

(3) Surface water and groundwater sample shall be collected and analyzed according to the following criteria:

(a) Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity.

(b) The owner or operator shall retain records of all monitoring information, copies of all reports required by the permit, and records of all data used to complete the application for the permit, for a period of at least three (3) years from the date of the sample, measurement, report, certification, or application. This period may be extended by request of the cabinet at any time. In addition, the owner or operator shall maintain records from all groundwater monitoring wells and associated groundwater surface elevations, for the active life of the facility, and for the closure care period as well.

Date, exact place, and time of sampling or measurements;
Individual who performed the sampling or measurements;
Date analyses were performed;
Individual who performed the analyses;
Analytical techniques or methods used; and
Results of such analyses.

(4) All waste entering a contained landfill shall be weighed prior to disposal.

(5) The owner or operator of a contained landfill shall keep permanent records of the source, disposal location and quantity of any spill residues and limited quantity generator hazardous wastes, and records as to the source and quantity of all other wastes disposed of at the contained landfill. These records shall be available for cabinet inspection and shall be summarized in a report and submitted to the cabinet with the annual report or request for permit renewal.

Section 9. Alternative Specifications. Alternative specifications may be used only after approval by the cabinet upon a demonstration by a qualified registered professional engineer that they will result in performance with regard to safety, stability and environmental protection equal to or better than that resulting from designs complying with the specifications of this administrative regulation.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt rules and administrative regulations for the management, processing or disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing or disposal of waste obtain a permit. This chapter establishes the permitting standards for solid waste sites or facilities, the standards applicable to all solid waste sites or facilities, and the standards for certification of operators. An overview of the permit program is found in Section 1 of 401 KAR 47:080. This administrative regulation sets forth the general content requirements for a technical application for a solid waste landfill.
History: 401 KAR 047:190. 16 Ky.R. 1763; 2203; 2365; eff. 5-8-1990; Crt eff. 10-9-2018; Crt eff. 10-1-2025.

401 KAR 47:205 Contents of the application for petroleum-contaminated soil treatment facilities {#sec-401-kar-47-205 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:205}

Section 1. Definitions.

(1) "Certifying engineer" means a "professional engineer," as defined by KRS 322.010(3), who implements the petroleum-contaminated soil treatment facility construction quality assurance plan.

(2) "Construction progress report" means the written notice from the applicant to the cabinet that the biopile liner system and the petroleum-contaminated soil treatment facility is completed.

(3) "Petroleum-contaminated soil" means silt, sand, clay, gravel, or other earthen material; or asphalt, concrete, or absorbent materials containing hydrocarbon concentrations above the levels established in 401 KAR 48:205, Section 6, Table 3, but does not exhibit a hazardous characteristic or is not a listed hazardous waste as defined in 401 KAR Chapter 31.

(4) "Petroleum-contaminated soil treatment facility" means a solid waste site or facility where petroleum-contaminated soil is treated to reduce contaminant concentrations to or below the levels established in 401 KAR 48:205, Section 6, Table 3.

Section 2. Objective and General Requirements.

(1) This administrative regulation shall apply to petroleum-contaminated soil treatment facilities.

(2) Designs, reports, and plans constituting the public practice of geology, as defined by KRS 322A.010(3), shall be developed by a person registered as established in KRS Chapter 322A, except as established in KRS 322A.080.

Section 3. Applicability and Exemptions.

(1) Except as provided in subsection (2) of this section, this administrative regulation shall apply to all applicants for a petroleum-contaminated soil treatment facility.

(2) Owners or operators of petroleum-contaminated soil treatment facilities operating under a Class III landfarming permit, in effect prior to October 6, 2011, shall be exempt from the requirements of 401 KAR 48:205 and this administrative regulation unless:

(a) The facility is required to perform groundwater corrective action in accordance with 401 KAR 48:300, Section 8;

(b) A major modification application is filed with the cabinet to expand the waste boundary, in which case the new area shall meet the requirements of 401 KAR 48:205 and this administrative regulation; or

Section 4. Application Procedures for Petroleum-contaminated Soil Treatment Facility Permits. In order to apply for a petroleum-contaminated soil treatment facility permit, the applicant shall first submit a completed and notarized form DEP 7128, Notice of Intent to Apply for a Petroleum Contaminated Soil Treatment Facility Permit (NOI).

(1) The NOI shall contain names, addresses, telephone numbers, and contact information for the applicant;

(a) If the operator is not the owner of the property where the treatment facility will be located, the operator and owner shall be co-applicants; and

(b) If the applicant is a government agency, corporation, company, or partnership, include the name, address, telephone number, and contact information for the process agent or contact individual.

(2) The NOI shall be signed in accordance with 401 KAR 47:160, Section 6.

(3)

(a) Once the NOI is complete, the cabinet shall make a decision to approve or deny.

(b) If the cabinet approves the NOI, the applicant shall perform the geological site investigation in accordance with the approved plan contained in the permit application.

(4)

(a) Once the geological site investigation is complete, the applicant shall submit a completed and notarized form DEP 7129, Application for a Petroleum Contaminated Soil Treatment Facility Permit which shall specify standards for the construction and operation of the petroleum-contaminated soil treatment facility in accordance with the requirements established in 401 KAR 48:205.

(b) The application shall be typed or printed legibly in permanent ink.

(c)

The application shall contain the names, addresses, telephone numbers, and contact information for the applicant; and
If the applicant is a government agency, corporation, company, or partnership, include the name, address, telephone number, and contact information for the process agent or contact individual.

(d)

The applicant shall submit and sign the application in accordance with 401 KAR 47:160, Section 6; and
If the operator is not the owner of the property where the treatment facility will be located, the operator and owner shall be co-applicants.

(e) The applicant shall deliver a copy of the application to the county or local governing body where the petroleum-contaminated soil treatment facility will be located prior to submittal to the cabinet.

(f) The contents of the application shall be accurate and complete upon cabinet determination to issue a solid waste permit.

(g) Issuance of construction and construction - operation permits:

a. The cabinet shall issue a construction permit for no more than five (5) years if, after completing the review of a complete petroleum-contaminated soil treatment facility permit application, the applicant for the permit has met the requirements for application in accordance with KRS 224 Subchapter 40; 401 KAR 47:207, 401 KAR 48:205, 48:206, 48:207, 48:208 and this administrative regulation.

b. The applicant shall maintain a construction permit in full force and effect until the facility has been constructed and approved by the cabinet.

A construction - operation permit shall be issued by the cabinet if:

a. The applicant submits the completed and notarized form DEP 8064, Construction Progress Report for a Petroleum Contaminated Soil Treatment Facility:

(i) Certifying that the petroleum-contaminated soil treatment facility construction has been completed in accordance with the construction permit; and

(ii) Including the findings of the certifying engineer regarding the quality assurance and quality control testing in the Construction Progress Report for a Petroleum Contaminated Soil Treatment Facility;

b. A representative of the cabinet inspects the site and verifies in writing within thirty (30) days of the inspection that the site has been developed according to plans and that necessary equipment is available to operate the site;

c. The financial assurance for closure as established in Section 9 of this administrative regulation has been obtained by the applicant; and

d. The applicant submits a certification by the certifying engineer that the facility is constructed in accordance with the approved plans and specifications.

(5) In order to continue operating after March 1, 2013, an owner or operator of an existing petroleum-contaminated soil treatment facility operating under a current permit shall obtain a petroleum-contaminated soil treatment facility permit.

(6) For a major modification to an existing petroleum-contaminated soil treatment facility permit as established in 401 KAR 47:130, Section 3 that:

(a) Does not increase the area monitored by the groundwater monitoring system as established in 401 KAR 48:300, Section 4 the owner or operator shall:

Submit to the cabinet a completed and notarized form DEP 7129, Application for a Petroleum Contaminated Soil Treatment Facility Permit; and
Comply with the permit application procedures as established in this section;

(b) Does increase the area monitored by the groundwater monitoring system as established in 401 KAR 48:300, Section 4 the owner or operator shall submit to the cabinet a completed and notarized:

DEP 7128, Notice of Intent to Apply for a Petroleum Contaminated Soil Treatment Facility; and
DEP 7129, Application for a Petroleum Contaminated Soil Treatment Facility Permit; and

Section 5. Technical Contents of the Notice of Intent to Apply for a Petroleum Contaminated Soil Treatment Facility Permit. The form DEP 7128, Notice of Intent to Apply for a Petroleum Contaminated Soil Treatment Facility (NOI) shall contain the geological site investigation plan, which shall be used in compiling the information for the application for a petroleum-contaminated soil treatment facility permit, including:

(1) An original current USGS seven and one-half (7.5) minute topographic quadrangle map showing:

(a) Latitude and longitude measurements for the entrance to the site;

(b) The current and proposed waste treatment areas;

(d) The area within one (1) mile of the proposed waste boundary;

(2) A review of information pertaining to the area within one (1) mile of the proposed waste boundary, including:

(a) Geology including karst features, structural features, and lithologic description;

(b) Hydrogeology of the groundwater resources and aquifers that shall be monitored;

(d) Caves and excavations, including mined or quarried areas;

(3) A rock coring plan that includes the following:

(a) The data needed to evaluate the geologic features to the level of the first confining layer below the uppermost aquifer and all geologic units hydraulically connected to the uppermost aquifer;

(b) The data to describe the site geology, the local aquifers that are hydrogeologically associated with the site, and the transmissivity of the aquifers; and

(4)

(a) Directions to be used for closure of the rock core borings using grout.

(b) The closure of the rock corings shall be acknowledged in writing by a professional engineer or registered geologist as established in KRS 322 and 322A;

(5) The following minimum surveying accuracy to be used to determine the location of the rock corings and the soil borings during the subsurface investigation:

(a) One-tenth (0.1) of one (1) foot vertical; and

(b) One (1) foot horizontal;

(6)

(a) A procedure for written documentation if the locations of actual subsurface borings or corings are adjusted in the field; and

(b) The adjusted excavation locations shall achieve the criteria of this section of this administrative regulation;

(7)

(a) The geotechnical investigation map shall show the location of a minimum of four (4) rock core borings.

(b) For sites with more than fifty (50) acres, an additional rock core boring shall be required for each additional twenty-five (25) acres or part thereof.

(d) Additional rock core borings shall be required when four (4) rock core borings fail to characterize the geology; and

(8) Other informational sources researched for site specific attributes, including:

(a) Surface mining permits;

(b) Subsurface excavation and mining permits; and

Section 6. Technical Contents of the Permit Application for a Petroleum Contaminated Soil Treatment Facility. The following information shall be submitted on or with form DEP 7129, Application for a Petroleum Contaminated Soil Treatment Facility Permit:

(1) Facility information including location, total acreage, and maximum soil treatment volume in cubic yards;

(2) An original, current seven and one-half (7.5) minute United States Geological Survey quadrangle topographic map with the proposed facility boundary and the locations of all of the wells and springs listed in subsection (19) of this section clearly marked;

(3) A site map drawn to scale and prepared by a professional engineer or land surveyor, licensed pursuant to KRS Chapter 322, showing:

(a) North arrow;

(b) Buffer zones;

(d) Treatment areas;

(e) Storage areas;

(f) Access roads;

(g) Fences;

(h) Gates;

(i) Floodplains;

(j) Floodway;

(k) Wells and springs;

(l) Surface water bodies including ponds;

(m) Property lines;

(n) Monitoring wells; and

(o) Surface water monitoring points;

(4) A certified copy of the recorded deed and a copy of declaration of restrictions or easements affecting the proposed permit area;

(5) A scaled deed map showing the current boundaries of all property proposed for the facility development and buffer zones, the ownership of these properties, and the ownership of properties adjacent to the proposed facility property boundary;

(6)

(a) The applicant shall provide a copy of the lease or proposed lease showing the operator's right of entry during construction, operation, and closure of the petroleum-contaminated treatment facility.

(b) The proposed lease shall be executed prior to permit issuance;

(7) A narrative of the methods that the owner or operator shall use to comply with the following environmental performance standards established in 401 KAR 47:030:

(a) Floodplain restrictions;

(b) Endangered and threatened species;

(d) Polychlorinated biphenyls;

(e) Air;

(f) Safety;

(g) Public nuisance; and

(h) Wetlands;

(8) A narrative description of the liner design and quality assurance plan as established in 401 KAR 48:205, Section 3;

(9) A detailed contingency plan for emergencies including fires, equipment failure, and provisions for temporary storage of waste;

(10) A description of the type of hydrocarbons and contaminants in the petroleum-contaminated soil as listed in 401 KAR 48:205, Section 5, Table 1;

(11) A description of the type of media that contains the hydrocarbons;

(12)

(a) Characterization of the petroleum-contaminated soil as required in 401 KAR 48:205, Section 5, to verify the information in subsection (11) of this section;

(b) Copies of the laboratory analysis reports prepared for waste characterization;

(13) A written description of the waste inspection program to ensure that only permitted petroleum-contaminated soils are accepted for treatment as established in 401 KAR 48:205, Section 4;

(14) A description of the treatment process and equipment to be used to meet the requirements established in 401 KAR 48:205, Section 6 including the following items:

(a) Equipment to be used including manufacturer performance data;

(b) Use of fertilizers, inoculants, or enzymes;

(c) Monitoring plan including sampling frequency and analysis to verify the reduction of contaminants to or below the levels in 401 KAR 48:205, Section 6, Table 3;

(d) Estimated times to complete treatment;

(e) Sampling plan to document that treatment has been completed in accordance with 48:205, Section 6, Table 3; and

(f) Storage of soil meeting the treatment standards of 48:205, Section 6, Table 3;

(15) Treated soil specifications for the constituents found during waste characterization that are not listed in 401 KAR 48:205, Section 6, Table 3;

(16) A marketing and distribution plan for the treated media;

(17) The design and specifications for the roofed structure containing a concrete pad or liner as established in 401 KAR 48:205, Section 3;

(18) The results from the geological site investigation required in the approved NOI shall include the following:

(a) A description of the regional bedrock geologic structure to include the regional stratigraphic strike and dip, the locations and attitudes of regional faults and folds, and regional jointing trends;

(b) A description of the site specific geologic structure to include:

Site specific stratigraphic strike and dip;
The locations and attitudes of faults or folds intersecting the site; and
The attitudes and spacing of joints;

(d) A minimum of two (2) geologic cross sections, using published data, bedrock outcrops, and rock coring information depicted on scaled drawings with vertical exaggeration, and shall include the following:

The seasonal high groundwater table; and
Rock outcrop occurrences; and

(e) A map depicting the property, the proposed limits of waste, and the area at least 1,500 feet from the limits of waste at a scale of one (1) inch equals 400 feet that shows the following:

Geologic units, and rock outcrops;
Surface depressions, sinkholes, and springs;
Faults, folds and structural contours;
Location of wells used for water withdrawal, and injection of fluids;
Location of rock core borings; and
Surface contours;

(19) The following hydrogeologic characterization:

(a)

The hydrologic characteristics of the uppermost aquifer and the geologic units hydraulically connected to it, including field test data for hydraulic conductivity, storage coefficient, and transmissivity; and groundwater hydraulic gradient and velocity.
The description of these characteristics shall be based on multiple well aquifer tests, piezometer nest evaluation, core evaluation, and other methods common to the practice of geology pursuant to KRS 322A.
In karst terrain, both diffuse and discrete flow conditions shall be characterized.
The groundwater quality characterization, as established in 401 KAR 48:300, Section 3 shall be included.
The application shall include data, procedures, and calculations used to determine these characteristics;

(b) Tracer studies. If the petroleum-contaminated soil treatment facility overlies fractured bedrock, weathered limestone, or dolomite bedrock; or where karst terrain cannot be avoided, the cabinet shall require tracer studies before finalizing the groundwater monitoring plan using springs as monitoring points as established in 401 KAR 48:300, Section 4; and

(c)

A survey and listing of residential springs and water wells within one (1) mile of the proposed waste treatment areas.
The survey shall determine the location of springs and wells, which shall be shown on a map with their approximate elevation, depth, name of owner, age, and usage of the spring or well, stratigraphic unit, well construction, static well levels, spring or well yield, and water quality;

(20)

(a) Groundwater and surface water monitoring plans prepared in accordance with Section 7 of this administrative regulation.

(b) Groundwater and surface water monitoring plans shall include identification and labeling of monitoring wells and surface water monitoring points on the site map required by subsection (4) of this section;

(21) Certification that a copy of the application has been delivered to the governing body of the solid waste management area in which the petroleum-contaminated soil treatment facility will be located; and

(22) A plan for the closure of the petroleum-contaminated soil treatment facility describing how the property will be restored or improved in accordance with 401 KAR 48:205, Section 7.

Section 7. Public Information Process for Petroleum-contaminated Soil Treatment Facilities. The cabinet and applicant shall comply with the public information requirements for petroleum-contaminated soil facilities established in 401 KAR 47:207.

Section 8. Surface Water and Groundwater Monitoring, Assessment Monitoring, and Corrective Action Plan.

(1) The form DEP 7129, Application for a Petroleum Contaminated Soil Treatment Facility Permit, shall include a surface water and groundwater monitoring plan as established in 401 KAR 48:300, Sections 2 and 4.

(2) As established in 401 KAR 48:300, Section 8, an owner or operator of a petroleum-contaminated soil treatment facility shall submit an assessment or corrective action plan, if required.

Section 9. Alternative Specifications. Alternative specifications may be used. If alternative specifications are used, they shall be used only after approval by the cabinet upon a certification by a professional engineer or, for geological studies, a professional engineer or a registered geologist, as established in KRS 322 and 322A, that the alternative specifications will result in performance with regard to safety, stability, and environmental protection equal to or better than that resulting from designs complying with the specifications of this administrative regulation.

Section 10. Financial Assurance.

(1) The owner or operator shall comply with the closure financial assurance requirements established in 401 KAR 48:310 and KRS 224.40-650.

(2) The amount of the closure financial assurance shall be equal to the closure cost estimate amount specified in the permit as established in 401 KAR 48:205, Section 7.

Section 11. Incorporation by Reference.

(1) The following materials are incorporated by reference:

(a) "Notice of Intent to Apply for a Petroleum Contaminated Soil Treatment Facility Permit", DEP 7128, November 2016;

(b) "Application for a Petroleum Contaminated Soil Treatment Facility Permit", DEP 7129, November 2016; and

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. This material is also available on the Division of Waste Management's Web site at eec.ky.gov/environmental-protection/waste.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.99, 322.010(3), 322A.010(3), 322A.080
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the cabinet to promulgate rules and administrative regulations for the management, processing, or disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing, or disposal of waste obtain a permit. This administrative regulation establishes the application requirements for a petroleum-contaminated soil treatment facility.
History: 401 KAR 047:205. 37 Ky.R. 2778; 38 Ky.R. 290; 550; eff. 10-6-2011; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Crt eff. 10-9-2018; TAm eff. 5-7-2019; Crt eff. 10-1-2025.

401 KAR 47:207 Public information procedures for petroleum-contaminated soil treatment facilities {#sec-401-kar-47-207 omnilex-key=us-ky-regs-official--title-401--401 KAR 47:207}

Section 1. Definitions.

(1) "Petroleum-contaminated soil" means silt, sand, clay, gravel, or other earthen material; or asphalt, concrete, or absorbent materials containing hydrocarbon concentrations above the levels established in 401 KAR 48:205, Section 6, Table 3, but does not exhibit a hazardous characteristic or is not a listed hazardous waste as defined in 401 KAR Chapter 31.

(2) "Petroleum-contaminated soil treatment facility" means a solid waste site or facility where petroleum-contaminated soil is treated to reduce contaminant concentrations to or below the levels established in 401 KAR 48:205, Section 6, Table 3.

Section 2. Applicability. The requirements in this administrative regulation apply to the following applications:

(1) A new petroleum-contaminated soil treatment facility permit as established in 401 KAR 47:205; or

(2) A major modification to an existing petroleum-contaminated soil treatment facility permit that is an increase in the amount of storage or treatment capacity, area, or volume.

Section 3. Permit Application and Public Notice Process.

(1) Upon receipt of DEP 7128, Notice of Intent to Apply for a Petroleum-contaminated Soil Treatment Facility, as incorporated by reference in 401 KAR 47:205, Section 10, or upon receipt of a request for a major modification to a petroleum-contaminated soil treatment facility permit in DEP 7129, Application for a Petroleum-contaminated Soil Treatment Facility Permit, as incorporated by reference in 401 KAR 47:205, Section 10, the cabinet shall provide a public notice that includes the items established in Section 4(1)(a) through (d) of this administrative regulation.

(2) Once the review in 401 KAR 47:205, Section 3(4)(g) is complete, the cabinet shall tentatively decide whether to issue the draft construction permit or to deny the application.

(a) If the cabinet makes a tentative determination to issue a construction permit, a draft permit shall be prepared that shall include the application by reference and contain the following information:

The proposed design and specifications; and
Proposed conditions to protect the human health and environment as established in 401 KAR 47:030.

(b) The draft permit shall be based on the administrative record as established in Section 7 of this administrative regulation.

(3) Upon completion of the draft permit, the cabinet shall comply with the public information procedures as established in Sections 4, 5, 6, and 8 of this administrative regulation.

(4) The cost of public information procedures established in subsection (3) of this section that are incurred by the cabinet shall be paid by the applicant.

(5) If the cabinet makes a determination to issue the final construction permit, a permit shall be issued that shall include the application by reference and contain the following information:

(a) The design and specifications; and

(b) Conditions to protect the human health and the environment as established in 401 KAR 47:030.

Section 4. Public Notice.

(1) A public notice shall contain the following information:

(a) Name, address, and telephone number of the division processing the permit action for which notice is being given;

(b) Name, address, and telephone number of the applicant and, if different, of the facility or activity regulated by the permit;

(c) A brief description of the petroleum-contaminated soil treatment facility activities described in the permit application;

(d) A brief description of the proposed location of the petroleum-contaminated soil treatment facility including a description of the primary access routes;

(e) The location of a repository for documents in the county in which the petroleum-contaminated soil treatment facility is proposed or exists, including copies of the draft permit or permit, fact sheet and application;

(f) The time and place of a hearing if already scheduled and procedures by which the public may participate in the final permit decision;

(g) The statement: "The cabinet has issued a draft construction permit for a petroleum-contaminated soil treatment facility. A person may comment on the draft permit within thirty (30) days of the publication of this notice as established in 401 KAR 47:207, Section 3 or request a hearing pursuant to 401 KAR 47:207, Section 8. If the cabinet issues a final construction permit, any person who may be aggrieved by the permit issuance shall have thirty (30) days to file a petition as established in KRS 224.10-420(2)."; and

(h) Additional information as established in KRS 224.40-305.

(2) Public notices may describe more than one (1) permit or permit action.

(3) Public notices shall be of a size to include not less than two (2) column widths for advertising and shall be in a display format.

(4) Public notices issued by the cabinet shall be distributed by the following methods:

(a) By mailing a copy of a notice to the following persons:

The applicant;
Other agencies that the cabinet knows have issued or are required to issue an environmental permit for the same facility or activity;

a. Federal and state agencies with jurisdiction over fish, shellfish, and wildlife resources;

b. The Kentucky Heritage Council; and

c. Other government authorities with jurisdiction over the petroleum-contaminated soil treatment facility, including other affected states;

a. Persons on a cabinet mailing list that has been compiled by notifying the public of the opportunity to be put on the mailing list through periodic publication; and

b. Individuals shall request in writing to be on the list;

a. Adjacent property owners to the proposed or existing facility.

b. If, prior to issuance of the final construction permit, an adjacent property owner provides written evidence to the cabinet that the adjacent property owner did not receive public notice as required in clause a. of this subparagraph due to incorrect or incomplete information in the petroleum-contaminated soil treatment facility permit application, the cabinet shall send a certified letter to the adjacent property owner and allow that property owner an additional thirty (30) days to provide public comment from the date of receipt of the certified letter; and

(b) Publication of a notice in a daily or weekly major local newspaper of general circulation where the proposed or permitted site is located.

Section 5. Public Comment Period. The public comment period shall allow at least thirty (30) days for public comment during which an interested person may do the following:

(1) For the public notices established in Section 3(1) of this administrative regulation, an interested person may request a public hearing as established in Section 8 of this administrative regulation;

(2) For the public notices established in Section 3(3) of this administrative regulation:

(a) Submit written comments on the application or draft permit; or

(b) Request a public hearing as established in Section 8 of this administrative regulation; or

(3) For issuance of the permit in Section 3(5) of this administrative regulation, file a petition for an adjudicative hearing within thirty (30) days of the date of issuance as established in KRS 224.10-420(2).

Section 6. Fact Sheet.

(1)

(a) A fact sheet shall be prepared by the cabinet for a draft permit for a new or major modification to a petroleum-contaminated soil treatment facility as established in Section 2 of this administrative regulation.

(b) The cabinet shall send this fact sheet to the applicant and to a person if requested.

(2) The fact sheet shall include:

(a) A brief description of the petroleum-contaminated soil treatment facility permit application that is the subject of the permit action;

(b)

The type and quantity of petroleum-contaminated soil that is proposed to be and is being stored or treated; and
A summary of the facility design including the petroleum-contaminated soil treatment area, equipment, structures, liner, and leachate collection system specification;

(c) A brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions and appropriate supporting references to the administrative record as established in Section 7 of this administrative regulation;

(d) Reasons why a requested variance as established in 401 KAR 30:020, Section 2 or other alternative to required standards is justified in the draft permit;

(e) The procedures for issuing a final decision on the draft permit including:

The beginning and ending dates of the comment period established in Section 8 of this administrative regulation, and the address where comments shall be received;
Procedures for requesting a hearing, and the nature of that hearing; and
Procedures including public participation in the final decision; and

(f) The name and telephone number of a person to contact for additional information.

Section 7. Administrative Record for Permits.

(1) The provisions of a draft permit prepared by the cabinet as established in Section 3(1) of this administrative regulation shall be based on the administrative record.

(2) The administrative record shall consist of:

(a) The application and supporting data furnished by the applicant;

(b) The draft permit;

(d) Documents cited in the fact sheet; and

(e) Documents contained in the supporting file for the draft permit.

(3)

(a) Material readily available at the cabinet need not be physically included at the public repository if the fact sheet contains a specific reference to the material.

(b) Published material need not be physically included at the public repository if it is specifically referred to in the administrative record.

Section 8. Public Hearings.

(1) The cabinet shall hold a public hearing if public interest exists concerning a notice of intent to apply for petroleum-contaminated soil treatment facility permit or an application for petroleum-contaminated soil treatment facility permit.

(2) If a public hearing is held, the secretary of the cabinet shall designate a presiding officer for the hearing who shall be responsible for its scheduling and orderly conduct.

(3) The presiding officer shall allow:

(a) Persons to submit oral or written statements;

(b) A five (5) minute limit on the time allowed for oral statement by each individual; and

(c)

The public comment period established in Section 5 of this administrative regulation to automatically be extended to the close of the public meeting.
The cabinet shall not extend the thirty (30) day period to file a petition for an adjudicative hearing regarding permit issuance as established in KRS 224.10-420(2).

(4) A written transcript of the hearing shall be made available to a person upon payment of the cost of copying.

Section 9. Adjudicative Hearing. The cabinet shall hold an adjudicative hearing as established in KRS 224.10-420(2) if a petition in opposition to a permit and a request for an adjudicative hearing is received within thirty (30) days of the issuance of a final construction permit as established in Section 3(5) of this administrative regulation.

Section 10. Response to Comments.

(1) Upon cabinet issuance of a final construction permit, the cabinet shall issue a response to comments, which:

(a) Specifies which provisions of the draft permit have been changed in the final permit decision and the reasons for the change; and

(b) Describes and responds to comments on the proposed permit raised during the public comment period or during a public hearing.

(2) The cabinet shall send the responses to comments to commenters.

(3) The cabinet shall document that copies have been sent to each commenter and make copies available to the public upon written request.

Section 11. Issuance and Effective Date of Permit.

(1)

(a) After the close of a public comment period as established in Section 5(2) of this administrative regulation and a hearing on a draft permit held in accordance with Section 8 of this administrative regulation, the cabinet shall issue a final construction permit decision as established in Section 3(5) of this administrative regulation.

(b) For the purposes of this section, a final construction permit decision means a final decision to issue, deny, modify, or terminate a permit.

(2) A final construction permit decision shall become effective on the date issued by the cabinet.

(3) The cabinet shall provide notice of the final construction permit to persons on the mailing list as established in Section 4(4)(a) of this administrative regulation.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.50, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the cabinet to promulgate rules and administrative regulations for the management, processing, or disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing, and disposal of waste obtain a permit. This administrative regulation establishes permit issuance and public information procedures for petroleum-contaminated soil treatment facilities.
History: 37 Ky.R. 2781; 554; eff. 10-6-2011; Crt eff. 10-9-2018.

Chapter 48 Standards for Solid Waste Facilities

Section 1. Definitions. Unless otherwise specifically defined in KRS Chapter 224 or otherwise specifically indicated by context, terms in 401 KAR Chapter 48 shall have the meanings given in this section.

(1) "100-year floodplain" means any land area that is subject to a one (1) percent or greater chance of flooding in any given year from any source.

(2) "Above ground tank" means a device meeting the definition of "tank" and that is situated so that the entire surface area of the tank is completely above the plane of the adjacent surrounding surface and the entire surface area of the tank (including the tank bottom) is able to be visually inspected.

(3) "Active life" of a facility means the period from the initial receipt of waste at a waste site or facility until the cabinet receives certification of final closure.

(4) "Acute hazardous waste" is defined by 401 KAR 39:005.

(5) "Airport" means public-use airport open to the public without prior permission and without restrictions within the physical capacities of available facilities.

(6) "Application" means the form approved by the cabinet for applying for a permit, including any additions, revisions, or modifications and any narrative and drawings required by 401 KAR Chapters 47 or 48.

(7) "Aquifer" means a geologic formation, group of formations, or part of a formation capable of yielding a significant amount of groundwater to wells or springs.

(8) "Authorized representative" means the person responsible for the overall operation of a facility or an operational unit or part of a facility, including the plant manager, superintendent, or person of equivalent responsibility.

(9) "Bird hazard" means an increase in the likelihood of bird and aircraft collisions that could cause damage to the aircraft or injury to its occupants.

(10) "Cabinet" is defined by KRS 224.1-010(8).

(12) "Cell" means a portion of any landfill that is isolated, usually by means of an approved barrier.

(13) "Certification" means a statement of professional opinion based upon knowledge and belief.

(14) "Closure" is defined by KRS 224.1-010(4).

(15) "Closure care" means the routine care, maintenance, monitoring, and any required corrective action of a solid waste disposal site or facility following certification of closure until the applicable requirements are met.

(16) "Conditionally exempt small quantity generator" means "very small quantity generator" as defined by 40 C.F.R. 260.10.

(17) "Construction/demolition debris landfill" means a solid waste site or facility for the disposal of construction/demolition waste. The technical requirements for construction/demolition debris landfills are established in 401 KAR 47:080, 401 KAR 48:050, and 401 KAR 48:060.

(18) "Construction/demolition waste" means waste resulting from the construction, remodeling, repair, and demolition of structures and roads, and for the disposal of uncontaminated solid waste consisting of vegetation resulting from land clearing and grubbing, utility line maintenance, and seasonal and storm related cleanup.

(19) "Contained landfill" means a solid waste site or facility that accepts solid waste for disposal that is located, designated, constructed, operated, maintained, and closed in accordance with 401 KAR 47:080, 401 KAR 48:050, and 401 KAR 48:070 through 401 KAR 48:090.

(20) "Contaminate" means introduce a substance that would cause:

(a) The concentration of that substance in the groundwater to exceed the maximum contaminant level established in 401 KAR 30:031, 401 KAR 47:030, Sections 5 and 6, or401 KAR 39:090, Section 8;

(b) An increase in the concentration of that substance in the groundwater if the existing concentration of that substance exceeds the maximum contaminant level established in 401 KAR 30:031, 401 KAR 47:030, or 401 KAR 39:090, Section 8; or

(c) A significant increase above established background levels, for substances that do not have an established maximum contamination level.

(21) "Contamination" means the degradation of naturally occurring water, air, or soil quality either directly or indirectly as a result of human activities.

(22) "Contingency plan" means a document setting out an organized, planned, and coordinated course of action to be followed in the event of a fire, explosion, or release of waste or waste constituents into the environment that has the potential for endangering human health or the environment. Financial planning to identify resources for initiation of the action is a part of contingency plan development.

(23) "Cover material" means soil or other suitable material that is spread and compacted on the top and side slopes of disposed waste in order to control disease vectors, gases, erosion, fires, and infiltration of precipitation or run-on; support vegetation; provide trafficability; or assure an aesthetic appearance.

(24) "Demonstration" is defined by KRS 224.1-010(7).

(25) "Disease vector" means all insects, birds, or gnawing animals, including rats, mice, or ground squirrels, which are capable of transmitting pathogens.

(26) "Disposal facility" means a facility or part of a facility at which solid waste is intentionally placed into or on any land or water and at which waste will remain after closure.

(27) "Engineer" shall have the meaning specified in KRS 322.010.

(28) "Ephemeral stream" means a stream that flows only in direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow and ice and that has a channel bottom that is always above the local water table.

(29) "Explosive gas" means methane (CH4).

(30) "Facility" means all contiguous land, and structures, other appurtenances, and improvements on the land, used for treating, storing, or disposing of waste. A facility consists of several treatment, storage, or disposal operational units, including one (1) or more landfills, surface impoundments, or combination of them.

(31) "Facility structures" means any buildings, sheds, or utility or drainage lines on the solid waste site or facility.

(32) "Final closure" of a solid waste site or facility means the approved closure of a solid waste site or facility in accordance with 401 KAR 30:031, 401 KAR 47:030, and the applicable requirements of 401 KAR 48:060, 401 KAR 48:090, 401 KAR 48:170, or 401 KAR 48:200.

(33) "Flood plain" means areas adjoining inland waters that are inundated by the base flood, unless otherwise established in 401 KAR 30:031 or 401 KAR 47:030, and includes 100-year floodplain and floodway.

(34) "Food chain crops" means tobacco, crops grown for human consumption, and crops grown for feed for animals whose products are consumed by humans.

(35) "Free liquids" means liquids that readily separate from the solid portion of a waste under ambient temperature and pressure.

(36) "Freeboard" means the vertical distance between the top of a tank or surface impoundment dike and the surface of the waste contained therein.

(37) "Groundwater table" means the upper boundary of the saturated zone in which the hydrostatic pressure of the groundwater is equal to the atmospheric pressure.

(38) "Groundwater" means the subsurface water occurring in the zone of saturation beneath the water table, and perched water zones below the B-soil horizon, including water circulating through fractures, bedding planes, and solution conduits.

(39) "Hazardous waste" is defined by 401 KAR 39:005.

(40) "Holocene" means the most recent epoch of the quaternary period, extending from the end of the Pleistocene to the present.

(41) "Industrial solid waste" is defined by KRS 224.1-010(30)(a)(3).

(42) "In-ground tank" means a device meeting the definition of "tank" in this section and if a portion of the tank is situated to any degree within the ground, thereby preventing visual inspection of that external surface area of the tank that is in the ground.

(43) "Intermittent stream" means a stream or reach of stream that drains a watershed of one (1) square mile or more but does not flow continuously during the calendar year.

(44) "Karst terrain" means a type of topography if limestone, dolomite, or gypsum is present and is characterized by naturally occurring closed topographic depressions or sinkholes, caves, disrupted surface drainage, and well developed underground solution channels formed by dissolution of these rocks by water moving underground.

(45) "Landfarming facility" means a facility for land application of sludges or other solid waste by any method for purposes of disposal. It can be on any piece or pieces of land and can improve the physical and chemical qualities of the land for agricultural purposes, but does not alter the topography of the application area as revealed by contours and will not disturb the soil below three (3) feet from the surface.

(46) "Landfill" means a solid waste site or facility for the disposal of specific wastes that is located, designated, constructed, operated, maintained, and closed in conformance with 401 KAR Chapters 47 and 48, and 401 KAR 30:031.

(47) "Lateral expansion" means a horizontal expansion of the waste boundaries of an existing solid waste landfill unit.

(48) "Leachate" means any liquid, including any suspended components in the liquid, that has percolated through or drained from waste.

(49) "Liner" means a continuous layer of natural or manmade material, beneath or on the sides of a waste site or facility, that might include a waste pile, surface impoundment, landfill, or landfill cell, or beneath or on the sides of a waste site or facility that restricts the movement of the wastes, waste constituents, or leachate.

(50) "Lower explosive limit" means the lowest percent by volume of a mixture of explosive gases that will propagate a flame in air at twenty-five (25) degrees Celsius and atmospheric pressure.

(51) "Monitoring" means the act of systematically inspecting and collecting data on operational parameters or on the quality of the air, soil, groundwater, or surface water.

(52) "Monitoring well" means a well used to obtain water samples for water quality and quantity analysis and groundwater levels.

(53) "Nonputrescible" means not susceptible to rapid decomposition by bacteria, fungi, or oxidation sufficient to cause nuisances including odors, gases, or other offensive conditions.

(54) "Notice of intent" means the standard forms for applying for a solid waste site or facility permit as required by 401 KAR 47:160, 401 KAR 47:170, and 401 KAR 48:200.

(55) "Off-site" means properties noncontiguous to the site.

(56) "On-site" means on the same or geographically contiguous property that can be divided by public or private right-of-way, provided the entrance and exit between the properties is at a crossroads intersection, and access is by crossing, as opposed to going along the right-of-way. Noncontiguous properties owned by the same person but connected by a right-of-way that the person controls and to which the public does not have access are also considered on-site property.

(57) "Open burning" means the combustion of any material or solid waste without:

(a) Control of combustion air to maintain adequate temperature for efficient combustion;

(b) Containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and

(58) "Open dump" is defined by KRS 224.1-010(37).

(59) "Operational plan" means the approved plan of operations filed with the cabinet that describes the method of operation that the permittee will use in the treatment, storage, or disposal of wastes.

(60) "Operator" means any person responsible for overall operation of an on-site or off-site waste facility, including any private contractor conducting operational activities at a federal facility.

(61) "Owner" means any person who owns an on-site or off-site waste facility, or any part of a facility.

(62) "Perennial stream":

(a) Means a stream or that part of a stream that flows continuously during all of the calendar year as a result of groundwater discharge or surface run-off; and

(b) Does not mean "intermittent stream" or "ephemeral stream".

(63) "Permit":

(a) Means the authorization or other control document issued by the cabinet to implement the requirements of the waste management administrative regulations and the term includes permit-by-rule, registered permit-by-rule, research, development, and demonstration permit, and emergency permit: and

(b) Does not mean a draft permit or proposed permit.

(64) "Permittee" means any person holding a valid permit issued by the cabinet to manage, treat, store, or dispose of waste.

(65) "Person" is defined by KRS 224.1-010(16).

(66) "Personnel" or "facility personnel" means all persons who work at or oversee the operations of a waste facility, and whose actions or failure to act can result in noncompliance with the requirements of the waste management administrative regulations.

(67) "Point of compliance" means for solid waste site and facilities, groundwater monitoring wells located within 250 feet of the waste boundary as approved by the cabinet pursuant to KRS 224.10-100.

(68) "Point source":

(a) Means any discernible, confined, and discrete conveyance that might include any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, vessel, or other floating craft from which pollutants are or can be discharged; and

(b) Does not mean return flows from irrigated agriculture.

(69) "Pollutant" is defined by KRS 224.1-010(34).

(70) "Polychlorinated biphenyls" or "PCB" means halogenated organic compounds defined in accordance with 40 C.F.R. 761.3.

(71) "Postclosure" shall have the same meaning as "closure care."

(72) "Publicly owned treatment works" or "POTW" is defined by KRS 224.1-010(18).

(73) "Recovered material" is defined by KRS 224.1-010(18).

(74) "Representative samples" means a sample of a universe or whole, including a waste pile, lagoon, or groundwater, which can be expected to exhibit the average properties of the universe or whole.

(75) "Residual landfill" means a facility for the disposal of specific solid waste or wastes, including special waste, which is located, designed, constructed, operated, maintained, and closed in compliance with 401 KAR 30:031 and 401 KAR 47:030 and that receives a case-by-case design review by the cabinet.

(76) "Run-off" means any rainwater, leachate, or other liquid that drains overland from any part of a facility.

(77) "Run-on" means any rainwater, leachate, or other liquid that drains overland onto any part of a facility.

(78) "Scavenging" means the removal of waste materials from a waste management site or facility in a manner deemed by the cabinet to be dangerous to the health and safety of any person.

(79) "Site" means the land or water area where any facility or activity is physically located or conducted, including adjacent land used in connection with the waste facility or activity.

(80) "Sludge" means any solid, semisolid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility exclusive of the treated effluent from a wastewater treatment plant or any other waste having similar characteristics and effects.

(81) "Solid waste" is defined by KRS 224.1-010(30)(a).

(82) "Solid waste management" is defined by KRS 224.1-010(38).

(83) "Solid waste site or facility" means any place at which solid waste is managed, processed, or disposed by landfilling, incineration, landfarming, or any other method. The term includes: construction/demolition debris landfill; collection box; contained landfill; convenience center; disposal facility; incinerator; injection well; landfarming facility; management facility; miscellaneous unit; municipal solid waste disposal facility; pile or waste pile; processing facility; recycling center; recycling facility; residual landfill; sanitary landfill; surface impoundment; tank; transfer facility; unit or solid waste unit; wastewater treatment unit; inert landfill; or residential landfill.

(84) "Solid waste unit" means a contiguous area of land on or in which solid waste is placed, or the largest area in which there is significant likelihood of mixing waste constituents in the same area. Examples of solid waste units include a surface impoundment, a waste pile, a land processing area, a landfill cell, an incinerator, a tank and its associated piping and underlying containment system, and a container storage area. A container alone does not constitute a unit; the unit includes containers and the land or pad upon which they are placed.

(85) "State":

(a) Means any of the fifty (50) states, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, the Northern Mariana Islands, or Guam; and

(b) Any foreign country.

(86) "Storage" is defined by KRS 224.1-010(27).

(87) "Tank" means a stationary device designed to contain an accumulation of leachate or solid waste that is constructed primarily of nonearthen materials, including wood, concrete, steel, or plastic, which provide structural support.

(88) "Tank system" means a solid waste tank and its associated piping, ancillary equipment, and containment system.

(89) "TENORM" is defined by KRS 211.862(13), except as established in KRS 211.863(5).

(90) "Transportation" is defined by KRS 224.1-010(28).

(91) "Uppermost aquifer" means the geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected with this aquifer within the facility's property boundary.

(92) "Vessel" means any watercraft used or capable of being used as a means of transportation on the water.

(93) "Washout" means the carrying away of waste by waters as a result of flooding.

(94) "Waste" is defined by KRS 224.1-010(30).

(95) "Waste disposal facility" shall have the same meaning as KRS 224.40-310.

(96) "Wastewater treatment plant" is defined by 401 KAR 5:002.

(97) "Water" or "waters of the Commonwealth" is defined by KRS 224.1-010(32).

(98) "Well" means any shaft or pit dug or bored into the earth, generally of cylindrical form, and often walled with bricks or tubing to prevent the earth from caving in.

(99) Wetland means land that has a predominance of hydric soils and is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances does support, a prevalence of hydrophytic vegetation typically adapted for life in saturated soil conditions.

History

RELATES TO: KRS 224.1, 224.10, 224.40, 224.43, 224.50, 224.99, 40 C.F.R. Part 258
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-110, 224.40-305, 224.43-340, 224.50-824, 224.50-832
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 and the waste management provisions of KRS Chapter 224 require the cabinet to promulgate administrative regulations for the management of solid, special, and hazardous wastes. This chapter establishes technical requirements applicable to the management of solid waste. This administrative regulation establishes definitions for terms used in the administrative regulations of 401 KAR Chapter 48.
History: 401 KAR 048:005. 21 Ky.R. 501; eff. 11-7-1994; 23 Ky.R. 990; eff. 3-12-1997; 44 Ky.R. 320, 1259; eff. 12-7-2017; Crt eff. 8-13-2018; Crt eff. 7-22-2025.

401 KAR 48:050 Siting requirements for solid waste landfills {#sec-401-kar-48-050 omnilex-key=us-ky-regs-official--title-401--401 KAR 48:050}

Section 1. Buffer Zones. Wastes shall not be placed:

(1) Within 250 feet of an intermittent or perennial stream unless a 401 water quality certification has been issued pursuant to 401 KAR Chapter 10.

(2) Within the zone of collapse of deep-mine workings or within the critical angle of draw of such workings;

(3) Within 250 feet of a feature of karst terrain;

(4) Within 250 feet of the property line;

(5) Within 250 feet of a residence;

(6) Within fifty (50) feet of a gas, sewer or water line; and

(7) Within 250 feet of a unplugged well except monitoring wells.

Section 2. Seasonal High Groundwater Table.

(1) The lowest component of the bottom liner of new units of a landfill shall be at least four (4) feet above the seasonal high groundwater table.

(2) Wastes that leach heavy metals in concentrations exceeding the primary drinking water standards when analyzed using the toxicity characteristic leaching procedure test shall be placed no closer than five (5) feet above the seasonal high groundwater level.

Section 3. Flood Plains.

(1) No person shall be issued a permit to construct a new contained landfill in the 100-year flood plain.

(2) Waste disposed in residual or construction/demolition debris landfills shall not be placed within the 100 year flood plain of the waters of the Commonwealth unless the applicant complies with Section 2 of 401 KAR 47:030 of the Environmental Performance Standards concerning base flow restriction, temporary water storage capacity reduction, and waste washout. Where available, empirical data shall be used to determine the frequency of flood exposure. Where data are not available, the frequency of flood exposure shall be established by the unit hydrograph technique.

Section 4. Airport Location Criteria.

(1) No new contained landfill shall be located within 10,000 feet of any airport runway used by turbojet aircraft or within 5,000 feet of any airport runway used by only piston-type aircraft and no landfill shall pose a bird hazard to aircraft.

(2) An owner or operator proposing to site a new contained landfill or proposing to horizontally expand within a five (5)-mile radius of any airport runway end used by turbojet or piston-type aircraft shall notify the affected airport and the Federal Aviation Administration.

Section 5. Fault Areas. Waste cells of a solid waste landfill shall not be located within 200 feet of a fault that has had displacement in holocene time.

Section 6. Site Suitability. Landfills shall not be permitted in any area unless the applicant can demonstrate to the satisfaction of the cabinet that:

(1) The uppermost aquifer is capable of being monitored in a manner that detects the presence of any constituent listed in Section 10 of 401 KAR 48:300; and

(2) Corrective action of the uppermost aquifer is capable of being performed in accordance with 401 KAR 48:300.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to promulgate administrative regulations for the management, processing or disposal of wastes. KRS 224.40-305 requires that persons engaging in the storage, treatment, recycling and disposal of waste obtain a permit. This chapter establishes the minimum technical standards for solid waste sites or facilities. This administrative regulation sets forth the siting requirements for construction/demolition debris, contained, and residual landfills.
History: 401 KAR 048:050. 16 Ky.R. 1766; 2205; 2367; 2673; eff. 5-8-1990; 18 Ky.R. 147; eff. 9-25-1991; 21 Ky.R. 501; eff. 11-7-1994; TAm eff. 10-14-2008; Crt eff. 8-13-2018; Crt eff. 7-2-2025.

401 KAR 48:060 Technical requirements for construction/demolition debris landfill {#sec-401-kar-48-060 omnilex-key=us-ky-regs-official--title-401--401 KAR 48:060}

Section 1. Design Requirements.

(1) A construction/demolition debris landfill shall be designed to keep surface water flows and leachate separate. The design shall include:

(a) Surface contours to minimize surface water running onto or through the operational or completed fill area;

(b) Surface water run-on and run-off diversion ditches and structures designed to pass a 100 year, twenty-four (24) hour storm flow; and

The minimum retarding storage volume and the principal spillway discharge shall be such that a discharge through the emergency spillway shall not occur during the twenty-five (25) year, twenty-four (24) hour storm event;
The emergency spillway shall be capable of passing a 100 year twenty-four (24) hour storm event with no flow exceeding the design freeboard of the structure;
The sediment storage volume and projected operating period shall be stated. The minimum sediment storage volume shall provide for one (1) year of operation. A shorter period may be approved consistent with a maintenance plan for the sediment basin;
The sediment clean out elevation shall be specified; and
All designs shall be verified by a unit hydrograph method of calculation, or a method approved by the cabinet.

(2) The liner and leachate collection system shall be designed as follows:

(a) The bottom liner shall be constructed of soil with a minimum thickness of twelve (12) inches. In addition, a low permeability soil component shall include a minimum of twelve (12) contiguous inches of 1 x 10-7 centimeters per second maximum permeability material, or its equivalent. The liner shall cover the bottom and sidewalls of the facility. The minimum bottom slope shall be three (3) percent toward a leachate collection line and one (1) percent along leachate collection lines;

(b) The liner shall be overlain by a drainage layer of twelve (12) inches of material with a minimum permeability of 1 x 10-3 centimeters per second, or its equivalent, in areas of the liner system with a slope of less than twenty-five (25) percent;

(c) The leachate collection system shall contain a perforated piping system capable of removing leachate from the top surface of the low permeability solid component, and conveying it to a collection point. The drainage system shall meet the following requirements:

Main leachate collection pipes shall have a minimum diameter of eight (8) inches and shall be designed to withstand static and dynamic loads that may be encountered;
The maximum hydraulic head for design of the leachate drainage layer shall be one (1) foot;
The lateral pipes shall be installed primarily perpendicular to flow;
The minimum diameter of lateral perforated pipes shall be four (4) inches and shall be designed to withstand static and dynamic loads that may be encountered. The materials used shall at a minimum conform to the specifications for ASTM schedule eighty (80) pipe; and
The minimum slope for the piping system shall be one (1) percent;

(d) The leachate collection tank shall be a minimum of 1,000 gallons. Additional capacity shall be provided to store leachate for a minimum of fifteen (15) days production at peak production rates during operation and closure;

(e) The method of leachate disposal shall be described. When it is discharged to the sediment structure, a treatment plant is proposed or other method of discharge is proposed, the KPDES permit shall reflect this provision. When an off-site wastewater treatment plant is used, the applicant shall provide written documentation showing the acceptance of the waste. The criteria for disposal at the wastewater treatment plant shall be stated. The leachate collection system shall have a method to measure the quantity of leachate managed at the site.

(f) The drainage layer shall be overlain by a layer of either filter fabric or material approved by the cabinet to protect the integrity of the drainage layer;

(g) The filter fabric shall be overlain by a twelve (12) inch granular material with a 1 x 10-3 centimeters per second minimum permeability.

(3) Adequate soil material shall be available to provide one (1) foot of compacted cover on lifts of every 10,000 square feet, at the end of each working week, or at intervals sufficient to reduce fire hazards, prevent an unsightly appearance, and eliminate disease vectors.

(4) All designs shall include an environmental monitoring plan to meet the requirements of 401 KAR 48:300.

(5) All compaction equipment to be used for site operation shall have a minimum weight of 30,000 pounds and a minimum 130 horsepower motor. Sufficient equipment shall be listed on the application to handle the cover requirements in subsection (3) of this section as well as the working cell grading and compaction.

(6) The design shall include a separate area for handling hot or smoldering loads, or any other construction/demolition wastes which present special handling problems.

(7) The design shall include a shelter with screened windows, heat, lighting, potable water and sanitary facilities for operating personnel.

(8) A closure plan shall be developed to include the following information:

(a) A description of the procedures and schedule for final closure;

(b) If the facility shall close in phases, a description that shall reflect the sequence of phased closure; and

The waste cells shall be graded to achieve a final slope of more than five (5) percent and less than twenty-five (25) percent;
The twelve (12) inch cover layer required by Section 2(14) of this administrative regulation shall be overlain by a minimum of twelve (12) inches of a 1 x 10-7 centimeters per second maximum permeability cap or its equivalent;
The cap shall be covered by a six (6) inch drainage layer of 1 x 10-3 centimeters per second permeability material or its equivalent on slopes less than fifteen (15) percent;
A system of field drainage tiles shall be provided to relieve water collected by the drainage layer;
The drainage layer shall be protected with an overlaying filter fabric or material approved by the cabinet;
A minimum of three (3) feet of vegetative soil shall cover the drainage layer; and
Diversion berms shall be provided where surface run-off exceeds the capability of the final cover to sustain the flow without excessive erosion.

(9) The owner or operator shall develop a closure care plan which includes the following information:

(a) A narrative description and schedule of measures that are proposed to be carried out after closure at the facility. This shall include:

Surface and groundwater quality monitoring;
Leachate collection and treatment;
Erosion and sedimentation control;
Revegetation and regrading, including maintenance of the final cover; and
Access control.

(b) The proposed closure care land use, the method of achievement and the necessary support activities which may be needed to achieve the proposed land use.

(c) The name, address and telephone number at which the owner and operator can be reached during the closure care period.

(d) A final cover maintenance program for a period of not less than two (2) years beyond closure, to include erosion control, reseeding, refertilization, growth control, environmental monitoring, and leachate management.

(10) When the applicant restricts the waste to be construction/demolition debris, nonputrescible wastes and wastes that shall not leach such that the environmental performance standards shall be exceeded, the design may be modified as follows:

(a) The requirement for the liner shall be a minimum of two (2) feet of soil recompacted to ninety (90) percent of standard proctor; and

(b) The final cover shall be a minimum of three (3) feet of vegetative soil.

Section 2. Operating Requirements.

(1) The owner or operator of a construction/demolition debris landfill shall operate the facility in accordance with the requirements of KRS Chapter 224 and the administrative regulations promulgated thereto, and the conditions of the solid waste permit issued by the cabinet.

(2) Landfill operators shall not permit or engage in open burning of waste. Any open burning shall be immediately extinguished. Wastes which are burning or smoldering shall not be deposited in the fill. Such materials shall be deposited at a location safely removed from the normal fill area.

(3) No waste containing free liquids or hazardous wastes shall be discharged to or placed in a landfill.

(4) The grounds in and about a landfill shall not be allowed to become a nuisance. The owner or operator shall properly control dust on haul roads and other areas to prevent a nuisance to surrounding areas. When necessary, interior fences may be required to prevent litter from blowing from the landfill. The permitted area shall be policed on a routine basis to collect all scattered material.

(5) Signs and access control.

(a) An owner or operator of a construction/demolition debris landfill shall post and maintain a sign for the active life of the facility which is clearly visible at the junction of the landfill access road and public road;

(b) A sign shall be posted at the entrance to the landfill that shows the name of the owner, the name of the operator, an emergency telephone number, the operating hours of the facility and the permit number authorizing operation of the facility. The sign shall be constructed of a durable, weather-resistant material and the letters and numbers shall be a minimum height of three (3) inches; and

(c) A certified operator shall be on duty when the site is open for use by persons other than the owner or his employee or agents.

(6) Scavenging shall be prohibited. Salvage and recycling operations shall not be allowed in conjunction with a landfill operation without prior approval by the cabinet.

(7) Landfill operators shall not allow uncontrolled public access that would expose the public to potential health and safety hazards.

(8) All-weather roads shall be provided within the site for vehicular movement. Separate areas within the site may be provided to allow for wet or dry weather operation and access. When necessary to prevent a dust nuisance, roads within the site shall be surfaced or treated.

(9) A shelter shall be provided which is accessible to operating personnel. The shelter shall be screened and provided with heat, lighting, potable water and sanitary facilities. Safe drinking water, sanitary hand washing and toilet facilities shall be available at or near the site.

(10) A fire safety and response plan shall be developed and maintained. The plan shall identify measures that shall reduce the risk of fire at the facility, identify the equipment and procedures to respond to a fire and supplement the local fire department's capabilities.

(11) Adequate communication facilities shall be provided for emergency purposes.

(12) Operating equipment shall be on site during operating hours and capable of spreading and compacting the volume of waste received at the site. Back-up equipment shall be available within one (1) week of primary equipment breakdown.

(13) Construction/demolition debris waste shall be spread and compacted in thin layers sufficient to minimize void spaces during placement of lifts. No lift shall be greater than eight (8) feet in depth or the depth approved in the application.

(14) The owner or operator shall apply a twelve (12) inch soil cover such that the area of exposed waste does not exceed 10,000 square feet in area and all exposed wastes shall be covered at least once each week.

(15) Disease vector control measures in addition to cover may be required by the cabinet when necessary.

(16) The entire site, including the area of the landfill being actively worked, shall be maintained as necessary to prevent erosion or washing of the fill, to drain precipitation from the fill area, to prevent surface water run-on, and to prevent standing water.

(17) Surfaces that shall not receive an additional depth of refuse or final cover within ninety (90) days shall be temporarily revegetated or otherwise protected against erosion.

(18) The site shall have an operator certified as specified in 401 KAR 47:070.

(19) Records and reports shall be maintained in accordance with the requirements of Section 8 of 401 KAR 47:190.

(20) Any person operating a construction/demolition debris landfill shall implement the groundwater monitoring program in the approved permit.

(21) Leachate shall be disposed using the method described in the approved permit.

(22) The owner or operator shall implement a program at the facility for detecting and preventing the disposal of unauthorized wastes. This program shall include at a minimum:

(a) Observance by the operator of all loads during dumping and spreading;

(b) Training of facility personnel to recognize unauthorized waste; and

(23) The owner or operator shall keep ditches free of waste and debris and dredge the sediment basin to maintain design capacity. Provisions shall be made for proper disposal of dredge spoils.

(24) The owner or operator shall conspicuously display the current or last permit issued with all applicable conditions at the construction/demolition debris landfill. A copy of the approved application including plans shall be reasonably available for use at the site.

Section 3. Closure and Closure Care Requirements.

(1) The owner or operator shall implement the approved closure plan in accordance with the closure schedule and in the following manner:

(a) Those areas of a landfill that shall receive no additional deposits of solid waste within 365 days of the last placement of the waste shall receive final cover. The minimum final cover shall include the components described in Section 1(8) of this administrative regulation and shall have a thickness as specified in Section 1 of this administrative regulation in addition to any other cover required;

(b) Submit any amendment or modification to the closure plan at least ninety (90) days before the last acceptance of waste;

(d) Final cover shall be revegetated. After grading, final cover shall be fertilized as necessary, seeded, or planted with legumes, perennial grasses or other vegetation according to the approved closure plan. The owner or operator shall repeat this process until adequate vegetation is obtained to ensure soil stabilization;

(e) Before earth-moving equipment is removed from the site, an inspection of the entire site shall be made by an authorized representative of the cabinet to determine compliance with approved plans and specifications. The owner or operator shall present the quality control records demonstrating compliance with the permit;

(f) The owner or operator shall record a notice in the deed that shall in perpetuity notify any potential purchaser of the property of the location and time of operation of the facility, the nature of the waste placed in the site and a caution against future disturbance of the area. Such notice shall be recorded in accordance with KRS Chapter 382 and proof of recording shall be submitted to the cabinet prior to the cabinet's acceptance of certification of closure; and

(g) The cabinet may release the closure bond two (2) years following the cabinet's acceptance of the owner's certification of closure. These funds will be released upon inspection of the permit records and the site to determine that it is in compliance with all regulatory requirements and has at least a ninety (90) percent permanent vegetative cover.

(2) The owner or operator shall implement the approved closure care plan in accordance with the closure care schedule and shall perform other necessary corrective work required by the cabinet, if any, before the landfill closure care certification is accepted.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt rules and administrative regulations for the management, processing or disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing and disposal of waste obtain a permit. This chapter establishes the minimum technical standards for solid waste sites or facilities. An overview of the permit program is found in Section 1 of 401 KAR 47:080. This administrative regulation sets forth the technical requirements for construction/demolition debris landfills that are not already classified under permit-by-rule and granted permit-by-rule.
History: 401 KAR 048:060. 16 Ky.R. 1768; 2206; 2368; eff. 5-8-1990; Crt eff. 8-13-2018; Crt eff. 7-22-2025.

401 KAR 48:070 Design requirements for contained landfills {#sec-401-kar-48-070 omnilex-key=us-ky-regs-official--title-401--401 KAR 48:070}

Section 1. General. The owner or operator of a contained landfill shall ensure a design for disposal of solid wastes meeting the requirements of 401 KAR Chapters 47 and 48.

Section 2. Surface Water. Owners or operators shall design landfills to ensure that:

(1) Surface water flows and leachate are separated;

(2) Surface contours minimize surface water running onto or through the operational or completed fill area;

(3) Surface run-on and run-off ditches pass a 100 year twenty-four (24) hour storm flow;

(4) Surface water sediment basins meet the following criteria:

(a) The minimum retarding storage volume and the principal spillway discharge shall be such that emergency spillway discharge shall not occur during the twenty-five (25) year twenty-four (24) hour storm event;

(b) The emergency spillway shall be capable of passing a 100 year twenty-four (24) hour storm event with no flow overtopping the structure; and

(c) The sediment storage volume and project operating period shall be stated. The minimum storage volume shall provide for one (1) year of operation. A shorter period may be approved when a maintenance program is included to restore the sediment storage volume.

(5) All designs shall be verified by the unit hydrograph method of calculation unless another method is approved by the cabinet.

(6) The edge of the downhill toe of the slope of a sediment pond dam is at least fifty (50) feet from the property line.

Section 3. Seismic Impact Zones. At a new contained solid waste landfill unit located in a seismic impact zone, all containment structures, including liners, leachate collection systems, and surface water control systems shall be designed to resist the maximum anticipated horizontal acceleration in lithified material for the site.

Section 4. Unstable Areas. The owner or operator of a contained solid waste landfill unit located in an unstable area shall demonstrate to the cabinet that engineering measures have been incorporated into the unit's design to ensure the stability of the liners, leachate collection systems, final cover, run-on and run-off systems, and any other component necessary for the protection of human health and the environment. The owner or operator shall consider the following factors, at a minimum, when determining whether an area is unstable:

(1) On-site or local soil conditions that may result in significant differential settling;

(2) On-site or local geologic or geomorphologic features; and

(3) On-site or local human-made features (both surface and subsurface).

Section 5. Separate Areas for Handling Nonresidential Wastes. The applicant shall design an area separate from the daily working face to allow the safe handling of certain wastes. Separate areas are required for the handling of:

(1) Loads containing burning waste;

(2) Wastes from pick-up trucks and automobiles; and

(3) Salvageable and recyclable materials when the facility intends to manage these materials.

Section 6. Equipment Requirements.

(1) Sufficient equipment shall be available to spread and compact all wastes within two (2) hours of receipt.

(2) Steel-wheeled compactors designed for landfill operation shall be specified for residential solid waste compaction.

(3) The owner or operator shall provide the landfill equipment required to:

(a) Handle all daily, interim, long-term and final cover requirements;

(b) Maintain all roads and drainage features;

(d) Maintain leachate and methane gas systems; and

(e) Properly compact waste at peak receipt rates. These rates shall be determined in tons per hour and kept on file with the cabinet.

(4) Back-up equipment shall be available for waste spreading and compaction, application of daily cover and maintenance of leachate systems within twenty-four (24) hours of primary equipment incapacitation.

(5) Landfill compactors shall have a minimum gross ground pressure of 325 pounds per linear inch of wheel width.

(6) Any equipment used for compaction shall have a minimum gross weight of 30,000 pounds and a minimum of 130 engine horsepower.

(7) The primary working face equipment used for waste spreading and compaction shall have the standard landfill guard package offered by the manufacturer, or an otherwise reasonable adaptation, to provide protection from waste damage hazards and other landfill operating hazards.

(8) The operator shall propose an equipment operating and maintenance recordkeeping system. The system shall, at a minimum, track the availability of each piece of equipment in subsections (1) and (4) of this section.

(9) Any equipment used for waste compaction shall have a specified maximum rated capacity.

Section 7. Compaction. For residential solid waste, the in-place waste density goal shall be to achieve greater than 1200 pounds per cubic yard in the completed cells. The density shall be determined by dividing the total weight of waste received by the cubic yards of airspace used. The landfill density shall be computed annually.

Section 8. Soil Requirements. The design of borrow areas and disposal cells shall ensure that enough soil is available to meet the requirements for liner and cap construction in 401 KAR 48:080 and the requirements for cover in 401 KAR 48:090.

Section 9. Personnel and Equipment Buildings.

(1) Each landfill shall have buildings for its employees which provide the following:

(a) Air conditioning or tight, insect repelling screens on all doors and windows. Screen access doors shall have automatic closures. Screened buildings shall have proper mechanical ventilation;

(b) Safe drinking water;

(d) Heat.

(2) Each landfill site shall include a building for maintenance of the equipment. The building shall be large enough to hold the largest piece of equipment required for site operation. The building shall be heated for winter repair operations.

(3) Each building shall have an alarm installed in accordance with the manufacturer's recommendations to detect the presence of explosive gases.

Section 10. Explosive Gas Program.

(1) The application for a contained landfill unit shall include a quarterly methane monitoring program to ensure that the standards of Section 11 of 401 KAR 47:030 are met.

(2) The methane monitoring system shall be developed based on the following factors:

(a) Soil transmissivity;

(b) The hydrogeologic conditions surrounding the disposal site;

(d) The location of facility structures and property boundaries.

(3) The minimum frequency of monitoring shall be quarterly.

(4) A gas venting system shall be designed for all landfills. A minimum of one (1) vent shall be required per acre of landfill to be filled unless otherwise approved by the cabinet.

Section 11. Roads.

(1) The owner or operator shall design a road from the publicly maintained highway to the landfill, if one does not exist.

(2) Each landfill shall have an all weather perimeter road around all waste disposal areas and to all monitoring and sediment control structures.

(3) Internal roads shall be all weather and designed for construction to within 200 feet of the daily working face.

(4) Narrow roads shall have properly spaced sections of sufficient width to allow passage of two (2) vehicles in the opposite direction.

(5) Roads shall be designed to carry the normal traffic and to properly drain.

(6) Enough space on the landfill property shall be provided for trucks awaiting entry. The landfill shall be designed to ensure that trucks can enter the site without delay from public roadways.

Section 12. Safety and Communication Plan. The landfill safety and communication plan shall contain:

(1) The safe operating and maintenance procedures for heavy equipment;

(2) Procedures to protect employees in a manner complying with the Kentucky Labor Cabinet OSHA requirements;

(3) A description of equipment to achieve emergency communication. At a minimum the applicant shall specify an on-site telephone or a two-way radio connection to an off-site telephone. The radio base station shall be monitored during landfill operations; and

(4) A fire fighting contingency plan containing a topographic map denoting the location of the landfill, a site map and an emergency contact. The operator shall mail a copy of the safety and communications plan to the local fire chief. The plan shall include the location of fire fighting water sources, roads, and major site features.

Section 13. Scales. Scales shall be provided to weigh all incoming wastes.

Section 14. Leachate Storage Tanks. In addition to the requirements set forth in this administrative regulation, 401 KAR 47:180 and 401 KAR 47:190, an application for a permit to construct a contained landfill that includes a tank for leachate storage shall contain:

(1) The estimated volume of leachate to be generated and a proposed system to record actual quantities stored and removed;

(2) A schedule of liquid removal;

(3) A description of the final treatment and disposal of the liquid stored;

(4) A description of the liquid storage facility design;

(5) A method to measure the quantity of leachate extracted or removed and disposed;

(6) A closure plan for the tanks; and

(7) Design criteria to ensure that on-ground, in-ground, underground, and above ground tanks are constructed of materials, and installed in such a manner, that the tank system shall contain the stored liquid for the active life of the site to include closure care. A procedure for periodic testing of the tank system shall be employed to assure the tank system does not leak.

Section 15. Closure.

(1) The operator of a contained solid waste landfill shall close each landfill unit and phase in a manner that minimizes the need for further maintenance and minimizes the closure care formation and release of leachate and explosive gases to air, groundwater, or surface water to the extent necessary to protect human health and the environment as required by 401 KAR 47:030 and 401 KAR 48:300.

(2) The owner or operator shall prepare a closure plan that describes the steps necessary to close all units and phases of the contained solid waste landfill at any point during its active life in accordance with the closure performance standard in subsection (1) of this section. The closure plan shall contain:

(a) An overall description of the methods, procedures, and processes that shall be used to close each unit and phase of a contained solid waste landfill in accordance with the closure performance standard in subsection (1) of this section and the final cap system requirements in Section 9 of 401 KAR 48:080;

(b) An estimate of the maximum extent of operation that shall be open at any time during the active life of the landfill; and

(3) Any modification to the closure plan shall be approved by the cabinet. A copy of the most recent approved closure plan shall be kept at the facility until closure of the contained landfill has been certified in accordance with subsection (5) of this section and the owner or operator has been released from financial assurance requirements for closure under 401 KAR 48:310.

(4) The owner or operator shall begin closure activities of each landfill unit, in accordance with the approved closure plan, no later than thirty (30) days following the final receipt of wastes at that landfill unit. Closure of each unit shall be completed within 180 days of final receipt of waste. Extensions may be approved by the cabinet if the delay in closure is due to adverse weather conditions.

(5) Following closure of each contained solid waste landfill unit, the owner or operator shall submit to the cabinet a certification by a professional engineer that closure has been completed in accordance with the approved closure plan.

Section 16. Alternative Specifications. Alternative specifications may be used only after approval by the cabinet upon a demonstration by a qualified registered professional engineer that they shall result in performance with regard to safety, stability and environmental protection equal to or better than that resulting from designs complying with the specifications of this administrative regulation.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt rules and administrative regulations for the management, processing or disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing and disposal of waste obtain a permit. This chapter establishes the minimum technical standards for solid waste sites or facilities. This administrative regulation sets forth the design requirements for contained landfills.
History: 401 KAR 048:070. 16 Ky.R. 1772; 2209; 2371; eff. 5-8-1990; Crt eff. 8-13-2018, Crt eff. 7-22-2025.

401 KAR 48:080 Liner and cap design requirements for contained landfills {#sec-401-kar-48-080 omnilex-key=us-ky-regs-official--title-401--401 KAR 48:080}

Section 1. Liners for Contained Landfills. At a minimum all contained landfills shall have:

(1) A primary composite liner as specified in Sections 2 and 7 of this administrative regulation; and

(2) A secondary composite liner that:

(a) Meets the secondary liner criteria specified in Sections 2 and 7 of this administrative regulation; or

(b) Is a naturally occurring material provided that such natural material:

Shall be equivalent to material with a minimum thickness of twenty (20) feet with a maximum permeability of 1 x 10-7 centimeters per second;
Shall lie above the uppermost aquifer; and
Shall continuously underlie the landfill site or facility and be demonstrated to have sufficient integrity to protect the uppermost aquifer from contamination in the event of a breech of the primary composite liner.

Section 2. Components of Contained Landfill Liner Systems. Once the subgrade is established, the primary and secondary liner systems shall consist of the layers, listed in subsections (1) through (3) of this section.

(1) The secondary liner system shall consist of the following layers, listed from bottom to top:

(a) A twelve (12) inch soil layer with a permeability of 1 x 10-7 centimeters per second as specified in Section 4 of this administrative regulation;

(b) A secondary synthetic liner as specified in Section 5 of this administrative regulation;

(d) A filter fabric or other material approved by the cabinet.

(2) The secondary liner layer specified in subsection (1)(a) and (b) of this section may be substituted for by a naturally occurring material as specified in Section 1(2) of this administrative regulation.

(3) The primary liner shall consist of the following layers, listed from bottom to top:

(a) A thirty-six (36) inch clay layer with a permeability of 1 x 10-7 centimeters per second as specified in Sections 4, 6 and 7 of this administrative regulation;

(b) A primary synthetic liner as specified in Section 5 of this administrative regulation;

(c) A twelve (12) inch drainage layer with permeability of 1 x 10-2 centimeters per second or a layer of equivalent performance as specified in Section 6 of this administrative regulation; and

(d) A filter fabric or other material approved by the cabinet to protect the integrity of the drainage layer.

Section 3. Specific Landfill Subgrade Requirement. The landfill subgrade is the uppermost in situ rock layer, in situ soil layer or select fill that shall be graded and prepared for landfill construction. For lateral expansions adjacent to existing landfills, the cabinet may approve encroachment upon the existing landfill's side slope if a leachate barrier system is designed and construction to intercept leachate and prevent its migration into the existing landfill.

(1) Materials required. The landfill subgrade material shall be free of organic material and consist of bedrock, on-site soils, or any select fill with the structural ability to support the landfill maximum load with a factor of safety of two (2.0).

(2) Construction requirements. The landfill subgrade shall be graded in accordance with the requirements of the approved engineering plans, report, and specifications. The material shall be sufficiently dry and structurally sound to ensure that the first lift and all succeeding lifts of soil placed over the landfill subgrade can be adequately compacted to the design requirements.

(3) Certification requirements. At a minimum, the subgrade surface shall be inspected in accordance with the following requirements:

(a) Before placing any material over the subgrade, the project engineer shall visually inspect the exposed surface to evaluate the suitability of the subgrade and ensure that the surface is properly compacted, smooth, uniform, and has positive surface drainage;

(b) Soil subgrade shall be proof-rolled using a minimum 100,000 pound loaded four (4) tire scraper (twenty (20) cubic yard size) or equivalent procedure and equipment approved by the cabinet;

(c) Soil subgrade shall be tested for density and moisture content at a minimum frequency of nine (9) tests per acre. The subgrade shall be compacted to a density of at least ninety (90) percent of the standard proctor; and

(d) Sufficient cross sections shall be taken showing the finished elevation of the completed subgrade, referenced to existing site control. These cross sections shall serve as documentation and reference data for all future volume calculations.

Section 4. Specific Soil Component Requirements of Landfill Liner Systems. The soil component of the landfill liner system shall be a continuous layer of low permeability soil constructed to control fluid migration.

(1) Low permeability soil components shall have a maximum remolded coefficient of permeability of 1 x 10-7 centimeters per second. The soil shall be placed without damaging any collection and removal system components. The soil material shall be substantially free of tree roots, wood or other decayable materials and large rock. The soils shall be compacted to a minimum of ninety-two (92) percent of the standard proctor density.

(2) Construction requirements. The project engineer shall ensure that the soil component of the liner system installation conforms to the following minimum requirements:

(a) The soil component of the liner system shall be placed on a slope of no less than three (3) percent toward the main leachate collection line and one (1) percent along the main leachate collection line to promote positive drainage across the liner surface and at a maximum slope not greater than fifty (50) percent.

(b) Compaction shall be performed by properly controlling the moisture content, lift thickness, and other necessary details to obtain the density, moisture and permeability characteristics specified in 401 KAR Chapter 48. The maximum final compacted thickness of each lift of soil material shall be six (6) inches or the thickness necessary to protect the integrity of underlying components and achieve the required liner performance standards.

(c) During construction the moisture content of the soil component of the liner system shall be maintained within the range identified in accordance with the certification requirements to ensure that the remolded lift attains the required permeability.

(3) Certification requirements. The project engineer shall include in the construction certification report a discussion of all required quality assurance and quality control testing. The testing procedures and protocols shall be submitted and approved by the cabinet. The results of all testing shall be included in the construction certification report including documentation of any failed test results, descriptions of the procedures used to correct the improperly installed material, and statements of all retesting performed in accordance with the following requirements:

(a) The project engineer shall certify the results of the quality control testing of any soil liner materials. The intent of the quality control testing is to ensure that the specified material meets the permeability requirements of subsection (1) of this section. Before and during construction of the soil component of the liner system, the following minimum testing and classification shall be performed:

Determination of the classification of soils for engineering purposes using test methods approved by the cabinet for each 10,000 cubic yards of soil material placed and each time significant soil material changes are noted:
One (1) analysis of soil particle size for every 2,000 cubic yards of soil liner material placed from the same source. Additional analyses shall be performed if the source of material is changed or if a different soil type is encountered from the same source.
One (1) Atterberg limits analysis of plastic and liquid limit and plasticity index as approved by the cabinet for every 2,000 cubic yards of soil liner material placed;
One (1) moisture content test for every 2,000 cubic yards of material placed; and
A minimum of one (1) comparison of the moisture-density-permeability relation for every 20,000 cubic yards of material placed and one (1) each time soil material changes are noted. A minimum of three (3) laboratory permeability tests shall be performed using a triaxial cell with backpressure. The specimen used for each permeability test shall be remolded at the same moisture content which shall be equal to or not greater than four (4) percent above the optimum moisture content. The comparison shall be based on a semilog plot of percent maximum density versus permeability with at least one (1) point below and one (1) point above the target permeability value.

(b) Quality assurance testing included in this paragraph shall be compared to and evaluated against the quality control testing of paragraph (a) of this subsection where applicable. Quality assurance testing shall include:

At least nine (9) density tests per acre per lift of soil material placed;
A minimum of nine (9) moisture content tests per acre per lift of soil material placed; and
All moisture-density testing performed using nuclear methods.

Section 5. Specific Synthetic Liner Requirements. A synthetic liner is a low permeability manmade material having a maximum coefficient of permeability of 1 x 10-12 centimeters per second and is used to control fluid migration from landfills.

(1) Materials required. The synthetic liner material shall have a demonstrated hydraulic conductivity less than 1 x 10-12 centimeters per second and chemical and physical resistance not adversely affected by waste placement or leachate generated and a maximum water vapor transmission rate of 0.04 grams per square meter per day for forty (40) mil nominal thickness material and 0.03 grams per square meter per day for sixty (60) mil nominal thickness material. Documentation shall be submitted to ensure chemical compatibility of the synthetic liner material chosen or, in absence of the appropriate documentation, chemical compatibility testing shall be performed using a test method acceptable to the cabinet.

(2) Construction requirements. Synthetic liners shall be installed in accordance with the requirements of the approved engineering plans, report, and specifications and manufacturer's recommendations. The project engineer shall ensure that the synthetic liner installation, at a minimum, shall conform with the following:

(a) The synthetic liner shall have a nominal thickness of sixty (60) mils;

(b) The synthetic liner shall be installed on a subgrade that has a minimum three (3) percent slope to promote positive drainage;

(c) Synthetic liners installed on slopes greater than twenty-five (25) percent shall be designed to withstand the calculated tensile forces acting upon the synthetic material, and shall ensure that overall slope stability is maintained;

(d) The surface of the supporting soil above which the synthetic liner shall be installed shall be reasonably free of stones, organic matter, irregularities, protrusions, loose soil, and any abrupt changes in grade that may damage the synthetic liner. The supporting soil shall conform to the requirements of Section 4 of this administrative regulation;

(e) The anchor trench shall be excavated to the length and width prescribed on the approved design drawings;

(f) Field seams shall be oriented parallel to the line of maximum slope, i.e., oriented along, not across the slope. In corners and irregularly-shaped locations, the number of field seams shall be minimized;

(g) The materials shall be seamed using an appropriate method acceptable to the cabinet. Seam testing shall be in accordance with the requirements of subsection (3) of this section;

(h) The seam area shall be free of moisture, dust, dirt, debris, and foreign material of any kind before seaming; and

(i) Field seaming shall be prohibited when the conditions including ambient air, temperature, precipitation, and wind do not meet the engineers recommendations based upon the suppliers specifications.

(3) Certification requirements. The project engineer shall include in the construction certification report a discussion of the approved data resulting from the quality assurance and quality control testing required in this paragraph. The results of all testing shall be included in the construction certification report including documentation of any failed test results, descriptions of the procedures used to correct the failed material, and statements of all retesting performed.

(a) The project engineer shall certify the quality control testing of the synthetic liner ensuring that the material and workmanship meet the requirements of the approved engineering plans, reports, and specifications. Before installing a synthetic liner, the following information shall be available to the project engineer for approval:

Origin and identification of the raw materials used to manufacture the synthetic liner;
Copies of quality control certificates issued by the producer of the raw materials used to manufacture the synthetic liner; and
Reports of tests conducted to verify the quality of the raw materials used to manufacture the synthetic liner. Tests for specific gravity, melt flow index, and percent carbon black shall be performed using a method acceptable to the cabinet.

(b) The project engineer shall verify through appropriate documentation that the quality control testing of any synthetic rolls fabricated into blankets at the factory took place in accordance with the following requirements:

The synthetic liner was continuously inspected for uniformity, damage, imperfections, holes, cracks, thin spots, and foreign materials. Additionally, the synthetic liner shall be inspected for tears, punctures, and blisters. Any imperfections shall be immediately repaired and reinspected;
Nondestructive seam testing was performed on all fabricated seams over their full length using a test method acceptable to the cabinet; and
A destructive seam testing was performed on a minimum of two (2) samples per blanket. The samples shall be taken from extra material at the beginning or end of blanket seams such that the blanket is not damaged and the blanket geometry is not altered. The size of the sample taken shall be large enough to perform the required testing. An independent laboratory acceptable to the cabinet shall perform the required testing on the samples taken. If a sample fails a destructive test, the entire seam length shall be reconstructed or repaired using a method acceptable to the cabinet and retested using nondestructive seam testing over its full length using a test method acceptable to the cabinet.

(c) Quality assurance testing performed in the field under the supervision of the project engineer shall assure conformity of the synthetic liner installation with the engineering plans, reports, and specifications submitted in accordance with the following requirements:

During the construction phase, the synthetic liner shall be inspected for uniformity, damage, and imperfections. The liner shall be inspected for tears, punctures, or blisters. Any imperfections shall be immediately repaired and reinspected;
All field seams shall be nondestructively tested in accordance with the procedures listed in this clause using a test method acceptable to the cabinet. The project engineer shall supervise all nondestructive testing; record the location, date, test unit number, name of tester, and results of all testing; inform the installer of any required repairs; and overlay all seams which cannot be nondestructively tested with the same synthetic liner. The seaming and patching operation shall be inspected by the project engineer for uniformity and completeness; and
Destructive testing shall be performed on the synthetic liner seam sections in accordance with the following requirements and using test methods acceptable to the cabinet. Seam samples for testing shall be taken as follows: a minimum of one (1) test per every 500 feet of seam length unless a more frequent testing protocol is agreed upon by the installer and project engineer; additional test locations may be determined during seaming at the project engineer's discretion; and all test locations shall be appropriately documented. The project engineer shall approve the sample size to be taken. The sample size shall be predetermined as being large enough to perform the required testing. An independent laboratory acceptable to the cabinet shall perform the required testing which shall include, as a minimum, testing for seam strength and peel adhesion using testing procedures acceptable to the cabinet. If a sample fails destructive testing the project engineer shall ensure that the seam is reconstructed between the location of the sample which failed and the location of the next acceptable sample; or the welding path is retraced to an intermediate location at least ten (10) feet from the location of the sample which failed the test, and a second sample is taken for an additional field test. If this second test sample passes, the seam shall then be reconstructed between the location of the second test and the original sampled location. If the second sample fails, this process shall be repeated. All acceptable seams shall lie between two (2) locations where samples passed the required test procedures of this section and include one (1) test location along the reconstructed seam.

Section 6. Primary Liner System. The liner shall be designed using the following specifications:

(1) A thirty-six (36) inch thick low permeability soil layer having a remolded coefficient of permeability of 1 x 10-7 centimeters per second and compacted to a minimum of ninety-two (92) percent standard proctor density;

(2) A sixty (60) mil thick synthetic liner having a maximum coefficient of permeability of 1 x 10-12 centimeters per second and not adversely affected by the leachate or loading from the operational landfill;

(3) A leachate collection and removal system consisting of a twelve (12) inch thick granular material layer with a leachate collection pipe network. This collection system shall be designed to achieve a maximum hydraulic head on the primary composite liner no greater than twelve (12) inches. The granular material shall have a minimum coefficient of permeability of 1 x 10-2 centimeters per second. The physical and chemical properties of the granular material and pipe shall not be adversely affected by the loads or leachate generated by the operations of the landfill. Alternate materials proposed to function as a substitute for the granular soil layer shall be demonstrated to be equivalent in performance for leachate drainage and load bearing properties; and

(4) The leachate collection system shall contain a perforated piping system capable of removing leachate from the top surface of the low permeability solid component, and conveying it to a collection point. The drainage system shall meet the following requirements:

(a) Main leachate collection pipes shall have a minimum diameter of eight (8) inches and shall be designed to withstand static and dynamic loads that may be encountered;

(b) The sheet flow drainage distances to the lateral drainage pipes shall not exceed fifty (50) feet;

(d) The minimum diameter of lateral perforated pipes shall be four (4) inches and shall be designed to withstand static and dynamic loads that may be encountered. The materials used shall at a minimum conform to the specifications for ASTM schedule eighty (80) pipe;

(e) The minimum slope for the piping system shall be one (1) percent;

(f) The leachate collection tank shall be a minimum of 1,000 gallons. Additional capacity shall be provided to store leachate for a minimum of fifteen (15) days production at peak production rates during operation and closure;

(g) The method of leachate disposal shall be described. When it is discharged to the sediment structure, a treatment plant is proposed or other method of discharge is proposed, the KPDES permit shall reflect this provision. When an off-site wastewater treatment plant is used, the applicant shall provide written documentation showing the acceptance of the waste. The criteria for disposal at the wastewater treatment plant shall be stated. The leachate collection system shall have a method to measure the quantity of leachate managed at the site;

(h) The leachate collection pipe system shall be designed to allow internal inspection, cleaning and maintenance; and

(i) The maximum design head of the leachate collection system shall be one (1) foot.

(5) A geosynthetic filter fabric or other suitable material shall be placed above the drainage layer to prevent clogging.

Section 7. Slope Considerations.

(1) For bottom slopes of less than or equal to ten (10) percent, the owner or operator shall have a liner system meeting the requirements of Section 1 of this administrative regulation.

(2) For bottom slopes of ten (10) to twenty-five (25) percent, the owner or operator shall have a liner system meeting the requirements of Section 2(3) of this administrative regulation, except that the owner or operator may replace the granular soil layers in the leachate collection and hydraulic relief systems with synthetic drainage netting.

(3) For bottom slopes of more than twenty-five (25) percent, the thickness of the soil required in Sections 2(3)(a) and (6)(1) of this administrative regulation shall be reduced by no more than twelve (12) inches.

Section 8. Final Cap System. At a minimum the final cap shall consist of a layered system. Each layer shall have the same slope of between five (5) and twenty-five (25) percent. The components, listed from bottom to top, are:

(1) A filter fabric or other material approved by the cabinet;

(2) A twelve (12) inch sand gas venting system with a minimum hydraulic permeability of 1 x 10-3;

(3) A filter fabric or other material approved by the cabinet;

(4) An eighteen (18) inch clay layer with a maximum permeability of 1 x 10-7 centimeters per second;

(5) For areas of the final cap with a slope of less than fifteen (15) percent, a twelve (12) inch drainage layer with a minimum permeability of 1 x 10-3 centimeters per second; and

(6) A thirty-six (36) inch vegetative soil layer.

Section 9. Final Cap System Specifications. The specifications for final cap component layers are:

(1) A low permeability clay layer listed in Section 8(4) of this administrative regulation shall be compacted to a minimum of ninety-two (92) percent of the standard proctor density;

(2) A drainage layer specified in Section 8(5) of this administrative regulation shall be compacted to a minimum of eighty-five (85) percent of the standard proctor density. Field tile drainage shall be specified as necessary to relieve water captured by this drainage layer;

(3) A vegetative soil layer as specified in Section 8(6) of this administrative regulation shall be sufficient to sustain vegetative growth and prevent root penetration of the underlying layers. A thicker layer may be required by the cabinet to properly retain moisture or meet closure care requirements.

(4) Drainage berms of at least one (1) foot in height or two (2) feet in width shall be placed at the following intervals for the following slopes:

(a) 150 feet at greater than ten (10) percent slope;

(b) 200 feet at slope between five (5) and ten (10) percent. In lieu of drainage berms, the owner or operator may substitute a design with a horizontal terrace of at least fifteen (15) feet width on the slope for every twenty-five (25) feet maximum rise in elevations on the slope. The slope of the terrace shall be five (5) percent into the fill and drainage ditches shall be designed for each terrace to convey precipitation flows. The maximum slope between terraces shall not exceed twenty-five (25) percent; or

(c) The applicant shall may adjust the drainage berm specifications with design calculations based upon characteristics of soils and cover.

(5) A synthetic liner with a minimum thickness of forty (40) mils and a maximum coefficient of permeability of 1 x 10-12 centimeters per second may be substituted for the low-permeability soil cover in Section 8(4) of this section.

(6)

(a) The final cover shall be revegetated.

(b) The soil-water pH shall be adjusted and the soil fertilized based upon current soil test results.

(c) The seed bed shall be prepared and temporary nurse crops and permanent grasses planted in accordance with the approved closure plan within thirty (30) days of completion of final cover grading.

(d) The owner or operator shall repeat the above as necessary to achieve permanent vegetation.

(e) Erosion controls shall be addressed in the closure plan and constructed as required. All slopes over three (3) percent shall have controls applied at the time of seeding.

(f) The owner or operator shall inspect all areas and perform maintenance and revegetation. At a minimum, the site shall be initially inspected according to this table:

(g) After one (1) year, all areas larger than 100 square feet with less than forty (40) percent vegetation shall be tested to determine required revegetation, which shall be completed by September 30.

Section 10. Structural Integrity of Cap and Liner. The design engineer shall analyze the structural integrity of the site, the subbase, each component of the composite liner, each component of the final cover, the composite liner system and the final cap as a system. Modifications to the design shall be provided where necessary, to achieve a minimum factor of safety of two (2) for the subbase, one and one-fourth (1.25) for the structural design of the facility liner components, and one and one-half (1.5) for the final cover system. Synthetic liner material and structural synthetic materials shall be designed for a maximum elongation of ten (10) percent.

Section 11. Alternative Specifications. Alternative specifications may be used only after approval by the cabinet upon a demonstration by a qualified registered professional engineer that they shall result in performance with regard to safety, stability and environmental protection equal to or better than that resulting from designs complying with the specifications of this administrative regulation.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt rules and administrative regulations for the managing, processing, or disposal of solid wastes. KRS 224.40-305 requires that persons engaging in the managing, processing, or disposal of waste obtain a permit. This chapter establishes the minimum technical standards for solid waste sites or facilities. This administrative regulation sets forth the liner and cap design requirements for contained landfills.
History: 401 KAR 048:080. 16 Ky.R. 1776; 2211; 2374; eff. 5-8-1990; Crt eff. 8-13-2018; Crt eff. 7-22-2025.

401 KAR 48:090 Operating requirements for contained landfills {#sec-401-kar-48-090 omnilex-key=us-ky-regs-official--title-401--401 KAR 48:090}

Section 1. General. The owner or operator of a contained landfill shall operate the facility in accordance with the requirements of KRS Chapter 224 and 401 KAR Chapters 30 through 49, the conditions of the solid waste permit issued by the cabinet, and the approved application filed with the cabinet.

Section 2. Procedures for Excluding the Receipt of Prohibited Waste.

(1) The owner or operator of a solid waste contained landfill shall implement a program at the facility for detecting and preventing the disposal of regulated hazardous wastes as established in 401 KAR Chapter 39, polychlorinated biphenyls (PCB) wastes as established in 40 C.F.R. Part 761, and TENORM waste generated from oil and gas development activities containing combined Radium 226 and Radium 228 at concentrations exceeding limits established by 902 KAR 100:180, Section 6(1), except as authorized by 902 KAR 100:180, Section 6(2). This program shall include, at a minimum:

(a) Random inspections of incoming loads;

(b) Inspection of suspicious loads;

(d) Training of facility personnel to recognize regulated hazardous waste; and

(e) Procedures for notifying the proper authorities if a prohibited waste is disposed or discovered at the facility; and

(f) Employee safety, health, training, and equipment to be used in inspection.

(2) The owner or operator shall implement additional inspection standards to meet the requirements of subsection (1) of this section.

(a) The owner or operator shall have a program, approved by the cabinet pursuant to KRS 224.10-100, to inspect all waste entering a contained landfill. The program to exclude hazardous wastes shall include:

Random inspections in time, but uniformly distributed to all waste sources based on volume; and
Identification data concerning the hauler on the operating inspection record including name of the driver, name of the hauler, address, source, volume, and waste characteristics. The owner or operator shall maintain a record of the inspections in accordance with the approved recordkeeping requirements.

(b) Upon discovery of hazardous waste, the owner or operator of a contained landfill shall isolate the load and notify the cabinet immediately.

Section 3. TENORM Waste Disposal from Oil and Gas Development and Production.

(1) TENORM that meets the criteria established in 902 KAR 100:180, Section 6(1) that is to be land disposed shall be disposed:

(a) In a contained landfill permitted in accordance with 401 KAR Chapters 47 and 48 and as authorized by 902 KAR 100:180, Section 6(1)(a); or

(b) As established in subsection (2) of this section as authorized by 902 KAR 100:180, Section 6(1)(c).

(2) TENORM that meets the criteria established in 902 KAR 100:180, Section 6(2) that is to be land disposed shall be disposed in a contained landfill permitted in accordance with 401 KAR Chapters 47 and 48 and as authorized by 902 KAR 100:180, Section 6(2)(a) that meets:

(a) The operating requirements established in 902 KAR 100:180; and

(b) Final cap design requirements established in 401 KAR 48:080, Section 8, which shall include both a synthetic liner established in 401 KAR 48:080, Section 9(5) and a low permeability soil layer meeting the design standards in 401 KAR 48:080, Section 8(4) or Section 11.

(3)

(a) A contained landfill shall not accept TENORM waste established in 902 KAR 100:180, Sections 6(1) or 6(2) without having received approval from the cabinet except as established in subsection (b) of this section.

(b) An owner or operator of a contained landfill that possesses a solid waste permit and began accepting TENORM waste established in 902 KAR 100:180, Sections 6(1) or 6(2) before October 1, 2017 and will continue to accept the TENORM waste shall:

Manage the TENORM waste in accordance with 902 KAR 100:180 and 401 KAR Chapters 47 and 48;
Submit an application for a minor permit modification by July 1, 2018; and
Not accept TENORM waste described in 902 KAR 100:180, Sections 6(1) or (6(2) after January 1, 2019 without having received approval from the cabinet of the permit modification required in subparagraph 2. of this paragraph and paragraphs (c) and (d) of this subsection.

(c) For TENORM waste that complies with the criteria established in 902 KAR 100:180, Section 6(2), the minor permit modification requirements established in 401 KAR 47:130 and paragraph (b)2 of this subsection shall also include:

A public notice as established in 401 KAR 47:140, Section 7; and
A public comment period of thirty (30) days from the date of public notice to submit written comments on the application.

(d) Upon receipt of an application, the cabinet shall notify the local county government in the county where the disposal of TENORM waste that complies with the criteria established in 902 KAR 100:180, Section 6(2) is proposed.

Section 4. Cover Material and Disease Vector Control Requirements.

(1)

(a)

To control disease, fires, blowing litter, and disease vectors, the owner or operator shall place a minimum of six (6) inches of cover over all exposed solid waste at the end of each working day or, for continuously operating landfills, once every twenty-four (24) hours.
The owner or operator shall only use soil or properly weathered or crushed shales, siltstones, or other materials as approved by the cabinet pursuant to KRS 224.10-100.
Soils and other weathered, earthen material contaminated with petroleum may be used as daily cover if:

a. The maximum benzene concentration of the material is less than or equal to one and zero-tenths (1.0) ppm; and

b. The material is not placed as daily cover during a precipitation event.

(b) The daily cover for material subject to 902 KAR 100:180 shall be an additional six (6) inches of cover for a total minimum of twelve (12) inches of cover over all exposed waste containing TENORM at the end of each working day or for continuously operating landfills, once every twenty-four (24) hours.

(c) The daily cover shall not have any protruding waste, except for the occasional litter embedded into the surface, which shall not exceed ten (10) percent of the cover area.

(d) Daily cover shall be compacted upon application and provide positive drainage. The owner or operator shall place daily cover to allow for proper drainage and shall immediately compact and grade the soil.

(e) The owner or operator may remove daily cover to facilitate the vertical passage of methane gas and leachate and shall recover the exposed areas within eight (8) hours of exposure. Daily cover required by subsection (b) of this section shall not be removed.

(f) The owner or operator shall dispose of any daily cover removed as established in paragraph (d) of this subsection as solid waste.

(2) Interim cover period. The owner or operator:

(a)

Shall place an additional six (6) inches of interim cover over any area that will not receive additional solid waste within thirty (30) calendar days of the last waste placement.
With the daily cover applied in accordance with subsection (1) of this section, the additional interim cover shall increase the total cover depth to twelve (12) inches;

(b) May, on the day waste is to be placed over an area that is covered with daily and interim cover, remove a maximum depth of six (6) inches of interim cover over the area of the cell for that day's operation;

(d) Shall apply temporary erosion controls at the time of placing interim cover.

(3) Long term cover. The owner or operator:

(a) Shall apply an additional eighteen (18) inches of long-term cover over all areas that shall not receive additional waste within four (4) months by September 15 of each year. With the daily and interim cover, the total thickness of the cover in these areas shall be thirty (30) inches;

(b) May remove a maximum of eighteen (18) inches of the thirty (30) inches of cover in this subsection within the seven (7) calendar days prior to additional waste placement. The owner or operator may remove remaining soil leaving no less than six (6) inches of daily cover from the daily cell area on the day additional waste is to be placed;

(d) Shall complete erosion controls and seeding of interim and long-term cover during the fall seeding season.

(4) Final cover.

(a) The owner shall initiate the application of final cover:

Within thirty (30) days of filling a completed phase of the landfill to final design grade; and
Annually so that the final cap is in place by September 15 in all areas of the landfill that have reached final grade by August 15 of each year.

(b) An alternate schedule may be approved by the cabinet if construction techniques shall preclude construction by the dates established in paragraph (a) of this subsection.

(5) Cover report. The owner or operator shall record, on a form approved by the cabinet pursuant to KRS 224.10-100, the daily cell locations, specific location of TENORM waste placement within the cell, and dates of cover applications at the landfill including:

(a) Daily usage area;

(b) Daily, interim, long term, and final cap installation dates; and

Section 5. Explosive Gases Control.

(1) The owner or operator of a contained solid waste landfill shall ensure that the concentration of methane gas:

(a) Generated by the facility does not exceed twenty-five (25) percent of the lower explosive limits (LEL) for methane in facility structures (excluding gas control or recovery system components); and

(b) Does not exceed the lower explosive limit for methane at the facility property boundary.

(2) The owner or operator of a contained landfill shall quarterly monitor for explosive gas:

(a) Underneath or in the low area of each on-site building;

(b) At locations along the boundary as shown in the permit;

(d) At any potential gas problem areas, as revealed by dead vegetation or other indicators; and

(e) At any other points required by the permit.

(3) The owner or operator shall record the date, time, location, percent lower explosive limit, and other pertinent information on the recordkeeping form approved by the cabinet pursuant to KRS 224.10-100.

(4) The owner or operator shall install, operate, and maintain a gas detector with an alarm set at twenty-five (25) percent of the lower explosive limit in each on-site building.

(5) If methane gas levels exceeding the limits in subsection (1) of this section are detected, the owner or operator shall:

(a) Take all necessary steps to ensure immediate protection of human health;

(b) Immediately notify the cabinet of the methane gas levels detected and the immediate steps taken to protect human health; and

(c) Within fourteen (14) days, submit to the cabinet for approval a remediation plan for the methane gas releases. The plan shall describe the nature and extent of the problem and the proposed remedy. The plan shall be implemented upon approval by the cabinet pursuant to KRS 224.10-100.

Section 6. Air Criteria.

(1) Except as established in paragraph (b) of this subsection, the owner or operators of contained landfills shall not allow or engage in open burning of waste. Any open burning shall be immediately extinguished.

(a) Wastes that are burning or smoldering shall not be deposited in the fill. The materials shall be deposited in a hot load area designated in the permit.

(b) The cabinet may grant emergency permission to burn in accordance with 401 KAR 47:150. The owner or operator shall follow the plan approved for these purposes.

(2) The owner or operator shall control dust on haul roads and other areas to prevent a nuisance to surrounding areas.

Section 7. Access Requirements.

(1) The owner or operator of a contained solid waste landfill shall control public access and prevent unauthorized vehicular traffic and illegal dumping of wastes to protect human health and the environment.

(a) The owner or operator shall use artificial barriers, natural barriers, or both, as appropriate.

(b) Each access point shall be controlled by lockable entrance ways.

(2) The owner or operator shall construct and maintain:

(a) The major access road from a publicly maintained highway to the landfill;

(b) The perimeter road; and

(3)

(a) The owner or operator of a contained landfill shall remove debris, mud, and waste from vehicles before leaving the site.

(b) The owner or operator shall be responsible for removing landfill debris, mud, and waste from off-site roadways.

Section 8. Water Controls. The owner or operator of a contained solid waste landfill shall:

(1) Maintain the site as necessary to prevent erosion or washing of the fill, and grade as necessary to drain rainwater from the fill area and to prevent standing water;

(2) Maintain all run-on and run-off control systems as necessary to maintain original design capacity as required by 401 KAR 48:070, Section 2. This can include:

(a) Removal of sediment from run-off control structures. The site design shall specify the method to be used to determine the removal in the event that clean-out shall occur;

(b) Removal of debris, wastes, and soil from diversion and run-off ditches to maintain the design capacity; and

The owner or operator shall specify the location of the temporary ditches in the operational plan required by 401 KAR 47:190.
The ditches shall be approved by a professional engineer registered in the Commonwealth of Kentucky.

Section 9. Waste Restrictions.

(1) The owner or operator of a contained landfill shall only dispose of wastes that:

(a) Are not hazardous wastes regulated pursuant to 401 KAR Chapters 30 and 39, except for limited quantity hazardous wastes and exempt spill residues;

(b) Do not contain free liquids as determined by the cabinet pursuant to KRS 224.10-100; and

(2) The owner or operator shall comply with the recordkeeping and reporting requirements of Section 12 of this administrative regulation pertaining to the location of disposed limited quantity hazardous waste and exempt spill residues.

Section 10. Working Face Requirements.

(1) Within two (2) hours of receipt, the owner or operator shall spread wastes in loose layers not exceeding twenty-four (24) inches in depth and compact it to the maximum practicable density.

(a) The owner or operator shall use the equipment specified in the permit for compaction.

(b) The operator shall pass the equipment over 100 percent of the waste surface at least four (4) times.

(2) The owner or operator shall not exceed the lift height specified in the permit.

(3) The owner or operator shall not place an initial lift containing any object that may damage the bottom liner. The owner or operator shall protect the liner system with a layer of dirt, waste, or similar blanket placed between operating equipment and the liner.

(4) The daily working face shall be restricted to the smallest area practical for working face operation.

(5) The completed cell shall consist of the solid waste compacted during one (1) working day.

(6)

(a) The owner or operator shall prohibit scavenging within 100 feet of the working face.

(b) All salvage and recycling shall occur at areas so designated in the permit.

(7) The owner or operator shall only allow access to the landfill if operating personnel are on the site.

(8) The owner or operator shall not accept solid waste at a rate that exceeds the rated capability of the operational compaction and cover equipment available on site.

(9) The owner or operator shall not accept solid waste without landfill personnel present to supervise the unloading.

(10) The grounds in and about a landfill shall not be allowed to become a nuisance.

(a) If necessary, interior fences may be required to prevent litter from blowing from the landfill.

(b) The permitted area shall be policed on a routine basis to collect all scattered material.

(11) All litter attributable to the site's operation shall be picked up within forty-eight (48) hours.

(12) Unless excluded from the site, large bulky items and other nonresidential wastes shall be deposited in a manner approved by the cabinet pursuant to KRS 224.10-100.

(13) The owner or operator shall conform to the posted operating hours for receiving waste and shall notify the cabinet of the operating hours before changing them. The entrance sign shall meet the requirements of Section 15(2) of this administrative regulation.

Section 11. Employee Facilities.

(1) The owner or operator of a contained landfill shall provide buildings meeting 401 KAR 48:070, Section 9 requirements for site personnel.

(2) The buildings shall be maintained in a safe and sanitary manner.

(3) At least one (1) building shall have a safe drinking water supply, pursuant to 401 KAR Chapter 8.

Section 12. Reports and Recordkeeping. Records and reports shall be maintained and submitted in accordance with 401 KAR 47:190, Section 8.

Section 13. Groundwater Monitoring. The owner or operator of a contained solid waste landfill shall implement the groundwater monitoring program in the approved application.

Section 14. Closure and Closure Care Requirements.

(1) The owner or operator shall comply with the closure requirements established in paragraphs (a) and (b) of this subsection.

(a) The owner oroperator of a contained landfill shall prepare a written closure plan that describes the closure activities for each unit including:

a. The methods to be employed to maintain the integrity and effectiveness of any final cap, including making repairs to the cap as necessary to correct the effects of settling, subsidence, erosion, or other events, and preventing run-on and run-off from eroding or otherwise damaging the final cap; and

b. The layer established in 401 KAR 48:080, Section 8(4) shall have a maximum permeability less than or equal to the permeability of any bottom liner system or natural subsoils present;

Maintenance and operation of the leachate collection system in accordance with the requirements, if applicable, until leachate no longer is generated;
Groundwater monitoring in accordance with the requirements of 401 KAR 48:300 and maintaining the groundwater monitoring system; and
Maintenance and operation of the explosive gas monitoring system in accordance with the requirements of Section 5 of this administrative regulation.

(b) The closure period shall be at least two (2) years following the cabinet's acceptance of the owner's certification of closure.

(2) The owner or operator of a contained landfill shall prepare and implement a written closure care plan that describes monitoring and routine maintenance activities that shall be carried out during the closure care period of at least thirty (30) years. The closure care plan shall include, at a minimum:

(a) A description of the monitoring and maintenance activities for each unit and the frequency at which these activities shall be performed;

(b) The name, address, and telephone number of the person or office to contact about the facility during the closure care period; and

Closure care use of the property shall not disturb the integrity of the final cap, liner or liners, or any other components of the containment system, or the function of the monitoring systems, unless upon demonstration by the owner or operator, the cabinet determines that the activities shall not increase the potential threat to human health or the environment or the disturbance is necessary to reduce a threat to human health or the environment.
The owner or operator shall obtain approval from the cabinet in order to remove any wastes or waste residues, the liner, or contaminated soils from the land.

(3) The closure care plan shall be submitted with the permit application and shall be approved by the cabinet pursuant to KRS 224.10-100.

(a) Any subsequent modification to the closure care plan also shall be approved by the cabinet pursuant to 401 KAR 47:130.

(b) A copy of the most recently approved closure care plan shall be kept at the facility at least until completion of the closure care period has been certified in accordance with subsection (5) of this section.

(4)

(a) The owner or operator shall record a notice in the deed that shall in perpetuity notify any potential purchaser of the property of the location and time of operation of the facility, the nature of the waste placed in the site, and a caution against future disturbance of the area.

(b) The notice shall be recorded in accordance with KRS Chapter 382, and proof of recording shall be submitted to the cabinet prior to the cabinet's acceptance of certification of closure.

(5) Following completion of all closure and closure care periods for each unit, the owner or operator of a contained landfill shall submit to the cabinet certification by a professional engineer, verifying that all phases of closure and closure care have been completed in accordance with the approved plans and the requirements of KRS Chapter 224.

Section 15. Signs.

(1) Warning signs shall be visible at all landfill access points.

(a) The warning signs shall be legible at a distance of 100 feet.

(b) The signs shall give warnings of all site hazards that might include: explosive gases, heavy equipment movement, and heavy truck movements.

(2) Entrance signs shall be visible and located at the public entrances and all entrances used by waste hauling vehicles.

(a) The signs shall be legible from 100 feet.

(b) The signs shall indicate landfill name, name of the owner, name of the operator, the hours of receiving wastes, the permit number, and an emergency telephone number.

Section 16. Alternative Specifications. Alternative specifications may be used only after approval by the cabinet upon a demonstration by a qualified registered professional engineer that the alternatives shall result in performance, with regard to safety, stability, and environmental protection, equal to or better than that resulting from designs complying with the requirements of this administrative regulation.

History

RELATES TO: KRS 224.1, 224.10, 224.40, 224.43, 224.99, 40 C.F.R. Part 761
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to promulgate administrative regulations for the management, processing, or disposal of solid wastes. KRS 224.40-305 requires that persons engaging in the management, processing, and disposal of solid waste obtain a permit. 401 KAR Chapter 48 establishes the minimum technical standards for solid waste sites or facilities. This administrative regulation establishes the requirements for contained landfills.
History: 401 KAR 048:090. 16 Ky.R. 1782; 2216; 2378; eff. 5-8-1990; 21 Ky.R. 503; 1102; eff. 11-7-1994; 44 Ky.R. 327, 977, 1265; eff. 12-7-2017; Crt eff. 8-13-2018; TAm eff. 10-15-2018; Crt eff. 7-22-2025.

401 KAR 48:170 Technical requirements for residual landfills {#sec-401-kar-48-170 omnilex-key=us-ky-regs-official--title-401--401 KAR 48:170}

Section 1. Design Requirements. The engineering design shall demonstrate compliance with the environmental performance standards in 401 KAR 47:030 and the siting standards of 401 KAR 48:050 considering the following:

(1) The physical and chemical characteristics of the waste, including compatibility of the waste with the liner and cover materials and water that may come in contact with the waste;

(2) Volume of waste;

(3) The climatic conditions in the area;

(4) The permeability of the liner material. The liner, if required, shall assure containment of the waste on site and compliance with the environmental performance standards of 401 KAR 47:030;

(5) The properties of the soil underlying the facility;

(6) Hydrogeologic characteristics of the facility including quality, quantity, current use and direction of groundwater flow;

(8) The proximity to surface water and groundwater;

(9) The potential for gas emissions and odors;

(10) Any additional requirements specified by the cabinet.

Section 2. Operating Requirements.

(1) The owner or operator of a residual landfill shall operate the facility in accordance with the requirements of KRS Chapter 224 and the waste management administrative regulations, the conditions of the solid waste permit issued by the cabinet, and the operational plan filed with and approved by the cabinet.

(2) The owner or operator of a residual landfill shall operate the facility in such a manner as to ensure compliance with the environmental performance standards in 401 KAR 47:030.

(3) The owner or operator of the facility shall inspect the site and operation at a sufficient frequency to ensure compliance with the applicable environmental performance standards in 401 KAR 47:030.

(4) The owner or operator shall have a sign located at the entrance. The sign shall indicate the landfill name, the names of the owner and the operator, the hours that the landfill is accepting wastes, the permit number, the contact person and the emergency telephone number.

(5) Records and reports shall be maintained and submitted in accordance with the requirements of 401 KAR 47:190, Section 8.

(6) The cabinet may place additional requirements on the owner or operator of a residual landfill in addition to those stated where necessary to ensure compliance with the applicable environmental performance standards in 401 KAR 47:030.

Section 3. Closure and Closure Care Requirements.

(1) A residual landfill shall be closed in a manner that shall ensure compliance with the applicable environmental performance standards in 401 KAR 47:030. The closure shall include the placement of a final cover over the facility as specified in the approved design of the site.

(2) Any necessary corrective work required by the cabinet shall be performed before the residual landfill is accepted as closed and closure financial responsibility funds are released.

(3) The closure plan shall be prepared to specify the function and design of the final cover for the facility. The closure design shall ensure compliance with the environmental performance standards in 401 KAR 47:030 considering:

(a) The type and amount of waste in the facility;

(b) The mobility and expected rates of migration of the waste or leachate constituents;

(d) The climatic conditions in the area;

(f) The geologic and soil profiles and surface and subsurface hydrology of the site.

(4) A residual landfill shall be maintained for a minimum of two (2) years following the closure of the site in a manner that complies with the applicable environmental performance standards in 401 KAR 47:030 and in accordance with any approved closure plan approved by the cabinet.

(5) The owner or operator of a residual landfill shall record a notice in the deed that shall in perpetuity notify any potential purchaser of the property of the location and time of the operation of the facility, the nature of the waste placed in the site and a caution against future disturbance of the area. Such notice shall be recorded in accordance with KRS Chapter 382 and proof of recording shall be submitted to the cabinet prior to the cabinet's acceptance of certification of closure.

(6) The cabinet may release the closure bonds two (2) years following the cabinet's acceptance of the owner's certification of closure. These funds shall be released upon inspection of the permit records and the site to determine that it is in compliance with all regulatory requirements and has at least a ninety (90) percent permanent vegetative cover.

(7) The owner or operator shall implement the approved closure care plan in accordance with the closure care schedule and shall perform other necessary corrective work required by the cabinet, if any, before the landfill closure care certification is accepted.

Section 4. Display of Permit. One (1) copy of the permit application shall be returned to the permittee. The permit with all applicable conditions shall be conspicuously displayed at the solid waste site or facility for the duration of the permit. A copy of the approved application, including plans, shall be available at the site.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.99
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to adopt rules and administrative regulations for the management, processing or disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing and disposal of waste obtain a permit. This chapter establishes the minimum technical standards for solid waste sites or facilities. This administrative regulation sets forth the technical requirements for residual landfills.
History: 401 KAR 048:170. 16 Ky.R. 1787; 2220; 2382; eff. 5-8-1990; Crt eff. 8-13-2018; Crt eff. 7-22-2025.

401 KAR 48:200 Landfarming and composting {#sec-401-kar-48-200 omnilex-key=us-ky-regs-official--title-401--401 KAR 48:200}

Section 1. Applicability.

(1) The requirements in this administrative regulation apply to any person disposing of solid waste by landfarming and composting.

(2) The cabinet shall not permit the land application of a solid waste that may present a threat to human health and the environment. The land application suitability of solid wastes shall be evaluated by the cabinet on a case-by-case basis. The applicant shall submit a request for a determination of waste classification with the submittal of a notice of intent to apply. The cabinet may base a decision as to the land application suitability of a particular waste upon the ability of the waste to biodegrade in the environment, the potential for the waste to be managed in a manner consistent with 401 KAR 47:030, the likelihood that waste constituents shall contaminate surface water or groundwater, the potential for nuisances from odors or unsightly conditions, and the potential for the waste to harm human health or the environment.

(a) Municipal water treatment sludges, municipal wastewater treatment sludges, or food service industry wastes shall be classified according to the maximum dry weight concentration of heavy metals based on the average concentration of metals in a minimum of two (2) consecutive samples taken no closer than thirty (30) days apart. The cabinet may deny the landfarming of a solid waste based upon health considerations in addition to the presence in the waste of excessive concentration of the five (5) heavy metals listed below. The sludges shall be placed in classes based on the concentration of the following heavy metals:

Cadmium;
Copper;
Lead;
Nickel; and
Zinc.

(b) Sludges or solid wastes other than municipal water treatment sludges, municipal wastewater treatment sludges, or food services industry solid wastes shall be classified using additional parameters based upon the source, chemical and physical characteristics of the waste and their potential for adverse impact on human health or the environment.

(3) The concentration for heavy metals in each class of sludge or solid waste shall be those indicated in Table 1 of this subsection. A single metal parameter shall be sufficient to require a solid waste to be classified as Class II or III.

(4) Sludge or solid waste classifications shall be reevaluated based upon the annual analyses submitted in the annual landfarming review.

(5) A registered permit-by-rule may be issued based upon the information submitted in the registration on a form prescribed by the cabinet in Section 18 of this administrative regulation for landfarming of solid waste classified as Class I wastes, composted solid waste sludge, or sludge giveaway programs.

(6) A landfarming permit may be issued based upon the information submitted in the application for solid wastes classified as Class II or III.

(7) Solid waste heavy metal concentration values are determined on a dry weight basis. Analysis shall be accomplished by determining the heavy metal concentration of the undried sample and determining the heavy metal content using the solids content of the original sample and computing the heavy metals content of the sludge on a dry weight basis. Results of the laboratory determination shall include the solids content, the wet weight and dry weight content when they are submitted to the cabinet.

Section 2. Notice of Intent to Apply. All applicants for a landfarming permit or a registered permit-by-rule shall submit a notice of intent to apply for a landfarming permit that shall contain the following information:

(1) Names, addresses, and telephone numbers of the landowner, applicant and waste producer. If the applicant is a government agency, corporation, company or partnership, include the name, address and telephone number of the process agent or contact individual;

(2) Sludge analyses in accordance with Section 1(2)(a) of this administrative regulation to receive a classification rating;

(3) An original, current 7.5 minute United States Geological Survey quadrangle topographic map with the proposed landfarming site boundary clearly marked;

(4) A soil conservation service soils map with the proposed landfarming site boundary clearly marked;

(5) A survey of all groundwater wells and springs within a one-fourth (1/4) mile radius of the proposed landfarming site boundary;

(6) A description of the water or wastewater treatment processes including design capacity, current hydraulic operating conditions, and the sludge treatment systems. A schematic diagram showing the treatment plant processes shall be included. All chemicals used in the treatment process shall be listed by type and amount used;

(7) For publicly owned treatment works with pretreatment programs, a list of facilities which discharge waters to the treatment system and the quantities and characteristics of the wastes that are discharged to the facility;

(8) Any other additional information required by the cabinet.

Section 3. Contents of Permit Applications. Any person desiring a landfarming facility permit shall submit a complete application to the cabinet. The applications shall be on a form and presented in a manner prescribed by the cabinet, and shall include, but not be limited to the following:

(1) Names, addresses and telephone numbers of the landowner, applicant, waste producer and person who completed the application form. If the applicant is a government agency, corporation, company or partnership, include the name, address and telephone number of process agent or other contact individual;

(2) A written description of the location of the proposed landfarming site and the address of the property on which the proposed landfarming site is located;

(3) A copy of the deed to the property and a copy of the proposed landfarming lease agreement if the landowner is not the applicant;

(4) A geological report of the site, including:

(a) A physical description of soils in the uppermost five (5) feet identifying the soil texture, erodibility, available moisture capacity, and permeability;

(b) A current soil analysis to determine the soil pH and cation exchange capacity (CEC) value;

(c) A delineation of soil by series on a U.S. Soil Conservation Service soils map, or on a map prepared by the soil conservation officer or a soil scientist; and

(d) A description of the surface and subsurface geology including depth to bedrock, depth to seasonal high groundwater table, karst formations, and names and descriptions of geologic formations.

(5) A description of the solid wastes to be disposed, including the inventory of industrial users and pollutants required in Section 9(7) of 401 KAR 5:055, including:

(a) The type, waste producer and total estimated quantity of solid waste per year to be disposed;

(b) A description of stabilization methods utilized to reduce pathogens in accordance with Section 11 of this administrative regulation; and

(c) A physical and chemical analysis including: percent total solids; volatile solids; total potassium; total phosphorus; total nitrogen; ammonium nitrogen (NH4-N); nitrate nitrogen (NO3-N); pH; and the amount of cadmium, copper, nickel, zinc, lead, chromium, and polychlorinated biphenyls (PCBs).

(6) An original current United States Geological Survey topographic map within the land application unit clearly marked;

(7) An enlargement of a current United States Geological Survey topographic map. The enlarged map shall have a minimum scale of one (1) inch equals 400 feet and the contour interval as published. This map shall contain the following:

(a) The property lines and the boundaries of the proposed site;

(b) Proposed land application unit and subplots, numbered sequentially, with the land application unit;

(d) Streams, areas of standing water such as lakes, ponds or marshes, and sinkholes on the site and within 1000 feet of the proposed site boundary;

(e) All existing manmade features within 1000 feet of the proposed site boundary including structures, public roads, utilities and water wells;

(f) The boundaries of the 100 year flood plain if applicable;

(g) The delineation of existing site surface water drainage, and existing and proposed run-off/run-on structures;

(h) Steepest slope of each subplot (numerical value) on the proposed landfarming site;

(i) Boundaries of any and all buffer zones with the distance marked; and

(j) Map legend showing all symbols used, total site acreage, and quadrangle name.

(8) The complete application narrative shall include:

(a) A description of the application method(s), equipment, and transportation method from the point of waste production to the proposed site;

(b) Waste storage provisions to be utilized during adverse weather conditions or equipment breakdowns;

(c) Annual application rates per acre based on waste quality as specified in Section 9 of this administrative regulation;

(d) The cropping program for each subplot and the schedule of waste application for each subplot for a period of two (2) years from the date of permit issuance;

(e) A farm management plan for the area to be landfarmed;

(f) A description of the proposed site including any previous waste applications;

(g) Written recommendations of the county agricultural extension agent for crop nitrogen requirements, and any additional fertilizer and soil amendment needed;

(h) A description of how land application units and subplot boundaries shall be marked to ensure that the units and subplots can be identified during the life of the permit;

(i) A description of where the landfarming records shall be maintained and the person who is responsible for their upkeep;

(j) The name, address, phone number, and certification number of the state certified landfarming operator of the proposed landfarming site;

(k) Additional information necessary for the cabinet to make a determination that the proposed activity shall not adversely affect human health or the environment; and

(l) A statement from the owner or operator that the landfarming of solid waste in the county where the landfarm facilities are located is consistent with the requirements of the solid waste management plans pursuant to KRS Chapters 109 and 224. When landfarming is not determined to be consistent with local requirements, the inconsistencies shall be identified.

Section 4. Requirements for Registered Permits-by-rule. Registered permits-by-rule shall complete the registration, prescribed on a form approved by the cabinet, containing the information in Section 18 of this administrative regulation. Owners and operators shall not be required to submit an application as specified in Sections 2, 3, 5 and 6 of this administrative regulation.

Section 5. Additional Requirements for Class II Sludge Permit Applications. In addition to the requirements for an application in Section 3 of this administrative regulation, applicants for landfarming permits for Class II sludge shall submit in the application the following:

(1) A list of all surface water bodies within a one-half (1/2) mile radius of the proposed land application unit boundary;

(2) The usage of each surface water body listed in accordance with subsection (1) of this section;

(3) A list of all groundwater wells, springs and sinkholes within a one-half (1/2) mile radius of the proposed land application unit boundary;

(4) The name of the owner of the property on which the surface water body, well, spring, or sinkhole is located; and

(5)

(a) The applicant shall prepare a groundwater quality assurance plan. The plan shall include but not be limited to:

A description of the surface and subsurface geology of the site; and
A description of the hydrologic characteristics of the site.

(b) Upon examination of geological aspects and other relevant factors by the cabinet, the applicant may be required to prepare a groundwater monitoring plan to include location and specifications of wells, monitoring parameters and monitoring schedules in accordance with 401 KAR 48:300.

Section 6. Additional Requirements for Class III Sludge Permit Applications. In addition to the requirements for an application in Section 3 of this administrative regulation, applicants for landfarming permits for Class III sludge shall submit in the application the following:

(1) A list of all surface water bodies within a one-half (1/2) mile radius of the proposed land application unit boundary;

(2) The usage of each surface water body listed in accordance with subsection (1) of this section;

(3) A list of all groundwater wells, springs and sinkholes within a one-half (1/2) mile radius of the proposed land application unit boundary;

(4) The name of the owner of the property on which the surface water body, well, spring, or sinkhole is located; and

(5)

(a) The applicant shall prepare a groundwater quality assurance plan. The plan shall include but not be limited to:

A description of the hydrologic characteristics of the site; and
A description of the surface and subsurface geology of the site.

(b) The applicant shall submit a groundwater monitoring plan to include location and specifications of wells, monitoring parameters, and monitoring schedules in accordance with 401 KAR 48:300.

Section 7. Siting Considerations.

(1) Solid waste shall not be applied in the 100 year flood plain unless the waste is injected or incorporated.

(2) The land application unit shall have a minimum of four (4) feet of soil between the soil surface and both the seasonal high water table and bedrock.

(3) Solid waste application shall not be located on soils with a permeability rate greater than six (6) inches per hour or less than two-tenths (0.2) inches per hour.

(4) Land application units shall not be located on land with a slope greater than fifteen (15) percent.

Section 8. Operating Requirements.

(1) The owner or operator shall cause, suffer, or allow all of the requirements, specifications and standards of this section to be met.

(a) Prior to applying sludges to the land, all sludges shall be processed to significantly reduce pathogens. Approved processes to reduce pathogens are aerobic digestion, air drying, anaerobic digestion, composting or lime stabilization as specified in Section 11 of this administrative regulation.

(b) Other methods or operating conditions may be acceptable as processes to significantly reduce pathogens. Such processes shall be deemed equivalent based upon the reduction of pathogens and volatile solids.

(2) A certified landfarming operator shall be available to the landfarming site during sludge application. All sludge applications are to be accomplished under the direction of a certified landfarming operator.

(3) When surface application is used in conjunction with soil incorporation methods, incorporation shall occur within forty-eight (48) hours of sludge application.

(4) Surface application without incorporation into the soil shall not be used on land without established vegetative cover or crop residue of at least seventy-five (75) percent.

(5) No hazardous wastes or mixtures of hazardous and solid waste shall be disposed, discharged to or placed in a landfarming site.

(6) No toxic wastes or mixtures of toxic and nontoxic wastes regulated under the Toxic Substances Control Act shall be disposed, discharged to or placed in a landfarming site.

(7) The following agricultural use restrictions apply:

(a) Land spreading shall not occur on land where leafy vegetables or root crops for human consumption shall be harvested within twelve (12) months;

(b) Land spreading shall not occur on land where crops for direct human consumption, other than leafy vegetables or root crops, are harvested within two (2) months;

(c) Dairy grazing shall be prohibited for six (6) months after land spreading, other livestock grazing shall be prohibited for three (3) months;

(d) When the annual application rate of cadmium exceeds 0.44 pound per acre, food chain crops shall not be utilized in the following cropping season; and

(e) Solid waste shall not be land spread where tobacco is harvested within five (5) years of waste application if the annual application rate of cadmium from the sludge exceeds 0.44 pound per acre at any time during the life of the site.

(8) The general public shall be restricted from the application zone for a period of twelve (12) months after each application.

(9) Solid waste shall not be land spread on frozen, snow-covered, ice-covered, or water-saturated soil, or during any precipitation event.

(10) No solid waste shall be applied in excess of schedules and rates of waste application approved by the cabinet.

(11) No raw or unstabilized solid waste shall be landfarmed. No person shall cause, allow or permit the discharge of air pollutants which cause or contribute to an objectionable odor.

(12) The amount of any single surface application shall not be greater than an average one-half (1/2) inch in thickness.

(13) High pressure spray irrigation of sludge which produces aerosols shall be prohibited.

(14) Subplots determined in Section 3(8)(h) of this administrative regulation shall be staked or otherwise clearly marked in the field.

(15) Buffer zone distances shall be maintained in accordance with Table 2 of this subsection.

(16) Surface water or solid waste ponding within the application zone shall be prohibited.

(17) Surface run-off/run-on shall be controlled to minimize the possibility of applied solid waste contaminating nearby surface water or adjacent land areas.

(18) The permit or registered permit-by-rule holder shall maintain records of all landfarming activities on forms provided by the cabinet throughout the operation of the site. The records shall at a minimum contain the schedules and rates of waste application and all laboratory analyses. Records shall be made available to the cabinet upon request.

(19) An annual report of landfarming activities shall be submitted to the cabinet sixty (60) days prior to the anniversary date of the permit or registered permit-by-rule issuance. The report shall be submitted on forms provided by the cabinet.

(20) Operational monitoring shall be performed on the following schedule:

(a) Soil shall be sampled annually in accordance with the soil monitoring plan in the approved permit application; and

(b) Solid waste from municipal wastewater treatment, municipal water treatment facilities and food service industry wastes shall be sampled in accordance with Table 3 of this paragraph or more frequently if required by the cabinet. Other solid waste shall be sampled in accordance with a schedule approved by the cabinet. Solid waste shall be analyzed for solids content, pH, ammonium nitrogen (NH4-N), nitrate nitrogen (NO3-N), total nitrogen, total phosphorus, total potassium, PCBs, chromium, copper, zinc, nickel, lead, and cadmium. Laboratory analysis results shall be reported in milligrams per kilogram wet and dry weight.

(21) Soil pH shall be six and five-tenths (6.5) or greater during crop production, hay production or grazing.

(22) Solid waste containing concentrations of polychlorinated biphenyls greater than one (1) milligram per kilogram shall not be landfarmed.

(23) The maximum amount of metals from solid wastes that may be applied during the life of the site shall be based upon the cation exchange capacity of the soil and shall be those in Table 4 of this subsection.

(24) The amount of nitrogen land spread shall not exceed the nitrogen utilization rate of the vegetative cover in the application zone.

(25) If the laboratory analyses and calculations to determine quantities of metals applied to the soil discloses that the cumulative concentration of a contaminant is above the maximum level permitted under subsection (23) of this section, a written notice shall be given to the cabinet within ten (10) days of receipt of the monitoring results. The permittee shall cease further landfarming and submit to the cabinet within forty-five (45) days a report describing proposed corrective actions to be taken by the permittee. A notice shall be recorded on the property deed within forty-five (45) days of receipt of the monitoring results stating that the property has received solid waste at concentrations exceeding permitted levels, and that food chain crops shall not be grown due to possible health hazards.

(26) In addition to the operating requirements in this section, an owner or operator who is landfarming Class I sludges shall limit the annual application rate to a maximum of fifteen (15) dry tons of sludge per acre per year.

(27)

(a) In addition to the operating requirements in this section, the owner or operator who is landfarming Class II sludge shall sample surface water quarterly. Parameters to be monitored shall include pH, ammonium nitrogen (NH4-N), fecal coliform bacteria, chromium, biological oxygen demand, total organic carbon, and total dissolved solids. A minimum of one (1) upgradient and one (1) downgradient sampling point is required.

(b) Groundwater monitoring, if required, shall be conducted in accordance with 401 KAR 48:300.

(28)

(a) In addition to the operating requirements in this section, the owner or operator who is landfarming Class III sludge shall sample surface water quarterly. Parameters to be monitored shall include pH, ammonium nitrogen (NH4-N), fecal coliform bacteria, chromium, biological oxygen demand, total organic carbon, and total dissolved solids. A minimum of one (1) upgradient and one (1) downgradient sampling point is required.

(b) Groundwater monitoring shall be conducted in accordance with 401 KAR 48:300.

Section 9. Application Rates.

(1) The annual application rate shall be the lesser of the application rates as determined for cadmium and for nitrogen utilization.

(2) Determine the percent of available organic nitrogen in the waste using the following calculation: Percent available organic N = (percent total N) - (percent NH4-N) - (percent NO3-N)

(3) Determine the amount of nitrogen that shall be available for plant uptake at the landfarming site using one (1) of the following calculations depending on the application method:

(a) Incorporation: Lbs available N/ton = (percent NH4-N x 20) + (percent NO3-N x 20) + (percent available organic N x 4)

(b) Surface application: Lbs available N/ton = (percent NH4-N x 10) + (percent NO3-N x 20) + (percent available organic N x 4). Tons/acre = Nitrogen utilization rate of vegetative cover Lbs available organic N/ton

(4) The annual application rate of cadmium from solid waste shall not exceed 0.44 pounds per acre. The annual application rate shall be determined using the following calculation: Tons/acre = pounds of allowable cadmium per acre (mg per kg of cadmium in sample) x 0.002

Section 10. Closure. An owner or operator of a permitted landfarming site shall submit to the cabinet a closure report to include:

(1) The results of final soil samples taken in accordance with the operational permit between twelve (12) and thirteen (13) months following the last application of solid waste;

(2) The results of final surface water samples taken in accordance with the operational permit between twelve (12) and thirteen (13) months following the last application of solid waste for all Class II and Class III permit holders;

(3) A historical summary of all landfarming by subplot showing the allowable and actual rates of solid waste application, heavy metals and nitrogen;

(4) When heavy metal applications exceed the amounts listed in Table 4 in Section 8(23) of this administrative regulation, the owner shall immediately commence closure of the facility and submit a copy of the notice in the deed that shall advise all future landowners in perpetuity that heavy metal concentrations exceed those allowed by this administrative regulation; and

(5) The results of final groundwater samples in accordance with the operational permit taken between twelve (12) and thirteen (13) months following the last application of solid waste by all Class III and those Class II permits required to monitor groundwater.

Section 11. Processes to Significantly Reduce Pathogens.

(1) Aerobic digestion. The process shall be conducted by agitating sludge with air or oxygen to maintain aerobic conditions at residence times ranging from sixty (60) days at fifteen (15) degrees celsius to forty (40) days at twenty (20) degrees celsius, with a volatile solids reduction of at least thirty-eight (38) percent.

(2) Air drying. Liquid sludge shall be allowed to drain or dry on underdrained sand beds, or paved or unpaved basins in which the sludge shall be at a depth of nine (9) inches. Air drying shall be conducted for a minimum of three (3) months, with two (2) months of temperatures which average on a daily basis above zero degrees celsius.

(3) Anaerobic digestion. The process shall be conducted in the absence of air at residence times ranging from sixty (60) days at twenty (20) degrees celsius to fifteen (15) days at thirty-five (35) degrees celsius to fifty-five (55) degrees celsius, with a volatile solids reduction of at least thirty-eight (38) percent.

(4) Composting. Using the within-vessel, static aerated pile or windrow composting methods, the solid waste shall be maintained at minimum operating conditions of forty (40) degrees celsius for five (5) days. For four (4) hours during this period, the temperature shall exceed fifty-five (55) degrees celsius.

(5) Lime stabilization. Sufficient lime shall be added to produce a pH of twelve (12) for two (2) hours of contact time.

(6) Other methods. Other methods or operating conditions may be acceptable if pathogens and vector attraction of the waste (volatile solids) are reduced to an extent equivalent to the reduction achieved by any of the above methods.

Section 12. Permit Modification.

(1) Landfarming permits shall be issued to the operator and may include application zones which are not located contiguously.

(2) Class II and Class III sludge landfarming permit holders may add sites through permit modification procedures with the following conditions:

(a) The permit holder shall submit the appropriate information in accordance with Section 3 of this administrative regulation; and

(b) A public notice shall be published and no permit modification granted until a minimum of thirty (30) days has passed from the date publication of the notice and the condition of Section 2 of 401 KAR 47:140 and 401 KAR 47:130 have been met.

Section 13. Distribution of Sludge.

(1) A municipal water or wastewater treatment sludge producer may give away Class I or Class II sludge to individuals for subsequent use as a soil conditioner. This program shall be operated under a registered permit-by-rule in accordance with 401 KAR 47:110. The maximum amount of sludge that may be distributed annually to any individual is limited to 2000 pounds (dry weight).

(2) Producers of Class I or Class II municipal water or wastewater sludge shall submit the following application requirements for the sludge giveaway program:

(a) A sludge analysis as required in Section 1 of this administrative regulation that demonstrates the sludge is Class I or II;

(b) A description of the distribution system;

(c) A recordkeeping system to include the name and address of individuals receiving sludge and the total quantity of sludge received; and

(d) A description of the process to significantly reduce pathogens.

(3) During operation of the giveaway program the producer shall:

(a) Maintain a list of names and addresses of all individuals receiving the sludge;

(b) Submit annually to the cabinet the sludge analysis performed in accordance with the schedule contained in Table 3 in Section 8(20) of this administrative regulation;

(c) Provide to individuals receiving waste, copies of the sludge analyses and a brochure, to be published by the cabinet, explaining the proper procedures to be utilized in the landfarming of sludge; and

(d) Use a process to significantly reduce pathogens in accordance with Section 11 of this administrative regulation.

Section 14. Sludge Composting. Sludge shall be composted under a registered permit-by-rule in accordance with 401 KAR 47:110.

(1) Producers of Class I or Class II municipal wastewater sludge shall register on a form prescribed by the cabinet containing the following information:

(a) A sludge analysis as required in Section 1 of this administrative regulation that demonstrates the sludge is a Class I or II;

(b) A description of the system and the manufacturer's performance data for mechanical composting systems;

(c) A site layout, including an enlarged topographic map with a scale of one (1) inch equals 400 feet along with calculations for area requirements;

(d) A sludge analysis for the following parameters (by dry weight): percent total solids; volatile solids; total potassium; total phosphorus; total nitrogen; ammonium nitrogen (NH4-N); nitrate nitrogen (NO3-N); pH; and total cadmium, copper, nickel, zinc, lead, chromium, and polychlorinated biphenyls (PCBs);

(e) A process design that shall describe:

Use of bulking agents, moisture control, or feed amendments;
Temperature ranges and residence times;
Storage of compost during curing after the primary composting operation;
Provision for additional drying and screening;

(f) A marketing and distribution plan;

(g) Specifications for the final product;

(h) A description of closure procedures for the composting site; and

(i) A narrative detailing the methods that the owner or operator shall use to comply with the environmental performance standards in 401 KAR 47:030.

(2) Any person who composts wastewater treatment or water treatment sludge shall:

(a) Use only Class I or Class II sludges for composting;

(b) Use a composting process to further reduce pathogens in accordance with subsection (3) of this section;

(d) After the composted sludge has completed the curing process, distribute or dispose within one (1) year at least seventy-five (75) percent of the compost; and

(e) Dispose of any materials that do not meet standards for distribution within one (1) month of such a determination in an approved facility.

Section 15. Solid Waste Composting. Solid wastes shall be composted under a registered permit-by-rule as allowed by 401 KAR 47:110.

(1) This section shall apply to any and all persons who compost solid waste other than wastewater treatment sludge for distribution.

(2) Owners and operators of registered permit-by-rule solid waste composting facilities shall register on a form prescribed by the cabinet containing the following information:

(a) A complete description of the solid waste to be composted;

(b) A description of the system and the manufacturer's performance data for mechanical composting systems;

(d) A process description which shall include the appropriate items as follows:

Use of bulking agents, moisture control or feed amendments;
Temperature ranges and residence times;
Storage of compost during curing after the primary composting operation; and
Provision for additional drying and screening.

(e) A marketing and distribution plan;

(f) Specifications for the final product;

(g) A plan for the closure of the composting site; and

(h) A narrative of the methods that the owner or operator shall use to comply with the environmental performance standards in 401 KAR 47:030.

(3) Any person who composts solid waste other than wastewater treatment or water treatment sludge shall:

(a) Keep a log of recipients who receive more than twenty (20) cubic yards in any given month;

(b) Maintain a record of the amount of solid waste that is composted and the date it is initiated and completed; and

(c) After the composted solid waste has completed the curing process, distribute or dispose within one (1) year at least seventy-five (75) percent of the compost.

Section 16. Compliance Schedule. This section applies to all persons who were issued a landfarming permit prior to May 8, 1990, and continue operation of their landfarming facility. Such persons shall do the following:

(1) Comply with the environmental performance standards of 401 KAR 47:030;

(2) Implement the operational requirements of Section 8 of this administrative regulation and continue with the monitoring requirements as prescribed in the landfarming permit;

(3) Submit the annual landfarming review for the landfarming permit sixty (60) days prior to the anniversary date of the permit issuance;

(4) Upon receipt and review of the annual landfarming review, the cabinet shall assign a classification rating to the solid waste and notify the permit holder of any additional information needed to amend the landfarming permit such that it complies with the terms of 401 KAR 48:200.

(5) Any person who qualifies for a registered permit-by-rule for landfarming shall notify the cabinet of his intent to continue operation of the facility by submitting a registration by October 1, 1990. Failure to submit the registration form shall result in the appropriate enforcement actions pursuant to KRS Chapter 224.

(6) Persons who were issued a permit prior to May 8, 1990, except those qualifying for a registered permit-by-rule, and fail to file the required information or respond to correspondence pertaining to their permit within the dates established in the correspondence, shall no longer hold a permit for landfarming. Prohibited by KRS 224.40-100, such sites shall be considered to be open dumps, should any additional solid waste be disposed without securing a valid permit.

Section 17. Public Information Process. Once the cabinet has made a preliminary determination to issue or deny a landfarming permit application, the permit applicant shall issue a public notice for approvals. The cabinet shall issue the public notice for denials. This notice shall be distributed by the cabinet as specified in 401 KAR 47:140. The contents of the public notice shall include those items listed in 401 KAR 47:140. The cabinet shall make available a thirty (30) day comment period commencing with the date the notice is published. This section does not apply to registered permits-by-rule.

Section 18. Registration. Persons who landfarm Class I sludge shall file a registration for a registered landfarming permit-by-rule that shall contain the following information:

(1) Names, addresses, and telephone numbers of the landowners, registrant and waste producer. If the applicant is a government agency, corporation, company or partnership, include the name, address and telephone number of the process agent or contact individual;

(2) Solid waste analyses in accordance with Section 1(2)(a) and (b) and Section 3(5)(c) of this administrative regulation to receive a classification rating;

(3) An original, current seven and five-tenths (7.5) minute United States Geological Survey quadrangle topographic map with the proposed landfarming site boundary clearly marked;

(4) A list of all known groundwater wells and springs within a one-fourth (1/4) mile radius of the proposed landfarming site boundary;

(5) A description of the water or wastewater treatment processes including design capacity, current hydraulic operating conditions, and the sludge treatment systems. A schematic diagram showing the treatment plant processes shall be included. All chemicals used in the treatment process shall be listed by type and amount used;

(6) Other additional information required by the cabinet; and

(7) Owners or operators shall submit revisions to the registration form for subsections (1) and (6) of this section, when necessary.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.70, 224.99
STATUTORY AUTHORITY: KRS 224.10-100
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 and the waste management provisions of KRS Chapter 224 require the Natural Resources and Environmental Protection Cabinet to adopt administrative regulations for the disposal of solid waste. This chapter establishes standards for solid waste sites or facilities. This administrative regulation sets forth the permit application requirements and general design and operating requirements for landfarming facilities, composting, and sludge giveaway programs.
History: 401 KAR 048:200. 16 Ky.R. 1789; 2221; 2383; eff. 5-8-1990; Crt eff. 8-13-2018; TAm eff. 10-15-2018; Crt to Am, filing deadline 2-6-2027.

401 KAR 48:205 Technical requirements for petroleum-contaminated soil treatment facilities {#sec-401-kar-48-205 omnilex-key=us-ky-regs-official--title-401--401 KAR 48:205}

Section 1. Definitions.

(1) "Asphalt plant aggregate dryer" means a low-temperature thermal desorption unit identical in design to a countercurrent rotary dryer that does not have a secondary treatment chamber, typically operates at a soil discharge temperature range from 300 degrees to 600 degrees Fahrenheit, and produces treated soil suitable for use as hot mix asphalt aggregate only.

(2) "Biopile" means a contained vessel or a lined and covered pile used for the biological treatment of petroleum-contaminated soil.

(3) "Conveyor furnace" means a low-temperature thermal desorption unit consisting of a flexible metal belt, which conveys petroleum-contaminated soil though the heating chamber. Soil agitators lift and turn the soil to enhance heat transfer. Organic vapors exiting the chamber are destroyed in an afterburner.

(4) "Low-temperature thermal desorption" means an ex-situ treatment technology that uses heat to physically separate petroleum hydrocarbons from excavated soils that have been screened to remove objects greater than two (2) inches in diameter. Low-temperature thermal desorption units heat soils to temperatures sufficient to volatilize petroleum hydrocarbons and can cause some hydrocarbons to completely or partially decompose. Vaporized hydrocarbons can be additionally treated in a secondary treatment chamber consisting of an afterburner, catalytic oxidation camber, condenser, or carbon absorption unit.

(5) "Petroleum-contaminated soil" means silt, sand, clay, gravel, or other earthen material; or asphalt, concrete, or absorbent materials containing hydrocarbon concentrations above the levels established in Section 6, Table 3 of this administrative regulation, but does not exhibit a hazardous characteristic or is not a listed hazardous waste as defined in 401 KAR Chapter 31.

(6) "Petroleum-contaminated soil treatment facility" means a solid waste site or facility where petroleum-contaminated soil is treated to reduce contaminant concentrations to or below the levels established in Section 6, Table 3 of this administrative regulation.

(7) "Rotary dryer" means a low-temperature thermal desorption unit that is a cylindrical metal reactor in which soil is brought into contact with heated purge gases, raising the temperature of the soil to physically separate petroleum hydrocarbons from the soil. Soil passing through the unit are lifted and turned to ensure all soil particles are sufficiently heated to adequately vaporize petroleum hydrocarbons out of the soil. Soil can pass through the unit concurrently or countercurrently to the direction of the purge gas flow.

(8) "Thermal screw" means a low-temperature thermal desorption unit consisting of a series of augers that convey, mix, and heat soil to volatilize petroleum hydrocarbons into a purge gas stream, with the exiting organic vapors either collected or destroyed. Heat is provided indirectly by hot oil or steam circulated through hollow stem augers and the jacketed trough in which each auger rotates.

(9) "Wellhead protection area" means:

(b) An area defined as a wellhead protection area in a county water supply plan.

Section 2. Applicability.

(1) This administrative regulation establishes minimum standards for the requirements, which shall be met for site selection, design, operation, and closure of a petroleum-contaminated soil treatment facility.

(2) This administrative regulation applies to a person conducting treatment of excavated petroleum-contaminated soils.

Section 3. Siting and Design Requirements for Petroleum-contaminated Soil Treatment Facilities.

(1) Treatment processes shall include low-temperature: low temperature thermal desorption and biopiles.

(2)

(a) Facility design and operation shall be as established in this administrative regulation and How to Evaluate Alternative Cleanup Technologies for Underground Storage Tank Sites: A Guide for Corrective Action Plan Reviewers (EPA 510-B-94-003; EPA 510-B-95-007; and EPA 510-R-04-002), Chapter IV, Biopiles, and Chapter VI, Low-Temperature Thermal Desorption; and

(b) Designs and plans constituting the practice of engineering shall be prepared by a professional engineer licensed in the Commonwealth of Kentucky and shall bear the professional engineer's seal, original signature, and date as established in KRS Chapter 322.

(3) Siting Considerations.

(a) Petroleum-contaminated soil treatment facilities shall maintain buffer zone distances as established in Table 1 of this subsection; and

(b) Petroleum-contaminated soil treatment facilities shall not be located in a 100-year floodplain, wellhead protection, area or wetland.

(4)

(a) Storage and preparation of soil to be treated shall be conducted in a roofed enclosure with a concrete floor or in an enclosed container.

(b) Temporary storage of incoming materials, shall not exceed seven (7) days, and shall be:

In trucks, trailers, or storage containers with impermeable covers; or
On an impermeable pad or synthetic liner with a minimum thickness of thirty (30) mils, with an impermeable cover.

(5) Biopiles. A biopile treatment system shall include the following:

(a) A liner system with a minimum slope of two (2) percent, designed to contain and capture liquids, that has from bottom to top:

A subgrade;

a. A twelve (12) inch thick compacted clay liner (CCL) or a twelve (12) inch thick geosynthetic clay liner (GCL) support layer with a maximum remolded coefficient of permeability of 1 x 10-7 centimeters per second in the laboratory; and

b. A GCL with a demonstrated hydraulic conductivity less than 5 x 10-9 centimeters per second;

A sixty (60) mil thick High-Density Polyethylene (HDPE);
A granular leachate collection layer and leachate collection system with an overlain geotextile and an equivalent Synthetic Drainage Layer (SDL) meeting the following requirements:

a. The SDL shall not be adversely affected, chemically or physically, by waste placement or leachate; and

b. Documentation shall be submitted to ensure chemical compatibility of the SDL chosen; and

A twelve (12) inch thick soil layer with a minimum permeability of 1.0 x 10 -3 centimeters per second to protect the liner system; or

(b) A reinforced six (6) inch thick concrete pad with a minimum slope of two (2) percent designed to contain and capture liquids that have the following, from bottom to top:

The pad shall be overlain by a sixty (60) mil thick HDPE liner;

a. A granular leachate collection layer, and leachate collection system with an overlain geotextile; or

b. An equivalent SDL; and

A twelve (12) inch thick soil layer with a minimum permeability of 1.0 x 10 -3 centimeters per second to protect the liner system;

(d) A nutrient and moisture injection system;

(e) A synthetic cover; and

(f) A berm sufficient to control run-on and run-off from a twenty-four (24) hour, 100-year storm event; and

(6) The construction of the liners in paragraphs (a) and (b) of this subsection shall comply with the quality assurance and quality control requirements of 401 KAR 48:206, 48:207, and 48:208.

(7) Low-temperature Thermal Desorption.

(a) A low-temperature thermal desorption facility shall obtain fiscal court approval and an air contaminant source permit from the Division of Air Quality in accordance with KRS 224.20-150.

(b) The treatment system shall be one (1) of the following:

Rotary dryer;
Asphalt Plant Aggregate dryer. An Asphalt Plant Aggregate dryer shall operate only in conjunction with a hot mix asphalt operation that uses the treated soil immediately upon being discharged from the treatment unit;
Thermal screw; or
Conveyor furnace.

(d) Treated soil shall be stored as established in subsection (4) of this section until analytical results demonstrate compliance with the limits as established in Section 6(1), Table 3 of this administrative regulation.

Section 4. Procedures for Excluding the Receipt of Wastes Other than Petroleum-contaminated Soil.

(1)

(a) The permittee shall implement a program at the facility for detecting and preventing the receipt of nonpermitted wastes.

(b) These nonpermitted waste streams include:

Household wastes including garbage;
Conditionally exempt small quantity generator (CESQG) hazardous wastes;
Hazardous waste exempt spill residues;
Hazardous wastes as defined in 401 KAR Chapter 31;
Polychlorinated biphenyl (PCB) wastes; and
Other nonpermitted wastes.

(2) This program shall include:

(a) Visual inspection of all waste as it is delivered;

(b) Random inspections of incoming loads;

(d) Records of inspections;

(e) Training of facility personnel to recognize wastes that are not permitted wastes;

(f) Procedures for notifying the proper authorities if a hazardous or PCB waste is discovered at the facility;

(g) Procedures to remove and transport solid or special wastes other than permitted wastes to the proper solid or special waste disposal site or facility; and

(h) Employee safety, health, training, and personal protective equipment to be used in inspection.

(3) The permittee shall implement the following to meet the requirements of subsection (1) of this section:

(a) The permittee shall have a program, as established in the approved permit, to inspect all waste entering the facility. The program to exclude nonpermitted waste shall include:

Random inspections in time, but uniformly distributed to all waste sources based on volume;
An inspection record including the following:

a. Name of the driver;

b. Name of the hauling company;

c. Mailing address of the hauling company;

d. Source of the waste;

e. Volume of the waste; and

f. Waste characteristics; and

Inspection record maintenance performed by the permittee;

(b) Upon discovery of hazardous or PCB waste, the permittee shall isolate the load and notify the cabinet within one (1) business day; and

(c) Upon discovery of non-permitted solid or special wastes, the permittee shall implement the procedures to remove and transport non-permitted solid or special wastes to a permitted solid or special waste landfill.

Section 5. Petroleum-contaminated Soil Characterization.

(1)

(a) Petroleum-contaminated soil shall be characterized as established in 401 KAR Chapter 42; or

(b) Wastes shall be characterized according to the maximum dry weight concentration of pollutants based on the average concentration in a minimum of two (2) representative samples.

(2) The permittee shall take representative samples as established in Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, EPA Publication SW–846, Update IV of the Third Edition.

(3) Wastes shall be characterized by analyzing the following:

(4)

(a) The permittee shall characterize chemical and physical waste parameters that are potential surface water or groundwater pollutants not in Table 2 of this section.

(b) The characterization shall include, based on generator knowledge, ingredients, additives, by-products, contaminants, lubricants, cleaning agents, hazardous constituents, and chemicals from the following sources:

401 KAR 47:030, Section 4 and 5, Environmental Performance Standards;
401 KAR 10:031, Surface Water Standards;
U.S. EPA Regional Screening Levels (RSLs); and
Material safety data sheets.

(5)

(a) Waste analysis shall be reported as the average of at least two (2) representative samples on a dry weight basis.

(b) Dry weight pollutant concentrations shall be calculated by determining the pollutant concentration of the sample, and converting to dry weight (mg/kg) content using the percent solids of the original sample.

(6) The applicant shall obtain a new waste characterization as established in subsections (1) or (2) of this section for each source of petroleum-contaminated soil.

Section 6. Treatment Standards and Disposition of Treated Soil.

(1)

(a) The applicant shall treat petroleum-contaminated soil to ensure that the following parameters are equal to or less than the concentrations as established in Table 3 below:

(b) For metals, the permittee:

May establish background concentrations at the property of origination for each parameter in Table 3 of this section and treat the petroleum-contaminated soil to the background level; and
Shall not release treated soil for placement within:

a. Four (4) vertical feet of the seasonal high groundwater table; or

b. 250 feet of an intermittent or perennial stream.

(2)

(a) The applicant shall take representative samples as established in 401 KAR Chapter 42 or samples as established in Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, EPA Publication SW–846, Update IV of the Third Edition.

(b) The sample concentration shall comply with subsection (1) of this section prior to release of treated soil from the facility.

(c) If the sample concentration does not meet subsection (1) of this section, the treated soil shall be disposed in a permitted solid waste disposal facility.

(3) The permittee shall provide the following to individuals receiving treated soil:

(a) Copies of the treated soil analyses; and

(b) A brochure explaining the procedures to be utilized in the use of treated soil including setback requirements in subsection (1)(b)2. of this section.

(4) The permittee shall not allow the volume of stored treated soil to exceed three (3) months' treatment capacity, as established in the permit under 401 KAR 47:205.

Section 7. Closure Plan and Cost Estimate.

(1) A closure plan and cost estimate, as required in 401 KAR 47:205, Section 10, shall contain cost estimates for the following:

(a) The maximum storage capacity of untreated soil;

(b) The maximum amount of soil in the process of being treated;

(d) Disposal of untreated soil at a permitted disposal facility;

(e) Decommissioning of the liner and leachate collection system;

(f) Removal of processing equipment;

(g) Revegetation of disturbed areas; and

(h) Sampling of soils on-site to document that soil parameters comply with Section 6(1) of this administrative regulation.

(2) The cost estimate for closure under the requirements established in 401 KAR 48:310, Section 2, and KRS 224.40-650.

Section 8. Recordkeeping and Reporting.

(1) The permittee of a petroleum-contaminated soil treatment facility shall retain at the office of the facility for a period of five (5) years, the following information:

(a) The source, volume in cubic yards (CY), and date the contaminated soil was received for treatment;

(b) The monthly volume of treated soil in CY;

(c) The log of recipients who receive more than twenty (20) cubic yards of treated soil in any given month required to be included in the form DEP 5042, Annual Report for a Petroleum Contaminated Soil Treatment Facility;

(d) The biopile monitoring log required to be in the form DEP 5042, Annual Report for a Petroleum-contaminated Soil Treatment Facility; and

(e) The laboratory analysis reports.

(2)

(a) The operator shall complete and submit to the cabinet by January 31 of each year, for the previous year, typed or printed legibly in permanent ink, the form DEP 5042, Annual Report for a Petroleum-contaminated Soil Treatment Facility.

(b) The annual report shall include:

Agency interest and permit number;
Name, address, and contact information for the applicant;
Name and certification number of the certified operator;
Petroleum-contaminated soil information for each waste stream including:

a. Property of origination, name of property owner, and name of leaseholder;

b. Underground Storage Tank registration number, if applicable;

c. Hydrocarbon type;

d. Volume in cubic yards (CY); and

e. Characterization as required by Section 5 of this administrative regulation;

The volume of treated soils:

a. Prepared for distribution;

b. Distributed from the facility;

c. Disposed at a permitted solid waste disposal facility; or

d. Reused on-site as a recovered material;

Treated soil analytical information for each biopile or sample unit;
Copies of laboratory analysis reports for the reporting year; and
The information in subsection (1) of this section for the previous twelve (12) months.

Section 9. Incorporation by Reference.

(1) The following documents are incorporated by reference:

(a) "How to Evaluate Alternative Cleanup Technologies for Underground Storage Tank Sites: A Guide for Corrective Action Plan Reviewers" (EPA 510-B-94-003; EPA 510-B-95-007; and EPA 510-R-04-002), Chapter IV, Biopiles, and Chapter VI, Low-Temperature Thermal Desorption, October 1994;

(b) U.S. EPA "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", Update IV of the Third Edition, March 2011;

(d) U.S. EPA "Regional Screening Levels", November 2010.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. This material may also be obtained at the division's Web site eec.ky.gov/environmental-protection/waste.

(3)

(a) The material in subsection (1)(a) of this section may also be obtained at:

National Technical Information Service (NTIS); U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161; or
http://www.epa.gov/oust/pubs/tums.htm

(b) The material in subsection (1)(b) of this section may also be obtained at:

National Technical Information Service (NTIS); U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161; or
http://www.epa.gov/epawaste/hazard/testmethods/sw846/online/index.htm

History

RELATES TO: KRS 224.01-010, 224.10-100, 224.10-105, 224.20-150, 224.40-100, 224.40-305, 224.40-330, 224.40-605, 224.40-650, 224.70-100, 224.70-110, 224.99-010, 224.99-020, 322
STATUTORY AUTHORITY: KRS 224.10-100(19)(c), (24), 224.40-100, 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(19)(c), (24) and 224.40-305 authorize the cabinet to promulgate administrative regulations for the management, processing, and disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing, and disposal of solid waste obtain a permit. This administrative regulation establishes requirements for petroleum-contaminated soil treatment facilities.
History: 401 KAR 048:205. 37 Ky.R. 2778; 38 Ky.R. 556; eff. 10-6-2011; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Crt eff. 8-13-2018; TAm eff. 5-7-2019; Crt eff. 7-22-2025.

401 KAR 48:206 Petroleum-contaminated soil treatment facility liner soil layer quality assurance and quality control {#sec-401-kar-48-206 omnilex-key=us-ky-regs-official--title-401--401 KAR 48:206}

Section 1. Definitions.

(1) "Certifying engineer" means "professional engineer," as defined by KRS 322.010(3), who implements the petroleum-contaminated soil treatment facility construction quality assurance plan

(2) "Petroleum-contaminated soil" means silt, sand, clay, gravel, or other earthen material; or asphalt, concrete, or absorbent materials containing hydrocarbon concentrations above the levels established in 401 KAR 48:205, Section 6, Table 3, but does not exhibit a hazardous characteristic or is not a listed hazardous waste as defined in 401 KAR Chapter 31.

(3) "Petroleum-contaminated soil treatment facility" means a solid waste site or facility where petroleum-contaminated soil is treated to reduce contaminant concentrations to or below the levels established in 401 KAR 48:205, Section 6, Table 3.

(4) "Quality assurance" means the procedures implemented by the professional engineer to ensure that the construction of the petroleum-contaminated soil treatment facility meets design specifications and performance requirements.

(5) "Quality control" means the system of control implemented by the manufacturer, fabricator, installer, construction contractor, operator, or other person in order to meet construction specifications for the construction of the petroleum-contaminated soil treatment facility.

Section 2. Applicability.

(1) The quality assurance and quality control requirements of this administrative regulation apply to the construction of biopile liners at petroleum-contaminated soil treatment facilities.

(2) The liner design requirements for biopiles at petroleum-contaminated soil treatment facilities are established in 401 KAR 48:205, Section 3.

Section 3. Specific Subgrade Requirement for Bottom Liners.

(1) The petroleum-contaminated soil treatment facility liner subgrade is the uppermost in situ rock layer, in situ soil layer, or structural soil fill that shall be graded and prepared for liner construction.

(2) Materials required. The liner subgrade material shall be free of organic material and consist of bedrock, on-site soils, or structural soil fill with the ability to support the maximum load with a minimum factor of safety of two and zero-tenths (2.0).

(3) Construction requirements.

(a) The subgrade shall be graded in accordance with the requirements of the approved engineering plans, report, and specifications in the petroleum-contaminated soil treatment facility permit.

(b) The material shall be sufficiently dry and structurally sound to ensure that the first lift and all succeeding lifts of structural soil fill placed over the subgrade shall be adequately compacted to comply with the design requirements.

(4) Certification requirements.

(a) The certifying engineer shall include in the form DEP 8064, Construction Progress Report for a Petroleum-contaminated Soil Treatment Facility, as incorporated by reference in 401 KAR 47:205, Section 10, a discussion of the reviewed data resulting from the quality assurance and quality control testing required in this section of this administrative regulation.

(b) The results of all testing shall be included in the form DEP 8064, Construction Progress Report for a Petroleum-contaminated Soil Treatment Facility, as incorporated by reference in 401 KAR 47:205, Section 10, including documentation of failed test results, descriptions of the procedures used to repair the failed material, and documentation of retesting performed.

Before placing material over the subgrade, the certifying engineer shall visually inspect the exposed surface to evaluate the suitability of the subgrade and ensure that the surface is properly compacted, smooth, uniform, and has positive surface drainage;
Liner soil subgrade shall be proof-rolled using a fully loaded articulated truck with a fifty-five (55) ton gross vehicle weight;
A structural soil fill subgrade shall be tested for density and moisture content at a minimum frequency of nine (9) tests per acre, and constructed in lifts;
The subgrade shall be compacted to a density of at least ninety-two (92) percent of the standard proctor;
The completed form DEP 8064, Construction Progress Report for a Petroleum Contaminated Soil Treatment Facility, as incorporated by reference in 401 KAR 47:205, Section 10, shall show the finished elevation of the completed subgrade, referenced to existing site control, using a Three (3) Dimensional Terrain Model on Computer Assisted Design Drawing (CADD) or cross-section;
The finished elevations shall serve as documentation and reference data for future volume calculations; and
Testing shall be performed in accordance with ASTM International standards, or similar method based on the applicable standards of practice for certification by a professional engineer as established in KRS 322.010(16).

Section 4. Specific Soil Support Component Requirements of Compacted Clay Liner (CCL) Systems for Bottom Liners. The Compacted Clay Liner (CCL) component of the bottom liner shall be a continuous layer of low permeability soil constructed to control fluid migration.

(1)

(a) Low permeability soil components shall have a maximum remolded coefficient of permeability of 1 x 10-7 centimeters per second.

(b) The soil shall be placed without damaging the collection and removal system components.

(c) The soil material in the top maximum compacted six (6) inch lift shall be free of roots, wood, or other decayable materials and durable rock greater than one-half (1/2) inches in diameter.

(d) The soil material in the bottom lifts shall be free of roots, wood, or other decayable materials and durable rock greater than two (2) inches in diameter.

(e) The CCL shall contain not more than thirty (30) percent by volume durable rock.

(f) The soil shall be compacted to a minimum of ninety-two (92) percent of the modified or standard proctor density.

(2) Construction requirements. The certifying engineer shall ensure that the soil component of the liner system installation conforms to the following minimum requirements:

(a)

Compaction shall be performed by properly controlling the moisture content, lift thickness, and other necessary details to obtain the density, moisture, and permeability characteristics established in this administrative regulation; and
The maximum final compacted thickness of each lift of soil material shall be six (6) inches or the thickness necessary to protect the integrity of underlying components and achieve the required liner performance standards;

(b) During construction, the moisture content of the CCL shall be maintained within the range identified in accordance with paragraph (c) of this section to ensure that each remolded lift attains the required minimum permeability;

(c)

The layers of the CCL shall be compacted using non-vibratory compactors with full depth penetrating feet with a minimum of six (6) passes per soil layer.

a. The compactor ballast shall be adjusted to prevent reaching the desired proctor density with fewer than six (6) passes; and

b. The sheepsfoot length shall be one (1) inch longer than the loose soil layer thickness; and

(d) At the end of each work period, the surface shall be sealed from rain infiltration.

(3) Certification requirements. The certifying engineer shall include in the form DEP 8064, Construction Progress Report for a Petroleum Contaminated Soil Treatment Facility, as incorporated by reference in 401 KAR 47:205, Section 11:

(a) A discussion of required quality assurance and quality control testing. Quality assurance testing shall include moisture-density testing performed using nuclear methods:

At least nine (9) density tests per acre per lift of soil material placed; and
A minimum of nine (9) moisture content tests per lift of soil material placed; and

(b) The results of testing, including documentation of failed test results, descriptions of the procedures used to correct the improperly installed material, and statements of retesting performed in accordance with the following requirements:

a. The certifying engineer shall certify, after review of the quality control testing of the soil layer, that the material meets the requirements of the approved engineering plans, reports, and specifications in the petroleum-contaminated soil treatment facility permit.

b. The certifying engineer shall approve and certify the quality assurance testing of all soil liner materials.

c. All quality assurance testing shall be done by the certifying engineer or under the direct supervision of the certifying engineer as established in KRS 322.180(16).

The following quality control tests shall be performed on a minimum of at least one (1) sample from each soil classification:

a. One (1) analysis of soil particle size for every 2,000 cubic yards of soil material;

b. Classification of soils for engineering purposes for each 10,000 cubic yards of soil material;

c. One (1) moisture content test for every 2,000 cubic yards of soil material;

d. One (1) Atterberg limits analysis of plastic and liquid limit and plasticity index in the permit for every 2,000 cubic yards of soil material; and

(i) A minimum of one (1) comparison of the moisture-density-permeability relation for every 20,000 cubic yards of soil material; and

(ii) Procedures that comply with the American Society of Civil Engineers paper, "Water Content-Density Criteria for Compacted Soil Liners" by Daniel and Benson, to develop the window of overall acceptable zone of permeability on a graph of dry unit weight versus molding water content; and

(c) All testing shall be performed in accordance with a method based on the applicable standards of practice for certification by a professional engineer as established in KRS 322.010(16).

Section 5. Specific Requirements for the Geosynthetic Clay Liner (GCL) Support Layer for Bottom Liners. The GCL support layer of the bottom liner shall be a continuous layer of cohesive soil constructed to adequately support or protect the geosynthetic clay liner (GCL) and resist puncturing.

(1)

(a) The GCL support layer of the bottom liner system shall have a maximum remolded coefficient of permeability of 1 x 10-7 centimeters per second in the laboratory.

(b) The soil shall be placed without damaging the collection and removal system components.

(c) The soil material in the top six (6) inch lift shall be free of roots, wood, or other decayable materials and durable rock greater than one (1) inch in diameter.

(d) The soil material in the bottom lifts shall be free of roots, wood or other decayable materials and durable rock greater than two (2) inches in diameter.

(e) The CCL shall contain not more than thirty (30) percent by volume durable rock.

(f) The soil shall be compacted to a minimum of ninety-five (95) percent of the standard proctor density.

(2) Construction requirements. The certifying engineer shall ensure that the support component of the bottom liner system installation conforms to the following minimum requirements:

(a)

Compaction shall be performed by controlling the moisture content and lift thickness to obtain the density and moisture window derived using procedures in Water Content-Density Criteria for Compacted Soil Liners;
The maximum final compacted thickness of each lift of soil material shall be six (6) inches; and
The thickness of the initial lift shall be increased as necessary to protect the integrity of underlying components and achieve the required liner performance standards;

(b) To ensure that each lift attains the required density during construction of the support layer, the moisture content of the GCL support component of the bottom liner system shall be maintained within the range identified in accordance with the ASTM D698 - 07e1 Standard Test Methods for Laboratory Compaction Characteristics of Soil Using Standard Effort (12 400 ft-lbf/ft3 (600 kN-m/m3); and

(a) A discussion of required quality assurance and quality control testing. Quality assurance testing shall include:

At least nine (9) density tests per acre per lift of soil material placed; and
A minimum of nine (9) moisture content tests per acre per lift of soil material placed; and

(b) The results of all testing shall be included in the form DEP 8064, Construction Progress Report for a Petroleum Contaminated Soil Treatment Facility, as incorporated by reference in 401 KAR 47:205, Section 10, including documentation of failed test results, descriptions of the procedures used to correct the improperly installed material, and statements of retesting performed in accordance with the following requirements:

a. The certifying engineer shall certify, after review of the quality control testing of the GCL support layer, if the material meets the requirements of the approved engineering plans, reports, and specifications in the petroleum-contaminated soil treatment facility permit; and

b. The quality control testing shall ensure that the specified material meets the density requirements of subsection (1) of this section; and

Quality assurance testing shall be based on the applicable standards of practice for certification by a professional engineer as established in KRS 322.010(16), and shall be performed at the following minimum frequency for each soil classification:

a. One (1) analysis of soil particle size for every 4,000 cubic yards of soil material;

b. One (1) analysis of soil classification for engineering purposes for each 20,000 cubic yards of soil material;

c. One (1) moisture content test for every 4,000 cubic yards of soil material;

d. One (1) Atterberg limits analysis of plastic and liquid limit and plasticity index in the permit for every 4,000 cubic yards of soil material placed; and

e. One (1) moisture content test for every 4,000 cubic yards of soil material placed.

Section 6. Specific Requirements for the Synthetic Liner Soil Support Layer for Bottom Liners. The synthetic liner soil support layer of the bottom liner system shall be a continuous layer of soil constructed to adequately support or protect the synthetic liner.

(1)

(a) The synthetic liner support layer of the bottom liner system shall be placed without damaging the collection and removal system components.

(b) The soil material in the top six (6) inch lift shall be free of roots, wood, or other decayable materials, and durable rock greater than one (1) inch in diameter.

(c) The soil material in the bottom lifts shall be free of roots, wood, or other decayable materials and durable rock greater than two (2) inches in diameter.

(d) The synthetic liner support layer shall not contain more than thirty (30) percent by volume durable rock.

(e) The soils shall be compacted to a minimum of ninety-two (92) percent of the standard proctor density.

(2) Construction requirements. The certifying engineer shall ensure that the synthetic liner support component of the bottom liner system installation conforms to the following minimum requirements:

(a)

Compaction shall be performed by properly controlling the moisture content and lift thickness to obtain the density and moisture characteristics established within the range identified in accordance with the ASTM D698 - 07e1 Standard Test Methods for Laboratory Compaction Characteristics of Soil Using Standard Effort (12,400 ft-lbf/ft3 (600 kN-m/m3);
The maximum final compacted thickness of each lift of soil material shall be six (6) inches. The thickness of the initial lift shall be increased as necessary to protect the integrity of underlying components and achieve the required liner performance standards;

(b) To ensure that each lift attains the required density during construction of the synthetic liner support layer, the moisture content of the synthetic liner support component of the bottom liner system shall be maintained within the range identified in accordance with the ASTM D698 - 07e1 Standard Test Methods for Laboratory Compaction Characteristics of Soil Using Standard Effort (12,400 ft-lbf/ft3 (600 kN-m/m3); and

(a) A discussion of required quality assurance and quality control testing. Quality assurance testing shall include:

At least nine (9) density tests per acre per lift of soil material; and
A minimum of nine (9) moisture content tests per acre per lift of soil material; and

a. The certifying engineer shall certify, after review of the quality control testing of the synthetic liner support layer, if the material meets the requirements of the approved engineering plans, reports, and specifications in the permit; and

b. The quality control testing shall ensure that the specified material meets the density requirements of subsection (1) of this section; and

Quality assurance testing shall be based on the applicable standards of practice for certification by a professional engineer as established in KRS 322.010(16), and shall be performed at the following minimum frequency for each soil classification:

a. One (1) analysis of soil particle size for every 4,000 cubic yards of soil material;

b. One (1) analysis of soil classification for engineering purposes for each 20,000 cubic yards of soil material; and

c. One (1) moisture content test for every 4,000 cubic yards of soil material placed.

Section 7. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "Water Content-Density Criteria for Compacted Soil Liners" by David E. Daniel, Member, American Society of Civil Engineers (ASCE), and Craig H. Benson, Associate Member, ASCE, The Journal of Geotechnical Engineering, Vol. 116, No. 12, December 1990; and

(b) ASTM D698 - 07e1 "Standard Test Methods for Laboratory Compaction Characteristics of Soil Using Standard Effort (12,400 ft-lbf/ft3 (600 kN-m/m3)", April 2007.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m., or from the Web site at eec.ky.gov/environmental-protection/waste.

(3) This material may also be obtained at the American Society of Civil Engineers:

(a) ASCE World Headquarters, 1801 Alexander Bell Drive, Reston, Virginia 20191-4400 USA; and

(b) Web site: http://www.asce.org/asce.cfm

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.99, 322.010(16), 322.180(16)
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-100(9)(c), (24), (28), 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.40-100(19)(c), (24) and (28) requires the cabinet to promulgate rules and administrative regulations for the permitting, management, processing, or disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing, and disposal of waste obtain a permit. This administrative regulation establishes the liner quality assurance and quality control testing requirements for petroleum-contaminated soil treatment facilities.
History: 401 KAR 048:206. 37 Ky.R. 2788; 38 Ky.R. 559; eff. 10-6-2011; TAm eff. 7-8-2016; Crt eff. 8-13-2018; TAm eff. 5-7-2019; Crt eff. 7-22-2025.

401 KAR 48:207 Petroleum-contaminated soil treatment facility liner geosynthetic quality assurance and quality control {#sec-401-kar-48-207 omnilex-key=us-ky-regs-official--title-401--401 KAR 48:207}

Section 1. Definitions.

(1) "Certifying engineer" means "professional engineer," as defined by KRS 322.010(3), who implements the petroleum-contaminated soil treatment facility construction quality assurance plan.

(4) "Quality assurance" means the procedures that are initiated by the owner or operator and implemented by the professional engineer to ensure that the construction of the petroleum-contaminated soil treatment facility meet design specifications and performance requirements.

Section 2. Applicability.

(1) The quality assurance and quality control requirements of this administrative regulation apply to the construction of liner geosynthetics for biopiles at petroleum-contaminated soil treatment facilities.

(2) The biopile liner design requirements are established in 401 KAR 48:205, Section 3, for petroleum-contaminated soil treatment facilities.

Section 3. Specific Geosynthetic Clay Liner (GCL) Requirements for Bottom Liners. A Geosynthetic Clay Liner (GCL) is a low permeability man-made material having a maximum coefficient of permeability of 5 x 10-9 centimeters per second and is used to control fluid migration.

(1) Materials required.

(a) The GCL shall have a demonstrated hydraulic conductivity less than 5 x 10-9 centimeters per second.

(b)

Documentation shall be submitted to ensure chemical compatibility of the wastes with the GCL; or
In the absence of the appropriate documentation, chemical compatibility testing shall be performed using the current version of ASTM D6141 Standard Guide for Screening Clay Portion of Geosynthetic Clay Liner (GCL) for Chemical Compatibility to Liquids; or similar method based on the applicable standards of practice as established in KRS 322.010(16) for certification by a professional engineer.

(2)

(a) Construction requirements. A GCL shall be installed in accordance with the requirements of the approved engineering plans, reports, and specifications in the petroleum-contaminated soil treatment facility permit and manufacturer's recommendations.

(b) The certifying engineer shall ensure that the GCL installation, at a minimum, shall conform to the following:

The GCL shall meet the manufacturer's and professional engineer's specifications based on the Geosynthetic Research Institute (GRI) GRI-GCL3, Test Methods, Required Properties, and Testing Frequencies of Geosynthetic Clay Liners (GCLs);
The GCL shall be installed on a biopile liner subgrade to promote positive drainage;
GCL installed on slopes shall be designed to withstand the calculated tensile forces acting upon the synthetic material and shall ensure that overall slope stability is maintained;

a. The surface of the supporting soil above which the GCL liner shall be installed shall be free of stones, organic matter, irregularities, protrusions, loose soil, and abrupt changes in grade that may damage the GCL; and

b. The supporting soil shall conform to the requirements established in 401 KAR 48:206, Section 5;

The anchor trench shall be excavated to the length and width prescribed on the approved design drawings in the permit;

a. Field seams shall be oriented parallel to the line of maximum slope, which is oriented along, not across the slope.

b. In corners and irregularly-shaped locations, the number of field seams shall be minimized;

The materials shall be overlapped using the appropriate method acceptable to the manufacturer;
The seam area shall be free of moisture, dust, dirt, debris, and foreign material before overlapping; and
Field seam overlapping shall be prohibited if the conditions, including precipitation and wind, do not meet the professional engineer's recommendations based upon the manufacturer's specifications.

(3) Certification requirements.

(a) The certifying engineer shall include in the form DEP 8064, Construction Progress Report for a Petroleum Contaminated Soil Treatment Facility, as incorporated by reference in 401 KAR 47:205, Section 10, a discussion of the approved data resulting from the quality assurance and quality control testing required in this subsection.

(b) The results of testing shall be included in the form DEP 8064, Construction Progress Report for a Petroleum Contaminated Soil Treatment Facility, as incorporated by reference in 401 KAR 47:205, Section 10, including documentation of failed test results, descriptions of the procedures used to correct the failed material, and statements of retesting performed.

(c) The certifying engineer shall certify, after review of the quality control testing of the GCL, that the material meets the requirements of the approved engineering plans, reports, and specifications in the petroleum-contaminated soil treatment facility permit. Before installing a GCL, the following information shall be available to the certifying engineer for approval:

Origin and identification of the raw materials used to manufacture the GCL;
Copies of quality control certificates issued by the producer of the raw materials used to manufacture the GCL; and

a. Reports of tests conducted by the manufacturer to verify the quality of the raw materials used to manufacture the GCL.

b. Tests shall be conducted for Bentonite Fluid Loss, Bentonite Mass per Area, Bentonite Swell Index, Grab Strength, Hydrated Internal Shear Strength, Hydraulic Conductivity, Index Flux and Peel Strength in accordance with GRI-GCL3, Test Methods, Required Properties, and Testing Frequencies of Geosynthetic Clay Liners (GCLs), or other suitable tests based on the applicable standards of practice as established in KRS 322.010(16) for certification by a professional engineer.

(d) Quality assurance testing performed in the field under the supervision of the certifying engineer shall assure conformity of the GCL installation with the engineering plans, reports, and specifications submitted in accordance with the following requirements:

a. During the construction phase, the GCL shall be inspected for uniformity, damage, and imperfections.

b. The GCL shall be inspected for tears, punctures, or holes; and

c. All imperfections shall be repaired and reinspected; and

a. Tests conducted by the independent laboratory to verify the quality of the GCL received at the facility.

b. Tests shall be conducted for Grab Tensile Strength, Swell Index, Peel Strength, Bentonite Mass per Area in accordance with GRI-GCL3 Test Methods, Required Properties, and Testing Frequencies of Geosynthetic Clay Liners (GCLs), or other appropriate test methods based on the applicable standards of practice as established in KRS 322.010(16) for certification by a professional engineer.

Section 4. Specific Synthetic Liner Requirements for Bottom Liners. A biopile synthetic liner shall comply with the requirements of 401 KAR 48:205, Section 3 and meet the following requirements:

(1) Materials required.

(a) The synthetic liner material shall have a chemical and physical resistance not adversely affected by waste placement or leachate generated.

(b)

Documentation shall be submitted to ensure chemical compatibility of the synthetic liner material chosen; or
In the absence of the appropriate documentation, chemical compatibility testing shall be performed using EPA SW-846 test method 9090A, Compatibility Test for Wastes and Membrane Liners incorporated by reference in 401 KAR 48:205, Section 9; and

(2) Construction requirements.

(a) A biopile synthetic liner shall be installed in accordance with the requirements of the approved engineering plans, report, and specifications in the petroleum-contaminated soil treatment facility permit and manufacturer's recommendations.

(b) The certifying engineer shall ensure that the biopile synthetic liner installation, at a minimum, shall conform to the following:

The biopile synthetic liner shall have a nominal thickness of sixty (60) mils for liners;
The biopile synthetic liner shall be installed on a liner subgrade that promotes positive drainage;
The biopile synthetic liner installed on a slope shall be designed to withstand the calculated tensile forces acting upon the synthetic material and shall ensure that overall slope stability is maintained;
The surface of the supporting soil above which the biopile synthetic liner shall be installed shall be free of stones, organic matter, irregularities, protrusions, loose soil, and abrupt changes in grade that could damage the biopile synthetic liner;
The anchor trench shall be excavated to the length and width prescribed on the approved design drawings in the petroleum-contaminated soil treatment facility permit;
Field seams shall be oriented parallel to the line of maximum slope, which is, oriented along, not across the slope. In corners and irregularly-shaped locations, the number of field seams shall be minimized;
The materials shall be seamed using the appropriate method in the permit. Seam testing shall be performed in accordance with the requirements of Section 5 of this administrative regulation;
The seam area shall be free of moisture, dust, dirt, debris, and foreign material before seaming; and
Field seaming shall be prohibited if the conditions including ambient air, temperature, precipitation, or wind do not meet the professional engineer's recommendations based upon the manufacturer's specifications.

Section 5. Synthetic Liner Certification Requirements for Bottom Liners.

(1) The certifying engineer shall include in the form DEP 8064, Construction Progress Report for a Petroleum Contaminated Soil Treatment Facility, as incorporated by reference in 401 KAR 47:205, Section 10, a discussion of the reviewed data resulting from the quality assurance and quality control testing required in this section.

(2) The results of all testing shall be included in the form DEP 8064, Construction Progress Report for a Petroleum Contaminated Soil Treatment Facility, as incorporated by reference in 401 KAR 47:205, Section 10, including documentation of failed test results, descriptions of the procedures used to repair the failed material, and documentation of retesting performed.

(3) The certifying engineer shall certify, after review of the quality control testing of the biopile synthetic liner, if the material meets the requirements of the approved engineering plans, reports, and specifications in the permit.

(4) Before installing a biopile synthetic liner, the following information shall be available to the certifying engineer for approval:

(a) Origin and identification of the raw materials used to manufacture the biopile synthetic liner;

(b) Copies of quality control certificates issued by the producer of the raw materials used to manufacture the biopile synthetic liner; and

(c) Reports of the following tests conducted to verify the quality of the raw materials used to manufacture the biopile synthetic liner: tests for specific gravity, melt flow index, and percent carbon black shall be performed using GRI Test Method GM13, Test Methods, Test Properties and Testing Frequency for High Density Polyethylene (HDPE) Smooth and Textured Geomembranes.

(5) The certifying engineer shall verify through appropriate documentation that the quality control testing of the synthetic liner at the factory took place in accordance with the manufacturer's quality control plan, which is based on the appropriate GRI specifications based on the applicable standards of practice as established in KRS 322.010(16) for certification by a professional engineer.

(6) Quality assurance testing performed in the field under the supervision of the certifying engineer shall assure conformity of the biopile synthetic liner installation with the engineering plans, reports, and specifications submitted in accordance with the following requirements:

(a) During the construction phase, the biopile synthetic liner shall be inspected for uniformity, damage, and imperfections using the following procedures:

The biopile synthetic liner shall be inspected for tears, punctures, or blisters; and
All imperfections shall be repaired and reinspected;

(b) All field seams shall be nondestructively tested over their entire length using the air pressure test for double fusion seams or the vacuum test for other seams using the following procedures:

The certifying engineer shall be responsible for overseeing the accomplishment of nondestructive testing;
The contractor or test personnel shall do the following:

a. Record the location, date, test unit number, name of tester, and results of testing;

b. Inform the installer of required repairs; and

(i) Overlay seams that cannot be nondestructively tested with the same biopile synthetic liner; and

(ii) The seaming and patching operation shall be inspected by the certifying engineer for uniformity and completeness; and

(c)

Destructive testing shall be performed on the synthetic liner seam sections using GRI Test Method GM19, Seam Strength and Related Properties of Thermally Bonded Polyolefin Geomembranes.
Seam samples for testing shall be taken as follows:

a. A minimum of one (1) test per every 500 feet of seam length unless a more frequent testing protocol is agreed upon by the installer and professional engineer; and

b. Additional test locations may be determined during seaming and shall be based on the applicable standards of practice as established in KRS 322.010(16) for certification by a professional engineer.

Test locations shall be documented in the following manner:

a. The certifying engineer shall approve the sample size to be taken;

b. The sample size shall be predetermined as being large enough to perform the required testing; and

c. An independent laboratory shall perform the required testing that shall include, as a minimum, testing for seam strength and peel adhesion using GRI Test Method GM19 Seam Strength and Related Properties of Thermally Bonded Polyolefin Geomembranes.

If a sample fails destructive testing, the certifying engineer shall ensure that:

(i) The seam shall be reconstructed between the location of the sample that failed and the location of the next acceptable sample; or

(ii) The welding path shall be retraced to an intermediate location at least ten (10) feet from the location of the sample that failed the test, and new samples shall be taken for additional field tests; and

(i) If both new samples pass testing, the seam shall then be reconstructed between the location of both new samples; and

(ii) If a new sample fails, the process in this subparagraph shall be repeated.

Section 6. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) "ASTM D6141 Standard Guide for Screening Clay Portion of Geosynthetic Clay Liner (GCL) for Chemical Compatibility to Liquids", November 2009;

(b) GRI-GCL3 "Test Methods, Required Properties, and Testing Frequencies of Geosynthetic Clay Liners (GCLs)", July 2010;

(c) GRI Test Method GM13 "Test Methods, Test Properties and Testing Frequency for High Density Polyethylene (HDPE) Smooth and Textured Geomembranes for HDPE", July 2009; and

(d) GRI Test Method GM19 "Seam Strength and Related Properties of Thermally Bonded Polyolefin Geomembranes", November 2010.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m., or from the Web site at eec.ky.gov/environmental-protection/waste.

(3) This material may also be obtained from the following organizations:

(a) The material in subsection (1)(a) may be obtained at:

ASTM International, 100 Barr Harbor Drive, PO Box C700, West Conshohocken, PA, 19428-2959 USA; or
http://www.astm.org/index.shtml

(b) The material in subsection (1)(c) through (f) may be obtained at:

Geosynthetic Research Institute, 475 Kedron Avenue, Folsom, PA 19033-1208 USA; or
http://www.geosynthetic-institute.org/.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.99, 322.010(16)
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-100(19)(c), (24), (28), 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.40-100(19)(c), (24), and (28) requires the cabinet to promulgate rules and administrative regulations for the permitting, management, processing, or disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing, and disposal of waste obtain a permit. This administrative regulation establishes the biopile liner geosynthetic quality assurance and quality control testing requirements for solid waste petroleum-contaminated soil treatment facilities.
History: 401 KAR 048:207. 37 Ky.R. 2792; 38 Ky.R. 562; eff. 10-6-2011; TAm eff. 7-8-2016; Crt eff. 8-13-2018; TAm eff. 5-7-2019; Crt eff. 7-22-2025.

401 KAR 48:208 Petroleum-contaminated soil treatment facility liner high-permeability layer quality assurance and quality control {#sec-401-kar-48-208 omnilex-key=us-ky-regs-official--title-401--401 KAR 48:208}

Section 1. Definitions.

(1) "Certifying engineer" means "professional engineer," as defined by KRS 322.010(3), who implements the petroleum-contaminated soil treatment facility construction quality assurance plan.

Section 2. Applicability.

(1) The quality assurance and quality control requirements of this administrative regulation shall apply to the construction of liners for biopiles at petroleum-contaminated soil treatment facilities.

(2) The liner design requirements for biopiles shall be as established in 401 KAR 48:205, Section 3 for petroleum-contaminated soil treatment facilities.

Section 3. Specific Precipitation Drainage, Leachate Collection, or Gas Collection High Permeability Soil Requirement.

(1) The high permeability soil is the sand or gravel that shall be used for the leachate collection layer on the biopile liner at a petroleum-contaminated soil treatment facility.

(a) High permeability soil components shall have a minimum coefficient of permeability of 1 x 10-3 centimeters per second.

(b) The soil shall be placed without damaging the collection and removal system or liner components.

(c) The soil material shall be processed and substantially free of tree roots, wood, or other decayable materials and large rocks.

(d) High permeability soil components shall be resistive to leachate, so that clogging of the layer shall not cause the hydraulic head on the liner to exceed twelve (12) inches in depth.

(2) Certification requirements.

(b) The testing procedures and protocols shall be ASTM International, or other test method based on the applicable standards of practice as established in KRS 322.010(16) for certification by a professional engineer.

(c) The results of testing shall be included in the form DEP 8064, Construction Progress Report for a Petroleum Contaminated Soil Treatment Facility, as incorporated by reference in 401 KAR 47:205, Section 10, including documentation of failed test results, descriptions of the procedures used to correct the improperly installed material, and statements of retesting performed in accordance with the following requirements:

The certifying engineer shall review the results of the quality control testing by the supplier of a high permeability soil component;
The quality control and quality assurance testing shall ensure that the specified material complies with the permeability and clogging preventive requirement of subsection (1)(d) of this section;
The following quality control tests shall be performed on a minimum of at least one (1) sample from each soil classification:

a. Classification of soils for engineering purposes using the following:

(i) Soil particle size; and

(ii) Insoluble residue or calcium carbonate content; and

b. Hydraulic conductivity.

(d) Quality assurance testing included in paragraph (b) of this subsection shall be compared to and evaluated against the quality control testing of paragraph (a) of this subsection based on the applicable standards of practice as established in KRS 322.010(16) for certification by a professional engineer.

(e) Quality assurance testing shall be based on the applicable standards of practice as established in KRS 322.010(16) for certification by a professional engineer and shall be performed at the following minimum frequency for each soil classification:

One (1) analysis of soil particle size for every 10,000 cubic yards of soil material;
One (1) analysis of soil classification for engineering purposes for each 20,000 cubic yards of soil material;
One (1) insoluble residue in carbonate aggregates test, for every 20,000 cubic yards of soil material using D3042-03, Standard Test Method for Insoluble Residue in Carbonate Aggregates modified for a pH of no greater than four and zero-tenths (4.0) or similar test based on the applicable standards of practice as established in KRS 322.010(16) for certification by a professional engineer; and
One (1) hydraulic conductivity test for every 20,000 cubic yards of soil material.

(f)

The completed form DEP 8064, Construction Progress Report for a Petroleum Contaminated Soil Treatment Facility, as incorporated by reference in 401 KAR 47:205, Section 10, shall show the finished elevation of each high permeability soil component of the liner referenced to existing site control, using a Three (3) Dimensional Terrain Model on Computer Assisted Design Drawing (CADD), cross-section, or another method of equivalent accuracy and quality; and
These finished elevations shall serve as documentation and reference data for future volume calculations.

Section 4. Specific Synthetic Drainage Layer (SDL) Requirements for Bottom Liners. A Synthetic Drainage Layer (SDL) shall have an allowable flow rate equivalent to the design requirements of the leachate collection layer as established in Section 2 of this administrative regulation.

(1) Materials required.

(a) The SDL shall have an allowable flow rate that meets the requirements of this administrative regulation as determined by GRI standard GC-8 Determination of the Allowable Flow Rate of a Drainage Geocomposite or similar method based on the applicable standards of practice for certification by a professional engineer as established in KRS 322.010(16).

(b) The SDL shall not be adversely affected, chemically or physically, by waste placement or leachate.

(c)

Documentation shall be submitted to ensure chemical compatibility of the SDL chosen; or
In the absence of the appropriate documentation, chemical compatibility testing shall be performed using Method 9090A, Compatibility Test for Wastes and Membrane Liners, SW-846 Update IV of the Third Edition, which is incorporated by reference in 401 KAR 48:205, Section 10; or ASTM D6388-99 (2005), Standard Practice for Tests to Evaluate the Chemical Resistance of Geonets to Liquids, or other similar test method based on the applicable standards of practice as established in KRS 322.010(16) for certification by a professional engineer.

(2) Construction requirements.

(a) The SDL shall be installed in accordance with the requirements of the approved engineering plans, reports, and specifications in the permit and manufacturer's recommendations.

(b) The certifying engineer shall ensure that the SDL installation, at a minimum, shall conform to the following:

The SDL shall have a nominal thickness that is specified by the professional engineer to meet the design flow of the leachate collection as established in 401 KAR 48:205, Section 3;
The SDL shall have a transmissivity that is specified by the professional engineer to comply with the design flow of the leachate collection layer as established in 401 KAR 48:205, Section 3;
The SDL shall be designed to withstand the calculated tensile forces acting upon the SDL to ensure that stability shall be maintained;
The anchor trench shall be designed to withstand the calculated tensile forces acting upon the SDL to ensure that stability shall be maintained;
Field seams shall be oriented parallel to the line of maximum slope, which is oriented along, not across the slope; and
In corners and irregularly-shaped locations, the number of field seams shall be minimized.

(3) Certification requirements.

(a) The certifying engineer shall include in the form DEP 8064, Construction Progress Report for a Petroleum Contaminated Soil Treatment Facility, as incorporated by reference in 401 KAR 47:205, Section 10, a discussion of the reviewed data resulting from the quality assurance and quality control testing.

(b) The results of testing shall be included in the form DEP 8064, Construction Progress Report for a Petroleum Contaminated Soil Treatment Facility, as incorporated by reference in 401 KAR 47:205, Section 10, including documentation of failed test results, descriptions of the procedures used to repair the failed material, and documentation of retesting performed.

(c) The certifying engineer shall certify, after review of the quality control testing of the SDL, if the material meets the requirements of the approved engineering plans, reports, and specifications in the petroleum-contaminated soil treatment facility permit.

(d) Before installing an SDL, the following information shall be available to the certifying engineer for approval:

Origin and identification of the raw materials used to manufacture the SDL;
Copies of quality control certificates issued by the producer of the raw materials used to manufacture the SDL; and
Reports of tests conducted to verify the quality of the raw materials used to manufacture the SDL.

(e) Tests shall be performed using appropriate ASTM International, GRI or other similar specifications based on the applicable standards of practice as established in KRS 322.010(16) for certification by a professional engineer.

(f)

The certifying engineer shall verify through appropriate documentation that the quality control testing of an SDL made at the factory took place in accordance with the manufacturer's quality control plan, which is based on the GRI standard GC-8 Standard Guide for Determination of the Allowable Flow Rate of a Drainage Geocomposite or appropriate specifications based on the applicable standards of practice as established in KRS 322.010(16) for certification by a professional engineer.
Quality assurance testing performed under the supervision of the certifying engineer shall assure conformity of the SDL with the approved engineering plans in the permit and the GRI standard GC-8 Standard Guide for Determination of the Allowable Flow Rate of a Drainage Geocomposite or appropriate specifications based on the applicable standards of practice as established in KRS 322.010(16) for certification by a professional engineer.

Section 5. Incorporation by Reference.

(1) The following material is incorporated by reference:

(a) ASTM D3042-03 "Standard Test Method for Insoluble Residue in Carbonate Aggregates", modified for a pH of no greater than 4.0, July 2002;

(b) GRI standard GC-8 "Standard Guide for Determination of the Allowable Flow Rate of a Drainage Geocomposite", April 2001; and

(c) ASTM D6388-99(2005) "Standard Practice for Tests to Evaluate the Chemical Resistance of Geonets to Liquids", June 2005.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m., or from the Web site at eec.ky.gov/environmental-protection/waste.

(3) This material may also be obtained at:

(a) ASTM International, 100 Barr Harbor Drive, PO Box C700, West Conshohocken, PA, 19428-2959 USA, or from their Web site at http://www.astm.org/index.shtml

(b) Geosynthetic Research Institute, 475 Kedron Avenue, Folsom, PA 19033-1208 USA, or from their Web site at http://www.geosynthetic-institute.org/

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.99, 322.010(16)
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-100(19)(c), (24), (28), 224.40-305
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.40-100(19)(c), (24), and (28) requires the cabinet to promulgate rules and administrative regulations for the permitting, management, processing, or disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing, and disposal of waste obtain a permit. This administrative regulation establishes the liner quality assurance and quality control testing requirements for petroleum-contaminated soil treatment facilities.
History: 401 KAR 048:208. 37 Ky.R. 2795; 38 Ky.R. 564; eff. 10-6-2011; TAm eff. 7-8-2016; Crt eff. 8-13-2018; TAm eff. 5-7-2019; Crt eff. 7-22-2025.

401 KAR 48:300 Surface and groundwater monitoring and corrective action {#sec-401-kar-48-300 omnilex-key=us-ky-regs-official--title-401--401 KAR 48:300}

Section 1. Applicability. The requirements of this administrative regulation apply to owners and operators of contained, construction/demolition, and residual landfills, Class II and Class III landfarming facilities, other solid waste sites or facilities at which the cabinet determines groundwater monitoring shall be required and solid waste sites or facilities required to accomplish corrective action as a result of documented groundwater contamination. Sections 1 through 7 of this administrative regulation do not apply to landfarming facilities permitted pursuant to 401 KAR 48:200. Landfarming facilities required to accomplish corrective action shall comply with Section 8 of this administrative regulation. The owner or operator shall satisfy the requirements of this administrative regulation for all wastes (or constituents thereof) contained in waste management units at the facility regardless of the time at which waste was placed in such unit. Designs, reports, and plans constituting the public practice of geology, as defined at KRS 322A.010, shall be developed by a person registered pursuant to KRS Chapter 322A, except as provided for by KRS 322A.080.

Section 2. Surface Water Monitoring Plan. A surface water monitoring plan as required in Section 5 of 401 KAR 47:190 shall include:

(1) Documentation that the applicant currently holds or has applied for a KPDES permit for all structures that shall be used to control storm water run-off and all point source discharges.

(2) The location of surface water monitoring points identified on the engineering plans. The surface water monitoring points shall be located such that the sampling shall characterize the quality of water unaffected by the landfills and shall be located such that the sampling shall determine if water leaving the landfill in surface drainage is contaminated with leachate. Sampling protocol shall measure surface water under base flow conditions that continues to drain after storm-induced surface run-off has ceased.

(3) A schedule and list of analytical parameters for the quarterly surface water sampling program. The parameters to be analyzed for the water samples shall include at a minimum: chlorides, sulfate, iron, sodium, total organic carbon or biochemical oxygen demand, chemical oxygen demand, specific conductance, total suspended solids, total dissolved solids, total solids and pH.

(4) A form to record the results of the surface water sample analyses.

(5) Prior to the disturbance of any areas proposed for development in a landfill permit application, the owner shall analyze samples of the surface water points and submit the results to the cabinet. The sampling shall include a minimum of two (2) samples collected at no less than thirty (30) day intervals and shall be sufficient to characterize the existing surface water quality.

Section 3. Groundwater Quality Characterization. A groundwater characterization as required in 401 KAR 47:180 shall contain the chemical characteristics of the upper most aquifer down to and including the lowest aquifer that may be affected by the site or facility. This description shall include results of analysis of at least two (2) samples of groundwater from the site before waste placement for the parameters listed in Section 10 of this administrative regulation. The number of samples collected for the groundwater quality characterization shall be consistent with the statistical method for groundwater analysis to be performed in Section 9 of this administrative regulation.

(1) For facilities permitted before May 8, 1990, the data required by this section shall be taken beginning with the first anniversary date of the issuance of the permit after May 8, 1990, and shall be for the parameters listed in Section 11 of this administrative regulation.

(2) Monitoring wells under this section shall be designed, constructed and maintained according to Section 6 of this administrative regulation. Sampling and analysis shall be conducted in accordance with a plan approved by the cabinet in accordance with the requirements of Section 7 of this administrative regulation.

Section 4. Groundwater Monitoring Plan. A groundwater monitoring plan as required in 401 KAR 47:190 or 401 KAR 48:200 shall include:

(1) The number, location and depth of proposed monitoring points;

(2) Preoperational data showing existing groundwater quality, as required in the groundwater quality characterization in Section 3 of this administrative regulation;

(3) A groundwater sampling and analysis plan. The procedures, methods and techniques shall be approved by the cabinet. The plan shall include:

(a) Procedures and techniques designed to accurately measure groundwater quality upgradient, and downgradient of the proposed waste disposal area;

(b) Cabinet approved sampling methods including procedures and techniques for sample collection, sample preservation and sample shipment;

(d) Chain of custody control, field and laboratory quality assurance and quality control. The procedures and methods shall be approved by the cabinet.

(4) For solid waste sites or facilities located in karst regions the following additional hydrogeologic information shall be required:

(a) The nature and extent of karst drainage beneath the solid waste site or facility; and

(b) A description of a proposed groundwater monitoring system capable of completely and accurately monitoring groundwater contamination.

Section 5. Design Requirements for Groundwater Monitoring Systems. The groundwater quality monitoring system to be utilized in the groundwater monitoring plan shall accurately analyze groundwater quality and characterize local groundwater flow and flow systems. The system shall consist, at a minimum, of the following:

(1) At least one (1) reference or background well at a point hydraulically upgradient from the disposal area in the direction of increasing static head that is capable of providing data representative of groundwater not affected by the solid waste site or facility. When the solid waste site or facility occupies the most upgradient position in the flow system, sufficient downgradient or side gradient monitoring wells shall be placed to accurately characterize the groundwater quality and regional and local groundwater flow and flow systems. Reference wells shall be located so that they shall not be affected by groundwater contamination from the disposal area; and

(2) At least three (3) monitoring wells at points hydraulically connected in the direction of decreasing static head from the area in which solid waste has been or shall be disposed. In addition to three (3) downgradient wells, the cabinet may allow one (1) or more springs for monitoring points if the springs are hydraulically downgradient from the area in which solid waste has been or shall be disposed, if the springs are sampled in a manner approved by the cabinet, and if the springs otherwise meet the requirements of the cabinet. Downgradient monitoring wells shall be located so that they shall provide early detection of groundwater contamination and progressive monitoring of the phases and units of the site or facility.

Section 6. Requirements for Monitoring Well Construction.

(1) Precautions shall be taken during drilling and construction of monitoring wells to avoid introducing contaminants into a borehole. Only potable water shall be used in drilling monitoring wells unless otherwise approved by the cabinet. Drilling muds shall not be used except with prior approval of the cabinet. Air systems and drilling lubricants shall not introduce contaminants into the boreholes.

(2) Decontamination of all equipment to be placed into the boring shall be performed before use at the site and between boreholes. Where possible, upgradient wells shall be drilled first.

(3) Monitoring wells shall be cased as follows:

(a) To maintain the integrity of the monitoring well borehole by isolating water bearing units which are sampled by each well;

(b) With a minimum casing diameter of four (4) inches unless otherwise approved by the cabinet in writing;

(c) With screens and appropriate gravel or sand packing where necessary, to enable collection of samples at depths where appropriate aquifer flow zones exist;

(d) To allow the casing to protrude at least one (1) foot above ground;

(e) To provide a drill hole diameter that is a minimum of four (4) inches larger than the outside diameter of the well casing;

(f) To produce an annular space above the sampling depth that is sealed to prevent contamination of samples and the groundwater; and

(g) If plastic casing is used, it shall be threaded and gasket sealed to preclude potential sample contamination from solvent welded joints, unless otherwise provided by the cabinet in the permit.

(4) Monitoring well casings shall be enclosed in a protective cover that shall:

(a) Be sufficient to reliably protect the well from damage. This shall include a protective barrier around the well;

(b) Be installed into firm rock unless otherwise approved by the cabinet in writing;

(c) Be grouted and placed with a cement collar below the frost line to hold it firmly in position unless otherwise approved by the cabinet;

(d) Be numbered and painted in a highly visible color;

(e) Protrude at least one (1) inch higher above grade than the monitoring well casing;

(f) Have a locked cap; and

(g) Be made of steel or any other material of equivalent strength.

(5) Each monitoring well shall have a concrete pad extending two (2) feet around the well and sloped away from the well.

Section 7. Sampling and Analysis.

(1) Parameters Listing. Owners or operators of solid waste sites or facilities that require groundwater monitoring shall conduct sampling and analysis from each monitoring well for the parameters listed in Section 11 of this administrative regulation.

(2) Reporting of analysis results. Analyses of data required by this section shall be submitted to the cabinet on a form provided by the cabinet within sixty (60) days of sampling or fifteen (15) days after completing the statistical analysis required by Section 9 of this administrative regulation, whichever is sooner, unless the cabinet approves another time period in the permit. Frequency of sampling shall be as indicated in Section 11 of this administrative regulation.

(3) If analysis of the sample results indicates contamination as specified in Section 8(1) of this administrative regulation, the owner or operator shall notify the cabinet within forty-eight (48) hours of receiving the statistical analysis results required by Section 9 of this administrative regulation and shall arrange for the cabinet to split a sample no later than ten (10) days from the receipt of the results.

Section 8. Groundwater Contamination Assessment and Corrective Action.

(1) The operator of a solid waste site or facility shall be required to prepare and submit a groundwater assessment plan if laboratory analyses of one (1) or more monitoring wells at the site or facility shows the presence of one (1) or more parameters listed in 40 CFR 302.4, Appendix A as of October 1988, above the maximum containment level (MCL) as specified in 401 KAR 47:030 or significant increase over naturally occurring background levels for parameters that have no MCL. For parameters that have no maximum contaminant levels a significant increase over background shall be determined using a statistical test as specified in Section 9 of this administrative regulation.

(2) Confirmation sampling. The owner or operator of a solid waste site or facility shall not be required to submit an assessment plan if the following conditions are met:

(a) Within ten (10) days after receipt of sample results showing groundwater contamination the owner or operator resamples the affected wells; and

(b) Analysis from resampling shows to the cabinet's satisfaction that groundwater contamination has not occurred.

(3) The owner or operator of a solid waste site or facility shall be required to provide alternate water supplies to affected parties within twenty-four (24) hours of notification of the cabinet that sample results indicate contamination of a drinking water supply if it has been determined that the landfill is the probable source of contamination.

(4) The assessment plan shall be submitted to the cabinet within thirty (30) days of the occurrence of the conditions described in subsection (1) of this section. The assessment plan shall specify the manner in which the owner or operator shall determine the existence, quality, quantity, areal extent and depth of groundwater degradation, and the rate and direction of migration of contaminants in the groundwater. The assessment plan shall be prepared by a qualified professional and shall be implemented upon approval by the cabinet in accordance with the approved implementation schedule. The assessment plan shall be implemented within sixty (60) days after approval by the cabinet. The plan shall contain, at a minimum all of the following information:

(a) The number, location, size, casing type and depth of wells, lysimeters, borings, pits, piezometers and other assessment structures or devices to be used;

(b) Sampling and analytical methods for the parameters to be evaluated;

(c) Analyses of all parameters listed in Section 10(3) of this administrative regulation and any other parameter determined by the cabinet; and

(d) Evaluation procedures, including the use of previously gathered groundwater quality information, to determine the concentration, rate and extent of groundwater degradation or pollution from the facility.

(5) For public or private water supplies which may be adversely affected by the facility, the owner or operator shall submit a detailed hydrogeologic study addressing the potential effect of the site or facility on said water supply.

(6) If the cabinet determines that the assessment plan is inadequate, it may modify the plan and approve the plan as modified.

(7) Within ninety (90) days after the implementation of the groundwater assessment plan, the operator shall submit a groundwater assessment report containing the new data collected, analysis of the data and recommendations on the necessity for abatement.

(8) The cabinet may require abatement measures prior to approval of the groundwater assessment plan in the event that a determination has been made that there is an immediate threat to human health or the environment.

(9) Within 120 days of the cabinet approval of the groundwater assessment report, but in no event later than one (1) year from the event specified in subsection (1) of this section, the owner or operator shall submit a remedial action plan to include the following:

(a) The specific methods or techniques to be used to abate groundwater contamination from the facility;

(b) The specific methods or techniques to be used to prevent further groundwater contamination from the facility; and

(c) A description of the means used to restore or replace public or private water supplies affected by contamination from the solid waste facility.

(10) Within fifteen (15) days of approval of the groundwater assessment report, the cabinet shall prepare and the owner or operator shall publish a public notice in accordance with 401 KAR 47:140, Section 7(1)(a) through (f), (3), and (4). The public notice shall contain a brief statement summarizing the contents of the groundwater assessment report, shall provide for a thirty (30) day public comment period, and shall set forth a proposed public hearing date. If no request for a public hearing is received during the thirty (30) day comment period, the public hearing may be cancelled.

(11) The owner or operator shall, within 120 days of approval of the groundwater corrective action plan under subsection (9) of this section, post the financial assurance required under 401 KAR 48:310.

(12) The owner or operator of a solid waste site or facility shall take any other steps deemed necessary by the cabinet to ensure protection of human health and the environment.

(13) Corrective action measures under this administrative regulation shall be initiated and completed within a period of time as specified by the cabinet considering the extent of contamination.

(14) Corrective action measures under this administrative regulation may be terminated upon approval of the cabinet when the owner or operator demonstrates that concentrations have been reduced to levels below the maximum contaminant level or naturally occurring background.

Section 9. Statistical Methods for Groundwater Analysis.

(1) The owner or operator shall specify in the permit application one (1) of the following statistical methods to be used in evaluating groundwater monitoring data for each parameter in Section 11 of this administrative regulation. The statistical test chosen shall be conducted separately for each parameter in Section 11 of this administrative regulation in each well for each monitoring event, and the results shall be maintained as part of the facility record throughout the operating and postclosure life of the facility.

(a) A parametric analysis of variance (ANOVA) followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method shall include estimation and testing of the contrasts between each compliance well's mean and the background mean levels for each constituent.

(b) An analysis of variance (ANOVA) based on ranks followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method shall include estimation and testing of the contrasts between each compliance well's median and the background median levels for each constituent.

(c) A tolerance or prediction interval procedure in which an interval for each constituent is established from the distribution of the background data, and the level of each constituent in each compliance well is compared to the upper tolerance or prediction limit.

(d) A control chart approach that gives control limits for each constituent.

(e) Another statistical method approved by the cabinet based on justification included in the permit application that the method meets the requirements of subsection (2) of this section.

(2) Any statistical method chosen under subsection (1) of this section shall comply with the following performance standards, as appropriate:

(a) The statistical method used to evaluate groundwater monitoring data shall be appropriate for the distribution of chemical parameters or hazardous constituents. If the distribution of the chemical parameters or hazardous constituents is shown by the owner or operator to be inappropriate for a normal theory test, then the data shall be transformed or a distribution-free theory test shall be used. If the distributions for the constituents differ, more than one (1) statistical method may be needed.

(b) If an individual well comparison procedure is used to compare an individual compliance well constituent concentration with background constituent concentrations or a groundwater protection standard, the test shall be done at a Type I error level of no less than 0.01 for each testing period. If a multiple comparisons procedure is used, the Type I experiment-wise error rate for each testing period shall be no less than 0.05; however, the Type I error of no less than 0.01 for individual well comparisons shall be maintained. This performance standard shall not apply to tolerance intervals, prediction intervals, or control charts.

(c) If a control chart approach is used to evaluate groundwater monitoring data, the specific type of control chart and its associated parameter values shall be protective of human health and the environment. The parameters shall be determined after considering the number of samples in the background database, the data distribution, and the range of the concentration values for each constituent of concern.

(d) If a tolerance interval or a predictional interval is used to evaluate groundwater monitoring data, the levels of confidence and, for tolerance intervals, the percentage of the population that the interval must contain, shall be protective of human health and the environment. These parameters shall be determined after considering the number of samples in the background database, the data distribution, and the range of the concentration values for each constituent of concern.

(e) The statistical method shall account for data below the limit of detection with one (1) or more statistical procedures that are protective of human health and the environment. Any practical quantitation limit that is used in the statistical method shall be the lowest concentration level that can be reliably achieved within specified limits of precision and accuracy during routine laboratory operating conditions that are available to the facility.

(f) If necessary, the statistical method shall include procedures to control or correct for seasonal and spatial variability as well as temporal correlation in the data.

(3) The owner or operator shall determine whether or not there is a statistically significant increase over background values for each parameter or constituent required in the particular groundwater monitoring program that applies to the solid waste site or facility.

(a) In determining whether a statistically significant increase has occurred, the owner or operator shall compare the groundwater quality of each parameter or constituent at each monitoring well to the background value of that constituent, according to the statistical procedures and performance standards specified under subsections (1) and (2) of this section.

(b) Within thirty (30) days after receiving sampling results, the owner or operator shall determine whether there has been a statistically significant increase over background at each monitoring well.

Section 10. Groundwater Quality Characterization Parameters. For solid waste sites or facilities that require groundwater monitoring, the following parameters are to be analyzed for groundwater quality characterization as required in Section 2 of this administrative regulation:

(1) For all Class II and III landfarming facilities required to monitor groundwater, the characterization shall be based on the following parameters:

(a) Specific conductance, chemical oxygen demand, total organic carbon, chloride, iron, manganese, sodium, total nitrogen, nitrate nitrogen, chromium, cadmium, coliform bacteria, pH, calcium, magnesium, potassium, sulfate, bicarbonate, carbonate.

(b) Groundwater elevation in monitoring wells recorded as a distance from the elevation at the wellhead referenced to mean sea level based on a United States Geological Survey (USGS) datum.

(2) For residual and construction/demolition debris landfills, the characterization shall be based on the following parameters:

(a) Chloride, chemical oxygen demand, total dissolved solids, specific conductance, pH, iron, sodium, arsenic, barium, cadmium, lead, mercury, nitrate, selenium, silver, pH, calcium, magnesium, potassium, sulfate, bicarbonate, carbonate.

(b) Groundwater elevations recorded as a distance from the elevation at the wellhead referenced to mean sea level based on a United States Geological Survey (USGS) datum.

(3) For contained landfills, the characterization shall be based on the following parameters:

(a) Indicators: Specific conductance, chemical oxygen demand, total dissolved solids, total organic carbon, pH, chloride, iron, manganese, sodium, bicarbonate, calcium, sulfate, magnesium, potassium, carbonate.

(b) Hazardous Constituents.

(c) Groundwater elevations in monitoring wells recorded as a distance from the elevation at the wellhead referenced to mean sea level based on a United States Geological Survey datum.

(4) For residual landfills this characterization shall include parameters approved by the cabinet based upon the chemical analysis of the waste.

(5) For other sites or facilities the characterization shall be for parameters determined by the cabinet.

Section 11. Groundwater Monitoring Parameters.

(1)

(a) Operators of Class II and Class III landfarming facilities requiring groundwater monitoring shall monitor for the following parameters on a semiannual basis: temperature, chemical oxygen demand, total organic carbon, total nitrogen, nitrate nitrogen, lead, chromium, cadmium, coliform bacteria;

(b) Groundwater elevations in monitoring wells recorded as a distance from the elevation at the wellhead referenced to mean sea level based on a USGS datum; and

(2) Operators of residual and construction/demolition debris landfills shall monitor semiannually for the following:

(a) Temperature, chloride, chemical oxygen demand, total dissolved solids, total organic carbon, specific conductance, pH, iron, sodium;

(b) Arsenic, barium, cadmium, chromium, lead, mercury, nitrate, selenium;

(c) Groundwater elevations in monitoring wells recorded as a distance from the elevation at the wellhead referenced to mean sea level based on a USGS datum;

(d) Other parameters as approved by the cabinet based on the waste analysis; and

(e) If after four (4) consecutive quarterly monitoring periods, analysis for the parameters in paragraphs (a) through (d) of this subsection indicates no exceedances above levels specified in Section 8(1) of this administrative regulation, the owner or operator may, upon request, be granted permission from the cabinet to reduce the monitoring parameters to those listed in paragraph (a) of this subsection.

(3) Operators of contained landfills shall be required to monitor quarterly for the following parameters:

(a) Temperature, chloride, chemical oxygen demand, total dissolved solids, total organic carbon, specific conductance, pH, total organic halides, antimony, arsenic, barium, beryllium, cadmium, chromium, cobalt, copper, iron, lead, mercury, nickel, nitrate, selenium, silver, sodium, thallium, vanadium, and zinc;

(b) Acetone; acrolein; acrylonitrile; benzene; bromochloromethane; bromodichloromethane; bromoform (tribromomethane); bromomethane (methyl bromide); 2-butanone (methyl ethyl ketone); carbon disulfide; carbon tetrachloride; chlorobenzene; chlorodibromomethane (dibromochloromethane); chloroethane (ethyl chloride); 2-chloroethyl vinyl ether; chloroform (trichloromethane); chloromethane (methyl chloride); dibromomethane (methylene bromide); 1,2-dibromo-3-chloro-propane (DBCP); 1,2-dibromoethane (ethylene dibromide, EDB); 1,2-dichlorobenzene (o-dichlorobenzene); 1,4-dichlorobenzene (p-dichlorobenzene); trans-1,4-dichloro-2-butene; dichlorodifluoromethane; 1,1-dichloroethane (ethylidene chloride); 1,2-dichloroethane (ethylene dichloride); cis-1,3-dichloropropene; trans-1,3-dichloropropene; ethanol; ethylbenzene; ethyl methacrylate; 2-hexanone (methyl butyl ketone); iodomethane (methyl iodide); methylene chloride (dichloromethane); 4-methyl-2-pentanone (methyl isobutyl ketone); 1,1-dichloroethene (1,1-dichloroethylene, vinylidene chloride); cis-1,2-dichloroethene (cis-1,2-dichloroethylene); trans-1,2-dichloroethene (trans-1,2-dichloroethylene); 1,2-dichloropropane (propylene dichloride); styrene; 1,1,1,2-tetrachloroethane; 1,1,2,2-tetrachloroethane; tetrachloroethylene (tetrachloroethene, perchloroethylene); toluene; 1,1,1-trichloroethane (methyl chloroform); 1,1,2-trichloroethane; trichloroethene (trichloroethylene); trichlorofluoromethane (CFC-11); 1,2,3-trichloropropane; vinyl acetate; vinyl chloride; xylene;

(c) Groundwater elevations recorded as a distance from the elevation at the wellhead referenced to mean sea level based on a United States Geologic Survey datum;

(d) Determine the rate and direction of groundwater flow each time groundwater is sampled;

(e) Other parameters as approved by the cabinet based on the waste analysis; and

(f) If after four (4) consecutive quarterly monitoring periods, analysis for the parameters in paragraphs (a) and (b) of this subsection indicates no exceedances above the levels specified in Section 8(1) of this administrative regulation, the owner or operator may obtain permission from the cabinet to reduce the sampling program to annual sampling for parameters in paragraphs (a) and (b) of this subsection while sampling quarterly for the following:

Temperature;
Chloride;
Chemical oxygen demand;
Total dissolved solids;
Total organic carbon;
Specific conductance;
pH;
Iron;
Sodium; and
Total organic halides.

(4) Operators of residual landfills shall monitor quarterly for parameters to be determined by the cabinet based upon chemical analysis of the waste to be disposed.

(5) Other solid waste sites or facilities shall monitor for parameters and at a frequency determined by the cabinet.

History

RELATES TO: KRS 224.01, 224.10, 224.40, 224.43, 224.70, 40 C.F.R. Parts 257, 258, 302.4 Appendix A
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.43-340
NECESSITY, FUNCTION, AND CONFORMITY: KRS Chapter 224 requires the cabinet to promulgate administrative regulations for the treatment, management, processing or disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing or disposal of waste obtain a permit. This chapter establishes the minimum technical standards for solid waste sites or facilities. This administrative regulation sets forth the standards for groundwater monitoring and corrective action.
History: 401 KAR 048:300. 16 Ky.R. 1798; 2229; 2391; eff. 5-8-1990; 21 Ky.R. 506; 1104; eff. 11-7-1994; Crt eff. 8-13-2018; TAm eff. 10-15-2018; Crt eff. 7-22-2025.

401 KAR 48:310 Financial requirements and bonds {#sec-401-kar-48-310 omnilex-key=us-ky-regs-official--title-401--401 KAR 48:310}

Section 1. Financial Assurance Criteria. The financial assurance criteria and bond requirements apply to each owner and operator of any solid waste disposal site or facility. Any owner or operator that is a city, county, urban-county government, 109 district, taxing district, political subdivision of the Commonwealth, the Commonwealth, or any agency thereof, or any entity whose debts and liabilities are the debts and liabilities of the above entities, shall be required to comply with Sections 2, 3, and 15 of this administrative regulation.

Section 2. Closure Cost Estimate. Except as provided by KRS 224.40-120, the owner or operator shall have a detailed written estimate, in current dollars, of the cost of hiring a third party to close the solid waste disposal site or facility in accordance with the closure plan developed to satisfy the closure requirements in Section 4(1) of 401 KAR 48:060, Section (15) of 401 KAR 48:070, Section 4 of 401 KAR 48:170, Section 5 of 401 KAR 48:200, and KRS 224.40.650.

(1) The estimate shall equal the cost of closing the solid waste disposal site or facility at the point in the active life when the extent and manner of its operation would make closure the most expensive. The cabinet shall adjust the figure for inflation and other factors each year. The owner or operator shall base the cost estimate on the following elements:

(a) Design;

(b) Site grading and drainage;

(d) Final grading and drainage of the cap;

(e) Revegetation of the cap; and

(f) Quality control and construction certification.

(2) The owner or operator shall increase the closure cost estimate and the amount of financial assurance provided under Section 5 of this administrative regulation if changes to the closure plan or solid waste disposal site or facility conditions increase the maximum cost of closure at any time during the active life.

(3) The owner or operator may request a reduction in the closure cost estimate and the amount of financial assurance provided under Section 5 of this administrative regulation if he can demonstrate that the cost estimate exceeds the maximum cost of closure at any time over the life of the solid waste disposal site or facility.

(4) The owner or operator shall keep a copy of the latest closure cost estimate at the solid waste disposal site or facility until the owner or operator has been notified by the cabinet that he has been released from closure financial assurance requirements under Section 5 of this administrative regulation.

Section 3. Closure Care Cost Estimate.

(1) Except as provided for by KRS 224.40-120, the owner or operator of each solid waste site or facility shall have a detailed written estimate, in current dollars, of the cost of hiring a third party to conduct each phase of closure care monitoring and maintenance in accordance with the closure care plan developed to satisfy the closure care requirements of Section 3 of 401 KAR 48:060, Section 14 of 401 KAR 48:090, and Section 3 of 401 KAR 48:170. The closure care cost estimate for each phase of closure care used to demonstrate financial assurance in Section 6 of this administrative regulation shall be calculated by multiplying the annual cost estimate for each phase of closure care by the number of years of closure care required. For contained landfills, the closure care estimate mandated by KRS 224.40-650 shall be a minimum of $10,000 per year, using 1990 as the baseline year.

(2) The cost estimate for each phase of closure care shall be based on the most expensive costs of closure care during that phase. The cabinet shall adjust the figure each year for inflation and other factors.

(3) The owner or operator shall increase the amount of the closure care cost estimate and the amount of financial assurance provided under Section 6 of this administrative regulation if changes in the closure care plan or facility conditions increase the maximum costs of closure care.

(4) The owner or operator may request a reduction in the closure cost estimate and the amount of financial assurance provided under Section 6 of this administrative regulation if he can demonstrate to the satisfaction of the cabinet that the cost estimate exceeds the maximum costs of closure care remaining over the closure care period.

(5) The owner or operator shall keep a copy of the latest closure care cost estimate at the facility until he has been notified by the cabinet that he has been released from closure care financial assurance requirements for the entire facility under Section 6 of this administrative regulation.

Section 4. Financial Mechanisms. The mechanisms used to demonstrate financial assurance under this administrative regulation shall ensure that the funds necessary to meet the costs of closure and closure care will be available in a timely manner whenever they are needed. The owner or operator shall execute a performance bond specified in Section 7 with one (1) or a combination of the financial mechanisms in Sections 9, 10, 11, 12, and 13 of this administrative regulation, that satisfies the following criteria:

(1) The financial assurance mechanism shall ensure that the amount of funds is sufficient to cover the costs of closure and closure care;

(2) The financial assurance mechanism shall ensure that funds shall be available in a timely fashion;

(3) The financial assurance mechanism shall guarantee the availability of the required amount of coverage from May 8, 1990, or prior to the initial receipt of solid waste, whichever is later, until the owner or operator establishes an alternative financial assurance mechanism or is released from the financial assurance requirements under Sections 5, 6, 7, and 14 of this administrative regulation. The amount of financial assurance obtained from a single financial institution shall not exceed the limit of federal insurance, when such assurance is provided by a financial institution that uses federal insurance to guarantee the availability of funds.

Section 5. Closure Financial Assurance. Except as provided by KRS 224.40-120, the owner or operator of each solid waste disposal site or facility shall establish, in accordance with Section 4 of this administrative regulation, financial assurance for closure of the facility, in an amount equal to the most recent closure cost estimate prepared in accordance with Section 2 of this administrative regulation. The owner or operator shall provide continuous coverage for closure until released from financial assurance requirements. The owner or operator may be released from financial assurance requirements for closure after a site visit by a cabinet representative and approval by the cabinet. For contained landfills, the owner or operator shall submit the certification that closure has been completed in accordance with the approved closure plan. Following receipt of the closure certification or completion of the closure inspection, the cabinet shall:

(1) Notify the owner or operator in writing that he is no longer required to maintain financial assurance for closure; or

(2) Provide the owner or operator with a detailed written statement of any reason to believe that closure has not been conducted in accordance with the approved closure plan.

Section 6. Closure Care. Except as provided by KRS 224.40-120, the owner or operator of each solid waste site or facility shall provide for closure care as required under Section 3 of 401 KAR 48:060, Section 13 of 401 KAR 48:090, and Section 3 of 401 KAR 48:170 for the required period following the cabinet's acceptance of closure. The owner or operator of a contained landfill may be released from closure care requirements after the cabinet has received a certification that the closure care period has been completed in accordance with the approved plan as required under Section 14 of 401 KAR 48:090. Following receipt of the closure care certification, the cabinet shall notify the owner or operator with a detailed written statement of any reason to believe that closure care has not been conducted in accordance with the approved closure care plan.

Section 7. Performance Bond. Before the cabinet shall issue a permit, the owner or operator of a solid waste disposal site or facility that is required to execute a performance bond and post a financial assurance mechanism or other security pursuant to KRS 224.40-650 shall complete the performance bond and financial assurance mechanism in a manner approved by the cabinet. To satisfy the financial requirement, the owner or operator shall submit a performance bond (see Section 8 of this administrative regulation) and one (1) or more of the following five (5) financial mechanisms:

(1) Surety bond as specified in Section 9 of this administrative regulation;

(2) Letter of credit as specified in Section 10 of this administrative regulation;

(3) Escrow agreement as specified in Section 11 of this administrative regulation;

(4) Trust agreement as specified in Section 12 of this administrative regulation; or

(5) Insurance policy as specified in Section 13 of this administrative regulation.

Section 8. Wording of the Performance Bond. A performance bond guaranteeing performance of closure and closure care, or closure individually and closure care individually, shall be executed on DEP Form 6053-A, entitled "Performance Bond" (November 2016), which is hereby incorporated by reference. This document may be obtained from the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, from 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays, or from the Web site at eec.ky.gov/environmental-protection/waste.

Section 9. Wording of Surety Bond.

(1) A surety bond, as allowed in Sections 4 and 7 of this administrative regulation, shall be executed on DEP Form 6053-L, entitled "Surety Bond" (November 2016), which is hereby incorporated by reference. This document may be obtained from the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, from 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays, or from the Web site at eec.ky.gov/environmental-protection/waste.

(2) To be eligible to issue a surety bond, a surety shall be listed as acceptable in the current edition of U.S. Treasury Circular 570. The penal sum of the bond shall not exceed the amount of the surety's underwriting limitation.

Section 10. Wording of the Instrument for a Letter of Credit. A letter of credit, as allowed by Sections 4 and 7 of this administrative regulation, shall be executed on DEP Form 6053-B, entitled "Irrevocable Letter of Credit" (November 2016), which is hereby incorporated by reference. This document may be obtained from the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, from 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays, or from the Web site at eec.ky.gov/environmental-protection/waste.

Section 11. Wording of the Escrow Agreement. An escrow agreement, as allowed in Sections 4 and 7 of this administrative regulation, shall be executed on DEP Form 6053-C, entitled "Escrow Agreement" (November 2016), which is hereby incorporated by reference. This document may be obtained from the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, from 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays, or from the Web site at eec.ky.gov/environmental-protection/waste. If a certificate of deposit is used in conjunction with the escrow agreement, it shall be made payable to the financial institution as the escrow agent.

Section 12. Wording of Trust Fund Agreement. A trust fund, as allowed by Sections 4 and 7 of this administrative regulation, shall be executed on DEP Form 6053-K, entitled "Trust Fund Agreement" (September 1994), which is hereby incorporated by reference. This document may be obtained from the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, from 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays, or from the Web site at eec.ky.gov/environmental-protection/waste.

Section 13. Insurance Policies.

(1) The owner or operator of a solid waste disposal site or facility may provide an insurance policy to demonstrate the financial assurance for closure or closure care of the facility. The insurance policy shall conform with the requirements of this section and shall be submitted along with DEP Form 6053-D, entitled "Certificate of Insurance for Closure or Closure Care" (November 2016), which is hereby incorporated by reference. DEP Form 6053-D may be obtained from the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, from 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays, or from the Web site at eec.ky.gov/environmental-protection/waste.

(2) The insurance policy shall guarantee that the funds will be available to close the solid waste disposal site or facility when closure occurs or to provide closure care for the solid waste site or facility when the closure care period begins, whichever is applicable. The policy shall guarantee that once closure or closure care begins, whichever is applicable, the insurer will be responsible for the paying out of funds to the owner or operator or other person authorized to conduct closure or closure care, up to an amount equal to the face amount of the policy. The insurance policy shall be issued for a face amount at least equal to the current closure cost estimate for closure or the current closure care cost estimate, whichever is applicable. The term "face value" refers to the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer shall not change the face amount, although the insurer's future liability will be lowered by the amount of payments.

(3) The owner or operator, or any other person authorized to conduct closure or closure care, may receive reimbursements for closure or closure care expenditures. Requests for reimbursement for expenditures shall be made by submitting itemized bills to the cabinet. The cabinet shall determine whether the closure or closure care expenditures are in accordance with the approved closure or closure care plan, or are otherwise justified, and if so, shall instruct the insurer to make reimbursements in such amounts as the cabinet specifies in writing. If the cabinet has reason to believe that the cost of closure or closure care will be greater than the face amount of the policy, then the cabinet may withhold reimbursement of such amounts and set forth the reasons for the withholding in writing.

(4) An insurance policy shall contain a provision allowing assignment of the policy to a successor owner or operator. This assignment may be conditional upon consent of the insurer, provided the consent is not unreasonably refused.

(5) The insurance policy shall provide that the insurer may not cancel, terminate or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy shall, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If there is a failure to pay the premium, the insurer may cancel the policy by sending notice of the cancellation by certified mail to the owner or operator and to the cabinet 120 days or more in advance of the cancellation. Cancellation, termination, or failure to renew shall not occur, and the policy shall remain in force, if on or before the date of expiration:

(a) Closure is ordered by the cabinet or a court of competent jurisdiction;

(b) The owner or operator is named as debtor in a voluntary or involuntary bankruptcy proceeding under Title 11 U.S. Code; or

(6) If the insurer cancels the policy, the owner or operator shall obtain by the effective date of the cancellation, alternate financial assurance as specified in this administrative regulation.

(7) For insurance policies providing coverage for closure care, commencing on the date that liability to make payments pursuant to the policy accrues, the insurer shall thereafter annually increase the face amount of the policy. This increase shall be equivalent to the face amount of the policy, less any payments made, multiplied by an amount equivalent to eighty-five (85) percent of the most recent investment rate or the equivalent coupon-issued yield announced by the U.S. Treasury for twenty-six (26)-week treasury securities.

(8) The owner or operator may cancel the insurance policy only if alternate financial insurance is substituted and approved by the cabinet, as specified in this administrative regulation, or if the owner or operator is no longer required to demonstrate financial assurance in accordance with Section 14 of this administrative regulation and 401 KAR Chapters 47 and 48.

(9) If the owner or operator chooses to purchase an insurance policy to cover the cost of closure or closure care, whichever is applicable, the chosen insurer shall be licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one (1) or more states of the United States of America.

(10) The owner or operator shall submit a copy of the insurance policy and an executed DEP Form 6053-D to the cabinet for approval prior to this method of financial insurance being accepted. The owner or operator shall also execute a performance bond in accordance with Section 7 of this administrative regulation.

Section 14. Release of Financial Assurance Mechanisms and Performance Bonds.

(1) Financial assurance mechanisms and performance bonds posted to assure proper closure of a solid waste disposal site or facility shall be released two (2) years after the date that the cabinet determines the final cover has been constructed and revegetated with permanent vegetation and all of requirements of the approved closure plan have been accomplished. The cabinet may withhold a portion of the financial assurance mechanism in the amount necessary to correct deficiencies in the solid waste disposal site or facility or its closure system.

(2) Financial assurance mechanisms and performance bonds posted to assure performance and closure of landfarming facilities shall be released when the owner or operator demonstrates to the cabinet's satisfaction that the site has been closed and is in compliance with 401 KAR 47:030, 401 KAR 48:300, and KRS Chapter 224.

(3) Financial assurance mechanisms and performance bonds posted to assure proper closure care shall be released when the owner or operator demonstrates to the cabinet's satisfaction that the solid waste disposal site or facility has completed closure care activities in conformance with the approved closure care plan under Section 3 of 401 KAR 48:060, Section 14 of 401 KAR 48:090, or Section 3 of 401 KAR 48:170.

Section 15. Financial Assurance for Publicly-Owned Facilities. The owner or operator of a publicly-owned solid waste disposal facility shall provide a budget for the permitting, construction, operation, closure, and closure care of the facility consistent with the permit application, closure plan, and closure care cost estimates. The budget shall be revised and submitted annually. When elements of the facility's permitting, construction, operation, closure, or closure care are to be accomplished by contract or agreement, a copy of the contract or agreement shall be submitted to the cabinet.

Section 16. Financial Assurance for Captive Facilities.

(1) A solid waste disposal site or facility that is operated exclusively by a solid waste generator on property owned by the solid waste generator for the purpose of accepting industrial solid waste exclusively from the solid waste generator may meet the financial assurance requirements of this administrative regulation by completing a performance bond and submitting one (1) of the following financial assurance mechanisms: any of the five (5) mechanisms set forth in Section 7 of this administrative regulation; a corporate guarantee, in accordance with Section 17 of this administrative regulation and executed on DEP Form 6053-E; a corporate financial test, in accordance with Section 17 and executed on DEP form 6053-F; or any alternative mechanism that meets the criteria of Section 4 of this administrative regulation and is approved by the cabinet.

(2)

(a) The following documents are hereby incorporated by reference:

DEP Form 6053-E, entitled "Corporate Guarantee for Closure or Closure Care" (November 2016); and
DEP form 6053-F, entitled "Letter from Chief Financial Officer on Corporate Financial Test" (November 2016).

(b) The documents referenced in paragraph (a) of this subsection may be obtained from the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, from 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays, or from the Web site at eec.ky.gov/environmental-protection/waste.

Section 17. Financial Test and Corporate Guarantee.

(1) The owner of a captive facility as defined in Section 16 of this administrative regulation may satisfy the requirements of this administrative regulation by demonstrating that he passes a financial test as specified in this section. To pass this test, the owner or operator shall meet the criteria set forth in paragraph (a) and either paragraph (b) or (c) of this subsection:

(a) Less than fifty (50) percent of the parent corporations' gross revenues are derived from solid waste disposal operations.

(b) The owner or operator shall have:

Satisfaction of at least two (2) of the following ratios: a ratio of total liabilities to net worth less than two (2.0); a ratio of the sum of net income plus depreciation, depletion, and amortization to total liability greater than one-tenth (0.1); or a ratio of current assets to current liabilities greater than one and five-tenths (1.5);
Net working capital and tangible net worth each at least six (6) times the sum of the current closure and current closure care cost estimates;
Tangible net worth of at least ten (10) million dollars; and
Assets in the United States amounting to at least ninety (90) percent of total assets or at least six (6) times the sum of the current closure and current closure care cost estimates.

A current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by "Standard and Poor's" or AAA, AA, A, or BAA as issued by "Moody's";
Tangible net worth at least six (6) times the sum of the current closure and current closure care cost estimates;
Tangible net worth of at least ten (10) million dollars; and
Assets located in the United States amounting to at least ninety (90) percent of total assets or at least six (6) times the sum of the current closure and current closure care cost estimates.

(2) The phrase "current closure and current closure care cost estimates" as used in subsection (1) of this section refers to the cost estimates required under Sections 2 and 3 of this administrative regulation and referenced in the letter from the owner or operator's chief financial officer.

(3) To demonstrate that requirements of this test are met, the owner or operator shall submit the following items to the cabinet:

(a) A letter signed by the owner or operator's chief financial officer and worded as specified on DEP Form 6053-F;

(b) A copy of a report by an independent certified public accountant examining the owner or operator's financial statements for the most recently completed fiscal year; and

(c) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:

The auditor has compared the data that the letter from the chief financial officer specified as having been derived from the independently audited year-end financial statements for the most recent fiscal year with the amounts in such financial statements; and
In connection with that procedure, no matters came to his attention that caused him to believe that the specified data should be adjusted.

(4) After the initial submission of the items specified in subsection (3) of this section, the owner or operator shall send updated information to the cabinet not later than ninety (90) days after the close of each succeeding fiscal year. This information shall include all three (3) items specified in subsection (3) of this section.

(5) If the owner or operator no longer meets the requirements of subsection (1) of this section, notice shall be sent to the cabinet of the intent to establish alternate financial assurance, as specified in this administrative regulation. The notice shall be sent by certified mail no later than ninety (90) days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the requirements. The owner or operator shall provide that alternate financial assurance no later than 120 days after the end of that fiscal year.

(6) The cabinet may, based on a reasonable belief that the owner or operator no longer meets the requirements of subsection (1) of this section, require reports of financial condition at any time from the owner or operator in addition to those specified in subsection (3) of this section. If the cabinet finds, on the basis of these reports or other information, that the owner or operator no longer meets the requirements of subsection (1) of this section, the owner or operator shall provide alternate financial assurance as specified in this administrative regulation no later than thirty (30) days after notification of this a finding.

(7) The cabinet may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the owner or operator's financial statements. An adverse opinion or disclaimer of opinion shall be cause for disallowance. The cabinet shall evaluate other qualifications on an individual basis. The owner or operator shall provide alternate financial assurance as specified in this administrative regulation no later than thirty (30) days after notification of the disallowance.

(8) The owner or operator is no longer required to submit the items specified in subsection (3) of this section when:

(a) The owner or operator substitutes alternative financial assurance for closure or closure care specified in this administrative regulation; or

(b) The cabinet notifies the owner or operator, in accordance with Section 14 of this administrative regulation, that it is no longer required to maintain financial assurance for closure or closure care of the solid waste disposal site or facility.

(9) The owner or operator may meet the requirements of this section by obtaining a written guarantee, hereafter referred to as a "corporate guarantee". The guarantor shall be the parent corporation of the captive facility as defined in Section 16 of this administrative regulation. The guarantor shall meet the requirements for owners or operators in subsections (1) to (7) of this section and shall comply with the terms of DEP Form 6053-E. The corporate guarantee shall accompany the items sent to the director as specified in subsection (3) of this section. The terms of the corporate guarantee shall provide that:

(a) If the owner or operator fails to perform closure or closure care of a facility provided for by the corporate guarantee in accordance with the closure or closure care plan and permit requirements, the guarantor shall do so or shall establish a trust fund, in the name of the owner or operator, as specified in Section 12 of this administrative regulation;

(b) The corporate guarantee shall remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the cabinet. Cancellation may not occur, however, during the 120-day period beginning on the first day that both the owner or operator and the cabinet have received notice of cancellation, as evidenced by the certified mail return receipts; and

(c) If the owner or operator fails to provide alternate financial assurance as specified in this administrative regulation, and fails to obtain the written approval of this alternate financial assurance from the cabinet not later than ninety (90) days after both the owner or operator and the cabinet have received notice of cancellation of the corporate guarantee from the guarantor, the guarantor shall provide the alternate financial assurance in the name of the owner or operator.

Section 18. Financial Assurance for Corrective Action.

(1) The owner or operator of a facility required to prepare and submit a groundwater corrective action plan under 401 KAR 48:300 shall prepare a detailed written estimate, in current dollars, of the cost of hiring a third party to conduct the corrective action activities in accordance with the corrective action plan developed under 401 KAR 48:300. The corrective action cost estimate shall account for the total cost estimate of corrective action activities as described in the corrective action plan for the entire corrective action period. The cabinet shall annually adjust this estimate for inflation and other factors, until the corrective action program is completed in accordance with 401 KAR 48:300 and the approved plan.

(2) The owner or operator shall increase the corrective action cost estimate in the amount of financial assurance provided under subsection (1) of this section if changes in the corrective action plan or conditions at the solid waste disposal site or facility increased the maximum cost of corrective action.

(3) The owner or operator may request from the cabinet a reduction in the amount of corrective action cost estimate and the amount of financial assurance provided under subsection (1) of this section if the cost estimate exceeds the maximum remaining cost of corrective action.

(4) The owner or operator shall provide continuous coverage for corrective action until released from the financial requirements for corrective action under subsection (7) of this section.

(5) Within 120 days of approval of the corrective action plan, the owner or operator shall post a performance bond executed on DEP Form 6053-G, entitled "Performance Bond for Corrective Action" (November 2016), which is hereby incorporated by reference. This document may be obtained from the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, from 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays, or from the Web site at eec.ky.gov/environmental-protection/waste. The owner or operator shall also post one (1) or a combination of the following financial assurance mechanisms in the amount set forth in the corrective action cost estimate:

(a) A surety bond executed on DEP Form 6053-M, entitled "Surety Bond for Corrective Action" (November 2016), which is hereby incorporated by reference. This document may be obtained from the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, from 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays, or from the Web site at eec.ky.gov/environmental-protection/waste;

(b) A trust fund executed on DEP Form 6053-J, entitled "Trust Agreement for Corrective Action" (November 2016), which is hereby incorporated by reference. This document may be obtained from the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, from 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays, or from the Web site at eec.ky.gov/environmental-protection/waste;

(c) A letter of credit executed on DEP Form 6053-H, entitled "Irrevocable Letter of Credit for Corrective Action" (November 2016), which is hereby incorporated by reference. This document may be obtained from the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, from 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays, or from the Web site at eec.ky.gov/environmental-protection/waste;

(d) An escrow agreement executed on DEP Form 6053-I, entitled "Escrow Agreement for Corrective Action" (November 2016), which is hereby incorporated by reference. This document may be obtained from the Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, (502) 564-6716, from 8 a.m. to 4:30 p.m., eastern time, Monday through Friday, excluding state holidays, or from the Web site at eec.ky.gov/environmental-protection/waste;

(e) Any other financial assurance mechanism that complies with subsections (1) to (4) of this section and is approved by the cabinet.

(6) The owner or operator may satisfy the requirements of this section by establishing one (1) or more of the financial mechanisms listed in subsection (5) of this section.

(7) The financial insurance mechanisms posted to assure performance of the corrective action required under 401 KAR 48:300 shall be released when the owner or operator demonstrates to the cabinet's satisfaction that the groundwater corrective action plan's remedial measures have been completed and that the facility is in compliance with 401 KAR 48:300 and KRS Chapter 224.

Section 19. Use of Multiple Financial Mechanisms at Single Facilities and Single Mechanisms at Multiple Facilities.

(1) The owner or operator may satisfy the requirements of this administrative regulation by establishing more than one (1) financial mechanism for each facility. These mechanisms are limited to trust funds, escrow agreements, surety bonds, letter of credit, and insurance. The mechanisms shall be as specified in Sections 8 to 12 of this administrative regulation respectively, except that it is the combination of mechanisms, rather than each single mechanisms, that shall provide financial assurance for an amount at least equal to the current closure or closure care cost estimates.

(2) The owner or operator may use a financial assurance mechanism specified in this administrative regulation to meet the requirements of this administrative regulation for more than one (1) facility. Evidence of financial assurance submitted to the cabinet shall include a list showing, for each facility, the name, address, and amount of funds for closure and closure care assurance by the financial mechanism. The amount of funds available through the financial mechanism shall be no less than the sum of the funds that would be available if a separate financial mechanism had been established and maintained for each facility. In directing funds available through the financial mechanism for closure or closure care of any of the facilities provided for by the financial mechanism, the cabinet may direct only the amount of funds designated for the facility, unless the owner or operator agrees to the use of additional funds available under the financial mechanism.

History

RELATES TO: KRS 224.01-010-224.01-070, 224.40-100-224.43-345, 224.99-010, Chapter 355
STATUTORY AUTHORITY: KRS 224.10-100, 224.40-305, 224.40-650, 40 C.F.R. Parts 257, 258
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.40-305 requires the cabinet to promulgate administrative regulations for the managing, processing, or disposal of wastes. KRS 224.40-650 requires that persons engaging in the management, processing, and disposal of waste obtain a permit. KRS 224.650 and KRS 224.40-110 require permit applicants to post a performance bond with a mechanism of financial assurance. This chapter establishes the minimum technical standards for solid waste sites or facilities. This administrative regulation sets forth the financial requirements for closure, closure care, and corrective action.
History: 401 KAR 048:310. 16 Ky.R. 1807; 2236; 2398; eff. 5-8-1990; 21 Ky.R. 515; 1112; eff. 11-7-1994; TAm eff. 7-8-2016; TAm eff. 12-21-2016; Crt eff. 8-13-2018; TAm eff. 10-15-2018; TAm eff. 5-7-2019; TAm eff. 10-3-2019; Crt eff. 7-22-2025.

401 KAR 48:320 Operating requirements for less than one (1) acre or expanded less than two (2) acre construction or demolition debris landfills {#sec-401-kar-48-320 omnilex-key=us-ky-regs-official--title-401--401 KAR 48:320}

Section 1. Applicability. This administration regulation shall apply to owners and operators of less than one (1) acre or expanded less than two (2) acre construction or demolition debris landfills. The owner or operator of a less than one (1) acre or expanded less than two (2) acre construction or demolition debris landfill shall operate the facility in accordance with the requirements of this administrative regulation.

Section 2. Requirement to Obtain a Registered Permit-by-rule. The owner or operator of a less than one (1) acre or expanded less than two (2) acre construction ordemolition debris landfill shall not begin construction or accept waste until the registered permit-by-rule for the facility has become effective as established in 401 KAR 47:110.

Section 3. Construction Requirements. The owner or operator of a less than one (1) acre or expanded less than two (2) acre construction or demolition debris landfill located inside a "wellhead protection area", as defined by 401 KAR 5:002, Section 1, shall construct and maintain a liner and leachate collection system.

(1) The liner shall:

(a) Be constructed of soil:

With a minimum thickness of twelve (12) inches; and
That includes a low permeability soil component with a minimum of twelve (12) contiguous inches of 1 x 10-7 centimeters per second maximum permeable material, or its equivalent; and

(b) Cover the bottom and sidewalls of the facility, with the bottom liner sloped toward a leachate collection system that complies with subsection (3) of this section.

(2) A professional engineer, licensed in Kentucky pursuant to KRS 322.040, shall supervise the design and installation of the liner, including moisture and density tests, and shall certify that the liner meets the compaction requirements. The certification shall be submitted to the cabinet within ten (10) days of completion of the liner.

(3) The leachate collection system shall:

(a) Have a minimum of a twelve (12) inch layer of gravel, or a layer of equivalent performance, and a toe-drain; and

(b) Be discharged into a collection tank with a minimum capacity of 1000 gallons.

(4) A professional engineer licensed in Kentucky, pursuant to KRS 322.040, shall supervise the design and installation of the leachate collection system, and shall certify that the collection tank meets the capacity requirement. The certification shall be submitted to the cabinet within ten (10) days of completion of the liner.

Section 4. Operating Requirements.

(1) The owner or operator of a less than one (1) acre or expanded less than two (2) acre construction or demolition debris landfill shall comply with:

(a) The environmental performance standards of 401 KAR 30:031;

(b) The siting requirements of 401 KAR 48:050, Sections 1 through 3;

(c) The liner and a leachate collection system as established in Section 3 of this administrative regulation, if the landfill is to be located in a wellhead protection area;

(d) The groundwater protection plan requirements of 401 KAR 5:037;

(e) The requirements of KRS 224.40-120;

(f) The operator certification requirements established pursuant to KRS 224.40-605; and

(g) The annual report requirement of 401 KAR 47:110, Section 2(3).

(2) The owner or operator of a less than one (1) acre or expanded less than two (2) acre construction or demolition debris landfill shall:

(a) Dispose only of "construction or demolition waste" or construction material as defined by 401 KAR 48:005, Section 1(18);

(b) Not dispose of electrical fixtures containing hazardous liquids, such as fluorescent light ballasts or transformers;

(d) During operation, clearly delineate the horizontal boundary with slats, stakes, or other types of easily identifiable permanent markers to show that the constructed boundary is within the permitted boundary;

(e) Install silt fencing, hay bales, or other appropriate best management practices to prevent sediment from leaving any area disturbed by construction, including stockpiled soil and borrow pit areas. The sediment controls shall be kept in good operating order;

(f) Only accept cabinet-approved waste from sources listed in the registration. Wastes may be added by submitting a revised registration pursuant to 401 KAR 47:110, Section 3;

(g) Place the waste in layers, two (2) feet thick or smaller, and compact each layer thereafter;

(h) Cover each ten (10) foot lift with a minimum of six (6) inches compacted soil;

(i) Maintain a buffer zone of 750 yards from any other less than one (1) acre or expanded less than two (2) acre construction or demolition debris landfill permitted boundary;

(j) Remove landfill debris, mud, and waste from off-site roadways;

(k) Limit the maximum capacity of a less than one (1) acre construction or demolition debris landfill not to exceed 40,000 cubic yards of waste; and

(l) Limit the maximum capacity of a less than one (1) acre construction or demolition debris landfill that has been expanded to a less than two (2) acre construction or demolition debris landfill not to exceed a total combined volume of 110,000 cubic yards of waste.

(3) Interim cover period. The owner or operator:

(a) Shall place interim soil cover in a manner to eliminate protruding waste over an area that will not receive at least twelve (12) cubic yards of waste within ninety (90) calendar days of the last waste placement;

(b) Shall not have more than one (1) acre of exposed waste at any given time;

(d) Shall place, compact, and grade the interim cover to promote positive drainage; and

(e) Shall apply temporary erosion controls at the time of placing interim cover.

Section 5. Closure Requirements. The owner or operator of a less than one (1) acre or expanded less than two (2) acre construction or demolition debris landfill shall close the facility as established in the section.

(1) The landfill shall be covered with a soil cap, two (2) feet thick, and the entire disturbed area shall be vegetated within thirty (30) days of ceasing to accept waste. The cabinet may approve an alternative cover proposed by the owner or operator if the alternative cover is of equivalent performance.

(a) The vegetation shall consist of:

A minimum of two (2) legumes;
One (1) annual grass; and
One (1) perennial grass, in sufficient poundage to provide at least ninety (90) percent ground coverage for the disturbed area.

(b) The grass seed shall be covered with at least one and one-half (1.5) tons of straw mulch or an alternative that delivers equivalent performance per acre.

(d) The final cap shall have a slope of between five (5) percent and twenty-five (25) percent upon completion of the final grading.

(2) The owner or operator of a less than one (1) acre or expanded less than two (2) acre construction or demolition debris landfill shall record a notice, with the property deed, on which the less than one (1) acre or expanded less than two (2) acre construction or demolition debris landfill is located.

(a) The notice shall notify, in perpetuity, any potential purchaser of the property of the landfill's location and dates of operation, the nature of the waste disposed, and impose a restriction against any disturbance of the cap.

(b) The notice shall be recorded in accordance with KRS Chapter 382, and proof of recording shall be submitted to the cabinet prior to the cabinet's approval of closure.

(3) The owner or operator of a less than one (1) acre or expanded less than two (2) acre construction or demolition debris landfill shall, upon completion of closure of the facility, contact the cabinet for a closure inspection and release of the bond, as established in 401 KAR 48:310.

(4) Closure shall be completed no later than thirty (30) days after final receipt of waste.

Section 6. Corrective Action Requirements.

(1) If the cabinet determines that a threat to human health, safety, or the environment exists, the owner or operator of a less than one (1) acre or expanded less than two (2) acre construction or demolition debris landfill shall conduct corrective action in accordance with 401 KAR 48:300, Section 8.

(2) The owner or operator shall certify to the cabinet that corrective action has been completed.

(3) The cabinet shall determine that corrective action has been completed before releasing the bond.

History

RELATES TO: KRS 224.1-010, 224.10-100, 224.10-105, 224.40-100, 224.40-110, 224.40-120, 224.40-305, 224.40-310, 224.40-315, 224.40-320, 224.40-325, 224.40-330, 224.40-340, 224.40-605, 224.40-650, 224.43-010, 224.43-020, 224.43-310, 224.43-315, 224.43-330, 224.43-340, 224.43-345, 224.43-350, 224.70-100, 224.70-110, 224.99-010, 224.99-020, 322.040
STATUTORY AUTHORITY: KRS 224.10-100(19)(c), (24), 224.40-100, 224.40-120, 224.40-305, 224.40-330, 224.40-605
NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(19)(c) and (24), 224.40-120, 224.40-305, 224.40-330, and 224.40-605 authorize the cabinet to promulgate administrative regulations for the management, processing, and disposal of wastes. KRS 224.40-305 requires that persons engaging in the management, processing, and disposal of waste obtain a permit. This administrative regulation establishes the technical requirements for less than one (1) acre or expanded less than two (2) acre construction ordemolition debris landfills.
History: 401 KAR 048:320. 25 Ky.R. 2476; 26 Ky.R. 75; 375; 732; eff. 9-8-1999; Crt eff. 8-13-2018; TAm eff. 8-4-2021; 51 Ky.R. 777, 1652; eff. 6-3-2025.

Chapter 49 Solid Waste Planning

Section 1. Definitions. Unless otherwise specifically defined in KRS Chapter 224 or otherwise specifically indicated by context, terms in 401 KAR Chapter 49 shall have the meanings given in this section.