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ENERGY AND ENVIRONMENT CABINET

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Department for Environmental Protection

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Division of Waste Management

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(Amended After Comments)

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401 KAR 46:120. Coal combustion residuals (CCR) program[permit-by-rule].

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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

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STATUTORY AUTHORITY: KRS 224.10-100, 224.50-760

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NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100(28) authorizes the

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cabinet to promulgate administrative regulations not inconsistent with the provisions of law

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administered by the cabinet. KRS 224.50-760(1)(d) authorizes the cabinet to promulgate

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administrative regulations for the management of special wastes. This administrative regulation

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establishes the requirements for a CCR permit-by-rule and registered permit-by-rule.

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Section 1. CCR Permits[Permit-by-rule]. Any person engaged in the operation of a

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CCR unit shall comply with this administrative regulation.

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(1)(a) An owner or operator of a CCR unit shall complete and submit the following to

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obtain[be deemed to have] a registered permit-by-rule:

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1. Registered Permit-by-Rule for CCR Facility, DWM 4600, incorporated by
reference in this administrative regulation; and
2. In accordance with Section 7 of this administrative regulation, established
financial assurance and proof of publication of a public notice.
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(b) Within thirty (30) days of the receipt, as evidenced by the date stamped by the

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Division of Waste Management, the cabinet shall review the registration information

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submitted in accordance with paragraph (a) of this subsection.

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(c) After review of the registration information submitted in accordance with
paragraph (a) of this subsection, the cabinet shall notify the applicant in writing:
1. The applicant completed and submitted all registration information and is
deemed to have a registered permit-by-rule; or
2. The registration information is deficient, and require the owner or operator to
submit the required information to the cabinet.

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(d)1. The owner or operator of a registered permit-by-rule shall submit revised

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registration information pursuant to paragraph (a) of this subsection if any information

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changes.

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2. Within thirty (30) days of receipt, the cabinet shall review the revised registration

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information in accordance with paragraphs (b) and (c) of this subsection[without the owner

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or operator having made application with the cabinet].

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(2) A beneficial use of CCR user shall be deemed to have a permit-by-rule without
having made application with the cabinet, if:

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(a) The user is not in violation of 401 KAR Chapter 46 or 401 KAR 30:031;

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(b) The beneficial use of CCR does not present a threat or potential threat to human

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health or the environment;
(c) The beneficial use of CCR does not result in a nuisance condition created by the
fugitive emissions of CCR;

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(d) The user characterized the nonhazardous nature of the CCR in accordance with 401
KAR 31:030; and

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(e) The user submits an annual report to the cabinet pursuant to Section 5 of this
administrative regulation.

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Section 2. Notice of Concurrence. (1)(a) A permittee who has a permit-by-rule or a

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registered permit-by-rule as established in Section 1 of this administrative regulation may

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request a Notice of Concurrence from the cabinet.

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(b) A person, who does not have a registered permit-by-rule as established in Section

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1(1) of this administrative regulation, and intends to construct a CCR unit, may request a Notice

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of Concurrence from the cabinet prior to beginning construction.

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(c) A person who intends to beneficially use CCR may request a Notice of Concurrence
from the cabinet prior to beginning beneficial use.

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(2) A person requesting to obtain a Notice of Concurrence shall complete and submit the
following information, if applicable:

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(a) CCR [Permit-by-rule]Notice of Concurrence Request, DWM 4610, incorporated by
reference in this administrative regulation;

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(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;

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(c) For a stability analysis of a new CCR landfill or lateral expansion of an existing CCR
landfill, the landfill design demonstrating the following:

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1. For subgrade, the factor of safety shall be a minimum of two and zero-tenths (2.0);

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2. For the liner components, the factor of safety shall be a minimum of one and one-fourth

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(1.25);

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3. For the final cover system, the factor of safety shall be a minimum of one and one-half
(1.5);
4. For the synthetic liner material and structural synthetic materials, a maximum elongation
of ten (10) percent; and

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5. A minimum seismic factor of safety of one and zero-tenths (1.0);

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(d) Additional information necessary to enable the cabinet to make a determination on the

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issuance of the Notice of Concurrence;

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(e)1. If for the unencapsulated beneficial use of CCR involving placement on the land of

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12,400 tons or more in non-roadway applications, a check or money order made payable to the

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Kentucky State Treasurer in the amount of $2,500; or

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2. If for a person, who has not obtained a registered permit-by-rule as established in

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Section 1(1) of this administrative regulation, and intends to construct a CCR unit, a check or

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money order made payable to the Kentucky State Treasurer in the amount of $5,000; and

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(f) A narrative with supporting documentation, a certification statement, and seal, from a

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professional engineer or professional geologist, licensed in accordance with KRS Chapter 322 or

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KRS Chapter 322A, that the information prepared by the professional engineer or professional

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geologist, and submitted with the notice of concurrence request, meets the applicable portions of

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401 KAR 46:110 and paragraphs (b) and (c) of this subsection.

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(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;

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(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.

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(4)(a) Failure by the applicant to provide the requested information and documentation

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within ninety (90) days of issuance of a deficiency letter established in subsection (3)(b) of this

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section shall cause the CCR[If the submittal is incomplete or additional information is

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needed after the second deficiency letter, the CCR Permit-by-rule] Notice of Concurrence

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Request, DWM 4610, to[shall] expire.

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(b) No more than two (2) deficiency letters shall [not]be issued in accordance with

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subsection (3)(b) of this section, after which the CCR [Permit-by-rule]Notice of Concurrence

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Request, DWM 4610, shall expire.

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(c) Expiration of the CCR [Permit-by-rule]Notice of Concurrence Request, DWM 4610,

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shall not prevent the applicant from reapplying if the requested documentation becomes

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available.

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(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 cabinet
determines that the applicant submitted a false certification.

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Section 3. Transition of a Permit Issued in Accordance with 401 KAR Chapter 45. (1) A

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permittee who is subject to 401 KAR Chapter 46 shall notify the cabinet in writing of its intent to

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meet the requirements of 401 KAR Chapter 46 by no later than May 1[January 15], 2017, if the

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permittee possesses a:

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(a) Special waste permit-by-rule in accordance with 401 KAR 45:060;

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(b) Special waste registered permit-by-rule in accordance with 401 KAR 45:070; or

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(c) Formal permit for special waste in accordance with 401 KAR 45:030.

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(2) Upon issuance by the cabinet of a registered permit-by-rule[As of January 15,

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2017], a permit issued pursuant to 401 KAR Chapter 45 for management, disposal, or beneficial

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reuse of CCR shall terminate if the permittee is subject to 401 KAR Chapter 46.

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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.

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(b) An owner or operator of a CCR unit shall notify the cabinet in writing upon

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completion of post-closure activities as established in 401 KAR 46:110, Section 6, and shall no

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longer be subject to annual fees established in this section.

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(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, incorporated by reference in this administrative regulation.

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(4) A check or money order shall be made payable to the Kentucky State Treasurer.

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(5) The annual fee shall be due July 31, 2017, and every year after.

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(6)(a) The owner or operator of a CCR unit may request an extension to the deadline not

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to 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.

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Section 5. Beneficial Use of CCR Reporting Requirements. The user shall submit to the

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cabinet an annual report of the beneficial use activity undertaken in the previous calendar year by

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March 31 that identifies the:

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(1) Name and address of the CCR generator;

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(2) Tonnage of CCR beneficially used;

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(3) Name and address of each user of CCR; and

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(4) Specific use of the CCR.

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Section 6. Noncompliances. (1) The cabinet may take any appropriate enforcement

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action, including corrective action, pursuant to 401 KAR Chapter 40, KRS 224.10-410, or

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224.10-420, if the permittee is not operating in compliance with 401 KAR Chapter 46.
(2) The cabinet may revoke, modify, or suspend[invalidate] a CCR permit-by-rule or
registered permit-by-rule upon a final determination of noncompliance.

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(3) The cabinet shall follow the procedures in 401 KAR 40:040 in taking action to

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revoke, modify, or suspend[invalidate] any permit-by-rule or registered permit-by-rule

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pursuant to this section.

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Section 7. Financial Assurance and Public Notice Requirements. (1) Owners and

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operators shall maintain financial assurance sufficient to complete closure and post-closure

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requirements established in 401 KAR 46:110:

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(a) For new CCR units; and

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(b) Existing CCR units that were required to establish financial assurance in

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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.

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(3) The cabinet shall release the financial assurance mechanism required by this

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section upon notification of completion of post-closure requirements referenced in 40

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C.F.R. 257.104(e) as established in 401 KAR 46:110.

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(4)(a) A public notice shall be published in a daily or weekly newspaper of major

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circulation located in the county or counties where the property where the proposed CCR

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unit is located. If there is no daily or weekly newspaper of major circulation in the county

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or counties where the proposed CCR unit is located, public notice shall mean publication of

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required information in a daily or weekly newspaper of major circulation in a county

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adjacent to the county or counties where the property is located.

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(b) Public notice shall include the information contained on the form incorporated
by reference in Section 8(1)(f) of this administrative regulation.
Section 8. Incorporation by Reference. (1) The following material is incorporated by
reference:

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(a) “CCR [Permit-by-rule]Notice of Concurrence Request”, DWM 4610, January

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2017[September 2016]; [and]

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(b) “CCR Annual Fee Form”, DWM 4620, September 2016; and

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(c) “Registered Permit-by-Rule for CCR Facility", DWM 4600, January 2017.

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(2) This material may be inspected, copied, or obtained, subject to applicable copyright

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law, at the Division of Waste Management, 300 Sower Boulevard, 2nd Floor, Frankfort,

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Kentucky 40601, Monday through Friday, 8:00 a.m. to 4:30 p.m.

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(3) This material may also be obtained on the division’s Web site at waste.ky.gov.

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401 KAR 46:120 approved for filing.

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Date

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Charles G. Snavely, Secretary
Energy and Environment Cabinet

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REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT
401 KAR 46:120
Contact Person:

Louanna Aldridge
Telephone: (502) 782-6538
Louanna.Aldridge@ky.gov

(1) Provide a brief summary of:
(a) What this administrative regulation does: This administrative regulation establishes
the requirements for a CCR permit-by-rule and registered permit-by-rule, the transition of
permits for facilities previously regulated by 401 KAR Chapter 45, reporting requirements for
the beneficial use of CCR, procedures for which a regulated entity may request a concurrence
from the cabinet for compliance, financial assurance requirements, public notice and fees
associated with the implementation of the program.
(b) The necessity of this administrative regulation: This administrative regulation is
necessary to establish the requirements for a CCR permit-by-rule and registered permit-by-rule,
the transition of permits for facilities previously regulated by 401 KAR Chapter 45, reporting
requirements for the beneficial use of CCR, financial assurance, public notice and procedures for
which a regulated entity may request a concurrence from the cabinet for compliance.
(c) How this administrative regulation conforms to the content of the authorizing statutes:
This administrative regulation conforms to KRS 224.50-760 by establishing compliance
requirements for the management of coal combustion residuals. This administrative regulation
conforms to KRS 224.10-100(20) by exempting publicly-owned facilities from the fees
established.
(d) How this administrative regulation currently assists or will assist in the effective
administration of the statutes: This administrative regulation assists in the administration of the
statutes by establishing requirements for the management of coal combustion residuals as
required by KRS 224.50-760.
(2) If this is an amendment to an existing administrative regulation, provide a brief
summary of:
(a)
How the amendment will change this existing administrative regulation: The
following amendments were made to this regulation:
The Cabinet amended the title of regulation to reflect multiple types of permits; Added
language imposing a duty to comply with regulation; Amended CCR permits to require a
registered permit-by-rule for CCR units; A registration form for registered permit-by-rule was
added; Required owners and operators of CCR units to complete registration, establish financial
assurance (if applicable) & submit proof public notice prior to receiving a registered permit-by10

rule; Cabinet review added for CCR unit registration information within 30 days and would
require a notification to applicant when they have registered permit-by-rule, or issue the
applicant a deficiency letter; Cabinet would also review revised registrations within 30 days;
Financial assurance for closure and post-closure added for new CCR units and existing CCR
units which were required to establish financial assurance under 401 KAR 45:080 already;
Added a provision for Cabinet to release financial assurance upon notification of completion of
post-closure requirements; Added a public notice to be published in the newspaper of major
circulation where CCR unit is located, proof of which is required with registration; Changed
name of CCR Registered Notice of Concurrence Request form to allow either permit-by rule or
registered permit-by-rule applicants to apply; Clarified language in Section 2(4)(a) and (b) that
the Notice of Concurrence request would expire if applicant fails to submit information and
documentation required by deficiency letter; Extended notification required from permittees
transitioning from 401 KAR Chapter 45 to 401 KAR Chapter 46 from January 2017 to May
2017; Modified the termination of a permit under 401 KAR Chapter 45 to 401 KAR Chapter 46
from occurring on January 2017 until the Cabinet issues the new registered permit-by-rule;
Modified noncompliance language from “invalidate” to “revoke, modify, or suspend” to be
consistent with 401 KAR Chapter 40.
(b) The necessity of the amendment to this administrative regulation: The amendment
requiring CCR units to obtain a registered permit-by-rule will allow for the prior review of
registration information by the Cabinet. The financial assurance will ensure sufficient funding
for closure and post-closure of new CCR units and CCR units that were previously required to
have financial assurance under 401 KAR Chapter 45. In addition, the Cabinet provision for when
the financial assurance would be released is necessary to establish an end date. A public notice
publication was necessary to alert local residents of CCR units. Language clarification in Section
2(4)(a) and (b) of this administrative regulation was necessary as the Cabinet had an incomplete
sentence and it was unclear as to when the Notice of Concurrence request would expire. The
extension from January 2017 to May 2017 for notification from owners of operators transitioning
from 401 KAR Chapter 45 was necessary as the January 2017 date will be passed by the time the
regulation is effective. The January 2017 date for the termination of permits transitioning would
also be passed by the time the regulation is effective and to prevent a lapse in permit coverage,
the date was replaced with the issuance of the new registered permit-by-rule. Noncompliance
language was amended to be consistent with KRS 224 terms.
(c) How the amendment conforms to the content of the authorizing statutes: The
amendments conform to the content of KRS 224.50-760 by establishing compliance
requirements for the management of coal combustion residuals.
(d) How the amendment will assist in the effective administration of the statutes: This
amendment will administration of the statutes by establishing requirements for the management
of coal combustion residuals as required by KRS 224.50-760.
(3) List the type and number of individuals, businesses, organizations, or state and local
governments affected by this administrative regulation: This administrative regulation will affect
electric generating utilities that manage coal combustion residuals by establishing the
requirements for a CCR permit-by-rule. There are currently eight electric generating utilities that
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will be affected in Kentucky. This administrative regulation will affect the Division of Waste
Management and the Division of Water as it establishes requirements for entities regulated by
the divisions.
(4) Provide an analysis of how the entities identified in question (3) will be impacted by
either the implementation of this administrative regulation, if new, or by the change, if it is an
amendment, including:
(a) List the actions that each of the regulated entities identified in question (3) will have
to take to comply with this administrative regulation or amendment: This administrative
regulation will require a utility previously regulated by 401 KAR Chapter 45 to notify the
cabinet by May 15, 2017 of their intent to comply with this chapter. Facilities operating CCR
units will be required to pay an annual fee. A person conducting beneficial use of CCR will be
required to report annually. Owners and operators of CCR units will be required to register with
the cabinet and post financial assurance for closure and post-closure as well as to maintain
financial assurance for closure and post-closure if previously required by 401 KAR Chapter 45.
In addition, owners and operators of CCR units will be required to submit a registration and
obtain a CCR registered permit-by-rule, and publish a public notice in the county where the CCR
unit is located.
(b) In complying with this administrative regulation or amendment, how much will it cost
each of the entities identified in question (3): This administrative regulation will cost each
facility $15,000 annually. In addition, the owners and operators of CCR units required to
maintain financial assurance will have the costs of maintaining that bond. In addition, owners
and operators of CCR units would have the costs of a public notice in the county newspaper
where the CCR unit is locatd. The Division of Waste Management and the Division of Water
will have personnel costs associated with the implementation of this administrative regulation
related to registration review, investigation of complaints for noncompliance of the regulated
entities, processing the notifications required in the federal regulation, reviewing annual reports
for the beneficial use of CCR, processing of fees, and evaluation of the criteria established in this
regulation upon request by the regulated entities. The Division of Waste Management anticipates
the need for an additional 2.25 personnel positions to administer the coal combustion residual
program at a cost of $225,000.
(c) As a result of compliance, what benefits will accrue to the entities identified in
question (3): This administrative regulation will benefit the regulated entities by providing a
permit-by-rule or registered permit-by rule for compliance with this chapter. The regulated entity
may request a notice of concurrence from the cabinet on whether they are complying with the
requirements established in 401 KAR 46:110 which may provide some protectiveness. In
addition, the criteria for the disposal of coal combustion residuals established in this
administrative regulation will increase the protectiveness of human health and the environment.
(5) Provide an estimate of how much it will cost the administrative body to implement
this administrative regulation:
(a) Initially: The administrative body will have personnel costs associated with the
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implementation of this administrative regulation related to registration review for registered
permit-by-rules, handling of financial assurance mechanisms provided, verification of public
notice, investigation of complaints for noncompliance of the regulated entities, processing the
notifications required in the federal regulation, reviewing annual reports for the beneficial use of
CCR, processing of fees, and evaluation of the criteria established in this regulation upon request
by the regulated entities. The Division of Waste Management anticipates the need for an
additional 2.25 personnel positions to administer the coal combustion residual program at a cost
of $225,000.
(b) On a continuing basis: This administrative regulation will cost $225,000 on an annual
basis to administer.
(6) What is the source of the funding to be used for the implementation and enforcement
of this administrative regulation: The funding source for this administrative regulation is
established by an annual fee per facility, and a fee for concurrence if requested.
(7) Provide an assessment of whether an increase in fees or funding will be necessary to
implement this administrative regulation, if new, or by the change if it is an amendment: This
administrative regulation will require an increase in funding to implement. The implementation
of this administrative regulation will be funded by the annual fee and the fee for a concurrence
request.
(8) State whether or not this administrative regulation established any fees or directly or
indirectly increased any fees: This administrative regulation establishes an annual fee of $15,000
for facilities with CCR units, with the exception of publicly-owned facilities which are exempt.
In addition, if a new utility company requests a notice of concurrence, a $5,000 fee is required. If
a request for a notice of concurrence for the unencapsulated beneficial use of CCR involving
placement on the land of 12,400 tons or more in non-roadway applications, a fee of $2,500 is
required.
(9) TIERING: Is tiering applied? (Explain why or why not) Tiering is not applied in this
administrative regulation. All facilities and notice of concurrence requests are charged the same
annual fee.

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FISCAL NOTE ON STATE OR LOCAL GOVERNMENT
401 KAR 46:120
Contact Person:

Louanna Aldridge
Telephone: (502) 782-6538
Louanna.Aldridge@ky.gov

(1) What units, parts, or divisions of state or local government (including cities, counties,
fire departments, or school districts) will be impacted by this administrative regulation? This
administrative regulation will impact the Division of Waste Management and Division of Water.
(2) Identify each state or federal statute or federal regulation that requires or authorizes the
action taken by the administrative regulation. KRS 224.50-760
(3) Estimate the effect of this administrative regulation on the expenditures and revenues
of a state or local government agency (including cities, counties, fire departments, or school
districts) for the first full year the administrative regulation is to be in effect.
(a) How much revenue will this administrative regulation generate for the state or local
government (including cities, counties, fire departments, or school districts) for the first year?
This administrative regulation will generate an annual revenue of $225,000 in annual fees. In
addition, this administrative regulation will generate $2,500 or $5,000, if applicable, per
notification of concurrence request for the Division of Waste Management. The amount of
revenues that will be generated for concurrence requests will depend on the number received and
cannot be determined at this time.
(b) How much revenue will this administrative regulation generate for the state or local
government (including cities, counties, fire departments, or school districts) for subsequent
years? This administrative regulation will generate an annual revenue of $225,000 in annual fees
for subsequent years. In addition, this administrative regulation will generate $2,500 or $5,000, if
applicable, per notification of concurrence request for the Division of Waste Management. The
amount of revenues that will be generated for concurrence requests will depend on the number
received and cannot be determined at this time.
(c) How much will it cost to administer this program for the first year? This administrative
regulation will have personnel costs associated with the implementation of this administrative
regulation related to registration review for registered permit-by-rules, handling of financial
assurance mechanisms provided, verification of public notice, investigation of complaints for
noncompliance of the regulated entities, processing the notifications required in the federal
regulation, reviewing annual reports for the beneficial use of CCR, processing of fees, and
evaluation of the criteria established in this regulation upon request by the regulated entities. The
Division of Waste Management anticipates the need for an additional 2.25 personnel positions to
administer the coal combustion residual program at a cost of $225,000.
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(d) How much will it cost to administer this program for subsequent years? This
administrative regulation will have continued personnel costs for subsequent years associated
with registration review for registered permit-by-rules, handling of financial assurance
mechanisms provided, verification of public notice investigation of complaints for
noncompliance of the regulated entities, processing the notifications required in the federal
regulation, reviewing annual reports for the beneficial use of CCR, processing of fees, and
evaluation of the criteria established in this regulation upon request by the regulated entities. The
Division of Waste Management anticipates the need for an additional 2.25 personnel positions to
administer the coal combustion residual program at a cost of $225,000.
Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain
the fiscal impact of the administrative regulation.
Revenues (+/-): 15 facilities x $15,000/annual fee =$225,000 generated.
Expenditures (+/-): $225,000 for the implementation of this administrative regulation on
2.25 additional personnel.
Other Explanation: The revenue generated for processing the notification of concurrence
requests will be $2,500 or $5,000, whichever is applicable. The amount of revenues that will be
generated for concurrence requests will depend on the number received and cannot be
determined at this time.

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Detailed Summary of Material Incorporated by Reference
I.
This administrative regulation incorporates by reference the “CCR Notice of Concurrence
Request”, DWM 4610, January 2017. This document is to be submitted by entities requesting a
determination for compliance with 401 KAR 46:110. The title of this document was amended
from “CCR Permit-by-Rule Notice of Concurrence Request” to “CCR Notice of Concurrence
Request” to clarify that either permit-by-rule or registered permit-by-rule permittees could use
this form. “Type of PBR” was changed to “Type of Permit” for this reason as well. Due to these
changes, the revision date was changed on this form from September 2016 to January 2017.
This document consists of 4 pages, and the marked up copy consists of 4 pages.
II.
This administrative regulation incorporates by reference the “CCR Annual Fee Form”,
DWM 4620, September 2016. This document is to be submitted for each facility by the owner or
operator of a CCR unit.
This document consists of 2 pages.
III. This administrative regulation incorporates by reference the “Registered Permit-by-Rule for
CCR Facility”, DWM 4600, January 2017. This document is to be submitted by owners and
operators of CCR units to obtain a registered permit-by-rule.
This document consists of one page.

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STATEMENT OF CONSIDERATION
RELATING TO
401 KAR 4:070 (Not Amended After Comments)
401 KAR 45:010 (Not Amended After Comments)
401 KAR 45:060 (Not Amended After Comments)
401 KAR 46:110 (Not Amended After Comments)
401 KAR 46:101 (Amended After Comments)
401 KAR 46:120 (Amended After Comments)

Energy and Environment Cabinet
Department for Environmental Protection
Division of Waste Management and Division of Water

I. A public hearing on 401 KAR 4:070, 45:010, 45:060, 46:101, 46:110, and 46:120 was held on
November 22, 2016 at 6:00 p.m. at 300 Sower Blvd, Frankfort, Kentucky. The Divisions of
Waste Management and Water also received written comments during the public comment
period.

II. The following people submitted comments:

Name

Agency/Organization/Entity/Other

Comments

Louanna Aldridge

Division of Waste Management

Written

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James Below

Written

Jack Bender, Attorney

Utility Information Exchange of Kentucky Written

Tom FitzGerald, Director

Kentucky Resources Council, Inc.

Written

Carolyn M. Brown, Attorney East Kentucky Power Cooperative

Written

Chris Cummins, P.G.

Kentucky Transportation Cabinet

Written

Bill Smith

American Electric Power

Verbal

Todd Hendricks, P.G.

Written and Verbal

Kelly Leach

Verbal

Kathy Little

Written and Verbal

Sonia McElroy

Verbal

III. The following people from the promulgating administrative body responded to the written
and verbal comments:

Department of Environmental Protection:
Aaron Keatley, Commissioner
Anthony Hatton, P.G., Deputy Commissioner

Division of Waste Management:
Jon Maybriar, Director
John Maddy, Program Planning Manager
Louanna Aldridge, Program Development Supervisor
Danny Anderson, P.E., Solid Waste Manager
Robin Green, Environmental Scientist
John Poore, P.E., Environmental Engineer Consultant

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Division of Water:
Peter Goodmann, Director
Carole Catalfo, Internal Policy Analyst
Ron Gruzesky, Dam Safety Section Supervisor

IV. Summary of Comments and Responses for 401 KAR 401 KAR 4:070, 45:010, 45:060,
46:101, 46:110, and 46:120.

The following comments and responses are grouped by administrative regulation. General
comments related to the entire package are listed first, followed by comments specific to 401
KAR 4:070, 45:010, 45:060, 46:101, 46:110, and 46:120.

(1) Subject Matter: 401 KAR Chapters 45 and 46, Cane Run closing
(a) Commenter: Kathy Little
Comment: Since Cane Run is closed in regard to the coal fired units and LG&E is
capping the pond, that there won’t be any more ash being brought in to be buried. Is this a
correct assessment? I want to be sure of my position (affected or not) before I write questions
regarding the new proposed regulations.
(b) Response: The Cane Run facility is undergoing final closure of the landfill and ash
pond. No other on-site areas currently have an operating permit for waste disposal. The Cabinet
is not aware of any future plans to dispose of special wastes or CCR at the Cane Run facility.

(2) Subject Matter: 401 KAR Chapters 45 and 46, Draft regulations
(a) Commenter: Kathy Little
Comment: Who wrote the proposed regulations?
(b) Response: The proposed regulations were written by Energy and Environment
Cabinet staff.

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(3) Subject Matter: 401 KAR Chapters 45 and 46, Enforcement
(a) Commenter: Todd Hendricks
Comment: Enforcement by citizen lawsuits is likely to be slow, ineffective, inconsistent,
and unnecessarily expensive. Release of contaminants into the environment may continue
unabated for months or years while the case winds its way through court.
In some cases, affected citizens may be financially unable to pursue litigation. This could
make a clean, healthy environment unattainable to the affected party. All Kentuckians deserve a
clean, healthy environment, not just those who can afford to pursue lawsuits.
Courtroom regulation and enforcement is a poor substitute for application review, permit
issuance, and independent oversight and enforcement by a state government agency. Moreover,
money spent on lawsuits by the utilities could be better used to mitigate environmental releases
and close CCR units.
In citizen lawsuits, decisions regarding compliance will be made by judges who may
have no scientific training or environmental regulatory experience. Like judges, citizens often
lack the training, expertise, resources, and time to ascertain whether facilities are reporting in
complete accordance with the CCR Rule.
a) Will the EEC enforce the CCR rule at all, or will it govern by: 1) the enforcement
provisions of 401 KAR Chapters 30 and 40; 2) filing citizen lawsuits against the polluters
pursuant to RCRA; or 3) some combination of 1 and 2?
Response: The Cabinet exercises enforcement authority under statutes and regulations or
through citizen lawsuits as appropriate. Citizens also retain the right to pursue litigation under
the federal rule.

(4) Subject Matter: 401 KAR Chapters 45 and 46, Enforcement
(a) Commenter: Todd Hendricks
Comment: Present permits issued under 401 KAR Chapter 45 restrict Special Waste
landfills to specified waste streams from specified sources. The federal CCR Rule provides for
no such limitations, nor does 401 KAR Chapter 46.
It is therefore conceivable that a utility could build a landfill and accept waste from any
other facility, including out-of-state waste, without state or local input.
Response: CCR has a specific definition that includes the types of residuals that fall
4

within the definition of CCR. Neither 401 KAR Chapters 45 or 46, nor the federal CCR rule,
overrides, negates, or nullifies a local governing body’s rules or regulations regarding restrictions
on waste sources, types, or location. Otherwise a utility could accept CCR from other sources.

(5) Subject Matter: 401 KAR Chapters 45 and 46, Federal mandate comparison
(a) Commenter: Kentucky Resources Council
Comment: KRC disagrees vigorously with the Federal Mandate Analysis Comparison,
which erroneously states that 40 C.F.R. 257.53 is a “Federal statute or regulation constituting the
federal mandate.” There is no federal mandate that the state weaken its permitting procedures for
coal combustion waste disposal facilities. Rather, the federal standards under Part 257 are
intended to supplement existing state requirements, as is made clear in §257.52 Applicability of
other regulations which provides that: (a) Compliance with the requirements of this subpart does
not affect the need for the owner or operator of a CCR landfill, CCR surface impoundment, or
lateral expansion of a CCR unit to comply with all other applicable federal, state, tribal, or local
laws or other requirements. The federal regulation cited as the basis for the “federal mandate,”
40 C.F.R. 257.53, is actually the definition section of Part 257, and contains no federal mandate.
(b) Response: The intent of the Cabinet is to make the regulations consistent with federal
standards.

(6) Subject Matter: 401 KAR Chapters 45 and 46, General comment
(a) Commenter: Kentucky Resources Council
Comment: The Kentucky Resources Council attached Failing the Test, The Unintended
Consequences of Controlling Hazardous Air Pollutants from Coal-Fired Power Plants
(b) Response: The Cabinet acknowledges receipt of this information.

(7) Subject Matter: 401 KAR Chapters 45 and 46, General comment
(a) Commenter: Todd Hendricks
Comment: The proposed state regulatory package is - at best - premature. Both litigation
and legislation are pending regarding the RCRA coal combustion residuals (CCR) Rule, and a
rewrite of the rule is underway. It is also unclear what modifications will be made as a result of
the change of presidential administrations.
5

The only certainty is that the requirements of a revised CCR Rule, if there is one, will be
different than the requirements of the present rule.
It is remarkably imprudent to incorporate the present verbiage (and present requirements) of the
CCR Rule into state regulations before the final verbiage (and final requirements) are even
known.
At a minimum, implementation of the proposed state regulations should be postponed
until the outcome of pending federal litigation and legislation and the concurrent revision of the
RCRA CCR Rule is complete. By far, the best course of action at this point in time is to leave the
present requirements of 401 KAR Chapters 30, 40, and 45 in effect for these facilities until the
federal regulations are in a reasonably final form.
(b) Response: It is the intent of the Cabinet to be consistent with the federal standards,
which are not impacted by the WIIN Act and potential federal regulations. The Cabinet
disagrees that it should wait for litigation to be exhausted.

(8) Subject Matter: 401 KAR Chapters 45 and 46, General comment
(a) Commenter: James Below
Comment: I urge the Dept. of Waste Management not to weaken Kentucky regulations
on the disposal of CCR's in any manner whatsoever. Please do not weaken Kentucky’s law.
(b) Response: The proposed regulations are protective of human health and the
environment.

(9) Subject Matter: 401 KAR Chapters 45 and 46, General comment
(a) Commenter: Sonia McElroy
Comment: I took the trouble to look up the mission of the Division of Waste
Management. It is to protect human health and the environment by minimizing adverse impact
on all citizens of the Commonwealth through the development and implementation of fair,
equitable and effective waste management programs via program planning and administration
and regional field operation efforts. Now if these new regulations go into effect, the Division of
Waste Management's mission statement is to the four winds. It's like letting the fox in the
henhouse to regulate it.
I ask you to preserve and protect our environment and not adopt the amendments,
because putting the coal-ash landfill in a parsed area, an area that is full of sinkholes and small
6

caves is a disaster waiting to happen. Maybe not in my lifetime, but I know none of you would
want to live next to a landfill.
(b) Response: The proposed regulations are protective of human health and the
environment.

(10) Subject Matter: 401 KAR Chapters 45 and 46, General comment
(a) Commenter: Kathy Little
Comment: Within the information on the proposed regulations it asks if I am an affected
constituent. Am I affected? I believe my questions would have to reflect that.
(b) Response: The administrative regulations govern electric generating utilities that
manage coal combustion residuals by establishing the requirements for CCR management.

(11) Subject Matter: 401 KAR Chapters 45 and 46, General comment
(a) Commenter: James Below
Comment: LG&E is presently trying to put an ash disposal site on top of the highest hill
in Trimble County. This will impact air and water quality for many years into the future. LG&E's
own permit application identifies 113 sinkholes and 61 springs in the proposed disposal site. The
permit also states the ash will put a pressure of 15 tons per square foot on the liner when the site
is completed. What do you suppose will happen when a new sinkhole opens up under the liner?
(b) Response: This comment is specific to a pending permit application and not a
specific comment on the proposed regulations.

(12) Subject Matter: 401 KAR Chapters 45 and 46, Required permits
(a) Commenter: East Kentucky Power Cooperative and Utility Information Exchange of
Kentucky
Comment: EKPC is concerned that the Division's authority to approve excavation of clay
may be eliminated under the proposed regulations, potentially triggering an obligation to obtain a
separate permit to obtain clay and materials for liner and cap construction on-site. EKPC
requests that the Division reconsider this aspect of the program or provide clarification in
response to this comment.

7

(b) Response: KRS 350.300 defines that on-site excavation or grading when conducted
in aid of construction is exempt from the non-coal mining permitting requirements. Other
Cabinet regulatory and permit requirements may apply.

(13) Subject Matter: 401 KAR Chapters 45 and 46, Required permits
(a) Commenter: Todd Hendricks
Comment: Presently, borrow areas are regulated and permitted under 401 KAR Chapter
45. However, I see no mention of borrow areas in the federal CCR Rule. In lieu of regulation
under 401 KAR Chapter 46, will surface mining permits be required for borrow areas?
(b) Response: KRS 350.300 defines that on-site excavation or grading when conducted
in aid of construction is exempt from the non-coal mining permitting requirements. Other
Cabinet regulatory and permit requirements may apply.

(14) Subject Matter: 401 KAR Chapters 45 and 46, Public Notice
(a) Commenter: Kathy Little
Comment: Have you put public notices in newspapers close to every power plant that
would be affected by the new regulations?
(b) Response: KRS 13A governs the regulatory promulgation process in Kentucky,
including requirements for public notice. The Cabinet provided notice in compliance with KRS
13A.270.

(15) Subject Matter: 401 KAR Chapters 45 and 46, Permit by rule
(a) Commenter: Kathy Little
Comment: It appears that the state will not be regulating special-waste landfills anymore.
From what I hear, no permitting, no modifications, no notices of deficiencies by the state.
Federal regulations will be the law of the land, I believe, and power plants will self-regulate.
What if they don't follow federal regulation? There are no federal regulators, I don't believe.
Who is going to protect affected Kentuckian constituents?
I like our state regulatory agency. I believe that no business should have the right to selfregulate; there's way too much liability as far as our waterways, our streams, everything that
could be hurt because someone doesn’t follow to the rule, would be devastating.
8

Who is going to protect private citizens without state regulation?
(b) Response: The proposed regulations in 401 KAR Chapter 46 will provide for
regulation of CCR units. The Cabinet is charged with enforcing state regulations for CCR unit
permitting and operation.

(16) Subject Matter: 401 KAR Chapters 45 and 46, Permit-by-rule
(a) Commenter: Kelly Leach
Comment: I do feel like with the division here being able to contact them with issues,
concerns, things like that, that we've had over and I've been doing this almost six years, I feel
like they're better protected from things that could be going on or concerns of things that I think
may not be right or that kind of thing with them being here. If I am right and the situation is that
where the waste management team is out of the picture, I'm concerned with where in the EPA
that I would contact or what kind of representation that I might have. So if what little bit I do
understand is the fact that the state is either going to be eliminated from this or not as proactive.
And I do want to say that I'm opposed of it; I'd like to see, to have as much protection as all of us
really do need for something like this that’s going on.
(b) Response: The proposed regulations are protective of human health and the
environment. The Cabinet is charged with enforcing state regulations for CCR unit permitting
and operation, and remains available to address citizens’ concerns.

(17) Subject Matter: 401 KAR Chapters 45 and 46, Permit-by-rule
(a) Commenter: Kentucky Resources Council
Comment: The proper management of CCW is essential for protection of human health
and the environment. Yet the regulatory proposal – one that is not required to be adopted by
either state statute or federal mandate and one that is in fact contrary to the language and the
intent of Kentucky’s waste management statutes, all but assures that improper or inadequate
management of coal combustion wastes will become more common due to lack of regulatory or
public oversight. The proposal will likely result in groundwater contamination becoming more
widespread and problematic due to lack of oversight of liner design and construction and lack of
review of groundwater monitoring systems, and promises that more coal combustion waste
landfills and ponds will be left without proper closure and post-closure care due to the
elimination of any bonded responsibility for closure and post-closure. By leaving the companies
and their engineers in full control of compliance with no agency or public oversight, the
proposed regulations invite increased litigation by the public against not only the utilities and
9

other generators, managers, and disposers of coal combustion wastes, but also the engineers
involved in the design and construction oversight of coal combustion waste facilities. Finally, in
addition to the heightened potential for inadequate siting, design, construction, and operation of
coal combustion waste disposal facilities due to the elimination of agency and public review of
such activities, the proposal will likely raise electricity rates for regulated and municipal utility
customers due to the passing through remediation costs associated with environmental damage
and public health and safety harm associated with failures of the disposal facilities occasioned
due to siting, design, construction, or operational flaws due to the complete absence of regulatory
oversight of the siting, permitting, construction, and operation of such facilities.
(b) Response: The proposed 401 KAR Chapter 46 regulations incorporate the 40 C.F.R.
257, Subpart D standards. While the Cabinet has a different perspective than the commenter, the
Cabinet has decided to revise this proposed regulation to create a registered permit-by-rule for
CCR units. 401 KAR Chapter 46 also establishes non-compliance provisions that allow the
Cabinet to enforce the standards under its own statutes and regulations.

(18) Subject Matter: 401 KAR Chapters 45 and 46, Permit by rule
(a) Commenter: Kentucky Resources Council
Comment: The first indication that the Cabinet or the public would have that a proposed
facility would be sited and constructed, would be when the construction began. The first time
that the Cabinet or public would be made aware that the design, siting, construction or operation
was being undertaken in a manner that caused environmental harm would be when the
environmental harm, groundwater damage, pond impoundment failure, or other indicia of a
failure to comply with the EPA standards, became manifest.
The proposal eviscerates the permitting process for coal combustion waste landfills and
ponds, and exposes those communities near proposed facilities, and those living near currentlypermitted facilities that choose to transition to the “permit by rule” and to terminate current
permits, to elevated levels of risk to public health and environmental damage associated with
coal combustion wastes and the numerous pollutants that are entrained in such wastes.
While some of the referenced EPA standards are more stringent than those in current
state regulations, particularly with respect to ash ponds, the regulatory proposal to eliminate all
advance individual agency permitting and public review of proposed facilities and of compliance
with the EPA standards prior to siting, design, construction, and operation, is ill-advised at best,
and at worst, dangerous.
Prior to addressing the specific flaws in the proposed regulatory approach, it is instructive
to review why regulatory scrutiny of the management, storage, and disposal of coal combustion
10

wastes such as is provided under the current regulatory structure of 401 KAR Chapter 45, is both
appropriate and justified.
KRC incorporates by reference the comments set forth above concerning the illconsidered proposal to allow management, disposal, or beneficial use of coal combustion wastes
under a permit-by-rule, allowing those activities to occur “without the submission of an
application to the Cabinet[.]”
(b) Response: The proposed 401 KAR Chapter 46 regulations incorporate the 40 C.F.R.
257, Subpart D standards. While the Cabinet has a different perspective than the commenter, the
Cabinet has decided to revise this proposed regulation to create a registered permit-by-rule. Also,
the Cabinet has amended the regulation to require financial assurance for new CCR units and
certain existing CCR units. 401 KAR Chapter 46 also establishes non-compliance provisions that
allow the Cabinet to enforce the standards under its own statutes and regulations.
The Cabinet has amended the regulations to require the owner or operator to prepare and
disseminate a public notice publication prior to registration. In addition, 40 C.F.R. 257, Subpart
D, includes requirements for a CCR unit owner or operator to post notifications and other
recordkeeping to a publicly accessible website. 401 KAR Chapter 46 incorporates the federal
recordkeeping and notification provisions that are required to be sent to the Cabinet (i.e., the
State Director). Users are also required to submit an annual report pursuant to 401 KAR 46:120,
Section 5.
The proposed regulation will place additional requirements on impoundments, but will
not relieve the owner/operator of existing requirements, nor exclude the permittee from the
responsibility of obtaining other state, local, or federal permits. Construction of a surface
impoundment that meets the statutory definition of a dam (as defined in KRS 151.100) will still
be permitted by the Division of Water, which will also continue routine inspections of surface
impoundments in accordance with KRS 151.250. If a CCR unit requires a Clean Water Act,
Section 402 discharge permit, the applicable permitting requirements will be employed.

(19) Subject Matter: 401 KAR Chapters 45 and 46, Permit by rule
(a) Commenter: Todd Hendricks
Comment: It is understandable that those in the utility industry who generate CCR
wastes do not want to be double-regulated. I do not envy their position. However, I assert that
although the federal CCR Rule is indeed, a “regulation” (i.e., “a law, rule, or other order
prescribed by authority”), it does virtually nothing with respect to the act of regulation; it simply
defines parameters for lawsuits.
(b) Response: The proposed administrative regulations make the federal CCR unit
11

standards a requirement under Kentucky law. These standards include siting, design and
operating, groundwater monitoring and corrective action, closure and post-closure, notification,
reporting, and inspection requirements. The proposed regulations do not change the Cabinet’s
enforcement authorities.

(20) Subject Matter: 401 KAR Chapters 45 and 46, Permit by rule; Incompatibility with KRS
224.10-100
(a) Commenter: Todd Hendricks
Comment: The proposed regulations show multiple incompatibilities with state law, a
situation which is prohibited by KRS 224.10-100. No determination of whether state or local law
is being followed is built into the federal CCR Rule.
According to USEPA, requirements of the CCR Rule are in addition to state and local
requirements. [It is unlikely that consulting engineers will have the experience and knowledge of
local laws and regulations, they will simply do things in accordance with the federal rule and
certify themselves in compliance.] However, self-certifying consulting engineers may not be
sufficiently familiar with state and local requirements to even know which requirements apply.
This is complicated by the possibility that citizens aggrieved by violation of state or local law
may be unable to sue under the citizen lawsuit provisions of RCRA.
KRS 224.10-100 is not passive language. It requires the cabinet to act with respect to
actual or suspected sources of pollution, and to “provide for the prevention, abatement, and
control” of all pollution. It does not provide for the cabinet to adopt a regulation wherein
facilities known to be polluting self-regulate, self-monitor, and self-certify their compliance. It
does not envision a regulation where citizens affected by pollution that adversely impacts their
property, their health, or the environment must rely on lawsuits for mitigation.
Ultimately, what is needed is a state regulation creating a permitting program consistent
with KRS 224.10-100 that meets the minimum requirements of the federal standards (once the
federal standards are finalized). Until then, the Commonwealth should leave its current
regulations in effect
(b) Response: The proposed administrative regulations make the federal CCR unit
standards a requirement under Kentucky law. These standards include siting, design and
operating, groundwater monitoring and corrective action, closure and post-closure, notification,
reporting, and inspection requirements. The proposed regulations do not change the Cabinet’s
enforcement authorities.
(21) Subject Matter: 401 KAR Chapters 45 and 46, Permit-by-rule
12

(a) Commenter: East Kentucky Power Cooperative and Utility Information Exchange of
Kentucky
Comment: At the outset, UIEK commends the Cabinet for proposing CCR regulations
that mirror the recently promulgated federal standards that apply to CCRs independent of any
state regulatory programs. By regulating CCR management, disposal, and beneficial use under
new Chapter 46 as opposed to under existing Chapter 45 for special wastes, the Cabinet will
eliminate unnecessary and unproductive regulation of CCR under two separate state and federal
programs. Additionally, the proposed regulations will effectively allow the Cabinet to enforce
the equivalent of the federal standards under state law, thus avoiding the concern that the Cabinet
could only enforce the federal standards through a citizen suit. UIEK fully supports the approach
taken by the Cabinet under the proposed regulations to incorporate the federal siting, design,
operating, closure, and corrective action standards and to authorize CCR management, disposal,
and beneficial use through state permits by rule.
(b) Response: The Cabinet acknowledges these comments.

(22) Subject Matter: 401 KAR Chapters 45 and 46, Permit by rule
(a) Commenter: Kentucky Resources Council
Comment: By defaulting to the federal regulations and granting a “drive-by-permit” to
facilities to site, design, construct, operate, and close without agency or public advance scrutiny,
the cabinet proposal creates a “cycle of neglect” in which the owner and operator of the CCR
unit is allowed to self-regulate rather than being subject to a reasonable demonstration of
compliance with the existing state permitting and technical standards and the supplemental
federal standards.
The responsible approach to incorporation of the federal standards into the existing
regulatory scheme is to compare and modify the individual design and performance standards of
the federal regulations with those of the Commonwealth, and to modify such standards as
deemed appropriate or necessary. Wholesale abdication of permitting and oversight functions is
neither requirement or contemplated by 40 CFR Part 257, nor is it a responsible path consistent
with the announced purposes and language of KRS Chapter 224.
(b) Response: The proposed 401 KAR Chapter 46 regulations incorporate the 40 C.F.R.
257, Subpart D standards. While the Cabinet has a different perspective than the commenter, the
Cabinet has decided to revise this proposed regulation to create a registered permit-by-rule. Also,
the Cabinet has amended the regulation to require financial assurance for new CCR units and
certain existing CCR units. 401 KAR Chapter 46 also establishes non-compliance provisions that
allow the Cabinet to enforce the standards under its own statutes and regulations.
13

The Cabinet has amended the regulations to require the owner or operator to prepare and
disseminate a public notice publication prior to registration.

(23) Subject Matter: 401 KAR Chapters 45 and 46, Permit-by-rule
(a) Commenter: Kentucky Resources Council
Comment: The approach proposed by the regulatory package referenced above,
delegates to facilities formerly subject to advance review of siting, design, construction,
environmental monitoring, closure, and post-closure, by the Energy and Environment Cabinet
and the public, carte blanche to disregard regulatory requirements established by the EPA and
intended to supplement rather than to supplant state permitting, environmental monitoring,
inspection, and compliance assistance processes. The proposed regulations are a significant step
backwards in the management of a category of wastes that are increasingly of public health and
environmental concern. The proposed regulations will cost both those affected by the risks posed
from the lack of advance regulation of siting, design, construction, operation, environmental
monitoring, and closure of CCR units, and those who own, engineer, and operate such units.
Hamstringing the Cabinet by eliminating involvement in oversight until after the harm has
become manifest, will impose far greater social and economic costs on all parties, and will
spawn hostility, distrust, suspicion, alienation by the public towards both the CCR unit owners
and the Commonwealth, and will heighten the potential for harm to those persons and natural
resources that the regulations are intended to protect.
The Cabinet should withdraw the proposed regulations, and empanel a multi-stakeholder
group representing regulated and municipal utilities, waste management companies,
communities and individuals affected by current waste management of coal combustion wastes,
and other stakeholders to develop a consensus path forward that respects the proper balance
between engineering judgment and public accountability, and between the regulated community,
regulators, and the affected public.
(b) Response: The Cabinet disagrees that the proposed regulations should be withdrawn.

(24) Subject Matter: 401 KAR Chapter 45, Permit by rule, public notice, Cabinet review
(a) Commenter: Kentucky Resources Council
Comment: The Council is gravely concerned with the proposed set of administrative
regulations and the laissez faire approach to management of coal combustion wastes evinced in
the regulations. Under the current regulatory program contained in 401 KAR Chapter 45, the
siting, construction, operation, environmental monitoring, reporting, closure, and post-closure of
14

landfills constructed for disposal of “special wastes,” including coal-combustion wastes, occurs
under an individual permit that is subject to technical review by the Energy and Environment
Cabinet, and is also subject to public notice, public comment, and opportunity for those affected
to test the sufficiency of the application and review process against the applicable statutes and
regulations. In stark contrast, the proposed regulations would grant a “permit by rule” to coal
combustion waste landfills and coal combustion waste ponds, allowing the siting, construction,
operation, environmental monitoring, self-inspection, closure and post-closure of coal
combustion waste landfills and ash ponds, with no advance notice to the Cabinet or public, and
no agency or public review of the sufficiency of the siting, design, construction, environmental
and groundwater monitoring, operation, closure, and post-closure care of the constructed landfill
cells or pond.
(b) Response: The proposed 401 KAR Chapter 46 regulations incorporate the 40 C.F.R.
257, Subpart D standards. While the Cabinet has a different perspective than the commenter, the
Cabinet has decided to revise this proposed regulation to create a registered permit-by-rule. Also,
the Cabinet has amended the regulation to require financial assurance for new CCR units and
certain existing CCR units. 401 KAR Chapter 46 also establishes non-compliance provisions that
allow the Cabinet to enforce the standards under its own statutes and regulations.
The Cabinet has amended the regulations to require the owner or operator to prepare and
disseminate a public notice publication prior to registration. Cabinet records related to CCR units
are available for public review. Additionally, 40 C.F.R. 257 requires owners and operators of
CCR units to make information regarding CCR units electronically available to the public.

(25) Subject Matter: 401 KAR Chapter 45, Permit-by-rule, public notice, Cabinet review
(a) Commenter: Todd Hendricks
Comment: CCR units, especially those with confirmed groundwater pollution or those in
corrective action, should retain full, written, formal permits, and those CCR facilities lacking
them presently should be issued full, written, formal permits.
401 KAR Chapter 46 includes a notable lack of citizen input. There appears to be no
provision for public notice and no public comment period in the proposed regulation. A utility
can just build a landfill if their engineers certify it, provided nobody sues them.
Is it beneficial to have a system where a 200-acre landfill with a 100-acre borrow area
can be built and self-certified by people who are paid by the utilities, without any state or local
input?
Response: While the Cabinet has a different perspective than the commenter, the Cabinet
has decided to revise this proposed regulation to create a registered permit-by-rule. 401 KAR
15

Chapter 46 also establishes non-compliance provisions that allow the Cabinet to enforce the
standards under its own statutes and regulations.
The Cabinet has amended the regulations to require the owner or operator to prepare and
disseminate a public notice publication prior to registration.
Additionally, 40 C.F.R. 257 requires owners and operators of CCR units to make information
regarding CCR units electronically available to the public.

(26) Subject Matter: 401 KAR Chapters 45 and 46, Permit-by-rule
(a) Commenter: Todd Hendricks
Comment: The pending federal legislation [which has passed both the house and the
senate in different versions] proposes the delegation of authority to state programs with
permitting programs that meet or exceed the federal requirements. Although they incorporate
large parts of the federal rule by reference, the proposed state regulations do not constitute a
permitting program per se, because a permit-by-rule is preemptively granted without any
independent state agency review or oversight of the siting, design, construction, operation,
environmental monitoring, and reporting regarding CCR units. It is unlikely that a permit-by-rule
proposal such as that included in 401 KAR Chapter 46 would allow Kentucky to achieve
authorization under a revised federal regulation.
(b) Response: The Cabinet has decided to revise this proposed regulation to create a
registered permit-by-rule. The Cabinet believes that the proposed regulations will meet the
criteria for EPA approval.

(27) Subject Matter: 401 KAR Chapters 45 and 46, Permit-by-rule
(a) Commenter: Todd Hendricks
Comment: CCR wastes are compositionally inappropriate for permits-by-rule. It is
commonly asserted that Coal Combustion Residuals are “low-hazard”. However, this is not
always the case, and a growing body of evidence shows significant potential hazards to human
health and the environment due to releases from some CCR units. Analysis of groundwater and
leachate from CCR units in Kentucky has shown elevated levels of heavy metals, sulfate, boron,
and other contaminants.
One facility is conducting groundwater corrective action for contamination of karst
springs with arsenic leaching from an inactive surface impoundment. Hundreds of thousands of

16

gallons of arsenic-contaminated groundwater per day are captured and pumped to the active
surface impoundment for dilution and discharge through a [KPDES] permitted outfall.
At another facility, state laboratory analysis of one recent sample of fluid (presumably
leachate) flowing from the toe of a closed CCR landfill showed 9.81 mg/L of arsenic, which is
981 times the maximum contaminant level (MCL).
Fluids containing arsenic at this level may be characteristically hazardous because of
toxicity. Contained landfills are regulated to the highest standards of any solid or special waste
sites or facilities, but I have never seen leachate analysis from a contained landfill that indicated
that the leachate itself could be characteristically hazardous.
Response: These proposed administrative regulations make the federal standards that
apply to CCR units a requirement under Kentucky law. These requirements include siting, design
and operating, groundwater monitoring and corrective action, closure and post-closure,
notification, reporting, and inspection requirements. The Cabinet believes that the proposed
regulations are protective of human health and the environment.

(28) Subject Matter: 401 KAR Chapters 45 and 46, Permit-by-rule and self-regulation
(a) Commenter: Todd Hendricks
Comment: A significant weakness of the federal CCR Rule is that it relies on selfregulation by the facilities and self-certification by Professional Engineers regarding every
aspect of the siting, design, construction, operation, environmental monitoring, and reporting
regarding CCR units. The subject Professional Engineers are paid by the regulated entity,
creating at least an apparent conflict-of-interest. No independent oversight (like that provided by
the Energy and Environment Cabinet under Chapters 30, 40, and 45 of the Kentucky
Administrative Regulations) is involved.
EPA states in the narrative associated with the CCR Rule that licensure of Professional
Engineers in each of the 50 states and oversight and discipline by boards of licensure ensures that
the engineers involved are practicing ethically and within their competence regarding these
facilities.
However, inquiries to the Kentucky Board of Licensure for Professional Engineers and
Land Surveyors have revealed that no engineer has, at any time, been disciplined for any aspect
of any work performed at Solid Waste or Special Waste sites or facilities.
It is possible that the independent review of siting, design, operation, and construction by
Professional Engineers and Professional Geologists employed by the EEC assists consulting

17

engineers in proper siting, design, construction, operation, environmental monitoring, and
reporting regarding CCR units, making discipline by the licensing board unnecessary.
However, recent self-certification of monitoring systems by engineers has not been sufficient.
Specifically, information available to the cabinet indicates that of two facilities that constructed
monitoring wells in an effort to meet the CCR Rule without seeking advance approval from
KDWM as required by 401 KAR 6:350, both installed wells incorrectly. One site not only
installed all of their CCR wells out-of-compliance regarding the construction standards of 401
KAR 6:350, they retrofitted all of their existing wells that were in compliance, bringing them out
of compliance.
In another case, at least one well at an ash impoundment was reported to have been
installed through 8.6 feet of “gray wet ash” (i.e., waste) and one foot of “gray wet clay” (possibly
the bottom liner). No well drilled through waste is acceptable from a monitoring standpoint. The
subject well should be overdrilled, grouted, and replaced.
In the absence of independent oversight by EEC, it is possible that aggrieved citizens
may be forced to file complaints against Professional Engineers to the Kentucky State Board of
Licensure for Professional Engineers and Land Surveyors. Consulting engineers themselves may
also be a target of citizen lawsuits.
Response: The proposed 401 KAR Chapter 46 regulations incorporate the 40 C.F.R. 257,
Subpart D standards. These standards include siting, design and operating, groundwater
monitoring and corrective action, closure and post-closure, notification, reporting, and inspection
requirements. The proposed regulations do not change the Cabinet’s enforcement authorities.
The Cabinet has decided to revise this proposed regulation to create a registered permitby-rule. Also the Cabinet has amended the regulation to require financial assurance for new
CCR units and certain existing CCR units. 401 KAR Chapter 46 also establishes non-compliance
provisions that allow the Cabinet to enforce the standards under its own statutes and regulations.

(29) Subject Matter: 401 KAR Chapters 45 and 46, Waste classifications
(a) Commenter: Todd Hendricks
Comment: It is notable that 40 CFR 261.4(b) (4) lists certain CCRs and associated
wastes as exempt from hazardous waste classification. Among these are fly ash, bottom ash, flue
gas desulfurization sludge, coal pile runoff, boiler cleaning solutions, boiler blowdown, process
water treatment and demineralizer regeneration wastes, cooling tower blowdown, air heater and
precipitator washes, effluents from floor and yard drains and sumps, and wastewater treatment
sludge.

18

Mill rejects and pyrites are wastes generated by some CCR facilities, mostly those using
roller mills to crush the coal for combustion. (The terms “mill rejects” and “pyrites” are often
used interchangeably, although pyrites are a subset of mill rejects.) Historically, these materials
have been disposed in surface impoundments and landfills throughout the state.
USEPA [Industry publications] states that pyrites can be characteristically hazardous in
some cases [due to toxicity with respect to heavy metals]. According to industry publications, a
facility burning bituminous coal can be expected to produce between 750 to 1200 tons of pyrites
per year per 100 megawatt capacity. So, one 750 megawatt plant could produce 5,625 to 9,000
tons of pyrites in a single year.
Since the effective date of the CCR Rule (April 17[October 17], 2015), these wastes are
no longer exempt from classification as hazardous waste. Therefore, facilities producing such
wastes are obligated to perform the appropriate testing to determine whether the subject mill
rejects and pyrites are characteristically hazardous, and dispose of them properly.
Response: It is the responsibility of the generator to make a waste determination on mill
rejects and pyrites.

(30) Subject Matter: 401 KAR 4:070
(a) Commenter: Kentucky Resources Council
Comment: The proposed regulation would authorize siting, construction, and operation
of both incised and impounded ponds without any agency review of the siting, design,
construction, or operation of such facilities. Having lost a client to a coal waste dam that was not
reviewed by two regulatory agencies and which was poorly designed and improperly
constructed, and which crushed her to death when it catastrophically collapsed, KRC views the
proposal to allow siting, design, construction, and operation of ponds containing embankment
structures without agency oversight to be nothing short of reckless. Compliance with the
structural integrity requirements of 40 C.F.R. 257.73 and 257.74, as applicable, and hydrologic
and hydraulic capacity requirements of 40 C.F.R. 257.82, should be reviewed and approved by
the Cabinet rather than left to the discretion of the formerly-regulated owner/operator. The
downstream public and water resources should not be required to accept that the owner/operator
has complied with all of the requirements of the federal regulations despite no external
accountability or review, nor to live beneath a damoclean sword waiting until the structure fails
or breaches to learn that the design, siting, or construction was inadequate.
(b) Response: The proposed regulation will place additional requirements on
impoundments, but will not relieve the owner/operator of existing requirements, nor exclude the
permittee from the responsibility of obtaining other state, local, or federal permits. Construction
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of a surface impoundment that meets the statutory definition of a dam (as defined in KRS
151.100) will still be permitted by the Division of Water, which will also continue routine
inspections of surface impoundments in accordance with KRS 151.250. If a CCR unit requires a
Clean Water Act, Section 402 discharge permit, the applicable permitting requirements will be
employed.

(31) Subject Matter: 401 KAR 45:010, Definitions
(a) Commenter: Kentucky Resources Council
Comment: With respect to compliance with KRS Chapter 224, KRC believes that
allowance of a permit by rule without advance notice to or review by the agency, is flatly
inconsistent with the requirements of KRS 224.40-305, which is noted in the “Necessity,
Function, and Conformity” section of current 401 KAR 45:010 to be applicable to special
wastes.
KRS 224.40-305 provides that “No person shall establish, construct, operate, maintain, or
permit the use of a waste site or facility without first having obtained a permit from the cabinet
pursuant to this chapter and administrative regulations adopted by the cabinet.” The grant of a
general authorization to a category of waste sites or facilities engaged in the “management,
disposal, or beneficial use of CCR…without the submission of an application to the cabinet”
cannot be squared with the legislative language or intent to require that a permit be obtained
from the cabinet.
(b) Response: The Cabinet has decided to revise this proposed regulation to create a
registered permit-by-rule.

(32) Subject Matter: 401 KAR 45:010 and 46:101, Definitions
(a) Commenter: Kentucky Resources Council
Comment: KRC further notes that the proposed definitions reference a “CCR unit” but
do not define what constitutes a “CCR unit.” Key terms should not be undefined, and the
wholesale exemption of “CCR Units” without defining what such units are, threatens to
completely deregulate classes of such facilities in direct violation of KRS 224.40-305 and KRS
224.50-760.
A cursory review of 40 C.F.R 257.50 reflects that the regulations of 40 Part 257 do not apply to:

20


wastes, including fly ash, bottom ash, boiler slag, and flue gas desulfurization materials
generated at facilities that are not part of an electric utility or independent power producer, such
as manufacturing facilities, universities, and hospitals;

fly ash, bottom ash, boiler slag, and flue gas desulfurization materials, generated
primarily from the combustion of fuels (including other fossil fuels) other than coal, for the
purpose of generating electricity unless the fuel burned consists of more than fifty percent (50%)
coal on a total heat input or mass input basis, whichever results in the greater mass feed rate of
coal;

practices that meet the definition of a beneficial use of CCR;

CCR placement at active or abandoned underground or surface coal mines;

municipal solid waste landfills that receive CCR.

Unless CCR Units are defined in a manner that limits those facilities eligible for
transitioning to federal standards to those to whom the federal standard apply (i.e. coal-fired
utilities), the regulation would allow the unpermitted and unregulated management of fly ash,
bottom ash, and scrubber sludge from all of these sources, since they would be exempted from
401 KAR Chapter 45 but would not be subject to any of the requirements of proposed new 401
KAR Chapter 46.
(b) Response: 401 KAR Chapter 46 incorporates the definitions of a CCR unit and
beneficial use of CCR found in 40 C.F.R. 257.53. 401 KAR 46:110 establishes the applicability
of the Chapter to CCR units as established in 40 C.F.R. 257.50 through 257.52. Non-hazardous
wastes not specified in the federal rule, or disposal practices not subject to the CCR provisions,
will still be regulated under 401 KAR Chapters 45, 47, and 48, as applicable.

(33) Subject Matter: 401 KAR 46:101, Definitions
(a) Commenter: East Kentucky Power Cooperative and Utility Information Exchange of
Kentucky
Comment: 401 KAR 46:101, Section 1(10) identifies the "State Director" as the
Secretary of the Energy and Environment Cabinet. Some utilities have been submitting 40 CFR
257.106 notifications to the Commissioner of the Department for Environmental Protection.
UIEK believes the DEP Commissioner would be a more logical recipient of these notifications,
so UIEK requests that the definition of State Director be changed to "Commissioner of the
Department for Environmental Protection."
(b) Response: The cabinet has decided not to change the definition to retain flexibility in
determining its internal administrative processes.
21

(34) Subject Matter: 401 KAR 46:101, Definitions
(a) Commenter: East Kentucky Power Cooperative and Utility Information Exchange of
Kentucky
Comment: 401 KAR 46:101, Section 1(2)(b) — The reference to "a beneficial use of
CCR user" with respect to permit by rule coverage is unclear and awkward. It is also inherently
redundant, given that the currently proposed definition of "user" already incorporates
beneficially using CCR in the Commonwealth. UIEK requests that the Cabinet replace the
phrase/term "beneficial use of CCR user" with "a recipient of CCR for its beneficial use or a
user." This would allow keeping the Section 1(11) definition of "user" and eliminate the
redundancy and awkwardness of the phrase "beneficial use of CCR user." It would also
acknowledge the initial recipient may differ from the ultimate user of CCR for a beneficial use,
which could occur out of state. Permit by rule coverage should extend to management of CCR
in-state regardless of whether the beneficial use ultimately occurs outside Kentucky.
(b) Response: The cabinet will retain the current definition of “user” and a permit-byrule will be extended only to those who meet the definition under the proposed administrative
regulations.

(35) Subject Matter: 401 KAR 46:101, Definitions
(a) Commenter: Kentucky Transportation Cabinet
Comment: Based on the Kentucky Transportation Cabinets’ (KYTC) understanding of
the subject new regulation on coal combustion residuals (CCR) we will no longer be required to
establish a permit-by-rule for beneficial reuse of coal combustion residual byproducts as an
ingredient in building materials such as cement, concrete paint, antiskid material, highway base
course, blasting grit and roofing granules.
Questions:
1.
Since the permit-by-rule is no longer required under 401 KAR Chapter 46 does that mean
that the coal combustion byproduct residuals used as an ingredient are not regulated by the KY
Division of Waste Management?
2.
Does this only apply to CCR byproduct residuals that are generated by electric utility
plants?
(b) Response: The proposed regulations adopt the definition of “beneficial use of CCR”
established in 40 C.F.R. 257.53. To be considered a beneficial use of CCR, any use of CCR in a
22

roadway application must comply with the first, second, and third provisions of the definition. A
CCR use that meets the definition is a permit-by-rule if the use meets the requirements of 401
KAR 46:120, Section 1(2). The beneficial use of CCR is therefore regulated by the Division of
Waste Management pursuant to 401 KAR Chapter 46. An activity involving placement of CCR
on the land that does not meet the definition of beneficial use of CCR shall be regulated as a
“CCR landfill” defined by 40 C.F.R. 257.53.
The proposed regulations in 401 KAR Chapter 46 apply only to CCR as defined in 40
C.F.R. 257.53 which specifies “materials generated from the burning of coal for the purpose of
generating electricity by electric utilities and independent power producers”. Fly ash, bottom
ash, or similar by-products of coal combustion generated by non-utility entities shall continue to
be regulated as solid waste pursuant to 401 KAR Chapters 47 and 48.

(36) Subject Matter: 401 KAR 46:110, Protection
(a) Commenter: Kentucky Resources Council
Comment: Defaulting to federal standards, rather than more rigorously identifying which
federal standards are more protective than existing state regulation and should be incorporated
into the state regulatory framework, will create a number of problems due to aspects of the
federal regulations that are less clear, less protective, and less rigorous than current state
regulations. For example, the performance standards for the closure standards of 40 C.F.R.
257.102 are unclear, and without oversight utilities are going to leave legacy dumpsites that will
leak and become legacy burdens on those living nearby and downstream.
(b) Response: The Cabinet believes that the proposed regulations are protective of
human health and the environment.

(37) Subject Matter: 401 KAR 46:110, Design and implementation of groundwater monitoring
(a) Commenter: Kentucky Resources Council
Comment: Without agency oversight of the design and implementation of groundwater
monitoring systems, owners of CCR units may design systems that fail to properly understand
and thus to characterize the hydrologic systems, and which may be located in areas that fail to
detect pollution, all the while claiming to meet the general performance standards under 40
C.F.R. 257.91. In a Commonwealth where numerous regions have hydrologic systems dominated
by fracture and karstic flow, particular attention to the design and location of groundwater
monitoring systems is key to determining compliance with the environmental performance
standards, and the lack of agency review of proposed systems is unconscionable. Additionally,
23

without agency review, compliance with the applicable requirements of 40 C.F.R. 257.93 with
respect to statistical exceedances of groundwater will be difficult to assure. Given Kentucky’s
experiences with catastrophic failure of impoundments compromising life and property, the
proposal to delegate the evaluation of structural stability of high hazard dams impounding CCR
ponds is less than responsible. Kentucky has some of the largest and most dangerous CCR
impoundments, according to reports.
(b) Response: 401 KAR Chapter 46 incorporates the federal standards for groundwater
monitoring and corrective action, including 40 C.F.R. 257.91(a)(2), which states, “All potential
contaminant pathways must be monitored”.
All surface impoundments which meet the statutory definition of a dam (as defined in
KRS 151.100) will continue being reviewed and permitted by the Division of Water in
accordance with KRS 151.250. This review will ensure compliance with structural integrity,
hydrologic, and hydraulic capacity requirements. The proposed regulation will place additional
requirements on impoundments, but will not relieve the CCR owner/operator of existing
requirements, nor exclude the permittee from the responsibility of obtaining other state, local, or
federal permits.

(38) Subject Matter: 401 KAR 46:110, Design and implementation of groundwater monitoring
(a) Commenter: Todd Hendricks
Comment: Unfortunately, the federal CCR Rule is not a good fit geologically for
Kentucky, where some 40% of the land area overlies karst geology. No specific provision for
monitoring karst groundwater via springs is made in the CCR Rule. Only wells are specified as
monitoring points in the regulation.
Some CCR unit owners and operators, their attorneys, and their consulting engineers are
interpreting 40 CFR 257.91 to mean that only wells installed in accordance with the CCR Rule
can be acceptable monitoring points under the rule, and that existing state monitoring systems,
(which are the product of site-specific geological evaluation) and the data collected from them
are irrelevant for the purpose of the federal CCR Rule.
However, 40 CFR 257.91(a) (2) states, “All potential contaminant pathways must be
monitored”. A well or a spring (including those permitted under a state program) that has
confirmed exceedances attributable to releases from a CCR unit is situated on a contaminant
pathway, and must be monitored. Will a facility that is already in groundwater contamination
assessment and/or corrective action be allowed to stop the process that was initiated pursuant to
the present state regulations (401 KAR 45:160), and return to detection monitoring under the
federal CCR rule until data collection pursuant to 40 CFR 257.94(b) is complete? It appears that
24

if the present permits and all conditions become null and void, and if the facility is no longer
subject to the requirements of 401 KAR Chapter 45, this could be a possible outcome.
(b) Response: Facilities that are subject to 401 KAR Chapter 46 that are currently in
groundwater assessment or corrective action must continue to address the contamination.
Monitoring wells constructed by a facility pursuant to the requirements of 401 KAR Chapter 45
can be used to characterize the nature and extent of the release, and act as additional monitoring
wells necessary to define contaminant plumes pursuant to 40 C.F.R. 257.95 and 401 KAR
46:110.

(39) Subject Matter: 401 KAR 46:110, Dam safety
(a) Commenter: Kentucky Resources Council
Comment: The federal requirements for annual inspection requirements, even for high
hazard dams, are so poorly-written that utilities in other states have been able to submit one-page
"reports" that amount to simply checking boxes. See 257.83(b).
(b) Response: The proposed regulations will place additional requirements on
impoundments, but will not relieve the owner/operator of existing requirements, nor exclude the
permittee from the responsibility of obtaining other state, local, or federal permits. Construction
of surface impoundments that meet the statutory definition of a dam (as defined in KRS 151.100)
will still be permitted by the Division of Water, which will also continue routine inspections of
surface impoundments in accordance with KRS 151.250.

(40) Subject Matter: 401 KAR 46:110, Dam safety
(a) Commenter: Kentucky Resources Council
Comment: Further, the structural stability assessments (257.73(d) and (d)) should be
overseen by a state dam safety expert, particularly since the requirements for bonding closure
and post-closure of such facilities would be eliminated under the proposed regulation.
(b) Response: The proposed regulations will place additional requirements on
impoundments, but will not relieve the owner/operator of existing requirements, nor exclude the
permittee from the responsibility of obtaining other state, local, or federal permits. Construction
of surface impoundments that meet the statutory definition of a dam (as defined in KRS 151.100)
will still be permitted by the Division of Water, which will also continue routine inspections of
surface impoundments in accordance with KRS 151.250.

25

(41) Subject Matter: 401 KAR 46:110, Emergency action plans
(a) Commenter: Kentucky Resources Council
Comment: Additionally, the emergency action plans should be reviewed by the state to
assure compliance with FEMA standards. 40 C.F.R. 257.73(a)(3). Under the proposed
regulations, the owners of CCR units would be left to determine, with no input from the agency
or public, they meet the siting criteria. The state should not delegate such governmental authority
to the formerly-regulated entities to make such determinations. 40 C.F.R. 257.60 to 257.64.
(b) Response: 40 C.F.R. 257 requires owners and operators of CCR units to make
information regarding CCR units electronically available to the public. The Cabinet maintains its
enforcement authority under statutes and regulations.

(42) Subject Matter: 401 KAR 46:110, Dust control and emissions
(a) Commenter: Kentucky Resources Council
Comment: Dust control and fugitive dust emissions have been a significant problem for
CCR waste piles and impoundments in Jefferson County and elsewhere in the Commonwealth.
The Divisions for Air Quality and Waste Management should retain authority to review the
adequacy of fugitive dust control plans, and not the utility or landfill owner.
(b) Response: 40 C.F.R. 257 requires owners and operators of CCR units to make
information regarding CCR units electronically available to the public, including fugitive dust
control plans. The proposed regulations do not affect the enforcement authority of the Division
of Air Quality or the Cabinet.

(43) Subject Matter: 401 KAR 46:110, Alternative composite liner
(a) Commenter: Kentucky Resources Council
Comment: Under 40 C.F.R. 257.70(c), the owners and operators under the CCR rule can
use an "alternative composite liner" for landfill liners. It is the height of folly to wait until the
failure of such liners to discover that the alternative design was flawed, and instead the design
and construction of all CCR landfill liners, and pond liners, should be approved by the state,
rather than self-approved by the formerly-regulated.
(b) Response: Notification, recordkeeping, and reporting requirements are required in 40
C.F.R. 257, Subpart D, and are incorporated into 401 KAR Chapter 46. It is the responsibility of
the owner or operator of a CCR unit to comply with the federal standards.
26

(44) Subject Matter: 401 KAR 46:110, Violations of environmental performance standards
(a) Commenter: Kentucky Resources Council
Comment: Once of the more troubling aspects of the proposed regulation is that it would
appear to allow facilities that are currently under Agreed Orders for violations of the
Environmental Performance Standards, to transition to a permit-by-rule environment, since
pursuant to Agreed Orders the parties concede that there is no violation of the environmental
performance standards.
(b) Response: The cabinet disagrees that parties entering an Agreed Order concede there
are no violations of Environmental Performance Standards. 401 KAR Chapter 46 establishes
non-compliance provisions that allow the Cabinet to enforce the standards under its own statutes
and regulations.

(45) Subject Matter: 401 KAR 46:110, Violations of environmental performance standards
(a) Commenter: Todd Hendricks
Comment: Will CCR landfills, surface impoundments, and beneficial use facilities be
required to follow the relevant environmental performance standards of 401 KAR 30:031?
(b) Response: 401 KAR 30:031 applies to facilities and users that are regulated by 401
KAR Chapter 46.

(46) Subject Matter: 401 KAR 46:110, Violations of environmental performance standards
(a) Commenter: Todd Hendricks
Comment: Will they be considered open dumps if they violate environmental
performance standards, and be subject to having their permits-by-rule revoked, modified, or
suspended pursuant to KRS 224.10-100?
(b) Response: 401 KAR 46:120 provides for enforcement actions in the event of noncompliance.

(47) Subject Matter: 401 KAR 46:110, Violations of environmental performance standards
(a) Commenter: Todd Hendricks
27

Comment: The environmental performance standards of 401 KAR 30:031 prohibit
special waste sites from polluting groundwater above an MCL. However, some of these facilities
already have MCL exceedances in groundwater. Given that a permit-by-rule is a type of permit
for activities that the legislature has determined are sufficiently low-hazard that a written permit
is unnecessary, will it be possible for CCR units that already have MCL exceedances to remain
permits-by-rule? If a facility violates an EPS in 401 KAR 30:031, it seems implausible to argue
that the facility or the waste is low-hazard.
(b) Response: Should an MCL exceedance in groundwater occur, the enforcement
provisions of 401 KAR 46:120 apply. A plan must be implemented pursuant to the incorporation
of assessment and corrective action provisions of 40 C.F.R. 257.95 to 40 C.F.R. 257.97
contained in 401 KAR 46:110.

(48) Subject Matter: 401 KAR 46:110, Incompatibility with KRS 322A
(a) Commenter: Todd Hendricks
Comment: As stated previously, a significant weakness of the federal CCR Rule is that it
relies on self-regulation by the facilities and self-certification by Professional Engineers
regarding every aspect of the siting, design, construction, operation, environmental monitoring,
and reporting regarding CCR units.
KRS 322A establishes licensure for Professional Geologists. However, 401 KAR 46:110
Section 8 incorporates by reference and without modification the requirement in the CCR Rule
that Professional Engineers certify all geological studies, groundwater monitoring systems,
monitoring reports, and all aspects of groundwater assessment and corrective action.
Incorporation of the federal regulation by reference without modification has the effect of
prohibiting a Professional Geologist from the independent practice of geology regarding CCR
facilities to which he or she is entitled by law. This represents a violation of KRS 224.10-100
(28).
(b) Response: KRS 224.10-100(28) states that the cabinet shall have the power and
authority to “[p]romulgate administrative regulations not inconsistent with the provisions of law
administered by the cabinet.” The Cabinet does not administer the laws governing the licensure
or professional conduct of engineers or geologists, and nothing within this regulation authorizes
professionals licensed in Kentucky to violate their standards of professional conduct.

(49) Subject Matter: 401 KAR 46:120, Beneficial use
(a) Commenter: Todd Hendricks
28

Comment: It is ironic, and of great concern that 401 KAR 46:120 Section 1 imposes a
number of performance requirements on beneficial uses of CCR that are not required for disposal
facilities:
- Beneficial uses are required to avoid violation of 401 KAR 30:031, yet disposal of CCR
is not similarly required to meet those environmental performance standards;
- Beneficial use is required to avoid presenting a threat or potential threat to human health
and the environment, yet there appears to be no similar obligation for permit-by-rule landfills or
ponds;
- Beneficial uses are required to avoid creation of a nuisance from fugitive emissions, yet
there is no similar requirement for CCR disposal facilities;
- The beneficial user is required to characterize the waste pursuant to 401 KAR 31:030
(i.e. whether it is a “hazardous” waste), yet there is no characterization requirement for disposal
facilities;
- An annual report is required for beneficial use, but no reporting of data, including
monitoring data, is required of disposal facilities.
The failure to extend these obligations, as well as the clear obligation to meet and
demonstrate the compliance with the siting and environmental performance standards prior to
permit issuance, is a recipe for disaster. (KRC)
In the proposed regulation, 401 KAR 46:120 Section 1 seems to require a higher standard
of performance for beneficial use when compared to surface impoundments and landfills.
Subsection 2 states that a beneficial use is deemed to have a permit-by-rule only if it is in
compliance with 401 KAR Chapter 46 and the environmental performance standards of 401
KAR 30:031. However, Section 1 (1) allows landfills and surface impoundments remain permitsby-rule even when the CCR unit is in violation of the provisions of Chapter 46 as well as 401
KAR 30:031. This makes no environmental sense, given that human and environmental receptors
do not distinguish between contaminants produced from a landfill, a surface impoundment, or a
beneficial use facility.
(b) Response: CCR units must comply with all requirements of 40 C.F.R. 257.50
through 257.107. Both CCR units, and beneficial use of CCR, must comply with 401 KAR
30:031. The federal requirements for the beneficial use of CCR are limited to the definitions in
40 C.F.R. 257.53. The Cabinet is further requiring a person who beneficially uses CCR in
Kentucky to comply with the requirements of 401 KAR 46:120, Section 1(2). The requirements
for siting, operation, recordkeeping, and other activities at a CCR unit are established in 40
C.F.R. 257.

29

(50) Subject Matter: 401 KAR 46:120, Financial assurances
(a) Commenter: Kentucky Resources Council
Comment: 401 KAR Chapter 45 requires performance bonds assuring the
implementation of the closure and post-closure responsibilities of CCR landfills, and a bond for
corrective action. According to one estimate, the Kentucky Division of Waste Management holds
roughly 50 million dollars in financial assurance to ensure proper closure of special waste
landfills used for the disposal of CCR.
If the proposed regulations become effective and allow existing facilities to transition
from regulation under 401 KAR Chapter 45 to Chapter 46, all of permit requirements and all of
the requirements of 401 KAR Chapter 45 will be terminated for CCR units regulated under
Chapter 46, including the financial assurance required under 401 KAR Chapter 45, since the
federal regulations did not impose supplemental financial assurance requirements above those
currently in place. It is assumed that as written, the regulation would require that all financial
assurance will be returned to the utilities, thus leaving the Commonwealth and host communities
to bear the risks of non-performance of closure and post-closure care obligations in the event of
owner/operator default.
As a result, in the event of the bankruptcy or abandonment by an owner of a CCR unit,
the relevant unit or units will have to be closed, if at all, under state superfund provisions, which
are grossly inadequate to fund existing legacy site obligations, let alone to take on the burden of
these formerly-funded obligations. Financial Assurance should be retained for CCR landfills, and
should be extended to include closure of all surface ponds and impoundments.
(b) Response: The Cabinet has amended the regulation to require financial assurance for
new CCR units and certain existing CCR units.

(51) Subject Matter: 401 KAR 46:120, Financial assurances
(a) Commenter: Todd Hendricks
Comment: Current regulations require bond for the closure of CCR landfills, and bond
for corrective action. Presently, The Kentucky Division of Waste Management holds
$48,378,953.00 in financial assurance to ensure proper closure of Special Waste Landfills used
for the disposal of CCR. One landfill that is under construction and another that is proposed
would result in the posting of another $4,383,895.00 and $8,785,000.00 respectively, bringing
the total bond to $61,547,848.00.
If the proposed regulations become effective, all of permit requirements and all of the
requirements of 401 KAR Chapter 45 will become null and void for CCR units regulated under
30

Chapter 46, including the financial assurance required under 401 KAR Chapter 45. All financial
assurance will be returned to the utilities. As a consequence, in the event of the bankruptcy of a
utility owning CCR unit, the relevant unit or units will have to be closed under Superfund, which
is both slow and expensive for the taxpayers. Unnecessary delays could result in greater costs to
the taxpayers and greater impacts to human health and the environment.
Financial Assurance should not only be retained for CCR landfills, it should be extended to
include closure of all surface impoundments.
(b) Response: The Cabinet has amended the regulation to require financial assurance for
new CCR units and certain existing CCR units.

(52) Subject Matter: 401 KAR 46:120, Exempt CCR units
(a) Commenter: Todd Hendricks
Comment: CCR Landfills permitted under 401 KAR Chapter 45 that ceased accepting
waste before October 19, 2015 and all CCR Units at facilities that ceased production of
electricity prior to October 19, 2015 are exempt from the federal CCR Rule pursuant to 40 CFR
257.50. Given these exemptions and the fact that that these Special Waste disposal facilities
operated pursuant to 401 KAR Chapter 45, it is appropriate that they close pursuant to 401 KAR
Chapter 45. This includes both landfills and surface impoundments.
(b) Response: Facilities that are not subject to 401 KAR Chapter 46 will continue to be
regulated by 401 KAR Chapter 45.

(53) Subject Matter: 401 KAR 46:120, Additional language
(a) Commenter: East Kentucky Power Cooperative and Utility Information Exchange of
Kentucky
Comment: 401 KAR 46:120, Section 1(2) — It is recommended that this permit by rule
coverage section be revised to read, "A recipient of CCR for its beneficial use and a user shall be
deemed to have a permit-by-rule without the recipient or user having made application...."
(b) Response: The cabinet will retain the current definition of “user” and a permit-byrule will be extended only to those who meet the definition under these proposed administrative
regulations.

(54) Subject Matter: 401 KAR 46:120, Cabinet concurrence timeframe
31

(a) Commenter: East Kentucky Power Cooperative and Utility Information Exchange of
Kentucky
Comment: 401 KAR 46:120, Section 2(3) gives the Cabinet 365 days to respond to
request for Notice of Concurrence. This time frame seems too long and could result in delays in
construction. UIEK requests that the time period be reduced to 180 days. UIEK appreciates the
opportunity to provide these comments on the Cabinet's proposed CCR regulations.
(b) Response: Given that a Notice of Concurrence is not restricted to a single aspect of
CCR operation, a 365-day time frame is required in the event that an owner or operator submits a
request for review of the complete site design. It is always the cabinet’s goal to issue all
decisions in a timely manner.

(55) Subject Matter: 401 KAR 46:120, Permit termination
(a) Commenter: East Kentucky Power Cooperative and Utility Information Exchange of
Kentucky
Comment: UIEK requests confirmation that once permits issued under 401 KAR Chapter
45 are terminated pursuant to 401 KAR 46:120, Section 3, the prior permits will no longer be
enforceable, and that the permittee will only have to comply with the federal CCR standards as
incorporated by reference in 401 KAR 46:110 and other newly established provisions of 401
KAR Chapter 46.
(b) Response: Facilities subject to 401 KAR Chapter 46 will no longer be governed by
401 KAR Chapter 45, except for those requirements specifically adopted by 401 KAR Chapter
46.

(56) Subject Matter: 401 KAR 46:120, Permit termination
(a) Commenter: East Kentucky Power Cooperative and Utility Information Exchange of
Kentucky
Comment: UIEK requests confirmation that electric power generating stations with units
that will remain regulated under 401 KAR Chapter 45 will remain subject to those previously
issued permits only with respect to such units and that all CCR units that are subject to the
federal CCR regulations will be subject to regulation under 401 KAR Chapter 46. Where the
requirements for such units are currently set forth in a single permit issued under 401 KAR
Chapter 45, please confirm that only those permits/authorizations that will become subject to 401
KAR Chapter 46 will terminate and the other provisions of the permit under Chapter 45 shall
continue in effect.
32

(b) Response: CCR units not subject to 401 KAR Chapter 46 will continue to be subject
to the requirements and regulations of 401 KAR Chapter 45.

(57) Subject Matter: 401 KAR 46:120, Permit effective dates
(a) Commenter: East Kentucky Power Cooperative and Utility Information Exchange of
Kentucky
Comment: 401 KAR 46:120, Section 3(1) — This section requires a permittee that is
subject to Chapter 46 to submit a notice to the Cabinet in writing of its intent to meet the
requirements of 401 KAR Chapter 46 by no later than January 15, 2017 if the permittee already
possesses a permit by rule, registered permit by rule, or formal permit under 401 KAR Chapter
45. Section 3(2) of the regulation also provides that prior permits terminate as of January 15,
2017. There is a concern that the proposed regulations will not be adopted and effective until
after January 2017. It is therefore recommended that the date of January 15, 2017 be revised to a
date 10 days after the effective date in order to provide ample time for the new regulations to
become effective before existing permits are terminated and to provide more transition time for
submittal of the notifications. In addition, the notification to identify all CCR units that are
currently subject to permits by rule under Chapter 45 and transitioning to Chapter 46 is
unnecessary. These units were never required to notify the DEP of their existence under Chapter
45. Furthermore, the required notice for permit by rule units does not appear to be necessary to
obtain coverage of a permit by rule under 401 KAR Chapter 46. Therefore, the requirement
should be deleted. The UIEK does not oppose the notification for existing registered permit by
rule and special waste permit holders transitioning from Chapter 45 to Chapter 46.
(b) Response: Cabinet has decided to revise this proposed regulation to create a
registered permit-by-rule for CCR units. The cabinet is limited by KRS 13A which requires a
date certain rather than allowing conditional dates. The cabinet has extended the January 15,
2017 date to May 1, 2017, and has revised the termination date for permits that will transition to
401 KAR Chapter 46 from January 15, 2017 to the date a registered permit-by-rule is issued.

(58) Subject Matter: 401 KAR 46:120, Additional language
(a) Commenter: Louanna Aldridge
Comment: 401 KAR 46:120, Section 4(a) is a fragmented sentence. Section (b) doesn’t
quite make sense with (a). May be better to read:

33

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 Permit-by-rule Notice of Concurrence Request, DWM 4610, to expire.
(b) No more than two (2) deficiency letters shall be issued in accordance with subsection (3)(b)
of this section, after which the CCR Permit-by-rule Notice of Concurrence Request, DWM 4610,
shall expire.
(b) Response: The cabinet will make this change.

(59) Subject Matter: 401 KAR 46:120, Annual fees
(a) Commenter: East Kentucky Power Cooperative and Utility Information Exchange of
Kentucky
Comment: 401 KAR 46:120, Section 4(1)(a) — The annual fee provisions are not clear
with respect our understanding that the $15,000 annual fee is intended as a cap per electric
generating facility/station regardless of the number of CCR units at the facility. To make this
clear, and to avoid the unintended consequences of the definition of "facility" in 40 CFR Part
257, it is recommended that this section be revised to read " . . . shall pay a $15,000 annual fee
for each electric power generating facility that has one or more CCR units in operation or postclosure."
(b) Response: The cabinet does not agree that “facility” needs to be redefined in the
proposed regulations. 401 KAR Chapter 46 incorporates the definition of “facility” consistent
with 40 C.F.R. 257.53.

(60) Subject Matter: 401 KAR 46:120, Annual fees
(a) Commenter: American Electric Power
Comment: Regarding the new Chapter 46, questions from management regarding
$15,000 fee. Is it voluntary? Assuming they are paying every year per generating station if they
have any CCR units in operation or post-closure. I think that disappears if all of their units
disappear…I’m not sure. Management said that the fact sheet says “. Since the requirements
established in these administrative regulations already are in effect at the federal level, there
should be no cost associated with compliance for the regulated community.” So do they need to
pay that fee every year or is it voluntary and there is no cost to the regulated community?
(b) Response: The annual fee established in 401 KAR 46:120, Section 4 applies to a
facility as defined in 40 C.F.R. 257.53.
34

(61) Subject Matter: 401 KAR 46:120, Annual fees
(a) Commenter: Kentucky Transportation Cabinet
Comment: Based on the Kentucky Transportation Cabinet’s (KYTC) understanding of
the subject new regulation on coal combustion residuals (CCR) we will no longer be required to
establish a permit-by-rule for beneficial reuse of coal combustion residual byproducts as an
ingredient in building materials such as cement, concrete paint, antiskid material, highway base
course, blasting grit and roofing granules. Is the KYTC subject to any fees and/or notices for
placing CCR on land for Highway Roadway construction applications?
(b) Response: The beneficial use of CCR will be regulated under 401 KAR Chapter 46.
The fee established in 401 KAR 46:120, Section 2(2)(e) applies to beneficial use Notices of
Concurrence for non-roadway applications. The annual fee established in 401 KAR 46:120,
Section 4, applies to CCR units which are defined as CCR landfills, CCR surface impoundments,
lateral expansions of a CCR unit, or any combination of those. It does not apply to beneficial use
of CCR. The reporting requirements of 401 KAR 46:120, Section 5, apply to any person
beneficially using CCR in the Commonwealth of Kentucky.

(62) Subject Matter: 401 KAR 46:120, Annual fees
(a) Commenter: East Kentucky Power Cooperative and Utility Information Exchange of
Kentucky
Comment: Section 4(1)(b) should be revised to read "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 upon completion of post-closure activities for all CCR units
at the electric power generating facility, such facility shall no longer be subject to annual fees
established in this section."
(b) Response: Upon notification of completion of post-closure requirements referenced
in 40 C.F.R. 257.104(e) as established in 401 KAR 46:110 for all CCR units at a facility, such
facility shall no longer be subject to annual fees.

(63) Subject Matter: 401 KAR 46:120, Incompatibility with statute
(a) Commenter: Todd Hendricks
Comment: 401 KAR 46:120, Section 5(2) --This language in this subsection conflicts
35

with existing statute and regulation. In particular, the word “invalidate” does not appear in KRS
224.10-100. Instead, the statute uses the terms “issue, continue in effect, revoke, modify,
suspend, or deny”. In 401 KAR 40:040, the applicable terms are “modify, suspend, revoke, and
discontinue”.
(b) Response: The term “invalidate” is used in 401 KAR 46:120, Section 6(2). The
cabinet agrees with the comment and has made the appropriate revisions.

(64) Subject Matter: 401 KAR 46:120, Notice of concurrence
(a) Commenter: Todd Hendricks
Comment: The Concurrence provisions in 401 KAR 46:120 Section 2 are completely
unnecessary, and provide no apparent benefit to human health and the environment.
If they occur, concurrence determinations should be routine compliance determinations (i.e.,
inspections), even if not requested. In lieu of that, affected citizens should be able to ask for a
determination of concurrence or compliance.
(b) Response: The intent of 401 KAR 46:120, Section 2, is to allow a permittee or
potential permittee to request a Notice of Concurrence.

(65) Subject Matter: 401 KAR 46:120, Permit issuance
(a) Commenter: Todd Hendricks
Comment: KRS 224.10-100(19) discusses the power and duty of the cabinet to “issue,
continue in effect, revoke, modify, suspend, or deny… permits for the establishment or
construction and the operation or maintenance of waste disposal sites and facilities”.
Given the Solid Waste Branch (program) is predominately a permitting program, and has issued
permit documents, permit faces, or cover pages, for permit-by-rule (PBR) facilities in the past for
solid waste facilities, I can see the program issuing them in the future for these CCR units or
facilities.
1.
Does the regulation package prevent the cabinet from issuing a permit face document?
Issuance of a permit face increases the efficiency and effectiveness of the program.
a.
If it allows the issuance of a permit face, there should be a provision added similar to 401
KAR 47:120, Section 1(1) and 401 KAR 45:140, Section 1(1).
b.

If it allows the issuance of a permit face, a provision similar to 401 KAR 47:120, Section
36

2 and 401 KAR 45:140, Section 2 should be added to the package. This will allow the cabinet to
add provisions that are site-specific.
(b) Response: The proposed 401 KAR Chapter 46 regulations incorporate the 40 C.F.R.
257, Subpart D standards which will be applicable to all owners and operators of CCR units
pursuant to a registered permit-by-rule and to beneficial use of CCR users pursuant to permit-byrule. The proposed revised regulation requires notice of registration to be sent to registered
permit-by-rule facilities, but contains no provision to impose site specific standards. 401 KAR
Chapter 46 also establishes non-compliance provisions that allow the Cabinet to enforce the
standards under its own statutes and regulations by any remedies available to it pursuant to 401
KAR 40:040. To the extent site-specific modifications need to be made to a registered permitby-rule to address non-compliances, those modifications can be made pursuant to an
enforcement order.

IV. Summary of Action Taken by Promulgating Agency

The public hearing on 401 KAR 4:070, 45:010, 45:060, 46:101, 46:110, and 46:120 was held on
November 22, 2016 and verbal comments were received. Additionally, the division received
written comments on these administrative regulations. The cabinet considered all comments for
401 KAR 4:070, 45:010, 45:060, 46:101, 46:110, and 46:120, and is making the following
amendments:

401 KAR 46:101: Comments were considered and the following changes were made:

Page 2
Section 1(2)
Lines 1 and 2
After “means”, insert “the”.
Delete the following:
authorization allowing the management, disposal, or

37

Page 2
Sections 1(2) and 1(2)(a) and (b)
Lines 3 through 5
After “cabinet by”, delete the following:
:
(a) An owner or operator of a CCR unit; or
(b)
Lowercase “A”.

Page 2
Section 1(3)
Lines 6 and 7
After “(3)”, insert the following:
“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)
Renumber the remaining subsections accordingly.

401 KAR 46:120: Comments were considered and the following changes were made:

Page 1
TITLE
38

Line 5
After “residuals (CCR)”, insert “program”.
Delete “permit-by-rule”.

Page 1
NECESSITY, FUNCTION, AND CONFORMITY
Line 13
After “permit-by-rule”, insert “and registered permit-by-rule”.

Page 1
Section 1
Line 14
After “Section 1. CCR”, insert the following:
Permits. Any person engaged in the operation of a CCR until shall
comply with this administrative regulation
Delete “Permit-by-rule”.

Page 1
Section 1(1)
Line 14
After “(1)”, insert “(a)”.
Lines 14 and 15
After “CCR unit shall”, insert the following:
complete and submit the following to obtain
Delete “be deemed to have”.
39

After “a”, insert “registered”.
Line 15
After “permit-by-rule” insert the following:
:
1. Registered Permit-by-Rule for CCR Facility, DWM 4600
,incorporated by reference in this administrative regulation; and
2. 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:
1. The applicant completed and submitted all registration
information and is deemed to have a registered permit-by-rule; or
2. The registration information is deficient, and require the owner
or operator to submit the required information to the cabinet.
(d)1. 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.
2. Within thirty (30) days of receipt, the cabinet shall review the
revised registration information in accordance with paragraphs (b)
and (c) of this subsection
Delete the following:
without the owner or operator having made application with the
cabinet

40

Page 2
Section 2(1)(a)
Line 7
After “permit-by-rule”, insert the following:
or a registered permit-by-rule

Page 2
Section 2(1)(b)
Line 10
After “does not have a”, insert “registered”.

Page 2
Section 2(2)(a)
Line 17
After “(a) CCR”, delete “Permit-by-rule”.

Page 3
Section 2(2)(e)(2)
Line 13
After “has not obtained a”, insert “registered”.

Page 4
Section 2(4)(a)
Lines 9 and 10
After “section”, insert the following:
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shall cause the CCR Notice of Concurrence Request, DWM
4610, to expire.
Delete the following:
If the submittal is incomplete or additional information is needed
after the second deficiency letter, the CCR Permit-by-rule Notice
of Concurrence Request, DWM 4610, to expire

Page 4
Section 2(4)(c)
Line 14
After “of the CCR”, delete “Permit-by-rule”.

Page 5
Section 3(1)
Line 1
After “no later than”, insert “May 1, 2017”.
Delete “January 15, 2017”.

Page 5
Section 3(2)
Line 6
After “(2)”, insert the following:
Upon issuance by the cabinet of a registered permit-by-rule
Delete “January 15, 2017”.

Page 6
42

Section 6(2)
Line 11
After “cabinet may”, insert

“revoke, modify, or suspend”.

Delete “invalidate”.
After “CCR permit-by-rule”, insert “or registered permit-by-rule”.

Page 6
Section 6(3)
Lines 13 and 14
After “taking action to” insert, “revoke, modify, or suspend”.
Delete “invalidate”.
Line 14
After “CCR permit-by-rule”, insert “or registered permit-by-rule”.

Page 6
Section 7
Line 15
After “Section 7.”, insert the following:
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 which 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.
43

(3) The cabinet shall release the financial assurance mechanism
required by this section upon notification of completion of postclosure 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) Pubic notice shall include the information
contained on the form incorporated in Section 8(1)(f) of this
administrative regulation.
Section 8.

Page 6
Section 7(1)(a)
Line 17
After “(a) “CCR”, delete “Permit-by-rule”.
After “DWM 4610,”, insert “January 2017”.
Delete “September 2016”.
Lines 17 and 18
After “;”, delete “and”.

Page 6
Section 7(1)(b)
Line 19
After “September 2016”, insert
; and
44

(c) “Registered Permit-by-Rule for CCR Facility, DWM 4600,
January 2017.

The Cabinet retitled the form “CCR Permit-by Rule Notice of Concurrence
Request”, DWM 4610 to “CCR Notice of Concurrence Request”, DWM to clarify
that either permit-by-rule or registered permit-by-rule permittees could use this
form. “Type of PBR” was changed to “Type of Permit” for this reason as well.
Due to these changes, the revision date was changed on this form from September
2016 to January 2017.

The Cabinet made the addition of the form “Registered Permit-by-Rule for CCR
Facility”, DWM 4600, January 2017. This document was added as a registration
to be submitted by owners and operators of CCR units to obtain a registered
permit-by-rule.

45