401 KAR 31:040E. Lists of hazardous wastes

      Section 1. General Information. (1) Except as provided in this section, general information shall be as established in 40 C.F.R. 261.30[The subject matter shall be governed by 40 C.F.R. 261.30, effective July 1, 2005].

      (2)(a) The citation to Section 3010 of RCRA in 40 C.F.R. 261.30[the federal regulation referenced in subsection (1) of this Section] shall be replaced with the requirement established in paragraph (b) of this subsection.

      (b) After promulgation of an administrative regulation identifying a substance by its characteristics or listing as hazardous waste subject to 401 KAR Chapters 31 through 44, any person generating or transporting a substance or owning or operating a facility for treatment, storage, disposal, or recycling of the substance shall register by submitting to the cabinet a Notification of Hazardous Waste Activity, DEP 7037, incorporated by reference in 401 KAR 32:010, Section 4. The registration shall be filed within ninety (90) days after promulgation or revision of the administrative regulation unless another notification date is specified in the administrative regulation[KRS 224.46-510].

      (3) The citation to 40 C.F.R. 260.20 in 40 C.F.R. 261.30 shall be replaced with 401 KAR 31:035, Section 1.

      (4) The citation to 40 C.F.R. 260.22 in 40 C.F.R. 261.30 shall be replaced with 401 KAR 31:035, Section 3.

      (5) The citation to 40 C.F.R. 261.31 in 40 C.F.R. 261.30 shall be replaced with Section 2 of this administrative regulation.

      (6) The citation to 40 C.F.R. 261.32 in 40 C.F.R. 261.30 shall be replaced with Section 3 of this administrative regulation.

      (7) The citation to 40 C.F.R. 261.5 in 40 C.F.R. 261.30 shall be replaced with 401 KAR 31:010, Section 5.

      (8) The citations to 40 C.F.R. parts 262 through 265, 267, 268, and 270 in 40 C.F.R. 261.30 shall be replaced with 401 KAR Chapters 32 through 35, 41, 37, and 38, respectively.

 

      Section 2. Hazardous Wastes from Nonspecific Sources. (1) Except as provided in this section, hazardous wastes from nonspecific sources shall be as established in 40 C.F.R. 261.31[The subject matter shall be governed by 40 C.F.R. 261.31, effective July 1, 2005].

      (2) The citation to 40 C.F.R. 260.20 in 40 C.F.R. 261.31 shall be replaced with 401 KAR 31:035, Section 1.

      (3) The citation to 40 C.F.R. 260.22 in 40 C.F.R. 261.31 shall be replaced with 401 KAR 31:035, Section 3.

      (4) The citation to 40 C.F.R. 261.31 and 40 C.F.R. 261.31(b)(2) in 40 C.F.R. 261.31 shall be replaced with this section.

      (5) The citation to 40 C.F.R. 261.32 in 40 C.F.R. 261.31 shall be replaced with Section 3 of this administrative regulation.

      (6) The citation to 40 C.F.R. 264.301 in 40 C.F.R. 261.31 shall be replaced with 401 KAR 34:230, Section 2.

      (7) The citation to 40 C.F.R. 265.301 in 40 C.F.R. 261.31 shall be replaced with 401 KAR 35:230, Section 2.

      (8) The citation to 40 C.F.R. 261.35 in 40 C.F.R. 261.31 shall be replaced with Section 5 of this administrative regulation.

      (9) The citation to 40 C.F.R. 258.40 in 40 C.F.R. 261.31 shall be replaced with 401 KAR 48:070 and 48:080.

 

      Section 3. Hazardous Waste from Specific Sources. (1) Except as provided in this section, hazardous waste from specific sources shall be as established in 40 C.F.R. 261.32[The subject matter shall be governed by 40 C.F.R. 261.32, effective July 1, 2005].

      (2) The citation to 40 C.F.R. 260.20 in 40 C.F.R. 261.32 shall be replaced with 401 KAR 31:035, Section 1.

      (3) The citation to 40 C.F.R. 260.22 in 40 C.F.R. 261.32 shall be replaced with 401 KAR 31:035, Section 3.

      (4) The citation to 40 C.F.R. 258.40 in 40 C.F.R. 261.32 shall be replaced with 401 KAR 48:070 and 48:080.

 

      Section 4. Discarded Commercial Chemical Products, Off-specification Species, Container Residues, and Spill Residues Thereof. (1) Except as provided in this section, discarded commercial chemical products, off-specification species, container residues, and spill residues thereof shall be as established in 40 C.F.R. 261.33[The subject matter shall be governed by 40 C.F.R. 261.33, effective July 1, 2005].

      (2) The citation to 40 C.F.R. 261.2(a)(2)(i) in 40 C.F.R. 261.33 shall be replaced with 401 KAR 31:010, Section 2.

      (3) The citation to 40 C.F.R. 261.7(b) in 40 C.F.R. 261.33 shall be replaced with 401 KAR 31:010, Section 7.

      (4) The citation to 40 C.F.R. 261.5 and 40 C.F.R. 261.5(a) and (g) in 40 C.F.R. 261.33 shall be replaced with 401 KAR 31:010, Section 5.

 

      Section 5. Deletion of Certain Hazardous Waste Codes Following Equipment Cleaning and Replacement. (1) Except as provided in this section, deletion of certain hazardous waste codes following equipment cleaning and replacement shall be as established in 40 C.F.R. 261.35[The subject matter shall be governed by 40 C.F.R. 261.35, effective July 1, 2005].

      (2) The citation to 40 C.F.R. 261.35 in 40 C.F.R. 261.35 shall be replaced with this section.

 

      Section 6.[Comparable Syngas Fuel Exclusion. (1) The subject matter shall be governed by 40 C.F.R. 261.38, effective July 1, 2005.

      (2) The reference in 40 C.F.R. 261.38 to 40 C.F.R. 261.28(c)(10) is incorrect. The references shall be listed as 40 C.F.R. 261.38(c)(10).

      Section 7.] Additional Requirement Concerning Nerve and Blistering Agents. The[following] substances in Table I are listed[as] hazardous wastes in the Commonwealth of Kentucky.

Table I
Ky. Hazardous Waste No.	Substance
N001	GB (isopropyl methyl phosphonofluoridate [phosphonoflouridate]) and related compounds (H)
N002	VX (0-ethyl-S-(2-diisopropyl-aminoethyl)–methyl phosphonothiolate) and related compounds (H)
N003	H (bis (2-chloroethyl) sulfide) and related compounds (H)
N101	Uncontaminated M67 Rocket Motor Assembly, Propellant Component of the Rocket Motor, Shipping Firing Tubes, and End-Caps associated with GB munitions
N102	Uncontaminated M67 Rocket Motor Assembly, Propellant Component of the Rocket Motor, Shipping Firing Tubes, and End-Caps associated with VX munitions
N201	Metal Parts Treater Residue associated with GB munitions or related wastes
N202	Metal Parts Treater Residue associated with VX munitions or related wastes
N203	Static Detonation Chamber Residue and Ash associated with H munitions
N301	Agent Hydrolysate associated with GB munitions
N302	Agent Hydrolysate associated with VX munitions
N401	Energetic Hydrolysate associated with GB munitions
N402	Energetic Hydrolysate associated with VX munitions
N501	Aluminum Precipitate associated with treated GB wastes
N502	Aluminum Precipitate associated with treated VX wastes
N601	Reverse Osmosis Reject or Supercritical Water Oxidation Effluent associated with treated GB wastes
N602	Reverse Osmosis Reject or Supercritical Water Oxidation Effluent associated with treated VX wastes
N701	Lab Wastes associated with treated GB wastes
N702	Lab Wastes associated with treated VX wastes
N703	Lab Wastes associated with treated H wastes

 

CHARLES G. SNAVELY, Secretary

      APPROVED BY AGENCY: April 19, 2016

      FILED WITH LRC: April 26, 2016 at 9 a.m.

      CONTACT PERSON: Louanna Aldridge, Division of Waste Management, 200 Fair Oaks, Second Floor, Frankfort, Kentucky 40601, phone [phone], fax [phone], email [e-mail].

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Person: Louanna Aldridge

      (1) Provide a brief summary of:

      (a) What this administrative regulation does: This administrative regulation establishes the lists of hazardous wastes for Kentucky and is equivalent to federal standards established in 40 C.F.R. 261 Subpart D, except for the addition of nerve and blister agents as required by KRS 224.50-130.

      (b) The necessity of this administrative regulation: This administrative regulation establishes hazardous waste codes to appropriately characterize the risk levels of the waste for treatment, handling, and transportation.

      (c) How this administrative regulation conforms to the content of the authorizing statutes: This administrative regulation conforms to the authorizing statutes by setting forth the lists of hazardous wastes as required by KRS 224.46-510(3) and includes the additional wastes required to be listed by KRS 224.50-130.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation codifies hazardous waste codes as required by KRS 224.46-510(3).

      (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: This amendment will add additional hazardous waste codes for the treated wastes of nerve and blistering agents. This administrative regulation amendment references the changes to 40 C.F.R. 261.31 modifying the F019 listing to allow wastewater treatment sludge to be disposed of as a nonhazardous waste. Due to the removal of 40 C.F.R. 261.38, the comparable syngas fuel exclusion, the reference was also removed from this administrative regulation.

      (b) The necessity of the amendment to this administrative regulation: This amendment is necessary to more clearly delineate the risks associated with the wastes from the treatment of the nerve and blistering agents. In addition, the regulation references the F019 listing modification to be not more stringent than the federal regulation, and the removal of the comparable syngas fuel exclusion to be not less stringent than the federal regulation.

      (c) How the amendment conforms to the content of the authorizing statutes: The amendment conforms to the authorizing statutes by codifying new waste codes to address the treated nerve and blistering agent waste streams as authorized by KRS 224.50-130. The amendment to F019 and the removal of the comparable syngas fuel exclusion are equivalent with the federal regulation counterparts.

      (d) How the amendment will assist in the effective administration of the statutes: The amendment will codify the new hazardous waste codes needed for appropriate classification to manage and transport the treated nerve and blistering agent waste streams. The amendment to F019 and the removal of the comparable syngas fuel exclusion are equivalent with the federal regulation counterparts.

      (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 the Blue Grass Army Depot and any entity that must treat or transport the treated nerve and blistering agent waste streams. The amendment to F019 will affect the automotive industry. The removal of the comparable syngas fuel exclusion will affect any facility that is currently treating, storing, disposing or otherwise managing hazardous wastes previously excluded from Resource Conservation and Recovery Act.

      (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: The Bluegrass Army Depot will have to identify waste streams based on the newly codified hazardous waste codes to determine proper treatment, transportation, storage and disposal of the wastes. The automotive industry will no longer have to dispose of the wastewater treatment sludge as a listed hazardous waste per the amended definition of F019. Any facility operating under the comparable syngas fuel exclusion will have to determine if the fuel being used meets the definition of a hazardous waste and follow the appropriate requirements.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): The additional hazardous waste codes and the amendment to F019 will reduce transportation and disposal costs.

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): The operating costs of the facilities will be reduced for the additional hazardous waste codes and the amendment to F019. In addition, the Bluegrass Army Depot will be enabled to complete training and Operational Readiness under the current construction schedule to comply with the International Treaty.

      (5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:

      (a) Initially: There will be no cost to the administrative body initially.

      (b) On a continuing basis: There will be no cost to the administrative body on a continuing basis.

      (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: Implementation and enforcement of this administrative regulation will be funded by the federal ACWA (Assembled Chemical Weapons Alternatives) and RCRA grant.

      (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 not require increases in fees or funding to implement this regulation.

      (8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: This administrative regulation does not increase any fees either directly or indirectly for the additional hazardous waste codes or the amendment to F019.

      (9) TIERING: Is tiering applied? This administrative regulation does not apply tiering as it is applied equally throughout the commonwealth.

 

FEDERAL MANDATE ANALYSIS COMPARISON

 

      1. Federal statute or regulation constituting the federal mandate. Section 3006 of the Resource Conservation and Recovery Act (RCRA) requires the lists of hazardous wastes in this administrative regulation to be equivalent to the list promulgated by the U.S. Environmental Protection Agency (EPA) in 40 C.F.R. 261 in order to receive state authorization.

      2. State compliance standards. KRS 224.10-100, KRS 224.46-505, KRS 224.50-130, and KRS 224.46-530.

      3. Minimum or uniform standards contained in the federal mandate. Section 3006 of RCRA and 40 C.F.R. 261.

      4. Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements, than those required by the federal mandate? This administrative regulation imposes stricter requirements than those required by the federal mandate for nerve and blistering agents required to be listed by KRS 224 50-130.

      5. Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements. KRS 224.50-130 requires the cabinet to regulate chemical munitions as hazardous waste. The following compounds are established as chemical munitions and therefore listed hazardous wastes in KRS 224.50-130: GB (isopropyl methyl phosphonofluoridate), VX (O-ethyl-S-(2-diisopropylaminoethyl)methyl phosphonothiolate), and H (bis(2-chloroethyl)sulfide), and any related compounds. Therefore, this administrative regulation imposes a stricter standard than 40 C.F.R. 261 by including the additional listed wastes as required by KRS 224.50-130.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

      (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 may impact any unit of state or local government that generates, treats, transports, stores or disposes of a listed hazardous waste.

      (2) Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 224.46-510(3) requires the cabinet to identify the characteristics of and to list hazardous wastes as established by EPA pursuant to RCRA. Section 3006 of RCRA requires these lists to be equivalent to the list promulgated by the EPA in 40 C.F.R. 261 in order to receive state authorization. KRS 224.50-130 requires the cabinet to include the additional nerve and blistering agents to the listed hazardous waste codes.

      (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. This administrative regulation will not affect the expenditures or revenues of a state or local government agency.

      (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 not generate revenue for the state or local government for the first year.

      (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 not generate any revenue for the state or local government for subsequent years.

      (c) How much will it cost to administer this program for the first year? This administrative regulation will not have any additional costs for the first year.

      (d) How much will it cost to administer this program for subsequent years? This administrative regulation will not have any additional costs for subsequent years.

      Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

      Revenues (+/-):

      Expenditures (+/-):

      Other Explanation: This administrative regulation will not generate additional revenue or expenditures for the administrative body.

Notation

      This emergency administrative regulation is necessary in accordance with KRS 224.50-130 to more clearly delineate the risks associated with the wastes resulting from the treatment of the nerve and blistering agents as a measure of protection of human health and the environment. In addition, conformance with KRS 224.46-510(3) requires the cabinet to be identical with the list promulgated by the Environmental Protection Agency and establish classes or categories of hazardous waste reflecting the relevant degree of hazardous consistent with the Resource Conservation Recovery Act. Without the amendment, the state would risk noncompliance with federal funding mandates potentially leading to a loss of funding. An ordinary administrative regulation would not allow the agency sufficient time to implement measures to allow the facility to implement the changes to meet the deadlines of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction. This emergency administrative regulation will be replaced by an ordinary administrative regulation. The ordinary administrative regulation is identical to this emergency administrative regulation.

MATTHEW G. BEVIN, Governor

CHARLES G. SNAVELY, Secretary

      RELATES TO: KRS Subchapters 224.1[224.01], 224.40, 224.43, 224.46, 224.50-130, 224.99, 40 C.F.R. 261 Subpart D

      STATUTORY AUTHORITY: KRS 224.10-100, 224.46-510(3), 224.46-530, 224.50-130

      EFFECTIVE: April 26, 2016

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.46-510(3) requires the cabinet to identify the characteristics of and to list hazardous wastes. This administrative regulation establishes the lists of hazardous wastes for Kentucky and is equivalent to federal standards established in 40 C.F.R. 261 Subpart D, except for the addition of Section 6[7] of this administrative regulation, which contains nerve and blister agents as required by KRS 224.50-130. This administrative regulation is different from, but not more stringent than, the federal counterpart in that some internal cross-references within 40 C.F.R. are replaced with Kentucky-specific cross-reference citations to Title 401 KAR. If not specifically replaced in an administrative regulation, internal federal cross-references are as established in 40 C.F.R.