KRS 224.1-400: Reportable quantities and release notification requirements for

hazardous substances, pollutants, or contaminants -- Variation of

requirements by administrative regulations -- Emergency plan -- Powers of

cabinet -- Remedial action to restore environment -- Lien of cabinet for costs of

cleanup -- Liability of financial institution acquiring property or serving as

fiduciary.

(1) As used in this section:

(a) "Hazardous substance" means any substance or combination of substances

including wastes of a solid, liquid, gaseous, or semi-solid form which, because

of its quantity, concentration, or physical, chemical, or infectious

characteristics may cause or significantly contribute to an increase in mortality

or an increase in serious irreversible or incapaci tating reversible illness, or

pose a substantial present or potential hazard to human health or the

environment. The substances may include but are not limited to those which

are, according to criteria established by the cabinet, toxic, corrosive, ignitabl e,

irritants, strong sensitizers, or explosive, except that the term "hazardous

substance" shall not include petroleum, including crude oil or any fraction

thereof which is not otherwise specifically listed or designated as a hazardous

substance under this section, and shall not include natural gas, natural gas

liquids, liquified natural gas, or synthetic gas usable for fuel, or mixtures of

natural gas and synthetic gas;

(b) "Release" means any spilling, leaking, pumping, pouring, emitting, emptying,

discharging, injecting, escaping, leaching, dumping, or disposing hazardous

substances, pollutants, or contaminants into the environment, including the

abandonment or discarding of barrels, containers, and other closed receptacles

containing any hazardous substa nce, pollutant, or contaminant, but excludes

emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft,

vessel, or pipeline pumping station engine; the release of source, by -product,

or special nuclear material from a nuclear incident, as those terms are defined

in the Atomic Energy Act of 1954, if the release is subject to requirements

with respect to financial protection established by the Nuclear Regulatory

Commission under Section 170 of the Act, or any release of source by -

product, or special nuclear material from any processing site designated under

Sections 102(a)(1) or 302(a) of the Uranium Mill Tailing Radiation Control

Act of 1978; and the normal application of fertilizer;

(c) "Site" means any building, structure, installation, equipment, pipe, or pipeline,

including any pipe into a sewer or publicly -owned treatment works, well, pit,

pond, lagoon, impoundment, ditch, landfill, storage containers, motor

vehicles, rolling stock, or aircraft, or any other place or area where a release or

threatened release has occurred. The term shall not include any consumer

product in consumer use;

(d) "Environmental emergency" means any release or threatened release of

materials into the environment in such quantities or concentrations as cause or

threaten to cause an imminent and substantial danger to human health or the

environment; the term includes, but is not limited to, discharges of oil and

hazardous substances prohibited by Section 311(b)(3) of the Federal Clean

Water Act - (Public Law 92-500), as amended;

(e) "Threatened release" means a circumstance which presents a substantial threat

of a release;

(f) "Pollutant or contaminant" shall include, but not be limited to, any element,

substance, compound, or mixture, including disease -causing ag ents, which

after release into the environment and upon exposure, ingestion, inhalation, or

assimilation into any organism, either directly from the environment or

indirectly by ingestion through food chains, will or may reasonably be

anticipated to cause death, disease, behavioral abnormalities, cancer, genetic

mutation, physiological malfunctions (including malfunctions in reproduction)

or physical deformations, in such organisms or their offspring; except that the

term "pollutant or contaminant" shall no t include petroleum, including crude

oil or any fraction thereof which is not otherwise specifically listed or

designated as a hazardous substance under this section and shall not include

natural gas, liquified natural gas, or synthetic gas of pipeline qua lity (or

mixtures of natural gas and such synthetic gas);

(g) "Environment" means the waters of the Commonwealth, land surface, surface,

and subsurface soils and strata, or ambient air within the Commonwealth or

under the jurisdiction of the Commonwealth;

(h) "Financial institution" means, for purposes of subsections (26) and (27) of this

section, the following:

1. A bank or trust company defined by Subtitle 3 of KRS Chapter 286;

2. A savings and loan association defined by Subtitle 5 of KRS Chapter

286;

3. A credit union defined by Subtitle 6 of KRS Chapter 286;

4. A mortgage loan company or loan broker defined by Subtitle 8 of KRS

Chapter 286;

5. An insurer defined by KRS Chapter 304; and

6. Any other financial institution engaged in t he business of lending

money, the lending operations of which are subject to state or federal

regulation; and

(i) "Fiduciary" means, for purposes of subsections (26) and (27) of this section, a

fiduciary as defined by KRS Chapter 386.

(2) The cabinet may p romulgate administrative regulations in accordance with the

provisions of KRS Chapter 13A designating individual hazardous substances,

pollutants, or contaminants; establishing their respective reportable quantities; and

establishing their respective relea se notification requirements, which differ from

those designated or established in subsections (3) to (9) of this section, if necessary

to:

(a) Protect human health and the environment;

(b) Maintain consistency with valid scientific development; or

(c) Maintain consistency with newly adopted federal regulations.

(3) The hazardous substances for which release notification is required shall be those

hazardous substances designated in 40 C.F.R. Part 302 under the Federal

Comprehensive Environmental Response Co mpensation and Liability Act of 1980,

as amended; those extremely hazardous substances designated in 40 C.F.R. Part 355

under Title III of the Superfund Amendments and Reauthorization Act of 1986;

nerve and blister agents designated under KRS 224.50 -130(2); and any hazardous

substances designated by the cabinet in administrative regulations promulgated

pursuant to subsection (2) of this section.

(4) The reportable quantity for a release of a hazardous substance designated in 40

C.F.R. Part 302 under the Fed eral Comprehensive Environmental Response

Compensation and Liability Act of 1980, as amended, shall be the quantity

designated in 40 C.F.R. Part 302. The reportable quantity for a release of an

extremely hazardous substance designated in 40 C.F.R. Part 355 under Title III of

the Superfund Amendments and Reauthorization Act of 1986 shall be the quantity

designated in 40 C.F.R. Part 355. The reportable quantity for a release of a nerve or

blister agent designated under KRS 224.50 -130(2) shall be any quantity. The

cabinet may establish reportable quantities for hazardous substances in

administrative regulations promulgated pursuant to subsection (2) of this section

which differ from those established in this subsection. The reportable quantity for

any hazardous substance designated by the cabinet in administrative regulations

promulgated pursuant to subsection (2) of this section shall be the reportable

quantity established by the cabinet.

(5) The release notification requirements for a release of a hazardous su bstance

designated in 40 C.F.R. Part 302 under the Federal Comprehensive Environmental

Response Compensation and Liability Act of 1980, as amended, shall be the

notification requirements established in 40 C.F.R. Part 302. The release notification

requirements for a release of an extremely hazardous substance designated in 40

C.F.R. Part 355 under Title III of the Superfund Amendments and Reauthorization

Act of 1986 shall be the notification requirements established in 40 C.F.R. Part 355.

Whenever notification of a release or threatened release of a hazardous substance is

required pursuant to this section, any person possessing or controlling the hazardous

substance shall immediately notify the cabinet's twenty -four (24) hour

environmental response line. The cabinet may establish release notification

requirements by administrative regulation promulgated pursuant to subsection (2) of

this section which differ from those established in this subsection. The release

notification requirements for any hazardous subs tance designated by the cabinet in

administrative regulations promulgated pursuant to subsection (2) of this section

shall be the release notification requirements established in the cabinet's

administrative regulations.

(6) Any person possessing or contro lling a pollutant or contaminant for which a

reportable quantity has been established by administrative regulation promulgated

pursuant to subsection (2) of this section shall immediately notify the cabinet's

twenty-four (24) hour environmental response li ne, as soon as that person has

knowledge of any release or threatened release, other than a permitted release or

application of a pesticide in accordance with the manufacturer's instructions, of a

pollutant or contaminant to the environment in a quantity e qual to or exceeding the

reportable quantity. In the notice to be made to the cabinet, the person shall state, at

a minimum, the location of the release or threatened release, the material released or

threatened to be released, and the approximate quantity and concentration of the

release or threatened release.

(7) Any person possessing or controlling a pollutant or contaminant shall, as soon as

that person has knowledge of any release or threatened release of a pollutant or

contaminant from a site to the e nvironment in a quantity which may present an

imminent or substantial danger to the public health or welfare, immediately notify

the cabinet's twenty-four (24) hour environmental response line. In the notice to be

made to the cabinet, the person shall state, at a minimum, the location of the release

or threatened release, the material released or threatened to be released, and the

approximate quantity and concentration of the release or threatened release. If a

person possessing or controlling a pollutant o r contaminant for which a reportable

quantity has not been established in administrative regulations promulgated

pursuant to subsection (2) of the section fails to report a release or threatened

release because of a good-faith belief that the release did not present an imminent or

substantial danger to the public health or welfare, that person shall not be liable for

a violation of the release notification requirements of this section. In determining

whether a person has acted in good faith, the cabinet sha ll consider the

circumstances surrounding the release, including whether the release was a

permitted release or the application of a pesticide in accordance with the

manufacturer's instructions.

(8) The cabinet may require the person subject to the release notification requirements

of subsections (5) to (9) of this section to provide a written report on the release or

threatened release. This report shall be submitted to the environmental response

section of the cabinet within seven (7) days of the cabinet' s demand for the report.

The report shall identify the following:

(a) The precise location of the release or threatened release;

(b) The name, address, and phone number of the person possessing or controlling

the material at the time of the release or threatened release;

(c) The name, address, and phone number of persons having actual knowledge of

the facts surrounding the release or threatened release;

(d) The specific pollutant or contaminant or hazardous substance released or

threatened to be released;

(e) The concentration and quantity of the pollutant or contaminant or hazardous

substance in the release or threatened release;

(f) The circumstances and cause of the release or threatened release;

(g) Efforts taken by the person to control or mitigate the release or threatened

release;

(h) To the extent known, the harmful effects of the release or threatened release;

(i) The transportation characteristics of the medium or matrix into which the

material was released or threatened to be released;

(j) Any pres ent or proposed remedial action by the person at the site of the

release or threatened release;

(k) The name, address, and phone number of the person who can be contacted for

additional information concerning the release or threatened release; and

(l) Any other information that may facilitate remediation of the site.

(9) A person possessing or controlling a hazardous substance, pollutant, or contaminant

shall immediately notify the cabinet pursuant to subsection (5) of this section when

release notification , including notification of a continuous release reported under

the Federal Comprehensive Environmental Response Compensation and Liability

Act of 1980, as amended, is provided to the United States Environmental Protection

Agency. Within seven (7) days of providing any written notification to the United

States Environmental Protection Agency, the person shall submit to the cabinet a

copy of the release notification submitted to the United States Environmental

Protection Agency. The cabinet shall not require additional information pursuant to

subsection (5) of this section if the release notification is in compliance with this

subsection, unless a written report is required under subsection (8) of this section or

the release or threatened release constitutes an environmental emergency.

(10) Any person in charge of a vessel or site from which oil is discharged in a harmful

quantity as defined by 40 C .F.R. Part 110 in contravention of Section 311 of the

Federal Clean Water Act shall immediately notify the cabinet's twenty -four (24)

hour environmental response line. In the notice to be made to the cabinet, the person

shall state, at a minimum, the location of the discharge, the material discharged, and

the approximate quantity and concentration of the discharge.

(11) Any person possessing or controlling petroleum or a petroleum product as defined

by KRS 224.60-115(15) shall, as soon as that person has kn owledge of any release

or threatened release, other than a permitted release or application of a pesticide in

accordance with the manufacturer's instructions, in an amount of twenty -five (25)

gallons or more in a twenty -four (24) hour period, except for di esel fuel for which

the reportable quantity is seventy -five (75) gallons or more in a twenty -four (24)

hour period, or in contravention of Section 311 of the Federal Clean Water Act,

immediately notify the cabinet's twenty-four (24) hour environmental response line.

In the notice to be made to the cabinet, the person shall state, at a minimum, the

location of the release or threatened release, the material released or threatened to be

released, and the approximate quantity and concentration of the release o r

threatened release.

(12) The cabinet may require the person subject to subsections (10) and (11) of this

section to provide a written report on the discharge or release. This report shall be

submitted to the environmental response section of the cabinet within seven (7)

days of the cabinet's demand for the report. The report shall identify the following:

(a) The precise location of the discharge or release;

(b) The name, address, and phone number of the person possessing or controlling

the material at the time of the discharge or release;

(c) The name, address, and phone number of persons having actual knowledge of

the facts surrounding the discharge or release;

(d) The concentration and quantity of the discharge or release;

(e) The circumstances and cause of the discharge or release;

(f) Efforts taken by the person to control or mitigate the discharge or release;

(g) To the extent known, the harmful effects of the discharge or release;

(h) The transportation characteristics of the medium or matrix into whi ch the

material was discharged or released;

(i) Any present or proposed remedial action by the person at the site of the

discharge or release;

(j) The name, address, and phone number of the person who can be contacted for

additional information concerning the discharge or release; and

(k) Any other information that may facilitate an emergency spill response, or

remediation of the site.

(13) Timely notification received under the release notification requirements of this

section or information obtained in a notification received under the release

notification requirements of this section may not be used against the person making

the notification in any criminal proceeding, except in a prosecution for submitting a

false or untimely notification to the cabinet. Notification received by the cabinet of

a threatened release or discharge shall not be deemed a separate incident.

(14) The cabinet shall be the lead agency for hazardous substance, pollutant, or

contaminant emergency spill response and, after consultatio n with other affected

federal, state, and local agencies and private organizations, shall establish a

contingency plan for undertaking emergency actions in response to the release of a

hazardous substance, pollutant, or contaminant. The contingency plan shall:

(a) Provide for efficient, coordinated, and effective action to minimize damage to

the air, land, and waters of the Commonwealth caused by the release or

threatened release of hazardous substances, pollutants, or contaminants;

(b) Include containment, cleanup, and disposal procedures;

(c) Provide for remediation or restoration of the lands or waters affected

consistent with this section;

(d) Assign duties and responsibilities among state cabinets and agencies in

coordination with federal and local agencies;

(e) Provide for the identification, procurement, maintenance, and storage of

necessary equipment and supplies;

(f) Provide for designation of persons trained, prepared, and available to provide

the necessary services to carry out the plan; and

(g) Establish procedures and techniques for identifying, containing, removing,

and disposing of hazardous substances released or being released.

(15) The cabinet shall have the authority, power, and duty to:

(a) Recover from persons liable therefor for the benef it of the hazardous waste

management fund, the cabinet's actual and necessary costs expended in

response to a threatened release, an environmental emergency, or a release of

a hazardous substance that is reportable under this section. Except as provided

in paragraph (b) of this subsection, this section is intended solely to recognize

the existence of a cause of action on behalf of the cabinet and is not intended

to expand or contract the bases of liability, the elements of proof, or the

amount of liability of any person;

(b) Notwithstanding paragraph (a) of this subsection, recover its costs incurred in

the removal of oil or hazardous substances discharged in violation of Section

311(b)(3) of the Federal Clean Water Act from any person liable therefor

under Section 311 of the Federal Clean Water Act subject to limitations of

liability and defenses provided in the section. The limitations of liability shall

apply to the total of state and federal expenses; and

(c) In every case where action required under this section is not being adequately

taken or the identity of the person responsible for the release or threatened

release is unknown, the cabinet or its agent may contain, remove, or dispose

of the hazardous substance, pollutant, or contaminant or take any ot her action

consistent with this section, including, but not limited to, issuance of an

emergency order as provided in KRS 224.10 -410 to the person possessing,

controlling, or responsible for the release or threatened release as necessary

for the protection of the environment and public health, safety, or welfare.

(16) Any duly authorized officer, employee, or agent of the cabinet may upon notice to

the owner or occupant enter any property, premises, or place at any time for the

purposes of this section, if the entry is necessary to prevent damage to the air, land,

or waters of the Commonwealth. Notice to the owner or occupant shall not be

required if the delay attendant upon providing it will result in imminent risk to

public health or safety.

(17) The cabinet shall prepare and annually update an inventory of all sites in the

Commonwealth at which there is or has been an environmental emergency or a

release of a hazardous substance, pollutant, or contaminant. In preparing the

inventory, the cabinet s hall determine, based on information available to the

cabinet, the impact of each site on public health and the environment and identify

the relative priority for restoration or remedial action. Upon determining that no

further restoration or remedial action is necessary, the cabinet shall so designate the

site on the inventory. A separate designation of sites where a remedial action

involving on -site containment or treatment has been performed and other sites

where restoration of the environment has not be en achieved shall be maintained. A

review of environmental conditions at sites remediated by on -site containment or

treatment and other sites where restoration or remediation of the environment is not

achieved shall be conducted by the cabinet every five ( 5) years to determine

whether additional action is necessary to protect human health or the environment.

(18) Any person possessing or controlling a hazardous substance, pollutant, or

contaminant which is released to the environment, or any person who caus ed a

release to the environment of a hazardous substance, pollutant, or contaminant,

shall characterize the extent of the release as necessary to determine the effect of the

release on the environment, and shall take actions necessary to correct the effect of

the release on the environment. Any person required to take action under this

subsection shall have the following options:

(a) Demonstrating that no action is necessary to protect human health, safety, and

the environment;

(b) Managing the release in a manner that controls and minimizes the harmful

effects of the release and protects human health, safety, and the environment,

provided that the management may include any existing or proposed

engineering or institutional controls and the maintenance of those controls;

(c) Restoring the environment through the removal of the hazardous substance,

pollutant, or contaminant; or

(d) Any combination of paragraphs (a) to (c) of this subsection.

(19) Unless otherwise required by the cabinet, a person required to c haracterize the

extent of a release and correct the effect of the release on the environment under

subsection (18) of this section may take those actions without making the

demonstrations to the cabinet required by subsections (18) to (21) of this section, if:

(a) The release is less than the reportable quantity of a hazardous substance,

pollutant, or contaminant;

(b) The release is of a pollutant or contaminant for which a reportable quantity

has not been established by administrative regulation promulgate d pursuant to

subsection (2) of this section, if the release does not present an imminent or

substantial danger to the public health or welfare; or

(c) The release is authorized by a state or federal permit.

(20) If a person required to take action under subsection (18) of this section demonstrates

to the cabinet that, pursuant to subsection (18)(a) of this section, no action is

necessary to protect human health, safety, and the environment or, pursuant to

subsection (18)(b) of this section, the release wil l be managed in a manner that

controls and minimizes the harmful effects of the release and protects human health,

safety, and the environment, the cabinet shall not require restoration of the

environment through the removal of the hazardous substance, pol lutant, or

contaminant pursuant to subsection (18)(c) of this section.

(21) A person required to take action under subsection (18) of this section who does not

restore the environment through removal of the hazardous substance, pollutant, or

contaminant in accordance with subsection (18)(c) of this section shall demonstrate

to the cabinet that the remedy is protective of human health, safety, and the

environment, by considering the following factors:

(a) The characteristics of the substance, pollutant, or c ontaminant, including its

toxicity, persistence, environmental fate and transport dynamics,

bioaccumulation, biomagnification, and potential for synergistic interaction

and with specific reference to the environment into which the substance,

pollutant, or contaminant has been released;

(b) The hydrogeologic characteristics of the facility and the surrounding area;

(c) The proximity, quality, and current and future uses of surface water and

groundwater;

(d) The potential effects of residual contamination of potentially impacted surface

water and groundwater;

(e) The chronic and acute health effects and environmental consequences to

terrestrial and aquatic life of exposure to the hazardous substance, pollutant,

or contaminant through direct and indirect pathways;

(f) An exposure assessment; and

(g) All other available information.

(22) A person who submits a proposal to the cabinet pursuant to subsection (18) of this

section may request in writing a final determination on the proposal no sooner than

thirty (30) days after its submission. When a final determination on the proposal is

requested, the cabinet shall make its final determination within sixty (60) working

days from the date the request is received by the cabinet. After a final determination

has been made, the person requesting the final determination may request a hearing

pursuant to the provisions of KRS 224.10 -420. Nothing in this subsection shall

relieve any person of any obligations imposed by law during an environmental

emergency, nor shall it requ ire the cabinet to approve a proposal which would

violate this chapter or the administrative regulations promulgated pursuant thereto.

(23) (a) The cabinet shall have a lien against the real and personal property of a person

liable for the actual and neces sary costs expended in response to a release or

threatened release or an environmental emergency. The lien shall be filed with

the county clerk of the county in which the property of the person is located.

(b) If a financial institution exempted from liabi lity by subsection (26) of this

section conveys the site it has acquired, then the cabinet shall have a lien

against the site for the actual and necessary costs expended in response to a

release or threatened release or an environmental emergency. The lien shall be

filed with the county clerk of the county in which the site is located.

(24) Nothing in this section shall replace the financial and technical assistance available

to the Commonwealth pursuant to Section 311 of the Federal Clean Water Act

(Public Law 92-500) as amended, but shall be used to provide the Commonwealth

with a mechanism for additional response to releases and threatened releases of

hazardous substances, pollutants, or contaminants.

(25) Defenses to liability, limitations to liability, and rights to contribution shall be

determined in accordance with Sections 101(35), 101(40), 107(a) to (d), 107(q) and

(r), and 113(f) of the Comprehensive Environmental Response Compensation and

Liability Act, as amended, and the Federal Clean Water Act, as amended.

(26) In addition to the defenses and limitations provided in subsection (25) of this

section, a financial institution that acquired a site by foreclosure, by receiving an

assignment, by deed in lieu of foreclosure, or by otherwise becoming the owner as a

result of the enforcement of a mortgage, lien, or other security interest held by the

financial institution, shall not be liable under this section with respect to the site, if:

(a) The financial institution served only in an administrative, cus todial, financial,

or similar capacity with respect to the site before its acquisition;

(b) The financial institution did not control or direct the handling of the material

causing the environmental emergency, or control or direct the handling of the

hazardous substance, pollutant, or contaminants, at the site before its

acquisition;

(c) The financial institution did not participate in the day -to-day management of

the site before its acquisition;

(d) The financial institution, at the time it acquired the site, did not know and had

no reason to know that a hazardous substance, pollutant, or contaminant was

disposed at the site. For purposes of this paragraph, the financial institution

shall have undertaken, at the time of a cquisition, all appropriate inquiries into

the previous ownership and uses of the property consistent with good

commercial or customary practice in an effort to minimize liability. What

actions constitute all appropriate inquiries shall be determined by ta king into

account any specialized knowledge or experience on the part of the financial

institution, the relationship of the market value of the site to the value of the

site if uncontaminated, commonly known or reasonably ascertainable

information about th e site, the obviousness of the presence or likely presence

of contamination at the site, the ability to detect the contamination by

appropriate inspection, and any other relevant factor;

(e) The financial institution, when it undertakes actions to protect or preserve the

value of the site, undertakes those actions in accordance with this chapter and

the administrative regulations adopted pursuant thereto;

(f) The financial institution, its employees, agents, and contractors did not cause

or contribute to an environmental emergency, or to a release or threatened

release of a hazardous substance, pollutant, or contaminant; and

(g) The financial institution complies with the release notification requirements of

subsection (9) of this section.

(27) In addition t o the defenses and limitations provided in subsection (25) of this

section, a financial institution serving as a fiduciary with respect to an estate or

trust, the assets of which contain a site, shall not be liable under this section with

respect to the site if:

(a) The financial institution served only in an administrative, custodial, financial,

or similar capacity with respect to the site before it became a fiduciary;

(b) The financial institution did not control or direct the handling of the material

causing the environmental emergency, or control or direct the handling of the

hazardous substance, pollutant, or contaminants, at the site before it became a

fiduciary;

(c) The financial institution did not participate in the day -to-day management of

the site before it became a fiduciary;

(d) The financial institution, at the time it became a fiduciary, did not know and

had no reason to know that a hazardous substance, pollutant, or contaminant

was disposed at the site. For purposes of this paragraph, the fina ncial

institution shall have undertaken, at the time it became a fiduciary, all

appropriate inquiries into the previous ownership and uses of the property

consistent with good commercial or customary practice in an effort to

minimize liability. What action s constitute all appropriate inquiries shall be

determined by taking into account any specialized knowledge or experience

on the part of the financial institution, the relationship of the market value of

the site to the value of the site if uncontaminated, commonly known or

reasonably ascertainable information about the site, the obviousness of the

presence or likely presence of contamination at the site, the ability to detect

the contamination by appropriate inspection, and any other relevant factor;

(e) The financial institution, when it undertakes actions to protect or preserve the

value of the site, undertakes those actions in accordance with this chapter and

the administrative regulations adopted pursuant thereto;

(f) The financial institution, its empl oyees, agents, and contractors did not cause

or contribute to an environmental emergency, or to a release or threatened

release of a hazardous substance, pollutant, or contaminant; and

(g) The financial institution complies with the release notification requirements of

subsection (9) of this section.