KRS 224.46-580: Development of statewide programs -- Responsibilities of cabinet --

Hazardous waste assessment -- Waiver -- Hazardous waste management fund -

- Pollution prevention fund -- Response actions to release of waste -- Post-

closure site integrity.

(1) The General Assembly declares that it is the purpose of this section to promote the

development of statewide programs, under the responsibility of a single agency,

which are intended to protect the health of the citizens and the environment of the

Commonwealth from present and future threats associated with the management of

hazardous wastes and the release of toxic chemicals regulated under Title III,

Section 313 of the Superfund Amendments and Reauthorization Act of 1986,

including disposal, treatme nt, recycling, storage, and transportation. The intent of

the General Assembly is to add to and coordinate, and not replace, existing efforts

and responsibilities in the areas of hazardous waste management, toxic chemical

manufacture, processing, or other use, and to leave the primary burden and

responsibility for hazardous waste and toxic chemical reduction on private industry;

and further to finance assistance and coordination by imposing assessments on the

generation of hazardous waste. The assessments are intended to produce a reduction

in waste generated; to promote the use of new techniques in recycling, treatment,

and alternatives other than land disposal; and to place the burden of financing

additional hazardous waste management activities necessaril y undertaken by state

agencies on the users of those products associated with the generation of hazardous

waste. The General Assembly further finds that Kentucky's industries need

assistance in developing and implementing pollution prevention goals and tha t a

fund should be established to provide technical and financial assistance to those

industries.

(2) The Energy and Environment Cabinet is given the authority to administer the

provisions and programs of this section and the responsibility to achieve the

purposes of this section.

(3) In addition to all specific responsibilities contained elsewhere in this chapter, the

cabinet shall:

(a) Respond effectively and in a timely manner to emergencies created by the

release of hazardous substances, as defined in K RS 224.1 -400, into the

environment. The cabinet shall provide for adequate containment and removal

of the hazardous substances in order that the threat of a release or actual

release of the substance may be abated and resultant harm to the environment

minimized. The provisions of KRS 45A.695 to 45A.725 may be suspended by

the cabinet if necessary to respond to an environmental emergency;

(b) Provide for post -closure monitoring and maintenance of hazardous waste

disposal sites upon termination of post -closure monitoring and maintenance

responsibilities by persons permitted to operate the facility pursuant to this

chapter; and

(c) Identify, investigate, classify, contain, or clean up any release, threatened

release, or disposal of a hazardous substance where r esponsible parties are

economically or otherwise unavailable to properly address the problem and

the problem represents an imminent danger to the health of the citizens and

the environment of the Commonwealth.

(4) The cabinet shall have the authority to fi nance the nonfederal share of the cost for

clean up of sites under the Comprehensive Environmental Response, Compensation

and Liability Act of 1980 (Pub. L. No. 96-510).

(5) The cabinet shall recover, when possible, actual and necessary expenditures

incurred in carrying out the duties under this section. Any expenditures recovered

shall be placed in the hazardous waste management fund.

(6) It is the expressed purpose of this section to accomplish effective hazardous waste

and toxic chemical management that results in a reduction of the generation of

hazardous wastes and the release of toxic chemicals within the Commonwealth;

further, it is a purpose of this chapter to allocate a portion of the cost of

administering necessary governmental programs related to hazardous waste and

toxic chemical management to those industries whose products are reasonably

related to the generation of hazardous waste.

(7) There is hereby imposed upon every person engaged within this state in the

generation of hazardous waste an an nual hazardous waste assessment to be

determined pursuant to this section according to the quantity by weight of

hazardous waste generated, except that no assessment shall be levied against

generators for any quantity of "special wastes," waste oil, or spe nt material from air

pollution control devices controlling emissions from coke manufacturing facilities.

The assessment shall not be imposed upon any person for any quantities of

hazardous waste generated by others for which that person is a secondary hand ler

that stores, processes, or reclaims the waste. The assessment shall be reported and

paid to the Energy and Environment Cabinet for the generation of hazardous waste

on an annual basis on January 1 of each year. The payment shall be accompanied by

a rep ort or return in a form that the cabinet may prescribe. If a federal law is

enacted which accomplishes or purports to accomplish the purposes set forth in this

section and which levies an assessment or tax upon any business assessed pursuant

to this sectio n, the amount of the assessment to be levied upon the business under

this section shall be reduced by the amount of the federal assessment or tax upon

the business. The reduction shall only be authorized when funds raised by the

federal assessment or tax a re made available to the state for any of the activities to

be funded under this section. If federal moneys are available to carry out the duties

imposed by subsection (3) of this section, the assessment shall cease to be levied

and collected until such ti me as federal moneys are no longer available to the

Commonwealth for these purposes. The assessment shall be charged against

generators of hazardous waste until June 30, 2032. After this date, no further

hazardous waste management assessment shall be charg ed against generators. The

hazardous waste assessment shall be waived for any generator owing less than fifty

dollars ($50) for the year. However, a return must be filed by generators to whom a

payment waiver applies.

(8) The assessment on generators shall be one and two -tenths cents ($0.012) per pound

if the waste is liquid, or two -tenths of a cent ($0.002) per pound if the waste is

solid.

(a) Hazardous waste that is injected into a permitted underground injection well

shall be assessed on a dry weight basis;

(b) Hazardous waste treated, detoxified, solidified, neutralized, recycled,

incinerated, or disposed of on -site shall be assessed at one -half (1/2) of the

appropriate rate, except for recycled waste used in the steel m anufacturing

process which shall be exempt;

(c) Waste that is subject to regulation under Section 402 or 307B of the Federal

Clean Water Act shall be exempt;

(d) Emission control dust and sludge from the primary production of steel that is

recycled by high temperature metals recovery or managed by stabilization of

metals shall be exempt; and

(e) Waste that is delivered from the generator to an on -site or off -site industrial

boiler or furnace and burned for energy recovery in accordance with state and

federal laws and regulations shall be assessed at one -half (1/2) of the

appropriate rate.

(9) Except for waste brought into the state by a company to an affiliated manufacturing

facility of the company receiving the waste, any person who transports hazardous

waste into the state for land disposal or treatment which is generated outside of the

state shall pay an assessment to the hazardous waste facility which first receives the

waste for storage, treatment, or land disposal. The assessment rate shall be identical

to the rate described in subsection (8) of this section. The facility shall remit the

assessment to the cabinet on an annual basis on January 1 of each year. The

payment shall be accompanied by a return the cabinet shall prescribe.

(10) If any generator o r hazardous waste facility subject to the provisions of subsection

(8) or (9) of this section fails or refuses to file a return or furnish any information

requested in writing by the cabinet, the cabinet may, from any information in its

possession, make an estimate and issue an assessment against the generator or

hazardous waste facility and add a penalty of ten percent (10%) of the amount of

the assessment so determined. This penalty shall be in addition to all other

applicable penalties in this chapter.

(11) If any generator or hazardous waste facility subject to the provisions of subsection

(8) or (9) of this section fails to make and file a return required by this chapter on or

before the due date of the return or the due date as extended by the cabinet, unless it

is shown to the satisfaction of the cabinet that the failure is due to reasonable cause,

five percent (5%) of the assessment found to be due by the cabinet shall be added to

the assessment for each thirty (30) days or fraction thereof elapsing between the due

date of the return and the date on which it is filed, but the total penalty shall not

exceed twenty-five percent (25%) of the assessment.

(12) If the assessment imposed by this chapter, whether assessed by the cabinet or the

generator, or an y installment or portion of the assessment is not paid on or before

the date prescribed for its payment, there shall be collected, as a part of the

assessment, interest upon the unpaid amount at the rate of eight percent (8%) per

annum from the date prescr ibed for its payment until payment is actually made to

the cabinet.

(13) (a) There is hereby created within the State Treasury a trust and agency fund,

which shall not lapse, to be known as the hazardous waste management fund.

The fund shall be deposited i n an interest -bearing account. The cabinet shall

be responsible for collecting and receiving funds as provided in this section

and all such assessments collected or received by the State Treasury shall be

deposited in the hazardous waste management fund. A ll interest earned on the

money deposited in the fund shall be deposited to the fund. When the State

Treasurer certifies to the cabinet that the uncommitted balance of the

hazardous waste management fund exceeds six million dollars ($6,000,000),

assessments shall not be collected until the State Treasurer certifies to the

cabinet that the balance in the hazardous waste management fund is less than

three million dollars ($3,000,000). The implementation of the cap on the fund

shall be suspended from July 13, 1990, until July 1, 1991. In addition, for

assessments paid after July 1, 1991, the cabinet shall refund or grant a credit

against the next assessment to come due, on a pro -rated basis, any money

collected in one (1) year in excess of the cap.

(b) In any fiscal year in which the fees assessed under this section total less than

one million eight hundred thousand dollars ($1,800,000) in fiscal year 2007 -

2008 dollars, adjusted annually to reflect any increase in the cost -of-living

index, the difference between the fee receipts and the adjusted minimum

balance shall be transferred from funds collected pursuant to KRS 224.60 -

130.

(c) The cabinet shall file with the Legislative Research Commission a biennial

report, beginning two (2) years after July 15, 2008, on the revenues and

expenditures of the fund.

(14) There is hereby created within the State Treasury a trust and agency account, which

shall not lapse, to be known as the pollution prevention fund. The fund shall be

placed in an interest-bearing account. The fund shall be administered by the Center

for Pollution Prevention. The cabinet shall remit to the fund each fiscal year twenty

percent (20%) of the funds received by the hazardous waste management fund

subject to the enacted budget bill.

(15) Upon request of the secretary, moneys accumulated in the hazardous waste

management fund shall be released in amounts necessary to accomplish the

performance of the duties imposed by subsection (3) of this section. However,

moneys from the fund shall not be used when f ederal moneys are available to carry

out these duties, except when immediate action is required to protect public health

or the environment, in which case the cabinet shall actively pursue reimbursement

of the fund by any available federal moneys.

(16) If any person responsible for a release or threatened release of a hazardous

substance fails to take response actions or to make reasonable progress in

completing response actions ordered by the cabinet, the cabinet may bring an action

to compel performance o r may take appropriate response actions and order the

responsible person to reimburse the cabinet for the actual costs incurred by the

cabinet.

(17) If disposal activities have occurred at a hazardous waste site, the cabinet shall

record, in the office of the county clerk in the county in which a waste site is

situated, a notice containing a legal description of the property that discloses to any

potential transferee that the land was used to dispose hazardous waste and that

further information on the hazardous waste site may be obtained from the cabinet.

(18) No person shall affect the integrity of the final cover, liners, or any other

components of any containment system after closure of a hazardous waste site on or

in which hazardous waste remains without prior written approval of the cabinet.