KRS 224.50-130: Legislative findings -- Chemical munitions waste treatment or

disposal -- Requirements for treatment or disposal permits -- Restrictions

governing permits -- Reclassification of residues of demilitarization

process.

(1) The General Assembly of Kentucky finds that:

(a) The compounds listed in subsection (2) of this section were designed and

configured to be utilized for warfare, with the purpose of incapacitating or

inducing lethality in persons who come in contact with the compounds,

and that the compounds have no legitimate civilian use;

(b) The Commonwealth of Kentucky owes to its residents a duty of utmost

care to assure that no person will be exposed to these compounds or the

degradation by-products of these compounds through purposeful or

accidental release of the compounds into the air, land, or water of the

Commonwealth, and also owes a duty to utilize the police powers of the

Commonwealth to guarantee the safe demilitarization, decommissioning,

dismantling, and disposal of weapons containing these compounds and to

eliminate potential risks of exposure from the treatment and disposal of

the compounds;

(c) Section 6929 of Title 42 of the United States Code, specifically

recognizes and reserves to the Commonwealth the authority to impose

reasonable restrictions directly relating to public health and safety with

respect to the management of hazardous wastes beyond the minimum

standards established under federal law; and

(d) The acute and chronic health effects and environmental consequences of

exposure to the compounds and the degradation by-products of the

compounds listed in subsection (2) of this section, given the high acute

toxicity of the compounds relative to other regulated hazardous wastes,

justify the imposition of standards correlative to the uncertainties and

severity of risks potentially posed by the treatment or disposal of the

compounds.

(2) Notwithstanding any other provision of this chapter, within thirty (30) days after

July 15, 1988, the cabinet shall list the following compounds as hazardous

wastes for the purposes of regulation of the treatment, storage, and disposal of

the wastes under the delegated authority of the Resource Conservation and

Recovery Act, 42 U.S.C. 6901 et seq.: GB (isopropyl methyl

phosphonoflouridate); VX (O-ethyl-S-(2-diisopropylaminoethyl) methyl

phosphonothiolate); and H (bis(2-chloroethyl) sulfide) and related compounds.

(3) In addition to the requirements of KRS 224.46-520(1), the cabinet shall

consider the criteria set forth in this subsection in making a determination to

issue, deny, or condition a permit for any person desiring a permit to construct

or operate a hazardous-waste site or facility for treatment or disposal of any of

the compounds identified in subsection (2) of this section. The applicant shall

affirmatively demonstrate, and the cabinet shall find prior to issuance,

conditional issuance, or denial of the permit or draft permit, that:

(a) The proposed treatment or destruction technology has been fully proven

in an operational facility of scale, configuration, and throughput

comparable to the proposed facility, or has been demonstrated as

effective, within the chemical weapons disposal programs as directed in

Pub. L. 104-208 and other applicable federal laws, sufficient to provide

assurance of destruction or neutralization and removal efficiency of

ninety-nine and nine thousand, nine hundred, and ninety-nine ten

thousandths percent (99.9999%) for each compound listed in subsection

(2) of this section that is proposed to be treated or destroyed, with the

efficiency to be demonstrated as achievable under all operating

conditions. During the occurrence of malfunctions, upsets, or unplanned

shutdowns, all quantities of any compound listed in subsection (2) of this

section shall be contained, reprocessed or otherwise controlled so as to

ensure that the required efficiency is attained prior to any release to the

environment;

(b) Monitoring data from an operational facility or alternative disposal

program as described in paragraph (a) of this subsection reflects that the

emissions from treatment and destruction facilities or fugitive sources,

including, but not limited to, the emissions of the compounds identified in

subsection (2) of this section and products of combustion, incomplete

combustion, and other processes alone or in combination present no

more than a minimal risk of acute or chronic human health effect, as

demonstrated by sufficient and applicable toxicological data, or adverse

environmental effect; and

(c) An emergency response plan has been submitted to the cabinet and

approved, after public notice and an opportunity to be heard, providing for

sufficient training, coordination, and equipment for state and local

emergency response personnel, including health, police, fire, and other

responders, to assure the ability of the community to respond to releases

from such a facility. The plan shall demonstrate the capability of

evacuating prior to exposure, or otherwise mitigating exposure for all

individuals that might be exposed to releases from the facility during a

credible worst-case release. In determining the population and area of

potential exposure during a worst-case release, all possible climatic

conditions and population distributions shall be assumed for the largest

area where any exposure to the release could induce acute or chronic

health consequences or environmental impact. If such a plan has not

been fully implemented at the time of permit approval, the Division of

Emergency Management shall advise the cabinet of critical shortcomings.

Any permit issued shall include, as conditions, the resolution of critical

shortcomings in the implementation of the plan, and shall not allow actual

destruction of any of the compounds identified in subsection (2) of this

section to begin until those permit conditions have been met to the

satisfaction of the Division of Emergency Management. No later than

January 1, 2001, the Division of Emergency Management shall complete

an assessment of a draft plan previously submitted by the applicant and

the respective counties and, after public notice and an opportunity to be

heard, shall approve or reject the draft plan. The cabinet shall conduct no

technical review of a permit application for treatment or disposal of these

compounds until notified in writing by the Division of Emergency

Management that the draft plan has been approved.

(4) In considering any application for a permit subject to this section, and

supporting information which shall be provided by the applicant on request by

the cabinet, the cabinet shall not issue a permit unless, as part of the

alternatives analysis of KRS 224.46-520(1), the cabinet makes an affirmative

finding after public notice and an opportunity to be heard, that no alternative

method of treatment or disposal exists in an operational facility or alternative

disposal program as described in subsection (3)(a) of this section that create

less risk of release, or acute or chronic health effect, or adverse environmental

effect.

(5) In addition to the definition of the term as defined in this chapter, the term

"treatment," as used in this section, shall include the manual or mechanical

handling of the chemical compounds listed in subsection (2) of this section and

of any munitions containing the compounds during the processing of munitions

to remove the compounds, to separate munitions components, and to

otherwise prepare the components and compounds for destruction,

neutralization, dismantling, or decommissioning. The term "treatment" shall not

include the handling, movement, or overpacking of containers or munitions

containing a compound listed in subsection (2) of this section within the fenced

boundaries of an area used for the storage of those munitions if:

(a) A plan for the handling, movement, or overpacking is submitted and

approved by the cabinet, after public notice and opportunity to be heard,

before the handling, movement, or overpacking occurs; or

(b) An emergency has occurred and the handling, movement, or overpacking

is necessary to protect human health, safety, or the environment, if a

report describing the handling, movement, or overpacking is submitted to

the cabinet as soon as possible after the emergency is abated.

(6) No site or facility for treatment or disposal of any of the substances identified in

subsection (2) of this section shall be issued a permit to treat or destroy a live

chemical agent as a research, development, or demonstration permit except

for a pilot scale operation.

(7) After the compounds listed in subsection (2) of this section have been treated

to the treatment or destruction values identified in subsection (3)(a) of this

section, or to comparable destruction or treatment values established by the

cabinet where those values identified in subsection (3)(a) of this section are

inapplicable, the cabinet shall reclassify any residues of the demilitarization

process (secondary wastes) to ensure proper management and disposal

consistent with the toxicity and hazard potential of those residual waste

streams.

(8) In addition to other requirements of KRS 224.46-520(1) and subsections (1) to

(6) of this section, the cabinet shall not issue a permit or authorization to

construct or operate a hazardous waste site or facility for treatment or disposal

of any of the compounds identified in subsection (2) of this section unless the

applicant provides written documentation from the host county certifying that:

(a) All infrastructure improvements identified in the final emergency response

plan required in subsection (3)(c) of this section as being reasonably

necessary to assure the ability of the community to effectively respond to

releases from the facility in order to protect public health and the

environment under the emergency response plan, have been or will be

completed by the applicant prior to operation of the facility; and

(b) The applicant has provided to the host county sufficient funding for

reasonable direct and indirect costs of the creation and maintenance of

the position of host community liaison. The host community liaison will be

determined by the host county and will act as the single point of contact

for community relations, emergency planning, and community oversight of

the construction, operation, closure, and emergency response of the

facility.