{"data":{"id":"us-ky/krs-224.46-520","jurisdiction":"us-ky","citation":"KRS 224.46-520","heading":"Prerequisites to issuance  of permit for storage, treatment,","body":"recycling, or disposal of hazardous  waste -- Standards for closure --\nMonitoring,  maintenance,  and  remedial  measures  --  Financial\nresponsibility -- Closure for noncompliance.\n(1) No  person shall engage in the storage, treatment, recycling, or disposal of\nhazardous waste without first notifying the cabinet and obtaining construction\nand  operation permits from the cabinet. The  cabinet shall promulgate\nregulations establishing standards for such permits but in no case shall a\npermit to construct or operate a hazardous waste site or facility or a regional\nintegrated waste treatment and disposal demonstration facility be issued\nunless it can be demonstrated that the proposed facility can be integrated into\nthe surroundings in an environmentally compatible manner, including but not\nlimited to, insuring that hydrologic, seismologic, geologic, and  soil\nconsiderations have been adequately addressed in the permit application and\nin an operational plan. In no case shall a permit to construct a hazardous waste\nincinerator, landfill, or other site or facility for the land disposal of hazardous\nwaste be approved or issued prior to notification of the cabinet by the local unit\nof government of its actions pursuant to KRS  224.40-310(6). The cabinet shall\nnot issue a construction permit to a regional integrated waste treatment and\ndisposal demonstration facility until it has  been  issued a  certificate of\nenvironmental safety and public necessity. A person desiring a construction\npermit shall file an application on forms supplied by the cabinet which shall\ncontain such information as the cabinet deems  necessary and  provide\nevidence that the hazardous waste shall be treated, stored or disposed of in\nthe  manner  prescribed by  the cabinet. The  applicant shall not initiate\nconstruction at the proposed site of a new facility for the storage, treatment, or\ndisposal of hazardous waste until notice has been given to that portion of the\npublic most likely to be affected by the operation of the proposed facility\npursuant to KRS  224.40-310(1) to (5) and until a construction permit for said\nfacility has been  issued by the cabinet. The  cabinet may  consider past\nperformance in this or related fields by the applicant. The cabinet, in making a\ndetermination to issue, deny, or condition a construction permit, shall consider\nthe following:\n(a) An  evaluation of alternatives, to include other locations and  other\ntreatment, storage, and  disposal approaches, different from those\nproposed, available to the applicant;\n(b) An  evaluation of the public health, safety, and environmental aspects of\nthe proposals;\n(c) An evaluation of the social and economic impacts of the proposed action\non the affected community, to include, at a minimum, changes in property\nvalues, community perception and other psychic costs, and the costs and\navailability of public services, facilities and improvements required to\nsupport the facility and protect public health, safety, and the environment;\n(d) An  evaluation of mitigation measures to alleviate problems identified in\nparagraphs (b) and (c) of this subsection; and\n(e) The  relationship of the proposal to local planning and  existing\ndevelopment.\nExcept that in the case of hazardous waste incinerators, landfills, or other sites\nor facilities for the land disposal of hazardous waste, the provisions of\nparagraphs (c) and (e) of this subsection shall be determined by the local unit\nof government pursuant to KRS 224.40-310(6).\n(2) The  cabinet may  prohibit the land disposal of any hazardous wastes. The\ncriteria and list of hazardous waste to be prohibited by the cabinet from land\ndisposal shall be identical to any such criteria and list promulgated by the\nUnited States Environmental Protection Agency  pursuant to the Resource\nConservation and Recovery Act of 1976, as amended, (Public Law 94-580).\nThe  land disposal of hazardous waste may  be  permitted for methods\ndetermined  by  the cabinet to be  protective of human  health and  the\nenvironment for as long as the waste remains hazardous.\n(3) In conjunction with the application for permits under this section, the applicant\nshall establish adequate financial responsibility as follows:\n(a) The applicant shall file as part of his application for a permit to construct\nthe facility an estimate of the cost of closing the facility after its capacity is\nreached or operations have otherwise ceased and an estimate of the cost\nof post-closure care. In the case of storage facilities, the cost of closing\nshall include the cost of properly disposing of the hazardous waste stored.\nThe  cabinet shall evaluate this cost estimate and either accept the\nestimate as made  or shall revise it in accordance with acceptable\nguidelines, using, where  available, actual data on  closure costs\nassociated with similar existing facilities. Before a permit to operate can\nbe issued, the applicant for any hazardous waste permit shall assure that\nthe funds needed  to close the facility are available by establishing\nassurance through one (1) or more of the following mechanisms: cash,\ncertificates of deposit, irrevocable credit, or other sureties satisfactory to\nthe cabinet and the mechanism  shall be established by agreement with\nthe cabinet. The agreement shall provide that disbursement is permissible\nonly upon written approval of the cabinet and whenever, on the basis of\nany information, the cabinet determines that the owner or operator is in\nviolation of any of the closure requirements for the facility, that the cabinet\nshall have the right to use part or all of the closure fund to carry out the\nclosure requirements. The financial institution, surety company, or escrow\nagent shall release these funds upon receiving a forfeiture order of the\ncabinet issued pursuant to an  appropriate administrative hearing\nconsidering one (1) or more closure violations. Upon determination that\nclosure has been satisfactorily accomplished, the cabinet shall release\nthe applicant from further financial responsibility for closure;\n(b) Any  applicant for a hazardous waste disposal permit shall file with the\ncabinet as part of his application an estimate of the annual cost of\npost-closure monitoring and routine maintenance at the site. The cabinet\nshall evaluate the cost estimate, and, after such modification as may be\nnecessary in light of its evaluation, shall give notice of acceptance of the\ncost estimate. This cost estimate which will be referred to as the annual\npost-closure operating cost shall then be used to determine the amount of\nthe  post-closure monitoring and  maintenance fund to be  used  for\nmonitoring and maintenance for a period of a minimum of thirty (30) years\nafter facility closure. The post-closure monitoring and maintenance fund\nshall be cash, irrevocable credit, or other sureties satisfactory to the\ncabinet and shall be established by an agreement with the cabinet. The\nagreement shall provide that whenever, on the basis of any information,\nthe cabinet determines that the owner or operator of the facility is in\nviolation of any  of the post-closure monitoring and  maintenance\nrequirements, the cabinet shall have the right to use part or all of the\nfunds to carry out the post-closure monitoring and maintenance for the\nfacility. The funds shall be released upon receipt of a forfeiture order of\nthe cabinet issued pursuant to an appropriate administrative hearing\nconsidering one (1) or more post-closure monitoring and maintenance\nviolations. One (1) year after closure, and annually thereafter for a period\nof thirty (30) years, the applicant who  has carried out all necessary\npost-closure maintenance  and  monitoring requirements may  upon\napplication to the cabinet be  reimbursed out of the post-closure\nmonitoring and maintenance fund an amount equal to the estimated costs\nfor monitoring and routine maintenance for that year. Request for release\nof funds for reimbursement shall be accompanied by an itemized list of\ncosts incurred. Upon determination that the expenditures incurred are in\naccordance with the approved plan, or otherwise justified, the cabinet\nmay  authorize the release of the funds to the applicant in writing. Any\nfunds remaining in the account following a termination hearing in which\nthe applicant is released of further responsibility shall likewise be released\nto the applicant; and\n(c) All applicants for any hazardous waste permit shall provide evidence of\nfinancial responsibility in an amount and for a time period specified by the\ncabinet for the purpose of corrective action on and off-site and satisfying\nclaims arising out of injury to persons or property resulting from the\nrelease or escape  of hazardous waste into the environment. Such\nfinancial responsibility may be established by one (1) or a combination of\nevidence  of liability insurance, self-insurance, or other evidence of\nfinancial responsibility acceptable to  the  cabinet. The  level of\nself-insurance shall not exceed ten percent (10%) of equity, and financial\nresponsibility shall be maintained during the entire operation of the facility\nand  until termination. The  minimum  liability coverage  for sudden\noccurrences, exclusive of legal defense costs, for a storage, treatment, or\ndisposal facility shall be one million dollars ($1,000,000) per occurrence\nwith an  annual aggregate of two million dollars ($2,000,000). The\nminimum  liability coverage for nonsudden occurrences, exclusive of legal\ndefense costs, for a hazardous waste facility involving land disposal shall\nbe  three million dollars ($3,000,000) per occurrence with an annual\naggregate of six million dollars ($6,000,000). Combined  coverage for\nsudden and nonsudden occurrences shall be no less than the combined\ntotals herein set forth for separate coverage. The cabinet shall accept a\ndemonstration of financial responsibility during the post-closure period of\na  facility for a lesser amount for sudden or non-sudden occurrences\nwhere it is shown that a lesser amount of financial responsibility will be\nadequate  to provide compensation for third-party injury or property\ndamage  and corrective action, considering site and facility conditions and\nother site-specific factors. Financial responsibility in post-closure for\nsudden  and  non-sudden occurrences and corrective action may  be\ndemonstrated through a letter of credit, surety or other bond, corporate\nguarantee, trust fund, liability insurance, self-insurance, or combination of\nthese or other methods as approved by the cabinet.\n(4) The  cabinet shall promulgate regulations establishing minimal standards for\nclosure, post-closure monitoring and maintenance, and termination of sites for\nthe disposal of hazardous waste. Any person who obtains a disposal permit for\nhazardous  waste shall be responsible for the post-closure monitoring and\nmaintenance of the permitted facility for a minimum  of thirty (30) years after\nclosure of the facility. The permittee may apply to the cabinet for termination of\nthe responsibility for post-closure monitoring and maintenance at any time\nduring the thirty (30) year post-closure monitoring and maintenance period.\nUpon  receipt of such application, the cabinet shall provide notice to the public\nand  to the owner  or operator and an opportunity for a hearing on the\ntermination of the site. In this proceeding, the burden shall be on the applicant\nto  prove by clear and  convincing evidence that additional post-closure\nmonitoring and maintenance is not necessary for adequate protection of public\nhealth or the environment. The cabinet shall determine either that post-closure\nmonitoring and maintenance of the site is no longer required, in which case the\napplicant shall be relieved of such responsibility; or that additional post-closure\nmonitoring and maintenance of the site as specified in a plan of operation is\nstill required, in which case the cabinet may  order appropriate remedial\nmeasures,  impose restrictive covenants as to future use of the property\ninvolved, or otherwise condition termination as may be necessary for adequate\nprotection of public health and the environment. The cabinet may  require\nadditional monitoring, site maintenance, or remedial measures consistent with\nKRS  Chapter 224 any time after termination of the post-closure monitoring and\nmaintenance of the permitted facility in the event that the cabinet determines\nsuch  actions are necessary for the protection of human  health and the\nenvironment.\n(5) In any case where the owner or operator is in bankruptcy, reorganization, or\narrangement pursuant to the Federal Bankruptcy Code or where jurisdiction\ncannot be obtained with reasonable diligence in any state court or any federal\ncourt over an owner or operator likely to be insolvent at the time of judgment,\nany claim arising from conduct for which evidence of financial responsibility\nshall be provided under this section may  be asserted directly against the\nguarantor providing such evidence of financial responsibility. In the case of any\naction pursuant to this subsection, such guarantor shall be entitled to invoke all\nrights and defenses which would have been available to the owner or operator\nif any action had been brought against the owner or operator by the claimant\nand which would have been available to the guarantor if an action had been\nbrought against the guarantor by the owner or operator.\n(6) The  total liability of any guarantor shall be limited to the aggregate amount\nwhich the guarantor has provided as evidence of financial responsibility to the\nowner  or operator under this section. Nothing in this subsection shall be\nconstrued to limit any other federal statutory, contractual or common  law\nliability of a guarantor to its owner or operator including, but not limited to, the\nliability of such guarantor for bad faith either in negotiating or in failing to\nnegotiate the settlement of any claim. Nothing in this subsection shall be\nconstrued to diminish the liability of any person under Section 107 or 111 of the\nComprehensive  Environmental Response, Compensation and Liability Act of\n1980 or other applicable law.\n(7) For the purpose of this subsection, the term guarantor means  any person,\nother than the owner  or operator, who  provides evidence of financial\nresponsibility for an owner or operator under this section.\n(8) Any  hazardous waste treatment, storage, or disposal facility shall close in\naccordance with the permit and this chapter, if the site or facility has not been\nmaintained in operational condition in conformance with this chapter, for any\nperiod of six (6) months  or longer. The  permittee shall be afforded an\nopportunity to be heard on the proposed termination of authorization to\noperate, and termination under this section shall not be required where the\npermittee demonstrates that steps have been taken to bring the facility, within a\nreasonable time not to exceed ninety (90) days, into full operational status in\naccordance with this chapter and applicable regulations. Within ninety (90)\ndays, the cabinet shall review existing hazardous waste treatment, storage, or\ndisposal permits to determine compliance with this section.","path":[],"source_url":"https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=46561","current_through":"Includes enactments through the 2026 Regular Session","vintage":"09/05/2026","retrieved_at":"2026-09-05T20:52:41Z","sha256":"825e57ce38c0b6776d153d7e3b5f79afd805dda5e84342d0899c93873da93f39","source_id":"us-ky","stale":false,"prev":"us-ky/krs-224.46-510","next":"us-ky/krs-224.46-525"},"notice":"GroundRules: Original legal text. Not legal advice."}