(a) History of the approval of Kentucky's UST Program. The Commonwealth of Kentucky (Commonwealth or Kentucky) is approved to administer and enforce an underground storage tank (UST) program in lieu of the federal program under subtitle I of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6991 et seq. The State's UST Program, as administered by the Kentucky Department for Environmental Protection (KDEP), was approved by the EPA pursuant to 42 U.S.C. 6991c and part 281 of this chapter. The EPA published the notice of final determination approving the Kentucky UST Program on September 16, 2020, and that approval became effective immediately.
(b) Enforcement authority. Kentucky has primary responsibility for enforcing its UST Program. However, the EPA retains the authority to exercise its corrective action, inspection, and enforcement authorities under sections 9003(h), 9005, and 9006 of subtitle I of RCRA, 42 U.S.C. 6991b(h), 6991d, and 6991e, as well as under other statutory and regulatory provisions.
(c) Retention of program approval. To retain program approval, Kentucky must revise its approved UST Program to adopt new changes to the federal subtitle I program which make it more stringent, in accordance with section 9004 of RCRA, 42 U.S.C. 6991c, and 40 CFR part 281, subpart E. If Kentucky obtains approval for revised requirements pursuant to section 9004 of RCRA, 42 U.S.C. 6991c, the newly approved statutory and regulatory provisions will be added to this subpart and notice of any change will be published in the Federal Register.
(d) Final approval. Kentucky has final approval for the following elements submitted to the EPA and approved effective September 16, 2020.
(1) State statutes and regulations -
(i) Incorporation by reference. The Kentucky materials cited in this paragraph and listed in appendix A to this part, are incorporated by reference as part of the UST Program under subtitle I of RCRA, 42 U.S.C. 6991 et seq. The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may access copies of the Kentucky statutes and regulations that are incorporated by reference from the Kentucky Department for Environmental Protection, Underground Storage Tank Branch, 300 Sower Boulevard, 2nd Floor, Frankfort, Kentucky 40601. You may also access copies of the statues and regulations that are incorporated by reference from the Kentucky Legislative Research Commission at the following website: https://legislature.ky.gov/Pages/index.aspx. You may inspect all approved material at the EPA Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303; Phone number: (404) 562-9900; or the National Archives and Records Administration (NARA), email: [email protected]; website: https://www.archives.gov/federal-register/cfr/ibr-locations.html.
(A) Kentucky Statutory Requirements Applicable to the Underground Storage Tank Program, dated September 10, 2021.
(B) Kentucky Regulatory Requirements Applicable to the Underground Storage Tank Program, dated September 10, 2021.
(ii) Legal basis. The EPA considered the following statutes and regulations which provide the legal basis for the State's implementation of the UST Program, but these provisions do not replace Federal authorities. Further, these provisions are not incorporated by reference, unless the provisions place requirements on regulated entities.
(A) Kentucky Revised Statutes (KRS), Chapter 61, subchapters 870 to 884 (2018) - insofar as these provisions relate to authorities enabling public participation and the sharing of information.
(B) Kentucky Revised Statutes (KRS), Chapter 224 (2017):
(1) KRS 224.1-400(9) and (11), insofar as these provisions provide authority for release reporting and notification to KDEP.
(2) KRS 224.10-100(5), (10), and (28), insofar as these provisions relate to the general powers and duties of KDEP to prevent pollution, conduct inspections and compliance monitoring, and promulgate UST regulations.
(3) KRS 224.10-410, insofar as it relates to the authority of KDEP to issue an order for corrective measures without a hearing.
(4) KRS 224.10-420(2), insofar as it relates to the administrative processes governing enforcement proceedings and public participation in the enforcement process.
(5) KRS 224.10-440, insofar as it relates to regulations governing the procedural requirements for administrative hearings.
(6) KRS 224.60-105(2)-(4), insofar as these provisions relate to the general authority of KDEP to regulate USTs and the preemption of local laws, ordinances, and regulations.
(7) KRS 224.60-120(6), insofar as it relates to the authority of KDEP to promulgate administrative regulations for implementing financial responsibility requirements.
(8) KRS 224.60-135(1), (2), and (4), insofar as these provisions relate to the authority of KDEP to require or initiate corrective action for releases into the environment.
(9) KRS 224.60-137(3), insofar as it relates to the duty of KDEP to develop standards for corrective action.
(10) KRS 224.60-138, insofar as it relates to the duties of KDEP to determine whether corrective action for a release from or closure of a petroleum UST has been completed.
(11) KRS 224.60-155, insofar as it relates to the authority of KDEP to assess a civil penalty for failure to comply with the administrative regulations.
(12) KRS 224.99-010(9), insofar as it applies to KRS 224.1-400, and relates to the authority to assess a civil penalty and the concurrent jurisdiction and venue of the Franklin Circuit Court.
(13) KRS 224.99-020, insofar as it relates to the authority to commence an enforcement action to require compliance, or recovery of penalties or costs.
(C) Kentucky Rules of Civil Procedure, Rule 24, insofar as it provides for public participation in the State enforcement process, including intervention.
(D) 401 Kentucky Administrative Regulations (KAR) 42:020 (2019) - Section 18, insofar as it relates to the authority of KDEP to implement delivery prohibition.
(E) 400 Kentucky Administrative Regulations (KAR) Chapter 1 (2018):
(1) 400 KAR 1:090, insofar as it establishes procedures for administrative hearings to enforce compliance, and provides for public participation.
(2) 400 KAR 1:100, insofar as it contains the general administrative hearing practice provisions governing matters brought to enforce compliance with the UST Program.
(iii) Other provisions not incorporated by reference. The following statutory and regulatory provisions are broader in scope than the federal program or external to the State UST program approval requirements. Therefore, these provisions are not part of the approved program, and are not incorporated by reference herein:
(A) Kentucky Revised Statutes (KRS) Chapter 224:
(1) KRS 224.60-110 is external insofar as it contains the Kentucky General Assembly's legislative intent with respect to the regulation of petroleum underground storage tanks.
(2) KRS 224.60-130 is broader in scope insofar as it relates to the administration of the petroleum storage tank environmental assurance fund.
(3) KRS 224.60-135(3) is external insofar as it relates to the obligation of KDEP to notify the UST owner or operator prior to initiating or contracting for corrective action.
(4) KRS 224.60-135(5) is broader in scope insofar as it relates to the authority of the State Fire Marshal to promulgate regulations requiring persons who install, repair, close or remove USTs to demonstrate financial assurance.
(5) KRS 224.60-137(1), (2), and (4) are external insofar as they relate to contracting with the University of Kentucky for the purpose of updating standards for corrective action and for the Cabinet to develop an inventory of facilities eligible for reimbursement.
(6) KRS 224.60-140 is broader in scope insofar as it relates to the creation and administration of a petroleum storage tank environmental assurance fund.
(7) KRS 224.60-142 is broader in scope insofar as it relates to UST registration requirements applicable to participation in the petroleum storage tank environmental assurance fund.
(8) KRS 224.60-145 is broader in scope insofar as it relates to the establishment of an environmental assurance fee and deposit fee, and insofar as it relates to administration of accounts in the petroleum storage tank environmental assurance fund.
(9) KRS 224.60-150 is broader in scope insofar as it relates to the authority to levy and collect a fee from owners or operators of USTs for the purpose of funding the administration of the UST Program.
(10) KRS 224.60-160 is external insofar as it relates to the severability of any provision of the statute.
(B) 401 Kentucky Administrative Regulations (KAR) Chapter 42:
(1) 401 KAR 42:020
(i) Section 2(1)(b) is external insofar as it relates to the attendance of a KDEP representative during installation.
(ii) Sections 2(2)-(6) are broader in scope insofar as they relate to UST registration requirements.
(iii) Section 2(7)(c) is broader in scope insofar as it relates to the submittal of an amended UST Registration Form for UST sale.
(iv) Sections 2(8)-(9) are broader in scope insofar as they relate to registration requirements and the collection of annual fees.
(v) Section 3(1) is broader in scope insofar as it relates to the submittal of an amended UST Registration Form for temporary closure.
(vi) Section 7 is broader in scope insofar as it places requirements on shear valves, components that are not UST system components.
(vii) Sections 11(4) and (9) are broader in scope insofar as they place certification and qualification requirements directly on corrosion prevention, protection, and repair contractors.
(viii) Section 13(2) is broader in scope insofar as it requires repair contractors to be certified by the State Fire Marshal.
(ix) Sections 15(6) and (7) are broader in scope insofar as they place qualification requirements directly on system equipment testers to validate equipment test results.
(x) Section 22 is external insofar as it relates to the authority of KDEP to extend compliance deadlines.
(2) 401 KAR 42:060
(i) Section 2 is external insofar as it relates to the authority of the Environmental Response Team during environmental emergencies.
(ii) Section 7 is external insofar as it relates to classification of UST facilities following closure or a release.
(iii) Section 8 is external insofar as it relates to the authority of KDEP to issue a no further action letter.
(iv) Section 9 is external insofar as it relates to the authority of KDEP to extend compliance deadlines.
(3) 401 KAR 42:250 is broader in scope insofar as it establishes eligibility requirements and procedures for the petroleum storage tank environmental assurance fund.
(4) 401 KAR 42:330 is broader in scope insofar as it establishes the eligibility requirements and rates for reimbursement from the Small Owners Tank Removal Account.
(2) Statement of legal authority. The Attorney General's statement, signed by the General Counsel for the Kentucky Energy and Environment Cabinet on September 23, 2019, though not incorporated by reference, is referenced as part of the approved underground storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(3) Demonstration of procedures for adequate enforcement. The “Demonstration of Adequate Enforcement Procedures” submitted as part of the original application on October 7, 2019, though not incorporated by reference, is referenced as part of the approved underground storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(4) Program description. The program description and any other material submitted as part of the original application on October 7, 2019, though not incorporated by reference, are referenced as part of the approved underground storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(5) Memorandum of Agreement. The Memorandum of Agreement between EPA Region 4 and the Energy and Environment Cabinet, Kentucky Department for Environmental Protection, signed by the EPA Regional Administrator on August 18, 2020, though not incorporated by reference, is referenced as part of the approved underground storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.
[87 FR 3682, Jan. 25, 2022]