2017 environmental law cle seminar handbook · 2018. 3. 31. · environmental law institute, a...

2017 Environmental Law

CLE Seminar

Lexington, KY

Sponsored by the

Kentucky Bar Association

Environment, Energy &

Natural Resources Law Section

Kentucky Bar Association

514 West Main Street

Frankfort, Kentucky 40601

502.564.3795

www.kybar.org

The Kentucky Bar Association Environment, Energy &

Natural Resources Law Section presents:

2017 Environmental Law

CLE Seminar

This program has been approved in Kentucky for 6.50 CLE credits including

1.00 Ethics credit

Compiled and Edited by: The Kentucky Bar Association

Office of Continuing Legal Education for

Kentucky Bar Association Environment, Energy & Natural Resources Law Section

© 2017 All Rights Reserved Published and Printed by:

The Kentucky Bar Association, April 2017. Editor’s Note: The materials included in this 2017 Environmental Law CLE seminar book are intended to provide current and accurate information about the subject matter covered. The program materials were compiled for you by volunteer authors. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of the Kentucky Bar Association disclaim liability therefor. Attorneys using these materials or information otherwise conveyed during the program, in dealing with a specific legal matter, have a duty to research original and current sources of authority.

2017 Environmental Law CLE Seminar

Table of Contents

Agenda............................................................................................................................. i

Speakers ........................................................................................................................ iii

2017 Legislative Session Bills Impacting the Department for Natural Resources ............ 1

Department for Environmental Protection Update ......................................................... 33

Update from the Public Service Commission ................................................................. 39

Environment & Energy Policy in the Trump Administration & 115th Congress ............... 43

Clean Water Act and Beyond: Unfinished Business Pt. 1 .............................................. 49

Clean Water Act and Beyond: Unfinished Business Pt. 2 .............................................. 51

Clean Water Issues for Kentucky Lawyers: Citizens and Lawyers, Yesterday, Today & Tomorrow ........................................................................................................ 61

Sierra Club v. EPA ........................................................................................................ 85

Treatment of Startup, Shutdown and Malfunction Events .............................................. 89

TENORM Issues in the Oil and Gas Industry: House Bill 563 and Beyond .................... 99

Technologically Enhanced Naturally Occurring Radioactive Materials (TENORM) Associated with Oil and Gas Activities Report to the Kentucky Legislative Research Commission pursuant to 2016RS HB 563 ................................................... 113

Radioactive Waste Disposal in Estill County, Kentucky ............................................... 149

"....And Here's the Top Ten!" Ethics and Malpractice Avoidance Guide ....................... 155

Program Sponsors ...................................................................................................... 163

i

2017 Environmental Law CLE Seminar April 21, 2017

Lexington, Kentucky

8:15-8:50 a.m. Registration & Continental Breakfast 8:50-9:00 a.m. Welcome & Introduction Section Chair Sarah Payne-Jarboe English, Lucas, Priest & Owsley, LLP 9:00-10:00 a.m. The Federal-State Relationship in Environmental Protection John Cruden, President-Elect American College of Environmental Lawyers Former Assistant Attorney General Environment and Natural Resources Division United States Department of Justice 10:00-10:15 a.m. Break 10:15-11:45 a.m. Update from Frankfort (1.50 CLE credits) Department for Natural Resources Commissioner Allen Luttrell Department for Environmental Protection Commissioner Aaron Keatley Deputy Commissioner Anthony R. Hatton Sean Alteri, Director, Kentucky Division for Air Quality Peter Goodmann, Director, Division of Waste Management Public Service Commission J. E. B. Pinney, Deputy General Counsel 11:45 a.m.-1:00 p.m. Lunch & Keynote Speaker Environment & Energy Policy in the Trump Administration & 115th Congress (1.00 CLE credit) Amanda J. Waters, General Counsel National Association of Clean Water Agencies

ii

1:00-2:00 p.m. The Clean Water Act . . . in Mid-Life Crisis? (1.00 CLE credit) Dr. W. Blaine Early III Stites & Harbison, PLLC W. H. "Hank" Graddy IV W. H. Graddy & Associates LaJuana S. Wilcher English, Lucas, Priest & Owsley, LLP 2:00-3:00 p.m. Hot Topics in Air (1.00 CLE credit) Phillip Brooks, Director Air Enforcement Division at USEPA Carolyn M. Brown Dinsmore & Shohl, LLP Jacqueline A. Quarles, Deputy Director Office of General Counsel Department for Environmental Protection 3:00-3:15 p.m. Break 3:15-4:15 p.m. Issues in Management of Oil and Gas-Related

Technologically-Enhanced Radioactive Materials in Kentucky

(1.00 CLE credit) William G. Barr III BlackRidge Resource Partners Mary Varson Cromer Appalachian Citizens' Law Center Tom FitzGerald Kentucky Resources Council, Inc. 4:15-5:15 p.m. "...And Here's the Top Ten!" Ethics and Malpractice

Avoidance Guide (1.00 Ethics credit) Dustin E. Meek Tachau Meek, PLC

iii

SPEAKERS

John Cruden 418 North Union Street Alexandria, VA 22314 John Cruden is President-Elect of the American College of Environmental Lawyers. He was confirmed by the U.S. Senate on December 16, 2014, as the Assistant Attorney General for the Environment and Natural Resources Division (ENRD) of the U.S. Department of Justice, and continued in that position until January, 2017. Before becoming Assistant Attorney General, Mr. Cruden served as President of the Environmental Law Institute, a nationally-recognized bipartisan organization known for its work in educating, publishing, and researching environment, energy, and natural resource issues. From 1991-1995, Mr. Cruden was Chief of the Environmental Enforcement Section of ENRD and from 1995-2011 a career Deputy Assistant Attorney General for ENRD. Before joining the Department of Justice, he was Chief Legislative Counsel of the Army. After graduating West Point, Mr. Cruden served in Airborne, Ranger, and Special Forces units in Germany and Vietnam. After law school, he attended the Army's Judge Advocate General's year-long Graduate Course, where he was named outstanding graduate, and simultaneously obtained his Master's degree from the University of Virginia in Government and Foreign Affairs. His subsequent military assignments include: criminal prosecutor in Germany and civil trial lawyer in the Pentagon; Chief of Litigation Branch, Europe; General Counsel, Defense Nuclear Agency; Staff Judge Advocate in Germany; and Director of Administrative and Civil Law, Judge Advocate General's School, Charlottesville, Virginia. Mr. Cruden has on three occasions received the Presidential Rank Award from three different Presidents. He has also received the Department of Justice's Muskie-Chaffee Award, the Federal Bar Association's Younger Award, and the American Bar Association's Mary C. Lawton Award for Outstanding Government Service. Mr. Cruden's military awards include the Bronze Star, Legion of Merit, Defense Meritorious Service Medal, Air Medal with Oak Leaf Clusters, and the Vietnamese Cross of Gallantry with Silver Star. He was the first government attorney to be elected and serve as the President of the District of Columbia Bar, the second largest bar in the nation. He was also the first government attorney to be selected as Chairman of the American Bar Association's Section of Environment, Energy and Natural Resources. Mr. Cruden is a graduate of the United States Military Academy, University of Santa Clara (summa cum laude, 2006 Alumni Special Achievement Award), and the University of Virginia.

iv

Commissioner Allen Luttrell Department for Natural Resources

Kentucky Energy and Environment Cabinet 300 Sower Boulevard Frankfort, KY 40601

Allen Luttrell is Commissioner of the Department for Natural Resources in the Kentucky Energy and Environment Cabinet. He has over thirty-five years of combined experience in both underground and surface mining, many of those years in management roles in the Cabinet. Mr. Luttrell has degrees in both business and mining technology from Southeast Community College. He has served as both the Director of Mine Permits and the Deputy Commissioner of the Department of Natural Resources in past years. Commissioner Aaron Keatley Department for Environmental Protection Kentucky Energy and Environment Cabinet 300 Sower Boulevard Frankfort, KY 40601 Aaron Keatley was appointed Commissioner of the Department for Environmental Protection in the Kentucky Energy and Environment Cabinet in June 2016. He was previously appointed Deputy Commissioner of the Department for Environmental Protection in 2011. Prior to his appointment, Commissioner Keatley served as the acting director of the Division of Enforcement, manager of the Division of Water's Enforcement Branch, policy analyst for the Department's commissioner, and developed policies and regulations for the Division of Waste Management. He received a B.S. in Wildlife and Fisheries Biology from Michigan State University and a Masters of Public Administration, Environmental Policy from the University of Kentucky. Commissioner Keatley is a career employee at the Kentucky Department for Environmental Protection, serving the Commonwealth since 1993.

Deputy Commissioner Anthony R. Hatton, P.G. Department for Environmental Protection

Kentucky Energy and Environment Cabinet 300 Sower Boulevard Frankfort, KY 40601

Tony Hatton was appointed Deputy Commissioner of the Department for Environmental Protection in 2016. He previously served as the Assistant Director for the Kentucky Division of Waste Management from 2002 and became its director in 2008. He began working from the DWM in January 1999, focusing on the oversight of cleanup efforts at Fort Campbell, the Naval Ordnance Station in Louisville and the Lexington Bluegrass Army Depot. He holds a B.S. in Geology from Morehead State University, a Master's of Science Degree in Geology from Eastern Kentucky University and is a registered professional engineer. Prior to his career with the DWM, Deputy Commissioner Hatton worked in the private sector as a consulting geologist from 1988-1998.

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Sean Alteri, Director Division of Air Quality Department for Environmental Protection Kentucky Energy and Environment Cabinet 300 Sower Boulevard Frankfort, KY 40601 Sean Alteri serves as Director for the Division of Air Quality in the Kentucky Energy and Environment Cabinet's Department for Environmental Protection. Mr. Alteri received a B.S. in Chemical Engineering from the University of Kentucky in 1997. He began work in the Division in 1997 as a permit writer, responsible for development and issuance of operating permits for metallurgical related operations in the Commonwealth. He subsequently transferred to the emissions inventory section where he calculated air emissions across the Commonwealth and assessed billing for those emissions. From there, Mr. Alteri was promoted to regulation development supervisor for the Division, where he was responsible for regulatory development to comply with state and federal requirements, until he was promoted to Technical Services Branch Manager. During this time, he was also responsible for the oversight of the air quality monitoring network across the Commonwealth. In 2008, he was promoted to Assistant Director. On September 16, 2013, Mr. Alteri was detailed as acting Director and officially appointed to Director on February 16, 2014.

Peter T. Goodmann, Director Division of Water

Department for Environmental Protection Kentucky Energy and Environment Cabinet

300 Sower Boulevard Frankfort, KY 40601

Peter Goodmann serves as the Director of the Kentucky Division of Water. Mr. Goodmann has worked for Department for Environmental Protection since 1993, including thirteen years as a manager in the Division of Water prior to being appointed assistant director in 2008. In February 2014, Mr. Goodmann was appointed the Director of the Division of Water. He is responsible for overseeing Kentucky’s water regulatory programs, including the Clean Water Act and Safe Drinking Water Act programs and other programs, including the Dam Safety program, Floodplain permitting, NFIP, and the Risk Map program, the Water Resources Management programs, including drought management, as well as the Kentucky Agriculture Water Quality Act. Director Goodmann serves as a Commissioner on the Ohio River Sanitation Commission (ORSANCO). He also serves on the boards for the Association of Clean Water Administrators (ACWA), and the Ground Water Protection Council (GWPC) and on FEMA’s National Dam Safety Review Board. Director Goodmann is also a member of the Kentucky Agriculture Water Quality Board. He earned his B.S. in Geology from the University of Iowa (1984), his M.A. in Geology from Temple University (1986), and conducted other post-graduate work at the University of Kentucky, where he was a Chevron Fellow.

vi

J.E.B. Pinney Deputy General Counsel Kentucky Public Service Commission 211 Sower Boulevard Post Office Box 615 Frankfort, KY 40602 J.E.B. Pinney serves as Deputy General Counsel for the Kentucky Public Service Commission in Frankfort. He received his B.A. from Georgetown University and his J.D. from the University of Kentucky College of Law. Mr. Pinney is a member of the Kentucky Bar Association.

Amanda J. Waters National Association of Clean Water Agencies

1816 Jefferson Place NW Washington, D.C.

Amanda Waters is General Counsel for the National Association of Clean Water Agencies (NACWA). Founded in 1970, NACWA is the nation's recognized leader in regulatory, legislative and legal advocacy on the full spectrum of clean water issues. NACWA represents public clean water agencies of all sizes nationwide to help build a strong and sustainable clean water future. Ms. Waters manages NACWA's litigation portfolio, implements the Association's legal advocacy initiatives and oversees strategic communications. She was previously General Counsel & Director of Public Advocacy & Outreach for the Water Environment Federation, as well as Deputy Executive Director & General Counsel for Sanitation District No. 1 of Northern Kentucky. She has also served as Deputy General Counsel for the Commonwealth of Kentucky Environmental & Public Protection Cabinet and as a staff attorney with the West Virginia Department of Environmental Protection. Ms. Waters received her B.S. in Biology from Eastern Kentucky University and her J.D. from Pace University School of Law. Dr. W. Blaine Early III Stites & Harbison, PLLC 250 West Main Street, Suite 2300 Lexington, KY 40507-1758 Dr. Early is a member of Stites & Harbison PLLC in Lexington, where he practices in the Environmental, Natural Resources, and Energy Service Group. He practices environmental law with regard to ongoing compliance and permitting, transactions, and related administrative and civil litigation on issues that include the Clean Water Act, Safe Drinking Water Act, CERCLA, RCRA, mining and reclamation, and agriculture. He is former Chair of the American Bar Association's Water Quality and Wetlands Committee of the Section of Environment, Energy & Resources and is a past Chair of the Kentucky Bar Association's Environment, Energy & Resources Law Section. Prior to joining Stites & Harbison, Dr. Early was a judicial law clerk to Hon. Jennifer B. Coffman, United States District Judge for the Eastern and Western Districts of Kentucky. Prior to practicing law, Dr. Early was a professor of biology and Chair of the biology department at Cumberland College in Williamsburg, Kentucky. He earned a B.A. degree from DePauw University, a Ph.D. in biology from the University of Louisville, and a J.D. from the University of Kentucky College of Law.

vii

W. H. "Hank" Graddy IV W. H. Graddy & Associates

137 North Main Street Versailles, KY 40383

Hank Graddy is a 1969 graduate of Washington & Lee University (Bachelor of Arts) and a 1975 graduate of the University of Kentucky School of Law (Juris Doctor). He practices law in Versailles, Kentucky. His primary areas of practice include land use planning and zoning proceedings, and environmental, civil, administrative and appellate litigation. He is admitted to practice in Kentucky, the Eastern and Western Federal District Courts in Kentucky, the Sixth Circuit Court of Appeals and the United States Supreme Court. Mr. Graddy has presented CLE programs on environmental law and land use law at the state and national levels. He has served previously on the Kentucky Agriculture Water Quality Authority for three terms from 1994, the Kentucky Environmental Quality Commission, and numerous special commissions authorized by the Kentucky General Assembly. Mr. Graddy is a member of the Kentucky Bar Association. LaJuana S. Wilcher English, Lucas, Priest & Owsley LLP 1101 College Street, Post Office Box 770 Bowling Green, KY 42102-0770 LaJuana Wilcher is a partner with English Lucas Priest & Owlsey, LLP in Bowling Green. Her wealth of experience offers clients throughout the country unique perspectives on complex environmental compliance, permitting, strategic and enforcement matters. She was Assistant Administrator for Water for the USEPA in Washington, D.C. (the top EPA Office of Water official in the nation, and the only woman ever confirmed in that position) from 1989-1993. In that position, she was involved in the spectrum of Clean Water Act and Safe Drinking Water Act regulatory, legislative, policy and enforcement matters, including representing EPA in the $1.1 billion Exxon Valdez Oil Spill settlement negotiations. From 1993-2002, Ms. Wilcher was an environmental partner in large (500-700 attorney) global law firms in D.C. From 2003-2006, Ms. Wilcher was Secretary of Kentucky’s Environmental and Public Protection Cabinet. She returned to ELPO in her home town, Bowling Green, in 2006. She has taught environmental law and policy at Vermont and Vanderbilt University Law Schools, and speaks frequently on environmental issues nationwide. Ms. Wilcher received her B.S., magna cum laude, from Western Kentucky University in 1977, and her J.D. from the Salmon P. Chase College of Law at Northern Kentucky University in 1980. She is a member of the American, Kentucky, D.C., and Bowling Green-Warren County Bar Associations. Ms. Wilcher owns and operates Scuffle Hill Farm in Alvaton, KY, and has high hopes for Prado’s Spark (2014), currently in training at Churchill Downs.

viii

Phillip Brooks, Director Air Enforcement Division

U.S. Environmental Protection Agency 1200 Pennsylvania Avenue NW

Washington, D.C. 20460 Phillip Brooks is Director of the Air Enforcement Division (AED), the organization within the EPA's Office of Enforcement and Compliance Assurance responsible for oversight of the national enforcement of the Clean Air Act (CAA). The AED manages all of the National Enforcement Initiatives under the CAA, the national conventional and renewable fuels program enforcement, the national vehicle and engine enforcement program, and the enforcement of the marine fuel and emission control programs under the CAA and the Act to Prevent Pollution from Ships. Under Mr. Brooks' leadership, the AED has been at the forefront of CAA Next Gen efforts through the deployment of advanced monitoring technologies in compliance investigations. Prior to joining EPA in 2010, Mr. Brooks spent twenty-three years at the Department of Justice in the Environment and Natural Resources Division where he litigated some of the Department's highest profile environmental cases. Mr. Brooks has tried cases involving the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, and CERCLA, among others. For the last ten years of his tenure at the Department of Justice, as Counsel to the Chief, Mr. Brooks led the Power Plant Initiative, the largest environmental enforcement initiative ever undertaken by DOJ. He received his B.A. from the University of Kentucky, and his J.D. from the University of Kentucky College of Law. Mr. Brooks is a member of the State Bar of Virginia. Carolyn M. Brown Dinsmore & Shohl, LLP 250 West Main Street, Suite 1400 Lexington, KY 40507 Carolyn Brown is a partner at Dinsmore & Shohl, LLP in Lexington, where she chairs the firm's Environmental Practice Group. Her practice focuses on all areas of environmental law and includes counseling on regulatory requirements, permitting, and transactional issues as well as environmental litigation. Ms. Brown received her B.S. from the University of Kentucky in 1979, and her J.D. from the University of Kentucky College of Law in 1982, where she was a member of the Kentucky Law Journal, Moot Court Board, and Order of the Coif. She is a Fellow of the American College of Environmental Lawyers and Kentucky Bar Association Life Fellow. Ms. Brown is a member of the Kentucky Bar Association (Environment, Energy & Resources Law Section), the Texas Bar Association, and the American Bar Association (Advisory Panel, Section of Environment, Energy & Resources). She also serves on the Board of Directors for the Kentucky Chamber of Commerce and as Chair of the Chamber's Energy & Environment Council, and is a member of the Program Planning Committee for the American College of Environmental Lawyers.

ix

Jackie A. Quarles, Deputy Director Office of General Counsel

Department for Environmental Protection Kentucky Energy and Environment Cabinet

300 Sower Boulevard Frankfort, KY 40601

Jackie Quarles was appointed Deputy Director of the Office of General Counsel, with primary responsibility for legal issues in the Department of Environmental Protection, in 2016. She previously served as a manager of Litigation Section III for the Office of General Counsel in the Kentucky Energy and Environment Cabinet. From 2007-2013, Ms. Quarles worked as an attorney for the Division of Air Quality. She received her B.A. from Vanderbilt University in 2001, and her J.D. from the University of Kentucky College of Law in 2004. Ms. Quarles is a member of the Kentucky Bar Association. William G. Barr III BlackRidge Resource Partners 301 East Main Street, Suite 700 Lexington, KY 40507 Bill Barr is co-founder and has served as Managing Partner of BlackRidge Resource Partners LLC since its formation in April 2011. Mr. Barr has more than forty years of experience in the corporate and legal sectors of the oil and gas industry. Prior to co-founding BlackRidge, he joined NGAS Resources, Inc. in 1993, serving as Vice President of NGAS Production, Inc., until his appointment as its CEO in 2005. Mr. Barr also served as NGAS Resources' Vice President from 2004 until his appointment as an Executive Vice President in 2010. Prior to joining NGAS Production, Mr. Barr served in senior management positions in a major Illinois Basin independent exploration and production company and built a significant natural resource law practice. He currently serves as a member of the Board of Directors of the Independent Petroleum Association of America and a Governing Member Trustee for the Energy & Mineral Law Foundation. He is a past president of the Kentucky Oil and Gas Association and serves as a member of its Board of Directors and as Chairman of its Governmental Affairs Committee. Mr. Barr holds a B.S degree from Brescia College and a J.D. from the University of Kentucky College of Law.

Mary Varson Cromer Appalachian Citizens' Law Center

317 Main Street Whitesburg, KY 41858

Mary Varson Cromer is an environmental attorney working for the Appalachian Citizens' Law Center in Whitesburg, Kentucky. Ms. Cromer joined the ACLC in 2008 and focuses on environmental justice issues. Prior to working for ACLC, she was an associate attorney at Southern Environmental Law Center in Charlottesville, Virginia. Ms. Cromer also clerked for U.S. District Judge Glen Conrad in the Western District of Virginia. She received her bachelor's degree from the University of Virginia and her J.D., magna cum laude, from Washington & Lee University School of Law, where she was a member of the Order of the Coif. Ms. Cromer is a member of the Virginia Bar Association and the Kentucky Bar Association and its Environment Energy & Natural Resources Law and Public Interest Law Sections.

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Tom FitzGerald, Director Kentucky Resources Council, Inc. Post Office Box 1070 Frankfort, KY 40602 Tom "Fitz" FitzGerald has been Director of the Kentucky Resources Council, Inc., since 1984. KRC is a non-profit environmental advocacy organization providing free legal, strategic and policy assistance to individuals, organizations and communities concerning environmental quality, resource extraction, energy, and utility issues. Mr. FitzGerald received his J.D., Order of the Coif, from the University of Kentucky College of Law in 1980 and was a Reginald Heber Smith Community Lawyer Fellow with the Appalachian Research and Defense Fund of Kentucky from 1980-1982. He is an alumni of Roger Williams College (now University) in Bristol, Rhode Island, with a B.A. in American Studies with distinction. Mr. FitzGerald has been an Adjunct Professor of Energy and Environmental Law at the Brandeis School of Law at the University of Louisville since 1986, and has published a number of articles. He received the Environmental Quality Commission Lifetime Achievement Award in 2002; the Henry R. Heyburn Public Service Award from the UK College of Law in 2003; the Kentucky Nature Preserves Commission Biological Diversity Award in 2003; the inaugural Professional Achievement Award from the UK College of Law Alumni Association in 2008; the 14th Heinz Award in the Environment Category in 2008; and the Brennan-Haly Award from the University of Louisville Department of Political Science in 2012. Mr. FitzGerald has been a fixture in the halls of the Kentucky General Assembly since 1978.

Dustin E. Meek

Tachau Meek, PLC 3600 National City Tower

101 South 5th Street Louisville, KY 40202

Dustin Meek is a member of Tachau Meek, PLC in Louisville, where the primary area of her practice involves the representation of national banks and their subsidiaries in various areas including lender disputes, trust and estate litigation, employment discrimination and non-compete claims, executive compensation and ERISA matters, and retail disputes. She received her B.A. from Transylvania University in 1988 and her J.D. from the University of Louisville Louis D. Brandeis School of Law in 1991. Ms. Meek serves on the Board of Directors of Lawyers Mutual Insurance Company of Kentucky, a professional liability insurer for many of Kentucky's small and medium-sized law firms. She is a past member of the Louis D. Brandeis American Inn of Court. Ms. Meek is a member of the Kentucky Bar Association and its Civil Litigation and Health Care Law Sections.

1

2017 LEGISLATIVE SESSION BILLS IMPACTING THE DEPARTMENT FOR NATURAL RESOURCES

Allen Luttrell, Commissioner Department for Natural Resources

I. HB 50

The bill amends KRS 13A.010 to redefine "last effective date" to include the new procedures established in the bill. The bill also directs the regulations compiler to create a list of administrative regulations indicating their last effective date, which does not include technical amendments. Ordinary administrative regulations with an effective date prior to July 1, 2012, will expire July 1, 2019. Administrative regulations with a last effective date after July 1, 2012, will expire seven years after their last effective date. The bill creates a new section of KRS 13A to set up a certification letter process for any agency that does not want its administrative regulations to expire and designates the certification letter format and filing requirements. The bill also directs the regulations compiler to publish each certification letter in the Administrative Register. Department Impacts: The Department for Natural Resources will be responsible for reviewing all of its administrative regulations for needed updates. Once the department has completed its review, a certification letter will be sent to the Regulation Compiler’s Office indicting whether the administrative regulation will be amended or remain in effect without amendment. The certification letter or an amendment to the administrative regulations will cause a new effective date. This review will occur every seven years.

II. HB 234

The bill amends KRS 350.055 to clarify that the boundaries of the permit area shall be indicated in the "Notice of Intention to Mine" rather than the mining site. KRS 350.060 was also amended in order to remove the requirement for areas overlying underground workings to be permitted. Department Impacts: The department will implement the changes to the permitting program once the bill takes effect and administrative regulations are amended to clear up inconsistencies with the new process.

III. HB 384

The bill amended KRS 351.090 and 351.140 to allow the commissioner of the Department for Natural Resources to replace up to three of the six required annual underground mine inspections with mine safety analysis visits and reduce the minimum number of annual full electrical inspections from two to one. Department Impacts: The department can implement these changes once the bill becomes effective. There will be no regulatory changes necessary.

http://www.lrc.ky.gov/record/17RS/HB50.htm

http://www.lrc.ky.gov/Statutes/statute.aspx?id=45146

http://www.lrc.ky.gov/Statutes/chapter.aspx?id=37084







2

IV. SB 248

The bill amends KRS 211.862 to amend the definition of naturally-occurring radioactive material (NORM) and adds the definition of technologically-enhanced naturally-occurring radioactive material (TENORM). The bill also exempts drill cuttings from wells from regulation as TENORM and clarifies the authority of the Cabinet for Health and Family Services to regulate TENORM. Department Impacts: The department is in the process of reviewing its administrative regulations as part of the Oil and Gas Workgroup. Once the workgroup comes to a decision the administrative regulation amendments will be filed with the Legislative Research Commission.

V. SB 249

This is the cabinet’s statutory cleanup bill. There were several statutes that were amended or repealed in order to remove outdated requirements or abolish boards and commissions that were no longer necessary. There will be regulatory cleanup related to the passage of the bill. Department Impacts: The department plans to amend several administrative regulations that will remove references to statutes that were repealed or boards and commissions that were repealed.

http://www.lrc.ky.gov/record/17RS/SB248.htm



UNOFFICIAL COPY 17 RS HB 50/GA

Page 1 of 9 HB005010.100 - 112 - XXXX GA

AN ACT relating to administrative regulations. 1

Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2

Section 1. KRS 13A.010 is amended to read as follows: 3

As used in this chapter, unless the context otherwise requires: 4

(1) "Administrative body" means each state board, bureau, cabinet, commission, 5

department, authority, officer, or other entity, except the General Assembly and the 6

Court of Justice, authorized by law to promulgate administrative regulations; 7

(2) "Administrative regulation" means each statement of general applicability 8

promulgated by an administrative body that implements, interprets, or prescribes 9

law or policy, or describes the organization, procedure, or practice requirements of 10

any administrative body. The term includes an existing administrative regulation, a 11

new administrative regulation, an emergency administrative regulation, an 12

administrative regulation in contemplation of a statute, and the amendment or repeal 13

of an existing administrative regulation, but does not include: 14

(a) Statements concerning only the internal management of an administrative 15

body and not affecting private rights or procedures available to the public; 16

(b) Declaratory rulings; 17

(c) Intradepartmental memoranda not in conflict with KRS 13A.130; 18

(d) Statements relating to acquisition of property for highway purposes and 19

statements relating to the construction or maintenance of highways; or 20

(e) Rules, regulations, and policies of the governing boards of institutions that 21

make up the postsecondary education system defined in KRS 164.001 22

pertaining to students attending or applicants to the institutions, to faculty and 23

staff of the respective institutions, or to the control and maintenance of land 24

and buildings occupied by the respective institutions; 25

(3) "Adopted" means that an administrative regulation has become effective in 26

accordance with the provisions of this chapter; 27

3


Page 2 of 9 HB005010.100 - 112 - XXXX GA

(4) "Authorizing signature" means the signature of the head of the administrative body 1

authorized by statute to promulgate administrative regulations; 2

(5) "Commission" means the Legislative Research Commission; 3

(6) "Effective" means that an administrative regulation has completed the legislative 4

subcommittee review established by KRS 13A.290, 13A.330, and 13A.331; 5

(7) "Federal mandate" means any federal constitutional, legislative, or executive law or 6

order that requires or permits any administrative body to engage in regulatory 7

activities that impose compliance standards, reporting requirements, recordkeeping, 8

or similar responsibilities upon entities in the Commonwealth; 9

(8) "Federal mandate comparison" means a written statement containing the 10

information required by KRS 13A.245; 11

(9) "Filed" or "promulgated" means that an administrative regulation, or other 12

document required to be filed by this chapter, has been submitted to the 13

Commission in accordance with this chapter; 14

(10) "Last effective date" means the latter of: 15

(a) The most recent date an ordinary administrative regulation became 16

effective, without including the date a technical amendment was made 17

pursuant to subsection (10) of Section 2 of this Act or KRS 13A.2255(2) or 18

13A.312; or 19

(b) The date a certification letter was filed with the regulations compiler for 20

that administrative regulation pursuant to subsection (4) of Section 5 of this 21

Act, if the letter stated that the administrative regulation shall remain in 22

effect without amendment. 23

(11) "Local government" means and includes a city, county, urban-county, charter 24

county, consolidated local government, special district, or a quasi-governmental 25

body authorized by the Kentucky Revised Statutes or a local ordinance; 26

(12)[(11)] "Proposed administrative regulation" means an administrative regulation that: 27

4


Page 3 of 9 HB005010.100 - 112 - XXXX GA

(a) Has been filed by an administrative body; and 1

(b) Has not become effective or been withdrawn; 2

(13)[(12)] "Regulatory impact analysis" means a written statement containing the 3

provisions required by KRS 13A.240; 4

(14)[(13)] "Small business" means a business entity, including its affiliates, that: 5

(a) Is independently owned and operated; and 6

(b) 1. Employs fewer than one hundred fifty (150) full-time employees or their 7

equivalent; or 8

2. Has gross annual sales of less than six million dollars ($6,000,000); 9

(15)[(14)] "Statement of consideration" means the document required by KRS 13A.280 10

in which the administrative body summarizes the comments received, its responses 11

to those comments, and the action taken, if any, as a result of those comments and 12

responses; 13

(16)[(15)] "Subcommittee" means the Administrative Regulation Review Subcommittee, 14

any other subcommittee of the Legislative Research Commission, an interim joint 15

committee, or a House and Senate standing committee; 16

(17)[(16)] "Tiering" means the tailoring of regulatory requirements to fit the particular 17

circumstances surrounding regulated entities; and 18

(18)[(17)] "Written comments" means comments submitted to the administrative body's 19

contact person identified pursuant to KRS 13A.220(6)(d) via hand delivery, United 20

States mail, e-mail, or facsimile and may include but is not limited to comments 21

submitted internally from within the promulgating administrative body or from 22

another administrative body. 23


The director of the Legislative Research Commission shall appoint an administrative 25

regulations compiler who shall: 26

(1) Receive administrative regulations, and other documents required to be filed by the 27

5


Page 4 of 9 HB005010.100 - 112 - XXXX GA

provisions of this chapter, tendered for filing; 1

(2) Stamp administrative regulations tendered for filing with the time and date of 2

receipt; 3

(3) Provide administrative and support services to the subcommittee; 4

(4) Maintain a file of administrative regulations and other documents required to be 5

filed by this chapter, for public inspection, with suitable indexes; 6

(5) Maintain a file of ineffective administrative regulations; 7

(6) Maintain a file of material incorporated by reference, including superseded or 8

ineffective material incorporated by reference; 9

(7) Prepare the Kentucky Administrative Regulations Service; 10

(8) Upon request, certify copies of administrative regulations and other documents that 11

have been filed with the regulations compiler; 12

(9) Correct errors that do not change the substance of an administrative regulation, 13

including, but not limited to, typographical errors, errors in format, and grammatical 14

errors; 15

(10) Change items in an administrative regulation in response to a specific written 16

request for a technical amendment submitted by the administrative body if the 17

regulations compiler determines that the requested changes do not affect the 18

substance of the administrative regulation. Examples of technical amendments 19

include the address of the administrative body, citations to statutes or other 20

administrative regulations if a format change within that statute or administrative 21

regulation has changed the numbering or lettering of parts, or other changes in 22

accordance with KRS 13A.312; 23

(11) Refuse to accept for filing administrative regulations, and other documents required 24

to be filed by this chapter, that do not conform to the drafting, formatting, or filing 25

requirements established by the provisions of KRS 13A.190(4) to (10), 13A.220, 26

13A.222(1), (2), and (3), 13A.230, and 13A.280, and notify the administrative body 27

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Page 5 of 9 HB005010.100 - 112 - XXXX GA

in writing of the reasons for refusing to accept an administrative regulation for 1

filing; 2

(12) Maintain a list of all administrative regulation numbers and the corresponding 3

last effective date, based on the information included in the history line of each 4

administrative regulation; and 5

(13)[(12)] Perform other duties required by the Commission or by a subcommittee. 6


(1) Except as provided in Sections 4 and 5 of this Act, an administrative regulation, 8

once adopted, cannot be withdrawn but shall be repealed if it is desired that it no 9

longer be effective. 10

(2) Except as provided in Sections 4 and 5 of this Act, an administrative regulation, 11

once adopted, cannot be suspended but shall be repealed if it is desired to suspend 12

its effect. 13

(3) (a) An administrative regulation shall be repealed only by the promulgation of an 14

administrative regulation that: 15

1. Is titled "Repeal of (state number of administrative regulation to be 16

repealed)"; 17

2. Contains the reasons for repeal in the "NECESSITY, FUNCTION, AND 18

CONFORMITY" paragraph; 19

3. Includes in the body of the administrative regulation, a citation to the 20

number and title of the administrative regulation or regulations being 21

repealed; and 22

4. Meets the filing and formatting requirements of KRS 13A.220. 23

(b) 1. Except as provided in subparagraph 2. of this paragraph, on the effective 24

date of an administrative regulation that repeals an administrative 25

regulation, determined in accordance with KRS 13A.330 or 13A.331, 26

the regulations compiler shall delete the repealed administrative 27

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Page 6 of 9 HB005010.100 - 112 - XXXX GA

regulation and the repealing administrative regulation from the 1

Kentucky Administrative Regulations Service. 2

2. If the repealing administrative regulation specifies an effective date that 3

is after the administrative regulation would become effective pursuant to 4

KRS 13A.330 or 13A.331, the specified effective date shall be 5

considered the effective date of the repealing administrative regulation. 6

On the specified effective date, the regulations compiler shall delete the 7

repealed administrative regulation and the repealing administrative 8

regulation from the Kentucky Administrative Regulations Service. 9

(c) An administrative body may repeal more than one (1) administrative 10

regulation in an administrative regulation promulgated pursuant to paragraph 11

(a) of this subsection if the administrative regulations being repealed are 12

contained in the same chapter of the Kentucky Administrative Regulations 13

Service. 14

(4) (a) An ordinary administrative regulation may be withdrawn by the promulgating 15

administrative body at any time prior to its adoption. 16

(b) An ordinary administrative regulation that has been found deficient may be 17

withdrawn by the promulgating administrative body at any time prior to 18

receipt by the regulations compiler of the determination of the Governor made 19

pursuant to KRS 13A.330 or 13A.331 or may be withdrawn by the Governor. 20

(c) If an ordinary administrative regulation is withdrawn, the administrative body 21

or the Governor shall inform the regulations compiler of the reasons for 22

withdrawal in writing. 23

(5) Once an ordinary administrative regulation is withdrawn, it shall not be reinstated, 24

except by repromulgation as a totally new matter. 25

SECTION 4. A NEW SECTION OF KRS CHAPTER 13A IS CREATED TO 26

READ AS FOLLOWS: 27

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Page 7 of 9 HB005010.100 - 112 - XXXX GA

(1) An ordinary administrative regulation with a last effective date on or after July 1, 1

2012, shall expire seven (7) years after its last effective date, except as provided by 2

the certification process in Section 5 of this Act. 3

(2) An ordinary administrative regulation with a last effective date before July 1, 4

2012 shall expire on July 1, 2019, except as provided by the certification process 5

in Section 5 of this Act. 6

(3) For all administrative regulations that expire under this section or Section 5 of 7

this Act, the regulations compiler shall: 8

(a) Delete them from the Kentucky Administrative Regulations Service; 9

(b) Add them to the list of ineffective administrative regulations; and 10

(c) Beginning on January 1, 2020, and at least once every six (6) months 11

thereafter, publish a list of administrative regulations that have expired 12

since the most recent previous list was published under this paragraph. 13

(4) Within three (3) months of the effective date of this Act, and at least once every 14

six (6) months thereafter, the regulations compiler shall publish a list of existing 15

administrative regulations and their corresponding last effective dates. 16

SECTION 5. A NEW SECTION OF KRS CHAPTER 13A IS CREATED TO 17

READ AS FOLLOWS: 18

(1) If an administrative body does not want an administrative regulation to expire 19

under Section 4 of this Act, the administrative body shall: 20

(a) Review the administrative regulation in its entirety for compliance with the 21

requirements of KRS Chapter 13A and current law governing the subject 22

matter of the administrative regulation; and 23

(b) Prior to the expiration date, file a certification letter with the regulations 24

compiler stating whether the administrative regulation shall be amended or 25

remain in effect without amendment. 26

(2) The certification letter shall be on the administrative body's official letterhead, in 27

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Page 8 of 9 HB005010.100 - 112 - XXXX GA

the format prescribed by the regulations compiler, and include the following 1

information: 2

(a) The name of the administrative body; 3

(b) The number of the administrative regulation; 4

(c) The title of the administrative regulation; 5

(d) A statement that: 6

1. The administrative body shall be amending the administrative 7

regulation; or 8

2. The administrative regulation shall remain in effect without 9

amendment; and 10

(e) A brief statement in support of the decision. 11

(3) (a) If the certification letter was filed pursuant to subsection (1)(b) of this 12

section, stating that the administrative regulation shall be amended, the 13

administrative body shall file an amendment to the administrative 14

regulation in accordance with KRS Chapter 13A within eighteen (18) 15

months of the date the certification letter was filed. 16

(b) If the amendment was filed in accordance with paragraph (a) of this 17

subsection: 18

1. The administrative regulation shall not expire if it is continuing 19

through the administrative regulations process; or 20

2. The administrative regulation shall expire on the date the amendment 21

is withdrawn or otherwise ceases going through the administrative 22

regulations process. 23

(c) Once the amendment is effective, the regulations compiler shall update the 24

last effective date for that administrative regulation to reflect the 25

amendment's effective date. 26

(4) If the certification letter was filed pursuant to subsection (1)(b) of this section, 27

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Page 9 of 9 HB005010.100 - 112 - XXXX GA

stating that the administrative regulation shall remain in effect without 1

amendment, the regulations compiler shall: 2

(a) Update the administrative regulation's history line to state that a 3

certification letter was received; and 4

(b) Change the last effective date of the administrative regulation to the date 5

the certification letter was received. 6

(5) If filed by the deadline established in KRS 13A.050(3), the regulations compiler 7

shall publish in the Administrative Register of Kentucky each certification letter 8

received: 9

(a) In summary format; or 10

(b) In its entirety. 11

11


Page 1 of 10 HB023410.100 - 1025 - XXXX GA

AN ACT relating to coal mining. 1


Section 1. KRS 350.055 is amended to read as follows: 3

(1) An applicant for a permit required by KRS 350.060 shall publish public notice of 4

his filing of an application for that permit. The publication shall be made by 5

advertisement in a newspaper of largest bona fide circulation, according to the 6

definition in KRS 424.110 to 424.120, in the county wherein the proposed mining 7

site is located. 8

(2) The applicant shall publish the notice of intention to mine in the newspaper 9

identified in subsection (1) at least once a week for four (4) consecutive weeks 10

beginning at the time of submission of an application for a surface coal mining 11

operation permit, pursuant to regulations promulgated by the cabinet. 12

(3) The public notice of the filing of an application shall be entitled "Notice of Intention 13

to Mine" and shall be in a manner and form prescribed by the cabinet and shall 14

include, though not be limited to, the following: 15

(a) The name and address of the applicant; 16

(b) The location, ownership, and boundaries of the proposed permit area[mining 17

site]. 18

(4) A copy of the newspaper advertisement of the applicant's "Notice of Intention to 19

Mine" shall be filed with the cabinet and made a part of the complete application 20

within a reasonable time after the last date of publication. 21

(5) The cabinet shall notify various local government bodies, planning agencies, and 22

sewage and water treatment authorities and water companies in the locality of the 23

proposed operation notifying them of the applicant's intention to mine the land area 24

as set forth in the notice of intention to mine, and identifying the permit application 25

number assigned by the cabinet and where a copy of the permit application may be 26

inspected. The secretary shall promulgate regulations specifying the manner in 27

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Page 2 of 10 HB023410.100 - 1025 - XXXX GA

which the agencies may comment on the application. Any comments put forward 1

pursuant to this section shall immediately be forwarded by the cabinet to the 2

applicant and shall be made available to the public at the same places as the permit 3

application is available. 4


(1) (a) No person shall engage in surface coal mining and reclamation operations 6

without having first obtained from the cabinet a permit designating the area of 7

land affected by the operation. Permits shall authorize the permittee to engage 8

in surface coal mining and reclamation operations upon the area of land 9

described in his application for a period not to exceed five (5) years. However, 10

if an applicant demonstrates that a specified longer term is reasonably needed 11

to obtain necessary financing for equipment and the opening of the operation 12

and if the application is full and complete for the specified longer term, the 13

cabinet may grant a permit for the longer term. No mining shall be permitted 14

beyond the time period obligations of the initial or extended bond coverage. 15

(b) Subject to the provisions of KRS 350.010(1) and (2), no person shall 16

knowingly and willfully receive, transport, sell, convey, transfer, trade, 17

exchange, donate, purchase, deliver, or in any way derive benefit from coal 18

removed from any surface mining operation which does not have a permit as 19

required under this section. 20

(2) No permit or revision application shall be approved unless the application 21

affirmatively demonstrates, and the cabinet finds in writing on the basis of the 22

information set forth in the application or from information otherwise available, that 23

the permit application is accurate and complete and that all the requirements of this 24

chapter have been complied with. 25

(3) A person desiring a permit to engage in surface coal mining operations shall file an 26

application which shall state: 27

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Page 3 of 10 HB023410.100 - 1025 - XXXX GA

(a) The location and area of land to be affected by the operation, with a 1

description of access to the area from the nearest public highways; 2

(b) The owner or owners of the surface of the area of land to be affected by the 3

permit and the owner or owners of all surface area adjacent to any part of the 4

affected area; 5

(c) The owner or owners of the coal to be mined; 6

(d) The source of the applicant's legal right to mine the coal on the land affected 7

by the permit; 8

(e) The permanent and temporary post office addresses of the applicant, which 9

shall be updated immediately if changed at any point prior to final bond 10

release; 11

(f) Whether the applicant or any person, partnership, or corporation associated 12

with the applicant holds or has held any other permits under this chapter, and 13

an identification of the permits; 14

(g) The names and addresses of every officer, partner, director, or person 15

performing a function similar to a director of the applicant, together with the 16

names and addresses of any individual owning of record ten percent (10%) or 17

more of any class of voting stock of the applicant, and whether the applicant 18

or any person is subject to any of the provisions of subsection (3) of KRS 19

350.130 and he shall so certify. The permittee shall submit updates of this 20

information as changes occur or as otherwise provided by administrative 21

regulation; however, failure to submit updated information shall constitute a 22

violation of this chapter only upon the permittee's refusal or failure to timely 23

submit the information to the cabinet upon request. Upon receipt of updated 24

information satisfactory to the cabinet, the cabinet shall promptly update its 25

computer system containing the information; 26

(h) A listing of any violations of this chapter, Public Law 95-87, and any law, 27

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Page 4 of 10 HB023410.100 - 1025 - XXXX GA

rule, or regulation in effect for the protection of air or water resources incurred 1

by the applicant in connection with any surface coal mining and reclamation 2

operation during the three (3) year period prior to the date of an application. 3

The list shall indicate the final resolution of the violations; and 4

(i) Whether the area of land to be affected by the operation has been previously 5

mined and is in compliance with current reclamation standards, and, if not, 6

identify the needed reclamation work. 7

(4) The application for a permit shall be accompanied by an official document, and an 8

affidavit attesting to the document's authenticity, which will evidence what 9

particular business entity the applicant is, whether a foreign or domestic 10

corporation, a partnership, an entity doing business as another, or, if sole 11

proprietorship, an affidavit so stating. 12

(5) The application for a permit shall be accompanied by copies, in numbers 13

satisfactory to the cabinet, of a United States Geological Survey topographic map or 14

other map acceptable to the cabinet on which the applicant has indicated the 15

location of the operation, the course which would be taken by drainage from the 16

operation to the stream or streams to which the drainage would normally flow, the 17

name of the applicant and date, and the name of the person who located the 18

operation on the map. 19

(6) The application for a permit shall be accompanied by copies, in numbers 20

satisfactory to the cabinet, of an enlarged United States Geological Survey 21

topographic map or other map acceptable to the cabinet meeting the requirements of 22

paragraphs (a) to (i) of this subsection. The map shall: 23

(a) Be prepared and certified by a professional engineer registered under the 24

provisions of KRS Chapter 322. The certification shall be in the form as 25

provided in subsection (8) of this section, except that the engineer shall not be 26

required to certify the true ownership of property under paragraph (d) of this 27

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Page 5 of 10 HB023410.100 - 1025 - XXXX GA

subsection; 1

(b) Identify the area to correspond with the application; 2

(c) Show adjacent deep mining; 3

(d) Show the boundaries of surface properties and names of owners of the 4

affected area and adjacent to any part of the affected area; 5

(e) Be of a scale of 1:24,000 or larger; 6

(f) Show the names and locations of all streams, creeks, or other bodies of public 7

water, roads, buildings, cemeteries, oil and gas wells, and utility lines on the 8

area of land affected within three hundred (300) feet of an as-drilled oil or gas 9

well, but as-drilled locations of oil and gas wells shall be certified only by a 10

licensed surveyor and the well locations shall be entered in coordinates in feet 11

units, using NAD 83, with Single Zone Projection, as those terms are defined 12

in KRS 350.010; 13

(g) Show by appropriate markings the boundaries of the area of land affected, the 14

cropline of the seam or deposit of coal to be mined, and the total number of 15

acres involved in the area of land affected; 16

(h) Show the date on which the map was prepared, the north point, and the 17

quadrangle name; and 18

(i) Show the drainage plan on and away from the area of land affected. The plan 19

shall indicate the directional flow of water, constructed drainways, natural 20

waterways used for drainage, and the streams or tributaries receiving the 21

discharge. 22

(7) Each application shall include a determination of the probable hydrologic 23

consequences of the mining and reclamation operations, both on and off the mine 24

site, with respect to the hydrologic regime, quantity and quality of water in surface 25

and groundwater systems, including the dissolved and suspended solids under 26

seasonal flow conditions, and the collection of sufficient data for the mine site and 27

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Page 6 of 10 HB023410.100 - 1025 - XXXX GA

surrounding areas so that an assessment can be made by the cabinet of the probable 1

cumulative impacts of all anticipated mining in the area upon the hydrology of the 2

area and particularly upon water availability. This determination shall not be 3

required until the time hydrologic information on the general area prior to mining is 4

made available from an appropriate federal or state agency. The permit shall not be 5

approved until the information is available and is incorporated into the application. 6

(8) All certifications required by this chapter to be made by professional engineers shall 7

be done in the form prescribed by the cabinet and shall be reasonably specific as to 8

the work being certified. The cabinet may reject any document or map as 9

incomplete if it is not properly certified. 10

(9) In addition to the information and maps required above, each application for a 11

permit shall be accompanied by detailed plans or proposals showing the method of 12

operation; the manner, time, and distance for backfilling; grading work; and a 13

reclamation plan for the affected area, which proposals shall meet the requirements 14

of this chapter and administrative regulations adopted pursuant thereto. 15

(10) The application for a permit shall be accompanied by proof that the applicant has 16

public liability insurance coverage satisfactory to the cabinet for the surface mining 17

and reclamation operations for which the permit is sought, or proof that the 18

applicant has satisfied self-insurance requirements as provided by administrative 19

regulations of the cabinet. The coverage shall be maintained in full force and effect 20

during the terms of the permit and any permit renewal, and until reclamation 21

operations are completed. 22

(11) A basic fee set by administrative regulation, and bearing a reasonable relationship to 23

the cost of processing the permit application but not to exceed two thousand five 24

hundred dollars ($2,500), plus a fee set by administrative regulation but not to 25

exceed seventy-five dollars ($75), for each acre or fraction thereof of the area of 26

land to be affected by the operation, shall be paid before the permit required in this 27

18


Page 7 of 10 HB023410.100 - 1025 - XXXX GA

section shall be issued; provided that if the cabinet approves an incremental bonding 1

plan submitted by the applicant, the acreage fees may be paid in increments and at 2

times corresponding to the approved plan. The applicant shall file with the cabinet a 3

bond payable to the Commonwealth of Kentucky with surety satisfactory to the 4

cabinet in the sum to be determined by the cabinet for each acre or fraction thereof 5

of the area of land affected, with a minimum bond of ten thousand dollars 6

($10,000), conditioned upon the faithful performance of the requirements set forth 7

in this chapter and of the administrative regulations of the cabinet. The cabinet shall 8

forfeit the entire amount of the bond for the permit area or increment in the event of 9

forfeiture. In determining the amount of the bond, the cabinet shall take into 10

consideration the character and nature of the overburden; the future suitable use of 11

the land involved; the cost of backfilling, grading, and reclamation to be required; 12

and the probable difficulty of reclamation, giving consideration to such factors as 13

topography, geology, hydrology, and revegetation potential. The bond amount shall 14

initially be computed to be sufficient to assure completion of reclamation if the 15

work had to be performed by the cabinet in the event of forfeiture. Within thirty 16

(30) days of a cabinet determination of a need to change a bond protocol currently 17

in use, the cabinet shall immediately promulgate administrative regulations setting 18

forth bonding requirements including, but not limited to, requirements for the 19

amount, duration, release, and forfeiture of bonds. Bond protocols shall not be 20

exempt from KRS 13A.100 and shall be established by promulgating administrative 21

regulations under KRS Chapter 13A. Failure to include the formula for establishing 22

the amount of the bond in any administrative regulation on bonding requirements 23

shall be deemed a failure to comply with the prescriptions of this section and the 24

administrative regulation shall automatically be declared deficient in accordance 25

with KRS Chapter 13A. 26

(12) The cabinet shall promulgate administrative regulations for the permitting of 27

19


Page 8 of 10 HB023410.100 - 1025 - XXXX GA

operations with surface effects of underground mining and other surface coal 1

mining and reclamation operations consistent with this section. The cabinet shall 2

recognize the distinct differences between the surface effects of underground 3

mining and strip mining, as also provided in KRS 350.151, in promulgating 4

permitting requirements for these operations[; provided, that the cabinet shall 5

require that all the areas overlying underground workings be permitted but that the 6

areas overlying underground workings not affected by operations and facilities 7

occurring on the surface shall not be subject to the payment of acreage fees or bond 8

requirements of subsection (11) of this section, KRS 350.070, or KRS 350.151]. 9

(13) Any valid permit issued pursuant to this chapter shall carry with it the right of 10

successive renewal upon expiration with respect to areas within the boundaries of 11

the existing permit. An applicant for renewal of a permit shall pay a basic fee set by 12

regulation, not to exceed seven hundred fifty dollars ($750). The holders of the 13

permit may apply for renewal and the renewal shall be issued, provided that on 14

application for renewal the burden shall be on the opponents of renewal, subsequent 15

to the fulfillment of the public notice requirements of this chapter, unless it is 16

established and written findings by the cabinet are made that: 17

(a) The terms and conditions of the existing permit are not being satisfactorily 18

met; 19

(b) The present surface coal mining and reclamation operation is not in 20

compliance with the environmental protection standards of this chapter; 21

(c) The renewal requested substantially jeopardizes the applicant's continuing 22

responsibility on existing permit areas; 23

(d) The applicant has not provided evidence that the performance bond in effect 24

for the operation will continue in full force and effect for any renewal 25

requested in the application as well as any additional bond the cabinet might 26

require; or 27

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Page 9 of 10 HB023410.100 - 1025 - XXXX GA

(e) Any additional revised or updated information required by the cabinet has not 1

been provided. 2

Prior to the approval of any renewal of permit, the cabinet shall provide notice to 3

the appropriate public authorities. 4

(14) If an application for renewal of a valid permit includes a proposal to extend the 5

mining operation beyond the boundaries authorized in the existing permit, the 6

portion of the application for renewal of a valid permit which addresses any new 7

areas of surface disturbance shall be subject to the full standards applicable to new 8

applications under this chapter. 9

(15) Any permit renewal shall be for a term not to exceed the period of the original 10

permit. Application for permit renewal shall be made at least one hundred twenty 11

(120) days prior to the expiration of the valid permit. 12

(16) Notwithstanding any of the provisions of this section, a permit shall terminate if the 13

permittee has not commenced the surface coal mining operations covered by the 14

permit within three (3) years of the issuance of the permit. However, the cabinet 15

may grant reasonable extensions of time upon a showing that the extensions are 16

necessary by reason of litigation precluding commencement of operations, or 17

threatening substantial economic loss to the permittee, or by reason of conditions 18

beyond the control and without the fault or negligence of the permittee. With 19

respect to coal to be mined for use in a synthetic fuel facility or specific major 20

electric generating facility, the permittee shall be deemed to have commenced 21

surface mining operations at the time the construction of the synthetic fuel or 22

generating facility is initiated. 23

(17) Each application for a permit or revision for auger mining on a previously mined 24

area shall contain information to describe the area to be affected, to show that the 25

proposed method of operation will result in stable post-mining conditions, and 26

reduce or eliminate adverse environmental conditions created by previous mining 27

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Page 10 of 10 HB023410.100 - 1025 - XXXX GA

activities. If the cabinet determines that the affected area cannot be stabilized and 1

reclaimed subsequent to augering or that the operation will result in an adverse 2

impact to the proposed or adjacent area, the permit or revision shall not be issued. 3

The cabinet shall, consistent with all applicable requirements of this chapter, issue a 4

permit or revision if the applicant demonstrates that the proposed coal mining 5

operations will provide for reduction or elimination of the highwall, or reduction or 6

abatement of adverse impacts resulting from past mining activities, or stabilization 7

or enhancement of a previously mined area. The cabinet shall insure that all 8

reasonably available spoil material will be used to backfill the highwall to the extent 9

practical and feasible; provided, however, that in all cases the holes be properly 10

sealed and backfilled to a minimum of four (4) feet above the coal seam being 11

mined. 12

(18) All operations involving the loading of coal which do not separate the coal from its 13

impurities, and which are not located at or near the mine site, shall be exempt from 14

the requirements of this chapter. 15

22


Page 1 of 4 HB038410.100 - 1026 - XXXX GA

AN ACT relating to mine safety. 1



(1) The Governor shall appoint an adequate number of mine safety specialists to ensure 4

at least two (2) inspections annually at all surface mines, provided the mine is in 5

operation the entire year or the proportionate thereof, of all mines in the 6

Commonwealth and sufficient additional mine safety specialists to enable the 7

commissioner to provide adequate monitoring[surveillance] of coal mines where 8

conditions or management policy dictate that more inspections are needed to ensure 9

the safety of miners. Underground mines shall be inspected at least six (6) times 10

annually; except that the commissioner shall have the discretion to require up to 11

three (3) of the six (6) required mine safety inspections to be mine safety analysis 12

visits pursuant to KRS 351.242. At least one (1) inspection shall be a full 13

electrical inspection[; except the commissioner shall inspect all underground coal 14

mines not less than six (6) times annually. Two (2) of the six (6) general inspections 15

of underground mines shall be full electrical inspections]. One (1) or more of the 16

appointees shall be designated as electrical mine inspectors. The Governor shall 17

also appoint an adequate number of mine safety specialists to perform safety 18

analysis and safety instruction. The term of office of each mine safety specialist 19

shall be during the period of capable, efficient service and good behavior. 20

(2) All mine safety specialists shall have a thorough knowledge of first aid and mine 21

rescue and be able to instruct in first aid and mine rescue, and shall possess 22

thoroughly the knowledge required of the commissioner by KRS 351.060, and shall 23

have a thorough and practical knowledge of mining gained by at least five (5) years' 24

experience in coal mines in the Commonwealth. For the purposes of this subsection, 25

a degree in mining engineering from a recognized institution shall be deemed 26

equivalent to two (2) years of practical experience in coal mines or an associate 27

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Page 2 of 4 HB038410.100 - 1026 - XXXX GA

degree in mining technology from a recognized institution shall be deemed 1

equivalent to one (1) year practical experience in coal mines. A person desiring to 2

use a mining engineering or technology degree for practical experience credit shall 3

file proof of having received a degree prior to examination. 4

(3) No person shall be appointed to the office of mine safety specialist unless he or she 5

holds a current mine foreman's certificate. A person appointed as mine safety 6

specialist shall pass an examination administered by the board. The commissioner 7

may recommend to the Governor applicants for the positions of mine safety 8

specialist who have successfully passed the examination and are proved by worth, 9

training, and experience to be the most competent of the applicants. 10

(4) Mine safety specialists shall be of good moral character and temperate habits and 11

shall not, while holding office, act in any official capacity in operating any coal 12

mine. 13

(5) No reimbursement for traveling expenses shall be made except on an itemized 14

accounting for the expenses submitted by mine safety specialists who shall verify 15

upon oath that the expenses were incurred in the discharge of their official duties. 16

(6) Each mine safety specialist shall take oath, which shall be certified by the officer 17

administering it. The oath, in writing, and the certificate, shall be filed in the office 18

of the Secretary of State. 19

(7) Each mine inspector, mine safety analyst, electrical inspector, and mine safety 20

instructor shall give bond with surety approved by the Governor. 21

(8) Each mine safety specialist shall provide authorization to the division to perform a 22

criminal background check by means of a fingerprint check by the Department of 23

Kentucky State Police. The results of the state criminal background check shall be 24

sent to the director of the division. Any fee charged by the Department of Kentucky 25

State Police shall be an amount no greater than the actual cost of processing the 26

request and conducting the search. 27

24


Page 3 of 4 HB038410.100 - 1026 - XXXX GA


Each mine inspector shall give his entire time and attention to the duties of his office, 2

which shall consist of the following: 3

(1) Inspecting mines and aiding, under the direction of the commissioner, in carrying 4

out and enforcing the provisions of the law relating to the inspection of mines; 5

(2) Training officials and workmen in and about the mines in first aid and mine rescue 6

methods; 7

(3) Advising officials and workmen in methods pertaining to safety in all its phases and 8

in methods pertaining to the prevention of mine fires and explosions; 9

(4) Taking charge of mine rescue and recovery work whenever a mine fire, mine 10

explosion or other serious accident occurs within his district, and the commissioner 11

is not present, and assisting in such work in other districts when so directed by the 12

commissioner; 13

(5) Reopening mines or portions of mines that have been sealed on account of fire or 14

any other cause, when directed by the commissioner to do so; 15

(6) Inspecting each underground and surface[coal] mine in accordance with 16

subsection (1) of Section 1 of this Act[his district at least six (6) times a year and 17

all other mines once every six (6) months. For underground coal mines, two (2) of 18

the six (6) general inspections conducted annually shall be full electrical 19

inspections. The commissioner may cause inspections more often if practicable and 20

if funds permit, and whenever any danger to the workmen may exist; making a 21

personal examination of the interior of each mine with respect to ventilation, 22

drainage, roof control, blasting, electricity, escapeways, and general security, and 23

also a personal examination of the outside facilities of the mine; and in gassy mines 24

below the water table, inspections shall be more frequent, and as often as practical 25

whenever any danger to workmen is indicated by a previous inspection. Such 26

inspections shall involve at least two (2) inspectors. The inspectors shall locate 27

25


Page 4 of 4 HB038410.100 - 1026 - XXXX GA

themselves in different sections of the mine in order to determine the effectiveness 1

and reliability of the ventilation system. Each section of the mine shall be so 2

inspected]; 3

(7) It shall be permissible for a mine inspector to inspect any coal preparation plant or 4

surface facility of any mining operation of coal including any overland coal belts; 5

and 6

(8) A mine inspector shall have the express authority to enter upon the premises of and 7

inspect any coal mine, including any overland coal belts, at any reasonable time. 8

26

UNOFFICIAL COPY 17 RS SB 248/GA

Page 1 of 5 SB024810.100 - 1429 - XXXX GA

AN ACT relating to radiation. 1



As used in KRS 211.861 to 211.869, unless the compact requires otherwise: 4

(1) "Commission" means the Central Midwest Interstate Low-Level Radioactive Waste 5

Commission; 6

(2) "Cabinet" means the Cabinet for Health and Family Services; 7

(3) "Compact" means the Central Midwest Interstate Low-Level Radioactive Waste 8

Compact; 9

(4) "Disposal" means the isolation of waste from the biosphere in a permanent facility 10

designed for that purpose; 11

(5) "Facility" means a parcel of land or site, together with the structures, equipment, 12

and improvements on, or appurtenant to, the land or site, that is used or is being 13

developed for the treatment, storage, or disposal of low-level radioactive waste; 14

(6) "Low-level radioactive waste" or "waste" means radioactive waste not classified as 15

high-level radioactive waste, transuranic waste, spent nuclear fuel, or by-product 16

material as defined in Section 11e(2) of the Federal Atomic Energy Act. This 17

definition shall apply regardless of any declaration by the federal government or any 18

state that any radioactive material is exempt from any regulatory control; 19

(7) "Management plan" means the plan adopted by the commission for the storage, 20

transportation, treatment, and disposal of waste within the region; 21

(8) "Naturally-occurring radioactive material" (NORM) means any of the primordial 22

radionuclides or radioactivity present in soils, rocks, and materials, that are not 23

concentrated or disturbed as a result of human activities[naturally occurring 24

materials not regulated under the Atomic Energy Act of 1954, as amended, whose 25

radionuclide concentrations have been increased by or as a result of human 26

practices. Naturally occurring radioactive material does not include the natural 27

27


Page 2 of 5 SB024810.100 - 1429 - XXXX GA

radioactivity of rocks or soils, or background radiation, but instead refers to 1

materials whose radioactivity is technologically enhanced by controllable practices 2

(or by past human practices)]; 3

(9) "Person" means any individual, corporation, business enterprise, or other legal 4

entity, public or private, and any legal successor, representative, agent or agency of 5

that individual, corporation, business enterprise, or legal entity; 6

(10) "Region" means the geographical area of the state of Illinois and the 7

Commonwealth of Kentucky; 8

(11) "Regional facility" means any facility as defined in this section that is located in 9

Kentucky, and established by Kentucky pursuant to designation of Kentucky as a 10

host state by the commission; 11

(12) "Storage" means the temporary holding of radioactive material for treatment or 12

disposal; [and] 13

(13) "Technologically-enhanced naturally-occurring radioactive material" or 14

"TENORM" means: 15

(a) Naturally occurring radioactive material with a radionuclide concentration 16

that has been increased by human activities above levels encountered in the 17

natural state; or 18

(b) Naturally occurring radioactive material made more accessible by human 19

activity. 20

TENORM does not include the natural radioactivity of rocks or soils or source 21

material, byproduct material, or special nuclear material as defined in 42 U.S.C. 22

secs. 2011 et seq. and relevant federal regulations implemented by the Nuclear 23

Regulatory Commission; and 24

(14) "Treatment" means any method, technique, or process, including storage for 25

radioactive decay, designed to change the physical, chemical, or biological 26

characteristics of the radioactive material in order to render the radioactive material 27

28


Page 3 of 5 SB024810.100 - 1429 - XXXX GA

safe for transport or management, amenable to recovery, convertible to another 1

usable material, or reduced in volume. 2


(1) Unless otherwise authorized by the commission: 4

(a) After July 15, 1998, no person shall deposit at a facility in Kentucky any low-5

level radioactive waste not generated within the region. 6

(b) After July 15, 1998, no person shall accept at a facility in Kentucky low-level 7

radioactive waste not generated within the region. 8

(c) No person shall deposit at any regional facility in Kentucky any low-level 9

radioactive waste that is owned or generated by the United States Department 10

of Energy, owned or generated by the United States Navy as a result of 11

decommissioning of vessels of the United States Navy, or owned or generated 12

as the result of any research, development, testing, or production of any 13

atomic weapon. 14

(d) No person shall accept at any regional facility in Kentucky any low-level 15

radioactive waste that is owned or generated by the United States Department 16

of Energy, owned or generated by the United States Navy as a result of 17

decommissioning of vessels of the United States Navy, or owned or generated 18

as the result of any research, development, testing, or production of any 19

atomic weapon. 20

(e) No person shall export from the region low-level radioactive waste that is 21

generated in Kentucky, other than low-level radioactive waste that is owned or 22

generated by the United States Department of Energy, owned or generated by 23

the United States Navy as a result of decommissioning of vessels of the 24

United States Navy, or owned or generated as the result of any research, 25

development, testing, or production of any atomic weapon. 26

(f) No person shall dispose of low-level radioactive waste in Kentucky except at 27

29


Page 4 of 5 SB024810.100 - 1429 - XXXX GA

a regional disposal facility. 1

(g) No person who provides a service by arranging for the collection, 2

transportation, treatment, storage, or disposal of low-level radioactive waste 3

from outside the region shall dispose of any low-level radioactive waste, 4

regardless of origin, at a facility in Kentucky without prior specific approval 5

by the commission. 6

(2) No person shall treat or store low-level radioactive waste at a facility other than a 7

regional facility, if the treatment or storage is prohibited by the commission. 8

(3) Technologically-enhanced naturally-occurring radioactive material (TENORM) 9

and naturally-occurring radioactive material (NORM) as defined in KRS 10

211.862[(8)] shall be the exclusive regulatory responsibility of the states, except 11

that no person shall import technologically-enhanced naturally occurring 12

radioactive material (TENORM)[(NORM)] from outside the region for disposal in 13

Kentucky, arrange for disposal of, or dispose of such imported material in 14

Kentucky, if the imports or disposal are inconsistent with polices of the 15

commission. 16

(4) Any low-level radioactive waste which is not the responsibility of the 17

Commonwealth of Kentucky or the Central Midwest Interstate Low-Level 18

Radioactive Waste Commission pursuant to 42 U.S.C. sec. 2297h-11 shall be 19

exempt from the provisions of KRS 211.861 to 211.869 and from the provisions of 20

KRS 211.859. 21

(5) Drill cuttings generated from wells permitted and regulated by the Energy and 22

Environment Cabinet pursuant to KRS Chapter 353 that contain naturally-23

occurring radioactive materials that have been made more accessible shall not be 24

regulated as TENORM under this chapter. 25

(6) Except as provided in subsection (5) of this section, the cabinet may, by executive 26

order or administrative regulation, regulate as tenorm any naturally occurring 27

30


Page 5 of 5 SB024810.100 - 1429 - XXXX GA

radioactive material made more accessible by human activity, or naturally 1

occurring radioactive material that has radionuclide concentrations increased by 2

human activities above levels encountered in the natural state. 3

31

33

DEPARTMENT FOR ENVIRONMENTAL PROTECTION UPDATE I. DEPARTMENT FOR ENVIRONMENTAL PROTECTION (AARON KEATLEY)

A. DEP – Role, Responsibilities B. 2017 Legislative Session

There are a handful of bills that passed during the 2017 legislative session that directly affect the Department for Environmental Protection and its program implementation.

1. HR 9 – Urges the U.S. EPA to prioritize compliance assistance

over current enforcement practices. 2. HJR 56 – Directs the Cabinet to conduct a study of privately

owned and operated small wastewater treatment plants to mitigate risk of failure or abandonment.

3. HB 50 – revises KRS 13A by specifying that all regulations will

expire within seven years of their effective date unless an agency notifies the LRC that the regulations are still necessary.

4. SB 11 – Removes statutory requirements that effectively

prohibited nuclear sites from being built in Kentucky. 5. SB 248 – TENORM bill – Changes definitions as agreed to by the

Oil and Gas workgroup. 6. SB 249 – Cabinet Omnibus bill – Eliminated a number of outdated

commissions and workgroups, eliminated dated statutes that had not been impended, changed the wastewater permit fee billing process, removed requirement for individual home owners to become certified or to hire a certified wastewater operator in order to operate a package plant that serves their own home.

C. Red Tape Initiative

1. Kentucky has more than 4,500 enacted regulations. In 2016, Governor Matt Bevin launched his Regulatory Reform and Red-Tape Reduction Initiative to ensure that all regulations are clear and do not impose unnecessary burdens on job creators.

2. The Department for Environmental Protection has reviewed all of

its regulations over the last year in response to this initiative and has identified a number of regulations that can be abolished, compiled, or revised. In addition, the Department has done a similar review of statutes that govern agency operations and responsibilities.

http://www.lrc.ky.gov/record/17RS/HR9.htm

http://www.lrc.ky.gov/record/17RS/HJR56.htm





34

D. Federal Changes and Relationships

The presidential election has begun to shape changes in U.S. EPA objectives and working relationships with the states. Proposed changes to the U.S. EPA budget could also create impacts on state implementation of environmental programs.

II. DIVISION FOR AIR QUALITY (SEAN ALTERI)

A. Interstate Transport Obligations and the Good Neighbor Provision

Interstate air pollution transport, or air transport, refers to emissions from upwind sources that impact air quality in a given location downwind. The total pollution in any area forms from the combination of local emissions and emissions from upwind. Emissions of sulfur dioxide (SO2) and nitrogen oxides (NOX) can react in the atmosphere to form fine particle (soot) pollution. Similarly, NOX emissions can react in the atmosphere to create ground-level ozone (smog) pollution. These pollutants can travel great distances affecting air quality and public health regionally. The transport of these pollutants across state borders makes it difficult for downwind states to meet health-based air quality standards for PM2.5 and ozone.1 The Clean Air Act's "good neighbor" provision requires EPA and states to address interstate transport of air pollution that affects downwind states' ability to attain and maintain National Ambient Air Quality Standards (NAAQS). Specifically, Clean Air Act section 110(a)(2)(D)(i)(I) requires each state in its State Implementation Plan (SIP) to prohibit emissions that will significantly contribute to nonattainment of a NAAQS, or interfere with maintenance of a NAAQS, in a downwind state. The Act requires EPA to backstop state actions by promulgating Federal Implementation Plans (FIPs) in the event that a state fails to submit or EPA disapproves good neighbor SIPs.

B. EPA Actions

1. On July 17, 2012, the state of Kentucky submitted a state implementation plan revision to address the requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS.

2. On March 7, 2013, the EPA finalized disapproval of Kentucky’s

SIP submission addressing the good neighbor provision require-ments for the 2008 ozone NAAQS.2

1 https://www.epa.gov/airmarkets/interstate-air-pollution-transport.

2 78 FR 14681.

https://www.law.cornell.edu/uscode/text/42/7410



https://www.epa.gov/airmarkets/interstate-air-pollution-transport

https://www.gpo.gov/fdsys/pkg/FR-2013-03-07/pdf/2013-05352.pdf

35

3. On October 26, 2016, EPA published a final rule finalizing a FIP for Kentucky to address the interstate transport obligations for the 2008 ozone NAAQS.3

C. Section 110 Litigation

1. On April 30, 2013, the Sierra Club filed a petition for review of the EPA’s action based on the Agency’s conclusion that the FIP clock was not triggered by the disapproval of Kentucky’s good neighbor SIP.

2. By a letter dated June 6, 2016, Mr. Robert Ukeiley, Counsel for

the Sierra Club, provided U.S. EPA Administrator Gina McCarthy with a Clean Air Act notice of intent (NOI) to sue for failure to promulgate Federal Implementation Plan for Kentucky. The Federal Implementation Plan would address the “Good Neighbor” requirements located at section 110(a)(2)(D)(i)(I) of the CAA.

3. The matter is currently being heard in the United States District

Court for the Northern District of California San Francisco Division: Case No. 3:15-cv-04328-JD (JSC).

III. DIVISION OF WATER (PETE GOODMANN)

A. Regulation Changes

1. Chapter 8 revisions.

The Division of Water recently filed regulations updating provisions applicable to drinking water facilities and distribution systems. A major component of these changes includes requirements applicable to properties that submeter water.

2. Chapter 5 revisions.

The division is ready to begin evaluating regulatory changes that need to be made to its KPDES permitting requirements and standards applicable to wastewater facilities.

3. Chapter 4 regulations.

There are a number of water resource related regulations that are old and need to be updated. DOW intends to work on these regulations later this year.

3 81 FR 74504.



http://www.lrc.ky.gov/kar/TITLE401.HTM



https://www.gpo.gov/fdsys/granule/FR-2016-10-26/2016-22240/content-detail.html

36

B. Infrastructure

1. Drinking water systems.

In 2017, the Commissioner’s Office requested the Division of Water to evaluate the state of Kentucky’s drinking water systems and to develop a Drinking Water Action Plan that defines Kentucky’s financial needs to maintain our drinking water systems and proposes a path forward to ensure that Kentucky’s drinking water systems continue to provide safe, reliable drinking water.

2. Wastewater systems and small privately owned systems.

C. Waters of the U.S.

DOW is providing input to a federal workgroup working on potential revisions to the rule.

IV. DIVISION OF WASTE MANAGEMENT (TONY HATTON STANDING IN FOR

JON MAYBRIAR)

A. Regulation Changes

1. CCR regulations.

Federal regulations governing the disposal of ash and other wastes resulting from the combustion of coal at power plants became effective on October 19, 2015. In response, DEP filed administrative regulations to incorporate these federal rules into state law, which will go into effect on May 4, 2017.

2. HW waste updates.

DWM is in the process of adopting federal hazardous waste rule changes that have occurred over the years. In addition to these changes, DWM is also consolidating these regulations

3. RLA updates.

The division will be proposing regulations that address county solid waste planning as well as the administration of DWM solid waste grant programs.

B. Superfund Site Review

1. Long Lane.

This State Superfund site is an example of where historic contamination on an unmanaged property has resulted in residents being exposed to arsenic. Emergency action was taken by the Department to mitigate exposure pathways.

37

2. Scope of Superfund sites in Kentucky.

Kentucky has more than 600 known State Superfund sites and an even larger number of properties that, based on historical operations at the property, could have historic contamination.

3. Site Review Process.

The Division of Waste Management is conducting an evaluation of all properties with known contamination and evaluating historic operations that could have resulted in residual contamination. The goal of this review is to assess if there are unacceptable exposures that need to be addressed and to prioritize these sites for cleanup as funding is available.

39

UPDATE FROM THE PUBLIC SERVICE COMMISSION J. E. B. Pinney

The Public Service Commission regulates most electric, water, sewer and gas utilities in Kentucky, provided that they are not municipally owned or under the control of the Tennessee Valley Authority. The Commission also regulates, to a certain extent, telecommunications carriers. KRS 278.010. The Commission’s jurisdiction, however, is limited to the "rates" and "services" of these utilities. KRS 278.040(2). While "rates" and "services" are broadly defined, they are understood to generally not extend to areas of environmental compliance, such as those areas that fall under the Division of Water or the Department of Environmental Protection etc. However, the Commission does have authority over certain matters that do have environmental impacts. I. UTILITY ABANDONMENTS

A. Over the past decade the owners of several small package treatment sewer plants have sought to abandon those plants. The utilities must receive Commission approval before abandoning the utility. KRS 278.020; KRS 278.021.

B. The Commission may bring an action in Franklin Circuit Court in order to

have a receiver appointed so that the utility will continue in operation. The receiver will continue to operate the utility until the utility can be transferred to another utility to preserve continuity of service.

C. The Commission has been successful in finding utilities to take over the

plants of sewer utilities. D. However, in some cases, some water and gas utilities have been

declared abandoned and ceased to operate due to the lack of any entity willing and/or able to take over operation of the facilities.

II. ENVIRONMENTAL COMPLIANCE COST RECOVERY

A. Pursuant to KRS 278.183, electric utilities are allowed to recover the costs of complying with the "Federal Clean Air Act as amended and those federal, state, or local environmental requirements which apply to coal combustion wastes and by-products from facilities utilized for production of energy from coal . . . ."

B. The utility is allowed to recover the costs the second month after they are

incurred. This is recovered through a monthly surcharge that can change on a monthly basis.







40

C. The surcharge is designed to allow the utility to avoid the expense of waiting until the next rate cases to recover the cost of environmental compliance, saving both the utility and the customers money.

D. The Commission reviews, on a semi-annual basis, the environmental

surcharges of the electric utilities for reasonableness. Most costs are allowed to be recovered, but from time to time the Commission will disallow certain costs.

III. DEMAND SIDE MANAGEMENT

A. Electric utilities may, but are not required to, offer programs to residential customers that are designed to reduce electric consumption. KRS 278.285.

B. Besides simple energy consumption reduction, Demand-Side

Management programs, by reducing or slowing the growth of the utility’s electric load, will allow the utility to avoid the considerable expense to either build new generation plants or purchase energy from another supplier.

C. The Commission must approve the programs that the utility offers, as well

as the costs associated with the programs that the utility may recover from the customers through a separate surcharge. The surcharge also allows the utility to recover the cost of lost sales due to lower demand.

D. The larger electric utilities offer Demand Side Management Programs.

The various programs may take several forms such as:

1. On-Site Energy Audit of a customer’s premises. This helps to identify areas that can be improved to reduce energy consumption such as the use of energy-efficient devices or weatherization.

2. Incentives for installation of Energy Star appliances. 3. Programs to promote energy efficiency. 4. Rebates for energy-efficient light bulbs. 5. Home weatherization programs helping customers improve

insulation for homes that use electric heat. Provide insulation for electric water heaters, installation of efficient windows and doors.

6. Educational programs, particularly to middle school students. 7. Incentives for customers in manufactured housing that qualify for

an upgrade to a more energy efficient home.



41

E. The Commission conducts periodic reviews of utilities’ Demand-Side Management programs. Generally the Commission approves the programs, but recently has increased its scrutiny of the cost of the Demand-Side Management Programs.

F. For example, the Commission recently opened an investigation into the

Demand-Side Management Programs of Kentucky Power.

1. The average customer monthly surcharge for the Demand-Side Management programs had increased 2,000 percent in the course of one year from an average of $.51 to $10.61.

2. Kentucky Power provides service in some of the poorest counties

in Kentucky, and the customers have been receiving additional surcharges on their bills, not including the Demand-Side Management surcharge.

3. The on-going investigation will review the reasonableness of the

programs and the associated costs. IV. MISCELLANEOUS TOPICS

A. Retirement of coal-fired generation, replaced with either natural gas or purchases on the market.

B. Installation of solar farms – Big Rivers and Louisville Gas and Electric

Company have received approval to install solar farms. Duke Energy has applied for approval of construction of a solar facility as well.

C. Nuclear energy: Senate Bill 11, recently passed by the General Assembly

and signed by the governor, lifts the moratorium on nuclear power in KRS 278.605 and provides that the Commission may certify nuclear power facilities.

D. Siting of electric facilities: the Commission is part of a siting board that

must approve the construction of new generation or large transmission lines. KRS 278.700-716.

E. Siting of cellular telecommunications towers: The Commission approves

all cellular towers that are constructed in areas outside the jurisdiction of local planning and zoning units. KRS 278.650.






43

ENVIRONMENT & ENERGY POLICY IN THE TRUMP ADMINISTRATION & 115TH CONGRESS

Amanda J. Waters

I. EXECUTIVE BRANCH – TRUMP ADMINISTRATION

Executive Orders: A. What are Executive Orders?

A vehicle used by the President to exercise his authority. The President's authority to issue executive orders does not include a grant of power to implement policy decisions that are not otherwise authorized by law.

B. Authority – According to the Congressional Research Service:1

1. There is no direct "definition of executive orders, presidential memoranda, and proclamations in the U.S. Constitution, there is, likewise, no specific provision authorizing their issuance."

2. "As such, authority for the execution and implementation of these

written instruments stems from implied constitutional and statutory authority. In the constitutional context, presidential power is derived from Article II of the U.S. Constitution, which states that 'the executive power shall be vested in a President of the United States,' that 'the President shall be Commander in Chief of the Army and Navy of the United States,' and that the President 'shall take Care that the Laws be faithfully executed.'"

3. "The President's power to issue these directives may also derive

from express or implied statutory authority." See Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).

4. "[S]uch orders are accepted as an inherent aspect of presidential

power. Moreover, if they are based on appropriate authority, they have the force and effect of law."

C. Checks & Balances

1. Judicial reviewability.

Executive orders are subject to judicial review and may be overturned if not supported by statute or the Constitution. The U.S. Supreme Court decision in Youngstown Sheet & Tube Co. v. Sawyer, supra, established the framework for analyzing the validity of executive orders. See Executive Orders: Issuance,

1 https://fas.org/sgp/crs/misc/RS20846.pdf.

https://www.law.cornell.edu/constitution/articleii

https://supreme.justia.com/cases/federal/us/343/579/case.html


https://fas.org/sgp/crs/misc/RS20846.pdf

44

Modification, and Revocation, Congressional Research Service, 2014, p. 3.2

2. Legislative modification/revocation.

If an executive order is issued pursuant to authority provided to the President by Congress – rather than an order issued via the President's exclusive constitutional authority – Congress can legislatively modify or nullify the order by either directly repealing it or by removing the underlying authority. See Executive Orders: Issuance, Modification, and Revocation, Congressional Research Service, 2014, p. 9.3

D. Key Environmental-Related Executive Orders Issued

1. Regulatory freeze.

Although not an Executive Order, in one of his first official acts, President Trump issued an immediate regulatory freeze on all rules and regulations that had not yet been finalized or published in the Federal Register.4

2. January 30: For every new regulation proposed, repeal two

existing ones.5

a. Federal agencies must show that the incremental cost for any new rule will be zero, unless the rule is otherwise required by law, or if the Director of the Office of Management and Budget provides prior approval.

b. The order states that for every one regulation the executive

branch proposes, two must be identified to repeal. 3. January 24: Expediting environmental review for infrastructure

projects.6

a. Allows "high-priority" projects identified by states governors and federal agencies to be fast-tracked for environmental review.



4 http://www.politico.com/f/?id=00000159-be8f-da97-a9dd-becf15ae0001.

5 https://www.whitehouse.gov/the-press-office/2017/01/30/presidential-executive-order-reducing-

regulation-and-controlling. 6 https://www.whitehouse.gov/the-press-office/2017/01/24/executive-order-expediting-environ

mental-reviews-and-approvals-high.



http://www.politico.com/f/?id=00000159-be8f-da97-a9dd-becf15ae0001

https://www.whitehouse.gov/the-press-office/2017/01/30/presidential-executive-order-reducing-regulation-and-controlling

https://www.whitehouse.gov/the-press-office/2017/01/30/presidential-executive-order-reducing-regulation-and-controlling

https://www.whitehouse.gov/the-press-office/2017/01/24/executive-order-expediting-environ%0bmental-reviews-and-approvals-high

https://www.whitehouse.gov/the-press-office/2017/01/24/executive-order-expediting-environ%0bmental-reviews-and-approvals-high

45

b. Signed as part of a package infrastructure deal, along with three memoranda on oil pipelines.

4. February 24: Enforcing regulatory reform.7

a. Building on his promise to reduce federal regulation, President Trump further unveiled his plans for regulatory reform via this order that directs each federal agency to designate a Regulatory Reform Officer to "oversee the implementation of regulatory reform initiatives" and to form a Regulatory Reform Task Force that will work to identify which existing rules should be repealed, replaced or modified.

b. Initial progress reports are due from each task force within

ninety days of issuance of the order. c. The order specifically directs each Regulatory Reform

Task Force to "seek input and other assistance...from entities significantly affected by Federal regulations, including state, local and tribal governments."

5. February 28: Reviewing the "Waters of the United States" rule.8

a. The order directs federal agencies to rescind or revise the Clean Water Rule, also known as the "Waters of the United States" rule, as appropriate and consistent with law.

b. Under the Administrative Procedure Act, 5 U.S. Code

Chapter 5, Section 553, EPA must provide a public notice of its intent to remove the rule and its reasons for doing so. Any new language on Clean Water Act jurisdiction proposed by EPA to replace the old rule will have to be public noticed as well.

6. Executive Order – Clean Power Plan Rule.9

Anticipated to be issued in near future

7 https://www.whitehouse.gov/the-press-office/2017/02/24/presidential-executive-order-enforcing-

regulatory-reform-agenda. 8 https://www.whitehouse.gov/the-press-office/2017/02/28/presidential-executive-order-restoring-

rule-law-federalism-and-economic. 9 http://www.eenews.net/interactive/clean_power_plan.

https://www.epa.gov/cleanwaterrule

https://www.law.cornell.edu/uscode/text/5/part-I/chapter-5

https://www.law.cornell.edu/uscode/text/5/part-I/chapter-5

http://www.americanbar.org/content/dam/aba/events/administrative_law/2011/11/2011_fall_administrativelawconference/rulemaking_chapter_2011.authcheckdam.pdf

https://www.whitehouse.gov/the-press-office/2017/02/24/presidential-executive-order-enforcing-regulatory-reform-agenda

https://www.whitehouse.gov/the-press-office/2017/02/24/presidential-executive-order-enforcing-regulatory-reform-agenda

https://www.whitehouse.gov/the-press-office/2017/02/28/presidential-executive-order-restoring-rule-law-federalism-and-economic

https://www.whitehouse.gov/the-press-office/2017/02/28/presidential-executive-order-restoring-rule-law-federalism-and-economic

http://www.eenews.net/interactive/clean_power_plan

46

II. 115TH CONGRESS A. Party Summary10 B. Infrastructure Package (anticipated)

American Society of Civil Engineers' 2017 Infrastructure Report Card:11 1. Drinking water: D. 2. Wastewater: D+.

C. Pending Legislation

1. H.R. 26 – REINS (Regulations from the Executive in Need of Scrutiny) Act of 2017 / S. 21 House: Sponsored by Rep. Doug Collins (R-GA) – PASSED House 1/5/17; Senate: Sponsored by Sen. Rand Paul (R-KY); referred to Senate HSGAC Committee.

a. Revises provisions relating to congressional review of

agency rulemaking. b. A federal agency promulgating a rule must publish

information about the rule in the Federal Register and include in its report to Congress and to the Government Accountability Office:

i. A classification of the rule as a major or non-major

rule, and ii. A copy of the cost-benefit analysis of the rule that

includes an analysis of any jobs added or lost. c. "Major Rules" result in:

i. An annual effect on the economy of $100 million or more;

ii. A major increase in costs or prices for consumers,

individual industries, government agencies, or geographic regions; or

iii. Significant adverse effects on competition,

employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

10

See https://en.wikipedia.org/wiki/115th_United_States_Congress. 11

http://www.infrastructurereportcard.org/.

https://www.congress.gov/bill/115th-congress/house-bill/26?q=%7B%22search%22%3A%5B%22hr26%22%5D%7D&r=1


https://www.congress.gov/bill/115th-congress/senate-bill/21/text?q=%7B%22search%22%3A%5B%22s21%22%5D%7D&r=1

https://en.wikipedia.org/wiki/115th_United_States_Congress

http://www.infrastructurereportcard.org/

47

d. Approval.

i. A joint resolution of approval must be enacted within seventy session days or legislative days after the agency proposing a major rule submits its report on such rule to Congress in order for the rule to take effect.

ii. A major rule may take effect for ninety days without

such approval if the President determines it is necessary because of an imminent threat to health or safety or other emergency, for the enforcement of criminal laws, for national security, or to implement an international trade agreement.

iii. Bill sets forth the congressional approval procedure

for major rules and the congressional disapproval procedure for non-major rules.

2. H.R. 5 – Regulatory Accountability Act of 2017 – House:

Sponsored by Rep. Bob Goodlatte (R-VA) – Passed 238-183 in the House 1/11/17; Senate: no companion bill.

a. Would repeal the Chevron deference standard12 – Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

"If the reviewing court determines that a statutory or regulatory provision relevant to its decision contains a gap or ambiguity, the court shall not interpret that gap or ambiguity as an implicit delegation to the agency of legislative rule making authority and shall not rely on such gap or ambiguity as a justification either for interpreting agency authority expansively or for deferring to the agency's interpretation on the question of law. Notwithstanding any other provision of law, this subsection shall apply in any action for judicial review of agency action authorized under any provision of law."

b. Would require mandatory litigation stays for new rules –

"an agency shall postpone the effective date of a high-impact rule of the agency until the final disposition of all actions seeking judicial review of the rule."

"High-impact rule" means any rule that the Administrator of the Office of Information and Regulatory Affairs determines is likely to impose an annual cost on the economy of $1,000,000,000 or more, adjusted annually for inflation.

12

See https://lawblog.justia.com/2012/05/21/chevron-deference-your-guide-to-understanding-two-of-todays-scotus-decisions/.


https://lawblog.justia.com/2012/05/21/chevron-deference-your-guide-to-understanding-two-of-todays-scotus-decisions/

http://supreme.justia.com/cases/federal/us/467/837/case.html





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3. H.R. 469 – Sunshine for Regulatory Decrees and Settlements Act

of 2017 / S. 119 - House: Sponsored by Rep. Doug Collins (R-GA); referred to House Judiciary Committee; Senate: Sponsored by Sen. Chuck Grassley (R-IA); referred to Senate Judiciary Committee.

a. Introduction/purpose.

Judiciary Committee members in House and Senate introduced to prevent environmental and other groups from compelling federal agency action through litigation.

b. Effect of legislation.

i. Require agencies to publicly post and report to Congress any information on lawsuits, consent decrees or settlement agreements;

ii. Requires that consent decrees and settlements be

filed only after interested parties have had sixty days to comment;

iii. Courts would then be required to incorporate the

public comments into their decision making; iv. Prohibits same-day filing of complaints and pre-

negotiated settlements; v. Makes it easier for the new administration to

petition a court to modify consent decrees approved during past administrations.



https://www.congress.gov/bill/115th-congress/senate-bill/119/text?q=%7B%22search%22%3A%5B%22s119%22%5D%7D&r=1

49

CLEAN WATER ACT AND BEYOND: UNFINISHED BUSINESS LaJuana S. Wilcher, Esq.

THE CLEAN WATER ACT AT FORTY-FIVE I. INTRODUCTION

The Federal Water Pollution Control Act Amendments of 1972 gave sweeping federal powers to the U.S. Environmental (EPA), the U.S. Army Corps of Engineers and authorized states to work toward the restoration and protection of the chemical, physical and biological integrity of our nation's waters. Subsequently given a shortened and more popular title, the Clean Water Act (CWA or Act), this legislation has been remarkably effective in improving the nation's waterways. In spite of its stunning success, exactly what water the Act regulates, i.e., its jurisdictional reach, has shifted as regularly as sand on a beach. As a result, state regulators and the regulated community cannot operate efficiently in implementing a permitting process regime that is as stable as quicksand. (Is quicksand a water of the U.S.?) The following will describe some of the early decisions, more recent cases, and the current state of the federal regulations establishing the jurisdictional reach of the CWA.

II. THE CWA, AS LIMITED BY THE U.S. CONSTITUTION

Most environmental statutes, including the CWA, are enacted under Congress' broad power to control activities affecting interstate commerce. A foundational case early in the interpretive history of the CWA was Natural Resources Defense Council, Inc. v. Callaway, 392 F.Supp. 685 (D.D.C.) 1975. Many of EPA's decisions and regulations have rested on the interpretation asserted by the court when it said:

By defining the term "navigable waters" to mean "the waters of the United States, including the territorial seas," Congress "asserted federal jurisdiction over the nation's waters to the maximum extent permissible under the Commerce Clause of the Constitution."

The next significant delineation of CWA jurisdiction was handed down by the U.S. Supreme Court in U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), which held that the Corps' interpretation of "the waters of the United States" includes wetlands that "actually abut" on "traditional navigable waters." Those two cases set the standards for the regulatory boundaries relied upon by EPA until 2001, when Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), restricted the Corps' and EPA's authority by finding that the Corps exceeded its authority by asserting CWA jurisdiction over isolated, inland, non-navigable waters. In the wake of SWANCC, in 2003 EPA and the Corps issued guidance and abandoned the "Migratory Bird





50

Rule." Nonetheless, the federal agencies' interpretation of the jurisdictional reach of the Act remained broad. The waters were further muddied in 2006, when the U.S. Supreme Court handed down a 4-4-1 decision in Rapanos v. U.S., 547 U.S. 715 (2006). In that case, Chief Justice Roberts castigated the agencies for failing to promulgate clarifying regulations, and two other justices (Scalia and Kennedy) set out two different tests for which U.S. waters should be regulated under the CWA. EPA and the Corps spent almost a decade issuing and retracting guidance and draft guidance until June 29, 2015, when the EPA and the Corps published the newly named "Clean Water Rule: Definitions of 'Waters of the United States,'" after publishing a proposed rule and receiving 698,836 comments. 80 Fed. Reg. 37,054 (June 29, 2015). That rule, often referred to as the WOTUS rule, has been challenged in multiple courts in multiple jurisdictions by a plethora of parties. That litigation continues, with the focus in the Sixth Circuit. The 114th Congress passed a resolution under the Congressional Review Act providing that the WOTUS rule be repealed, but President Obama vetoed their determination. On February 28, 2017, President Trump issued an Executive Order directing the Administrator of the EPA and the Assistant Secretary of the Army for Civil Works to review the Clean Water Rule and publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with law. On March 6, 2017, a Notice of Intention to Review and Rescind or Revise the Clean Water Rule was published in the Federal Register (82 Fed. Reg 12532, Mar. 6, 2017).

III. CONCLUSION

In spite of being one of the most successful environmental laws ever enacted by Congress, a basic cornerstone of the CWA . . . what is actually regulated under it . . . remains as unclear as it was that day in October 1972 when it was signed into law. EPA's revised regulation, expected by the end of 2017, is likely to begin the arduous process of being litigated through various federal courts, often with different results, until it reaches the Supreme Court. Again. If the Court believes that procedural or substantive errors were made by the agencies, the rule will be remanded to the agencies. Again. Prospects for clarity on the basic issue of what waters are regulated under the CWA remain dim unless Congress decides to fill the gap they created and the true identity of the CWA is resolved.

https://www.law.cornell.edu/supct/html/04-1034.ZS.html



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CLEAN WATER ACT AND BEYOND: UNFINISHED BUSINESS W. Blaine Early, III

I. INTRODUCTION

Since the early 1970s environmental regulation has been driven largely by federal laws. These statutes are overlaid on existing principles of common law rights, constitutional law, and other statutes. Today’s program focuses on the Federal Water Pollution Control Act of 1972, known as the Clean Water Act or "CWA" or "Act."1 The Act developed as a hybrid of previous attempts to address water pollution. Its initial focus on limiting discharges of pollutants to navigable waters from point sources was expanded slightly in 1987 by Congressional amendments related to specific sources of storm water discharges and state-focused mandates regarding non-point source discharges. The CWA has been very effective at its core mission: eliminating discharge of pollutants from point sources. Many adverse impacts to water quality, however, are related to non-point sources and other sources that are less effectively limited by the CWA. These conditions have far-reaching impacts that implicate other water quality programs that include the Safe Drinking Water Act and common law rights and are the Clean Water Act’s unfinished business.

II. THE CLEAN WATER ACT

A. History and Objectives of the Clean Water Act

Two federal statutory programs preceded the current Act. The Rivers and Harbors Appropriations Act of 1899, which some consider to be the first of all the federal environmental statutes, addressed discharges into the waters of the United States and focused on the nature of the discharge.2 In contrast, the Federal Water Pollution Control Act of 1948 focused on the quality of the water that received pollutants. It was difficult to enforce because it was hard to prove which polluter caused any decrease in water quality.3 Borrowing aspects of the two predecessors, in 1972 Congress had high hopes for the Clean Water Act and adopted aggressive objectives as follows:

1 33 U.S.C. §1251 et seq.

2 Robert V. Percival, Alan S. Miller, Christopher H. Schroeder, and James P. Leape,

Environmental Regulation Law, Science, and Policy 882 (1996) and William H. Rodgers, Jr., Environmental Law 260 (2

nd ed. 1994).

3 See, e.g., S. Rep. No. 92-414, 92nd Cong., 2d Sess. 2 (1972), reprinted in 1972 U.S.C.C.A.N.

3668, 3669. Congress noted the difficulty associated with substantiating enforcement actions based on water quality standards in court due to "the imprecision of models for water quality and the effects of effluents in most waters." Id.

https://www.law.cornell.edu/uscode/text/33/chapter-26

52

The objective . . . is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters [and] (1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985; (2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983; . . . .4

The goals of eliminating the discharge of pollutants and providing water of sufficient quality for fish and recreation (sometimes referred to as "fishable and swimmable") explain the two primary functional elements of the CWA. First, no discharges are allowed unless authorized by a permit. Second, the conditions of permits are related to water quality standards.

B. No Discharge from Point Source without a Permit

As a general principle, the CWA prohibits the discharge of pollutants into the waters of the United States unless the discharge is done according to a permit. Section 301 of the CWA states that "[e]xcept as in compliance with this section [and others including Sections 402 and 404] the discharge of any pollutant by any person shall be unlawful."5 Discharge of pollutants from a point source may be allowed under permits issued under the National Pollution Discharge Elimination System ("NPDES")6 or the KPDES permit in Kentucky.7 The CWA also requires a permit for the discharge of dredged or fill material into navigable waters of the United States. The United States Army Corps of Engineers ("Corps") administers the dredge or fill permitting system under Section 404 of the CWA.8 Much of the Act’s evolution can be traced to the sparse direction that Congress provided in definitions of key statutory terms. The following are some important statutory definitions:

"Discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters from any point source . . . ."9

4 CWA §101, 33 U.S.C. §1251.

5 CWA §301, 33 U.S.C. §1311.

6 33 U.S.C. §1342.

7 401 KAR 5:050 to 401 KAR 5:080.

8 33 U.S.C. §1344.

9 CWA §502(12), 33 U.S.C. §1362(12).







53

"Pollutant" is defined as "dredged spoil, solid waste, incinerator residue, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste . . . ."10 "Navigable waters" are defined as "the waters of the United States, including the territorial seas."11 "Point Sources" are defined as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture."12

C. Water Quality Standards, Designated Uses, and Impaired Waters

Section 30313 of the ACT requires states to develop, review, and revise water quality standards for waters in the states. The requirements include the water’s designated use, criteria for maximum levels of pollutants, and an antidegradation statement. Kentucky, for example, has designated six uses for surface waters.14 For each "designated use," the state must establish a set of water quality standards consistent with the use. These parameters and/or criteria include concentrations of certain chemicals (such as heavy metals), dissolved oxygen levels, pH, and abundance of fecal coliform or E. coli bacteria.15 The water quality standards guide the establishment of effluent limitations imposed by KPDES permits.16

10

CWA §502(6), 33 U.S.C. §1362(6). 11

CWA §502(7), 33 U.S.C. §1362(7). 12

CWA §502(14), 33 U.S.C. §1362(14). See also 401 KAR 5:002 Section 1(111). 13

33 U.S.C. §1313. 14

Kentucky recognizes six uses: warm water aquatic habitat; cold water aquatic habitat; primary contact recreation; secondary contact recreation; domestic water supply; and outstanding state resource water. 401 KAR 10:026 Section 1. 15

See, e.g., 401 KAR 10:031. 16

33 U.S.C. §§1311(b)(1(A), 1362(11). Cases have considered whether these water quality standards are separately enforceable or must first be incorporated into some aspect of an NPDES permit. In EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 204-06 (1976) the Court held that the permit (that is, not the water quality standards) defines the discharger’s obligations. In a similar approach debated almost twenty years later, the court in American Paper Institute, Inc. v. U.S. EPA, 996 F.2d 346, 350 (D.C. Cir. 1993) again stressed the




http://www.lrc.ky.gov/kar/401/005/002.htm







54

D. Section 303(d) Lists and Integrated Reports

As discussed above, the CWA requires that states designate uses of navigable waters and establish water quality standards that are consistent with those uses. States must also determine whether waters meet the applicable water quality standards and achieve their designated uses. Where those standards are attained, the CWA requires that effluent limitations or other permit standards be "consistent with the anti-degradation policy . . . ."17 Sections 303(d) and 305(b) of the CWA require states to identify segments of streams, rivers, and lakes that do not meet their designated uses, identify the pollutants responsible, and report the results and broader evaluations of water quality. Those water bodies where the water quality does not support a designated use are referred to as "impaired." After a state identifies a specific body of polluted water then the state must determine the maximum amount of the pollutant that the water can contain and still meet the intended use. Finally, for water bodies in which the pollutants cannot be reduced to acceptable levels by imposing controls at the discharge permit level, the state must develop strategies to ensure that the pollutant does not exceed that maximum amount. These obligations and activities are required under §303 and the program for Total Maximum Daily Loads ("TMDLs").18 An important aspect of the TMDL program is its potential for implementing remedial action plans for nonpoint sources. Years of work in the Chesapeake Bay yielded a TMDL designed to address pollution by excess nitrogen, phosphorous, and sediment. EPA and seven jurisdictions (Delaware, District of Columbia, Maryland, New York, Pennsylvania, Virginia, and West Virginia) developed the TMDL. Upholding the TMDL, the Third Circuit noted that the complex system would impose burdens on "rural counties with farming operations, nonpoint source polluters, [and] the agricultural industry . . . ."19

III. WATER QUALITY AND NONPOINT SOURCE POLLUTION

Kentucky’s most recent Integrated Report under CWA Sections 303(d) and 305(b) provides a snapshot of Kentucky’s water quality.20 According to this

crucial role of the NPDES permit and stated: "the rubber hits the road when the state-created standards are used as the basis for specific effluent limitations in NPDES permits." 17

33 U.S.C. §1313(d)(4)(B). 18

33 U.S.C. §1313(d)(1)(A) and (C). 19

American Farm Bureau Federation v. U.S. EPA, 792 F.3d 281, 309-10 (3d Cir. 2015), cert. denied, 136 S.Ct. 1246 (2016). 20

Kentucky Division of Water, Integrated Report to Congress on the Condition of Water Resources in Kentucky, 2014, Volume 1 (2015) (hereinafter "2014 Integrated Report").



55

report, only about 13 percent of Kentucky’s streams and rivers have been assessed for use attainment (12,137 of 90,961 stream miles).21 Many of the assessed streams do not fully support their designated uses.

Table 1. Percent of Streams/Rivers Supporting Designated Uses in 2014

Integrated Report.

Designated Use Percent Supporting Use

Warm and Cold Water Aquatic Habitat 51%

Primary Contact Recreation 29%

Secondary Contact Recreation 67%

Domestic Water Supply 100%

Before we declare the CWA a failure, however, we must examine what has caused many of those water bodies to fail to support their designated uses. Table 2 summarizes information from the 2014 Integrated Report and a previous report from 2012 regarding the extent and causes of impaired rivers and streams. Causes of the vast majority of impaired stream miles are related to nonpoint sources of pollution. The 2015 Integrated Report concluded as follows:

The primary source of pollutants affecting the Commonwealth’s waters emanate from nonpoint sources (NPS). Both within the Commonwealth and nationally, pathogen indicators (bacteria), sedimentation/siltation and nutrients continue to be the leading causes of impairment; this is a direct reflection on NPS pollution being the most significant source of degradation to water bodies.22

The impact of nonpoint source pollution is not unique to Kentucky. The Ohio Environmental Protection Agency recently undertook a detailed study of the sources of nutrient pollution in seven major watersheds across the state.23 The study involved mass balance calculations based on pollutant and flow monitoring, reports of NPDES discharges, household sewage treatment systems ("HSTS"), and nonpoint sources ("NPS") that included agricultural, rural, and urban runoff. The study found that a majority of nitrogen and phosphorus in the river basins came from nonpoint sources. In only one watershed (Cuyahoga) was the contribution of permitted, NPDES sources greater than 50 percent of the nutrient load.

21

Id. at xvii. 22

See, e.g., 2014 Integrated Report, at 12. 23

Ohio Environmental Protection Agency, Nutrient Mass Balance Study for Ohio’s Major Rivers (2016).

56

Table 2. Miles of Rivers and Streams Assessed and Impaired by Example Pollutants and Conditions.

2015* 2012**

Miles Assessed 12,137 11,806

Causes of Impairment Miles Impaired

% Assessed Miles

Miles Impaired

% Assessed Miles

Fecal Coliform + E. coli 4,277.5 35.2% 3,990.3 33.8%

Sediment 3,618.0 29.8% 3,181.0 26.9%

Nutrients/Eutrophication 1,711.1 14.1% 1,677.6 14.2%

Cause Unknown 859.3 7.1% 866.1. 7.3%

Specific Conductance 826.6 6.8% 764.5 6.5%

Total Dissolved Solids 764.6 6.3% 774.1 6.6%

Organic Enrichment 743.2 6.1% 753.1 6.4%

PCBs in water column 664.1 5.5% 607.1 5.1%

Ammonia, Cadmium, Chloride, Chromium, Copper, Manganese, Mercury, Nickel, Nitrates, Nitrogen, Oil & Grease, Selenium, Sulfates, Total Kjeldahl-Nitrogen, Zinc

Each < 100

< 1% Each <100 <1%

* Data from 2014 Integrated Report, page 62. ** Data from U.S.E.P.A. Kentucky Water Quality Assessment Report, accessed at https://ofmpub.epa.gov/waters10/attains_state.control?p_state=KY&p_cycle =2012#total_assessed_waters

Table 3. Percent of Total Phosphorus and Nitrogen from Sources in Seven Ohio

Watersheds.24

Watershed Total Phosphorus (percent of total) Total Nitrogen (percent of total)

HSTS NPDES NPS HSTS NPDES NPS

Maumee 4 9 87 1 10 89

Portage 5 11 84 2 8 86

Sandusky 2 5 93 1 3 95

Cuyahoga 11 29 60 6 62 32

Great Miami

6 37 56 3 17 80

Scioto 4 30 66 3 16 81

Muskingum 10 49 41 7 25 68

24

Id. at 17.

https://ofmpub.epa.gov/waters10/attains_state.control?p_state=KY&p_cycle%0b=2012#total_assessed_waters

https://ofmpub.epa.gov/waters10/attains_state.control?p_state=KY&p_cycle%0b=2012#total_assessed_waters

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IV. THE CLEAN WATER ACT AND RUNOFF FROM NONPOINT SOURCES

Stormwater runoff has a significant impact on surface water quality. As water from precipitation flows across surfaces it may pick up contaminants such as chemicals, soil, and debris and then carry those pollutants into a storm sewer system or directly into a stream, river, or lake. The nationwide, cumulative impact of these pollutants is enormous: it includes 38,114 miles of impaired rivers and streams; restricted use of almost 40 percent of shellfish beds; increased appearance of pesticides in urban streams and in fish tissue; and increased potential for the spread of human pathogens.25 Urban stormwater runoff has even been implicated among the causes of lead-contaminated drinking water in Flint, Michigan, due to the corrosive nature of high chloride concentrations in the water from application of salt to roads in winter.26 The 1987 amendments to the CWA brought specific stormwater discharges under the umbrella of regulated point sources: discharges from municipal and certain industrial sources.27 In addition to permitting requirements, the CWA requires municipal dischargers to undertake a variety of actions that include prohibiting non-stormwater discharges into the storm sewers and "to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the administrator or the state determines appropriate for the control of such pollutants."28 The stormwater portion of the KPDES system is set forth in 401 KAR 5:060 Section 8. This regulation incorporates 40 C.F.R. §122.26. Permitting requirements apply to Municipal Separate Storm Sewer Systems ("MS4s"),29 Storm Water Discharge Associated with Industrial Activity,30 and Storm Water Discharge Associated with Small Construction Activity.31 Permits related to these activities generally focus on best management practices and storm water pollution prevention plans but do not generally contain numeric effluent limitations, contrary to more traditional NPDES permits.32 It remains to

25

National Academy of Sciences, Urban Stormwater Management in the United States 25-26 (2009). 26

See, e.g., Keith Harrison, Delaware Health and Social Services, TapTalk, Flint Water, Corrosivity, and Lead (2016). 27

33 U.S.C. §1342(p). See also 40 C.F.R. §122.26. 28

33 U.S.C. §1342(p)(3)(B)(iii) (emphasis added). 29

401 KAR 5:002 Section 1 (91); 40 C.F.R. §122.26(b)(8). 30

401 KAR 5:002 Section 1 (156); 40 C.F.R. §122.26(b)(14). 31

401 KAR 5:002 Section 1 (157); 40 C.F.R. §122.26(b)(15). 32

See, e.g., KPDES No. KYS000001, Louisville and Jefferson County Permit to Discharge from a Large Municipal Separate Storm Sewer System.


https://www.law.cornell.edu/cfr/text/40/122.26










58

be seen how effective these efforts will be in reducing the impact of these storm water systems. Agriculture is shielded from many stormwater requirements. The Act’s definition of "point source" excludes "agricultural stormwater discharges and return flows from irrigated agriculture."33 For example, in a recent case from West Virginia the court held that the Clean Water Act’s agricultural stormwater exemption applied to dust, litter, and manure released from poultry houses and carried by precipitation to a nearby stream. Therefore, the court determined, those discharges to surface water did not require an NPDES Permit.34

Even if the agriculture stormwater exemption could be overcome, it may be difficult to find a suitable party that has the duty and capacity to reduce pollution. In 2015, the Des Moines Water Works (Iowa) filed suit against agricultural interests complaining that, among other harms, the runoff from agricultural drainage districts caused excessive levels of nitrates in the Racoon River that necessitated installation of new, expensive treatment facilities to protect the drinking water users and to comply with requirements of the Safe Drinking Water Act.35 The ten-count complaint alleged violations of the CWA, Iowa statutes, nuisance, trespass, negligence, takings, and violations of due process. Regarding the CWA, the Water Works alleged that the agricultural drainage districts were not covered by the agricultural storm water exemption because the districts gathered groundwater and discharged the high-nitrate water to the Racoon River. Almost two years to the day after the case was filed, the court granted defendants’ motion for summary judgment. The court did not address the merits of the CWA claims but dismissed the case on the primary basis that the Water Works did not have standing under the doctrine of redressability. Even if the claims had merit, the defendant drainage districts did not have the ability to address the harms.36

For impaired water bodies that resist improvement by NPDES permit restrictions, alone, TMDLs represent a possible bright spot in addressing nonpoint source pollution. They have been the source of litigation since 1972. In upholding the Chesapeake Bay TMDL, the court described the role of states in formulating methods to control pollution from nonpoint sources.37 Even if adopted, a TMDLS is, at best, what a sympathetic court described as an "informational tool" that is meant to "inform the design and implementation of pollution control measures."38

33

33 U.S.C. §1362(14). 34

Alt v. U.S. EPA, No. 2:12-cv-00042, 979 F.Supp.2d 701 (N.D. W.V. Oct. 2013). 35

Board of Water Works Trustees of the City of Des Moines v. Sac County Board of Supervisors, Case No. 15-04020, 2015 WL 1191173 (N.D. Iowa, W. Div., March 16, 2015). 36

Board of Water Works Trustees of the City of Des Moines v. Sac County Board of Supervisors, Case No. 15-04020, 2017 WL 1042072 (N.D. Iowa, W. Div., March 17, 2017). 37

American Farm Bureau Federation v. U.S. EPA, 792 F.3d 281 (3d Cir. 2015), cert. denied, 136 S.Ct. 1246 (2016). 38

Id. at 291 n. 4.


59

TMDLs require expenditures of time and financial resources. Kentucky has completed sixty-one approved TMDLs and has six more under development.39 The Commonwealth may be reaching a point of critical mass where there is sufficient information and the necessary approved framework to implement TMDLs to reduce nonpoint source pollution that is such a common cause of water quality concerns. Finally, CWA Section 319 provided a broad planning and aspirational approach to nonpoint source pollution. Added in 1987, this section directed states to assess nonpoint source pollution and to develop management programs to control pollution from those sources.40 The Act made federal funds available for these efforts.41 Section 319’s focus on watershed-level evaluations is an effective complement to the TMDL program. Together these programs allow states and even regions to identify the unique challenges they face and to craft regulatory environments to improve water quality. Kentucky’s nonpoint source management plan depends largely on voluntary efforts and incentives to implement controls of nonpoint source pollutants.42 The plan also depends on integrating the actions of numerous local, state, and federal agencies and other groups with interests as diverse as local land use to resource extraction.

V. CONCLUSION

The Clean Water Act has been very effective in addressing pollutants to surface waters when those pollutants come from traditional point sources. But many of the primary adverse impacts to water quality that we observe today are due to pollutants from nonpoint sources. The Act is not so clearly drafted or easily implemented to address those sources. The Act’s unfinished business may be best addressed by statutory changes that will require the cooperation of diverse interests and appoint a lead agency to take charge of full implementation. We can only hope.

39

See, e.g., http://water.ky.gov/waterquality/Pages/ApprovedTMDLs.aspx. 40

33 U.S.C. §1329(a) and (b). 41

33 U.S.C. §1329(h). 42

See, e.g., Kentucky Division of Water, Nonpoint Source Management Plan 3 (2014), available at: http://water.ky.gov/nsp/Pages/PollutionControl.aspx

http://water.ky.gov/waterquality/Pages/ApprovedTMDLs.aspx



http://water.ky.gov/nsp/Pages/PollutionControl.aspx

61

CLEAN WATER ISSUES FOR KENTUCKY LAWYERS CITIZENS AND LAWYERS, YESTERDAY, TODAY & TOMORROW

Hank Graddy

SUMMARY OF OUTLINE I. CLEAN WATER ACT GOALS, POLICY AND JURISDICTION........................... 61 II. SURFACE MINING CONTROL & RECLAMATION ACT. STREAMS................. 72 III. THIS PRESIDENT AND THIS CONGRESS ...................................................... 75 IV. KENTUCKY LAW – BOTH GOOD AND BAD .................................................... 77 V. WHAT WORKS AND WHAT NEEDS WORK ..................................................... 79 VI. A CLEAN WATER ECONOMY .......................................................................... 80 VII. A CITIZENS CLEAN WATER ACT .................................................................... 82

CITIZENS AND LAWYERS, YESTERDAY, TODAY AND TOMORROW I. FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. §§1251 ET SEQ.)

COMMONLY REFERRED TO AS THE CLEAN WATER ACT (CWA)

A. Declaration of Goals and Policy

SEC. 101. (a). . . The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this Act – (1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985; (2) it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983; (3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited; (4) it is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works;



62

(5) it is the national policy that areawide treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State; (6) it is the national policy that a major research and demonstration effort be made to develop technology necessary to eliminate the discharge of pollutants into the navigable waters, waters of the contiguous zone and the oceans; and (7) it is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this Act to be met through the control of both point and nonpoint sources of pollution. . . . (e) Public participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program established by the Administrator or any State under this Act shall be provided for, encouraged, and assisted by the Administrator and the States. The Administrator, in cooperation with the States, shall develop and publish regulations specifying minimum guidelines for public participation in such processes.

B. Goals Not Met

Texas Municipal Power Agency v. Administrator of United States Environmental Protection Agency, 836 F.2d 1482 (5th Cir. 1988)

The CWA is strong medicine. Section 301(a) prohibits the discharge by any person of any pollutant into the nation's waters except that which the EPA expressly allows in an NPDES permit. Section 101(a)(1) states that Congress enacted the CWA to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" and adopts "the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985." Congress explicitly recognized that reduction of the amount of effluents – not merely their dilution or dispersion – is the goal of the CWA. This and other courts long ago adopted this view of the EPA's enabling legislation. That the CWA's ambitious goal has not been achieved even in 1987 does not vitiate Congress's intent that it be achieved as soon as possible. As section 308(a) makes clear, EPA policing of effluent limitations is instrumental to its achievement. And, under section 308(a), the EPA has authority to monitor waste streams "at such locations" necessary to "determin[e] whether any person is in





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violation of [an] effluent limitation." Under section 402, the EPA has broad powers to impose NPDES permit conditions "to assure compliance with" effluent limitations required by the CWA.

Id. at 1488-89. C. CWA Definitions and Jurisdiction, 33 U.S.C. §1362

1. "(6) The term 'pollutant' means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water….."

2. "(7) The term 'navigable waters' means the waters of the United

States, including the territorial seas." 3. "(12) The term 'discharge of a pollutant' and the term 'discharge of

pollutants' each means (A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft."

4. "(19) The term 'pollution' means the man-made or man-induced

alteration of the chemical, physical, biological, and radiological integrity of water."

D. The Supreme Court Interprets CWA Jurisdiction

U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985)

Although the Act prohibits discharges into "navigable waters," see CWA §§301(a), 404(a), 502(12), 33 U.S.C. §§1311(a), 1344(a), 1362(12), the Act's definition of "navigable waters" as "the waters of the United States" makes it clear that the term "navigable" as used in the Act is of limited import. In adopting this definition of "navigable waters," Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed "navigable" under the classical understanding of that term. See S. Conf. Rep. No. 92-1236, p. 144 (1972); 118 Cong. Rec. 33756-33757 (1972) (statement of Rep. Dingell).

Id. at 133.







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"The regulation of activities that cause water pollution cannot rely on . . . artificial lines . . . but must focus on all waters that together form the entire aquatic system. Water moves in hydrologic cycles, and the pollution of this part of the aquatic system, regardless of whether it is above or below an ordinary high water mark, or mean high tide line, will affect the water quality of the other waters within that aquatic system."

Id. at 134. In both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation. See id., at 10426-10432 (House debate); id., at 26710-26729 (Senate debate). Proponents of a more limited §404 jurisdiction contended that the Corps' assertion of jurisdiction over wetlands and other nonnavigable "waters" had far exceeded what Congress had intended in enacting §404. Opponents of the proposed changes argued that a narrower definition of "navigable waters" for purposes of §404 would exclude vast stretches of crucial wetlands from the Corps' jurisdiction, with detrimental effects on wetlands ecosystems, water quality, and the aquatic environment generally. The debate, particularly in the Senate, was lengthy. In the House, the debate ended with the adoption of a narrowed definition of "waters"; but in the Senate the limiting amendment was defeated and the old definition retained. The Conference Committee adopted the Senate's approach: efforts to narrow the definition of "waters" were abandoned; the legislation as ultimately passed, in the words of Senator Baker, "[retained] the comprehensive jurisdiction over the Nation's waters exercised in the 1972 Federal Water Pollution Control Act."

Id. at 136-37. E. "WOTUS" – Waters of the United States – Need for Rule

The proposed WOTUS Rule was published on April 21, 2014, in the Federal Register, 79 FR 22188, with the following legislative and judicial history at 79 FR pages 22191-22192:

The modern Clean Water Act was established by the Federal Water Pollution Control Act Amendments of 1972, which was substantially amended in 1977 and 1987. (The 1972 amendments were to the Federal Water Pollution Control Act originally enacted in 1948.) As stated in section 101(a), the objective of the CWA is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. Prior to the CWA, the Rivers and Harbors






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Appropriations Act of 1899 protected navigation and protected some waters from discharges of pollution. The 1899 Act continues in force and applies primarily to the "navigable waters of the United States." The 1948 Federal Water Pollution Control Act called for programs eliminating or reducing the pollution of interstate waters and tributaries thereof, and improving the sanitary condition of surface and underground waters. The jurisdictional scope of the CWA is "navigable waters," defined in section 502(7) of the statute as "waters of the United States, including the territorial seas." Both the legislative history and the caselaw confirm that "waters of the United States" in the CWA are not limited to the traditional navigable waters. It is the CWA definition that is the subject of this proposed rule. The term "navigable waters" is used in a number of provisions of the CWA, including the section 402 National Pollutant Discharge Elimination System (NPDES) permit program, the section 404 permit program, the section 311 oil spill prevention and response program,[footnote omitted] the water quality standards and total maximum daily load programs under section 303, and the section 401 state water quality certification process. However, while there is only one CWA definition of "waters of the United States," there may be other statutory factors that define the reach of a particular CWA program or provision. The CWA leaves it to EPA and the Corps to define the term "waters of the United States." Existing regulations (last codified in 1986) define "waters of the United States" as traditional navigable waters, interstate waters, all other waters that could affect interstate or foreign commerce, impoundments of waters of the United States, tributaries, the territorial seas, and adjacent wetlands. 33 CFR 328.3; 40 CFR 122.2. The U.S. Supreme Court addressed the scope of "waters of the United States" protected by the CWA in United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), which involved wetlands adjacent to a traditional navigable water in Michigan. In a unanimous opinion, the Court deferred to the Corps' judgment that adjacent wetlands are "inseparably bound up" with the waters to which they are adjacent, and upheld the inclusion of adjacent wetlands in the regulatory definition of "waters of the United States." The Court observed that the broad objective of the CWA to restore the integrity of the nation's waters "incorporated a broad, systemic view of the goal of maintaining and improving water quality. . . . Protection of aquatic












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ecosystems, Congress recognized, demanded broad federal authority to control pollution, for '[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source.' In keeping with these views, Congress chose to define the waters covered by the Act broadly." Id. at 133 (citing Senate Report 92-414). The issue of CWA regulatory jurisdiction over "waters of the United States" was addressed again by the Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). In SWANCC, the Court (in a 5-4 opinion) held that the use of "isolated" nonnavigable intrastate ponds by migratory birds was not by itself a sufficient basis for the exercise of Federal regulatory authority under the [*22192] CWA. The Court noted that in the Riverside case it had "found that Congress' concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands inseparably bound up with the "waters of the United States'" and that "[i]t was the significant nexus between the wetlands and navigable waters' that informed our reading of the CWA" in that case. Id. at 167. Five years after SWANCC, the Court again addressed the CWA term "waters of the United States" in Rapanos v. United States, 547 U.S. 715 (2006). Rapanos involved two consolidated cases in which the CWA had been applied to wetlands adjacent to nonnavigable tributaries of traditional navigable waters. All Members of the Court agreed that the term "waters of the United States" encompasses some waters that are not navigable in the traditional sense. A four-Justice plurality in Rapanos interpreted the term "waters of the United States" as covering "relatively permanent, standing or continuously flowing bodies of water. . ." id. at 739, that are connected to traditional navigable waters, id. at 742, as well as wetlands with a continuous surface connection to such relatively permanent water bodies, id. The Rapanos plurality noted that its reference to "relatively permanent" waters did "not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought," or "seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months. . . ." Id. at 732 n.5 (emphasis in original). Justice Kennedy's concurring opinion took a different approach than the plurality's. Justice Kennedy concluded that the term "waters of the United States" encompasses wetlands that "possess a significant nexus to waters that are or were navigable in fact or that could reasonably be










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so made." Id. at 759 (Kennedy, J., concurring in the judgment) (quoting SWANCC, 531 U.S. at 167). He stated that wetlands possess the requisite significant nexus if the wetlands, "either alone or in combination with similarly situated [wet]lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.'" 547 U.S. at 780. Kennedy's opinion notes that such a relationship with navigable waters must be more than "speculative or insubstantial." Id. Because Justice Kennedy identified "significant nexus" as the touchstone for CWA jurisdiction, the agencies determined that it is reasonable and appropriate to apply the "significant nexus" standard for CWA jurisdiction that Justice Kennedy's opinion applied to adjacent wetlands to other categories of water bodies as well (such as to tributaries of traditional navigable waters or interstate waters, and to "other waters") to determine whether they are subject to CWA jurisdiction, either by rule or on a case-specific basis.

F. The Unfairly Maligned "WOTUS" Rule

1. 33 CFR §328.3 definitions [before WOTUS – 2013]. For the purpose of this regulation these terms are defined as follows: (a) The term waters of the United States means (1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (2) All interstate waters including interstate wetlands; (3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: (i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or (ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or


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(iii) Which are used or could be used for industrial purpose by industries in interstate commerce; (4) All impoundments of waters otherwise defined as waters of the United States under the definition; (5) Tributaries of waters identified in paragraphs (a)(1) through (4) of this section; (6) The territorial seas; (7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1) through (6) of this section. (8) Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.

2. 38 CFR §328.3 definitions [WOTUS – proposed in 2014, adopted

in 2015].

For the purpose of this regulation these terms are defined as follows: (a) For purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and its implementing regulations, subject to the exclusions in paragraph (b) of this section, the term "waters of the United States" means: (1) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (2) All interstate waters, including interstate wetlands; (3) The territorial seas; (4) All impoundments of waters otherwise identified as waters of the United States under this section; (5) All tributaries, as defined in paragraph (c)(3) of this section, of waters identified in paragraphs (a)(1) through (3) of this section;




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(6) All waters adjacent to a water identified in paragraphs (a)(1) through (5) of this section, including wetlands, ponds, lakes, oxbows, impoundments, and similar waters; (7) All waters in paragraphs (a)(7)(i) through (v) of this section where they are determined, on a case-specific basis, to have a significant nexus to a water identified in paragraphs (a)(1) through (3) of this section. The waters identified in each of paragraphs (a)(7)(i) through (v) of this section are similarly situated and shall be combined, for purposes of a significant nexus analysis, in the watershed that drains to the nearest water identified in paragraphs (a)(1) through (3) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (a)(6) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (a)(6), they are an adjacent water and no case-specific significant nexus analysis is required. (i) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest. (ii) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain. (iii) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain. (iv) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers. (v) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas Gulf Coast. (8) All waters located within the 100-year floodplain of a water identified in paragraphs (a)(1) through (3) of this section and all waters located within

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4,000 feet of the high tide line or ordinary high water mark of a water identified in paragraphs (a)(1) through (5) of this section where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs (a)(1) through (3) of this section. For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located within the 100-year floodplain of a water identified in paragraphs (a)(1) through (3) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in paragraph (a)(6) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (a)(6), they are an adjacent water and no case-specific significant nexus analysis is required. (b) The following are not "waters of the United States" even where they otherwise meet the terms of paragraphs (a)(4) through (8) of this section. (1) Waste treatment systems, including treatment ponds or lagoons designed to meet the require-ments of the Clean Water Act. (2) Prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. (3) The following ditches: (i) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary. (ii) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands. (iii) Ditches that do not flow, either directly or through another water, into a water identified in paragraphs (a)(1) through (3) of this section.

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(4) The following features: (i) Artificially irrigated areas that would revert to dry land should application of water to that area cease; (ii) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds; (iii) Artificial reflecting pools or swimming pools created in dry land; (iv) Small ornamental waters created in dry land; (v) Water-filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water; (vi) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non-wetland swales, and lawfully constructed grassed waterways; and (vii) Puddles. (5) Groundwater, including groundwater drained through subsurface drainage systems. (6) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land. (7) Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling. …………….. (c) [Definitions]……. (3) Tributary and tributaries. The terms tributary and tributaries each mean a water that contributes flow, either directly or through another water (including an impoundment identified in paragraph (a)(4) of this section), to a water identified in paragraphs (a)(1) through (3) of this section that is characterized by the presence of the physical indicators of a bed and banks and an

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ordinary high water mark. These physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary. A tributary can be a natural, man-altered, or man-made water and includes waters such as rivers, streams, canals, and ditches not excluded under paragraph (b) of this section. A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary if, for any length, there are one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the break. A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary if it contributes flow through a water of the United States that does not meet the definition of tributary or through a non-jurisdictional water to a water identified in paragraphs (a)(1) through (3) of this section.

G. Stay Issued for WOTUS by Sixth Circuit

Multiple suits were filed to challenge the WOTUS Rule including petitions filed by environmental groups such as the Sierra Club. On October 15, 2015, the Sixth Circuit Court of Appeals issued a nationwide stay of the Rule. See Murray Energy Corp. et al v. United States Environmental Protection Agency et al, U.S.C.A. 6th Cir. Case No. 15-3751 and consolidated cases. Petitioners’ briefs were filed in late 2016. The U.S. EPA filed the Brief for Respondents on January 13, 2017.

II. SURFACE MINING CONTROL AND RECLAMATION ACT (SMCRA) – THE

LONGEST FORTY YEARS IN HISTORY

A. The Unfairly Maligned Stream Protection Rule

The Stream Protection Rule was adopted to implement the requirements of the Surface Mining Control and Reclamation Act, (SMCRA) at 30 USCA §1201 et seq. SMCRA begins with Congressional Findings, including the following:

The Congress finds and declares that – (a) extraction of coal and other minerals from the earth can be accomplished by various methods of mining, including surface mining;



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. . . . (c) many surface mining operations result in disturbances of surface areas that burden and adversely affect commerce and the public welfare by destroying or diminishing the utility of land for commercial, industrial, residential, recreational, agricultural, and forestry purposes, by causing erosion and landslides, by contributing to floods, by polluting the water, by destroying fish and wildlife habitats, by impairing natural beauty, by damaging the property of citizens, by creating hazards dangerous to life and property[,] by degrading the quality of life in local communities, and by counteracting governmental programs and efforts to conserve soil, water, and other natural resources; (d) the expansion of coal mining to meet the Nation's energy needs makes even more urgent the establishment of appropriate standards to minimize damage to the environment and to productivity of the soil and to protect the health and safety of the public[.;] (f) because of the diversity in terrain, climate, biologic, chemical, and other physical conditions in areas subject to mining operations, the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations subject to this Act should rest with the States[.]

1. Stream Buffer Zone Rule.

Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 204 F. Supp. 2d 927 (S.D. W.Va. 2002) discussed the "Stream Buffer Zone Rule," as follows:

In 1977 the Office of Surface Mining (OSM) promulgated the so-called "buffer zone rule," which provides:

No land within 100 feet of a perennial stream or an intermittent stream shall be disturbed by surface mining activities, unless the regulatory authority specifically authorizes surface mining activities closer to, or through such a stream. The regulatory authority may authorize such activities only upon finding that –

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(1) Surface mining activities will not cause or contribute to the violation of applicable State or Federal water quality standards, and will not adversely affect the water quantity and quality or other environmental resources of the stream.

30 C.F.R. §816.57 (emphasis added). Under SMCRA, the buffer zone rule protects perennial and intermittent streams and their parts and reaches from surface mining incursions that affect their water quality and quantity or other environmental resources, consonant with the Clean Water Act. See Bragg, 72 F.Supp.2d at 649-52. For fill placement, these values are supposed to be protected by §404 permits, which may not authorize destruction of perennial or intermittent streams solely for waste disposal. SMCRA further supports this plan by requiring overburden waste to be returned to the mine site unless a higher and better constructive purpose is served by the fill.

Id. at 942.

2. Stream Protection Rule.

The Obama Administration sought to help resolve decades of uncertainty about the proper implementation of the Stream Buffer Zone Rule by effectively eliminating it and expressly allowing surface mining activities through perennial and intermittent streams and within 100 feet of such streams – IF done in compliance with the Stream Protection Rule.

30 CFR §816.57 What additional performance standards apply to mining activities conducted in or through a perennial or intermittent stream or on the surface of land within 100 feet of a perennial or intermittent stream?

(a) Compliance with federal, state, and tribal water quality laws and regulations. (1) You may conduct surface mining activities in or affecting waters subject to the jurisdiction of the Clean Water Act, 33 U.S.C. 1251 et seq., only if you first obtain all necessary authorizations, certifications, and permits under that law.





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(2) Surface mining activities must comply with all applicable state and tribal laws and regulations concerning surface water and groundwater. (b) Prohibition on mining in or within 100 feet of a perennial or intermittent stream. You may not conduct surface mining activities in or through a perennial or intermittent stream, or that would disturb the surface of land within 100 feet of a perennial or intermittent stream, unless the regulatory authority authorizes you to do so in the permit after making the findings required under §780.28 of this chapter. The 100-foot distance must be measured horizontally on a line perpendicular to the stream, beginning at the ordinary high water mark.

B. January 17, 2017: Thirteen States Sue Department of Interior

On January 17, 2017, thirteen (13) states including Kentucky filed suit in the District Court of the District of Columbia, against the Department of Interior and the Office of Surface Mining to seek to block the implementation of the Stream Protection Rule. See Ohio et al v. Department of Interior, 1:17-CV-00108 (D. Ct. of District of Columbia).

III. THIS PRESIDENT AND THIS CONGRESS

This President and his Administration and this Congress have not changed the jurisdiction of the CWA. On February 28, 2017, the President issued the following Executive Order:

RESTORING THE RULE OF LAW, FEDERALISM, AND ECONOMIC GROWTH BY REVIEWING THE "WATERS OF THE UNITED STATES" RULE By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: Section 1. Policy. It is in the national interest to ensure that the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.


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Sec. 2. Review of the Waters of the United States Rule. (a) The Administrator of the Environmental Protection Agency (Administrator) and the Assistant Secretary of the Army for Civil Works (Assistant Secretary) shall review the final rule entitled "Clean Water Rule: Definition of 'Waters of the United States,'" 80 Fed. Reg. 37054 (June 29, 2015), for consistency with the policy set forth in section 1 of this order and publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with law. (b) The Administrator, the Assistant Secretary, and the heads of all executive departments and agencies shall review all orders, rules, regulations, guidelines, or policies implementing or enforcing the final rule listed in subsection (a) of this section for consistency with the policy set forth in section 1 of this order and shall rescind or revise, or publish for notice and comment proposed rules rescinding or revising, those issuances, as appropriate and consistent with law and with any changes made as a result of a rulemaking proceeding undertaken pursuant to subsection (a) of this section. (c) With respect to any litigation before the Federal courts related to the final rule listed in subsection (a) of this section, the Administrator and the Assistant Secretary shall promptly notify the Attorney General of the pending review under subsection (b) of this section so that the Attorney General may, as he deems appropriate, inform any court of such review and take such measures as he deems appropriate concerning any such litigation pending the completion of further administrative proceedings related to the rule. Sec. 3. Definition of "Navigable Waters" in Future Rulemaking. In connection with the proposed rule described in section 2(a) of this order, the Administrator and the Assistant Secretary shall consider interpreting the term "navigable waters," as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006). Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.






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(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP THE WHITE HOUSE, February 28, 2017.

Repeal of the Stream Protection Rule reinstates the Stream Buffer Zone. The Lexis/Nexis legal research service describes the effect as follows:

Per the Congressional Review Act (Act March 29, 1996, P. L. 104-121, §251, 110 Stat. 869), Congress disapproved the final rules in 81 FR 93066, "Stream Protection Rule." Consequently, the revisions in 81 FR 93066 are made of no force or effect. See Act Feb. 16, 2017, P. L. 115-5, 131 Stat. 10. For your convenience, we have printed the rule in effect prior to the amendment in 81 FR 93066 below:

§816.57 Hydrologic balance: Stream buffer zones. (a) No land within 100 feet of a perennial stream or an intermittent stream shall be disturbed by surface mining activities, unless the regulatory authority specifically authorizes surface mining activities closer to, or through, such a stream. The regulatory authority may authorize such activities only upon finding that – (1) Surface mining activities will not cause or contribute to the violation of applicable State or Federal water quality standards, and will not adversely affect the water quantity and quality or other environmental resources of the stream; and (2) If there will be a temporary or permanent stream-channel diversion, it will comply with §816.43. (b) The area not to be disturbed shall be designated as a buffer zone, and the operator shall mark it as specified in §816.11.

IV. KENTUCKY LAW – THE GOOD AND THE BAD A. KRS 224.1-010 Definitions

(33) "Water" or "waters of the Commonwealth" means and includes any and all rivers, streams, creeks, lakes, ponds,

https://www.gpo.gov/fdsys/pkg/FR-2016-12-20/html/2016-29958.htm





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impounding reservoirs, springs, wells, marshes, and all other bodies of surface or underground water, natural or artificial, situated wholly or partly within or bordering upon the Commonwealth or within its jurisdiction; (34) "Water pollution" means the alteration of the physical, thermal, chemical, biological, or radioactive properties of the waters of the Commonwealth in such a manner, condition, or quantity that will be detrimental to the public health or welfare, to animal or aquatic life or marine life, to the use of such waters as present or future sources of public water supply or to the use of such waters for recreational, commercial, industrial, agricultural, or other legitimate purposes;

B. KRS 224.70-100 Policy and purpose as to water quality

(1) It is hereby declared to be the policy of this Commonwealth to conserve the waters of the Commonwealth for public water supplies, for the propagation of fish and aquatic life, for fowl, animal wildlife and arboreous growth, and for agricultural, industrial, recreational and other legitimate uses; to provide a comprehensive program in the public interest for the prevention, abatement and control of pollution; to provide effective means for the execution and enforcement of such program; and to provide for cooperation with agencies of other states or of the federal government in carrying out these objectives. (2) The following are among the purposes of KRS Chapter 224: to safeguard from pollution the uncontaminated waters of the Commonwealth; to prevent the creation of any new pollution of the waters of the Commonwealth; and to abate any existing pollution. Effective: June 17, 1978

C. Kentucky’s Race to the Bottom, at KRS 224.16-050(4):

The cabinet shall not impose under any permit issued pursuant to this section any effluent limitation, monitoring requirement, or other condition which is more stringent than the effluent limitation, monitoring requirement, or other condition which would have been applicable under federal regulation if the permit were issued by the federal government.


http://www.lrc.ky.gov/Statutes/index.aspx

http://www.lrc.ky.gov/Statutes/index.aspx


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D. Kentucky’s Unique Opportunity, at KRS 224.71-100 et seq.

224.71-110. Agriculture Water Quality Authority – Membership – Responsibilities. (1) The Agriculture Water Quality Authority is created and administratively attached to the cabinet. The authority shall be a multidiscipline peer group that shall evaluate, develop, and improve best-management practices in conservation plans, compliance plans, and forest stewardship management plans; establish statewide and regional agriculture water quality plans; and otherwise promote soil and water conservation activities that protect waters of the Commonwealth from the adverse impacts of agriculture operations within the Commonwealth. The cabinet shall provide staff to the authority.

V. WHAT WORKS AND WHAT NEEDS WORK

Clean Water Act Effectiveness – A to Z A. Point Sources – Forty-five Years of NPDES/KPDES Permits – CWA 402 B. Water Quality Standards – in Stream Numbers or Words to Protect Uses C. Effluent Limits – Technology Forcing D. Water Quality Based Effluent Limits – WQBELS E. Antidegradation – Keeping Clean Water Clean – 303(d)(4)(B); Kentucky

Regulation at 401 KAR 10:029; 10:030 F. Total Maximum Daily Loads – TMDLs – 303(d)(4)(A) – the Driver to

Restore Impaired Waters, by Calculating Point and Nonpoint Loading and Reducing

G. Reporting to Congress – Integrating CWA Sections 303(d) and 305(b) H. Non-point Sources – Agriculture and Some Parking Lots I. Municipal Stormwater – MS4 Cities J. Pathogen Pollution – E. coli K. Nutrient Pollution – Nitrogen and Phosphorus L. Sanitary Sewer Overflows (SSOs) Combined Sewer Overflows (CSOs) M. Consent Decrees N. Green Infrastructure










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O. Wetlands – Dredge and Fill Permits from the Army Corps – CWA 404 P. Water Quality Certification from the KY DOW – CWA 401 Q. Concentrated Animal Feeding Operations – CAFOs – CWA 502 R. Agriculture Stormwater Runoff S. Kentucky No Discharge Operating Permits – KNDOP T. Harmful Algae Blooms (HABs) – Blue-green Algae and Dead Zones U. The Hypoxia Task Force for the Gulf of Mexico V. ORSANCO – Ohio River Sanitation Commission – 1948 W. The Farm Bill X. The Conservation Title, the Conservation Reserve Program (CRP), the

Conservation Security Program (CSP), Environmental Quality Incentive Program (EQIP)

Y. Safe Drinking Water Act

Z. Source Water Protection Plans

VI. A CLEAN WATER ECONOMY

A. Robert Constanza, et al., The Value of the World’s Ecosystem Service and Natural Capital, Nature 387: 253-260, 1997, www.nature.com/nature/journal/v387/n6630/abs/387253a0.html

The services of ecological systems and the natural capital stocks that produce them are critical to the functioning of the Earth's life-support system. They contribute to human welfare, both directly and indirectly, and therefore represent part of the total economic value of the planet. We have estimated the current economic value of seventeen ecosystem services for sixteen biomes, based on published studies and a few original calculations. For the entire biosphere, the value (most of which is outside the market) is estimated to be in the range of US$16-54 trillion (1012) per year, with an average of US$33 trillion per year. Because of the nature of the uncertainties, this must be considered a minimum estimate. Global gross national product total is around US$18 trillion per year.

B. W. Michael Hanemann, The Value of Water, February 15, 2005.

www.ctec.ufal.br/professor/vap/Valueofwater.pdf




http://www.nature.com/nature/journal/v387/n6630/abs/387253a0.html

http://www.ctec.ufal.br/professor/vap/Valueofwater.pdf

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C. Nicholas E. Flores, The Value of Water in the U.S. Economy: Problems of Basic Inference, January 1, 2013, University of Colorado Boulder https://www.aeaweb.org/conference/2013/retrieve.php?pdfid=543

D. The EPA Science Advisory Board (SAB) was requested by the Obama

EPA to make recommendations for Estimating the Value of Water to the U.S. Economy. The EPA Designated Federal Officer with the SAB was Thomas Carpenter [[email protected]]. The following citations were provided to me by Mr. Carpenter:

1. [T]he link to an SAB project regarding Valuing the Protection of

Ecological Systems and Services. https://yosemite.epa.gov/sab/sabproduct.nsf/02ad90b136fc21ef85256eba00436459/16f9718f27dcd7f485256cf600578610!OpenDocument

2. The EPA Office of Research and Development addresses this

issue in its Sustainable and Healthy Communities Research. The link to the fact sheet provides contacts and other sources. https://www.epa.gov/sites/production/files/documents/shc-fact-sheet.pdf

E. An Assessment of the Economic Value of Clean Water in Lake

Champlain. Technical Report #81. Author: Brian Voigt, Julia Lees, Jon Erickson. www.lcbp.org/publications/assessment-economic-value-clean-water-lake-champlain/

At the parcel scale, both single family residential and seasonal home purchasers associated higher water quality with increased selling price….. [I]ncreased loading associated with climate change is estimated to result in a $7,000 average price decrease for single family dwellings, while reduced loading from TMDL implementation would result in a $15,200 average price increase for single family dwellings….. Extrapolating to the five-town scale concludes that a one-meter improvement in water clarity is expected to lead to a 10 percent increase ($110,544) in room expenditures for the month of August alone. At the regional scale an input-output model was constructed for a six-county lakeshore economy in Vermont and New York. County-level employment, income, industry and household characteristics were used to assess the economic flows among sectors….. Extrapolating from the town-scale model, a one-meter decrease in water clarity during the months of July and August would lead to the loss of 195 full-time equivalent

https://www.aeaweb.org/conference/2013/retrieve.php?pdfid=543

https://yosemite.epa.gov/sab/sabproduct.nsf/02ad90b136fc21ef85256eba00436459/16f9718f27dcd7f485256cf600578610!OpenDocument



https://www.epa.gov/sites/production/files/documents/shc-fact-sheet.pdf

https://www.epa.gov/sites/production/files/documents/shc-fact-sheet.pdf

http://www.lcbp.org/publications/assessment-economic-value-clean-water-lake-champlain/

http://www.lcbp.org/publications/assessment-economic-value-clean-water-lake-champlain/

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jobs, a $12.6 million reduction in tourism expenditures and a total economic reduction of nearly $16.8 million.

VII. A CITIZENS CLEAN WATER ACT

It will NOT surprise you when I assert that clean water is the most serious environmental issue in the minds and hearts of most Americans – and probably – most people around the world. That I assert this claim is not the issue. What is more important is that most of you agree with me. I do not want to diminish climate change or loss of species and biodiversity or overpopulation or the range of other serious environmental issues. However, most of these very critical issues matter a lot to environmental activists – like me – but matter little to most people in our country. Everybody cares about their water supply; is it clean enough to drink, to cook, to bath and to swim. The good news of the Clean Water Act is the same as the bad news of the Clean Water Act. THE CWA WORKS. The perception that it works has made many of our fellow citizens unconcerned about our water supply. We take it for granted that we will have clean water. We take for granted that the states and federal agencies employed to protect our water supply will not fail us – even as we elect officials who claim that we have "over-protected" our water and who cut the funding for those agencies. This was before President Trump. I support the conclusion that THE CWA WORKS. But it does not work as well as it should. The solution – A MORE EFFECTIVE CWA IS IN OUR HANDS – as citizens and lawyers. A. Go back to page 62. The Public Participation Mandate B. Citizen Suits, CWA Sec. 505.

(a) Except as provided in subsection (b) of this section and section 309(g)(6), any citizen may commence a civil action on his own behalf – (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this Act or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 309(d) of this Act.




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(b) No action may be commenced – (1) under subsection (a)(1) of this section – (A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or (B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right. (2) under subsection (a)(2) of this section prior to sixty days after the plaintiff has given notice of such action to the Administrator, except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of sections 306 and 307(a) of this Act. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation. (c)(1) Any action respecting a violation by a discharge source of an effluent standard or limitation or an order respecting such standard or limitation may be brought under this section only in the judicial district in which such source is located. (2) In such action under this section, the Administrator, if not a party, may intervene as a matter of right.

(3) PROTECTION OF INTERESTS OF UNITED STATES. – Whenever any action is brought under this section in a court of the United States, the plaintiff shall serve a copy of the complaint on the Attorney General and the Administrator. No consent judgment shall be entered in an action in which the United States is not a party prior to 45 days following the receipt of a copy of the proposed consent judgment by the Attorney General and the Administrator. (d) The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure.



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(e) Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency). (f) For purposes of this section, the term "effluent standard or limitation under this Act" means (1) effective July 1, 1973, an unlawful act under subsection (a) of section 301 of this Act; (2) an effluent limitation or other limitation under section 301 or 302 of this Act; (3) standard or performance under section 306 of this Act; (4) prohibition, effluent standard or pretreatment standards under section 307 of this Act; (5) certification under section 401 of this Act; (6) a permit or condition thereof issued under section 402 of this Act, which is in effect under this Act (including a requirement applicable by reason of section 313 of this Act); or (7) a regulation under section 405(d) of this Act,.1

(g) For the purposes of this section the term "citizen" means a person or persons having an interest which is or may be adversely affected.

C. We Have Tried

1. Kentucky Waterways Alliance v. McCarthy, Case No. 3:13-CV-

01207 (W.D. Ky). Settled with improvements to Kentucky water quality standards for selenium and nutrients.

2. Kentucky Waterways Alliance v. Johnson, 540 F.3d 466 (6th Cir.

2008). Successful challenge to Kentucky’s anti-degradation requirements.

3. Com., Energy and Environment Cabinet v. Sharp, 2012 Ky. App.

LEXIS 189*, 2012 WL 4035917 (Ky. App. May 25, 2012). Unsuccessful citizens' effort to require swine farms with "deep pit" manure handling comply with CWA.

D. Secretary LaJuana Wilcher Helped

1. Citizens Water Monitoring Policy. 2. Consent decrees.

E. Blaine Early Helped – Watershed Watch in Kentucky

1. https://sites.google.com/site/watershedwatch/. 2. http://www.uky.edu/krww/. 3. https://sites.google.com/site/saltriverwatershedwatch/.









https://sites.google.com/site/watershedwatch/

http://www.uky.edu/krww/

https://sites.google.com/site/saltriverwatershedwatch/

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SIERRA CLUB V. EPA Jacquelyn A. Quarles

This outline reviews issues relating to Sierra Club vs. E.P.A., (9th Cir.) (15-15894) (on appeal from the United States District Court for the Northern District of California, Case No. 3:13-ci-03953-SI). I. GENERAL NATIONAL AMBIENT AIR QUALITY STANDARDS (NAAQS)

BACKGROUND

A. Title I of the Clean Air Act requires the EPA to identify pollutants that cause or contribute to air pollution that may endanger public health or welfare and set a national ambient air quality standard (NAAQS) for each of these pollutants. To date, EPA has established NAAQS for the following six pollutants:

1. Particulate matter; 2. Sulfur dioxide; 3. Ozone; 4. Nitrogen dioxide; 5. Carbon monoxide; 6. Lead.

B. Establishing NAAQS

Section 109 of the Clean Air Act requires that the Administrator is to promulgate "primary" and "secondary" NAAQS for criteria pollutants.

1. A primary standard is one "the attainment and maintenance of

which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health." E.P.A. v. EME Homer City Generation, L.P., 134 S.Ct. 1584, 1617 (2014). The U.S. Court of Appeals for the D.C. Circuit held that this language requires consideration of the uncertainties associated with inconclusive scientific and technical information and is intended to provide a reasonable degree of protection against hazards not yet identified. American Petroleum Institute v. Costle, 665 F.2d 1176, 1185 (D.C. Cir. 1981), cert. denied, 455 U.S. 1034 (1982); Lead Industries Ass'n, Inc. v. E.P.A., 647 F.2d 1130, 1154 (D.C. Cir. 1980), cert. denied, 101 S. Ct. 621 (1980). Primary standards must significantly reduce adverse health effects but are not required to lower the risk to zero or limit concentrations to background levels. Lead Industries Ass'n, Inc. v. E.P.A., 647 F.2d at 1156 n.51 (D.C. Cir. 1980).

https://www.epa.gov/clean-air-act-overview/clean-air-act-title-i-air-pollution-prevention-and-control-parts-through-d

https://www.gpo.gov/fdsys/pkg/USCODE-2013-title42/html/USCODE-2013-title42-chap85-subchapI-partA-sec7409.htm

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2. A secondary standard must "specify a level of air quality the attainment and maintenance of which, in the judgment of the Administrator, based on such criteria, is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air." CAA §109(b)(2). Effects on welfare is defined to include effects on soils, water, crops, vegetation, man-made materials, animals, wildlife, weather, visibility, and climate.

C. Area Designation

Once the NAAQS are established, EPA must decide whether areas of the country are meeting the standards. If the standards are not met, the state must identify what pollution controls will bring the area into attainment. A network of air monitors collect the data needed to determine whether standards are met. The Clean Air Act provides strict deadlines for the states and EPA in the designation process.

1. As a new NAAQS is established, states must submit

recommended designations within one year. CAA §107(d)(1)(A). The Governor of a state shall submit to the Administrator a list of all areas in the states, designating the area as:

a. Nonattainment: any area that does not meet (or that

contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant;

b. Attainment: any area that meets the national primary or

secondary ambient air quality standard for the pollutant; or c. Unclassifiable: any area that cannot be classified on the

basis of available information as meeting or not meeting the national primary or secondary ambient air quality standard for the pollutant.

2. The Administrator shall promulgate the designations of all areas

submitted by the states as expeditiously as practicable, but in no case later than two years from the date of promulgation of the new or revised NAAQS. Such period may be extended for up to one year in the event the Administrator has insufficient information to promulgate the designations. CAA §107(d)(1)(B).

II. CASE BACKGROUND

A. Petition filed by Sierra Club and Natural Resources Defense Council on August 26, 2013, in U.S. District Court for the Northern District of California (Case No.: 3:13-cv-3953.) The states of Arizona, Nevada, North Dakota, Texas, Kentucky and North Carolina intervened in the action.




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B. The District Court granted Sierra Club’s motion for summary judgment, based on EPA’s admitted failure to designate, and ordered Sierra Club, defendant EPA, the Appellant States "to meet and confer regarding the remedy." The Sierra Club, EPA and States were unable to reach agreement on the remedy.

C. Consent Decree reached by EPA and Sierra Club: On March 2, 2015, the

Court entered the proposed Consent Decree over objections of the intervening states.

D. Elements of the Consent Decree:

Within sixteen months of the entry of the decree (July, 2016), EPA issues area designations for areas containing non-retiring facilities that either emitted more than 16,000 tons of SO2 in 2012 or emitted more than 2,600 tons with an emission rate of 0.45 lbs/MMbtu or higher in 2012.

1. EPA identified two electric power plants in Kentucky as meeting

the criteria:

a. DB Wilson Generating Station located in Ohio County. b. John S. Cooper Power Station located in Pulaski County.

2. By December, 2017, EPA issues designations for areas for which

states have not adopted a new monitoring network under the proposed data requirements rule; and

3. By December, 2020, EPA issues designations for areas for which

states have adopted a new monitoring network under the proposed data requirements rule.

III. APPEAL TO NINTH CIRCUIT; ISSUES PRESENTED FOR REVIEW

A. Whether the District Court abused its discretion by entering a consent decree that violates the Clean Air Act.

B. Whether the District Court abused its discretion by entering a consent

decree that permanently and substantially amends the established SO2 NAAQS designation process established by the Clean Air Act and governing law.

C. Whether the District Court reached an improper conclusion of law by

approving a consent decree that does not compel EPA to expeditiously act on the statutorily adequate information before it.

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IV. SUMMARY OF STATES’ ARGUMENTS

A. The Consent Decree violated the plain language of the CAA.

1. Because it is a form of judgment, a consent decree must conform to applicable laws.

2. A consent decree may not violate the statute. EPA cannot rewrite

the CAA. B. NAAQS designations are due after three years.

1. Congress has directed that EPA promulgate NAAQS designations no later than three years after the promulgation of a new NAAQS. CAA §107(d).

2. EPA revised the SO2 NAAQS on June 2, 2010, 75 Fed. Reg.

35,520. The new designations were therefore due on June 2, 2013.

3. EPA missed this deadline. 4. Appellant States met their obligations under CAA §107.

C. The CAA clearly states that if there is not enough information for an area

designation, then the area should be designated "unclassifiable" – a non-discretionary duty.

1. If there is not sufficient information to make an area designation,

that area must be designated "unclassifiable." CAA §107(d)(1)(A). By creating an "unclassifiable" designation for situations when there is not sufficient information to apply the other designations, Congress has ensured that designations would be made within three years.

2. The CAA, including the unclassifiable designation, is mandatory

language and represents a non-discretionary duty. 3. If EPA later wishes to change a designation upon new information,

there is a straightforward redesignation process. D. The lack of designations interferes with state planning processes.

1. The 2020 deadline for finishing all area designations won't occur until after the EPA is required under the Clean Air Act to reevaluate and possibly revise the national standards for sulfur dioxide; and

2. The EPA's proposed data requirements rule for the sulfur dioxide

standards seeks to use modeling, which Nevada described as a predictive tool that isn't appropriate for making area designations.




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TREATMENT OF STARTUP, SHUTDOWN AND MALFUNCTION EVENTS Carolyn M. Brown

I. INTRODUCTION

In response to a petition filed by the Sierra Club in 2011, the U.S. Environmental Protection Agency (EPA) found a number of state air regulatory programs, including Kentucky's, deficient under Section 110 the Clean Air Act, 42 U.S.C. §7410, in 2015. This presentation reviews the petition, EPA's stated reasons for granting the petition, and Kentucky's response.

II. THE REGULATORY PROVISION IN CONTROVERSY – 401 KAR 50:055,

SECTION 1

Section 1. Emissions During Shutdown and Malfunction. (1) Emissions which, due to shutdown or malfunctions, temporarily exceed the standard set forth by the cabinet shall be deemed in violation of such standards unless the requirements of this section are satisfied and the determinations specified in subsection (4) of this section are made. (2) When emissions during any planned shutdown and ensuing start-up will exceed the standards, the owner or operator of the source shall notify the director or his designee no later than three (3) days before the planned shutdown. However, if the shutdown is necessitated by events which the owner or operator could not reasonably have foreseen three (3) days before the shutdown, then such notification shall be given immediately following the decision to shut down. The notice shall be in writing and shall specify the name of the air contaminant source, its location, the address and telephone number of the person responsible for the source, the reasons for and duration of the proposed shutdown, the date and time for the action, the physical and chemical composition, rate and concentration of the emissions during such shutdown and ensuing start-up, the basis for determination that such shutdown is necessary, and the measures which will be taken to minimize the extent and duration of the emissions during such shutdown and ensuing start-up. (3) When emissions due to malfunctions, unplanned shutdowns or ensuing start-ups are or may be in excess of the standards, the owner or operator shall notify the director by telephone as promptly as possible, and shall cause written notice when requested by the director to be sent to the director. Such notice shall specify the name of the source, its location, the address and telephone number of the person responsible for the source, the nature and cause of the malfunctions, or unplanned shutdown, the date and time when the malfunction was first observed, the expected duration, the nature of the action to be




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taken to correct the malfunction, and an estimate of the physical and chemical composition, rate and concentration of the emission. (4) A source shall be relieved from compliance with the standards set forth by the cabinet if the director determines, upon a showing by the owner or operator of the source, that:

(a) The malfunction or shutdown and ensuing start-up did not result from the failure by the owner or operator of the source to operate and maintain properly the equipment;

(b) All reasonable steps were taken to correct,

as expeditiously as practicable, the conditions causing the emissions to exceed the standards, including the use of off-shift labor and overtime if necessary;

(c) All reasonable steps were taken to minimize

the emissions and their effect on air quality resulting from the occurrence;

(d) The excess emissions are not part of a

recurring pattern indicative of inadequate design, operation, or maintenance; and

(e) The malfunction or shutdown and ensuing

start-up was not caused entirely or in part by poor maintenance, careless operation or any other preventable upset conditions or equipment breakdown.

(5) The director shall notify the owner or operator of

the source of the determination made under this section no later than sixty (60) days after the date that all information required by this section has been submitted.

5 Ky.R. 361; Am. 982; eff. 6-6-79; 8 Ky.R. 1041; eff. 9-22-82; TAm eff. 8-9-2007.

III. THE SIERRA CLUB PETITION

Under the Clean Air Act, EPA is charged with the responsibility to establish National Ambient Air Quality Standards (NAAQS). 42 U.S.C. §7409. Pursuant to Section 110 of the Act, the states must develop implementation plans, referred to as SIPs, to achieve and maintain the NAAQS. 42 U.S.C. §7410. EPA must review and approve the SIPs. EPA is also charged with developing standards of performance for new, modified and reconstructed sources in certain categories, standards for designated hazardous air pollutants, and procedures for preconstruction review of new or modified major sources of air pollutants, among other things. 42 U.S.C. §§7411, 7412, 7475, 7503. On June 30, 2011, the Sierra Club filed a petition with EPA regarding how excess emissions during startups, shutdowns and malfunctions (SSM) at stationary







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sources were treated in SIPs that had previously been approved by EPA. The petition asserted that thirty-nine SIPs, including Kentucky's,1 were substantially inadequate due to impermissible treatment of excess emissions from SSM events. Three requests were included in the petition:

SIP provisions that established an affirmative defense to monetary penalties for excess emissions due to SSM events were improper and should be eliminated.

Automatic exemptions from applicable emission limits during SSM events are improper as are provisions allowing relief at the discretion of the agency director.

EPA should not rely on interpretive letters from states as a means to resolve perceived ambiguity in state regulations.

EPA Proposed Rulemaking, 78 Fed. Reg. 12,460, 12,464-465 (2013).

IV. EPA'S PROPOSED RESPONSE AND FINAL ACTION

A. Proposed Response

EPA's proposed response was published in the February 22, 2013 Federal Register. EPA proposed to grant the Sierra Club petition, in whole or in part, with respect to thirty-six states including Kentucky. EPA proposed to deny the petition with respect to three states: Nebraska, Idaho and Oregon. Id. at 12,466. With respect to Kentucky, the Sierra Club asserted that Kentucky Regulation 401 KAR 50:055 §1(1) allowed discretionary exemptions from otherwise applicable emission limitations in the SIP. Based on the statute and EPA's SSM policy, the petitioner argued that all excess emissions must be treated as violations. To the extent that the regulation authorizes the agency to excuse excess emissions, such a provision improperly deprives the federal government and citizens of their ability to enforce the Clean Air Act. Id. at 12,505. EPA agreed with the Sierra Club and proposed to find the subject regulation substantially inadequate and thus an impermissible SIP provision. In connection with a separate SIP action regarding redesignation of a portion of a nonattainment area, Kentucky had submitted a letter explaining that a Kentucky Division for Air Quality determination that excess emissions should be excused did not limit the ability of EPA or citizens to pursue an enforcement action under the Act. However, EPA stated that "the difference in views about the correct reading of 401 KAR 50:055 §1(1) illustrates the need to examine this SIP provision again." Id. at 12,506.

1 The Louisville Metro Air Pollution Control District has its own regulatory program pursuant to

KRS Chapter 77 that is a part of the SIP. The District’s regulation was revised prior to final action on the Sierra Club petition and is not discussed here.




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B. Final Action

EPA's final action on the petition was published in the June 12, 2015, Federal Register. In addition to taking final action on the specific claims in the petition, EPA also clarified, revised and restated its interpretive guidance on treatment of excess emissions from SSM events. EPA Final Rulemaking, 80 Fed. Reg. 33,840, 33,976-982 (2015). In addition, EPA reevaluated its interpretation of the CAA and concluded that affirmative defense provisions were inappropriate for inclusion in SIPs. EPA relied upon the federal court decision in Natural Resources Defense Council v. E.P.A., 749 F.3d 1055 (D.C. Cir. 2014), finding that EPA had acted improperly when it included an affirmative defense for violations caused by malfunctions in regulations it issued under Section 112 of the CAA with respect to emission of hazardous air pollutants. 80 Fed. Reg. 33,852. EPA also pointed to the 2008 D.C. Circuit decision in Sierra Club v. E.P.A., 551 F.3d 1019 (D.C. Cir. 2008), cert. denied, sub nom American Chemistry Council v. Sierra Club, 130 S.Ct. 1735 (2010), as a basis for its position that regulations under Section 111 and Section 112 of the CAA cannot contain exclusions from emission limits during SSM events and thus neither can SIPs. 80 Fed. Reg. 33,892. In the final rule, with little detailed discussion, EPA granted the Sierra Club petition with respect to 401 KAR 50:055 §1(1). EPA found the provision substantially inadequate to meet CAA requirements and issued a SIP Call with respect to that provision. Id. at 33,963.

C. Concerns Expressed by Commenters

A number of concerns were expressed by commenters. For a more complete sense of the concerns, review of the preamble to the final rule is suggested. Among those that merit highlighting are the following. Many of the SIP provisions that EPA asserted were inadequate had been in place for decades. In the preamble of the final rule, EPA stated:

Many of these rules were added to SIPs and approved by the EPA in the years shortly after the 1970 amendments to the CAA, which for the first time provided for the system of clean air plans that were to be prepared by air agencies and approved by the EPA. At that time, it was widely believed that emission limitations set at levels representing good control of emissions during periods of so-called "normal" operation … could in some cases not be met with the same emission control strategies during periods of startup, shutdown, maintenance or malfunction. Accordingly, it was common for state plans to include provisions for special, more lenient treatment of excess emissions during such periods.

Id. at 33,843.



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A number of the federal regulations under Section 111 and 112 of the CAA exclude SSM emissions from specific emission limitations. EPA noted in the preamble that the 1999 SSM SIP Guidance stated:

[I]t would be inappropriate for a state to seek to 'deviate' from the specific requirements of an NSPS or NESHAP when adopting that standard as a SIP provision, stating that '[b]ecause EPA set these standards taking into account technological limitations, additional exemptions would be inappropriate.'

Id. at 33,892. EPA then proceeded to reverse course and direct that going forward "a state should not submit an NSPS or NESHAP for inclusion into the SIP … unless that NSPS or NESHAP does not include an exemption for SSM events or the state otherwise takes action to exclude the SSM exemption … as part of the SIP submission." Id. EPA had a very narrow focus when finding SIPs substantially inadequate based on review of typically a single regulation without any consideration of the multitude of other provisions in each SIP. Many states felt this narrow focus was inappropriate and not in accordance with Section 110 of the CAA.

D. Effect of the SIP Call

EPA issued the SIP Call for the specifically identified regulatory provision, 401 KAR 50:055 §1(1). A SIP Call triggers an obligation for the state to revise its SIP to correct the identified deficiency by a specified deadline. Under Section 110(k)(5) of the CAA, 42 U.S.C. §7410(k)(5), after finding a SIP inadequate, EPA may set the submittal deadline up to eighteen months after the finding of deficiency. Here, EPA required the state to submit a revision by November 22, 2016. EPA must then review the revision to assess the submittal. If the state fails to submit a revision by the deadline, or EPA finds the revision inadequate, then EPA has an obligation to impose a Federal Implementation Plan (FIP) twenty-four months thereafter. In addition, sanctions will be triggered under the CAA. The existing SIP remains in effect until a revision is submitted and approved by EPA or EPA imposes a FIP as set out above. 80 Fed. Reg. 33,848-849.

V. STATES CHALLENGE TO THE SIP CALL

Kentucky and sixteen other states filed suit on August 11, 2015, challenging EPA's final rule in the D.C. Circuit. State of Florida, et al. v. EPA, et al., Case No. 15-1267. Other suits challenging the rule were filed. The cases have been consolidated, with Walter Coke, Inc., et al. v. EPA, Case No. 15-1166, being the lead case. Briefing has been completed and oral argument is set for May 8, 2017.





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VI. KENTUCKY'S RESPONSE TO THE SIP CALL

The Energy & Environment Cabinet's Division for Air Quality considered various options for responding to the SIP Call including possible regulatory changes to establish work practice standards that would apply during startup and shutdown events in lieu of numeric standards, an approach that the preamble to the final rule suggested was an option. However, EPA's informal feedback to other states that began work on such approaches indicated that the bar to obtain approval would be high in terms of the justification of particular work practices. Kentucky ultimately chose a different path. Following public notice and comment, Kentucky submitted a SIP revision to EPA by letter dated November 17, 2016, stating: "Kentucky is requesting to revise its SIP by removing 401 KAR 50:055, Sections 1(1) and (4) and retaining the remaining regulatory provisions as approved on May 4, 1989." Although once the SIP Revision is approved by EPA those provisions will no longer be part of the SIP, Kentucky did not amend the regulation as a matter of state law. Thus, a source that has excess emissions due to an SSM event will still be required to notify DAQ and if the source can demonstrate that the criteria listed in Section 1(4) have been met, the Director of DAQ can determine that the excess emissions will be excused. Once the SIP Revision is approved as expected, however, the ability to obtain such relief from the Director of DAQ will not be part of the federally enforceable portion of 401 KAR 50:055. Thus, EPA's assertion that the provisions interfered with federal or citizen suit enforcement of the Clean Air Act will have been resolved. Additionally, if the legal challenge to the SIP Call is successful, a return to the status quo will be more easily accomplished as no state regulatory change will be needed.

VII. CONCLUSION

Emissions in excess of numeric limits will occur during startup and shutdown of industrial equipment. Malfunctions will occur. Even in implementing stringent federal pre-construction permitting programs, EPA has recognized this and provides for use of work practices as an alternative to meeting numeric limits during startup and shutdown events. Although the preamble discussion in the final rule suggested states could craft a reasonable work practice approach, implementation by the EPA Regions indicates that is not the case. Once again, we await the outcome of litigation over an environmental rule.





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TEXT OF 401 KAR 50:055

Section 1. Emissions During Shutdown and Malfunction. (1) Emissions which, due to shutdown or malfunctions, temporarily exceed the standard set forth by the cabinet shall be deemed in violation of such standards unless the requirements of this section are satisfied and the determinations specified in subsection (4) of this section are made.

(2) When emissions during any planned shutdown and ensuing start-up will exceed the standards, the owner or operator of the source shall notify the director or his designee no later than three (3) days before the planned shutdown. However, if the shutdown is necessitated by events which the owner or operator could not reasonably have foreseen three (3) days before the shutdown, then such notification shall be given immediately following the decision to shut down. The notice shall be in writing and shall specify the name of the air contaminant source, its location, the address and telephone number of the person responsible for the source, the reasons for and duration of the proposed shutdown, the date and time for the action, the physical and chemical composition, rate and concentration of the emissions during such shutdown and ensuing start-up, the basis for determination that such shutdown is necessary, and the measures which will be taken to minimize the extent and duration of the emissions during such shutdown and ensuing start-up.

(3) When emissions due to malfunctions, unplanned shutdowns or ensuing

start-ups are or may be in excess of the standards, the owner or operator shall notify the director by telephone as promptly as possible, and shall cause written notice when requested by the director to be sent to the director. Such notice shall specify the name of the source, its location, the address and telephone number of the person responsible for the source, the nature and cause of the malfunctions, or unplanned shutdown, the date and time when the malfunction was first observed, the expected duration, the nature of the action to be taken to correct the malfunction, and an estimate of the physical and chemical composition, rate and concentration of the emission.

(4) A source shall be relieved from compliance with the standards set forth by

the cabinet if the director determines, upon a showing by the owner or operator of the source, that:

(a) The malfunction or shutdown and ensuing start-up did not result from the failure by the owner or operator of the source to operate and maintain properly the equipment;

(b) All reasonable steps were taken to correct, as expeditiously as

practicable, the conditions causing the emissions to exceed the standards, including the use of off-shift labor and overtime if necessary;

(c) All reasonable steps were taken to minimize the emissions and

their effect on air quality resulting from the occurrence; (d) The excess emissions are not part of a recurring pattern indicative

of inadequate design, operation, or maintenance; and


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(e) The malfunction or shutdown and ensuing start-up was not caused entirely or in part by poor maintenance, careless operation or any other preventable upset conditions or equipment breakdown.

(5) The director shall notify the owner or operator of the source of the

determination made under this section no later than sixty (60) days after the date that all information required by this section has been submitted. Section 2. Compliance with Standards and Maintenance Requirements. (1) An owner or operator of any affected facility subject to any standard within the administrative regulations of the Division for Air Quality shall:

(a) In the case of a new source, demonstrate compliance with the applicable standard(s) within sixty (60) days after achieving the maximum production rate at which the affected facility will be operated, but not later than 180 days after initial start-up of such facility;

(b) In the case of an existing source, demonstrate compliance with

the applicable standard before or on the date that final compliance is required by the applicable compliance schedule unless otherwise specified by administrative regulation; and

(c) Maintain the affected facility in compliance with all applicable

standards at all times subsequent to the date that compliance is demonstrated.

(2) Compliance with standards in the administrative regulations of the Division for Air Quality shall be demonstrated as follows:

(a) By performance tests as specified in the applicable administrative regulation and according to the requirements and exceptions provided in 401 KAR 50:045.

(b) By methods other than performance tests as provided for by the

applicable administrative regulation. (c) By methods acceptable to the cabinet if the applicable

administrative regulation does not specify a performance test or other method of determining compliance.

(3) Compliance with opacity standards in the administrative regulations of the

Division for Air Quality shall be determined by Method 9 of Appendix A of 40 CFR 60, filed by reference in 401 KAR 50:015, except as may be provided for by administrative regulation for a specific category of sources. Opacity readings of portions of plumes which contain condensed, uncombined water vapor shall not be used for purposes of determining compliance with opacity standards. The results of continuous monitoring by transmissometer which indicate that the opacity at the time visual observations were made was not in excess of the standard are probative but not conclusive evidence of the actual opacity of an emission, provided that the source shall meet the burden of proving that the instrument used meets (at the time of the alleged violation), performance specification as required by the cabinet, has been properly maintained and (at the time




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of the alleged violation) calibrated, and that the resulting data have not been tampered with in any way.

(4) The opacity standards set forth in this administrative regulation shall apply at all times except during periods of start-up, shutdown, and as otherwise provided in the applicable standard.

(5) At all times, including periods of start-up, shutdown and malfunction,

owners and operators shall, to the extent practicable, maintain and operate any affected facility including associated air pollution control equipment in a manner consistent with good air pollution control practice for minimizing emissions. Determination of whether acceptable operating and maintenance procedures are being used will be based on information available to the cabinet which may include, but is not limited to, monitoring results, opacity observations, review of operating and maintenance procedures, and inspection of the source.

(6) Adjustment of opacity standards for emissions from a stack or a control device:

(a) An owner or operator of an affected facility may request the cabinet to determine opacity of emissions from the affected facility during the initial performance tests. Fugitive emissions are not subject to the provisions of this subsection.

(b) Upon receipt from such owner or operator of the written report of

the results of the performance tests, the cabinet will make a finding concerning compliance with opacity and other applicable standards. If the cabinet finds that an affected facility is in compliance with all applicable standards for which performance tests are conducted, but during the time such performance tests are being conducted fails to meet any applicable opacity standard, the cabinet shall notify the owner or operator and advise him that he may petition the cabinet within ten (10) days of receipt of notification to make appropriate adjustment to the opacity standard for the affected facility.

(c) The cabinet will grant such a petition upon a demonstration by the

owner or operator that the affected facility and associated air pollution control equipment were operated and maintained in a manner to minimize the opacity of emissions during the performance tests; that the performance tests were performed under the conditions established by the cabinet; and that the affected facility and associated air pollution control equipment were incapable of being adjusted or operated to meet the applicable opacity standard.

(d) The cabinet will establish an opacity standard for the affected

facility meeting the above requirements at a level at which the source will be able, as indicated by the performance and opacity tests, to meet the opacity standard at all times during which the source is meeting the mass or concentration emission standard.

Section 3. Shutdown and Relocation. (1) Any affected facility commencing operations after a shutdown for six (6) months shall demonstrate compliance with the applicable standard(s) within sixty (60) days after achieving the maximum production rate at which

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the affected facility will be operated, but not later than 180 days after commencing operations.

(2) Any source located within the Commonwealth of Kentucky and moved to another location involving a change of address shall be subject to applicable administrative regulations at the new location or to administrative regulations which were applicable at the original location, whichever is the more stringent. Section 4. Circumvention. No owner or operator subject to the provisions of the administrative regulations of the Division for Air Quality shall build, erect, install, or use any article, machine, equipment or process, the use of which conceals an emission which would otherwise constitute a violation of an applicable standard. Such concealment includes, but is not limited to, the use of gaseous diluents to achieve compliance with an opacity standard or with a standard which is based on the concentration of a pollutant in the gases discharged to the atmosphere. Section 5. Prohibition of Air Pollution. No person shall permit or cause air pollution as defined in 401 KAR 50:010 in violation of administrative regulations promulgated by the cabinet.


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TENORM ISSUES IN THE OIL AND GAS INDUSTRY: HOUSE BILL 563 AND BEYOND

Bill Barr and Tom FitzGerald I. WHAT IS NORM AND TENORM

A discussion of the regulation of TENORM must begin with establishing a clear definition of the subject matter. What is TENORM? The acronym stands for "technologically enhanced naturally occurring radioactive material" but under Kentucky’s then-existing regulatory regime in 2016, its definition was confusing and unclear. Initially, it is clear that we must understand NORM to understand TENORM. NORM is an acronym for "naturally occurring radioactive material." According to the United States Environmental Protection Agency (EPA), NORM is "materials which may contain any of the primordial radionuclides or radioactive elements as they occur in nature, such as radium, uranium, thorium, potassium, and their radioactive decay products that are undisturbed as a result of human activities." Simply stated, the materials include rocks, soils, plants, animals and humans, all of which naturally emit radioactivity. Technologically Enhanced Naturally Occurring Radioactive Material (TENORM) is defined by EPA as, "Naturally occurring radioactive materials that have been concentrated or exposed to the accessible environment as a result of human activities such as manufacturing, mineral extraction, or water processing." "Technologically enhanced" means that the radiological, physical, and chemical properties of the radioactive material have been concentrated or further altered by having been processed, or beneficiated, or disturbed in a way that increases the potential for human and/or environmental exposures. As part of the Central Midwest Interstate Low-Level Radioactive Waste Compact between Illinois and Kentucky, Kentucky’s statutes prior to the 2017 General Assembly Regular Session had confusingly adopted a definition of NORM which is actually a generally-accepted definition of TENORM. See, KRS 211.862, Section 8, where NORM is defined as meaning:

naturally occurring materials not regulated under the Atomic Energy Act of 1954, as amended, whose radionuclide concentrations have been increased by or as a result of human practices. Naturally occurring radioactive material does not include the natural radioactivity of rocks or soils, or background radiation, but instead refers to materials whose radioactivity is technologically enhanced by controllable practices (or by past human practices); (Emphasis added)

Kentucky and Illinois formed the Central Midwest Interstate Low-Level Radioactive Waste Compact ("Central Midwest Compact") in 1984 under the 1980 Low-Level Radioactive Waste Policy Act granting the various states the


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responsibility to manage and dispose of low level radioactive waste (LLRW) generated within their states and authorized the creation of regional compacts. In 1999, pursuant to the Central Midwest Compact, the Compact Commission adopted a Regional Management Plan ("RMP") dealing with the handling and disposal of LLRW in the Compact states. The Compact defines LLRW to mean:

"radioactive waste not classified as (1) high-level radioactive waste, (2) transuranic waste, (3) spent nuclear fuel, or (4) by-product material as defined in section 11e.(2) of the Atomic Energy Act of 1954." This definition does not exclude NORM or TENORM and, therefore, they are covered by the terms of the RMP. The RMP has a definition of TENORM in line with the generally accepted definition cited by the EPA but in conflict with the language of section 8 of KRS 211.862.

The RMP states that it is the Compact’s policy that TENORM waste with concentrations equal to or greater than 2000 pCi/g are to be disposed at the regional LLRW disposal facility. After seventeen years, no such facility has been developed under the Compact, which designates Illinois as the "host state" in which such a facility would be developed. The RMP further states that TENORM waste with concentrations less than 2000 pCi/g shall be disposed in the method approved by the appropriate party state regulatory agency, which in Kentucky is the Radiation Control Branch of the Cabinet for Health and Family Services. In the absence of a facility within the Compact states designed to accept LLRW, that waste is stored on site by many facilities, or is shipped for disposal to facilities out of the compact boundaries that are licensed to accept such materials for disposal. Kentucky’s definition of LLRW is found in KRS 211.862(6). It reads:

"Low-level radioactive waste" or "waste" means radioactive waste not classified as high-level radioactive waste, transuranic waste, spent nuclear fuel, or by-product material as defined in Section 11e(2) of the Federal Atomic Energy Act. This definition shall apply regardless of any declaration by the federal government or any state that any radioactive material is exempt from any regulatory control.

The position of the Central Midwest Interstate Compact Commission, as reflected in the RMP, with respect to TENORM, is twofold: first, that since neither NORM nor TENORM are exempted from the definition, they are included as LLRW; second, that each state would regulate NORM and TENORM in accordance with the laws and regulations of that state. One area where the Central Midwest Compact and Kentucky’s regulatory scheme firmly agree is that it is illegal to import TENORM from other states into the Compact region for disposal.



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It is against that background that the disposal of oil and gas-related wastes at two landfills in the Commonwealth occurred. Before Fitz and I explore Kentucky’s response to the dumping of wastes that both the Energy and Environment Cabinet and CHFS believe violated Kentucky law, a brief exploration of how TENORM is generated during the oil and gas exploration and production process is valuable.

II. NORM AND TENORM AND OIL AND GAS EXPLORATION AND

PRODUCTION

NORM and TENORM are present in most phases of oil and gas exploration and production efforts. The concentration and type of radionuclide present will depend upon the geology of the formations involved and the area of the state in which the activity is occurring. The radionuclides that are often present in oil and gas activities include Uranium (U)238,Thorium (Th)232, Radium (Ra)224, 226, 228, Radon (Rn)222, Polonium (Po)210, Lead (Pb)210, and Potassium (K)40. Geologically, the shales tend to be "hotter" (contain higher concentrations of radionuclides) than other producing formations; however, some other non-shale (sandstone or limestone) formations are more prone to result in the development of scale and sludge during the production of oil and gas, especially when water is introduced into the process. Produced water and flow-back water from hydraulic fracks (the fracturing of tight geologic formations containing oil or gas in order to stimulate flow of the resource to the gathering well) are often treated, filtered and either reused or injected for disposal purposes. Water is also injected and circulated in oil reservoirs for secondary recovery purposes to enhance the percentage of oil recovered. These processes may result in the formation of insoluble salts as scale and precipitate in sludge. Scale is formed when insoluble barium, calcium, and other compounds, precipitate from the water onto pipe or equipment as a result in the differences between downhole and surface temperature and pressure. Because radium is similar to barium and calcium it becomes part of the scale. Sludge is formed when solids such as scale, sand, rust, and dissolved solids precipitate from oil and produced water, and settle to the bottom of storage tanks. Sludge may contain concentrations radium226 and lead210. This scale and sludge collect in the form of deposits inside tubular goods (pipe and tubing) and tanks, and may have a more concentrated level of radionuclides than the rock formation in its natural state. Water injection and disposal plants often use filters to remove sediment and suspended solids from the water being handled. These filters (referred to as "filter socks" because of their appearance) and the sediments and solids that they collect (referred to as "filter cake") may also contain TENORM. Gas pipelines, compressor stations and gas processing plants may be contaminated by lead210 and polonium210 (progeny of radon222). This TENORM is generally found as a deposit inside the pipes and equipment.

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With the Kentucky oil and gas industry being established well over 100 years ago and the issue of TENORM having been on the radar screen of state regulators for more than thirty years, the casual observer might ask, "Why now? Why is there a new, increased interest in TENORM and its disposal?” The situation that Mary Cromer will review today provided the backdrop for the renewed interest in management of oil and gas-related TENORM. Oil and gas wastewaters associated with high-volume hydrofracking generated in Pennsylvania were sent to West Virginia for processing/recycling. The recycling resulted in TENORM that had an elevated and concentrated radioactivity level. The recycled waste material was illegally transported from West Virginia to Kentucky by a Kentucky waste broker and was improperly disposed of in two eastern Kentucky landfills, according to Kentucky regulators (Green Valley Landfill located outside Ashland and Blue Ridge Landfill located in Estill County, directly across the highway from the Estill County Middle and High Schools.) Investigations ensued by both the Energy and Environment Cabinet and the Cabinet for Health and Family Services, and they were quickly joined by the Kentucky Attorney General. Within a very short period of time, with the 2016 Legislature in session, Representative Cluster Howard of the 91st District, which includes Estill County, filed House Bill 563, which was co-sponsored by most of the members of majority leadership in the House. HB 563 quickly received the support of members of the environmental community and the Kentucky oil and gas industry, who had no role in the illegal waste disposal. HB 563 was fast-tracked and passed through both chambers of the Legislature without a dissenting vote. The Bill, which is codified in KRS 211.893, directed the Energy and Environment Cabinet and Cabinet for Health and Family Services to review and revise existing regulations to ensure proper management of oil and gas related wastes containing TENORM. The Cabinets were also directed to consider the development of a manifest system, review of waste and water permitting programs, and, if needed, recommend changes to existing statutes. In the House Bill, it was "recommended" that the two Cabinets seek input from oil and gas operators, transporters of waste, the public, landfill operators, and the Conference of Radiation Control Program Directors in revising regulations, and report their progress to the Legislative Research Committee by December 1, 2016. In the spring of 2016, a previously-utilized group referred to as the Department of Natural Resources (DNR) Oil and Gas Workgroup was reappointed and expanded for the purpose of assisting the agencies to comply with the mandates of the General Assembly. The Workgroup consists of twenty-one members composed of representatives of EEC, CHFS, Waste & Recycling Association, KGS, Kentucky Chamber, oil and gas industry, KOGA, Kentucky Resources Council, landowners and others. Workgroup meetings and agendas are announced to the public and conducted under the Kentucky Open Meetings laws. Fitz will pick up from here in describing the workgroup process.





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III. CREATING A REGULATORY FRAMEWORK FOR MANAGEMENT OF OIL AND GAS TENORM

Around the same timeframe that HB 563 was enacted, EEC Secretary Snavely had determined that expansion of the oil and gas workgroup, which had functioned effectively and collaboratively to modernize oil and gas regulation during the previous two years, and charging the workgroup with the task of addressing both in and out-of-state oil and gas-related TENORM, was appropriate. Commencing on May 12, 2016, the workgroup has met as a committee of the whole and with subcommittees as needed, to address the charge that the General Assembly gave the group in HB 563, which was grounded in a finding that

The need for review and revision of the statutes and regulations associated with management of NORM wastes is necessary and advisable in order to ensure proper management and disposal of wastes containing NORM generated within or outside the Commonwealth.

HB 563 directed both the EEC and CHFS to consider revisions to existing regulations in order to "ensure the proper management and disposal of wastes containing NORM generated within or outside the Commonwealth" considering such tools as a manifest system for transport and disposal of NORM wastes and wastewaters, development of regulations to implement KRS 211.865(3), reviewing state waste and water programs to ensure proper management of wastes containing NORM, and identification and recommendation to the General Assembly of changes needed to "facilitate management of oil and gas production wastes in a manner commensurate with the risks that those wastes may pose to the public health and the environment." A. Statutory Revisions Recommended by Workgroup Become Law

Consistent with the charge to the workgroup, the group produced a consensus recommendation to revise current law in order to better align the definitions of NORM and TENORM with the generally-accepted definitions of the Conference of Radiation Control Program Managers and other states. Senate Bill 248, which was almost unanimously passed by the General Assembly (one Representative voted no!), made these changes to existing law: 1. Modified the definition of NORM to read: "'Naturally-occurring

radioactive material' (NORM) means any of the primordial radionuclides or radioactivity present in soils, rocks, and materials, that are not concentrated or disturbed as a result of human activities."






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2. Modified the definition of TENORM to read:

"Technologically-enhanced naturally-occurring radioactive material" or "TENORM" means: (a) Naturally occurring radioactive material with

a radionuclide concentration that has been increased by human activities above levels encountered in the natural state; or

(b) Naturally occurring radioactive material

made more accessible by human activity.

TENORM does not include the natural radioactivity of rocks or soils or source material, byproduct material, or special nuclear material as defined in 42 U.S.C. secs. 2011 et seq. and relevant federal regulations implemented by the Nuclear Regulatory Commission[.]

3. Clarified that the prohibition on importation of TENORM from

outside the Compact region (which is Illinois and Kentucky) in violation of Commission policy includes arranging for that disposal.

4. Specifically provides that drill cuttings from wells permitted and

regulated by the Energy and Environment Cabinet pursuant to KRS Chapter 353 that contain naturally-occurring radioactive materials that have been made more accessible shall not be regulated as TENORM under this chapter. This provision reflects the documented judgment of the workgroup that the levels of radionuclides and dose risk are minimal, and do not justify additional regulation beyond an enhanced on-site disposal process.

5. Clarified that the CHFS may by executive order or administrative

regulation regulate as TENORM any naturally occurring radioactive material made more accessible by human activity, or naturally occurring radioactive material that has radionuclide concentrations increased by human activities above levels encountered in the natural state.

B. Working Assumptions and Framework for Regulation

1. As directed by HB 563, the workgroup reported to the General Assembly on November 30, 2016. A complete copy of that report is in your course materials.

2. The workgroup began by developing a common set of working

assumptions to guide the investigation into regulation revisions.





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Those assumptions, which applied only to the characterization and management of oil and gas-related materials, are:

a. KRS 211.863 prohibits importation and receipt of any

material containing low-level radioactive waste, which includes NORM that is generated out of state from any source, unless approved by the Central Midwest Low-Level Radioactive Waste Compact Commission (Compact Commission). Nothing in the TENORM regulations that will be promulgated pursuant to these working assumptions will change that current prohibition.

b. CHFS and EEC have conducted outreach to radiation

control and waste management agencies in oil and gas-producing states regarding oversight of companies engaged in management and transportation of TENORM and NORM in order to prevent, to the extent possible, importation into Kentucky for disposal of wastes in violation of the Central Midwest Low-Level Radioactive Waste Compact. EEC has conducted that outreach to natural resources and radiation control agencies in Ohio, Indiana, Maryland, Pennsylvania, New York, Missouri, Tennessee, West Virginia, Virginia, and New York and has shared those letters with the workgroup. The Cabinet for Health and Family Services sent TENORM outreach letters to all radiation control program managers in the United States to provide notification and clarification of the Kentucky laws regarding NORM, TENORM, and Low-Level Radioactive Wastes that advised those states of the import prohibition from states outside of the Central Midwest Low-Level Radioactive Waste Compact.

c. The current default level of 1,999 pCi/gram for disposal of

in-state NORM or TENORM in contained landfills may not be protective of public and workplace safety and health under certain exposure scenarios, and that an upper-bound regulatory limit is needed that is protective during and after the useful life of the landfill.

d. The management of oil and gas-related TENORM should

be guided by science and should be risk-informed and dose-based. The dose-based values for radionuclides in TENORM waste should be expressed in quantitative terms for purposes of regulatory compliance.

e. Any regulatory framework developed or modified to assure

proper management of oil and gas production NORM or TENORM should be effective both in protecting public and workplace safety and health, and in allocating government and private sector resources in the most cost-effective manner to achieve those ends. The upper-bound


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regulatory limit for free release should be 25 mrem/yr for protection of public health, which is consistent with the performance objectives for regulated low-level radioactive facilities and free release limits of 902 KAR 100:042, Section 2.

3. Issues for which consensus has been achieved in principle.

a. Water produced from or utilized during oil or gas well development or production operations, including water flowed back following hydraulic fracturing operations, that is disposed of in injection wells that are permitted and regulated under the Underground Injection Control (UIC) program are exempt from further regulation.

b. Materials exhibiting a radium-226 concentration of, at or

below 5 pCi/g should be exempted from additional regulation due to de minimis health risk from exposure. Soils exhibiting a radium-226 concentration of, at or below 5 pCi/g above background as measured within the first fifteen cm below ground surface averaged over 100 square meters should be exempted from additional regulation for the same reason.

c. Drill cuttings from exploration or production wells, including

drill cuttings from horizontal well drilling, that are disposed of on-site shall be buried at a depth of one and 1/2 feet below ground surface, and may be buried only in conjunction with the closure of on-site pits. A pit shall be closed with a twelve mil liner over the cuttings and 1 and 1/2 feet minimum of soil graded and revegetated in order to minimize erosion.

d. Brine/sludge pit contents, scale and residue from heater-

treaters, facilities used for storage of produced waters, such as pits and tank batteries, piping and tubing, wastewater storage or recycling tanks and equipment, and other wastes generated in state by oil or gas production operations employing secondary recovery or wastes associated with high-volume hydraulic fracturing, shall be characterized and analyzed by the generator for radioactivity prior to handling and shipment for disposal in a landfill meeting the design and other requirements of a contained landfill and shall be subject to these requirements.

Currently, there is consensus among all workgroup representatives other than CHFS that characterization for Ra226 is sufficient. CHFS believes characterization for both Ra226 and Ra228 is needed.



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e. Off-site management of TENORM wastes will be limited to landfills meeting the standards of contained landfills, with tiered requirements imposed above a threshold. In no case will TENORM be used as daily cover. Over a set threshold, dosimetry would be required, as well as enhanced cap meeting subtitle C standards.

f. An upper bound limit on disposal will be established of

either 200 or 238 pCi/g, based on RESRAD modeling for all pathways assuming resident farmer.

g. Downblending of TENORM waste either prior to or after

characterization, except as provided below, is prohibited. The decision on how the TENORM-containing waste is to be managed shall be based on the concentration prior to any solidification of the waste. Solidification of wastes for the sole purpose of allowing the landfilling of such wastes and downblending as provided below, is permitted, provided that the person shall have first received a license to engage in such activities from the CHFS and meets the performance standards and recordkeeping requirements to be established by CHFS and EEC.

h. Blending may occur only to achieve the 50 pCi/g limit only

where the concentration of Ra-226 prior to any solidification or downblending is less than 70 pCi/g and the blending is performed by a processor authorized to enhance, treat, or produce TENORM. The prohibition on downblending would not prevent a landfill from engaging in normal activities associated with spreading of wastes that might result in lowering of overall concentration values, provided that prior to receipt of the waste, characterization demonstrating compliance with the authorized limit is documented.

i. On-site downhole disposal of tubular goods, sludge, and

scale containing TENORM may be allowed by the Division of Oil and Gas in conjunction with plugging and abandonment of any oil or gas production well provided that the following standards are met and an inspector from the Division of Oil and Gas is present for the duration of the disposal and plugging activity:

i. The operator certifies that the owner of the oil and

gas rights has consented, by lease or other document, to allow such on-site disposal of TENORM waste;

ii. The TENORM waste was generated at the lease or

unit where disposal is proposed;

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iii. The TENORM waste shall be placed in the well at a depth of at least 200 feet below the base of any underground source of drinking water (i.e. with a TDS concentration of 10,000 ppm or less);

iv. The TENORM waste shall be placed in a controlled

manner in the well; v. A cement plug shall be placed below the TENORM

waste, isolating the waste from any producing formation and preventing migration of TENORM waste below the disposal interval, with the DOG specifying the thickness of the plug, the type of cement to be used, and how the cement is to be placed in the wellbore. The well shall be cemented from above the TENORM waste to the top of the well;

vi. The cement of the surface plug shall be color dyed

with red iron oxide; vii. A permanent marker that shows the three-bladed

radiation symbol shall be inserted into the upper surface of the top cement plug or welded to a steel plate at the top of the well casing;

viii. The operator shall apply to dispose of TENORM

downhole, on a form developed by the Division of Oil and Gas, which application shall contain the following information:

a) A description of the type or types of

TENORM waste so disposed (i.e. pipe scale, contaminated soil, sediment, equip-ment, piping tubing, valves, sucker rods, etc.);

b) The approximate volume of each type of

waste so disposed; c) Results of analysis of Ra-226 for soil and

other media, and report of gamma ray dose rate µR/hr for pipe and other tubular goods in which TENORM is entrained as scale;

d) The name, permit number, and location of

the well to be plugged in which TENORM waste is proposed to be disposed;

e) The formation or formations from which the

NORM waste originated.

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4. There remain a few issues to be resolved before the EEC and

CHFS will propose regulations to incorporate these principles.

a. Should the characterization of oil and gas-related TENORM, and the establishment of standards for public and worker protection at landfills consider Ra-228 in addition to Ra-226; and

b. Should the upper-bound limit for disposal of TENORM in a

landfill meeting enhanced contained standards be capped at 200 pCi/g for Ra-226, as proposed by CHFS, or at 238 pCi/g of Ra-226, as agreed to by the other workgroup representatives?

Mary Cromer will conclude our panel by exploring the incidents that provided the impetus for HB 563 and the renewed regulatory focus on management and disposal of oil and gas-related TENORM.


Technologically Enhanced Naturally Occurring Radioactive

Materials (TENORM) Associated with Oil and Gas Activities

Report to the Kentucky Legislative Research Commission Pursuant to

2016RS HB 563

Prepared by the Kentucky Energy and Environment Cabinet

and Kentucky Cabinet for Health and Family Services

November 30, 2016

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1

CONTENTS

Section 1. Background .................................................................................................................... 3

Section 2. - Enacted HB563 – KRS 211.893 ..................................................................................... 7

Section 3. Workgroup Membership................................................................................................ 9

Section 4. Meeting Dates .............................................................................................................. 12

Section 5. Meeting Minutes .......................................................................................................... 13

Section 6. Findings and Recommendations .................................................................................. 27

Section 7. Future Steps ................................................................................................................. 34

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2

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3

SECTION 1. BACKGROUND

The United States Congress passed the 1980 Low-Level Radioactive Waste Policy Act which

established that it is the responsibility of the states to manage and dispose of Low Level

Radioactive Waste (LLRW) generated within its borders and encouraged the creation of regional

compacts. Kentucky is a member of the Central Midwest Interstate Low-Level Radioactive

Waste Compact with the State of Illinois. The Regional Management Plan (RMP) developed by

the compact prohibits the import and disposal of LLRW into the compact states from non-party

states. The RMP establishes that naturally occurring radioactive materials (NORM) are not

excluded from the definition of LLRW and are therefore subject to the import and disposal

prohibition. The RMP also defines technologically enhanced radioactive materials (TENORM)

where the concentration of radioactive materials is increased due to human activities.

In the summer of 2015, waste containing TENORM from oil and gas operations originating from

a non-compact state was disposed at a landfill located in Estill County, Kentucky by companies

that processed and enhanced the waste. The prohibited waste continued to be imported and

disposed of in the landfill through November 2015. The Kentucky Division of Waste

Management learned in January 2016 that the out-of-state prohibited waste had been disposed

of at a landfill in Greenup County and subsequently learned of the disposal in Estill County. The

Division issued a notice in February 2016 to owners and operators of all contained landfills in

Kentucky that it was their duty to comply with all statutes and regulations regarding radioactive

materials.

The Energy and Environment Cabinet includes the Department for Environmental Protection

which among its duties regulates solid waste facilities by the Division of Waste Management

and potential impact of oil and gas facilities on surface and groundwater by the Division of

Water. The Department for Natural Resources within the cabinet includes the Division of Oil

and Gas which regulates oil and gas operations in Kentucky.

The Cabinet for Health and Family Services is the radiation control agency for the

Commonwealth and has statutory authority to regulate all radioactive materials including

NORM and TENORM. The Department for Public Health licenses and registers sources of

radiation and provides monitoring and testing capabilities for radioactive materials.

Expanded oil and gas production in the Marcellus and Utica shale formations in the

northeastern United States has resulted in lower natural gas prices from this increased

domestic production. Use of technologies including horizontal drilling and hydraulic fracturing

have improved gas production but often result in an increase in associated drilling materials

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and waste with elevated radioactivity due to the nature of the specific geological formations

and the associated solubility of radium-2261 in water from those formations.

Due to concerns associated with NORM and TENORM wastes from oil and gas development, the

challenge of managing those concentrated or enhanced wastes, and the subsequent illegal

import of wastes with enhanced concentrations of radioactive materials into Kentucky, the

Kentucky General Assembly passed House Bill 563 during the 2016 regular session. The bill

directed the Energy and Environment Cabinet and Cabinet for Health and Family Services to

review and revise existing regulations to ensure proper management of oil and gas-related

wastes including consideration of development of a manifest system, review of waste and

water permitting programs, and recommended changes to existing statutes. The General

Assembly recommended that the agencies seek input from oil and gas operators, transporters

of waste, the public, landfill operators, and the Conference of Radiation Control Program

Directors in revising regulations. The bill codified as KRS 211.893 requires the cabinets to report

to the Legislative Research Committee on their progress in complying with KRS 211.893 by

December 1, 2016

The Energy and Environment Cabinet had convened an Oil and Gas Workgroup to address

several issues raised by SB 186 in the 2015 Legislative Session to undertake a comprehensive

modernization and strengthening of the oil and gas program. By memorandum dated March 11,

2016 the Energy and Environment Cabinet reconvened the Oil and Gas Workgroup to address

KRS 211.893 and expanded the workgroup to include the groups identified in HB 563. This

enhanced workgroup ensured that the goals and directives of HB 563 would have the greatest

opportunity to be realized due to the foundation that had already been established during

2015. A copy of the memorandum to workgroup members follows.

1 Radium-228, a more short-lived radionuclide, is also soluble. The workgroup consensus was that

radium-226 would be the driver for regulatory determinations regarding oil and gas TENORM waste management.

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SECTION 2. ENACTED HB563 – KRS 211.893

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SECTION 3. WORKGROUP MEMBERSHIP

Oil and Gas Workgroup

Rick Bender Department of Energy Development and Independence – Chair

Rusty Cress Kentucky Chapter of National Waste and Recycling Association

Scott Smith SMG\Kentucky Chamber of Commerce

William Barr Blackridge Resource Partners, LLC

Steve Coleman Environmental Quality Commission

Kim Collings Kentucky Division of Oil and Gas

William Daugherty Blackridge Resource Partners, LLC

William Donan Mine Safety Review Commission

Tom FitzGerald Kentucky Resources Council

Larry Taylor Department for Environmental Protection

John Horne Office of General Counsel

Monte Hay Hay Exploration

Allen Luttrell Department for Natural Resources

Doug Hyden Clean Gas, LLC

Curt Pendergrass Department for Public Health

Maurice Royster EQT Corporation

Reggie Van Stockum Attorney-at-Law

Chester Thomas Green River Collieries, LLC

Rudy Vogt Cumberland Valley Resources, LLC

Brandon Nuttall Kentucky Geological Survey

Matt Sawyers Kentucky Oil and Gas Association

Workgroup Attendees

Charles Snavely Energy and Environment Cabinet

Bruce Scott Energy and Environment Cabinet

Jackie Quarles Energy and Environment Cabinet

Jeffrey Harmon Energy and Environment Cabinet

Lance Huffman Energy and Environment Cabinet

Haley McCoy Energy and Environment Cabinet

John Mura Energy and Environment Cabinet

Tony Hatton Department for Environmental Protection

Pete Goodmann Division of Water

Michael Mullins Department for Natural Resources

Marvin Combs Kentucky Division of Oil and Gas

Steven Davis Cabinet for Health and Family Services

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Justin Clark Cabinet for Health and Family Services

Eric Clark Cabinet for Health and Family Services

Jennifer Wolsing Cabinet for Health and Family Services

Connie White Cabinet for Health and Family Services

Laura Begin Department for Public Health

Matt McKinley Department for Public Health

Justin Carey Department for Public Health

Andrew McNeill Office of the Governor

Liz Natter Office of Attorney General

Barbara Whaley Office of Attorney General

Glenna Goins Governor’s Office of Policy and Management

Rep. Dennis Keene Kentucky State Legislature

Laura Cole Kentucky Oil and Gas Association

Jason Bentley MMLK\KOGA

Andrew Pulliam Kentucky Petroleum Marketers Association

Robert Lee KY Chapter, National Waste and Recycling Association

Mike Hext Waste Management, Inc.

Kathy Trent Waste Management, Inc.

John Cooper Waste Management, Inc.

Rich Thompson Republic Services

Bill Chlebowy Republic Services

James Jitter Allen Republic Services

Linda Magee Republic Services

Gregory Butler Republic Services

Dan Fleshour Advanced Disposal

David Rettell Advanced Disposal

Lane Boldman Kentucky Conservation Committee

Bruce Schmucker Cornerstone Environmental Group

Bob Babbage Babbage Cofounder

Julie Babbage Babbage Cofounder

Mark Pierce Nytis Exploration

Andy Lombardo Perma-Fix

Stephanie Stumbo Goss Samford

Allyson Honaker Goss Samford

Taylor Bumgardner Goss Samford

Karen Greenwell Wyatt, Tarrant, and Combs, LLC

John Danna Chemtech Consulting

Steve Hampson UK-Center for Applied Energy Research

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Steve Hohmann Cumberland Surety

Jeff Busick MSS\Cimarex

Sherman Brown McCarthy Strategic Solutions

Kate Shanks Kentucky Chamber of Commerce

Deanna Picklesimer Cornerstone Environmental

James Bruggers Courier-Journal

Jamie Lucke Lexington Herald-Leader

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SECTION 4. MEETING DATES

As a workgroup appointed by a public agency and convened in response to KRS 211.863 to

review and make recommendations regarding the Kentucky oil and gas program and public

policy, the Workgroup held open meetings in compliance with Kentucky Open Meetings laws in

KRS Chapter 61. Meetings were scheduled, announced to the public and held on:

May 12, 2016 at 1 p.m.

June 2, 2016 at 1 p.m.

July 7, 2016 at 9 a.m.

August 4, 2016 at 9 a.m.

September 8, 2016 at 9 a.m.

October 11, 2016 at 9 a.m.

November 1, 2016 at 9 a.m.

December 9, 2016 at 9 a.m. (scheduled and announced)

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SECTION 5. MEETING MINUTES

Oil and Gas Workgroup Minutes Meeting #1

Minutes of the first meeting held on May 12, 2016: A meeting of the Oil and Gas Workgroup was held in the Department for Natural Resources conference room D-16 in Frankfort KY.

Members Present: Sec. Charles Snavely, Rick Bender, Bill Daugherty, Bill Barr, Brandon Nuttall, Curt Pendergrass, Doug Hyden, Bill Donan, Steve Coleman, Monte Hay, Rudy Vogt, Kim Collings, Marvin Combs, Larry Taylor, Reggie Van Stockum, Maurice Royster, Justin Clark, Connie White, Scott Smith, Rusty Cress, Tony Hatton, John Horne, and Tom FitzGerald.

Support Staff and Citizens Present: Andy Lombardo, Allyson Honaker, Andrew Pulliam, John Danna, Astrud Masterson, Karen Greenwell, Lane Boldman, Jennifer Wolsing, Dan Fleshour, Lance Huffman, Mike Hext, Steve Hampson, Haley McCoy, John Mura, Jeff Busick, Jason Bentley, Bruce Scott, Laura Begin, Kate Shanks, James Bruggers, and Michael Mullins

Meeting Time: The meeting was called to order at 1:00 pm EST.

Opening Remarks: Secretary Snavely made opening remarks and discussed the focus of the workgroup moving forward.

Discussions: Discussion at the meeting centered around six presentations presented by various members and guests. The workgroup is to discuss and address TENORM issues

o Review of HB 563 – Rick Bender: A brief overview of the contents of HB 563 was

given to the workgroup members.

Background information on the situation in Estill County that resulted in

the filing of HB 563.

Enforcement actions currently ongoing against entities responsible as

well as an investigation from the Attorney General’s Office.

HB 563 directs the workgroup to review TENORM policies of the

Commonwealth and consider developing a manifest system as well as

revised permitting provisions and management of oil and gas wastes.

EEC and CHFS shall report to the Legislative Research Commission their

progress in complying with this section by December 1, 2016.

o TENORM Study Conducted by Pennsylvania Department of Environmental

Protection (PDEP) – Andrew Lombardo: Mr. Lombardo’s presentation provided

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detailed information on the Pennsylvania study and the PDEP process the

department went through to create a TENORM program within the state.

NORM and TENORM issues are typically handled at the state level.

A revision to the study is expected to be published soon. Edits are due in

one to two weeks.

o TENORM Scanning at Oil & Gas Production Facilities – Marvin Combs: Assistant

Director Combs’ presentation focused mainly on how the Division of Oil and Gas

addresses NORM and TENORM issues in the Commonwealth.

Division scanning procedures:

1. Establishing background;

2. Scan production facilities, tubing/casing

3. Identify any facilities above background

4. Capture GPS of facilities (above background)

5. Document-Contact Frankfort Office

6. Contact CHFS Radiation Branch

DOG performs an initial scan and follow up scan to ensure accurate

readings.

o Review of Current Health Regulations under KRS 211.859-211.863 – Curt

Pendergrass: Mr. Pendergrass’ presentation provided the workgroup with

information concerning the federal and state policies regarding low level

radioactive wastes as well as information on the current compacts and disposal

sites across the nation.

o Special Waste/NORM/TENORM – Tony Hatton: Director Hatton gave

information regarding how TENORM wastes fit into the current DWM regulatory

scheme.

o Kentucky Division of Water Regulation for Control of Water Pollution from Oil

and Gas Facilities, 401 KAR 5:090 – Larry Taylor: Mr. Taylor gave the workgroup

background on the requirements of 405 KAR 5:090 and the necessity for

amendment of the regulation to address possible TENORM issues and other oil

and gas issues for later discussion.

o Tasks assigned for the next meeting of the workgroup.

1. Definition of NORM and TENORM and development of an appropriate

risk-based TENORM number – CHFS, DWM, and Reggie Van Stockum.

2. KY landfills not accepting oil and gas wastes – Internal Cabinet

Discussions.

o Public Comment: The workgroup did not receive public comment on this

meeting.

Next Meeting:

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o The next meeting is scheduled for June 2, 2016 at 1:00 pm in the Department for

Natural Resources conference room D-16, #2 Hudson Hollow.

Adjournment


Minutes of the second meeting held on June 2, 2016: A meeting of the Oil and Gas Workgroup was held in the Department for Natural Resources conference room D-16 in Frankfort KY.

Members Present: Rick Bender, Bill Daugherty, Bill Barr, Curt Pendergrass, Doug Hyden, Steve Coleman, Rudy Vogt, Kim Collings, Marvin Combs, Larry Taylor, Reggie Van Stockum, Maurice Royster, Justin Clark, Scott Smith, Rusty Cress, Tony Hatton, John Horne, and Tom FitzGerald.

Support Staff and Citizens Present: John Danna, Laura Cole, Glenna Goins, Justin Carey, Jennifer Wolsing, Pete Goodman, Dan Fleshour, Lance Huffman, Mike Hext, Gregory Butler, Haley McCoy, John Mura, Jeff Busick, Linda Magee, James Allen, Rep. Dennis Keene, Jason Bentley, Bruce Scott, Stephanie Stumbo, Kate Shanks, and Michael Mullins

Meeting Time: The meeting was called to order at 1:00 pm EST.

Opening Remarks: Rick Bender made opening remarks and started the meeting according to the provided agenda.

Discussions: Discussion at the meeting was mainly focused on the definitions of NORM and TENORM and levels of risk associated with NORM and TENORM.

o Basic Radiological Information – Curt Pendergrass: Mr. Pendergrass gave a

quick overview of basic radiological information for those that were unfamiliar

with the terminology and methods of measurement.

o Discussion on the definitions of NORM and TENORM: Discussion was opened

by clarifying that NORM is naturally occurring while TENORM is technologically

enhanced.

o The state definition of NORM actually defines TENORM which is different than

the typical usage.

o A question was raised whether NORM brought to the surface by drilling or any

other excavating action would be considered TENORM. Opinions varied.

o Bill Barr and Tom FitzGerald were asked to work together to come up with

definitions of both NORM and TENORM.

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o Levels of Risk: CHFS proposed 5 pCi/g above background as the de minimis level.

o Background is not the same all over KY and would require a study to determine

an average number. Background should be sampled as an onsite test.

o The waste management industry has not met to discuss the issue. However,

their representatives did not believe that they would be in favor of on-site

testing.

Tasks assigned for the next meeting of the workgroup.

1. Definition of NORM and TENORM and development of a strawman – Bill

Barr and Tom FitzGerald.

2. Waste industry to discuss issues related to accepting TENORM wastes

and provide a presentation – Rusty Cress.

3. Sampling procedures – Curt Pendergrass

Public Comment: The workgroup did not receive public comment at this meeting.

Next Meeting:

o The next meeting is scheduled for July 7, 2016 at 9:00 am in the Energy and

Environment Cabinet’s new building

Adjournment


Minutes of the third meeting held on July 7, 2016: A meeting of the Oil and Gas Workgroup was held in the Energy and Environment Cabinet First Floor Training Room 116-C in Frankfort KY.

Members Present: Rick Bender, Bill Daugherty, Bill Barr, Curt Pendergrass, Steve Coleman, Rudy Vogt, Kim Collings, Marvin Combs, Reggie Van Stockum, Monty Hay, Maurice Royster, Scott Smith, Rusty Cress, Tony Hatton, Matthew McKinley, Brandon Nuttall, Connie White, and Tom FitzGerald.

Support Staff and Citizens Present: John Danna, Laura Cole, Glenna Goins, Jennifer Wolsing, Rich Thompson, Lance Huffman, Mike Hext, Gregory Butler, Haley McCoy, Barbara Whaley, Jeff Busick, Jim Bruggers, Lane Boldman, Jamie Lucke, Mark Pierce, Jackie Quarles, Bruce Schmucker, Robert Lee, Laura Begin, Liz Natter, Jason Bentley, Bruce Scott, Kate Shanks, and Michael Mullins

Meeting Time: The meeting was called to order at 9:00 am EST.

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Opening Remarks: Rick Bender made opening remarks and notified the group he would be providing a status update of on the progress of the workgroup at the July 19th IJC on Natural Resources and Environment. The meeting started according to the provided agenda.

Discussions: Discussion at the meeting followed the agenda and covered waste management issues, sampling and testing, as well as the strawman provided by Tom FitzGerald.

o National Waste and Recycling Association Presentation – Rusty Cress and Mike

Hext: The presentation focused on the Kentucky’s requirements for pre-waste

acceptance protocols as well as waste profiling. The presentation was provided

to the group in a follow-up email.

o Discussion on the sampling and testing – Brandon Nuttall:

o The discussion centered on sampling techniques, standardized units, and

determination of Kentucky’s standardized background.

o Standardized background would be possible but could be a lengthy process. If a

standardized background level was determined then an allowance would need

to be made for entities to do onsite sampling to determine site specific

background.

o Members of the workgroup expressed a need for exposure levels across the

state to be determined before the group talks about waste and oil and gas

impacts.

o The workgroup was reminded that the focus of the workgroup is to discuss the

TENORM issue not NORM. However, other members expressed concern that an

increased risk of exposure by drilling and bringing NORM to the surface results in

TENORM.

o Discussion of Tom FitzGerald’s strawman: Mr. FitzGerald indicated a consensus

was not reached on the definitions or the strawman by the smaller group that

discussed the strawman prior to the meeting. The workgroup went through the

strawman by section and discussed the draft.

o The discussion centered on the definitions and risk levels. Deputy Secretary

Scott indicated the definitions would largely be driven by the levels the

workgroup establishes.

o The workgroup’s discussion resulted in tentative levels as follows:

1. Below 5 pCi/g = Leave in place.

2. 5 pCi/g – 15 pCi/g = Manage on-site.

3. Less than 50 pCi/g = Can be sent to a landfill.

4. Above 50 pCi/g = Low level radiation landfill.

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o The workgroup was asked to consider a Permit-by-Rule (PBR) for drill cuttings.

Possibly 15 pCi/g or below could be established for a PBR.


1. Brandon Nuttall was asked to send some sampling data to Rick Bender

prior to the IJC presentation.


Next Meeting:

o The next meeting is scheduled for August 4, 2016 at 9:00 pm in the Energy and

Environment Cabinet’s Training Room 116-C.

Adjournment


Minutes of the fourth meeting held on August 4, 2016: A meeting of the Oil and Gas Workgroup was held in the Energy and Environment Cabinet First Floor Training Room 116-C in Frankfort KY.

Members Present: Rick Bender, Bill Daugherty, Bill Barr, Rudy Vogt, Kim Collings, Reggie Van Stockum, Monty Hay, Maurice Royster, Scott Smith, Larry Taylor, Rusty Cress, Brandon Nuttall, Doug Hyden, and Tom FitzGerald.

Support Staff and Citizens Present: Sec. Charles Snavely, Deputy Sec. Bruce Scott, Haley McCoy, Gregory Butler, Lane Boldman, Jeff Busick, Mark Pierce, Laura Cole, Jennifer Wolsing, Laura Begin, Jason Bentley, Matt Sawyers, Kate Shanks, Stephanie Stumbo, and Michael Mullins


Opening Remarks: Rick Bender made opening remarks. The meeting started according to the provided agenda.

Discussions: Discussion at the meeting followed the agenda and covered waste management issues, sampling and testing, as well as the strawman provided by Tom FitzGerald.

o Discussion on Tom FitzGerald’s strawman: Discussed acceptable limits for waste

streams from oil and gas drilling sites.

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o Dosimetry should be required for landfills but not generators because the waste

hasn’t been characterized.

o Downblending – Discussion centered on the impacts of downblending and

whether the workgroup should agree to add it to the proposed draft.

1. Will solidification be allowed to be a tool for management of wastes as

well?

2. Solidification and downblending should be accomplished by an offsite

facility.

3. CHFS indicated the offsite facility would need to be licensed.

o Limit characterization of wastes to Ra 226 and Th 232.

o Onsite coverage for oil and gas cuttings is proposed in the draft to be three feet.

This would cause a problem for some locations in eastern Kentucky.

o Representatives of the oil and gas industry proposed a coverage of 1 ½ feet of

coverage which would include the use of a liner.


1. Tom FitzGerald would revise the strawman to include the items discussed

in the meeting.

2. Representatives of the oil and gas industry would discuss coverage

options with more members to ensure the 1 ½ feet of coverage would

work for their members.


Next Meeting:

o The next meeting is scheduled for September 8, 2016 at 9:00 pm in the Energy

and Environment Cabinet’s Training Room 116-C.

Adjournment


Minutes of the fifth meeting held on September 8, 2016: A meeting of the Oil and Gas Workgroup was held in the Energy and Environment Cabinet First Floor Training Room 116-C in Frankfort KY.

Members Present: Rick Bender, Bill Daugherty, Bill Barr, Maurice Royster, Monty Hay, Steve Coleman, Rudy Vogt, Doug Hyden, John Horne, Kim Collings, Marvin Combs,

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Reggie Van Stockum, Scott Smith, Rusty Cress, Larry Taylor, Justin Clark, Matthew McKinley, Brandon Nuttall, Connie White, and Tom FitzGerald.

Support Staff and Citizens Present: Deputy Secretary Bruce Scott, Laura Cole, Glenna Goins, Jennifer Wolsing, David Rettell, Mike Hext, Kathy Trent, Haley McCoy, Gregory Butler, Robert Lee, Mark Pierce, Bruce Schmucker, Laura Begin, Sherman Brown, Taylor Bumgardner, Bob Babbage, Julie Babbage, Jason Bentley, Peter Goodmann, Kate Shanks, and Michael Mullins


Opening Remarks: Rick Bender made opening remarks and mentioned the Cabinet for Health and Family Services drafted an administrative regulation version of their own. The meeting started according to the provided agenda.

Discussions: Discussion at the meeting started by determining which version of the regulation the workgroup was going to follow, the version established and worked on by the workgroup in previous meetings or the version drafted by CHFS. The meeting followed the agenda and covered waste management issues, sampling and testing, as well as the strawman provided by Tom FitzGerald.

o Discussion of Tom FitzGerald’s strawman: The workgroup decided to follow the

version of the draft created by Tom FitzGerald since it had workgroup consensus.

1. Tom FitzGerald agreed that thorium-232 is not an issue for oil and gas

sites and should be removed from the draft. However, operators may

need to test for actinium.

2. Deputy Secretary Scott believes that a separate regulation for oil and gas

sites would be beneficial rather than trying to tackle the entire TENORM

issue at once. Most of the workgroup agreed. HB 563 directs the

workgroup to address TENORM from oil and gas operations. CHFS would

rather have one administrative regulation dealing with contamination

from all TENORM sources not just oil and gas.

3. CHFS agreed to check on the cost and time for a thorium-232 test.

4. Pit liners were discussed and will be included for pits. A 12 mill liner was

agreed to be an appropriate thickness.

5. The workgroup discussed if landfills that accept TENORM wastes will

need to comply with RCRA Part C requirements for landfills.

6. Downblending was discussed. CHFS and Tom FitzGerald are not in favor

of downblending.

7. Representatives of the oil and gas industry are in favor of downblending

for scales and sludge in order to get the wastes below the 50 pCi landfill

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limit. CHFS doesn’t allow downblending for other industries and doesn’t

think it is appropriate for oil and gas operations.

8. Representatives of the oil and gas industry asked the workgroup to

consider downhole disposal of TENORM contaminated pipe, scale, and

sludge material at next meeting. If the workgroup can come to an

agreement on downhole disposal then downblending is not as much of

an issue for inclusion in workgroup recommendations.


o Tom FitzGerald will modify the draft to correspond with the work group’s agreed

upon recommendations from this meeting.


Next Meeting:

o The next meeting is scheduled for October 11, 2016 at 9:00 am in the Energy and

Environment Cabinet’s Training Room 116-C.

o The November meeting has been rescheduled for November 1st.

Adjournment


Minutes of the sixth meeting held on October 11, 2016: A meeting of the Oil and Gas Workgroup was held in the Energy and Environment Cabinet First Floor Training Room 116-C in Frankfort KY.

Members Present: Bill Daugherty, Bill Barr, Maurice Royster, Monty Hay, Steve Coleman, Rudy Vogt, Doug Hyden, John Horne, Kim Collings, Reggie Van Stockum, Scott Smith, Rusty Cress, Larry Taylor, Justin Clark, Connie White, Bill Donan, Matt Sawyers, and Tom FitzGerald.

Support Staff and Citizens Present: Secretary Charles Snavely, John Mura, Jeff Busick, Jeffrey Harmon, Curt Pendergrass, Laura Cole, Deanna Picklesimer, Jennifer Wolsing, Mike Hext, Haley McCoy, Gregory Butler, Robert Lee, Mark Pierce, Steve Hohmann, Bruce Schmucker, Laura Begin, Taylor Bumgardner, Jason Bentley, and Kate Shanks


Opening Remarks: Larry Taylor served as chair and made opening remarks and reviewed the agenda. The meeting started according to the provided agenda.

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Discussions: Initial concerns were raised regarding the broadening of the scope of the CHFS draft regulation and the amount of work that has been put into discussing and writing the processes and work group products. There was concern that the draft regulation deviates from the working definitions and assumptions that the work group has developed. It was suggested that the work group give CHFS the opportunity to present their case and provide them feedback on the draft regulation at that point in the agenda.

o Discussion of the revised working document: The workgroup reviewed the

version of the draft dated 9/9/2016 created by Tom FitzGerald.

1. There was continued discussion on the definition of NORM and TENORM

in the Working Document.

2. The chair indicated that the 9/9/2016 Working Document should be

updated to reflect that CHFS has also conducted outreach by sending

letters to all state radiation control agencies except for Hawaii.

3. CHFS asked if the work group was only going to concern itself with just

radium-226. Tom FitzGerald responded that in doing the RESRAD

modeling that radium-226 was the one that had the longevity and

presence that needed to be considered in regard to oil and gas-related

waste. Radium-228 did not have the persistence and thorium-232 would

not be expected to be present due to low solubility in produced water. It

was pointed out that the working document states that the working

definitions and assumptions apply to the characterization and

management for oil and gas production. Other wastes may have different

radionuclides present.

4. CHFS indicated that a typical laboratory test already would include a

number of radionuclides in a panel and cost about 100 dollars. Testing

and analyses were discussed further along with transport and shipping of

samples to a lab especially if it is an unknown concentration. FedEx can

ship higher levels of radioactivity with proper controls.

5. A question was asked whether the 25,000 pound limit from the North

Dakota and Argonne study should be included in the 5 pCi/g to 50 pCi/g

category in 3.b)i. The work group members responded that that criterion

was not included and Tom FitzGerald said that the issue is more with

total activity than total pounds or tons of waste.

6. A question was raised whether CHFS will license landfills over 50 pCi/g.

CHFS indicated that it would be jointly regulated with the Division of

Waste Management with each agency regulating within their authority.

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7. Downblending performed by an authorized processor and the statistical

rationale for the limit was discussed. The work group was asked if anyone

had concerns with the proposed limit of 70 pCi/g. A clarifying question

was asked regarding how that number would be used. Under the draft

CHFS regulations, the waste would be characterized with 5 homogeneous

samples and the average would be used to determine disposal options. In

this case if the average was over 50 pCi/g but less than 70, a processor

authorized by CHFS could downblend the waste to bring it below 50 for

disposal in a contained landfill. No members of the Work Group

expressed further comment.

o Discussion of Down Hole Disposal: The work group discussed the two

documents that had been sent prior to the meeting for their review.

Representatives from the oil and gas industry were asked to summarize the

issues related to tubular goods and disposal options. The Texas approach was

viewed as a good start to consider. Members were told that removing tubular

goods from the bore hole increases worker exposure and increases risk. The

scale, sludge and tubular goods are often left in the borehole and cemented in

place at depth during the well plugging process which isolates the materials from

exposure and prevents migration to groundwater. Division of Oil and Gas issues

plugging instructions and staff are onsite during the plugging. Questions were

raised on whether materials should be limited to where they are generated and

who can consent to disposal. Bill Barr and Tom FitzGerald committed to put

together a draft for the Work Group’s review.

o CHFS Presentation on Draft Regulation: Curt Pendergrass provided an overview

of sources of TENORM that they have dealt with and exemptions that have been

issued by the cabinet. Laura Begin summarized the draft regulation and reviewed

the structure and elements of the regulation. Larry Taylor asked that the Work

Group consider the regulation from two perspectives: how does this affect oil

and gas operations and are there concerns with the other portions. CHFS intends

to provide outreach to other affected parties and will address concerns as they

arise during the promulgation process. Specific issues discussed included a

manifest being used for over 50 pCi/g and waste management industry had

suggested a ‘waste profile’ that meets the needs of a manifest for less than 50

pCi/g. A clarification was requested by the Work Group that 5 to 50 pCi/g was

the sole responsibility of EEC. A question was raised about whether over 50

would be specifically licensed by CHFS. A question was also raised about whether

the statutory definition needs to be revised first and the process of how that is

done with the Compact Commission. In reference to the draft regulation, there

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was considerable concern with how concerns and opposition from other parties

affected by the regulation could delay the process. The Work Group has an

opportunity for a quick ‘win’ with respect to HB563. While it is understandable

that CHFS has needs to address and exempt other sources of TENORM and

NORM, most members of the Work Group expressed significant concern and

suggested an incremental or phased approach with addressing oil and gas

operations first and then the cabinet could follow that with specific amendments

for the other sources. The Work Group asked when the EEC draft regulations will

be ready to share. Larry Taylor said that they hope to be able to provide a draft

for the next meeting.

o Draft Report to LRC: Larry Taylor described the format of the draft report and

asked that Work Group members provide any comment on the report to Rick in

the coming weeks.


o Tom FitzGerald will update the Working Document to reflect identified changes.

o Bill Barr and Tom FitzGerald will develop a draft approach for down hole disposal

of tubular goods.

o EEC will provide draft regulations for the Work Group’s review for the next

meeting.


Next Meeting:

o The next meeting is scheduled for November 1, 2016 at 9:00 am in the Energy


Adjournment


Minutes of the seventh meeting held on November 1, 2016: A meeting of the Oil and Gas Workgroup was held in the Energy and Environment Cabinet First Floor Training Room C in Frankfort KY.

Members Present: Bill Barr, Maurice Royster, Monty Hay, Steve Coleman, Rudy Vogt, John Horne, Kim Collings, Reggie Van Stockum, Scott Smith, Rusty Cress, Larry Taylor, Matt Sawyers, Curt Pendergrass, Scott Smith, and Tom FitzGerald.

Support Staff and Citizens Present: Deputy Secretary Bruce Scott, Laura Cole, David Rettell, Sherman Brown, Deanna Picklesimer, Jennifer Wolsing, Haley McCoy, James

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Bruggers, Gregory Butler, Steve Hohmann, Laura Begin, Taylor Bumgardner, Lane Boldman, and Kate Shanks


Opening Remarks: Rick Bender made opening remarks and reviewed the agenda. The meeting started according to the provided agenda.

Discussions: There was initial discussion on the path forward regarding the report to be given to the legislature as well as the workgroups process for implementing the proposed regulation amendments.

o Discussion of the revised working document: The workgroup reviewed the

version of the draft dated 10/22/2016 drafted by Tom FitzGerald.

1. There was continued discussion on total activity and how that is

determined.

2. Concern was expressed that a time of high levels of oil and gas activity

could result in a landfill being shut down due excessive amounts of oil

and gas wastes.

3. Rusty Cress mentioned that DEP determines the load for a landfill during

the permitting process.

4. Tom FitzGerald agreed to amend the working document language to

include the information regarding volume and activity to prevent

overloading a landfill.

o Discussion of Down Hole Disposal: The workgroup discussed downhole

disposal.

1. Rudy Vogt mentioned that the reclamation plan is required before drilling

and couldn’t account for downhole disposal.

2. A member of the oil and gas industry commented that the division needs

the authority to determine the thickness of the cement plug.

3. An entity wishing to re-enter a plugged well will need a permit from DOG.

DOG will need to ensure this information maintained and reviewed.

4. The workgroup had no desire to require entities to go in and remove

scale from drilling tubes. Scale is one of the most hazardous

components. Couplings are where most scale accumulates making them

have highest concentration of TENORM.

5. Disposal of TENORM at a regulated facility is preferable to storage onsite.

o Draft Report to LRC: Larry Taylor went over the draft report with the workgroup.

The workgroup approved the format and contents of the report. However, CHFS

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representative asked the report include the codified version of HB 536 in the

report. Also representatives for the oil and gas industry asked that “KOGA” not

be used in the report because the information agreed to in the workgroup has

not received the full approval of KOGA only some of the members of KOGA.

They asked that “members of the oil and gas industry” be used instead.


o Tom FitzGerald will update the Working Document to reflect identified changes.

o A redraft of the working assumptions document is due to the workgroup by

November 29th.

o All revised documents are due to the workgroup by December 5th.


Next Meeting:

o The next meeting is scheduled for December 9, 2016 at 9:00 am in the Energy


Adjournment

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SECTION 6. FINDINGS AND RECOMMENDATIONS

1. The Oil and Gas Workgroup met and collaborated to address the oil and gas related issues

identified by HB563 and codified as KRS 211.893 and has developed the following findings

and recommendations. Definitions

The definitions currently in statute are in need of revision. The workgroup defined two

terms that are consistent with adjacent states and the Conference of Radiation Control

Program Directors.

a) TENORM, or Technologically-Enhanced Naturally Occurring Radioactive Material, means

naturally occurring radioactive material whose radionuclide concentrations have been

increased by human activities above levels encountered in the natural state. TENORM

does not include the natural radioactivity of rocks or soils, and does not include “source

material,” “byproduct material,” or “special nuclear material” as those terms are

defined in the Atomic Energy Act of 1954, as amended (42 USC 2011 et seq.) and

relevant regulations implemented by the Nuclear Regulatory Commission.2

b) NORM, or Naturally Occurring Radioactive Material means any of the primordial

radionuclides or radioactivity present in soils, rocks, and materials not concentrated as a

result of human activities.

2. Assumptions

The workgroup documented several assumptions leading up to the findings and

recommendations.

a) These working definitions and assumptions apply solely to the characterization and

management of materials related to oil and gas production.

b) KRS 211.863 prohibits importation and receipt of any material containing low-level

radioactive waste, which includes NORM that is generated out of state from any source,

unless approved by the Central Midwest Low-Level Radioactive Waste Compact

2 The Regional Management Plan (RMP) states that “NORM contaminated wastes are sometimes referred to as

technologically enhanced NORM or TENORM. This differentiates between NORM present in the natural environment and useful products from TENORM waste produced as a result of a man made process.” The RMP in regards to Low Level Radioactive Waste states that “[t]he definition does not exclude waste comprised of naturally occurring radioactive material (NORM) or waste comprised of naturally occurring or accelerator produced radioactive material (NARM). Accordingly, because it does not fall within one of the exclusions, waste containing NORM or NARM is LLRW under the Compact and is subject to the Compact’s requirements concerning storage, treatment, and disposal of LLRW.

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Commission (Compact Commission). Nothing in the TENORM regulations that will be

promulgated pursuant to these working assumptions will change that current

prohibition.

c) The workgroup concurs that the current default level of 1,999 pCi/gram for disposal of

in-state NORM or TENORM in contained landfills may not be protective of public and

workplace safety and health under certain exposure scenarios, and that an upper-bound

regulatory limit is needed that is protective during and after the useful life of the landfill.

This working assumption is guidance for the group but is not intended to be

incorporated as regulatory language.

d) CHFS and EEC have conducted outreach to radiation control and waste management

agencies in oil and gas-producing states regarding oversight of companies engaged in

management and transportation of TENORM and NORM in order to prevent, to the

extent possible, importation into Kentucky for disposal of wastes in violation of the

Central Midwest Low-Level Radioactive Waste Compact. EEC has conducted that

outreach to natural resources and radiation control agencies in Ohio, Indiana, Maryland,

Pennsylvania, New York, Missouri, Tennessee, West Virginia, Virginia, and New York and

has shared those letters with workgroup. The Cabinet for Health and Family Services

sent TENORM outreach letters to all radiation control program managers in the United

States to provide notification and clarification of the Kentucky laws regarding NORM,

TENORM, and Low-Level Radioactive Wastes that advised those states of the import

prohibition from states outside of the Central Midwest Low-Level Radioactive Waste

Compact.

e) The management of oil- and gas-related TENORM should be guided by science and

should be risk-informed and dose-based. The dose-based values for radionuclides in

TENORM waste should be expressed in quantitative terms for purposes of regulatory

compliance. Authorized limits for radium-226 should be developed for the disposal of

TENORM expressed as concentrations in pCi/g derived from a target dose.

f) Any regulatory framework developed or modified to assure proper management of oil-

and gas-production NORM or TENORM should be effective both in protecting public and

workplace safety and health, and in allocating government and private sector resources

in the most cost-effective manner to achieve those ends. The upper-bound regulatory

limit for free release should be 25 mrem/yr for protection of public health.3

3 The 25 mrem/yr is consistent with the performance objectives for regulated low-level radioactive facilities and

free release limits of 902 KAR 100:042, Section 2.

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3. NORM and TENORM Management

The workgroup developed a tiered process for regulation of TENORM. The management

and disposal of materials with naturally-occurring radioactivity and naturally-occurring

radioactivity that has been technologically enhanced is based on exposure risk and

management of risk below health-based doses. The workgroup will recommend that

administrative regulations for the Energy and Environment Cabinet and the Cabinet for

Health and Family Services be amended to incorporate this tiered approach.

a) Exempt or Specific Waste Sources:

i. Water produced from or utilized during oil or gas well development or production

operations, including water flowed back following hydraulic fracturing operations,

that is disposed of in wells that are permitted and regulated under the Underground

Injection Control (UIC) program are exempt from further regulation.

ii. Materials exhibiting a radium-226 concentration of at or below 5 pCi/g should be

exempted from additional regulation due to de minimis health risk from exposure.

Soils exhibiting a radium-226 concentration of at or below 5 pCi/g above background

as measured within the first 15 cm below ground surface averaged over 100 square

meters should be exempted from additional regulation for the same reason.

iii. Drill cuttings from exploration or production wells, including drill cuttings from

horizontal well drilling, that are disposed of on-site shall be buried at a depth of one

and 1/2 feet below ground surface, and may be buried only in conjunction with the

closure of on-site pits. A pit shall be closed with a 12 mil liner over the cuttings and

1 and 1/2 feet minimum of soil graded and revegetated in order to minimize

erosion. The current permit-by-rule in 401 KAR 45:060 for drilling muds shall be

revised to include drill cuttings, and to reflect the minimum depth revision. The

Energy and Environment Cabinet will amend Division of Oil and Gas regulations in

805 KAR 1:170 to address construction, management, and closure of a pit.

Regulations in 401 KAR Chapters 45 and 48 will be amended to describe disposal of

TENORM in landfills.

iv. Brine/sludge pit contents, scale and residue from heater-treaters, facilities used for

storage of produced waters, such as pits and tank batteries, piping and tubing,

wastewater storage or recycling tanks and equipment, and other wastes generated

in state by oil or gas production operations employing secondary recovery or wastes

associated with high-volume hydraulic fracturing, shall be characterized and

analyzed by the generator for radium-226 prior to handling and shipment for

disposal in a landfill meeting the design and other requirements of a contained

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landfill and shall be subject to these requirements. Material can be characterized in

regards to total radiation activity where cleaning of piping or other material would

result in potential exposure to workers. Disposal must be characterized with regard

to pCi/g. Results of the characterization, analysis, and data verification, including any

sampling shall accompany the waste shipment and copies of such sampling and

certification shall be maintained by the generator and by the solid waste facility

accepting the waste. Characterization, analysis, data verification shall be conducted

using methodology identified and approved by the CHFS Radiation Control Branch

under licensure.

b) 5 pCi/g to ≤ 50 pCi/g:

i. 401 KAR 48:090 should be modified to require all contained landfills to develop a

plan for management of oil and gas-related waste including whether they will accept

waste related to oil and gas production and management of that waste. If the

concentration of radium-226 in the oil or gas waste is above 5 pCi/g but below 50

pCi/g, acceptance of the waste by any landfill meeting the design and other

requirements of a contained landfill shall be allowed without restrictions on the

handling and disposal of the wastes, provided that the material shall not be used for

daily cover or alternative daily cover in order to comply with ALARA principles.

c) > 50 pCi/g

i. 401 KAR 48:090 should be modified in order to address the necessity to prepare and

implement a plan for inspection and operating requirements for landfills relating to

acceptance of NORM or TENORM containing above 50 pCi/g of radium-226 .The

authorized limits for radium-226 and total activity permitted for a landfill or cell, will

be developed by CHFS based on potential future exposure post-closure of the landfill

and will be expressed as numeric values in the regulation.4 The disposal limit for

radium-226, based on RESRAD 7.0 with an exposure assumption of 25 mrem, is 238

pCi/g.

For any landfill accepting TENORM waste with a concentration of radium-226 above

50 pCi/g, dosimetry would be required for a minimum of 8 quarters. If dosimetry

4 Per DOE Order 458.1, “An authorized limit is a limit on the concentration or quantity of residual radioactive

material on the surfaces or within property that has been derived consistent with DOE directives including the ALARA process requirements. An authorized limit may also include conditions or measures that limit or control the disposition of property.”

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results averaged over each of the 12 month periods are less than 200 mrem/yr,5

suspension of use of dosimeters could be requested and approved. CHFS has

authority under 902 KAR 100:015, upon application, to grant such exemptions or

exceptions as it determines are authorized by law or regulation and that will not

result in undue hazard to public health, safety, or property.

ii. Disposal facilities accepting TENORM waste with a concentration of radium-226 in

excess of 50 pCi/g shall register with CHFS and operate in accordance with a permit

issued by EEC based upon these standards established by EEC and CHFS. TENORM-

containing waste over 50 pCi/g of radium-226 cannot be used as alternative daily

cover, and the facility is subject to any conditions in host agreements restricting or

precluding disposal of NORM and TENORM.

iii. For any landfill accepting waste with a concentration greater than 50 pCi/g, the final

cap design shall be enhanced to meet the standards of a Part C landfill under the

Resource Conservation and Recovery Act. Downblending of TENORM waste either

prior to or after characterization, except as provided below, is prohibited. The

decision on how the TENORM-containing waste is to be managed shall be based on

the concentration prior to any solidification of the waste. Solidification of wastes for

the sole purpose of allowing the landfilling of such wastes and downblending as

provided below, is permitted, provided that the person shall have first received a

license to engage in such activities from the CHFS and meets the performance

standards and recordkeeping requirements to be established by CHFS and EEC.

Downblending may be utilized only to achieve the 50 pCi/g limit only where the

concentration of radium-226 prior to any solidification or downblending is less than

70 pCi/g and the downblending is performed by a processor authorized to enhance,

treat, or produce TENORM. The prohibition on downblending would not prevent a

landfill from engaging in normal activities associated with spreading of wastes that

might result in lowering of overall concentration values, provided that prior to

receipt of the waste, characterization demonstrating compliance with the

authorized limit is documented. This is a radiation issue that can be addressed in the

license.

iv. If the concentration is above the authorized limit developed in Subsection 3(c)(i) for

radium-226, the waste load shall not be sent to or received by any landfill regulated

under 401 KAR Chapters 45, 47 and 48 but shall instead be disposed of in a licensed

low-level radioactive waste facility. 5 10 CFR 20.1502 Conditions requiring individual monitoring of external and internal occupational dose.

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d) On-site downhole disposal of tubular goods, sludge, and scale containing TENORM may be

allowed by the Division of Oil and Gas in conjunction with plugging and abandonment of

any oil or gas production well provided that the following standards are met and an

inspector from the Division of Oil and Gas is present for the duration of the disposal and

plugging activity:

i. The operator certifies that the owner of the oil and gas rights has consented, by

lease or other document, to allow such on-site disposal of TENORM waste;

ii. The TENORM waste was generated at the lease or unit where disposal is proposed;

iii. The TENORM waste shall be placed in the well at a depth of at least 200 feet below

the base of any underground source of drinking water (i.e. with a TDS concentration

of 10,000 ppm or less);

iv. The TENORM waste shall be placed in a controlled manner in the well;

v. A cement plug shall be placed below the TENORM waste, isolating the waste from

any producing formation and preventing migration of TENORM waste below the

disposal interval, with the DOG specifying the thickness of the plug, the type of

cement to be used, and how the cement is to be placed in the wellbore. The well

shall be cemented from above the TENORM waste to the top of the well;

vi. The cement of the surface plug shall be color dyed with red iron oxide;

vii. A permanent marker that shows the three-bladed radiation symbol shall be inserted

into the upper surface of the top cement plug or welded to a steel plate at the top of

the well casing;

viii. The operator shall apply to dispose of TENORM downhole, on a form developed by

the Division of Oil and Gas, which application shall contain the following

information:

1. A description of the type or types of TENORM waste so disposed (i.e. pipe

scale, contaminated soil, sediment, equipment, piping tubing, valves, sucker

rods, etc.)

2. The approximate volume of each type of waste so disposed;

3. Results of analysis of radium-226 for soil and other media, and report of

gamma ray dose rate µR/hr for pipe and other tubular goods in which

TENORM is entrained as scale;

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4. The name, permit number, and location of the well to be plugged in which

TENORM waste is proposed to be disposed;

5. The formation or formations from which the NORM waste originated.

ix. A copy of the application shall be provided to the CHFS Radiation Control Branch and

to the owner of the surface estate at the time of filing of the application.

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SECTION 7. FUTURE STEPS

The work group made significant progress toward the goals of the legislation. The members of

the work group and those in attendance provided meaningful and productive discussions and

input that has resulted in the work group producing a working definitions and assumptions

document that is intended to provide a framework for an oil and gas regulatory approach based

on stakeholder involvement. This collaborative work product has aided in identifying necessary

clarification and regulatory changes. This is a working document and does not represent final

consensus on all issues. In the remaining meetings the group will complete the study of oil and

gas development and production as required by KRS 211.893 and resolve any outstanding

issues in regard to appropriate characterization and management of materials associated with

oil and gas operations. The work group will publish a final report with findings and

recommendations.

Based on the findings and recommendations of the work group, the executive branch agencies

will coordinate with members of the General Assembly to develop and implement proposed

legislative changes that will specifically clarify and streamline the definitions of NORM and

TENORM in KRS 211.862. With the workgroup issuing findings and recommendations,

administrative regulations will also be amended in a coordinated effort to ensure that the

amendments are filed and implemented concurrently in consultation with the oil and gas

workgroup. The administrative regulation amendments will establish limits for disposal of

TENORM wastes at landfills. The regulations will establish a classification process based on

waste characteristics and radionuclide concentration and appropriate management of wastes

associated with oil and gas development and production. The regulations will address proper

construction, operation and closure of pits used for oil and gas drilling and to ensure that

wastes generated will be properly characterized, transported and disposed.

The executive branch agencies will provide outreach to ensure that the changes are clear and

understandable and ensure that the Kentucky oil and gas industry has options available for

addressing and managing materials that are generated in the drilling and development process

and that the management of those materials is protective of current and future exposure to

workers and the public.

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RADIOACTIVE WASTE DISPOSAL IN ESTILL COUNTY, KENTUCKY Mary Varson Cromer

On February 26, 2016, residents of Irvine, Kentucky, learned from an article in the Courier-Journal that "Nuclear Waste" had been illegally dumped in Advanced Disposal’s Blue Ridge Landfill in Estill County.1 According to the article, EEC’s Division of Waste Management ("DWM") had been investigating the dumping of the waste since January. The article reported that DWM’s Tony Hatton told the Courier-Journal:

[T]he waste comes from rock and brine that's brought to the surface during oil and gas drilling. Naturally occurring radionuclides concentrate during the process. A West Virginia company that recycles the drilling further concentrates the radionuclides – and that's the waste that [DWM’s Tony] Hatton said made [sic] to the Blue Ridge Landfill last year...

This revelation set off a firestorm of concern and fear in the community. EEC officials participated in a community forum a week later to answer questions and quell fears. However, there was still a lot of concern about what had happened and the state’s handling of the situation. I. WHAT THE STATE KNEW AND WHEN

A. On July 21, 2015, Jason Frame, of West Virginia DEP contacted CHFS’s Christopher Keffer to let him know that the state was prepared to authorize Fairmont Brine Processing’s disposal of its fracking sludge in Kentucky landfills.

B. CHFS’s Curt Pendergrass responded to Mr. Frame that evening, saying

that the Central Midwest Low Level Radioactive Waste Compact, of which Kentucky is a member, prohibited the importation of such waste into Kentucky. He also copied DWM because, as he said, "the disposal of waste containing hazardous materials including NORM/TENORM in landfills here in Kentucky is their regulatory purview."

C. Pendergrass’s email was too late. Between the time of Jason Frame’s

first contact and Mr. Pendergrass’s response, West Virginia had approved Fairmont Brine’s sludge disposal plan. The waste from Fairmont Brine began arriving the next day.

D. Kentucky officials learned on January 19, 2016, that Advanced TENORM

Services, Inc. had been facilitating the disposal of West Virginia waste in Kentucky landfills since July 2015.

1 J. Bruggers, "Nuclear Waste Dumped Illegally in Ky.," Courier-Journal, Feb. 25, 2016, available

at: http://www.courier-journal.com/story/tech/science/environment/2016/02/25/nuclear-waste-dumped-illegally-kentucky/80924622/.

http://www.courier-journal.com/story/tech/science/environment/2016/02/25/nuclear-waste-dumped-illegally-kentucky/80924622/

http://www.courier-journal.com/story/tech/science/environment/2016/02/25/nuclear-waste-dumped-illegally-kentucky/80924622/

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II. COMMUNITY RESPONSE

A. Concerned Citizens of Estill County, Inc. ("CCEC")

1. The group formed quickly after the news of the illegal dumping came out. It was officially incorporated as a §501(c)(3) organization in June.

2. July 16, 2016 – CCEC held a rally in Irvine, Kentucky to raise

awareness of the issue and to pressure state officials to allow the group a "seat at the table" in EEC’s negotiations with the landfill.

3. At the rally CCEC collected 200+ signatures for a Petition to the

Governor asking to be let into the state’s negotiations with the landfill and asking the state to release all records that were being withheld.

4. Throughout the late summer and fall, CCEC had numerous

meetings with officials at EEC, CHFS, and OAG to discuss the enforcement actions.

5. November 14, 2016 – CCEC hosted a community forum in Irvine.

Officials from CHFS and EEC presented regarding their investigations and enforcement actions.

B. CCEC’s Open Records Requests and Open Records Act Litigation

1. CCEC group made multiple Open Records requests to EEC, CHFS, and OAG, as well as FOIA requests to West Virginia agencies.

2. March 10, 2016 – OAG asks EEC and CHFS to withhold records

because of OAG’s investigation under KRS 61.878(1)(h) (investigative records exemption).

3. May-June 2016 – CCEC appeals denials of records to the OAG.

The OAG issued opinions upholding the agency’s claim of exemption. (The ORDs were issued after July 18, 2016.)

4. The OAG rescinded the request to withhold records on July 18,

2016. 5. EEC and CHFS began providing records to CCEC immediately

thereafter, but still withheld numerous records as preliminary documents (KRS 61.878(1)(i), (j)) and as otherwise exempt under KRS 61.878(1)(k).

6. August 30, 2016 – OAG denies CCEC’s request for records of the

investigation, asserting that the records were being withheld under KRS 61.878(1)(h) because of the ongoing investigation.






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7. September 2016 – CCEC files an Open Records Act case against CHFS, EEC, and OAG. Franklin Circuit Court, Civil Action No. 16-CI-974.

8. Since serving the parties, CCEC has received numerous

documents that were previously withheld, including all public records in the OAG’s criminal investigation file.

9. EEC is still withholding communications between EEC counsel

and counsel for the landfill under KRS 61.878(1)(k), claiming settlement privilege. CCEC asserts that it has a right to the records and needs them to be able to fully comment on the corrective action plan that the landfill is releasing in April.

III. OVERLAPPING AUTHORITIES: CONFUSION OVER "REGULATORY

PURVIEW" WHEN IT COMES TO RADIOACTIVE WASTE?

A. Resource Conservation and Recovery Act

1. RCRA – "The following solid wastes are not hazardous wastes:… (5) Drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy." 40 C.F.R. §261.4(b); see also 42 U.S.C. §6921(2) (RCRA’s Bentsen amendment).

2. Hazardous wastes are regulated under Subtitle C of RCRA, which

requires cradle-to-grave tracking and stricter disposal standards. 3. Non-hazardous wastes are regulated under RCRA Subtitle D,

which gives the states authority over the landfilling of non-hazardous wastes.

4. EEC’s DWM permits Subtitle D landfills like the one in Estill

County. B. Atomic Energy Act

1. "Each state shall be responsible for providing, either by itself or in cooperation with other states, for the disposal of (A) low-level radioactive waste generated within the state…." 42 U.S.C. §2021c.

2. Kentucky/Illinois Central Midwest Regional Low Level Radioactive

Waste ("LLRW") Compact ("the Compact").

Compact’s LLRW Regional Management Plan:

a. Prohibits the importation of TENORM waste with concentration above 5 pCi/g into the region for disposal.






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b. TENORM waste with concentrations of greater than 2000pCi/g shall be disposed of at a regional LLRW disposal facility (five in the U.S.).

3. KRS Chapter 211 – CHFS/OAG.

a. KRS 211.863(3): "No person shall import naturally occurring radioactive material (NORM) from outside the region for disposal in Kentucky, or dispose of such imported material in Kentucky."

b. KRS 211.869(3): "Any person who intentionally violates a

provision of KRS 211.863 shall be guilty of a Class D felony."

IV. ENFORCEMENT ACTIONS

A. DWM

1. March 8, 2016 – DWM issued a Notice of Violation to Advanced Disposal Landfill, citing the company for, inter alia, accepting and disposing of forty-seven loads of waste containing TENORM from July through November 2015.

2. October 21, 2016 – EEC issued a proposed agreed order with the

landfill with $95,000 in penalties going to supplemental environmental projects and requiring the landfill to develop a corrective action plan. The agreed order was open for notice and comment.

3. January 6, 2017 – EEC executed the agreed order under the

same terms. 4. The landfill’s corrective action plan is due in April, 2017. 5. EEC has agreed to allow CCEC and others interested to comment

on the terms of the corrective action plan. The agreed order states that "community acceptance" of the plan will be considered.

B. CHFS

1. November 14, 2016 – CHFS announces that it had imposed over $8 million in fines against eight entities and one individual related to the TENORM dumping.

2. The landfill was not part of CHFS’s penalty action. 3. All entities and the individual have appealed the CHFS fines. 4. The individual and his company have since declared bankruptcy.




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C. Office of the Attorney General

1. March 16, 2016 – OAG announced that it had launched an investigation into allegations that radioactive waste was transported and illegally dumped in Boyd and Estill counties.

2. The OAG investigation focused primarily on the individual who

had brokered the disposal of the waste. 3. July 15, 2016 – OAG announced that it had concluded its

investigation and determined that there was insufficient evidence to bring criminal charges.

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"…AND HERE'S THE TOP TEN!" ETHICS AND MALPRACTICE AVOIDANCE GUIDE

Asa P. Gullett and Benjamin Cowgill, Jr. I. INTRODUCTION

"Top Ten" lists seem to be more popular than ever, perhaps because they appeal to our need to receive reliable information in a format that we can digest quickly as we rush through our hectic lives. Accordingly, with USA Today as our model and David Letterman as our muse, we hereby break with all grand traditions of subtle and sophisticated ethics analysis and offer a few simple lists that speak volumes to any lawyer who wishes to avoid malpractice claims and Bar complaints. So… from the home office in Frankfort (as Letterman might say), we are proud to present:

II. TOP TEN WAYS TO AVOID MALPRACTICE AND MISCONDUCT

10. Be mindful of how your practice setting affects your risk of receiving a malpractice claim.

Areas of law most likely to generate a malpractice claim:

Area of Law LMICK1

2015

LMICK2

2014

LMICK3

2013

ABA

2011

Personal injury (for plaintiff)

17% 23% 28% 15.59%

Real estate 26% 28% 30% 20.33%

Collection & bankruptcy 7% 11% 8% 9.2%

Workers' comp 7% 7% 5% 2.02%

Estate, trust & probate 22% 9% 6% 10.67%

Family law 6% 8% 5% 12.14%

Criminal law 2% 2% 3% 5.65%

1 Lawyers Mutual Insurance Company of Kentucky.



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Area of Law LMICK1

2015

LMICK2

2014

LMICK3

2013

ABA

2011

Corporate & business

org.

2% 2% 1% 6.79%

Labor law 1% 1% 1% 2.19%

Personal injury (for

defendant)

3% 5% 2% 3.26%

9. Be mindful of how the stage of the case affects the risk that you will do or

fail to do something that becomes the basis of a malpractice claim.

When an error is likely to occur during various stages of case development:

Stage of Case ABA Study 2011

ABA Study 2007

ABA Study 2003

ABA Study 1999

Preparation, filing of documents

24.86% 25.51% 23.08% 25.24%

Pre-trial, pre-hearing advice

8.55% 11.29% 19.47% 8.18%

Commencement of action 17.31% 17.32% 15.59% 15.66%

Advice 20.19% 12.68% 15.07% 6.79%

Settlement/negotiation 6.79% 7.67% 8.20% 6.38%

Trial or hearing 5.33% 5.56% 5.07% 5.10%

Title opinion 4.46% 5.21% 4.03% 13.01%

Investigation/other than litigation

3.25% 6.04% 2.19% 16.26%

Appeal activities 1.60% 2.36% 2.15% 1.11%

8. Be mindful of how the nature of your task affects the risk that you will do

or fail to do something that will result in a malpractice claim.

Activities at issue in malpractice claims presented to LMICK during 2013, 2014 and 2015:

Activity 2013 % Total

2014 % Total

2015 % Total

Commencement of action or proceeding 18.94% 21.31% 13.21%

Pre-trial or pre-hearing 16.67% 16.39% 11.32%

Consultation or advice 3.79% 4.10% 6.60%

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Activity 2013 % Total

2014 % Total

2015 % Total

Settlement and negotiation 6.06% 9.84% 13.21%

Title opinion 13.64% 12.30% 13.21%

Prepare, transmit or file document (other than pleading)

15.91% 16.39% 7.55%

Trial or hearing 3.79% 3.28% 2.83%

Written opinion (other than title) 0.00% 0.00% 0.00%

Tax reporting or payment 2.27% 1.64% 0.00%

Post-trial or hearing 7.58% 8.20% 9.43%

7. Be mindful of the types of error you are most likely to commit.

a. LMICK Claims Experience in FY 2013, FY 2014 and FY 2015.

Errors alleged in malpractice claims presented to LMICK during 2013, 2014 and 2015:

Alleged error 2013 % Total

2014 % Total

2015 % Total

Failure to know or properly apply the law 11.36% 4.92% 16.98%

Failure to obtain the client's consent 1.52% 0.82% 0.00%

Error in public record search 12.88% 11.48% 13.21%

Failure to know or ascertain deadline correctly

7.58% 4.10% 2.83%

Procrastination in performance of services/lack of follow-up

2.27% 7.38% 2.83%

Failure to calendar properly 10.61% 14.75% 6.60%

Inadequate discovery of facts or inadequate investigation

9.85% 9.02% 7.55%

Failure to react to calendar 0.76% 0.00% 1.89%

Planning error in choice of procedure 18.18% 23.77% 12.26%

Conflict of interest 3.03% 3.28% 3.77%

Fraud 5.30% 2.46% 13.21%

Failure to file a document, where no deadline involved

1.52% 0.82% 0.94%

Failure to understand or anticipate tax 0.76% 1.64% 1.89%

Clerical error 1.52% 3.28% 0.94%

Failure to follow client's instructions 3.03% 8.20% 3.77%

Improper withdrawal from representation 1.52% 1.64% 2.83%

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Alleged error 2013 % Total

2014 % Total

2015 % Total

Libel or slander 0.76% 0.00% 0.00%

Lost file, document or evidence 2.27% 0.82% 0.00%

Malicious prosecution or abuse of process 5.30% 1.64% 8.49%

b. Other studies, showing types of alleged error by category and

sub-category. i. Administrative errors:

Error LMICK 2013

LMICK 2014

LMICK 2015

ABA 2011

Procrastination 2.27% 7.38% 2.83% 9.68%

Failure to calendar properly 10.61% 14.75% 6.60% 4.34%

Failure to react to calendar 0.76% 0.00% 1.89% 2.34%

Failure to file document – no deadline 1.52% 0.82% 0.94% 3.17%

Clerical error 1.52% 3.28% 0.94% 3.54%

Lost file – document evidence 2.27% 0.82% 0.00% 7.05%

Total 18.94% 27.05% 13.21% 30.13%

ii. Substantive errors:

Error LMICK 2013

LMICK 2014

LMICK 2015

ABA 2011

Failure to know law 11.36% 4.92% 16.98% 13.57%

Planning error – procedure choice 18.18% 23.77% 12.26% 7.39%

Inadequate discovery/investigation 9.85% 9.02% 7.55% 7.82%

Failure to know or ascertain deadline 7.58% 4.10% 2.83% 6.91%

Conflict of interest 3.03% 3.28% 3.77% 4.28%

Failure to understand or anticipate tax 0.76% 1.64% 1.89% 1.37%

Public record error search 12.88% 11.48% 13.21% 3.03%

Error in math calculation 0.00% 0.00% 0.00% 0.69%

Total 63.64% 58.20% 58.49% 45.07%

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iii. Client relations:

Error LMICK 2013

LMICK 2014

LMICK 2015

ABA 2011

Failure to obtain client consent 1.52% 0.82% 0.00% 5.31%

Failure to follow client instruction 3.03% 8.20% 3.77% 3.22%

Improper withdrawal of representation 1.52% 1.64% 2.83% 2.70%

Total 6.06% 10.66% 6.60% 11.22%

iv. Intentional wrongs:

Act LMICK 2013

LMICK 2014

LMICK 2015

ABA 2011

Malicious prosecution 5.30% 1.64% 8.49% 3.43%

Fraud 5.30% 2.46% 13.21% 5.53%

Violations of civil acts 0.00% 0.00% 0.00% 1.27%

Libel or slander 0.76% 0.00% 0.00% 0.96%

Total 11.36% 4.10% 21.70% 10.19%

c. Experience at LMICK and the ABA 2007 study both indicate that

missing deadlines is one of the most serious dangers:

Deadline Error LMICK 2013

LMICK 2014

LMICK 2015

ABA 2007

Failure to know deadline 7.58% 6.01% 2.83% 6.38%

Failure to calendar 10.61% 8.60% 6.60% 7.44%

Failure to react to calendar 0.76% 2.93% 1.89% 3.57%

Total 18.95% 17.54% 11.32% 17.39%

6. Be mindful of the kind of grievance your client is most likely to make in a

bar complaint.

Type of misconduct alleged Rule potentially violated

Percentage of total

Lack of diligence 1.3 31%

Lack of competence 1.1 26%

Conflict of interest 1.7 – 1.9 11%

Fraud or misrepresentation 8.4(c) 7%

Inadequate communication 1.4 6%

Excessive or improper attorney's fee 1.5 4%

Misappropriation of client funds 1.15 3%

Failure to follow client directives 1.2 2%

http://c.ymcdn.com/sites/www.kybar.org/resource/resmgr/SCR3/SCR_3.130_(1.3).pdf


http://www.kybar.org/page/SCR3#Professional%20Conduct%20Rules






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Type of misconduct alleged Rule potentially violated

Percentage of total

Criminal conduct 8.4(b) 2%

Respect for rights of third person 4.4 2%

Duties on termination of employment 1.16 2%

Fairness to opposing party & counsel 3.4 2%

Candor toward the tribunal 3.3 1%

Unauthorized practice of law 5.5 1%

Confidentiality 1.6 1%

5. Be knowledgeable in matters of legal ethics, law office management and

protection against risk.

Recommended reading:

a. Kentucky Rules of Professional Conduct (Supreme Court Rule 3.130), contained in Kentucky Rules of Court (West Pub. 2016 Edition).

b. Annotated Model Rules of Professional Conduct, American Bar

Association, (Eighth Edition, 2015). c. Stephen S. Blumberg and Willis S. Baughman, Preventing Legal

Malpractice-California Case Studies. d. Profile of Legal Malpractice Claims, ABA Standing Committee on

Lawyers Professional Liability (2007). e. Long & Levit, The Law Office Guide to Purchasing Legal

Malpractice Insurance (West Pub. 2007). f. Mallen & Smith, Legal Malpractice (West Pub. 2011 Edition). g. Kentucky Legal Ethics Deskbook, (University of Kentucky College

of Law Office of Continuing Legal Education, 5th Edition 2016).

4. Be proactive in preventing malpractice from occurring.

Lawyers Mutual Insurance Company of California has done outstanding work in developing checklists for risk management programs. The following is their list of major categories in which malpractice may arise:

Legal malpractice avoidance checklist. a. Calendar every case, not just those in litigation. b. Confirm in writing your decision to accept a case or your decision

to withdraw or decline representation.










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c. Do not sue clients for fees.

d. Take only those matters in which you have experience or associate with someone who does have experience or knowledge about a specific case.

e. Maintain good client relations.

f. Do not have a personal or a financial involvement with your clients.

g. Research potential conflicts of interest before you take the case.

h. Investigate your case carefully before bringing a lawsuit or filing a claim.

i. Document everything leaving a paper trail understandable by third parties.

j. Know when to reject potential clients or cases.

k. Know what to do upon receipt of a malpractice claim.

l. Obtain client consent before proceeding in a vital area of the case.

3. Be responsive when you receive a bar complaint.

a. Do not fail to make a timely response to any bar complaint or investigation.

b. Do not make matters worse by attempting to cover up your

mistake.

2. Be healthy and sober.

Studies throughout the nation have repeatedly demonstrated that alcohol, drugs and mental illness (including depression) are substantial contributing factors in many, and perhaps most, cases of professional misconduct that result in suspension or disbarment.

1. Be honest.

No matter what else happens in your professional career, no matter what else you may do or fail to do, pledge to yourself that you will be honest in dealing with whatever comes along. See SCR 3.130(8.3). It is, without question, the single most effective thing you can do to limit your exposure to a malpractice claim or a disciplinary suspension. Even in an age of top ten lists, some things never change.


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III. PETE'S TOP TEN

1. Don't go into business with a client. 2. Keep your client on the same page with you and be able to prove it. 3. Don't think the standard of care moves with your profit margin. 4. Avoid people and causes you dislike. 5. Don't throw good money after bad in the courthouse. 6. Be careful. 7. File your case before the deadline. 8. Don't assume your clients are your friends. 9. Behave like a human being. 10. Take good care of your old dog.

IV. TOP TEN – Katje Kunke, President Wisconsin Lawyers Mutual Insurance Company

1. Stop lying to your calendar about who is in charge of your life. 2. "No" is a complete sentence. Corollary: Somebody married my ex-husband. 3. If you don't like your client, you better love your carrier. 4. Conflicts of interest piss everyone off. 5. Your client already knows how this is going to turn out. 6. Never give bad news to a hungry client. 7. You have to let clients make dumb choices. 8. What your client heard matters more than what you said. Corollary: Nobody remembers what anyone said. 9. They may call it "Practice," but they're kidding. 11. When they smile and nod, your client is not understanding or agreeing

with you. Revised July 2016

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