KDHE Division of Environment - PowerPoint Presentation

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KDHE Division of Environment

Kansas Spill Program Proposed Rule Revisions

August 8, 2018Slide2

Division of Environment

kdhe.SpillHotline@ks.gov

(785) 291-3333Jeff JanzenSpill Program Coordinator(785) 368-7301jeffery.janzen@ks.gov

KDHE Spill Reporting InstructionsSlide3

K.S.A. 65-171d. – Prevention of Water Pollution

(a) For the purpose of preventing surface and subsurface water pollution and soil pollution detrimental to public health or to the plant, animal and aquatic life of the state, and to protect designated uses of the waters of the state and to require the treatment of sewage predicated upon technologically based effluent limitations, the secretary of health and environment shall make such rules and regulations

, including registration of potential sources of pollution, as may in the secretary's judgment be necessary to: (1) Protect the soil and waters of the state from pollution resulting from underground storage of liquid petroleum gas and hydrocarbons, other than underground porosity storage of natural gas; (2) control the disposal, discharge or escape of sewage as defined in K.S.A. 65-164, and amendments thereto, by or from municipalities, corporations, companies, institutions, state agencies, federal agencies or individuals and any plants, works or facilities owned or operated, or both, by them; and (3) establish water quality standards for the waters of the state to protect their designated uses, including establishment of water quality standards variances that may apply to specified pollutants, permittees, or waterbody segments that reflect the highest attainable condition during the specified time period for the variance. In no event shall the secretary's authority be interpreted to include authority over the beneficial use of water, water quantity allocations, protection against water use impairment of a beneficial use, or any other function or authority under the jurisdiction of the Kansas water appropriation act, K.S.A. 82a-701, and amendments thereto. Division of EnvironmentSlide4

K.S.A. 65-164. – Sewage

65-164. (b) For the purposes of this act, "sewage" means any substance that contains any of the waste products

or excrementitious or other discharges from the bodies of human beings or animals, or chemical or other wastes from domestic, manufacturing or other forms of industry.Division of EnvironmentSlide5

K.S.A. 65-171v. – Cleanup Operation

Whenever a water or soil pollutant is discharged intentionally, accidentally or inadvertently and the secretary of health and environment or his or her authorized representative determines that the discharged material must be collected, retained or rendered innocuous

, and if a discharger refuses to undertake cleanup operations or if the responsible discharger is unknown at the time, the secretary or his or her authorized representative may enter into an agreement with a person to conduct the necessary cleanup operations with payment for such cleanup work to be provided from the pollutant discharge cleanup fund. Any person responsible for or causing the discharge of materials which are determined necessary to cleanup under the provisions of this act shall be responsible for repayment of the costs of cleanup work upon reasonably detailed notification by the secretary or his or her authorized representative. If the responsible person fails to promptly submit payment for costs of the cleanup operations when so notified, such payment shall be recoverable in an action brought by the attorney general on behalf of the people of the state of Kansas in the district court of the county in which such costs were incurred. Any moneys recovered under this section shall be remitted to the state treasurer. Upon receipt thereof, the state treasurer shall deposit the entire amount thereof in the state treasury to the credit of the pollutant discharge cleanup fund. Division of EnvironmentSlide6

K. A. R. 28-48. – Spill Reporting

28-48-2. Action required. All sewage, substances, materials, or wastes, as set forth in 65-171d, regardless of phase or physical state, which are, or threaten to contaminate

or alter any of the properties of the waters of the state or pollute the soil in a detrimental, harmful, or injurious manner or create a nuisance, shall be reported in the following manner: (a) The owner or person responsible for the discharge or escape of materials detrimental to the quality of waters of the state or pollution of the soil under conditions other than provided by a valid permit issued by the secretary of health and environment, shall report the discharge or escape to the Kansas department of health and environment. (b) Emergency or accidental discharge of materials which are detrimental to the quality of waters of the state or tend to cause pollution of the soil shall be immediately reported to the Kansas department of health and environment by the owner, owner’s representatives, or person responsible. In the event the pollution causing material is in transit or in storage within the state, the owner, carrier, or person responsible for storage shall be responsible for immediate notification to the Kansas department of health and environment that the pollutant will gain admittance to the waters of the state or the soil. (Authorized by and implementing K.S.A. 1984 Supp. 65-171d; effective May 1, 1986.)

Division of EnvironmentSlide7

Combine

under

KSA 65-171vDefinitions Duties of the SecretaryResponsibility to respondCost recovery & PenaltiesAccessStatute Changes Under Consideration

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Proposed Statute Revisions - Definitions

“Pollutant” means any substance which causes contamination or alteration of the natural physical, chemical or biological properties of any waters or soils of the state as will or is likely to create a nuisance or render such waters or soils harmful, detrimental or injurious to public health, safety or welfare, or to the plant, animal, or aquatic life of the state or to other designated uses.

"Person" means any individual, owner, operator, corporation, limited liability company, partnership, association, municipality, state agency or federal agency."Release" means any threatened or real emission, discharge, spillage, leakage, pumping, pouring, emptying or dumping of a substance into or onto the land, air or waters of the state unless done in compliance with the conditions of a federal or state permit, or unless the substance is applied in accordance with the product label.“Emergency” means any release which poses an imminent risk to public health or safety or welfare.

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Proposed Statute Revisions - Duties of the Secretary

Duties of the secretary

Make rules and regulationsDesignate 24 hour reporting hotlineProvide oversight, technical guidanceRequire responsible party to respondEmergency actions to protect public safety

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Proposed Statute Revisions - Responsibility to Respond

Person responsible shall give notice to the department

Person responsible shall cleanup releaseIf RP does not take reasonable response actions, Secretary may take any actions necessary & recover costsPerson responsible shall repay costs for cleanup and oversightDivision of EnvironmentSlide11

Proposed Statute Revisions - Access to property

No person shall refuse entry or access to an authorized representative who presents appropriate credentials for the purpose of investigating or responding to releases, nor obstruct or hamper the representative.

Prior notice of entry or access to the owner or occupant of private property is not required during emergencies if the delay attendant upon providing it will result in imminent risk to public health or safety or welfare.Division of EnvironmentSlide12

Regulation Changes Under Consideration – Stakeholder Input

Reportable Quantities

Timeline for ReportingReporting Historic ReleasesCost Recovery & Penalties

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Reportable Quantities?

Business practices for de

minimis release reporting-e.g. Periodic submittal of non-PCB transformer oil releases by electrical utilities where release is easily and completely remediatedReportable Quantities for different materials?Petroleum?Hazardous Materials?Deleterious Materials?Agrichemicals?Releases to Soil?Releases to Surface Water?

Releases to Groundwater?

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Federal Reportable Quantities

Underground Storage Tank Regulations- 40 CFR 280.53 (“Tanks Rule”)

Release of >25 gals of petroleum must be reported to implementing agency Clean Water Act- 40 CFR 110.3 (“sheen rule”)Discharges that cause a sheen or discoloration on the surface of a body of water; Discharges that violate applicable water quality standards; andDischarges that cause a sludge or emulsion to be deposited beneath the surface of the water or on adjoining shorelines.

Hazardous

Substances (“List of Lists”)Environmental Planning & Community Right to Know (EPCRA) §302(a)(2)

Clean Air Act- 112(r) Regulated Chemicals for Accidental Release Prevention

CERCLA Hazardous Substances

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Generally any amount of any substance harmful to the environment or public health

States With Similar Spill Reporting

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Neighbor

StatesColorado:

>25 gallons petroleum on soil; “Sheen Rule” on waterFederal Reportable Quantities for hazardous materialsMissouri:>50 gallons of petroleum on soil, >25 gallons petroleum from UST releases;“Sheen Rule” on waterAny amount of hazardous material that might impact health or environmentNebraska

:>25 gallons of petroleum on land; Any amount of petroleum on water

Federal Reportable Quantities, or >100 lbs

; whichever

is

less

Oklahoma

:

>10 barrels of

any material used/produced

during

petroleum exploration;

“

Tanks Rule

” &

“Sheen

Rule

”;

Federal Reportable Quantities for hazardous materials

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Wisconsin example

RQ of 1 gallon for light grade petroleum (gasoline) RQ of 5 gallons for medium or heavy grade petroleum (diesel or lube oils)

on permeable surfacesFederal Reportable Quantities for hazardous materialsAgrichemical specific RQs: 25 gal. of liquid fertilizer;250 lbs of dry fertilizer; pesticides that would cover >1 acre of land if it is mixed for application per labeled instructions.

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Reporting Requirements Regulations Proposal

Any release of a pollutant to surface waters

>5 gallons for light grade petroleum (gasoline) to soil>25 gallons for any other liquids to soil>100 lbs, or exceeds Federal Reportable Quantities for hazardous materials; whichever is less>250 lbs of dry fertilizer

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Reporting Deadline?

28-48-2. Action required. (b) Emergency or accidental discharge of materials which are detrimental to the quality of waters of the state or tend to cause pollution of the soil shall be immediately reported

to the Kansas department of health and environment by the owner, owner’s representatives, or person responsible. In the event the pollution causing material is in transit or in storage within the state, the owner, carrier, or person responsible for storage shall be responsible for immediate notification to the Kansas department of health and environment that the pollutant will gain admittance to the waters of the state or the soil. “immediate” is subjective and difficult to enforceDon’t want the reporting requirement to interfere with emergency response actions necessary to protect life safety Life Safety → Incident Stabilization → Initiate Response ActionsDiscoveries of historic releases

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Reporting Time Regulation Proposal

Release must be reported to KDHE within 15 minutes

of discovering or gaining knowledge of the event and the completion of the initial responseDiscovery of historic contaminationCurrent property owner must make the notification to KDHEDivision of EnvironmentSlide21

Response Actions Regulation Proposal

Require response actions be completed by the responsible party regardless of the volume

of the release or notification requirementCleanup must be completed under KDHE oversight Referral to traditional cleanup program for oversightInitial response vs. longer term assessment and remediation oversight needsDivision of EnvironmentSlide22

Penalties Regulation Proposal

Proposed penalty range of $25-$10,000 - consistent with KSA 65-3444 - Hazardous Waste Statutes

Illegal dumpingLack of, or refusal to take timely actionKDHE perform work and cost recoverLack of timely reportingUnder-reporting (significantly less volume or intent to take advantage of

reporting requirements)

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Legislative Initiative for the proposed Statute revisions (in progress)

Present recommendations to StakeholdersDraft proposed regulations

Public Notice & HearingPublication in Kansas RegisterNext Steps

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Comments / Questions?

kdhe.SpillHotline@ks.gov

(785) 291-3333Joseph Dom, ChiefAssessment and Restoration SectionBureau of Environmental Remediation(785) 296-1914joe.dom@ks.govDivision of Environment