Public Comment Sought for Water Regulation Proposed Amendments, Public Hearing Announced

Dear Concerned Citizen:

Pursuant to the notification requirements in KRS Chapter 13A, the Division of Water (the “Division”) submits for your information proposed amendments to the following administrative regulations contained in 401 KAR Chapter 5 (Water Quality):

  • 401 KAR 5:002 – Definitions for 401 KAR Chapter 5
  • 401 KAR 5:005 – Permits to construct, modify, or operate a facility
  • 401 KAR 5:006 –  Wastewater planning requirements for regional planning agencies
  • 401 KAR 5:015 – Spills and bypasses to be reported to division
  • 401 KAR 5:037 – Groundwater protection plans
  • 401 KAR 5:039 – Repealer – 035, 057, 070, and 300
  • 401 KAR 5:045 – Biochemically degradable wastes; treatment
  • 401 KAR 5:050 – General provisions of KPDES Permitting Program
  • 401 KAR 5:052 – Requirements applicable to cooling water intake structures for facilities regulated by Section 316(b) of the Clean Water Act, 33 U.S.C. 1326(b)
  • 401 KAR 5:055 – Scope and applicability of the KPDES Program
  • 401 KAR 5:060  – KPDES application requirements
  • 401 KAR 5:065 –KPDES permit conditions
  • 401 KAR 5:075 – Cabinet review procedures for KPDES permits
  • 401 KAR 5:080 – Criteria and standards for the Kentucky Pollutant Discharge Elimination System
  • 401 KAR 5:320 – Wastewater Laboratory Certification Program

The Division of Water has delegated authority to implement and enforce the Clean Water Act, Section 402, and 40 CFR Part 122 (the National Pollutant Discharge Elimination System), via the regulations in 401 KAR Chapter 5 which are required for Kentucky to maintain delegated authority over the KPDES permitting program.  Changes to these regulations are needed to ensure that issued permits are legally sound and in compliance.  Changes to the regulations in 401 KAR Chapter 5 will be subject to approval by the US EPA.  All of the regulations will remain consistent with Clean Water Act, Section 402, and 40 CFR Part 122, and will not be more stringent than the federal regulations.

The Division filed these proposed amended regulations with the Legislative Research Commission (LRC) on May 15, 2018 and anticipates that the proposed amended regulations will be published in the Kentucky Administrative Register on June 1, 2018, and then will be available on the LRC Regulation website at http://www.lrc.ky.gov/kar/frntpage.htm.  The proposed amended regulations will also be available on the Division website at http://water.ky.gov/Pages/RegsInProcess.aspx.  Both websites can be accessed online through public libraries or any computer with Internet access.

Summary of Proposed Amendments to 401 KAR Chapter 5:

401 KAR 5:002 establishes definitions for 401 KAR Chapter 5.  Proposed amendments include:

  • Removing an outdated Executive Order, correcting inaccurate KRS and KAR citations, updating thirteen CFR references that have changed, and removing CFR “effective dates” to be consistent with Division regulations in all other KAR Chapters
  • Updating the definitions of “criteria” and “wellhead protection area”
  • Adding definitions for “authorized representative”, “pollutant”, “publicly owned treatment works”, and “water quality criteria”
  • Adding “large laying hens using other than a liquid system” to the definition of “Large animal feeding operation”
  • Clarifying the definitions for “general permit”, “major industry”, and “water quality standard”
  • Removing the definitions for “fecal coliform” and “medium animal feeding operation”
  • Making grammatical corrections, and shortening the length of the regulation by referring to CFR definitions where applicable.

401 KAR 5:005 establishes procedures for issuing permits for the construction, modification, and operation of wastewater facilities.  Proposed amendments include:

  • Removing an outdated Executive Order, correcting inaccurate KRS and KAR citations, and adding a KRS reference for animal mortality management
  • Making technical grammatical changes
  • Aligning processes with CFRs (large AFO recordkeeping and transfer of operating permits)
  • Removing the Five Mile Policy from Materials Incorporated by Reference and placing the language within the regulation
  • Updating Materials Incorporated by Reference: Ten States’ Standards to 2014, updating all forms, and removing outdated forms
  • Adding peracetic acid system as a treatment alternative and clarifying ultraviolet disinfection requirements
  • Reducing the number of plans and specifications required to be submitted and providing for electronic copies
  • Clarifying the Municipal Water Pollution Prevention Program and recordkeeping requirements for large AFOs
  • Establishing a one-acre variance if the WWTP owner demonstrates that it will not adversely affect water quality, and a 5-year validity period for WWTP construction permits
  • Removing the flow basin equalization calculation (limited application) in favor of providing a flow calculation with supporting documentation
  • Giving the cabinet and water systems flexibility to allow line extensions and new taps when a system has improved its capacity to handle the additional flow

401 KAR 5:006 establishes wastewater planning requirements for regional planning agencies.  Proposed amendments include:

  • Correcting KRS and KAR citations
  • Aligning language with current KRS 13A requirements
  • Reducing the number of hard copies needed for submission to facilitate electronic submissions
  • Clarifying that major systems use the WRIS and minor systems have the flexibility of using either WRIS or the Asset Inventory Report Form to submit regional plans
  • Adding discharge permit conditions and compliance, and constructability and decentralization, to facility planning
  • Removing the Guidance from materials incorporated by reference because its requirements are already in the regulation, and to allow flexibility in the methods of gathering and reporting required information

401 KAR 5:015 requires reporting of sewage spills and bypasses so the Division of Water can determine what action is necessary to protect public safety and mitigate or reduce the effects of the spill or bypass.  Proposed amendments include:

  • Renaming the regulation “Releases to be reported to the Division” and clarifying that it applies only to releases or threatened releases of pollutants or contaminants that may pose a risk to public health or welfare from a source other than a KPDES-permitted facility
  • Correcting KRS citations and updating language to meet current KRS 13A requirements
  • Updating Division contact information and inserting field office contact information
  • Clarifying specific information to be reported
  • Making written notification optional at the director’s discretion

401 KAR 5:035 establishes minimum treatment requirements for discharged pollutants.  The division proposes repealing this regulation because its requirements are partially contained in 401 KAR 5:070, and incorporating the remaining language into 5:045.

401 KAR 5:037 requires preparation and implementation of groundwater protection plans to preserve current and future uses of groundwater and to prevent groundwater pollution.  Proposed amendments include:

  • Correcting KRS citations
  • Aligning language with current KRS 13A requirements
  • Correcting and simplifying definitions by referring to KARs or CFRs
  • Removing outdated and expired timelines

401 KAR 5:045 establishes secondary treatment controls for biochemically degradable wastes.  Proposed amendments include:

  • Consolidating this regulation with 5:035 (Treatment requirements; compliance) and renaming this regulation accordingly.

401 KAR 5:050 establishes general provisions of the KPDES permitting program and the intent of the KPDES program to be compatible with regulations adopted pursuant to the CWA.  Proposed amendments include:

  • Amending incorrect citations to KARs and aligning language with current KRS 13A requirements
  • Consolidating this regulation with 5:070 (Provisions of the KPDES permit) which is being repealed and renaming the regulation appropriately

401 KAR 5:052 establishes requirements for cooling water intake structures regulated by CWA Section 316(b).  Proposed amendments include:

  • Removing an outdated Executive Order and updating the cabinet’s name
  • Correcting references to KARs
  • Updating CFR references for consistency with all other Division of Water regulations & regarding references to the Cooling Water Intake Rule which covers existing as well as new cooling water intake structures since 2014

401 KAR 5:055 establishes the scope and applicability of the KPDES program.  Proposed amendments include:

  • Adding the language from 5:057 (KPDES pretreatment requirements) & renaming the regulation accordingly
  • Correcting KAR, KRS, and CFR references
  • Removing CFR “effective dates” to be consistent with all other Division regulations
  • Clarifying that cabinet responses must be in writing.

401 KAR 5:057 establishes KPDES pretreatment requirements.  The Division proposes repealing this regulation and consolidating its language into 5:045.

401 KAR 5:060 establishes KPDES application requirements.  Proposed amendments include:

  • Correcting KAR, KRS, and CFR references and aligning language with current KRS 13A requirements
  • Removing CFR “effective dates” to be consistent with all other Division regulations
  • Updating Materials Incorporated By Reference

401 KAR 5:065 establishes KPDES permit conditions.  Proposed amendments include:

  • Removing an outdated Executive Order, outdated language, and correcting KAR and CFR references
  • Clarifying the range of noncompliant discharges to be reported
  • Updating Division contact information and inserting field office contact information
  • Removing CFR “effective dates” to be consistent with all other Division regulations

401 KAR 5:070 establishes KPDES permit provisions, terms, and the effect of a KPDES permit, including permit duration, schedule of compliance, and basis for permit modification or revocation and reissuance.  The Division proposes repealing this regulation and consolidating its language into 5:050.

401 KAR 5:075 establishes cabinet review procedures for KPDES permits.  Proposed amendments include:

  • Consolidating the language of 5:300 (Permit timetables) into this regulation and renaming it accordingly
  • Correcting KAR, KRS, and CFR references
  • Clarifying that cabinet responses shall be in writing
  • Removing CFR “effective dates” to be consistent with all other Division regulations

401 KAR 5:080 establishes standards for KPDES permits.  Proposed amendments include:

  • Correcting KAR and CFR references and removing outdated Executive Orders
  • Aligning the definition of “toxic pollutants” with CFR
  • Removing CFR “effective dates” to be consistent with all other Division regulations

401 KAR 5:300 establishes permit timetables for 401 KAR Chapter 5.  The division proposes repealing this regulation and consolidating its language into 5:075 (Permit review procedures).

401 KAR 5:320 establishes the certification program, standards, and fees for the wastewater lab cert program.  Proposed amendments include:

  • Removing expired timetables that began the WW lab cert program but are no longer applicable
  • Aligning language with current KRS 13A requirements
  • Removing references to testing method materials in Materials Incorporated By Reference that are not cited in the regulation but are contained in the incorporated Manual
  • Updating the WW Laboratory Certification application and the KY Wastewater Laboratory Certification Program Manual for clarification and to align with current practice

A public hearing to receive comments on the proposed amended regulations is scheduled for Tuesday, June 26, 2018 at 6:00 p.m. EST at the Department for Environmental Protection, Training Room A, 300 Sower Boulevard, Frankfort, KY  40601.  If the division does not receive any written requests for testimony at least five (5) days prior to the hearing, the hearing may be cancelled.

The Division requests that affected individuals, business or other entitites submit written comments that identify the anticipated effects of the proposed administrative regulations.  Written comments will be accepted through June 30, 2018:

By letter to:

Carole J. Catalfo, Internal Policy Analyst, RPPS

Division of Water, 3rd Floor

300 Sower Boulevard

Frankfort, Ky.  40601

By email to:

water @ky.gov (Subject line: “Chapter 8 regulations”)

 

Sincerely,

Peter T. Goodmann, Director

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