401 KAR 5:075. Cabinet review procedures
for KPDES permits.
RELATES TO: KRS 224.01-010, 224.01-070,
224.01-400, 224.10-420,
224.10-440, 224.10-470, 224.70-100,
224.70-120, 224.99-010, 40 C.F.R. 124, 33 U.S.C. 1251-1387
STATUTORY AUTHORITY: KRS 224.10-100(19),
224.16-050, 224.70-110, 33 U.S.C. 1251-1387
NECESSITY, FUNCTION, AND CONFORMITY: KRS
224.10-100(19) authorizes the cabinet to issue, continue in effect, revoke,
modify, suspend or deny permits to discharge into any waters of the
Commonwealth. KRS 224.16-050(1) authorizes the cabinet to issue federal permits
pursuant to 33 U.S.C. 1342(b) of the Federal Water Pollution Control Act, 33
U.S.C. 1251-1387 subject to the conditions imposed in 33 U.S.C. 1342(b) and
(d). This administrative regulation establishes the procedures for receiving
permit applications, preparing draft permits, issuing public notice, inviting
public comment and holding public hearings on draft permits.
Section 1. Review of the Application. An application for a
KPDES permit shall be submitted and reviewed as established in 40 C.F.R. 124.3,
effective July 1, 2009.
Section 2. Review Procedures for Permit
Modification, Revocation and Reissuance, or Revocation. A KPDES permit
modification, revocation and reissuance, or revocation shall be as established
in 40 C.F.R. 124.5, effective July 1, 2009, except that a request for a hearing
shall be made as established in Section 13 of this administrative regulation.
Section 3. Draft Permits. Preparation or denial of
a draft permit shall be as established in 40 C.F.R. 124.6, effective July 1,
2009.
Section 4. Fact Sheets. A fact sheet shall be
prepared as established in 40 C.F.R. 124.8, effective July 1, 2009.
Section 5. Public Notice of Permit
Actions and Public Comment Period. Public notice of a permit action and the public
comment period shall be as established in 40 C.F.R. 124.10, effective July 1,
2009.
Section 6. Public Comments and Requests
for Public Hearings. Provisions
for public comments and requests for a public hearing shall be as established
in 40 C.F.R. 124.11, effective July 1, 2009.
Section 7. Public Hearings. A public hearing shall
be conducted as established in 40 C.F.R. 124.12, effective July 1, 2009.
Section 8. Obligation to Raise Issues and
Provide Information During the Public Comment Period. An obligation to raise
issues and provide information during the public comment period shall be as established
in 40 C.F.R. 124.13, effective July 1, 2009.
Section 9. Conditions Requested by the
Corps of Engineers and Other Government Agencies. Conditions requested by
the Corps of Engineers or another government agency shall be as established in
40 C.F.R. 124.59, established July 1, 2009.
Section 10. Reopening of the Public
Comment Period. The
public comment period shall be reopened as established in 40 C.F.R. 124.14,
effective July 1, 2009.
Section 11. Issuance and Effective Date
of Permit. (1) After the close of the public comment period established in
Section 5 of this administrative regulation, the cabinet shall make a determination
to issue, deny, modify, revoke and reissue, or revoke a permit.
(a) The cabinet shall notify the
applicant and each person who submitted written comments or requested notice of
the determination.
(b) The notification shall include
reference to the procedures to request a hearing to contest the determination.
(2) A final permit determination shall
become effective thirty (30) days after the service of notice of the
determination, unless:
(a) A later effective date is specified
in the determination;
(b) A stay is granted pursuant to KRS
224.10-420(2) and Section 13 of this administrative regulation; or
(c) Comments did not request a change in
the draft permit, in which case the permit shall become effective immediately
upon issuance.
(3) The determination, which is a
condition precedent to demanding a hearing pursuant to KRS 224.10-420(2) and
Section 13 of this administrative regulation, shall be the final permit decision.
Section 12. Response to Comments. Response to comments
shall be as established in 40 C.F.R. 124.17, effective July 1, 2009.
Section 13. Hearings pursuant to KRS
224.10-420. (1) A determination pursuant to Section 11 of this administrative
regulation shall be subject to a demand for a hearing pursuant to KRS 224.10-420(2).
(2) A hearing held pursuant to this
section shall be subject to the provisions of KRS 224.10-440 and 224.10-470.
(3) Failure to raise an issue pursuant to
Section 8 of this administrative regulation shall not preclude an aggrieved
person from making a demand for a hearing pursuant to KRS 224.10-420(2).
Section 14.
Substitutions, Exceptions, and Additions to Cited Federal Regulations. (1) "Waters
of the Commonwealth" shall be substituted for "Waters of the United
States" in the federal regulations cited in this administrative
regulation.
(2) "Cabinet"
shall be substituted for "Director", "EPA", and "Regional
Administrator" if the authority to administer the federal regulations
cited in this administrative regulation has been delegated to the cabinet.
(3) "KPDES"
shall be substituted for "NPDES" if the cabinet has been delegated
authority to implement the federal regulations cited in this administrative
regulation.
(4) "Mail",
as used in 40 C.F.R. 124.10 and cited in Section 5 of this administrative
regulation, shall include electronic transmission. (9
Ky.R. 874; Am. 1136; eff. 6-1-83; 12 Ky.R. 554; eff. 12-10-85; 20 Ky.R. 3285;
21 Ky.R. 432; eff. 8-24-94; 29 Ky.R. 1087; 1597; eff. 12-18-02; TAm eff.
8-9-2007; 36 Ky.R. 2119-M; 2339; 37 Ky.R. 45; eff. 8-5-2010.)