401 KAR 5:055.
Scope and applicability of the KPDES Program.
RELATES TO: KRS 224.01-010, 224.01-070,
224.01-400, 224.70-100, 224.70-120, 224.99-010, 33 C.F.R. 153, 40 C.F.R. 122,
123.44, 124.62, 144, 300, 401.15, 33 U.S.C. 1251 -1387, 42 U.S.C. 300f – 300j
STATUTORY AUTHORITY: KRS 224.10-100,
224.10-110, 224.16-050, 224.18-100, 224.70-100, 40 C.F.R. 122.21,300, 33 U.S.C.
1251 -1387
NECESSITY, FUNCTION, AND CONFORMITY: KRS
224.10-100 authorizes the cabinet to require for persons discharging into the
waters of the Commonwealth, by administrative regulation, technological levels
of treatment and effluent limitations. 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). KRS 224.16-050(1) requires that any exemptions
granted in the issuance of these permits shall be pursuant to 33 U.S.C. 1311,
1312, and 1326(a). KRS 224.16-050(4) requires that the cabinet shall not impose
under any permit issued pursuant to this administrative regulation an effluent
limitation, monitoring requirement, or other condition that is more stringent
than the effluent limitation, monitoring requirement, or other condition that
would have been applicable under the federal regulation if the permit was issued
by the federal government. This administrative regulation establishes the scope
and applicability of the KPDES program and identifies categories of point
sources required to obtain a KPDES permit, requirements pertaining to
exclusions and prohibitions, requirements for general permits, requirements for
disposal into wells and into publicly-owned treatment works (POTW), and
requirements for disposal by land application.
Section 1. Definitions. Definitions
established in 40 C.F.R. 122.2 shall apply for the interpretation of federal
regulations that are cited within this administrative regulation.
Section 2. Applicability of the KPDES
Requirements. (1) A KPDES permit shall be required to discharge pollutants from
a point source into waters of the Commonwealth.
(2) Compliance with the KPDES program
requirements shall constitute compliance with the operational permit
requirements of 401 KAR 5:005.
(3) Failure to obtain a KPDES permit
shall not relieve a discharger whose discharge is subject to the KPDES program
from complying with the applicable performance standards of the KPDES program,
401 KAR 5:050 through 5:080.
Section 3. Point Source Categories
Requiring a KPDES Permit. (1) The following categories of point sources shall
require a KPDES permit to discharge:
(a) A point source discharge identified
in 40 C.F.R. 122, effective July 1, 2012;
(b) A concentrated animal feeding
operation;
(c) A concentrated aquatic animal
production facility;
(d) A discharge into aquaculture
projects;
(e) A discharge from separate storm
sewers; and
(f) A silviculture point source.
(2) A facility covered by a general
permit issued pursuant to Section 8 of this administrative regulation, may be
required to obtain an individual permit based on contributions to water pollution.
(3) If an individual permit is required
pursuant to this section, except as provided in subsection (4) of this section,
the cabinet shall notify the discharger of that decision and the reasons for
it.
(a) The discharger shall apply for a
permit pursuant to 401 KAR 5:060 within sixty (60) days of notice, unless an
extension is requested by the applicant.
(b) The question of if the permit
determination was proper shall remain open for consideration during the public
comment period pursuant to 401 KAR 5:075 and in a subsequent hearing pursuant
to KRS 224.10-420(2).
(4)(a) Prior to a determination that an
individual permit shall be required for a storm water discharge, the cabinet
may require the discharger to submit information regarding the nature of the discharge
as established in 40 C.F.R. 122.21(e), effective July 1, 2012, if:
1. The provisions of the general permit
are not sufficient to protect human health and the environment; or
2. The discharger has a history of
noncompliance with the provisions of the general permit.
(b) If an individual permit is required
pursuant to this section, the cabinet shall notify the discharger of that
decision and the reasons for it.
(c) The discharger shall apply for a
KPDES permit within sixty (60) days of notice, unless an extension is requested
by the applicant.
(d) The question of if the initial
determination was proper shall remain open for consideration during the public
comment period pursuant to 401 KAR 5:075 and in a subsequent hearing pursuant
to KRS 224.10-420(2).
Section 4. Exclusions. An exclusion from
the requirement to obtain a KPDES permit shall be:
(1) A discharge identified in 40 C.F.R.
122.3, effective July 1, 2012, or KRS 224.16-050(6);
(2) An authorization by permit or by rule
that is prepared to assure that underground injection will not endanger
drinking water supplies, pursuant to the Safe Drinking Water Act, 42 U.S.C.
300f-300j, and that are issued under a state or federal Underground Injection
Control program;
(3) An underground injection control well
that is permitted pursuant to 40 C.F.R. 144 if those permits are protective of
public health and welfare and prevent the pollution of ground and surface
waters; or
(4) A discharge that is not regulated by
the U.S. EPA under the Clean Water Act Section 402, 33 U.S.C. 1342.
Section 5. Prohibitions. The cabinet
shall not issue a KPDES permit if:
(1) The conditions of the permit would
violate the provisions of KRS Chapter 224;
(2) The regional administrator has
objected to issuance of the permit in writing pursuant to the procedures
specified in 40 C.F.R. 123.44, effective July 1, 2012;
(3) The conditions of the permit do not
comply with the water quality standards established in 401 KAR 10:031; or
(4) A prohibition is established in 40
C.F.R. 122.4, effective July 1, 2012.
Section 6. Variance Requests from
Technology-based Effluent Limitations. (1) A non-POTW may request a variance
from otherwise applicable effluent limitations as established in 40 C.F.R.
122.21(m), effective July 1, 2012.
(2) A non-POTW may request an expedited
variance as established in 40 C.F.R. 122.21(o), effective July 1, 2011.
Section
7. Effect of a Permit. The effect of a KPDES permit shall be as established in
40 C.F.R. 122.5, effective July 1, 2012.
Section 8. A
General permit shall be issued as established in 40 C.F.R. 122.28, effective
July 1, 2012.
Section 9. Disposal of Pollutants into
Underground Injection Control Wells, into Publicly Owned Treatment Works, or by
Land Application. (1) An adjustment of effluent limitations related to disposal
of pollutants into wells, into publicly owned treatment works, or by land
application shall be as established in 40 C.F.R. 122.50, effective July 1, 2012.
(2) The cabinet may issue permits to
control the disposal of pollutants into wells if necessary to protect the
public health and welfare and to prevent the pollution of ground and surface waters.
Section 10. Variances from
Technology-Based Treatment Requirements Available to KPDES Applicants.
Consistent with KRS 224.16-050, the variance provisions in this section and in
401 KAR 5:080, Sections 2 and 4, establish those variances from
technology-based requirements available to KPDES applicants. (1) Economic
capability. The cabinet, with the concurrence of U.S. EPA, may modify BAT
requirements for a point source if the owner or operator demonstrates that the
variance satisfies the requirements of 33 U.S.C. 1311(c).
(2) Environmental considerations. The
cabinet, with the concurrence of U.S. EPA, may modify the BAT requirement for a
point source that does not discharge toxic pollutants identified in 40 C.F.R.
401.15, effective July 1, 2012, conventional pollutants, or the thermal
component of that discharge, if the owner or operator demonstrates that the
modification is consistent with the conditions established in 33 U.S.C.
1311(g).
(3) Innovative technology. The cabinet
shall establish a date for complying with the deadline for achieving BAT not
later than two (2) years after the date for compliance with the effluent
limitation would otherwise be applicable, if the innovative technology is as
established in 33 U.S.C. 1311(k) and after consultation with the U.S. EPA Regional
Administrator, as required by 40 C.F.R. 124.62(a)(2), effective July 1, 2012.
(4) Thermal pollution. An alternative
effluent limitation for the thermal component of a discharge shall be as
established in 33 U.S.C. 1326(a).
Section 11. 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 Sections 1 through 10 of this
administrative regulation.
(2) "Cabinet" shall be
substituted for "Director" if the authority to administer the federal
regulations cited in Sections 1 through 10 of 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 federal regulations cited in Sections 1 through 10 of this
administrative regulation.
(4) "Standard metropolitan
statistical areas as defined by the University of Louisville Urban Studies
Center, consistent with the U.S. Office of Management and Budget" shall be
substituted for "Standard metropolitan statistical areas as defined by the
Office of Management and Budget" in 40 C.F.R. 122.28(a)(1)(vi).
(5) "Urbanized areas as designated
by the University of Louisville Urban Studies Center consistent with the U.S.
Bureau of the Census" shall be substituted for "Urbanized areas as
designated by the Bureau of the Census according to criteria in 30 FR 15202, effective
May 1, 1974" in 40 C.F.R. 122.28 (a)(1)(vi). (9 Ky.R. 854; Am. 1103;
10 Ky.R. 9; eff. 6-1-83; 11 Ky.R. 740; 1028; eff. 1-7-85; 12 Ky.R. 511; eff.
12-10-85; 13 Ky.R. 241; eff. 9-4-86; 20 Ky.R. 3231; 21 Ky.R. 364; eff. 8-24-94;
29 Ky.R. 1031; 1545; eff. 12-18-02; TAm eff. 8-9-2007; 35 Ky.R. 2520; 36 Ky.R.
364; 575; 9-25-2009; 39 Ky.R. 265; 990; eff. 3-8-2013.)
