401 KAR 5:055. Scope and applicability of the KPDES Program

Link to law: http://www.lrc.ky.gov/kar/401/005/055.htm
Published: 2015

      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.)
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