RELATES TO: KRS 61.870-61.884,
224.1-010,
224.1-070,
224.1-400,
224.18-100,
224.70-100,
224.70-120,
224.99-010, 33 C.F.R.
153, 40 C.F.R. 122,
123.44,
124.62,
131, 136, 144, 258, 261, 300, 401-471,
33 U.S.C.
1251-1387,
42
U.S.C. 300f -
300j,
6907
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
224.10-100 requires the cabinet to provide
for the prevention, abatement, and control of water pollution, to issue,
continue in effect, revoke, modify, suspend or deny permits to discharge into
waters of the Commonwealth, and authorizes the cabinet to require 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.
KRS
224.16-050(4) requires that
the cabinet shall not issue any permit pursuant to this administrative
regulation that is more stringent than if the permit was issued by the federal
government.
KRS
224.73-120 authorizes the cabinet to apply
and enforce against users of publicly owned treatment works the requirements of
monitoring, recordkeeping and reporting, effluent limitations, and pretreatment
standards for the introduction of pollutants into treatment works. 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. This administrative regulation implements
33 U.S.C.
1311,
1314,
1317,
1318,
1319,
1342,
and
1345
related to the cabinet's pretreatment program and establishes responsibilities
of the Commonwealth of Kentucky, local government, industry, and the public to
implement the national pretreatment program to control pollutants as
established in
40 C.F.R.
403.1.
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 5:045 through
401
KAR 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;
(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 in writing.
(a) The
discharger shall apply for a
permit pursuant to
401 KAR
5:060 within sixty (60) days of notice, unless an
extension request is granted.
(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
stormwater
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) 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 in writing.
(c) The discharger shall apply for a KPDES
permit within sixty (60) days of notice, unless an extension request is
granted.
(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 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;
(3) The conditions of the permit do not
comply with the water quality standards established in 401 KAR Chapter 10;
or
(4) A prohibition is established
in
40
C.F.R.
122.4.
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).
(2) A non-
POTW may request an expedited
variance as established in
40
C.F.R.
122.21(o).
Section 7. Effect of a
Permit. The effect of
a
KPDES permit shall be as established in
40 C.F.R.
122.5.
Section
8. A
General permit shall be issued as established in
40
C.F.R.
122.28.
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.
(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, 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).
(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. KPDES Pretreatment Requirements.
(1) This administrative regulation shall not
affect pretreatment requirements established by local law if those requirements
are not less stringent than those established in state or national pretreatment
standards or other requirements or prohibitions established under the National
Water Pollution Control Act,
33 U.S.C.
1251-
1387
or this administrative regulation.
(2) Prohibited discharges shall be as
established in
40 C.F.R.
403.5.
(3) Categorical standards shall be as
established in
40 C.F.R.
403.6.
(4) The granting of removal credits shall be
as established in
40 C.F.R.
403.7.
(5) The development by a
POTW of
pretreatment
program requirements shall be as established in
40
C.F.R.
403.8.
(6) The submission for approval of a
pretreatment program or authorization to revise pre-treatment standards shall
be as established in
40
C.F.R.
403.9.
(7) The approval procedures for
POTW
pretreatment programs and
POTW granting of removal credits shall be as
established in
40
C.F.R.
403.11.
(8) The reporting requirements for POTWs and
industrial users shall be as established in
40 C.F.R.
403.12.
(9) Variances from categorical pretreatment
standards as a result of fundamentally different factors shall be as
established in
40
C.F.R.
403.13.
(10) Confidentiality.
(a) Information submitted to the cabinet
pursuant to this Section may be claimed as confidential if the claim of
confidentiality complies with
KRS
224.10-210 and
224.10-212.
(b) All other information submitted to the
POTW shall be available to the public at least to the extent provided by
KRS
61.870 through
61.884.
(11) Net-gross calculation shall be as
established in
40 C.F.R.
403.15.
(12) Upset provisions shall be as established
in
40 C.F.R.
403.16.
(13) Bypasses shall be as established in
40 C.F.R.
403.17.
(14) Modification of
POTW pretreatment
programs shall be as established in
40 C.F.R.
403.18.
(15) Pretreatment program reinvention pilot
pojects under Project XL shall be as established in
40
C.F.R.
403.20.
Section 12. 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" in the federal regulations cited in this
administrative regulation.
(3)
"KPDES" shall be substituted for "NPDES" in the federal regulations cited in
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).
