Kansas Administrative Regulations
Agency 28 - DEPARTMENT OF HEALTH AND ENVIRONMENT
Article 16 - WATER POLLUTION CONTROL
Section 28-16-62 - Terms and conditions of permits
Universal Citation: KS Admin Regs 28-16-62
Current through Register Vol. 43, No. 39, September 26, 2024
(a) Prohibitions. A permit shall not be issued:
(1) By the
director when the regional administrator has objected to issuance of the permit
under 40 CFR Section
123.44, as in effect on July 1, 1985;
(2) when comments, if any,
received from neighboring states, indicate that such discharge will violate the
water quality of such states. The neighboring states shall be notified in
advance, pursuant to K.A.R. 28-16-61;
(3) when, in the judgment of the secretary of
the army, acting through the chief of engineers, anchorage and navigation in or
on any of the waters of the United States would be substantially impaired by
the discharge;
(4) for the
discharge of any radiological, chemical, or biological warfare agent or high
level radioactive waste;
(5) for
any discharge inconsistent with a plan or plan amendment approved under 33
U.S.C. Section 1288(b); or
(6) to
a new source or new discharger, if the discharge from its construction or
operation will cause or contribute to the violation of water quality standards.
(b) Minimum standards of design, construction and maintenance for owners and operators of water pollution control facilities.
(1) Each owner
or operator of a sewage system, industrial facility, commercial establishment,
or agricultural activity discharging or having a potential to discharge sewage
to waters of the state shall have approved water pollution control facilities.
In approving and issuing permits to each existing or proposed facility, the
director shall insure that such facility conforms to published minimum
standards of design, construction, and maintenance. In approving and publishing
minimum standards of design, construction and maintenance, the director shall
insure that such standards are at least as stringent as the requirements of 33
U.S.C. Sections 1311, 1312, 1316, 1317, 1318, and 1343.
(2) Treatment over and above minimum
standards shall be required to comply with applicable water quality standards.
When minimum standards do not provide compliance with the applicable water
quality standards, a waste-loading allocation shall be prepared to insure that
the discharge authorized is consistent with the applicable water quality
standards.
(3) Each permit shall
also include a schedule of compliance for any facility which is not in full
compliance with minimum standards of design, construction, and maintenance and
other requirements. If the discharger fails or refuses to comply with the
specified schedule of compliance, the regional administrator shall be notified
by the director within 30 days of such failure or refusal. If a schedule of
compliance exceeds nine months, one or more interim reporting dates shall be
required. No more than nine months shall elapse between interim dates contained
in a schedule of compliance.
(4)
Upon request of the applicant or permittee, a schedule of compliance may be
modified by the director if good and valid cause exists for such revision, and
if within 30 days following receipt of notice, the regional administrator does
not object in writing.
(5) No
later than 14 days following each interim date, the discharger shall be
required to provide the director with a written notice of progress toward
compliance with interim or final permit requirements.
(A) On the last day of the months of
February, May, August, and November, a list of all instances, as of 30 days
prior to the date of the report, of failure or refusal of a permittee to comply
with interim or final requirements or to notify the director of compliance or
noncompliance with each interim or final requirement shall be transmitted to
the regional administrator by the director. The list shall be available to the
public for inspection and copying and shall contain at least the following
information with respect to each instance of noncompliance:
(i) The name and address of each noncomplying
permittee;
(ii) a short
description of each instance of noncompliance;
(iii) a short description of any actions or
proposed actions by the permittee or the director to comply or enforce
compliance with the interim or final requirements; and
(iv) any details which tend to explain or
mitigate an instance of noncompliance with an interim or final requirement.
(B) A permit may be
revoked for failure to comply with any provision of an applicable schedule of
compliance in conformance with
K.S.A.
65-165. Nothing in this regulation shall be
construed to limit the applicability of civil or criminal penalties as provided
by law.
(c) Other terms and conditions of permit.
(1)
Each permit for a publicly-owned treatment facility shall contain a requirement
that the operating agency must notify the director of:
(A) A sewer extension or other means whereby
a new introduction of pollutants is discharged to the treatment works; or
(B) A change in the volume or
character or pollutants being introduced into such works by a source
introducing pollutants into such works at the time the permit was issued.
(2) Each permit shall
contain a requirement that the operator of the publicly-owned treatment works
insure that each industrial user:
(A) Pays a
charge for the user's fair share of the operating and maintenance cost of
treatment and a fair share of the federal grant portion of the cost of
construction of the treatment plant in accordance with any applicable
provisions of the act and the federal grant agreement; and
(B) Complies with applicable toxic and
pretreatment guidelines as contained in the minimum standards of design,
construction and maintenance.
(3) Each permit shall contain a condition
which states that the discharge of any pollutant not identified and authorized
by the permit or the discharge of any pollutant in a manner or quantity which
differs from that stated in the application is prohibited.
(4) Each permit shall contain a condition
that the discharger shall maintain in good working order and operate as
efficiently as possible any facility or control system installed by the
discharger to achieve compliance with the permit.
(d) Duration of permits. Each Permit shall be issued for a fixed term not to exceed five years.
(e) Modification or revocation and reissuance of permits. When the director receives any information regarding a permittee, receives a request for modification or revocation and reissuance of a permit, or conducts a review of the permit file, the director may determine whether or not one or more of the causes listed in paragraphs (1) or (2) of this subsection for modification or revocation and reissuance or both exist. If cause exists, the permit may be modified or revoked and reissued accordingly and an updated application may be requested, if necessary. When a permit is modified, only the conditions subject to modification are reopened. If a permit is revoked and reissued, the entire permit is reopened and subject to revision and the permit is reissued for a new term.
(1) Causes for modification. The following
are causes for modification of a permit. However, these causes should not be
basis for revocation and reissuance of permits except when the permittee
requests or agrees to such an action.
(A)
Alterations. Material and substantial alterations or additions to the permitted
facility or activity which occurred after permit issuance may be the basis for
modification of a permit, if those alterations or additions justify application
or permit conditions that are different or absent in the existing permit.
(B) Information. If the director
has received new information regarding a permittee's facility or activities,
the permit may be modified during its term only if the information received was
not available at the time of permit issuance and would have justified the
application of different permit conditions at the time of issuance.
(C) New regulations. If the standards or
regulations upon which a permit was based have been changed by promulgation of
amended standards or regulations after the permit was issued, the permit may be
modified during its term only when:
(i) The
permit condition requested to be modified was based on a promulgated effluent
limitations guideline, EPA-approved or promulgated water quality standards, or
secondary treatment regulations;
(ii) EPA has revised, withdrawn, or modified
that portion of the regulation or effluent limitation guideline on which the
permit condition was based or has approved KDHE action with regard to a water
quality standard on which the permit condition was based; and
(iii) a permittee requests modification in
accordance with subsection (g) of this regulation within 90 days after notice
of action on which the request is based.
(D) Judicial Decisions. Any permit may be
modified if:
(i) a court of competent
jurisdiction has remanded and stayed EPA-promulgated regulations or effluent
limitation guidelines;
(ii) the
remand and stay concern that portion of the regulations or guidelines on which
the permit condition was based; and
(iii) a request is filed by the permittee in
accordance with subsection (g) of this regulation within 90 days of judicial
remand.
(E) Compliance
Schedules. Any permit may be modified if the director determines good cause
exists for modification of a compliance schedule, including such causes as an
act of God, a strike, flood, or materials shortage or other events over which
the permittee has little or no control and for which there is no reasonable
available remedy. However, in no case may a compliance schedule be modified to
extend beyond a statutory deadline.
(F) Any permit may be modified when the
permittee has filed a request for a variance under 33 U.S.C. Sections 301(c),
301(g), 301(h), 301(i), 301(k), or 316(a) or for "fundamentally different
factors" within the time specified in
40 CFR Section
122.21 or 125.27(a), as in effect on July 1,
1985.
(G) 33 U.S.C. Section
1317(a) toxics. Any permit may be modified when required to incorporate an
applicable 33 U.S.C. Section 1317(a) toxic effluent standard or prohibition.
(H) Reopener. Any permit may be
modified when required by "reopener" conditions in a permit that are
established for toxic effluent limitations or pretreatment programs.
(I) Net Limits.
(i) Incorporation.
40 CFR Section
122.45(h), as in effect on
July 1, 1985, is adopted by reference.
(ii) Any permit may be modified upon request
of a permittee who qualifies for effluent limitations on a net basis under
40 CFR Section
122.45(h), as in effect on
July 1, 1985.
(iii) A permit may
be modified when a discharge is no longer eligible for net limitations, as
provided in 40 CFR Section
122.45(h), as in effect on
July 1, 1985.
(J)
Pretreatment. Any permit may be modified as necessary under the compliance
schedule for development of a publicly-owned treatment works pretreatment
program.
(K) Failure to notify. A
permit may be modified upon failure of the department to notify another state
whose waters may be affected by a discharge from this state.
(L) Non-limited pollutants. When the level of
discharge of any pollutant which is not limited in the permit exceeds the level
which can be achieved by technology-based treatment requirements appropriate to
the permittee, the permit may be modified.
(M) Notification Level.
(i) Incorporation.
40 CFR Section
122.44(f), as in effect on
July 1, 1985, is adopted by reference.
(ii) A permit may be modified to establish a
"notification level" as provided in
40 CFR Section
122.44(f), as in effect on
July 1, 1985.
(N)
Compliance Schedule. A permit may be modified to change a schedule of
compliance to reflect time lost during construction of an innovative or
alternate facility.
(O) When the
permittee's effluent limitations were imposed under 33 U.S.C. Section
1342(a)(1) and the permittee demonstrates operation and maintenance costs that
are totally disproportionate from the operation and maintenance costs
considered in the development of a subsequently promulgated effluent
limitations guideline, the permit may be modified. However, the limitations
shall not be less stringent than the subsequent guideline.
(P) Any permit may be modified to correct
technical mistakes, including errors in calculation or mistaken interpretations
of law made in determining permit conditions.
(Q) When the discharger has installed the
treatment technology considered by the permit writer in setting effluent
limitations imposed under 33 U.S.C. Section 1342(a)(1) and has properly
operated and maintained the facilities but nevertheless has been unable to
achieve those effluent limitations, the permit may be modified. In this case,
the limitations in the modified permit may reflect the level of pollutant
control actually achieved, but shall not be less stringent than required by a
subsequently promulgated effluent limitations guideline.
(2) Causes for modification or revocation and
reissuance. Any permit may be modified, or alternatively, may be revoked and
reissued when:
(A) Cause exists for
termination under subsection (f) of this regulation, and the director
determines that modification or revocation and reissuance is appropriate; or
(B) the director has received
notification of a proposed transfer of the permit.
(f) Termination of permits.
(1) A permit may be terminated during its
term or a permit may be denied for:
(A)
Noncompliance by the permittee with any condition of the permit;
(B) the permittee's failure in the
application or during the permit issuance process to disclose fully all
relevant facts, or the permittee's misrepresentation of any relevant facts at
any time;
(C) a determination that
the permitted activity endangers human health or the environment and can only
be regulated to acceptable levels by permit modification or termination; or
(D) a change in any condition that
requires either a temporary or a permanent reduction or elimination of any
discharge controlled by the permit.
(2) The applicable procedures in subsection
(g) of this regulation shall be followed for termination of any permit.
(g) Procedures for modifications, revocation and reissuance, or termination of permits.
(1) Any permit may be modified, revoked and
reissued, or terminated either at the request of any interested person,
including the permittee, or upon the director's initiative. All requests shall
be in writing and shall contain facts or reasons supporting the request.
(2) If the director decides that
the request is not justified, the requester shall be provided with a brief
written response giving a reason for the decision. Denial of requests for
modification, revocation and reissuance, or termination shall not be subject to
public notice, comment, or hearings. Denials by the director may be informally
appealed to the secretary by a letter briefly setting forth the relevant facts.
The secretary may direct the director to begin modification, revocation and
reissuance, or termination proceedings under paragraph (3) of this subsection.
The appeal shall be considered denied if the secretary takes no action on the
letter within 60 days after receiving it. This informal appeal shall be a
prerequisite to seeking judicial review of agency action in denying a request
for modification, revocation and reissuance, or termination.
(3)
(A) If
the director tentatively decides to modify or revoke and reissue a permit under
subsection (e) of this regulation, the director shall prepare a draft permit
under K.A.R. 28-16-60 incorporating the proposed changes. The director may
request additional information, and in the case of a modified permit, may
require the submission of an updated application. A new application for a
permit shall be submitted for the reissuance of a revoked permit.
(B) In a permit modification under this
regulation, only those conditions to be modified shall be reopened when a new
draft permit is prepared. All other aspects of the existing permit shall remain
in effect for the duration of the unmodified permit. When a permit is revoked
and reissued under this section, the entire permit shall be reopened just as if
the permit had expired and was being reissued. During any revocation and
reissuance proceeding, the permittee shall comply with all conditions of the
existing permit until a new final permit is reissued.
(4) If the director tentatively decides to
terminate a permit under subsection (f) of this regulation, the director shall
issue a notice of intent to terminate. A notice of intent to terminate is a
type of draft permit which follows the same procedures as any draft permit
prepared under K.A.R. 28-16-60.
(h) Transmission to regional administrator of permits. Upon issuance of any permit, a copy of the permit shall be forwarded to the regional administrator by the director.
(i) Reissuance of permits.
(1) At least 180 days prior to expiration of
a permit, a permit holder wishing to renew the permit shall file an
application, as required by the director.
(2) Permits shall not be reissued unless:
(A) The discharger is in compliance with or
has substantially complied with all the terms, conditions, requirements and
schedules of compliance contained in the existing permit;
(B) The discharger files an application and
other necessary data as required by the director; and
(C) The discharge is consistent with
applicable minimum standards of design, construction, and maintenance and water
quality standards.
(3)
The notice and hearing procedure for reissuance shall be the same as for the
issuance of new permits.
Disclaimer: These regulations may not be the most recent version. Kansas may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
