Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO: KRS Chapters 67, 67A, 74, 76, 96, 108, 220,
224.10-100, 224.70-100, 224.70-110, 424,
33 U.S.C.
1251-1387
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
224.10-100 and
224.70-100
require the Energy and Environment Cabinet to develop a comprehensive plan for
the management of water resources and to provide for the prevention, abatement,
and control of all water pollution.
33 U.S.C.
1313(e) requires each state
to establish and maintain a continuing planning process to provide for the
control of water pollution.
33 U.S.C.
1288 requires the governor of the state or
local officials to designate a boundary for areas within the state and a single
representative organization within each area to develop a wastewater treatment
management plan applicable to all wastewater generated within an area.
40 C.F.R.
130.6 requires the state and areawide
agencies to update the plans as needed to reflect changing water quality
conditions, results of implementation actions, and new requirements, or to
remove conditions in prior conditional or partial plan approvals. This
administrative regulation establishes Kentucky's regional facility planning
process for publicly-owned wastewater treatment works that are, or result in,
point sources of water pollution in designated planning areas.
Section 1. Applicability.
(1) A governmental entity, such as a city,
county, or other public body created by KRS Chapter 67, 67A, 74, 76, 96, 108,
or 220, may apply for designation as a regional planning agency. An applicant
for designation as a regional planning agency shall submit a regional facility
plan to the cabinet.
(2) The
cabinet shall designate a regional planning agency in accordance with
33 U.S.C.
1288(a)(2) and
(3).
(3) The cabinet shall de-designate a regional
planning agency if the regional planning agency:
(a) Requests de-designation;
(b) Fails to meet its planning obligations as
specified in a grant agreement, contract, or memorandum of understanding;
or
(c) No longer has the resources
or the commitment to continue water quality planning activities within the
designated boundary.
(4)
If a regional planning agency is de-designated, the cabinet shall assume
responsibility for continued water quality planning and oversight of
implementation of planning activities within the regional planning
area.
(5) The cabinet shall not
designate an entity as a regional planning agency if that entity does not have
authority to meet the requirements established in
33 U.S.C.
1288(c)(2)(A) through
(I).
Section 2. Requirement to Submit a Regional
Facility Plan.
(1) An applicant for
designation as a new regional planning agency shall submit a regional facility
plan to the cabinet.
(2) An
existing regional planning agency shall submit a regional facility plan if:
(a) A new wastewater treatment facility is
proposed for construction within the planning area;
(b) An existing regional planning agency
proposes to expand the average daily design capacity of an existing wastewater
treatment facility by more than thirty (30) percent; or
(c) The equivalent population served by an
existing wastewater collection system or a system with a Kentucky Inter-System
Operating Permit is proposed for expansion by more than thirty (30) percent of
the population served in the previously approved regional facility
plan.
(3) A regional
planning agency shall request a pre-planning meeting with the cabinet before
submitting a regional facility plan.
(4) One (1) paper copy and one (1) electronic
copy of the regional facility plan shall be submitted to the cabinet and shall
be certified in a manner that meets the requirements established in
201 KAR
18:104.
Section 3. Contents of a Regional Facility
Plan.
(1) A regional facility plan shall
include adequate information to allow for an environmental assessment of the
projects proposed in the regional facility plan that are ready to begin
construction within twenty-four (24) months of the cabinet's approval of the
plan and to assure that a cost-effective and environmentally sound means of
achieving the established water quality goals can be implemented.
(2) A regional facility plan shall include:
(a) An executive summary of the findings
presented in subsequent sections;
(b) A statement of the purpose of and need
for the regional facility plan, including documentation of existing water
quality or public health problems related to wastewater in the planning
area;
(c) A description of the:
1. Physical characteristics of the planning
area;
2. Socioeconomic
characteristics of the planning area;
3. Existing environment in the planning
area;
4. Existing wastewater
collection and treatment facilities in the planning area; and
5. Discharge permit conditions and compliance
with those conditions;
(d) A forecast of flows and waste loads for
the planning area;
(e) A detailed
evaluation of each alternative, including:
1.
A twenty (20) year present worth cost analysis for each alternative, with
sufficient detail to determine the most cost-effective alternatives;
2. All wastewater management alternatives
considered, including no action, and the basis for the engineering judgment for
selection of the alternatives chosen for detailed evaluation;
3. Sufficient detail to allow for a thorough
cost analysis;
4. Nonmonetary
effectiveness criteria shall include implementability, environmental impact,
constructability, public support, decentralization, and
regionalization;
5. Intended
sources of funding and estimated user fees; and
6. How alternatives reflect a comprehensive
regional plan for the planning area and minimize the number of point source
discharges;
(f)
Cross-cutter correspondence and mitigation, which shall include verification
from the regional planning agency of its commitment to all required mitigative
action;
(g) An evaluation of the
recommended regional facility plan; and (h) Documentation of public
participation.
1. A certified copy of the
advertisement for the public hearing required by Section 5 of this
administrative regulation, an attendance log or sign-in sheet, a copy of the
minutes of the public hearing, and written comments and responses shall be
submitted as part of the regional facility plan.
2. If more than one (1) public hearing is
held or if there are public meetings or public notices about the project, a
copy of all documentation of these events shall be submitted as part of the
regional facility plan.
(3) The items required in subsection 2(c)
through (f) of this section shall be prepared by, or under the direct
supervision of, a professional engineer licensed in Kentucky.
Section 4. Requirement to Submit
an Asset Inventory Report.
(1)
(a) An asset inventory report shall be
submitted to the cabinet if:
1. It has been
ten (10) years since the cabinet approved the last regional facility plan or
asset inventory report; and
2.
Section 2(2) of this administrative regulation does not require the regional
planning agency to submit a regional facility plan.
(b)
1. A
major facility shall submit the regional facility plan using the Water
Resources Inventory System (WRIS).
2. A minor facility may submit the regional
facility plan using WRIS or the Asset Inventory Report form.
(2) The regional
planning agency shall submit:
(a) Wastewater
facility data;
(b) Revenue and
expenses;
(c) Asset
inventory;
(d) Project
prioritization;
(e) Funding
plan;
(f) Copies of supporting
documentation; and
(g)
Certification statement from a designated official.
(3) The cabinet shall issue to the regional
planning agency an assessment report that provides recommendations related to
facility planning, operation, and management that ensure continuing compliance
and protection of surface water and groundwater.
(4) The cabinet shall provide public notice
of its assessment of the Asset Inventory Report on its Web site for thirty (30)
days.
(5) The public shall have an
opportunity to comment on the cabinet's assessment of the asset inventory
report and the period for comment shall remain open for thirty (30) days from
the date of the first publication of the report.
Section 5. Public Notice, Public Comment, and
Public Hearing Requirements.
(1) Prior to
final agency action on the regional facility plan, the regional planning agency
shall publish notice of its draft plan and shall hold a public hearing on the
draft plan. Public notice of the draft plan and the public hearing shall be
provided pursuant to KRS Chapter 424.
(2) A public notice issued pursuant to this
administrative regulation shall contain:
(a)
The name and address of the regional planning agency that is proposing the
plan;
(b) A brief description of
the contents of the draft plan and the area to be served;
(c) The name, address, and telephone number
of persons from whom interested persons may obtain further information and a
copy of the draft regional facility plan;
(d) A brief description of the public's right
to comment on the draft regional facility plan and the procedures for
commenting;
(e) The date of
previous public notices relating to the draft regional facility plan;
(f) The date, time, and place of the public
hearing on the draft plan; and
(g) A
brief description of the nature and purpose of the hearing.
(3) The planning agency shall
provide a copy of the public notice and the draft plan to the cabinet for
publication on its Web site at least thirty (30) days prior to the public
hearing.
(4) At the required public
hearing, the scope of the project, cost of the project, alternatives
considered, and estimated user charges and hook-up fees shall be
discussed.
(5) The public shall
have an opportunity to comment on the draft plan and the period for comment
shall remain open for thirty (30) days from the date of the first publication
of the notice of the public hearing or until the termination of the hearing,
whichever is later. The regional planning agency may extend the public comment
period, on request, if it believes additional public input is
necessary.
(6) A person may submit
written or oral comments and data to the regional planning agency concerning
the draft regional facility plan. In the interest of time and efficiency,
limits may be set up on the time allowed for oral statements and the submission
of statements in writing may be required.
(7) All persons who believe any condition of
the draft plan is inappropriate, inaccurate, incomplete, or otherwise not in
the best interest of the public and the environment, shall raise all reasonably
ascertainable issues and submit all reasonably available arguments and factual
background supporting their position, including all supporting materials, by
the close of the public comment period.
Section 6. Regional Facility Plan Review.
(1) The cabinet shall prepare an
environmental assessment report summarizing the regional facility plan.
(a) The cabinet shall submit the
environmental assessment report to the State Clearinghouse for review and
comments to identify potentially adverse impacts resulting from the proposed
projects.
(b) The cabinet shall
provide public notice of the environmental assessment report on its Web site
for thirty (30) days.
(c) The
public shall have an opportunity to comment on the environmental assessment
report, and the period of comment shall remain open for thirty (30) days from
the date of the first publication of the report.
(d) The cabinet may identify measures in the
environmental assessment report to avoid, minimize, or reduce potentially
adverse environmental impacts.
(2) The cabinet shall issue a determination
to approve or deny a regional facility plan within 120 calendar days of receipt
of a complete regional facility plan.
(3) If the regional facility plan is
submitted consistent with the requirements of this administrative regulation
and addresses water quality or public health problems related to wastewater,
the cabinet shall approve the regional facility plan.
(4) KPDES and facility construction permit
decisions shall be made in accordance with approved regional facility plans, as
established in
40 C.F.R.
130.12(a) and
(b).
Section 7. Incorporation by Reference.
(1) The "Asset Inventory Report Form", DEP
No. DOW0501 February 2011 is incorporated by reference.
(2) This material may be inspected, copied,
or obtained, subject to applicable copyright law, at Division of Water, 300
Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to
4:30 p.m. This material may also be obtained through the Division of Water's
Web site at
http://water.ky.gov.
STATUTORY AUTHORITY:
KRS
224.10-100,
224.70-100,
224.70-110,
40 C.F.R. 130,
33 U.S.C.
1288,
1313