Current through Register Vol. 50, No. 9, March 1, 2024
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
224.10-100 and 70-100 require the cabinet to
provide for the prevention, abatement, and control of all water pollution.
KRS
224.10-100 authorizes the cabinet to
promulgate administrative regulations to achieve the objectives of KRS Chapter
224. This administrative regulation establishes the requirement to prepare and
to implement groundwater protection plans to ensure protection for all current
and future uses of groundwater and to prevent groundwater pollution.
Section 1.
(1) Applicability. Except for activities
established in subsections (2) and (3) of this section, a person responsible
for conducting any of the activities listed in paragraphs (a) through (p) of
this subsection shall prepare and implement a groundwater protection plan:
(a) Storing or related handling of bulk
quantities of pesticides or fertilizers for commercial purposes;
(b) Storing or related handling of bulk
quantities of pesticides or fertilizers for the purpose of distribution to a
retail sales outlet;
(c) Applying
of pesticides or fertilizers for commercial purposes;
(d) Applying of fertilizers or pesticides for
public right-of-way maintenance or institutional lawn care;
(e) Land treatment or land disposal of a
pollutant;
(f) Storing, treating,
disposing, or related handling of hazardous waste, solid waste, or special
waste in landfills, incinerators, surface impoundments, tanks, drums or other
containers, or in piles;
(g)
Commercial or industrial storing or related handling in bulk quantities of raw
materials, intermediate substances or products, finished products, substances
held for recycling, or other pollutants held in tanks, drums or other
containers, or in piles;
(h)
Transmission in pipelines of raw materials, intermediate substances or
products, finished products, or other pollutants;
(i) Installation or operation of on-site
sewage disposal systems;
(j)
Storing or related handling of road oils, dust suppressants, or deicing agents
at a central location;
(k)
Application or related handling of road oils, dust suppressants or deicing
materials;
(l) Mining and associated
activities;
(m) Installation,
construction, operation, or abandonment of wells, bore holes, or core
holes;
(n) Collection or disposal
of pollutants in an industrial or commercial facility through the use of floor
drains not connected to on-site sewage disposal systems, closed-loop collection
or recovery systems, or a waste treatment system permitted under the Kentucky
Pollutant Discharge Elimination System;
(o) Impoundment or containment of pollutants
in surface impoundments, lagoons, pits, or ditches; or
(p) Commercial or industrial transfer,
including loading and unloading, in bulk quantities of raw materials,
intermediate substances or products, finished products, substances held for
recycling, or other pollutants.
(2) General exclusion. A person who conducts
an activity established in subsection (1) of this section shall not be required
to prepare or to implement a groundwater protection plan for that activity if
that person can demonstrate by substantial evidence based on the factors
established in this subsection, the activity has no reasonable potential of
altering the physical, thermal, chemical, biological, or radioactive properties
of the groundwater in a manner, condition, or quantity that will be detrimental
to the public health or welfare, to animal or aquatic life, to the use of
groundwater as present or future sources of public water supply or to the use
of groundwater for recreational, commercial, industrial, agricultural, or other
legitimate purposes. The demonstration shall at a minimum consider:
(a) Hydrogeologic sensitivity at or near the
location of the activity;
(b)
Quantity of the pollutants, including the cumulative potential to pollute from
small discharges, spills, or releases that individually would not have the
potential to pollute;
(c) Physical,
chemical, and biological characteristics of the pollutants such as solubility,
mobility, toxicity, concentration, and persistence;
(d) Use of the pollutants at the locations of
the activities; and
(e) Present and
potential uses of the groundwater.
(3) Specific exclusions. The provisions of
this administrative regulation shall not apply to:
(a) Normal use or consumption of products
sized and packaged for personal use by individuals;
(b) Retail marketing of products sized and
packaged for personal use or consumption by individuals;
(c) Activities conducted entirely inside
enclosed buildings if:
1. The building has a
floor sufficient to prevent the release of pollutants to groundwater;
and
2. There are no floor drains,
or all floor drains within the building are connected to an on-site sewage
disposal system, closed-loop collection or recovery system or a waste treatment
system permitted under the Kentucky Pollutant Discharge Elimination
System;
(d) Storing,
related handling, or transmission in pipelines of pollutants that are gases at
standard temperature and pressure;
(e) Storing municipal solid waste in a
container located on property where the municipal solid waste is generated and
that is used solely for the purpose of collection and temporary storage of that
municipal solid waste prior to off-site disposal;
(f) Installing and operating sewer lines or
water lines approved by the cabinet pursuant to
401
KAR 5:005 or
401
KAR 8:100;
(g) Storing water in ponds, lakes, or
reservoirs;
(h) Impounding
stormwater, silt, or sediment in surface impoundments;
(i) Application of chloride-based deicing
materials used on roads or parking lots;
(j) Emergency response activities conducted
in accordance with local, state, or federal law;
(k) Fire fighting activities;
(l) Conveyance or related handling by motor
vehicle, rolling stock, vessel, or aircraft;
(m) Agricultural activities at agriculture
operations; or
(n) Application by
commercial applicators of fertilizers or pesticides on lands used for
agriculture operations.
(4) Relationship to other programs. Nothing
in this administrative regulation shall abrogate the duty of a person to comply
with the statutes and other administrative regulations administered by the
cabinet, with the statutes and administrative regulations administered by other
state and federal agencies, or with statutes and ordinances administered by a
local government.
Section
2. Preparation of Groundwater Protection Plans.
(1) General requirements for site-specific
and generic groundwater protection plans. The practices established by a
groundwater protection plan shall be designed and implemented in a manner that
prevents groundwater pollution. A person conducting an activity established in
Section 1(1) of this administrative regulation shall determine if an exclusion
of Section 1(2) or (3) of this administrative regulation applies to that
activity.
(2) Deadlines for
preparation and implementation. Except for activities excluded by Section 1(2)
or (3) of this administrative regulation, a person required to prepare and to
implement a groundwater protection plan pursuant to Section 1 of this
administrative regulation, shall prepare and implement a site-specific or
generic groundwater protection plan upon commencement of the regulated
activity.
(3) Elements of generic
and site-specific groundwater protection plans. Both generic and site-specific
groundwater protection plans shall contain:
(a) General information regarding the
facility and its operation, including the:
1.
Name of the facility;
2. Address of
the facility; and
3. Name of the
person or persons responsible for implementing the plan;
(b) Identification of all activities
established in Section 1(1) of this administrative regulation and not excluded
by Section 1(2) or (3) of this administrative regulation;
(c) Identification of all practices chosen
for the plan to protect groundwater from pollution;
(d) An implementation schedule for the
practices selected for the plan;
(e) A description of and implementation
schedule for employee training necessary to ensure implementation of the
plan;
(f) An inspection schedule
requiring regular inspections as needed to ensure that all practices
established are in place and properly functioning;
(g) A certification by the person responsible
for implementing the plan or an "authorized representative" as defined by
401 KAR
5:002 that the plan complies with the requirements of
this administrative regulation, and that the person responsible for
implementing the plan has reviewed the terms of the plan and shall implement
its provisions.
(4)
Selection of practices for groundwater protection. A person required to prepare
a groundwater protection plan pursuant to this section shall evaluate
technological means for protection of groundwater from pollution that could
result from activities addressed by the plan and shall select practices for the
plan that protect groundwater from pollution. The groundwater protection
practices chosen for a groundwater protection plan may include:
(a) Equipment design;
(b) Operational procedures;
(c) Preventive maintenance
techniques;
(d) Construction
techniques;
(e) Personnel
training;
(f) Spill response
capabilities;
(g) Alternative
materials or processes;
(h)
Implementation of new technology;
(i) Modification of facility or
equipment;
(j) Spill prevention
control and countermeasure plans;
(k) Best management practices;
(l) Hazardous waste contingency plans;
(m) Other plans prepared pursuant
to other programs that protect groundwater from pollution;
(n) Runoff or infiltration control
systems;
(o) Siting considerations;
and
(p) Any other practice which
will protect groundwater from pollution.
(5) Specific practices. In selecting
practices to protect groundwater for the activities established in Section 1(1)
of this administrative regulation and not excluded by Section 1(2) or (3) of
this administrative regulation a person preparing a groundwater protection plan
shall consider the nature of the pollutant and the hydrogeologic
characteristics at or near the location of the activity and shall comply with
the requirements established in paragraphs (a) through (e) of this subsection
in selecting those practices.
(a) Loading and
unloading areas. Loading and unloading areas shall have spill prevention and
control procedures and operation procedures designed to prevent groundwater
pollution. Spill containment and cleanup equipment shall be readily
accessible.
(b) On-site sewage
disposal systems. A person shall not install a new or replace an existing
on-site sewage disposal system if a publicly or privately owned treatment works
capable of treating the pollutants to be discharged is available.
(c) Floor drains.
1. A person using existing floor drains shall
evaluate those floor drains to determine if they discharge to an on-site sewage
disposal system, to a closed-loop collection or recovery system, or to a waste
treatment system permitted under the Kentucky Pollutant Discharge Elimination
System.
2. If drains are identified
that do not discharge to an on-site sewage disposal system, a closed-loop
collection or recovery system, or a waste treatment system permitted under the
Kentucky Pollutant Discharge Elimination System, that person shall terminate
the discharge or connect it to an on-site sewage disposal system, a closed-loop
collection or recovery system, or a waste treatment system permitted under the
Kentucky Pollutant Discharge Elimination System.
3. A person shall not install a floor drain
unless it is connected to an on-site sewage disposal system, closed-loop
collection or recovery system, or a waste treatment system permitted under the
Kentucky Pollutant Discharge Elimination System.
(d) Tanks and sumps.
1. A person using a tank or sump shall
prepare and implement good housekeeping practices, operating procedures,
operator training, and spill response procedures.
2. A person using a tank or sump shall
consider leak control devices, secondary containment, integrity testing,
mechanical inspections, and overfill protection devices.
3. Containment additional to subsections (1)
and (2) of this subsection shall not be required for sumps and tanks that are
used solely to provide secondary containment.
(e) New surface impoundments, lagoons, pits,
or ditches.
1. A person who constructs a new
surface impoundment, lagoon, pit, or ditch that will contain a pollutant shall
evaluate the site's hydrogeology and shall design and operate it to minimize
discharges to soil. Soils may be used to construct liners if the soil liner
will protect groundwater from pollution.
2. All necessary and appropriate measures
shall be taken to prevent groundwater pollution. The person shall consider the
use of liners, secondary containment, leak detection devices, and other
appropriate and effective control systems that will protect groundwater from
pollution.
3. Containment
additional to subsections (1) and (2) of this subsection shall not be required
for new surface impoundments, lagoons, pits, and ditches that are used solely
to provide secondary containment.
(6) Exceptions to specific requirements.
(a) The provisions of subsection (5) of this
section shall not apply to activities that are governed by other federal,
state, or regulatory programs that comply with the requirements of subsection
(7) of this section while the person conducting the activities remains in
compliance with the other program.
(b) Variances from the provisions of
subsection (5) of this section may be granted by the cabinet if the applicant
for a variance demonstrates that a variance will not result in pollution of
groundwater, but a person required to prepare a groundwater protection plan
pursuant to this section shall not take any actions contrary to the provisions
of subsection (5) of this section without prior written approval of the
cabinet.
(7)
Incorporation of requirements of other regulatory programs.
(a) Groundwater protection activities
required by other federal, state, or local regulatory programs may be
incorporated into a site-specific or generic groundwater protection plan by
reference if the other regulatory program contains:
1. Management and design standards;
2. Mandatory monitoring for groundwater
pollution or methods of detecting discharges, spills, or releases to
groundwater; and
3. Specific
corrective action criteria.
(b)
1. The
plan shall identify each activity covered by the other regulatory program. The
person responsible for implementing the plan shall certify compliance with the
other regulatory program.
2. The
provisions of the other program shall be the groundwater protection plan for
purposes of this administrative regulation for the activities covered by the
other regulatory program.
3. If
activities identified in Section 1(1) of this administrative regulation and not
excluded in Section 1(2) or (3) of this administrative regulation are conducted
that are not covered by the other regulatory program, the plan shall contain
separate practices designed to protect groundwater from pollution for each
activity not covered by the other regulatory program.
(8) Generic groundwater protection
plans. A generic groundwater protection plan shall be prepared in accordance
with subsections (1) through (7) of this section and may govern all or part of
a person's activities. A generic groundwater protection plan shall not be
sufficient by itself if it does not address all activities conducted by the
person that are established in Section 1(1) of this administrative regulation
and not excluded by Section 1(2) or (3) of this administrative regulation.
(a)
1. A
person responsible for preparing and implementing a groundwater protection plan
required by this administrative regulation may apply one (1) provision of the
plan to all substantially identical activities if factors established in
Section 1(2) of this administrative regulation do not cause substantial
differences in the potential to pollute among locations.
2. If substantial differences do exist, the
plan shall provide separate site-specific or region-specific preventive
measures, as necessary, for the activities.
(b) A person responsible for preparing a
groundwater protection plan governed by this section may use a generic
groundwater protection plan prepared by another person or group, including a
trade organization, if:
1. The activities
established in the generic groundwater protection plan are substantially
identical;
2. The factors
established in Section 1(2) of this administrative regulation do not cause
substantial differences in the potentials to pollute among locations;
and
3. The groundwater protection
plan has been reviewed and approved by the cabinet as established in this
administrative regulation.
(c) A generic groundwater protection plan may
consist of requirements imposed by other regulatory programs designed to
protect groundwater or programs offering technical assistance for groundwater
protection if the cabinet has approved the requirements of the other program as
a generic groundwater protection plan. A person using a generic groundwater
protection plan from another program pursuant to this paragraph as a part of,
or all of, the plan shall certify in the plan that the plan is subject to the
program and in compliance with its provisions. Any activities that are not
addressed by the program shall be addressed separately in the groundwater
protection plan.
(d)
1. A person conducting an activity
established in this subsection who does not prepare a groundwater protection
plan for that activity or does not use another approved generic groundwater
protection plan for that activity shall implement the provisions of the generic
groundwater protection plan prepared by the cabinet.
2. The cabinet, in cooperation with other
appropriate state agencies, shall prepare generic groundwater protection plans
for:
a. Use of existing residential septic
systems; and
b. Construction,
operation, closure, and capping of water wells.
(e)
1. A
generic groundwater protection plan that has been approved by the cabinet as
established in this administrative regulation may be incorporated by reference
in a facility's groundwater protection plan.
2. Each person responsible for implementing
the generic plan at a site shall maintain a copy of the plan at an appropriate,
accessible location.
3. A person
using a generic groundwater protection plan shall identify the activities
governed by the plan and attach the identification to the copy of the generic
plan.
(f)
1. A person preparing a new or revised
generic groundwater protection plan person shall also place a notice in a
statewide newspaper and a trade publication likely to be read by those affected
by the groundwater protection plan. That notice shall:
a. Provide for a thirty (30) day comment
period;
b. Identify activities that
are addressed by the proposed generic groundwater protection plan;
and
c. Describe the procedure for
review by the public of the plan and the procedures and time frames for
providing comments.
2.
The cabinet shall also notify by mail or email anyone who has requested in
writing to be placed on a mailing list for purposes of this administrative
regulation.
Section 3. Implementation of Groundwater
Protection Plans.
(1) Record retention
requirements.
(a) A site-specific groundwater
protection plan required by Sections 1 through 3 of this administrative
regulation, and documentation evidencing compliance with the provisions of the
plan, shall be retained by the person responsible for implementing the plan, at
the location of the activity if the location is normally attended at least
eight (8) hours per day, or at the nearest office of that person's activity if
the facility is not so attended.
(b) A generic groundwater protection plan and
documentation evidencing compliance with the provisions of the plan shall be
retained by the person responsible for implementing the plan in as many
locations as necessary to ensure compliance.
(c) All records evidencing compliance shall
be maintained and available for review by the cabinet for a period of not less
than six (6) years after their preparation.
(2) Amendment of groundwater protection
plans. Prior to conducting any new or modified activity, a person conducting
that activity shall amend the groundwater protection plan to address the new or
modified activity.
(3) Review and
recertification of groundwater protection plans. Each groundwater protection
plan shall be reviewed in its entirety every three (3) years, by the persons
responsible for the plan, updated if necessary, and recertified. To the extent
possible, the review shall include a reevaluation of the design and operation
procedures for the pollution prevention practices previously selected for the
plan to ensure that they are effective.
(4) Submission of groundwater plans to
cabinet.
(a) Upon written request of the
cabinet, a person required to prepare a groundwater protection plan pursuant to
this administrative regulation shall submit a copy of the plan to the cabinet
within thirty (30) days of the date of the request.
(b) Upon written request of the cabinet, a
person who has made a determination pursuant to Section 1(2) of this
administrative regulation that a groundwater protection plan is not required
for a specific activity shall submit a written demonstration to the cabinet
within thirty (30) days of the date of the request.
(5) Submission of additional information to
the cabinet. Upon review of a groundwater protection plan that has been
submitted to the cabinet, the cabinet may require a person responsible for
preparation or implementation of a plan to submit any of the information in
this subsection to determine if the plan is protective of groundwater:
(a) For a site-specific groundwater
protection plan, and for a generic groundwater protection plan in effect at a
specific location, the location of all buildings, structures, roads, utilities,
drainage pathways, and boundaries by using a narrative description or by using
a map, diagram, or drawing;
(b) For
a generic groundwater protection plan that applies to more than one (1)
location, identification of the geographic region to which the generic
groundwater protection plan applies, and an explanation of why that region was
selected and why one (1) plan is appropriate for all activities addressed by
the plan for all sites within the region;
(c) For a generic groundwater protection plan
that applies to more than one (1) location, to the extent possible, a
description of the nature and number of activities, and their associated
facilities, that are expected to be governed by the generic groundwater
protection plan;
(d) A Summary of
reasonably available hydrogeologic information including:
1. Identification of location of sinkholes,
sinking streams, springs, streams, lakes, ponds, and ditches;
2. Description of soil survey
information;
3. Identification and
location of currently usable wells, abandoned wells, and wellhead protection
areas;
4. Identification of
subsidence areas; and
5.
Description of any other relevant hydrogeologic data known to the person
preparing or implementing the groundwater protection plan; and
(e) Any other information,
including site-specific groundwater or geologic information, which is known and
readily available to the person responsible for preparing or implementing the
plan but not to the cabinet to determine if the plan is protective of
groundwater.
(6)
Revisions to plans after cabinet review.
(a)
If the cabinet reviews a groundwater protection plan and determines that it
does not comply wih the requirements of this administrative regulation, the
cabinet shall notify the person responsible for preparing or implementing the
plan of the deficiency in the plan. That person shall revise the plan to
correct the deficiencies identified by the cabinet and submit the revised plan
to the cabinet for further review.
(b) The person submitting the revised plan
shall have thirty (30) days from issuance of the notice of the deficiencies to
submit the revised plan.
(c) The
cabinet shall review the revised plan and notify the person submitting the
revised plan of its final determination within ten (10) days of receiving the
revised plan.
(7) Public
inspection of groundwater protection plans.
(a) A person who desires to review a
groundwater protection plan shall send a written request to the person required
to prepare and to implement the groundwater protection plan.
(b) A person who receives a written request
to review the groundwater protection plan shall within ten (10) working days:
1. Send a written response to the person
requesting to inspect the groundwater protection plan stating that the
groundwater protection plan may be reviewed at:
a. The Division of Water in
Frankfort;
b. A regional office of
the Division of Water;
c. The
facility;
d. A local public
library; or
2. Send a
written response to the person requesting to inspect the groundwater protection
plan stating the reason that a groundwater protection plan was not required to
be prepared.
(c) A person
who designates a review location for a groundwater protection plan shall send a
copy of the groundwater protection plan to the location designated for review
within ten (10) working days of receiving a written request to review the
plan.
(8) Requirements
upon transfer of property. Upon any subsequent transfer of a facility for which
a groundwater protection plan has been prepared, the seller shall provide the
purchaser with a copy of the most recent groundwater protection plan prepared
for the facility pursuant to this administrative
regulation.
STATUTORY AUTHORITY:
KRS
224.10-100,
224.70-100,
224.70-110