Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS
224.1-010,
224.1-070,
224.1-400,
224.10-420,
224.10-440,
224.10-470,
224.70-100,
224.70-120,
224.99-010, 40 C.F.R.
124
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
224.10-100(19) authorizes
the cabinet to issue, continue in effect, revoke, modify, suspend or deny
permits to discharge into any waters of the Commonwealth.
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
224.10-220 requires the cabinet to establish
timetables for the issuance of all permits by the cabinet, except those permits
for which a timetable is established by statute. This administrative regulation
establishes timetables for permits that are required by 401 KAR Chapter 5 and
the procedures for receiving permit applications, preparing draft permits,
issuing public notice, inviting public comment, and holding public hearings on
draft permits.
Section 1. Review of
the Application. An application for a KPDES permit shall be submitted and
reviewed as established in
40 C.F.R.
124.3.
Section
2. Review Procedures for Permit Modification, Revocation and
Reissuance, or Revocation. A KPDES permit modification, revocation and
reissuance, or revocation shall be as established in
40
C.F.R. 124.5, except that a request for a
hearing shall be made as established in Section 13 of this administrative
regulation.
Section 3. Draft
Permits. Preparation or denial of a draft permit shall be as established in
40
C.F.R. 124.6.
Section 4. Fact Sheets. A fact sheet shall be
prepared as established in
40
C.F.R. 124.8.
Section 5. Public Notice of Permit Actions
and Public Comment Period. Public notice of a permit action and the public
comment period shall be as established in
40 C.F.R.
124.10.
Section 6. Public Comments and Requests for
Public Hearings. Provisions for public comments and requests for a public
hearing shall be as established in
40 C.F.R.
124.11.
Section 7. Public Hearings. A public hearing
shall be conducted as established in
40 C.F.R.
124.12.
Section 8. Obligation to Raise Issues and
Provide Information During the Public Comment Period. An obligation to raise
issues and provide information during the public comment period shall be as
established in
40
C.F.R. 124.13.
Section 9. Conditions Requested by the Corps
of Engineers and Other Government Agencies. Conditions requested by the Corps
of Engineers or another government agency shall be as established in
40
C.F.R. 124.59.
Section 10. Reopening of the Public Comment
Period. The public comment period shall be reopened as established in
40 C.F.R.
124.14.
Section 11. Issuance and Effective Date of
Permit.
(1) After the close of the public
comment period established in Section 5 of this administrative regulation, the
cabinet shall make a determination to issue, deny, modify, revoke and reissue,
or revoke a permit.
(a) The cabinet shall
provide written notice to the applicant and to each person who submitted
written comments or requested notice of the determination.
(b) The notification shall include reference
to the procedures to request a hearing to contest the
determination.
(2) A
final permit determination shall become effective thirty (30) days after the
service of notice of the determination, unless:
(a) A later effective date is specified in
the determination; or
(b) Comments
did not request a change in the draft permit, in which case the permit shall
become effective immediately upon issuance.
(3) The determination, which is a condition
precedent to demanding a hearing pursuant to
KRS
224.10-420(2) and Section 13
of this administrative regulation, shall be the final permit
decision.
Section 12.
Response to Comments. Response to comments shall be as established in
40 C.F.R.
124.17.
Section 13. Hearings pursuant to
KRS
224.10-420.
(1) A determination pursuant to Section 11 of
this administrative regulation shall be subject to a demand for a hearing
pursuant to
KRS
224.10-420(2).
(2) A hearing held pursuant to this section
shall comply with the provisions of
KRS
224.10-440 and
224.10-470.
(3) Failure to raise an issue pursuant to
Section 8 of this administrative regulation shall not preclude an aggrieved
person from making a demand for a hearing pursuant to
KRS
224.10-420(2).
Section 14. Permit Timetables.
(1) This section shall apply to permits
required by
401
KAR 5:005.
(2) The cabinet shall issue its final
decision on a complete permit application within the review time established in
this section.
(3) A complete permit
application shall contain all the administrative and technical information
required by applicable statutes and administrative regulations.
(4)
(a) The
review time for construction or minor modification of a wastewater treatment
plant shall be ninety (90) calendar days from the receipt of a complete permit
application.
(b) The review time
for all other permits required by
401
KAR 5:005 shall be forty-five (45) calendar days from
receipt of a complete permit application except as established in Section 15 of
this administrative regulation.
Section 15. Timetables for KPDES Permits.
(1) This section shall apply for KPDES
permits issued pursuant to
KRS
224.16-050(1).
(2) The cabinet shall issue its final
decision on a complete permit application within 180 calendar days after
receipt of an administratively complete permit application, except as provided
in Section 16 of this administrative regulation.
(3) A complete permit application shall
contain all the administrative and technical information required by applicable
statutes and administrative regulations.
(4) Within thirty (30) calendar days of
initial receipt of an application for a KPDES permit, the cabinet shall notify
the applicant as to whether the application is administratively complete, or if
not complete, of the deficiencies that make the application administratively
incomplete. A determination that the application is administratively complete
shall not mean that the application is complete in every detail, nor shall it
mean that any aspect of the application is technically sufficient or
approvable.
(5) If the application
is determined to be administratively incomplete, the applicant shall correct
identified deficiencies within thirty (30) calendar days of the date of
notification. If the applicant does not correctly identify deficiencies within
the time frame, the cabinet may return the application, and the fee may be
retained by the cabinet.
(6) After
the notification that the application is administratively complete, if the
cabinet determines that the application is technically deficient, the cabinet
shall notify the applicant of deficiencies that make the application
technically incomplete or unapprovable. The applicant shall correct the
technical deficiencies within thirty (30) days of the notification, or other
time as agreed upon by the applicant and cabinet. If the technical deficiencies
are not corrected within thirty (30) calendar days or the agreed upon time
frame, the cabinet may deny the permit, and the fee may be retained by the
cabinet.
Section 16.
Timetable Exclusions. The time periods that shall not be included in the
cabinet's consideration of its decision on a KPDES shall include:
(1) Time waiting for the applicant to respond
to a notice of deficiency;
(2) Time
during which the permit, application, decision, or related matter is held in
litigation, including administrative hearings;
(3) Time during which an opportunity for
public hearing or public comment period on a draft or proposed permit is given,
and time during which a public hearing is scheduled and held;
(4) Time waiting for federal, state, or local
agencies to comment on the permit or to respond to written requests from the
cabinet for additional information; and
(5) Other times as agreed to by the applicant
and the cabinet.
Section
17. Timetable Extensions.
(1) If
two (2) or more permits for a facility, site, source, construction project, or
other entity are required from the cabinet, the cabinet may coordinate the
issuance of the permits, establishing different review and action times that
shall be accomplished by the cabinet or applicant. If the permits are
coordinated, the cabinet shall so notify the applicant and indicate the time
frames under which the intermediate and final permit actions shall be
accomplished. The established time frame for final action shall not exceed the
last date for action that is provided for under applicable statutes and
administrative regulations, based on all applications being considered and
their filing dates.
(2) The
applicant and the cabinet may agree that the timetables or review times
established in this administrative regulation may be extended.
Section 18. 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", "EPA", and "Regional Administrator" 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) "Mail", as used in
40 C.F.R.
124.10 and cited in Section 5 of this
administrative regulation, shall include electronic
transmissions.
STATUTORY AUTHORITY:
KRS
224.10-100,
224.10-220,
224.16-050,
224.70-110,
33 U.S.C.
1251-1387