Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
December 1, 2003
Jeffrey W. Pratt, Director
Division of Water
14 Reilly Road
Frankfort, KY 40601
Re: Proposed Amendment 401 KAR 5:005
Permits to construct, modify or operate a facility
These comments are submitted on behalf of the Board and membership of the Kentucky Resources Council, Inc. (KRC) concerning the proposed amendment to 401 KAR 5:005 that was published for comment in the November Kentucky Administrative Register.
The proposed regulatory amendment expands a current exemption for single-family residences from the requirement of demonstrating that a sewer line extension has integrity and will not be subject to leakage or intrusion, to include multi-unit dwelling buildings and certain commercial buildings.
KRC understands from discussion with the Division Director that the basis for the proposed amendment is to eliminate duplication between the Division of Water review under this regulation and review that is required by the Division of Plumbing.
To the extent that the integrity testing, (including as appropriate pressure testing) required under 401 KAR 5:005 is being required by another agency, expansion of the existing exemption from 5:005 may be justified provided that such testing required by the other agency is comparable in both standards and accountability. By this, KRC means that if the Division of Plumbing regulations would result in a review of the integrity of the extension that is comparable in both standards and oversight scrutiny and would result in required modifications or denials of extensions failing to show such integrity, elimination of a duplicative requirement would not lessen environmental and public health accountability.
To the extent that the Division of Plumbing requirements are not comparable, however, the proposed amendment may be underprotective of the environment and public health. Prior to expanding the exemption, the Division should describe how the review under the Division of Plumbing regulations results in comparable assurance that new sewer line extensions will not result in leakage or in infiltration into sewer lines of groundwater and stormwater.
KRC has a second concern, which is the expansion of the common definition of "single-family residence building" to include multi-unit structures of up to four separate units. The idea that a single family would occupy four separate housing units is on its face contradictory, and expands the definition beyond its common sense meaning. If the cabinet wishes to relinquish regulatory responsibility for assuring integrity of sewer line extensions for multi-family dwelling units and commercial buildings, and can justify that exemption based on comparable regulatory controls elsewhere, it should do so without expanding the definition of "single-family" residence beyond its proper meaning, since such an expansion may affect other regulatory programs in unintended ways.
A third concern is that the Division of Water, by broadening the exemption from review of construction of sewer line extensions, may adversely affect the ability of the Division to implement and enforce sewer tap-on bans. The Division is requested to explain the relationship between this expanded exemption and the Cabinet's authority to prevent new flow additions to already non-compliant POTW systems. KRC is concerned that expanding construction review exemptions for commercial buildings and multi-unit dwellings may result in pressure to approve incremental expansions of non-compliant systems.
Finally, KRC requests that prior to final adoption of this amendment, a Memorandum of Understanding be executed between the Division of Water and Division of Plumbing, to assure that the implementation of the Plumbing standards by that division provides protections comparable to 401 KAR 5:005; to establish reporting and accountability mechanisms between the agencies; and to provide for appropriate referrals to the Division of Water if the Division of Plumbing lacks the administrative enforcement capability comparable to the Division of Water.
Thank you for your consideration of these comments.