KRC Comments On Revisions To Kentucky Water Regulations Posted: June 5, 2009
June 1, 2009
Ms. Abigail Powell
Division of Water
200 Fair Oaks Lane
Frankfort, Kentucky 40601
Peter T. Goodmann
Division of Water
200 Fair Oaks Lane
Frankfort, Kentucky 40601
Re: Revisions to 401 KAR 5:002 – 5:080
Dear Ms. Powell and Mr. Goodmann:
This letter transmits the comments of the Kentucky Resources Council, Inc. concerning the proposed revisions to Kentucky’s no discharge and discharge permit regulations, 401 KAR 5:002 through 5:080. KRC appreciates the opportunity to transmit these comments, and encourages the agency to carefully evaluate these concerns, particularly as they relate to the proposed amendments to the state no-discharge program that weaken the Cabinet’s capacity to impose, under such conditions as the agency deems appropriate, “special” conditions on no-discharge activities.
Specific comments follow, referenced by the regulation proposed to be amended:
For each of the regulation proposed to amended, a reference should be included in the “Statutory Authority” section of the regulations, to K.R.S. 224.10-110 in addition to the other sources of authority identified. Additionally, federal regulations do not provide statutory authority, and should not be included under that section. The statutory authority for the state agency action comes from the statutes identified in the proposed amendments, and K.R.S. 224.10.110, and is bounded by the requirements of the federal Clean Water Act that demand that the state laws and regulations be no less stringent than their federal counterpart, and state law prohibiting effluent limits, monitoring or other conditions being imposed under the authority of 224.16-050 that would not have been required had the permit been issued by the USEPA.
Elimination of Regulatory Text In Favor Of Federal Regulation Reference
The elimination of regulatory text incorporating the federal regulatory language and modifying it to reflect that the program is managed by a Kentucky agency in order to protect waters of the commonwealth, is opposed, since it will require users of the regulations to access an additional regulatory framework beyond the Kentucky Administrative Regulations, and to track changes in those federal regulations through both the Code of Federal Regulations and Federal Register.
While the Council understands that referencing the CFR streamlines (and largely eliminates) the process of updating these regulations, it does so at the cost of placing an additional hurdle for the regulated and the public alike in tracking the federal regulations and accessing the changes that occur during each year between the time that the CFR is published and that following year, when regulatory changes are incorporated again into the CFR. For these reasons, KRC does not support the elimination of the text of the federal regulations as modified to reflect the delegation of the program to the Commonwealth. Clarification of the applicability to interstate waters could have been accomplished without eliminating the Kentucky-specific text.
If the Cabinet finalizes these revisions, it should publish the final state rules on the DOW website and develop hyperlinks between the adopted regulations and the most current corresponding federal regulations, to restore some of the lost accessibility in the state regulations.
401 KAR 5:002
Insertion of “facility” in the definition in Section 1(25) is redundant, since it is clear that the discharge is from a facility.
401 KAR 5:005
The requirements for no-discharge AFOs should include sufficient surface and groundwater monitoring to verify the absence of communication between the animal wastes and waters of the commonwealth. Additionally, KRC believes that, based on literature previously submitted to the agency in comments concerning the issuance of KYNDOP permits in Fulton and Hickman Counties (which are incorporated by reference), a technical basis has been established to require these conditions:
1. Individual permits should be required for all confined animal production operations. The use of a “general permit” in which standard conditions are applied is inappropriate given the site-specific and facility-specific conditions that must be assessed in order to assure that air, land and water resources will be protected from pollution. The permits should require more detailed manure management plans as discussed above, demonstrating that the manure waste and wastewater will be managed so as to prevent nuisance and pollution. The manure management plan should be developed by a trained agronomic professional. The plan should include analysis of the suitability of the land for land application, evaluation of soil and subsoil permeabilities, potentiometric mapping and identification of aquifers, evaluation of vulnerability of groundwater resources, soil slope, erodability, land use of proposed disposal site and surrounding land uses, and existence of water withdrawals downstream of proposed disposal site. The applicant should be required to characterize the geological setting proposed for land application of wastes from such operations; including identification of any aquifer capable of beneficial use and quarterly monitoring or other data indicating seasonal water table elevation, quality and groundwater flow patterns; Revisions to the plan should not be considered “minor” unless of a technical nature that does not change the rate, manner, concentration or conditions of application.
2. Best available control technology, including filtering or scrubbing confinement building emissions, requiring covers if anaerobic lagoons are employed, and requiring injection or knifing of any liquids and solids which are landspread, should be required in addition to use of setbacks.
3. Odor control measures should be required for all phases of the operation, including controls on management of liquids and solids to minimize odor creation in confinement buildings, and ventilation and filtration of confinement building air, covering lagoons which rely on anaerobic treatment, considering separate management of liquids and solids, and covered manure storage tanks.
4. Immediate reporting of any releases or spills, leaks or groundwater contamination, should be required.
5. Berms should be constructed around fields accepting landspread wastes, to assure that no runoff contaminated with nutrients is discharged into streams or lakes.
6. Financial assurance that some funds will be set aside to assure proper closure of the facility and clean-up of any spills or releases) is needed. No permit should be approved for a confined animal facility without the posting of financial assurance and a non-cancelable insurance policy. The regulations should require that the bond and assurances be submitted prior to approval of any permit, in an amount should be sufficient to assure that the government can contract with a third party to do the necessary reclamation or remediation, and so should have a cost elevator of 20% above the actual cost of remediation. The obligation on the bond should be immediate, payable after a determination by the Cabinet that the permittee has defaulted on its obligations under the permit and regulations. Where there is a lapse of bond or insurance cessation of operations must occur within 30 days and closure must occur if a replacement bond has not been secured and posted.
The bond should consist of letters of credit or other collateral, including securities, provided that they are adequate in sum and are unsubordinated. No self-insurance, based on alleged net worth of the facility or owner, should be allowed.
The cost estimate should include two concepts: first, the requirement for posting financial assurance sufficient to assure that any releases from the facility and any damage to natural resources or property caused by any releases from the facility, including any soil, surface or groundwater contamination from leaks, spills and releases from the facility, can be remediated; based on worst-case scenarios for releases; and second, assurance that the facility can be properly closed and all structures and excavations, and including any lagoons or other wastewater treatment structures and appurtenances, removed.
The cost of remediation for off-site contamination will vary depending on the terrain, soil composition, depth to groundwater and other factors. Using a flat fee based on animal numbers potentially understates the likely cost of remedying contamination, the cost of addressing groundwater contamination from any lagoons.
7. There should be a requirement for maintaining liability insurance to pay any judgments or claims from third-parties that a nuisance has been created by the facility, and to pay any third-party injury claims or loss of property value.
8. Civil as well as criminal penalties should be provided. A requirement should be included that past compliance history of all owners and controllers of the applicant be disclosed, including violations in other states of air, waste and water pollution and public health laws, and a prohibition against issuance of new permits to any facility which has an outstanding unresolved violation of any air, land or water pollution law, or owns or controls or is owned or controlled by an entity with such outstanding violations, or which has forfeited a performance bond or otherwise demonstrated general obligation to prevent a pattern of willful or unwarranted failure to comply with the environmental laws of any state or community.
9. Responsibility for avoidance of nuisance conditions should rests with the owner of animals jointly with the operators. Any contract seeking to shift responsibility back to contract farmer or other third party void as against public policy. Owners/controllers should be jointly responsible for preparing and complying with the permits, even where they contract with others to raise the animals.
The imposition of responsibility for environmental compliance on the party contracting with the local producer is not without precedent, and is particularly appropriate in this case since the input and output decisions are largely dictated by the corporations and their integrators. The responsibility for environmental compliance should rest primarily with the corporation and integrators, and the regulations should prohibit any contract clause which attempts to shift that responsibility back to the farmer.
10. Consistent with the recommendations of the national pork producers workgroup, an operator certification program comparable to that provided for other wastewater system operators, should be developed to assure that minimum competency standards for operators of intensive swine production facilities are met.
401 KAR 5:060
In addition to the general comments above, the reference to the federal regulations in the “Statutory Authority” section should be eliminated and replaced with the federal statutory sections that authorized the promulgation of those regulations by EPA and the state statutory authority for the Cabinet to issue permits pursuant to and in conformity with those federal statutes and regulations.
Section 2(2)(a) appears to invite a person to discharge first and apply later. It should be clarified that no discharge shall occur prior to obtaining a permit authorizing th3e discharge, and that a person discharging without a permit is subject to appropriate enforcement action and shall cease any discharge until the permit is obtained.
In Section 11(2) and (3), the phrase “if the cabinet has delegated authority in the federal regulations…” should be rewritten for clarity to state “if the authority to administer the federal regulation cited in Sections 1 through 10 of this administrative regulation has been delegated to the cabinet.”
The Cabinet proposes to replace references to “fecal coliform” that are found in federal regulations, with “E.coli” and to allow measurement of E.coli by grab sample. The regulatory impact analysis and other narrative documentation accompanying this change does not provide an explanation of the substitution, and the material incorporated by reference is not consistent with the text of the regulation, since according to the explanation of KPDES Forms A, C and SC (February 2009) either fecal coliform or E.coli can be reported.
KRC has two concerns – first, that the agency has not specified the test protocols to be used and has not required that the grab sample be a representative sample, and second, that the replacement of fecal coliform and E.coli rather than requiring both indicators be sampled, may result in a failure to identify conditions that may adversely affect recreational and other uses of waters. Using E.coli as an indicator may be better for recreational water quality, (Francy, USGS) but may not be an adequate indicator regarding fish and shellfish contamination. Further research should be undertaken before eliminating a broad spectrum indicator for one coliform specie.
401 KAR 5:055
In promulgating the regulations that impose substantive requirements on dischargers, the Cabinet should not use language that suggest that an additional action is required to assert jurisdiction. Section 2(1) should be rewritten to state that “A KPDES permit is required to discharge….”
Section 2(3) should be rewritten to refer to the discharge, which is the jurisdictional activity: “Failure to obtain a KPDES does not relieve a discharger whose discharge is subject to the KPDES program….”
Section 3(2) is vague concerning the standards for requiring an individual permit. It is unclear whether it is the facility’s contributions, or the total cumulative contributions, that are being considered. The standards for revoking general permit coverage should be clarified, as is done in (4)(a).
Section 3(3)(b) is unclear – what “designation” is being referenced? Is “determination” intended, and if so, is it the determination the general permit coverage was appropriate?
In Section 3(4)(a), “shall be required” should be replaced with “is required”.
Section 5(1) should prohibit issuance is the conditions of the permit violate K.R.S. 224 and if the issuance without conditions would violate K.R.S. Chapter 224.
In Section 11(2) and (3), the phrase “if the cabinet has delegated authority in the federal regulations…” should be rewritten for clarity to state “if the authority to administer the federal regulation cited in Sections 1 through 8 of this administrative regulation has been delegated to the cabinet.”
401 KAR 5:065
In Section 3(2) and (3), the phrase “if the cabinet has delegated authority in the federal regulations…” should be rewritten for clarity to state “if the authority to administer the federal regulation cited in Section 2 of this administrative regulation has been delegated to the cabinet.”
In Section 3(4), the Cabinet should not give up the possibility of seeking penalties under federal law by conceding that state law penalties are a “substitute” for federal sanctions. State law sanctions may, at the Cabinet’s discretion, be substituted for or combined with federal sanctions.
401 KAR 5:080
In Section 9(2) and (3), the phrase “if the cabinet has delegated authority in the federal regulations…” should be rewritten for clarity to state “if the authority to administer the federal regulation cited in Sections 1 through 8 of this administrative regulation has been delegated to the cabinet.”