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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Council Comments On Proposed Changes to Wastewater Planning Requirements for Regional Planning Agencies  Posted: February 1, 2011

January 31, 2011

Ms. Abigail Powell, Regulations Coordinator
Division of Water
200 Fair Oaks Lane
Frankfort, KY 40601

By email only: Abigail.Powell@ky.gov:

Re: 401 KAR 5:006
Wastewater Planning Requirements for Regional Planning Agencies

Dear Abby:

These comments are submitted on behalf of the Board and membership of the Kentucky Resources Council, Inc. concerning the proposed revisions to 401 KAR 5:006.

The Council has reviewed the proposed amendment to 401 KAR 5:006 and the forms that are proposed to be incorporated by reference into the amended regulation, and offers these comments, referenced by topic or section as appropriate.

Specific Comments

1. 401 KAR 5:006 refers to the requirement for a “continuing planning process” under Section 303(e)-(h) of the FWPCA, 33 U.S.C. 1313(e)(A-H), as a planning process to provide for “control of water pollution.” While implementation of pollution control measures in order to manage or prevent alteration of the integrity of waterbodies is one aspect of the continuing planning process, that continuing planning process (CPP) required under 33 U.S.C. 1313(e)(A-H) is intended not merely to control pollution but to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters[,]” 33 U.S.C. 1251(a), one aspect of which was to eliminate the “discharge of pollutants” by 1985. 33 U.S.C. 1251(a)(1).
In order to better reflect the purpose of the continuing planning process, KRC recommends that the sentence beginning “33 U.S.C. 1313” be modified to read

“33 U.S.C. 1313(e) requires each state to establish and maintain a continuing planning process to provide for water quality management consistent with the requirements of 33 U.S.C. 1313(e) and consistent with consistent with the objectives of 33 U.S.C. 1251.”

2. Section 2(1) does not specify when a new regional planning agency must submit a regional facility plan to the cabinet. Is one required prior to Cabinet approval of the new agency, or within a time certain thereafter?

3. The new Section 3 describes the contents of a regional facility plan, and requests “adequate” information concerning the “primary projects” proposed in the plan. There is no definition of which I am aware of what constitutes a “primary project,” and while revision of a plan to address an increase in population served or average daily design might focus on a particular project, the regional facility plan should include the necessary information on all treatment works, including necessary collection and runoff systems.

A similar problem arises with the use of the phrase “primary projects” in the context of the Cabinet preparation of an environmental assessment. An environmental assessment must, in order to comply with the requirements of the National Environmental Policy Act, must evaluate the direct, indirect and cumulative effects of the proposed action, and must include all effects associated with the plan under review, not merely the effects of the “primary projects.” The phrase should be removed and all treatment works, including collection and runoff management systems, be included as contemplated under 33 U.S.C. 1288(b).

4. Section 4 requires an Asset Inventory Report if “it has been ten (10) years” since an asset inventory report or regional facility plan has been submitted, leaving open whether one has to be submitted if it has been 11, 12 or more years. The language should be clarified to indicate how much time (30, 60, 90 days after effective date of regulation) an asset inventory report must be filed, and to require its filing by any regional planning area for which it has been ten or more years since the filing of either a report or a plan.

5. Section 4(4) provides that the Cabinet shall publish its assessment of an Asset Inventory Report for 30 days prior to finalizing it. It is not clear whether the regulation intends that the Cabinet will accept regional planning agency and/or public comment on the proposed assessment, and whether it will respond affirmatively to such comments. Otherwise, the purpose of the 30-day publication provision is unclear.

Similarly, while Section 6(b) calls for the agency to post the environmental assessment for thirty (30) days, it is unclear whether the agency intends for that posting to begin a public comment period, and whether the agency will commit to affirmatively consider and respond to comments received.

6. Section 5(1) presupposes that all regional facility plans will be approved, giving the impression that the public comment and hearing process is simply a procedural step to approval. KRC suggests that the language be modified to read “Prior to final agency action on the regional facility plan…”

7. KRC requests that, in addition to the KRS Chapter 424 notice, (which reaches an increasingly smaller number of average citizens), public notice be posted on the agency website, and be sent to those who have asked for email notification of agency permitting actions. Additionally, regional planning agencies should post any proposed asset inventory report or proposed plan (including plan amendments) on their websites. The public hearing should be conducted at a time and place that is ADA compliant and is convenient to the regional planning agency constituent customers.

8. While the agency has indicated in the regulation text that not all provisions of a regional facility plan need to be developed by an engineer, the guidance still requires that the overall plan have an engineer’s stamp; a stamp that engineers may be reluctant to provide unless he or she has overseen all component of the plan. The guidance should clarify that those aspects of the plan requiring development by an engineer should bear a stamp.

9. KRC recommends that the guidance be revised to assure that all regional facility plans incorporate all applicable requirements for areawide wastewater management plans, including provisions to address both point and nonpoint sources of pollution, as provided in and where required by 33 U.S.C. 1288(b) and 33 U.S.C. 1288(d).

Thanks in advance for your consideration of these comments and concerns.

Cordially,

Tom FitzGerald
Director

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