Division of Water
200 Fair Oaks Lane
Frankfort, KY 40601
By email only: Karen.Cronen@ky.gov, Peter.Goodmann@ky.gov
Re: 401 KAR 5:055, 401 KAR 5:060
Dear Ms. Cronen:
These comments are submitted on behalf of the Kentucky Resources Council, Inc., a nonprofit membership organization incorporated under the laws of the Commonwealth of Kentucky and providing legal, technical, and strategic assistance to individuals, organizations, and communities on environmental and energy-related matters.
The Council has reviewed the proposed amendments to the regulations, and offer these two comments.
Incorporating Most Recent CFR Version in Regulation References
The Council appreciates the effort of the Division to revise references to counterpart federal regulations in order to maintain consistency and concurrency of the state regulations with the federal regulations under the NPDES program. Since the Division began the regulatory process with the filing of the proposed amendments in mid-July, the 2012 Code of Federal Regulations edition for 40 CFR has been published, and the references to the 2011 CFR should be replaced throughout the two regulation amendments with the 2012 edition, in order to make the references as current as possible.
Incorporating Changes In CAFO Regulations
The proposed amendment to 401 KAR 5:060 contains a reference to the submittal of a NDCAFO form by an animal feeding operation to satisfy the voluntary certification of no-discharge pursuant to 40 C.F.R. 122.23(i), effective July 1, 2011.
After the filing of the proposed amendment to 401 KAR 5:060, the Environmental Protection Agency finalized a direct final rule, without public comment, responding to the 2011 Fifth Circuit decision in the case of Court of Appeals for the Fifth Circuit in the case of National Pork Producers Council v. EPA, 635 F.3d 738, 756 (2011), which vacated the portion of the 2008 rule that required CAFOs that proposed to discharge to apply for an NPDES permit. In the 2012 response, EPA has eliminated the specific ёpropose to dischargeҒ requirement in 40 CFR 122.23(d), and has also eliminated the voluntary no discharge certification provision in 122.23(i).
While the Council remains of the belief that the state statutory protections under KRS Chapter 224 and the state authority to regulate activities under the KPDES program that may directly or indirectly result in water pollution are broader than those of the EPA under the Clean Water Act, to the extent that the proposed regulatory amendment seeks to maintain consistency with the current federal regulatory provisions concerning CAFOs, the state regulation should be revised to incorporate the changes made by EPA in the July 30, 2012 regulatory response to the Fifth Circuit decision. This would include eliminating the Section 2(5) reference to 40 CFR 122.23(i) and eliminating the NDCAFO form that is incorporated by reference. A copy of the 2012 EPA action is attached to these comments.
Thank you in advance for your consideration of these concerns.