Direction of the Kentucky Department for Environmental Protection Under the Beshear Administration

March 6, 2008

The Kentucky Department for Environmental Protection is setting its agenda under the Beshear administration.  This client advisory discusses generally the status of the Department and the anticipated initiatives and regulatory actions to be implemented by the Divisions for Air Quality, Water and Waste Management during Fiscal Years 2009 and 2010.

The Department for Environmental Protection

The primary challenge facing the Department is the anticipated reduction in its budget.  The Department is anticipating a reduction of up to 20% in its budget for Fiscal Year 2009 and 15% for Fiscal Year 2010 compared to Fiscal Year 2008.  According to newly appointed Commissioner Bruce Scott, this will make the Department incapable of pursuing new initiatives and the focus of the Department over the coming biennium will be to sustain existing programs.

Due to the current retirement window of opportunity and anticipated changes in the Kentucky employees pension system, the Department expects approximately 100 of its 800 employees to retire by the end of 2008.  Due to the budget constraints, the Department will be unable to fill many of those positions.  This will result in the loss of the most experienced employees and have an effect on both permit review and enforcement.

The Department will continue to eliminate the permit backlog, which is expected to be completed in all Divisions by the end of 2008.  The Department is also starting to eliminate the enforcement backlog.  According to Commissioner Scott, all pending enforcement actions are being reviewed to identify those matters that will not be pursued or to schedule administrative conferences for those matters which the Department will try to resolve.

The Department must identify Division directors for the Divisions of Waste Management and Water.  Tony Hatton is the acting director of the Division of Waste Management.  Sandy Gruzesky is the acting director for the Division of Water.  John Lyons has been retained as the Director of the Division for Air Quality.

Division For Air Quality

The Division for Air Quality will not re-file the proposed air toxics regulations that were withdrawn in 2007.  Instead, the Division intends to implement the procedures for the safety net program that were proposed in the withdrawn regulations.  This will involve the Division identifying problem areas for air toxics emissions in Kentucky, conducting monitoring and risk assessment to determine where reductions in air toxic emissions are needed in those areas, and then contacting the sources of the air toxics emissions to discuss voluntary emission reductions.

Currently, the focus of the Division’s air toxics efforts are on the Calvert City area.  The Division is doing a reassessment of a report on air toxic emissions that was done for this area in 1998.  The Division continues to identify issues with concentrations of air toxics that have been detected in the ambient air monitors in the area.  A projected timeline for the completion of that reassessment has not been provided by the Division.

The Division is awaiting action by the United States Environmental Protection Agency on the National Ambient Air Quality Standard for ozone, which is expected in mid-March.  USEPA is expected to change the ozone NAAQS from the current standard of .08 to .075 or .070.  At either new level, the Division expects this to result in exceedances of the ozone NAAQS at 25 of the 27 monitors in Kentucky maintained by the Division.  Because of the potential magnitude of this issue, the Division currently has no plans on how it will address this situation.

The Division intends to reopen the Prevention of Significant Deterioration regulation, 401 KAR 51:017, later this year to address particulate matter (PM 2.5) increment issues.

The Division is taking a “wait and see” attitude on the MACT Standard for Industrial, Commercial and Institutional Boilers that was vacated by District of Columbia Circuit Court in NRDC v. EPA.  The Division does not intend to reopen permits issued under the MACT Standard, but will consider reopening permits upon a request by the permittee to modify existing requirements.

Division of Water

The Division is moving to implement electronic permitting.  Due to budgetary issues, the Division is also reassessing the fee structure for permits.

The Division is reviewing water quality impairment issues, and is beginning to include considerations of nutrient and sediment loading in its water quality evaluations. 

The Division will be implementing its triennial review of water quality standards.  The Division does not intend to include nutrient criteria in this triennial review.  But, the Division will be looking at implementing a tiered aquatic life use criteria.  The current water quality standards focus on warm water aquatic habitat.  The Division intends to evaluate streams based upon biological diversity, with high biological diversity streams being designated as outstanding resource waters.  The Division is considering the implementation of wet weather water quality standards in certain areas, in particular those areas that are subject to consent decrees or settlement agreements for combined sewer or sanitary sewer overflows.

The Division intends to revise the general permit for discharge of storm water during construction activities.  The Division intends to allow this general permit to be filled out online and to become effective upon submittal to the Division.

The Division is also taking action to implement the requirements for water quality certifications under Section 401 of the Clean Water Act.  Emergency regulations for this were filed with the Legislative Research Commission on March 4, 2008, along with the proposed permanent regulations.  The filed regulations include 401 KAR 9:010 - Section 401 Individual Water Quality Certification Public Notice and 401 KAR 9:020 - Section 401 Water Quality Certification Fees.  The filed regulations are available at www.water.ky.gov.

Division of Waste Management

The Division will update the underground storage tank regulations to comply with the requirements of the federal energy act.  This will include requiring inspections of all underground storage tanks at least once every three years, a certification program for owners and operators of underground storage tanks, and provisions to require closure of facilities for significant non-compliance with the underground storage tank regulations.  The Division has identified underground storage tanks as its most significant non-compliance problem.  According to the Division, approximately 40% of inspected underground storage tanks are in non-compliance.  The Division currently expects to have approximately $50 million available in Fiscal Years 2009 and 2010 to use for underground storage tank corrective action reimbursements.  Provisions for this funding are expected to be included in the budget currently under consideration by the General Assembly.

The Division is addressing the management of pharmaceutical wastes.  Off-specification or out of date pharmaceutical wastes might be a P-listed hazardous waste.  The Division will conduct programs on this issue on April 22 in Lexington and on April 23 in Louisville.

The Division intends to update the solid waste regulations that were adopted in 1990.  The update will involve changes in design requirements to conform to the regulatory requirements of the federal Subtitle D regulations that were adopted in 1993.  The Division intends to remove requirements that are more stringent than the Federal Subtitle D regulations, unless it is determined that significant value is added by the more stringent requirements.  The Division intends to make the proposed amendments available for informal review in early 2009.

The Division is developing a registry of Deeds of Restriction, Environmental Covenants, and other sites with institutional controls.  The Division will require an inspection of those institutional controls as part of the five year review required by KRS 224.01-400(17) to confirm that the institutional controls are in place and effective.

Attorneys

Practices

Top