Request By:
Eugene F. Mooney, Secretary
Department for Natural Resources
and Environmental Protection
Capital Plaza Tower
Frankfort, KY 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: David K. Martin, Assistant Attorney General
You have requested an opinion of the Attorney General as to whether or not the Department's authority to regulate public and semipublic water supplies extends to water supplies owned or maintained by the federal government. We understand that this question arose because federal agencies are not expressly included within the definition of "person" in 401 K.A.R. 6:015. We are of the opinion that 401 K.A.R. 6:015 applies equally to federal and non-federal public and semipublic water supplies, for the reasons set out herein.
K.R.S. 224.032 states in pertinent part:
The department for natural resources and environmental protection shall enforce the rules and regulations adopted by the secretary of the department for natural resources and environmental protection for the regulation and control of the matters set out below and shall formulate, promote, establish and execute policies, plans and programs relating to natural resources and environmental protection, including but not limited to the following matters:
(2) The purification of water for public and semipublic use;
(3) The proper construction and operation of public water distribution systems and water treatment systems in public water purification plants and swimming pools;
(4) The review, approval or disapproval of plans for construction, modification or extension of water purification and distribution systems and water treatment systems in swimming pools; and
(5) The certification of water and sewage plant operators.
Pursuant to this statute and K.R.S. 13.082 the Department promulgated 401 Kentucky Administrative Regulations 6:015, effective August 3, 1977.
This regulation describes its purpose as follows:
"NECESSITY AND FUNCTION: The Department is directed by the aforementioned statutory provision to promulgate regulations applicable to all public and semipublic water supply systems operating within the Commonwealth of Kentucky. By accepting primary enforcement responsibility for the Federal Safe Drinking Water Act (PL 93-523) the Commonwealth agrees to adopt and enforce the provisions of that Act. This regulation therefore establishes the standards and safeguards necessary and relative to the planning, operation and maintenance of public and semipublic water supply systems for the protection of public health." (emphasis added).
Section (1) states that this regulation "applies to each public water system in Kentucky". Section 2(2) of this regulation prohibits any person from operating a public or semipublic water supply in the Commonwealth except in compliance with the provisions of this regulation. "Person" is defined in Section 1 (9) of this regulation as ". . . any individual, firm, corporation, officer or employee thereof, water association, water district, public institution, municipality, county, partnership, company, governmental agency, club, organization of any kind, or any political subdivision of the Commonwealth of Kentucky." (emphasis added). Section 1 (12) defines "public water system" as ". . . any system irrespective of ownership, for the provision to the public of piped water for human consumption. . ." (emphasis added).
The mandate contained in K.R.S. 224.032 is certainly broad enough in scope to authorize the Department to enact programs and regulations covering the construction and operation of water supplies owned or maintained by the federal government. In addition, it is beyond cavil that the provisions of 401 K.A.R. 6:015 cited above, when read together, encompass all public and semipublic water supplies, including those owned or maintained by the federal government.
If there ever was any legal bar to state regulation of federally owned water supplies, it was contained in federal law, not state law. Congress, in passing Public Law 93-523, apparently intended that federally owned or controlled water supplies would be subject to state regulations in states that achieved primacy. See House Report No. 93-1185 on H.R. 13002. However, the authority of states to regulate federally owned or controlled water supplies systems was brought into question by EPA in light of
Hancock v. Train, 426 U.S. 167 (1976). It was not clear that the Safe Drinking Water Act would pass the Court's requirement of clear and unambiguous statutory language in Hancock for grants of state jurisdiction over federal facilities. Congress removed this doubt in the 1977 Amendments to the Safe Drinking Water Act, P.L. 95-190. Congress amended Section 1447 of the Act to unambiguously consent to state jurisdiction over federal facilities.
Since the supremacy doctrine no longer interferes with state jurisdiction over federal facilities under the Safe Drinking Water Act, if indeed it ever did, we conclude that the K.R.S. 224.032 and 401 K.A.R. 6:015 apply to facilities owned or controlled by the federal government, subject to any waiver under Section 1447 (b) of the Safe Drinking Water Act. See