July 25, 2007

Ms. Sandy Gruzesky

Acting Director

Kentucky Division of Water

14 Reilly Road

Frankfort, KY 40601

 

 

Comments of Kentucky Waterways Alliance, Environmental Law and Policy Center of the Midwest, and the Cumberland Chapter of the Sierra Club, regarding changes to Kentucky Water Quality Standards that should be made as a part of the Triennial Review

 

 

Dear Ms. Gruzesky,

 

Kentucky Waterways Alliance and the Cumberland Chapter of the Sierra Club hereby provide initial comments for the triennial review of Kentucky water quality standards being conducted by the Kentucky Division of Water (“KDOW”) pursuant to 33 U.S.C.§303(c)(1). The organizations providing these comments have members who swim, fish, boat, drink, study and otherwise use the waters. These members are adversely affected by pollution of Kentucky waters and by flaws in Kentucky water quality standards that hamper restoration of Kentucky’s rivers, lakes and streams or that allow pollution of Kentucky waters.

 

The organizations providing these comments have reviewed the public notice requesting comment for the triennial review and agree that nutrient criteria for wadeable streams and intrastate reservoirs is an important issue that should be addressed. However, it is also necessary that a large number of other Kentucky standards be created or revised to meet the goals and requirements of the Clean Water Act.

 

The Clean Water Act requires that the states review and, if necessary, revise their water quality standards every three years. American Paper Institute, Inc. v. U.S. E.P.A., 996 F.2d 346, 349 (D.C. Cir. 1993). This process contemplates broad public participation that will create a full public record that can be reviewed by EPA in its consideration of new standards and revisions that emerge from the triennial review process. City of Albuquerque v. Browner, 97 F.3d 415, 425 (10^th Cir. 1996).

 

The following comments and proposed standards revisions are divided into four sections. First, we will discuss what KDOW has identified as what it believes are the “major issues” that should be addressed in this review. Next we will address the other types of changes to Kentucky standards that KDOW has stated that it expects may be made, including adoption of a number of EPA numeric water quality criteria as Kentucky standards. In section three we will propose other additions to Kentucky numeric standards that are necessary to protect endangered species and other uses of Kentucky’s waters although there is no EPA criterion or the EPA criterion is not protective.

 

In section four below, we will discuss changes that must be made to the Kentucky antidegradation implementation rules (in addition to adding to the list of ONRWs and Exceptional Waters). While some portions of these rules were considered in 2004 and some of the rules are currently involved in litigation, numerous facts have been learned since 2004 that clearly necessitate revising the Kentucky antidegradation rules. These facts involve both portions of the rules that were not considered in 2004 and portions of the rules that were considered in 2004 without knowledge of recently developed facts or that were not drafted so as to state clearly the intent of KDOW and U.S. EPA.

 

I.                   Nutrient Criteria and a Tiered Aquatic Life Use System

 

KDOW should promptly adopt, as Kentucky water quality standards, the Ambient Water Quality Criteria Recommendations for rivers and streams and for lakes and reservoirs that were adopted by the United States Environmental Protection Agency for Nutrient Ecoregions IX and XI in 2000 unless KDOW is prepared to offer other protective numeric criteria for phosphorus and nitrogen.

 

KDOW should not, however, adopt a tiered aquatic life use system at this time.

 

A.    Kentucky should immediately adopt the federal nutrient criteria as Kentucky Water Quality Standards

 

There is no reason for further delay by KDOW in adopting nutrient standards necessary to protect Kentucky Waters and downstream waters. see 40 CFR 131.10(b). In 2000, EPA adopted criteria for lakes and streams for defined “ecoregions” including Ecoregions IX and XI that together cover Kentucky. It was originally contemplated by EPA that numeric standards for phosphorus and nitrogen would be adopted by the states in 2003.

 

Since 2003, much research has been done but none of the studies of which we are aware indicate that the 2000 EPA criteria are significantly too stringent.

 

Although we have not been allowed to be present during discussions of nutrient criteria at Region 4, it is our understanding that KDOW through study of diatoms has done considerable research on the effect of nutrients. If that research is sufficiently definitive to allow KDOW to propose numeric standards for phosphorus and nitrogen for lakes and streams, it should now propose standards based on that research. If KDOW does not believe it should propose standards based on its research, KDOW should propose standards based on the 2000 EPA numeric criteria applicable to Kentucky water bodies.  

 

It is our understanding that KDOW’s research indicates that the numeric standards in EPA’s 2000 documents would be very similar to criteria Kentucky would propose, furthering our assertion that Kentucky should not delay any longer in proposing numeric nutrient criteria.

 

B.     The necessary data has not yet been collected to enable KDOW to develop a proper tiered aquatic life use system

 

The organizations commenting in this review are not opposed to refinement of Kentucky aquatic life use designations. Clearly a number of Kentucky waters need greater protection because of the unique or sensitive aquatic life they harbor. However, we do not believe that KDOW currently has the data needed to develop a properly protective tiered aquatic life use system.

 

Also, we would note now that some of the models of tiered aquatic life uses, such as that of neighboring Ohio, appear to be flawed from an environmental policy standpoint, and probably inconsistent with EPA regulations governing designation of waters for uses less protective than those articulated in the “fishable” goal. A “tiered” aquatic life use scheme is not acceptable if it allows or encourages assigning waterbodies “less than Section 101(a)(2)” aquatic life uses (such as giving the water body a “limited aquatic life”), without having done an analysis of the potential of the water body that is currently not fully supporting such uses to be restored sufficiently to support such uses. It is not sufficient under the Clean Water Act or the EPA regulations to assign less than a 101(a)(2) aquatic life use because  the water body is not currently capable of fully supporting a community of aquatic life consistent with the goals of the CWA unless it has also been shown that it cannot be restored to support such uses. For this, a thorough evaluation of the technical and economic feasibility of restoring damaged physical habitat (stream channels and banks, riparian zones, etc) is necessary. See 40 CFR 131.10(j)(1).    

 

 

II.                Additional water bodies should be designated as Outstanding National Resource and Exceptional waters and a number of numeric standards should be established or changed based on EPA’s most recently published criteria, but wet weather standards should not be adopted

 

A number of other changes should be made of the types suggested in the public notice by KDOW but wet weather standards should not be adopted.

 

A.    Additional waters should be designated as Outstanding National Resource Waters

 

The following additional water bodies and stream segments should be designated as outstanding national resource waters (ONRWs):

 

1. Cumberland River - Border of McCreary and Whitley Counties.

 “A 14.9 mile section from Cane Creek south, to approximately 4 miles downstream from the Kentucky Highway 90 bridge was found eligible, possessing outstandingly remarkable scenic, geological, and recreational values”. ^[1]  This river segment is already designated in Kentucky regulations as a KY Wild River, OSRW and Exceptional Water.

 

2. Marsh Creek - McCreary County.

“From the confluence of the Cumberland River to river mile 15 (approximately 1.9 miles upstream of KY road 478) were found eligible, possessing outstandingly remarkable recreational and wildlife values”.¹  This river segment is already designated in Kentucky regulations as a KY Wild River, OSRW, Exceptional Water, and reference reach stream.

 

3. Rock Creek - McCreary County.

 “A 17.5-mile segment from White Oak Junction to the Kentucky/Tennessee border was found eligible possessing outstandingly remarkable recreational, wildlife, and water quality values”.¹

 This river segment is already designated in Kentucky regulations as an Exceptional Water, CAH, OSRW and a reference reach stream.  Additionally, 2 tributaries are also designated Exceptional Water and reference reach.

 

 

 

4. Rockcastle River - Border of Pulaski and Laurel Counties.

“A 13.3-mile segment below Kentucky Highway 80 to the lower end of Rockcastle Narrows was found eligible possessing outstandingly remarkable scenic values”.¹ This river segment is already designated in Kentucky regulations as a KY Wild River, OSRW and Exceptional Water.

 

5. War Fork - Jackson County

Out of a 13.7 mile, mouth to headwaters segment, approximately 8.2 miles from the junction with South Fork of Station Camp Creek upstream to Steer Fork has Outstandingly Remarkable Values. The combination of values, such as Water Quality, Threatened and Endangered Species, Scenic, Cultural Resources and Geology (Karst), create an ecological community that is outstandingly remarkable in this physiographic region. This river segment is already designated in Kentucky regulations as a CAH, Exceptional Water, and reference reach stream.

 

We support the Kentucky Division of Water’s proposed nomination of Reelfoot National Wildlife Refuge in Obion County. And we may bring additional ONRW candidates forward including the Green River through Mammoth Cave National Park.

 

B.     Additional waters should be designated as Exceptional

 

We support the additional Exceptional waters listed in the draft 401 KAR 5:030.

 

The following additional water bodies and stream segments should be designated as Exceptional water as each provides exceptional recreational and/or aquatic life uses:

 

Lake Cumberland

Barren River

Rough River

Paintsville Reservoirs

Dewey Lake

Grayson Lake

Kentucky River

Carr Creek Lake

 

C.     Kentucky should adopt numeric standards in accordance with EPA criteria as to a number of pollutants

 

Kentucky should adopt the USEPA criteria as Kentucky standards as to the following pollutants/designated uses:

 

State Has No Criteria

Aquatic Life

            Acute:  diazinon, tributyltin

            Chronic: diazinon, tributyltin

                       

            Human Health—Domestic Water Supply

                        Iron

 

 

State Criterion-Concentration Higher (Apparently Less Protective) Than EPA

            Aquatic Life

                        Acute:  chloride, methylmercury

                        Chronic: chloride, methylmercury

           

Human Health—Fish Consumption

Chloride

Chlorobenzene

Cyanide, free

Diazinon

Endrin

Ethlybenzene

Gamm-BHC (Lindane)

Hexachlorocyclopentadiene

Iron (chronic)

Thallium

Toluene

Tributyltin

Vinyl Chloride

1,2-diclorobenzene

1,2-trans-dichloroethylene

1,2,4-trichlorobenzene

1,3-dichloropropene

1,4-dichlorobenzene

 

Regarding iron, we trust that Kentucky is not looking to eliminate the 4 mg/L acute limit simply because USEPA has not set an acute criterion. Kentucky should adopt the 1 mg/L federal chronic criterion as its ambient standard for protection of aquatic life.

 

Further regarding iron, language in footnote #6 to Table 1 (401 KAR 5:031, Section 6, Pollutants) regarding a standard 3.5 times the federal criteria being applicable “if aquatic life has not been shown to be adversely affected” should be eliminated.   

 

Regarding 1,1-dichoroethylene, we are troubled by that suggestion that the standard might be raised from its current human health standards of .057 ug/L and 3.2 ug/L to federal criteria that are an order of magnitude higher. It would seem that either a serious mistake was made by KDOW and EPA when the existing standard was developed and approved or the current federal criteria are not protective. Please explain the scientific basis for this proposed change.

 

Regarding, mercury we agree that Kentucky should adopt the 0.3 mg/kg for methylmercury in fish tissue standard to protect human health. We do not, however, believe that the water column criteria to protect human health from bioaccumulation of mercury in fish should be eliminated. We believe there are cases in which water monitoring will be possible but in which fish tissue sampling will not be available. Further, it is very difficult to translate a fish tissue criterion into a water quality based effluent limit in an NPDES permit. Finally, once the fish tissue criterion has been exceeded the impacts to aquatic life are almost irreversible.

 

Finally, we believe that the Kentucky concept of chronic should be revised to follow federal criteria. The definition of “chronic criteria” at 401 KAR 5:002(48) speaks of   “the highest instream concentration of a toxic substance or an effluent to which organisms can be exposed indefinitely without causing an unacceptable harmful effect.” While “exposed indefinitely” would seem to require protective standards, in practice it would be best to make clear that a 96 hour exposure will be measured and that a water body will be found to violate the chronic standard if it exceeds the standard during any 96-hour rolling average, otherwise, some might think that aquatic life would not be harmed unless the pollutant stayed above the criterion-concentration for much longer periods—weeks, months, or more.  Applying averaging periods longer than 96 hours to available monitoring data could result in masking periods of 96 hours, perhaps even longer, when aquatic organisms have been exposed to harmful levels of one or more pollutant. 

 

Likewise, the duration for the acute aquatic life criteria listed in Table 1 should be clarified.  Currently, 401 KAR 5:002 (4) says simply “exposed for a brief period”, which is open to a variety of interpretations—a second, hour, several hours, 24 hours, perhaps several days.  We believe that nothing longer than the 1 hour duration employed in EPA’s aquatic life criteria for toxic chemicals would be scientifically defensible.  

 

It would also help to clarify that the term “daily average” does not actually mean “average over a calendar day”; rather, it refers to a 24 hour rolling average.  Adverse impacts of pollutants on living organisms occur without consideration of the artificial time keeping systems devised by humans.  As a general rule, 24 hours of continuous exposure to a certain level of a pollutant (or stressor like low dissolved oxygen) has the same effect regardless of whether it started at 4 AM, 10 AM,  3 PM, 7 PM or 11 PM.   

 

D.    Kentucky should not adopt wet weather criteria

 

Initially, although the notice of the Triennial review discusses “wet weather criteria,” we would note that it is really better to speak of wet weather “designated uses” than “criteria.” For example, there is obviously no reason to believe that criteria regarding the concentration of pathogens (or indicator bacteria) that present unacceptable risk to persons engaging in water-based recreation during wet weather differs from the harmful concentration during dry weather. (Or during high stream flow, as compared to low.)  Of course, precipitation events can: 1) affect the loading rates of pollutants to a waterbody, and 2)  increase the volume (flow) of the stream in which those pollutants are diluted.  Together, these two factors can increase or decrease the -instream concentration of pollutants, such as pathogens.  But, this does not mean that a given concentration of, say Giardia, poses less (or more) risk during wet weather/high flow event than during dry weather/low flow conditions.

 

In any case, wet weather criteria or use designations should not be adopted at this time because such use designations are not likely to be protective of human health. Much more research is needed regarding recreational use of waters after wet weather events before such standards could be adopted.

 

E.     401 KAR 5:026

 

We are extremely concerned about the deletion of Red River from River Mile 68.6 to River Mile 49.2 in Menifee / Wolfe Counties. We request the Division offer justification for the elimination or restore the stream segment and the OSRW Use Designation to the Surface Water Use Designation table in 401 KAR 5:026.

 

We are also concerned about the modification of Roundstone Creek from River Mile 13.5 to River Mile 4.7 in Rockcastle County to Roundstone Creek to Rockcastle River from River Mile 26.3 (Interstate I-75) to River Mile 13.4 (confluence of Renfro Creek). We request the Division offer justification for the alteration of River Miles. We propose the entire Roundstone Creek reach from River Mile 26.3 to River Mile 4.7 should be designated OSRW.

 

We are as yet unsure of how the simplification of the Surface Water Use Designations will appear in the final draft for public notice, however in the preliminary draft shared with KWA in April all DWS (domestic water supply) use designations were deleted from the table. This is very confusing for the general public and more than a little misleading for a surface water that is still listed in the table to have all uses except DWS listed in the table. For example, we will simply note the first few instances where this occurs in the table rather than note every instance where DWS has been deleted.

 

·    Greenbo reservoir (Greenup county)

·    Licking River (Bath/Rowan counties) and (Kenton/Cambell/Pendleton/Harrison/Robertson/Fleming counties)

·    Bert Combs reservoir (Clay county)

·    Mill Creek reservoir (Wolfe county)

 

Finally, we are concerned about the way in which KDOW limits the application for the DWS use to 5 miles upstream of the current public water intake. Particularly in a drought year like 2007 we can see that protecting the water supply use is critically important as Kentucky communities grow and need to develop new or alternative sources of water. If the current water quality (instream) is clean enough to support a DWS use then KDOW should protect this existing use by designating all Kentucky waters that are eligible for DWS – as DWS. This will help assure protection of human health drinking water uses for Kentucky’s future.

 

III.             Kentucky should adopt standards protective of aquatic life for ammonia, nonylphenol and sulfate

 

Kentucky currently has ammonia standards based on the 1999 EPA criteria. These criteria, however, are known to be grossly inadequate to protect aquatic life including endangered mussels.

 

There are no federal criteria for sulfate. However, sulfate criteria have been developed by USEPA region 5 after conducting considerable scientific studies of the effects of sulfate on aquatic life.

 

A.    Ammonia

 

It appears to us that the current Kentucky ammonia standard is based on the 1986 USEPA criteria document. The 1986 criteria, like the 1999 ammonia criteria document, does not take into account the high sensitivity of native mussels to ammonia.

 

 It is known that mussels are vulnerable to ammonia toxicity and that existing U.S. EPA ammonia criteria are not protective of mussels. This problem is discussed in several studies cited at www.epa.gov/waterscience/criteria/ammonia and other studies including Ammonia Aquatic Life Criteria Re-Evaluation. Available at http://www.epa.gov/waterscience/criteria/ammonia/ Accessed: August 31, 2006.

 

·         Acute toxicity of ammonia to freshwater mussels: How new data and emerging data quality guidelines affect data synthesis. Tom Augspurger (USFWS - Raleigh, NC), Jim Dwyer (USFWS - Columbia, MO), Chris Ingersoll (USGS - Columbia, MO), Ning Wang (USGS - Columbia, MO).

 

·         Acute and chronic effects of ammonia and copper on 2-month-old juvenile mussels. Ning Wang (USGS - Columbia, MO), Chris Ingersoll (USGS - Columbia, MO), Chris Barnhart (Southwest Missouri State University), Dick Neves (USGS - Blacksburg, VA), Jim Dwyer (USFWS - Columbia, MO), Tom Augspurger (USFWS - Raleigh, NC), Cindy Kane (USFWS - Gloucester, VA). USEPA Mussel Toxicity Testing Workshop, Chicago, IL. August 23 and 24, 2005.

 

·         Sensitivity of Juvenile Freshwater Mussels (Lampsilis Fasciola, Villosa Iris) To Total and Un-ionized Ammonia. Andrea K. Mummert, Richard J. Neves, Tammy J. Newcolb, and Donald S. Cherry. Environmental Toxicology and Chemistry, Vol. 22, No. 11, pp. 2545-2553, 2003.

 

·         Effects of Pore-water Ammonia on In Situ Survival and Growth of Juvenile Mussels (Lampsilis Cardium) in the St. Croix Riverway, Wisconsin, USA. Michelle R. Bartsch, Teresa J. Newton, John W. Allran, Jonathan A. O'Donnell, and William B. Richardson. Environmental Toxicology and Chemistry, Vol. 22, No. 11, pp. 2561-2568, 2003.

 

·         Effects of Ammonia on Juvenile Unionid Mussels (Lampsilis Cardium) in Laboratory Sediment Toxicity Tests. Teresa J. Newton, John W. Allran, Jonathan A. O'Donnell, Michelle R. Bartsch, and William B. Richardson. Environmental Toxicology and Chemistry, Vol. 22, No. 11, pp. 2554-2560, 2003.

 

Accordingly, Kentucky should adopt ammonia criteria that are more stringent than its present criteria to protect mussel populations including endangered species. A basis for establishing the criteria necessary to protect mussels is provided by the Water Quality Guidance for Protection of Freshwater Mussels (Unionidae) from Ammonia Exposure, Tom Augspurger, Anne Keller, Marsha Black, W. Gregory Cope and F. James Dwyer, Env. Toxicology and Chemistry, Vol. 22 No. 11 pp.2569-2575(2003) a copy of which is attached.

 

Many Kentucky rivers and streams have good populations of diverse native mussels. In fact, many of Kentucky’s OSRW designated waters have been designated because of the diverse mussel populations in the waters. Kentucky’s OSRW waters including, but not limited to, the Green, Licking and Cumberland Rivers – and their tributaries provide critical habitat for a number of federally listed endangered mussel species. The Green River is the only site in the world where ring pink (Obovaria retusa) mussels are known to live. 

 

B.     Nonylphenol

 

Kentucky does not have a standard for nonylphenol (“NP”). EPA has adopted freshwater acute and chronic criteria of respectively 28 μg/L and 6.6 μg/L. Kentucky should not, however, simply adopt the EPA criteria document as its standard but should instead adopt protective criteria that recognizes the additive toxicity of NP with the nonylphenol ethoxylates (NP1EO and NP2EO) with which NP is generally found in wastewater.  

 

Environment Canada, after an extensive study of NP and the nonylphenol ethoxylates with which NP is found concluded that use restrictions need to be imposed based on toxicity of NP and the short chain ethoxylates and established a water quality guidance for NP of 1.0 μg/L for freshwater. Canadian Council of Ministers of the Environment, Canadian Water Quality Guidelines for the Protection of Aquatic Life Nonylphenol and its Ethoxylates (2001).  Environment Canada assumed that NP1EO and higher chain ethoxylates were approximately ˝ as toxic as NP and that the toxicity was additive. The use restriction was based on the total concentration of NP and of NPEs and cumulative toxicity (TEQ).

 

Unlike the Canadian assessment, EPA’s water quality criteria are only for NP. However, EPA recently supported an acute toxicity study on the individual and additive toxicity of NP, NP1EO and NP2EO to fathead minnows and Ceriodaphnia that  documented that the acute toxicity of NP1EO and NP2EO to fatheads, was approximately 2/3 and ˝ that of NP. TenEyck, M and Markee, T (2006) Additive Toxicity of Nonylphenol, Nonlyphenol Monoethoxlyate, and Nonylphenol Diethoxylate to Selected Freshwater Species, Pimephales promelas (Fathead Minnow) and Ceriodaphma dubia. [accepted for publication in Archives of Environmental Toxicology and Chemistry]; see also www.epa.gov/R5water/wqb/presentations/teneyck_presentation.pdf. Further, the combined effects were at least additive in terms of toxicity.

 

Accordingly, Kentucky should adopt a toxicity standard that is at least as stringent as a standard based on the EPA 28 and 6.6 μg/L figures but that recognizes the combined toxicity of NP with NP1EO and NP2EO.  Thus, for example, a finding that a water body contain 2 μg/L NP, 6 μg/L NP1EO and 2 μg/L NP2EO should be found to violate the standard: [2 + (6 x  2/3) + (2 x ˝) > 6.6µg/L] = [ 7µg/L > 6.6 µg/L]. The standard is exceeded by .4 µg/L.    

 

C.     Sulfate

 

Kentucky should adopt standards that have been proposed by the Illinois Environmental Protection Agency for sulfate. These standards were developed following extensive new sulfate toxicity testing and numerous interest group discussions hosted by the United States Environmental Protection Agency (USEPA) in which members of the Illinois Coal Association and other organizations fully participated.

 

The basic criterion that has been proposed is:

 

The following concentrations for sulfate must not be exceeded except in receiving waters for which mixing is allowed pursuant to Section 302.102.

1. At any point where water is withdrawn or accessed for purposes of livestock watering, the average of sulfate concentrations must not exceed 2,000 mg/L when measured at a representative frequency over a 30 day period.
2. The results of the following equations provide sulfate water quality standards in mg/L for the specified ranges of hardness (in mg/L as CaCO₃) and chloride (in mg/L) and must be met at all times:
1. If the hardness concentration of receiving waters is greater than or equal to 100 mg/L but less than or equal to 500 mg/L, and if the chloride concentration of waters is greater than or equal to 25 mg/L then:

 

C=[1276.7 + 5.508 (hardness) – 1.457 (chloride)] * 0.65

 

Where, C= sulfate concentration

 

2. If the hardness concentration of waters is greater than or equal to 100 mg/L but less than or equal to 500 mg/L, and if the chloride concentration of waters is greater than or equal to 5 mg/L but less than 25 mg/L, then:

 

C= [-57.475 + 5.79 (hardness) + 54.163 (chloride)] * 0.65

 

Where C = sulfate concentration

 

3. The following sulfate standards must be met at all times when hardness (in mg/L as CaCO₃) and chloride (in mg/L) concentrations other than specified in (h)(2) are present:
1. If the hardness concentration of waters is less than 100 mg/L or chloride concentration of waters is less than 5 mg/L, the sulfate standard is 500 mg/L
2. If the hardness concentration of waters is greater than 500 mg/L and the chloride concentration of water is 5 mg/L or greater, the sulfate standard is 2,000 mg/L

 

More information on the sulfate criteria developed by EPA and Illinois EPA can be obtained at http://www.ipcb.state.il.us/documents/dsweb/Get/Document-54756/.

 

IV.             Kentucky rules relating to antidegradation implementation must be improved.

 

In addition to adding to the list of ONRWs and Exceptional Waters, KDOW must make changes to rules relating to antidegradation implementation. It is clear that some elements of rules pertaining to POTW facility planning must be changed to mesh properly with the antidegradation rules. Further, it is apparent that some of the factual understandings that were the basis for the adoption of the antidegradation rules in 2004 are contradicted by facts learned subsequently. Also, some of the rules adopted in 2004 are worded poorly in that they do not clearly present the interpretation of the rules that has been presented by KDOW and U.S. EPA since the adoption of the rules in 2004.

 

A.    Public Notice and Participation Rules must be improved for POTW facility planning

 

401 KAR 5:030 Section 1(2)(b)7 and 401 KAR 5:030 Section 1(3)(b)6 state that “For purposes of this administrative regulation, the approval of a [publicly owned treatment work’s] POTW’s regional facility plan pursuant to 401 KAR 5:006 shall demonstrate compliance with the alternatives analysis and socioeconomic demonstration for a regional facility.” Obviously this provision, which for certain types of new pollution loadings basically makes the antidegradation demonstration required by 40 CFR 131.12(a)(2) part of the  proceedings considering regional facilities plans, necessitates that the rules for consideration of regional facilities plans properly mesh with the requirements of 40 CFR 131.12(a)(2).  

 

Federal and State law require a demonstration that allowing lower water quality is “necessary to accommodate important economic or social development in the area in which the waters are located.” 40 CFR 131.12(a)(2); 401 KAR 5:029 Section 1(2).  For POTWs, Kentucky’s antidegradation implementation rules allow for a demonstration of compliance with the alternatives analysis and socioeconomic demonstration through the Facilities Plan and State Planning and Environmental Assessment Report (SPEAR)  process pursuant to 401 KAR 5:006.  However, the public does not have adequate opportunity to participate in the determination of need and assessment of alternatives under the SPEAR process as it is currently constituted.^[2]

 

Public participation is a critical component of the review and approval of applications to discharge to state waters. 40 CFR 124.10 contains detailed requirements regarding the adequacy of public notice for permit actions.  All comments received must be considered in making the final decision and adequately answered by the permitting agency, 40 CFR 124.11, 124.17.  This is not assured, however, under the current SPEAR process that has allowed as much as a six-year delay between approval of the SPEAR and notice of the actual permit. This prevents effective participation in the consideration of alternatives. 

 

Furthermore, our understanding is that the municipal government drafts the Facilities Plan, public notices it in their local paper, holds the public hearing, and receives comments before the Facilities Plan is submitted to the State Municipal Planning office.  This local procedure does not give all interested parties an opportunity to comment and falls short of the public notice required by 40 CFR Section 124.  There are many other people other than those in the immediate locality of a new sewage treatment plant that have an interest in ensuring that downstream waters remain clean. 

 

Accordingly, the Cabinet must modify the SPEAR process to assure that all persons who may be concerned regarding degradation of Kentucky waters will have a realistic opportunity to participate in the process. Furthermore, KDOW must make clear that it will consider as part of the SPEAR process whether a new or increased discharge is necessary for any new or increased discharge to accommodate important social or economic development by considering the demonstration of need and assessment of alternatives. This requires that:

 

·         Notice of be given of the consideration of expansions to the facility and consideration of alternatives under SPEAR that is a least as broad as that required for notice of draft NPDES permits,

 

·         Persons interested in the SPEAR considerations be given the same rights to participation as those given under the NPDES process, and

 

·         Decisions made under the SPEAR process be reviewed by KDOW, as the NPDES permitting authority, and that any decisions to grant an NPDES permit based in whole or in part on a SPEAR decision be reviewable and subject to third-party appeals as fully as if the decision were made directly by KDOW.

 

B.     The rules must codify the limit on the 20% expansion exception to provide that the exception cannot be used if the expansion would use more than 10% of the remaining assimilative capacity.

 

401 KAR 5:030 Sections 1(2)(b)1e, 1(3)(b)1e (the “20% expansion exemption”) exempts from Tier II review KPDES permit renewals or modifications “that result in less than a twenty (20) percent increase in pollutant loading from the previously permitted pollutant loading.” Thus, a plant with a permit to discharge 1 million gallons of wastewater per day could be authorized to discharge up to an additional 200,000 gallons per day without having to make a public showing of the necessity of the increased pollution.

 

After this exception was submitted to EPA for approval in September 2004, it was recognized by EPA and KDOW that the exception could allow increased discharges that could not properly be found to be de minimis. Accordingly, in a letter to the EPA dated April 11, 2005, Cabinet Secretary LaJuana S. Wilcher wrote that “Notwithstanding provisions of clause (e) [the 20% expansion exemption],” KDOW:

 

can require an antidegradation review in those cases otherwise not subject to an antidegradation review … if the increase would consume ten percent (10%) or more of the available remaining assimilative capacity of the receiving water.

 

In essence, KDOW wrote a 10% assimilative capacity limit into the 20% expansion exemption although this limit was not apparent in the rules. Based on these assurances, EPA approved Kentucky’s rules on April 12, 2005.

 

As KDOW is aware, the organizations providing these comments have very serious concerns about the enforceability of the limits on the 20% expansion exception that are contained in the April 11, 2005 letter. In any event, assuming that KDOW does intend to follow the April 11, 2005 letter, there can be no principled objection to placing the limitation on the exception that is stated in the letter into the rule itself. Even assuming that making this change is not necessary to make the April 11, 2005 letter limitation legally effective, placing the limit on the exception in the rule itself would enable members of the public to understand the rules without resorting to reading documents outside the Kentucky rules. 

 

C.     Coal exception should recognize coal antidegradation rules which should be approved properly under Kentucky law.

 

In the regulations adopted by the Cabinet and submitted to EPA for approval, coal mining pollution discharges are at least apparently exempted from Tier II antidegradation. 401 KAR 5:030 Sections 1(2)(b)(1)b and (3)(b)(1)b provide that the Tier II regulations “shall not apply” to coal mining discharge subject to regulation under the Surface Mining Control and Reclamation Act except the cabinet shall assure water quality necessary to fully protect existing uses.

 

However, in a February 25, 2005 submittal by the Cabinet to EPA, the Cabinet committed that “where it determines a proposed mining discharge is to an Exceptional or high quality water, and the activity will cause a lowering of water quality, the Commonwealth will conduct a socioeconomic review of the proposed activity during the 402 authorization process.” Similarly, in the February 25, 2005 letter, the Cabinet represented that it will conduct an evaluation of the “necessity” of lowering water quality as part of the decision to issue a KPDES permit.

 

The organizations here filing comment believe that the February 25, 2005 commitments will not survive the first challenge by a mining company that balks at compliance. However, since the Cabinet through the February 25, 2005 submittal has agreed that coal mining cannot properly be exempted from antidegradation and the Kentucky Coal Mining Association has made clear through its briefs filed in the litigation challenging the 2004 rules that it agrees with the approach taken by the Cabinet in the February 25, 2005 submittal, there can be no principled objection to placing the commitments made in the February 25, 2005 submittal into the antidegradation rules. By placing the language of the commitment into 401 KAR 5:030 Sections 1(2)(b)(1)b and (3)(b)(1)b, the KDOW can eliminate public confusion and controversy regarding the scope of antidegradation coverage regarding coal mining without changing the policies that it believes should be implemented and that have now been endorsed by the industry.  

 

D.    Tier II protections must cover all waters or at least all waters suitable for recreation and propagation of aquatic life

 

The 2004 antidegradation implementation rules on their face exempt from Tier II protections all water bodies that are violating any water quality standard applicable to the water body except for those few water bodies that have been designated as ORWs or Exceptional water. It appears that KDOW adheres to that interpretation of its rules and has declined to apply Tier II antidegradation protections to any impaired water body except for the relative handful of impaired water bodies that are ORWs or Exceptional.

 

Two factual assumptions, however, which led to the development and approval of the broad exclusions contained in the 2004 rules, have proven to be incorrect. First, it was believed at the time that exclusion of impaired waters from Tier II coverage would only expose roughly 10% of Kentucky stream miles to unnecessary degradation.  Since 2004, KDOW has collected data and filed reports showing that the percentage of waters found to be impaired is much higher than the 10% figure assumed when the 2004 rules were adopted and approved by EPA. In fact, of the river and stream miles that have been the subject of targeted monitoring, less than 53% of the stream miles are unimpaired. Using probabilistic analysis, the Cabinet estimates that only 42% of Kentucky’s stream miles meet all applicable water quality standards.

 

Second, it appears that the effect of implementation of Tier II antidegradation requirements on the KDOW workload was vastly overestimated. The only justification for limiting Tier II protections to less than all of Kentucky’s waters that has ever been offered has been to allow KDOW to use its limited resources on the antidegradation considerations that are more important. However, unless there are new and increased loadings that have been permitted of which we have not received notice, it appears that the only new or increased loadings of the past two years that KDOW has found are subject to Tier II antidegradation are a handful of new loading relating to coal mining operations. Moreover, it does not appear that there have been more than a handful of other new loadings that would have been subject to Tier II antidegradation analysis even if all of Kentucky’s water bodies were covered as the organizations submitting these comments believe that they should be.

 

Not only are the facts other than what was believed when the 2004 rules were adopted and approved, there have clearly been further developments in the thinking of KDOW and EPA that supports expanding the coverage of Kentucky’s Tier II protections. First, EPA has disapproved rules submitted by the State of West Virginia that, like the Kentucky rules, excluded impaired waters from Tier II protections.

 

Moreover, in briefs filed in the litigation regarding the Kentucky 2004 rules, both KDOW and EPA have made clear that they do not support an exclusion from Tier II coverage as broad as that contained in the current Kentucky rules. In its brief in the District Court, EPA offered its interpretation of 40 CFR 131.12(a)(2) that “under EPA’s regulation States must consider waters as high quality if those waters support both aquatic life-based uses and recreation-based uses.” (EPA’s Brief in Support of its Cross-Motion for Summary Judgment at 45). The same position was taken by the Commonwealth, which wrote that “water quality must exceed levels that support [fish] propagation and recreation” (R.52, Commonwealth’s Brief in Support of its Motion for Summary Judgment at 16).

 

Plainly, at a minimum, the Kentucky rules should be revised to do what EPA and KDOW have told the federal courts that they do. Accordingly, all waters that support both aquatic life propagation and recreation should be covered by the rules. Waters that are only impaired for fish consumption or swimming should be covered by Tier II protections if they support propagation of aquatic life and support some form of recreation. Thus, all Kentucky waters that contain reproducing aquatic life and support any one of the following forms of outdoor recreation should be protected:

 

·         Swimming