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

KRC Comments On Amendments To Water Antidegradaton Rule  Posted: March 1, 2011

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

By email Abigail.Powell@ky.gov

Re: 37 Kentucky Administrative Register 8
401 KAR 10:030 Antidegradation policy
implementation methodology

Dear Abby:

Below are the revised comments of the Kentucky Resources Council, Inc., concerning the proposed amendment to 401 KAR 10:030 published in the February 1, 2011 Administrative Register of Kentucky.

The Kentucky Resources Council, Inc., is a nonprofit environmental advocacy organization providing legal and technical assistance without charge to individuals, community organizations, conservation groups and local governments on a range of environmental matters, including protection of streams and rivers in the Commonwealth of Kentucky. KRC has reviewed the proposed amendment and offers these specific comments, referenced by section and subsection or by topic.

The proposed rulemaking is intended to amend 401 KAR 10:030 in response to the November 9, 2010 determination of the U.S. EPA disapproving four provisions of the state regulation. For the reasons identified below, KRC believes additional changes are necessary in order to address EPA’s objections and to finalize a state regulation that is consistent with Section 303 of the Clean Water Act and 40 CFR Part 131.

Section 1(3)(b)1.c.

The amendment proposes to modify the existing language regarding the de minimis threshold below which a new or expended discharge is not subject to the antidegradation implementation procedures in paragraph (b) of that section, to incorporate a cumulative “cap” on such discharges. The specific language of the proposed amendment states that “The cumulative impact of this category of discharges” shall not consume more than 10% of the available assimilative capacity of the receiving stream “outside of a designated mixing zone or zone of initial dilution.”

KRC believes that the Cabinet should, as suggested by the November 9, 2010 letter, first consider whether to continue to provide a de minimis exemption, since the tracking and monitoring of the implementation of such an exemption and a cumulative cap will consume significant resources. The regulation proposes no methodology for either evaluating cumulative impacts on receiving waters in order to assure that the combination of all de minimis discharges approved for each and all discharges within a stream reach are in fact not having a significant impact on existing water quality.

If Kentucky determines to maintain a de minimis exemption from antidegradation implementation procedures, KRC believes that, for purposes of determining whether a new or expanded discharge has a de minimis impact on the existing water quality and available assimilative capacity, and certainly for determining whether the cumulative impact of individual discharges it is legally inappropriate to allow the discharger to measure that impact outside of a mixing zone or zone of initial dilution.

A mixing zone or ZID is utilized to dilute pollutant discharges using ambient waters in order to allow a discharger to avoid more rigorous treatment prior to mixing the discharge with the ambient water, and is based on meeting the applicable water quality criteria at the edge of the mixing zone (or the ZID within such a zone for toxic pollutants) while allowing a consumption of water that has higher quality and lower pollutant loadings of the pollutant(s) of concern. A mixing zone thus allows degradation of existing water quality to occur to levels potentially below the applicable water quality criteria within the zones (acute or chronic, depending), and failing to consider the consumption of assimilative capacity that occurs within that zone could mask significant degradation, particularly where a discharger has several mixing zones for different pollutants or several dischargers have mixing zones within a single stream reach.

Since as the Court of Appeals for the Sixth Circuit noted, the “relevant question is how much water quality is lowered by any and all discharges to a water body,” it is inappropriate as a matter of law and of science to allow the discharger to consume that increment of assimilative capacity within a mixing zone without that consumption being considered in determining individually and cumulatively whether the consumption of assimilative capacity exceeds the overall 10% cap and is significant or insignificant (i.e. de minimis).

Implementation Issues Regarding Cumulative Cap

KRC has reviewed the comments of the Kentucky Waterways Alliance, and the “Greenebaum Environmental Letter” for the 4th Quarter of 2010, and notes that both the KWA and the attorneys for Greenebaum expressed concern with the manner in which the agency intends to implement the de minimis individual and cumulative exemptions. KRC believes that the KWA has raised important questions concerning implementation, and encourages the Division of Water to respond fully to the questions in the Statement of Consideration, and KRC incorporates by reference the KWA comments.

The Greenebaum Environment Letter raised similar concerns to those raised by KWA in Section A of its comments, noting that “[i]t will be extremely difficult for DOW to track or evaluate such cumulative impacts, and the regulation does not propose any methodology for doing so.”

Section 1(3)(b)2.a(ii)

Among the four provisions of the proposed regulation disapproved by EPA was this provision regarding the compliance of permittees discharging into exceptional or high quality waters under a general permit with the requirements of the antidegradation implementation rule. Specifically, EPA disapproved the regulation for want of an explanation of how the antidegradation requirements would be met. The proposed revision suggests that the demonstration of compliance with the antidegradation requirements will be met at the time of issuance of the general permit, yet fails to incorporate a provision assuring that a lowering of water quality, individually and cumulatively, will not result from issuance of and election under a general permit.

Least Degrading Feasible Wastewater Treatment Alternative

In the final regulation, the Cabinet should clarify that where a demonstration has been made that justifies a lowering of water quality for exceptional or high quality waters, that the requirement that the “least degrading feasible wastewater treatment alternative” be expressed as a numerical limit to be incorporated into the KPDES permit, and that the limits on discharges capable of being achieved using that alternative become the permit limits, rather than defaulting to the baseline ambient standards for the designated water body use.

Thanks for your consideration of these concerns.

All best regards,

/Fitz/
Tom FitzGerald
Director

Cc: Bruce Scott

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