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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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

KRC Urges Regulation Subcommittee To Reject State Selenium Water Quality Standard Revision For Lack Of Compliance With Federal Public Participation Requirements  Posted: April 9, 2013

Tuesday, April 09, 2013

Dear Representative Bell, Senator Bowen, and Members of the ARRS Committee:

I apologize that I cannot be there in person at today's meeting, but am writing to respectfully request that you do not allow the Energy and Environment Cabinet's Division of Water include in the amended 401 KAR 10:031, the new acute and chronic numbers for selenium. I had previously written to you on February 11, expressing my concerns. The Cabinet has subsequently conducted two "stakeholder" meetings and has provided a response to comments received, but has not changed the new standards in response to comments.

Setting aside my concern that the new acute and chronic numbers have not been subject to peer review, there are significant procedural flaws in the Cabinet's approach that will result in a rejection of the new standards, either by EPA or the courts, that could be avoided by the Cabinet simply going through the proper Chapter 13A notice and comment process rather than trying to effect a significant change after-the-fact.

The Division of Water’s revisions to Kentucky’s water quality standards are governed by Section 303(c) of the CWA, 33 USC Section 1313, and implementing regulations. The “triennial review” process is mandated by Section 303(c)(1), which states that DOW “shall from time to time (but at least once each three year period beginning with October 18, 1972) hold public hearings for the purpose of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards.” EPA’s regulation at 40 CFR 131.20(b) governs public participation in State review and revision of water quality standards, including the hearings required by Section
303(c)(1). That regulation mandates that

"(b) Public participation. The State shall hold a public hearing for the purpose of reviewing water quality standards, in accordance with provisions of State law, EPA’s water quality management regulation (40 CFR 130.3(b)(6)) and public participation regulation (40 CFR Part 25). The proposed water quality standards revision and supporting analyses shall be made available to the public prior to the hearing."

It is apparent that the Division of Water's actions do not conform to these mandatory requirements, since the proposed revision was not made available prior to the hearing on the regulation.

EPA’s public participation regulation at 40 CFR Part 25 is mandatory in nature, and include minimum standards that the state must follow. The regulation provides that:

"a) Applicability. Any non-adjudicatory public hearing, whether mandatory or discretionary, under the three Acts shall meet the following minimum requirements. These requirements are subordinate to any more stringent requirements found elsewhere in this chapter or otherwise imposed by EPA, State, interstate, or substate agencies. Procedures developed for adjudicatory hearings required by this chapter shall be consistent with the public participation objectives of this part, to the extent practicable.

(b) Notice. A notice of each hearing shall be well publicized, and shall also be mailed to the appropriate portions of the list of interested and affected parties required by § 25.4(b)(5). Except as otherwise specifically provided elsewhere in this chapter, these actions must occur at least 45 days prior to the date of the hearing. However, where EPA determines that there are no substantial documents which must be reviewed for effective hearing participation and that there are no complex or controversial matters to be addressed by the hearing, the notice requirement may be reduced to no less than 30 days. EPA may further reduce or waive the hearing notice requirement in emergency situations where EPA determines that there is an imminent danger to public health. To the extent not duplicative, the agency holding the hearing shall also provide informal notice to all interested persons or organizations that request it. The notice shall identify the matters to be discussed at the hearing and shall include or be accompanied by a discussion of the agency's tentative determination on major issues (if any), information on the availability of a bibliography of relevant materials (if deemed appropriate), and procedures for obtaining further information. Reports, documents and data relevant to the discussion at the public hearing shall be available to the public at least 30 days before the hearing. Earlier availability of materials relevant to the hearing will further assist public participation and is encouraged where possible.

(c) Locations and time. Hearings must be held at times and places which, to the maximum extent feasible, facilitate attendance by the public. Accessibility of public transportation, and use of evening and weekend hearings, should be considered. In the case of actions with Statewide interest, holding more than one hearing should be considered.

(d) Scheduling presentations. The agency holding the hearing shall schedule witnesses in advance, when necessary, to ensure maximum participation and allotment of adequate time for all speakers. However, the agency shall reserve some time for unscheduled testimony and may consider reserving blocks of time for major categories of witnesses.

(e) Conduct of hearing. The agency holding the hearing shall inform the audience of the issues involved in the decision to be made, the considerations the agency will take into account, the agency's tentative determinations (if any), and the information which is particularly solicited from the public. The agency should consider allowing a question and answer period. Procedures shall not unduly inhibit free expression of views (for example, by onerous written statement requirements or qualification of witnesses beyond minimum identification).

(f) Record. The agency holding the hearing shall prepare a transcript, recording or other complete record of public hearing proceedings and make it available at no more than cost to anyone who requests it. A copy of the record shall be available for public review."

DOW’s action violates 40 CFR 25.5(b)’s requirements that notice of hearings on proposed revisions be given 45 days in advance and that relevant reports, documents and data be provided at least 30 days prior to the hearing. Since the state's adoption of these new numbers, if allowed by your Subcommittee, would not comply with applicable federal requirements, the EPA cannot lawfully approve of the standards, meaning that the Cabinet will have to readopt the changes in compliance with federal law.

In order to assure the integrity of the Chapter 13A process and to assure that the proposed changes are proposed and finalized in accordance with federal requirements, I urge you to reject the Cabinet's request to allow these changes to the amended regulation.

Thank you in advance

Tom FitzGerald
Director
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