Acting Region IV EPA Administrator Asked To Reject Kentucky's Change To Selenium Water Quality Standards Due To Lack Of State Agency Compliance With Public Participation Requirements

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Acting Region IV EPA Administrator Asked To Reject Kentucky's Change To Selenium Water Quality Standards Due To Lack Of State Agency Compliance With Public Participation Requirements  Posted: June 24, 2013

Appalachian Citizens Law Center, Inc. * Appalachian Mountain Advocates, Inc. * Cumberland Chapter Sierra Club * Kentuckians for the Commonwealth * Kentucky Resources Council, Inc. * Kentucky Waterways Alliance * Sierra Club *

A. Stanley Meiburg, Acting Regional Administrator
U. S. Environmental Protection Agency, Region IV
Sam Nunn Atlanta Federal Center
61 Forsyth Street, SW
Atlanta, Georgia 30303

By email only

Re: May 23, 2013 Submittal from Commonwealth of Kentucky
Pursuant to 33 U.S.C. 1313(c)(1) and 40 CFR 131.20(a)

Dear Acting Regional Administrator Meiburg:

We are writing on behalf of members who use and enjoy the water resources of the Commonwealth of Kentucky for a range of beneficial purposes, including drinking water, recreation in and on the water, and fishery uses, to respectfully request that the May 23, 2013 filing by the Kentucky Energy and Environment Cabinet (Cabinet) requesting review and approval by the United States Environmental Protection Agency (EPA) be rejected for significant noncompliance by the Cabinet with the public notice and comment requirements of 40 CFR Part 25.

While we harbor significant reservations concerning the substantive standards and approach to regulation of selenium, we believe that the regulatory submittal must be rejected summarily for abject want of compliance by the Cabinet with the mandatory, non-discretionary requirements for public participation contained in 40 CFR Part 25 and made applicable to state review and revision of water quality standards.


A brief history of the revisions to 401 KAR 10:031 that have been submitted to your office for approval, illuminates the numerous ways that the Cabinet has violated the public participation requirements of 40 CFR 131.20 and 40 CFR Part 25.

On September 1, 2012, the Cabinet proposal to amend the current water quality standards in 401 KAR 10:031 was published in the Administrative Register of Kentucky, triggering a 30-day comment period and opportunity for public hearing on the proposed revisions.

With respect to the acute and chronic water quality standards for waterbodies designated as warm water aquatic habitat (the default classification of waterbodies in the Commonwealth), the Cabinet proposed no change to the then-existing chronic standard for selenium of 5 ug/l (as measured in the water column), and proposed to remove the acute standard of 20 ug/l, with no replacement acute standard.

No notice was provided by the Cabinet during the comment period indicating that it contemplated the adoption of any new acute standard. The Cabinet did not solicit comments on a new acute standard, and the Cabinet gave no indication that a new acute selenium standard was being contemplated. Similarly, the Cabinet gave no indication that it was developing and would seek to include in the regulation, after the conclusion of the public comment process a new methodology for measuring selenium concentration and a new chronic selenium water quality standard.

After the comment period concluded, the Cabinet developed and filed on November 14, 2012 with the Legislative Research Commission of the Kentucky General Assembly, as required by Ky. Rev. Stat. Chapter 13A, a ?statement of consideration” of comments received. Consistent with KRS Chapter 13A, the revised regulation was then referred by the Legislative Research Commission to the Administrative Regulation Review Subcommittee, for review of the form and content of the regulation. Nothing in the Statement of Consideration provided fair notice to the reader that a new acute standard would be proposed after the end of the comment period, nor was any indication provided that a new chronic criteria and methodology was under development.

By letter dated February 5, 2013, a mere six (6) days before that Subcommittee was to meet to review the regulation, the Cabinet sent a letter to the co-Chairs of that Subcommittee requesting that the Subcommittee allow a new amendment to be made to the regulation that adopted a new acute selenium water quality standard of 258 ug/l as measured in the water column, and an entirely new methodology for the chronic selenium criteria based on fish tissue concentrations of 8.6 ug/g for whole fish tissue or 19.2 ug/g for fish egg/ovary tissue, and converting the former regulatory standard of 5 ug/l in the water column standard to a “trigger” for requiring that a discharger to conduct the fish tissue or egg/ovary sample collection and analysis. A document captioned Update to Kentucky Water Quality Standards for Protection of Aquatic Life: Acute Selenium Criterion and Tissue-based Selenium Chronic Criteria, also dated February 5, 2013 and never-before released for public review and comment, accompanied the request to the Subcommittee for adoption of the proposed changes to the acute and chronic selenium criteria.

Because of the 11th-hour nature of the Cabinet submittal, and the dramatic departure from existing standards and methodology for determining compliance with water quality criteria, the undersigned were at a distinct disadvantage in reviewing and commenting on the proposal. Nevertheless, significant technical concerns were identified with the proposed revised standards and were conveyed to the Subcommittee by letter dated February 11, 2013. That letter, as well as an addendum highlighting additional concerns identified since that time, is attached for your review. Irrespective of those major substantive flaws, however, the undersigned ask that the triennial review submittal be rejected for significant procedural noncompliance with 40 CFR Part 25 that thwarted effective public participation and made a mockery of the regulatory obligations contained therein.

We are aware that the Clean Water Act does not provide for an official notice and comment period in connection with EPA’s consideration of a state’s triennial review submission, since the Act and EPA regulations contemplate a robust public participation process prior to a submittal. In this instance, we ask that you reject the Cabinet’s deficient submittal, and require compliance with 40 CFR Part 25 prior to any resubmittal of the proposed changes.

In the event that your office determines not to reject the Cabinet filing for want of compliance with 40 CFR 131.20 and 40 CFR Part 25 and instead conducts a substantive assessment of the revised selenium standards, we ask that you consider the attached comment letter and addendum detailing the numerous flaws in the proposed standards and methodology, and that you reject the Cabinet’s amendments to 401 KAR 10:031 as failing to assure protection of aquatic life and of other values as required by the Clean Water Act.

The Cabinet’s Actions Violate Mandatory Requirements of 40 CFR 25.5 and 40 CFR 131.20, And Require EPA To Reject the Submittal For Want of Such Compliance

It is apparent after a review of the manner by which the Cabinet developed the acute and chronic selenium standards, that the May 23, 2013 Cabinet submittal must be rejected as being inconsistent with 40 CFR 131.20 and 40 CFR Part 25.

The Cabinet’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 Cabinet “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.”

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), and demands of the state 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."

(Emphasis added).

It is apparent that the Cabinet's actions do not conform to these mandatory requirements, since neither the proposed revisions to the acute and chronic selenium water quality standards, nor the “supporting analysis” contained in the February 5, 2013 document Update to Kentucky Water Quality Standards for Protection of Aquatic Life: Acute Selenium Criterion and Tissue-based Selenium Chronic Criteria were not made available prior to the hearing on the revisions to 401 KAR 10:031 that was held on September 27, 2012.

The Cabinet’s actions violated other mandatory requirements of your agency’s regulations as well. As you know, 40 CFR Part 25, provides the minimum standards for notice and hearings that the states must follow under the Clean Water Act, providing that “[a]ny non-adjudicatory public hearing, whether mandatory or discretionary . . . 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[.]” 40 CFR 25.5(a).

KRS Chapter 13A, which governs the adoption and amendment to administrative regulations by the Cabinet and other administrative agencies in the Commonwealth of Kentucky, is not “more stringent” in its requirements than those of 40 CFR 25.5, so that the regulation governs the minimum obligations of the Cabinet in the development of revisions to the state water quality standards.

40 CFR 25.5(b) establishes the minimum requirements for notice of hearings, and demands that

"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."

The Cabinet actions violated 40 CFR 25.5(b) since no notice was given, whether 30 or 45 days prior to the September 27, 2012 hearing, that new acute and chronic selenium standards were being developed and would be proposed for inclusion in the revised 10:031, nor were the report and data relevant to the new criteria made available to the public 30 days before the hearing. No request was made to waive these requirements, nor has any emergency that would possibly justify abridging the public right to notice and comment been documented.

40 CFR 25.5(e) governs the conduct of hearings, and demands, among other things, that “[t]he 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 Cabinet violated this requirement by failing to inform the audience at the hearing of the proposed revisions to the acute and chronic water quality criteria for selenium.

The Cabinet’s Belated Acceptance Of Public Comments Did Not Cure The Violations of 40 CFR 131.20 and 40 CFR 25.5

It is apparent that the Cabinet failed to provide for public participation in its decision-making process as required by federal regulation, when revising Kentucky’s selenium standards. The Cabinet’s proposed changes to Kentucky’s water quality standards published on September 1, 2012 consisted only of a proposal to withdraw the acute selenium standard, which EPA rightly informed the Cabinet was unacceptable. The September 2012 revisions did not include or even hint at the current proposals to increase the acute standard more than twelve-fold or to replace the current chronic water column criterion with a set of weak, difficult to enforce, tissue-based criteria. The September 2012 public process thus provided no opportunity for input on the actual proposed revisions to the selenium standard that have now been submitted to EPA.

Nor did the belated and limited opportunity for comment “cure” the lack of opportunity for meaningful public input. The Cabinet provided notice to the public of the current proposed revisions on February 5, 2013, less than a week prior to the February 11, 2013 hearing before the Administrative Regulations Review Subcommittee. On February 12, 2013, the day after the Subcommittee requested the agency defer Subcommittee action on the regulation, and expressed displeasure with the Cabinet’s actions, the Cabinet provided notice that it would be accepting public comment on the proposed criteria through March 1, 2013, and held two “stakeholder” meetings on February 22 and 26, which were not open to the general public and which did not provide a forum for submitting official public comments. Those meetings do not constitute public hearings, and fail to meet the notice and participation requirements of 40 CFR 25.5. Such a short time is insufficient to allow the public to develop complete comments on the very complex, technical issues involved in the Cabinet’s weakening of Kentucky water quality standards. To properly develop such comments, the public needs time to solicit and incorporate the views of experts in the complex field of selenium toxicity. The after-the-fact opportunity for meeting with the Cabinet remains in violation of 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.

Even if the Cabinet had provided adequate notice for the belated comment period, its process was nevertheless deficient because the opportunity for public input came after the agency had completed the regulation development process. According to 40 CFR 25.3 “[p]ublic participation includes providing access to the decision-making process, seeking input from and conducting dialogue with the public, assimilating public viewpoints and preferences, and demonstrating that those viewpoints and preferences have been considered by the decision-making official.” The regulation makes clear that “[m]erely conferring with the public after an agency decision” does not satisfy the agency’s obligations to involve the public in its decision-making process. 40 CFR 25.4(d).

The opportunities for the public to weigh in on the proposed changes to the selenium standards occurred only after the Cabinet had submitted the revisions to Administrative Regulation Review Subcommittee for incorporation into the regulation and approval. For that reason, public comments made before the ARRS also do not satisfy the Clean Water Act’s public notice and comment requirements. The hollow, after-the-fact comment period could not have allowed the agency to incorporate and respond to the public’s concerns as part of the regulation review process, and were not considered in the development of the revised standards. Accordingly, the Cabinet failed to carry out its obligations under federal law to provide meaningful public participation in the revision of Kentucky’s water quality standards.

The Cabinet’s Actions Also Constituted A Violation Of State Procedures And Failed To Provide “Fair Notice”

In addition to failing to meet mandatory requirements of 40 CFR 131.20 and 40 CFR Part 25 that preclude your agency from conducting substantive review of the proposed standards, the Cabinet process violated state administrative regulation development processes, and constitutes “arbitrary” action within the meaning of Kentucky Constitution Section 2 in that the procedural due process rights of the public were abridged by the failure to provide “fair notice” of proposed changes to the administrative regulations.

KRS Chapter 13A is designed to assure that an agency regulation (whether new, amended, or repealed) is subject to public notice and comment. The Cabinet’s actions plainly violated both the letter and spirit of KRS Chapter 13A and deprived the public of due process, in violation of Kentucky Constitution Section 2, which prohibits arbitrary government action. No notice of any kind was provided that the Cabinet intended to adopt a new acute selenium standard to replace the one that was proposed for deletion, and no comment was solicited concerning a new acute standard. Likewise, no change in the chronic standard was proposed, nor could one have been reasonably anticipated. The suggestion that the public was somehow on notice that the Cabinet would circumvent state and federal regulations by proposing these new standards in response to EPA comments during the comment period, is not credible, since the public has (or at least had at the time, with respect to the Cabinet’s actions in this instance) every reason to expect that any agency will act within the boundaries of state and federal regulations in revising state water quality standards.

The agency, by letter dated February 5, 2013, asked the Subcommittee to modify a final rule that had been published as “amended after hearing,” in order to incorporate a new acute and chronic selenium water quality standard, when the proposed rule proposed only to delete the acute standard and gave no notice of an intent to change the chronic standard in any manner. The proposed incorporation of these new standards into a regulation that had already undergone public notice and comment, and for which the final rule had been published, violates a number of requirements of KRS Chapter 13A, in addition to constituting “arbitrary” governmental action in derogation of Kentucky Constitution Section 2. Among the requirements that were not complied with were:

• The lack of a regulatory impact analysis of the proposed adoption of new acute and chronic selenium standards that would provide every person who has requested notice of regulatory amendments with an analysis “completed in detail sufficient to put the individual on notice as to the specific contents of the administrative regulation, including all proposed amendments to the administrative regulation.”

• The lack of federal mandate analysis for the change;

• The lack of consideration of costs to the government, which is replacing a “water column” water quality standard, compliance with which can be determined at a fraction of the costs of conducting a fish tissue analysis in order to determine compliance,

• The failure to provide advance notice of the intended changes to the regulation so that the public hearing would be conducted so “as to guarantee each person who wishes to offer comment a fair and reasonable opportunity to do so[.]”

Obviously, a substantive change to water quality standards that has not been included in the published proposed regulation amendment, and has not been specifically described so as to put the individual on notice, deprives that person of the guarantee of “fair notice” and an reasonable opportunity to comment on the proposed amendment.

In order to protect the integrity of the triennial review and state administrative regulation process and to assure that the public participation rights established under 40 CFR 131.20 and Part 25 for all interested parties, including those whose interests in the use and enjoyment of Kentucky’s waterways are protected, we respectfully request that you reject the Cabinet’s revisions to 401 KAR 10:031 and decline to conduct any substantive review of the May 23, 2013 submittal until the Cabinet adopts any changes in a manner consistent with mandatory public participation requirements attendant to such proposed changes. Please contact us with any questions you may have regarding the deficiencies in Kentucky’s submission.



Mary Varson Cromer, Staff Attorney
Appalachian Citizens Law Center, Inc.

Ben Luckett, Staff Attorney
Appalachian Mountain Advocates, Inc.

Alice Howell, Chair
Cumberland Chapter, Sierra Club

Suzanne Tallichet, Chair
Kentuckians for the Commonwealth

Tom FitzGerald, Director
Kentucky Resources Council, Inc.

Tim Joice, Water Policy Director
Kentucky Waterways Alliance

Peter Morgan
Environmental Law Program
Sierra Club
By Kentucky Resources Council on 06/24/2013 5:32 PM
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