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EPA Fully Approves Kentucky’s Revised Antidegradation Regulation

12.01.2011

The Kentucky Division of Water (DOW) revised its antidegradation regulation on several occasions over the past few years in attempts to obtain full EPA approval of the water quality standard.  The DOW antidegradation regulation has been controversial for over a decade.  Various aspects of exemptions included in a prior version of the regulation that was approved by EPA were successfully challenged in litigation in Kentucky Waterways Alliance, et al. v. Johnson, et al., 540 F.3d 466 (6th Cir. 2008).  Recent amendments to the antidegradation regulation were intended to address the deficiencies in the regulation identified by the Sixth Circuit Court of Appeals, as well as concerns with DOW’s replacement regulation that were identified by EPA in November 2010.  The most recent amendments to the antidegradation regulation were published April 14, 2011 and became effective on August 5, 2011.  On October 5, 2011, EPA fully approved the revised antidegradation regulation for all purposes of the Clean Water Act, thus potentially ending many years of controversy on the content of the regulation.  It is not known whether any group or entity will seek to challenge the EPA approval determination.

As discussed in prior issues of the Greenebaum Environmental Letter, Kentucky’s newly amended and now fully approved antidegradation regulation is certainly more stringent than prior versions of the regulation.  However, key aspects of the regulation are still opposed by environmental interest groups since it does not provide for parameter-by-parameter review of pollutants for new or expanded discharges in all cases.  Rather, the regulation provides for a waterbody designational approach to antidegradation review, which has been utilized (and fought for) by DOW for over a decade.  In this regard, heightened antidegradation review does not apply to waterbodies that are designated as impaired for applicable designated uses under DOW’s Clean Water Act Section 305 Report.

One of the first significant tests of how the new antidegradation provisions will be applied may arise in the context of reissuance of general Kentucky Pollution Discharge Elimination System (KPDES) permits for stormwater runoff from various categories of industrial activity.  As the de minimis exemption for activities that do not consume more than 10 percent of the available assimilative capacity of a receiving water has been eliminated, except on a cumulative cap basis, DOW will be required to demonstrate in the Fact Sheet of the reissued general KPDES permit how the permit complies with the alternative analysis and socioeconomic demonstration requirements set forth in the antidegradation regulation for new and expanded discharges to exceptional and high quality waters.  Alternatively, DOW may require additional information, including a socioeconomic demonstration and alternative analysis (SDAA) to be submitted by a proposed discharger with a notice of intent to obtain general KPDES permit coverage for such discharges.  Such a demonstration requires an evaluation of the least degrading feasible wastewater treatment alternative that would minimize any lowering of water quality for new or expanded discharges to exceptional or high quality waters.  The same demonstration will need to be made for individual KPDES permits that involve new or expanded discharges to exceptional or high quality waters.


To view a complete PDF of the Third/Fourth Quarter 2011 issue of the Environmental Letter, click HERE.

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