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Kentucky Division of Water Considering Comments Filed on its Triennial Review of Water Quality Standards

11.13.2012

As reported in the July/August 2012 Bingham Greenebaum Doll Environmental Letter, the DOW filed its proposed changes to its water quality standards as part of its Triennial Review on August 15, 2012.  The public comment period remained open through October 1, 2012.  The key amendments to the water quality standards related to the narrative surface water standard for nutrients at 401 KAR 10:031 Section 1 and a proposal to delete the acute criterion for selenium at 401 KAR 10:031 Section 3.

DOW received 16 sets of comments from industry, municipal and environmental interest groups and agencies on the proposed regulations.  Most of the comments focused on the proposed revisions to the narrative water quality standard for nutrients.  In general, environmental interest groups opposed the changes and contended they represented a relaxation, as opposed to a clarification, of the standards.  Industry largely supported the changes to the narrative water quality standard for nutrients, but requested additional clarification that discharges of wastewaters containing nutrients would only be subject to limitation if the discharge caused or contributed to an eutrophication problem.  EPA appeared to support the clarifications of the narrative standard, but also strongly recommended that DOW consider the development of numeric nutrient criteria for nitrogen, phosphorus, chlorophyll-a, and water clarity.

EPA opposed DOW’s proposal to eliminate the warm water aquatic habitat acute criterion for selenium, even though the standard is documented as not being scientifically sound.  EPA noted that it had not withdrawn its criteria document for either the acute or the chronic criterion for selenium and argued that DOW must maintain an acute criterion for selenium.  However, EPA noted that DOW could propose a criterion based on scientifically defensible information or it could adopt the acute criterion formula from the current national recommended guidance.  EPA recommended that DOW leave the current criterion in place until EPA releases its long anticipated revised criteria guidance.  EPA also questioned why DOW had not included selenium as a biocumulative chemical of concern.  Of interest, none of the environmental interest groups provided comments on the proposed change to the acute criterion for selenium.

DOW must file its Statement of Consideration of the comments on or before November 15, 2012.  It appears likely that the proposed Triennial Review regulations will receive considerable scrutiny from the General Assembly’s Joint Committee on Natural Resources and the Environment.

To view a complete PDF of the September/October 2012 issue of the Environmental Letter, click HERE.

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