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Kentucky Division of Water Makes Further Changes to Draft Wastewater Laboratory Certification Regulation; Readies Proposed Regulation for Filing

11.13.2012

By Kelly D. Bartley, Attorney, Bingham Greenebaum Doll LLP

On October 26, 2012, the Division of Water (DOW) held its latest stakeholder meeting regarding its development of a wastewater laboratory certification program.  As reported in previous issues of the Environmental Letter, pursuant to 2011 legislation enacted by the Kentucky General Assembly, DOW has been crafting a proposed program to require laboratories -- including in house laboratories -- that provide wastewater testing services for the purpose of demonstrating compliance with Kentucky Pollutant Discharge Elimination System (KPDES) wastewater discharge permits to be certified to the operational, performance and quality control standards otherwise applicable to compliance testing performed under those permits.   A series of meetings have been held over the past year allowing interested stakeholders, including the Kentucky Chamber of Commerce and Kentucky Association of Manufacturers, to provide input into the requirements of the program.  Although DOW originally planned to file a proposed regulation setting out the requirements of the program earlier this year, substantial comments on the scope, form, and fees associated with the program have delayed filing. 

At the last stakeholder meeting, DOW reported that it intends to circulate one additional draft of the proposed regulation as well as the wastewater laboratory certification manual to be incorporated therein to the stakeholder group but does not intend to hold further stakeholder meetings regarding the program and thus will accept further informal comments on the next draft only by e-mail.  DOW reports that it plans to file a final proposed regulation package with the Legislative Research Commission for formal public comment by December 15, 2012.  If the agency adheres to that schedule and faces no delays in the promulgation process, a final regulation could be effective as early as March 2013, although certification under the program would not be required until one year thereafter. 

Issues of concern regarding the proposed program as raised at recent stakeholder meetings include the certification requirements applicable to analyses of field parameters including dissolved oxygen, pH, temperature, conductivity, turbidity and flow; the required frequency of certification (annually versus biannually); the extent to which analyst and instrument capability must be demonstrated for analyte testing methods in order to obtain certification; the circumstances under which DOW will accept certifications from other states or boards as equivalent to DOW certification requirements; the fees  associated with the program; and the format of the regulation.

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

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