Environmental Quality Commission Annual Meeting

June 5, 2013Selenium WQSClark Dorman, Manager

Water Quality BranchKY Division of Water

Ph. 502-564-3410clark.dorman@ky.gov

Some Quick Clean Water Act Basics

Where does Clean Water Act enforcement Begin?

Jurisdictional Waterbody, Waters of the US, Navigable Water,

Waters of the Commonwealth

(ephemeral, intermittent, perennial, wetlands)

US Army Corps of Engineers

401 KAR10:001, Section 1

(80) "Surface waters" means those waters having well-defined banks and beds, either constantly or intermittently flowing; lakes and impounded waters; marshes and wetlands; and any subterranean waters flowing in well-defined channels and having a demonstrable hydrologic connection with the surface. Lagoons used for waste treatment and effluent ditches that are situated on property owned, leased, or under valid easement by a permitted discharger are not considered to be surface waters of the commonwealth.

Kentucky Water Quality Standards (Criteria) Regulations

401 KAR 10:001 – Definitions401 KAR 10:026 – Designated uses of surface

waters401 KAR 10:029 – Antidegradation Policy and

general provisions (mixing zones, variance, etc)

401 KAR 10:030 – Antidegradation procedures401 KAR 10:031 – Surface water standards

Antidegradation: Protect existing uses, high quality, OSRWs, ONRWs

Clean Water Act

Designated Use: State’s

management goals for

a waterbody 401KAR10:

026

Criteria (water quality

standards): Exist to protect

Designated Uses

401KAR10:031

Permit Limts: Derived from and comply

with WQS

Designated Uses

401KAR10:026 Aquatic Life (WAH, CAH) Primary Contact Recreation Secondary Contact Recreation Domestic Water Supply OSRW Fish Consumption (implied in 10:031)

All waters not stipulated with designated uses in 401KAR10:026 default to High Quality waters (PCR, SCR, WAH, DWS)

Triennial Review ProcessCWA, Sec 303(c), 40CFR130.5(b)(6) requires

periodic examination and update of state’s water quality standards

Stakeholder process crucialPublic Hearing requiredLegislature must approve any changes to

standardsEPA must approve any changes to standardsLast KY Triennial Review: 2008

KY Triennial Review 2012Triennial Review of WQS

14 Exceptional Waters (10:030) 26 OSRWs Designated Uses(10:026)401 KAR10:031

New criterion: acrolein (building block for industrial chemical products) and phenol (building block for petroleum products)

Sec. 1(nutrients narrative in combination with 401KAR10:001- Definition of eutrophication)

Sec 9 (Ohio River-D.O.) Selenium (Se):Acute Criterion withdrawn State

Specific Criteria

SeA necessary element for most organismsA component of multi-vitaminsNaturally occurring in KY geology, but found

in higher concentrations in parts of eastern KY and West Virginia coal fields

Transported via water run-off of exposed geology (coal fields, transportation projects, major construction sites)

Purpose of Se CriteriaProvides assurance that aquatic life and

habitat is protected with regard to potential acute and chronic toxicity effects

Protect the Designated Use of a waterbody

Existing Se Criteria20 micrograms/liter acute; 5 micrograms/liter chronicCurrent criteria based on an equation that accounts for

percent fraction of selenate and selenite in the water column

Criteria adopted in 1990 from EPA National Recommended Water Quality Criteria

Criteria developed from a single study (Belews Lake, NC)

US Court of Appeals vacated (1996) national acute criteria for lack of sound science and technical merit. ORSANCO as well as several states have or are in the course of vacating

Why change Se criteria?20 years of scientific studies have demonstrated

differential acute water quality toxicity levels for selenate and selenite (chemical species of Se)

This science has demonstrated that chronic water quality concerns are more appropriately expressed as fish tissue criteria

Differences in toxicity between selenate and selenite

Toxicity to aquatic life is a result of dietary uptake (not water column)

Sulfate modifies potential acute toxicity effects of slenate

Complex and confounding relationships between varying hydrologic conditions

Differential toxicity of selenium species

In September, 2012, KY initially proposed to delete the acute criteria all together.

Response to comments during the Triennial Review prompted the Cabinet to revise the acute criteria

Proposed Se CriteriaAcute: 258 μg/l (current EPA recommended

criterion), with sulfate modifier equation for selenate

Chronic: 5 μg/l. If wastewater discharge levels exceed 5 μg/l, whole body fish tissue (8.6 μg /g) or egg/ovary tissue (19.3 μg /g) analysis will be required.

These criteria are designed to protect stream designated uses and instream aquatic life before a problem occurs.

Proposed Se CriteriaOnly the second KY state specific criteria

developed (Chloride in the 80’s)The Cabinet utilized 20 yrs and 80 studies of

scientific researchThe cabinet coordinated and conferred with

EPA (headquarters and Region IV)The cabinet coordinated and conferred with

US Fish and WildlifeThe cabinet coordinated and conferred with

multiple resources in the scientific community

For a fascinating late night read, you can download or request:

Update to Kentucky Water Quality Standards for Protection

of Aquatic Life: Acute Selenium Criterion andTissue-Based Selenium Chronic Criteria

Randall G. Payne, Environmental ScientistKY Division of Water

Department for Environmental ProtectionKentucky Cabinet for Energy and Environment

http://water.ky.gov/waterquality/Pages/WaterQualityStandards.aspx

Common Questions

What if there are no fish?We have a problemThe default 5 μg/l becomes the compliance

criteria.

Why were fish like fathead minnow, bluegill, and catfish used in scientific studies as opposed to dace, darters, and shiners?Very similar to the methods employed for human

toxicology studies, surrogates such as white rats and monkeys are used in place of humans. These fish species are surrogates and representative of the species that exist in these streams.

What about multiple dischargers in the same watershed?Potential dischargers to OSRWs, Exceptional

Waters, and Impaired waters are required to have an individual KPDES permit. Entities with individual KPDES permits are now required to perform in-stream pre-monitoring of at least one year to determine baseline conditions.

Did the Cabinet adhere to appropriate administrative process?

The Cabinet adhered to Kentucky Revised Statute 13A requirements

The Cabinet adhered to federal 40 CFR Part 25.10(b) procedural requirements

The Cabinet provided public notice and opportunity for input through multiple venues

What Happens Next?KY Legislature has accepted the changes to

regulationThe proposed regulation package has been

sent to EPA for a 60 to 90 day review period.EPA will make a final determination

Additional Questions

?

K-DOW!!!Additional News

Floyds Fork Bacteria TMDL PN this summerFloyds Fork Nutrient TMDL: model and destiny in KY’s

handsWaste Water Lab Certification Program is getting

underway this summerUpdate on One-Step Removal Process coming this summerIntegrated Report (303d List) will be out this summerKDOW will be upgrading its website especially in relation

to Integrated Reporting, TMDL development, public involvement

General Industrial SW Permit this summer

How can EQC assist KDOW?Riparian Buffers and Wetlands Promotion

• Are the best tools to address NPS runoff• Provide improvements to water quality via temperature

control, habitat (aquatic and terrestrial), stream bank stabilization, pollutant filtration

• Assist with climate change mitigation• Air pollutant uptake• Noise Control• Dust Control• Stormwater management• Flood control

Clark Dorman, ManagerWater Quality BranchKY Division of Water

Ph. 502-564-3410clark.dorman@ky.gov