1. Environmental Quality Commission Annual Meeting June 5, 2013 Selenium WQS
WQB Programs:
TMDL, 401 WQC, Monitoring and Assessments, Integrated Report/303d Impaired Waters List, Triennial Review, Water Quality Standards, Wild Rivers
Clark Dorman, Manager
Water Quality Branch
KY Division of Water Ph

2. Some Quick Clean Water Act Basics

3. Where does Clean Water Act enforcement Begin?

4. US Army Corps of Engineers
Jurisdictional Waterbody, Waters of the US, Navigable Water, Waters of the Commonwealth (ephemeral, intermittent, perennial, wetlands)
US Army Corps of Engineers

5. 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.

6. Kentucky Water Quality Standards (Criteria) Regulations
401 KAR 10:001 – Definitions
401 KAR 10:026 – Designated uses of surface waters
401 KAR 10:029 – Antidegradation Policy and general provisions (mixing zones, variance, etc)
401 KAR 10:030 – Antidegradation procedures
401 KAR 10:031 – Surface water standards
Mission Statement
The Kentucky Watershed Framework will serve as a means for coordinating and integrating the programs, tools, and resources of stakeholders to better protect, maintain, and restore the ecological composition, structure, and function of watersheds and to support the sustainable uses of watersheds for the people of the Commonwealth.
Goals
The Kentucky Watershed Management Framework is designed to facilitate an approach that focuses on meeting individual program goals to one that can achieve watershed- based goals. The Framework design reflects the following watershed resource management goals:
• Protect and enhance public health and safety.
• Conserve and enhance watershed ecosystems.
• Support sustainable watershed resource use that meets water quality standards and conservation goals.
• Reduce or prevent pollutant loadings and other stressors in watersheds.
• Preserve and enhance esthetic and recreational values of watersheds.
• Provide adequate water supply to support sustainable human use and ecological integrity.

7. 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
Many potential Dus. WQS can be numeric or narrative.
Antidegradation: Protect existing uses, high quality, OSRWs, ONRWs

8. 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)

9. Triennial Review Process
CWA, Sec 303(c), 40CFR130.5(b)(6) requires periodic examination and update of state’s water quality standards
Stakeholder process crucial
Public Hearing required
Legislature must approve any changes to standards
EPA must approve any changes to standards
Last KY Triennial Review: 2008

10. KY Triennial Review 2012 Triennial 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

11. Se A necessary element for most organisms
A component of multi-vitamins
Naturally 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)

13. Purpose of Se Criteria
Provides assurance that aquatic life and habitat is protected with regard to potential acute and chronic toxicity effects
Protect the Designated Use of a waterbody

14. Existing Se Criteria 20 micrograms/liter acute;
5 micrograms/liter chronic
Current 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

15. 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

16. Complex and confounding relationships between varying hydrologic conditions
Differential toxicity of selenium species

17. 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

18. Proposed Se Criteria
Acute: 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.

19. Proposed Se Criteria
Only the second KY state specific criteria developed (Chloride in the 80’s)
The Cabinet utilized 20 yrs and 80 studies of scientific research
The cabinet coordinated and conferred with EPA (headquarters and Region IV)
The cabinet coordinated and conferred with US Fish and Wildlife
The cabinet coordinated and conferred with multiple resources in the scientific community

20. 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 and
Tissue-Based Selenium Chronic Criteria
Randall G. Payne, Environmental Scientist
KY Division of Water
Department for Environmental Protection
Kentucky Cabinet for Energy and Environment

21. Common Questions

22. What if there are no fish?
We have a problem
The default 5 μg/l becomes the compliance criteria.

23. 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.

24. 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.

25. 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

26. What Happens Next?
KY Legislature has accepted the changes to regulation
The proposed regulation package has been sent to EPA for a 60 to 90 day review period.
EPA will make a final determination

27. Additional Questions ?

28. K-DOW!!! Additional News Floyds Fork Bacteria TMDL PN this summer
Floyds Fork Nutrient TMDL: model and destiny in KY’s hands
Waste Water Lab Certification Program is getting underway this summer
Update on One-Step Removal Process coming this summer
Integrated Report (303d List) will be out this summer
KDOW will be upgrading its website especially in relation to Integrated Reporting, TMDL development, public involvement
General Industrial SW Permit this summer

29. 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

30. Clark Dorman, Manager
Water Quality Branch
KY Division of Water Ph