Opening Comments by Mr. McGill 117  131 Statement by Tom Vierheller 131  134 Statement by Ron Colwell 134  138 Statement by William E. Flaherty 139  140 Statement by Beverly Juett 140  142 Statement by Jerry Junker 142  144 Statement by William Montgomery 145  146 Statement by Judith Petersen 146  154 Statement by Becky Raff 155  158 Statement by Dwight Fitch 159  162 Closing Discussion 163  166 Court Reporter's Certification 167 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 5 MR. McGILL: Good afternoon, 1 ladies and gentlemen. I am Thomas McGill and I am 2 Chief of the West Standards, Monitoring and TMDL 3 Section of the Water Management Division of the EPA 4 Region 4 Office in Atlanta, Georgia. 5 This hearing is being held to receive 6 public comments on proposed water quality standards for 7 the Commonwealth of Kentucky. EPA proposed the water 8 quality standards for the Commonwealth in the Federal 9 Register on November 14, 2002. The information from 10 this hearing will be used by EPA to review the proposed 11 water quality standards and the methodologies to be 12 used by the Commonwealth in the implementation of the 13 standards. 14 Background information on EPA's proposed 15 action is included in a Fact Sheet that is available at 16 the registration table. Also, a copy of the November 17 14, 2002 Federal Register which contains the text of 18 EPA's proposed rule and the supporting preamble to the 19 proposal, is available at the registration table. 20 If you have not filled out a 21 registration form, please do so, as that is how I will 22 know that you would wish to speak. This hearing will 23 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 6 be held in two sessions: from 2: 00 o'clock until 5: 00 1 o'clock this afternoon, and from 7: 00 o'clock until 2 10: 00 o'clock this evening. If you are planning to 3 speak today, please specify on the registration form if 4 you are only available for one of the sessions, or for 5 a limited time during one of the sessions. We will try 6 to make sure that you are called to speak during those 7 times. After I have explained the ground rules for the 8 hearing and a few details about how EPA will use the 9 information gathered today, I will begin to call the 10 names of those people who have expressed an interest in 11 making comments during the hearing. 12 This public hearing was announced on 13 November 18, 2002 in the Louisville Courier Journal, 14 and on November 20, 2002 in the Lexington Herald 15 Leader. A notice of this hearing was also announced in 16 the Federal Register, Volume 67, Number 220, on 17 November 14, 2002. These notices stated that EPA is 18 requesting that written information and other data be 19 submitted to EPA by March 14, 2003. These written 20 comments should be directed to Mr. Fritz Wagener at EPA 21 Region 4, Atlanta Federal Center, Water Management 22 Division, 61 Forsyth Street, Southwest, Atlanta, 23 Georgia 30303. This address is also listed on the Fact 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 7 Sheet available at the registration desk. The Federal 1 Register Notice also describes other ways that comments 2 may be submitted to EPA, including comments submitted 3 by E Mail, by hand delivery or courier, and by 4 commenting through EPA's Internet web site at 5 www. epa, gov/ edocket. The Federal Register Notice also 6 contains instructions on how to review EPA's official 7 public docket for this proposal. The docket can be 8 reviewed either at EPA's Region 4 Office in Atlanta, or 9 on EPA's Internet site. I encourage you to read the 10 Federal Register notice for a full explanation of how 11 to view the docket online. 12 Although the proceedings of this hearing 13 are being recorded and a transcript will be included in 14 the administrative record, I also ask that you leave a 15 copy of your comments if you have prepared a printed 16 version. 17 Based on the number of requests to 18 speak, I ask that you use a general rule of thumb that 19 presentations not exceed a maximum of ten minutes. 20 This should allow time for everyone to speak within the 21 time available. 22 In the event that we were to get a 23 significant number of speakers, it is possible that I 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 8 may ask you to reduce the time in which you speak to 1 less than ten minutes but we'll see how that goes. 2 We will make every effort to allow each 3 person who has requested to make a statement to have an 4 opportunity to speak today at this hearing. If 5 necessary, we may extend the hearing during all or part 6 of the time between 5: 00 and 7: 00 this evening. I will 7 make an announcement later during the afternoon session 8 should that become necessary. 9 I also ask that you keep your 10 presentations on the topic that is the subject of this 11 hearing, which is information that relates to the 12 proposed antidegradation policy and implementation 13 methods for the policy for the Commonwealth of 14 Kentucky. I may interrupt and cut short, if necessary, 15 any oral presentations exceeding this limit or outside 16 the scope of this hearing. There may be times that I, 17 or other EPA representatives with me today, may ask 18 questions of those of you making comments to EPA where 19 it is necessary to clarify the nature or substance of 20 the comments. 21 Section 303( c) of the Clean Water Act 22 directs states, with oversight by EPA, to adopt water 23 quality standards to protect public health and welfare, 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 9 enhance the quality of water and serve the purposes of 1 the Act. Under Section 303, States have the primary 2 responsibility to establish water quality standards, 3 which are defined as designated uses, or use goals, of 4 a water segment, the water quality criteria to support 5 those uses, and an antidegradation policy applicable to 6 all state waters. The Act specifies the minimum 7 beneficial uses to be considered by states in 8 establishing water quality standards as public water 9 supplies, propagation of fish and wildlife, recreation, 10 agricultural uses, industrial uses and navigation. 11 Also, Section 101( a)( 2) of the Clean Water Act states, 12 "... it is the national goal that wherever attainable, 13 an interim goal of water quality which provides for the 14 protection and propagation of fish, shellfish, and 15 wildlife and provides for recreation in and on the 16 water." 17 Section 303 of the Act also includes a 18 requirement that states review their standards at least 19 once every three years using a process that includes 20 public participation and EPA review of the state 21 adopted standards. Under Section 303( c), EPA is 22 required to either approve new or revised state 23 standards that meet the requirements of the Act, or 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 10 disapprove standards that fail to meet those 1 requirements. Where EPA takes an action to disapprove 2 a state standard, section 303( c)( 4)( A) of the Act 3 states that EPA is to promptly propose substitute 4 federal standards and promulgate federal standards 5 within 90 days thereafter. 6 EPA's regulation at 40 CFR 131.12 7 requires that States and authorized Tribes adopt 8 antidegradation policies and identify implementation 9 methods to provide three levels of water quality 10 protection. The first level of protection at 40 CFR 11 131.12( a)( 1) requires the maintenance and protection of 12 existing instream water uses and the level of water 13 quality necessary to protect those existing uses. 14 Protection of existing uses is the floor of water 15 quality protection afforded to all waters of the United 16 States. Existing uses are "... those uses actually 17 attained in the water body on or after November 28, 18 1975, whether or not they are included in the water 19 quality standards." 20 The second level of protection is for 21 high quality waters. High quality waters are defined 22 in 40 CFR 131.12( a)( 2) as waters where the quality of 23 the waters is better than the levels necessary to 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 11 support propagation of fish, shellfish, and wildlife 1 and recreation in and on the water, in other words, the 2 Section 101( a)( 2) goal uses of the Clean Water Act. 3 This water quality is to be maintained and protected 4 unless the State or authorized Tribe finds, after 5 public participation and intergovernmental review, that 6 allowing lower water quality is necessary to 7 accommodate important economic or social development in 8 the area in which the waters are located. In allowing 9 lower water quality, the state or authorized Tribe must 10 assure water quality adequate to protect existing uses. 11 Further, the State or authorized Tribe must ensure that 12 all applicable statutory and regulatory requirements 13 are achieved for all new and existing point sources and 14 all cost effective and reasonable best management 15 practices are achieved for nonpoint source control. 16 Finally, the third and highest level of 17 antidegradation protection is for outstanding national 18 resource waters or ( ONRWs). If a State or authorized 19 Tribe determines that the characteristics of a water 20 body constitute an outstanding national resource, such 21 as waters of National or State parks and wildlife 22 refuges and waters of exceptional recreational or 23 ecological significance, and designates a water body as 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 12 such, then those characteristics must be maintained and 1 protected. 2 The focus of EPA's November 14, 2002 3 proposed rule is the second level of antidegradation: 4 high quality waters. Paragraph ( 2) of 401 KAR 5: 029 5 section 1 of Kentucky's current water quality standards 6 contains the provisions of Kentucky's antidegradation 7 policy which addresses the requirements for waters with 8 quality that is better than the levels necessary to 9 support propagation of fish, shellfish and wildlife and 10 recreation in and on the water. Currently, Kentucky 11 limits the application of the high quality waters 12 provisions to waters designated by the Commonwealth as 13 " Exceptional Waters." Exceptional Waters are defined 14 in 401 KAR 5: 030, section 1.( 1)( b), as all surface 15 waters designated as a Kentucky Wild River; waters 16 designated as an Outstanding State Resource Water that 17 do not support a federally threatened or endangered 18 aquatic species; waters that contain a fish community 19 that is rated " excellent" by the use of Kentucky's 20 Index of Biotic Integrity; waters that contain a 21 macroinvertebrate community that is rated " excellent" 22 by Kentucky's Macroinvertebrate Bioassessment Index; 23 and any water in Kentucky's Natural Resources and 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 13 Environmental Protection Cabinet's reference reach 1 network. 2 In an August 7, 1997, letter, EPA Region 3 4 disapproved the Commonwealth's eligibility criteria 4 in 401 KAR 5: 030 section 1.( 3) for designating waters 5 to be given high quality water protection, and 6 specified the changes needed for EPA to approve a 7 revised water quality standard. In an October 9, 1997, 8 letter from the Kentucky Natural Resources and 9 Environmental Protection Cabinet to EPA Region 4, 10 Kentucky stated its intention to expand the universe of 11 high quality waters receiving added protection from the 12 effects of point source discharges regulated under a 13 KPDES program. Kentucky also indicated that the 14 revisions would be part of its next triennial review of 15 water quality standards. 16 Kentucky began its water quality 17 standards triennial review in October of 1998 with a 18 public notice of intent to update uses, revise numeric 19 criteria, strengthen mixing zone language, and to 20 respond to EPA's 1997 antidegradation disapproval. 21 After adoption of revisions to Kentucky water quality 22 standards on December 8, 1999, Kentucky submitted the 23 results of its triennial review to EPA on December 15, 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 14 1999. However, the revisions did not sufficiently 1 broaden the criteria to increase the number of eligible 2 waters for the exceptional waters category, consistent 3 with EPA's regulation at 40 CFR 131.12( a)( 2). 4 Therefore, on August 30, 2000, EPA Region 4 notified 5 the Commonwealth that the high quality waters 6 provisions of Kentucky's water quality standards 7 remained disapproved. 8 In a letter dated May 24, 2001, the 9 Kentucky Division of Water clarified that the 10 Exceptional Waters category is intended to provide a 11 higher level of protection than the level for other 12 high quality waters. Several States and authorized 13 Tribes have created an additional category of water 14 between high quality waters and ONRWs in their 15 antidegradation policy. Kentucky's exceptional waters 16 category generally includes more stringent controls 17 than those required for high quality waters, but allows 18 more flexibility to make adjustments in criteria and in 19 permitting decisions that would normally be allowed if 20 the water body were designated as an ONRW. EPA 21 believes such a category is consistent with the intent 22 and spirit of the antidegradation policy when 23 supplementing the high quality water and the ONRW 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 15 categories. 1 The Commonwealth has an active program 2 to identify candidates for the Exceptional Waters 3 category. The Kentucky Division of Water has 4 identified 133 segments, which cover approximately 567 5 stream miles, meeting the criteria for inclusion in the 6 exceptional waters category since the previous 7 triennial review completed in 1999. These waters have 8 been found to meet the exceptional waters criteria 9 based on ambient sampling in the Salt, Licking, Upper 10 and Lower Cumberland, Tennessee, and Mississippi river 11 basins. Many of these segments have been included in 12 Kentucky's Reference Reach network, and others have 13 been found to contain either fish or macroinvertebrate 14 communities rated as excellent using the Commonwealth's 15 assessment methodologies for evaluation of biological 16 integrity. However, as I outlined before, Kentucky has 17 no separate, readily identified high quality waters 18 category commensurate with the federal requirement at 19 40 CFR 131.12( a)( 2), which is the high quality waters 20 provision of the federal water quality standards 21 regulation. 22 As I stated previously, Section 303( c) 23 of the Clean Water Act authorizes the EPA Administrator 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 16 to promulgate water quality standards to supersede 1 State standards that have been disapproved, or in any 2 case where the Administrator determines that a new or 3 revised standard is necessary to meet the requirements 4 of the Act. It is these Section 303( c) authorities 5 that EPA used in releasing the proposed standards that 6 are the subject of today's hearing. 7 The citation for the proposed standards 8 in 40 CFR Section 131.39. Subsection ( a) is entitled, 9 " What antidegradation policy applies to high quality 10 waters in the Commonwealth of Kentucky?" Subsection 11 ( b) is entitled, " What are high quality waters?" 12 Subsection ( c) is entitled, " How will the Commonwealth 13 evaluate requests to lower water quality?" 14 In the November 14, 2002 notice of the 15 proposed rule, EPA asked for a comment on several 16 aspects of the proposed rule. 17 Regarding the definition of high quality 18 waters, the proposal would allow Kentucky to use 19 several types of data for the purpose of identifying 20 high quality waters, including both chemical and 21 biological data. EPA is soliciting comments on this 22 approach, which provides Kentucky broad latitude in 23 identifying high quality waters. EPA is also 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 17 soliciting comments on whether a final regulation 1 should limit the Commonwealth to a particular approach 2 in lieu of any others in identifying high quality 3 waters. 4 Regarding the implementation methodology 5 for evaluating proposed lowering of water quality, the 6 preamble to the proposed rule requests public comment 7 on two issues. 8 The preamble requests comment on whether 9 EPA should use Kentucky's current provisions for 10 Exceptional Waters as the implementing provisions to 11 evaluation proposed lowering of water quality to the 12 high quality waters addressed by EPA's proposal. 13 The preamble also requests comment on 14 whether Kentucky's detailed October 1, 1999, proposal 15 should be part of a final Federal regulation, or 16 whether this proposal should be used to implement the 17 broader regulatory language in today's proposed rule. 18 In addition, EPA is also requesting 19 comment on the issue of the level of detail contained 20 in the proposed rule language. Specifically, EPA 21 requests comment on whether the proposed rule, as 22 written, provides a sufficient level of detail and 23 adequate regulatory basis for the Commonwealth to 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 18 implement a final federal rule, given the statutory 1 authority constraints in the Commonwealth, or whether 2 some of the guidance set forth in the notice to the 3 proposal should instead be codified as part of a final 4 rule. 5 After March 14, 2003, which is the end 6 of the comment period, EPA will review all comments on 7 these and all other issues raised, as well as other 8 information available to the Agency on the proposed 9 rule. Based on the information available at that time, 10 EPA will determine if revisions to the proposed rule 11 are warranted. 12 I would now like to introduce the 13 hearing panel. On my right is Jennifer Wigal, EPA's 14 Office of Water in EPA's Headquarters. Also on my 15 right is Mr. Craig Higgason, Associate Regional Counsel 16 of EPA Region 4 Office of Regional Counsel. And on my 17 far right, also on the panel, is Mr. Fritz Wagener, who 18 is the Water Quality Standards Coordinator for EPA's 19 Region 4 Atlanta Office. 20 Given that as a general description of 21 the need and purposes for this hearing, I will now call 22 the first speaker. As we proceed with the hearing, I 23 would like to ask each person making a statement, to 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 19 step up to the microphone in the center of the room, 1 state his or her name, spelling it if necessary, and 2 state your interest or organization represented. 3 We have numbered the registration cards 4 in the order that they were turned in. So after the 5 elected officials, and which there are no elected 6 officials so far that have registered, I will call 7 others who have expressed an interest to speak. 8 I would like to please limit your 9 presentations to ten minutes in the interest of hearing 10 from everyone who has come to speak here today. 11 I hope I am saying this right. The 12 first speaker is Lloyd West? 13 MR. CRESS: Cress. 14 MR. McGILL: Cress sorry 15 about that. 16 MR. CRESS: That was close. I 17 think my comments can be completed within ten minutes. 18 If they run slightly over, another speaker, Mr. Sholar, 19 will yield sufficient part of his time to cover my 20 remarks. Thank you. 21 My name is Lloyd Cress and I am counsel 22 for the Kentucky Water Quality Group on whose behalf 23 this statement is presented. The Kentucky Water 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 20 Quality Group consists of the Kentucky Chamber of 1 Commerce, Associated Industries of Kentucky and the 2 Kentucky Chemical Industry Council. Each of these 3 organizations has a strong interest in Kentucky's water 4 resources and has been deeply involved in formulation 5 of the state's water quality management policies for 6 many years. Each of the organizations participating in 7 the Kentucky Water Quality Group will present a 8 separate statement addressing the issues raised by 9 USEPA's proposed rule that are of most significance to 10 that organization. 11 The Kentucky Water Quality Group is of 12 the opinion that USEPA's proposed rule is flawed both 13 from a legal and technical perspective and does not 14 constitute a valid basis for development of an 15 antidegradation implementation program for Kentucky. 16 Additionally, the Kentucky Water Quality Group does not 17 believe that the deficiencies in the federal proposal 18 can be remedied in the context of the present rule 19 making. The Group believes that these issues can be 20 addressed most expeditiously by affording the Kentucky 21 Natural Resources and Environmental Protection Cabinet 22 the opportunity to address them in its triennial review 23 of water quality standards which is commencing. 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 21 Clearly, the public interest will not be served if 1 these issues are addressed simultaneously in separate 2 federal and state proceedings. 3 As we address the policy issues raised 4 by this rule making, it is critical to focus on certain 5 essential aspects of the Clean Water Act 6 antidegradation program. First, it is important to 7 bear in mind that the issue is not one of clean water 8 v. dirty water since other Clean Water Act regulatory 9 programs are designed to ensure that water is of a 10 quality that satisfies all legitimate uses. Instead 11 the issue is one of clean water v. cleaner water 12 involving the management of the margin of safety that 13 exists above clean water quality levels. The 14 management of this margin of safety is as much a social 15 and economic issue as it is an environmental issue and 16 such issues are more appropriately addressed by state 17 rather than federal government agencies. 18 Another aspect of the Clean Water Act 19 antidegradation program that must be borne in mind is 20 that USEPA has been unable to develop administrative 21 regulations at the national level establishing 22 procedures for implementation of the program. In the 23 absence of a federal regulation establishing ground 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 22 rules for the antidegradation program, the review and 1 approval or disapproval of each state's antidegradation 2 implementation program has reflected the subjective 3 consideration of the issues by individual USEPA 4 officials. This subjective consideration has 5 manifested itself in the agency's previous review of 6 Kentucky's antidegradation implementation regulations. 7 For example, USEPA disapproved Kentucky's 1997 8 submission on the basis that it would not afford Tier 9 II antidegradation protection to a sufficient number of 10 streams but failed to provide guidance as to the number 11 of streams that should be afforded such protection. In 12 view of the subjectivity of the decision and the 13 absence of federal regulatory guidance it is not 14 surprising that Kentucky's submission in year 2000 also 15 failed to secure federal approval. 16 As stated previously, the Kentucky Water 17 Quality Group is of the opinion that the present USEPA 18 proposal is deficient for legal and technical reasons 19 and does not constitute a sufficient basis for 20 formulation of an antidegradation implementation 21 program in Kentucky. USEPA disapproved Kentucky's 22 antidegradation implementation program in 1997 and in 23 2000 in only a very limited aspect and approved all 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 23 other provisions of the program. USEPA approved all 1 aspects of the Kentucky program relating to Tier I use 2 protected waters and all provisions relating to Tier 3 III outstanding national resource waters. USEPA also 4 approved all aspects of Kentucky's program for Tier II 5 high quality or exceptional waters except for the 6 provision of 401 KAR 5: 030 Section 1( 3) ( now Section 7 1( 1)( b)) that specifies the selection criteria to be 8 used for the reclassification of Tier 1 use protected 9 waters to Tier 2 high quality water status. By letter 10 of August 30, 2000 USEPA advised Kentucky that the 11 disapproval could be remedied by modification of this 12 subsection to " include additional selection criteria." 13 In contrast to this very limited basis 14 for disapproval, it is significant to note the many 15 basic aspects of Kentucky's antidegradation 16 implementation program that were approved by USEPA in 17 1997 and again in 2000. These include the following: 18 Use of a designational approach for a 19 determination of antidegradation classification in lieu 20 of a parameter by parameter approach; 21 Use of a three tier antidegradation 22 classification system in lieu of a four tier system 23 that would include a Tier 2.5 classification; 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 24 An initial classification of stream 1 segments into antidegradation tiers by reference to a 2 list promulgated as a part of the regulation; 3 A provision under which streams not 4 otherwise classified would be considered Tier I use 5 protected waters; and 6 A procedure for reclassification of Tier 7 I use protected waters to a higher classification 8 utilizing a petition process available to the general 9 public. 10 USEPA's proposed regulation 40 CFR 11 131.39 would revise 401 KAR 5: 029 ( a regulation fully 12 approved by USEPA in both 1997 and 2000) in a manner 13 that would render inapplicable to newly identified high 14 quality waters all provisions of 401 KAR 5: 030 15 including those provisions identified above that were 16 fully approved in 1997 and 2000. Thus EPA's proposed 17 rule far exceeds the modification of 401 KAR 5: 030 18 Section 1 to add additional Tier II selection criteria 19 which USEPA asserted in 2000 to be the only change 20 necessary to secure federal approval. The effect of 21 USEPA's current proposal would be to substitute the 22 USEPA's discretion as to antidegradation implementation 23 procedures for the validly exercised discretion of the 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 25 Kentucky Natural Resources and Environmental Protection 1 Cabinet. Under the Clean Water Act, states are vested 2 with primary responsibility on this matter and the 3 federal proposal is inconsistent with the state federal 4 relationship established by the Clean Water Act. 5 USEPA's proposal solicited comments on a 6 variety of issues relating to implementation of the 7 antidegradation program in Kentucky but did not expose 8 for public comment any specific course of action. Many 9 of these issues were addressed by the state agency in 10 the provisions of 401 KAR 5: 030 that were approved by 11 USEPA in 1997 and 2000 and should not legitimately be 12 subject to this rule making. The Kentucky Water 13 Quality Group will address each of these issues in a 14 written submission prior to the close of the public 15 comment period; however, two of the issues are 16 fundamental to the basic structure of the 17 antidegradation implementation program and will be 18 addressed at this time. 19 The federal proposal opens for public 20 comment the potential for implementation of the 21 antidegradation program in Kentucky on a parameter by 22 parameter basis which has been repeatedly rejected by 23 the state agency. The position of the state agency 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 26 should be conclusive on this issue under any 1 appropriate concept of federalism. Additionally, the 2 parameter by parameter approach could lead to the 3 ludicrous spectacle of a stream devoid of all aquatic 4 life because of the presence of toxic pollutants being 5 managed as a high quality water under the 6 antidegradation program because it meets water quality 7 standards for a single pollutant. USEPA should give no 8 further consideration to use of the parameter by 9 parameter approach in Kentucky. 10 USEPA's proposal also raises basic 11 issues as to the procedures for integration of any 12 federally promulgated rule with the remainder of 13 Kentucky's water quality standards and KPDES permit 14 issuance regulations. As noted in the federal 15 proposal, KRS Chapter 13A prohibits state agencies 16 including the Natural Resources and Environmental 17 Protection Cabinet from utilizing in a regulatory 18 manner any document or other form of action that has 19 not been promulgated as a state regulation in 20 accordance with the procedures prescribed in KRS 21 Chapter 13A. Accordingly, if USEPA intends for a 22 federally promulgated regulation to be carried out by 23 the state agency, USEPA will necessarily have to 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 27 provide the state agency with sufficient time and a 1 reasonable opportunity to amend the state regulations 2 to incorporate the federal promulgation. On the other 3 hand, if USEPA intends to carry out the proposed 40 CFR 4 131.39 through federal action, it will be necessary for 5 USEPA to supplement that regulation with detailed 6 implementation procedures which address and resolve all 7 of the issues on which USEPA solicited comments 8 including criteria for determination of high quality 9 waters, determination of significant lowering of water 10 quality, determination of types of activities giving 11 rise to antidegradation review, determination of cost 12 effective alternatives and determination of socio 13 economic benefit. Promulgation of 40 CFR 131.39 14 without specifying implementation procedures would 15 conflict with other provisions of 40 CFR Part 131 and 16 would lead to unnecessary conflict and litigation of 17 permit decisions. Unfortunately the present federal 18 proposal lacks detail sufficient to incorporate such 19 provisions in 40 CFR 131.39. 20 A final and very important issue that 21 USEPA must address in its development of an 22 antidegradation implementation regulation for Kentucky 23 is the manner in which the newly issued federal Water 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 28 Quality Trading Policy can be used to satisfy the 1 regulatory requirements. The Policy issued on January 2 13, 2003 specifically provides for its use by 3 dischargers subject to the Clean Water Act 4 antidegradation program and USEPA should include the 5 procedures for its use in any final antidegradation 6 regulation for Kentucky. 7 In conclusion, the Kentucky Water 8 Quality Group urges USEPA to afford the state agency a 9 reasonable opportunity to address the antidegradation 10 implementation issue in its current triennial review of 11 water quality standards. Alternatively, the Group 12 urges USEPA to adhere to the limitations of the Clean 13 Water Act and address in its rule making only the 14 selection criteria for Tier II waters that were 15 disapproved by USEPA in August 2000. Thank you. 16 MR. McGILL: The next speaker 17 is Tony Sholar. 18 MR. SHOLAR: Thank you very 19 much. I appreciate the opportunity to have this chance 20 to participate in the public rule making. My name is 21 Tony Sholar, and I am the senior vice president for 22 public affairs for the Kentucky Chamber of Commerce. 23 My organization is a statewide organization 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 29 representing business and industry with more than 3,000 1 members statewide. 2 We have been actively involved in the 3 formulation of the state water quality management 4 policy for several years and have worked diligently for 5 the development of state water quality standards that 6 can receive full federal approval. The state chamber 7 is a participating member of the Kentucky Water Quality 8 Group and we endorse the comments just previously 9 received. 10 Our primary concern regarding proposed 11 antidegradation implementation regulation for Kentucky 12 involves its potential impact on the KPDES permit 13 program and the resultant adverse effect on social and 14 economic development in the state. The current KPDES 15 permit program has been one of the relatively few 16 bright spots in the governmental regulation arena. The 17 KPDES permit program is currently based on objective 18 technological and water quality based standards that 19 provide certainty to permit applicants, the general 20 public and to the administering agency allowing permits 21 to be issued in a prompt and efficient manner. As a 22 result, final permit action on proposed new and 23 expanded discharges has taken place in a timely manner 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 30 accommodating the reasonable expectations of economic 1 development projects. One of the key elements of the 2 Kentucky water quality program that has contributed to 3 this positive result is the identification in 401 KAR 4 5: 030 of the antidegradation classification of each 5 body of water in advance of the submission of the KPDES 6 permit applications. 7 Under 40 CFR 131.39, USEPA's proposed 8 antidegradation implementation regulation for Kentucky, 9 the antidegradation classification of receiving streams 10 could be determined during the KPDES permit issuance 11 process itself. Under such a procedure, neither the 12 permit applicant nor the general public nor the 13 permitting agency could proceed with confidence as to 14 the requirements that would be applicable to a proposed 15 new or expanded discharge. The necessary result of 16 such a procedure would be delay and uncertainty in the 17 processing of KPDES permit applications. 18 Perhaps the most undesirable effect of 19 the federal proposal would be to transform the issuance 20 of KPDES permits for new and expanded discharges from a 21 process based upon objective criteria and standards to 22 a process based upon subjective factors such as 23 evaluation of alternatives and socioeconomic benefit of 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 31 the proposed activity. Use of this subjective approach 1 will clearly give rise to controversy and litigation of 2 KPDES permit actions. 3 Unfortunately, the likely effect of the 4 federal proposal would be to create an atmosphere of 5 uncertainty in the issuance of KPDES permits for new 6 and expanded discharges that would serve as a damper on 7 Kentucky's social and economic development. Although 8 such a result might be acceptable where necessary to 9 achieve established environmental goals, it is clearly 10 unacceptable in the case of Tier II high quality waters 11 that already comply with applicable water quality 12 standards. 13 For the foregoing reasons, the Kentucky 14 Chamber urges USEPA to limit its rule making to the 15 identification of Tier II selection criteria and to 16 allow the state of Kentucky Natural Resources and 17 Environmental Protection Cabinet to formulate, through 18 its triennial review of water quality standards, 19 antidegradation implementation procedures consistent 20 with the efficient administration of the KPDES permit 21 program in Kentucky. Thank you very much. 22 MR. McGILL: The next speaker 23 is Rusty Cress. 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 32 MR. CRESS: Good afternoon. 1 My name is Rusty Cress and I am the executive director 2 of Associated Industries of Kentucky's Chemical 3 Industry Council. AIK is a trade group made up 4 primarily of manufacturers throughout the state and we 5 are a member of the Kentucky Water Quality Group. We 6 endorse those comments and we want to focus our 7 comments this afternoon on one primary area. We will 8 address EPA's specific request in writing prior to the 9 deadline. 10 AIK does not believe that USEPA's 11 disapproval of 401 KAR 5: 030 in 1997 and in 2000 was 12 consistent with the Clean Water Act. The Clean Water 13 Act clearly vests state water pollution control 14 agencies with the primary responsibility for 15 establishing state water quality standards including 16 antidegradation implementation procedures. Although 17 USEPA has the authority to review and to disapprove 18 state established water quality standards where they 19 are inconsistent with the Clean Water Act and 20 implementing regulations, USEPA's rejection of the 21 Kentucky antidegradation implementation regulation was 22 not based on any failure to comply with federal law or 23 regulations. Instead the federal disapproval was based 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 33 on an alleged failure to comply with the intent of the 1 federal antidegradation program as perceived by the 2 reviewing parties. In the absence of a federal 3 regulation establishing procedures for state 4 implementation of Clean Water Act antidegradation 5 programs, such decisions are reserved to the state 6 water pollution control agencies rather than to USEPA. 7 If it is conceded for the purposes of 8 discussion only that USEPA's disapproval of the 9 regulation was a legitimate exercise of federal 10 authority, AIK remains firmly of the opinion that the 11 present USEPA proposal is not a valid or appropriate 12 regulatory response to the disapproval. EPA's 13 disapproval involved only the selection criteria for 14 reclassification of Tier I use protected waters to a 15 higher antidegradation classification. EPA's present 16 proposal would affect not only the selection criteria 17 but also the other procedural and substantive 18 provisions of 401 KAR 5: 030 that were previously 19 approved by EPA. These include: 20 Default classification to Tier 1 water, 21 rather than a default to a " traditional" Tier 2; 22 Twenty percent increase over permitted 23 discharge as a definition of " significant" for purposes 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 34 of new or expanded discharge; and, 1 Use of the designational approach rather 2 than consideration of a parameter by parameter 3 approach. 4 Since EPA has not found those procedural 5 and substantive provisions to be inconsistent with the 6 Clean Water Act and, in fact, has previously approved 7 them, EPA has no authority to change those provisions 8 incident to its promulgation of Tier II selection 9 criteria and any effort to do so would conflict with 10 the relationship between the states and EPA established 11 under the Clean Water Act. 12 As the previous two speakers have said, 13 AIK firmly believes that this is a matter that should 14 be address within the context of the state's triennial 15 review which is upcoming and urges EPA to consider what 16 the state ends up doing in that manner. Thank you. 17 MR. McGILL: The next speaker, 18 I am going to have to spell the last name. I don't 19 want to mispronounce another name. First name is Lee; 20 last name, I think it is D e w. 21 MR. DEW: That is correct. I 22 realize that it is a very complicated and difficult 23 name. It is the one I was stuck with at birth and 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 35 consequently, I have to claim it, yes. 1 MR. McGILL: I just wanted to 2 make sure. 3 MR. DEW: If I seem just a 4 little bit disoriented because I have traveled here 5 from obviously a quite different planet than the 6 previous speakers live on, my name is Lee A. Dew, 7 D e w, 2015 Griffith Place East, Owensboro, Kentucky 8 42301. I am Director of the Sierra Club Water Sentinel 9 program for Western Kentucky and am Secretary Treasurer 10 of the Tradewater/ Lower Green River Watershed Watch, a 11 volunteer citizen water monitoring program. 12 The Clean Water Act was designed to 13 " restore and maintain the chemical, physical and 14 biological integrity of the nation's waters." 15 Unfortunately, the integrity of the waterways of the 16 Tradewater/ Lower Green River watershed have been 17 compromised. 18 The Tradewater/ Lower Green River 19 Watershed Watch and Western Kentucky Water Sentinels 20 program have sampled nearly 100 sites since the year 21 2000 on approximately 50 specific waterways in Western 22 Kentucky which I list here in my written statement. 23 Pollutants include fecal coliform, acid 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 36 mine drainage, agricultural chemicals and dissolved 1 metals. In 2002, Sierra Club Water Sentinels tested 50 2 sites of which only three, or 6% were at or below KDOW 3 maximums for those parameters. We have streams in 4 Western Kentucky that are so acidic that not even fecal 5 coliform can survive. 6 We have major conductivity problems on 7 some of our streams, and next year we hope to begin 8 measuring turbidity a major problem in Western 9 Kentucky, the center of grain production in the 10 Commonwealth. 11 If we are to have an antidegradation 12 program that will work in the Lower Green River 13 watershed, we must have an enforceable nonpoint source 14 program, with enforcement and oversight of Agricultural 15 Water Quality Plans. There must be mandatory 16 oversight, not only on antidegradation standards, but 17 oversight of enforcement of these standards. 18 We have in our state no Outstanding 19 Natural Resource Waters but we do have some segments of 20 High Quality or Tier II water which qualify to certain 21 standards. We desperately need tailored permitting to 22 fit individual water quality standards, and enforcement 23 statutes and agricultural BMP's to protect against non 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 37 point source impairment. 1 We need implementation of the EPA 2 training model standard for parameter by parameter 3 evaluation of permits. There should be no exemptions, 4 including agriculture, from these standards. This 5 should include both categorical and " de minimis" 6 exemptions 20% is much too high a threshold in our 7 opinion. 8 An antidegradation policy for Kentucky 9 should be practical and specific enough to permit KDOW 10 to write an acceptable regulation. Public 11 participation and review is an absolute essential, and 12 dramatically increased monitoring should be required. 13 In this time of budgetary constraints, there are 14 hundreds of citizen volunteer water monitors, trained 15 to KDOW protocols, whose work should be given increased 16 attention. 17 Any antidegradation policy should also 18 contain a standard for turbidity, and greater attention 19 to conductivity standards, as well as bacteriological, 20 organic, and specific metal standards. 21 These things we owe to our children and 22 to our grandchildren's generation. Thank you very 23 much. 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 38 MR. McGILL: The next speaker 1 is Aloma Dew. ( No response) 2 MR. DEW: She has been called 3 away to meet with the Cabinet Secretary and asked that 4 she be put at the end of the list, please. 5 MR. McGILL: The next speaker 6 is Betsy Bennett. 7 MS. BENNETT: My name is Betsy 8 Bennett and I am here with Sierra Club but my comments 9 today are presented on behalf of the chair of the 10 committee that coordinates Kentucky Watershed Watch 11 Program, Inter Basin Coordinating Committee and his 12 name is Bruce Scott, not to be confused with the other 13 Bruce Scott, Division of Water. 14 Bruce Scott asked me to tell you that 15 Watershed Watch, a statewide monitoring network of 1000 16 citizen volunteers who are trained to evaluate and 17 sample streams have looked at this rule and are 18 concerned. In cooperation with many of the state's 19 universities, we have produced sound scientific data on 20 about 600 Kentucky stream sites every year. Watershed 21 Watch has trained over 3000 Kentuckians in stream 22 science and watershed planning over its five years of 23 existence. 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 39 Mr. Scott's personal involvement with 1 Kentucky streams began with the Middle Fork of 2 Beargrass Creek in Louisville, where he leads a group 3 of volunteers who sample weekly for fecal coliform at a 4 picnic area where children wade in the summertime. The 5 Middle Fork passes through many parks and recreation 6 facilities in Louisville, including Cherokee Park, the 7 flagship of our Olmsted park system. The Middle Fork, 8 is 303( d) listed for fecal coliform and, therefore, 9 exempted under current Kentucky rules from 10 antidegradation policies. Remarkably, aquatic life in 11 the Middle Fork is good, but under current rules, the 12 stream's aquatic health is not protected from further 13 degradation. 14 Mr. Scott has found that it is 15 remarkable that EPA twice found Kentucky's standards 16 deficient on this important component of the Clean 17 Water Act over the last seven year period; acted only 18 after the threat of a lawsuit to step up to their 19 statutory mandate; and yet, proposes a solution so 20 vague that it invites Kentucky's rule makers to 21 continue to dither while industrial forms of 22 development and resource extraction change our 23 landscape, pollute our streams, and destroy them 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 40 forever. 1 The proposed rule needs more specificity 2 if it is to impact Kentucky's antidegradation process 3 during his lifetime. Certain processes clearly 4 required by the Clean Water Act need to be carefully 5 delineated in the federal rule, and their 6 implementation required. 7 Streams that receive Tier II 8 protections, and how they receive those protections, 9 should be defined by the rule. 10 Criteria for aquatic habitat or human 11 recreation currently exist in Kentucky regulation. 12 Permittees should be required to provide scientifically 13 sound data with their applications to help Kentucky 14 determine whether criteria for either use are exceeded, 15 thus qualifying them for Tier II protections. If any 16 criteria are exceeded, then the anti degradation 17 processes as specified by the Clean Water Act for Tier 18 II streams must be applied. 19 The category of " Excellent" and the use 20 designation of " Outstanding State Resource Water" are 21 bogus categories currently used by Kentucky that 22 actually work to limit the number of streams that 23 receive protection. They should be eliminated by the 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 41 federal rule. 1 Kentucky's practice of excluding all 2 303( d) listed stream from Tier II is unconscionable, 3 because the listing may be based on non attainment of 4 just one or two covered uses recreation and habitat 5 or non attainment of just one parameter of a covered 6 use. 7 In addition, EPA must define in more 8 detail: 9 The extent to which an applicant must 10 document social and economic benefits. 11 The circumstances under which an 12 applicant must explore feasible technology and best 13 management practices; and 14 Procedures for evaluating the proposed 15 technology and best management practices, and for 16 evaluating assertions of social and economic benefit. 17 Above all, the anti degradation process 18 must be transparent to the public: 19 Freedom of Information requests should 20 be unnecessary when an applicant proposes to degrade a 21 Tier II stream, and unnecessary for examining the track 22 record of an application to renew a discharge permit to 23 a Tier II stream. 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 42 Ideally, the rule will require that 1 permit applications ( MDMRs for renewal applications) 2 for Tier II streams be posted on the website and that 3 the decision making on the anti degradation process be 4 documented in full public view. 5 Thank you for this opportunity to 6 comment. 7 MR. McGILL: The next speaker 8 is Doug and I apologize again. It is recognizing the 9 handwritten letters that I am having a problem with. 10 MR. DOERRFELD: Does it begin 11 with a " D"? 12 MR. McGILL: Yes sir. 13 MR. DOERRFELD: Doerrfeld. My 14 name is Doug Doerrfeld. I am vice chairman of 15 Kentuckians For The Commonwealth, a statewide citizens' 16 social justice organization that has worked to protect 17 Kentucky's quality of life through the proper use and 18 protection of our natural resources since 1981. 19 What can be more important to a 20 community than clean water? What can be more damaging 21 to a community than waterways that carry disease and 22 harmful chemicals? 23 Thirty years ago, Congress determined 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 43 that a healthy future for the United States and its 1 citizens meant a healthy environment. The Clean Water 2 Act was a pledge to the American people that our 3 waterways would not be sacrificed for short term 4 economic gains. Further, polluted waterways would be 5 cleaned up. EPA and the state of Kentucky have largely 6 ignored that pledge. With the proposal we are 7 addressing today, another chance was given to make good 8 on that pledge with an anti degradation policy to 9 protect Kentuckians and to serve as a model for the 10 nation. Unfortunately, this proposed policy fails, 11 once again, to uphold that promise. 12 KFTC does appreciate the fact that EPA 13 has finally issued a proposed anti degradation policy 14 for Kentucky. It is long overdue. However, given the 15 weak and vague nature of this current proposal, it is 16 still overdue. KFTC supports the comments of the 17 Kentucky Waterways Alliance, Kentucky Resource Council, 18 Sierra Club, and other environmental groups as to the 19 technical deficiencies and weaknesses of the current 20 proposal. KFTC also wishes to point out that while 21 many arguments will be made about technical aspects of 22 this program and specific wording of the rules, what 23 this is about is the health of every man, woman and 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 44 child in Kentucky. In that regard, we cannot be weak. 1 We cannot be vague. We cannot keep caving in to 2 polluter's demands. We need a strong anti degradation 3 policy that mandates the protection of all our 4 waterways without compromise and without exception. 5 That is what the promise of the Clean Water Act was and 6 that is what we expect from our state and federal of 7 officials. 8 The fact that 30 years after the Clean 9 Water Act the state is still issuing warnings against 10 eating of fish from almost all Kentucky's streams is 11 appalling. The fact that it is unsafe for our children 12 to swim in many of Kentucky's rivers and streams is 13 unacceptable. The fact that farmers bear extra expense 14 when polluted waters cause sickness to their livestock 15 or they have to find an alternative water supply is 16 absurd. The fact that pristine streams in eastern and 17 western Kentucky could soon be buried under coal 18 company's mine wastes, as hundreds of miles already has 19 been, is just plain wrong. The fact that a community 20 could lose the ability to add good jobs because a 21 stream's quality has gotten so bad that no more 22 discharges can be permitted is outrageous. 23 The people of Kentucky should not be 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 45 denied the full use and enjoyment of our natural 1 resources and natural beauty. The people of Kentucky 2 should not have to bear the brunt of the continued 3 degradation of our waterways through added costs, 4 higher taxes and poorer health. But, we do not need an 5 anti degradation policy that merely slows the rate of 6 stream impairment. We do not even need a policy that 7 just halts any further impairment of our streams. We 8 need a policy that reverses the years of neglect that 9 our waterways have suffered, a policy that places the 10 highest possible protections on the maximum number of 11 our streams. Such a policy would help us refocus on 12 the true goals of the Clean Water Act. Again, EPA's 13 proposal falls far short of those goals. 14 Two specific areas where EPA's proposal 15 falls short relate to public information and citizen 16 involvement, areas that should be given the highest 17 regard. Kentucky has a number of neighborhood, county, 18 watershed and statewide citizens groups dedicated to 19 preserving and protecting our waterways. Kentucky 20 citizens want clean water and we are willing to get 21 involved to help bring this about. KFTC specifically 22 calls for a strengthening of the public information and 23 citizen involvement sections of this policy. 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 46 To adopt a weak anti degradation program 1 is to tell the people of Kentucky that our health does 2 not matter. It is to say that profit, greed, or 3 political cowardice carry more weight than the well 4 being of Kentuckians. KFTC urges an across the board 5 strengthening of this proposal so that we can begin to 6 realize the goals of the Clean Water Act. 7 MR. McGILL: The next speaker 8 is Teena Halbig. 9 MS. HALBIG: I'm Teena Halbig. 10 I am co chair of Floyds Fork Environmental Association. 11 We are in Louisville, Kentucky in Jefferson County. 12 Our mission, FFEA, our mission is to protect, preserve, 13 and conserve Floyds Fork Creek and its tributaries. In 14 Jefferson County, we have 167 miles that also includes 15 the tributaries. Floyds Fork flows through five 16 counties. I actually have the brochures that you can 17 see within and into the Salt River and on to the Ohio 18 River. Our members include residents that live in the 19 Floyds Fork Corridor and on tributaries as well as 20 those who recreate in, around, and on the water. And 21 I've got the brochures here for you. 22 For over a decade, we have worked with 23 local government to have annual creek cleanups. 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 47 Initially, we removed 10 tons and we have done that 1 more than once, and seven tons and five tons and the 2 tonnage continues to decrease. 3 We were successful in gaining the 4 state's attention in 1991 and this resulted in the 5 " 1992 Floyds Fork Water Quality Study" and a moratorium 6 still in effect today for no more package plants on the 7 main stem of Floyds Fork Creek. 8 Due to our leadership, an additional 9 layer of planning and zoning guidelines were enacted in 10 Jefferson County in 1993. Some of us were on a task 11 force for a year and a half because of our concerns 12 about water quality. Our County Judge/ Executive said, 13 " If we lose the ecology, we could never replace it" and 14 he called Floyds Fork " a natural treasure". 15 Some years ago, we were part of a 16 coalition that met with the Federal Government over the 17 Superfund site of " Red Penn" Landfill. 18 We've been successful in having several 19 package plants taken off line. 20 We also initiated action to keep a 21 diffuser out of the Ohio River. 22 While we have numerous accomplishments, 23 one of the most disappointing and unsuccessful attempt 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 48 took place some years ago: while trying to get 1 information from the state's David Yancey to get Floyds 2 Fork Creek listed as an " outstanding resource water". 3 So Floyds Fork could have been years ago where it would 4 have more protection for its outstanding scenic beauty. 5 Yes, it has aesthetic value, ecological value, flora 6 and fauna, geology, and all. Now it is listed on the 7 303( d) list  along with several of its tributaries. 8 This stream still deserves protection  9 much like many of our streams in Kentucky. We would 10 like to see the Tier I " impaired" waters designation 11 just removed. Instead, only use " High Quality Water" 12 an drop the Tier II designation. In other words, only 13 say Use Protected Waters are High Quality Waters. 14 While it is best ( in our opinion and in 15 keeping with the Clean Water Act) to use both 16 biological and chemical testing to assess High Quality 17 Waters, the caveat of the state looking at ways to 18 lower any excessive value is imperative. For example: 19 If you have a high fecal coliform, the state should 20 look at ways to decrease the count. This was actually 21 done by the state and reported by the state in their 22 " Land, Air & Water" publication a few years ago. In 23 other words, streams can show improvement in the 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 49 values. This is truly the only way to meet the intent 1 and spirit of the Clean Water Act of 1972. Use both 2 methods: biological and chemical  then look for ways 3 to lower the values. Please don't just identify a 4 problem. An attempt to resolve the problem should be 5 made to restore. We should be looking for ways to 6 restore. This is restoration and results in cleaner 7 water. 8 You can't really maintain something 9 unless you can restore it. 10 In Louisville, we have the Kentucky 11 Pollution Prevention Center at the University of 12 Louisville. When it does an assessment of a business, 13 it is kept confidential. Sometimes these businesses 14 want to confirm because they have literally been able 15 to save millions of dollars, sometimes as much as five 16 million dollars. Many millions of these dollars have 17 been made by these businesses when the KPPC identified 18 the way the businesses could recycle, reuse or sell 19 materials to another company or substitute a less toxic 20 chemical or bioaccumulative material or even a 21 different chemical for their process or even a 22 different process. Perhaps the KPPC could evaluate 23 more or the state could set up its own system and 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 50 receive a percentage of the company's savings to pay 1 for any state costs. Additionally there could be 2 outreach to more experts whether they be at 3 universities or businesses or at the state or experts 4 in other states. Just take a moment to wonder what the 5 payoff could be for our Commonwealth. 6 Years ago, I said if a person or 7 business has something toxic to get rid of, they should 8 be able to go to their government to get disposal. 9 Some years later, a Junk Pickup was initiated. This 10 has turned into an ongoing annual event and operation 11 businesses have been created. Today, we have recycling 12 centers that have been built to lessen the burden on 13 our landfill in Jefferson County. Has there been a 14 payoff? Definitely| 15 The state could recommend such a 16 pollution prevention assessment be done as a 17 prerequisite for permitting. Allowing removal of 18 pollutants before discharge will result in cleaner 19 water and safer drinking water. State toxicologists 20 should also be allowed comment and MODS sheets should 21 be given to the state. The state can also request 22 the permit applicant to collect data or do surveys. 23 EPA suggests identifying High Quality 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 51 Waters be done as follows: 1 ( 1) On a parameter by parameter or 2 pollutant by pollutant; 3 ( 2) Designational  may meet one use and 4 not the other. 5 Again, we urge that if any parameter or 6 use is not met, the source should be determined and 7 steps taken to remedy this so the intent of the Clean 8 Water Act is met. Restoration is the answer. 9 FFEA is 100% supportive of 10 Antidegradation Water Quality standards that are: 11 ( 1) Protective of public health and 12 welfare; 13 ( 2) Enhance quality of water; 14 ( 3) Meet the objective of the Clean 15 Water Act to restore, emphasis on restore, and maintain 16 the chemical, physical, and biological integrity of the 17 nation's waters. 18 If you will continue to look at these 19 three points and can apply them to antidegradation rags 20 written, the rags will be right. Please don't forget 21 restoration and thank you for the opportunity to 22 comment. 23 MR. McGILL: The next speaker 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 52 is Heather Mayfield. 1 MS. MAYFIELD: I am Heather 2 Mayfield, and I am a project director of the Sierra 3 Club Water Sentinels Program in Northern Kentucky. We 4 are a volunteer water quality monitoring program and 5 our program also works with students at Northern 6 Kentucky University to develop research projects around 7 some of the streams that we are currently monitoring. 8 I appreciate this opportunity to comment 9 not only on behalf of my volunteers in the Sierra Club 10 and the Sierra Club, but on behalf of many Kentuckians 11 who couldn't attend this hearing because they are 12 working and taking care of their families. When 13 congress implemented the Clean Water Act in 1972, it 14 was so these citizens could take care of their families 15 and raise their children without having to worry about 16 irreparable damage that was being done to their rivers, 17 lakes and streams. Today, 30 years later, Kentucky 18 families are far away from having this luxury. This is 19 because our Division of Water is incapable of 20 implementing an Antidegradation rule that upholds 21 standards mandated by the Clear Water Act. 22 Even though the EPA is required by 23 federal law to do something about this problem, it took 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 53 the threat of litigation for EPA to finally step in and 1 propose an antidegradation rule that would correct the 2 shortcomings in Kentucky's regulations. However, the 3 rule that EPA proposed in 2002 does little to account 4 for many of the flaws that had driven the agency to 5 reject the Cabinet's antidegradation regulations twice 6 before. 7 For instance, the EPA ignores the 8 guidance given in its own training modules and its 9 Water Quality Handbook, and allows the Cabinet to 10 continue using the designational approach for 11 determining which waters in the Commonwealth are 12 deserving of Tier II protection. This oversight single 13 handedly leaves over 98% of Kentucky's waters open to 14 degradation because they are not considered " high 15 quality" waters. And waters that have uses that are 16 already impaired are excluded from protection from 17 further degradation even though these impairments may 18 only be limited to one or two. Now how backward is 19 that? Why shouldn't a stream that is already impaired 20 with fecal coliform be protected from new discharges of 21 heavy metals? Why shouldn't that same stream, which 22 may have an impaired primary contact recreation use, 23 receive any less protection than a stream that is 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 54 meeting its designated secondary contact recreation 1 use? Likewise, it makes no sense for the Cabinet to 2 allow already good water quality in any stream to 3 dwindle to the point where the stream is just meeting 4 its uses. That is a one way ticket to impairment. 5 The EPA rule must require the Cabinet to 6 take a parameter by parameter approach in assessing 7 waters that deserve Tier II protection. This approach 8 would afford almost all of Kentucky's waters, including 9 Exceptional and impaired waters, protection from 10 degradation. Enforcing the parameter by parameter 11 approach is the only way that Kentucky's polluted 12 waters will ever be restored, and that its good quality 13 waters will be maintained. 14 Isn't that the main goal of the Clean 15 Water Act to " restore and maintain the physical, 16 chemical, and biological integrity of the nation's 17 waters?" 18 However, in order for the parameter by 19 parameter approach to provide effective protection of 20 Tier II streams, EPA's proposed rule must account for 21 loopholes in Tier II antidegradation processes. 22 Currently, the few Exceptional waters that the Cabinet 23 affords Tier II protection are not subject to proper 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 55 antidegradation process requirements. And under the 1 new EPA rule, these streams are still subject to 2 discharges of carbonaceous oxygen demand, ammonia, 3 total residual chloride, total suspended solids, 4 phosphorus, oxygen, whole effluent toxicity, and fecal 5 coliform, without the discharger proving any socio 6 economic need for these pollutants, as long as they are 7 less than what's allowed in a Tier I protected stream. 8 Additionally, the EPA rule does not set a numerical 9 limit for the amount of pollution that can be added to 10 a Tier II stream without any antidegradation analysis. 11 This number should logically be very small. However, 12 because EPA does not set a numerical " de minimis" limit 13 in its proposed rule, the Cabinet will likely continue 14 to set " de minimis" pollution limits at an astounding 15 20%. And I really do think that this affords 16 Kentucky's streams certain death by what I call a 17 falcon cut. As Doug pointed out, that is unfair that a 18 business that may provide a legitimate social and 19 economic benefit to the community can't have the right 20 to discharge in a stream because some other company has 21 already taken that right away. 22 In addition to correcting these 23 oversights in Kentucky's antidegradation process, the 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 56 EPA rule must clearly define criteria used to conduct 1 antidegradation analyses. Permit writers need these 2 criteria defined in order to develop permits that are 3 considered legal under the Clean Water Act.| The new 4 EPA rule must clearly define when Tier II 5 antidegradation analysis should be conducted, it should 6 specify what type of information is required of an 7 applicant, it should make a written analysis of 8 discharge alternatives available to the public, and it 9 should provide a written analysis of what social and 10 economic benefits the applicant will bring to a 11 community. Furthermore, if there is any indication 12 that water quality will be lowered, this information 13 must be included with any published notice of the 14 permit, and made easily available to the public. 15 Finally, the EPA must apply these criteria to all 16 permitting actions, including 404 permits and 401 17 certifications, as well as KPDES permits that were 18 granted under the Cabinet's deficient regulations. 19 Although many of us here today are 20 pleased that the EPA has proposed an antidegradation 21 rule for Kentucky, we are frustrated that we have to 22 spell out blatant flaws that would have been avoided 23 had the EPA simply applied their own standards to this 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 57 process. We're frustrated that this rule is setting a 1 national precedent, yet over 1,000 of Kentucky's 2 rivers, lakes, and streams are in jeopardy because of 3 it.| Kentucky's families, as well as our nation, 4 deserve better than this.| 5 And I wanted to take a moment to go back 6 to the public comment thing I was talking about. I 7 mentioned earlier in our press conference that one of 8 my jobs as a volunteer water quality monitor and 9 coordinator is to give my volunteers a sense of 10 ownership of their stream. Well, unfortunately, many 11 people who aren't involved in these types of groups, 12 your average Kentuckians, they don't even know what 13 these rules of ownership are. So I honestly believe if 14 this process was made clear and accessible to the 15 public, the public would definitely be willing to take 16 an active part in it and you will find that most of 17 them will agree that they do not like their rivers, 18 lakes and streams subject to this sort of degradation. 19 So I think all the environmental groups 20 here, we are here to say if you do your job and make 21 that available to the public, we will do our best to 22 educate the public and get them out into these streams 23 so that they can be active members in this decision 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 58 making process. 1 Another example locally that I'll add 2 to my written comment is right now, we are monitoring 3 two streams that are impaired by jet fluids from the 4 Greater Cincinnati Northern Kentucky Airport. Five 5 years ago, a TMDL was written to get these two streams 6 off the impaired list. As recently as this last year, 7 three miles of one of these streams was essentially 8 killed because we didn't have a rain that flushed out 9 the de icing fluid. Now that is four years after the 10 cleanup policy was implemented. 11 So now in addition to worrying about 12 getting these streams cleaned up in terms of de icing 13 fluids and biochemical oxygen demand, we also have to 14 worry about other companies or industries discharging 15 other pollutants into these streams. This is just 16 unacceptable. 17 I really do believe that maintaining our 18 present water quality is cost effect and that's how 19 I'll end my comments. Thanks. 20 MR. McGILL: The next speaker 21 is Albert Ettinger. 22 MR. ETTINGER: Hello. I am 23 Albert Ettinger. I am Senior Staff Attorney for 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 59 Environmental Law and Policy Center. I came down here 1 from Chicago. So I guess we have all had fun at 2 airports lately, or some of us have. 3 I am here on behalf of the Environmental 4 Law and Policy Center and I also chair of the Water 5 Quality Committee of the Sierra Club and work with 6 Clean Water Network on issues, particularly 7 antidegradation nationally. 8 I am here for a number of reasons. One, 9 of course, we are all very concerned about Kentucky 10 waters. We are also concerned about the waters 11 downstream from Kentucky. But finally, we are very 12 concerned about what USEPA is doing here in terms of 13 setting a very bad policy which we are going to hear 14 across the country or failing to set a good policy. 15 Basically, although a lot of the 16 speakers here have come from different directions, we 17 have all agreed on one thing which is that the EPA 18 proposal is a total botch. What we have seen here is 19 the law is quite clear when EPA refuses to accept the 20 state rule, they are suppose to propose their own rule. 21 The gentleman from the Chemical 22 Industry and Council and others has pointed out, there 23 is not enough detail in this rule to be enforceable. 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 60 Frankly, if I were a permit writer in Kentucky I would 1 have no idea what to do with this. So you have not 2 promulgated a good rule and this is not an enforceable 3 rule. You have not even begun to formulate the form of 4 compliance with the Clean Water Act. 5 Let's look at the other problems with 6 the proposal and where we are here. First of all, 7 stating this as High Quality Water is a mistake to 8 begin with. We should not be thinking about how to 9 define water, High Quality Water is Tier 2. 10 If you will look, in fact, at the 11 section that defines Tier 2 protection, the words High 12 Quality do not appear. High Quality Waters appear 13 under Tier 3 which they talk about High Quality Waters 14 may be designated as RNOWs. 15 What we have here is a fundamentally 16 mistaken concept that we are starting off with. 17 Basically, all water should be treated as High Quality 18 Waters for Tier 2 purposes because remember, Tier 2 19 unlike Tier 3 is not an absolute ban on pollution. It 20 says we'll only allow necessary pollution. It must be 21 reasonably necessary to accommodate important social or 22 economic development. 23 If we find that that is the case, that 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 61 it is reasonably necessary for this, then we will allow 1 the new pollution under Tier 2. What Tier 2 does is 2 give a procedural protection to protect clean water 3 because obviously, we do not meet the goals of the 4 Clean Water Act if we allow unnecessary pollution of 5 clean water. 6 What we are now looking at in terms of 7 Tier 2 is to what degree we will allow going away from 8 the goals of the Clean Water Act? Under what 9 circumstances? Let's go back here, go way back to 10 1972. I suppose you have all looked at it. We were 11 suppose to eliminate discharges under the goals of the 12 Clean Water Act in 1985. We were talking of the NPDES 13 system or the KPDES system, that stands for National 14 Pollutant Discharge Elimination System. 15 The theory was that these discharges 16 were to be eliminated. Because of that, obviously the 17 circumstances in which you would allow or increase this 18 discharges should be fairly infrequent. They certainly 19 should only take place when they are truly necessary to 20 accommodate important social or economic development. 21 When you give a pass to large numbers 22 and say we are not even going to require that, what you 23 are in effect saying is we are going to allow the 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 62 systematic violation of the rules of the Clean Water 1 Act. 2 Now let's look at the ludicrous example, 3 this bad stream that is meeting virtually no standards 4 but we would still apply Tier 2 protections to it. Is 5 that so bad? Are we ever going to meet our Water 6 Quality Standards if we say that because the water has 7 problems we are going to let every other parameter for 8 which it doesn't have problems go downhill. 9 Look at say the Cuyahoga River, the 10 famous Cuyahoga River that caught fire. Well, it was 11 probably meeting a lot of standards when it caught fire 12 that day. If we had said as a nation, it is okay to 13 put as much mercury as you want in the Cuyahoga or as 14 much cyanide as you want in the Cuyahoga or get it just 15 to where it is just barely meeting standards, we would 16 never meet our goals as a country. 17 I want to point out something else and 18 frankly, I was confused by it. Coming from the 19 outside, I work very closely on the Illinois standards. 20 I've looked at a lot of other antidegradation standards 21 around the state. I looked at the Exceptional waters 22 category for Kentucky. 23 This was suppose to be the Tier 2.5 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 63 protections. When I looked at it with any basic 1 knowledge of the way standards are done in the rest of 2 the country or what an affluent limit is, I saw that 3 this is not a Tier 2.5 standard. This is at best a 1.1 4 standard or perhaps more of a Tier .5 standard is 5 because all it does is specify, when you read the 6 standard, particular affluent limits for a small list 7 of chemicals. It doesn't say that you have to meet any 8 other standards and furthermore, those affluent limits 9 for phosphorous I don't have the numbers in front of 10 me but I think the prosperous limit is one milligram 11 per liter for phosphorous for an affluent limit. That 12 is what you have to meet. 13 One milligram per liter, that is the 14 entire Great Lakes Basin. Every discharger in the 15 Great Lakes have to meet that standard. This is not an 16 exceptional standard. These are not even protective. 17 In fact, if we look at your own criteria for 18 phosphorous you will find that somebody meeting the 19 limits for an Exceptional water, discharging into a 20 Kentucky water will be violating the proposed USEPA 21 criteria document for phosphorous if there is not 22 sufficient pollution. 23 The final thing I would say, and I hope 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 64 there are some Kentucky officials here or with us who 1 will convey to Kentucky, it doesn't have to be this 2 way. There are other states there is a false 3 dichotomy that has been set up here. 4 The mind set apparently is that either 5 you are going to have no protection at all or you have 6 to have a Perry Mason type trial before you allow any 7 new discharge. That is not the concept here. We said 8 at a lot of different contexts, you have to look at 9 each situation and give the level of analysis necessary 10 to it. 11 If you have a new trailer park 12 discharging into the Mississippi River, it is pretty 13 clear that you are not going to have a massive effect. 14 The way you look at that is you look at the trailer 15 park, decide whether it is doing a reasonably good job. 16 That could be a one page analysis. That could be your 17 one page Tier 2 analysis. 18 On the other hand, if you had a chemical 19 factory going into a High Quality stream with 20 endangered species, yes, maybe you'll have an in depth 21 analysis and you'll look carefully at the social and 22 economic impact there. 23 But most importantly, you will always 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 65 look at alternatives. The essence of environmental 1 law, if I say anything, is look at alternatives. If 2 you look at the guideline, when they talk about a 3 de minimis and they say that a five percent de minimis 4 might be acceptable in a parameter by parameter basis, 5 a five percent de minimis would be acceptable. But 6 even then they say you should look at alternatives. 7 And why shouldn't you? Why should they let a trailer 8 park discharge into the Mississippi for no good reason? 9 A little pollution adds up. 10 What we come up with, at least everybody 11 says oh, it doesn't matter. Every discharger, every 12 polluter I've ever looked at always says well, if I 13 stop what I am doing and everybody else continues what 14 they are doing, we won't have achieved anything. That 15 is absolutely true. 16 However, the answer to that is that 17 everybody has got to clean up, not nobody or else we 18 will never restore and maintain the chemical, physical 19 and biological integrity of the nation's waters. 20 Thank you. I hope, however, that we 21 don't have to have a series of hearings like this 22 across the country as we have serious similar 23 situations in which USEPA has failed to give directions 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 66 to the states and failed to design ways to give 1 guidance to the states so that we can have workable 2 programs because I can tell you, we are going to Iowa 3 next. There are a lot of other states with similar 4 programs, similar problems facing them, the same sorts 5 of issues and I don't want to travel that much in the 6 cold, not with the current airport security certainly. 7 And I want to say also that there are 8 states that have done it right and we look to those. 9 These states they may not be perfect in other respects 10 but there are states that have done it right, have 11 looked at practical ways to face some of these 12 problems. I hope we can work with Kentucky to come up 13 with a solution that gives perfections to all 14 Kentucky's waters without imposing unnecessary costs on 15 anyone. Thank you. 16 MR. McGILL: The next speaker 17 is Winnie Hefler. 18 MS. HEFLER: Winnie Hefler, 19 Louisville, Kentucky. Forgive me if I stumble. I 20 can't see with my glasses and I can't see without them 21 so I am going to have trouble. 22 Antidegradation and restoration of all 23 the nation's waters are basic elements of the Clean 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 67 Water Act. How can a Clean Water advocate take 1 seriously the EPA proposed antidegradation standard? 2 EPA has rejected, and rightly so, previous State of 3 Kentucky antidegradation definitions. I do not 4 remember what the state proposed but the federal EPA's 5 rule can scarcely be any better. 6 Originally, I had planned to offer 7 suggestions to strengthen the EPA plan, but upon more 8 reflection and considering recent environmental news 9 items, I can only reject completely EPA's meager 10 offering and ask my fellow conservationists to await a 11 better opportunity to press for the long needed anti 12 degradation parameters. 13 EPA does not take its' clean water 14 responsibilities seriously and neither does Kentucky. 15 In 1972, the nation's waterways and aquatic life were 16 befriended by the U. S. Congress, thus rescuing 17 Kentucky's waters from complete abandonment by the 18 state power overseeing water quality at the time. 19 Many were so called sanitarians whose 20 concern was getting the waste water through the 21 plumbing with scant concern about the receiving 22 streams' welfare. I well remember conservationists' 23 dismay over the Craven official plan to write off a 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 68 Clean Water effort at that time led by Bernie Carter of 1 the Fish and Wildlife Department, David Short of the 2 Attorney General's Office and Lexington and Louisville 3 Sierra Club activists and others. 4 From my point of observation, Clean 5 Water has no government friends or advocates today. 6 The polluters are in control, and I recommend that we 7 regroup, while we work very hard to create a Clean 8 Water 9 advocacy among elected and appointed officials. 10 In Washington, the Bush Administration 11 is dismantling the Environmental Movement, the Women's 12 Movement and the Civil Rights Movement. We are 13 presently in the grip of an extremely reactionary 14 period and our timing unfortunately, proves to be off 15 the mark and we continue to be stalled with a 16 vengeance. 17 The EPA anti degradation proposal is an 18 affront and an insult to our intelligence and 19 sensibilities. 20 I think it is prudent and wise to reject 21 outright the rule rather than try to improve it. There 22 is no way this can happen look at the recent 23 environmental record. President Bush's push to undo 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 69 environmental laws over a wide spectrum of deeply and 1 passionately held American concerns from drilling in 2 the Artic National Wildlife Refuge to increasing 3 arsenic in drinking water, from loosening coal power 4 plant air pollution requirements, to allowing and 5 encouraging snow mobiles in our great western national 6 parks, from sacrificing our precious remaining wetlands 7 to development in agriculture, to siccing the military 8 on pristine areas on our vast training reservations 9 that now provide sanctuary to threatened and endangered 10 species of plants and animals; from approval of 11 mountaintop valley stream fill strip mining to a white 12 wash of the Massey Coal in Martin County coal slurry 13 spell environmental disaster. 14 Our timing is off due to the political 15 climate in Washington and the federal EPA. KWA's 16 intention is not at fault. This noble effort has been 17 building for a long, long time. For thirty years, 18 citizens have pleaded for an anti degradation in state 19 regulations, but we continue to be usurped by terrible, 20 blind business/ government interests. I urge that we 21 tell EPA to make a much improved offer based on the 22 Clean Water Act's statements addressing valid anti 23 degradation and restoration or forget it. 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 70 A new reform climate is brewing in the 1 country. In two years, we need to try again, beyond 2 this unhappy period, where we will be dealing with a 3 wiser and more logical official champion of Clean 4 Water. 5 MR. McGILL: The next speaker 6 is Judith Petersen. 7 MS. PETERSEN: My name is 8 Judith Petersen. I am the Executive Director of 9 Kentucky Waterways Alliance. Kentucky Waterways 10 Alliance is a statewide organization that is dedicated 11 to protecting and restoring Kentucky's waterways and 12 their watersheds by building effective alliances for 13 their stewardship. I will not be the only speaker for 14 KWA today and these comments are meant to supplement 15 our preliminary written comments that were submitted to 16 the USEPA on Wednesday, January 22. KWA will also be 17 submitting additional written comments before the end 18 of the comment period. 19 To say that KWA and the coalition of 20 groups most of which are represented here today who 21 filed the Notice of Intent to sue EPA are disappointed 22 in the draft rule, I think is a pretty significant 23 understatement. We continue to investigate our legal 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 71 options in this matter and remain unconvinced that EPA 1 has even completed their oversight duty to propose an 2 implementation procedure and create meaningful 3 provisions to maintain levels of water quality in 4 Kentucky. After waiting over five years while EPA and 5 the state of Kentucky continued to issue discharge 6 permits without a meaningful and protective 7 implementation policy, the citizens in this state 8 waited an additional year and a half for EPA to propose 9 this rule, which again in kind terms can only be called 10 guidance. 11 Actually, Lloyd, if you are still here. 12 I agree with you that the legal and technical 13 deficiencies in this rule are significant and that the 14 rule lacks sufficient detail to actually implement in 15 terms of writing KPDES permits. 16 Now in violation of the Clean Water Act, 17 EPA has attempted to basically toss this mess back to 18 the state that has been unable to propose a policy that 19 meets federal regulations, with only vague guidance 20 coming in the form of " Supplementary Information" to 21 the rule. When we agreed in the summer of 2001 not to 22 file a legal action in court and to allow EPA time to 23 propose a draft rule, we actually believed that EPA 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 72 would propose a rule that would protect Kentucky's 1 waters in at least as stringent a fashion as is 2 dictated in the Water Quality Standards Handbook, the 3 EPA Watershed Academy Web site training module on the 4 Clean Water Act and in EPA regional guidance that has 5 been published in most of our regions. 6 Instead I stand here today and tell you 7 that this proposed rule would leave open to continued 8 pollution all or portions of every major river, stream 9 and lake in this state and that the rule fails to 10 provide even the legal protection to the few 11 " Exceptional Waters" that are currently designated by 12 the state of Kentucky. That we will be years in legal 13 wrangling like our neighbors in West Virginia are right 14 now in trying to even create real implementation 15 procedures for this proposal as weak and deficient as 16 it is. I do not understand an environmental agency 17 that so disregards the resources of our own state and 18 it's own guidance, history and regulatory mandate. 19 Again, I have to say that I agree with 20 Tony Sholar in that right now, there is a certainty in 21 KPDES permits in this state and that is one of the main 22 things that is wrong with our anti degradation 23 implementation policy is that right now, you basically 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 73 have a right to get a KPDES permit and you have the 1 right to have that permit be the maximum limits under 2 our Water Quality Standards. That is why every year, 3 the number of KPDES permits in our state continue to go 4 up and right now, Kentucky has over 12,800 KPDES 5 permits that are issued, virtually every one of which 6 has limits that equal the water quality standards' 7 maximum limits. 8 The goal of the Clean Water Act, I think 9 we need to remember, was to eliminate the discharge of 10 pollutants into our waters. With over 12,800 permits 11 and counting, you tell me how we are eliminating the 12 discharge. 13 The goal of the Clean Water Act is to 14 restore and maintain the chemical, physical and 15 biological integrity of the Nation's waters. At 40 CFR 16 131.12( A)( 2) federal regulations to maintain water 17 quality require that each state establish a policy and 18 implementation rules to prohibit degradation of good 19 water quality unless it is necessary to allow such 20 degradation to accommodate important social or economic 21 development. These protections against unnecessary 22 lowering of water quality, typically known as " Tier II" 23 protections, do not now exist in Kentucky and EPA did 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 74 rightfully disapprove them in 1997 and again in 2000. 1 While the Clean Water Act does not 2 precisely spell out the standards EPA must use in 3 proposing regulations following its' disapproval of a 4 state water quality standard proposal, it seems to be 5 clear that the standards must be consistent with the 6 goals of the Act, must be something that the state can 7 implement. 8 However, the EPA proposal, I think, is 9 unprotective, illegal and impractical. Rather than set 10 forth the required implementation procedures to 11 identify and protect high quality waters, this rule is 12 so vague and lacking in content that it provides 13 basically nothing new to the state. 14 Even important and sensitive waters will 15 be denied protection under this rule, contradict 16 obligations to promptly propose. We did hear the 90 17 day standard and here we are six and a half years and 18 counting. To promptly propose and implement a water 19 quality standard program after disapproving a state 20 regulation, the proposed rule does not begin to specify 21 which waters will be covered in the Tier II 22 protections. Instead EPA basically rephrases the 23 regulatory language at 40 CFR 131( a)( 2) and then tells 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 75 Kentucky to try to interpret that language again. I am 1 sorry, Kentucky has had over five years to try to 2 interpret that language sufficient to meet the 3 regulations and the regulatory requirements of the 4 Clean Water Act. They have been unable to do so. That 5 is why we are here today. That is why EPA has proposed 6 this rule. 7 Therefore, it is now EPA's duty to write 8 this rule, write with enough specificity that we can 9 implement it here in the State of Kentucky. 10 Contrary to EPA published guidance, 11 which states, " All parameters do not need to be better 12 quality than a state's ambient water quality criteria 13 to trigger a Tier II analysis. The policy is clearly 14 intended to apply to lowering of water quality in water 15 bodies even where occasional exceedances of criteria 16 values occur. Otherwise, there is the potential for a 17 large number of waters not to receive antidegradation 18 protection." EPA clearly understands this, or at least 19 has understood this in the past in its own regulation 20 and guidance and yet for whatever reason seems to be 21 unwilling or unable to put that in a rule for the State 22 of Kentucky. It seems to me that Kentucky waters 23 deserve as much protection as any waters in this 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 76 country. 1 In the Supplementary Information to the 2 proposed rule, it also strongly suggests that Kentucky 3 does not need to protect against new pollution to any 4 water that is currently failing to meet any applicable 5 water quality standard. In Kentucky, by far, our two 6 most common impairments are sediments and pathogens. 7 So even a water body that is otherwise in generally 8 good health and is serving critical needs to Kentucky 9 citizens and wildlife would be denied protection that 10 are applicable to this set of water bodies because we 11 have too much sediment or too much pathogens in the 12 water. Indeed, the Supplementary Information even 13 suggests that the Cabinet could deny Tier II 14 protections against unnecessary pollution to some 15 waters that are meeting all water quality standards if 16 they do not score high enough on the Cabinet's 17 biological grading scale. 18 Now don't get me wrong. Kentucky 19 Waterways Alliance agrees that the biological rating 20 scale that Kentucky uses is probably the best overall 21 indication of the health of the aquatic ecosystems but 22 we would disagree very strongly with any proposal that 23 would allow Kentucky to exclude waters that are not 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 77 meeting or exceeding a rating scale of " good" or 1 better. Again, using sediment as an example, sediment 2 is one of the most common impairments of Kentucky's 3 waters. Streams often have too much sediment and/ or 4 have lost some part of their riparian buffer which 5 would significantly lower their biological index rating 6 score. The stream may well meet or exceed every other 7 water quality criteria for aquatic life support and it 8 seems like it would certainly be contrary to the goals 9 of the Clean Water Act and the public's interest and 10 EPA's guidance and its own regulations to allow 11 Kentucky to exclude that same stream from Tier II 12 protections. In addition, it is our understanding that 13 the biological indices that are developed by Kentucky 14 may not be applicable to all waterways, for instance, 15 some of our largest rivers and streams, rivers that you 16 can't easily wade into to use some of the criteria in 17 the biological rating scale or some streams that may 18 have a very rocky substrate. I don't believe that our 19 biological indices are applicable for those streams. 20 So again, while we can use the biological index to 21 influent streams that are clearly meeting or exceeding 22 water quality standards for aquatic life, they cannot 23 be used in the converse manner to exclude streams. 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 78 As proposed, this rule would deny high 1 quality protection to hundreds of miles of Kentucky 2 waterways that are currently designated as Outstanding 3 State Resource Water because of the presence of 4 federally listed threatened or endangered species, but 5 that may have a pathogen exceedance or another problem 6 at various times of the year. It certainly seems to me 7 that Outstanding State Resource Waters with documented 8 presence of federally listed species must be protected 9 as high quality for aquatic life. 10 For instance, I live in the Upper Green 11 River Water Shed here in the State of Kentucky. We 12 have 125 miles of the Upper Green that is listed as 13 Outstanding State Resource Water that is recognized by 14 the Nature Conservancy and the Bioheritage Council of 15 the country as probably the most important stream in 16 the entire Ohio River Basin to protect because of the 17 aquatic biodiversity. We have over 150 fish species, 18 over 70 species of muscles that live in that river and 19 yet 70 miles of it has a pathogen problem. So we are 20 to exclude this portion of the Upper Green as a high 21 quality water because one particular level of water 22 quality criteria does not meet or exceed the standards? 23 That seems to me like that turns the entire Clean Water 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 79 Act on its head. 1 Again, as detailed in our comments, our 2 written comments submitted to EPA on January 22, 2003, 3 we believe the EPA proposed rule would deny protection 4 to all or portions of over one thousand Kentucky 5 rivers, streams and lakes, including significant 6 sections of basically every major river stream and lake 7 in our state. 8 Even waters that the Cabinet now 9 recognizes are " Exceptional" do not receive real 10 protection under the EPA proposed rule. 11 We asked if it wanted consideration of 12 the " Exceptional Waters" to be included for Tier II 13 protections under this rule and certainly, it assuming 14 that we'd get meaningful protections under this rule. 15 We would like that to happen. We would like those to 16 be included. 17 The proposed rule leaves even these 18 waters that the Cabinet currently recognizes as 19 " Exceptional" under protected because it does nothing 20 to correct the loopholes in 401 KAR 5: 030 Section 1( 3). 21 While Kentucky supports recognition of " Exceptional 22 Waters", it seems to us that they should receive at 23 least at a minimum the water quality protections 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 80 provided under federal law for high quality waters and 1 not an arbitrary pre determined set of effluent limits 2 and exemptions that is basically designed to preclude 3 the consideration of the necessity of lowering water 4 quality, designed to preclude the consideration of 5 alternatives in a social and economic benefit. This 6 was discussed in detail again in our comments submitted 7 in writing on January 22. 8 Even as to what waters would receive 9 " high Quality" or " Exceptional" consideration under the 10 proposed rule, EPA's Supplementary Information to the 11 rule encourages the Cabinet to adopt an exception for 12 " minor" or " insignificant" discharges and we believe 13 that this will lead to a progressive degradation of 14 water quality in our state. 15 EPA in its proposed rule does nothing 16 about the current de minimis exemption in Kentucky's 17 regulations that is applicable to the only Tier II 18 waters that we have which are " Exceptional Waters". 19 The Supplementary Information gives only vague guidance 20 on how small a proposed discharge must be for Kentucky 21 to allow it to basically sneak in under the 22 antidegradation net. It states that the de minimis 23 exemptions to Tier II protections can be acceptable but 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 81 then again, if they are too large or the increase is 1 too big, then maybe they are not acceptable. So what 2 does that tell our permit writer? It seems to me like 3 it tells them basically nothing. 4 Kentucky currently considers anything 5 less than a twenty percent increase in pollutant 6 loading as de minimis for our " Exceptional Waters". 7 This language, I believe, is ambiguous because it talks 8 about additional pollutant loading without caveat of is 9 this related to just this permit? Is this related to 10 the in stream water quality? Is this related to all 11 the pollutant loadings in the stream? I don't know. 12 Maybe some of the gentlemen sitting here in this room 13 knows but it is certainly not clear in regulation and I 14 think any reasonable person would consider 20 percent 15 not to be de minimis. It is not really a thousand 16 cuts. It seems to me like you take 20 percent of the 17 pie you take five pieces, and you are basically gone. 18 Finally, even EPA Region IV in their own 19 published guidance on antidegradation state that 20 antidegradation basically, " These approaches usually 21 require an analysis conducted on a parameter by 22 parameter basis." It is therefore entirely unclear how 23 this process will work in Kentucky with the 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 82 designational approach that Kentucky clearly favors and 1 that EPA seems willing to accept. 2 It seems like all Kentucky waters should 3 be protected against unnecessary degradation. Isn't 4 that the promise of the Clean Water Act, that we will 5 maintain the chemical, physical and biological 6 integrity? 7 A proper rule should: require the 8 application of antidegradation on a parameter by 9 parameter basis, requiring the application of the 10 parameter based review even to those waters that are 11 currently on the 303( d) list for any parameters that 12 are not currently violating standards. It should allow 13 no de minimis exemption to the antidegradation review 14 and should provide an actual and practical direction 15 for implementing antidegradation in Kentucky. 16 I am going to finish these comments 17 later this afternoon or actually this evening but I 18 would like to skip through to near my conclusions there 19 and we will still be following the written outline that 20 I handed in to the court reporter there. 21 In conclusion, I would like to say that 22 the continued approval of new and expanded discharge 23 permits in the state of Kentucky should stop until such 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 83 time as the state is sufficiently prepared to implement 1 an approved antidegradation procedure. Every month new 2 permits are granted that continue to lower the water 3 quality in our rivers, lakes and streams. Citizens 4 have waited more than five long years. Now, it appears 5 that we are still far from achieving the goal of a 6 state water quality standards program that fully 7 implements the Clean Water Act in Kentucky. It is time 8 to stop playing fast and lose with our good water 9 quality. It is also clear that there have been 10 hundreds perhaps thousands of discharge permits granted 11 in our state over the past few years with no 12 antidegradation analysis, no consideration of 13 alternatives and no demonstration of need. Every one 14 of these permits must be reevaluated, an 15 antidegradation analysis must be conducted and a 16 compliance schedule must be imposed. 17 While KWA submitted written comments 18 that in many instances paralleled these comments today, 19 again, we plan to submit further comments prior to 20 March 14th. However, I have to say that I am really 21 disappointed here. We are fully intending to continue 22 to participate in this process and we do appreciate you 23 all coming here; however, at this point in time, I have 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 84 to say that we really doubt that these proceedings are 1 going to lead to anything but litigation and additional 2 rounds of rule making proceedings. In the meantime, 3 Kentucky's waters and the people and the wildlife that 4 depend on them will suffer irreparable damage from new 5 pollution that should not have been permitted. 6 We urge EPA and the Cabinet to work 7 together to develop a proposal that will protect 8 Kentucky's rivers, lakes and streams. We pledge to 9 work with you. We should share the same vision and the 10 same goal, the protection of Kentucky's most valuable 11 resource it's clean water. Thank you. 12 MR. McGILL: The next speaker 13 is Hank Graddy. 14 MR. GRADDY: Good afternoon. 15 Like the other speakers, I appreciate EPA's coming to 16 Kentucky to take these comments and like the other 17 speakers, I regret to say that I have to be very 18 critical that what you have given us to comment on is 19 woefully inadequate. By any measure, the EPA proposal 20 is a failure. 21 Speaking on behalf of the Cumberland 22 Chapter of the Sierra Club, we believe that the 23 proposal fails to meet the requirements of the Clean 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 85 Water Act and the proposal fails to maintain 1 consistency with the prior EPA actions and guidance. 2 This proposed rule fails to provide guidance to 3 Kentucky, to the nation. It fails to offer a practical 4 benefit to anyone other than those few who prefer that 5 the promises of the Clean Water Act be postponed 6 indefinitely. 7 At the risk of over simplification, the 8 Cabinet's approach to antidegradation has a fundamental 9 flaw that EPA must recognize and correct. The Cabinet 10 seeks to retain a large category of waters, streams and 11 lakes that are not designated " impaired" and not 12 designated " high quality" because each of these 13 categories requires the Cabinet to follow a specified 14 procedure to protect water quality. For waters that 15 are designated " impaired", the Cabinet must follow the 16 Clean Water Act, Total Maximum Daily Load procedures to 17 list, perform an analysis, and implement a plan to 18 correct the impairment. For waters that are designated 19 " high quality" the Cabinet must follow the Clean Water 20 Act Antidegradation Tier II or, in some cases, the Tier 21 III procedures, designed to protect and maintain, as 22 much as possible, existing high quality conditions 23 wherever they exist. 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 86 What has happened? On the one hand, the 1 Cabinet has developed a list of impaired streams that 2 is much less comprehensive than it should be because 3 the Cabinet will only consider its own data for 4 purposes of identifying areas with water quality 5 impairment. On the other hand, for the past decade, 6 the Cabinet has consistently found ways to narrow the 7 definition of " high quality" to a small number of 8 stream segments, seeking to avoid performing the Tier 9 II analysis, including the " necessity" determination. 10 The Cabinet's current method is to classify most 11 streams and rivers in Kentucky as " use protected"  a 12 classification that has the practical effect of 13 removing virtually all limits on pollution discharge 14 except for the actual water quality standards in those 15 streams with zero low flow. 16 Let me give you a specific example. 17 Last month, the Cabinet issued a proposed KPDES permit 18 for the City of Versailles for discharge into Glenns 19 Creek, a stream that has a zero cubic feet per second 20 low flow designation. Without considering what that 21 plant actually needed, the Cabinet automatically issued 22 permit limits on fecal coliform of 200 col/ 100 ml 23 monthly average, 400 daily max. The Cabinet's 2000 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 87 Report to Congress designates Glenns Creek as fully 1 supporting designated uses, including primary and 2 secondary contact recreation. Yet the Cabinet's fact 3 sheet states that an Antidegradation Tier II analysis 4 was not needed. 5 By allowing Versailles to discharge 6 fecal coliform up to the level that defines water 7 quality impairment, the Cabinet dooms Glenns Creek to 8 be permanently at the risk of impairment. 9 Unfortunately, the Cabinet's current 10 method has even more serious consequences for our 11 rivers and lakes, with permanent flow conditions. 12 Here, the Cabinet grants a " mixing zone" and allows 13 pollutants to be discharged at concentrations that 14 exceed water quality standards and permits effluent to 15 be discharged as toxic to aquatic life at end of pipe. 16 Another example, in 1995, the Cabinet 17 proposed to issue a KPDES permit for the Louisville 18 Morris Forman Treatment Plant to discharge into the 19 Ohio River through a 47 port diffuser, which the 20 Cabinet translated into a toxicity unit of 5.7 TUa. 21 This meant that Morris Forman that permitted and 22 finalized it would be allowed to measure the toxicity 23 of its discharge into the Ohio by first diluting the 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 88 effluent to 17.5 percent effluent, the balance 1 distilled water. Yet the Ohio River was designated, 2 has at one of its designated uses at this location 3 warmwater aquatic life. 4 EPA must clearly instruct the Cabinet 5 that the Clean Water Act requires that the " impaired 6 water" requirement and the " high quality waters" 7 requirements must fit together, so that all waters 8 receive one or the other protection procedures. This 9 is the clear intent of the Clean Water Act and it is 10 the only practical way to implement the Clean Water Act 11 TMDL and antidegradation requirements in a way that 12 will make progress toward the Congressional instruction 13 to eliminate the discharge of pollutants into the 14 Nation's waters. 15 I will note that Mr. McGill at the 16 beginning of the presentation cited one of the goals of 17 the Clean Water Act the interim goal of fishable and 18 swimmable but he did not cite the other goal of the 19 Clean Water Act which is the elimination of the 20 discharge of pollutants to the Nation's waters. 21 My suggestion to you, and I believe the 22 suggestion of others that EPA has an obligation to make 23 sure that states make their impaired program fit and 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 89 dovetail into their high quality program. I think it 1 is compelled by the Clean Water Act language itself, 2 specifically Section 303( d)( 4)( B) which was added to 3 the Clean Water Act in 1987 by Congress where this is 4 the 303( d) section but it is a subheading dealing with 5 Standard attained: It says: " For waters identified 6 under Section ( 1)( A) where the quality of such waters 7 equals or exceeds levels necessary to protect the 8 designated use for such waters or otherwise required by 9 applicable water quality standards, any effluent 10 limitation based on a total maximum daily load or other 11 waste load allocations established under this section, 12 or any water quality standard established under this 13 section or any other permitting standard may be revised 14 only if such revision is subject to and consistent with 15 the antidegradation policy established under this 16 section." 17 That language, I think, makes it clear 18 that these aspects of Clean Water Act implementation 19 are intended to fit without this huge middle ground, 20 that this be the category of protection. 21 Also cited in my written comments, 22 Section 304( c) which discusses the elimination and the 23 reduction of pollutants. 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 90 Section 306 defining " standard of 1 performance". I would remind EPA that its goal is to 2 implement not only fishable and swimmable, but where 3 practicable, a standard permitting no discharge of 4 pollutants at all. 5 Let me make some specific comments about 6 certain aspects of the proposed rule. 7 This section begins with a statement 8 that this proposal, if made final, " will establish an 9 antidegradation policy for high quality waters in the 10 Commonwealth of Kentucky....". 11 The policy for high quality waters 12 already exists and should not change. EPA is now 13 required to adopt " methods of implementation" for 14 Kentucky because Kentucky has failed to do so, as 15 evidenced by prior correspondence. 16 That paragraph then states that it is 17 exempting waters currently regulated under the 18 Cabinet's " Exceptional Waters" and " Outstanding 19 National Resource Waters" because these are already 20 protected. However, the Kentucky regulation does not 21 provide the proper antidegradation protection for 22 " Exceptional Waters". That exemption has no place in 23 the Kentucky regulation. 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 91 This result is compelled when EPA 1 continues its review of Kentucky's implementation 2 process which involves "... involves the application of 3 specified effluent limitations for new or expanded 4 discharges. For example, domestic discharges are 5 limited to discharge at levels of 10 mg/ l for five day 6 carbonaceous biochemical oxygen demand, 2 mg/ l of 7 ammonia nitrogen...., among others. Also, certain 8 discharges are restricted to no more than one half of 9 the limitation that would have been permitted for use 10 protected waters for other parameters." Kentucky's 11 proposal to insert effluent limits that are completely 12 arbitrary in place of the Tier II necessity 13 determination required by 40 CFR 131.12 reveals that 14 the Kentucky Division of Water either fails to 15 understand the Clean Water Act concept of 16 antidegradation or stubbornly refuses to comply with 17 the letter and meaning of the requirement. In either 18 case, the EPA is derelict to simply reassessing this 19 matter of implementation back to that agency. 20 This result the verbatim of what 21 Kentucky has done in writing regulations that 22 implements antidegradation correctly is further 23 compelled when EPA notes that Kentucky proposes to 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 92 exempt from antidegradation requirements those permit 1 renewals that result in less than a 20% in pollutant 2 loading. We can find nothing in EPA guidance ore 3 regulation that supports this irresponsible attempt to 4 nullify the Clean Water Act antidegradation 5 requirement. With this proposal, EPA would be derelict 6 to " delegate" back to Kentucky DOW that matter of 7 deciding how to implement the requirement. This 8 appears to be Kentucky's poorly thought out attempt to 9 insert a de minimis exemption from Tier II analysis. 10 EPA proposed has proposals that have considered " less 11 than 10% of the assimilative capacity". However, 12 Kentucky's proposal is not logical where Kentucky seeks 13 to continue to rely on the " designational" approach  14 the de minimis exemption, if it is logical at all is 15 only logical where the antidegradation analysis is done 16 on a parameter by parameter approach. 17 The Kentucky definition of " use 18 protected water" shows a similar misunderstanding of 19 basic antidegradation requirements. EPA's quote from 20 former Division of Water Director Jack Wilson reveals 21 how clearly Kentucky has misapplied the regulation. 22 EPA correctly observes that the Kentucky proposal "( 1) 23 Waters with quality that is better than the levels 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 93 necessary to support propagation of fish, shellfish, 1 wildlife, and recreation in and on the water..." those 2 are included within the definition of use protection 3 and EPA correctly knows that according to Kentucky, it 4 would only give them Tier I protection. 5 The Sierra Club agrees with the EPA's 6 reason for disapproving the Kentucky program, that " The 7 Commonwealth's provisions only applied to the limited 8 subset of high quality waters" rather than to all 9 waters that are entitled to receive Tier II protection. 10 According to the EPA's analysis, the Kentucky rule 11 provides Tier III protection to 0.06% of Kentucky's 12 stream miles and would provide Tier II protection to 13 1.35% of Kentucky's stream miles. We are concerned 14 when EPA says those in the Division of Water promises 15 to make progress toward implementing the EPA's 16 instructions to be more comprehensive when in earlier 17 submissions the EPA, according to EPA, those applied to 18 3% of Kentucky's waters. It appears that Kentucky is 19 going in the wrong direction. 20 Having recognized that Kentucky purports 21 to extend a Tier II protection for some of its waters, 22 EPA then proposes a policy for high quality waters 23 except for ONRWs and " Exceptional waters". We would 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 94 ask that you delete those exceptions and replace the 1 Kentucky Tier II with a clear Tier II protection 2 yourself. The approach that you have proposed makes 3 antidegradation policy unnecessarily difficult to 4 implement. More importantly, by proposing to leave in 5 place the Kentucky " default" effluent limits for 6 certain pollutants, without any demonstration of need, 7 you would continue in effect a regulation that fails 8 " to evaluate the necessity of lowering water quality" 9 and you made this approach completely useless for the 10 rest of the Nation. 11 EPA in its preamble repeats language 12 that is used in past guidance suggesting that there are 13 in fact actual examples of states that are far more 14 implemented the antidegradation requirement using the 15 " designational approach" as opposed to the parameter by 16 parameter. In past communications that I've had with 17 Region IV in Atlanta, I have requested the identity of 18 states that have properly implemented antidegradation 19 using the " designational" and to date, I have not 20 received the identity of any state that appears to be 21 correctly implementing antidegradation into this 22 approach. 23 We have waited long enough. It is time 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 95 for EPA to be specific and to require that in Kentucky, 1 high quality waters are to be analyzed on parameter by 2 parameter basis. 3 Let me give you a specific example of 4 why this is so prevalent. Last year, in a particular 5 section of the Kentucky River, samples were taken for 6 biomonitoring purposes providing the effluent from a 7 particular small town. In that sample, 30% survived in 8 a mixture of 60% of wastewater and 20% distilled water 9 and those species were exposed to 100% treated 10 wastewater. In sample A, they all died. In sample B, 11 they survived. 12 The test was repeated in the second 13 quarter. In this example, 75% survived in 100% 14 wastewater and 100% survived in the other sample. 15 In the third test, all the species died 16 when they were exposed to 100% wastewater. 17 In the fourth quarter, all the species 18 died when they were exposed to 100% wastewater in both 19 samples and in the fifth quarter, they survived. 20 For those of us who want the Clean Water 21 Act to work to provide good habitat for aquatic life 22 not just for part of the year in part of our waters, 23 there are two questions three questions that come to 24 TRANSCRIPT OF PUBLIC HEARING  JANUARY 23, 2003 PROPOSED WATER QUALITY STANDARDS FOR COMMONWEALTH OF KENTUCKY SANDY HARDING, COURT REPORTER ( 502) 223 0475 ( 502) 696 1008 96 mind: First is how long has this been going on? The 1 second is what is being done about it? 2 In this particular case, this site was 3 identified on the 304( l) list as a result of the 1987 4 amendments to the Clean Water Act. This particular 5 facility was a toxic hotspot and so for ten years, we 6 have known about the problems of this facility. 7 This facility was suppose to control a 8 copper discharge of about a half a pound a day 9 according to the 1989 publication of the Individual 10 Control Strategy for this facility. We have known 11 about this problem for ten years. 12 Next question, what is being done? And 13 the answer is nothing. Nothing is being done. Why is 14 nothing being done? Because the Division of Water has 15 given this facility a mixing zone w